Opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

GRAYMOR PROPERTIES LLC, )

)

Plaintiff, )

)

v. ) No. 1:23-cv-00754-SEB-TAB

)

BATTERY PROPERTIES, INC., )

CMW INTERNATIONAL, LLC, )

)

Defendants. )

)

)

BATTERY PROPERTIES, INC., )

CMW INTERNATIONAL, LLC, )

)

Counter Claimants, )

)

v. )

)

GRAYMOR PROPERTIES LLC, )

GRAYMOR PROPERTIES LLC, )

)

Counter Defendants. )

ORDER ON PARTIES' CROSS-MOTIONS FOR PARTIAL SUMMARY

JUDGMENT

This complex environmental cleanup litigation arises out of ongoing and contested

efforts to decontaminate real property underlying a former industrial plant located in Indi-

anapolis, Indiana (hereinafter, the "Site"). For the better part of a century, the Site's several,

successive owners and operators conducted an array of manufacturing operations entailing

the use and disposal of hazardous chemicals that continue to contaminate the Site's soil and

groundwater. Recent investigations reveal that vapors emitting from the Site have begun

encroaching on the properties of a neighboring school and residential homes.

The Site's current owner, Plaintiff/Counter Defendant Graymor Properties LLC

("Graymor") brought this civil action against Defendant/Counter Claimant Battery Proper-

ties, Inc. ("Battery Properties") and Defendant/Counter Claimant CMW International, LLC

("CMW") to recover certain cleanup costs, pursuant to Indiana's Environmental Legal Ac-

tion ("ELA") Statute, Ind. Code § 13-30-9-2, the Comprehensive Environmental Response,

Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9607, and Indiana common

law. Battery Properties is the legal successor to environmental liabilities incurred by the

Site's original owner, P.R. Mallory & Company ("P.R. Mallory"), and CMW is a prior

owner of the Site. Battery Properties and CMW, respectively, have each responded by filing

contribution counterclaims, pursuant to § 113(f) of the CERCLA, codified at 42 U.S.C. §

9613(f)(1), and CMW has also interposed a breach-of-contract counterclaim against Gray-

mor.

Now before the Court are the following motions: Battery Properties's Motion for

Partial Summary Judgment on Graymor's state-law claims, dkt. 126; Graymor's Motion for

Partial Summary Judgment on its CERCLA and ELA claims as well as on CMW's breach-

of-contract counterclaim, dkt. 129; and CMW's Motion for Partial Summary Judgment on

Graymor's state common law claims, dkt. 130. For the reasons discussed below, Battery

Properties's motion is GRANTED in part and DENIED in part, dkt. 126; Graymor's mo-

tion is GRANTED in part and DENIED in part, dkt. 129; and CMW's motion is

GRANTED, dkt. 130.

LEGAL STANDARD

Summary judgment is proper when "the movant shows that there is no genuine dis-

pute as to any material fact and that the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(a). Because summary judgment requires "no genuine issue of material

fact," "the mere existence of some alleged factual dispute between the parties will not de-

feat an otherwise properly supported motion for summary judgment." Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247−48 (1986) (emphasis in original). Material facts are those

that "might affect the outcome of the suit," and a dispute of material fact is genuine when

"a reasonable jury could return a verdict for the nonmoving party." Id. at 248.

"The ordinary standards for summary judgment remain unchanged on cross-motions

for summary judgment: we construe all facts and inferences arising from them in favor of

the party against whom the motion under consideration is made." Blow v. Bijora, Inc., 855

F.3d 793, 797 (7th Cir. 2017) (citation omitted). Where the movant seeks "summary judg-

ment on a claim as to which it bears the burden of proof, it must lay out the elements of the

claim, cite the facts which it believes satisfies these elements, and demonstrate why the

record is so-one sided as to rule out the prospect of finding" in the nonmovant's favor. Hotel

71 Mezz Lender LLC v. Nat'l Ret. Fund, 778 F.3d 593, 601 (7th Cir. 2015). "If the movant

has failed to make this initial showing, the court is obligated to deny the motion." Id.

BACKGROUND

I. Preliminary Evidentiary Issues

A. Graymor's Summary Judgment Exhibits

Before addressing the merits, we digress to address the deficient and frustrating

manner in which Graymor filed its summary judgment exhibits. Due to "the high volume

of summary judgment motions and the benefits of clear presentation of relevant evidence

and law, [the Seventh Circuit has] repeatedly held that district judges are entitled to insist

on strict compliance with local rules designed to promote clarity of summary judgment

filings." Stevo v. Frasor, 662 F.3d 880, 886–87 (7th Cir. 2011). As relevant here, our Local

Rules provide that "[e]ach electronically filed exhibit to a main document must be: (1)

created as a separate PDF file; (2) submitted as an attachment to the main document and

given a title which describes its content; and (3) limited to excerpts that are directly ger-

mane to the main document's subject matter." S.D. Ind. L. R. 5-6(a) (emphasis added). At

the summary judgment stage, parties' evidentiary citations "must refer to a page or para-

graph number or otherwise similarly specify where the relevant information can be found

in the supporting evidence." S.D. Ind. L.R. 56-1(e). Failure to comply with these proce-

dures greatly hinders our ability to locate and review each exhibit that has been submitted

into the record and cited in the parties' briefs. This difficulty is especially critical on sum-

mary judgment, given that the court has no duty to scour the record in search of evidence

that has not been properly submitted or cited by the parties. See S.D. Ind. L.R. 56-1(h).

Here, Graymor has given short shrift to these responsibilities. For example, Gray-

mor's summary judgment materials include twenty-two unconsolidated exhibits, meaning

that each exhibit appears as a separate docket entry, see generally dkt. 134–55, rather than

as an attachment to a main document, see S.D. Ind. L.R. 5-6(a). What's more, some of

Graymor's exhibits are comprised of more than a dozen smaller exhibits, in clear contra-

vention of our Local Rule requiring that electronically filed exhibits be organized as sepa-

rate PDF files. Id. For example, "Exhibit 1" is a 1,351-page combined PDF that includes a

deposition transcript and more than forty individual exhibits. Dkt. 134; e.g., dkt. 138 ("Ex-

hibit 5" comprising of 205 pages); dkt. 141 ("Exhibit 8" comprising of 586 pages).

Graymor's citations to record evidence further exacerbate the difficulties we faced

in locating materials cited by the parties. For example, Graymor cites to "BPI Dep. Ex. 14."

Dkt. 133 at 3. "BPI Dep." appears on our docket as "Exhibit 1," though without a proper

title to indicate its contents. Dkt. 134. But see S.D. Ind. L.R. 5-6(a)(2). As noted above,

Exhibit 1 contains more than 1,350 pages, only the first sixty-five of which consist of the

relevant deposition testimony, dkt. 134 at 1–65; the remaining pages include more than

three dozen, non-searchable exhibits to the deposition, including "Ex. 14." The generic

labels given to these exhibits, coupled with their volume and Graymor's failure to describe

their contents and/or to accurately specify where they can be found in the record, have

made our already challenging task on summary judgment even more difficult.

Despite our best efforts to examine carefully the evidentiary record and cull the ma-

terial facts, we ultimately must rely upon the parties in a litigation "to identify with reason-

able particularity the evidence" that either merits or "precludes summary judgment." Brasic

v. Heinemann's Inc., 121 F.3d 281, 285 (7th Cir. 1997). Where Graymor's presentation of

the facts has fallen short of these standards, we have foregone the effort to expend our

limited judicial resources "scour[ing] the record" in an effort to piece together Graymor's

case. Id.; see, e.g., S.D. Ind. L.R. 56-1(h) & cmt. (e).

B. Battery Properties's Evidentiary Objection

Battery Properties objects to Graymor's reliance upon the deposition testimony of

Charles Gilkey ("Mr. Gilkey"), dkt. 188-1,1 a former P.R. Mallory and CMW employee

whose deposition was taken on December 5, 1990, pursuant to a petition to perpetuate

testimony. See In re Petition of CMW, Inc., for Perpetuation of Testimony, No. 49D059010

M11580 (Marion Sup. Ct. filed on Oct. 17, 1990); dkt. 188-1 at 1. Graymor has relied on

Mr. Gilkey's testimony to establish that Battery Properties (as P.R. Mallory's successor)

and CMW are "responsible person[s]" under CERCLA, which satisfies one essential ele-

ment of Graymor's § 107(a) claim against them. Dkt. 133 at 12–13. That said, no Defendant

has sought or opposed summary judgment on the basis of whether it qualifies as a "respon-

sible person" under CERCLA. Because Mr. Gilkey's testimony is not otherwise relevant to

the issues presented in the parties' cross-motions for partial summary judgment, we need

not resolve Battery Properties's objection at this time. (We recognize, however, that Gray-

mor has since moved for a pretrial ruling on the admissibility of Mr. Gilkey's deposition

testimony. Dkt. 188. That motion remains pending and will be decided in due course.)

