Akzo Coatings, Inc. v. Aigner Corp.

• Decision Date: 31 July 1992
• Docket Number: No. S91-570M.,S91-570M.
• Parties: AKZO COATINGS, INC. and the O'Brien Corporation, Plaintiffs, v. AIGNER CORP.; American Can Company; Dexter Corp.; Duplicolor Products Co.; Graham Paint & Varnish Co., Inc.; Illinois Bronze Paint Co.; IVC Industrial Coatings, Inc.; Motorola, Inc.; Prefinish Metals, Inc.; Reynolds Metals Co.; Rollcoater; S & C Electric Co.; Sherwin Williams Co.; Sullivan Varnish; Valspar, Inc.; Vista Products, Inc.; Whittaker Corp.; Bee Chemical Co.; CFC International, Inc.; and Coated Film Company, Defendants.
• Court: U.S. District Court — Northern District of Indiana

803 F. Supp. 1380

AKZO COATINGS, INC. and the O'Brien Corporation, Plaintiffs, v. AIGNER CORP.; American Can Company; Dexter Corp.; Duplicolor Products Co.; Graham Paint & Varnish Co., Inc.; Illinois Bronze Paint Co.; IVC Industrial Coatings, Inc.; Motorola, Inc.; Prefinish Metals, Inc.; Reynolds Metals Co.; Rollcoater; S & C Electric Co.; Sherwin Williams Co.; Sullivan Varnish; Valspar, Inc.; Vista Products, Inc.; Whittaker Corp.; Bee Chemical Co.; CFC International, Inc.; and Coated Film Company, Defendants.

No. S91-570M.

United States District Court, N.D. Indiana, South Bend Division.

July 31, 1992.

Timothy W. Woods, South Bend, Ind., Timothy L. Harker, Colleen M. Morgan, Gary R. Letcher, Washington, D.C., for plaintiffs.

Pierre C. Talbert, Chicago, Ill., for defendants Aigner Corp., American Can Co., Dexter Corp., Duplicolor Products Co., Graham Paint & Varnish Co., Inc., Illinois Bronze Paint Co., Motorola, Inc., Prefinish Metals, Inc., Reynolds Metals Co., Rollcoater, S & C Elec. Co., Sherwin Williams Co., Valspar, Inc., Whittaker Corp.

James H. Milstone, Mishawaka, Ind., Philip B. McKiernan, Indianapolis, Ind., for defendant IVC Industrial Coatings, Inc.

Richard Paulen, Elkhart, Ind., for defendant Rollcoater.

David M. Brooks, Matthew R. Clark, Indianapolis, Ind., for defendant Vista Products, Inc.

Thomas T. Terp, Robert A. Bilott, Cincinnati, Ohio, for defendant Bee Chemical Co.

G. Craig Vincent, Valparaiso, Ind., for defendants CFC Intern., Inc., Coated Film Co.

MEMORANDUM AND ORDER

MILLER, District Judge.

This cause is before the court on the motion to dismiss filed by defendants Aigner Corp., American National Can Co., The Dexter Corp., Duplicolor Products Co., Graham Paint & Varnish Co., Inc., Illinois Bronze Paint Co., Motorola, Inc., Prefinish Metals, Inc., Reynolds Metals Co., Roll Coater, Inc., S & C Electric Co., Sherwin Williams Co., Valspar, Inc., Whittaker Corp., and Morton International, Inc., on behalf of Bee Chemical Co — Lansing & Armstrong Products (collectively "RD/RA Settling Defendants"). On May 19, 1992, the court converted the motion to dismiss to one for summary judgment. The court heard oral argument on the motion on July 30. For the reasons that follow, the court concludes that the motion should be GRANTED.

The plaintiffs brought this action against the RD/RA Settling Defendants and others pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), and the Superfund Amendments and Reauthorization Act ("SARA"), 42 U.S.C. §§ 9607(a) and 9613(f), and state common law to recover the costs incurred in undertaking environmental cleanup measures at the Fisher-Calo Chemicals and Solvents Corporation facility in Kingsbury, Indiana ("the facility").

Counts I and IV are brought pursuant to 42 U.S.C. § 9607(a) for statutory response costs; Counts II and V are for contribution pursuant to 42 U.S.C. § 9613(f) that eight of the RD/RA Settling Defendants and other defendants are liable under §§ 9607(a) and 9613(f) and state common law for costs the plaintiffs incurred as a result of the release and threatened release of hazardous substances.

Background

The complaint, amended complaint, and the parties' briefs on the previously filed motion to stay, as well as this motion, set forth the following factual background.

