VON DUPRIN LLC v. MORAN ELECTRIC SERVICE, INC. et al

Filing 203

ENTRY ON THE PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT - For the reasons stated above, Von Duprin's Motion for Partial Summary Judgment on Section 107 (a) Liability, (Filing No. 133 ), is DENIED. Moran's Cross-Motion for Partial S ummary Judgment, (Filing No. 138 ), is GRANTED. All claims against Moran remain for resolution at trial, but Moran is not jointly and severally liable on Count I, it is liable only for the proportion of the harm it caused. The Major Defendants� 39; Cross-Motion for Summary Judgment against Plaintiff and Motion for Summary Judgment Against Cross-Claimant, (Filing No. 141 ), is GRANTED in part and DENIED in part. Both claims against the Major Defendants remain for resolution at trial, but like Moran, they are liable only for the proportion of the harm they caused. Additionally, they are not liable for any contamination emanating from the Zimmer Packaging Facility or the Moran property because they are bona fide prospective purchas ers of those parcels of land. The Major Defendants' Motion for Summary Judgment against cross-claimant Moran is DENIED. Thus, both cross-claims (Filing No. 52 ; Filing No. 70 ) remain to be resolved at trial. (See Entry.) Signed by Judge Tanya Walton Pratt on 2/11/2019. (NAD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
VON DUPRIN LLC,

)
)
Plaintiff,
)
)
v.
)
)
MORAN ELECTRIC SERVICE, INC.,
)
MAJOR HOLDINGS, LLC,
)
MAJOR TOOL AND MACHINE, INC., and
)
ZIMMER PAPER PRODUCTS INCORPORATED )
)
Defendants.
)
)
MAJOR HOLDINGS, LLC,
)
MORAN ELECTRIC SERVICE, INC.,
)
MAJOR TOOL AND MACHINE, INC.,
)
)
Counter Claimants,
)
)
v.
)
)
VON DUPRIN LLC, MAJOR HOLDINGS, LLC, )
and MAJOR TOOL AND MACHINE, INC.,
)
)
Counter Defendants.
)
)
MAJOR HOLDINGS, LLC, AND MAJOR TOOL )
AND MACHINE, INC.,
)
)
Cross Claimants,
)
)
v.
)
)
MORAN ELECTRIC SERVICE, INC.,
)
VON DUPRIN LLC,
)
Cross Defendants.
)

Case No. 1:16-cv-01942-TWP-DML

ENTRY ON THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court on Plaintiff Von Duprin LLC’s (“Von Duprin”) Motion for
Partial Summary Judgment on Section 107(a) Liability (Filing No. 133), and Defendant Moran

Electric Service, Inc’s. (“Moran”) Cross-Motion for Partial Summary Judgment (Filing No. 138).
Also pending is Major Holdings, LLC’s and Major Tool and Machine, Inc.’s (collectively, “the
Major Defendants”), Cross-Motion for Summary Judgment against Plaintiff and Motion for
Summary Judgment against Cross-Claimant (Filing No. 141). Von Duprin alleges the Major
Defendants, in their status as current owners of certain properties, are liable for damages owed to
it under Section 107(a) of the Comprehensive Environmental Response, Compensation and
Liability Act (“CERCLA”). (Filing No. 134.) Moran asks the Court to deny Von Duprin’s motion
for summary judgment and to issue a ruling declaring that Moran is responsible only for its
proportionate share of harm. (Filing No. 139.) The Major Defendants seek summary judgment
on all claims asserted against them by both Von Duprin and Moran. (Filing No. 142.) For the
reasons stated below, Von Duprin’s Motion for Partial Summary Judgment is denied. Moran’s
Motion for Partial Summary Judgment is granted. The Major Defendants’ Motion for Summary
Judgment against Von Duprin is granted in part and denied in part, and their Motion for
Summary Judgment against cross-claimant Moran is denied.
I. BACKGROUND
A.

Factual History
This litigation relates to the release of hazardous substances at several properties located

in Indianapolis, Indiana, including a property previously owned by Von Duprin, and 1925
Columbia Avenue, (the “Von Duprin Facility”) and several upgradient properties, owned at
various times by Moran and/or the Major Defendants. Those upgradient properties are bounded by
Hovey Street to the east, East 19th Street to the south, Dr. Andrew J. Brown Avenue to the west,
and East 21st Street to the North. (Filing No. 42-1.) The parties have generally divided the
upgradient lot into three components based on ownership rather than geography: the “Former Ertel

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Facility,” the “Former Zimmer Paper Facility,” (subdivided into the Zimmer Paper Facility and
the Zimmer Packaging Facility) and the “Former Moran Facility.” (Filing No. 134 at 7-8; Filing
No. 139 at 5-6; Filing No. 142 at 6-7.) All three of those facilities as well as the Von Duprin
Facility were once owned and operated by manufacturers who released chlorinated solvents into
nearby groundwater, which comingled into a plume producing negative environmental effects.
The Major Defendants are the current owners of four of the properties at issue in this case:
the Moran Property, the Zimmer Paper Parcel, the Zimmer Packaging Facility, and the Ertel
Facility. While the Major Defendants themselves have not caused or contributed any
contamination on any of those properties, it is undisputed that their ownership of the contaminated
properties brings legal obligations. Since acquiring the properties they have participated in
investigation and cleanup.
1.

The Von Duprin Facility

Von Duprin manufactured exit devices such as door handles for commercial applications
from 1955 to 1986 at 1925 Columbia Avenue in Indianapolis. 1 (Filing No. 140-1 at 2,5.) Its
operations resulted in the release of hazardous chemicals, including trichloroethylene (“TCE”) and
perchloroethylene (“PCE”), into soil and groundwater on and around the Von Duprin Facility 2.
(Filing No. 140-2.) In 1986, Von Duprin ceased operations, and its owner at that time, IngersollRand Company, sold the facility to Threaded Rod Company, Inc. in 1987. (Filing No. 140-1 at 2.)
Threaded Rod Company manufactured anchor bolts and connecting rods and did not generate
hazardous waste. Id.
The address of the site has changed from 1925 Columbia Avenue to 1929 Columbia Avenue. (Filing No. 140-2.)
Trichloroethylene is used as a solvent for cleaning metal parts. Exposure to very high concentrations of
trichloroethylene can cause dizziness, headaches, sleepiness, incoordination, confusion, nausea, unconsciousness, and
even death. See https://www.atsdr.cdc.gov/toxfaqs /tf.asp?id=172&tid=30. Perchloroethylene is a colorless liquid
that is also called tetrachloroethylene, PERC, or PCE. It is primarily used for dry cleaning fabrics and degreasing
metals. See https://toxtown.nlm.nih.gov/chemicals-and-contaminants/perchloroethylene-pce-perc. Both TCE and
PCE are designated as hazardous substances under federal regulations. 40 C.F.R. § 302.4(a).
1
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2.

Former Ertel Facility

Ertel Manufacturing operated the facility from the 1890’s through 2001 and it originally
contained a machine shop and aluminum and iron foundries, but later was used to manufacture
automotive engine parts. (Filing No. 135-1 at 5.) The property was sold to Dynagear in 1998,
who used it to manufacture auto parts until 2002, when the property was abandoned, leaving
behind soil and groundwater impacted with chlorinated volatile organic compounds. Id. Between
2004 and 2008, the City of Indianapolis, the Indiana Department of Environmental Management
(“IDEM”), and the U.S. Environmental Protection Agency performed cleanup activities at the
Former Ertel Facility site. Id at 6. The parties agree that these cleanup activities addressed soil on
the site that had been impacted by TCE, and designated evidence shows that confirmation sampling
following soil excavation at the site showed elevated levels of TCE and PCE at levels that far
exceed industrial default closure levels. (Filing No. 140-17 at 28-32.) The parties disagree as to
whether the cleanup activities addressed TCE or PCE in the groundwater on the site. 3 (Filing No.
134 at 7; Filing No. 139 at 6; Filing No. 142 at 6.)
3.

Former Zimmer Paper Facility

The Former Zimmer Paper Facility was located at 1931 Dr. Andrew J. Brown Avenue.
(Filing No. 135-1 at 4.) It had been used for chemical and equipment storage. (Filing No. 134 at
7.) Moran owned the property between 1967 and 1983, when title was conveyed to Defendant
Zimmer Paper Products Incorporated (“Zimmer”). (Filing No. 135-1 at 4.) Major Holdings
acquired title to the facility in 2007 and is the current owner. Id. In 2007, 7,350 tons of chlorinated
solvent-impacted-soil were removed from the site. (Filing No. 135-4 at 5.) The parties dispute

Von Duprin and Moran contend no cleanup effort has addressed groundwater contamination, while the Major
Defendants state: “Remedial actions undertaken at the Ertel Facility have resulted in a substantial reduction of the
contaminant mass and a reduction of the migration of contamination to the groundwater.” (Filing No. 142 at 6.)

