UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

RONALD SCHMUCKER, et al.,

Plaintiffs,

v.

JOHNSON CONTROLS, INC., et al.,

Defendants.

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Case No. 3:14-cv-1593 JD

OPINION AND ORDER

Johnson Controls, Inc. used to operate a manufacturing facility in Goshen, Indiana. Over 

the years, TCE and other chemicals were released into the ground at the facility. This 

contaminated the soil at the site and also created a plume of contaminated groundwater extending

into an adjacent residential neighborhood. When the groundwater contamination was discovered 

off-site about thirty years ago, all of the homes nearby were connected to city waterlines to 

prevent exposure to contaminated water from private wells. About ten years ago, Johnson 

Controls learned that vapors from the contamination were entering the indoor air in some homes 

in the neighborhood, so vapor mitigation systems were installed in those homes. Not a single 

indoor air sample has exceeded the applicable screening level since. Johnson Controls regularly 

monitors the contamination under the supervision of the state agency and has undertaken several 

remediation activities, but contamination still exists both on- and off-site.

Five individuals who live in or own homes by the site filed this suit under the Resource 

Conservation and Recovery Act. They claimed that Johnson Controls was in violation of its 

obligations under that Act and that the contamination may present an endangerment to their 

health and the environment. The Court previously granted summary judgment on the “violation” 

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claim but held a bench trial on the “endangerment” claim. The Court now sets forth its findings 

of fact and conclusions of law on that claim.

For the reasons that follow, the Court finds in favor of Johnson Controls. Though 

contamination still exists on- and off-site, the Plaintiffs have not shown that the contamination 

may present an endangerment that is both imminent and substantial. The groundwater 

contamination does not pose a threat to the city wellfield, nor is there any non-speculative threat 

to drinking water through private wells or city waterlines. The contamination does not endanger 

the environment, either. As to vapor intrusion, any endangerment that may have existed has 

already been handled through the installation of vapor mitigation systems. Sampling data and 

other lines of evidence prove that those systems are successfully preventing any threat to health 

through exposure to vapors, just as they were meant to do, and just as they are counted on to do 

at many other sites.

The Plaintiffs express understandable frustration that contamination still exists in their 

neighborhood after all these years. Injunctive relief is only available on this claim when the 

contamination may present an imminent and substantial endangerment, though. Otherwise, the 

Act places responsibility on the state or federal agency to oversee remediation. The Indiana 

Department of Environmental Management is overseeing Johnson Controls’ ongoing 

remediation through its Voluntary Remediation Program. The Plaintiffs have submitted 

comments to the agency in response to Johnson Controls’ most recent remediation plan, and the 

agency is still evaluating that plan. But because the Plaintiffs have not proven that the 

contamination may present an imminent and substantial endangerment to health or the 

environment, no injunctive relief through the Act’s citizen-suit provision is warranted.

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I. FINDINGS OF FACT

A. History of TCE Contamination

This case involves contamination by chlorinated volatile organic compounds (cVOCs). 

These compounds consist of an ethene molecule and a number of chlorine molecules. As the 

compounds degrade, they lose one chlorine molecule at a time, producing daughter products. 

Tetrachloroethylene, also known as perchloroethylene or PCE, is composed of four chlorine 

molecules. As PCE degrades and loses one chlorine molecule, it becomes trichloroethylene, or 

TCE. TCE is the primary contaminant in question here, and is the only one upon which the 

Plaintiffs’ endangerment-to-health claim is based. TCE was commonly used in industrial settings 

as a degreaser. It is a known carcinogen and can also produce a variety of toxic effects. As TCE 

loses chlorine molecules, it becomes cis-1,2 dichloroethene (DCE) (two chlorines), and then 

vinyl chloride (one chlorine). Stripping away the last chlorine produces ethene, which is 

harmless.

From 1937 until 2006, Johnson Controls and its predecessor operated a manufacturing 

facility in Goshen, Indiana. During its operations at that facility, Johnson Controls manufactured 

control devices for measuring temperature, pressure, and liquid flow that were used in 

commercial heating, refrigeration, and environmental control systems. Certain of those 

manufacturing processes entailed the use of a vapor degreaser that used the solvent TCE, though

Johnson Controls ceased using TCE at the site by 1998. Johnson Controls was a generator of 

hazardous waste under the Resource Conservation and Recovery Act, and it contributed to the 

handling, storage, treatment, transportation, or disposal of solid and hazardous waste.

After the passage of the Resource Conservation and Recovery Act, Johnson Controls 

elected to pursue closure of its waste management units instead of seeking a permit for the 

treatment, storage, and disposal of hazardous waste. In 1991, Johnson Controls conducted soil 

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and groundwater sampling as part of its closure activities, and it discovered a large amount of 

TCE contamination in onsite soil and groundwater. Further investigation revealed a plume of 

contamination extending downgradient from the site, into a residential neighborhood. In early 

1992, Johnson Controls identified homes in the vicinity of the site that might have private wells, 

and those homes were each connected to the municipal water supply to avoid exposure to 

contaminated groundwater.

The following figure is a more recent depiction of the scope of the plume of groundwater 

contamination:

[Jx. 2, fig. 71

]. The red line depicts the approximate area in which the shallow groundwater 

contamination exceeds the regulatory screening level (for vapor intrusion). The Johnson Controls 

1 The Court cites to the trial exhibits as Jx. (Joint Exhibit), Px. (Plaintiffs’ Exhibit), and Dx. 

(Defense Exhibit). The Court cites to the transcript as Tr. and to docket entries as DE.

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site (at which the buildings have since been demolished, leaving only the building slab) is at the 

right side of that area. To the site’s left is a neighborhood consisting primarily of residences, plus 

some commercial buildings. At the far left (west) end of the plume is Goshen High School. All 

of the homes in that area are connected to municipal water. Johnson Controls has also conducted 

follow-up investigations to confirm that all structures in that area and farther downgradient (to

the west) past the high school receive city water bills and do not have private wells in use.

High levels of TCE contamination have consistently been detected in the soils at the site. 

Though no off-site soil contamination exists, the on-site soil contaminated the groundwater, 

which then carried the contamination into the neighborhood, as shown above. The water table in 

the area is about ten to fifteen feet below ground level. The groundwater contamination at the 

site is relatively shallow, but it becomes deeper as the groundwater carries the contamination offsite, into the neighborhood, leading to contamination in both the deep and shallow groundwater. 

The following figure depicts the underground geology and the areas of contamination across a 

cross-section of the plume:

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[Jx. 1, app. B]. The TCE contamination (depicted in orange) mostly stays near the ground 

surface. As the contamination gets farther from the site, the contamination consists primarily of 

the degradation products of DCE (blue) and vinyl chloride (green), since the TCE naturally 

degrades over time.

When Johnson Controls discovered the groundwater contamination in the 1990s, it 

expressed concern that the contamination may reach one of the wellfields from which the City of 

Goshen draws its drinking water, as the site is located about a mile southeast of the North 

Wellfield. In 1997, however, the City of Goshen had a wellhead protection report prepared, as 

required by the Safe Drinking Water Act. That report, prepared by Peerless, determined that the 

groundwater in the area of the wellfield generally flows from the northeast, and that the wellfield 

primarily draws its water from that direction. The report estimated the area from which the 

wellfield draws water over one-year and five-year periods. The Johnson Controls site, which is to 

the southeast of the wellfield, was not within either of those capture zones, and the site was not 

identified as a potential source of contamination for the wellfield. [Dx. V-2]. The Peerless report

has been periodically reviewed since it was issued, and has not materially changed. [Dx. L-4].

In 2011, Johnson Controls also began to investigate the possibility of vapor intrusion by 

TCE. In a typical vapor intrusion pathway, contamination in the shallow groundwater volatizes 

into vapors.2 The vapors then rise through the soil towards the surface. When those vapors 

encounter a structure, they can enter the structure through cracks or other openings, and can thus 

cause indoor air to be contaminated. The vapors can also infiltrate sewer lines or other 

preferential pathways and travel to and enter a structure through those avenues. Johnson Controls 

2 As explained below, the Court does not find that the neighborhood is at risk of vapor intrusion 

through lateral diffusion of vapors through the soil from the site into the neighborhood.

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had previously believed that the off-site contamination was only in the deeper groundwater, 

which does not present a risk of vapor intrusion. Johnson Controls discovered, however, that the 

shallow groundwater was contaminated as well, so it tested the subslab vapor levels and then 

followed up with indoor air tests.

Many of the subslab tests revealed vapors far in excess of the regulatory screening level, 

and fifteen homes had tests exceed the then-applicable screening level in their indoor air or 

crawlspace. All fifteen of those homes (depicted in yellow in the figure on page 4) had vapor 

mitigation systems installed.3 Vapor mitigation systems, which are commonly used for radon, 

draw air from below the slab and vent it to the outside air. By creating depressurized conditions 

below the slab, they inhibit vapors from entering the structures. Vapor mitigation systems are 

considered the presumptive remedy for vapor intrusion, and they are used for that purpose at 

many sites.

The mitigated homes have all had multiple rounds of testing conducted since the systems 

were installed. Several of the homes have not had any TCE detected at all since then. Though 

TCE has been detected in other homes, any detections have been at much lower levels, and no 

indoor air test has exceeded the agency screening levels since the systems’ installation. In 

structures without mitigation systems, no indoor air test has ever exceeded the applicable 

screening level. Indoor air at Goshen High School has been tested as well, and no TCE has ever 

been detected in those tests.

Subslab vapors in the neighborhood have reduced substantially since 2011, too. Though 

the homes with mitigation systems have not had the subslab vapors tested again (as indoor air 

tests in those homes confirm no vapor intrusion above screening levels), other homes have had 

3 The homes with crawlspaces had crawlspace ventilation systems installed in those areas.

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the subslab vapors tested, and none of those tests have exceeded the subslab screening level since 

2011. Some commercial structures have had subslab vapors exceed the screening level in recent 

tests, though, including the Interra Credit Union, which is in the neighborhood, and the Weiland 

property, which is across the street from and side-gradient to the neighborhood. No indoor air 

test in those structures has exceeded the screening level, however. TCE vapors have also been 

detected in two sewer lines in the area, but as already noted, no TCE has been detected above 

screening levels in any structure since 2011. TCE continues to be detected above the applicable 

screening levels in the shallow groundwater in the plume, though.4

B. Remedial Activities

Since 1996, Johnson Controls has participated in Indiana’s Voluntary Remediation 

Program, and it has conducted a number of remedial activities under the supervision of the 

Indiana Department of Environmental Management (IDEM). Johnson Controls operated a 

“pump and treat” system from 1994 to 2012. This system pumped contaminated groundwater 

from the ground, treated it, and then discharged the treated groundwater. Over the course of its 

operation, this system removed about 11,000 pounds of contaminants, including over 6,000 

pounds of TCE. Eventually, however, some of the pumping wells were no longer producing any 

contaminants, and others reached a plateau at lower concentrations, so Johnson Controls shut the 

system down with IDEM’s approval.

4 Dr. Keramida opined that the soil and groundwater screening levels represent levels above 

which unacceptable vapors are “likely” to result. [E.g., 425-1 ¶¶ 41, 42]. To the contrary, the 

screening levels are conservative and are based on the 95th percentile of attenuation rates. [Tr. 

573]. Thus, the screening levels actually represent levels at which producing that effect is 

unlikely. [Tr. 577–79 (“[Screening levels] are upper-bound levels. So most buildings would be --

95 percent at least would be expected to show greater attenuation.”); Jx. 9 p. 16 (“Because of the 

protective assumptions incorporated into screening levels, IDEM expects that site-specific levels 

will nearly always exceed screening levels.”)].

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Johnson Controls has also conducted some targeted remediation of the soils at the site. In 

2015, it applied a soil treatment (emulsified zero valent iron) in two areas of very highly elevated 

TCE contamination. This treatment involved mixing iron and vegetable oil into the soil to 

promote the TCE’s breakdown into innocuous end products. After six months, the concentrations 

of TCE in those two areas had been reduced by about 95 percent. Elevated concentrations of 

TCE in the soil still exist at many areas across the site, though.

Most recently, Johnson Controls injected Enhanced Reductive Dechlorination treatment 

walls to treat the shallow groundwater. This treatment strategy involves injecting bacteria and 

vegetable oil to the subsurface in order to breakdown the TCE. The vegetable oil produces 

anaerobic conditions, which allow the bacteria to remove chlorines from the TCE, ultimately 

producing an innocuous gas. Johnson Controls began by injecting a pilot treatment wall over the 

core of the plume along the site’s western border, nearest to the neighborhood. That portion of 

the treatment wall is now mature and has been highly effective. In the immediate area of the 

treatment wall, TCE has been reduced by 99 percent, to even within acceptable levels for 

drinking water. Other data shows that the treatment wall is functioning well, including large 

increases in ethene, the non-toxic end-product.

