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NUTRASWEET CO. v. X-L ENG'G CORP.

August 5, 1996

THE NUTRASWEET COMPANY & MONSANTO COMPANY, Plaintiffs,
v.
X-L ENGINEERING CORPORATION, & PAUL R. PRIKOS, individually, Defendants.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is Plaintiffs' Motion for Summary Judgment. For the following reasons, the motion is granted as to liability and denied as to damages.

 I.

 Plaintiff NutraSweet Company and its parent company, Monsanto Company (collectively, "NutraSweet"), claim that Defendant X-L Engineering Corporation ("X-L") and its president and majority owner, Paul Prikos *fn1" ("Prikos"), illegally "dumped" toxic chemicals which eventually migrated to, and polluted, NutraSweet's land. According to NutraSweet, the dumping violated two sections of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), specifically 42 U.S.C. §§ 9607(a) & 9613. X-L also requests relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201-2, and claims that the results of the "dumping" amounted to common law nuisance, tortious trespass, and negligence.

 NutraSweet and X-L are neighbors. The X-L facility, an aerospace machine-part manufacturing plant, abuts the eastern property line of NutraSweet's own manufacturing plant. NutraSweet manufactures food-grade products. Unused railroad tracks on unpaved land separate the adjacent properties.

 The pertinent chain of events began in October 1990, when NutraSweet contracted for a geotechnical investigation of the east side of its property bordering the X-L facility. The investigation revealed that, of the seven soil borings taken at the site, one soil boring located along NutraSweet's northeast property line emitted a "strong petrochemical odor." A year later, in October 1991, NutraSweet conducted a subsurface investigation of the same area. Soil and groundwater samples from the eastern portion of NutraSweet's property exposed high levels of chlorinated volatile organic compounds ("VOCs"). Also in October 1991, NutraSweet contracted for a "Phase I" environmental assessment to determine the cause of the soil and groundwater contamination of the eastern portion of NutraSweet's land. The assessment identified X-L as a potential source of the contamination.

 During the spring of 1992, a NutraSweet employee observed an X-L employee dumping a mop-bucket of liquid several times a day into a standing pool of water located at the northwestern corner of the X-L facility. On April 2, 1992, NutraSweet again collected soil and groundwater samples from the location where X-L's employee dumped the liquid and from the adjacent portions of its own land. Analysis of these samples revealed chlorinated VOCs and other VOC contamination at the northeastern portion of the NutraSweet property, as well as contamination at the site where the X-L employee dumped the liquid.

 As a result of its findings, NutraSweet conducted a month-long video surveillance (from April 20, 1992, until May 21, 1992) of the NutraSweet/X-L border. The videotape establishes that an X-L employee dumped mop-buckets of liquid at the northwestern corner of the X-L facility on eighty-two occasions in a single month period. Each of the "dumps" took place on an unpaved portion of X-L property. It appears from the videotapes that, on each of the eighty-two occasions, an X-L employee dumped the liquid into or around a standing pool of liquid. On at least four occasions, the standing pool of liquid extended from the X-L facility to the NutraSweet property. The dumps took place on twenty different days and occurred as frequently as seven times per day.

 On April 28, 1992, the Illinois Environmental Protection Agency ("IEPA") and the Illinois State Police ("ISP") conducted their own joint investigation. The report of the investigation read, in pertinent part:

 
On April 28, 1992, [the IEPA and ISP] conducted a surveillance outside the subject site . . . At 1001 hr., we observed the following: a [white male], 20's, approximately 5'6", brown hair, glasses, slight limp, wearing a blue baseball cap, blue jacket and blue pants, wheeled a mop bucket out of the south door of the facility and pushed the bucket to the west of the facility parking lot. Then the subject emptied the contents of the bucket, a milky brown liquid, onto the ground west of the parking lot near a railroad spur. The subject then wheeled the bucket back into the south door and closed the door. [The state police officer] and I had witnessed the same sequence of events involving the same subject on April 24, 1992 at 1251 hr. . . [The ISP officer] and I drove around the block and parked at Mulford Street and Merrimac Street. I walked the [railroad] spur north from Merrimac until I reached the dumping area. I observed the same milky brown liquid on the ground as that which the subject had dumped from the bucket moments earlier. I collected a 3 x 6 oz. soil sample from the dumping area and photographed same.

