Valbruna Slater Steel Corporat v. Joslyn Manufacturing Company ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18-2633 & 18-2738
VALBRUNA SLATER STEEL CORPORATION, et al.,
Plaintiffs-Appellees, Cross-Appellants,
v.
JOSLYN MANUFACTURING COMPANY, et al.,
Defendants-Appellants, Cross-Appellees.
____________________
Appeals from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:10-cv-00044-JD — Jon E. DeGuilio, Judge.
____________________
ARGUED MAY 16, 2019 — DECIDED AUGUST 8, 2019
____________________
Before BAUER, HAMILTON, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. This case is about an on-and-off, dec-
ades-long effort to stop an Indiana steel mill’s pollution. Val-
bruna Slater Steel purchased the mill (or the “site”) in 2004,
and it quickly got to work on needed, but costly, cleanup ef-
forts. Valbruna then sued Joslyn Manufacturing Company,
which last operated the site in 1981, to recover costs under
both the Comprehensive Environmental Response,
2 Nos. 18-2633 & 18-2738
Compensation, and Liability Act (CERCLA) and Indiana’s En-
vironmental Legal Actions statute (ELA).
Joslyn’s fault is undisputed; its operation of the site started
the pollution problems. But Joslyn defended itself in the dis-
trict court on claim-preclusion, statute-of-limitations, and
contribution grounds. The district court decided the CERCLA
claim was not precluded, but the ELA claim was. It also de-
cided the suit was timely. The district court, however, did im-
pose equitable contribution on Valbruna, requiring it to pay
for a quarter of the past and future costs incurred during the
site’s cleanup. Joslyn appeals and Valbruna cross-appeals. We
affirm across the board.
I. Background
Joslyn,1 a steel manufacturer, owned and operated the site,
located in Fort Wayne, Indiana, from 1928 to 1981. Joslyn’s op-
eration polluted nearby soil, sludge, and, as a result, ground-
water. In 1981, Joslyn sold the site to Slater Steels Corporation
through an Asset Purchase Agreement. After acquiring the
site, Slater set to work with cleanup efforts. Slater did so, the
record suggests, upon pressure from regulators and to bring
the site into compliance with the Resource Conservation and
Recovery Act of 1976. See 42 U.S.C. § 6901 et seq.
From 1981 to 1987, Slater excavated sludge and contami-
nated soil from two areas on the site: an impoundment area
and a waste pile. The excavation, however, did not remove all
contaminates. In 1988, Slater signed an agreement with the
1 We refer to the parties as Joslyn, Valbruna, and Slater. The parties’
briefs identify the particular affiliates or corporate entities that were in-
volved in the various transactions and suits, but those corporate distinc-
tions do not matter for our purposes.
Nos. 18-2633 & 18-2738 3
EPA, which permitted monitoring of the site until the Indiana
Department of Environmental Management (IDEM) could
certify the closure of the polluted areas. In 1991, Slater under-
took more work, this time capping the excavated impound-
ment area with a concrete lid to prevent runoff. Slater also im-
plemented a ground-water detection program. IDEM then is-
sued a certification of completion for the work Slater had
started, though IDEM recognized that more work was ongo-
ing and necessary at the site.
Slater repeatedly tried to get Joslyn to pay for the cleanup
work it had done, to no avail. In 1988 and again in 1994, Slater
sent Joslyn a demand letter explaining that Joslyn was respon-
sible for the cleanup under their agreement. Joslyn disagreed,
telling Slater that it had assumed responsibility for the costs.
Slater escalated its demand in 1999. With another demand let-
ter, it sought costs not just per the agreement, but under
CERCLA and the ELA statute as well. Joslyn again declined
to pay for the cleanup.
The dispute headed to court. In 2000, Slater sued Joslyn in
an Indiana state court seeking (1) indemnification under the
agreement and (2) costs under the ELA statute. Slater did not
bring a CERCLA claim in its state-court suit—nor could it.
Federal courts have exclusive jurisdiction over CERCLA
claims. 42 U.S.C. § 9613(b).
Slater’s state-law claims ultimately failed. First, in 2001,
the trial court ruled that the ELA statute—enacted in 1998—
could not be retroactively enforced. (Later, in different litiga-
tion, the Indiana Supreme Court supported retroactive appli-
cation. See Cooper Indus., LLC v. City of South Bend, 899 N.E.2d
1274, 1285 (Ind. 2009). But for Slater’s purposes, its ELA claim
was over.) Then, in 2003, Slater filed for bankruptcy and
4 Nos. 18-2633 & 18-2738
stopped cooperating in discovery. When it failed to produce
its environmental manager for a deposition, Joslyn moved to
dismiss for want of prosecution under Indiana Trial Rule
41(E). The trial court granted that motion in 2005.
