Summary, and a December 1988 Report. As discussed, the February
Report does not demonstrate Whirlpool’s intention to obtain a focused
NFR for various parts of the Property. What it does show is that the
IEPA, which cautioned Whirlpool that a comprehensive NFR might not
issue for the land under the building, knew very well that there were
problems with that portion of the land and had not been misled in the
least in that regard. Furthermore, the December 1988 and December
1990 reports were presumably supplanted by the Site Investigation
Report prepared in the application process for the NFR.

The Court notes that the IEPA has the authority to void the NFR
pursuant to 415 ILL. Comp. Stat. ANN. 5/58/10(f). If the IEPA were to
do so, it would be clear that Whirlpool did not satisfy its
obligation, but at this time, the Court finds that Whirlpool obtained
a valid, comprehensive NFR for the entire Property.

2. Timeliness of the NFR

St. Charles also contends that Whirlpool breached the 2000
Agreement by failing to obtain the NFR in a timely manner. The
parties included a clause in the 2000 Agreement that states that
“[t]he parties agree that time is of the essence with respect to
achieving the goals contemplated under this Agreement, and agree to
cooperate and work expeditiously to achieve these ends.” Although
the parties agreed to this clause on March 7, 2000, the NFR was dated
July 30, 2002 and St. Charles signed the Property Owner Certification
of the NFR Letter on August 9, 2002. St. Charles’ expert, Thayer,

opines that Whirlpool and Weston could have taken various steps that

-13-


~ to be governed by and construed in accordance with the laws of the
State of Michigan.

On or about July 30, 2002, Whirlpool received a No Further
Remediation letter (the “NFR”) for the Property from the IEPA.
Despite this, on March 17, 2003, St. Charles filed a two-count
complaint against Whirlpool, alleging breach of the Purchase
Agreement and asserting claims for restitution, quasi-~contract and
unjust enrichment. The complaint made no mention of the 2000
Agreement. Whirlpool filed a counterclaim against St. Charles and
this motion for summary judgment on both counts of the complaint.
Several months later, St. Charles filed an amended complaint, in
which it added a third count for breach of the 2000 Agreement.

Because Whirlpool did not file a new motion for summary judgment
addressing the third count, St. Charles contends that Whirlpool’s
motion is a motion for partial summary judgment as to Counts I
(breach of the Purchase Agreement) and II (restitution, quasi-
contract, and unjust enrichment) of the amended complaint. In its
summary judgment motion, however, Whirlpool argues that Counts I and
II are barred by St. Charles’ agreement to release Whirlpool from all
claims based on pre-existing conditions at the Property upon
Whirlpool’s procurement of a comprehensive NFR. Whirlpool argues,
correctly, that in addressing its summary judgment motion, the Court
will have to decide whether there is a genuine issue of material fact

as to whether Whirlpool satisfied its obligations under the 2000


building from the final letter. Indeed, a review of the April Report
shows that Weston merely noted that “the property may have the
following restrictions” (emphasis added) such as a focus on areas
outside the building. St. Charles also points to a December 19, 2000
letter from attorneys for Dave Armbrust, a potential purchaser of the
Property, to St. Charles, which notes that the IEPA officer involved
in preparing the NFR informed Armbrust that it would not relate to
the structure on the property or to the land located underneath that
building. Yet that letter goes on to suggest that St. Charles,
“utilizing the services of Roy F. Weston, Inc.,” could obtain a full
NFR quite easily and quickly. It simply is not evidence that the
final NFR did not relate to the buildings on the Property.

St. Charles also contends that Whirlpool’s Rule 30(b) (6)
witness, Steven P. Willis (“Willis”), conceded that the NFR did not
cover the entire site. Taken in context, however, Willis’s testimony
is rather ambiguous. In the deposition, St. Charles’ attorney asked
Willis to turn to the February Report and then read the bullet point
in which Weston stated that the IEPA had indicated that it would only
issue an NFR for the areas outside the building. When asked “[i]s
that your understanding today, that the NFR letter was prepared only
for the areas. outside the building?”, Willis said “yes.” But two
questions later, Willis was asked “just so I’m clear, it is only for
areas outside the building?” and responded “that’s what the IEPA
seems to be saying here.” It is unclear whether Willis is giving an

opinion on the scope of the final NFR, or if he is agreeing with the


Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir.