 Test results of the soil sample exhibited chlorinated VOCs and other VOCs which are byproducts of chlorinated solvents. The VOCs include 1,1,1-trichlorethane ("1,1,1-TCA"), trichlorethylene ("TCE"), tetrachloroethylene ("PCE"), cis-1,2-dichloroethylene, 1,1-dichloroethylene ("1,1,1-DCE"), bis (2-ethylhexyl) phthalate, methylene chloride, acetone, toluene, xylene, and ethyl benzene. Also in the spring of 1992, the NutraSweet Plant Manager observed several fifty-five-gallon barrels stored outdoors at the X-L facility. The barrels bore a "CarboChlor" label. CarboChlor is a chlorinated solvent made up of at least 90% 1,1,1-TCA.

 On July 16, 1992, IEPA and ISP investigators conducted another surveillance of the X-L facility. The report of the surveillance stated that the investigators observed, on several occasions, an X-L employee dumping a mop-bucket of liquid onto the ground near the northwest corner of the NutraSweet property. The investigators detained the employee, and collected a sample of the liquid in the bucket. A subsequent IEPA analysis of the sample detected chlorinated VOCs and other VOCs.

 Also on July 16, 1992, the IEPA and ISP officers met with Prikos. Prikos informed the investigators that X-L generated three different waste streams: (1) a waste stream consisting of 1,1,1-TCA from cleaning parts; (2) a water solubale cutting oil/cooling stream; and (3) a mineral spirits stream. Prikos told the investigators that of the thirty-five fifty-five gallon drums, thirteen of them contained 1,1,1-TCA, and twenty-two contained waste coolant/cutting oil. The investigators requested samples from the drums, but Prikos refused. Also during the meeting, Prikos identified the X-L employee who allegedly dumped "mopped-up liquids" as Lee Krause ("Krause"). Krause, a mentally challenged employee, was not responsible for handling, storing, transporting, or disposing wastes. Krause's sole responsibility was to mop the floor. Prikos states that, if Krause did dump the liquids, the dumping was without his direction or knowledge. According to Prikos, he then instructed Krause not to dispose of the mop water and that no such "dumping" occurred after that date. Further, Prikos states that X-L pays a separate company to dispose properly all hazardous substances.

 In August 1992, the NutraSweet Plant Manager met with Prikos at the X-L facility. Prikos again identified the potential "dumper" as Krause, and informed the Plant Manager of Krause's mental handicap. A short time after this meeting, NutraSweet formally demanded that X-L cease and desist the contamination of its property. NutraSweet also demanded reiumbursement for the associated cleanup costs. X-L denied contaminating the property and refused to reimburse NutraSweet any money.

 In September 1992, NutraSweet hired a consulting firm, Geraghty & Miller ("G&M"), to conduct a soil and groundwater quality investigation at the NutraSweet property. G&M installed seven groundwater monitoring wells and collected several soil samples. Analysis of the soil samples revealed contamination by chlorinated VOCs and other VOCs. The highest concentrations of chlorinated VOCs were detected at the northeastern corner of the NutraSweet property, the area nearest where X-L dumped its mop-buckets of liquids. Moreover, analysis of a subsequent groundwater sample, taken on October 5, 1992 from the monitoring well located at the northeastern corner of the property, revealed extremely high levels of groundwater contamination by chlorinated VOCs.

 In July 1993, NutraSweet began the long process of cleaning the soil and groundwater contamination. G&M and NutraSweet determined that the use of an air sparging/vapor extraction system ("AS/VE System") would be the most effective method to remediate the groundwater and soil contamination from the existence of chlorinated VOCs and other VOCs. Therefore, G&M designed and installed the AS/VE System, which consists of seventy-nine air sparge wells and a horizontal vapor extraction system. NutraSweet applied for and was issued the necessary permits from the IEPA, and began operating the AS/VE System in September 1993.

