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UNITED STATES v. PETERSEN SAND & GRAVEL

November 5, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
PETERSEN SAND AND GRAVEL, INC., Defendant. PETERSEN SAND AND GRAVEL, INC., Defendant/Third Party Plaintiff v. LAKE COUNTY FOREST PRESERVE DISTRICT, et al., Third Party Defendants.


Conlon


The opinion of the court was delivered by: SUZANNE B. CONLON

Judge Suzanne B. Conlon

MEMORANDUM OPINION AND ORDER

 Lake County Forest Preserve District ("the Forest Preserve") moves for reconsideration of this court's order denying summary judgment. Petersen Sand and Gravel, Inc. ("Petersen, Inc.") opposes the motion.

 Motion for Reconsideration

 In an amended memorandum opinion and order occasioned by the Forest Preserve's first motion for reconsideration, the court held that there was a genuine issue of material fact as to whether a CERCLA disposal had occurred on the Petersen, Inc. site after the Forest Preserve acquired the land in 1982. See United States v. Petersen Sand & Gravel, Inc., F. Supp. 1992 W.L. 293328, at *27-28 (N.D. Ill. Oct. 7, 1992). *fn1" In reaching that conclusion, the court relied on Exhibit 6 to Petersen, Inc.'s consolidated memorandum in opposition to summary judgment. Exhibit 6 was an Illinois Environmental Protection Agency ("IEPA") complaint investigation form. The handwriting on the form indicated that an agent of the Forest Preserve reported to the IEPA that four drums containing unknown chemicals were disposed of on Forest Preserve property sometime in 1985. The form describes the location where the drums were dumped in relation to Lake County landmarks; the form does not indicate whether the disposal site was the Petersen, Inc. property.

 While the form did not indicate that it referred to the site at issue, Petersen, Inc. did. Petersen, Inc. thrice represented to this court that the form referred to a disposal on the Petersen, Inc. site. See Petersen, Inc. Opp. at 33, 34, 36. The court relied on those representations and denied summary judgment.

 It is now undisputed that Petersen, Inc.'s representations were entirely false. The IEPA form referred to disposal on Forest Preserve property, but that property is located eleven miles distant from the Petersen, Inc. site. Mot. Ex. A., Laurie Aff. PP 12, 13. *fn2" Thus the court's opinion was predicated on an error of fact.

 The Forest Preserve moves for reconsideration on the ground that the error was significant and controlling. The Forest Preserve argues that this motion is its first opportunity to address the error. The Forest Preserve points out that it was not authorized to file a reply to Petersen, Inc.'s opposition containing the misrepresentation. *fn3" The Forest Preserve's first motion for reconsideration could not address the error because the court's initial opinion did not rely on the misrepresented IEPA form. A court may grant a motion for reconsideration to correct a clear error of fact. Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987).

 Petersen, Inc. opposes the motion on the grounds that (1) a motion to reconsider can only modify a judgment, not a denial of summary judgment; and (2) the Forest Preserve is not entitled to reconsideration because it did not exercise due diligence in uncovering Petersen, Inc.'s plan to use the IEPA form. These objections are frivolous. As to the first ground, it is absolutely undisputable that a court may, sua sponte or on motion, correct clear errors of fact or law in an interlocutory order. Marconi Wireless Co. v. United States, 320 U.S. 1, 47-48 (1942) (courts have inherent power to modify interlocutory orders); Fed. R. Civ. P. 54(b) (any form of interlocutory decision or order may be modified until final judgment is entered). *fn4" As to the second ground, Petersen, Inc. has made a significant, material misrepresentation of fact regarding the IEPA form. To be sure, the Forest Preserve might have discovered that Petersen, Inc. had possession of the IEPA form before filing its summary judgment motion. On the otherhand, it is ludicrous to suggest that the Forest Preserve should be penalized for failing to divine that Petersen, Inc. intended to misuse or misrepresent the IEPA form before the Forest Preserve moved for summary judgment. The motion for reconsideration is granted.

 Merits of Original Summary Judgment Motion

 As to the first requirement, there is not a scintilla of evidence in the record to indicate that the Forest Preserve or any of its agents or employees caused any release. The Forest Preserve demonstrates at length that employees of Raymond A. Petersen were responsible for the barrels on the property. See Forest Preserve 12(m) Ex. 5-6. It is undisputed that fly ash operations ceased before the Forest Preserve acquired the land in 1982. This court has rejected the concept of "passive" disposal urged by Petersen, Inc., see Petersen, 1992 W.L. 293328, at *9, and of course, there were no pesticides disposed of on the property after 1982. The Forest Preserve therefore demonstrates by a preponderance of the evidence that the releases were caused solely by third parties.

 The Forest Preserve has also shown that it exercised due care with respect to the hazardous substances. As soon as it discovered the disposal, the Forest Preserve notified the IEPA and took remedial action. Forest Preserve 12(m) PP 54-62. Petersen, Inc.'s only argument to the contrary involves releases before 1982, but the court has already rejected the notion that the Forest Preserve acquired the property before 1982. See Petersen, 1992 W.L. 293328, at *26. Obviously, the Forest Preserve need not exercise due care as the owner of property before it is the owner of that property. For the same reason, the Forest Preserve has met the fourth requirement -- the Forest Preserve has shown that it took reasonable precautions against acts or omissions by third parties. See H.R. Conf. Rep. No. 962, 99th Cong., 2d Sess. at 86-87 (duty only arises after ownership).

 Finally, the Forest Preserve has shown that the disposal or placement occurred before it acquired the property. The Forest Preserve acquired the site in 1982. See Petersen, 1992 W.L. 293328, at *24-*28. There is ...


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