Valbruna Slater Steel Corporation et al v. Joslyn Manufacturing Company et al

Filing 50

OPINION AND ORDER DENYING 42 MOTION for Summary Judgment filed by Joslyn Manufacturing Company LLC; DENYING 47 RULE 56 MOTION to Strike filed by Fort Wayne Steel Corporation, Valbruna Slater Steel Corporation. Signed by Judge Jon E DeGuilio on 3/21/13. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
VALBRUNA SLATER STEEL CORP.
and FORT WAYNE STEEL CORP.,
Plaintiffs,
v.
JOSLYN MANUFACTURING CO., et
al.,
Defendants.

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CAUSE NO. 1:10-CV-044 JD

OPINION AND ORDER
Plaintiffs Valbruna Slater Steel Corporation and Fort Wayne Steel Corporation (collectively
“Valbruna”) sued defendants Joslyn Manufacturing Company, et alia, (“Joslyn”) on February 11,
2010. [DE 1].1 Valbruna is the current owner of a parcel of land near Fort Wayne, Indiana, which
Joslyn occupied until 1981. Valbruna is currently engaged in remedial efforts at the site in
cooperation with the Indiana Department of Environmental Management (“IDEM”). Valbruna’s
complaint essentially blames Joslyn for the contamination at the site, and alleges three counts: (1)
a cost recovery action under the Comprehensive Environmental Response, Compensation, and
Liability Act (“CERCLA”), 42 U.S.C. § 9607(a); (2) a similar action under the Indiana
Environmental Legal Actions statute; and (3) a declaratory judgment of the defendant’s future
liability. Joslyn’s first move was to attempt to preclude the suit based on earlier state court litigation
with Valbruna’s predecessor in interest. This court found that the Indiana ELA claim was precluded,
but that the federal claims survived. [DE 35; DE 39]. On January 13, 2012, Joslyn moved for
1
The record is cited in the following format: [“Docket Entry Number” at “page or paragraph number within
docket entry”].

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summary judgment against Valbruna’s remaining claims, arguing that they are barred by the statute
of limitations. On March 14, 2012, Valbruna responded, and moved to strike certain exhibits
supporting Joslyn’s motion. On March 28, 2012, the briefing was completed, and the motions have
been under advisement. Having considered the law and the facts of this case, the court now denies
Joslyn’s motion for summary judgment [DE 42], and denies Valbruna’s motion to strike [DE 47],
for the reasons discussed in this order.
STANDARD OF REVIEW
Summary judgment is proper where 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 judgment as a matter of law. Fed. R. Civ.
P. 56(c); Lawson v. CSX Transp., Inc., 245 F.3d 916, 922 (7th Cir. 2001). A “material” fact is one
identified by the substantive law as affecting the outcome of the suit. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A “genuine issue” exists with respect to any such material fact, and
summary judgment is therefore inappropriate, when “the evidence is such that a reasonable jury
could return a verdict for the non-moving party.” Id. On the other hand, where a factual record taken
as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine
issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing
Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 289 (1968)).
In determining whether a genuine issue of material fact exists, this Court must construe all
facts in the light most favorable to the non-moving party, as well as draw all reasonable and
justifiable inferences in her favor. Anderson, 477 U.S. at 255; King v. Preferred Tech. Grp., 166
F.3d 887, 890 (7th Cir. 1999). Still, the non-moving party cannot simply rest on the allegations or

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denials contained in its pleadings. It must present sufficient evidence to show the existence of each
element of its case on which it will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317,
322-323 (1986); Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000). Furthermore, the
non-moving party may rely only on admissible evidence. Lewis v. CITGO Petroleum Corp., 561
F.3d 698, 704 (7th Cir. 2009).
The issue presented in this case is particularly appropriate for resolution at the summary
judgment stage. Not only are the material facts undisputed [DE 49 at 1], but the primary issue is
whether certain work undertaken by the plaintiff’s predecessor in interest in the 1980s and 1990s
was a “remedial action” or a “removal action” under CERCLA. That is a question of law. Cytec
Industries, Inc. v. B.F. Goodrich Co., 232 F.Supp.2d 821, 832 (S.D. Ohio 2002); OBG Technical
Services, Inc. v. Northrup Grumman Space & Mission Sys. Corp., 503 F.Supp.2d 490, 524 (D.Conn.
2007).
BACKGROUND2
From 1928 to 1981, defendant Joslyn Manufacturing Company owned and operated a steel
mill at 2302 and 2400 Taylor Street in Fort Wayne, Indiana (collectively “the Site”). [DE 28-1 at
1; DE 28-2 at 11-13]. During Joslyn’s tenure, steel mill operations polluted the Site's soil and
groundwater with chlorinated solvents, metals, and other contaminants. On February 2, 1981, Joslyn
sold the Site to Slater Steels Corporation (“Slater”). In connection with the sale, the two companies
signed an Asset Purchase Agreement (“APA”) in which Joslyn agreed to indemnify Slater for certain

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This section is not meant to be an exhaustive catalogue of every fact or piece of evidence presented to the
court. It is simply meant to provide a brief narrative of the events underlying the case. The inclusion of a fact in this
section does not mean that it is material, and the exclusion of a fact does not mean that it is immaterial, or that the
court did not consider it. The court will recount particularly relevant facts where appropriate in the discussion
section.