In 2004, with the state suit pending, Valbruna purchased
the site at a competitive bankruptcy auction. It paid $6.4 mil-
lion. Before finalizing the deal, and apparently recognizing
the ongoing pollution hazards, Valbruna negotiated with
IDEM. Valbruna and IDEM agreed to a Prospective Purchase
Agreement (PPA). Under the PPA, both parties agreed to put
down $500,000 each, the total of which would go toward
cleanup if Valbruna won the auction.
After Valbruna won the auction, its purchase contract
granted Valbruna the right to intervene in Slater’s pending
state-court suit. Valbruna never did so. Valbruna, instead, set
out to perform more cleanup in 2005, as the PPA required.
IDEM approved Valbruna’s cleanup plan, but the plan budg-
eted to (and ultimately would) deplete more than the $500,000
Valbruna set aside. In 2007, with work ongoing, IDEM again
reviewed the site, and ordered even more cleanup.
Upset with how much the cleanup cost, Valbruna filed this
suit in 2010 against Joslyn in federal court. Valbruna claimed
cost recovery pursuant to § 107 of CERCLA, 42 U.S.C.
§ 9607(a), and the ELA statute, Ind. Code §§ 13-30-9-2–3. Val-
bruna also sought a declaratory judgment regarding Joslyn’s
liability. Joslyn counterclaimed for contribution under
§ 113(f). 42 U.S.C. § 9613(f). Valbruna did not cause the pollu-
tion, Joslyn admitted, but under § 107(a)(1), a facility’s owner,
like Valbruna, may be liable for cleanup costs.
Nos. 18-2633 & 18-2738 5
Joslyn moved to dismiss on claim-preclusion grounds, cit-
ing the earlier state-court suit between it and Slater. The dis-
trict court converted that motion to one for summary judg-
ment. It granted the motion with respect to the ELA claim,
concluding that Slater and Valbruna were in privity, but it de-
nied the motion on the CERCLA claim. The court explained,
in a revised ruling, that because CERCLA is an exclusively
federal claim there could be no claim preclusion based on the
failure to raise it in an earlier state-court suit.
Joslyn then tried to defeat the CERCLA claim on a differ-
ent ground. It filed a motion for summary judgment arguing
that the claim was time-barred because it was brought more
than six years after the start of “remedial action”—Slater’s
earlier cleanup, according to Joslyn. 42 U.S.C. § 9613(g)(2).
The district court disagreed. In a thorough opinion, the dis-
trict court decided, as a matter of law, that Slater’s cleanup
was “removal” and therefore the relevant limitations period
had not tolled. Compare id. § 9613(g)(2)(A) (time limits for re-
moval actions) with (B) (time limits for remedial actions).
Joslyn attempted to amend its answer, adding the claim-pre-
clusion and statute-of-limitations defenses for which it had al-
ready filed summary-judgment motions. The magistrate
judge granted Joslyn leave to amend but struck the defenses,
concluding that the district court’s earlier decisions settled
that those defenses did not apply as a matter of law. Joslyn
asked for reconsideration, which the magistrate judge denied.
Joslyn was undeterred. It filed another motion for sum-
mary judgment, without first seeking leave as the court had
told it to. Again, Joslyn argued its already-stricken claim-pre-
clusion and statute-of-limitations defenses. Valbruna then
sought a declaration that Joslyn was liable under § 107(a) of
6 Nos. 18-2633 & 18-2738
CERCLA. The district court denied Joslyn’s successive motion
and granted Valbruna’s motion, finding that there was no
question that Joslyn, as the initial polluter, was liable.
That left only two issues: damages and contribution under
CERCLA. The case went to a bench trial in two phases on
those issues. As for damages, after trial the district court con-
cluded that Valbruna had incurred $2,029,871.09 in costs
while remediating the site. It then reduced that amount by
$500,000, believing that it would be unfair for Valbruna to re-
cover that sum twice, as it had been contemplated in Val-
bruna’s purchase price and the PPA. As for contribution, the
district court apportioned liability for past and future costs:
75% for Joslyn, 25% for Valbruna. The district court justified
Valbruna’s share by citing its assumed risk in purchasing an
old metal-production site with well-known pollution prob-
lems.
Joslyn appealed and Valbruna cross-appealed.
II. Discussion
The parties on appeal continue their dispute over who
should pay what for the site’s costly clean up. The answer
turns on issues of preclusion, timeliness, and the district
court’s discretion in equitably allocating costs. We will ad-
dress those issues and the parties’ appeals in turn.
A. Joslyn’s Appeal
Joslyn argues two reasons why Valbruna’s cost-recovery
claim under CERCLA should fail: it is precluded by the earlier
state-court suit and it is untimely. Before addressing those ar-
guments, we must pass a procedural hurdle.
