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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN GRACE CHRISTIAN FELLOWSHIP, Plaintiff, v. KJG INVESTMENTS INC. and COLONY INSURANCE COMPANY and PSK INVESTMENTS, LLC, Defendants. Case No. 07-C-0348

DECISION AND ORDER
On April 13, 2007, plaintiff Grace Christian Fellowship (Grace) filed this action against KJG Investments, Inc. (KJG) and Colony Insurance Co. (Colony) under the citizen suit provision of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. ' 6972. The plaintiff also asserted state law claims of continuing trespass, nuisance, and negligence. On August 7, 2009, the plaintiff filed an amended complaint adding defendant PSK Investments, LLC (PSK). Pursuant to the amended scheduling order issued in this case, the parties filed the following motions: plaintiff=s motion for summary judgment on the liability of defendants for trespass, nuisance and negligence and partial determination of liability under RCRA (Docket #224), plaintiff=s motion for summary judgment as to defendant Colony Insurance (Docket #229), and defendants KJG and PSK=s motion for summary judgment. (Docket #251). 1 The plaintiff also filed a motion to reconsider the court's August 4, 2011, Decision and Order

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The court has previously issued an order on the plaintiff's motion for summary judgment as to defendant Colony.

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denying in part and granting in part defendants KJG and PSK's motion to strike. (Docket #287). The parties' pending motions will be addressed separately herein. Plaintiff's Motion for Reconsideration of the Court's Decision and Order of August 4, 2011 The plaintiff filed a motion for the court to reconsider its Decision and Order of August 4, 2011, denying its motion seeking to have the court consider environmental test results and evidence of the current environmental condition affecting the Grace building. In that decision and order, the court struck evidence or observations from after December 15, 2009. The plaintiff maintains that the specific injunctive relief sought will need to be tailored at trial to the environmental facts existing at the time of trial. Thus, the plaintiff asserts that the current environmental status of the properties will need to be considered at trial in order to fashion an appropriate injunction. The plaintiff submitted two August 29, 2011, letters from John Hnat, Project Manager/Hydrogeologist for the Wisconsin Department of Natural Resources (WDNR) which address the ongoing WDNR investigation of the properties at issue. In response, defendants KJG and PSK assert that the plaintiff presented no evidence in its motion to reconsider that was not previously considered either directly or indirectly by the court. Defendants KJG and PSK further assert that ongoing discovery as proposed by the plaintiff would be prejudicial to the defendants. According to defendants KJG and PSK, the consideration of this additional testing data would open the door for the plaintiff to attempt to provide more expert opinions. It also would require additional expert depositions in order to identify the effect the new information would have on the various expert opinions already provided in this case. In its November 16, 2010, motion to amend the scheduling order, the plaintiff sought an order amending the scheduling order "in order to accommodate the needs of the parties to 2

continue to exchange groundwater/soil and air data which is periodically obtained by both parties and filed with the Department of Natural Resources (DNR)." (Plaintiff's Civil Local Rule 7(h) Expedited Nondispositive Motion to Amend the Scheduling Order [Motion to Amend] at 1). The plaintiff requested that the current discovery deadline be extended "as it relates to the issue of investigative environmental data obtained by either party to this case after [the] December 15, 2009 cut off date and forty-five (45) days prior to trial." (Motion to Amend at 2). In its August 4, 2011, Decision and Order, the court denied the plaintiff's motion, concluding that the plaintiff failed to show good cause to amend the scheduling order and reopen discovery. The court also held that "any averment that relates to evidence or

observations from after December 15, 2009, will be stricken and not considered by the court in deciding the pending motions." (August 4, 2001, Decision and Order at 8). The court also indicated that it would not consider any data from after December 15, 2009. The defendants' submissions were subjected to this restriction as well. The plaintiff's motion for reconsideration seeks the usage at trial of facts occurring after December 15, 2009, in order for the court to fashion appropriate injunctive relief and, as the plaintiff argued in its motion to amend the scheduling order, in deciding the pending motions for summary judgment. The court's August 4, 2011, Decision and Order limited its decision to the pending motions for summary judgment. The plaintiff has not proffered any compelling argument nor submitted any new evidence which calls into question the court's decision striking averments relating to evidence or observations and data obtained after the discovery deadline, December 15, 2009. Such evidence, however, may be relevant in the future to determine the appropriate injunctive relief in this case. Accordingly, the plaintiff's motion for reconsideration will be denied. 3