The treatment zone has begun to extend downgradient into the neighborhood, as well. 

The effects off-site have not yet been as pronounced, and it is still uncertain how far 

downgradient the treatment zone will extend. Even if the treatment zone does not degrade the 

TCE throughout the plume, however, it can still be expected to have beneficial effects 

downgradient. First, by treating the groundwater at the site’s boundary, the treatment wall will 

prevent any further loading of contamination from the site, where the soil and groundwater 

contamination remains elevated. And relatedly, because the groundwater that flows into the 

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neighborhood will be free of TCE, the concentrations of TCE in the neighborhood should 

gradually reduce through the process of attenuation.

After initial tests proved the pilot wall effective, Johnson Controls extended the western 

wall across the length of the site. It also installed two other treatment walls, one near the middle 

of the site and the other towards the eastern edge. Preliminary data reflect that those treatment 

walls are progressing, but they have not yet reached full maturity, as treatment walls generally 

take about a year to mature and only about six months of data are available.

Johnson Controls has submitted a Revised Remediation Work Plan for IDEM’s approval 

as part of the Voluntary Remediation Program. That plan proposes to remediate the shallow 

groundwater through the treatment walls just discussed, which have already been injected. 

Johnson Controls proposes to continue monitoring those treatment walls and to make further 

injections as appropriate. Johnson Controls further proposes to remove the building slab and 

pavement at the site and to remove or remediate any soil at the site that exceeds the directcontact screening level for TCE. Johnson Controls intends to continue to operate and maintain 

the vapor mitigation systems in the neighborhood until the groundwater in the neighborhood has 

been sufficiently remediated.

After Johnson Controls submitted its work plan, IDEM received public comments from 

the Plaintiffs’ counsel. IDEM then required Johnson Controls to make revisions to the plan, 

which Johnson Controls did. IDEM then accepted another round of comments and held a public 

hearing at which the Plaintiffs’ counsel and various residents spoke. IDEM has not yet granted 

formal approval for the plan. The Voluntary Remediation Program in which Johnson Controls is 

participating does not have enforcement power. However, if IDEM determined that the site 

posed an endangerment, or that Johnson Controls was not acting in good faith or not acting in a 

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timely manner, it could terminate Johnson Controls from the Voluntary Remediation Program 

and commence an enforcement action.

C. This Suit

The Plaintiffs in this suit own or live in three properties in the neighborhood over the 

plume. Mr. Stewart’s home abuts the Johnson Controls site, and the VanDiepenbos and 

Schmucker homes are immediately to its west. Each of those homes had TCE vapors detected in 

their indoor air in 2011, so they each have vapor mitigation systems. The Plaintiffs filed this 

action under the Resource Conservation and Recovery Act against Johnson Controls and Tocon 

Holdings, LLC. (Tocon has owned the site since 2007, but has not participated in this action and 

is in default). They asserted claims under both of the Act’s citizen-suit provisions. First, they 

asserted that Johnson Controls is in violation of its obligations under the Act, under 42 U.S.C. 

§ 6972(a)(1)(A). Second, they asserted that the contamination may present an imminent and 

substantial endangerment to health or the environment, under 42 U.S.C. § 6972(a)(1)(B). They 

seek injunctive relief requiring Johnson Controls to remediate the soil at the site, and the shallow 

and deep groundwater both on- and off-site.

The Court previously granted summary judgment for Johnson Controls on the “violation” 

claim but denied cross-motions for summary judgment on the “endangerment” claim. The Court 

thus held a bench trial over seven days, after which it accepted post-trial filings. The matter is 

now ripe for ruling.

II. PRELIMINARY MOTIONS

Before proceeding to the substance of the Plaintiffs’ claims, the Court notes that Johnson 

Controls filed several motions to strike testimony by the Plaintiffs’ experts, Dr. Keramida and 

Dr. Orris. Johnson Controls first argues that the experts’ written testimony exceeded the scope of 

their expert reports. Johnson Controls also objected at trial to various testimony and exhibits on 

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that basis, and the Court took those objections under advisement. The Court declines to strike 

any testimony on this ground. Many of the statements at issue were adequately disclosed in the 

expert reports. And to the extent any statements impermissibly stray beyond the expert reports, 

those statements would not affect the outcome. Accordingly, the Court denies the first two 

motions to strike and overrules the objections on this ground.

5

Johnson Controls also moved to strike the experts’ opinions under Rule 702. The Court 

declines to resolve these motions on their substance. As explained in detail below in discussing 

the claims on their merits, the Court does not place weight on the challenged testimony even 

assuming it is admissible. Because the Court does not credit the testimony (or has decided that it 

does not affect the outcome), the Court need not determine whether the testimony falls short of 

Rule 702 as well. For example, Johnson Controls challenges Dr. Keramida’s opinion that the 

contamination is at risk of reaching the wellfield. As discussed below, Johnson Controls’ 

criticisms in that respect are mostly well-taken, and the Court is more persuaded by Johnson 

Controls’ expert and other evidence. See LAJIM, LLC v. Gen’l Elec. Co., 917 F.3d 933, 946 (7th 

Cir. 2019) (“In a case of dueling experts, . . . it is left to the trier of fact . . . to decide how to 

weigh the competing expert testimony.”). Whether or not Dr. Keramida’s opinion satisfies Rule 

702 would not change the weight the Court gives to it, so the Court need not strike the opinion.

The same goes for the other opinions at issue. The Court therefore denies these motions to strike 

as moot.

5 Some of the exhibits Johnson Controls objected to in its post-trial submission were exhibits it 

explicitly said at trial it had no objection to and that were thus admitted without objection 

(Exhibits Px. 63, 64, 81, and 87). Those objections are waived.

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III. CONCLUSIONS OF LAW6

The Plaintiffs seek injunctive relief under the Resource Conservation and Recovery Act, 

which provides a civil action “against any person . . . who has contributed . . . to the past or 

present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste 

which may present an imminent and substantial endangerment to health or the environment.” 42 

U.S.C. § 6972(a)(1)(B). When that standard is met, a court may restrain the person or “order 

such person to take such other action as may be necessary” to eliminate that danger. Id.

§ 6972(a); LAJIM, 917 F.3d at 949.

An endangerment claim has three elements: (1) that the defendant has generated solid or 

hazardous waste; (2) that the defendant is contributing or has contributed to the handling of this 

waste; and (3) that this waste may present an imminent and substantial endangerment to health or 

the environment. Liebhart v. SPX Corp., 917 F.3d 952, 958 (7th Cir. 2019); LAJIM, 917 F.3d at 

941. The parties agree that the first two elements are met. [DE 421, 394, 390]. The only disputed 

element is whether the contamination “may present an imminent and substantial endangerment to 

health or the environment.” The parties also dispute what, if any, injunctive relief should be 

imposed should the Plaintiffs prevail on that issue.

Several of those terms warrant further explanation. First, the term “endangerment” means 

“a threatened or potential harm and does not require proof of actual harm.” Simsbury-Avon Pres. 

Club, Inc. v. Metacon Gun Club, Inc., 575 F.3d 199, 211 (2d Cir. 2009). The statute requires that 

the contamination “may present” such an endangerment. 42 U.S.C. § 6972(a)(1)(B). This 

wording has been construed as “expansive” and as meant “to confer upon courts the authority to 

grant affirmative equitable relief to the extent necessary to eliminate any risks posed by toxic 

6 This section notes further findings of fact where pertinent.

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waste.” Maine People’s Alliance & Nat. Res. Def. Council. v. Mallinckrodt, Inc., 471 F.3d 277, 

287 (1st Cir. 2006); see also Liebhart, 917 F.3d at 958. The combination of these two 

probabilistic terms means that plaintiffs need only demonstrate “a reasonable prospect of future 

harm,” “so long as the threat is near-term and involves potentially serious harm.” Mallinckrodt, 

471 F.3d at 296. At the same time, “there is a limit to how far the tentativeness of the word may 

can carry a plaintiff”; “there is no endangerment unless the present or imminent situation can be 

shown to present a risk of (later) harm.” Crandall v. City & Cty. of Denver, Colo., 594 F.3d 

1231, 1238 (10th Cir. 2010); see also Avondale Fed. Sav. Bank v. Amoco Oil Co., 170 F.3d 692, 

695 (7th Cir. 1999).

The endangerment must also be both “imminent” and “substantial.” An endangerment is 

“imminent” if it “threatens to occur immediately.” Meghrig v. KFC Western, Inc., 516 U.S. 479,

486 (1996). “[T]here must be a threat which is present now, although the impact of the threat 

may not be felt until later.” Id.; Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1021

(10th Cir. 2007) (“An ‘imminent hazard’ may be declared at any point in a chain of events which 

may ultimately result in harm to the public.” (internal alteration and quotation omitted)); Albany 

Bank & Tr. Co. v. Exxon Mobil Corp., 310 F.3d 969, 972 (7th Cir. 2002) (“Imminence does not 

require an existing harm, only an ongoing threat of future harm.”). Endangerments that existed 

only in the past do not qualify. Meghrig, 516 U.S. at 486. Finally, an endangerment is 

“substantial” if it is “serious.” Grant, 505 F.3d at 1021. “This does not necessitate quantification 

of the endangerment, as an endangerment is substantial where there is a reasonable cause for 

concern that someone or something may be exposed to risk of harm by release, or threatened 

release, of hazardous substances in the event remedial action is not taken.” Id.; see also Liebhart, 

917 F.3d at 959 (holding that RCRA “requires that [plaintiffs] show that contaminants on the 

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property are seriously dangerous to human health (or will be, given prolonged exposure over 

time)”).

The Plaintiffs contend that the contamination here may present an imminent and 

substantial endangerment in multiple respects and through various means of exposure. They 

argue that the groundwater contamination may present an endangerment to health through 

various potential routes of exposure and that it may also present an endangerment to the 

environment. The primary emphasis of their claim, though, is that the contamination may present 

an endangerment to health through the threat of vapor intrusion into indoor air in the 

neighborhood.

A. Groundwater

The Court begins with the Plaintiffs’ arguments about groundwater. The Plaintiffs argue 

that the groundwater contamination may present an endangerment to health through multiple 

avenues: the City’s wellfield, private wells, and waterlines. They also argue that the 

contamination in the soil and groundwater may present an endangerment to the environment. The 

Court addresses each theory in turn.

1. Wellfield

First, the Plaintiffs argue that the contamination may present an imminent and substantial 

endangerment to health because of the risk that it will reach a wellfield from which the City of 

Goshen draws its drinking water. The Court does not find that the contamination may present an 

endangerment in this respect, though, as the Plaintiffs have not shown that there is any realistic 

threat that the contamination will ever reach the wellfield. To the contrary, the evidence 

establishes that the contamination is not at risk of reaching the wellfield.

Both sides have presented expert testimony on whether the contamination threatens to 

reach the wellfield. Of the evidence on this issue, however, the Court is most persuaded by the 

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Peerless report, which was commissioned by the City of Goshen in order to manage its 

wellfields. The Peerless report was first issued in 1997, and has been evaluated and updated over 

the years, most recently in 2017. [Jx. 65 p. 8; Dx. V-2; Dx. L-4]. The Peerless report is not a 

made-for-litigation report, and the City of Goshen actually relies on the report to manage and 

protect its wellfields, so the Court gives it substantial weight.

The Peerless report evaluated the one-year (shown in red) and five-year (green) capture 

zones for the wellfield and identified each of the potential sources of contamination in those 

areas, as shown here:

[Dx L-4, fig. 2]. Neither the Johnson Controls site nor the area into which contamination has 

migrated are within those areas—they are below the area depicted in that figure—and the 

Peerless report does not identify that site as a potential source of contamination for the wellfield. 

The Peerless report is also very conservative, as it is based on pumping rates that far exceed the 

actual pumping rates, meaning the wellfield actually draws from a smaller area.

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The report reflects several other notable points, too, as testified to by Dr. Zeeb, Johnson 

Controls’ hydrogeologist. The figure below, prepared by Dr. Zeeb, includes the Peerless report’s 

capture zones (in dashed lines), the capture zones based on the Peerless model but using the 

actual pumping rates (in solid lines), and the Johnson Controls site and affected area (in the 

lower right, in the area of the orange dots, which reflect monitoring wells).

