Petition for Writ of Certiorari — PMC, Inc. v. Sherwin-Williams Co.
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Supreme Court, U.S.
Fite D
No. 98 784 ocr 281998
OFFICE OF THE CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1998
PMC, INC.,
Petitioner,
V.
THE SHERWIN-WILLIAMS COMPANY,
Respondent.
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Seventh Circuit
PETITION FORA
WRIT OF CERTIORARI
JANE DIRENZO PIGOTT
TIMOTHY J. ROONEY
KENNETH T. KRISTL
BRUCE R. BRAUN*
PAUL A. DUFFY
WINSTON & STRAWN
35 West Wacker Drive
Chicago, Illinois, 60601
(312) 558-5600
*Counsel of Record Counsel for Petitioner
RESALE DOLE ANG IIA MINN ALAMOS IONE LS cme
QUESTIONS PRESENTED
Whether this Court should resolve the Circuit court split
over whether Congress, in establishing the right of contribution
under CERCLA Section 113(f)(1), intended to preempt state
law claims to recover environmental response costs when: (1)
CERCLA Section 302(d) expressly states that it does not affect
or modify the obligations or liabilities of any person under state
law; and (2) Section 114(b) expressly allows plaintiffs to recover
damages under either state law or CERCLA?
il
RULE 29.6 LISTING
PMC Global, Inc. is the parent of PMC, Inc. PMC, Inc. has
no non-wholly owned subsidiaries.
il
TABLE OF CONTENTS
a ER ee on reer i
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I oa cle cao Wik i eee ke iv
I sag kn a 54 6. Ak ras acne ae a eae l
Te Ne tas oan Cag ha Gey dik da eee ieiee l
Statutory Provisions Involved. ................ l
EM 6-0 gE oa & 8 eck aoe SS 3
ps mae Coometene Gee Wik... as ek ees 9
Sg ose te a Gaara Oop Tee eed 14
Appendices
Appendix A: Decision of the United States Court of Appeals
for the Seventh Circuit, July 30, 1998
Appendix B: Decision of the District Court for the Northern
District of Illinois, Eastern Division, April 23, 1997
TABLE OF AUTHORITIES
Meghrig v. KFC Western, Inc., 516 U.S.
WEN 6 See ee es
General Electric Co. v. Litton Indus.
Automation Sys., Inc., 920 F.2d 1415
(8th Cir. 1990), cert. denied, 499 U.S.
Ser tee Se ea a a ee
Bethlehem Steel Co. v. Bush, 918 F.2d
0323 Cie Car. ISPD wo 8 a a ee ss
Nurad, Inc. v. Hooper and Sons Co., 966
F.2d 837 (4th Cir. 1992), cert. denied,
$06 U.S, SOO Cisse) ows ES Se
B.F. Goodrich v. Murtha, 958 F.2d 1192
Rie CONN oe er ok re gs
Dedham Water Co. v. Cumberland Farms
Dairy, Inc., 889 F.2d 1146
fi Oe OU ee 8 gs
Environmental Transportation Systems,
Inc. v. Ensco, Inc.,969 F.2d 503
te > BS erie ae eee ee
People v. Brockman, 148 Ill.2d 260; 592
TDG TGR REOPEN ook cor ee ee es
Stanton Road Assoc’s. v. Lohrey Enters.,
584 F.26. 1615 Om Cr. 1999). - we es
Manor Care, Inc. v. Yaskin, 950 F.2d 122
ieee OR eee ae es
Beck v. Atlantic Richfield Co., 62 F.3d
1240 (9th Cir. 1995), cert. denied, 517
ie ve Oe ss Sa
United States v. Colorado, 990 F.2d 1565
(10th Cir. 1993), cert. denied, 510 U.S.
SR TINE a ree es
Cropwell Leasing Co. v. NMS, Inc., 5 F.3d
See Ce es ees ek oes oe ek eee
In re Reading Co., 115 F.3d 1111
Ce A a as eS oes eke eee ee
Witco Corp. v. Beekhuis, 38 F.3d 682
Ce Ca: Te es ee OS a a ee
Bedford Affiliates v. Sills, Nos. 97-9245,
97-9267, 1998 U.S. Dist. LEXIS
DAZTO CHE-GM. SOGK Fe Be Ns ee
New York v. Shore Realty, 759 F.2d 1032
AE Ce. ISeOE he ae ee ee eee
PETITION FOR WRIT OF CERTIORARI
Petitioner PMC, Inc. respectfully petitions for a wnt of cer-
tiorari to review the judgment of the United States Court of Ap-
peals for the Seventh Circuit.
OPINIONS BELOW
The opinion of the United States Court of Appeals for the
Seventh Circuit, entered July 30, 1998, is reported at 151 F.3d
610 (7th Cir. 1998), and is reprinted at Appendix A hereto. The
order and opinion of the United States District Court for the
Northern District of Illinois, entered April 23, 1997, is reported
at 45 Env’t Rep. Cas. (BNA) 1335, and is reprinted at Appendix
B hereto.
JURISDICTION
The Seventh Circuit entered its judgment on July 30, 1998.
Neither party has filed a petition for rehearing. Petitioner in-
vokes the jurisdiction of this Court under 28 U.S.C. §1254(1).
STATUTORY PROVISIONS INVOLVED
Section 113(f)(1) of the Comprehensive Environmental
Response, Compensation and Liability Act (“CERCLA”), 42
U.S.C. §9613(f)(1), provides:
Any person may seek contribution from any other
person who is liable or potentially liable under section
9607(a) of this title, during or following any civil ac-
tion under section 9606 of this title or under section
9607(a) of this title. Such claims shall be brought in
accordance with this section and the Federal Rules of
Civil Procedure, and shall be governed by Federal
law. In resolving contribution claims, the court may
allocate response costs among liable parties using
such equitable factors as the court determines are ap-
propriate. Nothing in this subsection shall diminish
the right of any person to bring an action for contribu-
tion in the absence of a civil action under section 9606
of this title or section 9607 of this title.
Section 114(b) of CERCLA, 42 U.S.C. §9614(b), provides:
Any person who receives compensation for removal
costs or damages or claims pursuant to this chapter
shall be precluded from recovering compensation for
the same removal costs or damages or claims pursuant
to any other State or Federal law. Any person who re-
ceives compensation for removal costs or damages or
claims pursuant to any other Federal or State law shall
be precluded from receiving compensation for the same
removal costs or damages or claims as provided in this
chapter.
Section 302(d) of CERCLA, 42 U.S.C. §9652(d), provides:
Nothing in this chapter shall affect or modify in any
way the obligations or liabilities of any person under
other Federal or State law, including common law, with
respect to releases of hazardous substances or other
pollutants or contaminants. The provisions of this
chapter shall not be considered, interpreted, or con-
strued in any way as reflecting a determination, in part
or whole, of policy regarding the inapplicability of
strict liability, or strict liability doctrines, to activities
relating to hazardous substances, pollutants, or con-
taminants or other such activities.
Section 2(a) of the Illinois Joint Tortfeasor Contribution
Act (the “Illinois Contribution Act” or “Act”), 740 ILCS
100/2(a), provides:
Except as otherwise provided in this Act, where 2 or
more persons are subject to liability in tort arising out of
the same injury to person or property, Or the same
wrongful death, there is a nght of contribution among
them, even though judgment has not been entered
against any or all of them.
———————————————
STATEMENT OF THE CASE
This case arises from PMC, Inc.’s (“PMC”) attempt to re-
cover from The Sherwin-Williams Company (“Sherwin-
Williams”) the costs necessary to address environmental con-
tamination caused by Sherwin-Williams’ historic manufacturing
activities at a facility located in Chicago, Illinois, as well as in-
junctive relief directing Sherwin-Williams to undertake response
actions in the future. PMC filed suit in the United States District
Court for the Northern District of Illinois, seeking both to re-
cover response costs it has already incurred, and to enjoin
Sherwin-Williams to complete necessary future response activi-
ties. After a bench trial, the District Court for the Northern Dis-
trict of Illinois awarded PMC damages for response activities
under both CERCLA and the Illinois Contribution Act, and en-
joined Sherwin-Williams to complete necessary future response
activities. The Court of Appeals for the Seventh Circuit, among
other things, reversed the award of damages under the Illinois
Contribution Act, holding that CERCLA preempts state contribu-
tion laws.
A. Factual Background.
Beginning in at least 1888, Sherwin-Williams owned and
operated a manufacturing facility on the south side of Chicago, a
portion of which subsequently became the PMC Facility. April
23. 1997 Memorandum Opinion Findings of Fact, App. B at B2,
B3. During the nearly 100 years prior to 1985, Sherwin-
Williams manufactured and used a variety of chemicals at the
Historic Sherwin-Williams Site, many of which are hazardous
substances under CERCLA. App. B at B3-B4. The vast majority
of the area that now comprises the PMC Facility was created by
Sherwin-Williams’ filling-in of Lake Calumet. App. B at B5.
Sherwin-Williams accomplished this filling, in part, by disposal
of its industrial wastes containing hazardous substances from its
operations. App. B at B4.
In 1985, PMC purchased assets of the PMC Facility from
Sherwin-Williams. App. B at B3. The transaction closed on
June 30, 1985. Id. On at least five occasions after acquiring the
business, PMC discovered hazardous substances in the soil un-
derlying the PMC Facility. App. B at B7-B10. These substances
included metals (such as arsenic and lead) as well as organic
chemicals at toxic or hazardous levels. App. B at BS5-B6. The
District Court found that Sherwin-Williams’ past operations and
disposal activities were the sole source of the hazardous sub-
stances found in the soil, App. B at B7-B10, and that the site-
wide contamination remaining at the PMC Facility was exclu-
sively attributable to Sherwin-Williams. App. B at B5-Bé6.
B. Regulatory Framework.
1. Legislative Intent Of CERCLA.
Congress enacted CERCLA in 1980 in response to growing
concern about the dangers posed by hazardous waste sites. The
express goals of the legislation were to facilitate the cleanup of en-
vironmental contamination, and to impose the response costs on
those responsible for the pollution. See, e.g., Meghrig v. KFC
Western, Inc., 516 U.S. 479, 483 (1996) (CERCLA’s two main
purposes are to assure prompt cleanup of hazardous waste sites
and impose cleanup costs on the party responsible) (quoting Gen-
eral Electric Co. v. Litton Indus. Automation Sys., Inc., 920 F.2d
1415, 1422 (8th Cir. 1990), cert. denied, 499 U.S. 937 (1991)).
A second major goal of CERCLA is to encourage voluntary
cleanup of hazardous waste sites. Bethlehem Steel Co. v. Bush,
918 F.2d 1323, 1326 (7th Cir. 1990) (referring to “the manifest
intent of Congress to encourage voluntary cleanup action”). “A
CERCLA regime which rewards indifference to environmental
hazards and discourages voluntary cleanup cannot be what Con-
gress had in mind.” Nurad, Inc. v. Hooper and Sons Co., 966
F.2d 837, 845-46 (4th Cir. 1992) cert. denied, 506 U.S. 940
(1992). The statute thus seeks to facilitate the ways in which re-
sponsible parties can recover response costs from polluters.
As numerous courts have observed, Congress intended
CERCLA to be a remedial tool to address environmental con-
tamination, and courts must construe it liberally to fully effectu-
ate its goals. See, e.g., B.F Goodrich v. Murtha, 958 F.2d 1192,
1197 (2d Cir. 1992) (“In CERCLA Congress enacted a broad re-
medial statute designed to enhance the authority of the EPA to
respond effectively and promptly to toxic pollutant spills that
threaten{] the environment and human health.”); Dedham Water
Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1150 (Ist
Cir. 1989) (CERCLA is a “broad response and reimbursement
statute”’).
2. Contribution Under CERCLA.
CERCLA imposes liability on “any person” who “owns”
or “operates” a “facility” where “hazardous substances were dis-
posed of” for “response costs” incurred in response to a “release
or threatened release” of “hazardous substances” consistent with
the National Contingency Plan (“NCP”). Section 107(a), 42
U.S.C. §9607(a). Liability under CERCLA extends to a variety
of “responsible parties,” including both the current owner and
operator of a facilitv, as well as any person who owned or oper-
ated the facility at the time of hazardous substance disposal, and
is joint and several. Jd.
To assure equitable allocation of response costs between
responsible parties, Congress added a contribution provision in
the 1986 amendments to CERCLA. Section 113(f)(1), 42 U.S.C.
§9613(f)(1). Section 113(f)(1) directs courts tu employ equitable
factors in allocating response costs:
Any person may seek contribution from any other
person who is liable or potentially liable under section
9607(a) of this title. . . .In resolving contribution
claims, the court may allocate respouse costs among
liable parties using such equitable factors as the court
deems are appropriate.
Id. Thus, CERCLA’s joint and several liability structure requires
equitable allocation among responsible parties. The fact that a per-
son may be a “responsible party,” however, does not mean that it
will bear any of the response costs. In cases with more than one
party, a court may employ equitable factors to exonerate an other-
wise liable party and require more responsible parties to bear the
!
i
6 :
cost of the entire cleanup. See, e.g., Environmental Transportation
Systems, Inc. v. Ensco, Inc., 969 F.2d 503, 507 (7th Cir. 1992) (af-
firming allocation of 100% of all response costs to one of two re-
sponsible parties).
