1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-20-1994

Witco v. Beekhuis

Precedential or Non-Precedential:

Docket 93-7837

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Recommended Citation

"Witco v. Beekhuis" (1994). 1994 Decisions. Paper 161.

http://digitalcommons.law.villanova.edu/thirdcircuit_1994/161
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 93-7837 

 

 WITCO CORPORATION, 

 Appellant 

v. 

 JEANNE V. BEEKHUIS, Executrix for 

 the Estate of H. Albert Beekhuis; 

 BRANDYWINE CHEMICAL COMPANY; 

 WILMINGTON TRUST COMPANY, as Trustee for 

 the Trust Agreement dated August 9, 1985 

 between H. Albert Beekhuis and Wilmington 

 Trust Company; and Jeanne V. Beekhuis, 

 individually 

 

 Appeal from the United States District Court 

 for the District of Delaware 

 (D.C. Civ. No. 92-cv-00301) 

 

 Argued August 10, 1994 

 Before: MANSMANN, COWEN and McKEE, 

 Circuit Judges

 (Filed October 21, 1994) 

 

Judith N. Renzulli (Argued) 

Kevin W. Goldstein 

Duane, Morris & Heckscher 

1201 Market Street, Suite 1500 

P.O. Box 195 

Wilmington, DE 19899 

 COUNSEL FOR WITCO CORPORATION 

 Appellant 
James F. Burnett (Argued) 

Potter, Anderson & Corroon 

350 Delaware Trust Building 

P.O. Box 951 

Wilmington, DE 19899 

 COUNSEL FOR JEANNE V. BEEKHUIS, 

 Executrix for the Estate of 

 H. Albert Beekhuis 

 Appellee 

Thomas R. Hunt, Jr. 

R. Judson Scaggs, Jr. (Argued) 

Morris, Nichols, Arsht & Tunnell 

1201 North Market Street 

P.O. Box 1347 

Wilmington, DE 19899 

 COUNSEL FOR WILMINGTON TRUST COMPANY, 

 AS Trustee for the Trust Agreement 

 dated August 9, 1985 between 

 H. Albert Beekhuis and Wilmington 

 Trust Company 

 Appellee 

 

OPINION

 

COWEN, Circuit Judge. 

 

 In this action for contribution under the Comprehensive 

Environmental Response, Compensation and Liability Act, 42 U.S.C. 

§§ 9601, et seq., ("CERCLA"), Witco Corporation ("Witco") asserts 

its claim against: Jeanne V. Beekhuis (daughter of Dr. H. Albert 

Beekhuis and executrix for his estate); Wilmington Trust Company 

("WTC") (trustee of two trusts created by Dr. Beekhuis); and 

Brandywine Chemical Company ("Brandywine Chemical") 

(collectively, "the defendants"). 
 Witco's claim relates to a parcel of land ("the site") 

previously owned by Halby Products and Halby Chemical Company 

(collectively, "Halby"). Dr. Beekhuis was an officer, director 

and majority stockholder of Halby. The site became Witco's 

property in 1972 when Halby merged into Witco's subsidiary. In 

1977, the site was sold to Brandywine Chemical. Thereafter, 

because the site was contaminated with various chemicals, the 

U.S. Environmental Protection Agency ("EPA") placed the site on 

the CERCLA National Priorities List. 

 In 1992, Witco entered into a Consent Decree with the 

EPA to provide for the cleanup of the site. Witco now seeks 

contribution from the defendants for the costs associated with 

cleaning the site. Witco's claim against Jeanne Beekhuis is in 

her representative capacity as executrix of the estate of Dr. 

Beekhuis, and its claim against WTC is in its capacity of 

trustee, charged with the responsibility of paying the debts of 

the estate of Dr. Beekhuis. 

 The district court entered two orders which are at 

issue in this appeal. In the first order dated May 20, 1993, the 

court held that the CERCLA statute of limitations for 

contribution did not preempt Delaware probate law. In a second 

order dated November 24, 1993, the district court held that the 

Estate was entitled to statutory indemnification from Witco. 

Although these two orders did not terminate the litigation, the 

district court by order entered on November 29, 1993, directed 

that judgment be entered on both orders. See Fed. R. Civ. P. 

54(b). 
 This appeal raises one issue of first impression at the 

federal appellate level, and one issue of first impression in the 

Court of Appeals for the Third Circuit. The former is whether 

the three-year statute of limitations established by Congress for 

contribution claims under CERCLA preempts state nonclaim statutes 

that govern the administration of decedents' estates. The latter 

issue is whether under CERCLA an estate of a "potentially 

responsible party" can properly establish an indemnity claim 

pursuant to Delaware General Corporation Law. We hold that 

CERCLA does not preempt state nonclaim statutes, and will affirm 

the order of the district court granting summary judgment to the 

defendants. We also hold that statutory indemnification pursuant 

to Delaware General Corporation Law is not affected by CERCLA, 

and also will affirm the order of the district court granting 

summary judgment on the issue of indemnification. 

