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Edward Hines Lumber Co. v. Vulcan Materials Co.

Citation: 19 ELR 20187
No. No. 88-1403, 861 F.2d 155/28 ERC 1457/(7th Cir., 11/07/1988) Aff'd

In a contribution action under § 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the court holds that a supplier of wood preserving chemicals is not an owner or operator under CERCLA § 107(a)(2). Although the supplier designed and built the plant, furnished the toxic chemical, trained the plaintiff's employees to operate the plant's machinery, and reserved a right to inspect ongoing operations, plaintiff had day-to-day control of the plant. Even if the supplier was negligent in its conduct in all of these activities, CERCLA imposes liability on contractors only for contractual matters. The court rejects comparisons between the supplier in this case and the common lawdefinitions of independent contractors and joint venturers. Although the supplier reserved a right to inspect the plant, the contract specified that the supplier was not a partner or joint venturer. The supplier had no control over plant operations, employees, or finances and maintained at most a right to deny plaintiff the use of its trademark.

[The district court's decision is published at 18 ELR 21223.]

Counsel for Plaintiff-Appellant
Robin Lunn
Keck, Mahin & Cate
8300 Sears Tower, Chicago IL 60606
(312) 876-3598

Counsel for Defendants
James M. Hofert
French, Rogers, Kezilis & Kominiarek
33 N. Dearborn St., Chicago IL 60602
(312) 782-0634

Counsel for Defendant-Appellee
Steven M. Mahoney
Hienecke, Burke, Healy & Bodach
135 S. LaSalle St., Chicago IL 60603
(312) 236-6655

Before CUDAHY, POSNER, and EASTERBROOK, Circuit Judges.