[Dx 65, fig. 4-3]. The solid black lines show areas of equal elevation of the groundwater 

(equipotential lines), with the black arrows pointing perpendicular to those lines, approximating 

the direction of groundwater flow. [Tr. 876–77]. The blue lines and arrows in the area of the site 

reflect the elevations and flow direction of the groundwater based on measurements taken in 

those specific areas.

This analysis shows that the wellfield draws water predominantly from the northeast, 

which is the direction from which groundwater flows in the area. The Johnson Controls site and 

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related contamination are to the southeast, though, and are not in the capture zone. In addition, in 

the direction of the site, the borders of the one-year and five-year capture zones are almost the 

same. In fact, when using the actual pumping rates (shown in solid lines), the one-year (light 

green) and five-year (dark green) capture zones are nearly identical in that area. That 

demonstrates that water simply does not flow towards the wellfield from that direction. It also 

shows, as Dr. Zeeb testified, that using a longer time-horizon would make no difference.

Extending the time of travel to ten years or beyond would only extend the capture zone farther to 

the northeast, from where the groundwater flows; it would not extend the capture zone toward 

the Johnson Controls site. [E.g., Tr. 885 (“If you pump any longer or if you allow more travel 

time, the only thing that happens is the capture zone lengthens to the northeast from where the 

water is coming.”)].

While this analysis also reflects that the groundwater is at a slightly lower elevation at the 

wellfield than in the area of the contamination, that does not suggest that the contamination is 

flowing towards or may reach the wellfield. Groundwater tends to flow from areas of higher 

elevation to lower elevation. But more specifically, it tends to travel in the direction of the 

maximum gradient—in the direction of the steepest slope. [E.g., Tr. 876–77 (“And the reason 

groundwater flows perpendicular to the equipotential lines [reflecting equal elevations] is that’s 

the direction in which the water is most steeply tilted.”), 1015 (“Water flows perpendicular to 

equipotentials, all other things being equal. But that doesn’t mean it flows from every point of 

higher elevation to every point of lower elevation.”)]. Here, the steepest gradient is generally to 

the west or southwest, not to the northwest. For the same reason, the straight-line proximity to 

the wellfield does not suggest that the wellfield is at risk, as the groundwater is not moving in 

that direction. Thus, it is not accurate to say that the contamination may reach the wellfield 

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because the wellfield is slightly lower than the contamination, or because the contamination is 

only a given distance away from the capture zone, or because they are in the same aquifer. [See

Tr. 892].

In arguing to the contrary, the Plaintiffs and Dr. Keramida rely in large part on waterlevel elevations taken from monitoring wells in the immediate area of the contamination, which 

show the groundwater gradient pointing toward the northwest, such as shown in the following 

figure:

[Jx 2, fig. 4]. This argument assumes, however, that the groundwater continues flowing in that 

same direction (and turns even farther north) all the way to the wellfield’s capture zone. Dr. 

Keramida offers no analysis to support that assumption, and as already discussed, the Peerless 

report and Dr. Zeeb’s analysis provide convincing evidence that it does not.

As Dr. Zeeb testified, the Peerless report was calibrated most carefully in the area of the 

capture zone, but the contamination here is away from that zone, at the fringe of the modeled 

area. Minor discrepancies at the fringe of that area do not show that the model is inaccurate in 

the area of the wellfield. [Tr. 881–82 (“What we’re looking at in this Peerless line is the edge of 

a model. The center portion of that model [closest to the wellhead] has been carefully calibrated 

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to get reliable answers with respect to the wellhead protection area. The edges of the model are 

going to match generally but not precisely.”); DE 424-2 (“[O]n a small scale, groundwater flows 

partially towards the northwest in the immediate area of the Site, particularly in the shallow 

aquifer. But the dominant hydraulic gradient in this area is west[.]”)]. Even then, the Peerless 

report is still roughly consistent with the actual measurements taken in the area of the 

contamination, showing that the Peerless report reliably reflects the groundwater flow and the 

capture zones for the wellfield. [Tr. 881 (“[The equipotential lines are] roughly in the same 

place. You would never expect any better agreement than this.”)].

Of course, the model is not perfect. Actual elevations may differ slightly from the model, 

subsurface conditions can affect the flow direction, and groundwater flow can vary over time, 

too. [E.g., Tr. 879, 886–87, 959–60, 1002]. The possibility of variations in the groundwater flow 

does not suggest that the contamination may pose an endangerment to the wellfield, though. As 

already noted, the Peerless model assumed a pumping rate far higher than the actual pumping 

rates (about three times the actual rates), but even with that exceedingly conservative 

assumption, the contamination still falls outside of the capture zones.7 The actual pumping rates 

(which the evidence offers no indication may increase) show that the contamination is even 

farther from the wellfield. [See also DE 424-2 ¶ 6 (“[N]ot only are the simulated capture zones 

significantly larger than the capture zones at actual pumping rates . . . , but the capture zones are 

also conservatively drawn vis-à-vis any theoretical contaminant impact because contaminants 

generally travel at less than the velocity of water.”)]. Given those conservatisms, the possibility 

7 See Tr. 885–86 (“Under worst-case pumping conditions, three times more than they have 

pumped in the last decade, we know from the Peerless model that to an approximation -- it’s not 

perfect, it’s a model -- groundwater flows along this line, this dashed line[.] . . . Is that line a 

magical physical line? No, it’s not. It’s a modeled line, but it’s the best model that we have.”).

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of variations over time or of localized variations in particular areas does not present a risk that 

the contamination may reach the wellfield.

The other evidence the Plaintiffs cite is unpersuasive. For example, the Plaintiffs cite a 

decades-old statement by Johnson Controls’ then-contractor indicating that the contamination 

was moving towards the wellfield. That statement was from 1997, though, before the Peerless 

report was issued. The Plaintiffs have not shown what evidence that statement was based on, 

either, or attempted to engage with those materials to show that they support that conclusion. 

Given the age of that statement and all of the evidence over the intervening years, the Court 

cannot place any weight on that statement or other similar, dated statements. The Plaintiffs also 

argue that the purpose of the former pump-and-treat system was to protect the wellfield, such 

that the wellfield is at risk now that the system has been shut down. The parties dispute whether 

Johnson Controls in fact operated the system for that purpose. Regardless, speculating about 

Johnson Controls’ motives years ago when it installed and operated the system, and extrapolating 

from there whether the wellfield is currently at risk, offers little support for the Plaintiffs’ 

position, particularly in light of the more recent evidence and analysis already discussed.

Finally, even if there was some possibility that some amount of contamination might 

someday reach the wellfield, the Plaintiffs have failed to offer any basis upon which to find that 

the endangerment would be substantial. Unless the level of contamination would be significant 

enough to pose a risk to health (or impair the City’s ability to use the wellfield, as might present 

an endangerment to the environment, as discussed below), it would not pose an “imminent and 

substantial” endangerment. The Plaintiffs have offered no evidence about what amount of 

contamination may reach the wellfield if it even traveled in that direction, or what level of 

contamination may result in the drinking water should that occur—whether it would even be a 

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detectable amount in the millions of gallons of water pumped per day. That’s not to say the 

Plaintiffs have to quantify the endangerment, and the legal standard may tolerate a degree of 

uncertainty, Interfaith, 399 F.3d at 260, but there still has to be some basis on which to “assess 

the magnitude of the possible risk,” Metacon, 575 F.3d at 211–12. Without any basis to evaluate 

the significance of the endangerment that might result if the contamination should ever reach the 

wellfield, the Court cannot find that the contamination may present an imminent and substantial 

endangerment if that happened.

For those reasons, the Court cannot find that the contamination may present an imminent 

and substantial endangerment to health through the risk that it may reach the wellfield. The most 

reliable evidence and testimony establishes that the contamination does not pose a threat of 

reaching the wellfield, and the Plaintiffs have not shown what sort of endangerment may occur 

even if some amount of contamination flowed in that direction. The Plaintiffs thus cannot sustain 

their endangerment claim on this basis.

2. Private Wells

The Plaintiffs also argue that residents in the neighborhood may be using private wells 

that draw drinking water from contaminated groundwater. Simply put, this claim is far too 

speculative to sustain a finding that the contamination may present an imminent and substantial 

endangerment. Over 25 years ago, all the structures in the vicinity of the contamination were 

connected to City water. Johnson Controls has also conducted multiple investigations over the 

years to verify that no private wells are still in use in the area. [E.g., Jx. 49, ex. 9; Tr. 389–91]. It 

has confirmed that all the properties over the plume of contamination receive water bills. A 

Goshen ordinance also prohibits new wells and requires any old wells in the area to be 

abandoned. And while Goshen High School has two irrigation wells, they are not over the plume 

and have not had TCE detected. [Tr. 391]. Dr. Keramida suggests in passing that some homes 

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still have wells, [e.g., DE 425-1 ¶ 50], but she gives no reason to believe that any such wells may 

be in use now or in the future, much less for drinking water.

8 [See Tr. 147 (“Q. And those homes 

where you saw an old well not being used, those houses were on city water, correct? A. Yes, they 

are.”)]. Tellingly, the Plaintiffs did not even mention this theory in their closing argument or 

post-trial brief.

If there is no realistic, non-speculative risk that anyone is (or will be) drinking water from 

private wells in the area, then the groundwater contamination does not present an imminent and 

substantial endangerment to health by that route of exposure. See Liebhart, 917 F.3d at 960 

(“That is not to say that all the plaintiffs must do is to show some bit of soil on their property that 

tests positive for [contaminants]. . . . Of course, there must be accompanying evidence that 

establishes some connection between the existing contaminants and some imminent and 

substantial endangerment to health.”); Avondale Fed. Sav. Bank v. Amoco Oil Co., 170 F.3d 692, 

695 (7th Cir. 1999) (holding that existing contamination did not pose an endangerment absent a 

threat of exposure); Miller v. City of Fort Myers, 424 F. Supp. 3d 1136, 1147–49 (M.D. Fla. 

2020) (rejecting an endangerment claim where the plaintiff offered only speculation that anyone 

may have been drinking from contaminated wells, and collecting cases reaching the same 

conclusion absent evidence that people may be drinking contaminated water). Given all the 

precautions that have already been taken, the possibility that some unknown person may use a 

private well within the area of the contamination is far too remote and speculative to qualify as 

an imminent and substantial endangerment. Thus, the Court cannot find that the Plaintiffs have 

8 The Plaintiffs have offered no basis on which to evaluate whether the contamination may pose 

an imminent and substantial endangerment through any other route of exposure, such as if the 

water was used for irrigation; Dr. Orris confined his opinions to the risks from vapor inhalation, 

and the maximum contaminant levels the Plaintiffs cite apply to drinking water.

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met their burden of showing that the contamination may present such an endangerment in this 

respect, either.

3. Water Pipes

The Plaintiffs similarly argue that the contamination poses a risk of infiltrating the 

drinking water pipes that run through the neighborhood, and may present an imminent and 

substantial endangerment to health by contaminating drinking water in that manner. Again, 

however, the Plaintiffs’ evidence is far too thin and speculative for the Court to find any realistic 

risk that the contamination may infiltrate waterlines.

As Dr. Zeeb testified, the concentrations at which contamination poses a risk of 

infiltrating waterlines are multiple orders of magnitude higher than the concentrations at issue 

here. [Tr. 893–96; Jx. 65 p. 11–12; Jx. 66 p. 7; DE 424-2 ¶ 4]. Dr. Keramida opined that the 

waterlines were nonetheless at risk, but she did not bring her expertise to bear in forming that 

opinion. To the contrary, she relied primarily on an article in the local newspaper about a water 

main replacement project by the City of Goshen. [Jx. 50]. The article notes that, as part of the 

project, Goshen decided to use upgraded gaskets to protect against TCE contaminating the 

waterlines, an upgrade for which Johnson Controls agreed to pay. Dr. Keramida’s report did not 

offer any analysis of her own as to whether conditions in the area actually posed a risk of 

infiltrating the waterlines.9 Her report cited an EPA study on permeation or leaching into pipes, 

but as Dr. Zeeb testified, that report and its supporting materials indicated that the risk was 

present only at levels much, much higher than those found here.

9 Johnson Controls’ contractor also wrote in a letter to the City that “consideration should be 

given to selecting both waterline piping and gasket materials that will remain resistant to longterm degradation or permeation by residual chemical solvents such as TCE.” [Px. 265 p. 4]. That 

mild caution is a far cry from indicating that the contamination may present an imminent and 

substantial endangerment by permeation of waterlines.