I.

 Dr. H. Albert Beekhuis was an officer, director and 

majority shareholder of Halby Products and Halby Chemical 

Company, both of which were Delaware corporations. Halby 

operated a chemical manufacturing and distribution business on 

land it owned. In 1972, Halby was merged into a Witco 

subsidiary, Argus Chemical Company ("Argus"), which subsequently 

was merged into Witco. Witco is a Delaware corporation. Argus 

continued to use the site in its chemical business until it sold 

the site to Brandywine Chemical in 1977. From that time until 
the present, Brandywine Chemical has used the site as a storage 

and repackaging facility for chemicals. 

 In August, 1985, Dr. Beekhuis entered into a trust 

agreement creating two separate inter vivos trusts, with WTC as 

the trustee for each trust. The first trust, into which Dr. 

Beekhuis placed substantially all of his assets, was to provide 

for income and maintenance for Dr. Beekhuis and his dependents 

during his lifetime. It was also to provide his estate upon his 

death with funds to pay debts and other expenses associated with 

settling his estate. The second trust was a residuary trust 

which was funded by property remaining after the first trust had 

been closed subsequent to the administration of his estate. 

Jeanne Beekhuis, the daughter of Dr. Beekhuis, is the primary 

life beneficiary of the residuary trust. Upon her death, the 

trust assets will be distributed to various charities. 

 Witco has been aware of potential environmental 

problems on the site since at least June of 1985, when the EPA 

requested information from the company in connection with its 

investigation of the site. In April of 1986, Witco received a 

Special Notice Letter from the EPA inviting it to perform a 

Remedial Investigation/Feasibility Study (RI/FS) Report for the 

site. The EPA subsequently placed the site on the CERCLA 

National Priorities List because it had detected various 

hazardous chemicals, such as lead, mercury, cyanide and arsenic, 

in the soil at the site. In October of 1988, because of a 

release or a substantial threat of a release of hazardous 

substances at the site, the EPA commenced the RI/FS. 
 On October 28, 1988, Witco notified Dr. Beekhuis of his 

potential liability under CERCLA. Witco also requested certain 

insurance information from Dr. Beekhuis and informed him that the 

EPA had already spent approximately $700,000 investigating the 

site. On January 21, 1989, Dr. Beekhuis responded through his 

attorney by providing the requested insurance information. 

 On March 21, 1989, Dr. Beekhuis died. Jeanne Beekhuis, 

Dr. Beekhuis' daughter, was appointed executrix of the estate. 

Eight months later, after paying the debts of the estate and 

after the Delaware statute of limitations for claims against the 

estate had run, the trustee of the first trust placed all of the 

property remaining in the first trust into the Residuary Trust. 

Between the date of Dr. Beekhuis' death and November 21, 1989, 

Witco took no action with respect to any possible CERCLA 

contribution claim against the estate of Dr. Beekhuis. 

 On January 18, 1990, Witco wrote to the lawyer for Dr. 

Beekhuis' estate, apprising him of Witco's potential claim for 

contribution, and seeking the imposition of a constructive trust 

on the estate's assets pending resolution of the environmental 

problem at the site. The attorney advised Witco that it was 

premature to request the imposition of a constructive trust as no 

claim had yet been asserted by the EPA against Witco. 

 On December 4, 1990, Witco filed in Delaware state 

court a petition for a constructive trust on the assets in Dr. 

Beekhuis' estate. The court dismissed the action for failure to 

state a claim. In re: Estate of H. Albert Beekhuis, No. 11,853, 

1992 WL 5689 (Del. Ch. Jan. 13, 1992). 
 On June 28, 1991, the EPA published its Final Record of 

Decision ("ROD") recommending remedial action for the site. The 

ROD recommended excavation, stabilization, backfill, and capping 

of contaminated surface soil at the site. In August of 1991, the 

EPA notified Witco, Argus, Brandywine Chemical, and the estate of 

Dr. Beekhuis that each was a potentially responsible party 

("PRP") for the discharge of hazardous waste at the site. Each 

party named as a PRP was given the opportunity to participate in 

the planned remedial process for the site. Witco subsequently 

executed a Consent Decree with the EPA for the remediation of the 

contaminated soil. United States v. Witco Corp., Consent Decree, 

C.A. 92-93 (D. Del. April 9, 1992). Pursuant to the Consent 

Decree and the ROD, Witco has incurred remedial response costs 

and expenses for the site. 

 After executing a consent decree with the EPA for 

remediation of the site, Witco filed its claim and thereafter its 

amended claim for contribution against Jeanne Beekhuis, as 

executrix of the estate; WTC, as trustee; and Brandywine 

Chemical. The Executrix filed an answer and an amended answer to 

the amended complaint asserting a counterclaim against Witco for 

indemnification for all expenses, including attorney's fees 

incurred in connection with this action, the civil action in the 

Delaware state court, and any threatened, pending or completed 

EPA actions, suits, or proceedings. 

