didn't cause or contribute to any of the contamination that's at issue in this case major's party to this case solely based on its current ownership and operation its business on three of four parcels that are at issue tool worked with the city of indianapolis to redevelop those parcels and it has built a world class manufacturing facility there it's really kind of amazing what it looked like before and what it looks like now  least the property of the early property from the city and in its agreement with the city it not only agreed to build the syllabi at an expenditure of about twenty million dollars but it also agreed to provide certain jobs and those jobs were to be provided at a certain way not only cleaned up the properties put them back to good use and while it undertook all of these activities major did everything it could to protect itself from liability it perform phase one environmental side assessments on the properties that acquired and as i said it work to clean up the contamination caused by others participating in or finding the excavation of about fifty thousand tons of soil from the three propert however the district court found that major did not satisfy the all appropriate in theories requirements for two of those three properties that was the earle property and that is that her property the district court found that major costs and despite the new burdens failure to comply with multiple provisions of the national contingency plan as required for recovery and then further on the subject of damages the district court committed an error in failing to assign zimmer who's a party to this case but not before you today because they failed to appear or respond and were defaulted in the case a default judgment was then entered against them was your judgment operation of law there were facts and we believe that the court's decision in that regard was going to air because of the default entered against them or being allegations played against them or were taken as true those allegations included all of the requisite elements for circle liability so we believe the court's error was in finding that there was not record evidence in front of it to allow it to apportion any liability to use them or in its decision but there was no now as to the images the court found both at the summary judgment stage and after the bench trial that the harm in this case was divisible but it failed to apportion that harm which is the nd step in the disability analysis amongst the parties instead it stands straight to allocation which is an equitable analysis and that's apparent in the court's findings and conclusions because it uses those terms interchangeabl complied with the standard for finding that liability was visible in the st instance yes we do believe that the district court complied with the standard in finding divisibility and there are multiple bases upon which a court can determine that a harm is the visible and there was evidence in the record before the court as to the visibility both from major expert rob walker who offer divisibility opinion based on the contributions of the parties to the contamination and based on out of of moran's expert witnesses testimony and he testified regarding  distinct geographic areas of contamination and at nine contiguous areas if you the hercules case talked about that type of does avail the visibility analysis and he talked or he determined percentages of liability and recommended those to the court based on the geographic areas of the releases well sure but my my expectation is that going to print is going to say well we have an expert that offered a counterpoint on all of that and the presumption in this area is that liability is joint and several not divisible not subject to apportion correct that is the presumption of course that is rebuttable and before the district court and in fact found different did not offer an opinion as to the visibility it rested on the argument that the heart here was joined several so the only opinions before the court as to the visibility were those offered by the expert witnesses proffered by major is a record argument based upon the two expert opinions and leave it at that or are you asking us to look behind that and look a little deeper and if we do look look a little deeper where would that leave us on that  think there is a risk that there's no question that the district court latched onto the term theoretical the did we use that term of course in our nd and  opinion i'm not at all sure that it grounds itself in burlington northern no and so what i'm wondering about is if theoretical means that you can approach the question of divisibility at a high level of generality i'm not sure that that makes sense what it what is what what's the legal content of theoretical well i think it  is looking at whether the evidence provided a basis and and i don't necessarily think it has to be at least in this case looking at the facts from a high level the testimony was specific science and based on a scientific analysis so it's at least as far as iran's experts testimony on divisibility it was you know more than theoretical it was concrete he performed analysis of sampling data at  difficulty with trying to apportion liability because of the passage of time because of the removal of soil because of the commingling and all of that the reason that he then offers an opinion of course is because he was retained to do so and so he draws upon his expertise and he does the best that he can that way but what i don't know is if is if the best  enough to get you out from under the presumption that liability is joint and several that liabilities not divisible i believe that was certainly you know this type of case isn't  one of the cases and i've ever