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VILLAGE OF FOX RIVER GROVE v. GRAYHILL

October 23, 1992

VILLAGE OF FOX RIVER GROVE, ILLINOIS, Plaintiff,
v.
GRAYHILL, INC., Defendant, Third-Party Plaintiff, v. ALUMINUM COIL ANODIZING CORPORATION, MARVIN FRISCH, WILLIAM HAUCK, and GROVE PLATING COMPANY, Third-Party Defendants.



The opinion of the court was delivered by: PHILIP G. REINHARD

 INTRODUCTION

 Plaintiff, the Village of Fox River Grove, in McHenry and Lake Counties, Illinois (the Village), filed a three-count complaint against defendant, Grayhill, Inc. (Grayhill). Count I of the complaint is brought pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq. Count II is based on this court's supplemental jurisdiction, 28 U.S.C. § 1367(a) and alleges that Grayhill operated a public and private nuisance. Count III, also supplemental, is brought pursuant to section 6(b) of the Illinois Water Well Construction Code, Ill. Rev. Stat. 111-1/2, P 116.116b.

 Grayhill, in turn, has filed a five-count third-party complaint against third-party defendants Aluminum Coil Anodizing Corp. (ACA) Marvin Frisch, William Hauck and Grove Plating Company. Count I is against ACA for contribution under § 113(f) of CERCLA, 42 U.S.C. § 9613(f). Count II, also against ACA, is an action for contribution for creation of a nuisance brought pursuant to the Illinois Contribution Among Joint Tortfeasors Act (Illinois Contribution Act), Ill. Rev. Stat. ch. 70, P 301 et seq. The remaining counts are not pertinent to the matter before the court and will not be discussed. Further, third-party defendants Frisch and Hauck have also filed a cross-complaint against ACA for contribution under § 113(f) of CERCLA, 42 U.S.C. § 9613(f).

 ACA has filed this motion for summary judgment, contending that a release, executed between it and the Village in 1974, bars recovery by Grayhill, Frisch and Hauck for contribution under CERCLA and the Illinois Contribution Act. ACA alternatively argues that under 42 U.S.C. § 9613 (f)(2), parties who settle with the "United States" or any "State" are free from claims for contribution, and that the potential liability of the other parties is reduced by the amount of the settlement.

 FACTS

 The facts are essentially undisputed. Plaintiff is an Illinois municipal corporation located in McHenry County and Lake County, Illinois. Grayhill is a Delaware corporation that owns property located at 212 Northwest Highway, Fox River Grove, Illinois (Grayhill property). ACA is an Illinois corporation with its principal place of business in Streamwood, Illinois. Frisch and Hauck are individuals who are residents of the State of Illinois.

 ACA is and has been engaged in the business of anodizing aluminum since approximately 1960. On or about October 5, 1962, ACA entered into a lease for the Grayhill property with the then owners, Lois and Clara Cernocky. The lease commenced on January 1, 1963 and terminated on December 31, 1972.

 The Grayhill property was sold to Frisch and Hauck via Trust 185 at First National Bank and Trust Company of Barrington on or about November 1, 1965. The property was purchased subject to the lease.

 Between November 1968 and November 1974, the Village and ACA engaged in several lawsuits in both federal and state court in connection with ACA's activities on the property. Three ordinance violations were filed against ACE in the 19th Judicial Circuit Court in McHenry County, Illinois, alleging that ACA was violating the Village's sewer ordinance that prohibited the discharge of waste water with a pH of less than 5.5 or in excess of 9.0. An ordinance violation was filed against Ronald L. Rusch, president of ACA, in his individual capacity. The Village also filed a case in circuit court alleging that ACA's activities constituted a public nuisance.

 Judgment was entered for $ 6,250 in favor of the Village and against ACA in September, 1972, in the circuit court. ACA appealed to the Illinois Appellate Court, Second District.

 The Village issued a water bill to ACA for the period from September 1, 1971 to November 30, 1971 in connection with the Grayhill property for $ 3,502. A second water bill was issued in the amount of $ 11,104 for the same period. ACA refused to pay the increased amount of the second water bill and the Village turned off the water supply to the Grayhill property. In response, ACA filed a lawsuit against the Village in the United States District Court, seeking damages for interruption of its operations, a mandatory injunction requiring the Village to turn the water supply to the Grayhill property back on, attorneys' fees and costs based on the Village's violation of the Economic Stabilization Act of 1970. The Village counterclaimed for the amount of the increased water bill. In July 1974, a judgment was entered in favor of ACA and against the Village in the amount of $ 3,208 plus costs and attorneys' fees, and a judgment was entered in favor of the Village and against ACA for $ 8,059 in the United States District Court, Northern District of Illinois (No. 72 C 382). Both ACA and the Village filed appeals with the Seventh Circuit Court of Appeals.

 In December 1972, ACA ceased conducting business at the Grayhill property and vacated the premises. Frisch and Hauck sold the Grayhill property to Grayhill sometime after December, 1972.

 The Village and ACA agreed to settle all of the previously filed or currently pending litigation. The parties agreed that ACA would pay the Village $ 7,500, all existing judgments against ACA or the Village would be vacated and set aside, all pending litigation would be dismissed with prejudice and each party would execute and deliver a general release to the other party.

 Pursuant to the settlement, ACA executed and delivered a general release dated November 4, 1974, in favor of the Village and paid the sum of $ 7,500. The Village executed and delivered a general release dated November 13, 1974, in favor of ACA and Ronald L. Rusch and adopted a corporate resolution authorizing the release. All of the pending litigation was then dismissed.

 In or about April 1983, the sewer system on the Grayhill property ruptured. Subsequently, the Village filed this suit. While the bases for the previous suits were the improper pH levels in the discharged water, the basis for the present suit is the release of trichloroethylene (TCE). CERCLA provides a remedy for such a release and did not become effective until December 11, 1980.

 DISCUSSION

 In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Richardson v. Penfold, 839 F.2d 392, 394 (7th Cir. 1988). Summary judgment is appropriate where the pleadings, depositions and affidavits show that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Anderson, 477 U.S. at 247; Poller v. Columbia Broadcasting Sys., 368 U.S. 464, 467, 7 L. Ed. 2d 458, 82 S. Ct. 486 (1962); Miller v. ICX, 358 F. Supp. 1378, 1380 (N.D.Ill. 1972). A dispute about a material fact is "genuine" if the evidence would allow a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248. However, a mere "scintilla of evidence" is insufficient; the non-movant must offer evidence on which a jury could reasonably find for him. Brownell v. Figel, 950 F.2d 1285, 1289 (7th Cir. 1991). The non-moving party must do more than raise a "metaphysical doubt" as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Co., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

  ACA first contends that in addition to the defenses outlined in § 107(b) of CERCLA, *fn2" equitable defenses may be asserted in connection with the enforcement or interpretation of the statute. Accordingly, ACA contends that it may assert the general release as a defense.

 Courts differ on whether equitable defenses are available under Section 107. See 4 WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW: HAZARDOUS WASTES AND SUBSTANCES, § 8.13 at 693 (1992). However, as the district court stated in ...


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