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

This is an environmental action arising out of contamination from a former Johnson 

Controls manufacturing facility. Five individuals who own or live in property next to the facility 

sued Johnson Controls under the Resource Conservation and Recovery Act. They first allege that 

Johnson Controls is violating its obligations under that Act because it hasn’t finished remediating 

the contamination. They also allege that the contamination, which has spread into their 

neighborhood and beyond, threatens health and the environment. Exhaustive discovery ensued 

and has now closed, and both sides moved for summary judgment. The parties also filed 

numerous related motions, including five motions to strike or exclude expert testimony. 

The Court finds that summary judgment is warranted in Johnson Controls’ favor on the 

claim that it is in violation of the Act. Johnson Controls has complied with the requirements 

imposed by the regulations and the implementing agency, and the Plaintiffs’ arguments to the 

contrary fail as a matter of law. However, the Court finds that factual disputes preclude summary 

judgment for either side on the claim that the contamination may present an imminent and 

substantial endangerment. The Court also resolves the expert motions in part, but reserves ruling 

in part until trial. 

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I. FACTUAL BACKGROUND 

The Resource Conservation and Recovery Act was passed in 1976, and enacted a broad 

range of policies and procedures to control the disposal of solid and hazardous waste. Meghrig v. 

KFC W., Inc., 516 U.S. 479, 483 (1996); Adkins v. VIM Recycling, 644 F.3d 483, 486 (7th Cir. 

2011). Subchapter III of the Act addresses hazardous wastes in particular, and empowers the 

environmental agencies “to regulate hazardous wastes from cradle to grave[.]” City of Chicago v. 

Envtl. Def. Fund, 511 U.S. 328, 331–32 (1994). As relevant here, the Act required all facilities 

involved in treating, storing, or disposing of hazardous wastes to obtain permits, and subjected 

those facilities to stringent regulation. Id. Facilities that only generated hazardous wastes were 

regulated as well, but not nearly as stringently. Id.

Because the permits for treatment, storage, and disposal facilities would take years to 

process, the statute and regulations created a two-step process for existing facilities to become 

permitted. First, the facility would submit a Part A application. Upon submitting that application, 

the facility is deemed an “interim status” facility. 42 U.S.C. § 6925(e). The facility could then 

either submit a Part B application in order to receive a permit to continue operating as a 

treatment, storage, and disposal facility, or it could stop its treatment, storage, and disposal 

activities and undergo closure. Roughly speaking, closure is a process defined by the regulations 

by which a facility shuts down each hazardous waste management unit at the facility, removes 

hazardous waste from the units, and decontaminates the units to the extent necessary to prevent 

post-closure releases of hazardous waste. 

Johnson Controls operated a manufacturing facility in Goshen, Indiana for many years, 

making parts for thermostats and building controls systems. Its manufacturing process included 

the use of chlorinated solvents, including trichloroethylene (TCE), in the degreasing of metal 

parts. Due to its use of those chemicals, the facility’s operations qualified it as a treatment, 

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storage, or disposal facility under the Act. Thus, in October 1980, Johnson Controls filed its Part 

A application. The United States Environmental Protection Agency later confirmed that the 

facility qualified as an interim status facility. In 1988, Johnson Controls notified the Indiana 

Department of Environmental Management (which had since been authorized to implement the 

Act in Indiana) that it intended to undergo closure instead of submitting a Part B application and 

seeking a permit. In February 1991, it submitted a closure plan in which it identified four 

hazardous waste management units that would have to undergo closure, and outlined the steps 

that it would take to complete closure. In March 1991, after a period for public comment, IDEM 

approved Johnson Controls’ closure plan. 

While conducting sampling pursuant to the approved closure plan, Johnson Controls 

discovered contamination of TCE and other chlorinated Volatile Organic Compounds in onsite 

soil and groundwater. It then discovered that a plume of contamination extended off the site to 

the northwest, into a neighborhood that was immediately adjacent to the facility. High levels of 

TCE were found in well water in some of those homes’ private wells, so Johnson Controls 

arranged for each of those homes to be connected to the municipal water supply. 

In the meantime, Johnson Controls completed closure of one of its hazardous waste 

management units and submitted a certification to that effect, which IDEM accepted in April 

1992. It then continued to investigate the remaining contamination under IDEM’s oversight. In 

August 1996, Johnson Controls entered an agreement with IDEM to participate in its Voluntary 

Remediation Program in order to investigate and remediate the existing contamination. In 

August 1998, Johnson Controls submitted a revised closure plan for its three remaining 

hazardous waste management units. As agreed to during a previous meeting with IDEM, that 

plan defined the scope of the units as the boundaries of the units or their buildings, to a depth of 

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one foot. Thus defined, two of the units contained no contamination and required no further 

closure activities. For a third unit, Johnson Controls proposed removing the concrete floor, 

excavating the underlying soil to a depth of 1.5 feet, inserting a plastic liner, filling it with 

gravel, and then replacing the concrete floor. As also previously discussed with IDEM, the 

closure plan specified that the remaining contamination outside of those units would be 

addressed through the Voluntary Remediation Program instead of as part of the closure process. 

After allowing a period for public comment, IDEM approved Johnson Controls’ closure 

plan in February 1999. Johnson Controls thereafter completed each of the activities set forth in 

the approved closure plan. In March 2000, Johnson Controls submitted a certification that each 

of the waste management units at the facility had been closed in accordance with the approved 

closure plan, and that no further closure activities were required. In an August 2000 letter, IDEM 

accepted Johnson Controls’ certification of closure and stated that “total closure is completed.” 

[DE 294-25]. The letter noted, though, that IDEM’s acceptance of closure was “conditional with 

the expectation that Johnson Controls Inc. will address the remaining contamination beneath the 

closed hazardous waste management units via the Voluntary Remediation Program.” Id. Johnson 

Controls ceased its operations at the site in 2006, after which it sold to the property to Tocon 

Holdings, LLC. Tocon later tore down each of the buildings at the site, which now sits vacant. 

Throughout this time, Johnson Controls continued to participate in the Voluntary 

Remediation Program under IDEM’s oversight and has engaged in various remediation and 

mitigation activities. From 2000 to 2012, Johnson Controls operated a groundwater “pump and 

treat” system that removed several tons of contaminants from the groundwater. Johnson Controls 

also performed other remediation activities at the site, including excavating 31 tons of 

contaminated soil from the site in 2001. More recently, in 2015, Johnson Controls used 

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“emulsified zero-valent iron” remediation to address contamination in the soil at two small areas 

at the site. And most recently, in 2017, Johnson Controls implemented a pilot program intended 

to remediate shallow groundwater. It used “in-situ enhanced reductive dechlorination,” in which 

substances are injected to the groundwater in order to break down the TCE. 

Substantial contamination still exists both on and off the site, though. The soil at the site 

still contains contamination. A plume of contamination is also present in the shallow 

groundwater, which is about fifteen feet below ground. The plume extends to the west and 

northwest of the site, through the Plaintiffs’ neighborhood and under the Plaintiffs’ homes. As 

the contamination moves farther from the site, it also extends deeper into the ground. While the 

shallow groundwater contamination consists mostly of TCE, the deeper contamination consists 

more of TCE’s breakdown products, including vinyl chloride. The contamination in the deep 

groundwater is of concern because the city’s wellfield draws water from that aquifer. The 

parties’ experts disagree on whether contamination from the Johnson Controls site may ever 

reach the wellfield, though. The city wells are about a mile to the northwest of the Johnson 

Controls site, but they draw water predominantly from the northeast, as that is the direction from 

which the groundwater generally flows. 

Another concern presented by the contamination is vapor intrusion. Contamination in the 

shallow groundwater can volatize into vapor and can migrate up to the surface, where it can enter 

indoor air. In 2011, Johnson Controls began testing area homes for vapor intrusion. In fifteen 

homes, TCE was detected above IDEM’s indoor air screening level. Accordingly, Johnson 

Controls had vapor mitigation systems installed in each of those homes. Johnson Controls tested 

those homes again after the systems were installed to make sure they were working, but most of 

those homes were not tested again until 2018. At that time, TCE was detected in two of the 

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homes, but below IDEM’s screening level. Johnson Controls has tested various other homes and 

commercial buildings over the years, but does not believe any structures other than those fifteen 

homes require mitigation systems. The map below shows the Johnson Controls site, the 

Plaintiffs’ neighborhood, the plume of shallow groundwater contamination as identified by 

Johnson Controls’ expert, the area of vapor intrusion impact as identified by the Plaintiffs’ 

expert, and the properties with vapor mitigation systems: 

The Plaintiffs here are five individuals associated with three properties near the site, each 

of which have vapor mitigation systems due to the previous detections of TCE. Richard Stewart 

owns and is the landlord of a house immediately adjacent to the Johnson Controls site. Stephen 

and Lori VanDiepenbos live in the house next door. Ronald and Sonya Schmucker own and are 

the landlords of the house across the street from them. In May 2004, the Plaintiffs sued Johnson 

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Controls, asserting claims under the Resource Conservation and Recovery Act. (They also sued 

Tocon, but Tocon has not participated in this action in some time.) Extensive discovery ensued, 

for which the magistrate judge appointed a special master. That entailed extensive expert 

discovery, with two retained experts for the Plaintiffs and six retained experts for Johnson 

Controls. Discovery has now closed, and both sides have filed motions for summary judgment, 

which are fully briefed. 

II. ANCILLARY MOTIONS 

Before resolving the motions for summary judgment, the Court addresses a number of 

other pending motions. 

A. Motion to Exclude Dr. Keramida’s Opinions 

Johnson Controls moves to exclude opinions by Dr. Vasiliki Keramida, a retained expert 

for the Plaintiffs. Dr. Keramida has advanced degrees in environmental engineering. She has 

taught courses in environmental engineering; she spent six years leading environmental 

programs for the City of Indianapolis; and for the last thirty years, she has led her own firm that 

provides sustainability, environmental, remediation, and health and safety services. She has 

served as project manager for hundreds of projects involving the assessment and remediation of 

industrial and commercial properties. She has also served on various regulatory advisory 

committees, assisting the EPA and IDEM in developing guidelines and regulations. 

As relevant here, Dr. Keramida opined that contamination from the Johnson Controls 

facility present an imminent and substantial endangerment to human health and the environment. 

She first opined that the contamination presents an endangerment through the threat of vapor 

intrusion, as shown by the high concentrations of TCE in the groundwater and soil, and tests 

showing that TCE was present in the indoor air of homes in the neighborhood. She also opined 

that the vapor mitigation systems installed in those homes are not sufficient to abate the 

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endangerment. She next opined that the contamination presents an endangerment due to its 

presence in the groundwater, from which private wells might draw water for drinking or 

irrigation. She also concluded that the contamination presents an endangerment to the 

environment because it may reach the city’s wellfield. She contended that these risks are 

substantial because the contamination exceeds levels developed by the EPA to protect human 

health. Finally, Dr. Keramida outlined the remedial actions that she believes need to occur to 

reduce the contamination to levels protective of health and the environment.1

Johnson Controls moves to exclude all of those opinions. Rule 702 governs the admission 

of testimony by expert witnesses. Under that rule, a witness “who is qualified as an expert by 

knowledge, skill, experience, training, or education” may offer an opinion if the following 

criteria are met: 

(a) the expert’s scientific, technical, or other specialized knowledge will help 

the trier of fact to understand the evidence or to determine a fact in issue; 

(b) the testimony is based on sufficient facts or data; 

(c) the testimony is the product of reliable principles and methods; and 

(d) the expert has reliably applied the principles and methods to the facts of the 

case. 

Fed. R. Evid. 702. A court has a gatekeeping role to ensure that expert testimony meets these 

criteria. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); C.W. ex rel. Wood v. 

Textron, Inc., 807 F.3d 827, 834–35 (7th Cir. 2015). As the Seventh Circuit has emphasized, 

though, a court does not assess “‘the ultimate correctness of the expert’s conclusions.’” Textron, 

807 F.3d at 834 (quoting Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013)). 

 

1

 Dr. Keramida also opined that Johnson Controls is violating its obligations under the Act, but 

she relied on a legal premise that the Court rejects, and the meaning of a statute or regulation is 

not subject to expert testimony. Aguirre v. Turner Const. Co., 582 F.3d 808, 814 (7th Cir. 2009); 

Good Shepherd Manor Found., Inc. v. City of Momence, 323 F.3d 557, 564 (7th Cir. 2003).

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Rather, a court must focus “solely on principles and methodology, not on the conclusions they 

generate.” Schultz, 721 F.3d at 432 (quoting Daubert, 509 U.S. at 595). “So long as the 

principles and methodology reflect reliable scientific practice, ‘vigorous cross-examination, 

presentation of contrary evidence, and careful instruction on the burden of proof are the 

traditional and appropriate means of attacking shaky but admissible evidence.’” Id. (quoting 

Daubert, 509 U.S. at 596). 

