U.S. v. Nalco
COMPANY, et al., Defendant.

No. 91 C 4482


1995 U.S. Dist. LEXIS 3517

March 16, 1995, Decided
March 20, 1995, DOCKETED

COUNSEL: [*1] Dave Tripp, Esquire, Dykema Gossett, 400 Renaissance Center, Detroit, Michigan 48243, Counsel for General Motors, FAX: (313) 568-6701.

Donald L. Shriver, Esquire, Law Offices of Donald L. Shriver, 401 West State Street - Suite 701, Rockford, Illinois 61101, Counsel for Interstate Pollution Control, FAX: (815) 963-4904.

Thomas P. Healy, Jr., Esquire, John C. Berghoff, Jr., Esquire, Mark Ter Molen, Esquire, Mayer, Brown & Platt, 190 South LaSalle Street, Chicago, Illinois 60603, Counsel for Nalco Chemical Company, FAX: (312) 701-7711.

James D. Brusslan, Esquire, Hundley & Brusslan, 14 East Jackson Boulevard - Suite 1320, Chicago, Illinois 60604, Counsel for Commonwealth Edison Company, FAX: (312) 427-7236.

Andrew R. Running, Esquire, Lisa G. Esayian, Esquire, Kirkland & Ellis, 200 E. Randolph Drive, Chicago, Illinois 60601, Counsel for Keystone Consolidated Industries, FAX: (312) 861-2200.

Erica L. Dolgin, Esquire, Gabriel M. Rodriguez, Esquire, Christine D. Wright, Esquire, Schiff, Hardin & Waite, 7200 Sears Tower, Chicago, Illinois 60606-6473, Counsel for Amerock Corporation, FAX: (312) 258-5600.

Pierre C. Talbert, Esquire, Christopher W. Brownell, Foley [*2] & Lardner, One IBM Plaza, 330 North Wabash Avenue - Suite 3300, Chicago, Illinois 60611-3608, Counsel for Sundstrand Corporation, FAX: (312) 755-1925.

Jeffrey C. Fort, Esquire, Dale M. Cohen, Esquire, Susan G. Connelly, Esquire, Sonnenschein Nath & Rosenthal, 8000 Sears Tower, Chicago, Illinois 60606, Counsel for Atwood Industries, FAX: (312) 876-7934.

Elizabeth Mitchell, Esquire, Vincent S. Oleskiewicz, Esquire, Baker & McKenzie, 2800 Prudential Plaza - 130 E. Randolph Drive, Chicago, Illinois 60601, Counsel for Elco Industries and BASF Corporation, FAX: (312) 861-2899.

Donald Quirk Manning, Esquire, Clark, McGreevy & Johnson, P.C., 850 North Church Street, P.O. Box 1201, Rockford, Illinois 61105, Counsel for Barber-Coleman Company, FAX: (815) 963-1779.

Robert L. Shuftan, Esquire, Lori P. Davis, Esquire, Wildman, Harrold, Allen & Dixon, 225 West Wacker Drive - Suite 3000, Chicago, Illinois 60606, Counsel for Coltec Industries, FAX: (312) 201-2555.

Frederick S. Mueller, Daniel C. Murray, Johnson & Bell Ltd., 222 North LaSalle Street - Suite 2200, Chicago, Illinois 60601, Counsel for Ecolab Industries, FAX: (312) 372-9818.

Ole Bly Pace, III, Esquire, Richard [*3] A. Palmer, Esquire, Ward, Murray, Pace & Johnson, P.C., 202 East Fifth Street - P.O. Box 400, Sterling, Illinois 61081, Counsel for Frantz Manufacturing Company Lawrence Brothers, Inc., FAX: (815) 625-8363.

Peter John Sacripanti, Esquire, Dewey Ballantine, 1301 Avenue of the Americas, New York, New York 10019-6092, Counsel for Cincinnati Milacron Marketing System, ELF Atochem North America, Frederick Gumm Chemical Company, General Electric Company, Henkel Corporation, Turco Purex Industrial Corporation, FAX: (212) 259-6333.

Peter L. Tester, Esquire, Popham, Haik, Schnobrich & Kaufman, Ltd., 3300 Piper Jaffray Tower, 222 South 9th Street, Minneapolis, Minnesota 55402, Counsel for Glidden Company, FAX: (612) 334-8888.

Park Plating and Metal Finishing Company, Gloria Greener, Registered Agent, 12513 Venture Boulevard, Machesney, Illinois 61111, Representative of Park Plating and Metal Finishing Co.

