ELR Citation: ELR 21568
No(s). s. 97-2884, -3773 (7th Cir. Jul 30, 1998)

The court holds that the prior owner of contaminated property must reimburse the current owner for future, but not past, Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cleanup costs. The court first holds that the sales contract for the property did not extinguish the current owner's statutory rights against the prior owner. Thus, the current owner could seek contribution from the prior owner. The court next holds that the lower court reasonably allocated 100 percent of future cleanup costs to the prior owner even though the current owner also dumped toxic wastes at the site. The court, however, holds that the prior owner was not liable for past cleanup costs. The current owner failed to submit for public comment its proposed cleanup method, and, thus, failed to show that the costs of cleanup were incurred in compliance with the national contingency plan.

The court then holds that the lower court improperly circumvented CERCLA's limitations on contribution by allowing the current owner to obtain contribution for past costs under the Illinois Contribution Act. Although CERCLA's savings clause preserves to victims of toxic torts other federal and state-law remedies, the current owner is not a victim of the contamination; it is merely the less culpable of two tortfeasors. The court also holds that the current owner is entitled to injunctive relief against the prior owner under the Resource Conservation and Recovery Act, but remands the injunction for redrafting because it is ambiguous. Last, the court holds that the district court's explanation for exercising its discretion in favor of an award of attorney fees to the current owner for obtaining the injunction was inadequate.

Counsel for Plaintiff
Timothy J. Rooney
Winston & Strawn
35 W. Wacker Dr., Chicago IL 60601
(312) 558-5600/5800

Counsel for Defendant
J. Timothy Eaton
Ungaretti & Harris
3500 Three First National Plaza, Chicago IL 60602
(312) 977-4400

Before Harlington Wood Jr. and Diane P. Wood, JJ.