<br />653 N.E.2d 89
<br />(Cite as: 653 N.E.2d 89, *91)
<br />Standard of Review
<br />In reviewing a ruling on a motion for summary
<br />judgment, this court applies the same standard
<br />applied by the trial court. Walling v. Appel Service
<br />Co. (1994), Ind.App., 641 N.E.2d 647, 6489;
<br />Miller v. Monsanto (1993), ind.App., 626 N.E.2d
<br />538, 541. Summary judgment is appropriate only if
<br />"the designated evidentiary matter shows that there is
<br />no genuine issue as to any material fact and that the
<br />moving party is entitled to a judgment as a matter of
<br />law." Ind. Trial Rule 56(C). We resolve any doubt
<br />as [o a fact, or an inference [o be drawn therefrom, in
<br />favor of the party opposing stunmary judgment.
<br />[FN3] Miller, 626 N.E.2d at 54I.
<br />FN3. The trial coon rntered extensive findings with
<br />its order granting summary judgment for both Terra
<br />and Kraft. While we are not bound by [he trial
<br />court's fmdings, a trial court's explanation of its
<br />reasons for entering summary judgment is
<br />helpful on review. Miller, 626 N.E.2d at 541
<br />n. 2.
<br />The purpose of summary judgment is to terminate
<br />litigation about which there can be no factual dispute
<br />and which can be determined as a matter of law.
<br />Beradi v. Hardware Wholesalers, /nc. (1993),
<br />Ind.App., 625 N.E.2d 1259, 1261, trans. denied.
<br />Even though there may be conflicting facts and
<br />inferences regarding certain elements of the claim, we
<br />are only concerned with the diapositive or essential
<br />facts, and inferences to be drawn therefrom Citizens
<br />Nat. Bank v. Indianapolis Auto Auction (1992),
<br />[nd.App., 592 N.E.2d 1256, 1257.
<br />Measure of Damages
<br />[1][2] in this case of first impression in Indiana, we
<br />are asked to consider the proper measure of damages
<br />for injury to land contaminated by PCBs. Under
<br />Indiana law, the measure of damages in a case of
<br />injury to real property depends fast upon a
<br />determination of whether the injury is "permanent" or
<br />"temporary." City ojAnderson v. Balling Concrete
<br />Corp. (1980), Ind.App., 411 N.E.2d 728, 732, trans.
<br />denied (citing General Outdoor Advertising Co. v.
<br />LaSalle Realty Corp. (1966), 141 Ind.App. 247, 265,
<br />218 N.E.2d 141, 150, trans. denied ). Permanent
<br />injury to unimproved land occurs where "the cost of
<br />restoration exceeds the market value ... prior to
<br />injury." General Outdoor Advertising, 141 Ind.App.
<br />at 267, 218 N.E.2d at I51. If the injury is
<br />permanent, the measure of *92 damages is limited to
<br />Page 3
<br />the difference between the fair market value of the
<br />property before and after the injury, based on the
<br />rationale that "economic waste" results when
<br />restoration costs exceed the economic benefit. See
<br />Balling, 411 N.E.2d at 734. For a temporary injury
<br />the proper measure of damages is the cost of
<br />restoration. /d.
<br />It is undisputed that the cost to remediate Terra Site
<br />far exceeded the value of the land itself Applying
<br />the common law distinction between permanent and
<br />temporary damage to these facts, the damage to Terra
<br />Site would be considered pemtanent and the measure
<br />of damages would be the difference between the
<br />value of the property before and after the
<br />remediation. That is the measure of damages
<br />advocated by Terra on appeal.
<br />Kraft maintains that because it has remediated Terra
<br />Site at its expense, "Terra is entitled only to what it
<br />has already received" and "its damage claims aze
<br />moot." Brief of Appellees at 11. In other words,
<br />Kraft azgues and the trial court determined that
<br />remediation repaired Terra Site and, thus, that the
<br />PCB contamination was temporary damage. The
<br />court agreed with Kraft that Terra could not "seek to
<br />recover damages allowed for permanent injury and
<br />also to keep the rewards allowed under temporary
<br />injury that have aready been performed." Record at
<br />377.
<br />The trial court's judgment was based on its
<br />determination that "[u]nder recent case law and
<br />through statements of the EPA and Indiana
<br />legislature, PCB contamination has been treated as a
<br />temporary injury despite the high cost of repair."
<br />Record at 376. The court relied on the federal
<br />district court decision in /n re Paoli R.R. Yard PCB
<br />Litigation (E.D.Pa.1992), 811 F.Supp. 1071, and on
<br />Indiana statutes and regulations, and reasoned that
<br />those audtoriries were "contrary to the common law
<br />policy of avoiding repair at costs which greatly
<br />exceed the value of the land." Record at 376-77; see
<br />IND. CODE § 13-7-8.5-5.5; IND. ADMIN. CODE
<br />tit. 329, r. 2-6~. The trial court concluded that "the
<br />current policy of the State of Indiana as well as the
<br />United States ... preempt[s] the common law doctrine
<br />for assessing the appropriate damages to real property
<br />and requves PCB contamination to be considered a
<br />temporary injury." Record a[ 377.
<br />We agree with the trial court that in light of the often
<br />exorbitant costs of remediation, the traditional
<br />common law economic waste analysis is inadequate
<br />Copt. ~ West 2001 No Claim to Orig. U.S. Govt. Works
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