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costs and expenses. [DE 20-1 at 19-22].
From 1981 to 1987, Slater excavated sludge and metal-contaminated soil from two areas of
the Site: (1) Joslyn’s former surface impoundment (located in the far northeast corner of the Site)
and (2) Joslyn’s former waste pile (located in the far northwest corner of the site). [DE 46-6 ¶ 3].
The excavation did not remove all of the contaminants from the former surface impoundment, so
additional action was necessary. [DE 46-6 ¶ 4]. In 1988, Slater signed a Consent Agreement and
Final Order with the United States Environmental Protection Agency (“EPA”) obligating Slater to
monitor groundwater at the Site until the Indiana Department of Environmental Management
(“IDEM”) could certify the clean closure of the polluted areas under excavation. [DE 46-7 at 8].
In 1991, Slater filled the excavated area at the surface impoundment with clean, compacted
soil, constructed a reinforced-concrete cap over the impoundment area, and implemented a
groundwater detection monitoring program. [DE 42-7 at 36]. On January 19, 1996, Slater submitted
an application to the Indiana Department of Environmental Management (“IDEM”) Voluntary
Remediation Program. [DE 42-5]. The application noted that the site investigation was complete,
and that the site remediation was complete. [DE 42-5]. On February 7, 1996, IDEM accepted the
application. [DE 42-8 at 1]. On June 14, 1999, IDEM issued a certificate of completion to Slater
concerning their work in the Voluntary Remediation Program. [DE 42-7 at 11]. The certificate did
not represent a successful remediation of the entirety of the Site, however. To the contrary, attached
documents verified that investigative work was going on elsewhere on Slater’s property. It simply
acknowledged a successful remediation of the former Joslyn surface impoundment location on the
far northeast corner of the Site. On several occasions between 1988 and 1999, Slater sought
indemnification under the APA for cleanup costs relating to alleged historical contamination of the

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Site, but Joslyn denied those requests. [DE 28-6; DE 28-7].
On May 17, 2000, IDEM issued a Notice of Violation (“NOV”) to Slater. [DE 46-7]. IDEM
had determined that there was a release of trichloroethylene into the environment at the Site, and
enclosed a proposed Agreed Order for Slater to sign and return. Among other things, the Agreed
Order required Slater to notify IDEM in the event that a “current or potential” threat to human health
or the environment developed. [DE 46-7 at 11]. In total, the Agreed Order outlined 45 areas of
concern, stemming from various locations on the Site, which Slater was to investigate for potential
threats to the environment. [DE 46-7 at 77-82]. On July 17, 2000, Slater filed suit against Joslyn in
the Allen County Superior Court, again seeking indemnification. [DE 28-9]. Counts I and II of that
suit raised claims of contractual indemnification based on the APA, while Count III brought an ELA
claim under Indiana Code §§ 13-30-9-1 et seq. [DE 28-9]. On October 30, 2000, Joslyn filed a
motion to dismiss Slater’s claims. On April 19, 2001, the court denied the motion with respect to
Counts I and II, and granted the motion with respect to Count III. Count III was later dismissed with
prejudice for a failure to prosecute.
On March 25, 2002, Slater executed and joined in the Agreed Order which IDEM had
proposed when it issued the Notice of Violations. [DE 46-10]. On September 11, 2002, Slater
provided IDEM with a proposed Remediation Work Plan for the entire Site. [DE 46-13]. But on June
2, 2003, before IDEM could issue final approval, and before Slater could begin work on the
Remediation Work Plan for the entire Site, Slater filed a Chapter 11 voluntary bankruptcy petition
in the U.S. Bankruptcy Court for the District of Delaware. [DE 28-12]. At auction, Valbruna Slater
Stainless Inc., the plaintiffs’ corporate parent, purchased the site. In April, 2004, the plaintiffs –
Valbruna Slater Steel Corporation and Fort Wayne Steel Corporation (collectively “Valbruna”) –

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purchased the Site from their parent corporation. In so doing, Valbruna entered into a Prospective
Purchaser Agreement (“PPA”) with IDEM. The PPA essentially required a $1 million commitment
to carry out the work previously contemplated by IDEM in its dealings with Slater pre-bankruptcy.
On May 3, 2005, Valbruna’s environmental consultant submitted a Remedial Work Plan to
IDEM which laid out a plan to use Electrical Resistance Heating (“ERH”) for soil and groundwater
remediation of trichloroethylene at the Site. [DE 46-17]. IDEM approved, and the ERH project
commenced on May 23, 2005. [DE 46-18 at 7]. Although ERH was successful in eradicating 93.5%
of TCE from the soil and groundwater, work at the Site continues with respect to other
environmental issues. But since Valbruna acknowledges that remedial efforts began no later than
May 23, 2005, cleanup efforts that took place thereafter are not relevant to the purposes of this order.
DISCUSSION
There are two motions to address: (1) Joslyn’s motion for summary judgment [DE 42] and
(2) Valbruna’s motion to strike certain exhibits supporting that motion. [DE 47]. For the following
reasons, the court denies Joslyn’s motion for summary judgment, even taking all of the evidence
submitted into account. As a result, the motion to strike certain exhibits is denied as moot.
I.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DE 42]
In 1980, Congress enacted CERCLA in response to the serious environmental and health

risks posed by industrial pollution. Burlington N. and Santa Fe Ry. Co. v. United States, 556 U.S.
599, 602 (2009) (citing United States v. Bestfoods, 524 U.S. 51, 55 (1998)). Two CERCLA sections
– 42 U.S.C. §§ 9607(a) and 9613(f) – afford rights of action to private parties seeking to recover
expenses associated with cleaning up contaminated sites. See United States v. Atl. Research Corp.,
551 U.S. 128 (2007). Valbruna is pursuing an action under § 9607(a), the “cost recovery” provision