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whether there has been any remedial effort to address impacts to the groundwater at the Former
Zimmer Paper Facility. 4 (Filing No. 134 at 8; Filing No. 139 at 6; Filing No. 142 at 6.)
4.

Former Moran Facility

The Former Moran Facility (Moran Motor Shop and Moran Dynamometer Building) is
property addressed as 1931 Dr. Andrew J. Brown Avenue and 1436 E. 19th Street. Moran used
the site for industrial manufacturing operations from approximately 1927 to 1998. Major Holdings
has owned this property since 2005.
In April 2016, IDEM notified Moran that it was a potentially responsible party (“PRP”)
under the State Cleanup Program pursuant to Indiana Code § 13-25-4, in connection with soil and
gradient contamination at property located on the former Moran Facility. IDEM determined the
Former Moran Facility released TCE, PCE, and other hazardous substances that aggregated with
hazardous substances running off other nearby properties to create a “ground water contaminant
plume.” (Filing No. 135-1 at 6.) Von Duprin attributes these hazardous substances to degreasing
pits that Moran operated when it owned the property. (Filing No. 134 at 8.) Von Duprin alleges
“no effort was made to address impacts to the groundwater either on the Moran site or
downgradient.” Id.

Moran alleges that soil samples taken from the degreasing pits just after

Moran ceased operations at the site in 1996 showed either no traces of TCE or TCE concentrations
“well below industrial default closure levels.” (Filing No. 139 at 5.) According to Moran, after
buildings at the Former Moran Facility were demolished, soil samples detected levels of TCE and
PCE below the industrial default closure levels and those samples were disposed of as nonhazardous waste. Id. The Major Defendants dispute Von Duprin’s claim that no remedial efforts

The Major Defendants assert that they have voluntarily undertaken remedial actions at the site that have “resulted in
a substantial reduction of the contaminant mass and a reduction of the migration of contamination to the groundwater.”
(Filing No. 142 at 6.)

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were undertaken at the Former Moran Facility to reduce the migration of contamination to the
groundwater. (Filing No. 142 at 7.)
5.

Investigative and Remedial Efforts

In August 2013, IDEM notified Von Duprin that it was a PRP under the State Cleanup
Program pursuant to Indiana Code § 13-25-4 in connection with soil and groundwater
Contamination at the Columbia Avenue Facility and may have incurred liability in connection with
the release of hazardous substances from the Von Duprin Facility. (Filing No. 135-8.) At IDEM’s
direction, Von Duprin performed extensive sampling and investigation of the soil, soil gas, indoor
air, and groundwater at the Von Duprin Facility. (Filing No. 136 at 2.) IDEM required Von Duprin
to conduct downgradient groundwater and indoor air sampling to determine how far certain
hazardous substances migrated. Id. Von Duprin’s investigation found hazardous substances at
the Von Duprin Facility and other properties near Dr. Andrew J. Brown Avenue and E. 19th Street,
including at residences. Id. Von Duprin installed mitigation systems into each affected residence
that reduced contaminants to levels that meet IDEM’s expectations. Id. Von Duprin continues to
maintain and pay the annual cost for the operation of each residential mitigation system. Id.
IDEM also ordered the Threaded Rod Company, the current occupant of the Von Duprin
Facility, to investigate the extent of groundwater contamination and to engage in remedial actions
to protect nearby residents and the public from hazardous chemicals. (Filing No. 135-9.) After
undertaking an investigation, the Threaded Rod Company sued Von Duprin and Moran to recover
the costs. (Filing No. 135-10.) Von Duprin reached a settlement with the Threaded Rod Company,
the terms of which required Von Duprin to complete the investigation the Threaded Rod Company
had started and to finance cleanup of the Von Duprin Facility and the contaminated groundwater.
(Filing No. 136 at 3.) The Threaded Rod Company relinquished its work product to Von Duprin,

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giving Von Duprin access to sampling results and laboratory data and reports prepared by
Threaded Rod Company’s consultants. Id. Von Duprin has attempted to engage the Defendants
in remedial efforts to mitigate the contaminated groundwater in the area, but, according to Von
Duprin, the Defendants have refused. Id. at 4. Moran denies it has contributed to contamination
of groundwater through TCE and PCE seepage (Filing No. 139 at 5-6), and the Major Defendants
deny that they have refused to engage in remedial efforts. (Filing No. 142 at 7.)
More facts will follow as necessary.
B.

Procedural History
Von Duprin filed this action seeking a judgment against Moran, the Major Defendants and

Zimmer Paper Products Incorporated (collectively, “Defendants”) under 42 U.S.C. §§
9607(a)(4)(B) and 9613(g)(2) and Indiana Code § 13-30-9. Von Duprin’s Amended Complaint,
filed on January 4, 2017, alleges the same two claims against each Defendant: (1) cost recovery
under section 107(a)(4)(B) of CERCLA, and (2) declaratory judgment under section 113(g)(2) of
CERCLA 5. (Filing No. 42.) It also alleges environmental claims against Moran and Zimmer
Paper under Indiana Code § 13-30-9, et seq, which allows Hoosiers to “bring an environmental
legal action against a person that caused or contributed to the release [of hazardous substances or
petroleum] to recover reasonable costs of a removal or remedial action.” Id.
On January 18, 2017, the Major Defendants filed an Answer to Von Duprin’s Amended
Complaint and a counterclaim against Von Duprin and a cross-claim against Moran. (Filing No.
46.) On January 24, 2017, Moran filed an Answer to Von Duprin’s Amended Complaint, a

Both the case law and administrative materials addressing CERCLA frequently switch back and forth between
referring to sections of the act by their section number, as enacted, and their section by number as codified. “Section
107(a) of CERCLA, for example, was codified at 42 U.S.C. § 9607(a); “Section 113(f)” corresponds to § 9613(f). See
Bernstein v. Bankert, 733 F.3d 190, 288 (7th Cir. 2013).

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counterclaim against Von Duprin, and a Motion for Leave to Assert Counterclaims against the
other Defendants. (Filing No. 52; Filing No. 53.)
Pursuant to the Court’s “Courtroom Procedures and Trial Practice,” (Filing No. 67), the
Major Defendants and Moran notified the Court that the parties intended to file cross-motions for
summary judgment and moved to set a “summary judgment briefing schedule.” (Filing No. 129.)
The Court granted that motion in part and set the following summary judgment briefing schedule:
1. Von Duprin’s deadline to file its Motion for Summary Judgment and Brief in
Support is July 27, 2018 (limited to 35 pages);
2. Moran, Major Holdings, and Major Tool’s deadline to file their Cross-Motions
for Summary Judgment, Briefs in Support, and Responses in Opposition to Von
Duprin’s Motion for Summary Judgment is August 17, 2018 (limited to 55 pages);
3. Von Duprin’s deadline to file its Reply in Support of its Motion for Summary
Judgment and Responses in Opposition to Cross-Motions for Summary Judgment
is September 14, 2018 (limited to 40 pages); and
4. Moran, Major Holdings, and Major Tool’s deadline to file their Replies in
Support of Cross-Motions for Summary Judgment is September 28, 2018 (limited
to 20 pages).
If Von Duprin believes a Surreply is appropriate under Local Rule 56-1(d), plaintiff
may file a Surreply no later than seven days from the filing of Defendants’ Replies
in Support of Cross-Motions for summary judgment, (limited to 7 pages).
(Filing No. 132.)
On July 27, 2018, Von Duprin filed its Motion for Partial Summary Judgment, asking only
for judgment as to liability under Section 107(a) of CERCLA against all parties. (Filing No. 133.)
On August 17, 2018, Moran filed a response and Cross-Motion for Summary Judgment asking the
Court to determine that it is liable only for its proportionate share of the harm caused under Section
107(a) of CERCLA. (Filing No. 138.) Also, on August 17, 2018, the Major Defendants filed their
response and Cross-Motion for Summary Judgment, asking for judgment against all parties as to
all claims. (Filing No. 141.)
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On August 21, 2018, Moran moved to strike the Major Defendants’ Motion for Summary
Judgment, arguing the Court’s Summary Judgment Briefing Schedule did not contemplate a
Motion for Summary Judgment against a cross-claimant, and thus the Major Defendants should
have filed their Motion for Summary Judgment against Moran by the July 27, 2018 original
deadline for dispositive motions. (Filing No. 144.) The Major Defendants responded that the
briefing schedule did not specify when it should file its Motion for Summary Judgment against
Moran, but that it had acted in good faith and Moran had not suffered any prejudice. (Filing No.
145.) Before the Court ruled on that Motion to Strike, Von Duprin filed a Reply in support of its
Motion for Partial Summary Judgment (Filing No. 149; Filing No. 150), and Moran filed a
Response in Opposition to Major Defendants’ Cross-Motion for Summary Judgment. (Filing No.
152.) On December 10, 2018, the Court denied Moran’s Motion to Strike, finding the Major
Defendants had committed excusable neglect by filing their Cross-Motion for Summary Judgment
after the Court’s original dispositive motions deadline. (Filing No. 164.)
II.