There is another consideration to take into account in addressing the Daubert motions, in 

that the case will be tried in a bench trial. Though the Plaintiffs’ complaint demands a jury trial, 

the basis for that demand was the availability of civil penalties as a remedy for their claim under 

§ 6972(a)(1)(A). [DE 61]. As explained below, the Court grants summary judgment in Johnson 

Controls’ favor on that claim for reasons unaffected by any expert testimony. The remaining 

claim, under § 6972(a)(1)(B), permits only injunctive relief. 42 U.S.C. § 6972(a) (authorizing 

“any appropriate civil penalties under section 6928(a) and (g),” each of which require a 

violation); City of Evanston v. N. Ill. Gas Co., 229 F. Supp. 3d 714, 724 (N.D. Ill. 2017) (holding 

that civil penalties are not available for subsection (a)(1)(B) claims, and collecting cases to that 

effect). Therefore, the remaining claim will be tried in a bench trial. 

That does not change the standard of review—the testimony must still satisfy Rule 702. 

Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 760 (7th Cir. 2010). It does, however, 

impact when the Court needs to make that finding. “Where the gatekeeper and the factfinder are 

one and the same—that is, the judge—the need to make such decisions prior to hearing the 

testimony is lessened.” In re Salem, 465 F.3d 767, 777 (7th Cir. 2006). The Seventh Circuit has 

thus held that when “a trial judge conducts a bench trial, the judge need not conduct a Daubert

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(or Rule 702) analysis before presentation of the evidence[.]” Kansas City S. Ry. Co. v. Sny 

Island Levee Drainage Dist., 831 F.3d 892, 900 (7th Cir. 2016). 

Given the scope of Dr. Keramida’s opinions and the complexity of the underlying issues, 

the Court takes that approach here in part. As discussed below, the Court denies summary 

judgment on the endangerment claim on the basis of the threat of vapor intrusion. The Court 

therefore limits its analysis at this time to Dr. Keramida’s opinions on that topic, specifically the 

threat of vapor intrusion by TCE at properties that have previously had TCE detected in their 

indoor air. The Court also addresses her opinions as to the appropriate remedy, as Johnson 

Controls seeks summary judgment in that regard as well. As to the rest of her opinions, the Court 

dismisses the motion to exclude and will allow the parties to address the opinions’ admissibility 

in conjunction with trial. 

In moving to exclude Dr. Keramida’s opinions as to vapor intrusion, Johnson Controls 

first argues that Dr. Keramida improperly relied on past data reflecting the presence of TCE in 

indoor air, instead of more recent data since the vapor mitigation systems were installed.2

Johnson Controls is correct that the focus of an endangerment claim is the present risk, not 

purely past risks. Meghrig, 516 U.S. at 488. However, the past data upon which Dr. Keramida 

relied is probative of the present risk for several reasons. First, it shows that the levels of TCE in 

the ground are sufficient to cause vapor intrusion in these homes, and that pathways are present 

to allow the TCE to enter the homes. Second, the groundwater in the Plaintiffs’ neighborhood 

has not been remediated, and Dr. Keramida opined that the vapor levels in the soil remain high. 

 

2

 In challenging Dr. Keramida’s vapor intrusion opinions, Johnson Controls also argues that she 

had no basis upon which to opine that a risk was present in all structures within the “cloud” she 

identified as the area subject to contamination from the site. The Court does not reach those 

arguments, though, as it confines its analysis to the homes where vapor intrusion has been 

detected.

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This evidence thus provides Dr. Keramida a basis to conclude that the vapors are capable of 

entering the homes in similar amounts today. In fact, even one of Johnson Controls’ experts 

could not say that no endangerment would exist if the vapor mitigation systems were not 

working. 

Of course, mitigation systems have been installed, and subsequent tests have not detected 

TCE at the same amounts as before. However, those tests do not prove conclusively that vapor 

intrusion is neither occurring nor threatened. As Dr. Keramida discussed, those tests are fallible, 

due in part to the spatial and temporal variability of vapor intrusion. In addition, Dr. Keramida 

offers reasons to doubt whether the mitigation systems are sufficient to obviate the risk. Dr. 

Keramida notes that environmental agencies generally view mitigation systems as interim 

measures, in part because they are subject to failure. She also notes that the systems here have 

experienced interruptions on multiple occasions, and she opines that they were not designed or 

installed properly.3

 If the systems are not working, the existing threat of vapor intrusion may still 

present an endangerment. Johnson Controls is free to argue at trial that the Court should not 

credit Dr. Keramida’s opinion, but she has adequately explained why she concludes that an 

endangerment still exists even in light of subsequent testing and mitigation, so the Court declines 

to exclude her opinion on that basis. 

Johnson Controls next argues that Dr. Keramida offers no basis to evaluate whether the 

risk is substantial, as she relied on regulatory guidelines for acceptable levels of contaminants. 

Johnson Controls argues that her conclusions were flawed because agency screening levels are 

 

3

 Johnson Controls also argues that this opinion contradicts Dr. Keramida’s opinion that, as a 

preventative measure, vapor mitigation systems should be installed in all homes in the area. 

Those opinions are not mutually exclusive, though; it is possible to say that the systems are not 

effective enough to obviate any endangerment, but that they are still better than nothing until the 

contamination giving rise to that endangerment has been remediated.

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not probative of human health risk. The Court declines to exclude Dr. Keramida’s opinion on 

that basis. It is true that regulatory screening levels do not govern endangerment claims, meaning 

that exceeding a screening level does not conclusively establish a substantial endangerment, just 

as complying with screening levels does not foreclose such a finding. Interfaith Cmty. Org. v. 

Honeywell Int’l, Inc., 399 F.3d 248, 261 n.6 (3d Cir. 2005) (holding that agency “standards do 

not define a party’s federal liability under RCRA”); Simsbury-Avon Pres. Club, Inc. v. Metacon 

Gun Club, Inc., 575 F.3d 199, 212–13 (2d Cir. 2009). That is not to say, however, that they are 

irrelevant. Indeed, courts have often considered agency screening levels in deciding whether a 

substantial endangerment exists. E.g., Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 

1013, 1022 (10th Cir. 2007); Interfaith, 399 F.3d at 261 (“Proof of contamination in excess of 

state standards may support a finding of liability, and may alone suffice for liability in some 

cases, but its required use is without justification in the statute.”); Raymond K. Hoxsie Real 

Estate Tr. v. Exxon Educ. Found., 81 F. Supp. 2d 359, 366 (D.R.I. 2000) (collecting cases). 

Dr. Keramida explains based on her experience that the agencies consult toxicological 

literature in order to set screening levels at concentrations that are not expected to produce 

unacceptable risks of cancer and other health conditions. She concludes that because 

contamination here greatly exceeds those levels, the contamination may present a substantial 

endangerment to health. That those screening levels are not conclusive as to an endangerment 

claim does not mean that they are not relevant.4

 And more to the point, that does not mean that 

 

4

 Even Simsbury-Avon, 575 F.3d at 214, on which Johnson Controls relies, refused to hold that 

regulatory standards were never relevant to a determination of whether a risk is potentially 

serious. It rejected the use of screening standards in that case because they were based on an 

assumption of long-term exposure to the contaminants, but there was no evidence that anyone 

would be subject to long-term exposure—the site was a shooting range, not a residence. Id. at 

213. 

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an expert cannot reasonably rely on them as probative of whether certain levels of contamination 

may present an imminent and substantial endangerment. Johnson Controls is free to argue that 

the agencies’ analysis is unsound, that the levels are based on conservative assumptions not 

applicable here, or that they are otherwise flawed or inapplicable, but the Court declines to 

exclude Dr. Keramida’s opinion on that basis. 

Finally, Johnson Controls moves to exclude Dr. Keramida’s opinions about the remedy 

the Court should impose should it conclude that an endangerment exists. The sole basis for 

Johnson Controls’ motion is that Dr. Keramida failed to take into account certain factors that the 

EPA considers in selecting a RCRA remedy. Johnson Controls cites no authority that the Court is 

bound by those factors in ordering relief under a subsection (a)(1)(B) claim, though, so it has not 

shown why Dr. Keramida’s opinions should be excluded on that basis. Upon a finding that 

contamination may present an imminent and substantial endangerment, the Act authorizes the 

Court to order any “action as may be necessary.” 42 U.S.C. § 6972(a). Courts also consider the 

factors that govern permanent injunctions. See LAJIM, LLC v. Gen’l Elec. Co., No. 13 CV 

50348, 2017 WL 392139, at *2 (N.D. Ill. Sept. 7, 2018). Johnson Controls cites no authority that 

requires a Court to consider the factors that the EPA might consider in implementing corrective 

actions, so even if Dr. Keramida failed to consider all of those factors, that would not render her 

opinions inadmissible. 

Accordingly, the Court denies Johnson Controls’ motion in those respects, and will 

consider the admissibility of Dr. Keramida’s remaining opinions in conjunction with trial. 

B. Motions to Strike Dr. Keramida’s Supplemental Reports 

Johnson Controls also filed two motions to strike supplemental reports by Dr. Keramida 

on the basis that they are untimely attempts to bolster her previous opinions and offer new 

opinions. Dr. Keramida signed her initial report in March 2017, and wrote a short supplement the 

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following month, after which she sat for a deposition in November 2017. Johnson Controls’ 

experts responded to the opinions Dr. Keramida expressed in those materials, and discovery 

closed in December 2017. The parties filed their Daubert motions in January 2018, and those 

motions were ripe by April. In the meantime, the parties also filed their motions for summary 

judgment. In their response to Johnson Controls’ motion for summary judgment, the Plaintiffs 

attached a new, 30-page report by Dr. Keramida. This third report purports to supplement Dr. 

Keramida’s initial opinions in light of new data, and to rebut supplemental opinions by one of 

Johnson Controls’ experts. 

Johnson Controls’ response to the Plaintiffs’ motion for summary judgment also included 

a declaration from one of its environmental consultants. The declaration primarily presented data 

showing the results of a pilot test that Johnson Controls had conducted to remediate shallow 

groundwater at the site. Johnson Controls cited that declaration numerous times in its statement 

of facts, asserting that the pilot test had reduced TCE concentrations in some areas by over 99 

percent. Thus, in their reply brief, the Plaintiffs attached another new report by Dr. Keramida—

her fourth report—in which she offered rebuttal opinions in response to that declaration. 

Johnson Controls moves to strike Dr. Keramida’s third and fourth reports, contending 

that they untimely disclose new opinions and are not proper supplements or rebuttal reports. 

Under Rule 26(a)(2), a retained expert witness must provide a written report that contains, 

among other items, “a complete statement of all opinions the witness will express and the basis 

and reasons for them[.]” Fed. R. Civ. P. 26(a)(2)(B)(i). The rules also require a party to 

“supplement or correct” this disclosure “in a timely manner if the party learns that in some 

material respect the disclosure . . . is incomplete or incorrect[.]” Id. R. 26(e)(1)(A). However, 

“‘the purpose of supplementary disclosures is just that—to supplement. Such disclosures are not 

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intended to provide an extension of the expert designation and report production deadline.’” In re 

Ready-Mixed Concrete Antitrust Litig., 261 F.R.D. 154, 159 (S.D. Ind. 2009) (quoting Metro 

Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 324 (5th Cir. 1998)). “‘Although [Rule] 

26(e) requires a party to ‘supplement or correct’ [a] disclosure upon information later acquired, 

that provision does not give license to sandbag one’s opponent with claims and issues which 

should have been included in the expert witness’ report[.]’” Allgood v. Gen’l Motors Corp., No. 

1:02-cv-1077-DFH, 2007 WL 647496, at *3 (S.D. Ind. Feb. 2, 2007) (quoting Beller v. United 

States, 221 F.R.D. 689, 695 (D.N.M. 2003)). If a party fails to timely disclose or supplement 

expert opinions, those opinions cannot be used “unless the failure was substantially justified or is 

harmless.” Fed. R. Civ. P. 37(c)(1). 

The rules also contemplate that experts may prepare rebuttal reports that are “intended 

solely to contradict or rebut evidence on the same subject matter” by an opposing expert. Fed. R. 

Civ. P. 26(a)(2)(D). “‘The proper function of rebuttal evidence is to contradict, impeach or 

defuse the impact of the evidence offered by an adverse party.’” Peals v. Terre Haute Police 

Dep’t, 535 F.3d 621, 630 (7th Cir. 2008) (quoting United States v. Grintjes, 237 F.3d 876, 879 

(7th Cir. 2001)). “A rebuttal expert report cannot be used to advance new arguments or new 

evidence to support plaintiff’s expert’s initial opinions.” Lowe v. CVS Pharmacy, Inc., No. 14 C 

3687, 2017 WL 2152385, at *2 (N.D. Ill. May 17, 2017) (quotation omitted). 

The Court begins with the second motion to strike, which attacks Dr. Keramida’s fourth 

report. That report primarily addressed data collected to assess the impact of a pilot test Johnson 

Controls conducted to remediate shallow groundwater. Johnson Controls presented that data in 

response to the motion for summary judgment through a declaration by Mr. Fenelon, an 

employee of its environmental consulting firm. Johnson Controls relied extensively on Mr. 