1 In its summary judgment reply brief, Graymor repeatedly cites to Mr. Gilkey's deposition testi-

mony at "Dkt. 134 at 6." Dkt. 169 at 3–4. Unfortunately, our review of "Dkt. 134 at 6" did not

yield the transcript of Mr. Gilkey's deposition, or, for that matter, any other potentially relevant

evidence. Graymor's more recent, albeit unrelated, filings properly designated Mr. Gilkey's depo-

sition transcript, thus facilitating our ability to locate and review his testimony. Dkt. 188.

II. The Site's Ownership & Operational History

With some minor caveats not relevant to the instant motions, the Site's ownership

and operational history is undisputed by the parties. In 1929, Battery Properties's predeces-

sor, P.R. Mallory, acquired real property along East Washington Street in Indianapolis to

serve as the new locus of its budding manufacturing enterprise. Bonisoli Dep. 136:8–14,

dkt. 128-1 (deposition transcript of Battery Properties's 30(b)(6) witness, Jason Bonisoli).

As P.R. Mallory's operations expanded, so, too, did the geographical parameters of the in-

dustrial compound: Over the course of the ensuing decades, P.R. Mallory purchased adja-

cent parcels of land where new facilities were erected to accommodate the company's

evolving and expanding manufacturing operations. See, e.g., id. at 31:4–7; dkt. 135 (map

of the P.R. Mallory campus and its contiguous properties). The Site at the center of this

environmental controversy comprises 5.5 acres within the former P.R. Mallory campus lo-

cated at 70 (a/k/a 55) South Gray Street. Dkt. 132-2 at 1; Bonisoli Dep. 22:19–22, dkt. 128-

1.

For approximately fifty years, between the late 1920s and 1978, P.R. Mallory man-

ufactured an array of electrical support parts, such as radio components, bearings, batteries,

power transistors, variable inductance tuners, and metal alloys, dkt. 142 at 5–7; dkt. 137 at

7, which processes entailed the use of degreasers and other chemical solvents. See Mundell

R. 33, dkt. 125-1 at 36. P.R. Mallory's operations at the Site ceased in 1978, when CMW

(then operating as "CMW, Inc.") "made a select asset purchase" from P.R. Mallory's Met-

allurgical Division and began leasing the Site. Johnston Dep. 31:12–21, dkt. 139 at 10

(deposition transcript of Howard Johnston); Bonisoli Dep. 236:12–24, dkt. 128-1.

CMW officially acquired title to the Site in 1983 and thereafter continued its man-

ufacturing operations for thirty years, until early 2014. Henshaw Dep. 46:2–12, dkt. 132-3

at 13 (deposition testimony of CMW's 30(b)(6) witness, Stephen R. Henshaw); Bonisoli

Dep. 122:22–23, dkt. 128-1; dkt. 137 at 4; dkt. 128-28 at 1 (noting that CMW entered

receivership in early 2014). CMW produced component parts such as silver alloy wire,

strips, rotors, heat sinks, contacts, and welding tips. Dkt. 137 at 9. The manufacturing pro-

cesses associated with these operations included machining, metal infiltering, electroplat-

ing, foundry, and degreasing, among others. Id.

Approximately ten years after going into receivership, on February 3, 2023, CMW

sold the Site to Graymor, the current owner, who sought to utilize the property for truck

and trailer storage. Litwack Dep. 19:6–25, dkt. 132-1 at 63 (deposition testimony of Reid

Litwack, Graymor's 30(b)(6) witness). No manufacturing operations have been conducted

at the Site since early 2014.

No one in this litigation disputes that P.R. Mallory's and CMW's manufacturing ac-

tivities resulted in environmental degradation of the soil, groundwater, and soil vapors at

and near the Site. Dkt. 127 at 2; dkt. 133 at 3–9; dkt. 164 at 3. Likewise, the parties concede

that the presence of chlorinated volatile organic compounds ("CVOCs")—trichloroeth-

ylene ("TCE"), predominantly, though other CVOCs and hazardous chemicals have also

been detected—is driving the current need for environmental response action, since

CVOCs have been found to exist in the greatest quantities and pose actual and imminent

risks to human health and the environment. See, e.g., Mundell R. 29, 31, dkt. 125-1 at 32,

34; Herman R. 51, dkt. 122-1 at 59.

III. Battery Properties's Participation in Indiana's Voluntary Remediation

Program

In January 2000, Battery Properties applied to participate in Indiana's Voluntary Re-

mediation Program ("VRP"), dkt. 128-6, a state-run program that encourages past and/or

present property owners to voluntarily address environmental contaminants posing risks to

human health and the environment. See Ind. Code § 13-25-5 et seq. The Indiana Depart-

ment of Environmental Management ("IDEM"), which oversees the administration of the

VRP, granted Battery Properties's application a month later, in February 2000. Dkt. 128-7

(IDEM's approval letter for VRP #6000101).

Later that year, in November 2000, Battery Properties and IDEM proceeded to com-

pliance with the next step of Indiana's VRP: executing a Voluntary Remediation Agreement

("VRA"). The 2000 VRA required, inter alia, that Battery Properties submit a Remediation

Work Plan ("RWP") within 180 days "or longer if an extension [wa]s agreed to by the

parties." Dkt. 128-8 at 6 (the "2000 VRA"). If, however, Battery Properties "fail[ed] to

submit the Work Plan within that period[,] the Agreement [wa]s voidable at the discretion

of IDEM." Id. Graymor and Battery Properties agree (and CMW does not dispute) that the

hazardous substances encompassed by the VRP application and subsequent VRA include

a host of CVOCs, semivolatile organic compounds ("SVOCs"), polychlorinated biphenyls

("PCBs"), and metals. Dkt. 126-6 at 27; see dkt. 163 at 7; dkt. 167 at 4.

In September 2000, two months prior to the execution of the 2000 VRA, Battery

Properties submitted for IDEM's review an Investigation Work Plan ("IWP") detailing ad-

ditional investigations into "the soil in the vicinity of the former drum storage area and . .

. the groundwater beneath the Site." Dkt. 128-9 at 1. (The 2000 VRA also provided Battery

Properties the option of preparing and submitting an IWP. See dkt. 128-8 at 5–6). IDEM

approved Battery Properties's IWP in March 2001, and data collection activities began at

the Site shortly thereafter and continued through mid-2003. See dkt. 128-10 (January 2002

Phase II Investigation Report (Revision No. 1)); dkt. 128-11 (July 2003 Phase II Investi-

gation Report (Revision No. 2)).

On December 5, 2003, Battery Properties submitted a Remediation Work Plan pro-

posal for IDEM's review and approval. Dkt. 128-4. (Since Battery Properties's submission

consists only of the cover page of its 2003 RWP proposal, the scope of work encompassed

therein remains unknown. See id.) Eighteen months thereafter, on August 10, 2005, IDEM

issued a technical approval of Battery Properties's proposal, explaining that "according to

statute, the IDEM must make this [RWP proposal] available for public comment" before

"a final RWP approval letter w[ould] be issued by the Commissioner." Dkt. 128-12 at 1

(IDEM's Technical Approval); see also Ind. Code § 13-25-5-11 (mandating thirty-day no-

tice and comment period). The record does not disclose precisely the date when IDEM

issued a final approval, though subsequent correspondence with IDEM does reveal that,

from October through December 2005, Battery Properties installed and developed ground-

water monitoring wells at the Site, collected soil and groundwater samples, and reported

its findings to IDEM. See, e.g., dkt. 128-13 (October 2005 notice of upcoming "IDEM-

approved" work); dkt. 128-14 (November 2005 memorandum of analytical results); dkt.

128-15 (December 2005 memorandum of analytical results).