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In addition, neither Dr. Keramida nor the Plaintiffs have conducted any tests to confirm 

their theory that contamination may be infiltrating the waterlines. If the contamination posed a 

threat of infiltrating the waterlines, the Plaintiffs offer no reason to believe it would not have 

done so already. Yet they never took any water samples from their homes (or any other homes) 

to determine whether any TCE was present in the water.10 Not only does that leave them with an 

evidentiary deficit, it undercuts the credibility of this argument. If Dr. Keramida or the Plaintiffs 

believed there was any risk to their water, they could have easily conducted a test to protect their 

own safety, but they have not done so. And again, even if there was some risk that TCE might 

infiltrate the water lines, the Plaintiffs have offered no evidence that it may do so in amounts 

significant enough to pose any risk to their health. Thus, the Court cannot find that the 

contamination may present an imminent and substantial endangerment to health in this respect 

either.

4. Threat to the Environment

The Plaintiffs further argue that, apart from any endangerment to health, the 

contamination’s presence in the ground means that it may present an imminent and substantial 

endangerment to the environment. This theory is a narrow one; the Plaintiffs expressly withdrew 

any claim that the contamination may present an endangerment to any ecological receptors (like 

plants, wildlife, or organisms).11 [DE 417 p. 52]. The theory is thus that the contamination may 

10 The following exchange with Dr. Keramida sums up the holes in the Plaintiffs’ evidence on 

this issue: “Q. You’re not aware of any such contamination entering the waterlines, correct? A. I 

have not seen data to show that the drinking water in those lines is impacted by TCE. Q. And 

you’ve conducted no testing of any of the drinking water inside of any of these homes in the 

neighborhood, correct? A. That’s correct. Q. And nowhere in your report do you analyze the 

level of TCE contamination that would be required to penetrate the city waterlines, correct? A. 

That’s correct.” [Tr. 147].

11 Johnson Controls argues that the Plaintiffs withdrew the entirety of their endangerment-to-theenvironment argument by withdrawing any argument as to ecological receptors. The Court 

disagrees. The argument that remains is narrow, but the Plaintiffs did not withdraw their 

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present an endangerment to the environment through its presence in the soil and groundwater, 

even absent any secondary effects.

The Court cannot find an endangerment in this respect. As discussed at summary 

judgment, contamination’s presence alone does not equate to an imminent and substantial 

endangerment to the environment. RCRA “is not a ‘cleanup’ statute.” LAJIM, 917 F.3d at 949; 

see Meghrig, 516 U.S. at 483. An endangerment claim requires a “risk of harm,” Liebhart, 917 

F.3d at 958, and authorizes injunctive relief only as “necessary to prevent harm[.]” LAJIM, 917 

F.3d at 949. A substance that is present in the environment but threatens no harm does not pose 

an imminent and substantial endangerment to the environment. See Grant, 505 F.3d at 1021 

(“[A]n endangerment is substantial where there is reasonable cause for concern that someone or 

something may be exposed to risk of harm . . . in the event remedial action is not taken.”

(emphasis added)).12 It may well be desirable for nature to remain in a pristine condition, but an 

endangerment claim requires some threatened or potential effect beyond the fact that a substance 

is present belowground that is not naturally occurring. Miller, 424 F. Supp. 3d at 1146–47 (“The 

mere presence of contamination is alone not enough to constitute an imminent and substantial 

endangerment. This is true even for groundwater—the simple existence of contaminated 

groundwater does not automatically impel an endangerment claim.” (internal quotations and 

citations omitted)); Tri-Realty Co. v. Ursinus College, 124 F. Supp. 3d 418, 454 (E.D. Pa. 2015) 

(“To hold that any amount of pollution that impairs the purity or natural state of some element of 

argument that the contamination’s presence in the soil and groundwater may present an 

endangerment, and Johnson Controls had an opportunity to address that argument at trial.

12 See also LAJIM, 917 F.3d at 949 (“We sympathize with plaintiffs’ position—TCE is a 

dangerous contaminant and the current plan leaves the contamination in place (though contained 

and restricted from access). But, despite plaintiffs’ characterization, the RCRA is not a ‘cleanup’ 

statute. . . . The RCRA does not require a court-ordered cleanup where the court has not found 

such action necessary to prevent harm to the public or the environment.”).

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the environment endangers the environment would be to render the word ‘substantial’ 

superfluous, as practically any addition of a pollutant into the environment would give rise to 

liability.”); Tilot Oil, LLC v. BP Prods. N. Am., Inc., 907 F. Supp. 2d 955, 967–68 (E.D. Wis. 

2012).

To adopt a broader rule would contradict with the text and structure of the statute. As 

already discussed, relief on an endangerment claim in a citizen suit is authorized only as 

necessary to prevent harm from an imminent and substantial endangerment. 42 U.S.C. 

§ 6972(a)(1)(B); LAJIM, 917 F.3d at 949. The Act gives broader authority to the agencies, 

though. Whenever “there is or has been a release of hazardous waste into the environment,” an 

agency “may issue an order requiring corrective action or such other response measure as [it] 

deems necessary to protect human health or the environment.” 42 U.S.C. § 6928(h); see also Ind. 

Code § 13-22-13-1, -2 (likewise for the state agency). That provision does not include the 

“imminent and substantial endangerment” qualification like the citizen-suit provision. In

implementing that action, an agency could decide to authorize a site’s closure even with waste 

remaining in place permanently, so long as measures are taken to prevent harm to health or the 

environment. [See Tr. 543–44; Jx. 3 p 2 (noting that IDEM may authorize closure with 

contamination in place with appropriate institutional controls)]. Accepting the Plaintiffs’ 

argument that the existence of contamination in the ground or groundwater itself constitutes an 

endangerment to the environment and mandates injunctive relief would read the phrase 

“imminent and substantial endangerment” out of the statute and would transform an 

endangerment claim to a clean-up statute, which the Seventh Circuit has held it is not. LAJIM, 

917 F.3d at 949; see also Tri-Realty, 124 F. Supp. 3d at 456.

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The inquiry is thus not whether contamination exists somewhere in the environment, but 

whether that contamination may present a risk of harm to some aspect of the environment. See 

Metacon, 575 F.3d at 211–15 (affirming summary judgment against an endangerment claim even 

though some soil samples exceeded the agency screening level); Avondale, 170 F.3d at 695 

(affirming summary judgment against an endangerment claim despite the presence of 

contaminants in the ground that could pose a danger if a route of exposure ever materialized); 

Mallinckrodt, 471 F.3d at 282 (noting with approval the district court’s recognition that “the 

mere presence of mercury contaminated sediments is alone not enough to constitute an imminent 

and substantial endangerment”); Tri-Realty, 124 F. Supp. 3d at 456 (“[A]n imminent and 

substantial endangerment to the environment in and of itself may exist if contamination threatens 

the ability of a non-living element of the environment to serve some potential function in the 

local ecosystem.”).

The contamination here does not pose such an endangerment. Again, the Plaintiffs do not 

claim that the contamination may present a risk to any plants or wildlife or any other living 

things. Nor does the evidence suggest that the contamination threatens to impair any potential 

function of the local ecosystem. As discussed above, the contamination is not at risk of reaching 

the wellfield, either. While there is still contamination in the soil and groundwater, the scope of 

contamination is generally stable or improving. Though there is a degree of variability over time, 

and some wells have reflected increases in TCE, the levels of contamination are generally 

decreasing. [Jx. 66 p. 8–10]. In addition, the Enhanced Reductive Dechlorination treatment walls

further decrease the risk of an endangerment through worsening or migration of the plume.

Those treatment walls break down the TCE as it travels across the site or reaches its border, 

which mitigates the possibility that contamination at the site could lead to worsening of the 

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contamination downgradient or to further migration. [Jx. 6613]. To the extent those effects may 

nonetheless occur in some amount, they are too minor to characterize as a “substantial 

endangerment” to the environment.

For the same reason, the Court cannot find that any leaching of TCE from the on-site 

soils into the groundwater may present an imminent and substantial endangerment to the 

environment. Any TCE that leaches into the groundwater is unlikely to travel any farther than the 

border of the property where the treatment wall has been installed—TCE is being reduced by 

more than 99 percent within the area of the western treatment wall. [Jx. 2, p. 12, fig. 5]. The 

TCE’s travel over that short distance does not threaten any serious harms to the environment and 

is not itself significant enough to constitute a substantial endangerment to the environment. See 

Tilot Oil, 907 F. Supp. 2d at 968 (holding that the lack of serious and ongoing threat, plus the 

remediation activities already undertaken, meant that the contamination did not present an 

imminent and substantial endangerment to the environment).

The Plaintiffs rely on PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 618 (7th Cir. 

1998), for the proposition that leaching to the groundwater constitutes an endangerment. But 

there the court affirmed an endangerment finding based on a “danger to the groundwater”

because a cleanup was “necessary in the interest of health[.]” Id. The Plaintiffs argue that the 

court really meant that there was an endangerment to the environment alone, as the district court 

had found that the groundwater did not flow into a source of drinking water (a finding that was 

never mentioned in the court of appeals’ decision, and that even the district court didn’t mention 

13 Jx. 66 p. 3 (“Ongoing treatment of groundwater contamination at the Site is reducing the mass 

of chlorinated ethenes migrating from the Site. The rate of migration will continue to decrease as 

the biobarriers continue to develop. . . . I expect that a fully mature set of biobarriers at the Site 

will further reduce the migration of chlorinated ethenes from the Site and continue to support 

downgradient enhanced natural attenuation processes[.]”), p. 8, 10.

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in connection with its endangerment finding). That’s not what the Seventh Circuit said though—

it affirmed based on a threat to “health,” id., a threat that is not present here. In addition, as 

already explained, the Court does not find that any impacts from leaching or migration are 

occurring or threatened here to a significant enough extent to qualify as “imminent and 

substantial” endangerments anyway.

The Plaintiffs also lament the pace and extent of remediation that has occurred over the 

years and argue that an injunction is necessary to effect a conclusive and comprehensive remedy. 

That puts the cart before the horse, though; the Plaintiffs have to establish an endangerment 

before the Court can impose injunctive relief. Their desire to remove the contamination more 

quickly or thoroughly than is occurring does not mean that the contamination that remains in 

place may present an imminent and substantial endangerment. Tilot Oil, 907 F. Supp. 2d at 967 

n.16 (“Ultimately, [the plaintiff’s] argument appears to be that [the defendant] is simply not 

doing enough regarding the speed of cleanup. However, RCRA is not intended to remedy such a 

situation so long as there is no potentially imminent and substantial endangerment.”).

Accordingly, the Court does not find that the Plaintiffs have proven that the contamination may 

present an imminent and substantial endangerment to the environment.

B. Vapor Intrusion

Finally, the Plaintiffs argue that the threat of vapor intrusion in the homes and structures 

in their neighborhood may present an imminent and substantial endangerment to health. TCE 

from the site migrated to the shallow groundwater, creating a plume of contamination extending 

into the neighborhood. TCE in the groundwater can volatize into vapors, which then rise through 

the soil above the groundwater (the vadose zone) to reach the surface. When the vapors 

encounter a structure, they can enter the structure through cracks or other openings and infiltrate 

the indoor air. If the vapors do so in sufficient amounts, they can pose health risks. The evidence 

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shows that TCE vapors in fact infiltrated the indoor air of a number of structures in the Plaintiffs’ 

neighborhood. The Plaintiffs thus argue that there is an ongoing threat of vapor intrusion by 

contaminants that are seriously dangerous to their health.

This theory presents a closer call than the others, but the Court cannot find that the 

Plaintiffs have proven that the contamination may present an imminent and substantial 

endangerment in this respect either. In sum, after vapor intrusion was first discovered in the 

neighborhood, vapor mitigation systems were installed in every structure that has ever had an 

indoor air sample exceed IDEM’s screening level. Since then, not a single indoor air sample in 

any structure has exceeded those screening levels. Those samples and other lines of evidence 

prove that the mitigation systems—which are commonly used for this purpose—are successfully

preventing any serious health risk; to the extent an endangerment existed before, Johnson 

Controls has already taken the steps necessary to eliminate that risk. The evidence does not show 

a risk of vapor intrusion in harmful levels in unmitigated structures or through preferential 

pathways, either. In addition, the treatment wall that has already been installed at the site’s 

border minimizes the risk that contamination may worsen and cause exposures greater than those

currently observed. Finally, the Court finds that IDEM’s screening levels represent levels at 

which no appreciable risk of harm is present, and that Dr. Orris’ opinions and the other levels the 

Plaintiffs resort to do not support a contrary finding. That the tests consistently show any 

exposure to be below those screening levels thus demonstrates that any vapor intrusion does not 

pose a serious health risk. The testimony by Johnson Controls’ toxicological and epidemiological 

experts, whom the Court found to be credible, further supports that finding.

