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

Plaintiffs’ seek an order granting partial summary judgment
and finding that the Lockformer site is the source of class area
groundwater contamination. However, it should be noted that
imposition of CERCLA liability does not require a finding that TCE
from Lockformer, to the exclusion of all other sources, caused the
contamination in the class area. Plaintiffs need only establish
that it is more likely than not that the release or threatened
release of hazardous substances from the facility occurred, and
that the release caused them to incur response costs. See

Nutrasweet Co. v. X-L Engineering Corp., 933 F.Supp. 1409, 1420


data collected over a two-year period from 1997-1998 by the Village
of Downers Grove on bedrock groundwater flow in the area indicates
that the class area is not hydrologically down-gradient from the
Ellsworth Industrial Park. Finally, Prickett’s opinion was
contradicted by Lockformer’s own consultant, Ron St. John, when he
stated in a hearing that “all the indications we have on the
Lockformer site is, in the bedrock, that the groundwater flows to
the southeast, towards the industrial park.”

Neither Prickett, nor any other Lockformer expert, has
provided the Court with its own independent model, testing results
of soil samples, hydrologic or other technical data to support the
speculation that the Ellsworth Industrial Park or any other
neighboring site is the actual source of the TCE in the class area.
The assertion of “mere possibility . . . [is] not enough to
forestall summary judgment.” Hamm v. Runyon, 51 F.3d 721, 724 (7th
Cir. 1995); see also Nutrasweet, 933 F.Supp. at 1422 (stating that
“mere speculation as to possible [alternative] sources of
contamination is not enough” to defeat Plaintiff’s motion for
partial summary judgment on issue of CERCLA liability). Presented
with substantial credible evidence of the Lockformer site as the
source of the TCE in the class area, and with nothing more
substantial to support Defendants’ hypothesis of other possible
sources of TCE, no reasonable jury could return a verdict in favor

of Defendants finding that Lockformer is not the source of the TCE


and the amount released. Defendants do not, however, challenge the
central fact the TCE was released into the soil and shallow
groundwater at the Lockformer facility.

Groundwater Contamination From The Lockformer Site
Release Migrated In A Southerly Direction Toward
And Into The Class Area Groundwater

Plaintiffs point to a substantial amount of evidence
indicating that the TCE released on the lLockformer site
contaminated the groundwater and migrated in a southerly direction,
contaminating the groundwater in the class area. The facts
indicating a southerly migration of TCE from Lockformer to the

class area include:

A. The surface elevation of the Lockformer site
ranges from 715 feet above sea level at the
north end of the property to 684 feet above
sea level at the southern portion of the site.
South of the Lockformer site, the surface
elevation continues to decrease to 670 feet
above sea level before it begins to increase
again toward the class area.

B. The Illinois Environmental Protection Agency
(“IEPA”) determined that the groundwater flows
from the Lockformer property in a southerly
direction toward the class area based on
ground water elevation measurements collected
by Parsons Engineering Science personnel from
three class area piezometers installed by
Lockformer’s own environmental consultant
Carlson Environmental and two Lockformer
monitoring wells completed in the bedrock.

Cc. Lockformer environmental consultant Ron St.
John stated on October 12, 2001 that “all the
indications we have on the Lockformer site is,


(N.D, Tll. 1996), aff’d., 227 F.3d 776 (7th Cir. 2000); Dedham
Water Co. v. Cumberland Farms Dairy Inc., 889 F.2d 1146, 1154 (lst
Cir. 1989) (stating that “every court that has addressed this
issue . . . has held that it is not necessary to prove actual
contamination of plaintiff’s property by defendant’s waste in order
to establish liability under CERCLA . . . [N]lor is there anything
in the statute suggesting that a ‘two-site’ case be treated
differently than a one-site case, where the issue is whether a
release or threat of release caused ‘response costs’”). This being
said, Plaintiffs evidence of release and migration of TCE from the
Lockformer site to class area groundwater is substantial.
Plaintiffs point to the following facts, many generated by
Lockformer’s own consultants, supporting the conclusion that
Lockformer is the site of the class area groundwater contamination.
Release Of TCE At The Lockformer Site

TCE was used at the Lockformer facility from March 1969 to
approximately February 2001. In this period, Plaintiffs’ expert
Roy Ball estimates that approximately 90,000 gallons of TCE were
delivered to the Lockformer site. This estimate is based on
deposition testimony stating that TCE deliveries took place once or
twice a month and purchase summary notes, deposition testimony, and
shipping orders from throughout this period indicating a range of
anywhere from 46 to 526 gallons of TCE per delivery. Defendants

contest both the amount of TCE delivered to the Lockformer facility


east-west axis, and are located outside both the Lockformer site
and the class area. Tellingly, Mr. Prickett does not mention what
the other forty eight wells in the area indicated on that day, or
any other day for that matter. This “mere scintilla” is
insufficient to rebut Plaintiffs’ evidence and the contradictory
statements of Lockformer’s own consultants.