From 2006 through 2009, Battery Properties conducted multiple phases of ground-

water and soil investigations in order to delineate the impacts on site and downgradient of

the drum storage area, notifying IDEM of its progress at various steps. Dkt. 128-16 (Janu-

ary 2006 notice of quarterly groundwater sampling); dkt. 128-17 (May 2006 notice of quar-

terly groundwater sampling). In July 2007, Battery Properties sought IDEM's approval to

collect additional groundwater confirmation samples from the Site, which request was

granted by IDEM in March 2008. Dkt. 128-18 (July 2007 request); dkt. 128-19 (March

2008 approval); dkt. 128-20 (November 2008 summary of groundwater investigation ac-

tivities).2 Investigatory efforts continued through 2009 with Battery Properties conducting

additional ongoing groundwater investigations. Dkt. 128-21 (August 2009 summary of

March 2009 supplemental groundwater investigations); dkt. 128-22 (December 2009 sum-

mary of October 2009 supplemental groundwater testing). In December 2009, at IDEM's

request, Battery Properties again supplemented its groundwater sampling activities in order

"to obtain baseline groundwater analytical data from the recently installed deep monitoring

wells and [to] evaluate groundwater flow in the deep groundwater unit." Dkt. 128-23 at 1.

Battery Properties's findings were transmitted to IDEM in February 2010. Id.

In May 2010, Battery Properties provided detailed responses to several comments

from IDEM apropos of the ongoing investigations and agreed to reassess the Site's concep-

tual model and to identify "potentially completed exposure pathways." Dkt. 128-24 at 3–

2 The cited correspondence contains several unexplained references to Battery Properties and

CMW having "jointly entered into" the VRP. See, e.g., dkt. 128-20 at 1; dkt. 128-18 at 1. Whether

or to what extent CMW has participated in the VRP has not been explained to us, however.

4. Battery Properties's groundwater testing operations continued through 2012, as reflected

in its correspondence with IDEM. See, e.g., dkt. 128-25 (September 2011 Supplemental

Investigation Work Plan); dkt. 128-26 (March 2012 Response to Comments & Supple-

mental Groundwater Investigation Summary); dkt. 128-27 (October 2012 Response to

Comments & Supplemental Investigation Work Plan).

In mid-2014, after CMW's manufacturing operations had ceased, Battery Properties

performed a "focused subsurface investigation" and discovered "highly elevated concen-

trations of TCE . . . extending from near surface to depth . . . in the soil samples obtained

from the area of the Building A Western Degreaser operated by CMW." Dkt. 128-28 at 4;

e.g., dkt. 165-2 (October 2024 letter from IDEM noting that "TCE appeared to be the most

prevalent release related chemical detected at the source areas (i.e. former drum storage

areas, former degreaser areas, and plating areas)"). In September 2014, IDEM issued a

Special Notice of Liability to CMW and the Site's then-current owner, non-party Evergreen

Holdings, demanding information pertaining to the "generation, storage, disposal, and han-

dling methods . . . for [certain specified] hazardous substances and petroleum" as well as

any "activities and parties that contributed to contamination at the Site." Dkt. 128-29 at 2.

It is not clear what cleanup-related efforts were pursued and/or accomplished be-

tween 2013 and 2025, since neither the parties nor the record before us details the events

from that period.3 That said, in February 2025, Battery Properties completed an RWP

3 Battery Properties broadly references "additional work" that was undertaken between 2015 and

2025 but has failed to support this averment with record evidence. Dkt. 127 at 5 (citing dkt. 128-

5, which is a one-page cover sheet).

proposal, which IDEM technically approved in June 2025. Dkt. 128-31. During the statu-

tory comment period, Battery Properties received comments only from CMW. Dkt. 128-

32. (In October 2025, after the parties completed their summary judgment briefing, IDEM

issued its final approval to Battery Properties re: the February 2025 RWP. Dkt. 173-3.)

IV. CMW's Cleanup Efforts

The nature and extent of CMW's cleanup efforts have not been clearly set forth by

the parties in their court filings, since those issues are not directly material to the pending

cross-motions. An October 31, 2024, letter from IDEM to CMW does reveal, however, that

CMW has proposed an Interim Remediation Work Plan ("Interim RWP") prioritizing the

remediation of CVOC impacts on the soil and groundwater as well as the mitigation of

vapors emanating from the sewers. Dkt. 165-2 at 1, 3, 11. IDEM's correspondence also

reflects that "site access to CMW is now being denied by the current owner," Graymor,

which "only adds to the ongoing uncertainty and progress going forward of implementing

a viable remedy at the [Site]." Id. at 3.

V. Graymor's February 2023 Acquisition of & Involvement at the Site

Before purchasing the Site, Graymor, through its (non-party) environmental con-

sultant EnviroForensics LLC ("EFI"), completed a pre-purchase Phase I Environmental

Site Assessment. Litwack Dep. 25:12–13, 40:14–18, dkt. 128-3. EFI's Phase I report, dated

January 27, 2023, recounted the Site's known contaminants (e.g., CVOCs, SVOCs, PCBs,

and metals) as well as IDEM's continued involvement in ongoing cleanup and remediation

efforts. Dkt. 132-4 at 6–8. The Phase I report also indicated the "potential" presence of per-

and polyfluoroalkyl substances ("PFAS"), an "emerging contaminant of concern due to

recent scientific studies indicating exposure to PFAS may be linked to harmful health ef-

fects in humans and animals." Id. at 9–10.

Aware of the Site's contamination by "harmful chemicals," Litwack Dep. 37:1–11,

38:22–25, dkt. 128-3, Graymor purchased the Site "as is" and "where is" on February 3,

2023, as documented in Purchase Agreement to which Graymor and CMW are parties, dkt

132-2 at 8 (Purchase Agreement). Graymor paid $600,000 for the property, anticipating

that cleanup efforts might cost "around a million bucks." Litwack Dep. 98:21–22, 95:11–

20, dkt. 128-3. According to Graymor's expert witness, Kurt Herman, "Graymor has used

its own funds to secure, investigate and develop a remediation work plan for contamination

at the Site." Herman R. 77, dkt. 122-1 at 85. Graymor has not quantified these alleged

expenditures, however.

On December 10, 2024, IDEM technically approved Graymor's "Data Gap Site In-

vestigation" work plan, pursuant to which EFI would continue to assess the potential im-

pact of PFAS in the soil and groundwater at the Site. Dkt. 155 at 3. Following the comple-

tion of supplemental investigations, IDEM requested that Graymor develop and present a

comprehensive remediation plan in a timely fashion so that IDEM could appropriately co-

ordinate each party's respective "remedy implementation timetable." Id. at 5.

VI. This Litigation

On May 3, 2023, Graymor filed this lawsuit4 against Battery Properties and CMW,

asserting claims against both Defendants, pursuant to the ELA, CERCLA, and Indiana

4 This litigation is the sequel to four prior lawsuits, though none directly impacts the claims pend-

ing before us. CMW Int'l, LLC v. Amerisure Ins. Co., No. 1:16-cv-01384-TWP-TAB (S.D. Ind.

common law, and seeking to recover "costs incurred and to be incurred . . . in responding

to the release of hazardous substances at the [Site] that pose a risk to human health and the

environment." Compl. ¶ 10, dkt. 1. Graymor avers that Battery Properties's and CMW's

former operations at the Site caused and contributed to the release of hazardous substances

into the Site's soil and groundwater. Accordingly, Graymor maintains, Battery Properties

and CMW are jointly and severally liable to it for all past and future remediation costs.

Battery Properties and CMW deny that they are liable to Graymor for cleanup costs.

Battery Properties contends that it is immune from Graymor's ELA claim, since Indiana

law confers VRP participants, like Battery Properties, with legal protections against such

claims. Both Battery Properties and CMW assert contribution counterclaims against Gray-

mor, pursuant to § 113(g) of the CERCLA. Battery Props.'s Answer & Countercl. ¶¶ 1–13,

dkt. 27 at 35–36; CMW's Answer & Countercl. ¶¶ 1–13, dkt. 49 at 38–39. In a second

counterclaim, CMW alleges that Graymor breached the terms of the February 2023 Pur-

chase Agreement by initiating this lawsuit. CMW's Answer & Countercl. ¶¶ 14–25, dkt. 49

at 39–41.