STANDARD OF REVIEW

The purpose of summary judgment is to “pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). Federal Rule of Civil Procedure 56 provides that 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.” Hemsworth v.
Quotesmith.com, Inc., 476 F.3d 487, 489–90 (7th Cir. 2007). In ruling on a motion for summary
judgment, the court reviews “the record in the light most favorable to the non-moving party and
draw[s] all reasonable inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584

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(7th Cir. 2009) (citation omitted). “However, inferences that are supported by only speculation or
conjecture will not defeat a summary judgment motion.” Dorsey v. Morgan Stanley, 507 F.3d 624,
627 (7th Cir. 2007) (citation and quotation marks omitted). Additionally, “[a] party who bears the
burden of proof on a particular issue may not rest on its pleadings, but must affirmatively
demonstrate, by specific factual allegations, that there is a genuine issue of material fact that
requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “The opposing party cannot meet
this burden with conclusory statements or speculation but only with appropriate citations to
relevant admissible evidence.” Sink v. Knox County Hosp., 900 F. Supp. 1065, 1072 (S.D. Ind.
1995) (citations omitted).
“In much the same way that a court is not required to scour the record in search of evidence
to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits
of [the] claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citations and quotation
marks omitted). “[N]either the mere existence of some alleged factual dispute between the parties
nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion
for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir.
1997) (citations and quotation marks omitted).
These same standards apply even when each side files a motion for summary judgment.
The existence of cross-motions for summary judgment does not imply that there are no genuine
issues of material fact. R.J. Corman Derailment Serv., LLC v. Int’l Union of Operating Eng’rs.,
335 F.3d 643, 647 (7th Cir. 2003). The process of taking the facts in the light most favorable to
the non-moving party, first for one side and then for the other, may reveal that neither side has
enough to prevail without a trial. Id. at 648. “With cross-motions, [the Court’s] review of the
record requires that [the Court] construe all inferences in favor of the party against whom the

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motion under consideration is made.” O’Regan v. Arbitration Forums, Inc., 246 F.3d 975, 983
(7th Cir. 2001) (citation and quotation marks omitted).
III.

DISCUSSION

In response to the serious environmental and health risks posed by industrial pollution,
Congress enacted CERCLA in December of 1980. See 42 U.S.C. § 9601-9675. Burlington
Northern and Santa Fe Ry. Co. v. United States, 556 U.S. 599, 602 (2009). CERCLA is designed
to encourage private parties to assume the financial responsibility of cleanup by allowing them to
seek recovery from others. Id. at 602. In 1986, Congress passed the Superfund Amendments and
Reauthorization Act (SARA), which amended CERCLA. Among the SARA amendments:
Congress created an express cause of action for contribution for certain parties liable or potentially
liable under Section 107(a), codified as CERCLA § 113(f)(1), and an express right of contribution
for those parties who resolved their liability to the United States or the State in an approved
settlement, codified as CERCLA § 113(f)(3)(B). See Bernstein v. Bankert, 733 F. 3d 190, 206 (7th
Cir. 2013).
Section 107(a)(2) CERCLA liability attaches to any person who at the time of disposal of
any hazardous substance owned or operated any facility at which such hazardous substances were
released. The elements of a CERCLA claim are: (1) the Site in question is a “facility”; (2) a release
or threatened release of a hazardous substance at or from the facility has occurred; (3) the release
or threatened release has resulted in necessary response costs being incurred consistent with the
“national contingency plan”; and (4) the defendant is a “covered person” under §107(a) of
CERCLA. 42 U.S.C. § 9607(a); Sycamore Indus. Park Assocs. v. Ericsson, Inc., 546 F.3d 847,
850 (7th Cir. 2008); NutraSweet Co. v. X-L Eng'g Co., 227 F.3d 776, 791 (7th Cir. 2000). A
“covered person” includes the following: (1) the current owner and operator of the facility; (2) any
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person who at the time of disposal of any hazardous substance owned or operated any facility at
which such hazardous substances were disposed of; (3) any person, who by contract, agreement or
otherwise arranged for the disposal or treatment of hazardous substances at the facility; and (4)
persons who transported hazardous substances to the facility. See, 42 U.S.C. § 9607(a)(1)-(4). In
its Amended Complaint, Von Duprin has asserted a claim for cost recovery under Section 107(a)
of CERCLA against each of the Defendants.
A.

Count I – Cost Recovery Under Section 107(a) of CERCLA
1.

Von Duprin’s Motion For Partial Summary Judgment (Filing No. 133)

Von Duprin asserts three premises in its motion for partial summary judgment. First, that
the Former Ertel Facility, the Former Zimmer Paper Facility, and the Former Moran Facility are
all facilities that released or threatened to release hazardous substances under CERCLA. (Filing
No. 134 at 12-17.) Second, Moran operated the Former Moran Facility while it released or
threatened to release hazardous substances, and the Major Defendants currently own and operate
the Former Ertel Facility and the Former Zimmer Paper Facility. Id. at 17-19. Third, Von Duprin
incurred response costs due to release or threatened release of hazardous substances from those
facilities, and at least some of those response costs were necessary and incurred consistent with
the National Contingency Plan (“NCP”) as required for recovery under CERCLA. Id. at 19-25.
Moran urges the Court to deny Von Duprin’s Motion for Partial Summary Judgment,
arguing Von Duprin has not met its burden of showing that its expenditures were necessary or
incurred in compliance with the NCP, as required by Section 107(a). 6 (Filing No. 139 at 12-21.)

Moran also makes an argument for summary judgment in its favor—that the harms caused by runoff are distinct
based on geographical considerations, and thus joint and several liability is inappropriate. (Filing No. 139 at 7-12.)
The Court addresses that argument below in section III.A.4.
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The Major Defendants join that argument and make six others in opposition to Von Duprin’s
Motion. 7 (Filing No. 142 at 25-42.) First, they argue that Von Duprin waived its claims by failing
to file the State of Claims and Defenses required by the Second Revised Case Management Plan.
Id. at 19-20. They argue Von Duprin has failed to show that contamination from any site owned
by the Major Defendants caused Von Duprin to incur any costs. Id. at 24-25. They argue Von
Duprin’s claims are barred because as Bona Fide Prospective Purchasers, the Major Defendants
are exempted from CERCLA. Id. at 42-50. They argue Von Duprin’s claims are barred by the
“third party” defense set forth in Section 107(b)(3) of CERCLA, which exempts current owners
or operators who can show that the release of hazardous substance was solely caused by a third
party, among other things. Id. at 50-52. And last, the Major Defendants argue Von Duprin failed
to state a claim against Major Holdings under Section 107(a)(2) of CERCLA. Id. at 52-54. The
Major Defendants also seek summary judgment against Moran which the Court will addresses
below.
2.

