Evansville Greenway v. Southern Ind. Gas and Elec.

661 F.Supp.2d 989

EVANSVILLE GREENWAY AND REMEDIATION TRUST, Plaintiff, v. SOUTHERN INDIANA GAS AND ELECTRIC COMPANY, INC., et al., Defendants.

Case No. 3:07-cv-0066-DFH-WGH.

United States District Court, S.D. Indiana, Evansville Division.

September 29, 2009.

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Jennifer C. Baker, Michael Orville Nelson, Hunsucker Goodstein & Nelson, Indianapolis, IN, Michael D. Goodstein, Stacey H. Myers, Hunsucker Goodstein & Nelson PC, Washington, DC, for Plaintiff.

Matthew Theron Kinst, Swanson Martin & Bell LLP, Chicago, IL, James P. Ryan, Reed W. Neuman, Nossaman, LLP/O'Connor & Hannan, Washington, DC, John A. Sheehan, Hunton & Williams LLP, Richmond, VA, G. Michael Schopmeyer, Michael E. Dirienzo, Kahn Dees Donovan & Kahn, Evansville, IN, Richard J. Lewandowski, Whyte Hirschboeck Dudek S.C., Madison, WI, for Defendants.

ENTRY ON PENDING MOTIONS

DAVID F. HAMILTON, Chief Judge.

Several pending motions for summary judgment present issues under the federal Comprehensive Environmental Response, Compensation and Liability Act, better known as CERCLA, 42 U.S.C. § 9601 et seq. From approximately 1956 through 1998, third-party defendant General Waste Products owned and operated two adjacent sites that have become known as the "River Yard" and the "Main Yard." The "Main Yard" site is located at 201 South Seventh Street, and the "River Yard" site is located at 2350 Broadway (Rear) Avenue, both where Pigeon Creek empties into the Ohio River in downtown Evansville, Indiana. General Waste operated a scrap metal business at the sites. Over the course of its business at the sites, General Waste arranged for the transport and/or disposal or hazardous substances at both sites. Third-party defendant Allan Trockman is the former president and shareholder of General Waste. He operated the Main Yard and River Yard sites at the time hazardous substances were disposed on the sites.

After General Waste had closed its business, the City of Evansville became interested in acquiring both sites to include them in a "greenway" of bicycle and walking trails in the city. Analysis of the sites showed high concentrations of lead and polychlorinated biphenyls (PCBs) in the soil. General Waste sought clean-up costs from its liability insurers. The insurers disputed coverage, and litigation ensued.

As part of the settlement of that lawsuit in 2004, General Waste, Trockman, and General Waste's insurers entered into the Evansville Greenway and Remediation Trust Agreement ("the Greenway Trust" or "the Trust"). The Trust Agreement stated that the purposes of the Greenway Trust were to "collect and disburse amounts for `environmental remediation'" and to "engage in the activities in furtherance of its obligation to collect and disburse amounts for environmental remediation." Dkt. No. 426, Ex. F at 1, ¶ 2.3. The funds deposited in the Greenway Trust were to be used exclusively for the purpose of implementing the investigative, remedial, and enforcement actions required by the Trust Agreement. The insurers of General Waste contributed approximately $3.5 million to the Greenway Trust. Most of that money has been spent to remediate the Main Yard. That remediation has been completed, and the Main Yard is now part of the Evansville Greenway. The Greenway Trust has little money left now, however, and does not have funds to remediate the River Yard.

This action began when the Greenway Trust brought suit against defendants Southern Indiana Gas and Electric Company ("SIGECO"), Heritage Coal Co., Mead Johnson and Co., Midwest Coal Co., Black Beauty Coal Co., Squaw Creel Coal Co., and Mulzer Crushed Stone, Inc. under section 107(a) of CERCLA, 42 U.S.C. § 9607(a), and the Indiana Environmental Legal Actions statute, Ind.Code § 13-30-9-1 et seq. Section 107(a) allows a party who has voluntarily undertaken to clean up a hazardous waste site to recover its costs from parties legally responsible for the contamination. The Greenway Trust alleges that the defendants are responsible for lead and/or PCB contamination of the General Waste sites. Dkt. No. 62, ¶ 268. The Trust brought suit on its own behalf and as assignee of General Waste, Trockman, and the City of Evansville, although it purports to bring its section 107(a) claim only as itself and as the assignee of the City. Dkt. No. 62, ¶¶ 262-74.

