ELR Citation: ELR 20332
No(s). C88-2037 (N.D. Ohio Jun 29, 1990)

The court holds that releases from liability in a sales contract are not effective under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107(e) or Ohio contract law to prevent a party liable under CERCLA from obtaining contribution from another liable party, and that the unclean hands defense is unavailable under CERCLA. Congress intended CERCLA §107(e)(1) to prevent parties from contractually relieving themselves of liability under the Act. Section 107(e) forbids giving effect to releases between tortfeasors in CERCLA contribution suits. Unlike CERCLA claims, the court holds that contract claims of unjust enrichment under Ohio law are barred by the release provision and the parol evidence rule. The court holds that because liability under CERCLA is joint and several and because all defenses are enumerated in the statute, the unclean hands defense is unavailable. The court holds that ownership of the facility, rather than ownership of the specific chemicals, is dispositive of CERCLA liability. The court holds that summary judgment is not available on the issue of whether an alleged owner or operator can avoid CERCLA liability by abandoning its assets. Although CERCLA liability cannot be avoided by this kind of abandonment, questions remain concerning the circumstances under which the contamination occurred. The court holds that procedural deficiencies in evidence advanced in opposition to a summary judgment motion do not prevent consideration of it.

Counsel for Plaintiff
John Watson
Gardner, Carton & Douglas
Quaker Tower, Ste. 3400, 321 N. Clark St., Chicago IL 60610-4795
(312) 644-3000

RonaldS. Okada
Baker & Hostetler
3200 Nat'l City Ctr., Cleveland OH 44114
(216) 621-0200

Counsel for Defendants
Robert W. McIntyre
McIntyre, Kahn & Kruse Co.
1301 E. 9th St., Cleveland OH 44114
(216) 579-4114