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Fenelon’s declaration and the underlying data in opposing summary judgment, arguing that it 

shows that the pilot test successfully removed the vast majority of TCE from the groundwater in 

the areas it was deployed. Johnson Controls argued that this data further demonstrated that no 

imminent and substantial endangerment exists. 

Under those circumstances, it is fair for Dr. Keramida to offer a supplemental report 

responding to that data. As Johnson Controls insists throughout its filings, the focus of an 

endangerment claim is the present condition of the contamination, not its past condition. 

Meghrig, 516 U.S. at 486. The new data addressed the effect of the pilot test at the site, which 

represented an intervening event that Dr. Keramida could not have addressed earlier. Whether 

Mr. Fenelon’s declaration qualifies as expert testimony or not, it presented new data upon which 

Johnson Controls relied to argue that no endangerment currently exists. Johnson Controls in fact 

relied heavily on that data in opposing summary judgment, citing Mr. Fenelon’s declaration 

dozens of times in its statement of facts. [DE 310]. It would be unfair to allow Johnson Controls 

to use that new information to its benefit, without allowing the Plaintiffs to respond to it through 

their expert.5

 Though the statements in this report may warrant some narrow follow-up discovery 

prior to trial, even Johnson Controls acknowledges that limited discovery of that nature is 

appropriate. Thus, the Court finds that Dr. Keramida’s fourth report was appropriate, so the 

Court denies the second motion to strike. 

Dr. Keramida’s third report—the subject of the first motion to strike—is different in kind, 

though. This report addressed newly collected information, but for the most part, not new 

 

5

 Dr. Keramida’s report also addresses new vapor intrusion data, but her opinions in that regard 

are limited and, to the extent they break any new ground, are responsive to Mr. Fenelon’s 

declaration. Johnson Controls also objects to other minor points in Dr. Keramida’s report, but 

those objections overstate the significance of those points and fail to establish any prejudice.

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developments. The new information primarily consisted of records of vapor sampling performed 

in early 2018 and maintenance performed on the vapor mitigation systems, and Johnson 

Controls’ March 2018 groundwater monitoring report (reflecting samples taken in late 2017), 

which it submits twice a year to IDEM. The only intervening event that is addressed in this 

report was that sewer connections to the site were severed, to reduce the possibility that those 

lines would transport vapors from the site.6 Dr. Keramida’s report offered a total of fifteen pages 

of supplemental opinions, only two of which addressed the severed sewer lines. The report also 

offered an extensive rebuttal to a supplemental report on the vapor sampling and mitigation 

systems by Dr. Dawson, one of Johnson Controls’ experts. Johnson Controls moves to strike Dr. 

Keramida’s supplemental report, arguing that it merely uses the information as a pretext to 

bolster old opinions and offer new opinions that could have been disclosed before. 

The Court begins with the opinions Dr. Keramida offers about compounds other than 

TCE presenting an endangerment. In her initial report, Dr. Keramida referred in passing to other 

volatile organic compounds, including perchloroethylene (PCE), and vinyl chloride. She stated, 

though, that “[g]iven the predominant presence of TCE in all polluted media,” she would refer 

only to TCE “for brevity purposes.” [DE 275-3 p.13]. Thereafter she referred a number of times 

to TCE “and other cVOCs” (chlorinated Volatile Organic Compounds), but never offered or 

developed any opinion that any other contaminants in particular create an imminent and 

substantial endangerment. The only testing data she cited in her report was for TCE, and the only 

 

6

 Dr. Keramida’s report also mentions a pilot test, but it appears to be referring to the emulsified 

zero valent ion test that was performed in 2015. As the timeline in the Plaintiffs’ brief makes 

clear, they did not receive the results from the pilot test for shallow groundwater remediation 

(which began in November 2017) until after Dr. Keramida’s report. Though one group of wells 

was sampled shortly after that test began, which was included in the March 2018 report, Dr. 

Keramida does not offer any opinions in this report on the effect of the shallow groundwater 

pilot test.

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18 

screening levels she identified as a baseline for establishing dangerous levels were for TCE. She 

referenced “other cVOCs” in that discussion only to explain the effect they have on the 

applicable screening levels for TCE. She did not compare the sampling data against any 

appropriate benchmarks for any other contaminants or explain whether and how they present an 

endangerment in their own right, as she attempts to do now.7 In contrast, Dr. Keramida’s third 

report focuses heavily on the presence of vinyl chloride in groundwater and of PCE in indoor air, 

arguing that those compounds present a danger in their own right. Given the absence of any 

similar discussion in Dr. Keramida’s initial report, these are new opinions. 

The recent data does not justify these new opinions. The parties have long known that 

these compounds are present in the contamination, and Dr. Keramida could have offered 

opinions on these subjects in her initial report. For example, in asserting in her supplemental 

report that PCE and vinyl chloride are present in the groundwater in dangerous levels, Dr. 

Keramida cites a sample of PCE from November 2015, and a sample of vinyl chloride from May 

2016. She could have addressed those issues in her March 2017 report or prior to her November 

2017 deposition. Dr. Keramida’s third report likewise focuses extensively on the presence of 

 

7

 Some of the tables and figures attached to Dr. Keramida’s initial report contain data for some of 

the other compounds, but those materials do not adequately disclose any opinion in that regard 

either. In fact, the vast majority of test results in those materials show that the compound was not 

even detected. Those materials thus do not reflect which, if any, of those compounds Dr. 

Keramida believed created an endangerment, or in what respect, nor do they explain the basis for 

such an opinion, as required under the rules. For example, in her third report, Dr. Keramida’s 

opinion about PCE is based on, among other factors, an analysis of the atmospheric lifetime of 

PCE as compared to other compounds, a subject that is entirely absent from her initial report. 

Attaching a data-dump to the end of an expert report fails to provide “a complete statement of all 

opinions the witness will express and the basis and reasons for them.” Fed. R. Civ. P. 

26(a)(2)(B)(i); see Salgado ex rel. Salgado v. Gen’l Motors Corp., 150 F.3d 735, 741 n.6 (7th 

Cir. 1998) (“Expert reports must include ‘how’ and ‘why’ the expert reached a particular result, 

not merely the expert’s conclusory opinions.”); Fidelity Nat’l Title Ins. Co of N.Y. v. Intercounty 

Nat’l Title Ins. Co., No. 00 C 5658, 2001 WL 789218, at *3 (N.D. Ill. July 12, 2001).

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PCE in the recent vapor intrusion sampling. However, even though they knew that PCE was 

present in the contamination, and that the initial vapor intrusion sampling had not screened for 

PCE, the Plaintiffs conducted no sampling to determine whether PCE was entering indoor air. 

Rather than conducting any investigation of their own—even in their own homes—the Plaintiffs 

essentially chose to free-ride on the sampling that Johnson Controls conducted pursuant to its 

ongoing oversight by IDEM. That is an acceptable choice, but it does not free them of the 

consequences of failing to timely disclose their opinions if they failed to develop the support for 

those opinions during discovery. In other words, the only reason this information is new is that 

the Plaintiffs failed to develop it during discovery, when they had ample opportunity to do so—

the information was not unavailable during discovery, it just wasn’t developed. Thus, the recent 

data does not permit the Plaintiffs to offer new opinions on these compounds. 

Allowing the Plaintiffs to offer those new opinions at this point would create substantial 

prejudice, as it would require extensive follow-up discovery with new expert reports. During 

discovery, both sides retained expert witnesses to opine as to whether the contamination posed a 

danger to human health. Given that Dr. Keramida’s report focused on TCE, those experts did 

likewise: Johnson Controls retained an epidemiologist and a medical doctor to address whether 

TCE presented a substantial endangerment, and the Plaintiffs retained a toxicology expert, who 

likewise focused exclusively on TCE. None of those experts addressed the dangers of other 

compounds. Permitting Dr. Keramida to opine now that other compounds present a substantial 

endangerment themselves would require Johnson Controls to have their experts prepare brand 

new reports (or to retain new experts) addressing the dangers associated with these other 

compounds, presumably followed by depositions on those new opinions. Since there is no reason 

Dr. Keramida could not have addressed these compounds in her initial report, there is no reason 

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20 

the Court should countenance the cost and delay that would entail. Therefore, the Court grants 

the motion to strike as to Dr. Keramida’s opinions that compounds other than TCE present a 

danger in their own right. 

In each of the other respects, though, the Court denies the motion to strike. The other 

supplemental opinions arise out of and address matters that Dr. Keramida explored in her initial 

report (albeit in less detail in some instances), and her rebuttal opinions appropriately respond to 

opinions that Dr. Dawson offered in her own supplemental report. For example, Dr. Keramida 

supplemented her report to address the data on vapors in the sewer lines after they were severed. 

That is an appropriate supplement, as her initial opinion likewise discussed the threat of vapor 

intrusion through sewer lines as preferential pathways, and the severing of the sewer lines was a 

new development at the site. Dr. Keramida also opined in her supplement that the new data 

further supports her previous opinion that the contamination was traveling in the direction of the 

city wellfield. The analysis in her supplemental report largely parallels the analysis in her initial 

report and in her deposition as to similar data. Johnson Controls also objects to Dr. Keramida’s 

supplemental opinion that the contamination is getting worse, since she previously opined based 

on much of the same data that it would remain at similar levels. However, that is more of a basis 

for impeaching her supplemental opinion than for excluding it. If, for example, Dr. Keramida 

opined that the new data showed that the contamination was getting better, Johnson Controls 

would surely view that as a proper supplement. Last, the Court believes that the rebuttal portion 

of Dr. Keramida’s report was appropriate. Though Dr. Keramida’s rebuttal is considerably 

longer than the brief report it rebutted, it is generally responsive to that report and attempts to 

“contradict, impeach or defuse the impact” of Dr. Dawson’s supplemental opinions. Peals, 535 

F.3d at 630. 

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Moreover, to the extent this report may stray beyond the appropriate limits of 

supplemental or rebuttal reports, the Court finds that the prejudice is limited and curable. 

Johnson Controls expresses concern that the parties would have to refile their motions for 

summary judgment, which had already been extensively briefed. However, the Court’s resolution 

of those motions does not depend on any of these materials, nor do these materials warrant 

another round of summary judgment motions, so that concern is unfounded. Johnson Controls 

also notes that it had already briefed its Daubert motion in which it moved to exclude Dr. 

Keramida’s opinions. As discussed above, though, the Court has deferred its resolution of those 

objections in large part until trial. Johnson Controls will have the opportunity to object to any of 

Dr. Keramida’s opinions in these latest reports in that context as well. 

And finally, the parties can address these new reports with limited follow-up discovery 

prior to trial. Even Johnson Controls has acknowledged that narrow discovery would be 

warranted as new information and new developments arise. [DE 330 p. 3 (“[Johnson Controls] 

anticipated, in light of the 2018 vapor sampling data, that the parties’ experts may supplement 

their reports, [and] that the parties may want to take depositions on these supplements[.]”); DE 

344 p. 11 (“[Johnson Controls] is amenable to [its consultants] sitting for supplemental 

depositions to give Plaintiffs an opportunity to probe subject matter that has developed since 

their 2016 depositions.”)]. As Johnson Controls explained in another filing, “[a]fter all, as 

remediation work progresses at the Site, regardless of any expert discovery issues, narrow 

discovery may need to [be] conducted regarding the remedial advances being made . . . .” [DE 

344 p. 11–12]. Since the focus of an endangerment claim is the present condition of the 

contamination, the Court agrees that narrow discovery of that sort is warranted as new 

information becomes available and new developments occur. That discovery will alleviate any 

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22 

prejudice Johnson Controls may have otherwise experienced from Dr. Keramida’s supplemental 

reports. Thus, except as to the opinions as to other compounds, addressed above, the Court 

denies the motion to strike. 

C. Motion to Exclude Dr. Orris’ Opinions 

Johnson Controls also filed a motion to exclude expert opinions by Dr. Peter Orris. Dr. 

Orris is a medical doctor who opined that the concentrations of TCE found at the site and in the 

neighborhood pose a substantial danger to public health. In moving to exclude that opinion, 

Johnson Controls argues that Dr. Orris is unqualified, that his opinions are not based on a reliable 

methodology or sufficient facts, and that they are not helpful. As discussed above, the Court 

believes that it can better evaluate the admissibility of Dr. Orris’ opinions at trial. Therefore, the 

Court dismisses Johnson Controls’ motion, but with leave to renew its objections at trial. 

D. Motion to Exclude Johnson Controls’ Experts Opinions 

The Plaintiffs moved to exclude various opinions by four of Johnson Controls’ experts. 

The Court elects to resolve these objections now, as they are neither complex nor substantial. 

The Plaintiffs first move to exclude an opinion by Dr. Helen Dawson, an expert in vapor 

intrusion who addressed whether the contamination “may threaten an imminent and substantial 

endangerment to human health through the vapor intrusion pathway.” [DE 282-30 p. 5]. As 

relevant here, she concluded that vapor intrusion did not threaten an imminent and substantial 

endangerment to human health in the Plaintiffs’ neighborhood. In the course of her analysis, she 

acknowledged that TCE had been detected in the indoor air of some homes in that neighborhood. 