Nos. 18-2633 & 18-2738 7
This is how the litigation over Joslyn’s defenses should
have played out: Joslyn timely pleaded its preclusion and lim-
itations defenses; the parties cross-moved at summary judg-
ment on those defenses; and the district court, concluding, as
it did, that the defenses did not apply as a matter of law,
granted Valbruna summary judgment on the defenses. No
doubt we could review that (hypothetical) grant of summary
judgment after the final judgment. Bastian v. Petren Res. Corp.,
892 F.2d 680, 683 (7th Cir. 1990). But things played out differ-
ently. Joslyn did not plead the defenses before moving for
summary judgment on them, and so Valbruna never cross-
moved on them (it just opposed Joslyn’s motion). As a result,
Joslyn now wants us to review the district court’s denial of its
motions for summary judgment on the preclusion and limita-
tions defenses.
That request gives us pause, though, because we do not
typically review summary-judgment denials. After a case
goes to trial, as happened here, an earlier summary-judgment
denial is “old news.” Kreg Therapeutics, Inc. v. VitalGo, Inc., 919
F.3d 405, 416 (7th Cir. 2019); see also Ortiz v. Jordan, 562 U.S.
180, 184 (2011). We have noted a possible exception to that
rule of non-reviewability, for “purely legal issues.” Mimms v.
CVS Pharmacy, Inc., 889 F.3d 865, 869 (7th Cir. 2018); see also
Carmody v. Bd. of Trustees of Univ. of Illinois, 893 F.3d 397, 404
(7th Cir. 2018) (discussing the “controversial exception”);
Lawson v. Sun Microsystems, Inc., 791 F.3d 754, 761 n.2 (7th Cir.
2015) (noting “a split of authority on this point”). This case
arguably fits into this possible exception. The facts are undis-
puted and the district court’s preclusion and limitations deci-
sions were as a matter of law.
8 Nos. 18-2633 & 18-2738
We, however, need not decide as much to hear Joslyn’s ap-
peal. Despite Joslyn’s focus on the summary-judgment deni-
als, Joslyn’s defenses were finally put to bed by a different or-
der—the order striking the defenses from the amended an-
swer.2 The decision to strike, which incorporated the earlier
summary-judgment reasoning, was a dispositive order on the
defenses, which we can review. See Heraeus Kulzer, GmbH v.
Biomet, Inc., 881 F.3d 550, 563 (7th Cir. 2018). Because the de-
fenses failed in the district court as a matter of law, our review
is de novo. Lopez-Aguilar v. Marion Cty. Sheriff’s Dep’t, 924 F.3d
375, 384 (7th Cir. 2019).
1. CERCLA Claim Preclusion
Claim preclusion, or res judicata, generally bars the reliti-
gation of claims that were brought, or could have been
brought, in an earlier suit that has reached final judgment.
The district court here concluded that the state-court suit did
not preclude the CERCLA claim. To decide the preclusive ef-
fect of a state-court judgment, and in the interest of affording
full faith and credit to state-court judgments, 28 U.S.C. § 1738,
we look to the law of the state where the judgment occurred.
Mains v. Citibank, N.A., 852 F.3d 669, 675 (7th Cir. 2017). That
state here is Indiana.
Under Indiana law, the following four elements must be
met for claim preclusion to apply:
(1) the former judgment must have been rendered by a court
of competent jurisdiction; (2) the former judgment must
have been rendered on the merits; (3) the matter now in
2 Thisis true despite Joslyn’s later attempt to resuscitate the defenses
with another summary-judgment motion, which, again, it filed without
leave from the court.
Nos. 18-2633 & 18-2738 9
issue was, or could have been, determined in the prior ac-
tion; and (4) the controversy adjudicated in the former ac-
tion must have been between the parties to the present suit
or their privies.
Freels v. Koches, 94 N.E.3d 339, 342 (Ind. Ct. App. 2018). We
begin and end with the first element, regarding jurisdictional
competency.
Cost-recovery actions under CERCLA, as we noted earlier,
can only be brought in federal court. 42 U.S.C. § 9613(b). The
question, then, is whether an Indiana court has jurisdictional
competency over an exclusively federal claim. Indiana courts
have not answered the question—nor will they. State courts
do not hear exclusively federal claims, by definition, and so
the question will not come before them.3 Matsushita Elec. In-
dus. Co. v. Epstein, 516 U.S. 367, 375 (1996); Wright & Miller,
18B Fed. Prac. & Proc. § 4470.1 (2d ed. 2019). So our task is to
answer the question “in the same way (as nearly as we can
tell) as the state’s highest court would.” Newman v. Metro. Life
Ins. Co., 885 F.3d 992, 1000 (7th Cir. 2018).
