                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-1762
ST. CHARLES MANUFACTURING LIMITED
PARTNERSHIP and ST. CHARLES ACQUISITION
LIMITED PARTNERSHIP,
                                Plaintiffs-Appellants,
                         v.

WHIRLPOOL CORPORATION and
WHIRLPOOL KITCHENS, INC.,
                                            Defendants-Appellees.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
         No. 03 CV 1917—Harry D. Leinenweber, Judge.
                          ____________
 ARGUED DECEMBER 1, 2004—DECIDED FEBRUARY 11, 2005
                   ____________


  Before FLAUM, Chief Judge, and EVANS and SYKES,
Circuit Judges.
  EVANS, Circuit Judge. St. Charles Manufacturing Lim-
ited Partnership and St. Charles Acquisition Limited Part-
nership (we’ll refer to both as St. Charles) sued Whirlpool
Corporation and Whirlpool Kitchens, Inc. for breach of
two contracts which, in part, involve cleanup of environ-
mental contamination at a site in Illinois. In turn, Whirl-
pool sued St. Charles for damages under the second con-
tract. The district court granted summary judgment for
Whirlpool and St. Charles appeals. Our review of a decision
2                                                No. 04-1762

granting summary judgment is de novo. CAE, Inc. v. Clean
Air Eng’g, Inc., 267 F.3d 660 (7th Cir. 2001).
  Under the first contract between the parties, signed in
1989, Whirlpool sold St. Charles a 12-acre parcel of land
with buildings, underground storage tanks, and parking
lots. The property was used by Whirlpool to manufacture
kitchen cabinets. The manufacturing process involved the
use of hazardous materials which contaminated the site.
For that reason, the contract stated “[a]s soon as reasonably
practicable, Seller will undertake, in accordance
with applicable law and regulations, such remedial ac-
tion as is necessary to bring . . . [the property] into compli-
ance with applicable federal, state and local environmen-
tal laws and regulations . . . .” At some point, for financial
reasons, St. Charles needed to sell the property but al-
leged that it could not complete the sale because the site
was still contaminated. A dispute between the parties
over the cleanup was settled by an agreement signed in
March 2000. This agreement required Whirlpool to clean up
the property and to obtain a comprehensive “No Further
Remediation” letter (NFR) from the Illinois Environmental
Protection Agency (IEPA). In turn, St. Charles agreed to
release Whirlpool from all claims with respect to pre-
existing conditions at the facility. Whirlpool obtained the
NFR letter and St. Charles has now sold the property,
although at a discounted price, it says, because of the
nature of the NFR letter. The NFR letter is at the center of
the present dispute.
  St. Charles contends that the NFR letter is inadequate in
that it is “voidable” because the information that Whirlpool
provided to the IEPA, and on which the IEPA relied in
issuing the letter, was incomplete, inaccurate, and mislead-
ing. St. Charles says Whirlpool withheld certain informa-
tion and failed to provide data for the entire parcel. To
support the claim that the information was incomplete
and/or inaccurate, St. Charles submitted an affidavit from
No. 04-1762                                                    3

a person from the environmental engineering firm,
Terracon, Inc. The affidavit, St. Charles contends, was
undisputed. All of which prompts St. Charles to ask us to
find that Whirlpool breached the March 2000 agreement
because the NFR letter was, in fact, obtained through
misrepresentation or fraud and is therefore voidable, but St.
Charles does not, in fact, ask us to void the letter. It is a
curious argument.
   To see how curious, we need to look at the Illinois stat-
utes, which provide the basis for the NFR letter in the first
place. Chapter 415 ILCS 5/58.10(a) provides that the
issuance of an NFR letter “signifies a release from further
responsibilities under this Act in performing the ap-
proved remedial action and shall be considered prima
facie evidence that the site does not constitute a threat
to human health and the environment and does not re-
quire further remediation . . . , so long as the site is utilized
in accordance with the terms” of the NFR letter. Subsection
(e) of the statute then provides that an NFR letter “shall be
voidable if the site activities are not managed in full
compliance with the provisions” of the Act. It continues by
stating that “[s]pecific acts or omissions that may result in
voidance of the No Further Remediation Letter include, but
shall not be limited to” seven specific acts, including “(5)
Obtaining the No Further Remediation Letter by fraud or
misrepresentation[.]” The statute then sets out the proce-
dures which must be followed if the agency seeks to void a
NFR letter. These include notice by certified letter to the
titleholder of the site; the notice must specify the cause of
the voidance and describe the facts on which the agency is
relying. The statute also allows for appeal of the agency
action.
  From this statutory scheme, we see that no NFR letter is
absolute and “non-voidable.” Apparently, for reasons which
are not hard to imagine, the IEPA seems not to be in the
business of issuing eternal and absolute warranties.
4                                                No. 04-1762