viewed many of them where courts found that there was no basis for the ability where discharges were made for example into a body of water where they commingled but here you do you have the separate geographic areas of release and those chemical differences based as to divide the liability here and even regardless of the divisibility elsa's we believe that the  should have given major tool no why ability based on the fact that it was a bona fide prospective purchaser not only the moran property as the court found but also these never heard of property earth off property is particularly interesting because it's undisputed by any of the party he's been recognized by the four that major satisfied all the requirements of a p p when it acquired the property in two thousand and thirteen it performed a phase one assessment in january of two thousand and thirteen and then took title later in january of thirteen so as to the  regulations that comply with the letter of the regulations of the court the district court here went on to put a secondary requirement on major that not only did it need to do that before acquisition of the property that back when it leased the property from the city it also needed to qualify as a v f p and perform a phase one at that time no major did so just because the earning property was so impacted but that and now also that phase one wasn't updated within th time period necessary so it certainly didn't that did those things but what is interesting is that the circle regulations allowing for tenant protections as if the f p p didn't even come into existence until twenty satisfied all appropriate and marry and and would qualify as a and then ordered that the url property be closed it said the property pose no further threat to the human health care to the environment told the consultant to remove any monitoring wells and essentially everyone went on their way thinking that everything they had done and you know that could be done had been done and this is significant because of parties can't provide for their own protection by by performing being a phase one and you know doing all the right thing even getting a comfort letter there after then the purposes of circle are not being served and those purposes as stated by congress were to encourage the redevelopment of brown fields and in particular that's the purpose of the b f p p liability exemption similarly on these similar property a court found that major was not to be f p p by imposing additional requirements not found in the regulations at the time the phase one because of her property was performed the regulations said that and these are these are the ai final rule as promulgated it said there are two options to satisfy you can either show that you satisfy every section of the federal regulation individually or you can show that you satisfy a s t m standard implications not just for major but for any other property purchaser during that time who relied on a phase one environmental assessment and deciding to acquire and redevelopment aro note after days of trial that what dr lot was able to do he relied upon a database that had at least thirty reports a point the point of this is you've got four environmental sites with the environmental investigation into mediations going back many many years the database was robust database had thousands of individual data for there really isn't just i don't what he was able to do with that and we spent a lot of time at trial and this is where the theoretical becomes reasonable and it's the facts and it's the science we spent lots of time looking at the degree to which its understand at the commonsense level and its understanding at the science if you're trying to figure out who contributed was the shallow soil impacts with coronated teach you so much and he was able to do that to be clear about what dr love did the up gradient sources that we talked about which is my client brant zimmer earl he allocated that based upon those shallow soil numbers and i'll get to why use those shelves for purposes of allocation between the up gradient and by do for and he used every single groundwater datapoint ever ever created thousands of them and as he looked at the testimony which the court cites that was at trial and candidly is uncontroverted we feel dr love was the only true expert on a on a portion understanding that this crew it believes that rob walker drops that we think that love is only one that looked at it but this was really key testimony and i think the court ought to look at that when dr love was looking at the ground water concentrations he found the fall so when you look at the ground water concentration and how they change as you move from upgrading at the downgrade right at the upper radiant boundary of buntu from prophesy both the magnitude of the concentration as well as the chemical constituents three and it is a fingerprint that can be used to distinguish and he was able to do that here and let me and so not only does and mr dr love has a lot of experience in this judge and and i believe i demanded integrity and i believe he has integrity i we need that truth and he had looked at these kinds of situations before and whether the  able to do a harm and mass contribution based on that but the finger print can be used to determine contribution in trying to decide how this is the case where how is your question at this c or his opinion should be relied upon entirely and then nd that his and his analysis was sufficient to support the triumph of the post trial findings  is that fair yeah absolutely ok so what i'm trying to do what i'm still hung up on though is he did the district court do enough factually to did to determine that the presumption of joint liability should not apply and that liability