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Acme Printing Ink Co. v. Menard, Inc.

ELR Citation: 26 ELR 20450
Nos. No. 89-C-834, 891 F. Supp. 1289/41 ERC 1967/(E.D. Wis., 06/29/1995) Rulings on summary judgment; new evidence

The court holds that newly discovered evidence regarding the hazardous nature of paint that was subjected to sandblasting created a genuine issue of material fact on whether the used sandblasting sand disposed of at a contaminated site included hazardous paint chips. The court first determines that reconsideration of its earlier order granting a number of defendants summary judgment is appropriate, because (1) the order resulted from a fast-track summary judgment procedure that required plaintiff to comply with an accelerated briefing schedule; (2) the summary judgment motions remained pending before the court for several years, such that the order was based on argument and evidence that was in some circumstances over four years old; (3) given the fast pace of the development of environmental law, the parties should be given the opportunity to reargue their positions with the benefit of new case law; and (4) justice requires that all available information be considered. The court holds that it did not inappropriately apply the summary judgment standard to the fast-track defendants' summary judgment motions, and that it will not reconsider its earlier order on that basis. Plaintiff could not introduce more than a scintilla of evidence tying any defendants' waste to the site.

Addressing new evidence that plaintiff offered against each defendant, the court holds that plaintiff established a prima facie case of generator liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against one of the defendants. Additional evidence that sandblasting sand disposed of at the site contained hazardous substances is sufficient to create a genuine factual issue as to whether the waste disposed of by this defendant was hazardous. The court denies plaintiff's summary judgment motion as to this defendant, however, concluding that the evidence plaintiff introduced is not sufficient for a reasonable jury to find that this defendant disposed of paint-related wastes at the site. Regarding the two other fast-track defendants, the court held that plaintiff has introduced insufficient evidence to show that it could establish that waste from these two defendants was disposed of at the site. Despite plaintiff's discovery of additional paint cans, drums of hazardous chemicals, and drums of vehicle maintenance waste, plaintiff's CERCLA claims against these two defendants are still too speculative. The court next holds that the plaintiff cannot maintain its Resource Conservation and Recovery Act (RCRA) §7002(a)(1)(A) claim that the current owner of the site has operated a hazardous waste facility in violation of the Wisconsin Hazardous Waste Management Plan (WHWMP). Operators of the facility may be held liable under §7002(a)(1)(A) for violating WHWMP regulations, even though disposal took place in the past; however, the current owner cannot be liable for violating the regulations for operating a hazardous waste facility—the owner never operated a hazardous waste facility and, therefore, was never subject to the plan's regulations. Next the court refuses to enter final judgment for another defendant. Although the court has reached a final decision on plaintiff's CERCLA claims against this defendant, the RCRA claim against this defendant remains, and the unadjudicated RCRA claim is closely related to the CERCLA claim. Entry of judgment for other fast-track defendants is appropriate, however, and would be consistent with the purpose of the court's fast-track summary judgment procedure. Unadjudicated claims against these other defendants have no significant factual relationship to the claims against these defendants, nor are there other claims or counterclaims that have any relevance to this judgment.

[Prior decisions in this litigation are published at 23 ELR 21061, 25 ELR 20784, and 25 ELR 21358.]

Counsel for Plaintiff
William S. Roush Jr.
Davis & Kuelthau
111 E. Kilbourn Ave., Ste. 1400, Milwaukee WI 53202
(414) 276-0200

Counsel for Defendant
Robert W. Corey
Menard, Inc.
Legal Department
4777 Menard Dr., Eau Claire WI 54703
(715) 876-5911