In Estate of Williams v. Borg Warner Morse TEC, Inc. ___ N.E.3d ___, NO. 49A02-1710-PL-2224, 2018 WL 4275368 (Aug. 28, 2018), the Indiana Court of Appeals held that the manufacturer of a dry cleaning machine could not be held liable under Indiana’s Environmental Legal Action statute (the “ELA”), Ind. Code § 13-30-9-2. In doing so, it affirmed yet again, that ELA liability requires some actual, active involvement with the release of contaminants.

The site at issue was operated as a dry cleaner from the 1960s until 1981. The plaintiff Williams owned the site from 1969 to 1995. During that time, Williams operated the site as a dry cleaner and leased it to others who operated it as a dry cleaner. A previous owner installed Norge dry cleaning machines in 1967. Those machines remained in operation until 1981.

The years of dry-cleaning operations left the site contaminated with chlorinated solvents. When the site’s current owner sued Williams for the costs of remediating the contamination, Williams in turn filed a third-party complaint under the ELA against a successor to the manufacturer of the Norge machines. Williams claimed by selling the machines with instruction manuals suggesting that the machines be hooked up to city sewers—which caused at least some of the releases—that Norge caused or contributed to those releases.

The ELA allows any party who has incurred environmental response costs to recover against any other party who “caused or contributed” to that release of contaminants. Ind. Code § 13-30-9-2. Prior cases have interpreted this language to require some actual involvement with the contaminants that caused the release. The Court of Appeals found that the mere manufacture of dry cleaning machines did not meet this active involvement requirement and thus it affirmed summary judgment for Norge’s successor.