should be divisible here because everything you're talking about is very fact very evidence intensive it you're drawing upon the trial record but when you look at the summary judgment opinion that was the basis for determining that liability would be divisible there's not there's not a whole lot there well what was submitted at that time was his report was a subsequent affidavit for clarification his report says says the judgment all at the same time and candidly dr love survives the dog or challenge i think appropriately because of the kind of analysis he did and then following that she relied upon it for summary judgment to find that print responds by saying hold on hold on there's been a lot of time passed there's been a lot of soil removed you know not all of the stuff is fungible as he may think it is i mean he's traceable as he may think it is the district court responds by saying he doesn't just those are just practical problems we're trying to figure twelve theoretical level and that's when i go i want i don't know what that means to try to figure out whether liability is joint and several or divisible at a theoretical level well as i understand the law there has to be a reasonable basis and that's what i believe the target is and i think we more than hit it there's a reasonable basis based on the facts and science that's that's what we're held to mr bowman you're taking that from the acutest case this reasonable basis because because this talks about it doesn't have to be absolute certainty but it's got to be practiced in this area a lot here are some of the challenges that were in the record these or were some that we didn't have what if the parties had operated to greasing operations on the same propert at the same time or is another word miranda greased on hurdler ertl degree summer you know we had three or four distinct areas where parties remained loyal to their property we didn't have that you probably face cases where you have multiple saying operations were so close that the shallows of all impacts actually touched each other well that would be a tough situation we don't have that these are four distinct areas and here's the interesting point when people talk about the rare case i mean you would have to model we didn't have that we had upgraded property owners with t c three molecules down gradient for molecules it work perhaps it is rare but as i've said i've dealt with this defense for so many years i don't think i'm i don't think i'm playing the lottery i think i'm finding facts and science at work and i do think we have facts in science that work for just being areas three case this is a situation where one of several entities that own property upgrading from an area where there was a groundwater plume took the initiative to go out and remedy that situation only one  client we work very closely with the indiana department of environmental management the regulatory body here in the state and what we're trying to overcome now are evidence issues regarding whether there is in fact  discharge whether there is a problem or whether our costs are reasonable or saying is obstacles placed for the other side to play their fair share and really were i think we started considering the fair where the t c e came from or what geographic spots within the relative property and issue where it stems from the question is harm is the actual harm caused by the parties to visible no one has talked to you about that yesterday what you've heard it's discussion about where these various properties are and whether cheesy molecules may have come from them at some point in the past and you can go back and do history on that but that's not the question that would go into the divisibility analysis it starts with the question of whether it's even possible to take this harm and separate it into its component parts not whether you can look at different properties and how much they discharge for the way i look at this is if you had four people at a table and they toasted the red wine glasses and each of the red wine glasses spilled when it was so sad we all know it's the same material it got out of the white tablecloth and made a stain you can't go back and pick apart how much of each person's why not only is it still relevant there's a stain everybody contributed so that's thing that's what happened here each of these properties regardless of whether major actually just started to see their owners of property make it so that i'm a little more detail than that but each of these properties discharge we don't know basic questions about that such as the volume the speed of the transfer when they occurred or talking decades of time in which this occurred and then trying to make estimates back but we do know  all these parties including my client has a share in just charging t c mounted but you can't go back and trace who's t c molecules are causing the base or to push up into any of that individual home or into the park you can't separate it out it's a co mingled and when you haven't been cited by either of our opposing parties respectfully is a case showing with this kind of commingle plume that's causing injury a single injury to the downstream residence honor and the district or gatekeeping function and before we get into this expert analysis and expert a saying this next is the same that we want the courts to look at whether the harmony because of how it got there is the harm it issue itself necessarily case but that has to be worse off as you can't even be divided theoretically once the white lines on the table cloth is there we all have to clean it under the nd issue on our cross appeal  nd bite of the what happened when the two major properties the herbal property and the zimmer property they initially had a