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United States v. Outboard Marine Corp.

Citation: 12 ELR 21153
No. No. 78 C 1004, 556 F. Supp. 54/18 ERC 1087/(N.D. Ill., 10/08/1982) Ruling on CERCLA liability

The court rules that § 106(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is not merely a jurisdictional provision, but creates substantive liability for the release of hazardous waste that creates an imminent and substantial endangerment to the public health or the environment. The court notes that § 106 does not appear to create substantive liability since it authorizes abatement actions, but does not indicate who may be liable. However, in light of the Supreme Court's decision in Milwaukee v. Illinois, 11 ELR 20406, application of the substantive standards of federal common law nuisance are apparently precluded. Therefore the court concludes that if § 106 is to be given effect it must create substantive liability. Furthermore, § 107, the main liability-creating provision of CERCLA, indicates that defendants are within the class to be held responsible under CERCLA. Those liable under § 107 were most likely intended by Congress to be liable under § 106(a). The court also rules that plaintiff alleged sufficient claims that defendants created an imminent and substantial endangerment to withstand defendants' motion to dismiss. Finally, the court rules that publication of a revised National Contingency Plan and imminent hazard authority guidelines are not a prerequisite to action under CERCLA.

Counsel for Plaintiff
Elizabeth Stein
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4241

Counsel for Defendants
Richard J. Kessel
Martin, Craig, Chester & Sonnenschein
115 LaSalle St., Chicago IL 60603
(312) 368-9700

Bruce Featherstone
Kirkland & Ellis
200 E. Randolph St., Chicago IL 60601
(312) 861-3260

Barbara Chasnoff, Ass't Attorney General
188 W. Randolph St., Chicago IL 60601
(312) 793-5064