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ALCAN-TOYO AMERICA, INC. v. NORTHERN ILLINOIS GAS

March 24, 1995

ALCAN-TOYO AMERICA, INC., Plaintiff,
v.
NORTHERN ILLINOIS GAS COMPANY and COMMONWEALTH EDISON COMPANY, Defendants.



The opinion of the court was delivered by: ELAINE E. BUCKLO

 This is a private action for recovery of response costs brought under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601, et seq. Plaintiff and defendants move this Court to allocate costs to be incurred from the clean up of hazardous substances at plaintiff's facility in Joliet, Illinois. For the reasons stated herein, I find that the defendants are jointly responsible for 90 percent of any future costs incurred in the clean-up of plaintiff's facility, and that the plaintiff is responsible for 10 percent of future clean-up costs.

 Facts

 In 1967, Intercontinental Alloys Corporation ("IAC") purchased the Site from NiGas and operated a secondary aluminum smelter there. The secondary aluminum smelter did not produce or use coal tar. In 1976, Alcan Aluminium Limited ("Aluminium") purchased fifty percent of IAC stock, which it later exchanged with Alcan Aluminum Corporation ("Alcancorp") for shares of Alcancorp stock. In 1979, Alcancorp purchased the remainder of IAC stock. In January, 1981, IAC was dissolved, and its remaining assets and liabilities were assumed by Alcancorp. In 1987, Alcan-Toyo was formed as an independent joint venture corporation between Alcancorp and Toyo Aluminum K.K. ("Toyo"), a subsidiary of Aluminium. In July, 1987, Alcan-Toyo acquired ownership of the Site from Alcancorp. The Site is presently owned and operated by Alcan-Toyo for the manufacture of aluminum powders and pastes. The aluminum powders and pastes manufacturing process does not produce or use coal tar. Beginning in 1989, extensive soil and groundwater investigations were conducted at the Site to determine the environmental impact of the former coal processing operations. These investigations revealed the presence of coal tar on the Site. Subsequently, Alcan-Toyo excavated approximately two thousand cubic yards of coal tar contaminated soil, which was stockpiled on the Site for subsequent treatment and/or land disposal.

 On October 27, 1992, Alcan-Toyo brought this action pursuant to 42 U.S.C. §§ 9607, 9613(f)(1) seeking to recover costs incurred in response to the release and threatened release of hazardous substances from the Site into the environment. The parties now move this Court to allocate response costs.

 Discussion

 Liability is established under CERCLA if the following four-part test is satisfied:

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

 Kerr-McGee Chemical Corp. v. Lefton Iron & Metal Co., 14 F.3d 321, 325 (7th Cir. 1994) (citations omitted). In the present case, the parties have stipulated to each of these factors: the Site is a "facility" within the meaning of CERCLA; Alcan-Toyo, NiGas, and ComEd are all "responsible persons;" and a release or threatened release of hazardous substances has occurred at the Site, causing Alcan-Toyo to incur response costs. See Stipulation of Facts and Agreed Procedural Matters ("Stip."), PP 4, 14-16, 18-20. Accordingly, the only issue ...


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