The Court must begin with a word of explanation on the significance of agency screening 

levels, which factor heavily in the parties’ arguments and thus the Court’s discussion. As 

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relevant here, an endangerment claim requires the Plaintiffs to “show that contaminants on the 

property are seriously dangerous to human health (or will be, given prolonged exposure over 

time).” Liebhart, 917 F.3d at 959. There is no requirement, however, “for a plaintiff to make ‘a 

particular quantitative showing as a sine qua non for liability.’” Id. (quoting Interfaith Cmty. 

Org. v. Honeywell Int’l, Inc., 399 F.3d 248, 260 (3d Cir. 2005)). Likewise, “RCRA does not 

require that plaintiffs demonstrate contamination above some agency-derived threshold level of 

concentration.” Id. Thus, “state environmental standards ‘do not define a party’s federal liability 

under RCRA.’” Metacon, 575 F.3d at 212 (quoting Interfaith, 399 F.3d at 261 n.6); Tilot Oil, 

907 F. Supp. 2d at 965 (“RCRA does not incorporate or otherwise rely solely on reference to 

regulatory standards, let alone any specific standard.”).

Even though they are not determinative, agency screening levels still play a central role 

in the parties’ arguments. As this discussion shows, however, the reason for that is not that the 

levels create legal requirements. Instead, the reason is that the Plaintiffs have chosen to rely 

almost entirely on screening levels as their evidence that the levels of contamination here are 

seriously dangerous to human health. An endangerment claim requires more than the presence of 

a potentially harmful contaminant; “there must be accompanying evidence that establishes some 

connection between the existing contaminants and some imminent and substantial endangerment 

to health.” Liebhart, 917 F.3d at 960.

Agency screening levels are one source of evidence that can supply that link. See 

Interfaith, 399 F.3d at 261 n.6. (Expert testimony is another, and both parties offer that evidence 

as well, as discussed below.) The Plaintiffs rely on various screening levels to draw a bridge 

between the contamination here and an imminent and substantial endangerment to their health. 

Johnson Controls, in turn, relies on IDEM’s screening levels as indicative of levels at which no 

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risk exists. That requires the Court to evaluate the nature and significance of the screening levels 

and decide what weight to place on them—along with the testimony from the medical, 

toxicological, and epidemiological experts. In doing so, the Court is not treating those levels as 

legal requirements but is simply evaluating to what extent the comparison to those levels reflects 

that the exposures at issue here may present an endangerment to health. With that caveat, the 

Court proceeds to the substance of the parties’ arguments.

1. Vapor Intrusion in Mitigated Homes

At the outset, the Court acknowledges that TCE has been detected in the indoor air of 

homes in the neighborhood at levels that far exceed IDEM’s screening level, which is 2.1 μg/m3

(micrograms per cubic meter) for indoor air. In May 2011, TCE was detected in the Schmuckers’ 

home at 100 μg/m3 in the basement and 21 μg/m3 on the first floor, in the VanDiepenbos’ 

basement at about 18 μg/m3, and in Mr. Stewart’s basement at 5.2 μg/m3. TCE was detected in 

other homes in amounts as high as 180 μg/m3, which substantially exceeds IDEM’s screening 

level. [Jx. 2, table 9]. On their own, those samples would present cause for concern.

Since those samples were taken, though, every home in which an indoor air sample 

exceeded IDEM’s screening level has had a vapor mitigation system installed. After 2011, 

multiple rounds of testing have been conducted, in both mitigated and unmitigated homes, and 

not a single test of indoor air has exceeded IDEM’s screening level. The VanDiepenbos and 

Stewart homes, along with several others, have not had any TCE detected in any sample since 

the mitigation systems were installed. Other homes, including the Schmuckers’, have had some 

TCE detected, but in much smaller amounts. Even in those homes, most of the tests have been 

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non-detect for TCE, and many of the detections were in the range of an order of magnitude 

below the screening level.14 After 2011, only two tests have even exceeded 1.0 μg/m3.

As discussed in greater depth below, IDEM’s screening level is a health-protective level 

at which no adverse health effects are expected, even if the most sensitive populations are 

continuously exposed to the substance in that amount for 30-years. [See Jx. 9 p. 15; Jx. 62 p. 5; 

Dx. O-1 p. 4; Tr. 1110–11]. The fact that sampling has not detected a single concentration of 

TCE in that amount since 2011 (much less continuously so) is strong evidence that exposures at

levels capable of causing adverse health effects are not occurring in the area.15 [See Jx. 3 p. 3 

(“In summary, the 2018 sampling results again confirmed the systems are effectively eliminating 

VI [vapor intrusion] risk because TCE was not detected in indoor air except for in two homes, 

and those two showed TCE concentrations well below the IDEM screening level.”)].

The Plaintiffs attempt to downplay the significance of these tests, but the Court is 

unpersuaded by those arguments. First, as the Plaintiffs note, the homes have not been subject to 

continuous testing. Most of the mitigated homes have had three rounds of testing since the 

mitigation systems were installed—in 2011, 2018, and 2019. More frequent testing would have 

provided stronger evidence, and the Court acknowledges that these tests themselves are not 

14 Two homes had tests over the screening level in October 2011, after the mitigation systems 

were first installed, but in the crawlspace, not in indoor air, and no test after 2011 has exceeded 

the screening level in any area. In one of those homes, the mitigation system was modified after 

the October 2011 testing. [Jx. 25 p. 14]. No TCE was detected in the next two sampling rounds 

in that home, and only 0.12 μg/m3 was detected in the most recent round.

15 The highest detection has been 1.9 μg/m3

, which is still below the 2.1 μg/m3 screening level. 

Dr. Keramida suggests that the vapors may have actually been above that level because 

laboratory results often have a margin of error of 10 to 20 percent. [Jx. 53 p. 9]. She does not cite 

a source for that margin, though, nor does she identify the margin for this particular test. 

Regardless, as discussed elsewhere, screening levels are not thresholds at which a risk of adverse 

health effects begins, and they already have margins of safety built in; even if the actual 

concentration was higher by 20 percent, there would still be no appreciable risk of a health 

effect. This test below the screening level thus fails to show that a health risk may be present.

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dispositive. But still, scores of tests have been conducted in these homes over multiple rounds of 

testing, and they have uniformly shown that vapors are not present in indoor air above the 

screening levels, which the Court views as a strong line of evidence.16 [See Tr. 420 (“When you 

look at state guidance and how you assess the effectiveness of a mitigation system, the first line 

of evidence is the indoor air.”)]. In addition, the Plaintiffs (who have the burden of proof) could 

have conducted further testing if they did not believe that the tests conducted by Johnson 

Controls were representative of the actual indoor air exposures that are occurring. Yet they have 

not done so. In fact, they have not conducted a single sample of indoor air, which undercuts their 

argument that the number of tests has been deficient.

Dr. Keramida also relies on a study to argue that the concentrations being captured by the 

tests are likely not representative of the actual conditions over time.

17 Again, the Court is 

unpersuaded. Dr. Keramida cites an EPA Errata document that notes that “a single, randomly 

drawn, one-day sample had an approximately eighty percent chance of being less than the true 

16 In response to the Plaintiffs’ post-trial submission of an exhibit not offered at trial, Johnson 

Controls submitted the results from the most recent round of testing in early 2020. [DE 462-1]. 

The Plaintiffs did not respond or object to the consideration of that data. Those results reinforce 

these findings. Of the 17 homes that had their indoor air tested, 15 had no TCE detected at all; 

one detected about 0.65 μg/m3 in the basement but none in the first floor; and another detected 

0.34 μg/m3 in the basement and 1.1 μg/m3 in the first floor—all well below the screening level. 

A number of homes had their subslab vapors tested too. None of those tests exceeded or even 

approached the subslab screening level, and 10 of them did not detect any TCE at all. The Interra 

Credit Union also had detections of only 1.1 μg/m3 and 0.92 μg/m3 of TCE in indoor air, well 

below the screening level for commercial structures of 8.8 μg/m3. (The Court has considered the 

Plaintiffs’ post-trial submission as well, though there is no apparent reason for its late 

submission, but to be clear, the Court’s conclusion does not turn on whether the Interra Credit 

Union is currently occupied.)

17 In a supplemental report, Dr. Keramida opined that the presence of PCE in indoor air 

demonstrated that vapor intrusion was occurring, even if TCE was not detected at the time of the 

test, because PCE has a longer atmospheric lifetime. [Jx. 51 p. 14–15]. The Court cannot find 

that opinion to be sound, though, for substantially the same reasons noted by Dr. Dawson in 

response. [Tr. 606–07].

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mean” of the level of vapor intrusion that was actually occurring, given the spatial and temporal 

variability of vapor intrusion.

18 [Jx. 51 p. 15–16, ex. 12; DE 425-1 ¶ 46]. The parties dispute 

whether this was meant to reflect only the observations at a single site or was representative of 

vapor intrusion sites in general.

19 Even accepting this statement on Dr. Keramida’s terms, 

however, offers little support for the Plaintiffs’ position.

First, the tests here were neither “single” nor “randomly drawn.” As already noted, scores

of tests have been conducted in the neighborhood, and multiple rounds of tests have been 

conducted in every home, not just one. The tests were not random, either, but were taken at times

most likely to reflect the worst-case conditions. [See Jx. 2 p. 7 (noting that sampling was 

conducted “during the heating season in the early spring of 2019”); Jx. 10 p. 22 (recommending 

that samples be taken “during the late winter or early spring” and while a heating system is 

operating, to capture “worst case conditions”); Tr. 479 (noting that sampling was conducted 

during the “worst-case season”); Tr. 719]. In addition, one hundred percent of the tests of indoor 

air have been below the screening level. [Jx. 3 p. 5 (“All detections of cVOCs in indoor air of 

homes with mitigation systems have been below IDEM screening levels. This indicates to IDEM 

that the mitigation systems are adequately addressing the vapors in indoor air.”)]. Moreover, as 

Dr. Dawson testified, homes with mitigation systems are less subject to variability, which further 

reduces any concern that the tests are not reflective of the true conditions. [Tr. 625].

18 There is no dispute, however, that the tests accurately reflect the conditions during the 24-hour 

period each test was conducted.

19 The study on which this statement was based offers its own disclaimer in that regard: “[I]t is 

unknown whether or not the data from this study site are representative of other VI-sites, so 

caution should be exercised in extending lessons-learned at this site to other VI sites.” [Jx. 51, 

ex. 11 p. 200].

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The Plaintiffs also argue that the vapor mitigation systems are not sufficiently effective or 

reliable to prevent harmful vapor intrusion, such that an endangerment is at least threatened or 

potential, even if it has not been occurring. First, though, the testing data shows that the systems 

function quite effectively. Confirmatory sampling is the first line of evidence for determining 

whether a mitigation system is functioning properly. [Tr. 420; Tr. 487–88; Jx. 12 p. 1 (“In 

Indiana, confirmatory sampling is the primary method for assessing a mitigation system’s 

effectiveness[.]”)]. As already discussed, concentrations have dropped dramatically since the 

systems were installed, with no screening level exceedances after 2011. [Jx. 2, table 9; Jx. 3 p. 3, 

5].

In addition, vapor mitigation systems are commonplace and are commonly relied on by 

regulators in these circumstances to prevent a health risk from vapor intrusion. As Dr. Dawson 

testified, these types of systems, which are the same ones used for radon, are “the most common 

and successfully employed approach to structure mitigation for VOC vapor intrusion.” [Jx. 73 p. 

14; DE 424-1 ¶ 12 (“The use of sub-slab depressurization systems, which inhibit vapors from 

migrating through a building’s foundation into indoor spaces, is a common approach to vapor 

mitigation, approved by EPA and IDEM. Sub-slab depressurization systems have been installed 

on a permanent basis and operate in many thousands, if not millions, of homes around the 

country and have been shown to effectively mitigate radon intrusion. More recently, these 

systems have been successfully employed to mitigate vapor intrusion by volatile organic 

compounds, having been approved by EPA and IDEM for that purpose.”); Tr. 620 (noting that 

subslab depressurization systems are “what EPA considers a presumptive remedy, one that has 

been shown and demonstrated in the past and in many areas to be effective and appropriate”); Tr. 