On August 4, 2025, the parties cross-moved for partial summary judgment: Battery

Properties seeks summary judgment on Graymor's state-law claims, dkt. 126; Graymor

seeks summary judgment on its CERCLA and ELA claims as well as on CMW's breach-

filed on Jun. 6, 2016) (CMW's insurance coverage); Battery Properties, Inc. v. CMW Int'l, LLC

and Evergreen Holdings Int'l, LLC, No. 49D02-1706-PL-022673 (Marion Sup. Ct. filed on Jun. 7,

2017) (re: responsibility for contamination); Wausau Underwriters Ins. Co. v. CMW Int’l, LLC et

al, No. 1:19-cv04564-JPH-MPB (S.D. Ind. filed on Nov. 14, 2019) (dispute between CMW and

its insurers over selection of an environmental consultant).

of-contract counterclaim, dkt. 129; and CMW seeks summary judgment on Graymor's

common law negligence claims, dkt. 130. These motions are now fully briefed and ripe for

ruling.

Two other motions remain pending: Battery Properties's Motion to Exclude Expert

Opinions of Lawrence P. Schnapf ("Mr. Schnapf"), Graymor's expert witness, dkt. 156,

filed on August 11, 2025; and Graymor's Motion for Preliminary Injunction, dkt. 173, filed

on November 6, 2025. Because Graymor does not rely upon Mr. Schnapf's testimony in

seeking (or opposing) the entry of summary judgment, we shall undertake and resolve Bat-

tery Properties's Motion to Exclude at a later time. See Kansas City S. Ry. Co. v. Sny Island

Levee Drainage Dist., 831 F.3d 892, 900 (7th Cir. 2016) ("Where a trial judge conducts a

bench trial, the judge need not conduct a Daubert (or Rule 702) analysis before presentation

of the evidence, even though [s]he must determine admissibility at some point.").

Likewise, having reviewed Graymor's motion for a preliminary injunction and De-

fendants' responses in opposition, see dkt. 173, 176–77, 180–81, we conclude that consol-

idating our resolution of Graymor's motion with the upcoming trial on the merits will en-

sure an orderly disposition of the case, while ensuring that the parties are afforded "a full

and fair opportunity to present their respective cases." Am. Train Dispatchers Dep't of Int'l

Bhd. of Locomotive Eng'rs v. Fort Smith R. Co., 121 F.3d 267, 270 (7th Cir. 1997); See also

Fed. R. Civ. P. 65(a)(2).

LEGAL DISCUSSION

We address the parties' cross-motions for summary judgment in the context of the

various claims and counterclaims advanced herein.

17

I. Battery Properties's and CMW's Motions for Summary Judgment as to

Graymor's Negligence & Negligence Per Se Claims

Battery Properties and CMW, respectively, seek summary judgment on Graymor's

negligence and negligence per se claims. Dkt. 126; dkt. 130. In a footnote embedded within

its September 2, 2025, response in opposition to Battery Properties's motion, Graymor pur-

ports to "voluntarily dismiss[ ] its claims . . . for negligence and negligence per se, without

prejudice." Dkt. 163 at 12 n.2. Defendants object to Graymor's dismissal without prejudice

as improper, untimely, and inadequate to defeat their motions for summary judgment. Dkt.

167 at 7–8; dkt. 168 at 1–2. Accordingly, Defendants request either the entry of summary

judgment in their favor or the dismissal with prejudice of Graymor's negligence claims.

Dkt. 167 at 7–8; dkt. 168 at 3. (Notably, the parties' most recent case management plan,

which was jointly filed on October 1, 2025, reflects an apparent agreement among the par-

ties that "Graymor [has] dismissed its common law claims for negligence and negligence

per se," dkt. 170 at 2, though they do not indicate whether such dismissal is with or without

prejudice.)

We agree with Defendants that dismissal without prejudice of Graymor's common

law negligence claims, especially at this stage of this litigation, is neither warranted nor

appropriate. Insofar as the Federal Rules of Civil Procedure might otherwise permit Gray-

mor to seek a dismissal without prejudice, see Fed. R. Civ. P. 41(a), Graymor's failure to

invoke the relevant legal authority and to develop any persuasive argument as to the pro-

priety of a prejudice-free dismissal constitutes waiver. United States v. Lanzotti, 205 F.3d

951, 957 (7th Cir. 2000) ("[P]erfunctory and undeveloped arguments, and arguments that

are unsupported by pertinent authority, are waived."). Because Graymor has also failed to

adduce any facts or argument relating to the viability of its negligence and negligence per

se claims, Battery Properties's and CMW's motions for summary judgment on Graymor's

negligence and negligence per se claims shall be granted. See Balderston v. Fairbanks

Morse Engine Div. of Coltec Indus., 328 F.3d 309, 320 (7th Cir. 2003) (explaining that, to

defeat summary judgment motion, nonmovant must adduce specific facts "sufficient to

raise a genuine issue for trial").

II. Graymor's Motion for Summary Judgment as to Battery Properties's &

CMW's Liability under § 107(a) of CERCLA

Congress enacted CERCLA in 1980 to "promote the timely cleanup of hazardous

waste sites and to ensure that the costs of such cleanup efforts were borne by those respon-

sible for the contamination." Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S.

599, 602 (2009). CERCLA "operates in part by encouraging, and directly providing the

vehicle for, private parties to invest in environmental response, including remediation, and

then to recover at least part of those response costs from other potentially responsible par-

ties or PRPs." Von Duprin LLC v. Major Holdings, LLC, 12 F.4th 751, 758 (7th Cir. 2021).

PRPs include "current owners and operators of a site that experienced a disposal of haz-

ardous material, past owners or operators at the time of the release, persons who arranged

for disposal of a hazardous substance at a site, and parties who transported a hazardous

substance to a site." Id. (citing 42 U.S.C. § 9607(a)(1)–(4)).

Section 107(a), codified at 42 U.S.C. § 9607(a), "provides PRPs who incurred re-

sponse costs with a cause of action to recover certain of those costs from other PRPs." Id.

(citing United States v. Atl. Rsch. Corp., 551 U.S. 128, 131 (2007)). "PRPs who find them-

selves sued under § 107(a) often file a counterclaim against the original plaintiff on the

basis that the party is itself a PRP" who bears legal responsibility to "contribute to any

ultimate remediation liability." Id. "These so-called contribution counterclaims proceed un-

der § 113(f) of CERCLA, which authorizes the allocation of liability based on 'such equi-

table factors as the court determines are appropriate.' " Id. (quoting 42 U.S.C. § 9613(f)(1)).

CERCLA also provides a "bona fide prospective purchaser" (or "BFPP") "affirmative de-

fense to remediation liability to PRPs who did not release hazardous materials themselves

but remain potentially liable by virtue of being a current owner of a site where a prior

release occurred." Id. at 759 (citing 42 U.S.C. § 9607(q)(1)(C)).

In this litigation, Graymor seeks to recoup past and future cleanup costs from Bat-

tery Properties and CMW, pursuant to § 107(a). Battery Properties and CMW each respond

by denying liability to Graymor and asserting contribution counterclaims under § 113(f).

Graymor invokes the BFPP defense to Battery Properties's and CMW's § 113(f) counter-

claims. Dkt. 40, 52.

Graymor's motion for partial summary judgment seeks a finding that: (1) Battery

Properties and CMW are liable to Graymor under § 107(a) of CERCLA; (2) Graymor is

entitled to recover its past costs from Battery Properties and CMW; and (3) Graymor is

entitled to recover its future costs and damages, including interest and attorneys' fees and

costs, as well as all other appropriate relief. Because only Graymor has moved for summary

judgment on the § 107(a) claim, we shall construe all disputed facts in the light most fa-

vorable to Battery Properties and CMW as the nonmovants. Anderson, 477 U.S. at 255.

To prevail on a § 107(a) cost recovery claim, a non-governmental "plaintiff must

show that (1) the site in question is a 'facility'; (2) the defendant qualifies as a PRP; (3) the

facility experienced the release or threatened release of hazardous substances; and (4) the

plaintiff incurred costs consistent with the National Contingency Plan in responding to the

release." Von Duprin, 12 F.4th at 758. Neither Battery Properties nor CMW contests the

first three elements. Rather, they argue that Graymor cannot satisfy the final element be-

cause it has not incurred costs that are necessary and/or consistent with the National Con-

tingency Plan ("NCP"). Battery Properties also argues that the § 113(f) contribution coun-

terclaims preclude a ruling that responsibility for Site response costs lies exclusively with

Defendants, given that Graymor is also an alleged PRP and has failed to prove that it qual-

ifies as a BFPP (though no party has sought summary judgment on the § 113(f) counter-

claims or Graymor's BFPP defense).

