ELR Citation: ELR 20084
No(s). 03 C 0754 (N.D. Ill. Apr 12, 2005)

A district court dismissed a water district's nuisance and Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cost recovery claims against a chemical company for contamination on its land, but denied the company's motion to dismiss the water district's contribution and Resource Conservation and Recovery Act (RCRA) claims against it. In Cooper Industries, Inc. v. Aviall Services, Inc., 125 S. Ct. 577, 34 ELR 20154 (2004), the U.S. Supreme Court held that relief under CERCLA §113(f)(1) is limited to those who have already been the subject of a civil suit. Here, the water district voluntarily undertook cleanup efforts. In light of Aviall, therefore, the water district does not have a cause of action for cost recovery under §113(f)(1). However, it may seek contribution under §107(a). In addition, the water district may bring a citizen action against the company under RCRA because it qualifies as "any person" under the Act. But the court dismissed the water district's nuisance claim because the property at issue was leased by the district to the company. A nuisance claim should not be brought by a lessor against a lessee because there is no neighboring or contemporaneous use of the property.