1989).
B. Merits

Whirlpool argues that the plain language of the 2000 Agreement
compels summary judgment in its favor. It contends that it obtained
a comprehensive NFR from the IEPA as agreed in paragraph 5.d., and
that St. Charles was thus obligated to release it “from any and all
claims in respect of pre-existing conditions at the [Property].”
Because St. Charles’ claims are based on those same pre-existing
conditions, Whirlpool concludes, they must fail. St. Charles argues
that there is at least a genuine issue of material fact about whether
Whirlpool performed its obligation to obtain a comprehensive NFR and
that summary judgment is therefore inappropriate at this stage. It
contends that there is no release because Whirlpool: 1) failed to
obtain a valid comprehensive NFR from the IEPA for the entire
property; and 2) took more than two years to obtain the letter,
thereby breaching the “time is of the essence” requirement of the
2000 Agreement. The Court will address each argument in turn.

1. Scope and Validity of the NFR Letter

On one side of the parties’ argument over scope and validity is
the NFR itself. Whirlpool argues that by looking at the text of the
letter, a reasonable jury could only find that it is a valid,
comprehensive NFR that covers all of the Property.

As an initial point, it is clear that Whirlpool obtained a

comprehensive NFR and not a less valuable focused NFR. St. Charles



Agreement. Accordingly, the Court will treat this as a motion for

summary judgment on all counts.

II. DISCUSSION
A. Summary Judgment

Summary judgment is appropriate if “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as
a matter of law.” Fep. R. Civ. P. 56(c). A fact is “material” if it
could affect the outcome of the suit under the governing law; a
dispute is “genuine” where the evidence is such that a reasonable
jury could return a verdict for the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The burden is initially upon the movant to demonstrate the
absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). In assessing the movant’s claim,
the Court must view all the evidence and any reasonable inferences
that may be drawn from that evidence in the light most favorable to
the nonmovant. Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997,
1003 (7th Cir. 2000). Once the moving party has met its burden, the
nonmoving party “may not rest upon the mere allegations” contained in
its pleading, but rather “must set forth specific facts showing that
there is a genuine issue for trial.” FED. R. Civ. P. 56(e); Becker v.

Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990);



inaccurate, it does not suggest that the description leaves out any
portion of the Property. Indeed, St. Charles never provides any
detail as to how the description is inaccurate. Instead, it relies
solely on a statement from an affidavit from its expert, William
Thayer (“Thayer”), that a Michael E. Filipski (“Filipski”) told him
in May 2003 that the legal description does not accurately describe
the Property. Filipski’s statement is inadmissible hearsay and as
Whirlpool correctly notes, an unsupported allegation, even from an
expert, is insufficient to satisfy a non-movant’s burden. Cliff v.
Bd. of Sch. Comm’rs, 42 F.3d 403, 408 (7th Cir. 1994); Demitropoulos
v. Bank One Milwaukee, N.A., 953 F. Supp. 974, 985-86 (N.D. Ili.
1997).

Despite the dearth of indicators in the NFR that it only applies
to parts of the Property, St. Charles argues that it does not include
the buildings on the site. As evidence, St. Charles points to a
February 2001 Status Report (the “February Report”) and to an April
2001 Status Report (the “April Report”) from Whirlpool’s engineer Roy
F. Weston, Inc. (“Weston”). In the February Report, Weston explained
that the “IEPA also indicated that . . . only a NFR letter for the
areas outside the building would be issued. The building would not
be part of the NFR letter due to the lack of information.” In the
April Report, it stated that the “NFR letter will be focused on areas
outside the building.” These status reports were written
approximately a year and a half before the IEPA issued the NFR,

however, and are not conclusive evidence that the IEPA excluded the


‘Minute Order Form (

ag United States District Court, Northern District of Illinois
for Magistrate Jude Harry D. Leinenweber “nan Asigned Judge
PASE NUMBER 03 C 1917 DATE 12/23/2003
CASE St. Charles Manufacturing, et al vs. Whirlpool Corporation, et al
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
qd) a Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
@) Oo Answer brief to motion due. . Reply to answer brief due___-
(4) o Ruling/Hearingon___—setfor___—_aat :
(5) QO Status hearing[held/continued to] [set for/re-set for]on__—setfor__—__ at.
(6) o Pretrial conference[held/continued to) [set for/re-set for]on___setfor___——sat__—.
(7) a) Trial{set for/re-set for}on_ at
(8) oO (Bench/Jury trial] [Hearing] held/continuedto__—__—aat
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OUFRCP4(m) (Local Rule 41.1 CFRCP41(a)(1) ©) FRCP41(a)(2).