3. The Illinois Contribution Among Joint
Tortfeasors Act.
The Illinois Contribution Among Joint Tortfeasors Act (740
ILCS 100/1, referred to herein as the “Illinois Contribution Act”)
creates a right of contribution among tortfeasors who are jointly
responsible for injury to a third party. The Illinois Contnbution
Act provides, among other things, a basis on which individuals
may recover environmental response costs. People v. Brock-
man,148 Ill. 2d 260; 592 N.E.2d 1026 (1992).
C. Proceedings Below.
On March 5, 1993, PMC filed suit in the District Court for
the Northern District of Illinois seeking compensatory, injunctive,
and declaratory relief in connection with its purchase of the PMC
Facility, as well as past and future costs incurred in responding to
actual or threatened releases of hazardous substances at the PMC
Facility. PMC’s Complaint sought: recovery of already-incurred
response costs under §107 of CERCLA, 42 U.S.C. §9607 (Count
I); contribution from Sherwin-Williams under §113(f)(1) of CER-
CLA, 42 U.S.C. §9613(f)(1), (Count II) and the Illinois Contribu-
tion Act, 740 ILCS 100/1 er seg., (Count III) for response costs;
an injunction under RCRA requiring Sherwin-Williams to allevi-
ate the imminent and substantial endangerment to health and the
environment caused by its actions (Count IV); damages for
breach of contract in failing to reimburse PMC for response costs
(Count VI); damages for fraud in the sale of the PMC Facility to
PMC (Count VII); and theories of trespass (Count VIII), nuisance
(Count IX), negligence (Count X), and willful and wanton negli-
gence (Count XI) relating to the seepage of Sherwin-Williams’
contamination onto the PMC property. PMC’s complaint also
sought declaratory relief related to all counts in the complaint
(Count XII). The District Court exercised jurisdiction over
PMC’s CERCLA claims pursuant to CERCLA Sections 107(a)
and 113(f); and over PMC’s RCRA claims pursuant to RCRA §
7002, 42 U.S.C. § 6972(a)(1)(B). The district court exercised
supplemental jurisdiction over PMC’s state law claims, as sup-
ported by the federal question claims, pursuant to 28 U.S.C. §
1367.
In November 1996, the district court conducted a bench
trial as to Counts I-IV. The court heard extensive testimony
about Sherwin-Williams’ history of waste disposal and landfill-
ing practices at the PMC Facility as well as the site-wide extent
of contamination and its exceedence of recognized standards.
PMC identified nine responses to contamination (referred to as
“Occurrences #1-9""") and sought to recoup the costs it incurred
in responding to Occurrences #4-9 under CERCLA and the Illi-
nois Contribution Act, as well as seeking injunctive relief under
RCRA and declaratory relief under CERCLA concerning future
response costs. The district court found that Sherwin-Williams
was liable for all of the contamination at the PMC Facility for
which response actions were necessary. App. B at B5-B6. Ac-
cordingly, under CERCLA (Counts I and II), the Court awarded
PMC damages for Occurrence #9, which consisted of the Reme-
dial Investigation/Feasibility Study (“RI/FS”) PMC conducted at
the PMC Facility. The court equitably allocated 100% of the fi-
nancial responsibility under CERCLA for those costs and all fu-
ture response costs to Sherwin-Williams. App. B at B18,
B20-B21.
The district court disallowed PMC’s CERCLA claims for
Occurrences #4 through #8, finding that the response activities
did not conform to National Contingency Plan (“NCP”) public
notice requirements. App. B at B18. However, because the
court concluded that Sherwin-Williams was exclusively liable for
all of the contamination, it awarded PMC 100% of the costs for
' ‘For simplicity, PMC has referred to the nine instances in which it
responded to the presence of hazardous substances as “Occurrences” |
through 9. The district court adopted this designation in its Apnl 23, 1997
order.
Occurrences #4-8 under the Illinois Contribution Act. App. B at
B22. Finally, the Court entered an injunction under RCRA de-
claring the existence of an imminent and substantial endanger-
ment due to contamination at the facility, enjoining
Sherwin-Williams to abate the danger, and awarding PMC its at-
torneys fees. App. B at B24-B25. The Court entered Judgment
on April 23, 1997.
In a July 30, 1998 decision, the Seventh Circuit upheld the
district court’s ruling that Sherwin-Williams was 100% liable for
Occurrence #9 (the RI/FS) under CERCLA, and that under
RCRA, Sherwin-Williams was obliged to abate the imminent and
substantial endangerment. App. A at Al5.” However, the Sev-
enth Circuit reversed the award of damages to PMC for Occur-
rences #4-8 under the Illinois Contribution Act. Jd. Disregarding
the plain language of CERCLA, which provides that nothing in
CERCLA affects liabilities under state law, the court found that
CERCLA’s contribution provision preempts state law contribu-
tion claims relating to environmental contamination. App. A at
All. The Seventh Circuit held that, because the Illinois Contn-
bution Act does not require consistency with the NCP (as CER-
CLA §113 (f)(1) does), allowing PMC to recover under the
Illinois Contribution Act would “nullify” CERCLA. Jd. The
court pointed to nothing in CERCLA or its legislative history as
support; it instead concluded that CERCLA contribution is avail-
able only to “victims” of environmental contamination; that PMC
was not such a “victim” even though it was not responsible for
the contamination driving the remediation; and that PMC should
be denied recovery of response costs under state law as a “sanc-
tion” for not following of all of the requirements of the NCP.
2/WWhile it upheld the district court’s finding of imminent and
substantial endangerment under RCRA, the court found that the
injunction was excessively vague under Federal Rule of Civil Procedure
65; the court therefore vacated the injunction and remanded the case for
entry of an injunction that complies with Rule 65. The court also
remanded the award of RCRA attorney fees to PMC. Neither ruling is
relevant to this petition.
ia iii
9
App. A at pp. 11-12. The court concluded that the Illinois Con-
tribution Act award would “gut” CERCLA by nullifying this
sanction, and thus found the state law was preempted. /d.
REASONS FOR GRANTING THE WRIT
This Court should grant this petition for a writ of certiorari
because the Seventh Circuit’s decision, as well as a 1998 Second
Circuit and a 1997 Third Circuit decision also finding preemp-
tion, create a direct and significant conflict with decisions by the
Ninth and Tenth Circuits regarding whether CERCLA generally
preempts state law claims. The Second, Third and Seventh Cir-
cuits’ findings of preemption create a national patchwork of in-
consistent interpretations regarding CERCLA and its interaction
with state law. In addition, the Seventh Circuit’s decision signifi-
cantly undercuts the right and ability of states to regulate envi-
ronmental contamination within their own boundaries.
In finding that CERCLA’s night of contribution, § 113(f)
(1), conflicts with and therefore preempts the Illinois Contribu-
tion Act for claims relating to environmental contamination, the
Seventh Circuit improperly disregarded the plain language of
two other sections of CERCLA: the broad non-preemption
clause in §302(d), 42 U.S.C. §9652(d), which clearly and unam-
biguously preserves to litigants the mght to recover environ-
mental response costs under both state and other Federal laws;
and the double recovery provision in §114(b), 42 U.S.C.
§9614(b), which expressly bars compensation for the same dam-
ages under both CERCLA and state law. The only interpretation
of §§302(d) and 114(b) that gives full effect to the statute’s plain
language and Congress’ intention of making polluters pay for en-
vironmental response actions is that litigants have the option of
seeking to recover response costs under either CERCLA or other
applicable Federal or state laws, including the Illinois Contribu-
tion Act. The Second, Ninth and Tenth Circuits have found no
preemption of state law claims precisely because of §§302(d) and
114(b). This fundamental conflict between the Ninth and Tenth
Circuits on the one hand, and the Seventh, Second and Third Cir-
10
cuits on the other can be resolved only by this Court’s grant of
this petition and decision on this preemption issue.
I. THE SEVENTH CIRCUIT COURT OF APPEALS’
INTERPRETATION OF CERCLA CONFLICTS
WITH EARLIER RULINGS OF THE NINTH AND
TENTH CIRCUITS.
The Seventh Circuit’s holding that CERCLA preempts state
law contribution claims for the recovery of environmental re-
sponse costs conflicts with rulings of the Ninth and Tenth Cir-
cuits, which have found that CERCLA does not preempt state
laws.
In Stanton Road Assoc. '. v. Lohrey Enters., 984 F.2d 1015,
1021 (9th Cir. 1993), the defendant was solely responsible for
pollution that existed on the plaintiffs’ property. The plaintiffs
sought to recover response costs under CERCLA as well as state
common law theories of negligence, trespass and nuisance. The
Ninth Circuit allowed the plaintiffs to proceed under state laws to
recover the response costs. It based this conclusion on the exis-
tence of CERCLA §302(d), which the Ninth Circuit interpreted
as allowing recovery of response costs under state common law
theories regardless of whether the costs are recoverable under
CERCLA. Jd. The court discounted as “meritless” the defen-
dant’s claim that CERCLA preempts state common law. The de-
fendant’s argument was exactly what the Seventh Circuit has now
adopted: that allowing the recovery of response costs under state
common law would allow the plaintiffs to circumvent CERCLA’s
requirements of necessity and consistency with the NCP. /d. at
1021.
The Ninth Circuit also supported its conclusion by point-
ing to CERCLA §114(b), which prohibits plaintiffs from recover-
ing a single set of response costs under both CERCLA and state
1]
claims. 42 U.S.C. §9614(b). The court recognized that the exis-
tence of §114(b) means that CERCLA is not the sole remedy
available to plaintiffs to recover response costs, and that plain-
tiffs have the option of seeking recovery under state law claims
as well. The court reasoned that §114(b) would be both “unnec-
essary and inexplicable” if CERCLA preempted state law claims.
Stanton Road, 984 F.2d at 1022 (quoting Manor Care, Inc. v.
Yaskin, 950 F.2d 122, 127 (3d Cir. 1991)). Thus, the Ninth Cir-
cuit has summarily rejected the exact preemption argument that
the Seventh Circuit has adopted. Accord Beck v. Atlantic Rich-
field Co., 62 F.3d 1240, 1243 n.8 (9th Cir. 1995), cert. denied,
517 U.S. 1167, 116 S. Ct. 1568 (1996) (CERCLA preserves
plaintiffs’ right to pursue state law remedies).
The Tenth Circuit has reached the same conclusion as the
Ninth Circuit in Stanton Road, finding no preemption by CER-
CLA and thus upholding state law claims to enjoin environ-
mental response actions, irrespective of whether the actions were
consistent with the NCP. The Tenth Circuit case of United States
v. Colorado, 990 F.2d 1565, 1575 (10th Cir. 1993), cert. denied.
510 U.S. 1092 (1994), involved claims both for relief under both
CERCLA the Colorado Hazardous Waste Management Act
(“CHWMA”). The Tenth Circuit court rejected the argument
that CERCLA preempted overlapping provisions of the state
CHWMA, relying on Section 302(d)’s preservation of state law
claims. /d. at 1576. The court concluded that the only reading of
Section 302(d) that can give effect to Congress’ intent in enact-
ing the statute was that the plaintiff must be allowed to pursue
claims under both CERCLA and the state law. See also Cropwell
Leasing Co. v. NMS, Inc., 5 F.3d 899, 901 (5th Cir. 1993) (Sec-
tion 302(d) preserves the government’s right to pursue response
costs under other federal or state laws). Thus, under the Ninth
and Tenth Circuit’s finding of no CERCLA preemption, a plain-
tiff can seek both CERCLA and state law contribution to allocate
responsibility for environmental contamination, subject only to
the double recovery prohibition of CERCLA §114(b).
In 1997, the Third Circuit reached a contrary conclusion
as the Ninth and Tenth Circuits, and found that CERCLA pre-
|
12
empts state contribution laws. Jn re Reading Co., 115 F.3d 1111
(3d Cir. 1997).” Reading involved third-party claims for contri-
bution under both CERCLA and state law for environmental con-
tamination at a single site. Reading, 115 F.3d at 1111. The Third
Circuit found a direct conflict between CERCLA Section 113(f)
and the state contribution law, and concluded that CERCLA pre-
empts such claims. The court reasoned that through CERCLA,
Congress expressly created a statutory mght of contribution as
part of an “elaborate settlement scheme aimed at the effective
resolution of environmental disputes.” Jd. at 1117. The court
concluded that allowing independent state law contribution reme-
dies would create a path around Congress’ elaborate scheme, and
impose an obstacle to the Congressional intent of resolving such
disputes. Because this would obstruct the Congressional intent of
CERCLA Section 113(f), the court ruled that CERCLA preempts
any state law claims for contribution. Jd.
The Second Circuit has likewise-recently held that CER-
CLA preempts certain state common law claims. Bedford Affili-
ates v. Sills, Nos. 97-9245, 97-9267, 1998 U.S. App. LEXIS
24270 (2d Cir. Sept. 28, 1998) The plaintiff in Bedford sought to
recover environmental response costs under both Section 113(f)
and state common law claims for restitution and indemnification.