The starting point is Marrese v. Am. Acad. of Orthopaedic
Surgeons, 470 U.S. 373 (1985). In Marrese, the Supreme Court
held that in deciding whether res judicata bars an exclusively
federal claim (there, a Sherman Act claim), federal courts
must look to state law. En route to that holding, the Court
noted that, under most state law, “claim preclusion generally
does not apply where ‘[t]he plaintiff was unable to rely on a
certain theory of the case or to seek a certain remedy because
3 With one exception: a state supreme court could, of course, answer
the question if we were to certify it. See Ind. R. of App. P. 64. Joslyn, how-
ever, expressly disavowed any request to certify the question to the Su-
preme Court of Indiana at oral argument.
10 Nos. 18-2633 & 18-2738
of the limitations on the subject matter jurisdiction of the
courts.’” Id. at 382 (quoting Restatement (Second) of Judg-
ments § 26(1)(c) (1982)). The Court elaborated, if “state pre-
clusion law includes this requirement of prior jurisdictional
competency, which is generally true, a state judgment will not
have claim preclusive effect on a cause of action within the
exclusive jurisdiction of the federal courts.” Id. (emphasis in
original). Based on this general rule, the Court saw no need to
carve out an exception to the Full Faith and Credit statute, and
the deference to state judgments that it requires, for exclu-
sively federal claims that are brought after a state judgment.
Such claims will usually not be precluded under state law, the
Court reasoned. Id. at 382–83 & n.3.
The Restatement (Second) of Judgments § 26, which
Marrese quotes, is equally explicit about the general rule. It
states: “When the plaintiff brings an action in the state court,
and judgment is rendered for the defendant, the plaintiff is
not barred from an action in the federal court in which he may
press his claim against the same defendant under the federal
statute.” The Restatement then offers Illustration 2, which
Marrese also cites, 470 U.S. at 383, and it offers clarification by
hypothetical:
A Co. brings an action against B Co. in a state court under a
state antitrust law and loses on the merits. It then com-
mences an action in a federal court upon the same facts,
charging violations of the federal antitrust laws, of which
the federal courts have exclusive jurisdiction. The second
action is not barred.
Restatement (Second) of Judgments § 26(c)(1). Federal courts
make the same point. Following Marrese and the Restatement,
they recognize that if state law requires jurisdictional
Nos. 18-2633 & 18-2738 11
competency for res judicata purposes, state judgments do not
preclude exclusively federal claims. See United States v. B.H.,
456 F.3d 813, 817 (8th Cir. 2006) (Iowa law); In re Lease Oil An-
titrust Litig. (No. II), 200 F.3d 317, 320–21 (5th Cir. 2000) (Ala-
bama law); Valley Disposal, Inc. v. Cent. Vermont Solid Waste
Mgmt. Dist., 31 F.3d 89, 98 (2d Cir. 1994) (Vermont law); Pen-
sion Tr. Fund For Operating Eng’rs v. Triple A Mach. Shop, Inc.,
942 F.2d 1457, 1461 (9th Cir. 1991) (California law); Gargallo v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 918 F.2d 658, 662–64
(6th Cir. 1990) (Ohio law); McCarter v. Mitcham, 883 F.2d 196,
199–200 (3d Cir. 1989) (Pennsylvania law); Cullen v. Margiotta,
811 F.2d 698, 732 (2d Cir. 1987) (New York law), overruled on
other grounds by Agency Holding Corp. v. Malley-Duff & Assocs.,
Inc., 483 U.S. 143 (1987).
Would the Supreme Court of Indiana apply the general
rule that Marrese describes, the Restatement adopts, and fed-
eral courts have ascribed to other states’ law? We hold that it
would. Indiana’s res judicata elements include the jurisdic-
tional-competency requirement, which was the basis for
Marrese’s general rule. More, the Supreme Court of Indiana
has already cited Marrese’s general rule approvingly.
Green v. Hendrickson Publishers, Inc., 770 N.E.2d 784, 791
(Ind. 2002), addressed an exclusively federal counterclaim un-
der copyright law. 42 U.S.C. § 1338(a). It explained:
[W]e agree [with the lower court] that claim preclusion
could prevent the Greens from presenting their [counter]
claim in a separate suit. We do not agree that that would be the
case if the state court had no jurisdiction over the Greens’ coun-
terclaim. Although it is true that the subject matter of the
Greens’ counterclaim and the as yet unfiled federal copy-
right claim are logically related and presumably arise out of
the same “transaction or occurrence,” if the state court had
12 Nos. 18-2633 & 18-2738
no jurisdiction over the subject matter of the counterclaim,
it cannot be “compulsory.”
