ENFORCE35100

• Permit No: C1981013
• IBM Index Class Name: Enforcement
• Doc Date: 4/19/2001
• Doc Name: PREHEARING BRIEF OF BASIN RESOURCES INC
• Violation No.: CV2000009
• Media Type: D
• Archive: No

r
653 N.E.2d 89
(Cite as: 653 N.E.2d 89, •94)
remediation value, there is also no evidence of'fersa
Site's fair market value before PCB contamination
was discovered. The designated evidence discloses
that the $1.1 million appraisal, which assumed no
contamination, included both Terra Site and Mallory
Site. Tersa's only remaining viable claim for
damages concerns Terta Site, see supra note 1, and it
cannot be infersed• from the combined appraisal that
Terta has incursed a loss in Terra Site's fair mazket
value. [FN7]
FN'7. We are also unpersuaded that a Fish
Consumption Advisory, which remains in effect for
Little Sugar Creek bordering Terra Site,
demonstrates Terra's remaining loss damages for
Terra Site. PCB contamination of [he creek does
tend to establish that there is "same ongoing risk" to
Terra's land as required in the third prong of the !n re
Paoli test. Nevertheless, Terra has not desigrated
evidence which tends to show that contamination of
Little Sugar Creek has or will affect Terra Site's
post- remediation fair market value. Such a
showing is still a prerequisite to recovery for
permanent injury to land under both In re Paoli and
Wiese-GMC.
•95 Finally, at oral argument Tersa maintained that a
letter from a bank, which expressed reservations
about extending a loan to Terra due to environmental
concerns at Tersa Site, establishes that the property
was permanently damaged with the "stigma" which
attaches to contaminated land. See Record at 245B;
/n re Paoli, 35 F.3d at 797. This azgument also fails
because the bank's letter was written before the
remediation of Terra Site had been completed and
specifically advised Terra that to obtain a loan, it
would be required to secure a certification that the
property was "free of any environmental risks or
hazards." Record at 245B. The letter assumed
Page 6
environmental contamination and did not consider the
subsequent remediation of Tersa Site, and, thus, it
does not establish any remaining loss damages. In
sum, on this record we can only speculate that Terra
Site suffers from any permanent damage.
The hybrid theory of recovery acknowledged by the
Third Circuit in /n re Paoli, and by this court in
Wiese-CMC, may well apply under circumstances
where a reduction in the fair market value of real
property after remediation of environmental
contamination supports recovery of both temporary
and permartent damages in order to compensate fully
the plaintiff. See In re Pao/i, 35 F.3d at 797; Wiese-
GMC, 626 N.E.2d at 599. Such is not the case here.
The only measure of damages supported by the
designated evidence was the cost of remediatiog PCB
contamination at Terra Site, a temporary injury.
There is no evidence in the record to establish the
value of the land before and after remediation and,
thus, no evidence of any permanent damage to Terra
Site. Simply put, Terta has failed to produce or
designate evidence to establish a genuine issue of
material fact on the most critical element in the
pemtanent damage equation: the amount, if any, of
the "remaining loss" or reduction in fair market value
of Terra Site after remediation.
We hold that the trial court properly concluded from
the designated evidence that Terra had already been
compensated for its proven loss. The trial court did
not err when it granted summary judgment for Kraft.
The judgment of the trial court is af]'urrted.
BAKER and ROBERTSON, JJ., concur.
END OF DOCUMENT
Copr. O West 200] No Claim to Orig. U.S. Govt. Works