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PREMIUM PLASTICS v. LASALLE NATL. BANK

October 30, 1995

PREMIUM PLASTICS, Plaintiff,
v.
LaSALLE NATIONAL BANK, et al., Defendants.



The opinion of the court was delivered by: WILLIAMS

 Defendants Sherwin Williams Company, Henry Crown & Co., and Lester Crown (collectively "defendants") move the court to enter summary judgment on their behalf under Rule 56 of the Federal Rules of Civil Procedure. For reasons set forth below, the court denies their motions.

 Background

 This case involves contaminated property at 2601 South Archer Avenue, Chicago, Illinois ("the property"). Prior to 1966, a trucking company called Latham Cartage owned the property. (Def.'s 12(M) Statement P 2; Pl.'s 12(N) Statement P 2.) Latham Cartage installed, removed, or replaced underground gasoline storage tanks on several occasions. (Pl.'s Resp., Ex. 7 at 7.) From 1966 to 1988, Henry Crown & Co. owned the property. During at least some of this period Lester Crown was a general partner of Henry Crown & Co. *fn1" In 1988 Henry Crown & Co. sold the property to Plaintiff Premium Plastics ("Premium Plastics"), and Premium Plastics has owned the property ever since. (Def.'s 12(M) Statement P 1; Pl.'s 12(N) Statement P 1.) At all relevant times a large building ("the building") sat on the property.

 During most or all of the years it owned the property, Henry Crown & Co. rented it to the Sherwin-Williams Company ("Sherwin-Williams"). (Def.'s 12(M) Statement P 3; Pl.'s 12(N) Statement P 3.) Sherwin-Williams used the building on the property as a paint warehouse and distribution facility. (Def.'s 12(M) Statement P 4; Pl.'s 12(N) Statement P 4.) In January 1986 Sherwin-Williams filed a form with the Environmental Protection Agency entitled "Notice of Hazardous Waste Activity." On a section of the form requesting a list of "each chemical substance your installation handles which may be a hazardous waste," Sherwin-Williams listed twelve substances commonly found in paint and varnish, including the chemical toluene. (Pl.'s Resp., Ex. 3, Ex. 4 PP 21-26.)

 According to Wayne R. Ewing, a Sherwin-Williams employee, Sherwin-Williams' principal activities in the building and on the property involved receiving, storing, moving, and distributing containers of paint. (Pl.'s Resp., Ex. 2 at 16-17, 43-44.) In this process, potentially hazardous substances came in contact with the floor of the building in at least three ways. First, in order to control dust, employees of Sherwin-Williams varnished the main floor of the building roughly three times a year, using a mixture of half varnish and half benzene. (Id. at 119-23, 130.) Second, while moving containers of paint, employees of Sherwin-Williams sometimes spilled paint on the floor of the building. When they spilled oil-based paint, they cleaned up the spill with rags soaked in toluene or some other paint thinner. (Id. at 32-33, 90-93.) Third, Sherwin-Williams conducted maintenance on seven forklifts and twelve motorized carts used in the building, periodically changing the oil and transmission fluid in each vehicle and periodically repainting each vehicle. During the course of such maintenance, grease and paint would get on the floor of one or more side rooms in the building. (Id. at 44-46, 59-63.)

 The building had a concrete floor. Ewing stated that the floor was old and thick, with several cracks, some of them as wide as one-quarter inch and as long as six feet. (Pl.'s Resp., Ex. 2 at 36-37, 141.) Stuart Neiman, an environmental consultant who inspected the building after Sherwin-Williams left, found many cracks in the floor, some of them approximately one-quarter inch wide and over six feet long. Neiman also observed construction joints between sections of the concrete floor. (Pl.'s Resp., Ex. 4 PP 10-17.) Based on his experience, Neiman stated that such cracks and joints "provide a preferential pathway for chemicals and metals, especially in dissolved or liquid form, to reach the subsurface material (including soil and water) below the concrete floor." Id.

 After Premium Plastics purchased the property in 1988, it discovered contamination there. Subsequent sampling indicated that subsoil and groundwater on the property contained eleven of the twelve hazardous substances listed by Sherwin-Williams in 1986, including toluene. The sampling also indicated the presence of seven other hazardous substances, including benzene. (Id. PP 21-31.)

 Analysis

 A court renders summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Conversely, the court does not render summary judgment "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Thus, a court ruling on a motion for summary judgment asks "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.

 On a motion for summary judgment, the movant "bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmovant must then "set forth specific facts demonstrating that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991). In determining whether a genuine issue of material fact precludes summary judgment, the court reviews the evidence and draws all inferences "in the light most favorable to the nonmovant." Id.; Federal Deposit Ins. Corp. v. Knostman, 966 F.2d 1133, 1140 (7th Cir. 1992).

 
CERCLA is a broad, remedial statute enacted by Congress in order to enable the Environmental Protection Agency (the "EPA") to respond quickly and effectively to hazardous waste spills that threaten the environment, and to ensure "that those responsible for any damage, environmental harm, or injury from chemical poisons bear the costs of their actions."

 General Elec. Co. v. Aamco Transmissions, Inc., 962 F.2d 281, 285 (2d Cir. 1992) (quoting legislative history). Under CERCLA, "any person may seek contribution from any other person who is liable or potentially liable." 42 U.S.C. § 9613(f)(1); Environmental Transp. Sys., Inc. v. ENSCO, Inc., 969 F.2d 503, 506 (7th Cir. ...


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