ELR Citation: ELR 20033
No(s). 78 C 1004 (N.D. Ill. Sep 30, 1982)

The court dismisses the federal government's claims against the Monsanto Corp. which alleged violations of Illinois products liability law and §13 of the Rivers and Harbors Act. Plaintiff contended that defendant, a seller of hydraulic fluids containing polychlorinated biphenyls (PCBs), violated state products liability law by failing to warn the Outboard Marine Corp. (OMC) of the dangers of the fluids and that, as a result of OMC's use and disposal of the fluids, plaintiff's sovereign interest in its navigable waterways was injured. The court first rules that the Supreme Court decisions in Illinois v. Milwaukee, 2 ELR 20201, and Milwaukee v. Illinois, 11 ELR 20406, dictate that a federal claim for water pollution must be decided under federal law. The court finds that plaintiff's allegations constitute a claim of water pollution in spite of its attempt to present a claim under state products liability law. In addition, the water pollution claim involves substantial federal interests. The court also rules that defendant's alleged actions do not constitute a violation of §13 of the Rivers and Harbors Act.It rejects plaintiff's contention that defendant, by selling PCB-bearing materials to a party it knew was discharging such materials into navigable waters, "caused" or "suffered" the discharges within the meaning of §13. In addition, the court notes the lack of case law holding suppliers liable under §13 and determines that it would be inappropriate to so extend the Act's reach in light of the preemptive effect of the much newer Federal Water Pollution Control Act spelled out in Milwaukee v. Illinois.

[Related decisions are reported at 12 ELR 21153 and 13 ELR 20035 — Ed.]

Counsel for Plaintiff
Elizabeth Stein
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4241

Counsel for Defendants
Richard J. Kessel
Martin, Craig, Chester & Sonnenschein
115 LaSalle St., Chicago IL 60603
(312) 368-9700

Bruce Featherstone
Kirkland & Ellis
200 E. Randolph St., Chicago IL 60601
(312) 861-3260

Barbara Chasnoff, Ass't Attorney General
188 W. Randolph St., Chicago IL 60601
(312) 793-5064