Curtis D. Worden, Esquire, Thomas E. Greenwald, Esquire, John Rearden, Jr., Esquire, Karl F. Winkler, Esquire, Connolly, Oliver, Close & Worden, P.O. Box 4749, 124 North Water Street - Suite 300 Waterside Center, Rockford, Illinois 61110-4749, Counsel for Quality Metal Finishing [*4] Company, FAX: (815) 968-7507.

Thomas H. Milch, Esquire, Lester Sotsky, Esquire, Arnold & Porter, 1200 New Hampshire Avenue, N.W., Washington, D.C. 20036, Counsel for Quebecor Printing Mount Morris Inc., FAX: (202) 872-6700.

Susan K.B. Urbas, Esquire, Mary C. Bryant, Esquire, Brown & Bryant, P.C., 35 East Wacker Drive - Suite 1356, Chicago, Illinois 60601, Counsel for Raco, Inc., FAX: (312) 236-1451.

Louis M. Rundio, Jr., Esquire, McDermott, Will & Emery, P.C., 227 West Monroe Street - Suite 3100, Chicago, Illinois 60606, Counsel for Rockford Products Corporation, FAX: (312) 984-2098.

Mark Kreter, Esquire, Sullivan, Hamilton, Schultz, Allen & Letzring, 25 West Michigan Mall, Tenth Floor, Commerce Bldg., Battle Creek, Michigan 49017, Counsel for United States Steel and Wire, FAX: (616) 965-2919.

Steven J. Rotunno, Esquire, J. Patrick Sexton, Esquire, Sedgwick, Detert, Moran & Arnold, 209 South LaSalle Street - Seventh Floor, Chicago, Illinois 60604-1202, Counsel for United States Steel and Wire, FAX: (312) 641-9530.

Franklin S. Schwerin, Esquire, Paula K. Jacobi, Esquire, Schwartz, Cooper, Greenberger & Krauss, Chtd., 180 North LaSalle Street - Suite 2700, [*5] Chicago, Illinois 60601, Counsel for Valspar, FAX: (312) 782-8416.

Richard J. Kissel, Esquire, Roberta M. Saielli, Esquire, Gardner, Carton & Douglas, Quaker Tower, 321 North Clark Street, Chicago, Illinois 60610-4795, Counsel for Woodward Governor, FAX: (312) 644-3381.

Charles M. Chadd, Esquire, Jerome K. Bowman, Esquire, Ross & Hardies, 150 North Michigan Avenue - Suite 2500, Chicago, Illinois 60601-7567, Counsel for R B & W Corporation, FAX: (312) 750-8600.

Anne Marie Beckert, Esquire, John Van Vranken, Esquire, Ross & Hardies, P.C., 150 North Michigan Avenue - Suite 2500, Chicago, Illinois 60601, Counsel for Lawrence Brothers, FAX: (312) 750-8600.

Richard P. Fahey, Esquire, R. Stacy Lane, Esquire, Arter & Hadden, 10 West Broad Street, Columbus, Ohio 43215, Counsel for Pierce Chemical, FAX: (614) 221-0479.

Leo G. Stern, Esquire, Fredrickson & Byron, P.A., 1100 International Center, 900 South Second Avenue, Minneapolis, Minnesota 55402-3397, Counsel for The Valspar Corporation, FAX: (612) 347-7077.





REPORT AND RECOMMENDATION of Magistrate Judge Edward A. Bobrick

Before the court is DEFENDANT COMMONWEALTH EDISON'S MOTION FOR PARTIAL SUMMARY JUDGMENT, filed pursuant to Federal Rule of Civil Procedure 56(b), to dismiss all claims against it for the release or threat of release of hazardous substances from the parcel of land known as the Byron Salvage Yard facility.


In 1991, the United States brought a civil action pursuant to Sections 104 and 107 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. @ 9601, et seq. as amended by the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, 10 Stat. 1613 (1986) ("CERCLA"), against five companies, including Commonwealth Edison. The suit involves two parcels of land, namely the Byron Salvage Yard and Dirk's Farm, collectively identified as the "Byron Salvage Yard Site" in the complaint. (Compl. P 9). The United States is seeking past and future costs of responding to the release or threatened release of hazardous substances from this site under @ 107(a) [*7] of CERCLA, 42 U.S.C. @ 9607(a).

