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Edward Hines Lumber Co. v. Vulcan Materials Co.

ELR Citation: 18 ELR 21223
Nos. No. 85 C 1142, 685 F. Supp. 651/27 ERC 1904/(N.D. Ill., 02/02/1988)

The court holds that chemical suppliers are not liable to the owner and operator of a wood treatment facility under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or Arkansas's contribution law for the costs of cleaning up a contaminated holding pond. The court holds that defendants cannot be responsible parties for contribution under CERCLA where no evidence supports that defendants were independently liable for the contamination at the Mena, Arkansas, site. The court holds that defendants are not responsible parties under CERCLA §107(a)(3), since case law and the legislative history demonstrate that only those who transact to dispose of or treat a hazardous substance may be liable. Since the chemicals were sold solely for use in a wood treatment manufacturing process and defendants had no control over how the substances would be disposed of after their use, defendants' activities could not constitute arrangement for disposal or treatment. In addition, the court holds that one defendant is not liable as an operator under §107(a)(2). That the defendant designed and constructed the chemical treatment system, trained the personnel who operated the facility, and had a right of access to the site fails to establish that the defendant had the requisite control over the disposal process to be an operator. The court holds that CERCLA does not bar plaintiff's state law contribution action. The court rules that CERCLA does not preempt a state law action available for contribution for cleanup costs against parties not liable for contribution under CERCLA. However, the court holds that defendants are not liable for contribution under the Uniform Contribution Among Tortfeasors Act as adopted by Arkansas because the United States does not have a cause of action against them.

Counsel for Plaintiff
Robin R. Lunn, Robert K. Neiman, Maureen Martin
Keck, Mahin & Cate
8300 Sears Tower, 233 S. Wacker Dr., Chicago IL 60606-6589
(312) 876-3400

Counsel for Defendant
Algimantas Kezelis, James M. Hofert
French, Rogers, Kezelis & Kominiarek
Suite 1800, 33 N. Dearborn St., Chicago IL 60602
(312) 782-0634