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

Filing 256

FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING BENCH TRIAL - Based upon the foregoing findings of fact and conclusions of law, the Court concludes that Von Duprin has shown by a preponderance of the evidence that it is entitled to an award of & #036;510,000.00 plus interest from the Major Defendants and an award of $340,000.00 plus interest from Moran, for past response costs. Von Duprin is also entitled to an award of future costs in the same allocation percentage30% from the Major Defendants, 20% from Moranas those costs are incurred. (See Order.) Signed by Judge Tanya Walton Pratt on 3/30/2020.(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.,
ZIMMER PAPER PRODUCTS
INCORPORATED Defaulted on 7/24/2017,
Defendants.
MAJOR HOLDINGS, LLC,
MORAN ELECTRIC SERVICE, INC.,
MAJOR HOLDINGS, LLC,
MORAN ELECTRIC SERVICE, INC.,
MAJOR TOOL AND MACHINE, INC.,
MORAN ELECTRIC SERVICE, INC.,
Counter Claimants,
v.
VON DUPRIN LLC,
MAJOR HOLDINGS, LLC,
VON DUPRIN LLC,
VON DUPRIN LLC,
MAJOR HOLDINGS, LLC,
VON DUPRIN LLC,
VON DUPRIN LLC,
MAJOR TOOL AND MACHINE, INC.,
Counter Defendants.
MAJOR HOLDINGS, LLC,
MAJOR HOLDINGS, LLC,
MAJOR TOOL AND MACHINE, INC.,
Cross Claimants,

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

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v.
MORAN ELECTRIC SERVICE, INC.,
MORAN ELECTRIC SERVICE, INC.,
VON DUPRIN LLC,
Cross Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
FOLLOWING BENCH TRIAL
A bench trial on this Comprehensive Environmental Response, Compensation and
Liability Act (“CERCLA”) litigation was held beginning on July 22, 2019 and concluding on
August 1, 2019. This CERCLA action brought by Von Duprin, LLC (“Von Duprin”) against
Defendants Moran Electric Service, Inc. (“Moran”), and Major Holdings, LLC (“Major
Holdings”), and Major Tool and Machine, Inc. (“Major Tool”) (collectively, “the Major
Defendants”), seeks to allocate the responsibility for the pollution that created a toxic groundwater
plume under an area in Northeast Indianapolis, Indiana and to determine the parties’ respective
financial responsibility for cleanup of the polluted area. On February 11, 2019, the Court granted
partial summary judgment and determined Moran and Major Defendants are liable only for the
proportion of the harm they caused; and the Major Defendants are not liable for any contamination
emanating from the Zimmer Packaging Facility of the Moran Property. (Filing No. 203 at 37.)
Upon consideration of the evidence presented during the bench trial 1, the Court now issues its
Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a)(1).
Any finding of fact that is more properly considered a conclusion of law is adopted as such.
Similarly, any conclusion of law that is more properly considered a finding of fact is adopted as
such.

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In addition, the Court considers the parties’ Joint Stipulation of Facts for Trial (Filing No. 205).

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I.

FINDINGS OF FACT

The pollution necessitating this litigation emanated from four properties: (1) the Von
Duprin Property, (2) the Moran Property, (3) the Ertel Property, and (4) the Zimmer Paper
Property. 2 Von Duprin seeks to recover costs already incurred to investigate the releases of
chlorinated solvents in the plume area and to mitigate the vapor intrusion risks at buildings and
residences near that area, as well as future costs. The Major Defendants and Moran each filed
counterclaims and crossclaims regarding each parties’ cleanup responsibilities. The Major
Defendants assert that they are not obligated to pay the costs Von Duprin has incurred or will incur
relating to the commingled plume. Moran asserts that it is a liable party as the owner of the Moran
Property at the time a release incurred, and the harm in this lawsuit is divisible and ideal for
apportionment.
A.

The Von Duprin Property
The Von Duprin Property is located at 1929 Columbia Avenue, Indianapolis, Indiana.

Between 1965 and 1986, Von Duprin’s predecessor—Von Duprin, Inc.—owned the Von Duprin
Property and manufactured security hardware and safety products there. (Filing No. 205 at 6.)
That manufacturing involved the use of the chlorinated solvents trichloroethylene (“TCE”) and
perchloroethylene (“PCE”), the two toxic chemicals at issue in this case. 3 During the 1970’s, the
Von Duprin Property housed a large Detrex degreaser that used hundreds of gallons of TCE.
(Filing No. 250 at 198-211; Tr. Ex’s. 1105 & 1106.) Prior to Von Duprin’s ownership, other

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The Zimmer Paper Property is subdivided into the Zimmer Paper Facility and the Zimmer Packaging Facility.

3
Trichloroethylene (TCE) 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 (PCE) is a colorless
liquid that is also called tetrachloroethylene, PERC. 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).

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parties, including Atlas Engine Company in the 1910s and Paramount Hardware from 1937-1961,
and several dry cleaners operated on or near the Von Duprin Property. Von Duprin’s operations
resulted in the release of hazardous chemicals, including TCE and PCE, into the soil and
groundwater on and around the Von Duprin Property. (Filing No. 205 at 7.)
In 1986, Von Duprin ceased operations, and its owner at that time, Ingersoll-Rand
Company, sold the Von Duprin Property to Threaded Rod Company, Inc. (“Threaded Rod”) in
1987. Threaded Rod manufactured anchor bolts and connecting rods and did not generate
hazardous waste.
In March 2009, the Indiana Department of Environmental Management (“IDEM”)
determined that soil and groundwater on the Von Duprin Property had been contaminated by
chlorinated solvents. In August 2013, IDEM notified Von Duprin that it was a potentially
responsible party for contamination of the Von Duprin Property. Threaded Rod brought a lawsuit
against Von Duprin (and others) to recover damages relating to the environmental contamination
on the Von Duprin Property, alleging that Von Duprin had caused or contributed to the soil and
groundwater contamination at the property. Von Duprin settled the litigation with Threaded Rod,
agreeing to pay $1.5 million and to undertake certain remedial actions on the Von Duprin Property.
(Filing No. 248 at 53, 94, 239-40.)
Von Duprin has undertaken remedial actions both on its own property and at downgradient
properties including residences. After it was identified as a potentially responsible party by IDEM
in August 2013, Von Duprin began investigating potential vapor intrusion at downgradient
properties. In early 2014 Von Duprin entered Indiana’s State Cleanup Program and in 2016
transitioned to the Voluntary Remediation Program, an EPA approved remediation program aimed
at cleaning up contaminated properties. Von Duprin contacted individual homeowners whose

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property was located within the plume area had TCE concentrations above IDEM’s site-specific
screening levels. Von Duprin also requested that IDEM become involved. (Filing No. 249 at 141.)
Von Duprin sent letters, made telephone calls, had face to face conversations and conducted indoor
air sampling at residences in the area of contaminated groundwater plume and installed vapor
intrusion mitigation systems at homes that were impacted by vapor intrusion. (Filing No. 249 at
91-92, 145-47.) The residential investigations and mitigation work continue today. When the
potential for vapor intrusion was identified at the J.T.V. Hill Park facility, Von Duprin conducted
investigation activities and interim measures to prevent public exposure to harmful TCE vapors in
that building, and ultimately installed a sub-slab depressurization system to address vapor
intrusion. (Tr. Ex’s. 1022, 1026, 1029, 1085, 1087, 1089.) IDEM was closely involved and
provided supervision of Von Duprin’s activities. In 2019, Von Duprin excavated 212 tons of soil
from the Von Duprin Property. (Filing No. 248 at 103.)
Von Duprin also performed a successful bench scale and pilot test of in situ biological
reduction, which could accelerate the natural degradation process in order to eliminate chlorinated
solvents in the groundwater. (Filing No. 249 at 229-236) (Tr. Ex. 1072; Tr. Ex. 1071). Samples
from known affected areas at the former Von Duprin property; specifically, the soils and the
groundwater, were collected and sent to a laboratory where some were held aside as control
samples and others are inoculated with bacterial cultures in order to understand if this technology
will indeed accelerate the natural degradation processes. Von Duprin injected a bacterial culture,
along with some media that it uses to accelerate its growth to allow it to degrade a greater area of
the chlorinated solvents and the injected area saw enhanced degradation of these chlorinated
solvents. At the time of trial, a bench scale and pilot test study report had not yet been submitted

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to IDEM, but the observations were shared with Moran and Major Tool Defendants as well as
IDEM. Id. at 234-235.
Although substantial work has been performed, additional investigation and mitigation
work in the plume area remains to be done because the source of the vapor intrusion—the TCE
contaminated shallow groundwater beneath the homes and J.T.V. Hill Park—has not been
eliminated. IDEM will require future groundwater remediation, and the responsible parties
identified by IDEM are parties to this litigation. (See Filing No. 248 at 251-253.)
B.