The Fisher-Calo facility had been the subject of investigation by the United States Environmental Protection Agency ("EPA") and the Indiana State Board of Health ("ISBH"), both of which had found numerous violations in the handing and storage of hazardous wastes at the facility. From 1970 to 1986, Fisher-Calo Chemicals and Solvents Corp. used the facility to distill industrial solvents and store residues from the distillation process ("stillbottoms"). During those years, the facility received millions of gallons of chemicals from more than 200 businesses. Throughout most of this time, the ISBH and the EPA reported contamination of the soil and groundwater at the facility. In 1983, the EPA designated the facility a Superfund site pursuant to 42 U.S.C. § 9605, and in 1985, the EPA began a remedial investigation and feasibility study to select the most cost effective cleanup measures. In August 1990, the EPA's Record of Decision ("ROD") set forth its selection of remedial alternatives; these alternatives are estimated to cost $40 million and are expected to take thirty years to complete.

In December 1988, the EPA issued an administrative order ("AO") pursuant to 42 U.S.C. § 9606, addressing the hazardous substances treated or disposed of at the Fisher-Calo Two-Line Road facility. This AO identified thirteen potentially responsible parties ("§ 106 PRPs"). Amendments to the AO added another twelve § 106 PRPs. The AO required the § 106 PRPs to develop a plan to sample and remove waste drums and dispose of contaminated soils. Most of the § 106 PRPs, including the plaintiffs, agreed to finance and implement the measures required in the AO. To that end, those § 106 PRPs signed a cost sharing and allocation agreement, which included a provision that they would not sue each other for cleanup costs incurred as a result of implementing the AO's requirements. By December 1991, these § 106 PRPs had incurred $6 million in costs.

Approximately 200 additional companies ("RD/RA PRPs") were notified in October 1990 that they were liable for past, present, and future cleanup measures required by the ROD. Thirty-five of these RD/RA PRPs entered into a cost sharing and allocation agreement to finance some of the cleanup measures.

In August 1991, the EPA and the State of Indiana entered into a consent decree with the RD/RA Settling Defendants and others, which provided that the RD/RA Settling Defendants and others would finance and implement a $40 million cleanup project and pay the EPA $3.1 million for past cleanup costs. This consent decree was lodged with this court as United States v. Accurate Partitions Corp., et al., Cause No. S91-646M, on December 30, 1991. The consent decree required the defendants to undertake investigation and remedial action at the Space Leasing facility, the One-Line Road facility, the New Plant Life facility, the Two-Line Road facility, and the "Mt. Fisher" facility. The plaintiffs in this action are not parties to the consent decree.

Standard of Review for Motions for Summary Judgment

A party seeking summary judgment must demonstrate that no genuine issue of fact exists for trial and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Duane v. Lane, 959 F.2d 673, 675 (7th Cir.1992). If that showing is made and the motion's opponent would bear the burden at trial on the matter that forms the basis of the motion, the opponent must come forth with evidence to show what facts are in actual dispute. Lujan v. National Wildlife Federation, 497 U.S. 871, 883-84, 110 S.Ct. 3177, 3186, 111 L.Ed.2d 695 (1990); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If he fails to do so, summary judgment is proper. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir.1990). A genuine factual issue exists only when there is sufficient evidence for a jury to return a verdict for the motion's opponent. Harbor House Condominium Ass'n v. Massachusetts Bay Ins. Co., 915 F.2d 316, 320 (7th Cir. 1990). Summary judgment should be granted if no reasonable jury could return a verdict for the motion's opponent. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Brownell v. Figel, 950 F.2d 1285, 1289 (7th Cir.1991).

The parties cannot rest on mere allegations in the pleadings, Hughes v. Joliet Correctional Center, 931 F.2d 425, 428 (7th Cir.1991), or upon conclusory allegations in affidavits. Cusson-Cobb v. O'Lessker, 953 F.2d 1079, 1081 (7th Cir. 1992). The court must construe the facts as favorably to the non-moving party as the record will permit, Brennan v. Daley, 929 F.2d 346, 348 (7th Cir.1991), and draw any permissible inferences from the materials before it in favor of the non-moving party, Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Prince v. Zazove, 959 F.2d 1395, 1398 (7th Cir.1992), as long as the inferences are reasonable. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991). The non-moving party must show that the disputed fact is material, or outcome-determinative, under applicable law. Kizer v. Children's Learning Center, 962 F.2d 608, 611 (7th Cir.1992).

The court will address the defendants' motion with the above standards in mind.

Discussion

The RD/RA Settling Defendants claim that the Accurate Partitions consent decree protects them against the plaintiffs' claims in this action by virtue of 42 U.S.C. § 9613(f)(2), which provides:

A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement.

The consent decree specifically provides that each named defendant is entitled to protection from contribution actions relating to the facility, pursuant to 42 U.S.C. § 9613(f)(2) and/or 42 U.S.C. § 9622(g)(5).

Section 9613(f)(2) is designed to promote timely, voluntary settlements with the EPA and the states, and effectuate cleanup of hazardous wastes. Central Illinois Public Service Co. v. Industrial Oil Tank & Line Cleaning Service, 730 F.Supp. 1498, 1502-05 (W.D.Mo.1990); In re Acushnet River & New Bedford Harbor, 712 F.Supp. 1019, 1026-29 (D.Mass.1989). Therefore, the protection afforded by § 9613(f)(2) to settling parties has been extended to claims arising under state law as well as...