The court upheld the plaintiff’s claim for contribution under §
113(f). Bedford, 1998 U.S. App. Lexis 24270 at *45. In evaluat-
>/The Third Circuit initially embraced the conclusion that CERCLA
did not preempt state law claims. In Manor Care, Inc. v. Yaskin, 950 F.2d
122 (3d Cir. 1991), involving claims for environmental response costs
under the New Jersey Spill Act, the defendant sought to avoid liability by
claiming that CERCLA preempted the New Jersey Spill Act by
establishing a comprehensive Federal statutory scheme which did not
allow for supplemental state remedies. Manor Care, 950 F.2dat 124. The
Third Circuit rejected this argument because Section 302(d) specifically
preserves state claims. Jd. at 126. The court also supported its conclusion
with reference to CERCLA’s double-recovery provision at §114(b), 42
U.S.C. §9614(b), reasoning that this provision would be unnecessary if |
CERCLA preempted state law. Jd. at 127. Accord, Witco Corp. v. |
Beekhuis, 38 F.3d 682, 688-90 (3d Cir. 1994). |
13
ing the plaintiff’s state common law claims, the court found that
CERCLA generally does not preempt state law, and does not pre-
vent states from enacting laws to supplement CERCLA. Bed-
ford, 1998 U.S. App. LEXIS 24270 at *26-27 (citing its earlier
decision in New York v. Shore Realty, 759 F.2d 1032, 1041 (2d
Cir. 1985)(“CERCLA expressly does not preempt state law”’)).
The court nevertheless concluded that allowing a plaintiff to re-
cover response costs under state common law claims for restitu-
tion and indemnification “would bypass [CERCLA’s] carefully
crafted settlement system, creating an actual conflict” between
CERCLA and state common law. Bedford, 1998 U.S. App.
LEXIS 24270 at *29. The Second Circuit therefore concluded
that CERCLA preempts state law claims for restitution and in-
demnification. Jd.
Thus, in the Second, Third and Seventh Circuits, a plaintiff
can only seek CERCLA contribution and cannot have a responsi-
ble party held accountable for its share of environmental con-
tamination if the plaintiff did not comply with the provisions of
the NCP. The rulings have created a conflict regarding how
CERCLA preempts state law claims, with the decisions of the
Ninth and Tenth Circuits finding against preemption in light of
Sections 302(d) and 114(b). The Court should therefore grant
this petition in order to resolve this conflict and provide a uni-
form federal rule that gives full effect to the plain language of the
statute and the underlying Congressional intent.
14
CONCLUSION
For the foregoing reasons, PMC, Inc. respectfully requests
that the Court grant this petition for a writ of certiorari.
Respectfully submitted,
PMC INC. |
JANE DIRENZO PIGOTT
TIMOTHY J. ROONEY
KENNETH T. KRISTL
BRUCE R. BRAUN*
PAUL A. DUFFY
WINSTON & STRAWN
35 West Wacker Drive
Chicago, Illinois 60601
(312) 558-5600
*Counsel of Record Counsel for Petitioner
APPENDICES
"ceeded nanan
APPENDIX A
aya
In the
United States Court of Appeals
for the Sefenth Circuit
Nos. 97-2884 & 97-3773
PMC, INC.,
Plaintiff-Appellee,
V.
SHERWIN-WILLIAMS COMPANY,
Defendant-Appellant.
Appeals from the United States District Court for the Northern
District of Illinois, Eastern Division.
No 93 C 1379—Paul E. Plunkett, Judge.
ARGUED FEBRUARY 25, 1998—DECIDED JULY 30, 1998
Before POSNER, Chief Judge, and HARLINGTON
WOOD, JR., and DIANE P. WOOD, Circuit Judges.
POSNER, Chief Judge. In 1985, PMC, the plaintiff in this
toxic-waste suit, bought from the defendant, Sherwin-Williams, a
plant on the south side of Chicago in which Sherwin-Williams
had been manufacturing paints, insecticides, and other chemicals
for a century or so. Since 1992, PMC has been required by Illi-
nois’ environmental protection agency to clean up toxic waste
discovered at the site, and it faces the prospect of future costs in
an unknown amount to comply fully with the agency’s demands.
On the authority of sections 107(a) and 113(f)(1) of CERCLA
(Comprehensive Environmental Response, Compensation and Li-
ws nical
-A 2-
ability Act, 42 U.S.C. §§ 9607(a), 9613(f)(1)); RCRA (Resource
Conservation and Recovery Act, 42 U.S.C. §§ 6900 er seg.), and
the Illinois Contribution Act, 740 ILCS 100/1 et seg., PMC seeks
to recover from Sherwin-Williams both the costs that it has in-
curred and the costs that it will incur. After a bench trial, the dis-
trict judge awarded essentially all the relief asked for by PMC,
including recovery of past costs under the state statute and of fu-
ture costs under CERCLA; an injunction, largely duplicative of
the CERCLA relief, under RCRA directing Sherwin-Williams to
assume full responsibility for cleaning up the site; and an award
under RCRA of PMC’s attorney’s fees allocable to obtaining the
injunction. Basically, the fight is over five clean ups that PMC
has already conducted, one costly environmental site-assessment
that it conducted in advance of the clean ups, and the costs of
whatever future clean ups PMC may be required to conduct.
Both companies, as respectively the owner of the polluted
site and the former owner who polluted it, are liable under CER-
CLA (see 42 U.S.C. § 9607(a)) and other enviromental statutes
for the expense of cleaning up the site. Parties are free, however,
to allocate such expenses between themselves by contract. See,
e.g., 42 U.S.C. §§ 9607(e)(1); Truck Components Inc. v. Beatrice
Co., 143 F.3d 1057, 1059 (7th Cir. 1998); Kerr-McGee Chemical
Corp. v. Lefton Iron & Metal Co., 14 F.3d 321, 327 (7th Cir.
1994). Some cases add that the contract must do this “clearly” to
be enforceable. Olin Corp. v. Yeargin Inc., No. 97-5606, 1998
WL 295683, at *8 (6th Cir. June 9, 1998): Lion Oil Co. v. Tosco
Corp., 90 F.3d 268, 270 (8th Cir. 1996); Tippins Inc. v. USX
Corp., 37 F.3d 87, 91-92 n. 4 (3d Cir. 1994). The statutes don’t
say this; nor has this court said it; but the cases we have cited
note that contracts by which a tortfeasor seeks to shift the finan-
cial responsibility for his torts to another person (unless the other
person is an insurance company!) are generally construed nar-
rowly.
Sherwin-Williams does not question this principle of inter-
pretation or its application to CERCLA, and so we need not pur-
sue the matter further. It argues that the contract of sale did
clearly allocate to PMC all clean-up costs that accrued more than
et. &
two years after the sale. It points to a clause which provides that
“all representations, warranties, covenants and obligations con-
tained in this Agreement shall terminate twenty-four (24) months
after the Closing Date.” The district judge, however, pointed to
another provision of the contract: “S-W expressly recognizes its
responsibility for the following matters”—and the matters then
set forth include all environmental harms resulting from toxic
waste activities at the site before the sale. The judge found no
ambiguity in the language of the contract that would justify tak-
ing evidence to determine whether the 24-month cut-off might
apply to liability for toxic wastes; he thought it evident from the
“expressly recognizes” clause that it did not.
We think he was right. Read naturally, the cut-off provision
refers to obligations created by the contract itself, such as warran-
ties, rather than to obligations created by law. The former are ob-
ligations “contained” in the contract; the latter are not.
Sherwin-Williams didn’t want PMC to be bringing a suit for
breach of warranty many years after the sale; hence the two-year
cut-off. But by the same token PMC didn’t want to be stuck with
the liabilities that Sherwin-Williams had incurred as a result of
operating a chemical plant. Applying the two-year cut-off to
Sherwin-Williams’s statutory obligations would extinguish
PMC’s legal rights to obtain from its seller a sharing of the costs
of whatever clean-up duties the environmental protection authon-
ties might impose on it. It could be argued that Sherwin-
Williams would be unlikely to write PMC a blank check for the
cost of clean-up, lest PMC decide to make the site superclean.
But against this it could be argued that Sherwin-Williams proba-
bly knew better than PMC how polluted the site was and hence
could better estimate the cost of cleaning it up, especially since
Sherwin-Williams retained ownership of a property, for which it
had clean-up responsibilities, contiguous to the property that it
sold to PMC. These speculative arguments cancel, leaving us
with contractual language unambiguously supportive of PMC’s
interpretation.
Sherwin-Williams wants to introduce evidence that would
create an ambiguity. The doctrine of extrinsic (or latent) ambigu-
fn atts
aes
ity on which it relies (a doctrine that is a part of Ohio law, which
the contract provides shall govern any disputes arising under it)
rests on a recognition that a contract which might appear to be
perfectly clear to someone who read it in ignorance of its context
might, once context was restored, seem either unclear, or clear
the opposite way. E.g., Graham v. Drydock Coal Co., 667
N.E.2d 949, 952 (Ohio 1996); Shifrin v. Forest City Enterprises,
Inc., 597 N.E.2d 499, 501 (Ohio 1992); Mathews v. Sears Pen-
sion Plan, 144 F.3d 461, 466 (7th Cir. 1998); Pierce v. Atchison,
Topeka & Santa Fe Ry., 65 F.3d 562, 568 (7th Cir. 1995). For
example, if the contract used common words in a technical sense,
as in Mathews v. Sears Pension Plan, supra, 144 F.3d at 466-67;
AM Int'l, Inc. v. Graphic Management Associates, Inc., 44 F.3d
572, 575 (7th Cir. 1995), and Kerin v. U.S. Postal Service, 116
F.3d 988, 992 and n. 2 (2d Cir. 1997), a judge who, ignorant of
the technical meaning, took the ordinary to be the intended
meaning would be fooled. He would be like a judge who tried to
interpret a contract written in French without knowing the French
language.
But if the doctrine of extrinsic ambiguity were stretched
too far, an important function of a written contract—protecting
| the parties from the vagaries of a judge’s or a jury’s weighing of
the parties’ self-serving testimony as to what they really meant
(opposite to what the contract, seemingly clearly, said)—would
| be thwarted. This is why, to be admissible to create an ambiguity
| in a clear-seeming written contract, the extrinsic evidence must
be objective. Mathews v. Sears Pension Plan, supra, 144 F.3d at
467; Home Ins. Co. v. Chicago & Northwestern Transportation
Co., 56 F.3d 763, 768-70 (7th Cir. 1995); AM Int'l, Inc. v.
Graphic Management Associates, Inc., supra, 44 F.3d at 575.
That is, it must be evidence from which an inference about the
parties’ intentions in making the contract can be drawn with con-
siderably greater confidence than if the parties were merely testi-
fying to their private understandings of what the contract meant
but failed to say. See Pierce v. Atchison, Topeka & Santa Fe Ry.,
supra, 65 F.3d at 568; Home Ins. Co. v. Chicago & Northwestern
Transportation Co., supra, 56 F.3d 763, 768. Evidence of trade
(lt
ts.
usage satisfies this criterion because it can be given by people
who neither are, nor have any relation to, the parties to the con-
tract. An admission would likewise satisfy the criterion of objec-
tivity.
But it is not enough that a party has some objective evi-
dence to offer on the meaning of the contract. The evidence must
create a sufficient doubt about what the contract means to warrant
submitting that meaning to determination by a trial, notwithstand-
ing the apparent clarity of the written word. The three bits of evi-
dence sought to be introduced by Sherwin-Williams do not
satisfy this test. Cf. Mathews v. Sears Pension Plan, supra, 144
F.3d at 467. The first is a letter from the lawyer for PMC who
drafted the contract to an employee of Sherwin-Williams suggest-
ing that the cut-off provision be amended to include an express
disclaimer that the provision applies to common law or statutory
obligations. The disclaimer was not included in the con-
tract—but for all that anyone knows it was omitted merely as be-
ing unnecessary in light of the actual wording of the cut-off
(“obligations contained in this Agreement”) and retained-
liabilities provisions. Second, an expert witness offered to testify
that disclaimers of environmental liability were common at the
time the contract was made. This says nothing about whether this
particular contract contained such a disclaimer. Third, an execu-
tive testified that over the course of negotiating the contract the
purchase price was cut in half in recognition of Sherwin-
Williams’s disclaimer of environmental liabilities. This is just the
kind of self-serving testimony that the extrinsic-ambiguity doc-
trine does not permit—the uncorroborated testimony of one of
the parties about what he understood the contract to mean. That
testimony does not become less self-serving by the addition of a
reason for the understanding, unless the reason can be substanti-
ated.
This is not to deny that a contract’s price term
can be helpful evidence of the contract’s meaning (and, of course,
it’s objective evidence—it is part of the written contract).
