ELR Citation: ELR 20480
No(s). 91 C 5835 (N.D. Ill. Oct 8, 1992)

In a government cost recovery action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) involving the disposal of fly ash from coal production, the court holds that passive migration of pollutants from barrels at a hazardous waste site does not trigger CERCLA liability, the sellers and haulers of fly ash are not liable, a bank-trustee is not liable as an "owner" under CERCLA, and a county preserve is entitled to attorney fees. On cross-motions for summary judgment, the court holds that the government failed to demonstrate that the defendant is a responsible party under CERCLA §107(a). The government cannot prevail on its active disposal, business successor, or passive disposal theories. The court reasons that the relationship between CERCLA's terms "release" and "disposal" demonstrates that "disposal" does not contemplate passive migration. While a "release" includes passive migration, and "release" includes a "disposal," a "disposal" does not include a "release," and to give "disposal" a passive meaning controverts the plain language of CERCLA. The court holds that corporations that sold fly ash only for the manufacturing of road base are not liable for the buyer's disposal of fly ash. The seller must have arranged for the disposal of fly ash on this particular site to be a responsible person under CERCLA, but the seller did not do so. CERCLA's authors did not intend to impose seller liability for the later misuse by the buyer of a useful product using hazardous ingredients in the manufacturing process. The court holds that an issue of fact exists as to whether a third-party defendant actively participated in cleaning up fly ash at the site. The court holds that a trucking company that hauled the fly ash to the site is not liable for CERCLA's response costs absent evidence that the company selected the site as the location for delivery. The court holds that an issue of fact exists as to whether the county forest preserve may raise CERCLA's innocent landowner defense, because one third-party defendant alleges that the evidence shows that an agent of the forest preserve reported that pesticide drums were disposed of on site after the forest preserve acquired the property through condemnation judgment. The court holds that a bank-trustee is not liable as an "owner" under CERCLA, because being the trustee was the bank's only connection to the site. In an amendment on a motion for reconsideration, the court holds that the forest preserve has met CERCLA's innocent landowner defense. It has demonstrated by a preponderance of the evidence that the releases were caused solely by third parties and occurred before it acquired the property. Finally, the court holds that the forest preserve is entitled to payment of its attorneys fees by one third-party defendant, because that defendant's allegation that an agent of the forest preserve reported that pesticide drums were disposed of on site after the forest preserve acquired the property was not based in fact.

Counsel for Plaintiff
Jonathan C. Haile, Ass't U.S. Attorney
U.S. Attorney's Office
219 S. Dearborn Ave., 12th Fl., Chicago IL 60604
(312) 353-5437

Counsel for Defendant
Raymond T. Murphy, Steven M. Taber
Ross & Hardies
150 N. Michigan Ave., Ste. 2500, Chicago IL 60601
(312) 558-1000