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of CERCLA. [DE 1 at 5].3 A cost recovery action essentially allows the person doing the work of
cleaning up a contaminated site to attempt to pass the bill on to the person, or persons, actually
responsible for the pollution, provided certain conditions are met. § 9607(a)(4)(B). The purpose of
CERCLA is to promote the timely cleanup of hazardous waste sites and to ensure that the costs of
such cleanup efforts are borne by those responsible for the contamination. Burlington N., 556 U.S.
at 602 (citing Consol. Edison Co. of N.Y. v. UGI Util., Inc., 423 F.3d 90, 94 (2d Cir. 2005)); Key
Tronic Corp. v. United States, 511 U.S. 809, 819 n. 13 (1994) (“CERCLA is designed to encourage
private parties to assume the financial responsibility of cleanup by allowing them to seek recovery
from others.”).
In its motion for summary judgment, Joslyn argues that Valbruna’s cost recovery action,
filed on February 11, 2010, is barred by the statute of limitations. The limitations period for an initial
action for recovery of costs can be found at 42 U.S.C. § 9613(g)(2). That section provides, in
relevant part:
(2)

Actions for recovery of costs
An initial action for recovery of the costs referred to in section 9607 of this
title must be commenced –
(A)

for a removal action, within 3 years after completion of the removal
action . . .

(B)

for a remedial action, within 6 years after initiation of physical
on-site construction of the remedial action . . . [.]

Both parties agree that the action Valbruna is currently taking at the Site (the ERH and associated
cleanup efforts) is a “remedial action,” so subsection 9613(g)(2)(B) governs when the statute of

3
Valbruna is also pursuing a declaratory judgment of Joslyn’s continuing liability for contamination at the
Site [DE 1 at 7], but for all purposes relevant to this order, that claim is derivative to the cost recovery action.

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limitations began to run for this lawsuit. The issue under debate is when the triggering event – the
“initiation of physical on-site construction of the remedial action” – occurred. Valbruna argues that
it occurred in 2005, when the ERH project commenced. Joslyn believes that it occurred in the 1980s
or early 1990s, when Slater first attempted to address pollution at the Joslyn surface impoundment
and waste pile areas, and that this lawsuit is therefore time-barred.4 Valbruna’s rejoinder is that those
earlier actions were removal actions, not a part of the current remedial action. As a result, Valbruna
argues, any recovery for those expenses is barred under subsection 9613(g)(2)(A), but that has no
effect on recovery for the remedial action currently underway.
The court agrees with Valbruna that Slater’s actions were removal actions, and therefore do
not determine when the statute of limitations began to run for a cost recovery action based on
Valbruna’s current remedial work. Moreover, there is an alternate basis for denying summary
judgment apparent in the record. Even if Slater’s actions were remedial in nature, the undisputed
evidence shows that they were discrete, divisible “operable units” such that they have no bearing
on Valbruna’s ability to recover for the remedial action now underway.
A.

Slater’s Cleanup Efforts in the 1980s and 1990s Were Removal Actions, so the
Present Action Is Timely.

The court agrees with Valbruna that the actions Slater took in the 1980s and 1990s were
removal actions, for two reasons. First, federal regulations identify those exact actions, when taken
under circumstances like those present in this case, as removal actions. Second, although Slater’s

4

In passing, the court notes that the earliest date that the cause of action could have accrued is October 17,
1986, which is the effective date of the CERCLA statute of limitations, because the limitations period cannot have
begun to run prior to its enactment. See United States v. Fairchild Indus., Inc., 766 F.Supp. 405, 415 (D. Md. 1991);
Velsicol Chemical Corp. v. Enenco, Inc., 9 F.3d 524, 528–29 (6th Cir. 1993); United States v. Moore, 698 F.Supp.
622, 625–27 (E.D. Va. 1988).

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efforts have some characteristics in common with both removal and remedial actions as generally
exemplified in the case law, on balance they are more consistent with what courts typically consider
to be removal actions. As a result, Valbruna’s lawsuit is not time-barred.
1.

The statutory scheme and federal regulations suggest that Slater’s activity
was a removal.

