In Von Duprin LLC v. Moran Elec. Serv., Inc., No. 116CV01942TWPDML, 2019 WL 535752 (S.D. Ind. Feb. 11, 2019), the Southern District of Indiana addressed liabilities associated with a contaminated parcel, including the liability of its three up-gradient neighbors. Each of those parcels were owned and operated by various entities and all of the properties had various historic owners and operators who released chlorinated solvents into the groundwater. These separate releases, while from distinct source areas, formed a comingled contaminant plume. The plaintiff, the owner of the down-gradient parcel, filed a CERCLA section 107(a)(4)(B) and 113(g)(2) action against the three neighbors. That complaint was answered by counterclaims and cross-claims. Each of the parties moved for summary judgment on liability.

Several defendants sought summary judgment on divisibility. One defendant argued that the harm caused by the comingled plume was divisible, and therefore, under Burlington N. & Santa Fe. Ry. Co. v. United States, 556 U.S. 599, 614 (2009) and United States v. NCR Corp., 688 F.3d 833, 838 (7th Cir. 2012), it was liable for only its share of contamination. The court applied the two-part test from NCR, namely that the court 1) must determine, as a question of law, that the harm at issue must be theoretically capable of apportionment, and 2) that if the harm is capable of apportionment, the fact finder must determine how to apportion the damages. Here the court held that, as a matter of law, the plaintiff had failed to offer facts to dispute whether the contamination came from distinct sources. As a result, the court held that the harm was theoretically capable of apportionment as a matter of law.

The remaining defendants sought summary judgment on allocation. The court rejected the argument that they should be allocated no percentage of the harm. In doing so, the court reiterated that the evidence offered by the plaintiff was sufficient to show that the plaintiff incurred response costs and, unlike the limited proportionate share advocated by one of the defendants, there were sufficient facts to assess some indeterminate amount of liability for those costs to the defendants. The allocation, thus, presented issues of fact that could not be resolved on summary judgment.

The defendants also sought summary judgment to establish that the Bona Fide Prospective Purchaser Defense (BFPP) shielded them from liability. The BFPP Defense allows landowners to avoid liability if they make “all appropriate inquiries” prior to purchasing the property and take reasonable steps thereafter to protect against exposure to previously released contaminants. “All appropriate inquiries” is generally satisfied by obtaining a Phase I Environmental Site Assessment prior to purchase. Here, the defendant did not have a Phase I, but the court held that the defense nonetheless applied. The court found that a party may satisfy the “all appropriate inquiries” requirement by conducting a Phase II Environmental Assessment and by acting to remedy the conditions identified by that assessment. Thus, the BFPP Defense shielded the defendant from liability even though there was no pre-purchase Phase I.