“favor.” Vanasco v. National-Louis University, 137 F.3d 962, 964
(7th Cir. 1998). Nevertheless, the party who bears the burden of
proof on an issue may not rest on the pleadings, but must
affirmatively demonstrate that there is a genuine issue of material
fact that requires trial. Warsco v. Preferred Technical Group, 258
F.3d 557, 563 (7th Cir. 2001). A genuine issue of material fact is
not shown by the mere existence of “some alleged factual dispute
between the parties,” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247 (1986), or by “some metaphysical doubt as to the
material facts.” Matsushita Electric Industrial Company v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). A genuine issue of material
fact exists when “there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.”
Anderson, 477 U.S. at 249. “If the evidence [offered by the
nonmoving party] is merely colorable, or is not significantly
probative, summary judgment may be granted.” Id. at 249-50.
DISCUSSION
Motion to Strike

Lockformer moves to strike Plaintiffs’ Statement of Material
Facts submitted in Opposition to Lockformer’s Motion for Summary
Judgment. Lockformer contends that this Court should strike
Plaintiffs’ Statement in its entirety because it “appears to
attempt to establish plaintiffs’ entire liability case .. . [and]

is improper.” Whatever Plaintiffs Statement might “appear to


‘by something otherwise perceptible to the senses. Id. at 278. The
court distinguishes gross physical invasions from nuisances such as
smoke, fumes, dust, vibration or noise produced by the defendant
that are more ephemeral in nature but nevertheless results in an
invasion of another’s use and enjoyment of their property. Id.

In the present case, the class area has certainly been
physically invaded by a substance that interferes with the property
owners’ use and enjoyment of the land. The fact that the TCE was
not immediately perceptible to the senses or, as Lockformer rather
crassly points out, that certain class members stated that their
well water “tasted good” is simply irrelevant when there is
evidence of actual physical invasion of class area property by TCE.
Plaintiffs present substantial evidence of invasion of the use and
enjoyment of class area property that is both substantial and
unreasonable, See Nutrasweet Co. v. X-L Engineering Corp., 933
F.Supp. at 1424. Lockformer’s motion for summary judgment as to
Count VII is therefore denied.

RCRA Subsection (a) (1) (A)

Count II of Plaintiffs’ Third Amended Complaint alleges
violation of RCRA § 6972(a)(1)(A) for “the failure of the
Lockformer Defendants to comply with the corrective standards,
requirements and regulations effective under RCRA, Subchapter IX
and Title 40, Chapter I, Section 280 of the Code of Federal

Regulations.” Lockformer correctly asserts that it cannot be


“registering “non-detects” may be open to critique on cross-
examination, but Plaintiffs’ evidence on this point prevents the
Court from entering summary judgment in Lockformer’s favor. There
remains a genuine issue of fact on the threat of future TCE
contamination spreading throughout the class area.

Lockformer’s motion for modification of the class to exclude
the “non-impacted” members must also be denied at this time. In
order to maintain a class action, Plaintiffs must satisfy the
requirements of Fep.R.Civ.P. 23(a) and (b). Retired Chicago Police
Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993). Indeed,
“the court has a duty to monitor its class decisions in light of
the evidentiary development of the case; the court must define,
redefine, sub-classify, and decertify as appropriate in response to
the progression of the case from assertion to facts.” Hickey v.
Great Western Mortgage Corp., 1995 WL 121534, *3 (N.D. Ill.
Mar. 17, 1995). This Court’s order of February 23, 2001 previously
defined the Class as those who “own or reside in property that has
been impacted, or a threat exists that it will be impacted, by
chlorinated solvents released at or from the Lockformer and/or Met-
Coil Properties.” As stated above, genuine issues of material fact
still remain as to the scope and nature of the threat of future
contamination within the class area. Modification of the class to
exclude those individuals having wells currently registering

negative TCE readings is not justified at this time.