A. Impact of Defendants' § 113(f) Counterclaims

"[S]ection 113(f) creates a right to contribution for parties already subject to liability

in . . . a section 107 action . . . ." NCR Corp. v. George A. Whiting Paper Co., 768 F.3d 682,

690 (7th Cir. 2014). Unlike § 107(a)'s default joint and several liability, however, § 113(f)

vests district courts with "broad and loose" authority to allocate response costs among

PRPs. Id. at 695. Indeed, "even a defendant who concedes statutory liability may argue that

it should bear none of the costs of response." Id. at 690.

Battery Properties resists summary judgment on Graymor's § 107(a) claim on the

grounds that Graymor "ignores its own liability" as a PRP, despite the fact that both De-

fendants' contribution counterclaims remain pending. Dkt. 161 at 6. Relatedly, Battery

Properties argues that Graymor's BFPP defense has yet to be resolved, further precluding

resolution of Graymor's § 107(a) claim. Id. at 8. These arguments by Battery Properties are

misplaced and unavailing.

First, Battery Properties's argument misapprehends the interplay between Graymor's

cost recovery claim under § 107(a) and Defendants' contribution counterclaims under §

113(f). A "PRP's right to contribution under § 113(f)(1) is contingent upon an inequitable

distribution of common liability among liable parties," meaning that the viability of Battery

Properties's and CMW's contribution counterclaims depends, first and foremost, on a find-

ing of their liability to Graymor. Atl. Rsch. Corp., 551 U.S. at 139; accord NCR Corp., 786

F.3d at 691 ("Section 113(f) is closed to a litigant without a preexisting or pending liability

determination against it even if it wants to proceed by that route, because that statute creates

a right to contribution, and contribution exists only among joint tortfeasors liable for the

same harm."). If, by contrast, Defendants are not found liable to Graymor under § 107(a),

then neither Battery Properties nor CMW has grounds to seek contribution from Graymor

under § 113(f). Mervis Indus., Inc. v. PPG Indus., Inc., No. 1:09-cv-0633-SEB-JMS, 2010

WL 1381671, at *6 (S.D. Ind. Mar. 30, 2010) (denying motion to dismiss § 113(f) counter-

claim and noting that, to the extent that liability is established under § 107(a), the liable

party "may seek contribution pursuant to 113(f) to ensure that costs are equitably distrib-

uted"); see also Battery Props.'s Answer & Countercl. ¶ 13, dkt. 27 at 36 (alleging that "[i]f

[Battery Properties] is found liable in this action, then Graymor is liable to [Battery Prop-

erties]") (emphasis added); CMW's Answer & Countercl. ¶ 13, dkt. 49 at 39 (alleging that

"[i]f CMW is found liable in this action, then Graymor is liable to CMW") (emphasis

added).

The relationship between §§ 107(a) claims and 113(f) counterclaims leads to a sec-

ond point: Since no party has moved for summary judgment on Battery Properties's and

CMW's counterclaims and/or Graymor's BFPP defense, any question concerning Gray-

mor's liability, whatever it may be, exceeds the scope of the present motion(s). A subse-

quent phase of this litigation will likely entail resolution of the contribution counterclaims,

at which time we may properly assess "the equitable apportionment of costs among the

liable parties, including the PRP that filed the § 107(a) action." Atl. Rsch. Corp., 551 U.S.

at 140 (emphasis added). Accordingly, we shall resolve Graymor's motion for summary

judgment as to its § 107(a) claim (concerning Defendants' liability to Graymor) without

regard to the disposition of Defendants' § 113(f) counterclaims (concerning Graymor's lia-

bility to Defendants). Valbruna Slater Steel Corp. v. Joslyn Mfg. Co., No. 1:10-cv-044-JD,

2015 WL 8055999, at *3 (N.D. Ind. Dec. 4, 2015) (postponing consideration of equitable

contribution factors until after resolution of § 107(a) claim).

B. Recoverable Response Costs

We turn now to determine whether Graymor has shown that its past response costs

are recoverable under § 107(a). "Congress permitted the recovery of necessary response

costs incurred 'consistent with' the National Contingency Plan or NCP, a federal regulation

that establishes standards and obligations for remediation and cleanup efforts." Von Duprin,

12 F.4th at 770 (quoting 42 U.S.C. § 9607(a)(4)(B)). Accordingly, to satisfy this element

of its § 107(a) claim, Graymor must demonstrate that its expenses were both necessary and

consistent with the NCP.

Response costs are "necessary" if they are incurred in order to address a threat to

human health or the environment. G.J. Leasing Co. v. Union Elec. Co., 854 F. Supp. 539,

561–62 (S.D. Ill. 1994) ("G.J. Leasing Co. I"), aff'd, 54 F.3d 379 (7th Cir. 1995) ("G.J.

Leasing Co. II"). "The statutory limitation to 'necessary' costs of cleaning up is important"

because "[w]ithout it there would be no check on the temptation to improve one's property

and charge the expense of improvement to someone else." G.J. Leasing Co. II, 54 F.3d at

386. Thus, Graymor "must establish an actual and real public health threat exists prior to

initiating a response action." G.J. Leasing Co. I, 854 F. Supp. at 562. Whether particular

response costs are necessary is a mixed question of law and fact. See G.J. Leasing Co. II,

54 F.3d at 386. "Summary judgment is appropriate for the purposes of determining [De-

fendants'] liability if the undisputed facts demonstrate that at least some of [Graymor's]

response costs were necessary." Valbruna Slater Steel Corp., 2015 WL 8055999, at *4 (cit-

ing NutraSweet Co. v. X-L Eng'g Co., 227 F.3d 776, 782 (7th Cir. 2000)).

Relatedly, a "private party response action will be considered 'consistent with the

NCP' if the action, when evaluated as a whole, is in substantial compliance with the appli-

cable requirements . . . and results in a CERCLA-quality cleanup." 40 C.F.R. §

300.700(c)(3)(i). "The requirements are numerous and task specific," though "[p]erfect

compliance is not the measuring stick." Von Duprin, 12 F.4th at 770 (citing 40 C.F.R. §

300.700(c)(5)–(6)). "The ultimate and controlling inquiry is whether the expenses in ques-

tion were incurred in 'substantial compliance' with the NCP." Id. (citing 40 C.F.R. §

300.700(c)(3)(i)). A private plaintiff can demonstrate its compliance with the NCP through

evidence of a state environmental agency's involvement in and oversight of the party's

cleanup and remediation work. See NutraSweet Co., 227 F.3d at 791 (holding that district

court did not clearly err in concluding that state environmental agency's oversight in

cleanup established substantial compliance with the NCP).

Here, Graymor contends that the costs it has incurred are recoverable because

"IDEM has overseen and regulated Graymor's efforts to address the contamination" at the

Site, as evidenced by IDEM's December 10, 2024, technical approval letter regarding Gray-

mor's data gap site investigation work plan. Dkt. 133 at 16 (citing dkt. 155). Defendants

challenge both the necessity of Graymor's expenditures as well as whether such costs were

incurred consistent with the NCP. Graymor's purported response costs, Defendants argue,

were not legally necessary because their own (respective) remediation efforts were under-

way long before Graymor purchased the Site and interrupted their progress in February

2023. According to Battery Properties and CMW, any PFAS-related expenditures incurred

by Graymor were voluntarily undertaken, since IDEM did not require Graymor to investi-

gate PFAS, and thus do not qualify as necessary response costs. Battery Properties also

asserts that IDEM's December 10, 2024, technical approval letter reflects nothing more

than IDEM's "ministerial" oversight, which falls short of the type of involvement necessary

to establish compliance with the NCP.

After carefully reviewing the record, we find that genuine issues of material fact

concerning the nature and necessity of Graymor's response costs preclude the entry of sum-

mary judgment on the issue of Defendants' liability to Graymor under § 107(a). Although

it appears that IDEM certainly has authorized Graymor to conduct additional investigations

in order to assess the presence of PFAS at the Site, Graymor has not conclusively or per-

suasively shown that such investigations were necessary to address a threat to public health

or the environment. IDEM's technical approval of Graymor's proposed PFAS investiga-

tions notwithstanding, the record contains countervailing evidence regarding the immedi-

acy of the risk posed by PFAS. For example, Graymor's own expert witness, Mr. Schnapf,

acknowledged at his deposition that "the issue of PFAS at sites and the environmental con-

text is a relatively new occurrence" such that state and federal authorities have not yet

firmly established the appropriate screening levels for PFAS. Schnapf Dep. 104:23–105:6,

dkt. 165-4 at 3. Similarly, IDEM has itself expressed its "belie[f] that the PFAS (if deter-

mined to require remediation) can be addressed in a separate phase of mitigation . . . ." Dkt.