The terms “removal action” and “remedial action” represent the two primary forms of
response contemplated by CERCLA, and they are statutorily defined:

(23) The terms “remove” or “removal” means the cleanup or removal of released
hazardous substances from the environment, such actions as may be necessary taken
in the event of the threat of release of hazardous substances into the environment,
such actions as may be necessary to monitor, assess, and evaluate the release or
threat of release of hazardous substances, the disposal of removed material, or the
taking of such other actions as may be necessary to prevent, minimize, or mitigate
damage to the public health or welfare or to the environment, which may otherwise
result from a release or threat of release. The term includes, in addition, without
being limited to, security fencing or other measures to limit access, provision of
alternative water supplies, temporary evacuation and housing of threatened
individuals not otherwise provided for, action taken under section 9604(b) of this
title, and any emergency assistance which may be provided under the Disaster Relief
and Emergency Assistance Act [42 U.S.C.A. § 5121 et seq.].
(24) The terms “remedy” or “remedial action” means those actions consistent with
[the] permanent remedy taken instead of or in addition to removal actions in the
event of a release or threatened release of a hazardous substance into the
environment, to prevent or minimize the release of hazardous substances so that they
do not migrate to cause substantial danger to present or future public health or
welfare or the environment. The term includes, but is not limited to, such actions at
the location of the release as storage, confinement, perimeter protection using dikes,
trenches, or ditches, clay cover, neutralization, cleanup of released hazardous
substances and associated contaminated materials, recycling or reuse, diversion,
destruction, segregation of reactive wastes, dredging or excavations, repair or
replacement of leaking containers, collection of leachate and runoff, onsite treatment
or incineration, provision of alternative water supplies, and any monitoring
reasonably required to assure that such actions protect the public health and welfare
and the environment. The term includes the costs of permanent relocation of
residents and businesses and community facilities where the President determines
that, alone or in combination with other measures, such relocation is more
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cost-effective than and environmentally preferable to the transportation, storage,
treatment, destruction, or secure disposition offsite of hazardous substances, or may
otherwise be necessary to protect the public health or welfare; the term includes
offsite transport and offsite storage, treatment, destruction, or secure disposition of
hazardous substances and associated contaminated materials.
42 U.S.C. § 9601(23)-(24).
At first glance, it would appear that the actions Slater took at the surface impoundment and
waste pile qualify as a “remedial action;” the definition specifically includes excavations and clay
covers, inter alia. § 9601(24). But cases suggest that, under a proper reading of the statutory
distinction, it is not possible to determine whether an action is a removal action or a remedial action
based solely on the characteristics of the action itself. The court must instead look to the
circumstances which the action is meant to address. Practically speaking, “removal actions are ‘those
taken to counter imminent and substantial threats to public health and welfare,’ while remedial
actions ‘are longer term, more permanent responses.’” Morrison Enters., LLC v. Dravo Corp., 638
F.3d 594, 608 (8th Cir. 2011) (quoting Minnesota v. Kalman W. Abrams Metals, Inc., 155 F.3d
1019, 1024 (8th Cir. 1998)); see also See also Carson Harbor Village, Ltd. v. Unocal Corporation,
287 F.Supp.2d 1118, 1158 (C.D. Cal. 2003) (property owner's cleanup of tar-like and slag materials
was “remedial action” because there was no evidence that the materials posed the type of threat to
human health and welfare that required immediate action); Advanced Micro Devices, Inc. v.
National Semiconductor Corp., 38 F.Supp.2d 802, 810 (N.D. Cal. 1999) (removal actions are
“short-term action[s] taken to halt the immediate risks posed by hazardous wastes”); Channel Master
Satellite Systems, Inc. v. JFD, 748 F.Supp. 373, 385 (E.D.N.C. 1990) (“The courts have consistently
found that the removal category was to be used in that limited set of circumstances involving a need
for rapid action, while non-urgent situations are to be addressed as remedial actions”).

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Moreover, the federal regulations support that approach. They provide a non-exhaustive list
of actions which qualify as “removals,” but only under certain circumstances:
(1)

Fences, warning signs, or other security or site control precautions – where
humans or animals have access to the release;

(2)

Drainage controls, for example, run-off or run-on diversion – where needed
to reduce migration of hazardous substances or pollutants or contaminants
off-site or to prevent precipitation or run-off from other sources, for example,
flooding, from entering the release area from other areas;

(3)

Stabilization of berms, dikes, or impoundments or drainage or closing of
lagoons – where needed to maintain the integrity of the structures;

(4)

Capping of contaminated soils or sludges – where needed to reduce migration
of hazardous substances or pollutants or contaminants into soil, ground or
surface water, or air;

(5)

Using chemicals and other materials to retard the spread of the release or to
mitigate its effects – where the use of such chemicals will reduce the spread
of the release;

(6)

Excavation, consolidation, or removal of highly contaminated soils from
drainage or other areas – where such actions will reduce the spread of, or
direct contact with, the contamination;

(7)

Removal of drums, barrels, tanks, or other bulk containers that contain or
may contain hazardous substances or pollutants or contaminants – where it
will reduce the likelihood of spillage; leakage; exposure to humans, animals,
or food chain; or fire or explosion;

(8)

Containment, treatment, disposal, or incineration of hazardous materials –
where needed to reduce the likelihood of human, animal, or food chain
exposure; or

(9)

Provision of alternative water supply – where necessary immediately to
reduce exposure to contaminated household water and continuing until such
time as local authorities can satisfy the need for a permanent remedy.