Waiver

As an initial matter, the Court must determine whether Von Duprin has waived its claims
against the Major Defendants. The Second Revised Case Management Plan states “… consistent
with the certification provisions of Fed. R. Civ. Proc. 11(b) the party with the burden of proof shall
file a statement of the claims or defenses it intends to prove at trial, stating specifically the legal
theories upon which the claims or defenses are based.” (Filing No. 98 at 3, ¶ E.) The parties agree
that Von Duprin never filed a Statement of Claims and Defenses. The Major Defendants argue
that by failing to file a Statement of Claims and Defenses, Von Duprin “waived its claims against
the Major Defendants under Section 107 and Section 113 and its defenses to the Major Defendants’
The Major Defendants echo Moran’s argument that the harms are divisible, and the Major Defendants should be
apportioned no liability for the contamination. The Court addresses this argument below. (Filing No. 132 at 20-24.)
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claims under Section 113(f).” (Filing No. 142 at 20.) In support, the Major Defendants cite four
cases in which this Court granted summary judgment on a claim that a party had omitted from its
Statement of Claims and Defenses. Id.
In lieu of filing a statement that it considered redundant, “superfluous and unnecessary,”
Von Duprin’s counsel informed defense counsel that all of Von Duprin’s claims were set forth in
its Amended Complaint and he inquired of the parties to see whether there was an objection to his
decision to stand on that complaint. Von Duprin cites an e-mail its counsel sent to counsel for
Moran and the Major Defendants on July 16, 2018, which reads:
Von Duprin’s claims were fully set forth in its Amended Complaint [Dkt.
42] and there has been no change in its position in the intervening 18 months. Also,
we do not believe that Von Duprin has asserted any defenses on which it bears the
burden of proof. We believe that repeating Von Duprin’s claims in yet another
docket filing is superfluous and unnecessary.
That said, Von Duprin is willing to participate in this exercise if the
Defendants see any benefit to having Von Duprin repeat its claims again. We would
appreciate having the Defendants’ view on this issue.
Also, we will check with the Court staff who may want to maintain the
symmetry of the docket by having a statement from each party even if that
submission merely repeats the party’s previous claims. If so, we will certainly
accommodate the Court’s wishes.
(Filing No. 143-6.)
In its initial reply to that e-mail, on July 16, 2018, counsel for the Major Defendants said,
“We take no position as to whether the filings are superfluous or necessary, however if Von Duprin
wishes to seek the court’s guidance or leave to file, [the Major Defendants] will not object.” (Filing
No. 151-5.) The Major Defendants continued moving forward seemingly unperturbed, filing a
Motion to Set Summary Judgment Briefing Schedule on July 19, 2018, and a reply in support of
that motion on July 20, 2018. (Filing No. 129; Filing No. 131.) However, also on July 20, 2018,
the Major Defendants’ counsel sent an e-mail to Von Duprin’s counsel saying:
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After further consideration and because Von Duprin’s failure to file its Statement
of Claims and Defenses has become increasingly prejudicial to us, especially
considering Von Duprin’s refusal to agree to a briefing schedule, we must retract
our earlier representation that [the Major Defendants] would not object if Von
Duprin seeks approval to belatedly file its Statement of Claims and Defenses.
(Filing No. 151-6.)
Von Duprin argues it did not waive its claims or defenses because the Court’s staff advised
Von Duprin’s counsel that a Statement of Claims and Defenses was not required under the
circumstances and the Major Defendants were not prejudiced by Von Duprin’s decision not to file.
(Filing No. 150 at 36.) Von Duprin’s telephone call to a court staff member to inquire regarding
following Fed. R. Civ. Proc. 11(b) and a court order in the Case Management Plan was
inappropriate. Court orders and rules say what they mean and mean what they say. Any request
for revisions of court orders must be made to the judge either on the record or in a written motion.
Unless granted leave or permission by the Court to do otherwise, counsel must comply with all
requirements of the Case Management Plan and Federal Rules of Civil Procedure, regardless of
whether counsel views them as redundant and regardless of what a member of court staff
recommends. Von Duprin’s failure to comply with the case management order not only caused
inconvenience to opposing counsel, but also the Court who now must rifle through a 22 page
Amended Complaint to locate Von Duprin’s claims and defenses.
Fortunately for Von Duprin, no prejudice resulted from its failure to file a Statement of
Claims and Defenses because Von Duprin has not attempted and does not attempt to prove any
claims beyond the ones alleged in its Amended Complaint. (Filing No. 42.) This fact distinguishes
this case from the cases the Major Defendants cite, all of which involved a party trying to argue a
claim it had not listed in the Statement of Claims it filed. See Harris v. Carrier Corp., No. 1:15cv-01952-JMS-MJD, 2017 WL 4037658, at *2 (S.D. Ind. Sept. 13, 2017); Schambers v. Key

15

Family of Cos., No. 1:16-cv-2406-WTL-DLP, 2018 WL 1794915 at *7 (S.D. Ind. April 16, 2018);
McGann v. Trathen, No. 1:16-cv-1235-JMS-DML, 2017 WL 5571289 at *12 (S.D. Ind. Nov. 20,
2017); Tucker v. Express Scripts Holding, No. 1:14-cv-1698-TWP-MJD, 2016 WL 2643737 at *8
(S.D. Ind. May 10, 2016). In those cases, the movant was prejudiced by an omission from the
Statement of Claims because it was caught off-guard when its opponent attempted to prove a claim
it had never declared or had abandoned. But here, Von Duprin has never wavered from the claims
it alleges in its Amended Complaint. It alleges causes of action under Sections 107 and 113 of
CERCLA and still pursues those claims and only those claims against the Major Defendants. The
Major Defendants have not explained, even in their Motion for Summary Judgment, what
prejudice they suffered due to Von Duprin’s failure to file a Statement of Claims and Defenses.
Von Duprin is admonished to follow court orders and make all inquiries to do otherwise,
to the judge, and not court staff. Because Von Duprin’s decision to rely on its Amended Complaint
and forego filing a Statement of Claims and Defenses did not prejudice the Major Defendants, the
Court will not find that it has waived its claims and defenses.
3.

“Necessary costs of response incurred…consistent with the national
contingency plan”

The parties dispute whether costs Von Duprin incurred were necessary and consistent with
the NCP as required for recovery by 42 U.S.C. § 9607(a)(4)(B). Whether costs are necessary under
CERCLA is a mixed question of law and fact. G.J. Leasing Co. v. Union Elec. Co., 54 F.3d 379,
386 (7th Cir. 1995). District courts in this Circuit have determined that costs are “necessary” under
CERCLA “if they are incurred in response to a threat to human health or the environment and they
are necessary to address that threat.” Valbruna Slater Steel Corp. v. Joslyn Mfg. Co., No. 1:10CV-044-JD, 2015 WL 8055999, at *4 (N.D. Ind. Dec. 4, 2015) (citing G.J. Leasing Co. v. Union
Elec. Co., 854 F. Supp. 539, 562 (S.D. Ill. 994) aff’d, 54 F.3d 379 (7th Cir. 1995)).
16

Von Duprin ultimately seeks to hold the Defendants jointly and severally liable for an array
of costs. Von Duprin breaks its costs into two categories: (1) investigatory and assessment costs,
and (2) remedial costs. (Filing No. 134 at 20.) Those investigation and assessment costs include
“extensive sampling and investigation of the soil, soil gas, indoor air, and groundwater at the
Former Threaded Rod facility and other properties surrounding it” and “downgradient
groundwater and indoor air sampling to determine how far certain hazardous substances had
migrated.” Id. at 9. Von Duprin incurred remedial costs when it installed “residential migration
systems” in nearby homes, which “allowed Von Duprin’s consultant access to reduce the amount
of contaminants to IDEM accepted levels.” Id. Von Duprin reached a settlement with the
Threaded Rod Company, who had incurred investigation costs. The settlement required Von
Duprin to complete the investigation and remediation of the area and to pay a cash settlement, in
exchange for which it obtained the Threaded Rod Company’s “work product including existing
monitoring wells, sampling results, laboratory data and reports prepared by environmental
consultants employed by Threaded Rod.” Id. at 9-10. It is not clear which of the costs Von Duprin
incurred in that settlement it seeks to recover from the defendants.
Von Duprin claims summary judgment is appropriate as to liability “if the undisputed facts
demonstrate that at least some of Von Duprin’s costs were necessary.” Id. at 20 (citing NutraSweet
Co. v. X-L Eng’g Co., 227 F.3d 776, 782 (7th Cir. 2000)). It cites as uncontested evidence
correspondence between Von Duprin’s environmental consultant Geosyntec and IDEM discussing
remedial measures (Filing No. 136-7; Filing No. 136-8; Filing No. 136-9) and the deposition of
Sam Williams, Von Duprin’s expert. (Filing No. 135-13.) Von Duprin also argues that its
investigative and remedial effort “easily meets the current standard for NCP compliance.” (Filing

17

No. 134 at 21.) It urges the Court to adopt the view that IDEM’s oversight of Von Duprin’s
cleanup process establishes compliance with the NCP. Id. at 21-23.
Moran argues that Von Duprin has not shown that its cleanup process comported with the
NCP, noting that Von Duprin cited to expert opinion but did not analyze the specific provisions of
the NCP or identify which specific cleanup costs comported with the NCP. (Filing No. 139 at 1219.) Moran also disputes that Von Duprin’s cleanup costs were necessary under CERCLA, an
issue of facts. It argues that Von Duprin’s expert did not offer an opinion on whether Von Duprin
incurred cleanup costs in order to reduce contaminants that pose a risk to human health and the
environment. Id. at 20.
The Major Defendants likewise argue that Von Duprin has not proven its response costs
were necessary and compliant with the NCP and fault Von Duprin for failing to adequately identify
its response costs. The Major Defendants believe that Von Duprin must identify specific cleanup
costs and show they were necessary and compliant with the NCP. (Filing No. 142 at 27.) It
disagrees with Von Duprin’s position, premised on its understanding of the NutraSweet case, that
a showing that some of its costs were necessary and compliant with the NCP is sufficient to obtain
a summary judgment. Id.
Von Duprin’s first disputed contention is that “[s]ummary judgment is appropriate for the
purposes of determining each Defendant’s liability if the undisputed facts demonstrate that at least
some of Von Duprin’s costs were necessary.” (Filing No. 134 at 20.) In support of that contention
Von Duprin cites NutraSweet, a case in which the Seventh Circuit affirmed partial summary
judgment against a CERCLA defendant because it had “caused some of the [volatile organic
compounds] on NutraSweet’s property, not necessarily all of them.” 277 F.3d at 785. Based on