165-1 at 2 (March 27, 2025, email from IDEM to Graymor) (emphasis added). In constru-

ing this evidence in the light most favorable to Battery Properties and CMW as the non-

movants, we hold that a reasonable factfinder could conclude that Graymor's expenditures

relating to PFAS mitigation were not necessary to contain a threat to public health or the

environment.

Graymor's contentions addressed in its reply brief are similarly unavailing. Accord-

ing to Graymor, its PFAS-related expenses "are not the only necessary response costs" that

is has incurred. Dkt. 169 at 8. Although Graymor's reply brief does not enumerate, much

less explain, its alleged response costs, it does cite to Mr. Litwack's deposition testimony

vaguely describing certain payments for liability insurance, County taxes, EFI invoices,

attorney fees, and fence repairs. Litwack Dep. 80:21–83:23, dkt. 128-3. Graymor's failure

to relate these alleged payments to any necessary response costs buttresses our conclusion

that Graymor is not entitled to summary judgment in its favor at this time. Accordingly,

Graymor's request for summary judgment on the question of Defendants' liability under §

107(a) shall be denied. Because we deny summary judgment on the grounds that Graymor

has failed to establish the "necessity" of its alleged response costs, we do not reach the

question of whether such costs were consistent with the NCP.

III. Battery Properties's and Graymor's Cross-Motions for Summary Judgment on

Graymor's ELA Claim

Graymor and Battery Properties have cross-moved for summary judgment on Gray-

mor's ELA claim. Section 13-30-9-2 of the Indiana Code provides that "[a] person may . . .

bring an environmental legal action against a person that caused or contributed to the re-

lease to recover reasonable costs of a removal or remedial action involving the hazardous

substances or petroleum." Ind. Code § 13-30-9-2. As a complete defense to liability, Battery

Properties invokes Indiana's VRP statute, which confers participants with certain protec-

tions against Title 13 claims. Below, we first address Battery Properties's immunity defense

before turning to the merits of Graymor's ELA claim against Battery Properties and CMW.

A. Battery Properties's Interim Immunity

Section 13-25-5-18(g) of the Indiana Code states as follows:

After an applicant and the [IDEM] have signed a voluntary remediation

agreement, a person may not bring an action, including an administrative ac-

tion, against the applicant . . . for any cause of action arising under [Title

13] or rules adopted under [Title 13] and relating to the release or threatened

release of a hazardous substance or petroleum that is the subject of the agree-

ment.

Ind. Code § 13-25-5-18(g) ("subsection 18(g)").5

Upon the VRP participant's successful completion of an approved remediation work

plan, a second form of immunity becomes available; to wit, once the IDEM commissioner

issues a certificate of completion, see id. § 13-25-5-16, "the governor shall also provide the

person with a covenant not to sue for any liability, including future liability, or a claim

resulting from or based upon the release or threatened release of a hazardous substance or

petroleum that is addressed by an approved voluntary remediation work plan . . . ." Id. §

13-25-5-18(a). Together, these liability protections that are built into "the Voluntary Reme-

diation Program ha[ve] a very specific purpose: to facilitate the sale and reuse of industrial

and commercial properties by assuring the property owner (and future transferees) that no

additional environmental actions will be instituted against them." Reed v. Reid, 980 N.E.2d

277, 288–89 (Ind. 2012) (citation modified); accord Cooper Indus., LLC v. City of S. Bend,

899 N.E.2d 1274, 1281 (Ind. 2009) (describing the VRP "scheme" as one example of the

"legislative effort to address brownfields" by "encourag[ing] their remediation").

In this case, Battery Properties argues that it has interim immunity from suit under

subsection 18(g) because it has been actively engaged in the voluntary remediation process

since November 2000, when it and IDEM signed a VRA. Dkt. 128-8. According to Battery

Properties, the 2000 VRA remains valid and enforceable and, thus, completely bars Gray-

mor's ELA claim.

5 Subsection 18(g) was originally enacted as subsection 18(e) but was recodified as subsection

18(g) in 2009. See 2009 Ind. Legis. Serv. P.L. 78-2009 § 19 (H.E.A. 1162) (West) (amending the

Indiana Code concerning environmental law).

Graymor does not dispute the existence of the 2000 VRA to which Battery Proper-

ties and IDEM are parties, though it contends that Battery Properties lacks immunity for

several reasons. First, Graymor argues that the VRP's "limited protections . . . apply only

when an applicant completes remediation at its own expense" and obtains a covenant not

to sue from the Governor. Dkt. 163 at 10–11 (citing Ind. Code § 13-25-5-18).6 Contrary to

Graymor's assertion, however, subsection 18(g) plainly states that "a person may not bring

an action . . . for any cause of action arising under" Title 13 "[a]fter an applicant and the

department have signed a voluntary remediation agreement." Ind. Code § 13-25-5-18(g)

(emphasis added). In this case, Battery Properties (i.e., "an applicant") and IDEM (i.e., "the

department") signed the 2000 VRA. Thus, unless an exception applies, subsection 18(g)

bars Graymor's ELA claim, which arises under Title 13, against Battery Properties, and the

fact that remediation work remains ongoing does not dictate otherwise. Hostetler v. John-

son Controls Inc., No. 3:15-cv-226 JD, 2021 WL 4477463, at *10 (N.D. Ind. Sept. 30,

2021) (rejecting similar argument and holding interim immunity barred plaintiff's ELA

claim against VRP participant even though remediation work was incomplete).

6 In support of its contention that Battery Properties's immunity is contingent upon the completion

of remedial work as well as receipt of a covenant not to sue, Graymor also cites to § 7 of the ELA,

which states: "Notwithstanding any provision of this chapter, a person that receives a covenant not

[to] sue under IC 13-25-5-18 is exempt from suit as provided in IC 13-25-5-18." Ind. Code § 13-

30-9-7 ("ELA § 7"). Since Graymor does not explain this argument further, however, we do not

address the interplay between ELA § 7 and § 13-25-5-18 except to say that, absent a showing that

two statutes are "irreconcilable," Indiana law requires courts "to reconcile and harmonize" dualling

statutes and "give effect to both provisions." Rodriguez v. State, 129 N.E.3d 789, 796 (Ind. 2019)

(citation modified). In this case, there has been no showing that ELA § 7 and § 13-25-5-18 are

incompatible, and, as such, we do not read ELA § 7 as excepting subsection 18(g) from the pro-

tections available under § 13-25-5-18.

Graymor next argues that its ELA claim exceeds the scope of whatever protections

Battery Properties might otherwise have by virtue of the 2000 VRA. Subsection 18(g) pro-

tects applicants from causes of action "relating to" hazardous substances that are "subject

of the agreement." Ind. Code § 13-25-5-18(g) (emphasis added). Here, it is undisputed that

remediation pursuant to the 2000 VRA has thus far focused on certain CVOCs, SVOCs,

PCBs, and metals at the Site. According to Graymor, however, its ELA claim concerns the

presence of PFAS, which substances are not a "subject of" the 2000 VRA and thus fall

beyond the scope of subsection 18(g)'s interim immunity.

Neither Graymor's May 2023 Complaint, dkt. 1, nor its May 2025 Statement of

Claims, dkt. 123, includes a single reference to PFAS as the underlying factual basis of the

ELA claim, despite evidence that Graymor knew about the potential presence of PFAS at

the Site in January 2023, when EFI completed a Phase I investigation report. To that end,

Battery Properties contends that Graymor raises the PFAS issue "for the first time in its

[r]esponse" brief. Dkt. 167 at 5. According to the Seventh Circuit, "[a]n attempt to alter the

factual basis of a claim at summary judgment may amount to an attempt to amend the

complaint." Chessie Logistics Co. v. Krinos Holdings, Inc., 867 F.3d 852, 859 (7th Cir.