She further noted, however, that vapor mitigation systems had been installed in each of those 

homes, leading her to conclude that those homes were not endangered. 

In moving to exclude that opinion, the Plaintiffs argue that Dr. Dawson did not personally 

inspect any of the vapor mitigation systems, and that without having done so, she was merely 

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speculating as to whether the systems were actually mitigating the risk of vapor intrusion. That 

argument fails to engage with Dr. Dawson’s actual analysis, though. Dr. Dawson noted that 

mitigation systems are “the most common and successfully employed approach to structure 

mitigation for VOC [Volatile Organic Compound] vapor intrusion.” [DE 282-30 p. 18]. She 

further noted that the systems installed in these homes were “typical of the thousands of radon 

systems that have been installed by regulators and responsible parties in the United States.” Id.

And most important, she relied on the fact that “[p]ost-mitigation sampling of indoor air . . . 

demonstrated that there are no structures with indoor air TCE concentrations above IDEM 

screening levels.” Id. In other words, the proof is in the pudding. The Plaintiffs are free at trial to 

challenge and contradict the factual underpinnings of her analysis, and to argue that the Court 

should not accept her conclusion. Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000) 

(“The soundness of the factual underpinnings of the expert’s analysis and the correctness of the 

expert’s conclusions based on that analysis are factual matters to be determined by the trier of 

fact[.]”). But the premise for the Plaintiffs’ motion—that Dr. Dawson relied solely on blind faith 

that the systems work—is inaccurate, so the Court denies the motion to exclude this opinion. 

The Plaintiffs also sought to exclude the opinions of three other experts on the basis that 

they relied at least in part on Dr. Dawson’s opinion. Having rejected the challenge to Dr. 

Dawson’s opinion, the Court rejects those challenges as well. And in any event, each of those 

experts also made clear that they were relying on test results, not speculation about the 

effectiveness of the systems. [DE 286-12 (Dr. Chang: “I did not make assumptions about 

whether the mitigation systems were working in individual buildings. I looked at the sampling 

measurement results for indoor TCE in those buildings[.]”); DE 282-38 p. 14 (Dr. Fedoruk: 

“Based on recent air sampling, TCE contamination originating from the Site does not threaten a 

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risk of an imminent and substantial endangerment to human health. Mitigation measures enacted 

in 2011 in homes have resulted in indoor air in which there are no reported TCE levels exceeding 

the IDEM screening level for indoor residential air.”); DE 282-40 p. 25 (Dr. Zeeb: “I have 

reviewed the indoor air monitoring data and concluded that the mitigation systems are 

functioning to eliminate the vapor intrusion pathway. The sub-slab depressurization systems 

currently in use for this purpose are commonly applied, reliable, and accepted as a risk 

mitigation strategy by the USEPA and most states, including Indiana.”)]. 

The Plaintiffs next move to exclude an opinion by Dr. Ellen Chang, an epidemiologist. 

Dr. Chang addressed “whether, based on the science of epidemiology, the present levels of 

contamination . . . may threaten a risk of an imminent and substantial endangerment to human 

health.” [DE 282-36 p.3]. She concluded that the levels of TCE found in indoor air in the 

neighborhood did not present such a risk, as they “are substantially below levels significantly 

associated with adverse human health outcomes in epidemiologic studies on a consistent basis.” 

Id.

The Plaintiffs argue that Dr. Chang is not qualified to offer that opinion. They do not 

dispute that Dr. Chang has all the necessary qualifications as an epidemiologist. They argue, 

though, that she is unqualified to offer an opinion about the risks of TCE because she is not an 

expert in “toxicological, experimental, or mechanistic animal and in vitro studies.” [DE 281 p. 

3]. This argument has no merit. The Plaintiffs offer no reason why a witness must be an expert in 

every discipline that could possibly bear on a question before offering an opinion on that 

question, and the Seventh Circuit has expressly rejected such a suggestion. Smith, 215 F.3d at 

720. Dr. Chang is an expert in epidemiology and she grounds her opinion on that expertise. [DE 

282-36 p. 7 (“I have been asked . . . to opine on whether, based on the science of 

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epidemiology . . . .” (emphasis added))]. That the Plaintiffs intend to offer evidence based in 

other disciplines does not render Dr. Chang unqualified or her opinion irrelevant. The Court 

therefore denies the motion to exclude this opinion. 

Next, the Plaintiffs move to exclude an opinion by Dr. Peter Zeeb, a hydrogeologist. He 

addressed whether, based on the geology and hydrogeology in the area, the contamination poses 

a threat to any potential receptors, including the municipal wellfield, private wells, utilities, 

surface water, and indoor air. As relevant here, he opined that the “[o]ngoing and planned 

remediation activities for the Site are sufficient to prevent any future threat of Imminent and 

Substantial Endangerment.” [DE 282-40 p. 9]. The Plaintiffs ask the Court to exclude this 

opinion because Dr. Zeeb “had no factual basis for predicting what remedial activities [Johnson 

Controls] may attempt to implement in the future” [DE 281 p. 4] and that he is “not qualified to 

predict the future at the Site.” [DE 282 p. 25]. 

That argument misunderstands Dr. Zeeb’s opinion. The point of Dr. Zeeb’s testimony is 

not to speculate as to what Johnson Controls would do in the future—he does not claim expertise 

as a psychic. Rather, he was provided information about what remedial activities Johnson 

Controls intended to employ, and his opinion addressed what effect those activities could be 

expected to have on the contamination. He can testify based on his expertise about what effect 

certain techniques could be expected to have, just as Dr. Keramida addressed in her report what 

techniques she believes would be effective.8

 Again, the Plaintiffs are free to challenge the 

assumptions on which Dr. Zeeb’s opinion is based, but that does not make his opinion 

inadmissible. The Court thus denies the motion in this respect too. 

 

8

 The Plaintiffs also appear to suggest that Dr. Zeeb cannot opine on the effectiveness of a given 

technique without first reviewing complete schematics for how it would be implemented. Not 

only is that assertion unfounded, but even Dr. Keramida performed no such analysis.

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Finally, the Plaintiffs move to exclude an opinion by Dr. Marion Fedoruk, a medical 

doctor who evaluated whether the contamination posed a health risk, primarily responding to the 

Plaintiffs’ experts’ opinions on that subject. The Plaintiffs seek to exclude his opinion because 

they dispute a single factual statement in his 23-page report: that state environmental officials 

have not determined that the contamination presents an imminent and substantial endangerment 

to human health. As repeatedly discussed already, though, disputes about “the factual 

underpinnings of the expert’s analysis . . . are factual matters to be determined by the trier of 

fact,” not grounds for exclusion under Rule 702. Smith, 215 F.3d at 718. In any event, there is at 

least a dispute as to whether this fact is true. The Plaintiffs rely on the testimony of Don Stilz, 

who testified as a Rule 30(b)(6) designee for IDEM, and who stated that he believed the site 

presented an endangerment to human health. That topic was not within the Rule 30(b)(6) notice, 

though, so this testimony may or may not reflect the view of the agency. The subsequent 

questioning also suggested that Mr. Stilz had little if any foundation upon which to offer such an 

opinion. [DE 294-16 p. 63–67]. Again, the Plaintiffs are free to explore this issue through crossexamination and by offering contrary evidence, but that is not a basis to exclude Dr. Fedoruk’s 

testimony. Accordingly, the Court denies the Plaintiffs’ motion.

9

E. Motion to Supplement Rule 26 Disclosures 

Next, Johnson Controls filed a motion for leave to supplement its Rule 26(a)(2) 

disclosures. Johnson Controls wishes to disclose as non-retained expert witnesses under Rule 

26(a)(2)(C) three of its environmental consultants who have worked at the site. Those three 

individuals were previously disclosed as fact witnesses under Rule 26(a)(1), and their testimony 

will primarily address their activities at the site and the sampling they conducted in the area. 

 

9

 Johnson Controls also moved for leave to file a surreply in response to this motion. The Court 

denies that motion, as a surreply is unwarranted.

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However, Johnson Controls notes that these individuals may also draw on their technical 

expertise in describing their work. In that respect, Johnson Controls now believes their testimony 

may constitute expert testimony. Accordingly, it moved for leave to supplement its disclosures to 

identify these individuals as non-retained expert witnesses under Rule 26(a)(2)(C). 

The Court denies Johnson Controls’ motion. A party does not need permission to 

supplement its disclosures. To the contrary, the rules require a party to supplement its disclosures 

upon learning that they are incomplete or incorrect. Fed. R. Civ. P. 26(e) (stating that a party 

“must supplement” a disclosure “in a timely manner if the party learns that in some material 

respect the disclosure . . . is incomplete or incorrect”). The relief Johnson Controls seeks—

permission to supplement its disclosures—is therefore unnecessary. 

The substance of Johnson Controls’ motion, however, is aimed at requesting different 

relief: a preemptive finding that its supplement was timely, or that it should be permitted to offer 

the witnesses’ testimony anyway because the disclosure, if late, was harmless. The Court 

declines to entertain that request in this posture. As just noted, Johnson Controls relies on Rule 

26(e), but that rule does not require leave of court for a supplement. The consequences of 

untimely disclosures are addressed in a separate rule, Rule 37(c). But the Court cannot resolve on 

the present filings whether the witnesses’ testimony should be excluded under that rule. The 

parties agree that these three witnesses have been properly disclosed as fact witnesses and can 

testify in that capacity. The dispute is over other aspects of their testimony that may border on or 

cross the line into expert testimony. However, the parties do not specify where they believe that 

line is or what particular testimony crosses it. Without knowing what specific testimony is at 

issue, the Court cannot evaluate whether it constitutes expert testimony or whether the Plaintiffs 

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will suffer prejudice from the untimely disclosure (particularly when these three witnesses have 

all given depositions already and their work product has been provided to the Plaintiffs).10

Accordingly, the Court denies Johnson Controls’ motion, but will address the underlying 

issue if necessary on a Rule 37(c) motion. The Court is hopeful, however, that this issue can be 

resolved, at least in part, by agreement and limited discovery. As both parties acknowledge in 

various filings, and as discussed above, it is appropriate for the parties to address any new 

developments at the site, including ongoing remediation activities. Thus, at least to the extent 

any would-be expert testimony from these witnesses addresses such developments, the Court is 

likely to permit the testimony and allow the parties to conduct narrow follow-up discovery prior 

to trial, as with Dr. Keramida. 

F. Motion to Seal 

Finally, the Plaintiffs filed a motion to seal an exhibit they submitted with their reply in 

support of summary judgment. The document had been produced by Johnson Controls, which 

labeled it confidential. Consistent with the protective order, the Plaintiffs dutifully filed the 

document under seal along with a motion to maintain it under seal. However, the Plaintiffs 

offered no further justification for why the document should be sealed—it’s not their document, 

so they have no incentive to preserve its secrecy—and Johnson Controls never responded to the 

motion to supply that justification. 

Parties have wide latitude to protect the confidentiality of documents exchanged during 

discovery. Once documents are filed with the Court, though, they become subject to a 

 

10 The Court is dubious, however, of Johnson Controls’ argument that a supplement would be 

timely because no deadline was ever set to disclose non-retained expert witnesses. Though the 

magistrate judge did not set a deadline for Rule 26(a)(2)(C) disclosures in particular, he set 

deadlines for the close of “all discovery” and for “expert discovery.” [DE 206, 269]. Johnson 

Controls could not have reasonably believed that it need not disclose any non-retained experts 

during discovery.

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presumption of public access. City of Greenville, Ill. v. Syngenta Crop Protection, LLC, 764 F.3d 

695, 697 (7th Cir. 2014) (“Discovery material can be shielded from the public eye. Once filed 

with the court, however, documents that affect the disposition of federal litigation are 

presumptively open to public view unless a statute, rule, or privilege justifies confidentiality.” 

(internal quotations and citations omitted)); Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 545 

(7th Cir. 2002). That presumption can be rebutted for privileged materials or trade secrets, for 

example, but not a mere desire for confidentiality. The burden lies on the party seeking 

confidentiality. Heraeus Kulzer, GmbH v. Biomet, Inc., 881 F.3d 550, 565 (7th Cir. 2018). Here, 

neither party has attempted to meet that burden, so the Court denies the motion to seal. 

III. SUMMARY JUDGMENT STANDARD OF REVIEW 

Summary judgment is proper when the movant shows that there “is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). A “material” fact is one identified by the substantive law as affecting the outcome of the 

suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” exists with 

respect to any material fact when “the evidence is such that a reasonable jury could return a 

verdict for the nonmoving party.” Id. Where a factual record taken as a whole could not lead a 

rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and 

summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 587 (1986) (citing Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 289 (1968)). In 

determining whether a genuine issue of material fact exists, this Court must construe all facts in 

the light most favorable to the non-moving party and draw all reasonable and justifiable 

inferences in that party’s favor. Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008); King v. 