770 N.E.2d at 791 n.2 (citing Marrese, 470 U.S. at 382, quoting
in turn Restatement (Second) of Judgments § 26(1)(c)) (em-
phasis added). This is the rule Marrese describes: if there is no
state-court jurisdiction to hear an exclusively federal claim,
there is no claim preclusion.
Joslyn submits that Green’s adoption of the rule was dicta.
But we cannot ignore it. Dicta from a state supreme court is
good evidence of how the court would decide an issue it has
not yet directly encountered. Allen v. Transamerica Ins. Co., 128
F.3d 462, 467 (7th Cir. 1997). That is especially true in this case.
As we noted earlier, state courts have no “occasion” to answer
the question we face. Marrese, 470 U.S. at 381–82. Absent cer-
tification (which Joslyn disavows), dicta offers the clearest in-
sight into how the court would rule here.
Plus, Green’s approval of Marrese and Restatement § 26
was considered. Green concerned, in part, whether a copy-
right counterclaim was “compulsory” such that it had to be
brought in the state-court action. This question is intertwined
with preclusion, as Green recognized, because if a claim is
compulsory it is later precluded if not raised. See also Publicis
Commc’n v. True N. Commc’ns Inc., 132 F.3d 363, 365 (7th Cir.
1997). Green dropped the footnote approving Marrese and Re-
statement § 26 to correct the Indiana appellate court’s misun-
derstanding of these related issues. See 770 N.E.2d at 791 n.2.
If, as Green held, a federal counterclaim was not exclusively
federal, it could be compulsory in state court and later pre-
cluded if not raised. See id. at 791–92 & n.2. It follows, as Green
noted, that if the counterclaim was exclusively federal—like
Nos. 18-2633 & 18-2738 13
the CERCLA claim here—it is not compulsory and not subject
to claim preclusion. See id. at 791 n.2.
Joslyn also attempts to distinguish Green on procedural
grounds, noting that it involved a defendant’s counterclaim
and not, as here, a plaintiff’s claim. That distinction does not
undermine Green’s persuasiveness. Green remains Indiana’s
only treatment of whether earlier state-court judgments bar
exclusively federal claims. It indicates that they cannot be
claim precluded.
Green notwithstanding, Joslyn submits that the Supreme
Court of Indiana would in fact find res judicata here because
Indiana, like most states, disapproves of claim splitting. See,
e.g., Erie Ins. Co. v. George, 681 N.E.2d 183, 189–90 (Ind. 1997).
Marrese considered a similar problem and found it unavailing.
Despite the general prohibition on claim splitting, the Court
explained, “the jurisdictional competency requirement”
means that “subsequent attempts to secure relief in federal
court” are permitted “if the state court lacked jurisdiction
over the federal statutory claim.” 470 U.S. at 383 n.3. Restate-
ment § 26 also allows for the tension between possible claim
splitting and the rule against claim preclusion in these cir-
cumstances. It makes clear that the rule is an “exception” to
the general prohibition on claim splitting.
Still, Joslyn insists, a decision that claims are not precluded
based only on their federal exclusivity will lead to gamesman-
ship. Joslyn theorizes that plaintiffs’ lawyers will bring state-
law claims without their exclusively federal counterparts (like
securities or antitrust claims) in state court, see how that liti-
gation goes, and if it goes poorly, switch gears and bring fed-
eral claims in federal court. We are not so worried. For one, an
overt practice of claim splitting amounts to bad-faith
14 Nos. 18-2633 & 18-2738
litigation. For another, other statutory and doctrinal bars
should serve to prevent such gamesmanship. Federal statutes
of limitations, for example, will not toll simply because a
state-law claim was filed. See In re Copper Antitrust Litig., 436
F.3d 782, 793–94 (7th Cir. 2006). And issue preclusion, or col-
lateral estoppel, prohibits plaintiffs from relitigating facts,
even if not claims, that the state court already resolved.
Joslyn makes one more argument worth addressing.
Whatever Marrese thought “jurisdictional competency,”
means, Joslyn says, Indiana interprets it differently. It cites In-
diana cases that describe jurisdictional competence as mean-
ing that the earlier suit “was based on proper jurisdiction.”
Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006). That generic
description is surely one aspect of jurisdictional competency.
But it does not foreclose a broader meaning in a different con-
text—as Marrese, Restatement § 26, and many other courts
have understood it in the context we face. The only Indiana
case to touch on that context was Green. We think it clear that
Indiana’s highest court would continue with the course Green
mapped and find no jurisdictional competency here.
2. CERCLA’s Statute of Limitations
Joslyn’s second defense is a timeliness one. The applicable
limitations period for CERCLA cost-recovery claims depends
on whether, and when, “removal” or “remediation” occurred.
See 42 U.S.C § 9613(g)(2)(A)–(B). For removal actions, the time
to file suit expires three years after the removal is complete.