‘attempt to establish,” the facts enumerated by Plaintiffs in their
Statement are generally relevant to rebutting the contentions
raised in Lockformer’s motion. Nevertheless, in reaching its
ruling, the Court has disregarded any irrelevant or inadmissable
portions of Plaintiffs’ Local Rule 56.1 submissions. Lockformer’s
Motion to Strike is denied.

“Non-Impacted” Class Members and Modification of the Class

Lockformer seeks summary judgment as to those it characterizes
as “non-impacted” class members or, in the alternative,
modification of the certified class. Lockformer characterizes as
‘“non-impacted” those homes in the class area where the well water
_has not yet tested positive for TCE. However, for purposes of
CERCLA liability Plaintiffs need only show that it is more likely
than not that the release or threatened release of hazardous
substances has occurred, and that the release caused them to incur
response costs. Nutrasweet Co. v. X-L Engineering Corp., 933
F.Supp. 1409, 1420 (N.D. Ill. 1996), aff’d., 227 F.3d 776 (7th Cir.
2000). Lockformer offers numerous critiques of Plaintiffs’ expert
Dr. Ball’s opinions on the threat of future contamination
throughout the class area. Nowhere in its motion, however, does
Lockformer offer testimony of any of its own experts affirmatively
stating that there is no threat of widening class-area TCE
contamination in the future. Dr. Ball’s deposition testimony on

the probability of future TCE contamination in wells currently


supply, would undoubtedly be contingent on NCP compliance.
However, the costs of bottled water and water filtration systems
seems more akin to the preliminary emergency costs associated with
the initial period of site investigation and monitoring.
Lockformer’s motion for summary judgment on Count I is therefore
denied.
Private Nuisance

Relying on In re Chicago Flood Litigation, 176 I11.2d 179, 680
N.E.2d 265 (1997), lLockformer contends that Plaintiffs must
establish a physical invasion of their property that is perceptible
to the senses in order to prevail on a claim for private nuisance.
Lockformer’s contention is premised on a fundamentally flawed
reading of Chicago Flood. The Chicago Flood litigation arose when
tunnels beneath Chicago’s business district became flooded with
water from the Chicago river. The trial court dismissed the
private nuisance claims of those plaintiffs who did not suffer a
physical invasion of their property by the flood waters. Id. at
277. In affirming this decision, the Illinois Supreme Court
reiterated the hornbook rule that “a nuisance is an interference
with the interest in the private use and enjoyment of the land, and
does not require interference with the possession.” Id. (quoting
Restatement (Second) of Torts § 821D, Comment d, at 101 (1979)).
A careful reading of the court’s holding makes clear that the

invasion must either be an obvious physical invasion or an invasion


co semeamemmes sf

Minute Order Foran (06/97)

United States District Court, Northern District of Illinois

‘omer naned ice | Harsy. Leinenweber | sing adgif Orr
SE NUMBER 00 C 7164 DATE 5/3/2002

CASE Teresa LeClereq, et vs. The Lockformer Company, et al
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented,]

DOCKET ENTRY:

«l) a Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) o Answer brief to motion due___. Reply to answer brief due___.
(Co) i) Ruling/Hearing on set for at
(5) o Status hearing[held/continued to] [set for/re-set for] on set for at
oO Pretrial conference[held/continued to] [set for/re-set for] on set for ate
oa Trial[set for/re-set for] on at
(8) oO {Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CFRCP4(m) OGeneral Rule21 CIFRCP4i(a)(1) CO FRCP41(a)(2).
(10) «x (Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: Defendant
Lockformer’s Motion to Strike is DENIED. Lockformer’s Motion for Summary Judgment is GRANTED
as to Counts II and III and DENIED as to Counts I and VII.
(11) {For further detail see order attached to the original minute order.]

No notices required. advised in open court.

No notices required
a‘ number of notices.

Document.
Number

Notices mailed by jucige’s staff.

