Acme Printing Ink Co. v. Menard, Inc.

870 F. Supp. 1465

ACME PRINTING INK COMPANY, a Delaware corporation, Plaintiff, v. MENARD, INC., a Wisconsin corporation; Ed's Masonry and Trucking, Inc., a Wisconsin corporation; Edward J. Fadrowski; Marcia Smith; Anthony Ivancich; Bel-Aire Enterprises, Concrete Contractors, Inc., a Wisconsin corporation; Brey's Saw Shop, a partnership; Dan Brey; Max Brey; Cambridge Chemical, Inc., a Wisconsin corporation Cardinal Fabricating Corp., a Wisconsin corporation; John A. Davis, Jr.; Commercial Heat Treating, Inc., a Wisconsin corporation; Herb Engel Realty Co., Inc., a Wisconsin corporation; Hartwig, Inc., a Wisconsin corporation, d/b/a Hartwig Exhibitions; Helmut's Building Service, Inc., a Wisconsin corporation; Kramer Brass Foundry, Inc., a Wisconsin corporation; Dennis J. Cortte, d/b/a Layton Motor Sales; Jerry Lesperance, d/b/a Lesperance Construction; Lincoln Savings Bank, S.A., f/k/a Lincoln Savings & Loan Association, a Wisconsin chartered savings and loan association; Vernin Tretow, d/b/a Loomis Center Garage; Lubricants, Inc., a Wisconsin corporation; Richard W. Drexler; Robert Howell; Miller Tilt-Top Trailer, Inc., a Wisconsin corporation; Lewis Miller; Robert Bera; Pemper Engineering Co., Inc., a Wisconsin corporation; Frank Povlick, Inc., a Wisconsin corporation; Charles E. Rickheim; Service Painting Corp., a Wisconsin corporation; Sun Control Corporation, a/k/a Milwaukee Venetian Blind Co., a Wisconsin corporation; Supreme Casting, Inc., a Wisconsin corporation; Texaco, Inc., a foreign

corporation; Wauwatosa Savings & Loan, a loan association; Williams Petroleum, Inc., a Wisconsin corporation; Cigna Property and Casualty Companies, a Connecticut corporation; Ranger Insurance Company, a Delaware corporation; Hartford Accident & Indemnity Company, a Connecticut corporation; Employers Insurance of Wausau, a Wisconsin corporation; and Reliance Insurance Company, a Pennsylvania corporation, Defendants, v. TRAVELERS COMPANIES, INC., a Connecticut corporation and Home Insurance Co., Inc., a New Hampshire corporation, Third-Party Defendants.

CAMBRIDGE CHEMICAL, INC., a Wisconsin corporation, Third-Party Plaintiff, v. HARTFORD ACCIDENT & INDEMNITY CO., a Connecticut corporation, Third-Party Defendant.

No. 89-C-834.

United States District Court, E.D. Wisconsin.

December 5, 1994.

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William S. Roush, Jr., Davis & Kuelthau, Milwaukee, WI, for plaintiff.

Robert W. Corey, Menard, Inc. Legal Dept., Eau Claire, WI, for Menard, Inc.

Edward R. Cameron, Milwaukee, WI, for Ed's Masonry and Trucking Edward J. Fadrowski deceased.

Anthony Ivancich, pro se.

Timothy J. Strattner, Schellinger & Doyle, Brookfield, WI, for Bel-Aire Enterprises Concrete Contractors, Inc.

Bruce C. O'Neill, Fox, Carpenter, O'Neill & Shannon, Milwaukee, WI, for Cambridge Chemical, Inc.

Daniel M. Leep, McNally, Maloney & Peterson, Milwaukee, WI, for Cardinal Fabricating Corp. and Robert Howell.

William Wiseman, O'Neil, Cannon & Hollman, Milwaukee, WI, for Chromium, Inc.

James A. Baxter, Mitchell, Baxter, O'Meara & Mathie, Milwaukee, WI, for Kramer Brass Foundry, Inc.

William H. Harbeck, Quarles & Brady, Milwaukee, WI, for John A. Davis, Jr. Steve Enich, Charles Johnson, Milwaukee, WI, for Commercial Heat Treating.

Herb Engel Realty Co., c/o Mr. Gerald L. Engel, Milwaukee, WI, for Herb Engel Realty Co.

Raymond J. Pollen, Crivello, Carlson, Mentkowski & Steeves, S.C., Milwaukee, WI, for Hartwig, Inc. d/b/a Hartwig Exhibitions.

Stuart B. Eiche, Schulz, Schapekahm & Eiche, Milwaukee, WI, for Helmut's Bldg. Service.

John A. Fiorenza, John P. Hayes, Fiorenza & Hayes, Milwaukee, WI, for Williams Petroleum.

Michael P. Carlton, von Briesen & Purtell, Milwaukee, WI, for Dennis J. Cortte d/b/a Layton Motor Sales.

Michael W. Rohr, Krawczyk & Duginski, Milwaukee, WI, for Lincoln Sav. Bank and Pemper Engineering Co.

Tom Duggan, John T. Lynch, Duggan, Lynch & Fons, Greenfield, WI, for Vernin Tretow d/b/a Loomis Center Garage.

Richard Drexler, c/o Lubricants, Inc., Milwaukee, WI, for Lubricants, Inc.

Thomas S. Sommers, Sommers & Sommers, Milwaukee, WI, for Richard W. Drexler.

David V. Meany, Michael, Best & Friedrich, Milwaukee, WI, for Service Painting Corp.

Richard E. Schmidt, Fellows, Piper & Schmidt, Milwaukee, WI, for Frank Povlick, Inc.