40 C.F.R. § 300.415(e)(1)-(9). One can see immediately that it is, at least partially, the
circumstances in which an action is taken that must determine whether that action is a “removal”

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or a “remedial” action under the statutory and regulatory scheme. Otherwise, the list of removal
actions contained in the federal regulations would be hopelessly in conflict with the statutory text.
In fact, every item listed in the regulations as a “removal action” is also specifically included in the
meaning of “remedial action” by the statutory definition. See 42 U.S.C. § 9601(24).
Items (4) and (6) seem directly applicable to what Slater did in this case. Slater’s actions
consisted of soil and sludge excavations, site capping, and groundwater monitoring and assessment.
[DE 42-7 at 36]. The purpose of those efforts was, among other things, to “prevent or mitigate any
migration or releases of hazardous waste and/or hazardous constituents at or from the facility.” [DE
46-7 at 8]. Such releases, or threatened releases, had drawn the attention of the EPA and IDEM,
which were not convinced (despite Slater’s efforts) that conditions at the areas in question following
initial excavation were “not harmful to human health and the environment [or] that closure by
removal had been achieved.” [DE 46-7 at 9]. IDEM was also concerned, based on regional
groundwater movement patterns, that the pollutants at issue would transfer into a local river,
especially given the relatively shallow depth of groundwater in the area. [DE 46-7 at 8-9]. Joslyn
seems to suggest that the fact that Slater’s efforts to clean up the surface impoundment began with
its desire to come into compliance with the newly-passed Resource Conservation and Recovery Act
(“RCRA”) means it could not have been a removal action, but that seems to be besides the point.
Whether Slater was combating an impending environmental threat out of fear of regulatory
enforcement or out of a more benevolent desire to keep others safe, either way it was still combating
an impending environmental threat.
The court recognizes that it is not an easy question, considering the overlap between the
statutory definitions. See Public Serv. Co. of Colo. v. Gates Rubber Co., 175 F.3d 1177, 1182 (10th

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Cir. 1999) (noting that elements of remedial actions and removal actions “may overlap and
semantics often obscure the actual nature of the cleanup performed”). But where, as here, the actions
were taken as a sort of “first response,” in order to mitigate a substantial present or threatened
release of pollutants into ground and surface water, EPA regulations strongly suggest classifying
them as “removal” actions. 40 C.F.R. § 300.415(e)(4); (e)(7).
2.

On balance, Slater’s activities are more consistent with what courts typically
consider to be removal actions than with what courts typically consider to be
remedial actions.

Although Slater’s efforts have some characteristics in common with both removal and
remedial actions as generally exemplified in the case law, on balance they are more consistent with
what courts typically consider to be removal actions.
Joslyn relies on only a few cases to argue that Slater’s actions were part of the “remedial”
action to be taken at the Site. The first, and the case on which Joslyn relies most heavily, is Cytec
Indus., Inc. v. B.F. Goodrich Co., 232 F.Supp.2d 821 (S.D. Ohio 2002). In Cytec, cleanup efforts
at a contaminated site commenced after the EPA inspected the facility for RCRA compliance and
designated 28 waste management areas for further evaluation. Id. at 825-26. The plaintiff began its
compliance efforts by designating two ponds – the major problem areas identified by the EPA
evaluation – for closure. Id. at 826. The court was asked to consider whether the pond cleanups were
part of the larger remedial action for the entire site. It found that they were, largely because “[t]he
cleanup of Ponds 1 and 2 was not the result of an immediate release or threat of release of hazardous
substances[.]” Id. at 838. The court also considered that removal actions generally cost less, and take
less time, than remedial actions. Id. at 833. “Further, ‘[r]emoval concerns are more procedural in
nature in that they speak to ‘monitoring,’ ‘assessing,’ and ‘evaluating’ the measures necessary to

13

abate short-term, manageable environmental cleanup.’” Id. (quoting Rhodes v. County of Darlington,
S.C., 833 F.Supp. 1163, 1182 (D.S.C. 1992)).
Joslyn thinks Cytec is a near-exact analogue, but the facts of this case produce a mixed match
at best. On one hand, Slater’s actions in this case spanned several years – roughly a decade, in fact.
That does seem incompatible with the typically short time duration ascribed to removal actions by
Cytec and other authorities. See Pub. Serv. Co. v. Gates Rubber Co., 175 F.3d 1177, 1182 (10th Cir.
1999) (“Generally, a removal action costs less, takes less time, and is geared to address an
immediate release or threat of release,” whereas a remedial action, which “usually cost[s] more and
take[s] longer,” “seeks to effect a permanent remedy to the release of hazardous substances when
there is no immediate threat to the public health”). But on the other hand, unlike the cleanup in
Cytec, the Slater cleanup in this case does appear to have been for the purpose of combating the
threat of release of hazardous substances, as indicated in the documentary evidence, although RCRA
compliance was obviously also on the table. The cleanup at the surface impoundment and waste pile
do not appear to have come at great expense, and the Slater cleanup plans spoke to “monitoring,”
“assessing,” and “evaluating” at considerable length, all of which the Cytec court considered to be
indicative of a removal action, not a remedial action. See 232 F.Supp.2d at 833. Moreover, the
duration of an action is just one factor to consider. Under the right circumstances, a removal action
can last quite some time. See Vill. of Milford v. K-H Holding Corp., 390 F.3d 926, 934 (6th Cir.
2004) (in which the Sixth Circuit held that a short terms of duration are not “requirements for
finding the costs of action recoverable as removal costs); United States v. Nalco Chem. Co., 2002
WL 548840 (finding a removal action lasting from 1974 to 1998).
Beyond Cytec, Joslyn only cites a few authorities, and does so in passing. Joslyn cites United

