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7th Circuit reinstates suit to recoup environmental cleanup costs

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Finding the District Court erred in dismissing several claims made by the trustees of a fund to oversee cleanup of a contaminated site, the 7th Circuit Court of Appeals is allowing the lawsuit to proceed.

Norman W. Bernstein and other trustees of the Third Site Trust Fund sued the former owners of now-closed Enviro-Chem, their corporate entities and their insurers to recoup cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act, the Indiana Environmental Legal Action Statute, and more. None of the parties being sued have paid into the trust set up to finance and oversee cleanup, despite an alleged obligation to do so.

In Norman W. Bernstein, et al. v. Patricia A. Bankert, et al. and Auto Owners Mutual Insurance Co., 11-1501, 11-1523,  Chief Judge Richard Young in the Southern District of Indiana dismissed all claims at the summary judgment stage: Count I, a CERCLA cost-recovery action pursuant to 42 U.S.C. Section 9607(a); Count II, seeking a declaratory judgment under CERCLA of the defendants’ joint and several liability; Count III, a cost-recovery action under the ELA, codified at I.C. 13-30-9-2; Count IV, negligence; Count V, nuisance; and Count VII, seeking a declaratory judgment of coverage against the insurers. The complaint did not include a Count VI. In addition, Auto Owners filed a conditional cross-appeal to try to preserve a favorable outcome in the event of a reversal of the court’s final judgment.

In the 66-page opinion authored by U.S. District Judge Jon E. DeGuilio, of the Northern District of Indiana, sitting by designation, the 7th Circuit reversed the dismissal of counts I, II, III and VII.

“In Count I, the Trustees have made a timely CERCLA claim, under 42 U.S.C. § 9607(a)(4)(B), to recover costs incurred pursuant to the 2002 AOC. The Trustees’ Count II “companion claim” for a declaratory judgment of CERCLA liability is therefore also reinstated. We find that the Indiana ELA claim contained in Count III is timely, and that the declaratory judgment claim contained in Count VII is not moot,” DeGuilio wrote.

“The district court committed no abuse of discretion in its handling of the summary judgment briefing process. Finally, we affirm the district court’s denial of Auto Owners’ motion for summary judgment on preclusion grounds. The trustees’ suit is reinstated and remanded for further proceedings consistent with this opinion.”

 

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  1. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  2. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  3. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  4. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  5. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

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