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AMERICAN NAT'L BANK & TRUST CO. v. HARCROS CHEMS.

March 5, 1998

AMERICAN NATIONAL BANK AND TRUST COMPANY, et al., Plaintiffs,
v.
HARCROS CHEMICALS, INC., et al., Defendants, v. WEYERHAEUSER COMPANY, et al., Third-Party Defendants.



The opinion of the court was delivered by: ZAGEL

 Background

 This case originated as one by a number of plaintiffs against T-H Agriculture & Nutrition Co. ("THAN"), Harcros Chemicals, Inc. ("Harcros"), and Willis Hart for an environmental cleanup of property located at 2501 South Damen Avenue in Chicago (the "Damen Site") under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. The defendants each operated a chemical storage facility at the property between 1969 and 1994. Plaintiff Atwater Capital Group currently owns the property, and Atwater and the other plaintiffs allege that the chemical contents of approximately seventy underground storage tanks located there leaked into the soil and groundwater. *fn1"

 Canal D lies between and adjacent to the eastern boundary of the Damen Site and the western boundary of 2431 South Wolcott Avenue (the "Wolcott Site", this term not to include any portion of Canal D) owned by Weyerhaeuser Company, and extends southward into the West Fork of the South Branch of the Chicago River. Up until 1969, Canal D contained water. In 1969, Edward Hines Lumber Company ("Hines"), Weyerhaeuser's predecessor in interest, and Thompson-Hayward Company, now known as THAN, filled in the canal because of a concern that an oily substance observed on the surface of the canal water, believed to be creosote, might flow into the river.

 In 1987, Weyerhaeuser purchased the Wolcott Site from Hines. These two parties executed a Real Estate Sales Contract that described the transfer of several parcels of property including the property located immediately adjacent to and east of Canal D and the easterly half of Canal D. After acquisition, Weyerhaeuser conducted an environmental investigation of the property east of Canal D. Weyerhaeuser found that soil samples demonstrated the presence of numerous chemicals, including naphthalene, benzo(a) anthracene, benzo(b) fluoranthene, benzo(a) pyrene, indeno (1,2,3 - cd) pyrene, chrisene, dibenzo (a,h) anthracene, and vinyl chloride, at this property and soil and groundwater samples from Canal D indicated the presence of some of the same chemicals. Weyerhaeuser cleaned the Wolcott Site and received a No Further Remediation Letter from the Illinois Environmental Protection Agency certifying the cleanup and the use of the property for industrial and commercial purposes.

 After plaintiffs sued defendants, THAN, Harcros, and Hart filed two separate third-party complaints against numerous other parties including Weyerhaeuser alleging the contours of a multi-site case involving the release of hazardous substances at the Damen Site, the Wolcott Site, and Canal D. Defendants alleged claims for declaratory relief regarding future costs and response costs under CERCLA § 107, 42 U.S.C. § 9607, and contribution under CERCLA § 113, 42 U.S.C. § 9613. *fn2"

 Weyerhaeuser now moves for summary judgment on three alternative grounds: (1) it does not own Canal D; (2) there has been no actual or threatened release of hazardous substances from Canal D or the Weyerhaeuser site to the Damen Site; and (3) it is entitled to the complete defense set forth in CERCLA § 107(b)(3).

 Discussion

 Summary judgment shall be granted when "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). A disputed fact is "material" if it "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A factual dispute is "genuine" if there is "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Id. at 250.

 CERCLA § 107(a) Liability

 The central issue in this case is whether defendants can hold Weyerhaeuser liable under CERCLA for past and future response costs associated with the environmental cleanup of the Damen Site and, perhaps, the adjacent property. CERCLA is a broad response and reimbursement statute that imposes strict liability on responsible parties. Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1150 (1st Cir. 1989). Under CERCLA § 113, a party may seek contribution from another person who is liable or potentially liable under CERCLA § 107. Kerr-McGee Chemical v. Lefton Iron & Metal Co., 14 F.3d 321, 326 (7th Cir. 1994). Section 107, one of CERCLA's key provisions, permits both government and private party plaintiffs to recover the costs incurred in responding to and cleaning up hazardous substances at contaminated sites. To prove § 107 liability a party must show: (1) the site in question is a "facility" as defined in § 101(9); (2) defendant is a "responsible person" under § 107(a); (3) there has been a "release or threatened release" of hazardous substance as defined in § 101 (22); and (4) the release or threatened release has caused plaintiff to incur response costs. Kerr-McGee Chemical, 14 F.3d 321, 325 (7th Cir. 1994).

 1. "Facility"

 First, is Canal D a facility? A "facility" is defined by CERCLA as "any building, structure ... or any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located...." § 101(9), 42 U.S.C. § 9601(9). The parties do not dispute that Canal D contains hazardous substances in the soil and water and thus constitutes a facility. In addition, THAN argues that the Wolcott Site is a facility because hazardous substances have been deposited in ...


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