Two recent cases illustrate the potential scope of, and the potential limitations on, injunctive relief in RCRA citizen suits. First up, Schmucker v. Johnson Controls.
Contamination was detected at the Johnson Controls manufacturing facility in Goshen, Indiana. In response, Johnson Controls performed substantial remediation under the auspices of the Indiana Department of Environmental Management’s Voluntary Remediation Program. Nonetheless, significant contamination remains at the site, including a groundwater plume running beneath residences. In 2011, TCE was detected in indoor air at concentrations exceeding IDEM’s screening level. Johnson Controls installed vapor mitigation systems at all affected residences, and concentrations were below screening levels in all the residences after installation of the mitigation.
Imminent and substantial endangerment, or not? In a battle of the experts, the Court denied both sides’ motions for summary judgment. First, the plaintiff’s expert’s opinion that there was a risk of future exposures, notwithstanding the mitigation, was enough to defeat Johnson Controls’ motion. The Court did note that:
“Murphy’s law” is not sufficient to establish an endangerment where a party relies only on speculation that mitigation measures might fail.
However, the Court found that the plaintiffs’ expert was not simply speculating.
On the flip side, defendant’s expert said that the mitigation measures were sufficient to eliminate the endangerment. That was enough to defeat plaintiffs’ motion.
Next up, Lajim v. General Electric. The facts are somewhat similar to those in Johnson Controls. There was a long history of industrial use, discovery of a groundwater plume – in this case, impacting municipal water supply wells – and the commencement of significant response actions. Here, the work was supervised by Illinois EPA, pursuant to a 2010 consent decree. Here too, nearby plaintiffs were not satisfied with the remedial plan, notwithstanding approval by the state agency overseeing the cleanup. In another battle of the experts, the District Court denied plaintiffs’ request for injunctive relief. The 7th Circuit Court of Appeals affirmed. Here are the highlights:
- District courts have discretion to deny injunctive relief under RCRA, even where the defendant has been found liable. “It will usually be the case that injunctive relief is warranted,” but it is not mandatory.
- RCRA is not a general cleanup statute; injunctive relief is only available where there may be an imminent and substantial endangerment.
- Where plaintiffs failed, after an evidentiary hearing, to demonstrate that cleanup was necessary beyond that which GE was doing pursuant to the consent decree, no injunction need issue.
I think that there are two lessons from these cases, one substantive and one practical:
- RCRA’s citizen suit provision provides plaintiffs with a powerful hammer, but there are limits to the relief that courts will impose, particularly if a defendant is implementing a cleanup under state oversight.
- Good lawyering and persuasive experts still really matter.
Schmucker? You can’t make this stuff up.