2017). District courts "retain[ ] discretion to treat new claims presented for the first time in

briefing as a constructive motion to amend," though the Seventh Circuit has cautioned that

"[i]t will rarely be appropriate to do so." Schmees v. HC1.COM, Inc., 77 F.4th 483, 490

(7th Cir. 2023). Indeed, "only when the general principles governing amendment of a com-

plaint are satisfied should constructive amendment be permitted . . . , [and] justice will

rarely require leave to amend in the context of new claims presented for the first time in

opposition to a motion for summary judgment." Id. at 489; see also Fed. R. Civ. P. 15(a)(2)

("The court should freely give leave [to amend the pleadings] when justice so requires.").7

To the extent that Graymor seeks to redefine the factual basis of its ELA claim

through its summary judgment response brief, it has failed to show that this case presents

one of the "rare" circumstances under which a de facto amendment is appropriate. In the

circumstances presented here, we discern no basis on which justice might permit Graymor

to introduce new factual underpinnings to its ELA claim at this late stage of the litigation.

Graymor's final argument is that Battery Properties has no immunity because it

failed to submit an RWP to IDEM within 180 days of entering into the 2000 VRA, as

required by the Indiana Code as well as the terms of the 2000 VRA. Subsection 18(g)

provides that immunity from suit "does not apply if: (1) the applicant fails to file a proposed

voluntary remediation work plan within the time period established in section 8(a)(8) of

this chapter." Ind. Code § 13-25-5-18(g)(1). Section 8(a)(8), in turn, requires the applicant

to submit a voluntary remediation work plan proposal to IDEM "(A) not later than one

hundred eighty (180) days after the date the voluntary remediation agreement is signed; or

(B) after a longer period if the extension is agreed to by the department and the applicant."

Id. § 13-25-5-8(a)(8).

7 Battery Properties maintains, without further elaboration, that VRP applicants need not enumer-

ate every contaminant that might exist at an impacted site, meaning that the (potential) presence

of PFAS at the Site is immaterial to its interim immunity. Dkt. 167 at 4. Whether or to what extent

subsequently-discovered contaminants, like PFAS here, affect subsection 18(g)'s protections has

not been adequately briefed by the parties. We, therefore, express no view as to merits of this issue.

The parties stipulate that Battery Properties's (first) RWP was submitted to IDEM

on December 5, 2003, dkt. 128-4, more than 920 days past the statutory 180-day deadline.

The viability of Battery Properties's interim immunity thus turns on whether IDEM and

Battery Properties "agreed to" an extension of time for the submission of an RWP. See Ind.

Code § 13-25-5-8(a)(8).

Graymor contends that Battery Properties cannot adduce any record evidence show-

ing that IDEM agreed to extend the 180-day deadline. Battery Properties rejoins that "doc-

umentary evidence" is not necessary to prove the existence of "several" extension agree-

ments when the record makes it "patently and plainly obvious" that IDEM "approved all

phases of [Battery Properties's] investigation work, approved [Battery Properties's] 2003

and 2025 RWPs, and never terminated the VRA," dkt. 167 at 3–4.

In the absence of direct and/or uncontroverted evidence that Battery Properties and

IDEM specifically, expressly agreed to any, never mind "several," extensions of time for

the submission of an RWP, it is not clear that Battery Properties has demonstrated its enti-

tlement to judgment as a matter of law. Certainly, as Battery Properties insists, the record

does show that IDEM and Battery Properties maintained continual, albeit irregular, corre-

spondence relating to investigatory work at the Site. See generally dkt. 128-13 through

128-28. However, these communications fall short of establishing if, when, or how IDEM

authorized Battery Properties to delay the submission of a remediation work plan for nearly

three years. Cf. Aimco Michigan Meadows Holdings, LLC v. Genuine Parts Co., No. 1:05-

cv-088-LJM-WTL, 2006 WL 897875, at *2 (S.D. Ind. Mar. 31, 2006) (granting summary

judgment where VRP applicant adduced evidence of IDEM representative's affidavit,

which "ma[de] it clear that the extension agreement was agreed to by the parties"). Relat-

edly, while IDEM has not exercised its contractual (or statutory) authority to void the 2000

VRA, it has not affirmatively represented that it "agreed to" an extension agreement. IDEM

did retain the discretion to overlook Battery Properties's timeliness, however, regardless of

whether it had specifically agreed to an extension of time. See dkt. 128-8 at 6 ("If Applicant

fails to submit the Work Plan within that period the Agreement is voidable at the discretion

of IDEM.") (emphasis added).

In reviewing Battery Properties's summary judgment motion, we draw all reasona-

ble inferences in favor of the nonmovant, Graymor. Doing so, we conclude that a genuine

issue of material fact exists as to whether IDEM and Battery Properties agreed to an exten-

sion of time for the submission of an RWP. Because Battery Properties has failed to adduce

specific record evidence demonstrating the absence of a genuine dispute concerning

whether Battery Properties and IDEM "agreed to" an extension of time for the submission

of a remediation work plan, as set forth in Indiana Code § 13-25-5-8(a)(8)(B), summary

judgment is not appropriate. Accordingly, Battery Properties's motion for partial summary

judgment on the issue of its interim immunity under subsection 18(g) shall be denied.

B. Graymor's ELA Claim against Battery Properties & CMW

We turn next to Graymor's request for summary judgment on its ELA claims against

Battery Properties and CMW. As noted above, § 13-30-9-2 of the Indiana Code authorizes

plaintiffs to " 'recover reasonable costs of a removal or remedial action' involving hazard-

ous substances or petroleum." Bernstein v. Bankert, 733 F.3d 190, 216 (7th Cir. 2013)

(quoting Cooper Indus., LLC, 899 N.E.2d at 1280). Graymor argues that it is entitled to

summary judgment on the same grounds as those that support its CERCLA claim: to wit,

Defendants "unquestionably" caused contamination at the Site and are therefore liable to

Graymor for the reasonable response costs it has and will incur. Dkt. 133 at 18–19.

The "ELA statute provides a cause of action closely resembling the cost recovery

provisions in CERCLA Section 107, [though] they are not the same." Reed, 980 N.E.2d at

287–88. One such difference pertains to the recoverability of response costs: The ELA re-

quires that the costs sought be "reasonable," whereas CERCLA requires that response costs

be necessary and consistent with the NCP. See id. at 288.

Here, Graymor has neither adduced evidence nor persuasively argued that it has

incurred "reasonable" response costs within the meaning of the ELA. We, therefore, can

make short work of Graymor's request for summary judgment on the question of Battery

Properties's and CMW's liability under the ELA. Because Graymor's motion is insuffi-

ciently supported by the record before us, it shall be denied. See Hotel 71 Mezz Lender

LLC, 778 F.3d at 603.

IV. Graymor's Motion for Summary Judgment on CMW's Breach-of-Contract

Counterclaim

The essential elements of a breach of contract claim under Indiana law are "the ex-

istence of a contract, the defendant's breach of that contract, and damages resulting from

the breach." Haegert v. Univ. of Evansville, 977 N.E.2d 924, 937 (Ind. 2012). As explained

below, CMW and Graymor have entirely failed to adhere to this legal framework in ad-

vancing their respective positions, thereby impeding the Court's straightforward assess-

ment of the disputed and undisputed elements of CMW's counterclaim. That said, our

independent review of the record discloses that CMW's breach-of-contract counterclaim is

factually and legally unavailing on multiple grounds.

CMW's breach-of-contract counterclaim arises out of the Purchase Agreement,

which, CMW avers, "bar[s] or diminish[es] Graymor's claims and alter[s] the rights and

obligations of each CMW and Graymor with respect to the [Site] and its environmental

conditions." CMW's Answer & Countercl. ¶ 19, dkt. 49 at 40. Although CMW initially

invoked nine separate contract provisions as bases of its counterclaim, see id., its response

in opposition to Graymor's motion for partial summary judgment relies upon only the fol-

lowing sections:

5.4: Each of the parties will pay its own attorney's fees except that a party

defaulting under this Agreement or any Closing Documents will pay the rea-

sonable attorney's fees and court costs incurred by the nondefaulting party

which is successful in enforcing its rights hereunder.

. . .

9.1: Seller is conveying the Real Property in its "AS IS" AND "WHERE

IS" condition as to all conditions, whether known or unknown, latent or

open.

. . .

Section 14: The paragraph headings or captions appearing in this Agreement

are for convenience only, are not a part of this Agreement, and are not to be

considered in interpreting this Agreement. This written Agreement consti-

tutes the complete agreement between the parties and supersedes any prior

oral or written agreements between the parties regarding the Real property.