530 (noting that mitigation systems are in place in at least half of the sites being handled by 

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IDEM’s project manager)]. IDEM shares that view, characterizing depressurization systems as 

“the only proven long term mitigation system for sub-surface vapor intrusion.” [Jx. 12 p. 7]. It

further notes that “[d]epressurization systems are the most common vapor mitigation technique 

and are successfully employed at myriad sites in Indiana.” Id. p. 2.

Pressure differential testing further confirms that the systems are succeeding in creating a 

vacuum in the subsurface, which inhibits vapors from entering indoor air. Pressure differential 

testing is typically the second line of evidence for confirming the effectiveness of mitigation 

systems, after indoor air tests. [Tr. 420]. Here, the pressure differential data, which were 

collected from 13 of the 15 mitigated homes, reflected positive pressure in the homes relative to 

the subslab area, confirming that the systems were working as intended. [Jx. 76 p. 6–7; DE 424-1 

¶ 13; Tr. 632 (“[E]very mitigated building on this page shows a . . . positive pressure differential, 

which means vapor intrusion was inhibited.”)]. Differential pressure testing in some adjacent, 

unmitigated homes also reflected slightly pressurized conditions, indicating that the vapor 

mitigation systems’ impact may extend somewhat beyond the footprint of the mitigated homes. 

[Jx. 76 p. 7; see Jx. 75 p. 3].

Other measures further confirm that the systems will continue to provide adequate 

protection against a risk of harmful vapor intrusion. When the vapor mitigation systems were 

installed, other protective measures were also implemented. Concrete was placed over bare areas 

of some of the floors, and cracks and openings were sealed with caulk or other materials, in order 

to limit the flow of vapors into the structures. [Jx. 25 p. 12; Tr. 518]. The systems have also been 

inspected twice a year, and maintenance has been conducted when appropriate, and those 

inspections are planned to continue for as long as the systems are still in use. [Jx. 1 p. 35]. 

During those inspections, Johnson Controls’ contractor verifies that the systems are functioning 

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properly and are drawing a vacuum, and inspects the areas for any new cracks that may need to 

be sealed. [Tr. 518]. The occupants of the buildings are also educated on the systems’ 

functioning. [Jx. 1 p. 35; Tr. 518]. The systems’ fans produce an audible noise, so if a fan was to 

stop running it could be noticed by the occupant, and the systems have manometers that provide 

a visual indication that the system is producing a vacuum.20 [Tr. 518, 731–32].

As the Plaintiffs note, there is no binding order from a court or agency that compels 

Johnson Controls to continue its inspections and maintenance. The Court has no reason to 

believe that Johnson Controls will stop doing so, though. Johnson Controls has been consistently 

and actively monitoring the contamination in general, and the mitigation systems in particular, 

under IDEM’s oversight as part of IDEM’s Voluntary Remediation Program. That program is, as 

its name suggests, voluntary, but there is no indication that Johnson Controls may withdraw from 

that program or fail to fulfill its commitments. Participating in the Voluntary Remediation 

Program is a condition of Johnson Controls’ approved closure plan to terminate its status as a 

treatment, storage, or disposal facility. [DE 351 p. 33, 37]. Withdrawing from that program could 

subject it to an enforcement action, whereas completing that program would result in a covenant 

not to sue. [Id.; Tr. 537, 555]. IDEM is engaged on this issue, too. In response to Plaintiffs’ 

counsel’s comments to the initial work plan, IDEM directed Johnson Controls to “[d]evelop an 

O&M plan to address continued long-term operation and maintenance (O&M) of the residential 

vapor mitigation systems,” [Jx. 4], and Johnson Controls updated its plan accordingly.

21 [Jx. 1 p. 

35].

20 One home has an audible alarm installed for its crawlspace system, as the manometer would 

not have been accessible to view.

21 IDEM has not yet granted approval for the plan, nor would its approval prevent an injunction 

if an endangerment existed and the plan was insufficient to remedy it, Liebhart, 917 F.3d at 963, 

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As the Plaintiffs also note, some of the systems have experienced interruptions of some 

sort over the years. [Jx. 43]. Those interruptions have not been frequent, though. Most of the 

systems have never had any problem, and the few systems that have had issues do not 

demonstrate that the systems are inadequate or unreliable. In one home, one of the two fans was 

erroneously wired into the wrong side of a light switch that was turned off. The wiring has since 

been fixed, though, and even when it was wired improperly the home still did not have any 

detections of TCE. [Tr. 414]. Other interruptions occurred only because a home was vacant and 

the electricity was turned off. On other occasions, issues were discovered during routine 

inspections and were promptly corrected. There is no evidence that any of these interruptions led 

to elevated levels of TCE in indoor air; again, not a single indoor air sample since the systems 

were installed has exceeded IDEM’s screening level. [Tr. 424].

In addition, the Plaintiffs have not shown that vapors may enter in harmful amounts if 

any of the systems malfunctioned. Given the ongoing inspections, a system could be out of order 

for up to six months at the longest. The Plaintiffs have not addressed how quickly the vapors 

may begin entering a home if a system stopped, though, and have not offered any basis to find 

that harmful levels of vapors could result in that time. In addition, sub-slab vapor levels at 

unmitigated homes in the neighborhood have reduced dramatically since the mitigation systems 

were first installed in 2011.22 [See Jx. 2 table 12; Jx. 75 p. 3; Jx. 76 p. 5, fig. 3S.2-4; Tr. 491–92]. 

but IDEM’s action in this respect helps support the conclusion that the systems will continue to 

be adequately monitored and maintained.

22 The sub-slab vapor levels below the Interra Credit Union have reduced dramatically, too, 

though some of them remain above the screening level. [Jx. 2, table 14]. The Plaintiffs also cite 

the elevated soil gas levels on the Weiland property. Id. However, the soil gas testing done in the 

neighborhood shows that the elevated levels at the Weiland property (which is side-gradient, not 

upgradient, from the neighborhood) do not translate to elevated levels in the neighborhood, and 

lateral diffusion through the soil is not a threat at that distance. [Tr. 591].

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In fact, all of those sub-slab tests are now below the soil gas screening levels.23 [Jx. 76 p. 6, fig. 

3S.2-4]. The mitigation systems are not the only precaution, either; contractors also sealed cracks 

and installed other barriers to impede vapors’ ability to enter the structures.24 Given all those 

factors, the possibility that a system would malfunction, and would then remain off for long 

enough for harmful levels of vapors to enter, is simply too remote and speculative to qualify as 

an imminent and substantial endangerment.

The Plaintiffs also argue that mitigation systems are interim measures that do not 

remediate the underlying contamination. The role of an endangerment claim, though, is to 

prevent any endangerment to health. Vapor mitigation systems are commonly used for that very 

purpose and are successfully doing so here. The contamination is still being remediated under 

IDEM’s oversight, but because the vapor mitigation systems and all of evidence just discussed

demonstrate that no serious health risk exists or is threatened, that underlying contamination does 

not give rise to an imminent and substantial endangerment.

2. Vapor Intrusion in Unmitigated Structures and through Preferential 

Pathways

The Court likewise does not find that the contamination may present an endangerment in 

unmitigated residential or commercial structures or through preferential pathways, either. First, 

no unmitigated structures have ever had an indoor air test exceed IDEM’s applicable screening 

level. TCE has rarely been detected in any unmitigated residential homes. [Jx. 2 table 9]. The 

few detections have mostly been around an order of magnitude below IDEM’s screening level, 

and not a single indoor air test has exceeded that level. Id. As just noted, the subslab vapor tests 

23 The test results submitted post-trial are consistent with that finding, as the sub-slab screening 

levels were not exceeded in any mitigated or unmitigated homes.

24 To be sure, these measures do not mean that the basements are hermetically sealed from the 

subslabs or that no gaps exist, but they still offer a measure of protection.

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further support a conclusion that those homes are not at risk from elevated levels of vapors. 

Many of the unmitigated homes in the area have never had TCE detected even in the subslab soil 

gas, and no TCE has been detected at a residence above IDEM’s subslab screening level since 

2011. [Jx. 2 table 12]. The evidence thus does not reflect that these homes are at any risk of harm 

from TCE vapor intrusion.

The same goes for other, non-residential structures in the area. Goshen High School, 

which is at the far end of the plume of contamination, has never had any TCE detected in its 

indoor air. [Jx. 2, table 10]. Subslab vapor testing at the high school in 2019 only detected TCE 

in one of the eight locations tested, and in an amount about half of the screening level. [Jx. 2, 

table 13]. Other commercial structures have likewise never had an indoor air test exceed IDEM’s 

screening level for commercial properties, which is 8.8 μg/m3

. [Jx. 2, table 11]. Even though the 

subslab vapors are elevated below the Weiland property (which is northwest of the site), the 

indoor air tests have never come within half of the screening level. [Jx. 2, tables 11, 14]. The 

closest case is the Interra Credit Union property, which has had indoor air detections of TCE 

between 1.8 and 8.4 μg/m3. Even then, every single one of those tests has been below IDEM’s 

screening level, which is a health-protective level that already builds in margins of safety. Again, 

if the Plaintiffs did not believe the tests that have been conducted accurately reflected the true 

conditions, they could have sought to conduct additional tests, but they never did. Thus, for 

similar reasons as discussed above, the Court cannot find that the vapors may present an 

imminent and substantial endangerment to health in that structure, either.25

25 Moreover, even if the Court found that the vapors may present an imminent and substantial 

endangerment in this structure, that would not justify the far-reaching injunctive relief and 

comprehensive remediation the Plaintiffs seek. Instead, the relief would simply be to require 

Johnson Controls to offer to install a vapor mitigation system in that building. That would be 

sufficient to eliminate any health risk from vapor exposures in that building.

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The Court likewise does not find that the possibility of vapor intrusion through 

preferential pathways may present an imminent and substantial endangerment. Preferential 

pathways are conduits such as sewer lines that can become infiltrated by vapors and, conditions 

permitting, can transport those vapors into structures. The biggest issue posed by preferential 

pathways is that they cannot be redressed by vapor mitigation systems. The mitigation systems 

pull vapors from the soil below a structure, but preferential pathways can allow vapors to enter 

through utility connections instead of rising into a structure from the soil. Thus, if vapor 

intrusion from preferential pathways was occurring, some measure other than mitigation systems 

would be required.

The Plaintiffs have not shown that preferential pathways may present an endangerment

here, though. For obvious reasons, homes are designed to prevent gases in the sewer lines from 

entering indoor air. The presence of vapors in the sewers thus does not mean that a home is at 

risk of vapor intrusion. [Jx. 73 p. 12 (“[V]apor intrusion impacts from utility conduits require 

either improperly sealed utility connections to structures or leakage from cracked conduits to the 

soil.”)]. Here, most of the sewers that have been tested have not detected TCE. [Jx. 76 p. 8, table 

3S.4-1]. Vapors consistent with the site’s signature (meaning a similar ratio of contaminants as at 

the site) have been detected in two sewer lines, but the evidence does not suggest that harmful 

vapor intrusion is occurring or at risk from either of those lines.

TCE has been detected in the line by 16th and Egbert, at the southwest corner of the site, 

and in the line along Monroe, which runs to the west of the site. [Id.; Jx. 51, ex. 8 fig. 5]. After 

TCE was detected in the sewer line at 16th and Egbert, paired samples were taken at the same 

time in the sewer and in the indoor air of adjacent homes. [TR. 444]. While TCE was again 

detected in the sewer, though in smaller amounts, no TCE was detected at all in the homes 

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connected to that line, indicating that a completed pathway was not present between the sewer 

line and the indoor air. [Jx. 2, table 9 p. 8–9; Jx. 73 p. 12]. Other rounds of sampling in that area 

have been almost entirely non-detect for TCE, with the sole exception being one detection that 

was below the screening level by over an order of magnitude. [Jx. 2, table 9]. The homes along 

Monroe have had multiple rounds of testing too, as they sit above the plume and have mitigation 

systems. As already discussed, none of those homes have had TCE detected above IDEM’s 

screening level since the vapor mitigation systems were installed. The evidence thus fails to 

show that homes in the neighborhood are subject to vapor intrusion from the sewer lines. [Tr. 

599–600].

Dr. Keramida’s opinions to the contrary rely on speculation and unexamined 

assumptions. For example, Dr. Keramida noted in her initial report that “contaminated gases 

from within a sanitary sewer can enter a building directly at any given time, through its sewer 

connection, if the building’s plumbing is not designed, constructed or maintained properly.” [Jx. 