The Bryon Salvage Yard and Dirk's Farm are separate properties situated in Ogle County, Illinois across Razorville Road from each other. There had been no joint ownership or operation of the properties. Each property had been used as a disposal site for various hazardous wastes and were discovered to have been contaminated by those wastes. Commonwealth Edison purchased Dirk's Farm from its previous owner as a buffer for its nearby Byron Nuclear Power Plant. After purchase, Commonwealth Edison discovered that the property had been contaminated and undertook to dispose of the contaminants. Commonwealth Edison does not now, nor has it ever, owned or operated the Byron Salvage Yard. (Plaintiff's 12(N) Resp. PP 1-2). Additionally, Commonwealth Edison has never, by contract, agreement, or otherwise, arranged for the disposal, treatment, or transportation of hazardous substances at the Byron Salvage Yard facility. There does not seem to be any dispute in this case that Commonwealth Edison did not in any way cause any of the hazardous discharge at the Byron Salvage Yard, nor was it ever in a position to abate any of the environmental contamination and harm [*8] caused by same.

The United States has conceded that it is not seeking from Commonwealth Edison costs solely related to the Byron Salvage Yard portion of the site. (Plaintiff's Memorandum of Law in Opposition to Commonwealth Edison's Motion for Partial Summary Judgement, at 4). It is, however, seeking response costs for the entire site, including the Byron Salvage Yard. (Compl. PP 14, 17-18). The United States claims that the contaminants from the two parcels have commingled in the groundwater, all of which Commonwealth Edison denies. It alleges that Commonwealth Edison is therefore liable for response costs associated with the release or threatened release of hazardous waste from the entire site with respect to the commingled contamination. (Plaintiff's 12(N) Resp. at 5). In its motion, Commonwealth Edison seeks dismissal only of all claims against it for response costs generated by the release or threatened release of hazardous waste from the Byron Salvage Yard facility. We find after review of the parties' 12(M) statement and 12(N) response, and the arguments setforth in their briefs, that Commonwealth Edison is not liable for response costs solely related to disposal of hazardous [*9] waste at the Byron Salvage Yard. We note though, for clarity purposes, that our holding does not reach any issues dealing with response costs incurred as a result of commingling of wastes from the two separate properties.


A. Standard For Summary Judgment

Summary judgment is appropriate only if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Judgment may be rendered on the issue of liability despite the fact that a genuine issue as to the amount of damages remains. Fed. R. Civ. P. 56(c).

B. Commonwealth Edison's Liability Concerning the Byron Salvage Yard

Liability for the response costs is established under CERCLA @ 107(a). The plaintiff must establish the following factors:

(1) The site in question is a "facility" as defined by @ 101(9); (2) the defendant is a "responsible person" under @ 107(a) (3) a release or threatened release of a hazardous substance has occurred; and (4) the release or threatened release has caused the plaintiff to incur response costs.

Kerr-McGee [*10] Chem. Corp. v. Lefton Iron & Metal Co., 14 F.3d 321 (7th Cir. 1994); Environmental Transp. Sys., Inc. v. ENSCO, Inc., 969 F.2d 503 (7th Cir. 1992). Commonwealth Edison disputes both the existence of a "facility" as defined by the plaintiff, and that it is a "responsible person."

C. The "Facility"

The government has defined the "Byron Salvage Yard Site" as encompassing both the Salvage Yard itself and Dirk's Farm. (Compl. P 9). In its complaint, however, the government repeatedly refers to Dirk's Farm as a "facility" (Id. at PP 24, 27, 29-31, 37), as well as making up a "portion of the site." (Id. at PP 8, 10, 12, 17). Commonwealth Edison rightfully sees this as an admission that the two properties are distinct and separate facilities within the same site. The undisputed facts of the case show that the only real connection between these two properties is their geographic proximity. (Defendant's 12(M) Statement, pp. 1-4; Plaintiff's 12(N) Response, pp. 1-4). There appears to be no other reason for consolidating them into one site or characterizing them as a single facility. (Plaintiff's 12(N) Response, p. 10).