lease after two thousand to when this provision said that you can't be an owner or tenant they were tenant as a leasing party it didn't meet the standard so they shouldn't have been a v f p that fact doesn't get washed away by the fact that they later decided to purchase the property and they're claiming that further just charges addressed this charges that are there the facts on this were really in dispute or to trial they were show that that major did nothing they didn't take action to remy prevent future just charges in and we should be excused from that and that's not the way it is for works congress has shown that it is capable of applying a substantial compliance role there is no such thing when it comes to the b a p p defense and logically there is a circle as a fraud remedial statues intended to go back and allow people in my client's position to find remedies for cleaning  surface it's going to be a little bit of a higher bar and you have to meet the actual standards for your not going to get that protection in so close enough doesn't count and the only case that cited to you is that a district court opinion out of south carolina that didn't even say with what major tells you it says it said that there might have been some inconsistency in the paperwork we don't have inconsistency we have failure to meet standards for instance the base was for the paper property didn't even have a questionnaire that was required to be filled out as part of the state's one survey so basic information given from clients it wasn't even the right client it was the wrong entity so you know you can't take someone else's face and rely on it and it didn't have the certification from an environmental professional is required on the national contingency program arguments again this is an area where here after bench trial i think we've all recognize that today and the facts related to this were all found by the district court as to the level of compliance with the n c p this was a an issue decision have all held that you know complying with and working with the pertinent state agency that carries out regulation is is going to satisfy the n c p requirements at least   requirements we communicated with i don't we filed into the items voluntarily compliance program by our choice we even had i can testify a trial the program coordinator portioned liability where and where can we look in the district court opinion to see what the results of the apportionment were i would be the st person to tell you it's cloudy your honor it could be done with with more precision but if you go into her order she has two different sections where she were st to apportionment right on page twenty nine of her order and on page thirty of her order she was on to out allocation it's very clear how she does this she apportions based on what she has found in the summary judgment and i probably would be helpful if we had more the summary judgment to reproduce within this and then judgment but capability of being apportioned and then actually apportioning liability right because a portion liability it seems to me is is statutorily required in a cost recovery action where you determine that liability is divisible i know you disagree with that it's divisible i got that part of it but if you determine that liability is divisible and it needs to be apportioned you're not asking the things in a very specific context but if you go to page three thousand and thirty one dollars yes for order she says that each of the properties of allocated a certain amount and then reduces or increases based on equitable factors the st step of those she says is allocation but it's really a portion and that's where the confusion lies i mean if if anything it's something that perhaps could have been cleaned up with a non proton country but at the end of the day that's what's happening  certain percentage wise building for that property and is this where you jump off to your argument mr cranley you have to focus on harm rather than cause that's definitely part of it your honor and if the thing that is supposed to be divided or appropriate it is the is the heart of the heart that we look to can this particular harm be sliced up amongst individual sources and here we would say  this is something that can be divided amongst us and it's a single injury caused by a multiple tennis much like the examples given in the restatement provision mr premie let me ask my question slightly differently which will expose my confusion and maybe you can clarify for miss crew who can when i read the post trial opinion and focusing on the pages that you're concentrated on i can't figure out what liability was apportioned how it was apportioned in how the and how from their liability was allocated based upon the equitable factors you know in accordance with with what section one hundred and thirteen dollars africa choir's it all seems to me to be mashed together where terms like apportionment and allocation which i've learned from preparing for this case are in no way synonymous ok are just are affected we deemed synonymous so what's why am i making an observation i'm making an observation because my question is how do you conduct judicial review of this how how how can i figure out where liability was apportioned and whether that reflects a legal or factual error and then separately how can you conduct a judicial review of the one hundred and thirteen after contribution or allocation analysis what what do you look at  here both of those are done based on the findings that the judge made and what the facts are i got that out of it became you tell me where if you said if you want to conduct judicial review of apportionment this is what you should focus on and then if you want to review the allocation based