ELR Citation: ELR 21386
No(s). 92 C 7142 (N.D. Ill. Mar 27, 1995)

The court holds that past owners of a site contaminated with coal tar are liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for 90 percent of the future response costs of cleaning up the site, whereas the current owner is responsible for 10 percent of the future response costs. The court first notes that the past owners do not contest that they and their corporate predecessors are responsible for the generation and initial disposal of coal tar at the site. The court finds no basis for holding that the current owner disposed of hazardous substances at the site, because the past owners presented no evidence that the current owner's excavation and stockpiling of contaminated soil exacerbated the preexisting site contamination. In fact, the current owner's temporary storage of contaminated soil in a confined pile appears to create less potential for migration and leaching of contaminants into the soil and groundwater than leaving the contaminated soil in the ground. Also, the record indicates that the area in which the contaminated soil is stockpiled was already contaminated with coal tar before the excavation and stockpiling. The court, however, holds that the current owner should bear some responsibility for response costs. Even though CERCLA was enacted after one of the companies controlling the current owner acquired the site, in the absence of CERCLA the current owner bore the entire risk of environmental contamination under the doctrine of caveat emptor. Furthermore, the current owner will reap the benefits of the cleanup. But, the court holds the past owners and their corporate predecessors responsible for most of the response costs, because they are wholly responsible for introducing the contaminants to the site.

Counsel for Plaintiff
Lawrence A. Salibra II
Alcan Aluminum Corp.
P.O. Box 6977, Cleveland OH 44101
(216) 523-6800

Counsel for Defendants
Susan M. Franzetti
Gardner, Carton & Douglas
Quaker Tower
321 N. Clark St., Ste. 3400, Chicago IL 60610
(312) 644-3000