United States District Court, N.D. Indiana, Fort Wayne Division
VALBRUNA SLATER STEEL CORPORATION and FORT WAYNE STEEL CORPORATION, Plaintiffs,
JOSLYN MANUFACTURING COMPANY, JOSLYN CORPORATION and JOSLYN MANUFACTURING COMPANY, LLC, Defendants.
OPINION AND ORDER
case arises under the Comprehensive Environmental Response,
Compensation and Liability Act (“CERCLA”), 42
U.S.C. § 9601 et seq. In response to a cost
recovery claim filed by Valbruna Slater Steel Corporation and
Fort Wayne Steel Corporation (collectively,
“Valbruna”), Joslyn Manufacturing Company, Joslyn
Corporation, and Joslyn Manufacturing Company, LLC
(collectively, “Joslyn”), filed a contribution
counterclaim under § 113(f). The Court heard that
counterclaim in Phase II of a bench trial on June 12, 2017,
and now enters its findings of fact and conclusions of law as
to the same.
environmental litigation has endured for more than seven
years. To summarize briefly, Valbruna owns a contaminated
steel processing site, which it has spent a considerable sum
to remediate. To recover its cleanup expenses under §
107(a), it sued Joslyn, which used to own the site for fifty
plus years. The Court adjudicated that claim at Phase I of
trial, finding Joslyn strictly liable to Valbruna for $2,
029, 871.09 in costs. The Court further disallowed $181,
380.83 in costs, determining that they were not necessary
and/or were not consistent with the National Contingency
Plan. [DE 175].
resolution of that claim does not, however, end this matter.
A defendant in a § 107(a) suit can “blunt any
inequitable distribution of costs by filing a § 113(f)
counterclaim, ” which requires “the equitable
apportionment of costs among the liable parties, including
the PRP that filed the § 107(a) action.”
United States v. Atl. Research Corp., 551 U.S. 128,
140 (2007). Joslyn took such a course here, thereby requiring
it to bear the burden of proof in demonstrating an
entitlement to contribution. NCR Corp. v. George A.
Whiting Paper Co., 768 F.3d 682, 690 (7th Cir. 2014).
Since the parties agree that the prima facie case has been
satisfied as to liability under § 107 [DE 161], it
remains only for the Court to equitably allocate costs under
§ 113(f). To that end, the Court held Phase II of trial
on contribution issues on June 12, 2017. Based upon its
consideration of the testimony at trial and the other
evidence submitted by the parties, the Court now enters the
following conclusions of law and findings of fact pursuant to
Federal Rule of Civil Procedure 52:
parties stipulated to the following facts:
1. From 1928 to 1981, Joslyn owned property located at what
is presently identified as 2302 and 2400 Taylor Street f/k/a
1701 McKinley Avenue in Fort Wayne, Indiana (collectively,
“Site”) and operated a steel manufacturing
facility on the Site (“Steel Facility”) for all
of those years.
2. On February 2, 1981, Joslyn sold the Site and Steel
Facility to Slater Steel Corporation (“Slater”).
3. In June 2003, Slater filed a Chapter 11 bankruptcy
petition in the U.S. Bankruptcy Court for the District of
Delaware (“Slater Bankruptcy”).
4. The soil and groundwater at and around the Site are
contaminated with numerous hazardous substances, including
chlorinated organic chemicals (e.g., TCE), semi-volatile
organic chemicals, heavy metals, PCBs and radioactive
elements related to historical operations at the Site.
5. Valbruna acquired the Site in April 2004 following an
auction conducted as part of the Slater Bankruptcy.
6. FWSC acquired that portion of the Site presently
identified as 2302 Taylor Street (“2302
Property”), and VSSC acquired that portion of the Site
presently identified as 2400 Taylor Street (“2400
7. In April 2004, Valbruna and the Indiana Department of
Environmental Management (“IDEM”) entered into a
Prospective Purchasers Agreement (“PPA”), which
required Valbruna to spend approximately $1 million on Site
investigation and remediation work in response to
pre-existing contamination at and from the Site. Valbruna
contributed $500, 000 of the $1 million.
8. From 2005 to 2006, Valbruna conducted Electrical
Resistance Heating (“ERH”) utilizing the PPA
funds to address volatile organic compound impacts at a
portion of the Site where degreasing operations had
9. In June 2006, the U.S. Environmental Protection Agency
(“EPA”) inspected the Site in relation to its
historical contamination issues.
10. By letter dated November 1, 2007, IDEM issued a Risk
Assessment Review outlining the Site's remaining areas of