 The district court granted the motions of the Executrix 

and WTC for summary judgment on the CERCLA contribution claims. 

Witco Corp. v. Beekhuis, 822 F.Supp. 1084 (D. Del. 1993). In a 
subsequent opinion, the district court granted the Executrix's 

motion for summary judgment on the counterclaim against Witco for 

indemnification. Witco Corp. v. Beekhuis, Mem. Op., C.A. No. 92-

301-RRM (D. Del., Oct. 22, 1993). 

II. 

A. 

 The district court exercised its jurisdiction pursuant 

to 28 U.S.C. §§ 1331, 2201, and 2202, and under 42 U.S.C. § 

9613(b). We have appellate jurisdiction under 28 U.S.C. § 1291 

and Fed. R. Civ. P. 54(b), in that this is an appeal from a final 

judgment as to some but not all parties and issues involved in 

the district court proceedings. On November 24, 1993, the 

district court entered final judgment on these two orders which 

are before us for review pursuant to Fed. R. Civ. P. 54(b). 

B. 

 Federal Rule of Civil Procedure 56(c) provides that a 

party is entitled to summary judgment where "the pleadings, 

depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving party 

is entitled to a judgment as a matter of law." Celotex Corp. v. 

Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). A 
party seeking summary judgment always bears the initial 

responsibility of informing the Court of the basis for its 

motion, and identifying those portions of the "the pleadings, 

depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any, which it believes 

demonstrate the absence of a genuine issue of material fact." 

Id. at 323, 106 S. Ct. at 2553. Where, as here, the non-moving 

party has the burden of proof at trial on the issue for which 

summary judgment is sought, that party must make a showing 

sufficient to establish the existence of a genuine issue for 

trial. Id. at 324, 106 S. Ct. at 2553. Moreover, the mere 

existence of some evidence in support of the non-moving party 

will not be sufficient to support a denial of a motion for 

summary judgment; there must be enough evidence to enable a jury 

to reasonably find for the non-moving party on the issue. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 

2505, 2511 (1986). 

III. 

 In support of their motions for summary judgment, 

defendants contend that the Delaware nonclaim statute, Title 12, 

§ 2102, applies in this case, and is a complete bar to the claim 

for contribution. Section 2102(a) provides, in pertinent part: 

 All claims against a decedent's estate which 

arose before the death of the decedent . . . 

whether due or to become due, absolute or 

contingent, liquidated or unliquidated, 

founded on contract, tort or other legal 
basis . . . are barred against the estate, 

the personal representative and the heirs and 

devisees of the decedent unless presented as 

provided in § 2104 of this title within 8 

months of the decedent's death whether or not 

the notice referred to in § 2101 of this 

title has been given. 

Del. Code Ann. tit. 12, § 2102(a) (1992) (emphasis added). 

 Defendants argue that because Witco failed to present 

its contingent CERCLA contribution claim to the executrix of Dr. 

Beekhuis' estate by November 21, 1989, eight months after Dr. 

Beekhuis' death, the claim is now forever barred under the 

Delaware nonclaim statute. 

 Witco contends, however, that the CERCLA limitations 

period for contribution claims of three years from the date of 

judgment or a judicially approved settlement applies to this 

case. 42 U.S.C. § 9613(g)(3) provides, in pertinent part: 

 (3) Contribution 

 No action for contribution for any response 

costs or damages may be commenced more than 3 

years after -- 

 (A) the date of judgment in any 

action under this chapter for 

recovery of such costs or damages, 

or 

 (B) the date of . . . entry of a 

judicially approved settlement with 

respect to such costs or damages. 

42 U.S.C. § 9613(g)(3) (1988). 

 Accordingly, Witco argues that it had three years from 

April 29, 1992, the date of the Consent Decree, to file its 

CERCLA contribution claim. Since Witco filed its claim on May 

25, 1992, it contends that it is within the CERCLA limitations 

period. Witco further asserts that to the extent the two 
statutes conflict, the CERCLA statute of limitations preempts the 

Delaware nonclaim statute. 

 The United States Supreme Court in California Federal 

Sav. and Loan Ass'n v. Guerra, 479 U.S. 272, 107 S. Ct. 683 

(1987) has provided a cogent analysis of when a state law may be 

preempted by federal law. The Court wrote in that case: 

 In determining whether a state statute is 

pre-empted by federal law and therefore 

invalid under the Supremacy Clause of the 

Constitution, our sole task is to ascertain 

the intent of Congress. Federal law may 

supersede state law in several different 

ways. First, when acting within 

constitutional limits, Congress is empowered 

to pre-empt state law by so stating in 

express terms. Second, congressional intent 

to pre-empt state law in a particular area 

may be inferred where the scheme of federal 

regulation is sufficiently comprehensive to 

make reasonable the inference that Congress 

"left no room" for supplementary state 

regulation . . . . 