Whirlpool could not, then, have obtained anything more
than it did—an NFR letter which is “prima facie evidence”
that the site “does not require further remediation,” but
which is voidable.
  The letter Whirlpool obtained is a 5-page, single-spaced
document which, among other things, says that “the
remedial action was completed in accordance with” the
remedial action plan. It refers to the entire site “consist-
ing of 12.0 acres.” It states that the letter “signifies a re-
lease from further responsibilities under the Act for the
performance of the approved remedial action.” The let-
ter is “prima facie evidence that the Remediation Site
described in the attached Illinois EPA Site Remediation
Program Environmental Notice . . . does not constitute a
threat to human health and the environment and does not
require further remediation under the Act if utilized in
accordance with the terms of this Letter.” Conditions for the
use of the land are also set out. And importantly for our
purposes, the letter also states clearly that pursuant to
Section 58.10(f), should the Illinois EPA seek to void
the letter, it must provide notice which specifies the cause
for the voidance. The letter sets out the statutory rea-
sons for which an NFR letter can be voided, including
that the letter was obtained by fraud or misrepresenta-
tion. We have no reason to conclude that this letter deviates
from other NFR letters. So, an NFR letter is, by definition,
voidable. That is a far cry, however, from its being voided or
inadequate to meet Whirlpool’s obligations under the March
2000 settlement agreement.
  Of course, as we see from both the statute and the letter
itself, if Whirlpool engaged in misrepresentation or fraud in
obtaining the letter, the letter could be voided by the IEPA.
What is hard to see is where we come into the picture. Even
were we to find that there was fraud and misrepresenta-
tion, we probably would not step on the agency’s toes and
void the letter, assuming we could find that we had author-
No. 04-1762                                                  5

ity to do so. That is the agency’s job and, perhaps for that
reason, St. Charles does not ask us to declare the letter
void. But St. Charles, nonetheless, wants us to find that
Whirlpool committed fraud or misrepresentation before the
agency as a prelude to finding that Whirlpool breached the
2000 agreement.
   We decline the invitation. As a general matter, the IEPA
is the agency with expertise in these matters. Officials
at the agency know far better than we do what sort of
documentation is appropriate to support an NFR letter. The
agency issues the letter and is the proper authority to void
it or to decide if Whirlpool engaged in fraud or misrepresen-
tation in the proceeding before it.
   But more importantly, in this case, the parties specifically
contracted to let the IEPA decide whether the cleanup was
adequate. Their contract provides that “[u]pon receipt of a
‘Comprehensive’ No Further Remediation letter from
Illinois EPA in accordance with the terms hereof, St.
Charles agrees to release Whirlpool from any and all claims
in respect of pre-existing conditions at the Facility, and
further agrees to indemnify Whirlpool with respect to any
third party claims related to the Facility that may arise in
the future.” The parties put themselves in the agency’s
hands and agreed that Whirlpool’s obligation would be
satisfied by obtaining an NFR letter from the IEPA. In
agreeing to this provision, St. Charles must have known
that Whirlpool would obtain the letter through proceedings
before the agency. In fact, St. Charles was copied on
documents Whirlpool presented to the agency. Yet it did not
attempt to alert the IEPA of any problems with Whirlpool’s
submissions. We must presume also that St. Charles knew,
or at least should have known, what the statute says about
the voidability of NFR letters. It is hard to see how we could
find that Whirlpool breached the contract because the letter
was voidable. The situation would, of course, be different
were the IEPA to void the letter based on fraud or misrepre-
6                                                No. 04-1762

sentation. But, so far as we know, it hasn’t. Accordingly, the
decision of the district court is AFFIRMED.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—2-11-05