SUMMARY JUDGMENT STANDARD Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits, if any, establish that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); McNeal v. Macht, 763 F.Supp. 1458, 1460-61 (E.D. Wis. 1991). "Material facts" are those facts that under the applicable substantive law "might affect the outcome of the suit." See Anderson, 477 U.S. at 248. In determining whether a genuine issue of material fact exists, the court must consider the evidence and all reasonable inferences in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., Ltd., 475 U.S. 574, 587 (1986), Matter of Wade, 969 F.2d 241, 245 (7th Cir. 1992). A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1). AAn affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.@ Fed. R. Civ. P. 56(c)(4). The evidence relied upon in a motion for summary judgment must be of a kind that would be admissible at trial. See Waldridge v. American Hoechst Corp., 24 F.3d 918, 921 n.2 (7th Cir. 1994) (citing Gustovich v. AT & T Communications, Inc., 972 F.2d 845, 849 [7th Cir. 4

1992]). Any proposed findings of fact which do not set forth facts that "would be admissible in evidence" have not been included in the relevant facts. Fed. R. Civ. P. 56(e)(1). An affidavit submitted to support or to oppose a summary judgment motion Amust be made on personal knowledge, set forth facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated.@ Fed. R. Civ. P. 56(c)(4). AIt is well-settled that conclusory allegations . . . without support in the record, do not create a triable issue of fact.@ Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002) (citing Patterson v. Chicago Ass=n for Retarded Citizens, 150 F.3d 719, 724 [7th Cir. 1998]). A finding of fact based on an affidavit which contains conclusory legal statements and is barren of any relevant facts of which the affiant has personal knowledge is not proper under Rule 56(e). See Resolution Trust Corp. v. Juergens, 965 F.2d 149, 152-53 (7th Cir. 1992). Such unsupported conclusory allegations have not been included in the relevant undisputed facts. To the extent that an objection to a proposed finding of fact fails to cite specific evidentiary support, the objection has no weight. See Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1057 (7th Cir. 2000); Doe v. Cunningham, 30 F.3d 879, 881 (7th Cir. 1994). Moreover, to the extent that an objection is non-responsive to the proposed finding of fact, the objection does not create a dispute of fact.

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PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT RELEVANT UNDISPUTED FACTS 2 Defendant KJG Investments, Inc. (KJG) purchased the gas station located at 9922 West Capitol Drive, Milwaukee, Wisconsin, in 1996 (gas station). On April 25, 2006, the land on which the gas station is located was transferred to defendant PSK Investments, LLC. (PSK). Defendants KJG and PSK were the gas station owners at the relevant times. Jagdisher Singh Kler is the former vice president and 50% stock holder of KJG and the controlling member of PSK. The plaintiff, Grace Christian Fellowship (Grace), owns the property adjacent to the gas station on the east located at 9900 West Capitol Drive, Milwaukee, Wisconsin. It purchased the property in 2001. The underground storage tanks and lines at the gas station were inspected by the State of Wisconsin Department of Commerce (Department of Commerce) on April 20, 2006. The gas station tanks and lines passed the test conducted by the Department of Commerce (i.e., no violations were noted). The Department of Commerce found no leaks in the flex hose connector under pump island 5 and 6 on April 20, 2006. On April 26, 2006, personnel from Grace reported gasoline odors in the basement of the Grace Christian Fellowship building (Grace building). The Milwaukee Health Department, Wisconsin Department of Natural Resources (WDNR), and Milwaukee Fire Department responded to the reported gasoline odors. That evening, the gas station owner contacted its environmental consultant, OM Enterprises.

As a general matter, unless accompanied by citation, the relevant facts are taken from the stipulated facts and the parties' proposed findings of fact which are not disputed. Citations to sources of quoted excerpts have been included even when those excerpts are undisputed.