 As a third alternative, in those areas 

where Congress has not completely displaced 

state regulation, federal law may nonetheless 

pre-empt state law to the extent it actually 

conflicts with federal law. Such a conflict 

occurs either because "compliance with both 

federal and state regulations is a physical 

impossibility," or because the state law 

stands "as an obstacle to the accomplishment 

and execution of the full purposes and 

objectives of Congress."

Id. at 280-281, 107 S. Ct. at 689 (citations omitted) (emphasis 

added). 

 This Court has held that in enacting CERCLA Congress 

has not explicitly preempted all state law on environmental 

subject matter, nor has Congress enacted such a comprehensive 
scheme of regulation as to provide no room for supplementation by 

the states. Manor Care, Inc. v. Yaskin, 950 F.2d 122, 125-26 (3d 

Cir. 1991) (citing Exxon v. Hunt, 475 U.S. 355, 106 S. Ct. 1103 

(1986)). Thus, it is clear that neither the first nor the second 

basis for preemption of state law under Guerra are present in 

this case. 

 Turning to the third basis for preemption of state law, 

we must ask two questions in determining whether a state law 

conflicts with federal law: (1) is it possible to comply with 

both laws, and, (2) does the state law stand as an obstacle to 

the intent of Congress? Guerra, 479 U.S. at 281, 107 S. Ct. at 

689. 

 Before examining these two questions, it is important 

to note that federal preemption of state law is not favored. 

This is particularly true in areas of law traditionally dominated 

by the individual states. See English v. General Electric 

Company, 496 U.S. 72, 79, 110 S. Ct. 2270, 2275 (1990) ("`[w]here 

. . . the field which Congress is said to have pre-empted' 

includes areas that have `been traditionally occupied by the 

States,' congressional intent to supersede state laws must be 

`"clear and manifest."'" (citing Jones v. Roth Packing Co., 430 

U.S. 519, 525, 97 S. Ct. 1305, 1309 (1977), quoting Rice v. Santa 

Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 1152 

(1947)). In an area that has been traditionally occupied by the 

states, the court must assume that the prerogatives of the states 

was not to be superseded by a federal law unless it is the clear 

and manifest purpose of Congress. See Hillsborough County v. 
Automated Medical Laboratories, Inc., 471 U.S. 707, 715-16, 105 

S. Ct. 2371, 2376 (1985); Rice v. Santa Fe Elevator Corp., 331 

U.S. 218, 230, 67 S. Ct. 1146, 1152 (1947). Indeed, for 

preemption to occur in a field traditionally occupied by the 

states, there must be a "sharp" conflict between state law and 

federal policy. See Boyle v. United Technologies Corp., 487 U.S. 

500, 507, 108 S. Ct. 2510, 2516 (1988). Since probate matters 

traditionally have been nearly the exclusive concern of the 

states, there is a presumption against preemption of state law. 

 A. Is it possible to comply with both statutes?

 The district court correctly observed that in this 

case, it was possible for Witco to comply with both the federal 

and state statutes. The provision in the Delaware nonclaim 

statute, Title 12, § 2102, fixing an eight-month period for 

filing a claim against an estate and the three-year period for 

making a claim for contribution under CERCLA, are not mutually 

exclusive. One can notify an estate of a contingent claim within 

eight months of a decedent's death, and also file a contribution 

action within three years of the date of a judgment for response 

costs. The Delaware nonclaim statute expressly provides for a 

mechanism that can be used to preserve contingent contribution 

claims under CERCLA. If a contingent claim is asserted but is 

rejected by an executor, the claimant may petition the Delaware 

Chancery Court for an extension of the time within which to file 

that claim. Del. Code Ann. tit. 12, § 2102(c) (1987). 
 Witco knew in 1988 that it faced potential CERCLA 

liability, and Witco believed that Dr. Beekhuis also was a 

potentially responsible party. When Dr. Beekhuis died on March 

21, 1989, Witco had eight months within which to notify the 

Executrix of Witco's contingent CERCLA contribution claim. If 

the Executrix rejected the claim or refused to consent to an 

extension of the time to file the claim, Witco could have 

petitioned the Court of Chancery to extend the time for pursuing 

the claim. Witco could have preserved its right to seek 

contribution at a later date and thus comply with both statutes. 

 We recognize that there will be instances where a PRP 

seeking contribution will find it impossible to comply with both 

a state nonclaim statute and the CERCLA statute of limitations. 

For instance, a PRP may not become aware of his or her own CERCLA 

liability until well after a state nonclaim statute has run. 

Nevertheless, for the reasons that we discuss below, we conclude 

that preemption is not appropriate. In the context of 

remediating the environment, we believe that the issue of whether 

a nonclaim statute stands as an obstacle to congressional intent 

is the more important inquiry. Thus, while under certain 

circumstances a nonclaim statute and the CERCLA statute of 

limitations can be at odds, we do not foresee a substantial 

impediment to the aims and objectives of CERCLA by our holding 

today. 