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States v. Navistar Intl. Trans. Corp., 152 F.3d 702, 713 (7th Cir. 1998), for the proposition that the
placement of a clay cover over a landfill triggers the subsection 9613(g)(2)(B) limitations period,
but the parties in that case did not dispute that the action in question was remedial. They disputed
only when the remedial action was initiated. Joslyn also cites Schaefer v. Town of Victor, 457 F.3d
188, 203-204 (2d Cir. 2006), and Yankee Gas Services Co. v. UGI Utilities, Inc., 616 F.Supp.2d 228
271-75 (D.Conn. 2009), to suggest that excavation and re-fill activities are inherently remedial in
nature. But putting so much emphasis on the type of activity undertaken, and not on the
circumstances in which it was undertaken, seems to fly in the face of the regulatory framework, as
discussed above. It also conflicts with the Seventh Circuit’s previous acknowledgment that
excavation and capping can be considered a removal action. See Schalk v. Reilly, 900 F.2d 1091,
1093 (7th Cir. 1990) (splitting a cleanup effort into “a removal action involving surface excavation
and capping of abandoned dump sites” and a subsequent remedial action to eradicate all hazardous
wastes); see also United States v. Cantrell, 92 F.Supp.2d 704, 715 (S.D. Ohio 2000) (clay capping
considered a removal action).
Viewing all of the factors the courts in these cases have considered, it seems clear that
Slater’s actions were a removal, not a remediation. The only factors weighing in favor of classifying
the actions as a remediation is that the process took several years, and that cleaning up those two
small sites was consistent with the purpose of the wider remedial action now underway. [DE 49 at
6]. But the duration is not dispositive. See United States v. Peterson Sand & Gravel, Inc., 824
F.Supp. 751, 753 (N.D. Ill. 1991) (“Clearly, the term removal . . . includes time necessary to dispose
of the removed material as well as the time needed to evaluate the need for further activity”). And
consistency with the objectives of remediation cannot, alone, be enough. If one adopts a wide

15

enough perspective, every removal action is consistent with every remedial action in that all are
attempts to alleviate environmental concerns. Joslyn’s argument is generic in that way; it claims that
the earlier actions were steps towards the permanent remedy simply because they removed
contamination. [DE 49 at 6]. But the excavations and capping at the surface impoundment and waste
pile were not consistent with current ERH remedial measures in any case-specific, meaningful way.
In fact, excavation/removal and the in-place eradication of contaminants through ERH seem like two
completely unrelated ways to combat contaminants in the soil and groundwater.
More importantly, the Slater cleanup in the 1980s and 1990s was undertaken to combat an
environmental threat, was narrowly tailored to address that specific threat, included monitoring and
evaluation components with an eye towards a larger-scale remedial action in the future, and was not
exceptionally complex or expensive. Under the relevant cases as cited by both parties, all of those
factors weigh in favor of considering Slater’s cleanup efforts at the surface impoundment and waste
pile a removal action. That interpretation is also consistent with the federal regulations, which
specifically designate the actions taken by Slater, in this context, as “removal actions.”
3.

Valbruna’s lawsuit is timely.

The court has determined that Slater’s actions in the 1980s and 1990s were not remedial in
nature, but were a prior removal action. The next question is whether the “initiation of physical
on-site construction of the remedial action” which is currently ongoing occurred within six years of
the filing of this lawsuit. The suit was filed on February 11, 2010. That means the triggering event
must have occurred sometime after the same date in 2004, in order for Valbruna’s remedial expenses
to be recoverable. It is undisputed that the ongoing remedial action was in the planning stages
several years before that date. For example, on September 11, 2002, Slater initially provided IDEM

16

with a proposed Remediation Work Plan for the entire Site. [DE 46-13]. But Slater entered
bankruptcy not long thereafter, and no work was commenced with respect to the remedial plan until
several years later. Specifically, on May 3, 2005, Valbruna’s environmental consultant submitted
a Remedial Work Plan to IDEM which laid out a plan to use ERH for soil and groundwater
remediation of trichloroethylene at the Site. [DE 46-17]. IDEM approved, and the ERH project
commenced on May 23, 2005. [DE 46-18 at 7].
In our circuit, the triggering event occurs when “the (1) physical (2) initiation (3) on the site
(4) of the construction (5) of the remedial action” takes place. Navistar, 152 F.3d at 711. It need not
occur after the final remedial work plan is adopted, Id. at 711-12,5 and it in fact occurred earlier in
this case. The earliest evidence the court can find in the record of physical on-site construction
consistent with the remediation plan is when Valbruna’s environmental consultant “mobilized the
[Site] for well abandonment and the installation of new monitoring wells” on February 14, 2005.
[DE 46-17 at 22]. No party produced any evidence of actions prior to that date which might qualify
as the triggering event under the Navistar test (aside from Slater’s actions in the 1980s and 1990s,
which this court has found do not qualify because they constituted a removal effort). Since that date
was within the six years preceding the filing of the suit, Valbruna’s action is timely and may
proceed.