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The Milwaukee Fire Department evacuated the Grace building on April 27, 2006. Subsequently, the gasoline odors in the basement of the building were determined to be emanating from a sump in the northwest corner of the basement. Scott Ferguson of the WDNR was on site on April 27, 2006, to monitor the emergency response action. The gas station owner retained Uni-Pump which found a leak in a flex hose connector under pumps 5 and 6, which are located on the eastern side of the gas station property. The leak occurred sometime between April 20 and 26, 2006. The gasoline containment system at the gas station is located underground. The flex hose connector is visible only after removing a cover that is affixed into the ground with screws. The flex hose is contained entirely within a sump under the dispenser island such that any leaking gasoline flows into the sump and should not escape the system. The gasoline collected in the sump under the dispenser island eventually flows through the containment piping back to the submerged turban pump (STP) sump by the force of gravity. Seventy gallons of gasoline were found contained inside the sump under the dispenser island. One hundred and seventy gallons of gasoline were contained in the STP pump and pumped back into the storage tank by Uni-Pump during its investigation of the leak. Uni-Pump also found that the float sensor in the sump at the premium STP pit and the regular unleaded STP pit were not functioning on April 27, 2006. KJG utilized a company called Protonic, as well as the Department of Commerce, to test and inspect their gasoline containment and disbursal system for leaks and identify any other potential problems. Mr. Singh Kler testified that he checked the flex connector sometime during the week prior to the discovery of the leak, but found no evidence of a leak. KJG utilizes an automatic tank gauge system which is an acceptable method of leak detection under 7

the Wisconsin Administrative Code. KJG performed an inventory verification pursuant to the administrative code. KJG had no actual knowledge that a leak had occurred prior to the plaintiff reporting odors on April 26, 2006. Uni-Pump replaced the leaking flex hose connector on April 27, 2006. On that same date, Dr. Raghu Singh of OM Enterprises collected a water sample from the basement sump of the Grace building and observed the presence of free product in the sump water. Also on April 27, 2006, the plaintiff hired North Shore Environmental Consultants (North Shore Environmental) to conduct the emergency response to the gasoline odor incident. It set up an emergency, explosion-proof venting system outside of the Grace building to vent gasoline vapors out of the building. The following day, North Shore Environmental excavated approximately 143 tons of contaminated soil along the west wall of the Grace building. The excavation was advanced to expose the drain tiles along the building's foundation. North Shore Environmental opened the drain tiles and installed an explosion-proof blower (drain tile venting system) to remove petroleum fumes and vent the fumes through a PVC pipe to the roof of the building. North Shore Environmental also installed a sump well in the excavated area for the purpose of bailing free product and testing groundwater. North Shore Environmental vacuumed out the sump crock in the Grace building and cleaned the sump crock with BioSolve fuel emulsifier. The Milwaukee Health Department inspected the Grace building on May 1, 2006, and allowed Grace to reoccupy the building on that date. The sump in the basement of the Grace building from which the gasoline odors emanated on April 26, 2006, has since been sealed. The tank and lines at the gas station were tested on May 5, 2006, by Protanic and no leaks were found. 8

The WDNR opened a file for this site pursuant to Wisconsin statutes and administrative regulations and assigned John Hnat as the project manager to oversee the investigation and remediation of the site. The WDNR issued a responsible party letter to the gas station owner dated May 4, 2006. The letter was addressed to Jagdisher Singh Kler as a representative of the gas station owner. Dr. Singh of OM Enterprises, submitted a work plan for site investigation to the WDNR dated June 5, 2006. Subsequently, on July 27, 2006, OM Enterprises advanced three soil borings on the Grace property. One of the soil borings was converted to a monitoring well known as MW-6. On July 28, 2006, OM Enterprises installed two monitoring wells, MW-1 and MW-2, on the gas station property. OM Enterprises then drilled four borings on the gas station property on July 31, 2006. Three of the borings were converted to monitoring wells known as MW-3, MW-4, and MW-5. Between February 15 and 17, 2010, OM Enterprises oversaw the advancement of 11 soil borings in the alley to the north of the gas station and Grace properties. Four of the 11 borings were converted into ground water monitoring wells known as MW-7, MW-8, MW-9, and MW-10. The pathway of the April 2006 spill moved northwesterly through the product lines between pumps 5 and 6 and the underground storage tanks. The pathway then entered the alley to the north of the gas station property and transversed east through the utility lines toward the Grace property. OM Enterprises conducted daily removal of product and

contaminated water from the excavation sump along the west wall of the Grace building beginning on April 30, 2006, and continuing through June 1, 2006. Weekly removal took place from June 3, 2006, through December 30, 2006. Monthly removal of product and water took place from January 27, 2007, and continued for a period of time. OM Enterprises arranged for 9

