The denial of Orix’s motion as to Count 2, however, is without prejudice. The Court is
unwilling to proceed blithely to trial — likely an expensive affair with multiple experts — without
some idea of the basis upon which plaintiffs contend that hazardous waste was disposed of at the
Rubloff site during the period that ARC is claimed to have operated it. In this regard, the Court
does not intend to go treasure-hunting through the undifferentiated mass of paper that plaintiffs
provided as part of their response to Orix’s motion. The Court therefore directs plaintiffs to file,
on or before October 20, 2003, a supplemental summary judgment response which details the
evidentiary basis for their contention that hazardous waste was disposed of during ARC’s alleged
operation of the site (or whatever other basis plaintiffs have for imposing liability on Orix). This
is to be done in the same manner as plaintiffs would be required to do in responding to a motion
summary judgment — that is, with affidavits, documents, and whatever other admissible evidence
plaintiffs can muster. In the same supplemental response, plaintiffs should also provide whatever
arguments and authorities they believe support their claim of liability. This supplemental
response is limited to ten pages. Defendants are directed to file a supplemental reply, likewise
limited to ten pages, on or before October 30, 2003.

Conclusion

For the reasons stated above, defendant Orix’s motion for summary judgment [docket #
52-1] is granted as to Count 1 but is otherwise denied without prejudice to further consideration
following the Court’s receipt of the supplemental memoranda referenced above. The ruling date
of October 23, 2003 is vacated and reset to November 6, 2003 at 9:30 a.m. Orix’s alternative
motion for summary judgment as to certain co-defendants [docket #52-2] is denied as moot, as

those defendants’ cross-claims were previously dismissed. Plaintiffs’ motion to amend exhibits


14. But that is not what the statute says. Though a “release” or “threatened release” is required
as a basic predicate for CERCLA liability, to impose liability on a person as an “operator” for
clean-up costs following a release or threatened release, the statute does not require the release to
have occurred during the time that the person operated the facility. Rather, for purposes of this
case the question is whether ARC, “at the time of disposal of any hazardous substance owned or
operated [a] facility at which ... hazardous substances were disposed of.” 42 U.S.C. §9607(a)(2)
(emphasis added).

An “operator” is a person or entity that manages, directs, or conducts operations having to
do with the leakage or disposal of hazardous waste, or decisions about compliance with
environmental regulations. United States v. Bestfoods, 524 U.S. 41, 66-67 (1998). There is
sufficient evidence -- indeed, some of it accompanied Orix’s motion — to permit a reasonable fact
finder to determine that ARC qualified as an operator of the Rubloff Landfill during all, or at
least part, of the time it managed the shopping center. See DX 23, 24; Cain Dep. 74-76; see
generally PX D (including correspondence to and from ARC about issues regarding the site).

To establish Orix’s liability, plaintiffs must also provide evidence from which one
reasonably could find that hazardous wastes were disposed of during the period that ARC
arguably operated the property. But because of the way Orix argued the motion — focusing on the
timing of a “release” rather than the timing of disposal — plaintiffs responded in kind. Thus the
Court does not have the information necessary to determine whether summary judgment is

proper. For that reason, Orix’s motion is denied as to Count 2.'

' The Court is unsure of the status of Count 3, which sets forth a claim for declaratory
relief, so the same ruling applies to that Count.


[docket #64-1] was previously granted and is therefore terminated.

WALLIN AMM,

MATTHEW F. KENNELL’
United States District Judg
Date: October 9, 2003



Minute Order Form (06/97)

United States District Court, Northern District of Illinois

ime of Assi, Sitting J if Other
serge Magatate Judge Matthew F. Kennelly than Assigned Judge
CASE NUMBER 02 C 2445 DATE 10/9/2003
CASE Waukegan Community vs. Orix
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
of the motion being presented.]

MOTION:

DOCKET ENTRY:

(1) Oo Filed motion of [ use listing in “Motion” box above.]

(2) i Brief in support of motion due

Q) oO Answer brief to motion due___. Reply to answer brief due.

(4) Oo Ruling/Hearing on set for at

(5) im Status hearing[held/continued to] [set for/re-set for]on__setfor___at

(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__setfor__-—at__.