Preferred Tech. Grp., 166 F.3d 887, 890 (7th Cir. 1999). In a case involving cross-motions for 

summary judgment, that means that each party receives the benefit of all reasonable inferences 

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when considering the opposing party’s motion. Tegtmeier v. Midwest Operating Eng’rs Pension 

Tr. Fund, 390 F.3d 1040, 1045 (7th Cir. 2004); Hendricks-Robinson v. Excel Corp., 154 F.3d 

685, 692 (7th Cir. 1998). 

IV. DISCUSSION 

The Resource Conservation and Recovery Act provides two causes of action for private 

citizens. 42 U.S.C. § 6972. First, subsection (a)(1)(A) of § 6972 provides a claim when a party is 

in violation of its obligations under the Act. Upon proof of a violation, a court has the authority 

to enter an injunction enforcing the obligation, and can also impose civil penalties. Second, 

subsection (a)(1)(B) provides a claim when contamination may present an imminent and 

substantial endangerment to health or the environment. That claim permits a court to enter any 

necessary injunctive relief. The Plaintiffs assert claims under both subsections, and the Court 

considers each in turn. 

A. Section 6972(a)(1)(A) “Violation” Claim 

The Plaintiffs first assert a claim under § 6972(a)(1)(A). That subsection provides a cause 

of action when a party is “in violation of” a “permit, standard, regulation, condition, requirement, 

prohibition, or order which has become effective pursuant” to the Act. 42 U.S.C. 

§ 6972(a)(1)(A). The Plaintiffs offer two theories in support of that claim. First, they argue that 

Johnson Controls is in violation of the performance standard for closure, 40 C.F.R. § 265.111,11

because contamination still exists at levels beyond those permitted by that standard. Second, they 

argue that Johnson Controls failed to complete closure of waste management units at its facility 

that it did not disclose in its closure plan. The Court addresses each theory in turn. 

 

11 Indiana has incorporated these regulations by reference as part of its hazardous waste program 

authorized by the EPA under § 6926(b). 329 Ind. Admin. Code 3.1-10-1 (incorporating 40 

C.F.R. part 265 by reference); see also 329 Ind. Admin. Code 3.1-4-1(a) (incorporating the 

applicable definitions by reference).

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1. Violation of the Performance Standard 

The Plaintiffs first claim that Johnson Controls is currently in violation of its closure 

obligations because contamination still exists at unacceptable levels. They argue that the closure 

performance standard requires the removal of contamination “to the extent necessary to protect 

human health and the environment,” 40 C.F.R. § 265.111, and that Johnson Controls is in 

violation of that regulation because it has not yet achieved that level of remediation. Johnson 

Controls argues in response that it has complied with and satisfied each of its closure obligations, 

and is properly remediating the existing contamination through Indiana’s Voluntary Remediation 

Program, so it is not in violation of its closure obligations. 

The Court grants summary judgment in favor of Johnson Controls on this claim. It is 

undisputed that Johnson Controls has completed each step of the closure process as set forth in 

the regulations—it submitted a closure plan, received agency approval of that plan, completed 

the activities set forth in that plan, and submitted a certification of closure. The Plaintiffs’ 

argument that Johnson Controls is nonetheless in violation of its closure obligations assumes that 

all remediation under the Act is conducted through the closure process, and also assumes that the 

performance standard can be enforced independent of the regulations that implement it. The 

Court disagrees in both respects, so the Plaintiffs have failed to show that Johnson Controls is in 

violation of the closure regulations. 

a. The Closure Process 

As discussed on the motion to dismiss, the regulations dictate a specific process by which 

a facility undergoes closure of its waste management units in order to terminate its status as a 

treatment, storage, or disposal facility.12 Schmucker v. Johnson Controls, Inc., 90 F. Supp. 3d 

 

12 Both parties have cited witness testimony in support of their arguments as to what the 

regulations require. As noted above, though, the meaning of regulations is a question of law for 

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786, 799–800 (N.D. Ind. 2015). First, a facility must prepare “a written closure plan.” 40 C.F.R. 

§ 265.112(a). The closure plan must contain a number of elements, including a description of 

how each hazardous waste management unit at the facility will be closed in accordance with the 

performance standard; a description of the steps needed to remove or decontaminate all 

hazardous waste residues and criteria for determining the extent of decontamination necessary to 

satisfy the performance standard; and a schedule for the closure of each unit. Id. § 265.112(b). 

Prior to beginning closure, the facility must submit the closure plan to the state agency 

for its review. Id. § 265.112(d)(1). The agency then provides public notice of the plan and an 

opportunity for public comments and requests for modifications. Id. § 265.112(d)(4). It may also 

hold a public hearing. Id. The agency may then “approve, modify, or disapprove the plan.” Id. If 

the agency does not approve the plan, the facility must modify the plan or submit a new plan for 

approval. Id. In conducting this review, the agency must assure that the closure plan is consistent 

with the closure performance standard and other applicable regulations. Id. Once the agency 

approves the closure plan, the facility must remove the hazardous wastes and complete the 

closure activities “in accordance with the approved closure plan,” Id. § 265.113(a), (b). Once the 

facility completes closure of each of the units, it must submit a certification by a qualified 

engineer that the facility “has been closed in accordance with the specifications in the approved 

closure plan.” Id. § 265.115. 

It is undisputed that Johnson Controls completed each of those steps. It submitted a 

closure plan in February 1991, which IDEM approved after allowing for public comment. It later 

submitted an amended closure plan in 1998, which it supplemented in response to comments by 

 

the Court to decide and is not subject to witness testimony. Aguirre, 582 F.3d at 814; Good 

Shepherd, 323 F.3d at 564.

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IDEM. [DE 294-22, -23]. That closure plan identified three waste management units that still 

needed to undergo closure. It defined the scope of those units as the boundaries of the units, plus 

the underlying soil to a depth of 1 foot. The plan also identified the activities required to 

remediate each of those units in compliance with the performance standard. For one of the units, 

that entailed removing the concrete floor, excavating the soil to a depth of 1.5 feet, placing a 

plastic liner, inserting clean gravel, and then placing a new concrete floor. The closure plan 

further explained that the contamination outside the scope of the waste management units 

themselves would be addressed through the Voluntary Remediation Program rather than as part 

of closure. 

After allowing an opportunity for public comments (and receiving none), IDEM 

approved this closure plan. Johnson Controls then implemented the plan, conducting each of the 

activities called for by the approved closure plan. On March 30, 2000, Johnson Controls 

submitted its closure certification, in which it discussed the steps it took to complete closure and 

certified that the waste management units “have been closed in accordance with the 

specifications in the approved closure plan.” [DE 294-24 p. 6]. In a letter dated August 16, 2000, 

IDEM accepted Johnson Controls’ certification of closure, with the condition that Johnson 

Controls would continue to address the remaining contamination through the Voluntary 

Remediation Program. [DE 294-25]. In its letter, IDEM stated that “total closure is completed as 

required by 40 CFR 265 Subpart G” and that the facility now qualified as a generator of 

hazardous waste instead of a storage facility. In the meantime, Johnson Controls had also entered 

the Voluntary Remediation Program, in which it continues to participate. 

The Plaintiffs do not argue that Johnson Controls failed to perform any activities required 

under its approved closure plan, or that it failed to complete any particular step in the closure 

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34 

process. Nor do they claim that Johnson Controls is in violation of any obligation under the 

Voluntary Remediation Program. Instead, they argue that Johnson Controls is in violation of the 

closure performance standard, 40 C.F.R. § 265.111, because contamination still exists at and 

around the site at levels that are not protective of human health and the environment. Because 

that degree of contamination still exists, they contend that Johnson Controls has not yet 

completed closure and is thus in violation of the Act. This is essentially the same argument that 

the Court rejected in granting the motion to dismiss, and for those same reasons and the reasons 

below, it fares no better now. 

b. Closure versus Corrective Action 

First, in arguing that the existence of contamination equates to a violation of the Act’s 

closure regulations, the Plaintiffs assume that all of the Act’s clean-up objectives are 

accomplished through the closure13 process. That is not so. The Act addresses remediation 

primarily through the corrective action process, which gives the agencies wide-ranging authority 

to order on- and off-site remediation of past and present releases of hazardous waste, regardless 

of whether a facility is undergoing closure and regardless of whether the releases were connected 

to a waste management unit. See 42 U.S.C. § 6928(h); Ind. Code §§ 13-22-13-1, -2. The closure 

process is more modest, and primarily entails terminating a facility’s treatment, storage, or 

disposal activities and removing hazardous waste from the waste management units. 

 

13 The term “closure” is sometimes used in different ways in this context. As relevant here, 

closure refers to the specific process laid out in 40 C.F.R. § 265.111–15 for terminating a 

facility’s status as an interim status facility. However, the term is also sometimes used more 

broadly, referring to the completion of corrective action or other remedial activities. See Peniel 

Grp., Inc. v. Bannon, 973 N.E.2d 575, 577 n.2 (Ind. Ct. App. 2012) (“‘Closure’ is IDEM’s 

written recognition that a party has demonstrated attainment of specific investigative o[r] 

remediation objectives for contaminants in a particular area.”).

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The portion of the performance standard on which the Plaintiffs rely states that a facility 

must be closed in a manner that “[c]ontrols, minimizes, or eliminates, to the extent necessary to 

protect human health and the environment, post-closure escape of hazardous waste . . . to the 

ground or surface waters or to the atmosphere[.]” 40 C.F.R. § 265.111(b) (emphasis added). But 

the contamination underlying the Plaintiffs’ claim does not arise from any post-closure escape of 

hazardous waste; it is contamination that had already escaped from the hazardous waste units (or 

was otherwise spilled at the facility) and had migrated through the site and into the Plaintiffs’ 

neighborhood. 

A facility can be required to remediate all on-site and off-site contamination of that sort 

through the corrective action process, but that authority is distinct from the Act’s closure 

process.14 Closure is complete when all hazardous waste management units at the facility have 

been closed and hazardous waste management activities are no longer conducted at the facility. 

40 C.F.R. § 260.10 (defining “final closure”). No hazardous waste management activities have 

been conducted at Johnson Controls’ site for some time, and the Plaintiffs do not dispute that the 

hazardous waste units (as defined in Johnson Controls’ approved closure plan) have been 

closed—Johnson Controls excavated all of the soil within those units that contained 

 

14 IDEM’s 30(b)(6) representative discussed how this interplay between closure and corrective 

action works in practice—though, again, the meaning of the regulations is a question of law for 

the Court. [DE 294-16 p. 33–34 (noting that, for facilities with more extensive releases of 

contamination, the corrective action or voluntary remediation processes handle the long-term 

monitoring and clean-up of those releases, rather than the closure process), p. 51–52 (“Johnson 

Controls as an interim status facility has, in addition to any closure activities, has corrective 

action obligations to meet. And those are that there are no releases from the facility, either at or 

from the facility that are injurious to human health or the environment.” (emphasis added)), p. 

67–68 (“Closure is an action that takes place on a unit that warranted a permit . . . . Corrective 

action pertains to the entire facility and would assess for releases from any unit[.]”), p. 69 

(agreeing that “while a particular unit may be closed and require no additional work, there may 

still be corrective action that . . . is ongoing at a site”)].

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contamination. There is thus no danger of any “post-closure escape of hazardous waste” from 

those units. 40 C.F.R. § 265.111(b). 

Instead, the Plaintiffs’ complaint is that contamination has already migrated throughout 

the site and their neighborhood. But contamination of that nature is addressed through the 

corrective action process. Under § 6928(h), “Whenever on the basis of any information the 

Administrator [of the EPA] determines that there is or has been a release of hazardous waste into 

the environment from [an interim status facility], the Administrator may issue an order requiring 

corrective action or such other response measure as he deems necessary to protect human health 

or the environment.” 42 U.S.C. § 6928(h). IDEM has similar authority pursuant to state law: “If, 

on the basis of any information, the commissioner determines that there is or has been a release 

of hazardous waste . . . from a facility authorized to operate under interim status . . . , the 

commissioner may . . . issue an order requiring corrective action or another response measure 

that the commissioner considers necessary to protect human health or the environment[.]” Ind. 

Code § 13-22-13-1. Indiana law further specifies that the commissioner “may order the 

performance of corrective action beyond the boundaries of the facility from which the release 

occurs.” Id. § 13-22-13-2.15

As those provisions make clear, though, corrective action must be imposed by the federal 

or state agencies. Subsection (a)(1)(A) does not give similar authority to private citizens.16 A 

 

15 Johnson Controls also cites § 265.110(d), which allows the agency to replace the closure 

requirements with alternative requirements for closure. However, that applies to “regulated 

units”—a term of art defined in 40 C.F.R. §264.90—and Johnson Controls has not shown that 

any of the units here constitute “regulated units,” so the Court does not rely on that provision. 

16 The citizen-suit analog to the agencies’ corrective action authority is a subsection (a)(1)(B) 

claim—but unlike corrective action, that claim applies only when contamination “may present an 

imminent and substantial endangerment to health or the environment.” 42 U.S.C. 