Michael P. Dunn, Davis & Kuelthau, Milwaukee, WI, for Supreme Casting, Inc.

Jeffrey P. Clark, Reinhart, Boerner, Van Deuren, Norris & Rieselbach, Milwaukee, WI, for Texaco.

Michael Pfau, Thomas Schrimpf, Hinshaw & Culbertson, Milwaukee, WI, for Ranger Ins. Co.

Richard M. Hagstrom, Zelle & Larson, Minneapolis, MN, Michael R. Wherry, Davis & Kuelthau, Milwaukee, WI, for Employers Ins. of Wausau.

Ralph A. Weber, Kravit, Gass & Weber, Milwaukee, WI, for The Travelers Companies, Inc. and The Home Ins. Co.

Lawrence K. Rynning, Williams & Montgomery, Ltd., Chicago, IL, for Home Ins. Co.

Paul J. Pytlik, Otjen, Van Ert, Stangle, Lieb & Weir, Milwaukee, WI, for Hartford Acc. & Indem.

Jeffrey Leavell, Kevin Harrington, Jeffrey Leavell, S.C., Racine, WI, for Waukesha Rubber Co.

DECISION AND ORDER

WARREN, District Judge.

Now before the Court are several motions in the above-captioned case. Plaintiff Acme Printing Ink, Co. ("Acme") has moved the Court for partial summary judgment against defendant Menard, Inc. ("Menard") as to Menard's liability under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972, and the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607. For the following reasons, this motion will be granted in part and denied in part. Also before the Court are the "fast-track" summary judgment motions of several defendants requesting the Court to dismiss all claims and cross-claims against them. The resolution of these motions will be addressed individually in the body of this decision.

I. BACKGROUND

Between 1970 and 1982, the property at the center of this dispute in the 6800 block of South 27th Street in Franklin, Wisconsin was owned by Edward J. Fadrowski. During that period, Fadrowski operated an unregulated and unlicensed landfill and Christmas tree farm on the property. Because the site was unlicensed, Fadrowski could only legally dump earth fill containing less than 25% by volume of brick, concrete, and building stone.

Fadrowski also owned and operated a waste collection and transportation company called Ed's Masonry and Trucking ("Ed's Trucking"). During that time period, Ed's Trucking was licensed by the Wisconsin Department of Natural Resources (DNR) to collect and transport noncombustible waste, wood matter, refuse and garbage. The motto of Ed's Trucking was "You call, We haul." And haul it did, picking up rubbish and solid waste from various area businesses and dumping it at several landfills in the area, including the site at South 27th Street. Clients of Ed's Trucking included the plaintiff, Acme Printing Ink Company ("Acme"), as well as others including: Cambridge Chemical, Inc.; Cardinal Fabricating Corp.; Chromium, Inc.; Commercial, Inc.; Commercial Heat Treating, Inc.; Herb Engel Realty Co., Inc.; Hartwig, Inc.; Helmut's Building Service, Inc.; Kramer Brass Foundry, Inc.; Layton Motors; Lincoln Savings & Loan Association; Loomis Center Garage; Lubricants, Inc.; Miller Tilt-Top Trailer, Inc.; Pemper Engineering Co., Inc.; Service Painting Corp.; Sun Control Corporation; Texaco, Inc.; Bel-Aire Enterprises; and Williams Petroleum, Inc.

In the late 1970s and early 1980s, several incidents occurred which suggest that Fadrowski was illegally hauling and dumping hazardous wastes. The first documented incident involved Ed's Trucking. On October 20, 1978, Fadrowski's driver, Tony Ivancich, spilled a significant quantity of sludge waste that he was transporting from Lubricants, Inc. onto South 84th Street. Mr. Fadrowski was billed by the City of Greenfield for the costs incurred cleaning-up the spilled sludge. Ivancich later admitted that this type of waste was not only frequently hauled by Ed's Trucking, but was also commonly transported to the site. Deposition of Anthony Ivancich (February 2, 1990) at 15. See also Deposition of Marcia Smith (February 1, 1990) at 77. The next incident occurred in February of 1981, when Roger Klett, a DNR landfill inspector, inspected the Fadrowski site and found that Fadrowski was dumping regulated wastes illegally. Mr. Klett notified the City of Franklin's City Engineer, Mr. John Bennett, of the results of his inspection. Letter from Roger Klett to Edward Fadrowski, (February 2, 1981).

On July 6, 1981, the Wisconsin DNR received a complaint from Marcia Smith, a Fadrowski employee, about operations at the Fadrowski site. Ms. Smith alleged that Fadrowski was illegally dumping drums of hazardous wastes from Acme Printing Ink Company and Lubricants, Inc. at the site. An inspection on July 6, 1981 by Klett and Victor Pappas, also of the Wisconsin DNR, revealed the existence of regulated wastes that had been illegally deposited at the site. However, the DNR was unable to confirm the existence of any drums containing the material described by Smith. The DNR did not pursue the investigation further because Ms. Smith refused to submit an affidavit in support of her allegations. The DNR issued Fadrowski a warning but never required him to get a permit.

As a result of several of these incidents, on December 8, 1981, Franklin City Engineer John Bennett met with Mr. Fadrowski to request that he bring the his landfill up to standards required by the City and State Codes. Later Bennett sent Fadrowski a letter confirming the arrangements they had made to bring the site up to code. Letter from John Bennett to Ed Fadrowski (December 18, 1981).

In December of 1982, Menard decided to purchase the property at South 27th Street, along with other adjacent plots, to build a Menard's retail outlet....