Rhone-Poulenc, Inc. v. International Ins. Co., 71 F.3d 1299, 1303
(7th Cir. 1995); S.A. Healy Co. v. Milwaukee Metropolitan Sewer-
-A 6-
age District, 50 F.3d 476, 479 (7th Cir. 1995); In re Kazmierczak,
24 F.3d 1020, 1022 (7th Cir. 1994). This principle was applied
to a claim for contribution to the costs of cleaning up a toxic-
waste site in AL Tech Specialty Steel Corp. v. Allegheny Int'l
Credit Corp., 104 F.3d 601, 606-08 (3d Cir. 1997). Generally the
ontract price is roughly equivalent to the value of the contrac-
tual performance (here the sale of the property). An enormous
disparity between price and value is a clue that something may
be amiss; and one possibility is that the performance has been
misdescribed. But a chemical plant is not a fungible product; nor
is a disclaimer of environmental liabilities. It would be impossi-
ble as a practical matter to infer what the price would be with a
disclaimer of environmental liabilities from estimates of the
“normal” price of a plant of this sort (and would that be with or
without environmental liabilities?) and of the “normal” cost of
being fully liable under CERCLA and the other environmental
statutes. The evidence that PMC wanted to present on these mat-
ters would have led the district court on a wild goose chase.
The doctrine of extrinsic ambiguity is an exception to the
rule that contracts clear on their face will be enforced as written.
It should be interpreted narrowly lest it swallow the rule and
make written contracts mere scraps of paper. Unless the evi-
dence sought to be introduced not only is objective but would if
believed make a compelling case that the contract means other
than what it seems to mean, it should be kept out.
We conclude that the contract did not extinguish PMC’s
statutory rights against Sherwin-Williams, and let us consider
now what they are. For PMC argues not that the contract re-
quires Sherwin-Williams to indemnify PMC for any clean-up
costs that it is forced to incur, but only that the contract does not
require PMC to indemnify Sherwin-Williams for clean-up costs
or waive PMC’s statutory rights against Sherwin-Williams.
Although both parties are, as we said, strictly liable for the
costs of cleaning up the toxic wastes at the site, CERCLA per-
mits one of the “responsible parties” (as liable parties are called
under CERCIA) to sue the other (or others) for rermbursement of
PO TO en er
ak
the costs of clean up that have been or will be borne by the plain-
tiff. 42 U.S.C. § 9607(a)(4)(B). In a suit of this sort between re-
sponsible parties, section 113(f)(1), 42 U.S.C. § 9613(f(1),
authorizes the district court to order “contribution” based on the
balance of the equities. So if in a case between two responsivle
parties, party A had incurred 50 percent of the clean-up costs but
was adjudged by the district court only one-fourth as culpable as
B (maybe because A had dumped only one-fourth as much toxic
waste), B would be ordered to pay A 60 percent of A’s costs.
Sixty percent of A’s costs is 30 percent of the total costs. Adding
that to the 50 percent of the total costs incurred by B yields 80
percent of the total costs—B’s adjudged share on the assumption
that it is four times as culpable as A, since 80 percent plus one-
fourth of 80 percent (20 percent) equals 100 percent.
The district judge decided to make Sherwin-Williams not
80 or 90 or 95 but 100 percent responsible for the costs of clean-
ing up the site. This would be an unexceptionable decision if all
the pollution had occurred before PMC took over the property.
But PMC concedes that between the purchase in 1985 and the
bringing of this suit in 1993 it dumped toxic wastes at the site on
a number of occasions. Sherwin-Williams argues that in light of
this concession, the district judge abused his equitable discretion
(AL Tech Specialty Steel Corp. v. Allegheny Int'l Credit Corp.,
supra, 104 F.3d at 608; United States v. R.W. Meyer, Inc., 932
F.2d 568, 573 (6th Cir. 1991)) in ruling that none of the clean-up
costs should be borne by PMC. But the conclusion doesn’t fol-
low from the premise. PMC’s spills may have been too inconse-
quential to affect the cost of cleaning up significantly, and in that
event a zero allocation to PMC would be appropriate. Gopher
Oil Co. v. Union Oil Co., 955 F.2d 519, 527 (8th Cir. 1992); cf.
AL Tech Specialty Steel Corp. v. Allegheny Int'l Credit Corp., su-
pra, 104 F.3d at 609. That was the district judge’s judgment, and
we cannot say that it was unreasonable. Granted, it might seem
an invitation to purchasers of polluted sites to do a little polluting
deliberately, in the hope of not having to pay anything to clean it
up. But in the first place this is a risky strategy, since it might in-
duce the judge to exercise his equitable discretion against the
-A 8-
wise guy; and in the second place the deliberate disposal of
wastes without a permit is forbidden by RCRA. 42 U.S.C. §
6928(d)(2).
There is an issue of prematurity concerning the allocation
of the clean-up costs that PMC has not yet incurred. United
States v. Hardage, 982 F.2d 1436, 1445 (10th Cir. 1992), holds,
however, that such an allocation is proper. It economizes on ju-
dicial time, in much the same way that awarding damages for
both past and future losses economizes on judicial time in a tort
case, and it also lets the parties know at the earliest opportunity
where they stand. It is true that their cooperativeness in doing
the actual clean-up is a relevant equitable factor that cannot be
evaluated until the clean up is complete. Kerr-McGee Chemical
Corp. v. Lefton Iron & Metal Co., supra, 14 F.3d at 326 n. 4; En-
vironmental Transportation Systems, Inc. v. Ensco, Inc., 969 F.2d
503, 508 (7th Cir. 1992). But this concern can be accommo-
dated, as Hardage suggests, by allowing the district court to
make an all-at-once determination subject to the court’s revisit-
ing the issue should a failure of cooperation or some other un-
foreseen circumstance make adherence to the original
determination inequitable. See 982 F.2d at 1445.
There is another and more serious roadblock to the award
of contribution to PMC under section 113(f)(1). The mght cre-
ated by that section does not arise automatically from a finding
that a responsible party has paid more than its fair share of
clean-up costs, as PMC was found to have done. The party must
also show that it incurred these costs in compliance with the fed-
eral EPA’s “national contingency plan.” 42 U.S.C. §
9607(a)(4)(B); Washington State Dept. of Transportation v.
Washington Natural Gas Co., 59 F.3d 793, 800, 805 (9th Cir.
1995); County Line Investment Co. v. Tinney, 933 F.2d 1508,
1512-15 (10th Cir. 1991) (per curiam). The plan requires that the
proposed clean-up method in which the costs will be incurred be
submitted for public comment before it is implemented. Jd. at
1514; 40 C.F.R. § 300.700(c)(6). (The purpose, we take it, is to
make sure that the remedial measures undertaken hopefully at the
expense of someone else are not excessive or otherwise improvi-
-A 9-
dent.) PMC failed to do this and as a result the district judge held
that it could not obtain any contribution under section 113(f)(1)
for the clean-up costs that it has already incurred. Washington
State Dept. of Transportation v. Washington Natural Gas Co., su-
pra, 59 F.3d at 802-05; County Line Investment Co. v. Tinney, su-
pra, 933 F.2d at 1512-15. PMC accepts this ruling. The ruling
does not affect either site-assessment costs, which are not subject
to the requirement of submission for public comment, or future
costs. As to the latter, the requirement of public comment may
be moot because Sherwin-Williams has been ordered to do the
actual cleaning up and so it is presumably Sherwin-Williams that
will be required to submit proposed measures for public com-
ment. But the order, as we’ll see later, was made under a statu-
tory provision that is limited to pollution that is causing an
imminent danger. There may be other pollution that PMC will be
ordered to clean up, so it does have an interest, though only a
contingent one, in obtaining an order requiring Sherwin-Williams
to reimburse it for any future clean-up costs that it may incur.
For completeness we should note that the district judge
awarded site-assessment costs to PMC not only under section
113(f) but also under section 107(a), which authorizes suits for
damages against owners of contaminated sites by persons who in-
cur costs in cleaning up the sites. 42 U.S.C. § 9607(a)(4)(B). It
is this provision, which creates strict liability, that imposed on
PMC a legal duty to clean up the property that it had bought from
Sherwin-Williams. In recognition that CERCLA liability is
strict, Congress created an “innocent landowner” defense not
here invoked, 42 U.S.C. §§ 9601(35), 9607(b)(3), plus the contri-
bution provision of section 113(f). Two of our decisions hold that
an innocent landowner can also sue under section 107(a).
Rumpke of Indiana, Inc. v. Cummins Engine Co., 107 F.3d 1235,
1240-41 (7th Cir. 1997); AM Int'l, Inc. v. Datacard Corp., supra,
106 F.3d at 1347; see also Jn re Reading Co., 115 F.3d 1111, 1120
(3d Cir. 1997); New Castle County v. Halliburton Nus Corp., 111
F.3d 1116, 1123 n. 7 (3d Cir. 1997). Since PMC did spill some
toxic wastes on the property, it may not be entitled to any relief
-A 10-
under that section, but we need not decide this since the only re-
lief it is seeking under it we have affirmed under section 113(f).
As far as the already incurred costs (other than the site-
assessment costs), which PMC can’t obtain contribution for un-
der any provision of CERCLA, are concerned, PMC has another
string to its bow—the Illinois Contribution Act. This is a general
statute governing contribution among joint tortfeasors, not any-
thing designed for environmental cases, and so naturally it con-
tains no public-comment requirement. Since the dumping of
toxic wastes—the tort—occurred in Illinois, we may assume as
the parties do that the Act is applicable despite the choice of law
provision in their contract, a provision presumably limited to
contract disputes.
The district judge allowed PMC to obtain under the Illinois
statute the contribution for past costs incurred that it also but un-
successfully sought under CERCLA. Sherwin-Williams argues
that this award improperly circumvents CERCLA’s limitation on
contribution. PMC replies by pointing to CERCLA’s broad sav-
ings clause, which provides that nothing in CERCLA “shall af-
fect or modify in any way the obligations or liabilities of any
person under other Federal or State law, including common law,
with respect to releases of hazardous substances or other pollut-
ants or contaminants.” 42 U.S.C. § 9652(d). Despite this clause,
one court has held that section 113(f)(1) provides the exclusive
means of obtaining contribution by one responsible party from
another. /n re Reading Co., supra, 115 F.3d at 1117.
The purpose of CERCLA’s savings clause is to preserve to
victims of toxic wastes the other remedies they may have under
federal or state law. Beck v. Atlantic Richfield Co., 62 F.3d 1240,
1243 n. 8 (9th Cir. 1995) (per curiam); Cropwell Leasing Co. v.
NMS, Inc., 5 F.3d 899, 901 (Sth Cir. 1993) (per curiam); United
States v. Colorado, 990 F.2d 1565, 1575-76 (10th Cir. 1993);
United States v. Akzo Coatings of America, Inc., 949 F.2d 1409,
1454 (6th Cir. 1991). PMC, even if it does have rights under the
broadly worded section 107(a), is not a victim of toxic-wastes
contamination in any realistic sense. It bought the property from
-A ll-
Sherwin-Williams knowing there were toxic wastes there, and by
buying it became a responsible party strictly liable for the conse-
quences of those wastes. That PMC may have rights against
other, more culpable responsible parties does not change PMC
into the victim of a tort; it is merely the less guilty of two tortfea-
sors.
Common law courts traditionally did not consider the claim
of one joint tortfeasor for a sharing of the costs of liability by the
other one worthy of any judicial time and attention, except in
cases in which the second tortfeasor had agreed (or was treated as
having agreed) to indemnify the first. Union Stockyards Co. v.
Chicago, Burlington & Quincy Ry., 196 U.S. 217, 224 (1905);
Rodi Yachts, Inc. v. National Marine, Inc., 984 F.2d 880, 885 (7th
Cir. 1993); Skinner v. Reed-Prentice Division Package Machinery
Co., 374 N.E.2d 437, 440-41 (Ill. 1978). Statutes such as section
113(f)(1) of CERCLA and the Illinois contribution act have
modified the common law. But CERCLA limits the nght of con-
tribution by the requirement in section 107(a)(4)(B) of consis-
tency with the national contingency plan. When the requirement
is flouted, contribution is denied; that is the sanction for the vio-
lation. PMC’s invocation of Illinois’ contribution statute is an at-
tempt to nullify the sanction that Congress imposed for the kind
of CERCLA violation that PMC committed.
A savings clause is not intended to allow specific provi-
sions of the statute that contains it to be nullified. American Tel.
& Tel. Co. v. Central Office Telephone, Inc., 118 S.Ct. 1956, 1965
(1998); Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 298-99
(1976); Cahnmann y. Sprint Corp., 133 F.3d 484, 488 (7th Cir.
1998). CERCLA’s savings clause must not be used to gut provi-
sions of CERCLA. The purpose of a savings clause is merely to
nix an inference that the statute in which it appears is intended to
be the exclusive remedy for harms caused by the violation of the
statute. Atherton v. FDIC, 117 S. Ct. 666, 674-75 (1997); Merrill
Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 387
(1982). The legislature doesn’t want to wipe out people’s nghts
inadvertently, with the possible consequence of making the in-
tended beneficiaries of the legislation worse off than before it
-A 12-
was enacted. The passage of federal environmental laws was not
intended to wipe out the common law of nuisance. Cf. Gordon v.
United Van Lines, Inc., 130 F.3d 282, 288-89 (7th Cir. 1997).
Let us turn to the RCRA injunction that PMC obtained.