di) @f {For further detail see order attached to the original minute order.]

ao) [Other docket entry) ENTER MEMORANDUM OPINION AND ORDER: Whirlpool’s Motion
for Summary Judgment is granted as to Counts I, IJ, and III. St. Charles’ action is dismissed in its entirety.

No notices required, advised in open court,

No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

a | Docketing to mail notices.

| Mail AO 450 form docket deputy init

LUNGS LIYLSI “SA t
Wwu3d19

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date mailed notice

courtroom ved WY €2 9390 0

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The Court finds St. Charles’ first three contentions without
merit. It is not up to the Court to question either the IEPA’s
Process in issuing the NFR or the scrutiny the IEPA gave to
Whirlpool’s submissions. In determining whether to issue an NFR, the
IEPA is guided by Illinois regulations that set forth the application
process for an NFR. See ILL. ADMIN. Cope tit. 35, S§ 740.210, .420,
-425. An applicant must perform a comprehensive site investigation
in two phases, through which he or she identifies all recognized
environmental conditions and all related contaminants that may be
expected to exist at the remediation site. Id. § 740.420. The
applicant combines the site investigation reports from Phase I and
Phase II into one Site Investigation Report, which he or she then
submits to the IEPA for review. Id. § 740.425. The applicant must
also submit remediation objective reports, remedial action plans, and
remedial action completion reports. Id. § 740.505. Although neither
party attached those documents as exhibits, St. Charles does not
contend that Whirlpool failed to submit them to the IEPA. In
reviewing Site Investigation Reports and related activities, the IEPA
is required to consider: 1) whether the report is complete and is
accompanied by the information and supporting documentation necessary
to evaluate the site investigation activities; 2) whether the site
investigation has been conducted in accordance with the established
procedures, including whether the comprehensive site investigation
has been designed and implemented in accordance with Section 740.420

and whether all sampling and analysis activities have been conducted

-l1-


fact that, according to the status report, the NFR would be limited
to areas outside the building.
the NFR that its scope is limited in any way,

deposition testimony does not create a genuine issue of material fact

as to whether the final NFR covered the entire Property.

While the NFR facially appears to apply to the entire Property,

St. Charles contends that it is invalid for almost two-thirds of the

site because Whirlpool and Weston:

1)

2)

3)

4)

5)

failed to provide the IEPA with any
environmental data for the buildings on the
Property and the land under the buildings, which
constituted 37 percent of the Property;

failed to provide the IEPA with environmental
data for the land north, east, and west of the
building, which made up another 13 percent of
the Property;

failed to give the IEPA sufficient environmental
data for the conditions of the land under former
paint thinner and heating oil underground
storage tanks, another 5 percent of the
Property;

intended to obtain a focused, not comprehensive,
NFR for the contaminated Areas B and C at the
site, which constituted another 10 percent of
the Property, and withheld from the IEPA the
fact that they knew they were submitting
insufficient information for a comprehensive
NFR; and

withheld certain material reports from the IEPA
that contradicted information in submitted
reports, thereby presenting the IEPA with
misleading, inaccurate and incomplete
information and providing the IEPA with grounds
for voiding the NFR.

-10-

Given that there is no suggestion in

Willis’s ambiguous


does not appear to argue otherwise. A comprehensive NFR is a
statement from the IEPA that all recognized environmental conditions
and related contaminants of concern do not pose a threat to human
health or the environment, while a focused letter is a statement that
only a limited number of recognized environmental conditions and
related contaminants of concern do not pose a threat. ILL. ApMIN. CopE
tit. 35, $$ 740.210(a) (5) (i)-(ii), .420, .425, .430, .435 (2003).
The letter specifically states that “[t]his comprehensive No Further
Remediation Letter . . . signifies a release from further
responsibilities under the Act for the performance of the approved
remedial action.” It further explains that the letter is “prima
facie evidence” that the Remediation Site neither constitutes a
threat to human health nor the environment nor requires further
remediation. The Illinois EPA Site Remediation Program Environmental
Notice (the “Site Notice”) also describes the site investigation as
comprehensive.