The Moran Property
The Moran Property refers to the property addressed as 1931 Dr. Andrew J. Brown Avenue

and sometimes referenced in documentation as 1401 East 20th Street in Indianapolis. From at
least 1946 to 1996, Moran owned and conducted business operations at the Moran Property. It
operated multiple shops, including a dynamometer shop, motor shop, compressor shop, and wiring
department. Moran’s primary business was the rebuilding and repair of heavy-duty electrical
motors.
During its operation at the Moran Property, Moran used degreasers and cleaning agents
that contained TCE. (Filing No. 250 at 154.) There were multiple pits, parts washers, and tanks
located on the properties owned by Moran, and Moran used degreasers and cleaning agents –
including TCE – in its business operations. Moran used somewhere between 55 and 150 gallons
of TCE in its degreasing operations. Id. at 156; Tr. Ex. 723 at 45-46. Problems arose during
Moran’s degreasing operations, and employees committed violations when degreasing. (Tr. Ex.
722 at 12; Tr. Ex. 723 at 60-62, 117-118.) Some violations related to the washing of the parts
above the vapor line of the degreaser, while others related to the carless handling of TCE that led
to TCE splashing out of the degreaser. Moran ceased operations at the Moran Property in 1998.

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Major Holdings acquired the Moran Property on October 4, 2005 and is the current owner
of the property. In December 2004, before it acquired the Moran Property, Major Holdings
retained EnviroForensics & PolicyFind to conduct a Phase II Environmental Site Assessment
(“Phase II ESA”) on the property. 4 Major Tool operates on the property making large metal parts
for commercial clients. It has not used, generated, transported, treated, stored, or disposed of TCE
or PCE on the Moran Property. Between December 5 and December 12, 2011, the Major
Defendants removed and disposed of 4,641 tons of contaminated soil at the Moran Property. The
Major Defendants have not used, generated, transported, treated, stored, or disposed of TCE, PCE,
dichloroethylene, or vinyl chloride on the Moran Property. (Tr. Ex. 105 at 5).
C.

The Ertel Property
The Ertel Property refers to the property addressed as 2045 Dr. Andrew J. Brown Avenue

in Indianapolis. Ertel Manufacturing owned and operated the property between 1917 and 1998,
using it to make automotive engine parts. This manufacturing included the use of degreasing baths
and solvents, likely including TCE and PCE. The Ertel Property was sold to Dynagear in 1998,
which used it to manufacture auto parts until 2002, when the property was abandoned, leaving
behind soil and groundwater impacted with chlorinated volatile organic compounds (“CVOCs”).
Between 2004 and 2008, the city of Indianapolis, IDEM, and the U.S. Environmental Protection
Agency (“EPA”) performed cleanup activities at the Ertel Property.
On September 25, 2007, Major Tool began leasing the Ertel Property from the city of
Indianapolis. Prior to leasing the Ertel Property, Major Tool retained EnviroForensics to conduct

A Phase II Environmental Site Assessment is an environmental investigation of a property to characterize and
delineate potential contamination at a property or site. A Phase II ESA includes tracing all possible paths of
contamination movement from the source, and developing recommendations to remediate the contaminated materials.

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a Phase I Environmental Site Assessment (“Phase I ESA”) 5 consistent with the American Society
for Testing and Materials (“ASTM”) Standard E1527-05. (Tr. Ex. 1166.) Major Tool acquired
the Ertel Property from the city on January 31, 2013 and is the current owner. Prior to acquiring
the Ertel Property the Major Defendants commissioned another Phase I ESA. (Tr. Ex. 1191.) The
Major Defendants have not used, generated, transported, treated, stored, or disposed of any
hazardous substance, including TCE or PCE at the Ertel Property.
D.

The Zimmer Paper Property
The Zimmer Paper Property refers to both the Zimmer Paper Facility, addressed as 1931

Dr. Andrew J. Brown Avenue, and the Zimmer Packaging Facility, addressed as 1450 East 20th
Street in Indianapolis. Moran owned and operated the Zimmer Paper Property from 1967 to 1984.
Moran used degreasers and chlorinated solvents in its operations during this time. Moran’s
operations at the Zimmer Paper Property required the use of parts washers, but the specific
chemicals used in those washers were not identified at trial. Thus, there is no evidence that Moran
used TCE or PCE at the Zimmer Paper Property.
From 1986 to 2006, Zimmer Paper Products, Inc. (“Zimmer”) owned and operated the
Zimmer Paper Property. Zimmer used the property for chemical and equipment storage, among
other things. It used solvents in the course of its work, but it is not clear what kind of solvents.
Major Holdings acquired the Zimmer Paper Property from Zimmer on January 31, 2007
and is the current owner of the property. On November 16, 2006, Major Tool retained
EnviroForensics to conduct a Phase I ESA for the Zimmer Paper Property that was consistent with
the ASTM E1527-05 standard. (Tr. Ex. 1241.) After Major Holdings purchased the Zimmer Paper

A purpose of a Phase I Environmental Site Assessment is to determine the existence of recognized environmental
conditions (the presence or likely presence of hazardous substances on a property that indicated an existing release, a
past release or material threat of a release of hazardous substances on the property, into the ground, groundwater or
surface of the property) at the site. (Tr. Exhibit 1166 at 1.)

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Property, contaminated soil was removed from the property and a 16,000-gallon underground
storage tank was discovered and removed.
E.

Contaminated Soil and Groundwater
For many years toxic solvents were used unsafely at each property at issue in this case.

These toxic solvents, particularly TCE and PCE, seeped into the soil and groundwater beneath the
properties, contaminating that soil and groundwater. The groundwater from the four properties
commingled into a plume, which ran downgradient to the southwest and contaminated residential
properties and J.T.V. Hill Park, located in the Martindale-Brightwood Neighborhood in
Indianapolis.
The groundwater contamination does not present a risk of harm to human health via
drinking water or direct contact because the contaminated groundwater is deep below ground and
not used for drinking water. Rather, at the concentrations present in this commingled plume, TCE
vapors can migrate upward through the overlaying soil, resulting in TCE vapor intrusion into
overlying structures and risking inhalation of the harmful vapors. The minimum concentration
required for shallow groundwater contamination to off-gas and present a potential risk of vapor
intrusion varies from site to site, but within this particular plume area, shallow groundwater TCE
concentrations above 18 micrograms per liter (“µg/L”) is considered by IDEM to present a risk of
vapor intrusion. Indeed, TCE vapor intrusion has occurred at some of the properties in question.
More importantly for the general public, TCE vapor intrusion has also occurred or is an ongoing
concern at the indoor facility at J.T.V. Hill Park and about 40 homes situated over the plume. In
short, the shallow groundwater contamination in this plume is not merely a theoretical problem or
a problem only at the sites where releases occurred, but instead presents an actual risk to human
health even a considerable distance away from the source properties at issue in the litigation.

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In August 2013, IDEM notified Von Duprin, the furthest downgradient of the properties
involved in this litigation, that it was a potentially responsible party under the State Cleanup
Program in connection with the soil and groundwater contamination in the area. As detailed above,
Von Duprin performed extensive sampling and investigation of the soil, soil gas, indoor air, and
groundwater at the Von Duprin Property. Von Duprin also installed mitigation systems in
downgradient residences and the park building, affected by the contamination and continues to
maintain and pay the costs of those systems.
F.

Expert Testimony
At trial, three expert witnesses testified.
Von Duprin proffered the expert testimony of Sam Williams, P.G., CHG. (“Mr.

