32 ELR 20639 -- United States v. Nalco Chemical Co.

United States v. Nalco Chemical Co.

No. 91 C 4482 (UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS April 10, 2002)

ELR Digest

The court holds that the owner of an Illinois Superfund site can bring a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 107 action against numerous third-party companies that allegedly contributed to the contamination at the site. The U.S. Environmental Protection Agency sued the owner seeking to recover response costs at the site, which consists of two parcels of land. The owner subsequently initiated a CERCLA § 107 action against the companies, and the companies argued that the owner could not bring a § 107 action because it was not an innocent landowner. The court first holds that the owner met all of the requirements to bring a § 107 action. Evidence indicated that waste was disposed of at at least one property, and such waste commingled with waste from the other property, thereby contaminating both parcels of the site. Therefore, a release occurred at the site. Further, the companies all qualified as generators of hazardous substances and, thus, are covered persons under § 107(a). Evidence indicates that waste of the kind generated by the companies is present at the site and that the companies generated waste that was disposed of or transported to the site. Likewise, the response costs incurred by the owner at the site are consistent with the national contingency plan. Moreover, evidence indicated that the owner did not contribute to the pollution at the site. The companies alleged that the owner's delay in initiating cleanup contributed to the contamination, but the companies provided no evidence that the delay in removing hazardous substances from the site led to a release, and a cost recovery action is allowable even after delay in initiating cleanup. The court also holds that the evidence did not indicate that the owner engaged in faulty cleanup efforts that contributed to the contamination. The court next holds that the statute of limitations also does not bar the owner's § 107 claim. The three-year statute of limitations for a removal action runs from the completion of the removal activity. The last removal activity at the site occurred in 1999, but the owner initiated the § 107 action in 1992, well before the statute of limitations began to run. Finally, the court holds that whether or not the owner was an innocent purchaser of one of the site's parcels under CERCLA § 101(35)(B) is irrelevant to financial recovery under § 107.

The full text of this decision is available from ELR (23 pp., ELR Order No. L-500).

[Counsel not available at this printing.]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]