LCCS Group v. A.N. Webber Logistics, Inc. et al
MEMORANDUM Opinion and Order. For the reasons stated herein, Interplastic's Motion for Summary Judgment (Dkt. 310), Central Michigan's Motion for Summary Judgment (Dkt. 305), and Plaintiff's Motion for Summary Judgment (Dkt. 309) are all denied. Status hearing set for 9/27/2018 at 9:00 AM. Signed by the Honorable Harry D. Leinenweber on 9/19/2018:Mailed notice(maf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
Case No. 16 C 5827
A.N. WEBBER LOGISTICS, INC.,
Judge Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Railway bring separate Motions for Summary Judgment.
Plaintiff Lake Calumet Cluster Site Group (“LCCS Group”)
cross-moves for summary judgment only as to liability and only
For the reasons stated herein,
all three Motions are denied.
LCCS Group is a legal entity comprising signatories to an
agreement with the United States Environment Protection Agency
(Pl.’s Resp. to Interplastic’s Statement of Facts
(“Interplastic SOF”) ¶ 1, Dkt. 313-1.)
Said agreement obligates
the LCCS Group to pay the remediation costs to clean up a Superfund
site referred to as the Lake Calumet Cluster Site (“the Cluster
(Id. ¶¶ 2-4.)
Eager to reduce the apportionment of
liability for that cleanup among its members, the LCCS Group seeks
in this suit to add additional parties to its number, including
Interplastic and Central Michigan.
(See generally Compl., Dkt.
1.) In this vein, the LCCS Group seeks those parties’ contribution
under the Comprehensive Environmental Response, Compensation, and
declaratory judgment as to the liability of those parties, see 42
U.S.C. § 9613(g)(2).
(Compl. ¶¶ 482-507.)
Interplastic’s role in this case arose from a single delivery
to the Cluster Site: an August 6, 1979, load of fifty drums of
“waste resin” shipped from Interplastic’s facility in Minneapolis.
(Interplastic SOF ¶¶ 25-28.)
The exact components of that resin
are unknown, but the only resins Interplastic produced at that
time were unsaturated polyester resins (“UPRs”). (Id. ¶ 10.)
of the UPRs Interplastic produced during the relevant time period
contained anhydride and styrene as raw materials. (Id. ¶ 11.) Some
of those UPRs also included as raw materials one or more of the
fumaric acid, methyl methacrylate, and phthalic anhydride.
In their raw forms, each of those materials appears on the
EPA’s “List of Lists,” a non-exclusive enumeration of substances
(Id. ¶ 13.)
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All UPRs are thermoset polymers.
(Id. ¶ 17.)
polymers are designed to undergo a chemical reaction known as
curing which transforms the polymers (presumably originally in a
liquid state) into solids.
(Id. ¶ 18.)
that once thermoset polymers solidify, they cannot break down into
their constituent parts. (Id. ¶ 18.)
Plaintiff at once seems to
admit to this fact (see id. (objecting not to the content of
Interplastic’s claim of irreversibility but merely to the claim’s
materiality)) and also dispute it (see id. ¶ 17 (contending that
polymerization do not account for intervening forces which could
effect a breakdown of the UPRs at the Cluster Site)).
extent, Interplastic also contends that all UPRs inevitably cure
into solids; Plaintiff dispute this as well.
(Id. ¶ 20.)
Interplastic sold the UPRs it produced in liquid form — the
form usable to the customer.
(Id. ¶ 19.)
To enhance the viability
of its product, Interplastic added inhibitors to the UPRs it
distributed to delay their solidification and extend their shelf
But when Interplastic’s manufacturing process went
awry, resulting in unusable “waste resin,” Interplastic added a
recognizing it was unsuitable for sale.
(Id. ¶ 20.)
treated its waste resin on-site in Minneapolis by placing it in a
“hot box” and polymerizing it, causing the waste resin to solidify.
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(Id. ¶ 24.)
On rare occasion, the waste resin would not fully
cure even after “hot box” treatment.
(Id. ¶ 16.)
instances, Interplastic contracted to have that resin transported
for off-site disposal.
The fifty barrels of waste resin
delivered to the Cluster Site in 1979 appear to have been the
object of such an arrangement.
(See Interplastic’s Resp. to Pl.’s
Facts ¶ 15, Dkt. 316; LCCS Interplastic Site Records, Ex. D to
Pl.’s Mot. for Summ. J., Dkt. 309-8.)
Though the parties dispute
whether Interplastic manufactured the waste resin contained in
those barrels, the uncontested documentation indicates that the
barrels originated with Interplastic.