Williams”), an environmental consultant with more than 30 years’ experience in working on and
managing national contingency plan-compliant sites. Mr. Williams works for, and owns less than
1% of Geosyntec Consultants (“Geosyntec”), a company that performs and prepares work plans
and reports related to state and federal Superfund sites and contaminated industrial sites. (Filing
No. 250 at 6, 105.) Mr. Williams reviewed dozens of environmental work plans (including those
prepared by Geosyntec), and reports to IDEM, correspondence between Von Duprin’s consultants
and regulators and affected members of the public, as well as state and federal regulatory guidance
documents for environmental cleanups. He ultimately opined that Von Duprin’s response to the
contamination, taken as a whole, complied with the national contingency plan (“NCP”).
The Major Defendants proffered the expert testimony of Gary Hokkanen (“Mr.
Hokkanen”), who was employed by the EPA when CERCLA was enacted. He has been retained
to offer expert opinions relating to NCP compliance on multiple occasions. Mr. Hokkanen
reviewed applicable guidance from the EPA relating to the relevant provisions of the NCP prior to

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forming his opinions in this matter, and listed that guidance in his expert report. (Ex. 103 at 3538). Mr. Hokkanen provided an opinion that Von Duprin’s response actions did not comply with
several provisions of the NCP.
Moran called Adam H. Love, Ph.D. (“Dr. Love”) as an expert witness. Dr. Love is an
expert in environmental site assessment and remediation, environmental forensics and
groundwater modeling, geology, hydrogeology, chemistry, and fate and transport. 6 Dr. Love
created a database of the site investigation data from groundwater and native soil that had been
collected from the different properties at issue in this case. He used this database to analyze each
property’s contribution to the contaminated groundwater plume. Because he had no data from
earlier time periods, Dr. Love’s allocation analysis is limited to the time period covered by the
available data (primarily 2005-2017) and does not take into account the releases and migration of
chlorinated solvents that occurred in the decades preceding the collection of the first data. (Filing
No. 244 at 28). He opined that the harm caused by the releases of CVOCs could be allocated to
each property based upon their distinct geographic region and offered an opinion on what
percentage of contamination could be attributed to each property. In particular, of the chlorinated
solvents in the plume, he opined that 54.2% came from the Von Duprin Property, 3.11% came
from the Moran Property, 13.77% came from the Ertel Property, and 28.94% came from the
Zimmer Property, with the Zimmer Paper Parcel responsible for the vast majority of that portion.
(Tr. Ex. 101 at 23.) He did not offer an opinion on which parties contributed to the commingled
plume; he only weighed in on the proportion of the contamination each property was responsible
for. Nor did he opine as to when those chemicals were released from each property.

Fate and transport refers to the study of how chemicals degrade and where chemicals travel in the environment when
they are released.
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G.

The Litigation and Von Duprin’s Costs
Von Duprin incurred and continues to incur substantial costs to investigate and mitigate

vapor intrusion in the plume area. It initiated this CERCLA litigation to recover some of those
costs from parties responsible for the upgradient contamination—Moran, the Major Defendants,
and Zimmer. Zimmer did not appear or respond to the Complaint, and the Clerk entered a default
against Zimmer under Federal Rule of Civil Procedure 55(a). (Filing No. 90.) In its Amended
Complaint, filed on January 4, 2017, Von Duprin alleges the same 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. 7 It also alleges environmental claims against Moran and Zimmer
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.
Through this litigation, Von Duprin seeks to recover the following costs from Moran and
the Major Defendants:
(1) Vapor Intrusion Mitigation at Downgradient Homes

$465,000.00

(2) Investigation of Contamination in the Plume Area
Upgradient and Downgradient to Von Duprin Property

$750,000.00

(3) Vapor Intrusion Mitigation at J.T.V. Hill Park

$120,000.00

(4) Bench Scale and Pilot Tests of a Potential
Groundwater Remedy, in situ Biological Reduction

$365,000.00
$38,945.80.00 8

(5) IDEM Oversight Costs

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, 203 n. 10 (7th Cir. 2013).

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On page 12 of its Proposed Facts and Conclusions of Law, Von Duprin indicates it incurred $34,945.80 in IDEM
oversight costs, but on page 41 it seeks damages in the amount of $38,945.80 for those costs. (Filing No. 254 at 12,

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(6) Threaded Rod Settlement

$1,500,000.00

Those costs total $3,238,945.80. 9 In addition to these costs Von Duprin has already incurred, it
seeks a declaratory judgment requiring Defendants to contribute to the future costs to remediate
the plume. 10 No party presented evidence at trial regarding the anticipated future cost of
remediation.
The Major Defendants and Moran asserted cross-claims and counterclaims under Section
113(f), seeking contribution for any liability allocated to them. (Filing No. 46; Filing No. 52;
Filing No. 68.) Moran asserted a cross-claim against the Major Defendants under the Indiana
Environmental Legal Action statute, but at trial it voluntarily dismissed that cross-claim.
Von Duprin, Moran, and the Major Defendants cross-moved for partial summary
judgment. (Filing No. 133; Filing No. 138; Filing No. 141.) In the Order denying Von Duprin’s
Motion for Partial Summary Judgment, the Court determined as a matter of law that the harm in
this case was divisible. Thus, instead of holding all parties jointly and severally liable for the
remediation costs, the Court would be able to allocate a share of responsibility to each party and
apportion costs according to that percentage. Because the determination of those percentages is a
question of fact, the Court did not resolve it at the summary judgment stage. In the same Order,

41.) The Court’s review of Exhibit 1018 confirms that Von Duprin did in fact incur $38,945.80 in IDEM oversight
costs.
The Court was forced to resolve an arithmetic discrepancy in Von Duprin’s Proposed Facts and Conclusions of Law
to arrive at this number. Von Duprin indicated it was seeking to recover “$1.7 million in environmental consulting
fees,” but its itemized accounting of those fees totaled $1.72 million. (Filing No. 254 at 12.) Von Duprin’s itemized
list indicated it incurred $770,000.00 in fees “for investigation of contamination in the plume area upgradient and
downgradient of the Von Duprin property.” Id. But the record cite it gives for that figure—testimony of Geosyntec
Consultant Alan Ferree—indicates Von Duprin actually incurred only $750,000.00 worth of fees for this service.
(Filing No. 249 at 197.) This $750,000.00 figure would render Von Duprin’s total of $1.7 million in consulting costs
accurate and is consistent with the total Von Duprin gives elsewhere in its Proposed Facts and Conclusions of Law.
See Filing No. 254 at 41. Von Duprin again refers to this number as $770,000.00 on page 22 of its Proposed Facts and
Conclusions of Law. (Filing No. 254 at 22.) The Court treats that reference as a clerical error as well.
9

Von Duprin does not seek to recover the $688,350.25 it incurred in support of its litigation efforts or the $777,000.00
that was expended solely to investigate the contamination at the Von Duprin Property.

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the Court determined that the Major Defendants were Bona Fide Prospective Purchasers of the
Moran Property and the Zimmer Packaging Facility, and thus they could not be responsible for
any soil or groundwater contamination stemming from those facilities. (Filing No. 203.)
II.
A.

CONCLUSIONS OF LAW

Von Duprin’s Section 107(a) Claim
1.