 B.Does the Delaware nonclaim statute stand as 

 an obstacle to congressional intent?
 

 The purpose and objective of CERCLA is to provide the 

federal government with broad powers to effectively respond to 

existing and future problems associated with the disposal or 

creation of hazardous wastes, and to ensure "that those 

responsible for problems caused by the disposal of chemical 

poisons bear the cost and responsibility for remedying the 

harmful conditions they created." United States v. Reilly Tar & 

Chemical Corp., 546 F.Supp. 1100, 1112 (D. Minn. 1982). 

 Three district courts have held that in the probate 

context, state nonclaim statutes stand as an obstacle to 

Congress' intent in enacting CERCLA. In Freudenberg-NOK General 

Partnership v. Thomopoulos, 1991 WL 325290, 1991 U.S. Dist. LEXIS 

19421 (D.N.H. Dec. 9, 1991), the court without significant 

discussion found CERCLA and the nonclaim statute in conflict. 

Id. 1991 WL 325290 at *2, at *4. After examining the legislative 

history of CERCLA, the Thomopoulos court noted that Congress 

intended CERCLA to be given a broad and liberal interpretation. 

Thus, the court held that there was "little doubt as to Congress' 

intent to preempt conflicting state statutes in responding to the 

kinds of environmental hazards posed by" the site in question. 

Id. 1991 WL 325290 at *4. The courts in Soo Line R.R. Co. v. 

B.J. Carney & Co., 797 F.Supp. 1472 (D. Minn. 1992) and Steego 

Corp. v. Ravenal, 830 F.Supp. 42 (D. Mass. 1993) relied primarily 

on the Thomopoulos decision in their holdings that CERCLA 

preempted the respective state nonclaim statutes. 
 We decline to adopt the holdings of Thomopoulos, Soo 

Line, and Steego, but rather, we will affirm the holding of the 

district court in this matter that Congress could not have 

implicitly intended to preempt the Delaware nonclaim statute. 

First, and most significantly, a state's interest in the prompt 

settlement of its citizens' estates is particularly strong. 

Probate law, like real estate law and domestic relations law, has 

traditionally been within the province of the individual states. 

Long-standing precedent recognizes that federal claims against 

decedents' estates are subject to state probate laws and 

procedures, unless federal law specifically provides otherwise. 

See, e.g., Pufahl v. Estate of Parks, 299 U.S. 217, 225, 57 S. 

Ct. 151, 156 (1936); Forrest v. Jack, 294 U.S. 158, 162-63, 55 S. 

Ct. 370, 372 (1935). 

 Nothing in the language of CERCLA suggests that 

Congress intended to preempt state law governing claims against 

decedents' estates. Section 9613(f) of CERCLA authorizes 

contribution actions against "any . . . person who is liable or 

potentially liable under Section 9607(a) . . . ." 42 U.S.C. § 

9613(f) (1988). Section 9607(a) in turn, delineates four classes 

of responsible parties upon whom liability is imposed: (1) the 

current owners or operators of a contaminated property, (2) 

owners or operators of the property at the time of hazardous 

waste disposal, (3) persons who arrange for disposal or treatment 

of hazardous substances at the property, and (4) persons who 

accepted hazardous substances for transport to the property. 42 

U.S.C. § 9607(a) (1988). CERCLA does not contain any provision 
that imposes liability directly upon the estates of those four 

classes of responsible parties. In light of the traditional 

reluctance of Congress to preempt state laws which are of 

significant importance to the states and traditionally within 

their province, we decline to read into the CERCLA statute the 

congressional intent to except CERCLA claims from state probate 

laws and procedures. 

 Second, by analogy, we can infer strong congressional 

intent not to modify state probate law. Congress expressly 

endorsed traditional rules of property descent by creating an 

exception to the CERCLA liability scheme called the "innocent 

landowner defense" under Section 9607(b)(3). Under traditional 

probate law, after a decedent's personal representative pays the 

decedent's debts and distributes any remaining property to 

beneficiaries, creditors who fail to file timely claims lose 

their right to collect from the estate, and property distributed 

is not subject to creditors' claims. Under the "innocent 

landowner defense," a person who inherits contaminated property 

thereby becoming an owner and a potentially responsible party 

under CERCLA, is entitled to assert the innocent landowner 

defense and escapes liability. Congress created this exception 

to CERCLA liability in order not to disturb state law controlling 

the descent and distribution of property. It would be illogical 

for us to conclude that Congress impliedly preempted state 

probate law to expand a CERCLA claimant's right to seek 

contribution against property of a deceased potentially 

responsible party, when Congress expressly narrowed CERCLA 
liability with regard to the contaminated facility itself (in 

order not to disturb the normal descent and distribution of real 

property under state probate law). 