Chief Liquid Waste to pump 6,000 gallons of petroleum-contaminated water from MW-2 on August 16, 2006. OM Enterprises continues its investigation of the April 2006 incident at the gas station and Grace properties with oversight from the WDNR. OM Enterprises continues to collect water samples from the monitoring wells and basement sump. Donna Howe from the City of Milwaukee Health Department and Chuck Warzecha from the State of Wisconsin Department of Health and Family Services (DHFS) collected air samples from the Grace building in November 2006. The WDNR retained Veolia to collect two indoor air samples at the Grace building using Summa canisters over a 24-hour period on June 5, 2008. In August 2008, the WDNR installed a sub-slab vapor extraction system at the Grace building. Colony Insurance paid approximately $42,000 for the emergency work conducted by North Shore Environmental. Defendants KJG and PSK has not yet completed their

investigation of the gas station or Grace properties. In October 1983, the previous owner of the Grace building, a Factory Carpet Outlet store, discovered gasoline in the basement sump. Mobile Oil Corporation owned the gas station at the time. It contacted Warzyn to initiate a site investigation. When KJG Investments purchased the property in 1996, it retained K. Singh & Associates to complete the site investigation and remedial action associated with the 1983 spill. Dr. Raghu Singh was an environmental consultant working at K. Singh & Associates at the time and participated in the investigation and remediation of the site from 1996 to 2000. K. Singh & Associates determined that the gasoline in 1983 migrated from the gas station property to what is now the Grace building through the alley/utility corridor to the north of the properties.

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ANALYSIS The plaintiff filed a motion for summary judgment on its claims of trespass, nuisance, and negligence. The plaintiff maintains that the 2006 release of contamination at the KJG gas station traveled through the environment to Grace, constituting a trespass. The plaintiff asserts that defendants KJG and PSK were negligent in failing to prevent the leak/spill/release which occurred at the gas station in April 2006 and negligent in failing to repair the alarm system which would have notified KJG of the leak. The plaintiff further asserts that defendants KJG and PSK knew or should have known that gasoline leaks or spills from the gas station=s underground storage tank and dispensing system would likely pollute the Grace building or property belonging to third parties. The plaintiff also asserts that defendants KJG and PSK created a private nuisance when they permitted their gasoline to enter the plaintiff=s land. The plaintiff further asserts that the defendants' failure to abate the nuisance is either intentional or negligent and, in either case, KJG and PSK have breached their duty to keep contamination from leaving their land and entering the plaintiff=s building. Finally, the plaintiff seeks a partial determination of liability under the Resource Conservation Recovery Act (RCRA), 42 U.S.C. ' 6972. The plaintiff asserts that it is

uncontested that defendants KJG and PSK have (1) generated solid or hazardous waste and (2) contributed or are contributing to the past or present handling, storage, treatment, transportation or disposal of solid or hazardous waste. Thus, the plaintiff seeks summary

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judgment as to those two elements under RCRA. 3 The court will address this issue when addressing the defendants' motion for summary judgment. In response, defendants KJG and PSK assert that there is no evidence from which a reasonable trier of fact could find that KJG was negligent. The defendants maintain that there is no evidence of any specific action on behalf of KJG that caused the escape of gasoline from its underground containment system. Specifically, the defendants contend that there is no evidence as to how the leak in the flex hose connector occurred, no evidence as to who caused the leak in the flex hose connector and there is no evidence as to when the leak in the flex hose connector occurred between April 20, 2006, and April 26, 2006. The defendants further assert that there is no evidence as to how or why the float sensor failed, who caused the float sensor to fail, and who was responsible for testing and maintaining the sensors. The defendants further maintain that there is no evidence as to when the float sensors failed. Defendants KJG and PSK also maintain that the doctrine of res ipsa loquitar does not apply in this case. According to the defendants, in order for res ipsa loquitar to apply, the following two conditions must be established: (1) there must be evidence that the event in question is of a kind which does not ordinarily occur in the absence of negligence; and (2) there must be evidence that the agency or instrumentality causing the harm was within the Aexclusive control@ of the defendant. The defendants cite McGuire v. Stein=s Gift & Garden Center, Inc., 178 Wis.2d 379, 504 N.W.2d 385 (Wis. Ct. App. 1993) to support their position. The defendants contend that the plaintiff has no evidence that the alleged leakage of gasoline from KJG=s underground containment system is something that does not ordinarily