18

this holding Von Duprin asserts that partial summary judgment is also warranted when some of its
costs, though not necessarily all of them, are recoverable under CERCLA.
CERCLA casts a wide net for liability. It holds liable any person who owned or operated
a facility during a time hazardous waste was disposed of at the facility, anyone who arranged for
disposal of hazardous waste, and anyone who released or threatened to release hazardous waste.
42 U.S.C. § 9607. There is no floor—that is, any amount of any hazardous substance that qualifies
under § 9601(14) triggers liability, no matter how small it is in comparison to the volume of
hazardous substances released by one’s neighbor. But, costs are treated differently under
CERCLA.
The only costs recoverable by a private party are “necessary costs of response
incurred…consistent with the national contingency plan,” “damages for injury to, destruction of,
or loss of natural resources,” and “the costs of any health assessment or health effects study carried
out” under § 9604(i) of CERCLA. To be recoverable, costs must be necessary and comport with
the national contingency plan. But incurring some such costs does not enable a plaintiff to recover
costs that were unnecessary, or costs that do not comport with the NCP. Judge Posner said as
much in G.J. Leasing Co.: “The statutory limitation to ‘necessary’ costs of cleaning up is
important. Without it there would be no check on the temptation to improve one’s property and
charge the expense of improvement to someone else.” 54 F.3d at 386. At the summary judgment
stage, Von Duprin must identify each cost that it seeks to recover and designate evidence that the
cost was both necessary and that it was incurred consistent with the NCP.
A dispute of material fact regarding whether Von Duprin’s costs were incurred in
accordance with the NCP precludes summary judgment on this record. Von Duprin designated
“the expert opinion of Sam Williams that Von Duprin’s response costs were incurred in substantial

19

compliance with the NCP.” (Filing No. 134 at 21.) A ten-page section of Williams’ report titled
“OPINION 2: Site investigation activities performed at the Property and Study Area have been
performed in substantial compliance with the National Contingency Plan (NCP)” offers Williams’
opinion that Von Duprin’s costs were incurred consistent with the NCP. (Filing No. 135-14 at 1323.)
But the Major Defendants raise several factual questions about the accuracy of that opinion
that also find support in the designated evidence. First, they direct the Court to Williams’
deposition, in which he was more equivocal about whether the costs Von Duprin incurred were in
compliance with the NCP. (Filing No. 143-4 at 8.) Williams testified that “the work was in
substantial compliance with the NCP,” but was not able to identify any specific costs that met the
NCP’s requirements. 8 Williams also acknowledged that, believing the NCP’s communication and
public relations requirement to be satisfied by Von Duprin’s cooperation with IDEM, he did not
do an independent analysis of whether any of Von Duprin’s work complied with the letter of the
NCP’s communication and public relations requirement. 9 Id. at 24-25. Additionally, the Major

8

One exchange from his deposition reads:

Q: Now have you developed an opinion as to whether those costs are compliant with the NCP?
A: It is my opinion that some of those costs are consistent with the NCP.
Q: Which are not?
A: I cannot spell out specifically. There is a summary of costs that are recoverable and costs that are not recoverable.
Q: A summary of those?
A: Yes.
Q: Where are those? Where is that summary?
A: That was part of the settlement associated with Threaded Rod.
Q: Has that been disclosed as part of your expert report in this matter, which costs are recoverable, which are not?
A: It has not.
Q: What can I look at in Exhibit B to find out which of those costs are recoverable and which of those costs are not?
A: I don’t think there is anything in Exhibit B that reflects that.
(Filing No. 143-4 at 8-9.)
The NCP advises liable parties that “When an incident occurs, it is imperative to give the public prompt, accurate
information on the nature of the incident and the actions underway to mitigate the damage.” 40 C.F.R. § 300.155. Von
Duprin’s position is that its coordination with IDEM satisfied this portion of the NCP.

9

20

Defendants point out that Von Duprin did not provide Williams with the actual cost invoices for
all the work done by their environmental consultants, but only with “cost summaries,” which might
not satisfy the NCP’s documentation requirements. Id. at 18-19.
The Major Defendants argue that Von Duprin did not meet other requirements of the NCP.
They dispute whether the document offered as a sampling and analysis plan required by Section
300.415(b)(4)(ii)(A) qualifies under the terms of the NCP. (Filing No. 142 at 34.) And they allege
Von Duprin did not create a quality assurance project plan, which is required by Section
300.415(b)(4)(ii)(B), until May 2017. Id. The Major Defendants argue Von Duprin did not
comply with the NCP by conducting an engineering evaluation and cost analysis and did not create
a health and safety plan in time to comply with the NCP. Id. at 34-35.
Von Duprin urges the Court to follow Valbruna Slater Steel Corp. v. Joslyn Mfg. Co., No.
1:10-CV-044-JD, 2015 WL 8055999, at *4 (N.D. Ind. Dec. 4, 2015), and determine that oversight
by a state agency satisfies CERCLA’s requirement that cleanup costs be incurred consistent with
the NCP. But the Valbruna court did not go so far as to say that. Rather, the Valbruna court said
only that state agency involvement can provide an adequate substitute for the NCP’s public
participation requirement. Valbruna at *4-5. But the Major Defendants allege Von Duprin has
failed to comply with no less than five other sections and subsections of the NCP, not including
Section 300.155, which requires engagement with the public. In light of these other factual
disputes, even a strict adherence to Valbruna would not be enough for a summary judgment here.
Von Duprin’s Motion for Partial Summary Judgment is denied. The Court need not
address the other arguments Moran and the Major Defendants make in opposition to that motion.
4.

Moran’s Motion for Partial Summary Judgment (Filing No. 138)

21

Moran also seeks partial summary judgment on the liability aspect of Count I. Arguing the
harm in this case is divisible, Moran urges the Court to issue “a ruling that it may be responsible
for only its proportionate share of the harm,” leaving specific damages to be determined at trial.
(Filing No. 139 at 22.) Von Duprin asks the Court to deny Moran’s Motion for Partial Summary
Judgment, because the harm in this case is not divisible, either theoretically or practically. (Filing
No. 149 at 26.) Von Duprin also asserts that most of Moran’s designated evidence is inadmissible.
Id.
Under CERCLA, although Congress “imposed a ‘strict liability standard,’ it did not
mandate ‘joint and several’ liability in every case.” Burlington N. & Santa Fe. Ry. Co. v. U.S.,
556 U.S. 599, 614 (2009) (quoting United States v. Chem-Dyne Corp., 572 F. Supp. 802, 805 &
807 (S.D. Ohio 1983)). The United States Supreme Court embraced Chem-Dyne as the seminal
case on apportionment in the CERCLA context, which looks to the Restatement (Second) of Torts
to determine when harm was divisible.
[W]hen two or more persons acting independently caus[e] a distinct or single harm
for which there is a reasonable basis for division according to the contribution of
each, each is subject to liability only for the portion of the total harm that he has
himself caused. Restatement (Second of Torts, §§ 443A, 881 (1976); Prosser, Law
of Torts, pp. 313-14 (4th ed. 1971)…. But where two or more persons cause a single
and indivisible harm, each is subject to liability for the entire harm. Restatement
(Second) of Torts, § 875; Prosser, at 315-17. Chem-Dyne Corp., 572 F. Supp., at
810.
Burlington N. at 614 (ellipses in original).
The Seventh Circuit has distilled that analysis into a two-part test. First, a court “must
determine whether the harm at issue is theoretically ‘capable of apportionment.’” U.S. v. NCR
Corp., 688 F.3d 833, 838 (quoting Burlington at 614). That determination is a matter of law and
will be made by the Court, but underlying factual findings will often guide the Court’s inquiry. Id.
“Second, if the harm is capable of apportionment, the fact-finder must determine how actually to
22

apportion the damages, which is ‘a question of fact.’” Id. (quoting Burlington at 614). The party
seeking apportionment—here Moran—bears the burden of proving that a reasonable basis for
apportionment exists. Id.
Acknowledging that the second part of the test involves a question of fact, Moran asks the
Court only to resolve the first part, determining that the harm in question is theoretically capable
of apportionment. It cites the report of Moran’s expert Adam Love, which states: “The areas of
chlorinated solvent contamination can be divided based on geographic and chemical characteristics
and then apportioned to appropriate [responsible parties] based on those divisions.” (Filing No.
135-1 at 13.) Love reported “For CVOC [chlorinated volatile organic compound] groundwater
plumes in the Site, the CVOC chemical composition from the Von Duprin site is distinct from
upgradient CVOC source locations because it consists largely of PCE, whereas the CVOCs from
upgradient direction is characterized primarily by TCE.” Id. at 14. Moran also cites the deposition
testimony of Von Duprin’s expert John McInnes, who, when asked whether there were “distinct
areas of release on those four sites,” responded, “That’s correct.” (Filing No. 140-12 at 27.)
Von Duprin agrees that McInnes’ statement that “each one of four facilities had its own
release into the soil at that facility” is “true and undisputed.” (Filing No. 149 at 19.) But Von
Duprin faults Love’s methodology, arguing his opinions are “worthless” because his “modelling
work used data that represented the conditions after large quantities of soil had been removed”
from the properties. Id. at 20. That concern highlights a practical problem, not a theoretical one.
At summary judgment, Moran is arguing only that the harm—in this case pollution—emanated
from geographically distinct areas, and thus can be divided among the responsible parties
according to which areas they controlled. That Moran’s estimate of its own contribution may be
inaccurate because its expert failed to consider the contamination that might have been revealed if