The definition of the term "facility" is elastic and [*11] should be broadly construed. The statute does not give a precise definition of the term. n1 It provides a loose definition open to interpretation by the courts. The gaps in a federal statute may be filled in by the development of federal common law. United States v. Little Lake Misere Land Co., 412 U.S. 580, 593, 37 L. Ed. 2d 187, 93 S. Ct. 2389 (1973). Separate ownership of property is not, in itself enough to establish separate facilities. A single, indivisible act of harm may contaminate a widespread area and cross many boundaries. In United States v. Bliss, 667 F. Supp. 1298 (E.D. Mo. 1987), the court held that over 220 miles of roadway sprayed with PCB-tainted oil was a "facility." The shoulders of the roads had been sprayed by a single party from a moving truck. Because the defendant had visited the same harm in the same manner over all of the areas in question, the fact that the facility was comprised of widely scattered areas was not relevant, See also, United States v. Stringfellow, 661 F. Supp. 1053, 1059 (C.D. Cal. 1987) (statute does not require facilities to be defined by or coextensive with property lines). The facility may also be more narrowly defined where [*12] circumstances so dictate. In Nurad, Inc. v. Hooper, 966 F.2d 837 (4th Cir. 1992), cert. denied, 113 S. Ct. 377 (U.S. 1992), the Fourth Circuit determined that more precise delineation of the "facility" was appropriate. In Nurad, a parcel of land was contaminated by leakage from underground storage tanks (USTs). The landowners brought an action for costs under 42 U.S.C. @ 9607 against the former owners and tenants. The court determined that the facility was limited to the USTs and did not extend to the entire property. Nurad, 966 F.2d at 842. The tanks were the undisputed source of the contamination of the property. This determination was necessary to ascertain whether the former tenants could be held liable for response costs. The terms of the tenants' leases gave them no control or use of the USTs. The court noted that "the statute places accountability in the hands of those capable of abating further environmental harm, while [the plaintiff's] proposed definition of "facility" would rope in parties who were powerless to act." Id. at 843. If the facility had not been precisely defined by the court, the tenants would have become liable as operators of the facility [*13] -- the property as a whole. See also, United States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726 (8th Cir. 1987) (where facility was defined as the farm where defendants deposited wastes, not the plant at which they were generated). CERCLA was enacted with the primary goal of making responsible parties pay for environmental damage. United States v. Petersen Sand & Gravel, Inc., 806 F. Supp. 1346 (N.D. Ill. 1992). Here, there was neither unity of ownership nor control between the two subject properties. They have unrelated histories. They came to the attention of environmental agencies at different times and in different manners. The United States has even characterized them each as "facilities" in their own right in its complaint. The consolidation of these two properties into a single site is only a consequence of their geographical proximity. Commonwealth Edison never possessed the power to control the Byron Salvage Yard. It is precisely the fact that the site, as defined in this litigation, was separately owned and controlled that allows us to divide the property into two distinct potential facilities. n2

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n1 "The term "facility" means (A) any building, structure, installation, equipment, pipe or pipeline. . . well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle . . . or (B) any site or area where hazardous substance has been deposited, stored, disposed of, or placed, or come to be located . . ." 42 U.S.C. @ 9601(9) (1988). [*14]

n2 This opinion does make any determination of whether either the Byron Salvage Yard or Dirk's Farm is a "facility." Commonwealth Edison disputes that Dirk's Farm is in fact, a facility as defined by the statute. A determination on that issue will require the presentation of further evidence.

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D. "Responsible Person"

In order for a party to be considered a "responsible person," it must have either been an owner or operator of a facility, or it must have transported or arranged for the transportation of hazardous waste to the facility. Kerr-McGee, 14 F.3d at 325. A fact-specific inquiry into the nature of the party's involvement may be conducted. Peterson Sand & Gravel, 806 F. Supp. at 1358; see also, CBS, INC. v. Henkin, 803 F. Supp. 1426 (N.D. Ind. 1992). Even an "owner" holding legal title but without any actual control over the property may not be held responsible for damages. Peterson Sand & Gravel, 806 F. Supp. at 1359. The United States concedes in its 12(N) response that Commonwealth Edison does not now, and did not at the time of the hazardous waste disposal, own [*15] or operate the Byron Salvage Yard, and that it did not transport waste to the Salvage Yard. (Plaintiff's 12(N) Resp. PP 1-4). Since the Byron Salvage Yard and Dirk's Farm are found to be facilities under CERCLA, the facts of this require that each must be considered separate and distinct facilities within the "Byron Salvage Yard Site" for the purpose of determining Commonwealth Edison's liability. This is so because Commonwealth Edison is not a responsible party with respect to the Byron Salvage Yard, and cannot be held liable under @ 107(a) for response costs solely attributable to disposal of hazardous waste at that property. Accordingly, Commonwealth Edison's motion for partial summary judgment should be granted.


For the foregoing reasons, it is respectfully recommended that defendant Commonwealth Edison's Motion for Partial Summary Judgment be granted, and all claims against Commonwealth Edison for response cost attributable solely to the release or threat of release of hazardous substances from the Byron Salvage Yard facility be dismissed.

Respectfully submitted,


United States Magistrate Judge

DATE: March 16, [*16] 1995

Any objections to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this notice. Failure to file objections within the specified time waives the right to appeal the District Court's order. Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); The Provident Bank v. Manor Steel Corp., 882 F.2d 258 (7th Cir. 1989).