Standard

To establish a prima facie case of liability in a private party CERCLA action under Section
107, a plaintiff is required to prove the following five elements: (1) the site in question is a
“facility” as defined under Section 101(9); (2) there has been a release or threatened release of
hazardous substances; (3) the plaintiff has incurred costs in response to the release or threatened
release; (4) the costs incurred in responding to the release or threatened release were “necessary
response costs” and “were consistent with the national contingency plan”; and (5) the defendant is
a responsible party under Section 107(a). See 42 U.S.C. § 9607(a); see also e.g. Allied Waste
Transp., Inc. v. John Sexton Sand & Gravel Corp., No. 13 C 1029, 2016 WL 3443897, at *13
(N.D. Ill. June 23, 2016). Response costs are defined as the “costs of investigating and remedying
the effects of a release or threatened release of a hazardous substance into the environment.” Rolan
v. Atlantic Richfield Co., No. 1:16-CV-357-TLS, 2017 WL 3191791, at *6 (N.D. Ind. July 26,
2017). Response costs are “necessary” if the costs “are incurred in response to a threat to human
health or the environment and they are necessary to address that threat.” Id. The plaintiff bears the
burden of proof as to each element of each claim for each property against the defendant. G.J.
Leasing Co., Inc. v. Union Elec. Co., 854 F.Supp. 539, 558 (S.D. Ill. 1994).
Here, the parties have stipulated that: (1) each party is a “person” under Section 101(21);
(2) each property at issue is a “facility” under Section 101(9); (3) there has been a “release” or

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“threatened release” of hazardous substances at each property at issue under Section 101(22) and
Section 107(a); and (4) some contaminants detected at each property at issue are “hazardous
substances” under Section 101(14). (Filing No. 205.) Von Duprin bears the burden of establishing
the remaining elements of its claim. G.J. Leasing Co., Inc., 854 F.Supp. at 558. Even where a
plaintiff is able to establish each element of its claim, a defendant can avoid liability under Section
107(a) if the defendant proves that it satisfies one of the affirmative defenses enumerated in Section
107(a). The Bona Fide Prospective Purchaser (“BFPP”) defense is an enumerated affirmative
defense. 42 U.S.C. 9607(a)(1); 42 U.S.C. § 9607(r)(1); 42 U.S.C. § 9601(40).
A defendant can also limit or eliminate its liability under Section 107(a) by demonstrating
that the harm at issue is divisible. As Congress intended the scope of liability under CERCLA to
be determined from traditional and evolving principles of common law, the Court is not required
to find that liability is joint and several in every case. Burlington N. & Santa Fe Ry. Co. v. United
States, 556 U.S. 599, 613 (2009) (quoting United States v. Chem–Dyne Corp., 572 F.Supp. 802,
808 (S.D. Ohio 1983)); see also United States v. NCR Corp., 688 F.3d 833, 838 (7th Cir. 2012).
Rather, where a party demonstrates that the relevant harm in the case is divisible as between the
multiple purported causes, the party only bears liability for the portion of the total harm that he
himself has caused. NCR Corp., 688 F.3d at 838 (citing Burlington Northern, 556 U.S. at 614).
2.

Divisibility of Harm

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

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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.’” NCR Corp., 688
F.3d at 838 (quoting Burlington N. 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 apportion the
damages, which is ‘a question of fact.’” Id. (quoting Burlington N. at 614). The Court determined
in its Entry on the Parties’ Cross-Motions for Summary Judgment that the harm in this case is
theoretically capable of apportionment. (Filing No. 203 at 22-23.) Equitable considerations play
no role in the apportionment analysis; rather, apportionment is proper only when the evidence
supports the divisibility of the damages jointly caused by the PRPs. Burlington N. at 615 n.9.
The harm in this case is groundwater contaminated by CVOCs that can result in a vapor
which is toxic when inhaled. It is true but irrelevant that, once a CVOC discharge enters the plume,
runs downgradient, and vaporizes, it is impossible to tell where it came from. This is a case
involving a single harm “that is nonetheless divisible because it is possible to discern the degree
to which different parties contributed to the damages.” U.S. v. Hercules, Inc. 247 F.3d 706, 718

16

(8th Cir. 2001). Each party, through the property or properties it is attached to, has caused a
separate amount of harm, and no party is responsible for the harm caused by another.
Moran’s expert, Dr. Love, demonstrated a reasonable basis for apportionment. He created
a database based on at least 30 reports that monitored groundwater on the four properties between
2005 and 2017. (Filing No. 244 at 55-56.) This database contained “thousands of different
individual data points.” Id. He determined, based on that data, that the contamination in this case
emanated from four geographically distinct areas. Id. at 54. He also determined that both the
magnitude of the concentration of CVOCs as well as the chemical characteristics of those CVOCs
at the Von Duprin Property are dramatically different from the magnitude and chemical
characteristics of the three upgradient properties. Id. at 31. “The concentration goes up a factor
of five and the concentrations change from being TCE dominated to PCE dominated” as one
examines data from the wells on the Von Duprin Property. Id. Dr. Love was able to use the ratio
of TCE to PCE in the soil and groundwater samples taken from each individual property to
determine how much each property contributed to the commingled plume. Id. at 32. This evidence,
detailed in Dr. Love’s report and then explained from the witness stand at trial, confirmed the
conclusion the Court reached in its Entry on the Parties’ Cross-Motions for Summary Judgment
that the harm in this case is divisible and a reasonable basis for its apportionment exists.
3.

Threaded Rod Settlement

Von Duprin paid $1.5 million to Threaded Rod as part of a settlement and, as part of that
settlement, Von Duprin acquired ownership of wells Threaded Rod had dug on the plume area and
the data Threaded Rod had obtained from monitoring those wells. (Filing No. 248 at 51-53; 107.)
Von Duprin cannot recover the $1.5 million that was paid to Threaded Rod as part of a settlement
under 42 U.S.C. § 9607.

17

As the Supreme Court of the United States has explained, § 9607 and § 9613 provide two
clearly distinct remedies. U.S. v. Atlantic Research Corp., 551 U.S. 128, 138 (2007). “CERCLA
provide[s] for a right to cost recovery in certain circumstances, [§9607(a)], and separate rights to
contribution in other circumstances, [§§ 9613(f)(1), 9613(f)(3)(B)].” Cooper Indus. Inc. v. Aviall
Servs., Inc., 543 U.S. 157, 163 (2004). Section 9613(f) grants a potentially responsible person the
right to contribution when he has paid more than his or her proportionate share. Atlantic Research,
551 U.S. at 138. In contrast, section 9607(a) permits recovery of cleanup costs but does not create
a right to contribution. Id. at 139. “When a party pays to satisfy a settlement agreement or a court
judgment, it does not incur its own costs of response. Rather, it reimburses other parties for costs
that those parties incurred.” Id. In other words, the Supreme Court has determined that § 9607
only allows a plaintiff to recover for cleanup costs, and money used to pay a settlement is not
strictly a cleanup cost. Thus, the Court will analyze Von Duprin’s attempt to recover the $1.5
million it paid in a settlement to Threaded Rod as part of Von Duprin’s § 9613 claim.
4.

National Contingency Plan Compliance

The national contingency plan (“NCP”) is a federal regulation promulgated by the United
States Environmental Protection Agency that establishes criteria for performing removal and
remedial actions designed to assure that a CERCLA-quality cleanup is achieved. 40 C.F.R. Part
300. An issue, argued extensively by the parties, was whether the costs Von Duprin incurred were
consistent with the NCP. Under § 9607 of CERCLA, Von Duprin may recover “any … necessary
costs of response incurred.” To be recoverable, costs must be necessary and comport with the
NCP.
Whether a response cost is consistent with the NCP is determined based on the NCP in
effect at the time the response costs were incurred. See, e.g., G.J. Leasing Co. v. Union Elec. Co.,

18

854 F. Supp. 539, 563 (S.D. Ill. 1994), aff’d, 54 F.3d 379 (7th Cir. 1995); NL Industries, Inc. v.
Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). Under the current version of the NCP, a “private party
response action” is consistent with the NCP “if the action, when evaluated as a whole, is in
substantial compliance with the applicable requirements … and results in a CERCLA-quality
cleanup.” 40 C.F.R. § 300.700(c)(3)(i); Franklin County Convention Facilities Auth. v. American
Premier Underwriters, Inc., 240 F.3d 534, 543 (6th Cir. 2001).
A person seeking to recover response costs must substantially comply with only the
portions of the NCP that apply to the task being performed. Importantly, many NCP requirements
do not apply in the investigation phase of a response, nor do some requirements apply in actions
undertaken to remove, rather than remediate, hazardous substances from a site. Indeed, “because
any clean-up proposal and, consequently, any clean-up of a contaminated site must first be
preceded by an investigation of the nature and extent of contamination, such investigative and
assessment costs need not be incurred in compliance with the NCP and are ‘necessary.’” CNH
Am., LLC v. Champion Envtl. Servs., 863 F. Supp. 2d 793, 809 (E.D. Wis. 2012) (collecting cases
which hold that “initial investigation, site-assessment, and monitoring costs are recoverable under
§ 107(a) of CERCLA irrespective of compliance with NCP requirements”).
a)