For remedial action, however, the time expires six years after
the remedial action’s initiation. The parties agree Valbruna
started remedial action in 2005. The question is whether there
was earlier remedial action—namely, in the 1980s or in 1991,
when Slater performed cleanup. Joslyn thinks that cleanup
Nos. 18-2633 & 18-2738 15
was remedial, and thus, this action is untimely. Id.
§ 9613(g)(2)(B). Valbruna contends Slater’s actions were only
removals, and so this suit, filed within six years of the reme-
diation that began in 2005, is timely. Id.
We agree with Valbruna. The parties do not dispute the
underlying facts, and therefore we can decide how to charac-
terize the earlier cleanups—as removal or remediation—as a
matter of law. See New York v. Next Millenium Realty, LLC, 732
F.3d 117, 126 (2d Cir. 2013); United States v. Navistar Int’l
Transp. Corp., 152 F.3d 702, 707 (7th Cir. 1998).
Removal and remediation are terms of art under CERCLA.
CERCLA defines a removal as “the cleanup or removal of re-
leased hazardous substances from the environments,” and it
defines remedial actions as “those actions consistent with per-
manent remedy taken instead of or in addition to removal ac-
tions.” 42 U.S.C. § 9601(23), (24). In clearer terms, removal
generally “refers to a short-term action taken to halt risks
posed by hazardous wastes immediately.” Frey v. E.P.A., 403
F.3d 828, 835 (7th Cir. 2005). Remedial actions “are longer
term, more permanent responses.” Bernstein v. Bankert, 733
F.3d 190, 201 n.5 (7th Cir. 2013). Filling in those definitions
further, a removal action is usually one that: is designed as an
interim or partial fix; performed in response to an immediate
threat; is short in length; does not address the entire problem;
and/or does not address the root of the problem. On the other
hand, remedial action is generally: designed as a permanent
or complete fix; performed not in response to an imminent
environmental threat; lengthy; designed to address the root of
the problem; and/or designed to address the entire problem.
See 42 U.S.C. §§ 9601(23), (24); Next Millenium Realty, LLC, 732
F.3d at 127; United States v. W.R. Grace & Co., 429 F.3d 1224,
16 Nos. 18-2633 & 18-2738
1244–45 (9th Cir. 2005); Colorado v. Sunoco, Inc., 337 F.3d 1233,
1240 (10th Cir. 2003). Given the potential for overlap between
the two characterizations, courts decide the removal-or-reme-
diation question on a case-by-case basis. No one characteristic
of the cleanup is usually dispositive. See Pub. Serv. Co. of Colo-
rado v. Gates Rubber Co., 175 F.3d 1177, 1182 (10th Cir. 1999)
(“Elements of either response action may overlap and seman-
tics often obscure the actual nature of the cleanup per-
formed.”).
Here, neither the 1980s cleanup nor the 1991 work consti-
tuted remedial action. In the 1980s, Slater excavated sludge
and soil from just two areas of the site (a former surface im-
poundment and waste pile). That was far from a comprehen-
sive or permanent action. It was a temporary solution, cover-
ing only a part of the plant’s pollution causes. Slater also per-
formed the work in response to the threat the waste posed to
nearby water sources, which was of concern to regulators. As
for the 1991 work, Slater filled the excavated area at the sur-
face impoundment area with clean soil. It then constructed a
concrete cap for that area, and Slater implemented a ground-
water detection monitoring program. Again, this was a lim-
ited fix: it focused only the impoundment lot. And the cap-
ping, too, was performed in response to an impending envi-
ronmental threat, as regulators highlighted for Slater.
Joslyn makes a few points in response. It argues, first, that
the length of the 1980s cleanup—nearly eight years—means it
was a remedial, not removal, action. The length of a cleanup
is not dispositive, however, and here the circumstances and
limitations of the excavation outweigh the length of time it
took to complete the task. See Vill. of Milford v. K-H Holding
Corp., 390 F.3d 926, 934 (6th Cir. 2004). Joslyn also contends
Nos. 18-2633 & 18-2738 17
that neither of the cleanups was in response to an imminent
and serious environmental hazard. Even so, the evident limi-
tations of the earlier cleanups, both in terms of space and the
amount of pollution, do not persuade us that they were reme-
dial under CERCLA.
Joslyn argues further that the work Slater performed was
“consistent” with remediation. Indeed, Joslyn argues, Slater
excavated the sludge and installed the cap as a part of the
“Voluntary Remediation Plan” it had with IDEM. But we, like
the district court, see little merit in this argument. As the dis-
trict court put it, “every removal action is consistent with
every remedial reaction in that all are attempts to alleviate en-
vironmental concerns.” The key considerations here are the
circumstances and purpose of Slater’s work, and those con-
siderations show that the work was not remedial.