It also appears clear from the NFR that it applies to the entire
Property. There is nothing in the NFR, the attached Site Base Map,
or the attached Site Notice to suggest that any section of the
Property is not covered. The NFR describes the Remediation Site as
“12.0 acres . . . located at 1611 East Main Street, St. Charles,
Illinois.” The buildings on the property, including the former
manufacturing building, are clearly included on the Site Base Map and
the Site Notice includes a detailed legal description of the entire

Property. While St. Charles claims that this legal description is


The parties’ dispute first began sometime after the sale of the
Property. St. Charles contended that, while it performed all of its
obligations under the Purchase Agreement, Whirlpool had failed to
clean up the Property pursuant to Section 7.7. Whirlpool, on the
other hand, contended that it had undertaken the agreed upon remedial
action and that it had brought the Property into compliance as
promised. The issue finally came to a head after a decade of
disagreement when St. Charles decided to sell the Property, and
informed Whirlpool that the environmental conditions had negatively
impacted the Property’s marketability. Eventually, on or about March
7, 2000, the parties entered into a second agreement (the “2000
Agreement”), in which they acknowledged their disagreement and agreed
to resolve the issues related to the pre-existing environmental
conditions through Illinois Environmental Protection Agency (the
“IEPA”) voluntary programs. Whirlpool agreed “to manage . . .
obtaining official recognition for the adequacy of actions taken or
to be taken in respect of pre-existing environmental conditions at
the Facility.” In turn, St. Charles agreed that “[u]pon receipt of
a ‘Comprehensive’ No Further Remediation letter from Illinois EPA .
+ . to release Whirlpool from any and all claims in respect of pre-
existing conditions at the Facility.” It also agreed to indemnify
Whirlpool with respect to any possible future third party claims
related to the Property. The parties agreed that “time is of the
essence with respect to achieving the goals” set forth in the

agreement. Finally, the parties agreed that the 2000 Agreement was


would have expedited the IEPA’s review process but he provides no
insight into whether those steps would have shaved off a year of
review time or merely a few weeks or days. He also faults Whirlpool
for asking the IEPA to review and rely on reports that had been
prepared many years earlier and claims that this increased the review
time and project schedule. Elsewhere in his affidavit, however,
Thayer condemns Whirlpool for not providing the IEPA with old reports
such as the December 1988 and December 1990 reports discussed above.
St. Charles adduces no other evidence that Whirlpool did not work
expeditiously in obtaining the NFR.

It is well recognized under Michigan law, which governs the 2000
Agreement, “that when time is made of the essence of the contract and
one of the parties fails to perform within a reasonable time, the
innocent party may seek to have the contract rescinded.” Cooper v.
Klopfenstein, 185 N.W.2d 604, 606-07 (Mich. Ct. App. 1971). Given
that the 2000 Agreement established no specific deadline and that the
IEPA was in large part in control of the process, it does not appear
that Whirlpool failed to work expeditiously to obtain the NFR or that
it failed to obtain the NFR within a reasonable time.

The 2000 Agreement states clearly and unambiguously that “[u]pon
receipt of a ‘Comprehensive’ No Further Remediation letter from the
Illinois EPA . . . St. Charles agrees to release Whirlpool” from
claims relating to pre-existing conditions at the facility and to
indemnify it with respect to third party claims. Whirlpool obtained