Investigation and Assessment Costs

Von Duprin has labeled the $750,000.00 it spent on investigation of contamination in the
plume area upgradient and downgradient to Von Duprin Property as investigation and assessment
costs. At trial, Von Duprin’s environmental consultant Alan Ferree testified that Von Duprin paid
his firm $750,000.00 for off-site investigation. (Filing No. 249 at 197.) No evidence in the record
directly disputes that claim. Von Duprin’s expert, Mr. Williams, issued a report which confirms
that many of Von Duprin’s costs were investigative. He details investigative reports commissioned

19

by each party in section 5.6 of his report (Tr. Ex. 106 at 16), but he also lists investigative work in
sections 5.1, 5.2.1, 5.2.3, and 5.2.5 (Tr. Ex. 106 at 10-13.) His report does not contradict Alan
Ferree’s testimony. Neither Mr. Williams’ report nor his testimony suggest that the only
investigation and assessment costs incurred by the parties in this case were the costs of
commissioning the investigations listed in section 5.6 of his report. The Court considers the
$750,000.00 Von Duprin spent on investigation of contamination in the plume area upgradient and
downgradient to Von Duprin Property to be initial investigation, site-assessment, and monitoring
costs. As such, those costs need not be consistent with the NCP to be recoverable under 42 U.S.C.
§ 9607(a), and these costs are recoverable.
b)

Remedial Costs

Other costs Von Duprin seeks to recover—the $120,000.00 for remediation of J.T.V. Hill
Park, $465,000.00 for residential vapor intrusion remediation, and $365,000.00 for bench scale
and pilot testing qualify as costs for remediation actions. 42 U.S.C. § 9601(24). These remedial
costs are recoverable under 42 U.S.C. § 9607(a) if Von Duprin shows they were incurred consistent
with the NCP. The NCP provisions relevant to Von Duprin’s non-investigative costs include:
Section 300.150 (Worker Health and Safety); Section 300.160 (Documentation and Cost
Recovery); Sections 300.400(c)(1), (4), (5), and (7) (Determining the Need for Fund Financed
Response Actions); Section 300.400(g) (Identification of Applicable or Relevant and Appropriate
Requirements); Sections 300.410 and 300.415 (Removal Site Evaluations and Actions); Section
300.420 (Remedial Site Evaluation); Section 300.430 (Remedial Investigation/Feasibility Study
and Remedy Selection); Section 300.435 (Remedial Design, Remedial Action and Operation and
Maintenance); and Sections 300.155, 300.415, and 300.430 (Public Participation and Community
Relations). Despite the number of specific provisions listed within the NCP, a “private party

20

response action” is consistent with the NCP “if the action, when evaluated as a whole, is in
substantial compliance with the applicable requirements … and results in a CERCLA-quality
cleanup.” 40 C.F.R. § 300.700(c)(3)(i); Franklin County Convention Facilities Auth. v. American
Premier Underwriters, Inc., 240 F.3d 534, 543 (6th Cir. 2001).
At trial, Von Duprin’s expert, Mr. Williams, testified on the issue of whether Von Duprin
incurred these costs consistent with the NCP. Mr. Williams opined that taken as a whole, Von
Duprin’s actions substantially complied with the NCP. The Major Defendants’ expert Mr.
Hokkanen did not render an opinion regarding whether or not Von Duprin complied with the NCP,
instead he responded in rebuttal to Mr. Williams opinions. (Filing No. 245 at 48). The Court
considers the following evidence in determining Von Duprin’s substantial compliance.
Maintaining Documentation Requirement – 40 C.F.R. § 300.160: In relevant part, Section
300.160 of the NCP requires parties to “maintain documentation to support all actions taken under
the NCP and to form the basis for cost recovery.” Von Duprin introduced more than 2,000 pages
of invoices at trial, which provide phase information and other details that provided Von Duprin
with the information it required to process and pay the invoices. (Tr. Ex. 1017.) Von Duprin
presented fact testimony from Alan Ferree, Russell Eiler, and Ryan Fimmen that explained the
work Von Duprin’s consultant performed, the costs incurred, categories of damages, review and
approval of Geosyntec’s work and invoices, and what costs were non-recoverable, including legal
support and costs to investigate and remediate soil contamination at the Von Duprin Property. For
the work performed by Geosyntec, Mr. Williams admitted that he only reviewed “three or four”
of the hundreds of invoices issued by Geosyntec. (Filing No. 250 at 75-76.) Mr. Williams testified
that because he works for and has a portion of ownership in Geosyntec, he is familiar with their
invoicing. However, the invoices Mr. Williams reviewed did not contain narratives describing the

21

work being performed, and a review of the invoices shows that the majority of the invoices
similarly lacked that information. (Tr. Ex. 1017; Filing No. 250 at 77-78.) For the work performed
by any other consultant, Mr. Williams reviewed “cost summaries” prepared by an unknown
person. Id. at 72-73. Mr. Hokkanen agreed that narratives are not always listed on invoices for
environmental consultants. (Filing No. 245 at 22.) Although expert testimony discussing the
invoices in more detail, or narratives confirming specific tasks performed by Geosyntec may have
been helpful to the Court, it was not required. The Court determines that the Mr. Williams provided
a reliable opinion as to Von Duprin’s compliance with Section 300.160.
Engineering Evaluation/Cost Analysis Requirement – 40 C.F.R. 300.415(b)(4)(i): Section
300.415(b)(4)(i) requires a party to conduct an engineering evaluation/cost analysis (“EE/CA”) or
its equivalent if a planning period of at least six months exists before on-site activities must be
initiated. Mr. Williams explained that an EE/CA was required to be prepared for Von Duprin’s
work, and he admitted that there was no EE/CA created for the work performed. (Filing No. 250
at 94-95.) Mr. Hokkanen agreed, noting that an EE/CA should be prepared immediately after it is
determined that a removal action is necessary, but no EE/CA was prepared here. (Filing No. 245
at 32-33.)
Sampling and Analysis Plan and Quality Assurance Project Plan Requirement – 40 C.F.R.
§ 300.415(b)(4)(ii)(A) and 40 C.F.R. § 300.415(b)(4)(ii)(B): Section 300.415(b)(4)(ii)(A) requires
a sampling and analysis plan (“SAP”) to be created and Section 300.415(b)(4)(ii)(B) requires a
quality assurance project plan (“QAPP”) to be created for removal actions. No document relating
to the work performed specifically sets forth a SAP. (Filing No. 250 at 95-96; see also Tr. Ex. 103
at 11.) At best, the elements of a SAP were included for work performed after 2014, meaning no
work performed before that time complied with Section 300.415. (Filing No. 245 at 33.) Both

22

experts agree no QAPP was created before May 2017, meaning no work performed before that
time complied with Section 300.415. (Tr. Ex. 103 at 11; Filing No. 250 at 96; Filing No. 245 at
34.) In sum, Von Duprin failed to prove that the costs it seeks to recover for work performed
before May 2017 were necessary response costs incurred consistent with Section 300.415.
Health and Safety Program Requirement – 40 C.F.R. § 300.150: Section 300.150 of the
NCP requires the preparation and implementation of a health and safety program (“HASP”) where
a response action is taken. Response actions were taken by Von Duprin, but no HASP was created
or implemented for Von Duprin’s work before August 2014. (Tr. Ex. 103 at 8; Filing No. 250 at
87-88; Filing No. 245 at 19-20.) Von Duprin failed to prove that the costs it seeks to recover for
work performed before August 2014 were necessary response costs incurred consistent with
Section 300.150.
Applicable or Relevant and Appropriate Requirement – 40 C.F.R. § 300.400(g): Section
300.400(g) and other sections of the NCP require a party to identify and comply with applicable
or relevant and appropriate requirements (“ARARs”) to the extent practicable. See also 40 C.F.R.
§ 300.415; 40 C.F.R. § 300.430; 40 C.F.R. § 300.435. Von Duprin followed IDEM screening
levels to evaluate data. (Tr. Ex. 103 at 10; Filing No. 245 at 30.) Mr. Hokkanen opined that
following IDEM screening levels to evaluate data is not equivalent to identifying all ARAR,
consistent with Section 300.400(g). Id. Because Section 300.400(g) only requires Von Duprin to
identify and comply with ARARs “to the extent practicable,” the Court finds that Von Duprin has
satisfied this requirement.
Local Community Concerns – 40 C.F.R. § 300.400(c): Section 300.400(c) requires parties
to, among other things, be sensitive to local community concerns in determining the need for,
planning, or undertaking certain response actions. Mr. Hokkanen opined that “[y]ou need to

