Preserve seeks judgment on the ground that it is an "innocent owner" under CERCLA. Because the Forest Preserve is a government entity that acquired title to the site through eminent domain, it needs to show four requirements to escape liability as an innocent owner: (1) the release was caused solely by an act or omission of a third party who was not an employee or agent of the Forest Preserve; (2) the Forest Preserve exercised due care with respect to the hazardous substance concerned; (3) the Forest Preserve took precautions against foreseeable acts or omissions of any third party; and (4) the disposal or placement of the hazardous substance on, in or at the site occurred before the Forest Preserve acquired the property. 42 U.S.C. §§ 9601(35)(A)(ii), 9607(b)(3).
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 nothing in the record even suggesting a disposal after 1982.
Because the Forest Preserve has met the requirements of CERCLA's innocent owner defense, it is entitled to summary judgment.
Resolution of the underlying summary judgment motion does not, however, end the matter. Petersen, Inc. made affirmative misrepresentations to this court in a pleading. Petersen, Inc.'s opposition to summary judgment misrepresented that the IEPA form referred to a disposal on the Petersen, Inc. site. The form referred to no such disposal.
The court finds that Petersen, Inc.'s opposition papers violated Rule 11. Rule 11 calls for the signer of a pleading to certify that she believes, after making reasonable inquiry, that the pleading is well grounded in fact. Fed. R. Civ. P. 11. The court may, on its own initiative, impose on a signer who violates Rule 11 an appropriate sanction, including attorney's fees. Petersen, Inc.'s opposition was not well grounded in fact -- Exhibit 6 did not refer to the place Petersen, Inc. claimed it did three times in its opposition memorandum. Moreover, even the most fundamental inquiry would have involved an investigation of whether the IEPA form referred to the site at issue. Although the form itself did not speak in terms that only developed during this litigation -- i.e., the form did not refer to the "Petersen, Inc. site" -- the form on its face referred to a different area. Merely looking at a map would have revealed the discrepancy. See Laurie Aff. P 11-12. There was simply no reasonable basis for concluding that the form referred to the Petersen, Inc. site. Therefore Petersen, Inc. could not have formed a good faith belief that its pleading was well grounded in fact after making reasonable inquiry. To make matters worse, when confronted with its misrepresentation by this motion, Petersen, Inc. refused to acknowledge it. Instead of clarifying, it continued to obfuscate. See Recons. Opp. at 2 n.1
As a direct result of Petersen, Inc.'s violation, the Forest Preserve was required to brief this motion for reconsideration. The court therefore orders counsel for Petersen, Inc. to pay the Forest Preserve its reasonable attorney's fees in preparing its motion and memoranda for reconsideration.
The motion for reconsideration is granted. Lake County Forest Preserve District's motion for summary judgment is granted. Judgment is entered in favor of third-party defendant Lake County Forest Preserve District and against third-party plaintiff Petersen Sand and Gravel, Inc. Counsel for Petersen Sand and Gravel, Inc. is ordered to pay the Forest Preserve its reasonable attorney's fees in preparing this motion.
Suzanne B. Conlon
United States District Judge
November 5, 1992