§ 6972(a)(1)(B); see also Schmucker, 90 F. Supp. 3d at 798–99.

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subsection (a)(1)(A) claim applies only when a party is “in violation of” a “permit, standard, 

regulation, condition, requirement, prohibition, or order.” 42 U.S.C. § 6972(a)(1)(A). An agency 

thus has to impose corrective action obligations before citizens can enforce those obligations. 

Here, IDEM has chosen to address the existing contamination by allowing Johnson Controls to 

enter the Voluntary Remediation Program—as expressly permitted by the Memorandum of 

Understanding between the EPA and IDEM—and the Plaintiffs do not argue that Johnson 

Controls is in violation of its obligations under that program. 

The Plaintiffs argue that entry into the Voluntary Remediation Program does not relieve a 

party of its RCRA obligations. That is true, but it is of no moment here. Corrective action is not 

self-executing; as just discussed, it can only be imposed through an order or action brought by 

the agencies. 42 U.S.C. § 6928(h); Ind. Code § 13-22-13-1. And here, as also just discussed, 

IDEM exercised its authority to allow Johnson Controls to enter the Voluntary Remediation 

Program. Thus, participating in that program does not relieve Johnson Controls of its RCRA 

obligations; participating in that program is Johnson Controls’ RCRA obligation. 

As the Plaintiffs note, Johnson Controls has the right to withdraw from the Voluntary 

Remediation Program. But if it did, IDEM could impose a formal corrective action order with 

which Johnson Controls would have to comply. That has not happened, so the Plaintiffs have not 

identified any “permit, standard, regulation, condition, requirement, prohibition, or order” that 

Johnson Controls is violating. The Plaintiffs thus cannot make out a subsection (a)(1)(A) 

violation claim on that basis. 

c. The Performance Standard as an Independently Enforceable 

Obligation 

Second, the Plaintiffs’ argument relies on the premise that the closure performance 

standard can be divorced from and enforced independently of the regulations laying out the 

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specific process for closure. The Court disagrees, as that premise would allow subsection 

(a)(1)(A) claims to become collateral attacks on the agency’s oversight of the closure process 

and its approval of a facility’s closure plan. 

The performance standard identifies an end-goal of the closure process: to eliminate the 

post-closure escape of hazardous waste “to the extent necessary to protect human health and the 

environment.” 40 C.F.R. § 265.111. But as already discussed, the regulations seek to accomplish 

that goal through a regimented process. The facility crafts a closure plan that it believes will 

meet the performance standard. Id. § 265.112(b). The agency then evaluates whether the plan is 

acceptable, and can reject the plan or require a facility to amend it in order to meet the 

performance standard. Id. § 265.112(d)(4). That step also includes public notice and comment. 

Id. Once the agency approves the closure plan, the facility must conduct closure “in accordance 

with the approved closure plan.” Id. § 265.113(b). 

Allowing private parties to independently enforce the performance standard alone, as the 

Plaintiffs propose, would allow them to cut the agency out of that process. The agency has to 

exercise judgment in deciding what conditions will satisfy the performance standard and what 

steps must be taken during closure to achieve those conditions. That is not always clear-cut. For 

example, the agency could decide that the performance standard must be met by remediating to 

residential levels, or it could decide that the standard can be met by a combination of remediating 

to industrial levels plus the use of an environmental restrictive covenant (both of which options 

would still qualify as “clean closure”). Or it could decide that the performance standard can be 

met by closure with contamination still in place, with engineering controls (like a vapor 

mitigation system) or physical barriers and other post-closure measures being put into place to 

protect human health and the environment. And to determine acceptable levels of contamination, 

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39 

an agency can conduct a risk-based analysis based on the types and amounts of contamination 

and the potential exposure pathways at a specific facility. 

The Plaintiffs’ argument would allow private citizens to collaterally attack those agency 

decisions through subsection (a)(1)(A) claims. As the Plaintiffs would have it, even after an 

agency has made those decisions and approved a closure plan, and the facility has completed all 

of its obligations under that plan to a “T,” private plaintiffs would still be able to assert 

subsection (a)(1)(A) claims by arguing that the approved closure activities were not actually 

protective enough of human health and the environment. They would then have federal courts—

or juries, to which the Plaintiffs assert they are entitled on this claim—decide those questions 

that the regulations commit to the discretion of the agency. 

That is precisely what the Plaintiffs seek to accomplish here.17 Johnson Controls’ closure 

plan identified specific actions that it would take in order to complete closure in accordance with 

the performance standard and other applicable regulations. IDEM reviewed and approved that 

plan, after which Johnson Controls implemented it. The Plaintiffs do not dispute that Johnson 

Controls completed all of the activities required under that approved closure plan: it closed each 

of the waste management units in the manner required by the plan to achieve final closure, and it 

entered the Voluntary Remediation Program to address the remaining contamination outside of 

those units.18 The Plaintiffs now contend that those steps were not sufficient to satisfy the 

performance standard (or perhaps that the agency defined the scope of the units too narrowly), 

but the time to raise those complaints was while the agency was reviewing the closure plan—not 

 

17 Given that the Plaintiffs’ claims amount to a challenge of IDEM’s actions and authority, the 

Court invited IDEM to participate as amicus curiae, but it declined to do so.

18 The Plaintiffs’ citation to the deadline for completing closure, 40 C.F.R. § 265.113(b), is 

inapplicable for that reason, as it is undisputed that Johnson Controls has taken all of the steps 

required by its approved closure plan. 

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through a collateral attack on the agency’s decision under the guise of a subsection (a)(1)(A) 

claim.19

The Plaintiffs attempt to resist that description of their claim by arguing that IDEM has 

already ordered that Johnson Controls must remediate the groundwater to the maximum 

contaminant level for residential property. They argue that Johnson Controls is in violation of 

that order because it has not yet achieved that level of remediation. However, that argument rests 

on gross mischaracterizations of the record.20 For example, the Plaintiffs state in their brief that 

“Mr. Stilz [an IDEM representative] testified that in order to achieve RCRA closure, JCI 

[Johnson Controls] is required to remediate the groundwater flowing off-site to contain no more 

than 5 μg/L of TCE (the MCL).” [DE 315 p. 6]. Mr. Stilz testified to no such thing. In the 

testimony to which the Plaintiffs cite, Mr. Stilz was answering a question posed by Plaintiffs’ 

counsel about a hypothetical closure at a hypothetical facility21; immediately prior to that 

hypothetical, Mr. Stilz testified that he did not know whether such a decision had been made for 

Johnson Controls, and that those decisions are not made until the facility and the agency 

conclude whether clean closure will be possible. [DE 294-16 p. 40–42]. The Plaintiffs attempt to 

defend their misrepresentation by arguing that other evidence, in combination with Mr. Stilz’s 

testimony, supports the conclusion that Johnson Controls will have to remediate the groundwater 

 

19 That does not mean that the Court is abstaining, as the Plaintiffs suggest in part. Instead, the 

point is that subsection (a)(1)(A) provides a cause of action only when a party is in violation of a 

regulation (as relevant here), and the regulations grant authority to the agency to decide what 

actions a facility must take. Private individuals thus cannot raise a subsection (a)(1)(A) claim by 

arguing that a facility failed to take additional steps that the agency did not require.

20 Moreover, even were that premise correct, it would not follow that just because Johnson 

Controls has not yet achieved that goal, it is currently in violation of its obligations.

21 Mr. Stilz also testified that a facility could complete a closure by meeting risk-based levels 

specific to the facility even if it did not meet the maximum contaminant levels. [DE 294-16 p. 

29–30].

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to the maximum contaminant level. Not only does that rationalization fall short, but their brief 

attributed that conclusion directly to Mr. Stilz, misrepresenting his testimony.22 Their other 

explanations are similarly unavailing and fail to show that IDEM has already imposed such a 

requirement, so the Court rejects this argument. 

For those reasons, the Court finds that the Plaintiffs have not offered evidence that 

Johnson Controls is currently in violation of any “permit, standard, regulation, condition, 

requirement, prohibition, or order” effective under the Act. There is no dispute that Johnson 

Controls has performed each of the activities required by its approved closure plan. Though 

contamination still exists, which Johnson Controls is addressing through the Voluntary 

Remediation Program, the continued presence of that past contamination does not itself mean 

that Johnson Controls is currently in violation of its obligations. Browning v. Flexsteel Indus., 

Inc., 959 F. Supp. 2d 1134, 1145–49 (N.D. Ind. 2013); Forest Park Nat. Bank & Tr. v. 

Ditchfield, 881 F. Supp. 2d 949, 965–66 (N.D. Ill. 2012).

Therefore, the Court grants summary judgment in favor of Johnson Controls on this 

aspect of the Plaintiffs’ subsection (a)(1)(A) claim. 

2. Undisclosed Waste Management Units 

As a second basis for their “violation” claim, the Plaintiffs assert that the Johnson 

Controls facility contains additional areas that should have been designated and closed as waste 

management units. A waste management unit “is a contiguous area of land on or in which 

hazardous waste is placed,” such as a waste pile, a landfill cell, a tank and its piping, or a 

container storage area. 40 C.F.R. § 260.10. Final closure occurs when all waste management 

 

22 The Court expects and demands that counsel be scrupulously accurate with the record, both as 

to what the evidence says and what it does not say. Anything less not only violates counsel’s 

professional obligations to the Court, it leaves their arguments without factual support, as the 

Court will not indulge after-the-fact attempts to salvage these sorts of misrepresentations.

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units at a facility have been closed. Id. In its closure plans, Johnson Controls identified four 

waste management units at its facility: an equipment storage area, two areas used to store 

hazardous wastes, and one area that included an above-ground storage tank. The closure plans 

identified the activities necessary to undergo closure of each of those units, and IDEM approved 

the plans. The Plaintiffs argue, however, that the facility contained other waste management 

units as well, and that Johnson Controls failed to undergo closure at those units. Both sides 

moved for summary judgment in their favor on this claim. 

The Plaintiffs offered little attention to this claim in responding to Johnson Controls’ 

motion for summary judgment. They primarily repeated their argument that because 

contamination exists at and around the facility at levels they believe to be unacceptable, Johnson 

Controls has violated the closure performance standard as to any undisclosed units as well. Thus 

framed, however, this claim is no different from the previous one, and it fails for the reasons just 

explained. Moreover, the Plaintiffs failed to respond to Johnson Controls’ argument that none of 

the areas in question actually constitute waste management units. They acknowledged that 

argument only in a single sentence in a footnote, where they assert that they “believe” that 

certain areas constitute waste management units. [DE 315 p. 8 n.3]. They do not develop any 

argument in support of that belief, though, and have thus waived that argument. Schaefer v. Univ. 

Scaffolding & Equip., LLC, 839 F.3d 599, 607 (7th Cir. 2016) (“Perfunctory and undeveloped 

arguments are waived, as are arguments unsupported by legal authority.”); Packer v. Trs. of Ind. 

Univ. Sch. of Med., 800 F.3d 843, 848 (7th Cir. 2015) (“It is a well-settled rule that a party 

opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, 

why summary judgment should not be entered.”); Hernandez v. Cook Cty. Sheriff’s Office, 634 

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F.3d 906, 913 (7th Cir. 2011) (holding that “‘skeletal’ arguments may be properly treated as 

waived”). 

In support of their own motion for summary judgment, the Plaintiffs focus on one 

particular unit, a 220-gallon overflow tank, which they assert is a waste management unit. They 

argue that Johnson Controls is presently in violation of RCRA because it “never pursued or 

achieved RCRA closure for this tank system, as required by 40 C.F.R. § 265.197.” [DE 288 p. 

13]. Section 265.197 is contained in Subpart J of Part 265. However, Johnson Controls had 

served interrogatories asking the Plaintiffs to identify each regulation upon which they based 

their claim, and the Plaintiffs never identified any regulations in Subpart J. 

Johnson Controls thus moved to strike any reference to Subpart J in the Plaintiffs’ briefs. 

It argues that because the Plaintiffs failed to identify those regulations, they cannot now rely on 

them in support of their motion for summary judgment. In response, the Plaintiffs disclaim any 

argument that Johnson Controls is violating a Subpart J regulation. [DE 320 p. 4 (insisting that 

their claim does not rest “on a violation of Subpart J, or the specific section cited by Plaintiffs, 40 

C.F.R. § 265.197,” and stating that they “are not basing their § 6972(a)(1)(A) claim on Subpart J 

violations”)]. The Court accepts that concession, which moots that aspect of Johnson Controls’ 

motion to strike.23

Solving that problem only creates another one for the Plaintiffs, though: it leaves their 

motion bereft of any citation to authority in support of this claim. Besides a definitional 

 

23 Johnson Controls’ motion also seeks to strike the Plaintiffs’ references to an individual named 

Lazlo Pinnyei. The Plaintiffs state that Mr. Pinnyei used to live near the site, that he sued 

Johnson Controls over an alleged kidney condition, and that his case settled in 1993. The Court 

need not strike these statements, but they are wholly irrelevant, as the Plaintiffs offer no evidence 

that contamination had anything to do with Mr. Pinnyei’s alleged injury. Without such a link, the 

Plaintiffs offer only insinuations, which offer no support for their claim.