Sherwin-Williams argues that a RCRA tail should not be allowed
to wag a CERCLA dog. Since, as we have pointed out, PMC is
not a victim of pollution, it may indeed seem odd to allow it to
obtain relief under a pollution-control statute. But no odder than
allowing it to obtain relief in the form of contribution under an-
other pollution-control statute, namely CERCLA. In any event,
we rejected this argument in AM Int'l, Inc. v. Datacard Corp.,
106 F.3d 1342, 1349 (7th Cir. 1997). PMC is therefore entitled
to relief against Sherwin-Williams if it can show that the pollu-
tion caused by the latter’s occupancy of the property creates an
imminent danger to human health or the environment. 42 U.S.C.
§ 6972(a)(1)(B); Meghrig v. KFC Western, Inc., 516 U.S. 479,
485-86 (1996). The evidence was conflicting, but there was
enough to require us to uphold the district judge’s finding.
Sherwin-Williams points out that the toxic wastes are buried; but
the buried wastes contain lead that is a constant danger to the
groundwater, so that some c'eaning up is necessary in the interest
of health, which is what the statute requires. Compare Price v.
United States Navy, 39 F.3d 1011, 1019-21 (9th Cir. 1994).
We are mindful that a citizen’s (that is, that PMC’s) suit
under RCRA is barred if the state at the time of suit “has com-
menced and is diligently prosecuting an action” in a federal or
state court under the statute to clean up the site. 42 U.S.C. §
6972(b)(2)(C); see § 6972(a)(1)(B). When PMC sued, Illinois
had already taken certain administrative actions to bring about
PMC’s compliance with RCRA, but had not filed a lawsuit. Pre-
liminary and informal in character, these were not “actions” in
the legal sense in which the statute appears to be using the term,
that is, formal proceedings whether in a court or before an
agency. Writing a letter would hardly be described as “com-
mencing” or “prosecuting” an “action.” Although a broad read-
ing of “actions” would be consistent with Congress’s evident
desire that citizens’ suits supplement rather than displace state
-A 13-
enforcement, Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Foundation, Inc., 484 U.S. 49, 60-61 (1987); Furrer v. Brown, 62
F.3d 1092, 1098 (8th Cir. 1995), we do not consider the argument
strong enough to override the statutory text, cf. Sierra Club v.
Chevron U.S.A., Inc., 834 F.2d 1517, 1524-25 (9th Cir. 1987);
Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57,
61-63 (2d Cir. 1985), especially when we consider the intermina-
ble character of much administrative process and the difficulty of
deciding on a threshold below which the process is too tentative
to justify barring a citizen’s suit. Cf. Baughman v. Bradford Coal
Co., 592 F.2d 215 (3d Cir. 1979). Suppose Illinois’ environ-
mental protection agency sent a letter of inquiry to PMC with no
follow-up. Would that administrative “action” bar PMC from su-
ing? If not, what would? How “diligent” would the agency have
to be in pursuing the matter? We’d rather not get into those ques-
tions, and we don’t think that Congress intended us to.
Sherwin-Williams argues in thie alternative that the district
court should have abstained in favor of the state administrative
proceeding. Burford v. Sun Oil Co., 319 U.S. 315 (1943); New
Orleans Public Service, Inc. v. Council of the City of New Or-
leans, 491 U.S. 350, 361-62 (1989); General Railway Signal Co.
v. Corcoran, 921 F.2d 700, 708-09 (7th Ch. 1991), or, what
amounts to the same thing, should have applied the doctrine of
primary jurisdiction, which gives an agency the first and often the
last crack at resolving issues within its domain. See, e.g., Reiter
v. Cooper, 507 U.S. 258, 268-69 (1993); United States v. Western
Pacific Ry., 352 U.S. 59, 65 (1956); Cahnmann v. Sprint Corp.,
supra, 133 F.3d at 487; Ryan v. Chemlawn Corp., 935 F.2d 129,
131 (7th Cir. 1991). That would be an end run around RCRA.
Congress has specified the conditions under which the pendency
of other proceedings bars suit under RCRA and, as we have just
seen, those conditions have not been satisfied here. Bearing in
mind that the statute has reference only to formal proceedings in
federal or state court, see 42 U.S.C. §§ 6972(a)(1)(B), (b)(2)(C),
there may be room for applying the doctrines of abstention or pri-
mary jurisdiction (different labels for the same thing, in this con-
text) in cases in which a state has a formal administrative
-A 14-
proceeding in progress that the citizens’ suit would disrupt, as in
Coalition for Health Concern v. LWD, Inc., 60 F.3d 1188 (6th
Cir. 1995)—especially since the plaintiff there was challenging
the lawfulness of the state regulatory scheme. There is nothing
like that here. The state proceedings (if they can even be called
that) are informal, as we have said, and the citizens’ suit merely
concerns the allocation of clean-up responsibilities among re-
sponsible parties.
Only two other issues need to be discussed. The first is the
form of the RCRA injunction that the district court issued. It
reads in its entirety as follows: “This Court therefore orders
Sherwin-Williams to take full responsibility for the future reme-
diation of the PMC facility.” This form of words fails to comply
with the requirements of Fed. R. Civ. P. 65 that an injunction be
precise and self-contained, so that a person subject to it who
reads it and nothing else has a sufficiently clear and exact knowl-
edge of the duties it imposes on him that if he violates :t he can
be adjudged guilty of criminal contempt. Schmidt v. Lessard,
414 US. 473, 476 (1974) (per curiam); Board of Education v. Il-
linois State Board of Education, 79 F.3d 654, 657 (7th Cir. 1996);
United States v. Board of Education, \1\ F.3d 668, 672 (7th Cir.
1993). The “injunction” falls far short of that standard. The con-
cept of taking “’full responsibility” is hopelessly vague. It can-
not sensibly be construed literally, for that would imply that if
tomorrow PMC blankets the site with radioactive nuclear wastes
Sherwin-Williams will have to bear the entire cost of cleaning it
up. More generally, the “injunction” fails to confine Sherwin-
Williams’s obligation to cleaning up the pollution for which it,
not PMC, is responsible. The case will have to be remanded for
the redrafting of the injunction.
Last, the explanation that the judge gave for exercising his
discretion in favor of an award of attorney’s fees to PMC for ob-
taining the injunction was inadequate. He announced a conclu-
sion, but gave no reasons for it, as we require. AM Int’l, Inc. v.
Datacard Corp., supra, 106 F.3d at 1352. “Legal rules commit-
ting decisions to judicial discretion suppose that the court will
have, and give, sound reasons for proceeding one way rather than
-A 15-
the other.” York Center Park District v. Krilich, 40 F.3d 205, 209
(7th Cir. 1994) (emphasis added); see also Foman v. Davis, 37}
U.S. 178, 182 (1962); Ford v. Neese, 119 F.3d 560, 563 (7th Cir.
1997).
To summarize, the judgment of the district court is affirmed
with three exceptions: the part of the judgment awarding contri-
bution to PMC for costs already incurred by it in cleaning up the
property is vacated with directions to dismiss this claim; the in-
junction is vacated and the case remanded for the entry of an in-
junction that will comply with Rule 65; and the award of
attorney’s fees is vacated, to be recomputed on remand. There
will be no award of costs in this court.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED.
A true Copy:
Teste:
Clerk of the United States
Court of Appeals for the
Seventh Circuit
APPENDIX B
ae ft.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PMC, INC., a Delaware
corporation,
Plaintiff,
No. 93 C 1379
Paul E. Plunkett, Judge
Vv.
)
)
)
)
)
THE SHERWIN-WILLIAMS )
COMPANY, an Ohio )
corporation, )
)
)
Defendant.
MEMORANDUM OPINION AND ORDER
This matter is now before the Court for a decision on the
merits on the plaintiff’s environmental liability claims in Counts I
through [TV and Count XII following a bench tial.” The follow-
ing Findings of Fact and Conclusions of Law are entered pursu-
ant to Federal Rule of Civil Procedure 52(a), after having
examined the entire record and after having determined the credi-
bility of the witnesses. :
FINDINGS OF FACT”
I. The Site
1. The Sherwin-Williams Company (“Sherwin-
Williams”) is an Ohio corporation doing business in Illinois and
“The plaintiff’s state law claims remain to be tried to a jury.
*The following findings of fact have been compiled by the
Court, consistent with its own findings, from the parties’ stipulated and
proposed findings of fact and from other evidence submitted to the
Court.
2
is a “person” under the Comprehensive Environmental Response
Compensation and Liability Act (“CERCLA”), 42 U.S.C.
§§ 9601 et seq., the Resource Conservation and Recovery Act
(“RCRA”), 42 U.S.C. §§ 6900 et seg., and the Illinois Contribu-
tion Among Joint Tortfeasors Act (“Illinois Contribution Act”),
740 ILCS 100/1 et seg
2. PMC, Inc. (“PMC”) is a Delaware corporation
doing business in Illinois and is a “person” under CERCLA,
RCRA and the IIlinois Contribution Act.
3. The Historic Sherwin-Williams Chicago Plant
Site (the “Historic Sherwin-Williams Site”) is all properties his-
torically owned by Sherwin-Williams at or adjacent to 11541
South Champlain Avenue, Chicago, Illinois prior to July 1, 1985.
This area is bounded by Doty Avenue on the east, 115th Street on
the north, Cottage Grove Avenue on the west and 119th Street on
the south. The Historic Sherwin-Williams Site was approxi-
mately 132 acres in size.
4. The Current Sherwin-Williams Chicago Site
(the “Current Sherwin-Williams Site’’) is that portion of the His-
toric Sherwin-Williams Site still owned by Sherwin Williams af-
ter the sale of its Chemical Division to PMC in 1985. This area
is generally bounded by the PMC facility on the east, 115th
Street on the north, Cottage Grove Avenue on the west and 119th
Street on the south. It is approximately 100 acres in size.
5. There is a residential and business neighbor-
hood approximately a block or two to the north (across 115th
Street) from the Current Sherwin-Williams Site. (Tr. Trans. at
543.)
6. The PMC facility (the “PMC Facility”) is that
portion of the Historic Sherwin-Williams Site purchased by PMC
as part of its purchase of Sherwin-Williams’ Chemical Division
in 1985. This area is generally bounded by Doty Avenue on the
east, 115th Street on the north, the Current Sherwin-Williams
Site on the west, and that portion of the Current Sherwin-
Williams Site commonly known as the “Back 40" on the south.
as.
This area is approximately 32 acres in size. It is a “facility” un-
der CERCLA.
7. The groundwater at the PMC Facility does not
flow into any source of drinking water.
Il. The Sale
8. Sherwin-Williams decided in 1983 to sell its
Chemicals Division, including that portion of the Historic
Sherwin-Williams Site on which the Chemicals Division oper-
ated.
9. Sherwin-Williams and PMC entered into a Pur-
chase and Sale Agreement (the “Purchase Agreement”) on May
31, 1985, in which PMC purchased among other things the
Chemicals Division portion of the Historic Sherwin-Williams
Site. That portion is now the PMC Facility. The sale closed on
June 30, 1985.
10. Sherwin-Williams continues to own and operate
the Current Sherwin-Williams Site.
Ill. The Hazardous Substances
11. From at least 1888 until May 31, 1985,
Sherwin-Williams owned and operated the Historic Sherwin-
Williams Site. At various times, it manufactured paints, paint
pigments (including white lead), resins, varnishes, dry colors,
Azo dyes, lacquers, fuchsine, alkali blue, phthalic anhydride,
phthalocyanine blue, tobias acid, insecticides (including Paris
Green, DDT, z,4-D, and 2,4,5-T), para-cresol, dinitroparacresol,
mononitroparacresol and isophthalonitrile there. It also used
and/or stored the following chemicals there, all of which are haz-
ardous substances under CERCLA as set forth at 40 C.F.R. §
302.4:
|
-B 4-
lead ortho-dichlorobenzene _ n-butyl alcohol
arsenic para-dichlorobenzene methyl methacrylate
chromium methyl isobutyl ketone styrene
cadmium ethyl acrylate para-cresol
barium dibutyl phthalate ortho-cresol
copper xylenes (mixed isomers) ethyl benzene
zinc methanol | xylene
antimony glycol ethers ammonia
cobalt cumene acetone
nickel acrylic acid toluene
naphthalene butyl acid
phthalic anhydride acrylamide
maleic anhydride ethylene glycol
12. Historical evidence in the form of insurance
maps and aerial photographs show that from 1897 until the mid-
1960s portions of the Historic Sherwin-Williams Site bordered
Lake Calumet and that the lake area of the Historic Sherwin-
Williams Site was completely filled in by 1967. This was ac-
complished at least in part by Sherwin-Williams’ on-site disposal
of industrial wastes containing hazardous substances.
13. From 1988 until the 1950s, disposal of waste at
the Historic Sherwin-Williams Site was accomplished by on-site
burning and land filling. Waste materials were hauled from the
operating facilities and discarded on the vacant land at the His-
toric Sherwin-Williams Site. Burnable materials were disposed
of by controlled burning. Remaining residues and non-burnable
wastes were dumped into the low wetlands bordering Lake Calu-
met at the Historic Sherwin-Williams Site as a means of filling in
the lake. Controlled burning was stopped in the 1950s. How-
ever, the practice of land filling waste materials continued until
the mid-1960s.
