NutraSweet Co. v. XL Engineering Corp.

• Decision Date: 07 August 1996
• Docket Number: No. 95 C 6024.,95 C 6024.
• Citation: 933 F. Supp. 1409
• Court: U.S. District Court — Northern District of Illinois
• Parties: The NUTRASWEET COMPANY & Monsanto Company, Plaintiffs, v. X-L ENGINEERING CORPORATION, & Paul R. Prikos, individually, Defendants.

933 F. Supp. 1409

The NUTRASWEET COMPANY & Monsanto Company, Plaintiffs, v. X-L ENGINEERING CORPORATION, & Paul R. Prikos, individually, Defendants.

No. 95 C 6024.

United States District Court, N.D. Illinois, Eastern Division.

August 7, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Andrew Richard Running, Douglas Brian Drysdale, Kirkland & Ellis, Chicago, IL, for NutraSweet Company and Monsanto Company.

Emund B. Moran, Jr., Schopf & Weiss, Chicago, IL, for X-L Engineering Corporation and Paul R. Prikos.

OPINION AND ORDER

NORGLE, 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 Prikos¹ ("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. §§ 2201-2202, 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 × 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 soluble 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 reimbursement 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...