MAY 6 2002

Notified counsel by telephone. date docketed

Docket

Mail AO 450 form. |

Copy to judge/magistrate judge.

date mailed notice

courtroom
deputy’s
initials

WAP

“ ‘Date/time reeived in
central Clerk’s Office

mailing deputy initials



‘endangerment, including EPA actions prosecuted under § 106 of
CERCLA. See 42 U.S.C. § 6972(b) (2) (B) (i, iv). The EPA has entered
such an administrative order against Lockformer pursuant to § 106
of CERCLA. Plaintiffs RCRA § 6972(a)(1)(B) claim is therefore
barred and Lockformer’s motion for summary judgment on Count III is

granted. See Supporters to Oppose Pollution, Inc. v. Heritage

Group, 973 F.2d 1320, 1323 (7th Cir. 1992
CONCLUSION

For the reasons set forth above,/Defendant Lockfoymer’s Motion

to Strike is DENIED. Lockformer’s/Motion for Summm@ry Judgment is
GRANTED as to Counts II and III ard DENIED as tofCounts I and VII.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

Date: J (44)

-1l1l-


“Liable for RCRA violations predicated on violations of 40 C.F.R.
§ 280 because that section only applies to owner/operators of
underground storage tanks. Plaintiffs’ expert Dr. Ball conceded in
his deposition testimony that the vapor degreaser vault at
Lockformer could not be characterized as an underground storage
tank under RCRA. Plaintiffs seek to avoid this obvious defect in
the complaint by stating that “(p]laintiffs’ tank-related claim is
substantially embodied in the report of their expert .. . rather
than in their Complaint.” Indeed, Dr. Ball’s report does reference
SS 40 C.F.R. 260.10, 262.34 and 265.197, the regulations on which
RCRA liability could have been properly attributed to Lockformer.
However, the fact that Dr. Ball understood that 40 C.F.R. § 280 did
not apply to Lockformer does not excuse Plaintiffs’ failure to
properly plead their RCRA § 6972(a)(1) (A) claim. Accordingly,
Lockformer’s motion for summary judgment on Count II is granted.
RCRA Subsection (a) (1) (B)

Lockformer also moves for summary judgment on Count III
claiming that Plaintiffs’ RCRA § 6972(a) (1) (B) claim is barred by
42 U.S.C. § 6972(b) (2) (C) (i) because the State of Illinois has
filed an identical action in state court. Plaintiffs offer no
argument in opposition. Moreover, the language in § 6972 (b) (2) (B)
that establishes the jurisdictional bar for RCRA § 6972(a) (1) (B)
actions prohibits such actions if the United States EPA is pursuing

an action to address the activities which are creating the alleged

- 10 -


CERCLA

Lockformer moves for summary judgment on Count I of
Plaintiffs’ Third Amended Complaint stating that Plaintiffs
recovery of response costs under CERCLA § 107(a) (4) (B) is barred by
their failure to comply with the National Contingency Plan (“NCP”
as required. Under CERCLA, a person is only liable for private
party response costs to the extent that these costs were incurred
consistent with the NCP. See 42 U.S.C. § 9607(a) (4) (B); 40 C.F.R.
§ 300.700(c). The NCP requires, inter alia, that the proposed
clean-up method for which costs will be incurred be submitted for
public comment before it is implemented. 40 C.F.R. § 300.700(c) (6).
However, initial investigation, site-assessment and monitoring
costs are recoverable under § 107(a) of CERCLA irrespective of
compliance with NCP requirements. See PMC, Inc., v. Sherwin-
Williams Co., 151 F.3d 610, 616-17 (7th Cir. 1998); Continental
Title Co. v. Peoples Gas Light and Coke Co., 1999 WL 753933, ¥*3
(N.D. Ill. Sept. 15, 1999).