14. Sherwin-Williams also buried drums of material
and/or waste containing hazardous substances at the Historic
Sherwin-Williams Site, including in a 40-acre area now known
as the “Back 40” on the Current Sherwin-Williams Site. The
Back 40 is directly south of the PMC Facility.
-B 5-
15. The vast majority of the area that now com-
prises the PMC Facility was created by filling in Lake Calumet.
16. Organic and inorganic chemicals have been de-
tected in soil and groundwater at the PMC Facility at concentra-
tions exceeding applicable clean-up objectives.
17. On or about June 2, 1981 Sherwin-Williams
filed with the United States Environmental Protection Agency
(“USEPA”) a Notification of Hazardous Waste Site under Section
103© of CERCLA (“103© Notice”), in which it stated that there
were drums buried at the Historic Sherwin-Williams Site, re-
leases of wastes to the environment were “likely,” and that
“manufacturing residue [was] dumped in the low-lying areas
south of Kensington Avenue.”
18. During its ownership of the Historic Sherwin-
Williams Site up until 1983, Sherwin-Williams had soil borings
taken there that indicated the presence of “industrial plant waste”
and chemical odors in the sub-surface soil at or adjacent to what
is now the PMC Facility. A 1980 soil boring report indicated that
fill materials had a “strong chemical odor” and that “possibly a
chemical waste appears over most of the site area.”
19. Lead, arsenic and other metals found in the soil
and groundwater at the PMC Facility at concentrations exceeding
applicable clean-up objectives are not used by PMC as raw mate-
rials or produced by PMC from any of its processes at the PMC
Facility. Those hazardous substances are highly toxic. They are
present at the PMC Facility solely as the result of Sherwin-
Williams’ historic production and disposal activities during its
ownership of the Historic Sherwin-Williams site. The contami-
nation by those hazardous substances extends throughout the
PMC Facility, and remediation of those substances will require
remediation of the entire site.
20. The organic compounds found in the soil and/or
- groundwater at the PMC Facility either exclusively or virtually
exclusively result from Sherwin-Williams’ historic production
-B 6-
and disposal activities during its ownership of the Historic
Sherwin-Williams Site.
21. There has been a release or threat of a release of
hazardous substances in the form of metals and organic com-
pounds disposed of by Sherwin-Williams into the soil and/or
groundwater at the PMC Facility that requires further investiga-
tion and remediation.
22. During its ownership and operation of the PMC
Facility, PMC (through divisions or subsidiaries) has at various
times manufactured alkali blue, para-cresol, dinitroparacresol,
mononitroparacresol and isophthalonitrile. In addition, the fol-
lowing chemicals and/or hazardous substances have been spilled
onto the soil and/or groundwater or have leaked or spilled into
the Facility’s sewer system:
cresol sodium hydroxide
toluene meta-xylene
sulfuric acid E-benzene
sodium toluene nitric acid
aniline ethyl benzene
hydrochloric acid TSA
23. PMC’s operations at the PMC Facility, includ-
ing the spills and leaks, have either not contributed to the con-
tamination by organic compounds in the soil and/or groundwater
there or have contributed only negligible amounts to the pre-
existing contamination by organic compounds caused by
Sherwin-Williams.
24. The contamination by organic compounds in
the soil and/or groundwater at the PMC Facility occurs only in
isolated and localized areas of the site. Remediation of those
contaminated areas alone would not require remediation of the
entire PMC Facility.
25. The presence of leachable lead and other metals
will drive the remediation of the entire PMC Facility.
4.
IV. Past Clean-Up Activities
26. In October 1987 while excavating a sewer line
at the PMC Facility, PMC employees excavated discolored soil
contaminated with chromium (“Occurrence #1"). That soil was
disposed of at a cost of $43,479.23.
27. In April 1989 while replacing a collapsed sewer
line running across Kensington Avenue at the PMC Facility,
PMC employees again excavated discolored soil contaminated
with chromium (“Occurrence #2"). That soil was disposed of at a
cost of $35,228.63.
28. From May through August 1990 while making
sewer repairs and installing an air stripper near Building 650 at
the PMC Facility, PMC employees excavated discolored soil con-
taminated with cadmium and lead (“Occurrence #3"). That soil
was disposed of at a cost of $84,387.47.
29. PMC and Sherwin-Williams have reached a set-
tlement regarding the costs of Occurrences #1-3.
30. In April 1992 while making sewer repairs south
of Building 650 at the PMC Facility, PMC employees excavated
a large amount of soil that was contaminated with lead, cadmium
and ortho-dichlorobenzene (“Occurrence #4”). PMC disposed of
the soil as a hazardous waste by removing it to a CID landfill.
The soil’s initial characterization as hazardous waste was done by
PMC. After at least part of the soil had been land filled, the IIli-
nois Environmental Protection Agency (“IEPA”) required PMC
and CID/Waste Management, the disposal company, to recharac-
terize the soil as a U-code hazardous waste because of the pres-
ence of ortho-dichlorobenzene. As a result, the IEPA required
PMC and CID/Waste Management to exhume the land filled soil
and to dispose of all the soil by incineration. The total cost of
disposing of that soil was $741,609.48.
31. During discussions with the IEPA before the con-
taminated soil was removed from the PMC Facility, PMC re-
quested permission from the IEPA to return at least some of the
-B 8-
soil to the excavation site. The IEPA refused to allow PMC to do
so unless the soil was first treated so as to be uncontaminated.
32. PMC informed Sherwin-Williams of Occur-
rence #4, requesting its participation in the disposal of the con-
taminated soil and the associated costs. Sherwin-Williams’ only
response was to recommend that PMC return the soil to the exca-
vation site.
33. Sherwin-Williams’ past operations and disposal
practices were the sole source of the lead, cadmium and ortho-
dichlorobenzene found in the soil excavated during Occurrence
#4.
34. In April 1992 while repairing a water line break
near the southwest corner of Building 865 at the PMC Facility,
PMC employees excavated soil contaminated with ortho-
dichlorobenzene and 1,2,4-trichlorobenzene (“Occurrence #5”’).
That soil was dispnsed of as hazardous waste at a cost of
$16,222.80.
35. Sherwin-Williams’ past operations and disposal
practices were the sole source of the ortho-dichlorobenzene
found in the soil excavated during Occurrence #5. Because there
was no evidence that either PMC or Sherwin-Williams used or
produced the 1,2,4-trichlorobenzene, the source of that hazardous
substance is not clear. The presence of the ortho-
dichlorobenzene alone required that the soil be disposed of as a
hazardous waste.
36. In October 1992 while repairing a water line
near the northwest comer of Building 865 at the PMC Facility,
PMC employees excavated discolored soil contaminated with
naphthalene and ortho-dichlorobenzene (“Occurrence #6”). That
soil was disposed of as hazardous waste at a cost of $ 12,913.33.
37. Sherwin-Williams’ past operations and disposal
practices were the sole source of the naphthalene and ortho-
dichlorobenzene found in the soil excavated during Occurrence
#6.
i
-B 9-
38. In February 1994 while constructing a nitrogen
generation system south of Building 865 at the PMC Facility,
PMC employees excavated discolored soils contaminated with
naphthalene and ortho-dichlorobenzene (“Occurrence #7”). That
soil was disposed of as hazardous waste at a cost of $27,856.00.
39. Sherwin-Williams’ past operations and disposal
practices were the sole source of the naphthalene and ortho-
dichlorobenzene found in the soil excavated during Occurrence
#7.
40. In May 1994 while repairing water lines near
Building 865 at the PMC Facility, PMC employees excavated
discolored soils contaminated with naphthalene and toluene
(“Occurrence #8”). That soil was disposed of as hazardous waste
at a cost of $1,490.75.
41. Sherwin-Williams’ past operations and disposal
practices were the sole source of the naphthalene found in the soil
excavated during Occurrence #8. Although both PMC and
Sherwin-Williams used toluene in their operations at the PMC
Facility, PMC has not used it at the location of Occurrence #8.
Therefore Sherwin-Williams’ past operations and disposal prac-
tices were also the source of the toluene found in the soil exca-
vated during Occurrence #8.
42. Sherwin-Williams has refused to reimburse
PMC for any of the costs associated with Occurrences #4-8.
43. In connection with Occurrences #4-8, PMC did
not provide an opportunity for public comment concerning the
selection of the response action, designate a spokesperson, pub-
lish a notice in a local newspaper of availability of the adminis-
trative record file or provide for a public comment period. It also
did not conduct interviews with local officials, community resi-
dents, or other interested parties, prepare a community ;elations
plan, establish a local information repository or schedule public
meetings. (See Tr. Trans. at 543-45.)
-B 10-
44. In connection with Occurrences #4-8, PMC did
notify Sherwin-Williams and PMC’s employees of its response
actions. (Id. at 485.)
45. On December 8, 1992 the IEPA issued a notice
to PMC pursuant to Section 4(q) of the Illinois Environmental
Protection Act (the “4(q) Notice”). The Notice stated that “the
release of hazardous substances at, from or attributable to the
[PMC Facility] and the continuing threat of release at the PMC
Facility present an immediate and significant risk of harm to hu-
man health, welfare and the environment” and that “the actions
required by this Notice are necessary to protect human health.
welfare, and the environment.” Pursuant to the 4(q) Notice, the
IEPA ordered PMC to investigate whether a release of hazardous
substances occurred at the PMC Facility, to complete appropriate
response actions and to reimburse the IEPA for response and
Oversight costs.
46. In response to the 4(q) Notice PMC submitted
to the IEPA a remedial investigation work plan prepared by
McLaren-Hart and conducted an IEPA-approved sampling of the
soil and groundwater at the PMC Facility at a cost of
$635,711.19 (“Occurrence #9”). Sherwin-Williams has refused
to reimburse PMC for any of the costs related to Occurrence #9.
47. Sherwin-Williams has stipulated that PMC’s
costs associated with Occurrence #9 were reasonable and neces-
sary and that PMC performed all actions necessary to comply
substantially with the applicable requirements of the 1990 Na-
tional Contingency Plan (the “NCP”).
48. Pursuant to the 4(q) Notice the IEPA has re-
quested that PMC conduct additional investigation at the PMC
Facility and will require PMC to engage in a remediation of the
PMC Facility.
49. PMC gave Sherwin-Williams written notice of
its intent to sue under RCRA on August 3, 1992, more than 60
days prior to the filing of this action.
me See enone ee
-B 11-
In its Memorandum Opinion and Order of September 23,
1996 (the “Opinion,” 1996 WL 546869), this Court determined
that Sherwin-Williams was liable under Section 107(a) of CER-
CLA, 42 U.S.C. § 9607. Despite that conclusion, Sherwin-
Williams is liable for PMC’s response costs only if those costs
were necessary and consistent with the NCP, for Section
107(a)(4)(B) places those two limitations upon a party’s recovery
of its response costs from otherwise liable third parties. 42 U.S.C.
§9607(a)(4)(B). The plaintiff bears the burden of proof on this
issue. G.J. Leasing Co. v. Union Elec. Co., 854 F. Supp. 539, 561
(S. D. Ill. 1994), affd, 54 F.3d 379 (7th Cir. 1995) (plaintiff must
“prove affirmatively that its response costs were both necessary
and consistent with the NCP in order to recover under CER-
CLA.”). The relevant NCP is the one in effect at the time the re-
sponse costs were incurred. Louisiana-Pacific Corp. v.
ASARCO., Inc., 24 F.3d 1565, 1576 (9th Cir. 1994), cert. denied,
115 S. Ct. 780 (1995).
In this action, PMC seeks to recover its response costs for
Occurrences #1-9. However, Sherwin-Williams has already re-
imbursed PMC for Occurrences #1-3, and it has stipulated that
Occurrence #9 was necessary and consistent with the NCP.
Therefore, the only issue is whether Occurrences #4-8 were nec-
essary and consistent with the NCP. Those occurrences took
place from 1992 to 1994, and the 1990 NCP was in effect during
each of those response actions. See Alcan-Toyo America, Inc. v.
Northern Ill Gas Co., 904 F. Supp. 833, 835 (N.D. Ill. 1995).
A. Necessary Costs
To establish that its response costs were “necessary” under
Section 107(a), a plaintiff must show that:
(1) the costs were incurred in response to a threat to hu-
man health or the environment, and
(2) the costs were necessary to address that threat.
-B 12-
G.J. Leasing, 854 F. Supp. at 562. It is undisputed that in each of
Occurrences #4-8, PMC tested the excavated soil and found that it
contained concentrations of hazardous substances above permissi-
ble levels. The presence of such substances in piles of excavated
soil at the PMC Facility where (at a minimum) PMC’s employees
could come into contact with it is sufficient to demonstrate the exis-
tence of a threat to human health or the environment. That conclu-
sion is bolstered by the fact that in the 4(q) Notice issued in
December 1992 the IEPA found “an immediate and significant nsk
of harm to human health, welfare and the environment.” Because
the contamination found in the excavated soii in Occurrences #4-8
resulted from Sherwin-Williams’ pre-1985 operations at the site,
the risk identified in the 4(q) Notice was already present in early
1992 when PMC took its response actions as to Occurrences #4-6.
And because the site had not been remediated by 1994, that risk was
still present when PMC undertook the response actions as to Occur-
rences #7-8.