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regulation (which itself imposes no obligation that a party can be in violation of), the only

regulations that the Plaintiffs cite in support of this claim are Subpart J regulations. [DE 288 p. 

11–13]. Yet they now concede that they do not allege Johnson Controls to be in violation of 

those regulations. A claim under subsection (a)(1)(A) requires a party to be in violation of a 

“permit, standard, regulation, condition, requirement, prohibition, or order.” 42 U.S.C. § 6972(a). 

If the Plaintiffs neither cite such an obligation, nor develop an argument as to how Johnson 

Controls is in violation of that obligation, it necessarily follows that they have failed to establish 

such a violation. 

In their response to Johnson Controls’ motion to strike, the Plaintiffs attempt to develop 

an argument that Johnson Controls actually violated other regulations. They did not raise that 

argument in their summary judgment brief, though, or in response to Johnson Controls’ motion 

for summary judgment. Just as a party cannot raise new arguments in a reply brief, Hernandez, 

634 F.3d at 913, neither can it raise new arguments on the merits in an ancillary filing like a 

response to a motion to strike, see United States v. Miles, 244 F. App’x 31, 33 (7th Cir. 2007) 

(holding that an argument developed only in an appendix is waived). As the Court has previously 

observed in this case and its companion, the parties have attempted to proliferate the briefing by 

spreading their arguments across sur-replies, supplements, and ancillary motions. The Court need 

not indulge that wasteful and burdensome tactic. Instead, the Court confines its review on the 

merits to the arguments properly presented in the motion for summary judgment. And having 

withdrawn the only argument they actually make in that filing, the Plaintiffs left their claim 

without any factual or legal support. 

This failure to cite authority and develop a legal argument is not merely a superficial 

shortcoming, as it is not clear that the Plaintiffs could properly maintain a claim on this basis 

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anyway. The Plaintiffs argue that Johnson Controls failed to undergo closure for this 

“undisclosed” unit, but, as before, they refer to closure and the performance standard only in 

general terms, without developing an argument as to how Johnson Controls is in violation of any 

specific regulation. For example, the Plaintiffs argue in response to the motion to strike (which, 

again, is not properly before the Court on the merits of the motion for summary judgment) that 

Johnson Controls failed to file a closure plan for this unit. But the regulations require only a 

single closure plan for a facility, 40 C.F.R. §265.112(a), and it is undisputed that Johnson 

Controls did submit a closure plan for its facility, which IDEM reviewed and approved. 

Granted, one of the required elements of a closure plan is a “description of how each 

hazardous waste management unit at the facility will be closed.” 40 C.F.R. § 265.112(b)(1). 

Perhaps the Plaintiffs could argue (though they have not) that Johnson Controls violated this 

regulation because the closure plan that it submitted omitted a waste management unit, and thus 

did not address how “each” unit at the facility would be closed. But if so, that could very well be 

a past violation, rather than a present violation, in which case it could not support a subsection 

(a)(1)(A) claim. Gwaltney, 484 U.S. at 57. Johnson Controls submitted its closure plan to IDEM 

years ago. Submitting a closure plan then triggers a review process by the agency. 

§ 265.112(d)(4). That process includes notice to the public and an opportunity for public 

comment, as well as a public hearing if appropriate. Id. The agency has the ability to require the 

facility to make changes to the closure plan, and can approve, modify, or disapprove of the plan. 

Id. The agency has the right to conduct site investigations as well, 42 U.S.C. § 6927(a), and is 

responsible for determining “whether, for what purposes, or which areas of [a] facility must be 

closed.” Northside Sanitary Landfill, Inc. v. Thomas, 804 F.2d 371, 382 (7th Cir. 1986). 

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That process occurred here. Johnson Controls submitted its closure plan in February 

1991, which IDEM approved after providing public notice. Johnson Controls later submitted a 

revised closure plan in August 1998. IDEM required Johnson Controls to make certain changes 

to that plan, prompting Johnson Controls to conduct additional sampling and submit a 

supplement to its closure plan in December 1998. IDEM then approved that closure plan in 

February 1999, again after providing public notice, and Johnson Controls proceeded to 

implement the plan as approved. 

Given the availability of this review process and IDEM’s approval of the closure plan, 

even if the closure plan that Johnson Controls first submitted to the agency was deficient, it is not 

clear that this deficiency constitutes an ongoing violation. See United States v. Conservation 

Chemical Co. of Ill., 733 F. Supp. 1215, 1226–27 (N.D. Ind. 1989) (holding that submitting a 

deficient closure plan does not constitute a RCRA violation if the party revises the plan to 

comply with the agency’s response). By failing to identify this regulation in the first place, the 

Plaintiffs have entirely failed to engage on this issue and develop an argument in support of how 

a violation of this requirement would constitute a present violation. 

Finally, it is doubtful that the Plaintiffs stand to benefit from any relief that might be 

awarded on this theory. Upon a finding of a violation, § 6972(a) allows a court to enter an 

injunction that enforces the regulation in question. If the violation here is that Johnson Controls 

failed to include a unit in its closure plan, the injunctive relief would presumably be to require 

Johnson Controls to submit to IDEM a revised closure plan including that unit. Yet the relief the 

Plaintiffs are seeking is the remediation of contamination in their neighborhood and throughout 

the site. IDEM already approved Johnson Controls’ remediation of that contamination—without 

regard to whether it is traceable to a waste management unit—through its Voluntary 

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Remediation Program rather than as part of the closure process. The Plaintiffs have not offered 

any reason why IDEM would do otherwise for any additional unit. And if the relief would not 

actually result in any practical change, that again would make this look like a past violation, not 

an ongoing one. 

The Court does not purport to decide those questions definitively. However, this 

discussion illustrates why it is appropriate to enforce the Plaintiffs’ waiver. This is a complex 

area of law, and this is not a case where there is an obvious claim that a party simply failed to 

develop as completely as it should. Under those circumstances, it is particularly appropriate for a 

court to hold the parties to the arguments they have properly developed and supported with 

citation to authority. See Riley v. City of Kokomo, 909 F.3d 182, 190 (7th Cir. 2018) (“It is not 

the obligation of this court to research and construct the legal arguments open to parties, 

especially when they are represented by counsel.”); JTC Petroleum Co. v. Piasa Motor Fuels, 

Inc., 190 F.3d 775, 780–81 (7th Cir. 1999) (“[T]he theory is a novel one and when a litigant 

wants a court to buy a novel theory it has to do more than assert it . . . . We have no obligation to 

review issues that are raised, but not independently and sufficiently developed, in an appellant’s 

main brief.” (internal quotation omitted)). Because the Plaintiffs failed to develop an argument 

on this claim in support of their own motion for summary judgment, and offered no meritorious 

argument in response to Johnson Controls’ motion, the Court grants summary judgment in 

Johnson Controls’ favor on this claim. 

B. Section 6972(a)(1)(B) “Endangerment” Claim 

The Plaintiffs next assert a claim under subsection (a)(1)(B), which provides a cause of 

action against a party that handled hazardous waste that “may present an imminent and 

substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B). The 

Plaintiffs contend that the contamination here may present such an endangerment in many ways. 

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They contend that it may present an endangerment to the environment by virtue of its presence in 

the groundwater and the possibility that it will migrate to the city’s wellfield. They further 

contend that it may present an endangerment to health through the risk of vapor intrusion into 

homes and the possibility that residents may be exposed to contaminated groundwater. 

Subsection (a)(1)(B) contains several qualifying words that require explanation. The first 

is “may,” as the statute applies to contamination that “may present” an endangerment. 42 U.S.C. 

§ 6972(a)(1)(B). Given that broad phrasing, courts have characterized this provision 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 waste.” Me. People’s Alliance 

& Nat. Res. Def. Council v. Mallinckrodt, Inc., 471 F.3d 277, 287 (1st Cir. 2006); see also Grant, 

505 F.3d at 1020 (stating that “may” is “the operative word” in this provision); LAJIM, LLC v. 

Gen. Elec. Co., No. 13 CV 50348, 2015 WL 9259918, at *10 (N.D. Ill. Dec. 18, 2015) (“[C]ourts 

have construed ‘may present’ as requiring plaintiffs to show only the potential for an imminent 

and substantial endangerment.”). At the same time, “there is a limit to how far the tentativeness 

of the word may can carry a plaintiff”; it requires more than a mere possibility that an 

endangerment will occur in the future. 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). 

Next is “endangerment,” which 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 (2d Cit. 2009); see also Mallinckrodt, 471 F.3d at 296 (“[T]he combination of the word 

‘may’ with the word ‘endanger,’ both of which are probabilistic, leads us to conclude that a 

reasonable prospect of future harm is adequate to engage the gears of [§ 6972(a)(1)(B)] . . . .”). 

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That endangerment must be both imminent and substantial. An endangerment is “imminent” if it 

“threatens to occur immediately.” Meghrig, 516 U.S. at 486. “[T]here must be a threat which is 

present now, although the impact of the threat may not be felt until later.” Id.; 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.

Here, both sides move for summary judgment in their favor on this claim. The Court 

considers each in turn, and for each motion, the Court construes the facts in the light most 

favorable to the non-moving party. Tegtmeier, 390 F.3d at 1045. 

1. Johnson Controls’ Motion for Summary Judgment 

Johnson Controls moves for summary judgment, arguing that the Plaintiffs have not 

offered evidence sufficient to establish that the contamination may present an imminent and 

substantial endangerment in any respect. The Plaintiffs defend against the motion on multiple 

grounds, arguing that the contamination may present an endangerment to the environment, and 

that it may present an endangerment to health through its presence in groundwater and its ability 

to enter homes through vapor intrusion. As with Dr. Keramida’s opinion, the Court focuses its 

analysis on the threat of vapor intrusion, and denies the motion on that basis. 

For many of the same reasons the Court denied the motion to exclude Dr. Keramida’s 

opinion on the threat of vapor intrusion, the Court finds that the Plaintiffs have created a dispute 

of fact as to whether an endangerment exists on that basis. The Plaintiffs’ homes have had TCE 

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detected in their indoor air, and the below-ground contamination that produced that vapor 

intrusion still exists. Though mitigation systems have now been installed, there is a question of 

fact as to whether they are effective and reliable enough to abate any endangerment. 

Johnson Controls argues that the Plaintiffs err in relying largely on the presence of vapor 

intrusion in 2011, before the mitigation systems were installed. It notes that an endangerment 

claim applies to present or future harms, but does not apply to “waste that no longer presents 

such a danger.” Meghrig, 516 U.S. at 485–86. The levels of vapor intrusion in 2011 are still 

probative of a present endangerment, though. Dr. Keramida opines that the contamination in the 

groundwater and soil vapors—from which vapor intrusion in indoor air can originate—is 

comparable today to the levels at the time those samples were taken in 2011. And the levels of 

vapor intrusion in 2011 demonstrate that the below-ground contamination is capable of entering 

the homes’ indoor air in those amounts if not mitigated. Even Johnson Controls’ expert could not 

say that no endangerment would exist if mitigation systems were not present in those homes. 

The installation of vapor mitigation systems cuts against a finding that an endangerment 

still exists, but the Plaintiffs have offered evidence sufficient to create a dispute on that point. As 

discussed above, Dr. Keramida opines that the mitigation systems installed in those homes are 

not sufficient to eradicate the danger posed by vapor intrusion. The Court agrees that “Murphy’s 

law” is not sufficient to establish an endangerment where a party relies only on speculation that 

mitigation measures might fail, Tilot Oil, LLC v. BP Prods. N. Am., Inc., 907 F. Supp. 2d 955, 

966 n.15 (E.D. Wis. 2012), but Dr. Keramida’s opinion is not so limited. She first noted in 

general that mitigation systems are subject to failure, either through mechanical faults or other 

problems like a power failure or damage. But she also opined that the systems installed in these 

particular homes are deficient. She opines that they were not designed, installed, or operated 

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appropriately and that it is not possible to tell whether they are working properly. Moreover, 

multiple systems have experienced interruptions at some point, and TCE was detected in two of 

the homes even after the systems were installed (albeit in smaller amounts). A contractor who 

worked on one of those systems wrote after completing the job, “I cannot guarantee this will 

work and there will be no charge for this revision.” [DE 289-37]. In light of that evidence, the 

Court concludes that there is a dispute of fact as to whether an imminent and substantial 

endangerment may still exist even with the mitigation systems.24

The sampling that has been performed since the vapor mitigation systems were installed 

does not foreclose a finding that an endangerment still exists, either. First, due to the temporal 

and spatial variability of vapors, a test could fail to detect harmful vapors even though they are 

still present in other areas or will be present at other times. And second, the properties with 

mitigation systems have not been consistently tested. Most of those homes have been tested only 

twice since the systems were installed: once in 2011, then not again until 2018. A more rigorous 

set of sampling data might suffice to establish that vapors have not been present in the homes, 

but the Court cannot conclude that these limited tests do so conclusively enough to warrant 

summary judgment. At trial the Court will have the ability to weigh the competing evidence as to 

the effectiveness of the mitigation systems and the degree of any risk, but the Court cannot do so 

at summary judgment. 