(See Dkt. 309-8.)
Central Michigan Railway.
Central Michigan is the corporate successor to Lakeshore
Terminal & Pipeline Company, which Plaintiff contends arranged for
a third-party entity called Inland Waters to deliver 2,800 gallons
of flammable jet fuel waste from Lakeshore to the Cluster Site on
June 24, 1982. (Pl.’s Resp. to Cent. Mich.’s Statement of Facts
(“Mich. SOF Resp.”) ¶ 5, Dkt. 314-1; Cent. Mich.’s Reply to Pl.’s
Statement of Additional Facts (“Mich. SOF Reply”) ¶¶ 2-3, Dkt.
323-2.) The waste disposal manifest describing that shipment lists
Lakeshore as the waste’s “generator.”
(Manifest, Ex. F to Cent.
Mich.’s Mem. in Supp. of Summ. J., Dkt. 306-1.)
concedes that it stored that jet fuel waste in a tank on its
premises yet maintains it neither owned the fuel nor arranged for
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(Mich. SOF Resp. ¶¶ 6-8.)
Rather, according to
Central Michigan, the U.S. Department of Defense owned that fuel,
Central Michigan merely stored it on DOD’s behalf, and it was DOD
that contracted with Inland Waters for the fuel waste’s removal to
the Cluster Site.
(Id. ¶¶ 6-10.)
Summary judgment must be granted “if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a).
A genuine issue of material fact exists if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving
Zaya v. Sood, 836 F.3d 800, 804 (7th Cir. 2016) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When
evaluating summary judgment motions, courts must view the facts
and draw reasonable inferences in the light most favorable to the
Scott v. Harris, 550 U.S. 372, 378 (2007).
nonmovant “is only entitled to the benefit of inferences supported
by admissible evidence, not those ‘supported by only speculation
Grant v. Trustees of Ind. Univ., 870 F.3d 562,
568 (7th Cir. 2017).
The dispute at bar concerns CERCLA, which Congress enacted to
“promote the ‘timely cleanup of hazardous waste sites’ and to
ensure that the costs of such cleanup efforts were borne by those
responsible for the contamination.”
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Burlington N. & Santa Fe. Ry.
Co. v. United States, 556 U.S. 599, 602 (2009) (citations omitted).
To establish liability under CERCLA § 107(a), the plaintiff must
show: (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 Chem. Corp. v.
There are four classes of “responsible
persons”: “the current owners and operators of the cleanup site;
the owners and operators at the time that the hazardous substance
transportation to a disposal site of their choosing.”
v. George A. Whiting Paper Co., 768 F.3d 682, 689 (7th Cir. 2014)
(citing 42 U.S.C. § 9607(a)).
Though ultimately not central to the disposition of the
motions at bar, the above-recited causation element generates some
consternation among the parties.
For the sake of completeness,
the Court briefly notes its views on the subject.
As far as
causation is concerned, CERCLA requires only that a plaintiff show
that a hazardous substance was released and that said release
caused the plaintiff to incur response costs.
See Envtl. Transp.
Sys., Inc. v. ENSCO, Inc., 969 F.2d 503, 506 (7th Cir. 1992); see
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also 42 U.S.C. § 9607(a).
“[N]othing in the language of CERCLA
requires plaintiff to prove that defendant caused the particular
release that caused plaintiff to incur costs.”
v. LaSalle Nat. Bank, 904 F. Supp. 809, 815 (N.D. Ill. 1995)
(emphasis added) (citing United States v. Alcan Aluminum Corp.,
964 F.2d 252, 264 (3d Cir. 1992)).
Interplastic argues that this
government, as opposed to a private party.
The Eighth Circuit
supports that view, see Freeport-McMoran Res. Partners Ltd. P’ship
v. B-B Paint Corp., 56 F. Supp. 2d 823, 842 (E.D. Mich. 1999)
(citing Farmland Indus. v. Morrison-Quirk Grain Corp., 987 F.2d
1335 (8th Cir. 1993)), but it occupies a minority position.
courts, including the courts of appeals for the First, Second,
Plastics, 904 F. Supp. at 814 (collecting cases), as do courts in
this District, see id.; Am. Nat. Bank & Tr. Co. of Chi. v. Harcros
Chems., Inc., No. 95 C 3750, 1997 WL 281295, at *10 (N.D. Ill. May
20, 1997) (rejecting heightened causal connection requirement for
claims pursued by private party); see also Farmland Indus., Inc.
v. Colo. & E. R. Co., 922 F. Supp. 437, 440 (D. Colo. 1996) (same).