23

he had examined excavated soil is irrelevant to the question of whether the harm is divisible. It
speaks only to the question of what share of the damages each party is responsible for—a question
of fact that the Court does not address on summary judgment.
Parties “may be able to demonstrate that harms are distinct based on geographical
considerations, such as where a site consists of ‘non-contiguous’ areas of soil contamination.”
U.S. v. Hercules, Inc., 247 F.3d 706 (8th Cir. 2001) (quoting Akzo Coatings Inc. v. Aigner Corp.,
881 F.Supp. 1202, 1210 (N.D. Ind. 1994), clarified on reconsid., 909 F.Supp. 1154 (N.D. Ind.
1995)). Here, Moran’s expert testified that contamination emanated from geographically distinct
areas at the properties, not from one contiguous source encompassing all the properties. McInnes,
Von Duprin’s expert, agreed. When asked whether there was “just one big blob of shallow soil
impacts,” he said, “no”. When asked whether there were “distinct areas of release on those four
sites,” he said, “that’s correct”. (Filing No. 140-12 at 27-28.) Although Von Duprin clearly
disputes Moran’s method of arriving at the share of the harm it claims to be responsible for, Von
Duprin has not designated any evidence disputing the notion that the contamination in this case
emanated from four separate source points on four separate properties.
Von Duprin likens this case to U.S. v. NCR Corp., in which the Seventh Circuit found harm
was not divisible where the defendant’s pollution on its own would have necessitated remediation
even if no other party had polluted. 688 F.3d 833 (7th Cir. 2012). But Von Duprin does not allege
that Moran’s pollution on its own would have required substantially the same remedial measures.
It analogizes to NCR because multiple pollution sources contaminated a single stream of water
(here groundwater, in NCR, a river) and because “[l]ike in NCR, Moran offers a computer model
that would limit its own share of liability to a small portion of the whole harm.” (Filing No. 149 at
15.) NCR did not reject a model of apportionment calculation outright; in fact, it contended the

24

Supreme Court’s decision in Burlington Northern “demonstrates that apportionment calculations
need not be precise.” NCR at 842. NCR advised that district courts need not always allow
imprecise apportionment calculations to serve as evidence of divisibly—courts are free to
scrutinize that evidence. But here, Moran has supported its contention with an expert report
opining not only that the harm is divisible but attaching a specific percentage of harm to each
property that polluted. Love’s report is precise enough to carry Moran’s burden of showing a
reasonable basis for apportionment.
Von Duprin argues most of Moran’s designated evidence is inadmissible hearsay. But
Moran properly classifies all the disputed evidence as either excluded or excepted from hearsay
rules as statements of a party opponent (Fed. R. Evid. 801(d)(2)), records of regularly conducted
activity (Fed. R. Evid. 803(6)), and public records (Fed. R. Evid. 803(8)). Moran’s designated
evidence is properly before the Court.
Moran’s Motion for Partial Summary Judgment is granted. Moran is liable only for its
share of the harm committed; it is not jointly and severally liable. Determination of the specific
amount of damages, if any, each party owes, will occur at trial. The Major Defendants also argue
the harm in this case is divisible. Because they have moved for summary judgment as to all claims
against all parties, the Court considers their arguments separately.
B.

Other Counts – Major Defendants’ Motion for Summary Judgment (Filing No. 141)
The Major Defendants moved for summary judgment as to all claims against Von Duprin

and against Moran. (Filing No. 141.) Against Von Duprin, the Major Defendants argue (1) the
harm in this case is divisible and they should be apportioned no liability, (2) Von Duprin has not
proven that contamination from any site owned by the Major Defendants caused Von Duprin to
incur costs, (3) Von Duprin’s claims are barred because the Major Defendants are Bona Fide

25

Prospective Purchasers, (4) Von Duprin’s claims are barred by the third party defense, and (5) Von
Duprin has failed to state a claim against Major Holdings under Section 107(a)(2) of CERCLA.
(Filing No. 142.) Against Moran, the Major Defendants argue (1) Moran’s Section 113(f) claims
for contribution fail because the Major Defendants are not responsible parties under Section
107(a), and (2) Moran’s state law claims fail because the Major Defendants did not “cause or
contribute” to releases of hazardous substances as required for liability under Indiana’s
Environmental Legal Action Statute. Id. at 54.
1.

Von Duprin
a.

Divisibility of Harm

Like Moran, the Major Defendants argue the harm in this case is divisible and parties
should be responsible only for their own contribution. However, while Moran claimed it was
responsible for 3% of the total harm, the Major Defendants claim to be responsible for 0% of the
harm. Id. at 24. They aim to avoid liability entirely. Von Duprin argues that because the pollutants
co-mingled in a single stream, the harm related to the Major Defendants is not theoretically capable
of apportionment, and even if it was, there is no reasonable basis for apportionment. (Filing No.
150 at 16-25.)
The Major Defendants do not specify whether they believe the harm here is geographically
divisible, temporally divisible, or both. They claim “[t]here is no evidence that the Major
Defendants used the chlorinated solvents at issue, nor is there any evidence that they released or
threatened to release any of the chlorinated solvents.” (Filing No. 142 at 24.) But Von Duprin has
designated evidence that pollution from the Zimmer and Ertel Facilities contributed to the
comingled plume. According to McInnes, Von Duprin’s expert, “based on the magnitude, extent,
and pattern impacts observed in soil and groundwater at each of the four facilities (Zimmer, Ertel,

26

Moran, and Threaded Rod) all contributed significantly to the comingled plume and none can be
considered de minimis. (Filing No. 135-3 at 7-8.) If that is correct, it exposes the Major
Defendants to liability as “the owner and operator of a vessel or facility.” 42 U.S.C. § 9607(a)(1).
The Major Defendants dispute that evidence. Their expert, Robert Walker, rebuts McInnes’
claims that pollution from the Former Zimmer and Ertel Facilities entered the co-mingled plume.
(Filing No. 135-7.) Both parties have designated evidence supporting their position, creating a
dispute of fact that the Court cannot resolve on summary judgment. But, as the Court said in
Section III.A.4 of this Entry, the harm in this case is divisible by geography and there is a
reasonable basis for apportionment—the amount of runoff from each site in question. Therefore,
the Court grants in part and denies in part the Major Defendants’ Motion for Summary
Judgment. It is granted as to divisibility only, leaving the calculation of any damages for the factfinder to determine at trial.
b.

Caused Von Duprin to Incur Costs

Second, the Major Defendants argue “no release or threatened release from any property
currently owned or operated by the Major Defendants caused Von Duprin to incur any response
costs.” (Filing No. 142 at 25.) (Emphasis in original.) Citing Regional Airport Authority of
Louisville v. LFF, LLC, 460 F.3d 697, 706 (6th Cir. 2006), the Major Defendants argue that “[i]f a
party would have incurred ‘identical costs’ in the absence of any release or threatened release from
a facility, then the release or threatened release ‘cannot be said to have caused the incurrence of
response costs.’” (Filing No. 142 at 25.) Von Duprin does not challenge that legal point, arguing
only that it has designated evidence indicating pollution from properties owned by the Major
Defendants did cause Von Duprin to incur response costs it otherwise would not have incurred.
(Filing No. 150 at 24.)