 Third, we agree with the analysis of the district court 

that Congress did not intend to modify state law governing 

capacity of a party to be sued. Witco Corp., 822 F.Supp. at 

1089-90. Section 9613(f) provides: 

 (1) Contribution

 Any person may seek 

contribution from any other person 

who is liable or potentially liable 

under section 9607(a) of this 

title, during or following any 

civil action under section 9606 of 

this title or under section 9607(a) 

of this title. Such claims shall 

be brought in accordance with this 

section and the Federal Rules of 

Civil Procedure, and shall be 

governed by Federal law. 

42 U.S.C. § 9613(f) (1988) (emphasis added). 

 Congress clearly mandated that courts follow the 

Federal Rules of Civil Procedure when adjudicating CERCLA claims. 

Rule 17(b) of the Federal Rules of Civil Procedure provides in 

pertinent part: "The capacity of an individual, other than one 

acting in a representative capacity, to sue or be sued shall be 

determined by the law of the individual's domicile." Fed. R. 

Civ. P. 17(b). As a result, state capacity statutes, as opposed 

to liability statutes, are not preempted under CERCLA. See Levin 

Metals Corp. v. Parr-Richmond Terminal Co., 817 F.2d 1448, 1451 

(9th Cir. 1987) (state statutes involving capacity to be sued, 

such as statute governing the capacity of dissolved corporations 
to be sued, are not preempted by CERCLA); United States v. 

Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726, 746 

(8th Cir. 1986) (in a CERCLA action, "[t]he capacity of a 

corporation to sue or be sued is determined by the law under 

which it is organized"), cert. denied, 484 U.S. 848, 108 S. Ct. 

146 (1987); City of Philadelphia v. Stepan Chem. Co., 713 F.Supp. 

1491 (E.D. Pa. 1989) (city could not pursue CERCLA claim against 

distributees of assets of corporation dissolved in accordance 

with state law). Thus, following Rule 17(b), we must look to 

Delaware law to determine whether Witco, at this late date after 

the statute of limitations under state law has run, can assert 

its claim against the Executrix. 

 Title 12, § 2102 of the Delaware Code is not merely a 

general statute of limitations, but instead is characterized as a 

"nonclaim" statute. The purpose of the nonclaim statute is not 

the same as a general statute of limitations which merely seeks 

to avoid stale claims. Rather, "prompt distribution of the 

assets of the estate is the ultimate goal of the statute." 

Estate of Holton, No. 4682, 1976 WL 5206, at *2 (Del. Ch. Aug. 

17, 1976). The Delaware nonclaim statute terminates an estate's 

capacity to be sued eight months after the death of a decedent 

unless the claim or potential claim is submitted prior thereto. 

The Delaware nonclaim statute makes it impossible under state law 

for a tardy claimant to obtain jurisdiction over a closed estate. 

Accordingly, the executrix of the estate of Dr. Beekhuis is not 

amenable to suit for late claims, including those arising under 

CERCLA. 
 Last, we conclude that for pragmatic reasons, Congress 

could not have intended for CERCLA to preempt state nonclaim 

statutes. Preemption would be inherently unworkable. The 

district court aptly described the problem: 

 Consider the following example, which 

illustrates the pitfalls of adhering to the 

logic of Soo Line and Thomopoulos: A 

decedent dies today and his estate is settled 

within eight months; twenty years from now 

the decedent is deemed a potentially 

responsible party under CERCLA, thus 

triggering the three year CERCLA limitations 

period for contribution claims; a plaintiff 

obtains a judgment against the decedent's 

estate; in order to collect the judgment, 

the money in the estate must be traced and 

retrieved subject to the applicable defenses. 

The possibility of a CERCLA claim arising 

long after the settlement of the estate would 

hang as a dark cloud over any such 

settlement, thereby compromising the goals of 

certainty and promptness in the settlement 

and distribution of decedent's estates. 

 

Witco Corp., 822 F.Supp. at 1090. 

 We do not believe that Congress intended to unsettle 

estates and create the potential havoc which the district court 

described. It is merely fortuitous in this case that assets of 

the estate of Dr. Beekhuis are easily traceable and retrievable. 

We must consider the effect of our holding on future estates, 

which may not be as financially intact as that of Dr. Beekhuis. 

It is untenable that Congress intended to reach so deep into the 

domain of state probate administration and use the heavy hand of 

CERCLA to disturb and upset long-settled estates. The position 

urged by Witco would result in no statute of limitations being 

applicable to CERCLA claims against long-closed and settled 
decedents' estates -- except three years from the date of 

judgment or entry of a judicially approved settlement under 

CERCLA. Such a rule would create pandemonium in the descent and 

distribution of decedents' estates. We decline to imply such an 

intent on the part of Congress merely based upon a three year 

statute of limitations for contribution claims under CERCLA. 

IV. 