As to the necessity of the costs incurred, PMC has submit-
ted evidence that it disposed of the excavated soil in each occur-
rence as hazardous waste. In only one instance, Occurrence #4,
has Sherwin-Williams challenged the handling of that disposal.
PMC’s evidence shows that in Occurrence #4 the IEPA refused
to permit PMC to return the excavated soil to the ground unless
that soil had first been treated. In addition, the IEPA not only re-
quired that the soil be disposed of as hazardous waste but also
found that it contained a hazardous substance that had to be dis-
posed of by incineration rather than land filling, thereby requir-
ing the exhumation of the land filled material. Although
Sherwin-Williams contends that PMC’s error in characterizing
the soil led to the costly exhumation process (Contested Facts 4
48), its own expert testified at trial that he thought the IEPA’s
characterization of the soil was confusing and that PMC should
have sought a variance. (Tr. Trans. at 883-84.) That testimony
demonstrates that the characterization of the waste was a matter
of judgment, not a ministerial act that PMC performed negli-
gently, as Sherwin-Williams’ argument suggests. Viewing all of
this evidence, we conclude that despite PMC’s decision not to re-
-B 13-
turn the excavated soil to the ground and its erroneous characteri-
zation of the soil for disposal, its costs as to Occurrence #4 were
necessary.
Sherwin-Williams also asserts that the response costs asso-
ciated with Occurrences #4-8 were actually the costs of capital
improvements to the PMC Facility. (Contested Facts § 46.) That
assertion is not supported by the evidence, which shows that
PMC seeks recovery only of its costs of disposing of the contami-
nated soil. While PMC excavated the soil in question in the pro-
cess of making capital improvements or repairs,
Sherwin-Williams has offered no evidence that PMC has improp-
erly included the costs of the capital improvements in the
amounts it seeks to recover.
Finally, Sherwin-Williams asserts that the disposal of the
contaminated soil in Occurrences #4-8 was unnecessary because
the entire site wi!l have to be remediated, so that PMC should
simply have returned the contaminated soil to the ground and left
it there until the site-wide remediation could be completed. That
argument ignores the evidence as to Occurrence #4 that the IEPA
refused to permit PMC to return the contaminated soil to the
ground unless it had first been treated. We may infer from the
IEPA’s position regarding Occurrence #4 that it would have taken
the same position as to Occurrences #5-8, for there is no evidence
Suggesting that the IEPA’s responses to the later occurrences
would have been any different. As a result, returning the con-
taminated soil to the ground was simply not a viable option for
PMC.
In sum, the evidence shows that PMC’s costs associated
with Occurrences #4-8 were incurred in response to a threat to
human health or the environment and that the costs were neces-
sary to respond to that threat. As such, the response costs were
“necessary” within the meaning of Section 107(a)(4)(B) of CER-
CLA.
-B14-
B. Consistent with the NCP
A party seeking to recover response costs under Section
107(a) must also show that its response actions were consistent
with the NCP. 42 U.S.C. § 9607(a)(4)(B). The 1990 NCP re-
quires only “substantial compliance” with its terms. 40 C.F.R. §
300.700(c)(3)(1). “Immaterial” or “insubstantial” deviations
from the NCP will not render a response action inconsistent with
it. 40 C.F.R. § 300.700(c)(4).
Both CERCLA and the NCP classify response actions as
either “removal” or “remedial” actions. 42 U.S.C. § 9601(23)
(removal) & § 9601(24) (remedial); 40 C.F.R. § 300.5 (removal
& remedial). PMC argues that Occurrences #4-8 are removal ac-
tions only, while Sherwin-Williams asserts that they were reme-
dial. The distinction can be important in determining
consistency with the NCP because certain of its requirements,
such as the public notice requirement, are more stringent for re-
medial actions than for removal actions. Regardless of the clas-
sification of the response action, however, the minimum standard
remains “substantial compliance.”
The 1990 NCP provides that “private parties undertaking
response actions should provide an opportunity for public com-
ment concerning the selection of the response action ...” 40
C.F.R. § 300.700(c)(6). For removal actions, the 1990 NCP re-
quires the designation of a “spokesperson” to “inform the com-
munity of actions taken, respond to inquiries, and provide
information concerning the release.” 40 C.F.R. § 300.415(n)(1).*
“Although that provision speaks of the “lead agency’s” obli-
gation to appoint a spokesperson, a private party performing a re-
sponse action may be expected to fulfill that obligation. See 40 C_F.R
§ 300.700(c)(8)(“any action taken by the lead agency listed in para-
graphs (c)(5) through (c)(7) may be taken by the person carrying out
the response action.”); 55 Fed. Reg. 8795 (March 8, 1990) (“In a pri-
vate party response action, the private party may perform most of the
function of a lead agency. . .; there is no support agency in a private
party cleanup action.”)
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The significance of the public notice requirements is made clear
by the preamble to the plan:
Public participation is an important component of a
CERCLA-quality cleanup, and of consistency with the
NCP. The public — both PRP’s [potentially responsi-
ble parties] and concerned citizens — have a strong in-
terest in participating in cleanup decisions that may
affect them, and their involvement helps to ensure that
these cleanups — which are performed without govern-
mental supervision — are carned out in an environ-
mentally sound manner. Thus, EPA has decided that
providing public participation opportunities should be
a condition for cost recovery under CERCLA.
55 Fed. Reg. at 8795.
Neither the Seventh Circuit nor the other courts of appeals
has spoken on the issue of whether compliance with the public
notice requirements of the 1990 NCP is material, but the majority
of district courts to consider the issue have concluded that it is.
In Alcan-Toyo America, Inc. v. Northem Ill Gas Co., 904 F.
Supp. 833, 836 (N.D. Ill. 1995), the court reasoned:
Public comment is clearly required under 40 C.F.R. §
300.415(m) [addressing community relations require-
ments for removal actions]. This section, excluding a
few inapplicable provisions, is listed as a requirement
with which parties must substantially comply in order
to recover their costs. See 40 C.F.R.
§ 300.700(c)(5)(vi). Under the provision rendering the
section governing removal actions necessary for sub-
stantial compliance, therefore, the public comment re-
quirement for removal actions is prescribed for cost
recovery actions. The EPA, however, has created an
additional separate section, explicitly reiterating the re-
quirement that to be consistent with the NCP the party
must seek public comment. The fact that the NCP lists
the public comment requirement in two separate sub-
-B 16-
sections of the requirements for consistency with the
NCP indicates that a failure to fulfill the requirement
is not an “immaterial or insubstantial deviation| |”
from the NCP’s requirements. 40 C.F.R. §
300.700(c)(4).
Id. at 836. See VME Americas, Inc. v. Hein-Wemer Corp., 946 F.
Supp. 683, 690-93 (E.D. Wis. 1996) and cases cited there at 690.
See also C&C Millwnghi Maint. Co, v. Town of Greenville, Tenn.,
946 F. Supp. 555 (E.D. Tenn. 1996); Bethlehem Iron Works v.
Lewis Indus., 1996 WL 557592, at *58-59 (E.D. Pa. Oct. 1, 1996).
We consider PMC’s activities as to public notice and com-
munity relations before deciding whether Occurrences #4-8 were
removal or remedial actions under the NCP because if PMC did
not substantially comply with the public notice requirement, the
classification of its response actions is a moot point. PMC asserts
that it substantially complied because it notified its most immedi-
ate neighbor, Sherwin-Williams, of Occurrences #4-8 and invited
its participation in the selection of remedial measures. That fact
is undisputed. Sherwin-Williams’ argument that PMC’s motiva-
tion was not an invitation for public comment but rather a de-
mand that Sherwin-Williams pay up does not require us to ignore
such notification, for the NCP does not inquire into motives. As
long as the communication occurred, it can be considered. The
only other notification PMC provided was to its own employees.
(Tr. Trans. at 485.) i
The evidence showed that Sherwin-Williams is PMC’s sole
neighbor to the south and west, that the PMC Facility is bordered
on the east by Doty Avenue and on the north by 115th Street, and
that to the north there are no houses for some distance. (Id.) But
on cross-examination Sherwin-Williams obtained testimony from
one of PMC’s witnesses that to the north across 115th Street
from Sherwin-Williams there are businesses and apartments only
a block or so down the street. (Id. at 543.) That evidence places
a residential and business neighborhood at most a few blocks
away from the PMC Facility. Sherwin-Williams also elicited the
witness’ testimony that PMC did not prepare a formal commu-
-B 17-
nity relations plan, did not publish a notice in any local newspa-
per and did not schedule any public meetings. (Id. at 544-45.)
PMC offered the testimony of one of its experts, Greg Van-
derlaan (“Vanderlaan”), on the issue of the consistency of its re-
sponse actions with the NCP. He testified that in his experience
communities are frequently uninterested in response actions and
that he was aware of no instance in which the community had ob-
jected to the removal of contaminated soil. (Id. at 686-87.) But
consistency with the NCP, including whether a piaintiff has-sub-
stantially complied with its public notice requirement, is a ques-
tion of law. See generally Yellow Freight Sys., Inc. v. ACF
Indus., Inc., 909 F. Supp. 1290, 1299 (E.D. Mo. 1995). Vander-
laan’s testimony regarding his experience does not alter the
NCP’s legal requirement of public notice and community in-
volvement. And, as one court has explained, “Community rela-
tions requirements are diminished, but not abolished, in a
situation in which removal ... is required.” C&C Millwright, 946
F. Supp. at 558.
A handful of courts have concluded that substantial compli-
ance with the NCP existed even where the plaintiff failed to pro-
vide for public comment because a state regulatory agency was
heavily involved in oversight and management of the response
action. See, e.g,,
Polymers, Inc., 918 F. Supp. 945 (D.S.C. 1995); General Elec.
Co. v. Litton Bus, Sys., Inc., 715 F. Supp. 949 (W.D. Mo. 1989),
aff'd, 920 F.2d 1415 (8th Cir. 1990). But PMC has not argued
here that the IEPA’s involvement satisfied PMC’s obligation of
community involvement. And even if it had, the level of the IE-
PA’s involvement in Occurrences #4-8 was significantly lower
than that of the state agencies in those cases. See VME Amen-
cas, 946 F. Supp. at 692 (discussing extensive state agency in-
volvement present in General Elec. and Amenican Color). We
have uncovered no decision in which a court has found substan-
tial compliance with the public comment requirement based upon
actions similar to those of PMC here.
-B 18-
This Court recognizes that letting Sherwin-Williams off the
hook on the basis of lack of public notice does not seem alto-
gether fair to PMC. As the VME Americas court stated in reach-
ing the same conclusion:
[I]t seems a bit unfair for [the defendant], the likely
source of the contamination, to escape much of the fi-
nancial responsibil‘ty for cleaning it up. But that is
what the law requires. Compliance with the NCP “is
[not] reducible to an inquiry into whether the cleanup
was cost-efficient and environmentally sound.”
ics Corp., 748 F. Supp. 373, 384 (E.D. N.C. 1990)].
Congress chose instead to create a detailed regulatory
scheme and decided to make “adherence to the regula-
tory scheme . . . more important than making CERCLA
an unlimited vehicle for cleanup cost recovery. [Id. at
393.] In cases like this, the regulatory scheme may
seem unduly scrupulous and inflexible, but this high-
lights the limited nature of the federal remedy . . . .
Id. at 692-93.
In sum, PMC is not entitled to recover its response costs
associated with Occurrences #4-8 under Section 107(a) of CER-
CLA because its failure to provide for public comment renders
its actions inconsistent with the 1990 NCP. Judgment is there-
fore entered in favor of Sherwin-Williams as to those occur-
rences on Count I. However, Sherwin-Williams has stipulated
that Occurrence #9 was necessary and consistent with the NCP.
So judgment is entered in favor of PMC as to it on Count I. Fi-
nally, PMC and Sherwin-Williams have settled as to Occurrences
#1-3, and PMC’s claims for those costs have been withdrawn.
In the Opinion, this Court also determined that PMC was
entitled to seek contribution for response costs from Sherwin-
aa aa NNN IO cn
-B 19-
Williams under Section 113(f)(1) of CERCLA, 42 U.S.C. §
9613(f)(1). Once again, however, Sherwin-Williams is not liable
under Section 113(f)(1) if this Court allocates all of the response
costs to PMC. See 42 U.S.C. § 9613(f)(1). In deciding the
proper allocation of response costs, we may consider “such equi-
table factors as the court determines are appropriate.” See id. Al-
though PMC seeks both its past response costs and a declaration
that Sherwin-Williams is responsible for the future remediation
of the site, our conclusion that Sherwin-Williams is not liable un-
der Section 107(a) for the costs of Occurrences #4-8 means that
PMC cannot obtain contribution from it under CERCLA for
those costs, for liability under Section 113(f)(1) is premised upon
liability under Section 107(a). 42 U.S.C. § 9613(f)(1). There-
fore, only PMC’s past costs in connection with Occurrence #9
and future remediation costs are at issue under Section 113(f)(1).
There is no limitation on the equitable factors that we may
consider in deciding how the response costs should be allocated.