5

The Ninth Circuit has gone so far as to conclude that “the initiation of physical on-site construction of the
remedial action” under the statute “can only occur after the final remediation plan is adopted[,]” and that action
taken before the plan adoption cannot constitute “remedial action” for statute-of-limitations purposes. California ex
rel. Cal. Dep't of Toxic Substances Control v. Neville Chem. Co., 358 F.3d 661, 667 (9th Cir. 2004) (emphasis
added). That would mean the triggering event in this case could not occur until on or after May of 2005, but our
circuit has previously declined to draw such a bright line. Navistar, 152 F.3d at 711-12.

17

B.

Even if Slater’s Actions Were Remedial in Nature, They Were Discrete,
Divisible “Operable Units.”

Even if the actions Slater took in the 1980s and 1990s were remedial in nature, there is an
alternative basis for denying summary judgment on statute of limitations grounds. Slater’s actions
at the surface impoundment and waste pile were a separate and distinct cleanup effort from the ERH
remediation, and as such had no effect on when the statute of limitations began to run for the
remedial action currently taking place.
It is true that some courts have found that different phases of the same removal or remedial
action cannot serve as the basis for separate legal actions. See Colorado v. Sunoco, 337 F.3d 1233,
1241 (10th Cir. 2003); Kelley v. E.I. DuPont de Nemours and Co., 17 F.3d 836, 841-44 (6th Cir.
1994). In Sunoco, the Tenth Circuit observed:
Although both subsections (A) and (B) of § 9613(g)(2) use the indefinite article “a”
to modify the phrases “removal action” and “remedial action,” they also both use the
definite article “the” to modify those same phrases. As asserted by defendants, use
of this definite article suggests there will be but a single “removal action” and a
single “remedial action” per site. Perhaps most persuasive is the language in
subsection (B) which states that “if the remedial action is initiated within 3 years
after the completion of the removal action, costs incurred in the removal action may
be recovered in the cost recovery action brought under this subparagraph.” In our
view, this language indicates there will be but one “removal action” per site or
facility, as well as a single “remedial action” per site or facility. If Congress intended
to allow multiple actions for separate components of recovery or remedy, it surely
would have used the indefinite article “a” rather than the definite article “the” to
modify the phrases “removal action” and “remedial action.”
337 F.3d at 341-42 (internal citations omitted). The Tenth Circuit’s conclusion – that Congress
would have used the indefinite article “a” to modify the phrases “removal action” and “remedial
action” if it intended to allow multiple actions for separate cleanup components – is interesting,
considering that Congress did use the indefinite article “a”, a fact which the Tenth Circuit

18

acknowledges earlier in the same paragraph. To acknowledge that Congress used both “a” and “the,”
only to then assign dispositive importance to one of the two without much more, seems less than
convincing. The Sixth Circuit’s approach in Kelley was similar. See 17 F.3d at 843 (concluding that
Congress's choice of the modifying articles “a” and “the” to precede “removal action,” see 42 U.S.C.
§ 9613(g)(2)(A), if it proves anything, proves that Congress intended that there generally will be
only one removal action.”). This court is reluctant to decide such a significant issue relying solely
on the use of definite and indefinite articles.
A more thorough examination comes from United States v. Manzo, 182 F.Supp.2d 385
(D.N.J. 2000). In Manzo, Judge Cooper agreed that the statute was ambiguous. But rather than infer
congressional intent from the use of one form of article where two forms of article were used, Judge
Cooper discussed at length the legislative history of the statute and the administrative framework
established by the EPA. Id. at 401-02. Among other things, she noted that the House Conference
Report accompanying the SARA6 amendment to CERCLA in 1986 explicitly acknowledged the
availability of multiple actions based on separate “phases” of a cleanup:
Similarly, if a response action is being conducted at a complex site with many areas
of contamination, a challenge could lie to a completed excavation or incineration
response in one area, as defined in a Record of Decision, while a pumping and
treating response activity was being implemented at another area of the facility. It
should be the practice of the President to set forth each separate and distinct phase
of a response action in a separate Record of Decision document. Any challenge under
this provision to a completed stage of a response action shall not interfere with those
stages of the response action which have not been completed.
H.R. Conf. Rep. No. 99-962 at 224 (1986), reprinted in 1986 U.S.C.C.A.N. 3276, 3317 (emphasis
added). This expression of congressional intent could not be more clear. Not only did Congress

6
Referring to the “Superfund Amendments and Reauthorization Act,” which created the statute of
limitations under discussion.