 The Estate requests that Witco indemnify it for all 

expenses, including attorney's fees, it actually and reasonably 

incurred in connection with (i) the defense of Witco's claims in 

this action, (ii) the defense in In re: Estate of H. Albert 

Beekhuis, No. 11,853, in the Delaware state court, and (iii) the 

response to the investigative and administrative activities of 

the EPA with respect to the site. The district court correctly 

recognized the strong and clear mandate of the Delaware General 

Corporation Law ("DGCL") in its order requiring Witco to 

indemnify the Executrix for all of the expenses requested. 

 Witco is the surviving corporation in a series of 

mergers that began when Halby was merged into a Witco subsidiary 

in 1972. The present suit is in effect a suit by a Delaware 

corporation against one of its former officers and directors. 

Witco has assumed all the liabilities of Halby through this 

succession of mergers. Del. Code Ann. tit. 8, § 259(a) (1991). 

Thus, for purposes of indemnification, the rights of the Estate 
must be measured as though Dr. Beekhuis had been an officer and 

director of Witco.1

 Section 145(c) of DGCL requires a corporation to 

indemnify any director, officer, employee or agent of the 

corporation "[t]o the extent that" he was successful "on the 

merits or otherwise," in defense of any threatened, pending, or 

completed action, suit or proceeding in which he was a party by 

reason of the fact that he is or was a director, officer, 

employee or agent of the corporation. Del. Code Ann. tit. 8, § 

145(c) (1991).2 Section 145(c) is a mandatory provision that 

 

 1 Section 145(h) of the DGCL provides in pertinent part: 

 For purposes of this section, references to "the 

corporation" shall include, in addition to 

the resulting corporation, any constituent 

corporation (including any constituent of a 

constituent) absorbed in a consolidation or 

merger which, if its separate existence had 

continued, would have had power and authority 

to indemnify its directors, officers, and 

employees or agents, so that any person who 

is or was a director, officer, employee or 

agent of such constituent corporation . . . 

shall stand in the same position under this 

section to the resulting or surviving 

corporation as he would have with respect to 

such constituent corporation if its separate 

existence had continued. 

Del. Code Ann. tit. 8, § 145(h)(1991). 

 

2 Section 145(c) provides: 

 

 To the extent that a director, officer, employee 

or agent of a corporation has been successful 

on the merits or otherwise in defense of any 

action, suit or proceeding referred to in 

subsections (a) and (b) of this section, or 

in defense of any claim, issue or matter 

therein, he shall be indemnified against 
applies to all Delaware corporations and grants an absolute right 

of indemnification in such situations. See Green v. Westcap 

Corp. of Delaware, 492 A.2d 260, 265 (Del. Super. 1985). 

 The indemnification rights provided by Section 145 

"continue as to a person who has ceased to be a director, 

officer, employee, or agent and . . . inure to the benefit of the 

heirs, executors and administrators of such a person." Del. Code 

Ann. tit. 8, § 145(j) (1991). 

 The long-standing policy for the indemnification 

provisions in the DGCL has been described as follows: 

 The invariant policy of Delaware legislation 

on indemnification is to "promote the 

desirable end that corporate officials will 

resist what they consider" unjustified suits 

and claims, "secure in the knowledge that 

their reasonable expenses will be borne by 

the corporation they have served if they are 

vindicated." Beyond that, its larger purpose 

is "to encourage capable men to serve as 

corporate directors, secure in the knowledge 

that expenses incurred by them in upholding 

their honesty and integrity as directors will 

be borne by the corporation they serve." 

Merritt-Chapman & Scott Corp. v. Wolfson, 321 A.2d 138, 141 (Del. 

Super. 1974) ("Merritt-Chapman") (quoting Folk, The Delaware 

General Corporation Law, 98 (1972)) (citations omitted). Courts 

 

expenses (including attorneys' fees) actually 

or reasonably incurred by him in connection 

therewith. 

Del. Code Ann. tit. 8, § 145(c)(1991). Subsections (a) and (b) 

refer to threatened, pending or completed actions, suits and 

proceedings where a person is a party "by reason of the fact that 

he is or was a director, officer, employee or agent of the 

corporation . . . ." Del. Code Ann. tit. 8, § 145(a),(b)(1991). 
have interpreted these indemnification rights very broadly. 

E.g., Heffernan v. Pacific Dunlop GNB Corp., 965 F.2d 369, 375 

(7th Cir. 1992) ("Both the language and the purpose of Delaware's 

indemnification statute support interpreting its scope 

expansively.") 

 Witco argues that the district court erred in granting 

summary judgment on the Estate's indemnity counterclaim because 

there are material facts in dispute concerning the alleged basis 

for Dr. Beekhuis' liability. Witco contends that Dr. Beekhuis 

incurred CERCLA liability by his own personal conduct, and was 

not insulated from that liability by having set up a corporate 

entity and designating himself an officer and director. The 

theory of Witco's complaint is that Dr. Beekhuis is liable for 

his personal acts and thus, his particular title or role within 

any corporation is irrelevant to his CERCLA liability. 

