Norman Bernstein v. Patricia Banker
2012 U.S. App. LEXIS 25867
7th Cir.2012Background
- Enviro-Chem operated three sites north of Zionsville, Indiana, disposing wastes and left pollution; Third Site Trustees oversee a cleanup fund and sue Bankerts, Enviro-Chem entities, and insurers under CERCLA, ELA, and related theories.
- EPA cleanup began with the Enviro-Chem Site and NSL; Third Site testing showed VOC/SVOC contamination and Finley Creek downstream, raising drinking-water concerns for Indianapolis.
- EPA realigned Finley Creek in 1996 via a time-critical removal project under a UAO, approved with periodic maintenance.
- Two Administrative Orders by Consent (AOCs) were issued (1999 for Non-Premium and 2002 for Premium), creating the Third Site Trust and obligations to fund EE/CA and related costs.
- Trustees alleged Bankerts as Non-Premium Respondents failed to fund the Trust; suit filed April 1, 2008, asserting CERCLA cost recovery and ELA claims, plus insurance coverage questions (Count VII).
- District court dismissed Counts I–V as time-barred and moot Count VII; on appeal, Seventh Circuit reinstated some CERCLA and ELA claims and revived Count II; remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Count I is a timely CERCLA claim. | Trustees rely on §9613(f)(3)(B) for costs after 1999 AOC settlement. | Bankerts argue only §9613(g) timing or that costs under 1999 AOC are time-barred. | Count I timeliness depends on 1999 vs 2002 actions; 1999 costs barred, 2002 costs timely. |
| Whether Count II (declaratory judgment) is revived by reinstating Count I. | Reinstating Count I supports Count II as derivative. | Without timely Count I, Count II fails. | Count II reinstated with Count I's revival. |
| Whether Count III (ELA) is timely under Indiana law. | EI A claim should be governed by ten-year catch-all or six-year property damages, with accrual after ordered cleanup. | Argues for six-year or other limitations based on ELA's lack of own limit at filing. | ELA claim timely under ten-year catch-all; accrual tied to cleanup orders; not time-barred. |
| Whether Count VII (declaratory judgment against insurers) is moot and proper to review post-revival. | Trustees seek coverage for Third Site under policies. | Cross-appeal issues hinge on preclusion and mootness. | Count VII not moot; insurer cross-appeal considered; preclusion defenses upheld in part. |
Key Cases Cited
- Atlantic Research Corp. v. United States, 551 U.S. 128 (Supreme Court (2007)) (distinguishes cost recovery vs. contribution; procedural distinctness of CERCLA remedies)
- Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157 (Supreme Court (2004)) (limits on § 9613(f)(1) contribution actions; sets preconditions for claims)
- Burlington Northern & Santa Fe Ry. Co. v. United States, 556 U.S. 599 (Supreme Court (2009)) (CERCLA cost allocation; supports apportionment and distinct remedies)
- United States v. Atl. Research Corp., 551 U.S. 128 (Supreme Court (2007)) (interprets § 9607(a)(4)(B) costs vs.§ 9613(f); clarifies 'any other person' scope)
- Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112 (2d Cir. 2010) (contribution rights post-settlement; clarifies triggers under §9613(f)(3)(B))
- Pflanz v. Foster, 888 N.E.2d 756 (Ind. 2008) (ten-year catch-all applies to environmental cleanup-cost actions under Indiana law)
- Bourbon Mini-Mart, Inc. v. Cooper, 741 N.E.2d 361 (Ind. 2000) (nature of action governs applicable limitations period in environmental claims)