959 F. Supp. 2d 1134
N.D. Ind.2013Background
- Plaintiffs reside in Elkhart County and sue for groundwater contamination from alleged unpermitted dumping of hazardous wastes by former entities tied to Dygert Seating and subsequent operators at the Cooper Drive/Marina Drive site.
- Defendants include Dygert Seating, Flexsteel, and several related firms; Flexsteel remains active while others have dissolved or ceased operations at the site.
- From the mid-1980s to 2007, site operations involved discharging solvents (TCE, methylene chloride, TCA) and improper waste handling, with waste often dumped, stored in drums, or disposed of with regular trash.
- Environmental investigations by IDEM and EPA began in 2007, leading to well testing, bottled water supplies, and eventual municipal water connections for affected residents; EPA listed the site on the National Priorities List (NPL) in 2009 and initiated RI/FS activities.
- Plaintiffs filed state-law claims and later a federal RCRA citizen-suit action in 2011, asserting violations under RCRA and seeking injunctive relief and related fees; Lands separately asserts Indiana RPTL damages against Flexsteel.
- The court dismisses Count III (RCRA §6972(a)(1)(A)) for lack of ongoing or intermittent violations, allows Count IV (RCRA §6972(a)(1)(B)) to proceed subject to discovery, and allows Count V (RPTL) to proceed after addressing a broad statutory interpretation of “property.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §6972(a)(1)(A) permits relief for wholly past violations | Plaintiffs rely on ongoing effects of past pollution to satisfy ‘in violation’. | Past violations with ongoing effects constitute continuing violations or, at least, remediable ongoing duties. | Count III dismissed; no continuing or intermittent violations shown. |
| Whether there are plausible ongoing corrective-action violations under §6972(a)(1)(A) | Plaintiffs seek ongoing corrective-action violations at the site despite years since operation ended. | No current alleged violations or clearly applicable current corrective-action requirements are pleaded. | Count III dismissed for lack of current corrective-action violations. |
| Whether §6972(a)(1)(B) provides a proper basis for remediation-related relief | Remediation of past pollution is appropriate under §6972(a)(1)(B). | CERCLA §113(h) and RCRA limitations may bar such relief while remedial actions are ongoing. | Count IV may proceed pending discovery; not barred at this stage. |
| Whether CERCLA §113(h) bars the RCRA claim at this stage | Ongoing or planned EPA remediation could still permit RCRA action. | Section 113(h) bars challenges to removal/remedial actions pending completion. | Relying on Frey decisions, §113(h) bar is premature here; proceed to discovery. |
| Whether Indiana RPTL requires dismissal of Lands’ claim | Property transfer disclosure duty covers broad environmental information; EPCRA disclosures may trigger obligations. | Flexsteel contends lack of EPCRA/CERCLIS triggers; definition of ‘property’ is narrow. | Count V survives; court adopts broad interpretation consistent with RPTL purposes. |
Key Cases Cited
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (Supreme Court 1987) (to be in violation requires continuous or intermittent violations; focus on polluter's conduct)
- Forest Park Nat'l Bank & Trust v. Ditchfield, 881 F.Supp.2d 949 (N.D. Ill. 2012) (an abatement/remediation focus; dismissal of §6972(a)(1)(A) where past violations persist)
- Frey v. EPA, Federal Circuit decisions (Frey I & Frey II), 270 F.3d 1129; 403 F.3d 828 (7th Cir. 2001; 7th Cir. 2005) (§113(h) is a non-jurisdictional bar; not always to be read as jurisdiction strip)
- North Shore Gas Co. v. EPA, 930 F.2d 1239 (7th Cir. 1991) (context for remedial vs removal action and litigation timing)
- Dydio v. Hesston Corp., 887 F.Supp.1037 (N.D. Ill. 1995) (UST owner/operator theories and ongoing regulatory duties after transfer)