 We are satisfied that under federal law, Dr. Beekhuis, 

as a director and officer, may be found personally liable as an 

"operator" within the meaning of CERCLA. See Sidney S. Arst Co. 

v. Pipefitters Welfare Educational Fund, No. 93-1227, 1994 WL 

198003 at *2 (7th Cir., May 20, 1994) (corporate officers and 

directors may be held personally liable as "operators" within the 

meaning of CERCLA and that this direct, personal liability is 

distinct from derivative liability for corporate violations); 

Riverside Mkt. Dev. Corp. v. International Bldg. Prods., Inc., 

931 F.2d 327, 330 (5th Cir. 1991) ("CERCLA prevents individuals 

from hiding behind the corporate shield when, as `operators,' 

they themselves actually participate in the wrongful conduct 
prohibited by the Act."); United States v. Kayser-Roth Corp., 910 

F.2d 24, 26-27 (1st Cir. 1990) (noting cases in which parent 

corporations and shareholders were held liable as "operators" 

under CERCLA); United States v. Northeastern Pharmaceutical & 

Chemical Co., 810 F.2d at 743-44 (Congress intended CERCLA 

liability to attach to corporate officers). Witco alleges that 

Dr. Beekhuis personally designed many of the chemical 

manufacturing and disposal processes used at the site and 

directed construction and maintenance of a lagoon and drainage 

ditch at the site into which chemical waste was regularly 

disposed. We acknowledge that these allegations may form the 

basis of Dr. Beekhuis' personal "operator" liability under 

CERCLA. 

 Nonetheless, the Delaware courts and legislature under 

state law have chosen to provide broad statutory indemnification 

protection in situations where a corporate officer or director 

successfully defends against claims of personal liability that 

arise from or have a nexus to his corporate position. In 

Merritt-Chapman, the claimant sought indemnification from 

Merritt-Chapman for expenses incurred in successfully defending 

against criminal charges of perjury and conspiracy to violate 

federal securities law. Merritt-Chapman, 321 A.2d at 140. These 

charges arose as a result of the claimant's position as a 

director and officer of Merritt-Chapman. However, the criminal 

charges were not derivative; they were based on the plaintiff's 

alleged personal participation in the conspiracy and on his 

subsequent alleged perjured testimony. The court nevertheless 
found that the plaintiff was entitled to indemnification pursuant 

to Section 145(c) to the extent that he had been successful in 

defending against the criminal charges in question. Id. at 141-

44. 

 Similarly, in Green, the plaintiff sought 

indemnification pursuant to Section 145(c) for the expenses that 

he incurred in successfully defending against criminal charges 

that arose as a result of his position as vice president of the 

corporation. Green, 492 A.2d at 262. The criminal charges 

focused on the plaintiff's personal actions and involvement in 

obtaining a loan for the corporation which the corporation used 

to finance a buy-out. Id. Yet, the court did not find that the 

plaintiff was precluded from indemnification because the charges 

were based on his alleged personal as opposed to derivative 

liability. See also Heffernan v. Pacific Dunlop GNB Corp., 965 

F.2d 369, 372 (7th Cir. 1992) (Delaware law did not preclude 

indemnification of former corporate director for legal expenses 

incurred in suit alleging failure to disclose environmental 

liabilities in stock purchase agreement since director may have 

been sued in official capacity as well as individually in 

connection with sale of stock); cf. United States v. Lowe, No. 

93-2634, 1994 WL 424243 at *4, (5th Cir., Aug. 15, 1994) 

("[plaintiff's] CERCLA personal liability does not, without more, 

void the indemnity clause [of the corporation's bylaws] . . . . 

Indeed, if [the] officers or directors were not subject to 

personal liability for acts or omissions arising out of their 
corporate positions, there would be little reason for the 

indemnity clause."). 

 In the instant case, there can be no doubt that there 

is a close nexus between the lawsuits filed by Witco and Dr. 

Beekhuis' former status as an officer and director of Halby. A 

remand is not necessary since it is evident that Witco's claims 

against Dr. Beekhuis arise by virtue of Dr. Beekhuis' activities 

as a director and officer of Halby. Witco made no allegations of 

self-dealing, criminal acts, or actions undertaken by Dr. 

Beekhuis which were not performed directly on behalf of Halby. 

Moreover, Witco has not alleged that Dr. Beekhuis neglected 

corporate formalities such that we should "pierce the corporate 

veil" and disregard the corporate entity. We are satisfied that 

indemnification is available in this matter as a matter of law 

under Section 145 when the corporate agent has successfully 

defended the action against him. The order of the district court 

granting summary judgment to the Estate on its claim seeking 

indemnification will be affirmed. 

 V. CONCLUSION

 For the foregoing reasons, the order dated May 20, 

1993, granting the motions of the Executrix and WTC for summary 

judgment on the CERCLA contribution claims, and the order dated 

November 24, 1993, granting the motion of the Executrix on the 

counterclaim against Witco for indemnification (both of which 
were made a final judgment by order entered November 29, 1993) 

will be affirmed.