23

inform the potentially affected community in what you're doing, get their feedback, respond to that
feedback, because people are impacted by this contamination, so you need to determine what their
concerns are and then respond to those concerns.” (Filing No. 245 at 24.) He also opined that
performing all work in accordance with schedules from a government agency like IDEM “could”
constitute being sensitive to local community concerns.
Von Duprin has sufficiently demonstrated that it was sensitive to local community
concerns. Not only did it perform all work in accordance with schedules from IDEM, but Von
Duprin communicated with affected residences, as well as community leaders that managed the
J.T.V. Hill Community Center. Moreover, Von Duprin’s partial Remediation Work Plan included
a Community Relations Plan which was timely submitted to IDEM for public comment. (Filing
No. 250 at 50, Filing No. 248 at 30.) Taken as a whole, Von Duprin has proven that it substantially
complied with the NCP to recover necessary response costs incurred consistent with Section
300.400(c) for the $120,000.00 for remediation of J.T.V. Hill Park and the $465,000.00 for
residential vapor intrusion remediation.
Community Relations Requirements: 40 C.F.R. § 300.700(c)(6); 40 C.F.R. § 300.415(n);
40 C.F.R. § 300.430(c); 40 C.F.R. § 300.430(f): These sections of the NCP require parties to
undertake various community relations actions when performing response and remedial actions.
The requirements relating to remedial actions are particularly onerous, as they include conducting
interviews, establishing a local information repository, providing the opportunity for a public
meeting, and publishing an analysis of the proposed plan in a local newspaper. 40 C.F.R. §
300.430. Von Duprin’s efforts relating to the local community included requesting access to
residences for certain sampling and mitigation activities. (See Tr. Ex. 106 at 72 (describing all
“public participation and community relations” actions taken by Von Duprin)); Tr. Ex. 1002;

24

Filing No. 250 at 99; Filing No. 245 at 36-37). Mr. Hokkanen opined that these provisions are
integral to the NCP and Von Duprin needed to do significantly more to comply with them. (Filing
No. 245 at 35-37.) Mr. Hokkanen did not review all of the information which Mr. Williams relied
upon in forming his opinions about Von Duprin’s outreach to the community and he did not
consider the Memorandum of Agreement between IDEM and USEPA which establishes that
USEPA finds the public participation requirements of the VRP to be adequate. (Tr. Vol. 6 at
1029:15-22) In addition, Von Duprin’s partial Remediation Work Plan included a Community
Relations Plan and which was submitted to IDEM for public comment. These efforts, performed
with IDEM approval, satisfy some of the community relations requirements for either removal or
remedial actions to show that the costs Von Duprin seeks to recover were necessary response costs
incurred consistent with Section 300.700(c), 40 Section 300.415(n); Section 300.430(c), and
Section 300.430(f).
Von Duprin’s compliance was not perfect, however, the NCP requirements are not
intended to be a checklist of required actions for private remediations. See Franklin County at 546.
CERCLA is to be liberally construed to serve its dual purposes of efficiently cleaning the
environment, while at the same time holding responsible parties accountable for their actions. See
In re Eagle–Picher Indus., Inc., 131 F.3d 1185, 1191 (6th Cir.1997). Taken as a whole, the Court
determines that Von Duprin’s remediation substantially complied with the NCP and resulted in a
“CERCLA-quality” cleanup as that term has been described by the EPA. Because Von Duprin has
presented evidence that remedial costs were incurred consistent with the NCP as required by §
9607, Von Duprin can recover a portion of the $465,000.00 it spent to mitigate vapor intrusion at
downgradient homes, a portion of the $120,000.00 it spent to mitigate vapor intrusion at J.T.V.
Hill Park, and a portion of the $365,000.00 it spent on bench scale and pilot tests.

25

c)

IDEM Oversight Costs

The last cost Von Duprin seeks to recover in its § 9607 claim is the $38,945.80 it spent on
IDEM oversight. These are costs incurred by IDEM, which IDEM later billed to either Threaded
Rod or Von Duprin. (Tr. Ex. 108; Tr. Ex. 1018; Filing No. 248 at 34, 43-44; 242-43.) Von Duprin
cannot recover these costs under § 9607 for several reasons.
As a preliminary matter, it is unclear which of these invoices include costs incurred by Von
Duprin. Of the 32 IDEM invoices in the record, 22 of the invoices are addressed to Threaded Rod.
(Tr. Ex. 1018.) It is not clear if Von Duprin is paying those invoices directed to Threaded Rod
and, if so, whether it is doing so as a result of its settlement with Threaded Rod (the costs of which
are not recoverable in a § 9607 claim).
To the extent Von Duprin is paying all of the invoices, it is not clear if these costs pertain
to off-site or on-site work. (Tr. Ex. 1018.) Von Duprin made it clear that it was not seeking to
recover costs relating to certain work performed on the Von Duprin Property, as those costs would
not be recoverable in this lawsuit. (Filing No. 248 at 32, 42-43; 107.) While Von Duprin
subtracted the amounts relating to Geosyntec’s on-site work from the total damage amount sought,
it is not clear that Von Duprin did so with the IDEM costs. Id. at 107. As the IDEM invoices do
not provide enough information regarding the nature of the work performed to allow the Court to
make this distinction (see Tr. Ex. 1018), Von Duprin has not proven that it is entitled to recover
those costs in this case.
Finally, there is no evidence that Mr. Williams reviewed any of the IDEM invoices or
offered any opinion regarding whether the work performed relating to those invoices complied
with the NCP. Without any testimony from Mr. Williams regarding whether the consistency of

26

these costs with the NCP, the Court cannot find the Threaded Rod Settlement costs are recoverable
in this lawsuit.
5.

Major Defendants’ Bona Fide Prospective Purchaser Defense

Section 107(a)(1) of CERCLA is subject to certain affirmative defenses, one of which is
the bone fide prospective purchaser 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 argued at trial that they are BFPPs of all the property they own and operate
that is at issue in this case. In its Entry on the Parties’ Cross-Motion for Summary Judgment, the
Court determined that the Major Defendants were BFPPs of the Moran Property and the Zimmer
Packaging Facility and thus could not incur any liability related to CVOCs that entered the
commingled plume from those properties. (Filing No. 203 at 33-34.) But issues of material fact
precluded a determination at the summary judgment stage that the Major Defendants were BFPPs
of the Ertel Property and the Zimmer Paper Facility. Id.
The sticking point with those two properties was the “all appropriate inquiries” prong of
the BFPP defense. At trial, the Major Defendants did not show that they satisfied CERCLA’s all
27

appropriate inquiries (“AAI”) requirement with regards to the Ertel Property or the Zimmer Paper
Facility.
a)

The Ertel Property

In its Entry on the Parties’ Cross-Motions for Summary Judgment, the Court found that
“[t]he Major Defendants undisputedly became operators of the [Ertel Property] 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.” (Filing No.
203 at 31.)
At trial, the Major Defendants offered into evidence a Phase I ESA dated September 8,
2006, and argued that this 2006 Phase I ESA complied with the AAI requirements. (Tr. Tr. Ex.
1166.) Major Tool performed its Phase I ESA pursuant to the ASTM Phase I Environmental Site
Assessment Standard (E1527-05), which meant it had to have been completed or updated within
180 days of and prior to the lease in order to be considered valid. 40 C.F.R. § 312.20(b). (Tr. Tr.
Ex. 1166.) Major Tool entered into a 99-year Lease on November 16, 2007. (Tr. Tr. Ex. 1021.)
Accordingly, the September 6, 2006 Phase I ESA does not satisfy the AAI requirements because
it was not completed or updated within 180 days of and prior to the Lease. 40 C.F.R. § 312.20(b);
Filing No. 244 at 152-153.
Because the Major Defendants did not show that they satisfied CERCLA’s all appropriate
inquiries requirement, they are not BFPPs of the Ertel Property. Thus, they can incur liability from
contamination stemming from that property.
b)