Lockformer also attempts to make much of the fact that the
Ellsworth Industrial Park in nearby Downers Grove is currently
being investigated by the IEPA and U.S. EPA as a possible site of
TCE release. The Ellsworth Industrial Park is located to the east
of the class area. With no reference to actual hydrological or
geological data, Lockformer expert Prickett made an isolated and
conclusory statement in his report that the regional bedrock
groundwater flow is westward from Ellsworth Industrial Park.
Prickett supported this conclusion by simply taking a tiny portion
of a map depicting the piezometric surface of the DuPage County
Silurian dolomite aquifer from August 1960 (indicating the
elevation of nonpumping water levels in DuPage county), drawing
arrows from Ellsworth toward the class area, and writing “Example
flowpath[s]” next to the arrows. There are several problems here.
First, Prickett’s use of the 1960 map is extremely misleading in
that it focuses only on the alleged gradient between Ellsworth and
the class area while omitting reference to the actual gradient

between Lockformer and the class area. Second, recent hydrological


Minute Order Form (06/97)

United States District Court, Northern District of INinois

Name of Assigned Judge arry i A Sitting Judge if Other
or Magistrate Judge i D. Leinenweber than Assigned Judge
CASE NUMBER 00 C 7164 DATE 5/2/2002
CASE Teresa LeClercq, et al 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:

| (I) oa Filed motion of [ use listing in “Motion” box above.] *
Q) im Brief in support of motion due
(3) Oo Answer brief to motion due___._ Reply to answer brief due.
(ay Oo Ruling/Hearingon____sset ffor__ at
(5) Oo Status hearing[held/continued to] [set for/re-set for]on__—s set for atts
(6) a Pretrial conference[held/continued to] [set for/re-set for]on___—ssetfor_ at
(7) O Trial[set for/re-set for] on___aat
(8) Oo [Bench/Jury trial] [Hearing] held/continued to _aat

oO

This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) O General Rule21 OOFRCP41(a)(1) 0 FRCP41(a)(2).

Partial Summary Judgment is GRANTED.

[For further detail see order attached to the original minute order.]

(io) fl [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: Plaintiffs’ Motion for

Notified counsel by telephone date docketed

ed COME.

Docketing to mail notices.

Mail AO 450 form AM

Copy to judge/magistrate judge.

| No notices required. advised in open court. Document
. Number
No notices required
umber of notices
Notices mailed by judge's staff. MAY 6 2002

date mailed notice

courtroom
WAP deputy's
initials

ate/time received in.
central Clerk's Office mailing deputy initiats



in the class area groundwater. Regardless of the “battle of the
experts” on issues of modeling and methodology, there is no genuine
dispute that the Lockformer site is the source of the TCE in the
class area groundwater. See Nutrasweet Co. v. X-L Engineering Co.,

227 F.3d 776, 785 (7th Cir. 2000).

CONCLUSION
For the reasons set forth abo tiffs’ Motion for
Partial Summary Judgment is GRANTED

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

one fog he?

- 10 -


in the bedrock, that the ground water flows to
the southeast ”

D. Lockformer consultant Carlson Environmental
stated in a letter of October 20, 1999 that
“Ground water gradient generally to the south
of source area.” This belief that the
groundwater flows in a southerly direction
away from the Lockformer site was repeated in
letters dated January 14, 2000 and February 4,
2000.

E. Water samples were taken by both Clayton
Environmental and other experts. The samples
produced “non-detect” readings for TCE in the
areas directly north, east, and west of the
Lockformer site. High TCE concentrations were
detected in the class area water wells
directly south of the Lockformer site. The
highest TCE concentrations came from the water
wells closest to the Lockformer site and the
concentrations decrease as one moves further
south away from the Lockformer site. The
water wells to the east and west of the area
of high TCE concentration produced “non-
detect” readings for TCE.

F. Lockformer’s expert, Dr. Devlin, stated ina
letter dated March 11, 2002 that “I agree the
Lockformer site could be a contributor of some
of the contamination in the Class Area ”

To contradict the evidence supporting a southerly movement of
groundwater away from the Lockformer site, Lockformer expert Thomas
Prickett mentions that water elevation in two bedrock monitoring
wells, MW 1100D and MW 1101D, indicated water movement to the north
and west on one day, November 30, 2001. However, these wells are
only two of approximately fifty such wells in the area, are located

approximately 80 feet apart, roughly parallel to one another on an

-7-


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. Plaintiffs now move for partial summary
judgment seeking a limited finding that the Lockformer site is the
source of class area groundwater contamination.

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
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


and willful and wanton misconduct (Count IX). Before the Court is
Plaintiffs’ Motion for Partial Summary Judgment pursuant to
Fep.R.Civ.P. S6.

BACKGROUND

Lockformer existed as an Illinois corporation from about
December 6, 1946 until October 2000 when it was 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 Lockformer and Met-Coil properties.
Plaintiffs rely solely on private wells as the source of water for
their homes.

At all relevant times, Lockformer 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, were spilled directly onto the
ground. Plaintiffs contend that the hazardous substances released

from the Lockformer property have migrated and continue to migrate


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

TERESA LeCLERCQ, AL LeCLERCQ,
individually, and on behalf of

all persons similarly 5 2002
situated, MAY 6 Z
Case No. 00 C 7164
Plaintiffs,
v. Hon. Harry D. Leinenweber

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 LaClercq 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 VIII)

254