ELR Citation: ELR 21339
No(s). S91-570M (N.D. Ind. Oct 19, 1994)

The court rules on cross-motions for summary judgment on the issue of liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for hazardous substance contamination at the Kingsbury Industrial site in LaPorte County, Indiana. Plaintiffs are two paint manufacturers that arranged for the site owner to transport, store, and reclaim used solvents at the site. Settling defendants are parties to a consent decree that requires them to undertake investigation and remedial action at five facilities on the site. The court first grants the settling defendants' motion for leave to file a statement of genuine issues instanter. Plaintiffs have not been prejudiced by the settling defendants' failure to file with their summary judgment motion a statement of genuine issues setting forth the material facts that they contend are disputed. The settling defendants' summary judgment motion confronted plaintiffs' summary judgment motion on its merits and identified the disputed facts, and plaintiffs addressed the contested facts in their reply brief.

The court next denies the settling defendants' motion for partial summary judgment on their counterclaim to recover response costs from plaintiffs under CERCLA §107(a). Following the Seventh Circuit's decision in Akzo Coatings v. Aigner Corp., 24 ELR 21254 (1994), the court holds that the settling defendants' claim is a "quintessential claim for contribution" under CERCLA §113(f). Thus, the settling defendants cannot hold plaintiffs jointly and severally liable for response costs they have incurred or may incur at the site. The court next holds that the harm is divisible based on geographic location. Within the site as a whole, a number of noncontiguous areas of contamination appear, including seven distinct areas of soil contamination, three distinct areas of groundwater contamination, and two distinct areas suspected to contain buried drums.

The court next addresses plaintiffs' objections to evidence in support of the settling defendants'summary judgment motion. The court holds that with respect to what a confidential informant told one investigator about the site, the investigator's testimony is inadmissible under the residual hearsay exceptions in Fed. R. Evid. 803(24) and 804(b)(5). The settling defendants have not complied with the rules' notice requirements, because they have not provided plaintiffs with the declarant informant's name and address. Moreover, the court cannot determine whether the informant's statements have any indicia of trustworthiness. The court lacks information to evaluate the informant's personal knowledge, general truthfulness, or consistent reputation. Further, the informant's statements were not made under oath and there is no indication that the informant was subjected to cross-examination. The court rejects the settling defendants' contention that because a U.S. magistrate judge accepted the informant's statements as probable cause to issue a search warrant, the information should be admissible in this case. The rule that a probable cause finding may be based on hearsay evidence for purposes of issuing a search warrant does not apply to summary judgment motions. The court next holds inadmissible documents attached to the affidavit of an employee of the site owner. One document has not been authenticated and was not prepared by the employee or in the regular course of business. Also, the employee does not claim to have personal knowledge of the document's contents or of the events referred to in two other documents. The court next declines to strike one expert's affidavit that affirms his opinion that there is no scientific basis to determine the contribution of a specific company's wastes to the soil and groundwater contamination at the site or to apportion the costs of remedying the environmental harm at the site on the basis of a specific company's wastes. This expert's affirmations are material to this case and he has laid a proper factual foundation for his opinion.

Turning to the merits of plaintiffs' motion for summary judgment on liability, the court separately addresses the give facilities on site. The court holds that absent evidence that plaintiffs' used solvents contained polychlorinated biphenlys (PCBs), they could not have caused contamination associated with a 500-cubic-yard pocket of PCB-contaminated soil at the first facility. The court also holds that there is a question of fact whether hazardous wastes found in used solvents that the plaintiffs sent to the facility between 1981 and 1985 were released into, and thus contributed to the contamination of, a 12,600-cubic-yard mound of soil and the groundwater. Regarding the second facility, the court grants plaintiffs' motion with respect to a 500-cubic-yard pocket of PCB-contaminated soil, but denies plaintiffs' motion with respect to a 7,000-cubic-yard pocket of soil contaminated with volatile organic compounds. There is a evidence that hazardous waste material similar to that which plaintiffs delivered to the first facility was taken to, stored at, and released into the soil from the second facility during the early 1980s. The court next holds that there is a question of fact as to whether the used solvents that plaintiffs sent to the first facility were released at a third facility. The court rejects plaintiffs' claim that there is no environmental harm where liquids containing hazardous substances were allegedly released on a road behind the third facility. According to affidavits, the road where the releases allegedly occurred and the area where storage tanks were cleaned are both near soil and groundwater contamination. The court next holds that the settling defendants have submitted no evidence that drums stored at the fourth facility were attributable to plaintiffs, that the drums contained any waste connected with paint, or that the drums caused the groundwater contamination near the facility. The only reasonable inference that can be drawn is that the facility operator's discharge of thousands of gallons of wastewater onto the ground in 1987 caused the contamination. Finally, although the settling defendants claim that between 1981 and 1985 some of the waste materials plaintiffs sent to the first facility were moved to the fifth facility, the court can find in the evidence no references to releases occurring at the fifth facility between 1981 and 1985.

[A prior decision in this litigation is published at 24 ELR 21254.]

Counsel for Plaintiffs
Timothy W. Woods
Jones, Obenchain, Ford, Pankow, Lewis & Woods
1800 Valley American Bank Bldg., South Bend IN 46634
(219) 233-1194

Counsel for Defendants
Pierre C. Talbert Jr., Christopher W. Brownell
Foley & Lardner
One IBM Plaza
330 N. Wabash Ave., Chicago IL 60611
(312) 755-1900