27

The Major Defendants cite the deposition testimony of Sam Williams, the expert Von
Duprin retained to offer an opinion about its response costs. (Filing No. 142 at 25.) In answering
the question “would Von Duprin have been required to incur the costs that you’re testifying that it
has incurred if its contamination was the only contamination present on its property,” Williams
answered, “yes.” (Filing No. 143-4 at 17.) Von Duprin argues that statement is taken out of
context, and the full deposition reveals that Williams did not determine which costs Von Duprin
incurred resulted from pollution at upgradient properties. Von Duprin cites the following
exchange:
Q: Which response costs has Von Duprin incurred as a result of Major Holdings’
or Major Tool’s Actions?
A: As I testified earlier, I haven’t distinguished between Major Tool, Zimmer, Ertel,
or Moran of the upgradient costs.
Q: So you think Von Duprin has incurred some costs as a result of Major Holdings’
or Major Tool’s actions, but you don’t know which costs those would be?
A: I haven’t done that analysis.
Id. at 18.
Von Duprin’s expert equivocated about whether pollution emanating from the Major
Defendants’ and other upgradient properties caused Von Duprin to incur additional response costs.
But the Court is not convinced that equivocation dooms Von Duprin’s Section 107 claim against
the Major Defendants. Williams’ testimony is inconclusive, but Von Duprin has designated other
evidence that indicates pollution from the Former Ertel Facility and Former Zimmer Facility
amounts to over 10% of the total contaminants emanating from the site. (Filing No. 135-1 at 24.)
It is the job of the fact-finder at trial, not the Court on summary judgment, to weigh this competing
evidence. Accordingly, the Major Defendants’ Motion for Summary Judgment on these grounds
is denied.
28

i.

Bona Fide Prospective Purchasers

Section 107(a)(1) of CERCLA is subject to certain affirmative defenses, one of which is
the bone fide prospective purchaser (or “BFPP”) defense. 42 U.S.C. § 9607(a)(1); 2 U.S.C. §
9607(r)(1). The BFPP defense exempts from CERCLA liability a purchaser who:
(1) Acquired ownership of the property after January 11, 2002;
(2) Shows that all disposal of hazardous substances at the property occurred before the
purchaser’s acquisition of the property;
(3) Conducts “all appropriate inquiries” into the previous ownership and uses of the
property;
(4) Provides all legally required notices regarding the lease;
(5) Provides full cooperation, assistance, and access to those conducting response actions
at the property;
(6) Complies with institutional and engineering controls and does not impede the
effectiveness of such controls;
(7) Complies with requests for information and subpoenas from the Environmental
Protection Agency;
(8) Is not affiliated with a responsible or potentially responsible party; and
(9) Exercises appropriate care with respect to the hazardous substances found, including:
stopping continuing releases, preventing threatened future releases, and preventing
exposure to releases.
The Major Defendants contend they satisfy all these requirements. Von Duprin does not
dispute the Major Defendants’ contention as to the Zimmer Packaging Facility. As to the other
three facilities owned by the Major Defendants, Von Duprin argues the Major Defendants failed

29

to conduct “all appropriate inquiries” in a timely manner when they acquired the property and that
they failed to exercise reasonable care to prevent exposure to previously released hazardous
substances. (Filing No. 150 at 30-366.)
ii.

The Former Ertel Facility

On November 16, 2007, Major Tool entered into a 99-year lease and option to purchase
the Former Ertel Facility with the City of Indianapolis. (Filing No. 151-2.) Major Tool acquired
the Former Ertel Facility on January 31, 2013. (Filing No. 143-1 at 5.) Major Tool hired Heartland
Environmental to conduct a Phase I Environmental Site Assessment, which it did on January 17,
2013. Id. at 112. That Phase I assessment claims it was “conducted in general conformance with
American Society of Testing and Materials (ASTM) Standards for Phase I Environmental Site
Assessments (ASTM E 1527-05), including the United States Environmental Protection Agency’s
(USEPA) All Appropriate Inquiries (AAI) Rule that was finalized on November 1, 2006.” Id. at
116.
Von Duprin asserts this assessment does not satisfy CERCLA’s “all appropriate inquiry”
requirement (42 U.S.C. § 9607(q)(1)(A)(viii)(I)) because Major Tool began leasing the property
in 2007 but did not conduct an environmental assessment until 2013, just before it purchased the
property. (Filing No. 150 at 35.) CERCLA requires parties to make all appropriate inquiries “on
or before the date on which the defendant acquired the facility.” 42 U.S.C. § 9601(35)(B)(i)(I).
Von Duprin argues Major Tool acquired the facility when it began its lease in 2007, not when it
purchased the property in 2013 because the BFPP defense protects “‘a person who…acquires
ownership of the facility after January 11, 2002’ and establishes the remainder of the BFPP
criteria.” (Filing No. 156 at 17.) (Ellipses in original.) The Major Defendants argue CERCLA

30

refers to acquiring ownership in a property. Neither party cites any caselaw in support of its
position.
While the Major Defendants accurately quote the BFPP defense protecting those who
acquire ownership after January 11, 2002 and establish the rest of the BFPP criteria, they ignore
that the defense also mentions “a person…who acquires a leasehold interest in the facility after
January 11, 2002” and establishes the remaining criteria. 42 U.S.C. § 9601(40)(A)(ii)(I). More
importantly, CERCLA imposes liability on both owners and operators—a party need not be both
owner and operator to incur liability. 42 U.S.C. § 9607(a)(1). The Major Defendants undisputedly
became operators of the site in 2007, when they began leasing it, but they have not designated
evidence that they satisfied the BFPP defense’s “all appropriate inquiries” requirement until 2013,
just before they purchased the facility. Thus, the Court cannot grant their summary judgment
motion on this basis.
iii.

The Zimmer Paper Parcel

The parties do not dispute that Major Holdings acquired the Zimmer Paper Parcel on
January 31, 2007. (Filing No. 142 at 44; Filing No. 150 at 32.) Nor do they dispute that, on
November 16, 2006, Enviroforensics provided a Phase I Environmental Site Assessment. (Filing
No. 143-1 at 9-56.) However, Von Duprin argues that assessment was faulty and does not satisfy
the BFPP defense’s “all appropriate inquiry” requirement for three primary reasons: (1) it was
prepared for Major Tool and Machine even though Major Holdings was the nominal owner of the
Zimmer Paper Parcel; (2) it did not make the necessary and required inquiries with the owner of
the parcel required by 40 C.F.R. § 312.22 et seq.; and (3) it does not have the required
Environmental Professional certifications required by 40 C.F.R. § 312.21(d).

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The Major Defendants correctly point out that the assessment did not need to comply with
40 C.F.R. §§ 312.23 through 312.31 because it followed “[t]he procedures of ASTM International
Standard E1527-05,” which was an adequate substitute in 2006 under 40 C.F.R. § 312.11. But
that does not rebut Von Duprin’s argument, which alleges that the Major Defendants failed to
comply with the requirements of §§ 312.21 and 312.22. A party cannot circumvent by complying
with the procedures of ASTM International Standard E1527-05. Thus, the Court cannot grant
summary judgment to the Major Defendants on this basis.
iv.

The Former Moran Facility

Major Holdings acquired the Former Moran Facility on October 4, 2005. (Filing No. 142
at 44.) On December 28, 2004, Enviroforensics conducted a limited Phase II Site Investigation.
(Filing No. 143-3 at 4-7.) The Major Defendants assert this investigation satisfies CERCLA’s all
appropriate inquiries requirement, while Von Duprin argues a Phase I Environmental Site
Assessment, like the one the Major Defendants commissioned for the other facilities, was
necessary.
CERCLA makes it clear that performing a Phase I Environmental Site Assessment is
sufficient to satisfy the all appropriate inquiries prong of the BFPP defense. 42 U.S.C. §
9601(35)(B)(iv)(II). But the law leaves open to interpretation whether a Phase I assessment is the
only way to satisfy that prong, saying that a Phase I assessment “shall satisfy the requirements” of
the all appropriate inquiries prong. At least one court has determined that a Phase I assessment is
not the exclusive means by which a purchaser of land can make all appropriate inquiries. R.E.
Goodson Const. Co., Inc. v. International Paper Co., No. 4:02-4184-RBH, 2006 WL 1677136, at
*6 (D.S.C. June 14, 2006). The Goodson court determined that the Senate Report on the
amendment adding the “shall satisfy” language to CERCLA read that a Phase I assessment “can

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satisfy” the “all appropriate inquiries” requirement. Id. That court also noted that “Congress could
have provided that a Phase I site assessment was required or was the exclusive procedure to satisfy
the ‘all appropriate inquiries’ standard; however, Congress made no such mandate.”
This Court is inclined to agree with Goodson that Congress did not intend to make a Phase
I Environmental Site Assessment the exclusive means by which a purchaser could satisfy the BFPP
defense’s all appropriate inquiries standard. Bolstering this view in this case is the content of the
Phase II assessment the Major Defendants commissioned before purchasing the Moran property.
That assessment collected seven soil samples and three groundwater samples, noting that there
were dangerous levels of harmful chemicals in some samples and acceptable levels in others.
(Filing No. 143-3 at 4-6.)