A closer question is presented by the issue of whether CERCLA
cost recovery for a temporary alternative water supply (bottled
water and/or water filtration systems) requires prior public
comment and other NCP compliance. This particular issue has not
yet been addressed by the Seventh Circuit. Recovery of CERCLA
costs associated with a permanent solution to the water

contamination problem, such as connection to the municipal water


‘Lockformer property have migrated and continue to migrate in liquid
and vapor form in a southerly direction toward Plaintiffs’ homes,
contaminating the soil, groundwater, and domestic water supply in
the area. Plaintiffs further allege that Lockformer has known for
many years of this threat to Plaintiffs and has intentionally and
knowingly failed to notify Plaintiffs of these threats. Plaintiffs
allege that Lockformer’s negligent acts and omissions include
improper handling, storage, use, disposal, investigation and
cleanup of the hazardous substances, and improper maintenance and
operation of equipment using TCE and other hazardous substances.
Lockformer now moves for summary judgment on Count I (CERCLA),
Counts II and III (RCRA), and Count VII (Private Nuisance).
Lockformer also seeks summary judgment as to “non-impacted” class
members or, in the alternative, modification of the certified
class.
MOTION FOR SUMMARY JUDGMENT
Standard

Summary judgment is appropriate where “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Fep.R.Civ.P. 56(c). The court
must “review the record in the light most favorable to the

nonmoving party and draw all reasonable inferences in that party’s


‘willful and wanton misconduct (Count IX). Before the Court is

Lockformer’s Motion for Summary Judgment pursuant to FEeD.R.CiIv.P. 56

and Lockformer’s Motion to Strike Plaintiffs’ Statement of Material

Facts in Opposition to Lockformer’s Motion for Summary Judgment.
BACKGROUND

Lockformer existed as an Illinois corporation from about
December 6, 1946 until October 2000 when it merged with, and became
a division of, Met-Coil. Since about June 2000, Mestek has owned
or operated Lockformer and Met-Coil. Lockformer operates a
manufacturing facility located at 711 Ogden Avenue in Lisle,
Illinois, and Met-Coil owns property directly adjacent to the
Lockformer property. Plaintiffs own and reside on property located
directly south of the lLockformer and Met-Coil properties.
Plaintiffs rely solely on private wells as the source of water for
their homes.

At all relevant times, lLockformer maintained a metal
fabrication business at the Lisle facility, and as part of that
business Lockformer maintained a metal degreasing operation.
Beginning in 1968 and continuing through at least 1997,
Lockformer’s degreaser utilized chlorinated solvents, including
trichloroethylene (“TCE”). Plaintiffs allege that the TCE was
stored in a rooftop storage tank and that when the rooftop tank was
filled, solvents, including TCE, spilled directly onto the ground.

Plaintiffs contend that the hazardous substances released from the


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION MAY ~3 2002

TERESA LeCLERCQ, AL LeCLERCQ,
individually, and on behalf of
all persons similarly
situated, Case No. 00 C 7164

Plaintiffs,
Hon. Harry D. Leinenweber
v.

THE LOCKFORMER COMPANY, a
division of MET-COIL SYSTEMS
CORPORATION, a Delaware
corporation, MESTEK, INC., a
Pennsylvania corporation, and
HONEYWELL INTERNATIONAL, INC.,
a Delaware corporation,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiffs Teresa LeClercq and Al LeClercq, individually and
on behalf of a class of similarly situated persons (the
“Plaintiffs”), bring this class action against Defendants, The
Lockformer Co. (“Lockformer”), Met-Coil Systems Corp. (“Met-Coil”),
Mestek, Inc. (“Mestek”) (collectively, “the Lockformer Defendants”),
seeking entitlement to cost recovery pursuant to Section 107(a) of
the Comprehensive Environmental Response, Compensation and
Liability Act (“CERCLA”), 42 U.S.C. § 9607(a) (Count I and X), the
Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C.
§ 6972(a) (Counts II, III, IV and V), and alleging negligence

(Count VI), private nuisance (Count VII), trespass (Count VII), and

255