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Saturday, October 19, 2019

Landowners near Chemetco Superfund site dismiss more than 300 defendants from suit

By Record News | May 29, 2018


BENTON – Landowners who sued about 3,500 defendants for contribution to a Superfund project near Hartford have dismissed more than 300 defendants who didn’t so much as file an answer. 

The landowner association, Chemetco Site Group, dismissed 157 defendants in U.S. district court in April and 150 more through May 25. 

Attorney Gary Justis of Overland Park, Kan., filed the suit on Feb. 12. 

He identified his clients as potentially responsible parties cooperating with the Environmental Protection Agency to conduct response activities at the Chemetco site and to identify other potentially responsible parties. 

Justis sought cost recovery and contribution for past and future response costs. 

He sought a declaration as to each defendant’s liability and allocation of past and future response costs among all parties. 

Three days later he moved to stay the proceedings. 

Justis wrote that his group and EPA “accessed a historical Wang-based computer system used by the operators of the Chemetco site to record transactions of materials that were received at the Chemetco site during its operating life.” 

A collaborative process between his group and EPA to mine information about other potentially responsible parties has gone on for several years and would continue in a process involving conversion of Wang-based language to personal computer language, he wrote.  

According to Justis, his group’s members entered into a consent order with EPA for a remedial investigation with an effective date of Feb. 13, 2015. 

For limitation purposes, he wrote that case law in federal circuits across the country is in a state of flux as to whether a case of this type has to be filed within three years of a consent order. 

He wrote that his group intended to issue settlement offers to all viable defendants. 

“Plaintiffs’ further intentions are to dismiss settling defendants and non viable defendants to try to reduce this case as quickly and efficiently as possible over the next 12 months or so,” Justis wrote. 

He wrote that plaintiffs’ counsel was involved in several cases of this type in district courts across the country, “albeit not of this massive size.” 

“In nearly all such cases, the federal district courts have allowed plaintiff’s counsel an initial time period, with or without a stay, to allow plaintiff’s counsel an opportunity to present settlement offers or dismiss as many parties as possible before setting a scheduling order and placing the case in an active discovery and litigation posture,” he wrote. 

Justis asked for a stay through next March 1. 

U.S. District Judge Staci Yandle granted it on Feb. 20, “for all matters except voluntary dismissals of defendants by plaintiff.” 

Yandle extended the time to serve all defendants until March 1; she set a status conference Jan. 23. 

The docket shows no response for 99.9 percent of defendants. 

A lawyer showed up for the Department of Defense, and two company presidents filed frosty answers. 

In April, Jock Johnson of A & J Salvage in Tennessee challenged Illinois jurisdiction and wrote that statutes of limitations barred the claims. 

Johnson wrote that according to the plaintiff, A & J Salvage sold 73 pounds of scrap to Chemetco in 1989. 

He wrote that original owners and members of the company long since retired and sold it to the present owner who assumed no responsibility or liability. 

He denied that A & J Salvage ever sold or contributed materials to the site. 

In May, Earl Pelfrey of Alpha Equipment in Tennesse challenged Illinois jurisdiction and wrote that statutes of limitations barred the claims. 

He wrote that according to the plaintiff, Alpha Equipment sold 295,672 pounds of scrap to Chemetco in 1989 and 1990. 

He denied that Alpha Equipment sold or contributed materials to the site.    

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Organizations in this Story

Chemetco U.S. District Court for the Southern District of Illinois