As discussed above, the more recent decisions interpreting IEPA have held that the statute, unlike CERCLA, does not provide for a private right for an innocent party to bring a cost recovery action. However, a party liable under IEPA can sue to recover costs on the basis of contribution. Section 22.2(g)(2) of the IEPA states:
Nothing in this Section, including the provisions of paragraph (g)(1) of this Section, shall bar a cause of action that an owner or operator or any other person subject to liability under this Section, or a guarantor, has or would have, by reason of subrogation or otherwise against any person.
415 ILCS 5/22.2(g)(2). Section 22.2(g)(2), therefore, authorizes a third-party claim by a defendant to recover response costs attributable to another party. However, such a third-party claim under the IEPA may only be brought under the same section of the statute pursuant to which the governmental plaintiff has filed suit. See Chrysler Realty Corp. v. Thomas Indus., Inc., 97 F. Supp. 2d at 881; People v. Brockman, 148 Ill. 2d 260, 267, 592 N.E.2d 1026, 1029 (1992). Section 22.2(g)(2) does not distinguish between a defendant's ability to bring a counterclaim against a plaintiff and a claim against a third-party defendant. 415 ILCS 5/22.2(g)(2). It would, therefore, appear that a defendant would be allowed to allege a counterclaim against a plaintiff and a third-party claim against another PRP who would also be liable under IEPA.
In addition to third-party claims under IEPA, a party sued under IEPA may bring a third-party action for contribution under the Illinois Contribution Act regardless of the statutory basis for the plaintiff's IEPA claim. See People v. Brockman, 148 Ill. 2d at 268-70, 592 N.E.2d at 1029-30. In order to allege a right of contribution under the Contribution Act, the third-party plaintiff and third-party defendant must (1) both be subject to liability in tort to the plaintiff, and (2) their liability must arise out of the same injury. 740 ILCS 100/2; People v. Brockman, 148 Ill. 2d at 268, 592 N.E.2d at 1029. Under Illinois law, a violation of IEPA creates the potential for liability in tort. See People v. Brockman, 148 Ill. 2d at 268, 592 N.E.2d at 1030. Furthermore, a third-party plaintiff and third-party defendant will be deemed, under the Contribution Act, to have produced the same injury when both parties contributed to the release of hazardous substances, even through the releases did not occur during the same time period. See People v. Brockman, 148 Ill. 2d at 269-70, 592 N.E.2d at 1030. An action for contribution under state law against parties who are not liable under CERCLA is not barred by CERCLA. See Edward Hines Lumber Co. v. Vulcan Materials Co., 685 F. Supp. 651, 658 (N.D. Ill. 1988); 42 U.S.C. § 9613(f)(1) ("Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 of this title or section 9607 of this title.")
V. Conclusion
The remedial goal of IEPA, similar to its parent, CERCLA, is "to restore, protect and enhance the quality of the environment, and to assure that adverse effects upon the environment are fully considered and borne by those who cause them." 415 ILCS 5/2(b). To that end, IEPA casts a wide-ranging net of liability and allows relatively few complete defenses to liability, such as acts of God, acts of war and harm caused by unrelated third-parties. However, the restrictions placed on these complete defenses are so stringent, that even the slightest harmful contribution by the defendant will render those defenses unavailable. However, parties who are truly innocent, in that they "neither caused or contributed to in any material respect a release of regulated substances," will escape liability under § 58.9 of the statute. Even a party liable under IEPA may seek to reduce the extent of its liability by filing a claim for contribution either under IEPA or the Illinois Contribution Act, depending on the specific statutory basis for the original action brought by the governmental plaintiff.
When examined as a whole, IEPA presents a statutory scheme well-suited to achieve its goals. The wide scope of liability under IEPA is largely due to its formulation on the structure of CERCLA. However, as in the case of many state statutes based on federal statutory schemes, IEPA takes into account the needs and desires of the local constituents and varies its approach to remediation accordingly. However, despite such allowances, IEPA remains a force to be reckoned with for those parties who fall within its grasp. Common sense, therefore, dictates that such parties know the extent of that grasp before engaging in transactions that would subject them to liability.
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