 In August 1993, NutraSweet entered into a Review and Evaluation Service Agreement ("Agreement") with the IEPA for the cleanup of the contamination at the NutraSweet property. Pursuant to the Agreement, NutraSweet agreed to: (1) submit a work plan to the IEPA for actions at the site; (2) allow for or otherwise arrange a site visit or other site evaluation by the IEPA; (3) perform work required by the IEPA; (4) pay all laboratory and analytical testing fees incurred by the IEPA; and (5) pay all other reasonable costs associated with the IEPA's involvement with NutraSweet. After the initial startup of the AS/VE System, NutraSweet personnel recorded the operating parameters twice daily for the first eleven weeks. NutraSweet employees also collected air samples each week for the first two months. Air samples taken before the air entered the AS/VE System consistently showed the existence of chlorinated VOCs.

 In October 1993, NutraSweet sold the property at issue to Rich Products. By agreement with Rich products, NutraSweet continued to operate and pay for the AS/VE System until June 1996.

 Also in October 1993, G&M installed four additional groundwater monitoring wells. The wells were designed to monitor the groundwater conditions during the site cleanup and were positioned in accordance with IEPA directives. In December 1993, pursuant to the Agreement, the IEPA established cleanup objectives. G&M collected groundwater samples on eight different occasions, from December 2, 1993, until July 17, 1995, from the four additional groundwater monitoring wells. Each of the thirty-two samples revealed chlorinated VOCs at levels above the IEPA's cleanup objectives. The highest chlorinated VOC concentrations were typically detected in the northeast corner of the NutraSweet property. In fact, the December 2, 1993, sample at MW-8, the monitoring well closest to the X-L "dumping" location, showed total VOCs at 49,100 ppb, compared to the three other well samples revealing VOC levels of 2,590 ppb, 1,670 ppb, and 2,060 ppb.

 NutraSweet did not use chlorinated solvents, which contain chlorinated VOCs, in its food manufacturing processes. NutraSweet did, however, use a chlorinated solvent to clean finished parts in 1991 and 1992. Yet, the Safety-Kleen parts cleaner, which uses the chlorinated solvents, is a self-contained system which houses and retains seven gallons of solvent. NutraSweet operated the system indoors and periodically sent used solvent to the system's designer for recycling. No leaks, spills, or other releases of chlorinated solvents from the Safety-Kleen parts cleaner occurred at the NutraSweet property. Moreover, there is no evidence of any release of chlorinated or other VOCs onto the NutraSweet property from any on-site location.

 In support of its motion, NutraSweet submits the affidavit of Robert J. Smith ("Smith"), a Project Engineer with G&M. In Paragraph Seventeen of his affidavit, Smith states:

 
Based upon my personal involvement with the NutraSweet Property project and my review of the materials submitted by NutraSweet in support of its Motion for Summary Judgment, it is my opinion that the VOC contamination at the NutraSweet Property identified in Geraghty & Miller's investigation was caused solely by the release of chlorinated VOCs and other VOCs from 6150 West Mulford Street in Niles, Illinois ("X-L Facility") resulting from the dumping of chlorinated VOCs and other VOCs by persons from the neighboring X-L Facility. This opinion is supported by the following:
 
A. X-L used chlorinated VOCs and other VOCs in its operations at the X-L Facility;
 
B. X-L dumped mop-buckets of chlorinated VOCs and other VOCs at and near the northeast corner of the NutraSweet Property on many occasions, as evidenced by NutraSweet's video surveillance tapes recording X-L's dumpings on 82 different occasions, IEPA's investigative reports regarding X-L dumpings, NutraSweet's eyewitness accounts of X-L's dumpings and sampling results of the liquids dumped and of the soils and liquids at and near the dumping area;
 
C. the chlorinated VOCs and other VOCs contaminating the NutraSweet Property identically match the VOCs detected from samples collected by IEPA in the dumping area;
 
D. the soil and groundwater sampling results reveal that the highest concentrations of chlorinated VOCs at the NutraSweet Property are at the northeast corner of the property, nearest the area where X-L dumped its mop-buckets of liquids;
 
E. prior to operating the AS/VE System, the groundwater beneath the NutraSweet flowed in a south, south-westerly direction based on the results of Geraghty & Miller's investigation;
 
F. the locations where X-L dumped its mop-buckets of liquids is hydraulically upgradient from the VOC contamination at the NutraSweet Property indicating that the VOCs released at the dumping locations migrated to and contaminated the affected areas ...

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