Joslyn, finally, sets aside the 1980s work and focuses on
the 1991 capping. What, Joslyn asks, could be more perma-
nent than a concrete cap? And, as Joslyn points out, perma-
nent “confinement” of pollutants is one of CERCLA’s exam-
ples for what may constitute remedial action. 42
U.S.C. § 9601(24); see also Navistar Int’l Transp., 152 F.3d at 711
(assuming, based on parties’ concessions, that a clay cap was
a part of a remediation effort). Here, however, Joslyn’s argu-
ment prioritizes form (the cap’s makeup) over function (the
cap’s purpose and effect). The concrete cap covered just one
area, and not even Joslyn seriously contends that it was meant
to substantially resolve the bulk of the site’s ongoing pollu-
tion problems. So while the fix may have been permanent, it
18 Nos. 18-2633 & 18-2738
was so far from comprehensive that we cannot say it was a
remedial action.4
B. Valbruna’s Cross-Appeal
We turn now to Valbruna’s cross-appeal. Valbruna chal-
lenges two of the district court’s decisions: first, the decision
that Valbruna’s ELA claim was precluded by the earlier state-
court suit, and second, the decision to reduce the costs by
$500,000 and then hold Valbruna liable for 25%.
1. ELA Claim Preclusion
As noted earlier, Indiana law requires privity between
claimants for res judicata to apply. E.g., Freels, 94 N.E.3d at
342. The district court concluded that Valbruna was a privy of
Slater, which had filed the state-court suit over cleanup costs
and from which Valbruna purchased the site. Valbruna takes
issue only with this privity decision on appeal. The district
court granted Joslyn summary judgment on the ELA claim,
thus our review is de novo. Mollet v. City of Greenfield, 926 F.3d
894, 896 (7th Cir. 2019).
Under Indiana law, a privy includes “one who after rendi-
tion of [a] judgment has acquired an interest in the subject
4 Because we affirm on this ground, we need not delve into the district
court’s alternative reason for finding the CERCLA claim timely: that even
if the earlier cleanups were remedial, they were separate “operable units”
from Valbruna’s current cleanup. We note that we appear to have recog-
nized that ground before. See Bernstein v. Bankert, 702 F.3d 964, 984 (7th
Cir. 2012), amended and superseded on reh’g, 733 F.3d 190 (7th Cir. 2013). But
other circuit courts have rejected the idea that there can be multiple re-
moval or remediation actions at a given site. See Sunoco, Inc., 337 F.3d at
1241; Kelley v. E.I. DuPont de Nemours & Co., 17 F.3d 836, 843 (6th Cir. 1994).
We leave for another day whether our decision in Bernstein represents a
circuit split on the question.
Nos. 18-2633 & 18-2738 19
matter affected by the judgment.” Becker v. State, 992 N.E.2d
697, 700–01 (Ind. 2013); Webb v. Yeager, 52 N.E.3d 30, 40 (Ind.
Ct. App. 2016). The post-judgment acquisition may occur
“through or under one of the parties, as by inheritance, suc-
cession, or purchase.” Hockett v. Breunig, 526 N.E.2d 995, 1000
(Ind. Ct. App. 1988). And an “entity does not have to control
a prior action … for privity to exist.” Becker, 992 N.E.2d at 700–
01.
Whether Valbruna was in privity with Slater turns on the
“subject matter affected” by the earlier judgment. That subject
matter was the site and the costs Slater sought to recover.
Slater, the site’s owner, brought the state-court suit to collect
under the ELA statute the costs incurred for cleanup at the
site. After Valbruna’s purchase, Valbruna had the right to in-
tervene in the suit and similarly pursue those costs. With the
subject matter clear, so too is Valbruna’s privity with Slater.
By purchasing the site it “acquired an interest” in both the site
and the potential cost recovery. Id. at 701.
Valbruna’s counterarguments miss the mark. It argues, for
example, that there was no privity because at the time of its
purchase it had not yet incurred any cleanup related costs.
Privity, however, exists when one “acquire[s] an interest in
the subject matter affected by the judgment.” Webb, 52 N.E.3d
at 40. Valbruna acquired an interest in the thing over which
the state-court suit was fought. That is enough for privity un-
der Indiana law.
Valbruna also advances a different conception of the rele-
vant subject matter. It submits that the subject matter was not
the property, or even the costs sought, but instead the Asset
Purchase Agreement between Joslyn and Slater. This concep-
tion is too narrow. The agreement was a part of the state-court
20 Nos. 18-2633 & 18-2738
suit, to be sure, but the claims there, like the ones here, were
brought by the site’s current owner to collect costs owed for
Joslyn’s operation of the site, including through the ELA stat-
ute. Valbruna gives us no reason to ignore those salient fea-
tures of the state-court action and instead focus on just the
agreement.
