Hepler Broom, LLC

Seventh Circuit Draws a Line on Awards of Injunctive Relief Under RCRA

March 12, 2019

The federal Resource Conservation and Recovery Act (“RCRA”) authorizes a citizen suit against “any person” who has violated “any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter,” or “who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1). Disputes between private parties regarding environmental contamination at a property sometimes result in one side threatening to bring a citizen suit under the Resource Conservation and Recovery Act (“RCRA”)(42 U.S.C. § 6901 et seq.), or even sending the requisite RCRA citizen suit notice letter to the other party in an attempt to compel remediation. Prior court decisions involving the RCRA citizen suit provisions have broadly interpreted “imminent and substantial endangerment” to include commonplace contamination issues, such as petroleum that has leaked from a service station. Waldschmidt v. Amoco Oil Co., 924 F. Supp. 88, 89 (C.D. Ill. 1996). If a violation or “imminent and substantial endangerment” can be shown, a court can award injunctive relief and has discretion to award costs of litigation to the prevailing party. 42 U.S.C. § 6972(a)(2) and (e).

However, in a recent decision, the Seventh Circuit Court of Appeals found that injunctive relief under RCRA may not be appropriate even if there is a finding of “imminent and substantial endangerment.” The March 4, 2019, decision from the Seventh Circuit in LAJIM, LLC v. Gen. Elec. Co., No. 18-1522, 2019 WL 1011021 (7th Cir. Mar. 4, 2019) (“Opinion”) involved the remediation of solvent contamination at a General Electric Company (“GE”) manufacturing plant in Morrison, Illinois. GE’s investigation of solvent contamination began in 1986, and, in 2004, the Illinois Attorney General’s Office brought suit against GE for the contamination. The state’s lawsuit resulted in a Consent Order, which required GE to proceed with investigation and remediation and submit the reports called for by the Illinois Site Remediation Program. The Consent Order required GE to reimburse the Illinois Environmental Protection Agency’s (“Illinois EPA’s”) past and future response costs and imposed stipulated penalties for the failure to meet the requirements of the Consent Order, but it did not impose a civil penalty for alleged violations of the Illinois Environmental Protection Act and Pollution Control Board regulations.

The plaintiffs in the Seventh Circuit case purchased property near the GE plant in 2007 with knowledge that there was contamination on the property from the GE plant. Plaintiffs filed suit against GE in the Northern District of Illinois in 2013 seeking: (1) a mandatory injunction requiring GE to remediate the contamination, (2) cost recovery and a declaratory judgment under the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”) (42 U.S.C. § 9601 et seq.), and (3) recovery under state law for nuisance, trespass, and negligence. Opinion, p. 8. The Northern District granted GE’s cross-motion for summary judgment on the state law claims, but it also awarded Plaintiffs summary judgment on the issue of RCRA liability, finding that the contamination from the GE plant presented an imminent and substantial endangerment. Following extensive discovery and an evidentiary hearing, the Northern District denied Plaintiffs’ request for injunctive relief, holding that plaintiffs had not met their burden of showing harm not already addressed sufficiently by the State enforcement proceeding and Consent Order.

The Seventh Circuit’s decision, which affirmed the Northern District’s rulings, includes several important holdings. First, the Seventh Circuit reaffirmed the Supreme Court’s holding in Mehgrig v. KFC W., Inc., 516 U.S. 479 (1996) that “RCRA authorizes only injunctive relief” and “absent a permanent injunction, a prevailing RCRA plaintiff will receive no remedy… A RCRA plaintiff either demonstrates irreparable harm or fails to prove his or her case on the merits.” Opinion at 16.

Second, the Seventh Circuit noted that the award of an injunction in a RCRA citizen suit “does not issue as a matter of course upon a finding of liability,” but it is within the court’s discretion. The Seventh Circuit observed that, in most cases, once a court finds a defendant liable for imminent and substantial endangerment, “it will usually be the case that injunctive relief is warranted.” Id. at 15. However, the Seventh Circuit affirmed that the award of injunctive relief is within the court’s discretion. In this particular case, the Northern District found that plaintiffs provided no evidence of harm that was not already being addressed in the state proceeding. Moreover, despite repeated inquiries from the court, plaintiffs could not explain what plaintiffs wanted the court to order to address that harm. Id. at 18-19. The Seventh Circuit made particular note of the fact that plaintiffs never conducted their own investigation of the contamination to contradict GE’s evidence. Id. at 23-24.

Finally, in addressing plaintiff’s state law claims, the Seventh Circuit provided important guidance regarding the applicability of the “continuing tort doctrine” to claims involving environmental contamination under Illinois law. Plaintiffs’ claims for property damage were barred under the five year statute of limitations, but plaintiffs argued that the statute of limitations was not a bar to their claims because GE had not taken action to stop the contamination from migrating. Id. at 28. Rejecting plaintiffs’ “continuing tort” argument, the Seventh Circuit noted that:

The problem with plaintiffs’ argument is that the “continuing action” they allege is not that GE is continuing to release contaminants, but that the original contamination is continuing to migrate. However, “[a] continuing violation or tort is occasioned by continuing unlawful acts and conduct, not by continual ill effects from an initial violation.” (Cites omitted.) … The continuing migration plaintiffs allege is merely an ill effect from the original violation, not a continuing unlawful act.

Id. at 29.

For parties involved in disputes with neighboring or current property owners regarding remediation of an Illinois property, the LAJIM decision provides an incentive to move forward with the remediation under the oversight of the Illinois EPA. One question left open by the Seventh Circuit’s decision is whether a similar outcome could be reached in a case where the defendant’s property was not the subject of an enforcement case but was undergoing remediation under the Illinois Site Remediation Program or Leaking Underground Storage Tank Program. The LAJIM decision also suggests that a party faced with an imminent RCRA citizen suit could consider negotiating an enforcement order with the State of Illinois that includes injunctive relief for ongoing remediation.