ELR Citation: ELR 20480
No(s). s. 89 C 6869, -3536 (N.D. Ill. Oct 4, 1993)

The court holds that contractors hired to clean up hazardous waste containing polychlorinated biphenyls (PCBs) can be held liable as operators under §107(a)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first dismisses the facility owner's common-law claims based on strict liability, holding that the cleanup of PCBs from the industrial site is not an abnormally dangerous activity that warrants the application of strict liability. There is no reason to think risks of harm could not be eliminated by the use of reasonable care by the cleanup contractors. Moreover, cleanup contractors serve the important social function of reducing dangers from PCBs. Next, the court holds that contractors can be held liable as operators under CERCLA. The contractors controlled the activities that led to the additional contamination of the site. That the contractors were hired to handle and manage the hazardous waste materials places them in control. The court also holds that "disposal," under CERCLA, is not limited to the initial introduction of contaminants into the site, such that the contractors' activities could have resulted in disposal. Holding the contractors liable under CERCLA is consistent with the Act's intended policy of taxing those who profit or benefit from their disposal of hazardous wastes. The court holds that the facility owner stated a breach of contract claim against the contractors, despite the contractors' contention that the claim was based on supervisory and review services that they did not perform. Finally, the court reserves for later review the issue of attorney fees under CERCLA. Given the conflicting state of the law regarding this issue, the court will await further development of the record and a more thorough briefing before deciding it.

Counsel for Plaintiff
Robin Lee Roberts
Mayer, Brown & Platt
190 S. La Salle St., Chicago IL 60603
(312) 782-0600

Counsel for Defendants
Byron E. Starns, Susan M. Robiner
Leonard, Street & Deinard
150 S. 5th St., Ste. 2300, Minneapolis MN 55402
(612) 335-1500