upon the application of the equitable factors here's what you ought to focus on because i can't figure that out here i would say that the whether whether the example of mr bono d rana's allocated seventy five percent of the twenty five percent share attributable to the grandson so what she's saying there is that the moran site is apportioned twenty five other in other words these paragraphs are descriptive of the positions the party was the parties were taking where are the court's findings and which spike that home is she she is telling us the evidence portion fifty percent of the total arms and responsible for one hundred percent of  the appropriation together are you are you ok so that's interesting the way you say that are you sure about that that there is no need to separate because one no cost recovery under one hundred and seven as i understand is a distinct concept from contribution liability that's allocated under one hundred and thirteen ask you can't you can't just put it all in one hopper and mix them together no i agree with that your honor you have to do the one of seven st you have to determine that there are there are there actually is a divisibility and if there is an appropriation the only way it's getting mixed in the hopper here is that instead of doing  hundred and then you have an allocation done within those different properties and it's consistent with the way the parties have presented the case both in from the chopper and here when we're thinking property property to prop because there's different issues and considerations that go in and each of property and of course your honor we don't even get into this we find at the gatekeeping step that there was no potential to visibility here because we have a single commingle plume that caused a single injury that is so singular in nature that that any of those standards would apply don't think the court nestle has to reach that i do agree that that's what the th circuit said and i think you're honest now to correct me if i'm going to put your  case but really the controlling standard is whether it's even capable of being divided on a burlington and we clearly don't have that here given the commingle nature of this  group you guys put your sound on but thank you for the reminder i didn't get too far and i think the confusion over the aforesaid meant issue is completely understandable given given the the finding that mine analogy if the apportionment analysis is skeptic major who wasn't even present when this messy toast occurred doesn't get the benefit of its absence and because raising given that observation that you make sure you're right i think the reason you say that is because you're just interpreted what the court wrote on page thirty of it's opinion where there's there's just no place that you can see where the liability was apportioned or received clearly so my question for you is what's the consequence of that for us in your view and i believe that the court could read  end to the district court to allow the district court to appropriately consider causation and a fortune liability in accordance with the statute so that this or court's ruling as to the initiative when it acquired these properties it worked with the regulators and worked with the city and purchased debated and then a massive clean up that also plays into the what i believe it is an absurd argument that major did nothing to prevent future releases its spent millions of dollars on these properties the district court never brought out ongoing requirements for the properties as being an issue with major's time the only thing on the b defense that the just or corps ever took issue with with major was all appropriate and theories and it's not necessarily a retro activity argument argument on majors are with respect to the the  key defenses it is looking at the regulations that were in place at the time those studies were conducted so they're not saying you know that they did that you know this retroactive application is the issue it's that they complied with the regulations at the time and i would encourage the court to take a look at public law one i was seven in one hundred and eighteen dollars because it is only an owner under that section that can qualif cranley also mentioned that qualify qualifying as a lengthy could be washed away by later falk lying as an owner and there is no authority cited on that and major in fact believes that that should be the case to comply with the stated purposes of surplus which is to provide protections for people who purchase and redevelop these properties is tenants who didn't do a phase one maybe they had no idea they were going to purchase a property later then could not cure when they wanted to and acquire the property should be encouraging people to abandon properties and not do the right thing and what circling mr currently mentioned zimmerman i think he was actually talking about m because he said i do grant it is challenging the b f p p saddest granted by the district court on that property we believe it was it was appropriately granted and we would encourage the court to look at the goods and case which talks about the ability of questioning and he did not offer the opinions of the court ascribed to him in its findings of fact inclusions of law in fact he stated that certain information was not provided that the court then said statutory protections or purchaser purchasers of property who do the right thing like major it here who do all the investigations and then put the property back in to good use it's important the courts recognize those are going to see a chilling effect on people wanting to acquire properties like this and turn them from bees eyesores into producers of income and tax revenue thank you thank you all