The Plaintiffs have also offered sufficient evidence that the endangerment posed by vapor 

intrusion at the levels previously measured could qualify as “substantial.” Dr. Keramida opined 

 

24 The plaintiffs here are not “the neighborhood,” but rather five individuals connected to three 

particular properties. The parties’ filings do not address whether the Plaintiffs’ claim can be 

based on a risk to other properties in the neighborhood, but the Court need not reach that issue 

now, as this evidence is relevant at least to the extent it illustrates the risks that may be present in 

the Plaintiffs’ properties.

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that the levels of TCE that have been found in indoor air create an unacceptable health risk, by 

comparing them to EPA screening levels. She opines that those levels are an appropriate 

benchmark because they are set based on the agency’s research and expertise in determining 

levels at which health risks are unlikely to occur. In appropriate circumstances, exceedances of 

those amounts can thus support an inference that the exposure may create a risk. Grant, 505 F.3d 

at 1022. 

The Plaintiffs also argue that the EPA has determined that TCE in indoor air at 

concentrations above 2 μg/m3 can create a risk of birth defects. Johnson Controls vigorously 

disputes that argument, but at least one EPA region takes that risk serious enough that it 

recommends that mitigation measures to be “implemented quickly and their effectiveness . . . 

confirmed promptly” if indoor air concentrations exceed 2 μg/m3

. [DE 289-10]. And when the 

concentration of TCE exceeds 6 μg/m3, it recommends an “urgent response,” with mitigation 

measures being initiated immediately and their effectiveness confirmed “before any additional 

exposure is allowed to occur,” meaning residents may have to be temporarily relocated. By 

comparison, TCE has been measured in indoor air at 100 μg/m3 in the Schmucker’s home, about 

18 μg/m3 in the VanDiepenbos’ home, and over 5 μg/m3 in Mr. Stewart’s home. Other homes in 

the neighborhood had similar levels. 

Johnson Controls argues in response that these action levels are disputed even within the 

EPA and have been rejected by most state agencies, including IDEM. Applicable state standards 

do not define liability under subsection (a)(1)(B), though; the point is not whether Johnson 

Controls is complying with the governing agency’s standards, but whether contamination at 

those levels may present a substantial endangerment. Interfaith, 399 F.3d at 260–61. And at 

summary judgment, that disagreement only creates a dispute; it does not permit the Court to 

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reject this evidence. Johnson Controls also argues that the Plaintiffs are relying only on attorney 

argument to offer materials that require interpretation by experts. However, it was the EPA 

Region 9 that examined the research and recommended an “urgent response” to prevent exposure 

to concentrations at that level. The Plaintiffs are not relying on counsel’s own assessment of the 

underlying studies, but on the conclusions that the EPA region drew and the actions it 

recommended in response. The Court believes that the EPA region’s assessment of the potential 

risks posed by those levels of TCE is sufficient to create a question of fact as to whether 

exposure to these concentrations may present an imminent and substantial endangerment. 

Johnson Controls also argues that summary judgment is warranted because the Plaintiffs 

have offered no evidence as to what injunctive relief would be appropriate should they succeed 

in proving an endangerment. The Court disagrees. Dr. Keramida has identified remediation 

strategies that she believes would eliminate the contamination giving rise to the endangerment. 

Johnson Controls argues that her suggestions are infeasible because they would require too many 

injection wells to be installed or too many truckloads of soil to be removed. But the Court is not 

limited to an all-or-nothing decision in deciding whether to adopt her proposed remedies—the 

Court could find, for example, that a technique is appropriate but that it should be employed over 

a smaller area. In addition, the parties are in heated agreement at least in part as to what remedial 

activities should occur. Dr. Keramida opines that Johnson Controls should use enhanced 

reductive dechlorination injections to remediate the contamination in the shallow groundwater. 

Johnson Controls has used that same technique in a pilot test, and has proposed expanding its use 

of that technique within the site. [DE 292 p. 25 (noting that “one of [Dr. Keramida’s] ideas—insitu reductive dechlorination (ERD)—is something [Johnson Controls] is already doing under 

IDEM’s oversight”)]. The dispute in that respect appears to be over only the size of the area in 

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which Johnson Controls should use that technique. Accordingly, the Court finds that the 

Plaintiffs have offered enough evidence to survive summary judgment on that issue. The Court 

therefore denies Johnson Controls’ motion as to this claim. 

2. The Plaintiffs’ Motion for Summary Judgment 

The Plaintiffs also moved for summary judgment in their favor. They argue that it is 

beyond dispute that the contamination may present an imminent and substantial danger in 

multiple respects. They argue that the contamination undisputedly presents a danger to the 

environment through its presence in groundwater, and that it presents a danger to health through 

its potential to reach the city’s wellfield, its ability to enter homes through vapor intrusion, and 

the possibility that people may use private wells drawing contaminated water. 

In reviewing the Plaintiffs’ motion, the Court views the facts in the light most favorable 

to Johnson Controls and draws all reasonable inference in its favor. Under that standard, 

summary judgment is unwarranted, as Johnson Controls has offered evidence disputing the 

Plaintiffs’ positions on each of those points. That includes expert opinions attesting that the 

contamination will not reach the wellfield; that the homes are safe from vapor intrusion, either 

because they are not at risk of vapor intrusion or because any risk has been obviated by 

mitigation systems, and because the levels of contamination are not significant enough to 

endanger human health anyway; and that no other receptors, including any parts of the 

environment, are endangered by the contamination. Johnson Controls further offers reasons why 

the evidence upon which the Plaintiffs rely to support their claim should not be credited. The 

Court need not belabor each of those points individually, but finds that genuine disputes of 

material fact preclude summary judgment in the Plaintiffs’ favor. 

The only argument the Plaintiffs offer that warrants discussion at this point is that the 

mere existence of contamination in groundwater constitutes an imminent and substantial 

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endangerment to the environment. If that premise were sound, then the undisputed existence of 

contamination could warrant summary judgment in their favor. The Court does not accept that 

categorical premise, though. There is no question that an endangerment to the environment can 

sustain a subsection (a)(1)(B) claim, even without any effect on human health. 42 U.S.C. 

§ 6972(a)(1)(B) (applying to hazardous waste that “may present an imminent and substantial 

endangerment to health or the environment.” (emphasis added)); Interfaith, 399 F.3d at 259. 

There is a difference, though, between contamination that happens to be present in the 

environment, and contamination that may present an imminent and substantial endangerment to 

the environment. Avondale, 170 F.3d at 695 (affirming summary judgment despite the 

undisputed existence of contamination that could be harmful, as any danger posed by the 

contamination was not imminent). Subsection (a)(1)(B) only addresses the latter scenario. It is 

preventative, and allows courts to order relief to keep those risks from coming to pass; it does not 

transfer oversight of all environmental remediation from the state and federal agencies to the 

federal courts.25 Tilot Oil, LLC v. BP Prods. N. Am., Inc., 907 F. Supp. 2d 955, 968 (E.D. Wis. 

2012) (rejecting the argument—identical to the Plaintiffs’ argument here—that groundwater 

contamination constitutes an imminent and substantial endangerment per se); Sullins v. 

Exxon/Mobil Corp., No. 08-04927, 2011 WL 8077086, at *6 (N.D. Cal. Jan. 26, 2011) (granting 

summary judgment against the plaintiffs where “the plaintiffs proved that there was substantial 

contamination on their property, but failed to prove that the contamination was likely to cause 

harm to someone or something”); Foster v. United States, 922 F. Supp. 642, 662 (D.D.C. 1996) 

(“In contrast to the CERCLA, which requires only a showing that a release of hazardous 

 

25 To the extent the Plaintiffs rely on the existence of contamination in groundwater in particular, 

there is no statutory basis for giving such solicitude to groundwater as compared to any other 

aspect of the environment.

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substance has occurred, 42 U.S.C. § 6972(a)(1)(B) requires more than a mere showing that solid 

or hazardous wastes are present at the Site.”). By contrast, the agencies have authority to impose 

corrective action if there “has been a release of hazardous waste into the environment,” even if it 

does not present an imminent and substantial endangerment. 42 U.S.C. § 6928(h). 

There are many ways in which the existence of contamination could pose such an 

endangerment to health of the environment. Contaminated groundwater could endanger health if 

it is used as drinking water or otherwise comes into contact with people, such as through vapor 

intrusion. See PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 618 (7th Cir. 1998) (“[T]he 

buried wastes contain lead that is a constant danger to the groundwater, so that some leaning up 

is necessary in the interest of health[.]”); LAJIM, 2015 WL 9259918, at *12; United States v. 

Apex Oil Co., No. 05-cv-242, 2008 WL 2945402, at *80 (S.D. Ill. July 28, 2008). The 

contamination could also pose a threat to the environment if it is migrating and threatens to 

endanger other environmental sources. Compare Interfaith, 399 F.3d at 263, LAJIM, 2015 WL 

9259918, at *12 (finding a threat where the contamination was migrating), and Apex Oil, 2008 

WL 2945402, at *80 (finding a threat to the environment “because contaminated groundwater at 

the Site is very close to the Mississippi River and it could migrate westward and contaminate the 

River”) with Avondale, 170 F.3d at 695, Birch Corp. v. Nev. Inv. Holding, Inc., 152 F.3d 924 

(table), 1998 WL 442982, at *3 (9th Cir. 1998) (finding no threat to the environment, despite the 

presence of contamination exceeding regulatory cleanup levels, because the contamination was 

stable and threatened no future harm), and Foster, 922 F. Supp. at 662 (granting summary 

judgment due to the absence of an imminent and substantial endangerment, despite the presence 

of contamination). The contamination could also present an endangerment if it harms wildlife or 

organisms in the environment. Interfaith, 399 F.3d at 262. 

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Contamination does not create an endangerment by its mere presence, though, and there 

is a dispute of fact as to whether the contamination here poses any of those dangers. Construing 

the facts in the light most favorable to Johnson Controls, the threat of vapor intrusion has been 

obviated by vapor mitigation systems, and the homes in the area are connected to municipal 

water, so the residents will not be exposed to contaminated groundwater. Nor, according to 

Johnson Controls, will the contamination ever reach the city’s wellfield. If no one will be 

exposed to the contamination in harmful levels, it does not pose a threat to health. Though 

contamination need not currently be causing harm to support an endangerment claim, it threatens 

no endangerment if there is no likelihood of exposure. Avondale, 170 F.3d at 695; Crandall, 594 

F.3d at 1238–39; Mallinckrodt, 471 F.3d at 288; Tilot Oil, 907 F. Supp. 2d at 965–66. Johnson 

Controls has also offered evidence that the contamination does not threaten any environmental 

sources, such as a nearby creek or ponds, or other ecological receptors like plants or wildlife. In 

short, Johnson Controls has offered evidence that the existing contamination threatens no 

secondary effects. Absent such an imminent and substantial endangerment, the mere presence of 

contamination in the environment does not support a subsection (a)(1)(B) claim. Therefore, the 

Court denies the Plaintiffs’ motion for summary judgment on this claim, which will proceed to 

trial. 

V. CONCLUSION 

To summarize, this action remains pending as to the subsection (a)(1)(B) endangerment 

claim, but summary judgment is warranted in favor of Johnson Controls on the subsection 

(a)(1)(A) violation claim. The Court orders as follows: 

 The Plaintiffs’ motion for summary judgment [DE 287] is DENIED;

 Johnson Controls’ motion for summary judgment [DE 291] is GRANTED as to the 

subsection (a)(1)(A) claim and DENIED as to the subsection (a)(1)(B) claim; 

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• Johnson Controls’ motion to exclude Dr. Keramida’s opinions [DE 271] is DENIED in

part and DISMISSED in part with leave to renew at trial;

• Johnson Controls’ first motion to strike Dr. Keramida’s supplemental report [DE 329] is

GRANTED in part and DENIED in part, and its second motion to strike [DE 333] is

DENIED.

• Johnson Controls’ motion to exclude Dr. Orris’ opinions [DE 273] is DISMISSED with

leave to renew at trial;

• The Plaintiffs’ motion to exclude Johnson Controls’ experts’ opinions [DE 281] is

DENIED;

• Johnson Controls’ motion for leave to file a surreply [DE 307] is DENIED;

• Johnson Controls’ motion to strike [DE 313] is DENIED;

• Johnson Controls’ motion for leave to supplement its disclosures [DE 341] is DENIED;

and

• The motion to seal [DE 322] is DENIED, so the Clerk is DIRECTED to unseal DE 321.

SO ORDERED.

ENTERED: February 19, 2019 

 /s/ JON E. DEGUILIO 

Judge 

United States District Court 

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