19

intend to make different actions available for different phases of a response, it urged the President
to set forth EPA regulations consistent with that intent.
Judge Cooper accordingly concluded that separate actions for multiple removal or remedial
actions can be available under the right circumstances. But, obviously, breaking down a response
action too far is unacceptable. See, e.g., Kelley, 17 F.3d at 843 (noting that, clearly, each barrel
removed from a cleanup site does not trigger a new limitations period). Judge Cooper reasoned that
the logical “breakdown point” is one essentially consistent with the EPA concept of the “operable
unit.” 182 F.Supp.2d at 402. An “operable unit,” as defined by EPA regulations:
[M]eans a discrete action that comprises an incremental step toward
comprehensively addressing site problems. This discrete portion of a remedial
response manages migration, or eliminates or mitigates a release, threat of a release,
or pathway of exposure. The cleanup of a site can be divided into a number of
operable units, depending on the complexity of the problems associated with the site.
Operable units may address geographical portions of a site, specific site problems,
or initial phases of an action, or may consist of any set of actions performed over
time or any actions that are concurrent but located in different parts of a site.
40 C.F.R. § 300.5. The regulation is reflective of the reality that CERCLA cleanups often, like the
one in this case, span several decades. They tend to evolve continuously, in phases, from the initial
detection of contamination to a final solution for the entire threatened site. Moreover, EPA
regulations are entitled to deference, especially where the statutory text is ambiguous. 182 F.Supp.2d
at 402 (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984);
Christensen v. Harris County, 529 U.S. 576 (2000). The regulations, in addition to the legislative
history, suggest the availability of multiple actions.
Many courts have recognized that CERCLA response actions are conducted in divisible
parts, and, like Judge Cooper in Manza, have tethered the statute of limitations in one way or another
to the “operable units,” or distinct phases, of a cleanup project. See, e.g., United States v. Ambroid
20

Co., Inc., 34 F.Supp.2d 86 (D.Mass. 1999) (considering each of several remedial actions separately
for purposes of determining the statute of limitations); Douglas Autotech Corp. v. The Scott Fetzer
Co., 2008 WL 205217 (W.D. Mich. 2008) (analyzing two cleanup phases separately for statute of
limitations purposes).7
The evidence in this case shows that even if Slater’s actions at the surface impoundment and
waste pile were remedial actions, they were distinct from the remedial project undertaken by
Valbruna over the last decade. First, they were the product of a different set of consent orders with
IDEM and the EPA, issued in the 1980s. [DE 46-7]. Second, they dealt primarily with RCRA
compliance in two small areas that comprised only a fraction of the whole Site, not with overall
CERCLA compliance at the whole Site, as the current remedial plan does. Third, they were
completed in the early 1990s and certified completed by IDEM in 1999. [DE 42-7 (certificate of
completion of work required at surface impoundment and waste pile)]. That was before the current
Site-wide remedial action was even found to be necessary [DE 46-7 (Notice ov Violation issued in
2000)], developed [DE 46-13 (proposed remediation work plan submitted to IDEM in September
of 2002)], approved, or put into action. [DE 46-18 (both occurring in 2005)]. Finally, and most
importantly, Slater’s cleanup effort at the surface impoundment and waste pile perfectly match the
regulatory definition of a distinct “operable unit,” in that it was a “discrete action that comprise[d]
an incremental step toward comprehensively addressing site problems” which “manage[d]
7

The court notes that the Seventh Circuit has also recently employed the “divisibility” approach to a
CERCLA statute of limitations question. See Bernstein v. Bankert, 702 F.3d 964, 981-84 (7th Cir. 2012) (analyzing a
pair of removal actions separately for statute of limitations purposes where each removal action was the product of a
separate consent order and where the first removal action was certified complete by the EPA before the nature of the
second removal action was even determined); but see Navistar, 152 F.3d 702, 713 (noting that the mere fact that a
first attempt at removal fails and has to be repeated does not mean that a second attempt of the same removal action
founds a new cause of action). Since the time available for possible rehearing on the Bernstein decision has not yet
expired, this court will not rely on Bernstein as dispositive. But there is no need to do so. The remaining authorities
on the issue are persuasive.

21

migration, or eliminate[d] or mitigate[d] a release, threat of a release, or pathway of exposure” and
“address[ed] geographical portions of a site[.]” 40 C.F.R. § 300.5.
Slater’s actions in the 1980s and 1990s at the surface impoundment and waste pile were
removal actions, and for that reason had no impact on when the statute of limitations for the current
remedial action began to run. But even if they were remedial actions, they were separate and distinct
remedial actions –“operable units” which were divisible from the current project – which likewise
had no bearing on when the statute of limitations for the current project began to run.
II.

VALBRUNA’S MOTION TO STRIKE [DE 47]
On March 14, 2012, Valbruna moved to strike eight of the exhibits Joslyn submitted in

support of summary judgment. [DE 47]. Joslyn’s objection is that the exhibits – each retrieved from
the IDEM website – were not properly authenticated. Since the court has concluded that Joslyn’s
motion for summary judgment must be denied as a matter of law even when the exhibits in question
are considered, it is not prejudicial to Valbruna to allow them into the summary judgment record.
Valbruna’s motion to strike is accordingly denied.
CONCLUSION
For the reasons stated herein, Joslyn’s motion for summary judgment [DE 42] is DENIED.
The federal regulations differentiating between removal and remedial actions weigh in favor of
classifying Slater’s activities at the Site in the 1980s and 1990s as removal, rather than remedial,
activities, and the balance of the factors referenced by the case law support the same conclusion.
Even if that were not the case, Slater’s actions in the 1980s and 1990s were distinct from the
remedial action underway, and therefore have no impact on when the statute of limitations began
to run. Finally, Valbruna’s motion to strike [DE 47] is DENIED.

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SO ORDERED.
ENTERED:

March 21, 2013

/s/ JON E. DEGUILIO
Judge
United States District Court

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