49 p. 20 (emphasis added)]. She did not proceed to analyze, though, whether that “if” is present 

here. [See Tr. 144–45]. Instead, she offered a bare assertion that TCE vapors would have been 

found in the indoor air of the homes near 16th and Egbert had they been sampled when that line 

was first sampled. [Jx. 49 p. 21]. Nothing in the report connects the dots from that premise to that 

conclusion, and the testing data does not show that those conditions are present. Nor did Dr. 

Keramida address even at a general level how common the sorts of defects are that might allow 

vapor intrusion from the sewers. Her testimony on redirect at trial offered some examples of 

problems that may allow vapors to enter, such as if a drain trap dries out. [Tr. 238]. Even then, 

her testimony at a high level of generality offers little basis to evaluate the likelihood that such a 

defect may occur in the homes at issue here such that they may become subject to vapor 

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intrusion. An endangerment claim does not require that harmful exposures are already occurring, 

but it requires more than just a hypothetical, speculative possibility that such an exposure could 

occur under some conceivable circumstance. Liebhart, 917 F.3d at 960. The Plaintiffs have not 

shown more than a speculative risk that any harmful exposure may occur through the sewer 

lines, so the Court cannot find that the contamination may present an imminent and substantial 

endangerment in that respect, either.

3. Enhanced Reductive Dechlorination Treatment Walls

Not only does the evidence show that the contamination currently in the neighborhood 

does not pose a risk of harmful vapor intrusion, the remedial activities Johnson Controls has 

taken at the site ensure that the vapors will not increase and pose a risk in the future. In 

particular, Johnson Controls injected Enhanced Reductive Dechlorination treatment walls at the

site. Those treatment walls will prevent the elevated levels of TCE that remain at the site from 

migrating into the neighborhood. The on-site contamination thus does not create a risk of 

harmful vapor intrusion in the neighborhood.

First, the Court does not find that the neighborhood is at risk from lateral diffusion of 

vapors (meaning lateral migration of vapors through the soil). Though Dr. Keramida opined that 

such a risk is present, the Court is persuaded by Dr. Dawson’s opinion to the contrary. [Tr. 591]. 

As Dr. Dawson explained, elevated concentrations of TCE in the soil vapors correspond very 

strongly to the elevated concentrations of TCE in the shallow groundwater. [Tr. 570 (noting that 

while vapors diffuse laterally for a short distance, “the highest concentration gradient is between 

the source and the ground surface, and that’s the direction that vapors ultimately travel.”), 583–

84 (“That is a classic vapor intrusion pathway evaluation that indicates the groundwater plume is 

responsible for -- or was responsible for the exceedances in the subslab, which in turn are where 

we saw exceedances in indoor air.”); Tr. 589–91]. That demonstrates that the contaminated 

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groundwater, not lateral diffusion through the soil, is responsible for producing the vapors in the 

neighborhood.

To the extent contamination at the site presents a risk to the neighborhood, then, it would 

be through TCE leaching from the soil to the shallow groundwater, which then flows under the 

neighborhood, where it could create vapors. [Tr. 591 (“So the soil source zones are contributing 

to the groundwater contamination. It’s the groundwater that is flowing laterally. And as it flows, 

it off-gases, and we see concentrations in the soil. Where the groundwater isn’t, we see very low 

to non-detect soil concentration.”)]. The treatment walls interrupt that process, though, by 

removing TCE from the shallow groundwater before it exits the site. [Tr. 1069]. Most notably, a 

treatment wall was injected at the western boundary of the site. That treatment wall is mature and 

is removing in excess of 99 percent of the TCE from the groundwater in the treatment zone.26

It is still an open question how far downgradient that treatment zone will extend and 

whether it will remediate the plume of shallow groundwater contamination throughout the 

neighborhood. At the very least, however, that treatment wall minimizes the risk of any further 

contaminant loading from the site. Even if TCE leaches into the soil at the site, the groundwater 

will pass through the treatment wall before entering the neighborhood, so the groundwater that 

enters the neighborhood will be clean (or nearly so). [Jx. 66 p. 3 (“Ongoing treatment of 

groundwater contamination at the Site is reducing the mass of chlorinated ethenes migrating 

from the Site. The rate of migration will continue to decrease as the biobarriers continue to 

develop[.]”); Tr. 463 (noting that the treatment wall was installed to prevent any further TCE 

loading)]. That process can also be expected to further reduce the vapor levels in the 

26 The treatment wall requires monitoring and may require maintenance over time, but for 

reasons already discussed, the Court cannot find a reasonable probability that Johnson Controls 

will cease doing so.

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neighborhood through the process of attenuation. [Jx. 66 p. 8 (“[A]ttenuation of the remaining 

source and plume core will result in improvements in water quality downgradient at MW-36WT 

as groundwater continues to migrate beneath the neighborhood.”), p. 10 (“[A] bio-barrier is 

capable of effecting groundwater remediation throughout a downgradient plume simply by 

intersecting and treating the source of the plume.”); DE 424-1 ¶ 7 (“As TCE in groundwater is 

reduced through the expansion of the ERD remedy, vapors associated with TCE in groundwater 

also will continue to be reduced.”)]. Thus, not only is there no reason to believe that vapor levels 

will worsen as compared to the levels that have been observed over the last eight years, those 

conditions are likely to continue to improve. And because the evidence already discussed does 

not show that the vapors may present an endangerment to the neighborhood under current 

conditions, there is no imminent risk that they may do so in the future, either.

4. Health Effects and Screening Levels

Thus far the Court has referred to IDEM’s screening levels. As already discussed, the 

reason for that is not that they set legal requirements or that the standards in a given state govern 

an endangerment claim in that state. Liebhart, 917 F.3d at 959; Interfaith, 399 F.3d at 260; 

Metacon, 575 F.3d at 212. Instead, the Court finds that they are health-protective levels at which 

no adverse health effects are expected, and thus reflect the absence of a serious health risk. [See, 

e.g., Tr. 788–89 (Dr. Fedoruk)]. The Plaintiffs invoke a variety of other levels and argue that 

exceedances of those levels may present an endangerment, but the Court disagrees.

To begin with, screening levels do not reflect levels above which serious health effects 

may occur. Instead, they represent levels at which no effects are expected. [See Jx. 63 p. 20 

(noting that a Reference Concentration is defined as an “estimate (with uncertainty spanning 

perhaps an order of magnitude) of a continuous inhalation exposure to the human population 

(including sensitive subgroups) that is likely to be without an appreciable risk of deleterious 

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effects during a lifetime”)]. They do not represent thresholds for adverse effects, either, as they 

have multiple conservatisms built in. [Jx. 63 p. 20 (Dr. Fedoruk); Jx. 9 p. 15 (“In practice, the 

protective assumptions built into the screening levels make the probable additional carcinogenic 

risk of using those levels under appropriate land use scenarios substantially lower than 10-5. Noncarcinogenic effects at screening levels are also unlikely, for the same reason.”)]. Exceeding a

regulatory screening level thus does not indicate a risk of an adverse health effect. [Dr. Chang: 

Jx. 61 p. 16, 23; Tr. 1110–11 ( “[Reference concentrations are] specifically defined as regulatory 

values that are meant to be protective and below which we don’t expect to see adverse health 

effects. But they’re not a demarcation of some sort of threshold for health problems.”)]. 

Exceeding a screening level does not even necessarily prompt any action or cleanup; further 

monitoring or assessment will sometimes be the only response. [Dx. G-11 (“[Screening levels] 

are chemical-specific concentrations for individual contaminants in air, drinking water and soil 

that may warrant further investigation or site cleanup. . . . It should be emphasized the [screening 

levels] are not cleanup standards.”); Jx. 9 p. 15 (“Screening levels are like ‘first cut’ values—if 

chemical concentrations at a site do not exceed screening levels, the site is generally eligible for 

closure, though conditions may apply. An exceedance of screening levels indicates the need for 

additional evaluation.”); Jx. 61 p. 16 (Dr. Chang)]. See also Metacon, 575 F.3d at 212–13; Tilot 

Oil, 907 F. Supp. 2d at 965.

Because screening levels represent the lack of a risk, not the threshold for where a risk 

may occur, it is inappropriate to cherry-pick the most stringent levels and to suggest that they 

reflect the level at which an endangerment may occur. If screening levels are what they claim to 

be, then it should be appropriate to use the highest level, not the lowest. If no risk is present at 

the highest level, then no risk would be present at the lowest, either, but the lack of risk at the 

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lowest level does not imply the existence of risk at the higher. [Jx. 62 p. 5 (Dr. Chang)]. IDEM’s 

screening level is not an outlier, either, as might suggest that it is unworthy of credence; at least a 

dozen other states use similar or higher screening levels. [Jx. 73 p. 7; Tr. 1265]. Dr. Keramida’s 

practice in her own projects of allowing her clients to pick which screening levels to use further 

undermines her effort in this case to apply the most stringent level she can find and to suggest it 

represents a level above which a risk to health may exist. [See Tr. 165, 173–74].

With that understanding, the Court addresses the various other levels the Plaintiffs raise, 

beginning with the cancer screening level. For cancer effects, screening levels are based on the 

number of additional cancers expected in the background rate in a population, assuming the 

population is continuously exposed to the substance for a lifetime. Agencies generally view the 

acceptable range of risk to be between one additional cancer in a population of one million 

people (10-6

) to one in ten thousand (10-4). [Dr. Dawson: Tr. 575–76, 650; Jx. 73 p. 5]. IDEM 

uses a cancer screening level based on a risk of one in one hundred thousand (10-5

), which is the 

traditional risk level used by the RCRA program. [Dr. Dawson: Jx. 73 p. 5; Tr. 684]. The 10-5

cancer risk corresponds to a screening level for TCE of 4.8 μg/m3.

The EPA, however, uses the 10-6 cancer risk in screening for TCE, which corresponds to 

a screening level of 0.48 μg/m3. The Plaintiffs argue that because some tests have detected TCE 

above that amount, TCE may present an imminent and substantial endangerment to health. The 

Court disagrees. Again, the 10-6 cancer risk equates to an additional one-in-a-million chance of 

cancer, assuming a person is continuously exposed to vapors in that amount for their lifetime—

24-hours a day, 365 days a year, for 70 years. Only 16 homes in the neighborhood have ever had 

TCE detected above 0.48 μg/m3

. Even if multiple people spent their entire lives inside each of 

those homes, being constantly exposed to that amount of TCE, giving rise to a one-in-a-million 

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risk, there is still a vanishingly small chance that even a single excess cancer would occur.27 [See 

Tr. 758 (Dr. Fedoruk explaining that if the entire City of Goshen was exposed to a cancer risk of 

10-5 for their entire lifetimes, not even a single excess cancer would be expected)]. Not only is 

that risk far too remote to be considered an imminent and substantial endangerment, but the 

conservatisms built into both the screening level28 and the exposure assumptions ensure that the 

actual risk is much, much lower. [See Jx. 9 p. 15; Tr. 1128, 1132–33 (Dr. Chang)]. In addition, 

after 2011, only four homes have had TCE detected in that amount, and no home has had more

than one such detection. That shows that no long-term exposure to this level is occurring, even if 

a lifetime of exposure to this level would represent an endangerment. This same analysis would 

apply to Dr. Orris’ opinion that an endangerment exists based on the “Inhalation Unit Risk” of a 

four-in-a-million chance of cancer at a lifetime of exposure to 1 μg/m3 of TCE. [Jx. 59 p. 11; Tr. 

320–21; see also Tr. 1131–32 (Dr. Chang testifying that at an exposure of 1 μg/m3, it would take 

one million years of exposure to produce the cumulative amount of exposure at which an 

increased risk of cancer in humans has been observed)].

Testimony by Johnson Controls’ experts further supports that conclusion. As Dr. Fedoruk 

testified, even ordinary experiences like taking a cross-country flight or eating peanut butter can 

carry a 10-6 cancer risk. [Tr. 756–57]. Dr. Chang likewise testified that toxins in the ambient air 

often exceed a cancer risk of 10-5

, and that epidemiological studies show that the concentrations 

at which an increased risk of cancer has been observed in humans from exposures to TCE were 

orders of magnitude higher than the concentrations at issue here. [Tr. 1129–32; Jx. 61 p. 8–9, 

27 Assuming 10 people spent their entire lives inside those homes, such that 160 people were 

exposed to a one-in-a-million risk, there is still a greater than 99.98 percent chance that the risk 

would not materialize.

28 Such as the assumptions that the dose–response relation is linear and that no threshold exists 

for an increased risk, which are not based on observation. [Dr. Chang: Tr. 1128, 1132–33].