The Zimmer Paper Facility

In its Entry on the Parties’ Cross-Motions for Summary Judgment, the Court found that the
Phase I ESA the Major Defendants conducted prior to acquiring the Zimmer Paper Facility was

28

insufficient to qualify them as BFPPs of that parcel because it did not comply with the requirements
of 40 C.F.R. §§ 312.21 and 312.22. These sections establish federal standard and practices for
conducting all appropriate inquiries into the previous ownership and uses of a property and are not
satisfied by adhering to the procedures of ASTM International Standard E2247. 40 C.F.R. §§
312.11. The Major Defendants did not offer any new evidence or testimony at trial to address this
Court’s prior determination that they do not qualify for the BFPP defense for the Zimmer Paper
Property. At trial, the Major Defendants pointed to the same Phase I ESA dated November 16,
2006, that they used at the summary judgment phase. (Tr. Ex. 1241.) The Major Defendants did
not offer any evidence at trial to rebut Von Duprin’s arguments that the 2006 Phase I ESA failed
to comply with the requirements of 40 C.F.R. §§ 312.21 and 312.22. Given the failure of the 2006
Phase I ESA to satisfy the all appropriate inquiries requirements, Major Holdings is not a BFPP
for the Zimmer Paper Facility. Therefore, the Major Defendants can incur liability for
contamination that joined the commingled plume after it was released from the Zimmer Paper
Facility. 11
6.

Apportionment

Under 107(a)(1) and (2), the following persons are liable under CERCLA:
(1) the owner and operator of a vessel or a facility,
(2) 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.

11
As the Court noted in its Entry on the Parties’ Cross-Motions for Summary Judgment, the Major Defendants’ thirdparty defense, raised under §9607(b)(3), also requires them to have made all appropriate inquiries in regard to all
property they own. (Filing No. 203 at 34-35.) Thus, the Major Defendants’ third-party defense fails as to the Ertel
Property and the Zimmer Paper Facility for the same reason their BFPP defense fails on those properties.

29

42 U.S.C. 9607(a)(1) and (2). The Court holds that Major Tool is liable under 107(a) as the current
owner of the Ertel Site and Zimmer Paper Facility. The Court holds that Von Duprin is a liable
party as the owner of the Von Duprin Site at the time a release occurred. The Court holds that
Moran is a liable party as the owner of the Moran Property at the time a release occurred.
The parties have disputed whether Zimmer, a party in default, can be apportioned any share
of the harm in this case. In CERCLA, “[w]hen a court cannot assign an ideal measure of monetary
responsibility to an otherwise responsible party—because, for example, that party is immune from
suit, bankrupt, or defunct—this gives rise to an orphan share.” Litgo N.J. Inc. v. Comm’r N.J.
Dep’t of Envtl. Prot., 725 F.3d 369, 380 n. 4 (3d Cir. 2013) (internal quotations and citations
omitted). Here, however, no party presented evidence that a release or threatened release of TCE
occurred while Zimmer owned and operated the Zimmer Paper Property. 12 Thus, there is no basis
for assigning orphan shares to Zimmer.
Once liable parties are identified under Section 107(a), the Court must determine whether
the harm is divisible. In its Entry on the Parties’ Cross-Motions for Summary Judgment, the Court
determined that the harm in this case was theoretically capable of apportionment. (Filing No. 230
at 26-27.) The evidence at trial supports this conclusion.
7.

Allocation

Having determined the harm is divisible, the Court must next determine equitable
allocation. In allocating response costs between multiple parties, a court “may consider any factor
appropriate to balance the equities in the totality of the circumstances.” Evnvtl. Transp. ENSCO
Sys. v. ENSCO, Inc., 969 F.2d 503, 507-08 (7th Cir. 1992). Under CERCLA, the allocation of
responsibility is based on equitable factors determined to be relevant by the Court. 42 U.S.C. §
Although Zimmer used solvents in the course of its operations at the Zimmer Paper Property, the particular type of
solvents used is unclear. (Tr. Ex. 105 at 6; Filing No. 245 at 70-72.)
12

30

9613(f)(1). Some criteria, referred to as the Gore factors, that the Court has considered are (a) the
distinguishability of each party’s waste; (b) the amount of hazardous waste; (c) degree of toxicity
of the contaminants at issue; (d) degree of involvement of the parties in waste generation; (e)
degree of cooperation with federal, state or local officials to prevent any harm to public health or
the environment; and (f) degree of care taken by the parties with respect to the hazardous waste
concerned.
Von Duprin suggests, upon consideration of the equitable factors, each source property˗˗
Ertel Property, Zimmer Paper Property, Moran Property and Von Duprin Property˗˗should be
allocated an equal 25% share of the response costs. He proffers that Von Duprin is allocated 100%
of the 25% share attributable to the Von Duprin Property. Moran is allocated 75% of the 25%
share attributable to the Moran site and 75% of the 25% share attributable to the Zimmer Paper
Property for a final allocation share of 37.5% of the repose costs. (Filing No. 254-1 at 39-40.)
Major Defendants are allocated 100% of the 25% share attributable to the Ertel site, 25% of the
25% share attributable to the Moran site, and 25% of the 25% share attributable to the Zimmer
Paper Property for final allocation share of 37.5% of the past response costs. Id.
Moran suggests a percentage allocation of 54.2% share attributable to the Von Duprin
Property, 3.11% attributable to the Moran Property, 13.77% attributable to the Ertel Property, and
28.94% attributable to the Zimmer Paper Property. Their calculation is based on Dr. Love’s
testimony that he was able to determine the contribution to harm resulting from releases at the
upgradient properties by referring to the level of solvent impacts in shallow soil (vadose zone) at
each of the sites – Ertel, Zimmer Paper and Moran. (Filing No. 244 at 93.) Dr. Love was able to
calculate the percentage of the total CVOCs in the downgradient area and allocate those portions
attributable to the upgradient properties. Dr. Love considered his conclusions to a reasonable

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degree of scientific certainty and opined that the harm in this case could be distributed among the
four properties in the amounts listed above. In his allocation calculation, Dr. Love did not consider
any equitable factors.
The Major Defendants suggests that they should not be allocated any response costs under
Section 113(f). They argue that they have not used, generated, transported, treated, stored, or
disposed of any of the hazardous substances at issue, including TCE or PCE, on any of the
properties at issue, at any time. (Tr. Ex. 105 at 5). There is no evidence that the Major Defendants
ever released or threatened to release any of the hazardous substances at issue on any of those
properties. They assert that although both Moran and Von Duprin caused and contributed to
contamination, neither voluntarily agreed to investigate or remediate their properties. And, Moran
has not undertaken any remediation on its properties. Based upon the relevant factors and the
totality of the circumstances, the Major Defendants suggests that they should not be allocated any
response costs under Section 113(f).
To allow the Major Defendants to avoid liability for its share of the response costs, under
the totality of circumstances in this case, would undermine CERCLA's intended purposes.
Considering the evidence presented at trial, including the equitable factors, the Court determines
the allocution as follows: Von Duprin Property 50%, Ertel Property 10%, Zimmer Property 20%
and Moran Property 20%.
On its § 9607 claim, the costs Von Duprin can recover are its $750,000.00 in investigation
and assessment costs, $465,000.00 in downgradient residential vapor intrusion mitigation costs
and $120,000.00 in J.T.V. Hill vapor intrusion mitigation costs, and the $365,000.00 it spent on
bench scale and pilot tests for a total of $1,700,000.00. The $1.5 million it paid in its settlement
with Threaded Rod is not recoverable under § 9607, nor is the $38,945.80 it sought to recover for