The Court agrees with these decisions and disagrees with the
distinction Interplastic advances.
“Liability [under CERCLA] is
imposed when a party is found to have a statutorily defined
‘connection’ with the facility; that connection makes the party
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responsible regardless of causation.”
United States v. Capital
Tax Corp., 545 F.3d 525, 530 (7th Cir. 2008) (citation omitted).
neither of them can be held liable under CERCLA as a matter of
Plaintiff cross-moves for summary judgment as to liability
against only Interplastic.
The Court turns first to the dueling
motions concerning Interplastic before addressing the motion by
A. Interplastic and Plaintiff’s
Cross-Motions for Summary Judgment
disposal of the fifty drums of waste resin at the Lake Calumet
Cluster Site and so is a potentially responsible party (“PRP”)
See 42 U.S.C. § 9607(a)(3) (setting forth PRP
liability for “arrangers”).
In moving for summary judgment,
Interplastic does not dispute that it “arranged for [the] disposal”
of the waste resin.
Instead, Interplastic contends that the waste
rendering it inert and thus beyond the scope of those substances
deemed “hazardous” under CERCLA.
“Hazardous” has a broad meaning within CERCLA, comprising:
(A) any substance designated pursuant to section
311(b)(2)(A) of the Federal Water Pollution Control Act
compound, mixture, solution, or substance designated
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pursuant to section 9602 of this title, (C) any hazardous
waste having the characteristics identified under or
listed pursuant to section 3001 of the Solid Waste
Disposal Act [42 U.S.C.A. § 6921] (but not including any
waste the regulation of which under the Solid Waste
Disposal Act [42 U.S.C.A. § 6901 et seq.] has been
suspended by Act of Congress), (D) any toxic pollutant
listed under section 307(a) of the Federal Water
Pollution Control Act [33 U.S.C.A. § 1317(a)], (E) any
hazardous air pollutant listed under section 112 of the
Clean Air Act [42 U.S.C.A. § 7412], and (F) any
imminently hazardous chemical substance or mixture with
respect to which the Administrator has taken action
pursuant to section 7 of the Toxic Substances Control
Act [15 U.S.C.A. § 2606]. The term does not include
petroleum, including crude oil or any fraction thereof
which is not otherwise specifically listed or designated
as a hazardous substance under subparagraphs (A) through
(F) of this paragraph, and the term does not include
natural gas, natural gas liquids, liquefied natural gas,
or synthetic gas usable for fuel (or mixtures of natural
gas and such synthetic gas).
42 U.S.C § 9601(14).
In accordance with Section 9602, the EPA has
promulgated a list of substances it deems “hazardous.”
That so-called “List of Lists” appears at 40 C.F.R.
§ 302.4 and does not contain resin, waste resin, polyester resin,
And yet, the List does contain both styrene and maleic
materials in its USPs.
Herein lies the heart of the
Plaintiffs contend that because Interplastic’s
USPs “contained” hazardous materials, the USPs were themselves
hazardous under CERCLA.
Interplastic disagrees, arguing that the
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elemental and non-removable building blocks of its products cannot
expose them to liability.
Betkoski, 99 F.3d 505 (2d Cir. 1996), overruled on other grounds
as recognized in New York State Electric & Gas Corp. v. FirstEnergy
Corp., 766 F.3d 212, 220 (2d Cir. 2014), in which the Second
Circuit explained that “[l]iability under CERCLA depends only on
the presence in any form of listed hazardous substances,” and, as
such, “it makes no difference [if] the specific wastes disposed of
. . . [are] not themselves listed as hazardous substances” so long
as their component parts are so listed.
Id. at 515-16 (emphasis
added) (citation and internal quotation marks omitted); accord
La.-Pacific Corp. v. ASARCO Inc., 24 F.3d 1565, 1573 (9th Cir.
1994) (holding that even if a product is not specifically listed
as a hazardous substance, it qualifies if its components include
But as Interplastic points out, the PRP in
Betoski “was accused of dumping waste that contained hazardous
substances in separable, identifiable forms.”
99 F.3d at 516
The matter before the Second Circuit was thus
afield of the issue relevant here, where Interplastic contends the
once-harmful components of its waste resin had chemically changed
recognized as much: The alleged PRPs in that case cautioned that
the court’s view would “lead to CERCLA liability if a discarded
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object had any EPA listed hazardous substance in its chemical
genealogy, whether or not the chemical component’s characteristics
had been unalterably changed in the manufacturing process”; the
court rejoined simply that “[e]ven if this objection is sound in
theory, it is not relevant.”