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18–19]. Even Dr. Orris, the Plaintiffs’ health expert, acknowledged that the levels of exposure 

here are comparable to common background levels. [Tr. 335]. Moreover, as Dr. Dawson 

testified, even though the EPA uses the 10-6 screening level, it doesn’t necessarily take action

when a test comes back at that level; its response is often just more monitoring. [Tr. 685, 689–

90]. That demonstrates that, whatever value the 10-6 cancer risk level may have for regulatory 

screening purposes, it does not show that any exposures here may present an imminent and 

substantial endangerment to health. Of course, the Plaintiffs do not have to show that the 

contamination will cause adverse effects here; an increased risk can suffice, and the legal 

standard is meant to be protective. See Liebhart, 917 F.3d at 958–61. But the Plaintiffs have not 

shown more than a de minimis and speculative risk based on the low-level exposures that may 

occur here.

The alternative levels the Plaintiffs invoke for toxic (non-cancer) effects likewise fail to 

indicate that the levels of exposure at issue here may present an imminent and substantial 

endangerment to health. Screening levels for toxic effects are based on the EPA’s Reference 

Concentration, which is defined as “an estimate (with uncertainty spanning perhaps an order of 

magnitude),” of a continuous exposure “to the human population (including sensitive subgroups) 

that is likely to be without an appreciable risk of deleterious effects during a lifetime.” [Jx. 14 p. 

1-1]. In other words, if the entire population was continuously exposed to a substance at that 

amount, no appreciable risk of health effects would be expected, even in the most at-risk

populations. The Reference Concentration is then adjusted by exposure assumptions for different 

settings to produce screening levels for those settings. It can also be adjusted by a Hazard 

Quotient to account for different risk levels.

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Agencies typically consider a Hazard Quotient of 1.0 to represent an acceptable risk 

level, and IDEM’s residential screening level at a Hazard Quotient of 1.0 is 2.1 μg/m3. Dr. 

Keramida opines, however, that a Hazard Quotient of 0.1 should apply, producing a screening 

level of 0.21 μg/m3, due to the presence of multiple contaminants. [Jx. 49]. Dr. Keramida has not 

shown that using a Hazard Quotient of 0.1 instead of 1 is probative of whether an endangerment 

may exist here, though. A Hazard Quotient of 0.1 applies only where multiple contaminants are 

present that share the same toxic endpoint. [Dx. G-11 p. 18 (“Site-specific [screening levels] 

corresponding to an HQ of 0.1 may be appropriate for those sites where multiple chemicals are 

present that have [Reference Concentrations] based on the same toxic endpoint.”); Dr. Dawson: 

Jx. 73 p. 6; DE 424-1 ¶ 9].

TCE does not have the same toxic endpoint as any of the other substances here, though. 

[Dr. Dawson: Jx. 74 p. 1; Tr. 581–82].Though the EPA may recommend the use of a Hazard 

Quotient of 0.1 for preliminary screening purposes when multiple contaminants may be present, 

[Tr. 581–82, 711], the contaminants and their toxic endpoints are already known here. Thus, that 

precaution might be appropriate for regulatory or investigatory purposes, but it has no bearing on 

the effects associated with the contamination in question here. The screening levels based on a 

Hazard Quotient of 0.1 are therefore not useful in evaluating whether the contamination here 

may present an endangerment.

The Plaintiffs also rely on stricter screening levels adopted by EPA Regions 9 and 10. 

Those screening levels are also based on the EPA’s Reference Concentration for TCE. However, 

because that Reference Concentration is based in part on the risk of fetal cardiac malformations

(extrapolated from animal studies), which can develop during a three-week period during 

pregnancy, these regions set screening levels based on the assumption that a risk could occur 

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from a three-week exposure period instead of over a lifetime of exposure. The screening levels 

are thus slightly lower—2.0 μg/m3 for residential exposures and 8.4 or 8.0 μg/m3 for commercial 

exposures—and the agencies seek to prevent even short-term exposures at those levels. [Px. 169

(“If such concentrations are exceeded, measures to expeditiously reduce exposure should be 

considered.”), 207].

The difference in the screening levels themselves is largely academic. Whether the 

residential screening level is 2.1 or 2.0 μg/m3, no indoor air test in any home has exceeded those 

levels since the mitigation systems were installed. [Jx. 2 table 9]. No test in any commercial 

structure has exceeded the Region 10 commercial screening level of 8.4 μg/m3

, either. The 

highest detection was a single test in the Interra Credit Union of 8.4 μg/m3, which is at—not 

above—the screening level, and would not trigger action even under Region 10’s standards. [Px. 

169]. Region 9’s commercial screening level is lower, at 8 μg/m3, but the difference is illusory. 

Region 9’s calculation produces the exact same level as Region 10, it just rounds it down to the 

nearest whole number.29 [Px. 207 p. 3]. That sort of artificial adjustment may be perfectly 

appropriate for regulatory screening purposes, but it bears no connection to evaluating whether 

an imminent and substantial endangerment may be present. To the contrary, it is just a further 

illustration of how screening levels, with the conservatisms and margins built in by the agencies, 

reliably reflect the lack of a risk but not the level above which a risk may be present. [Dr. Chang: 

Jx. 61 p. 23; Jx. 62 p. 5]. Thus, again, it is a misuse of screening levels to pick the most stringent 

level and then suggest that any higher level of exposure creates a risk of adverse health effects. 

29 “Commercial/Industrial accelerated response action levels are calculated as a time-weighted 

average from the RfC, based on the length of a workday and rounding to one significant digit 

(e.g., for an 8-hour workday: Accelerated Response Action Level = (168 hours per week/40 

hours per week) x 2 μg/m3 = 8 μg/m3).” [Px. 207]. That calculation (168/40 x 2) is actually 8.4, 

before rounding down.

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The Plaintiffs rely on these screening levels primarily for their short exposure-duration 

assumptions. The Plaintiffs argue that if TCE levels rise for even short times, whether due to 

variability or because a mitigation system fails, a pregnant occupant could be exposed to a risk of 

developmental defects in the baby, thus presenting an imminent and substantial endangerment.

For many of the same reasons already discussed, though, the Court finds the risk of those 

exposures to be too remote and speculative. Vapor mitigation systems are reliable and effective, 

and the evidence shows that they are successfully preventing harmful levels of vapors from 

entering any residences. Speculation that a system could fail, go undetected, and allow vapors to 

enter in harmful levels (and remain present for three weeks30) falls short of establishing the risk 

of an imminent endangerment. The Plaintiffs have not shown how quickly or in what amount 

TCE could enter a home if a system failed, either. Subslab vapor levels have also reduced 

dramatically and are below screening levels at every residence that was tested in the most recent 

round. [Jx. 76 p. 6, fig. 3S.2-4]. That indicates that the risk of vapor intrusion is low even if a 

system failed. Variability is also of less concern in mitigated structures, and the Plaintiffs 

declined to take samples of their own to test their theory that higher levels of exposure may be 

occurring, so the Court cannot find that the possibility of variability indicates a risk of harmful 

exposure, either.

Moreover, the use of the Reference Concentration as a not-to-exceed level for short-term 

exposures due to the risk of fetal cardiac malformations is questionable. The study on which the 

Reference Concentration is based in that respect has not been replicated, despite multiple 

attempts. [Js. 62, p. 6]. IDEM reviewed Region 9’s approach and expressly declined to adopt it: 

30 The Region 9 and 10 screening levels are based on continuous exposures for three weeks, not 

one-time or transient exposures. [Px. 169, 207].

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“This approach has been highly controversial (the results obtained in the original study 

indicating increased incidence of fetal cardiac malformations have not been replicated despite 

several attempts to do so) and has proven to be very problematic as a policy. The majority of 

states and U.S. EPA regions are not implementing this approach. IDEM has recently concluded 

that an accelerated response is not scientifically supportable based upon current information.” 

[Dx. K-1]. The parties’ experts likewise debate the validity of the science underlying this 

approach.

Even assuming Region 9 and 10’s approach is appropriate for regulatory purposes, 

though, short-term exposures at or even above that level would not give rise to an imminent and 

substantial endangerment. As discussed above, the Reference Concentration on which those 

regions’ levels are based already builds in layers of conservatisms and safety margins. [Jx. 14 p. 

1-1; Dr. Fedoruk: Jx. 63 p. 20–21; Tr. 767, 771–73, 795–96]. Even exposures above that level 

within an order of magnitude are thus unlikely to have any appreciable effect.31 [Tr. 771–73, 

795–96 (Dr. Fedoruk); Dx. K-1 (explaining that IDEM’s action level “is an order of magnitude 

higher than the indoor air screening level”)]. Likewise, even Dr. Orris acknowledged that 

exposures in this range are commonplace from background sources. [Tr. 335 (“Q. Is it fair to say 

that many of us are exposed to TCE vapor levels in excess of 1.9 every day? A. I’m afraid so.”)].

As Dr. Chang testified, “we would be seeing . . . an epidemic of fetal cardiac defects” if those 

exposures actually created such a risk, but that has not occurred. [Tr. 1171]. Given the 

unlikelihood that exposures above these levels will occur, as well as the fact that exposures at or 

31 By comparison, in Interfaith, where the court relied largely on exceedances of agency 

screening levels to determine an endangerment, the contamination (in mediums to which 

exposure was occurring or threatened) exceeded the applicable levels by 30 to 8,000 times. 399 

F.3d at 261.

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above these levels would not create a serious health risk even in the most sensitive populations, 

the Region 9 and 10 levels do not indicate that the contamination here may present an imminent 

and substantial endangerment.

Finally, Dr. Orris’ opinions that there is no safe level of exposure are beside the point. It 

may well be that less exposure is always better than more, but the question here is whether the 

contamination may present an imminent and substantial endangerment. The existence of a 

minute risk comparable to the risk caused by breathing outdoor air with common background 

levels of toxins, or by ordinary experiences like eating peanut butter or taking a long flight, does 

not constitute an imminent and substantial endangerment to health. Nor has Dr. Orris otherwise 

drawn a connection between the contamination here and a serious health risk. Most of his report 

is devoted to reciting potential effects that TCE exposure can have at some quantity of exposure. 

But he offers little attention to the circumstances or exposures that give rise to those risks, and he 

makes very little attempt to connect any of those potential effects to the exposures in question 

here. [Jx. 59]. To the extent he draws that connection, it is only through his reference to the 

Inhalation Unit Risk for cancer effects and the Reference Concentration for toxic effects. For the 

reasons already discussed, the Court does not find that those levels represent thresholds for an 

imminent and substantial endangerment, and the Court is more persuaded by Johnson Controls’ 

experts’ testimony to the contrary. The Court therefore cannot credit Dr. Orris’ opinions that the 

levels of exposure in question here may present an imminent and substantial endangerment to 

human health.

5. Summary

The Court does not find that the contamination may present an imminent and substantial 

endangerment to health through the threat of vapor intrusion. An endangerment claim “was 

designed to provide a remedy that ameliorates present or obviates the risk of future ‘imminent’ 

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harms[.]” Meghrig, 516 U.S. at 486. Here, the vapor mitigation systems are already doing that, to

the extent any risk previously existed. Those systems are effective and reliable and are 

maintained regularly. With those systems in place, TCE levels have remained well below the 

levels at which TCE may pose a risk to health, as reflected by regulatory levels as well as by 

toxicological and epidemiological evidence. The evidence does not show that the contamination 

may present a risk of vapor intrusion in amounts capable of creating an appreciable risk of 

serious health effects in unmitigated structures or through preferential pathways, either. And 

given the preventative steps that have been taken and the remedial activities that have already 

been implemented, the contamination that remains in the neighborhood and at the site does not 

create an imminent risk of harmful vapor intrusion in the future, either. Therefore, the Court 

cannot find that the Plaintiffs have proven that the contamination may present an imminent and 

substantial endangerment in this respect.

IV. CONCLUSION

For those reasons, the Court concludes that the Plaintiffs have not proven that the 

contamination may present an imminent and substantial endangerment to health or the 

environment. The Court therefore finds in Johnson Controls’ favor on the Plaintiffs’ 

endangerment claim. The Court denies as moot the motions to strike expert testimony. [DE 426, 

427, 450, 451]

Because the Court previously granted summary judgment in Johnson Controls’ favor on 

the Plaintiffs’ other claim, this order resolves this action against Johnson Controls. Defendant 

Tocon Holdings, LLC, however, is in default and has not participated in this case. Accordingly, 

the Plaintiffs are ordered to file a status report, by September 9, 2020, as to their claims against 

Tocon.

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SO ORDERED.

ENTERED: August 10, 2020

 /s/ JON E. DEGUILIO 

Chief Judge

United States District Court

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