While unusual, the plaintiff's motion for summary judgment as to two elements under RCRA is allowed by Fed. R. Civ. P. 56(a).

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occur in the absence of negligence. In other words, the defendants assert that there is no evidence that KJG could have prevented the leak in the flex hose or the failure of the float sensor by exercising reasonable care under the circumstances. The defendants also contend that the plaintiff has not submitted any evidence that the gasoline containment system was within the Aexclusive@ control of KJG. Defendants KJG and PSK maintain that even if res ipsa loquitor applies, the trier of fact is required to decide the issue of whether KJG breached the standard of care. Thus, the defendants assert that even if the plaintiff is entitled to a res ipsa loquitur instruction, the instruction would merely provide a permissive inference that the jury is free to reject or accept. With respect to the plaintiff=s trespass and nuisance claims, defendants KJG and PSK assert that there is an issue of fact as to whether KJG was negligent, i.e., whether its conduct met the standard of care under the circumstances. Finally, the defendants assert that there is an issue of fact that precludes granting summary judgment on the first two elements of the plaintiff's RCRA claim. Specifically, the defendants state that "while there is no issue of fact that there was a leak in KJG's flex hose connector, there is an issue of fact as to how much, if any, gasoline escaped KJG's secondary gasoline containment system into the environment such that it would constitute `discarded material.'" (Defendants KJG Investments, Inc. and PSK Investments, LLC's Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment [Defendants' Memorandum in Opposition at 25).

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Negligence The elements of a cause of action for negligence are (1) a duty of care on the part of the defendants, (2) a breach of that duty, (3) a causal connection between the conduct and the injury, and (4) an actual loss or damage as a result of the injury. Transportation Ins. Co., Inc. v. Hunzinger Constr. Co., 179 Wis. 2d 281, 293, 507 N.W.2d 136 (Wis. Ct. App. 1993). Duty is a question of law, and in Wisconsin, "everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others." Behrendt v. Gulf Underwriters Ins. Co., 318 Wis. 2d 622; 768 N.W.2d 568, 574 (Wis. 2009). "A person is negligent if the person, without intending to cause harm, either acts affirmatively or fails to act in a way that a reasonable person would recognize as creating an unreasonable risk of injury." Megal v. Green Bay Area Visitor & Convention Bureau, Inc., 274 Wis. 2d 162; 682 N.W.2d 857, 866 (Wis. 2004) (citing Rockweit v. Senecal, 197 Wis. 2d 409, 424, 541 N.W.2d 742 [Wis. 1995]). The plaintiff states that the court can find that the defendants were negligent per se: Defendants KJG and PSK have duty of care under Wisconsin law, particularly Wis. Stats. 292.11, to prevent a release of hazardous substances from its site from reaching property owned, operated or utilized by another party. Defendants had a duty to protect those who foreseeably could be harmed by a spill. (Plaintiff's Reply to the Response of Defendants KJG and PSK on Plaintiff's Motion for Partial Summary Judgment [Plaintiff's Reply] at 9 [citing Plaintiff's Memorandum of Law in Support of its Motion for Summary Judgment on Issues of Liability of the Defendants for Trespass, Nuisance and Negligence and a Partial Determination of Liability under RCRA [Plaintiff's Memorandum of Law] at 5]).

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The plaintiff's assertion "that the failure to prevent the passage of the spill from its land to Grace's sump and under Grace's building is negligence per se" is not supported by Wisconsin case law. (Plaintiff's Reply at 4). In Grube v. Daun, the Wisconsin Supreme Court held that Wis. Stat.

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