The assessment recommended “removal and disposal of all

[underground storage tanks] and associated contaminated soils at the Site…in accordance with all
applicable IDEM regulations. In addition, verification sampling of the UST excavations should
be completed, and the excavations should be backfilled and the Site properly restored.” Id. at 7.
The Major Defendants acted on that recommendation in 2011 when they “agreed to implement a
remedial action plan to address the impacted soil at the former Moran facility property.” (Filing
No. 135-7 at 10.) Von Duprin also argues that “even if Major Holdings had performed the required
pre-acquisition AAI (which it did not timely do), it has failed to take post-acquisition reasonable
steps to prevent exposure to previously released hazardous substances.” (Filing No. 150 at 34-35.)
The argument is not fully developed, and regardless, the Major Defendants have designated
evidence indicating they undertook remedial measures at the Moran property in 2011. (Filing No.
135-7 at 10.)
The Major Defendants are Bona Fide Prospective Purchasers of the Former Moran Facility,
and thus cannot incur liability on contamination emanating from that property. The Major

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Defendants’ Motion for Summary Judgment is granted in part and denied in part. The Court
grants summary judgment as to the Zimmer Packaging Facility and the Moran property because
the Major Defendants are Bona Fide Prospective Purchasers of those properties. The Court denies
summary judgment as to the Former Ertel Facility and the Former Zimmer Paper Facility because
the Major Defendants have not shown they are Bona Fide Prospective Purchasers of those sites by
law.
1.

Third Party Defense

The Major Defendants also argue they are shielded from liability by the third-party defense.
(Filing No. 142 at 50-51.) Codified at 42 U.S.C. § 9607(b)(3), the third-party defense exempts a
CERCLA defendant from liability of release or threats of release of hazardous material stemming
from an act or omission of a third party. To establish the defense, the defendant must demonstrate
that: (1) the third party was not an employee or agent; (2) the acts or omissions of the third party
did not occur in connection with a direct or indirect contractual relationship to the defendant; (3)
a third party was the sole cause of the release or threatened release of hazardous substances; and
(4) the defendant exercised due care with respect to the hazardous substances and took precautions
against foreseeable acts and omissions of the third party. The Major Defendants claim they satisfy
all four prongs of the defense.
Von Duprin makes multiple arguments in opposition to the Major Defendants’ claim, but
the Court will focus on one: that the acts or omissions of the third party occurred in connection
with a contractual relationship to the Major Defendants. (Filing No. 150 at 26.) The term
“contractual relationship” is defined in § 9601(35)(A) of CERCLA as including “land contracts,
deeds, easements, leases” where it is established “[a]t the time the defendant acquired the facility
the defendant did not know and had no reason to know that any hazardous substance which is the

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subject of the release or threatened release was disposed of on, in, or at the facility.” According
to the next subsection, “[t]o establish that the defendant had no reason to know of the matter
described in subparagraph (A)(i),” the defendant must show that it undertook all appropriate
inquiries. 42 U.S.C. § 9601(35)(B)(i). As the Court pointed out in section III.B.1.c. of this Entry,
the Major Defendants are not able to show they made all appropriate inquiries as to two properties:
the Former Ertel Facility and the Zimmer Paper Parcel. Thus, their motion for summary judgment
as to those two properties is denied.
2.

Failure to State a Claim

The Major Defendants argue Von Duprin failed to state a claim against Major Holdings
under 42 U.S.C. § 9607(a)(2) because “[a]lthough Von Duprin attempted to assert a claim against
Major Holdings under Section 107(a)(2) in its Amended Complaint, Von Duprin did not seek to
establish liability against Major Holdings under that provision in its Motion for Summary
Judgment.” (Filing No. 142 at 52.) Von Duprin does not address this argument in its response
brief. (Filing No. 150.) Section 9607(a)(2) subjects to liability “any person who at the time of
disposal of any hazardous substance owned or operated any facility at which such hazardous
substances were disposed of.” The Major Defendants are correct that Von Duprin has not
designated evidence that the Major Defendants owned any property at the time of disposal of any
hazardous substance, and thus does not state a claim under § 9607(a)(2). Therefore, the Court
grants summary judgment in favor of the Major Defendants as to that claim. However, Von
Duprin’s claim against the Major Defendants under § 9607(a)(1) as “the owner or operator of a
vessel or facility” remains.
v.

Moran

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The Major Defendants move for summary judgment against cross-claimants Moran on its
claims for contribution under 42 U.S.C. § 9113(f) (Filing No. 52) and for cost recovery under
Indiana Code § 13-30-9-2 (Filing No. 70).
1.

Contribution

The Major Defendants argue “Moran’s Section 113(f) claims fail because Section 113(f)
only allows a party to seek contribution from a person or entity that is liable or potentially liable
under Section 107(a) and, as set forth above, the Major Defendants are not liable under Section
107(a).” (Filing No. 142 at 54.) But the Court has concluded that the Major Defendants may be
liable under Section 107(a)(1) for contamination emanating from two properties, the Former Ertel
Facility and the Zimmer Paper Parcel. Thus, Major Defendants’ motion fails because it relies
entirely on arguments made above. The Major Defendants’ Motion for Summary Judgment
against cross-claimants Moran as to liability under 42 U.S.C. § 6113(f) is denied.
2.

Indiana Environmental Legal Actions Statute

The Indiana Environmental Legal Actions statute provides a cause of action for
contribution in multi-party environmental clean-ups. Ind. Code § 13-30-9. It allows a party to
bring an action “against a person that caused or contributed to the release to recover reasonable
costs of a removal or remedial action involving the hazardous substances or petroleum.” Id. at §
13-30-9-2. The Major Defendants argue that “[t]here is no other evidence that the Major
Defendants ever caused or contributed to any release of any hazardous substance at issue in this
case, and no expert in this case offered any opinion that the Major Defendants have done so.”
(Filing No. 142 at 54.)
Moran disagrees, arguing the Major Defendants’ carelessness with respect to
contamination on their property contributed to the harm caused by hazardous substance released

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on their property. (Filing No. 152 at 12.) Specifically, “Moran has designated evidence showing
that there was a release from a[n underground storage tank] and a leaking drum at the Zimmer
Parcel when Major owned and controlled that property.” Id. Moran also argues it “has designated
evidence showing that Major has contracted with the City of Indianapolis specifically with respect
to remediating contaminants at issue in this case, which remediation has not occurred.” Id. That
evidence creates a dispute of material fact precluding summary judgment on this issue. Thus,
Major Defendants’ motion is denied.
IV.

CONCLUSION

For the reasons stated above, Von Duprin’s Motion for Partial Summary Judgment on
Section 107(a) Liability, (Filing No. 133), is DENIED. Moran’s Cross-Motion for Partial
Summary Judgment, (Filing No. 138), is GRANTED. All claims against Moran remain for
resolution at trial, but Moran is not jointly and severally liable on Count I, it is liable only for the
proportion of the harm it caused. The Major Defendants’ Cross-Motion for Summary Judgment
against Plaintiff and Motion for Summary Judgment Against Cross-Claimant, (Filing No. 141), is
GRANTED in part and DENIED in part. Both claims against the Major Defendants remain for
resolution at trial, but like Moran, they are liable only for the proportion of the harm they caused.
Additionally, they are not liable for any contamination emanating from the Zimmer Packaging
Facility or the Moran property because they are bona fide prospective purchasers of those parcels
of land. The Major Defendants’ Motion for Summary Judgment against cross-claimant Moran is
DENIED. Thus, both cross-claims (Filing No. 52; Filing No. 70) remain to be resolved at trial.
SO ORDERED.
Date: 2/11/2019

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DISTRIBUTION:
Alexandra Robinson French
BARNES & THORNBURG LLP
[e-mail]
Edward S. Griggs
BARNES & THORNBURG LLP (Indianapolis)
[e-mail]
Samuel B. Gardner
ICE MILLER LLP
[e-mail]
Glenn David Bowman
STOLL KEENON OGDEN, PLLC (Indianapolis)
[e-mail]
Angela Pease Krahulik
ICE MILLER LLP
[e-mail]
Marc Andrew Menkveld
STOLL KEENON OGDEN, PLLC (Indianapolis)
[e-mail]
Nicholas B. Reuhs
ICE MILLER LLP
[e-mail]
Bruce L. Kamplain
NORRIS CHOPLIN & SCHROEDER LLP
[e-mail]
Cynthia Elaine Lasher
NORRIS CHOPLIN & SCHROEDER LLP
[e-mail]

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