“{I]n any given case, a court may consider several factors, a few
factors, or only one determining factor, . . . depending on the to-
tality of the circumstances presented to the court.” Environmen-
tal Transp. Sys., Inc. v. Ensco, Inc., 969 F.2d 503, 509 (7th Cir.
1992). Most courts use what are commonly called the “Gore fac-
tors”,” which are:
(i) the ability of the parties to demonstrate that their con-
tribution to a discharge, release or disposal of a hazardous
waste can be distinguished;
(ii) the amount of the hazardous waste involved;
(iii) the degree of toxicity of the hazardous waste in-
volved:
“The “Gore factors” are so named because they were originally
proposed by then-Congressman Al Gore as part of amendment to the
1980 House Superfund bill that did not pass. See id. at 508.
-B 20-
(iv) the degree of involvement by the parties in the gen-
eration, transportation, treatment, storage, or disposal of
the hazardous waste;
(v) the degree of care exercised by the parties with re-
spect to the hazardous waste concerned, taking into ac-
count the characteristics of such hazardous waste; and
(vi) the degree of cooperation by the parties with Federal,
State or !ocal officials to prevent any harm to the public
health or she environment.
Id. at 508. The existence of a contract between the parties that bears
on the allocation of clean-up costs may also be relevant. Kerr-
McGee Chem. Corp. v. Lefton Iron & Metal Co., 14 F.3d 321, 326
(7th Cir. 1994).
Based in large part upon the testimony of PMC’s expert
Ray Forrester (“Forrester”), whose testimony was the most per-
suasive and credible of the expert witnesses, this Court has found
that the remediation of the PMC Facility will be driven by the
presence of leachable lead and other metals, which occur
throughout the entire site at concentrations exceeding applicable
clean-up objectives. We have also found that Sherwin-Williams
is solely responsible for the presence of those hazardous sub-
stances because they are not used or produced by PMC in its op-
erations. Moreover, we have determined that any contamination
caused by PMC will necessarily be remediated in the course of
remediation of the entire site driven by the presence of leachable
lead and other metals. And in the Opinion we found that under
the Purchase Agreement Sherwin-Williams had retained the en-
vironmental liabilities at the site.
On the basis of these factors, which we find controlling un-
der the totality of the circumstances of this case, we conclude
that Sherwin-Williams should be allocated 100% of the costs as-
5/ A
As a consequence, we do not consider all of the enumerated
“Gore factors.”
-B 21-
sociated with Occurrence #9, and we declare that it shall be
solely responsible for all future remediation costs at the PMC Fa-
cility. Therefore, judgment is entered in favor of PMC on Count
II as to Occurrence #9 and the future remediation costs.
Ill. Liability Under the Illinois Contribution Act
(Count lit)
This Court decided some time ago in ruling on Sherwin-
Williams’ motion to dismiss (see Memorandum Opinion and Or-
der of July 6, 1993, 1993 WL 259442) that PMC stated a claim
under the Illinois Contribution Act based upon the environmental
liability imposed upon it by the IEPA (namely, the 4(q) Notice).
PMC seeks to recover some or all of its costs associated with Oc-
currences #4-9 in this clam. Because we have already concluded
that PMC can recover its response costs for Occurrence #9 under
Sections 107(a) and 113(f) of CERCLA, we address the contribu-
tion claim only as to Occurrences #4-8.
To recover under the Illinois Contribution Act based on en-
vironmental liability, a plaintiff must show only that both it and a
third-party are subject to liability in tort to the State and that their
liability arises out of the same injury. People v. Brockman
(“Brockman IT’), 592 N.E.2d 1026, 1029 (Ill. 1992). That the
parties are concurrent or successive tortfeasors is sufficient to sat-
isfy the “same injury” prong; they need not be joint tortfeasors.
Id. at 1030.
This Court has already found that in each of Occurrences
#4-8, Sherwin-Williams was the sole source of the contaminants
found in the excavated soil (or, in the case of Occurrence #5, of a
contaminant that alone required disposal of the soil as a hazard-
ous waste). Although Sherwin-Williams argues that PMC has
contnbuted to the contamination at the PMC Facility, Sherwin-
Williams did not present evidence at trial showing that PMC’s ac-
tions caused the contamination found in the soil during those oc-
currences. Rather, with the exception of toluene and 1,2,4-
trichlorobenzene, all of the hazardous substances identified re-
-B 22-
sulted solely from Sherwin-Williams’ past operations and dis-
posal practices at the site. It is thus clear from the evidence that
Sherwin-Williams is subject to liability in tort to the State for its
contamination of the PMC Facility and that its liability arises
from the same injury (namely, the contamination) as does
PMC’s. Thus, PMC is entitled to contribution from Sherwin-
Williams for its responses costs associated with Occurrences
#4-8.
Sherwin-Williams contends that PMC’s actions so ampli-
fied the costs that it is not entitled to recover them from
Sherwin-Williams. However, the evidence has shown that
Sherwin-Williams’ proposed remedy of returning the contami-
nated soil to the ground, thereby avoiding the disposal costs, was
rejected by the IEPA. Moreover, the mischaracterization of the
hazardous waste in Occurrence #4 was a matter of judgment, as
Sherwin-Williams’ own expert acknowledged when he ques-
tioned the IEPA’s determination. As a result, PMC’s costs asso-
ciated with Occurrences #4-8 were reasonable.
Because the contaminants found in the soil during each of
the occurrences came from Sherwin-Williams’ operations and
not PMC’s, this Court concludes that PMC is entitled to contri-
bution in the amount of 100% of its response costs as to Occur-
rences #4-8. Judgment is entered in PMC’s favor on Count III.
IV. Liability Under RCRA (C Iv)
Section 6972(a)(1)(B) of RCRA permits an action by any
person:
against any person . . . who has contributed or who is
contributing to the past or present handling, storage,
treatment, transportation, or disposal of any solid or
hazardous waste which may present an imminent and
substantial endangerment to health or the environ-
ment... .
EY
-B 23-
42 U.S.C. § 6972(a)(1)(B). Among other things it permits the court
to enjoin any person from contributing to the presence of hazardous
materials and to order such a person to take a specific action to abate
past contamination. 42 U.S.C. § 6972(a). Such an injunction may
require a party to take responsibility for the remediation of a site
contaminated by hazardous waste. Meghrig v. KFC Western, Inc..
116 S. Ct. 1251, 1254 (1996). Section 6972(e) permits a success
plaintiff to recover its attorneys’ fees and costs from the responsible
party. 42 U.S.C. § 6972(e).
A plaintiff must establish three elements to be entitled to
injunctive relief under RCRA. The first is that the conditions at
the site may present an imminent and substantial endangerment.
Craig Lyle Ltd. Partnership v. Land O’Lakes, 877 F. Supp. 476,
480 (D. Minn. 1995). The second is that the endangerment must
stem from a RCRA solid or hazardous waste. Id. And the third is
that the defendant has contributed or is contributing to the han-
dling, treatment, transportation or disposal of such waste. Id.
PMC asserts that its evidence satisfies those three elements.
For the first element, it points to the 4(q) Notice from the IEPA,
which stated that “{t]he releases of hazardous substances at, from,
or attributable to the [PMC Facility] and the continuing threat of
release present an immediate and significant risk of harm to hu-
man health. welfare and the environment.” For the second, it
notes that lead, arsenic and other metals found at the site are
RCRA solid and hazardous wastes. See 40 C.F.R. 261.1(a)(2).
For the third, it argues that the contaminants at issue result from
Sherwin-Williams’ past operations and disposal practices at the
PMC Facility and that such contaminants are also migrating from
the Current Sherwin-Williams Site to the PMC Facility.
Sherwin-Williams challenges PMC’s RCRA claim on two
grounds. First, it asserts that RCRA claims are not available to
non-innocent landowners who have a remedy under Section
113(f) of CERCLA. We find this argument unpersuasive. Noth-
ing in RCRA limits recovery to innocent landowners (who would
most likely have a remedy under Section 107(a) of CERCLA
anyway, depending upon the type of hazardous waste at issue).
-B 24-
While it is clear from the case law that restitutionary relief for
completed remediation efforts is not available, see Meghrig, 116
S. Ct. at 1254-56, there is no prohibition against recovery relat-
ing to contamination that has not been abated. As a result, we
conclude that PMC is entitled to relief under RCRA despite its
remedy under Section 113(f) of CERCLA.
Sherwin-Williams also contends that PMC has not shown
that there is an “imminent and substantial endangerment to health
or the environment” from the site. But the 4(q) Notice shows
that the IEPA thinks otherwise, and while the notice is not con-
clusive on the issue, it is certainly relevant evidence that we may
properly consider. In addition, although Sherwin-Williams as-
serted in its trial brief that Forrester would testify that there is no
“Gmminent and substantial endangerment” presented by the con-
tamination at the site, he in fact testified that leachable lead and
other metals are present at elevated levels in the soil and pose a
risk to the groundwater. (Tr. Trans. at 183).
PMC’s claim regarding migratio of contaminants from the
Current Sherwin-Williams Site is another matter. While its ev:-
dence that Sherwin-Williams was the source of existing contami-
nation at the PMC Facility was extensive, much of the historical
evidence tied the contamination to Sherwin-Williams’ past op-
erations and disposal practices at the site itself. PMC has not
shown that the contamination now present at the PMC Facility
results to any measurable degree from contaminants that have
migrated or are currently migrating from the Current Sherwin-
Williams Site.
This Court concludes that PMC has proven the three ele-
ments of a claim for injunctive relief under RCRA and is there-
fore entitled to an injunction requiring Sherwin-Williams to
remediate the PMC Facility. However, PMC is not entitled to an
injunction requiring Sherwin-Williams to take action to prevent
the migration of contamination from the Current Sherwin-
Williams Site to the PMC Facility. Finally, because PMC is enti-
tled to relief under RCRA, it is also entitled to recover its attor-
-B 25-
neys’ fees and costs from Sherwin-Williams. Judgment is
therefore entered in favor of PMC on Count IV.
V. Declaratory Relief
In Count XII PMC seeks declaratory relief under both the
Illinois Declaratory Judgment Act, 735 ILCS § 5/2-701, and the
federal Declaratory Judgment Act, 28 U.S.C. § 2201. PMC prem-
ises its claim for declaratory relief upon its Section 107(a) CER-
CLA claim. However, PMC has not prevailed on its Section
107(a) claim, and it is therefore not entitled to the declaratory re-
lief it seeks. Therefore, judgment is entered in favor of Sherwin-
Williams on Count XII.
Conclusion
For the reasons set forth in this memorandum opinion and
order, and based upon the findings of fact and conclusions of law
contained herein, this Court enters the following judgment:
1. PMC has failed to prove that it is entitled to re-
lief under Section 107(a) of CERCLA as to Occurrences #4-8,
and judgment is therefore entered in favor of Sherwin-Williams
on Count I as to those occurrences. Sherwin-Williams has stipu-
lated that PMC’s actions as to Occurrence #9 were necessary and
consistent with the NCP, and PMC is therefore entitled to recover
its response costs as to that occurrence from Sherwin-Williams.
Judgment is therefore entered in favor of PMC on Count J as to
Occurrence #9.
2. PMC has proven its claim for contribution under
Section 113(f) of CERCLA. PMC may recover from Sherwin-
Williams 100% of its response costs associated with Occurrence
#9. and Sherwin-Williams is also responsible for the 100% of the
future costs of remediation at the PMC Facility. Judgment is en-
tered in favor of PMC on Count II.
3. PMC has proven its claim under the Illinois Con-
tribution Act and is entitled to recover 100% of its response costs
-B 26-
as to Occurrences #4-8. Judgment is entered in favor of PMC on
Count III.
4. PMC has proved that it is entitled to injunctive
relief against Sherwin-Williams under RCRA. This Court there-
fore orders Sherwin-Williams to take full responsibility for the
future remediation of the PMC Facility. PMC is also awarded its
attorneys’ fees and costs under RCRA in amounts to be deter-
mined later. Judgment is entered in favor of PMC on Count IV.
5. Because PMC did not prevail on its Section
107(a) claim under CERCLA, it cannot show that it is entitled to
declaratory relief. Judgment is entered in favor of Sherwin-
Williams on Count XII.
-
ENTER: /s/ Paul E. Plunkett
UNITED STATES DISTRICT JUDGE
DATED: 4-23-97
-B 27-
United States District Court
NORTHERN DISTRICT OF ILLINOIS
Eastern Division
JUDGEMENT IN A CIVIL CASE
PMC, Inc., a
Delaware Corporation
v. CASE NUMBER: 93 C 1379
The Sherwin-Williams
Company, an Ohio
corporation
O Jury Verdict. This action came before the Court for a tnal by
jury. The issues have been tried and the jury has rendered its ver-
dict.
{J Decision by Court. This action came to a hearing before the
Court. The issues have been heard and a decision has been ren-
dered.
IT IS ORDERED AND ADJUDGED that judgment is entered in fa-
vor of PMC, Inc. on Counts I, I, I and IV and against defendant
Sherwin-Williams Company. Judgment is entered in favor of
Sherwin-Williams Company on Count XII and against plainuff
PMC, Inc.
April 23, 1997 Michael W. Dobbins
Date Clerk
/s/ Shelia Moore
(By) Deputy Clerk
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.