The Second Circuit considered
allegations concerning waste containing separable, identifiable
Given that Betkoski did not consider the theory advanced here,
Interplastic contends the Court should look instead to United
States v. New Castle County, 769 F. Supp. 591 (D. Del. 1991).
material considered there was polyvinyl chloride resin, or “PVC,”
a staple component in many plastic products.
Id. at 594-95.
conditions at sea level—and is not defined as a hazardous substance
under CERCLA. Id. at 595-96. However, vinyl chloride—one of PVC’s
integral ingredients—is a CERCLA-defined hazardous substance.
Much like here, the question before the court was whether CERCLA
liability attaches when a defendant disposes of a waste that
contains a hazardous substance.
However, New Castle County diverges from the current case in
The parties in that case agreed that PVC neither
depolymerizes nor decomposes under normal landfill conditions, so
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it was undisputed that the previously-hazardous vinyl chloride was
permanently bound within the PVC and could not be the hook for
Id. at 597.
However, the parties also agreed that PVC
contains trace amounts of unreacted vinyl chloride, which could,
if heated in a vacuum, be freed from the PVC.
traces were the sole object of contention in the case.
held that when a defendant’s waste is a non-hazardous substance,
the plaintiff must show the waste “is capable of generating or
releasing a hazardous substance at the site in order to show that
the defendant’s waste ‘contains’ a hazardous substance” under
The plaintiffs failed to make that showing, so the
court refused to find liability.
Id. at 598.
The Betkoski court did not find New Castle County persuasive,
see 99 F.3d at 517, and yet Betkoski acknowledged that when a
hazardous substance is used only in a non-releasable form in the
impossible” for the plaintiff to show the required “threatened
release,” id. at 516. Betkoski cautioned, however, that scientific
impossibility is a high bar—hazardous substances releasable only
upon the introduction of an intervening force still suffice for
(remarking that district court acted
contrary to precedent in finding no liability where the hazardous
substance could be released only by an intervening force).
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Against this backdrop, this Court concludes that when the
disposed-of waste is not itself a hazardous substance and the waste
contains hazardous substances which are irreversibly bound within
the waste, a CERCLA plaintiff cannot make out its prima facie case.
possible, even only upon the intrusion of an intervening force,
then the defendant may be susceptible to liability.
Id. at 516;
see Pfohl Bros. Landfill Site Steering Comm. v. Allied Waste Sys.,
Inc., 255 F. Supp. 2d 134, 155 (W.D.N.Y. 2003) (stating that to
establish liability, “independent releasability of the substance,
established”); but cf. United States v. Serafini, 750 F. Supp.
168, 170-71 (M.D. Pa. 1990) (holding that the defendant could not
be held liable under CERCLA for depositing waste which, although
substances when burned).
The questions related to the actual
relegated to the apportionment of liability and have nothing to do
with determining liability in the first instance.
99 F.3d at 516.
Interplastic contends its waste resin provides no basis for
It argues that because polymerized resin permanently
binds together its composite elements, no intervening force of any
strength or kind can release its hazardous components and so
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Plaintiff cannot establish the prima facie element of threatened
This argument fails in two respects.
First, it ignores
the parties’ dispute over whether UPRs remain permanently cured
And second, the argument ignores that to win on
polymerization’s irreversibility, but also that the particular
waste resin Interplastic arranged for disposal was fully cured
(and thus immutably non-hazardous) as opposed to partially cured
(and thus potentially still hazardous, i.e., by “containing” a
The record is unclear on this last point.
These are the
competing facts: Interplastic says that all UPRs eventually cure,
but Interplastic also contends that whenever a batch of its UPR
failed to “fully cure,” Interplastic contracted to have that waste
significantly less inhibitor volume than consumer-worthy resin,
waste resin “could cure as quickly as a matter of hours, and
typically within several days.”
(Id. ¶ 20.)
This is puzzling.
If waste, liquid resin self-hardens within a matter of days, why
would Interplastic go to the trouble of arranging for its off-site
This puzzle aside, two questions of disputed, material fact
preclude summary judgment to either party: (1) whether fully-cured
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UPRs are unalterably polymerized, even upon the introduction of an
intervening force, and (2) if so, whether Interplastic arranged
for the disposal of fully-cured, as opposed to partially-cured,
See B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1201 (2d
Cir. 1992) (“When a mixture or waste solution contains hazardous
substances, that mixture is itself hazardous for purposes of
determining CERCLA liability.”).
On the current record, neither Plaintiff nor Interplastic is
entitled to judgment as a matter of law.
A reasonable jury could
find in either’s favor on the two key questions.
both motions for summary judgment are denied.