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IDEM oversight costs. The Environmental response costs total $1,700,000.00, and they are hereby
apportioned as follows:
1. Von Duprin Property: Von Duprin is the only party in this case who owned the
Von Duprin Site when a release occurred, and is therefore liable under CERCLA,
42 U.S.C. 9607(a)(2). No other person has been named as a party who may bear
responsibility under CERCLA, 42 U.S.C. 9607(a) for pollution at the Von Duprin
Property. The Von Duprin Property is apportioned 50% of the total harm. Von
Duprin is responsible for 100% of that harm.
2. Ertel Property: Major Tool is the only party in this case who currently owns
the Ertel site, and is therefore liable under CERCLA, 42 U.S.C. 9607(a)(1). No
other person has been named as a party who may bear responsibility under
CERCLA, 42 U.S.C. 9607(a) for pollution at the Ertel Property. The Ertel Property
is apportioned 10% of the harm, and Major Tool is liable for 100% of that harm.
3. Zimmer Paper Property: Major Tool is liable under 42 U.S.C. 9607(a)(1) as
the current owner of the Zimmer Paper Parcel. Zimmer Paper has been defaulted as
a liable party under 42 U.S.C. 9607(a)(2). No other party has been identified as a
current owner of the Zimmer Paper Parcel, and there is insufficient evidence in the
record showing that Moran ever used chlorinated solvents at the Zimmer Paper
Parcel, or that a release occurred during Moran’s period of ownership. The Zimmer
Paper Parcel has been apportioned 20% of the harm. Major Tool is liable for 100%
of that harm.
4. Moran Property: Moran is liable under 42 U.S.C. 9607(a)(2) as the owner of
the Moran Property at the time that a release occurred there. Major Tool, as a BFPP

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of the Moran Property, is not liable for any share of the harm that came from the
Moran Property. The harm apportioned to the Moran Property is 20%. Moran is
liable for 100% of that harm.
Von Duprin incurred $1,700,000.00 in recoverable investigation and assessment costs-$465,000.00 in downgradient residential vapor intrusion mitigation costs, $120,000.00 in J.T.V.
Hill vapor intrusion mitigation costs and $365,000.00 in bench scale and pilot tests costs. Von
Duprin itself is responsible for $850,000.00 of that sum. Moran is responsible for $340,000.00.
The Major Defendants are responsible for $510,000.00. Any share attributable to TCE
contamination stemming from the Zimmer Packaging Facility cannot be charged to any party in
this case, and thus must be borne by Von Duprin, as it was Von Duprin’s burden to establish
another party’s liability for that share of the harm.
B.

Von Duprin’s Section 113(f) Claims
In its Amended Complaint, Von Duprin sought
a declaratory judgment on liability for response costs that is binding in any
subsequent actions to recover further response costs and declares Moran liable
under CERCLA Section 107(a), 42 U.S.C. § 9607(a), for all or its proper share of
response costs Von Duprin has incurred and will incur with respect to the
Contamination migrating from the Moran Property and Zimmer Paper Parcel,
pursuant to CERCLA Section 113(g)(2), 42 U.S.C. § 9613(g)(2), and 22 U.S.C. §§
2201-2202.

(Filing No. 42 at 13.) It also sought
a declaratory judgment on liability for response costs that is binding in any
subsequent actions to recover further response costs and declares Major Holdings
liable under CERCLA Section 107(a), 42 U.S.C. § 9607(a), for all or its proper
share of response costs that Von Duprin has incurred and will incur with respect to
the Contamination migrating from the Moran Property, Ertel Property, Zimmer
Packaging Facility, and Zimmer Paper Parcel, pursuant to CERCLA Section
113(g)(2), 42 U.S.C. § 9613(g)(2), and 28 U.S.C. §§ 2201-2202.
Id. at 16-17.

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Under CERCLA, a plaintiff can obtain a declaratory judgment where it has incurred “some
minimal level of expense associated with the alleged contamination, such as assessment or
monitoring costs.” City of Gary, Indiana v. Shafer, 683 F. Supp. 2d 836, 854 (N.D. Ind. 2010)
(quoting VME Americas, Inc. v. Hein-Werner Corp., 946 F. Supp. 683, 694 (E.D. Wis. 1996)). A
declaratory judgment is an appropriate remedy under CERCLA where it is not yet possible to
determine the actual cost of cleanup. Id. (quoting Bowen Eng’g v. Estate of Reeve, 799 F. Supp.
467, 476 (D.N.J. 1992)). “Once liability is established under section 107(a) of CERCLA, section
113(g) of CERCLA requires entry of a declaratory judgment as to liability for future response
costs.” Evansville Greenway and Remediation Trust v. S. Indiana Gas and Elec. Co., Inc., 661 F.
Supp. 2d 989, 1010 (S.D. Ind. 2009). Consequently, “if a plaintiff successfully establishes liability
for the response costs sought in the initial cost-recovery action, it is entitled to a declaratory
judgment on present liability that will be binding on future cost-recovery actions.” City of Colton
v. Am. Promotional Events, Inc.-West, 614 F.3d 998, 1007 (9th Cir. 2010). The fact that future
costs are somewhat speculative is not a bar to declaratory judgment under CERCLA. Kelly v. E.I.
DuPont de Nemours & Co., 17 F.3d 836, 844 (6th Cir. 1994). Accordingly, Von Duprin’s request
for Declaratory Judgment must be granted.
No evidence was presented at trial as to what future cleanup of the upgradient and
downgradient properties might cost. Therefore, in addition to the sums awarded under section
107(a), Von Duprin is entitled to an award of future costs in the same allocation percentages as
those costs are incurred—30% from the Major Defendants and 20% from Moran. But there are
strings attached to this award. First, Von Duprin is only entitled to recover future costs that are
“not inconsistent with the NCP.” U.S. v. Saporito, 2011 WL 2473332 at *13 (N.D. Ill. June 22,
2011). If any future cost recovery action is brought, the burden will be on Von Duprin to identify

35

cleanup activities and their attendant costs, and to demonstrate those costs are not inconsistent with
the NCP. Id. Second, this declaratory judgment applies only to downgradient and upgradient costs.
Because Von Duprin does not seek to recover the $777,000.00 that was expended solely to
investigate the contamination at the Von Duprin Property, neither the Court’s ruling on its §
9607(a) claim nor its § 9613(g)(2) claim speak to those costs. Thus, Von Duprin is only entitled to
recover in the percentages specified above for future cleanup costs upgradient or downgradient to
its own property that are not inconsistent with the NCP.
Because Von Duprin did not bring a claim for contribution under section 113(g)(3) against
Moran or the Major Defendants, it cannot recover any portion of the $1.5 million it paid as part of
its settlement agreement with Threaded Rod.
C.

Environmental Legal Action Claims
Von Duprin asserted a state law Environmental Legal Action claim against Moran and

Zimmer Paper. (Filing No. 42 at 14-15, 20-21.) The Environmental Legal Action statute allows
the recovery of reasonable costs of environmental assessment and removal and remedial actions,
as well as attorneys’ fees, from persons who caused or contributed to the releases of a hazardous
substance that poses a risk to human health or the environment. Moran admittedly “caused or
contributed” to a release of a hazardous substance (TCE) so it is liable for Von Duprin’s reasonable
costs. However, any such costs are identical to the costs Von Duprin seeks to recover under its
CERCLA claim.
D.

Cross-claims and Counterclaims
The Major Defendants and Moran filed cross-claims against each other for contribution

under 42 U.S.C. § 9613(f). (Filing No. 19 at 29-31; Filing No. 53-1 at 4-5.) They also both filed
counterclaims against Von Duprin for contribution under 42 U.S.C. § 9613(f). (Filing No. 46 at

36

35-38; Filing No. 52 at 43-44.) This Order shall resolve all of those cross-claims and
counterclaims. The parties shall pay the judgment awarded by this Order and going forward shall
each contribute to any cleanup costs stemming from pollution in the commingled plume according
to the percentages enumerated in section II.A.6 of this Order.
III.

CONCLUSION

Based upon the foregoing findings of fact and conclusions of law, the Court concludes that
Von Duprin has shown by a preponderance of the evidence that it is entitled to an award of
$510,000.00 plus interest from the Major Defendants and an award of $340,000.00 plus interest
from Moran, for past response costs. Von Duprin is also entitled to an award of future costs in the
same allocation percentage—30% from the Major Defendants, 20% from Moran—as those costs
are incurred.
SO ORDERED.
Date: 3/30/2020

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

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