2. Allocation of Costs
That leaves the district court’s equitable allocation of costs.
CERCLA gives district courts the discretion not only to decide
how to ultimately divvy cleanup costs, “but it also grants the
court the authority to decide which equitable factors will in-
form its decision in a given case.” NCR Corp. v. George A. Whit-
ing Paper Co., 768 F.3d 682, 695 (7th Cir. 2014).
Courts usually look to the “Gore factors”—named after
then-Congressman Al Gore—to decide allocation. The Gore
factors include, among other things, the parties’ respective
fault for the pollution, the degree of toxicity of the pollution,
and the care exercised by the respective parties. Envtl. Transp.
Sys., Inc. v. ENSCO, Inc., 969 F.2d 503, 508 (7th Cir. 1992). But
these factors are neither binding nor exhaustive, and courts
may “consider any factors appropriate to balance the equities
in the totality of the circumstances.” Id. at 509. We will not
reverse unless the district court’s decision about which factors
apply was irrational. NCR Corp., 768 F.3d at 700.
Valbruna first takes issue with the district court’s decision
to reduce the amount it could recover, more than $2,000,000,
by $500,000. It did so believing that Valbruna had accounted
for at least $500,000 in cleanup costs before purchasing the
site, as evidenced by the PPA with IDEM. Thus, reasoned the
district court, not reducing the recovery amount by that sum
Nos. 18-2633 & 18-2738 21
would sanction “double recovery” for Valbruna, which
would be inequitable. That decision was rational.
Valbruna concedes that a district court can consider the
potential windfall for a plaintiff that stands to collect more
than it has actually lost. But the problem, Valbruna says, is
that there was “no evidence” of a potential windfall. There
may have been no direct evidence of the windfall, like a cost-
based comparison, but that is not a requirement under
CERCLA. The district court could, as it did, reasonably infer
the potential windfall from the existing record. It is not a hard
inference to draw: if a rational buyer pursues a piece of prop-
erty knowing that it will have to spend X for cleanup, it will
discount the potential value of the property by X and accord-
ingly reduce its purchase price by X. “No sensible person
would pay as much for a property with a known liability as
for one without, whether the price expressly discounted for
the cleanup or not.” W. Properties Serv. Corp. v. Shell Oil Co.,
358 F.3d 678, 691 (9th Cir. 2004), abrogation on other grounds
recognized in Kotrous v. Goss-Jewett Co. of N. Cal., 523 F.3d 924,
931 (9th Cir. 2008). So from the PPA, which Valbruna, a so-
phisticated, experienced, well-lawyered manufacturer, en-
tered into, the district court could rationally infer that Val-
bruna considered the $500,000 PPA payment as “functionally
part of the price.”
Valbruna also cites Trinity Indus., Inc. v. Greenlease Holding
Co., 903 F.3d 333, 362 (3d Cir. 2018), but that case was differ-
ent. In Trinity Indus., the Third Circuit vacated the district
court’s imposition of a 10% equitable deduction from the re-
coverable costs because, as a result of the cleanup, the prop-
erty’s value increased. The Third Circuit recognized the valid
equitable concern behind the deduction (to prevent windfall
22 Nos. 18-2633 & 18-2738
recoveries), yet it held that without evidence of how much the
property’s value had increased the deduction lacked eviden-
tiary support. Here, however, the district court did not peg
the deduction ad hoc without evidence. Valbruna’s prepur-
chase decision to put the $500,000 in escrow suggests strongly
that Valbruna considered it (a) to be a necessary cleanup-re-
lated liability and (b) factored it into the purchase price ac-
cordingly. More evidence would have been preferable, but
the district court’s decision was rational.
The second challenge Valbruna makes is to the district
court’s decision to hold Valbruna accountable for 25% of past
and future costs. Valbruna tells us that this number is unprec-
edented, and that no court has ever held a no-fault owner to
more than 10% of the costs.
We agree that the 25% imposition is striking, but we disa-
gree that the district court exceeded its discretion. The district
court’s decision was based on the evidence and reasoned. The
court cited the fact that Valbruna clearly understood the site’s
serious pollution problems before deciding to purchase it—so
caveat emptor. Valbruna offers no reason why that consider-
ation was inappropriate. There was also evidence that Val-
bruna paid far less than the asking price, $6.4 million com-
pared to $20 million, and far less than the amount for which
it ultimately insured the site, around $80 million. So, again,
the district court was rationally concerned about a windfall
for Valbruna. The district court’s 25% imposition on a no-fault
owner reached the limits of its discretion, but we see no abuse
of that discretion based on the facts of this case.
AFFIRMED