There are no verbal agreements that change this Agreement, and no waiver

of any of its terms will be effective unless in a writing executed by the parties,

unless otherwise provided for in this Agreement. This Agreement binds and

benefits the parties and their successors and assigns. This Agreement has

been made under the laws of the State of Indiana, and such laws will control

its interpretation.

Dkt. 132-2 at 5, 8, 10 (capitalization and bold in original). Drawing on these provisions,

CMW alleges that by initiating this environmental cleanup litigation and by specifically

seeking an award of attorneys' fees, both of which the Purchase Agreement purportedly

forbids, Graymor breached the terms of the Purchase Agreement. CMW's Answer & Coun-

tercl. ¶ 24, dkt. 49 at 41; dkt. 164 at 11.

The underlying error in CMW's breach-of-contract theory, which neither party has

addressed, emanates from its designation as a "counterclaim," rather than as a defense.

"Federal courts distinguish between when a defendant seeks to reduce the amount a plain-

tiff can recover" and when a defendant seeks to obtain "affirmative relief over and beyond

defeating a claim." SkyBitz Tank Monitoring Corp. v. Fleetwing Corp., No. 22-cv-6294,

2026 WL 266554, at *5 (N.D. Ill. Feb. 2, 2026); see Bell v. Taylor, 827 F.3d 699, 704–05

(7th Cir. 2016). A "defense," on one hand, reflects a "defendant's stated reason why the

plaintiff . . . has no valid case" as well as "why the plaintiff should not recover or establish

that which he seeks by his complaint or petition." Defense, Black's Law Dictionary (12th

ed. 2024). A "counterclaim," on the other hand, describes "[a] claim for relief asserted

against an opposing party after an original claim has been made; [especially] a defendant's

claim in opposition to or as a setoff against the plaintiff's claim." Counterclaim, Black's

Law Dictionary (12th ed. 2024). Another key distinction between defenses and counter-

claims is that "[a] defense cannot possibly be adjudicated separately from the plaintiff's

claim to which it applies; a counterclaim can be." Reiter v. Cooper, 507 U.S. 258, 265

(1993).

Here, CMW's pleading and summary judgment response brief clearly demonstrate

that the purpose of CMW's "counterclaim" is an attempt to foreclose and/or limit Graymor's

entitlement to certain monetary damages. By contrast, CMW does not assert a counterclaim

for monetary damages flowing from an injury caused by Graymor's alleged breach of the

Purchase Agreement. Moreover, the outcome of CMW's "counterclaim"—and whether an

award of damages to Graymor is subject to certain reductions—hinges entirely on CMW's

potential liability to Graymor under the ELA and CERCLA, suggesting that the breach-of-

contract averments cannot possibly be "adjudicated separately" from Graymor's claims.

See id. For these reasons, we hold that CMW's argument that the Purchase Agreement fore-

closes and/or reduces its liability to Graymor is a defense—not a counterclaim. See, e.g.,

Buller v. Owner Operator Indep. Driver Risk Retention Grp., Inc., 461 F. Supp. 2d 757,

767 (S.D. Ill. 2006) (treating purported counterclaim as an affirmative defense where the

counterclaimant alleged grounds for avoiding or reducing liability—not for recovering an

award of damages independent from the merits of the plaintiff's claims); Hinfin Realty

Corp. v. Pittston Co., 206 F.R.D. 350, 354–55 (E.D.N.Y. 2002) (defendant's nominal "coun-

terclaim" in environmental cleanup action was an affirmative defense, not a counterclaim).

Our conclusion that CMW's counterclaim is in actuality an affirmative defense is

further buttressed by the misalignment between CMW's factual allegations and the essen-

tial elements of a breach-of-contract claim. For instance, establishing a breach requires a

showing that the breaching party "fail[ed] to perform all of the obligations that it . . . agreed

to undertake." Breeding v. Kye's Inc., 831 N.E.2d 188, 191 (Ind. Ct. App. 2005). Viewing

CMW's counterclaim allegations through this lens, we cannot understand how Graymor's

alleged misconduct—e.g., initiating this litigation—qualifies as a "fail[ure] to perform,"

id., under Sections 5.4, 9.1, or 14 of the Purchase Agreement. CMW does not cogently or

persuasively explain how Section 9.1's exculpatory "as is" clause concerning conditions at

the Site reflects an enforceable promise by Graymor not to pursue statutory remedies. Sim-

ilarly, CMW's perfunctory contention that Graymor breached Sections 5.4 and 14 of the

Purchase Agreement is unaccompanied by any legal and/or factual support demonstrating

how Graymor's actions constitute breaches thereof.

For these reasons, Graymor's motion for summary judgment shall be granted to the

extent that CMW's breach-of-contract theory fails factually and legally to support any in-

dependent basis for relief. However, where, as here, "a party mistakenly designates a de-

fense as a counterclaim, . . . the court must, if justice requires, treat the pleading as though

it were correctly designated, and may impose terms for doing so." Fed. R. Civ. P. 8(c)(2).

Because the existence of "any contracts between the parties bearing on the allocation of

cleanup costs" is highly relevant to the court's allocation of "response costs among liable

parties" under § 113(f) of CERCLA, CMW shall be permitted to raise defensive arguments

relating to the Purchase Agreement for the purposes of mitigating its liability. Kerr-McGee

Chem. Corp. v. Lefton Iron & Metal Co., 14 F.3d 321, 326 (7th Cir. 1994).

CONCLUSION

For the foregoing reasons, the Court hereby rules as follows:

• Battery Properties's Motion for Partial Summary Judgment is GRANTED as to

Graymor's negligence and negligence per se claims; and DENIED as to its interim

immunity against Graymor's ELA claim. Dkt. 126.

• Graymor's Motion for Partial Summary Judgment is GRANTED as to CMW's

breach-of-contract counterclaim and DENIED as to Graymor's CERCLA and ELA

claims. Dkt. 129.

• CMW's Motion for Partial Summary Judgment is GRANTED as to Graymor's neg-

ligence and negligence per se claims. Dkt. 130.

• Insofar as is relevant to the allocation of cleanup costs among liable parties, CMW's

averments relating to the Purchase Agreement shall be REDESIGNATED as a de-

fense, rather than a counterclaim.

No partial final judgment shall issue.

The following claims remain for trial:

• Graymor's cost recovery claim against Battery Properties and CMW, pursuant to §

107(a) of CERCLA;

• Battery Properties's and CMW's contribution counterclaims against Graymor, pur-

suant to § 113(f) of CERCLA; and

e Graymor's ELA claim against Battery Properties and CMW, pursuant to § 13-30-9-

2 of the Indiana Code, including the resolution of Battery Properties's interim im-

munity under § 13-25-5-18(g) of the Indiana Code.

This matter shall proceed accordingly.

IT IS SO ORDERED.

Date: 31/2026 Tuk, Bous Biker

SARAH EVANS BARKER, JUDGE

United States District Court

Southern District of Indiana

Distribution:

Matthew Thomas Albaugh

Taft Stettinius & Hollister LLP

malbaugh@taftlaw.com

Joseph C. Chapelle

BARNES & THORNBURG, LLP (Indianapolis)

joe.chapelle@btlaw.com

Mark Jason Crandley

BARNES & THORNBURG, LLP (Indianapolis)

mcrandley@btlaw.com

John Paul Fischer, Jr.

BARNES & THORNBURG, LLP (Indianapolis)

fischer@btlaw.com

Kristin Leigh Froehle

Barnes & Thornburg LLP

kristin. froehle@btlaw.com

David R. Gillay

Barnes & Thornburg

david.gillay@btlaw.com

40

Edward S. Griggs

BARNES & THORNBURG, LLP (Indianapolis)

sean.griggs@btlaw.com

David Guevara

TAFT STETTINIUS & HOLLISTER LLP (Indianapolis)

dguevara@taftlaw.com

David Hatchett

HATCHETT & HAUCK LLP

david.hatchett@h2lawyers.com

Michael Jonathan Reeder

HATCHETT & HAUCK LLP

mike.reeder@h2lawyers.com

Edward Henry Satchwill, III

Office of the Indiana Attorney General

edward.satchwill@btlaw.com

Clayton Smith

Taft Stettinius & Hollister LLP

cjsmith@taftlaw.com

William Philip Sweet

Taft Stettinius & Hollister LLP

wsweet@taftlaw.com

Clarissa Vaillancourt

Barnes & Thornburg LLP

claire.vaillancourt@btlaw.com