Continental Title Co. v. Peoples Gas Light & Coke Co.

No. 96 c 3257 (N.D. Ill. September 20, 1999)

ELR Digest

The court adopts the report and recommendation of a magistrate judge that absolved a current property owner's liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) but imposed liability for CERCLA response costs on a former site owner. The court first holds that the current owner successfully asserted a third-party defense by establishing that it was not in contractual privity with the former contaminating owner. The current owner acquired the site through a tax deed that, rather than directly transferring title from the delinquent taxpayer to the tax purchaser, divested the delinquent party of title and vested title in the new purchaser. Therefore, the delinquent party's interest in the site was terminated and it had no property interest to convey to the current owner. The court next holds that the current owner established a prima facie case of liability against the former owner. Although the court rejected the magistrate's finding that a prima facie showing of CERCLA liability does not require consistency with the national contingency plan (NCP), a prima facie claim of liability was established because the current owner's investigation, assessment, and monitoring costs are recoverable irrespective of compliance with the requirements of the NCP. Finally, the court holds that the current owner's restitution claim against the former owner must be dismissed. The current owner's restitution claim is duplicative of its CERCLA private cost recovery cause of action. Additionally, there is no independent basis under CERCLA for the current owner's restitution claim because both the CERCLA private cost recovery claim and the restitution claim seek reparation for the same injury.

The full text of this opinion is available from ELR (10 pp., ELR Order No. L-126).

Counsel for Plaintiff
Sheldon A. Zabel
Schiff, Hardin & Waite
6600 Sears Tower, Chicago IL 60606
(312) 258-5500

Counsel for Defendant
James A. Schink
Kirkland & Ellis
200 E. Randolph Dr., Chicago IL 60601
(312) 861-2000

[30 ELR 20192]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]