ELR Citation: ELR 20247
No(s). IP 88-1345-C (S.D. Ind. Jun 29, 1992)

The court upholds its decision granting partial summary judgment for the purchaser of four parcels of land in Indiana that are contaminated with benzene, based on the seller's breach of environmental warranties in the purchase agreement, but modifies its summary judgment order to reflect that the order as applied to two parcels was not based on soil contamination. The court first holds in a footnote that the seller does not have the right to assert affirmative defenses on the issue of liability resolved in the court's summary judgment decision, because the issue to which those defenses applied has been resolved against the defendant and presents no further question of material fact to be determined at trial. The plaintiff requested a judgment in plaintiff's favor on the issue of liability and not merely a component element of that issue. When a party moves for a summary judgment of the issue of liability, the nonmovant is thereby placed on notice that all arguments and evidence opposing a finding of liability must be presented for proper resolution of the issue. The defendant cannot shift the burden to the plaintiff to raise and argue against the defendant's own affirmative defenses.

The court next denies the defendant's motion to reconsider the court's finding that the presence of any benzene in the groundwater at the four parcels violates state law. The Indiana Administrative Code requires the fact finder to determine what substances are present in what concentrations in a property's groundwater, and what concentration of each of those substances is believed to be carcinogenic in violation of the Indiana Administrative Code. The only evidence in the record addressing the first necessary finding showed the presence of benzene in samples taken from each of the four properties, and the only document in the record addressing the second necessary finding was a document issued by the U.S. Environmental Protection Agency (EPA) determining that ingestion of any concentration of benzene would be carcinogenic. The defendant failed to state any specific facts necessary to controvert EPA evidence and create an issue of fact regarding what level of benzene is believed to be carcinogenic. The court holds that the defendant's discussion of numerical drinking water standards is inapposite, because the state Water Pollution Control Board did not intend its 1990 standards for maximum concentration of benzene in water sources to apply to the condition of groundwater in 1987. During the relevant period, the only standard was the Indiana Administrative Code. Further, the Water Pollution Board made clear that the figures did not apply to groundwater. Also, the defendant's argument would require the court to read the guidelines into the narrative as a matter of law and not as evidence informing the question of fact. Finally, the court modifies its summary judgment order to state that partial summary judgment on the issue of liability is entered in favor of the plaintiff based on the condition of two of the properties from which groundwater samples were available at the time of the summary judgment. There was evidence of benzene in the soil, not the groundwater at the site, and the Indiana Administrative Code requires a finding of fact that the substance at issue actually be present in the waters of Indiana.

[A subsequent opinion in this litigation is published at 23 ELR 20250.]

Counsel for Plaintiff
William C. Barnard, Frank J. DeVeau
Sommer & Barnard
4000 Bank One Tower, 111 Monument Cir.
P.O. Box 44363, Indianapolis IN 46244
(317) 630-4000

Counsel for Defendant
Robert F. Wagner, R. Robert Stommel
Lewis, Bowman, St. Clair & Wagner
NASCO Bldg., 5101 Madison Ave., Indianapolis IN 46227
(317) 783-9261