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Akzo Coatings, Inc. v. Aigner Corp.

ELR Citation: 26 ELR 20837
Nos. No. 3:91-CV-570RM, 909 F. Supp. 1154/(N.D. Ill., 10/25/1995) motion to reconsider granted

The court reverses portions of a prior decision that held plaintiffs in a cost recovery action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) not liable on counterclaims for soil contamination at two areas of a contaminated site; the court allows defendants to offer proof of additional contamination; and the court denies defendants' motions for clarification except to hold that its prior decision was interlocutory. The court first holds that since it could not enter final judgment in the potentially responsible parties' (PRPs') favor on portions of the settling defendants counterclaim, the court's prior order was interlocutory. The court next denies the settling defendants' motion for clarification that its prior decision did not foreclose their counterclaims with respect to areas not earmarked for remediation and nonremedial response costs. The court's interlocutory findings merely foreclose the settling defendants' opportunity to assert those claims to the extent they are affected by those findings.

The court next holds that it erred in analyzing plaintiffs' summary judgment motion on the settling defendants' counterclaims under a theory that plaintiffs would not be liable if they could prove that the harm was capable of reasonable apportionment. Although this appeared to be the rule at the time of the court's decision, the Seventh Circuit foreclosed the use of such an affirmative defense to liability in Town of Munster v. Sherwin-Williams Co., 24 ELR 21108 (7th Cir. 1994). Furthermore, although application of the divisibility defense is sensible in a cost recovery suit brought by the government, it does not make sense in a suit between PRPs because the parties, if liable, are responsible only for the damages they actually caused.

The court next reverses its prior decision with respect to a soil pocket in one area of the site to allow the settling defendants to attempt to prove that the soil pocket contained volatile organic compounds (VOCs) in addition to polychlorinated biphenyls (PCBs). In its prior decision, the court held that since plaintiffs' waste did not contain PCBs, they could not be held liable for any harm caused solely by PCBs. The court held that they were thus not liable for PCB contamination of the soil pocket. The settling defendants' submission in their motion for partial reconsideration, however, creates a genuine issue as to whether the soil pocket contained VOCs. The court also reverses its prior decision with respect to a soil pocket at a different area, because plaintiffs admit that the area might contain at least an inconsequential quantity of VOCs. Settling defendants may attempt to prove that the soil pocket contained VOCs in addition to PCBs. The court also reverses its previous order to the extent it held that the only reasonable inference to be drawn from the available evidence was that a discharge by one of the settling defendants caused the groundwater contamination at its facility. The court reconsiders its findings in the interest of justice even though the settling defendants did not raise a genuine issue as to this matter in their response to the PRPs' cross-motion. Finally, the court denies the PRPs' motion to strike a paragraph of the settling defendants' amended counterclaim. Motions to strike are not favored motions and should be granted with caution.

[Prior decisions in this litigation are published at 24 ELR 21254, 25 ELR 21339, and 26 ELR 20797.]

Counsel for Plaintiffs
Timothy W. Woods
Jones, Obenchain, Ford, Pankow, Lewis & Woods
1800 Valley American Bank Bldg.
P.O. Box 4577, South Bend IN 46634
(219) 233-1194

Counsel for Defendants
Pierre C. Talbert Jr.
Foley & Lardner
One IBM Plaza
330 N. Wabash St., Ste. 3300, Chicago IL 60611
(312) 755-1900