(a) oO Trial{set for/re-set for]on____at

(8) Qo [Bench/Jury trial] [Hearing] held/continued to___at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) OLocal Rule 41.1 OFRCP41(a)(1) O FRCP41(a)(2).

(10) {Other docket entry] For the reasons set forth on the attached Memorandum Opinion and Order,

defendant Orix’s motion for summary judgment (52-1) is granted as to Count 1 but is otherwise denied without
prejudice to further consideration following the Court’s receipt of the supplemental memoranda referenced above.
The ruling date of 10/23/03 is vacated and reset to 11/6/03 at 9:30 a.m. Orix’s alternative motion for summary
judgment as to certain co-defendants (52-2) is denied as moot, as those defendants’ cross claims were previously
dismissed. Plaintiff's motion to amend exhibits was previously granted and therefore terminated (64-1).

(11) WH [Por further detail see order attached to the original minute order.]

v No notices required, advised in open court.

No notices required.
01 a umber of notices

OCT 16 2063

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

date mailed notice
courtroom.

OR deputy’s
initials

mailing deputy iniiats



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

WAUKEGAN COMMUNITY SCHOOL
DISTRICT NO. 60, et al.,

Plaintiffs,
vs. Case No. 02 C 2445

ORIX REAL ESTATE EQUITIES, INC.,

www we SS ww

Defendant.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Defendant Orix Real Estate Equities, Inc., the successor to Arthur Rubloff and Company
(ARC), has moved for summary judgment in its favor on the claims of plaintiffs, Waukegan
Community School District No. 60, the City of Waukegan, and various others. The plaintiffs are
a group of “potentially responsible persons” who owned and operated the so-called Yeoman
Creek Landfill Superfund Site from 1958 through 1969. They incurred expenses in cleaning up
the site under the direction of the United States Environmental Protection Agency and sued Orix
and others under CERCLA, 42 U.S.C. §§9607(a), 9613(f) & (g)(2), to recover some or all of
those expenses. Following a number of settlements, Orix is the only remaining defendant.

From the mid-1960's through the mid-1980's, Orix’s predecessor ARC managed the
Waukegan Shopping Plaza for the James Cain family, which owned the plaza and adjacent land.
Waste was evidently disposed of on the adjacent property, which has come to be known as the

Rubloff Landfill. This property was just to the south of a landfill called the Edwards Field


Landfill, which was adjacent to Yeoman Creek. Though the Yeoman Creek Landfill, strictly
speaking, was on a separate parcel to the north of the Edwards Field Landfill that straddled the
Creek, the United States Environmental Protection Agency caused the three areas to be cleaned
up as one, and the overall project was referred to as the Yeoman Creek Landfill Superfund Site.
As part of the clean-up, the plaintiffs were required to excavate the Rubloff Landfill and relocate
its contents to the Edwards Field Landfill.

The plaintiffs contend that they had nothing to do with the Rubloff Landfill; they want to
shift to Orix all or part of the expenses of that aspect of the clean-up. In Count 1, they essentially
seek to shift all of those expenses to Orix. The Court agrees with Orix, however, that as
“potentially responsible persons” responsible for clean-up of the overall site designated by the
EPA, plaintiffs may not maintain a cost recovery action against Orix but instead are limited to a
contribution action under 42 U.S.C. §9613(f). See, e.g., Pneumo Abex Corp. v. High Point,
Thomasville & Denton R., 142 F.3d 769, 776 (4th Cir. 1998); Akzo Coatings, Inc. v. Aigner
Corp., 30 F.3d 761, 764-65 (7th Cir. 1994). The entire area referred to as the Yeoman Creek
Landfill Superfund Site was identified by the EPA as a single facility or site, and plaintiffs have
provided the Court with no basis upon which that determination reasonably could be disputed.
Orix is therefore entitled to summary judgment on Count 1 of plaintiffs’ complaint.

Count 2 sets forth a claim for contribution, in other words a request to shift to Orix its
appropriate share of the clean-up costs. Under 42 U.S.C. §9613(f), Orix’s liability depends on
whether it is liable or potentially liable for response costs under 42 U.S.C. §9607(a). Orix
argues that this, in turn, depends on whether ARC operated the Landfill at the time of a release or

threatened release of hazardous substances. Orix SJ Mem. at 4, 5, 7; Orix SJ Reply at 10, 12, 13,