Several of the named defendants assigned their claims against the Greenway Trust, other defendants, and third party defendants to the third-party plaintiff PRP Group. Dkt. No. 103 ¶ 3. The PRP Group then filed a third-party complaint against third-party defendants General Waste, Trockman, the City of Evansville, General Electric Co., Indianapolis Power and Light Company, National Tire and Battery, Old Ben Coal Co., Solar Sources, Inc., Tennessee Valley Authority, Whirlpool, White County Coal, PSI Energy, Tell City Electric Department, Frontier Kemper, and Speed Queen. The third-party complaint alleges that those third-party defendants are liable or potentially liable under section 113(f) of CERCLA, 42 U.S.C. § 9613(f), for contribution to the necessary costs of response allegedly incurred by the Greenway Trust, General Waste, Trockman, and the City of Evansville.

Three summary judgment motions are now ripe. First, the PRP Group has moved for summary judgment on the issue of contributor liability against General Waste and Trockman under CERCLA section 113(f). Dkt. No. 200. The court grants the motion. Second, defendants Heritage Coal, Mead Johnson, and Black Beauty Coal have moved for summary judgment against plaintiff Greenway Trust on the claims raised in the Trust's first amended complaint. Dkt. No. 425. The court denies that motion in all respects. Third, Greenway Trust has moved for summary judgment holding that defendant Southern Indiana Gas and Electric Company ("SIGECO") is jointly and severally liable for all clean-up costs for both the Main Yard and the River Yard under CERCLA section 107(a). Dkt. No. 388. That motion is granted in part and denied in part. The court also grants the PRP Group's motion to strike the third party defendants' requests for a jury trial (Dkt. No. 226) and denies the PRP Group's motion for leave to amend its third-party complaint to add the United States Navy as a party (Dkt. No. 491).

Summary Judgment Standard

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 Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment must be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The motion should be granted so long as no rational fact finder could return a verdict in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When deciding a motion for summary judgment, the court considers those facts that are undisputed and views additional evidence, and all reasonable inferences drawn therefrom, in the light reasonably most favorable to the non-moving party. See Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 255, 106 S.Ct. 2505. However, a party must present more than mere speculation or conjecture to defeat a summary judgment motion. The issue is whether a reasonable jury might rule in favor of the non-moving party based on the evidence in the record. Id. at 251-52, 106 S.Ct. 2505. These standards apply to all pending motions for summary judgment and require the court to change the lenses through which it views the record evidence so as to give the non-moving parties the benefits of all conflicts in the evidence and favorable inferences from that evidence.

Discussion

I. CERCLA

The federal Comprehensive Environmental Response, Compensation and Liability Act was "designed to effectuate the cleanup of toxic waste sites [and] to compensate those who have attended to the remediation of environmental hazards." Meghrig v. KFC Western, Inc., 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996) (comparing purposes of CERCLA with purposes of Resource Conservation and Recovery Act). To achieve that purpose, Congress expressly provided for the recovery of cleanup costs in CERCLA. Section 107 of the statute (42 U.S.C. § 9607) provides a private right of action for the recovery of such costs in certain circumstances. To establish a case for reimbursement of clean-up costs under section 107(a), a plaintiff must establish four elements: (1) the property is a facility; (2) there has been a release or threatened release of a hazardous substance; (3) the release has caused the plaintiff to incur necessary costs of response that are consistent with the National Contingency Plan; and (4) the defendant is in one of four categories of potentially responsible parties. See Kerr-McGee Chem. Corp. v. Lefton Iron & Metal Co., 14 F.3d 321, 325 (7th Cir.1994); City of Martinsville v. Masterwear Corp., 2006 WL 2710628 at *2 (S.D.Ind. Sept. 20, 2006).

The four categories of potentially responsible parties or "PRPs" under section 107(a) are:

(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 (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous substances for...