a comprehensive NFR and, by satisfying its end of the bargain, should

- 14 -


* summary judgment on all counts. For the following reasons, the Court
grants the motion.
I. BACKGROUND
The following facts are either undisputed or taken in the light
most favorable to St. Charles. Prior to March 1989, Whirlpool owned
a twelve-acre parcel of real property located at 1611 East Main
Street in St. Charles, Illinois (the “Property”). The Property
included a large manufacturing building and two underground storage
tanks. On or about March 20, 1989, Whirlpool Kitchens, Inc. and St.
Charles Acquisition, Inc. entered into a contract, the “Asset
Purchase Agreement Between Whirlpool Kitchens, Inc. and St. Charles
Acquisition, Inc.” (the “Purchase Agreement”), in which Whirlpool
Kitchens, Inc. agreed to sell the Property to St. Charles
Acquisition, Inc. Whirlpool was aware that during its operations on
the site a number of hazardous substances had seeped into the ground
at or around the Property and the parties included a section in the
agreement to address the environmental contamination. In section 7.7
of the Purchase Agreement, Whirlpool agreed that “[a]s soon as
reasonably practicable,” it would “undertake in accordance with
applicable law and regulations, such remedial action as is necessary
to bring [the Property] into compliance with applicable federal,
state and local environmental laws and regulations in effect on the
Closing Date.” It further agreed to correct any soil or groundwater
contamination in accordance with prevailing governmental standards,

guidelines and polices.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS [= L
EASTERN DIVISION E D

ST. CHARLES MANUFACTURING DEC 2.3 2003
LIMITED PARTNERSHIP and ST. OSE Harr
CHARLES ACQUISITION LIMITED au SSN RY D. LEINENWeE;
PARTNERSHIP, CT COURT Jupae
Plaintiffs, Case No. 03 C 1917
v. Hon. Harry D. Leinenweber
WHIRLPOOL CORPORATION and otis,
WHIRLPOOL KITCHENS, INC., ny e7)
Defendants. “Ce 4 2003

MEMORANDUM OPINION AND ORDER

Plaintiffs, St. Charles Manufacturing Limited Partnership, an
Illinois limited liability partnership with its principal place of
business in Virginia Beach, Virginia, and St. Charles Acquisition
Limited Partnership, a Delaware limited liability partnership with
its principal place of business in Virginia Beach, Virginia
(collectively “St. Charles”) bring this diversity suit against
Whirlpool Corporation and Whirlpool Kitchens, Inc., Delaware
corporations with their principal places of business in Benton
Harbor, Michigan (collectively “Whirlpool”) asserting claims for
breach of contract (Count I), restitution, quasi-contract and unjust
enrichment (Count II), and breach of agreement (Count III).
Whirlpool now brings a Motion for Summary Judgment, which, as

discussed in more detail below, the Court construes as a motion for

/7


in accordance with Section 740.415; and 3) whether the
interpretations and conclusions reached are supported by the
information gathered. Id. § 740.510. It was up to the IEPA to
determine whether it had sufficient environmental data for the
buildings, the land under the buildings, the land north, east, and
west of the building, and the land under former paint thinner and
heating oil underground storage tanks. The Court must assume that
the IEPA reviewed its application for the letter carefully and
thoroughly. If the IEPA found the materials submitted by Whirlpool
to be insufficient or incomplete given Whirlpool’s description of the
Property or given the information it had about the Property from the
Site Base Map, it certainly had the authority to request more
information or to deny the application.

St. Charles’ claim that Weston and Whirlpool deceived the IEPA
with respect to Areas B and C of the Property also fails. St. Charles
argues that Whirlpool admitted in writing that it “had no intention”
of obtaining a comprehensive NFR for those Areas and again points to
the February Report as evidence. In that report, Weston merely noted
that Areas B and C “require[} no further evaluation to obtain a
focused NFR, but will require some Environmental Land Use Controls.”
This language neither evinces Whirlpool’s intention to obtain only a
focused letter for those areas, nor proves that Whirlpool knew that
it was submitting insufficient information for a comprehensive NFR.

Finally, St. Charles argues that Whirlpool improperly withheld

the February Report, a December 1990 Weston Site Investigation Report

-12-


r

have been released from claims relating to pre-existing conditions at
the Property. St. Charles’ claim for breach of the 2000 Agreement is
without merit, and accordingly, its claims for breach of the Purchase
Agreement and for restitution, quasi-contract and unjust enrichment

must fail.

CONCLUSION

For the reasons set forth above, Whir}pool’s Motion for Summary

Judgment is granted as to Counts I, II, And III. St./Charles’ action

is dismissed in its entirety.

IT IS SO ORDERED.

Xudrry D. Leinenweber, Judge
United States District Court

Date: (ZA

-15-