Central Michigan’s Motion for Summary Judgment.
As with the Interplastic-related motions, the central dispute
in this final motion is whether Central Michigan qualifies as an
Ultimately, Central Michigan fails to prove as a matter of law
that it does not so qualify, so the Court cannot grant summary
judgment in its favor.
To show that Central Michigan is an “arranger,” Plaintiff
must show that Central Michigan: (1) owned or possessed (2)
hazardous substances and (3) by contract, agreement, or otherwise,
arranged for disposal or treatment, or arranged for transport for
disposal or treatment, of those substances at the CERCLA-defined
Carolina Power & Light Co. v. Alcan Aluminum Corp., 921
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F. Supp. 2d 488, 496 (E.D.N.C. 2013) (citation omitted), aff’d sub
nom. Consolidation Coal Co. v. Ga. Power Co., 781 F.3d 129 (4th
Cir. 2015); see 42 U.S.C. § 9607(a)(3).
In more simple terms, the
Supreme Court has defined “arranger” by its ordinary meaning: an
entity that takes “intentional steps to dispose of a hazardous
Burlington N. & Santa Fe Ry. Co. v. United States,
556 U.S. 599, 611 (2009) (citing United States v. Cello-Foil
Prods., Inc., 100 F.3d 1227, 1231 (6th Cir. 1996)).
Plaintiff clears the first hurdle with ease. Central Michigan
maintains that DOD, and not it, owned the jet fuel.
quibble over legal title avails Central Michigan of nothing.
Central Michigan cannot reasonably contend it did not possess the
fuel, which is all the statute requires.
42 U.S.C. § 9607(a)(3).
Central Michigan stored the jet fuel in tanks on its property.
That suffices to establish possession.
Cf. GenCorp, Inc. v. Olin
Corp., 390 F.3d 433, 448 (6th Cir. 2004) (collecting cases and
observing that even constructive possession (i.e., control over
the hazardous substance) “may suffice where literal ownership or
possession falls short”).
The Court has little to say about the second element, i.e.,
whether the fuel waste was hazardous.
Neither party’s statements
of material facts stake a claim as to the hazardousness of the
waste, but both parties refer to the fuel waste as a hazardous
substance in their briefing.
(See Pl.’s Resp. to Cent. Mich.’s
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Mot. for Summ. J. 1, Dkt. 314 (“Central Michigan . . . does not
dispute that the waste contained hazardous substances.”); Cent.
Mich.’s Reply in Supp. of Summ. J. 8, Dkt. 323 (referring to the
disposed-of fuel waste as a “hazardous substance”).) There appears
to be no dispute between the parties on this score.
As for the final element, whether Plaintiff actually arranged
for the waste’s disposal: Central Michigan says it is free from
liability because all of the decision-making and logistics related
to the fuel’s transportation and removal were handled exclusively
Central Michigan points to a few exhibits in support of
that contention, but none is very persuasive.
contends that a June 30, 1982, letter from Lakeshore’s manager to
DOD showcases Lakeshore taking responsibility for the fuel waste
(See Ex. E, Dkt. 306-1.)
of the letter.
This is one reasonable reading
Another is that as owner of the tanks, Lakeshore
simply used this letter to report back to DOD concerning the work
DOD-retained contractors completed on-site.
(See id. (recounting
simply that the fuel waste “was taken to a disposal site in
The other set of exhibits are internal DOD memoranda
regulations concerning the disposal of the type of waste held in
Central Michigan’s tanks.
(See Exs. C-D, Dkt. 306-1.)
Michigan argues that these memos are proof of DOD’s responsibility
not simply for some unrelated wastes in its control but rather
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specifically for the fuel waste initially held by Central Michigan.
This conjecture is a leap too far; it is not supported by the memos
themselves nor by any supporting documentation.
Clearly, someone arranged for Inland Water to dispose of the
fuel waste at the Cluster Site.
It might have been DOD; it might
have been Central Michigan (as Lakeshore).
from the present record.
But either is possible
Plaintiff suggests that the fuel-storage
agreement between DOD and Lakeshore might elucidate those parties’
responsibilities vis-à-vis disposal.
exists, is not before the Court now.
But that agreement, if one
On this record, a reasonable
jury could conclude that either Lakeshore or DOD arranged for the
waste disposal, so summary judgment is not appropriate.
For the reasons stated herein, Interplastic’s Motion for
Summary Judgment (Dkt. 310), Central Michigan’s Motion for Summary
Judgment (Dkt. 305), and Plaintiff’s Motion for Summary Judgment
(Dkt. 309) are all denied.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
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