Ebert v. General Mills, Inc.
2014 U.S. Dist. LEXIS 123171
D. Minnesota2014Background
- GMI operated the GMI Facility in Minneapolis from 1930 to 1977, disposing of hazardous substances including TCE via buried drums.
- Plaintiffs’ properties and residents in the Area allegedly experience vapor intrusion and contamination from the GMI Facility.
- Consent Order and modifications (1984 Consent Order; 2014 Modification) redirected remediation to state law MERLA under MPCA supervision, with no explicit CERCLA authorization.
- EPA and MPCA entered into agreements (SMOA, Deferral Project) that defer remedial actions to the MPCA, with EPA not actively overseeing CERCLA actions at the site.
- Plaintiffs allege ongoing vapor migration, health risks, property value impacts, and out-of-pocket costs; GMI is installing VMS in some homes but plaintiffs seek broader remediation and injunctive relief.
- Plaintiffs assert five claims: CERCLA response costs, negligence, private nuisance, willful and wanton conduct, and RCRA § 6972(a)(1)(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiffs have standing to seek injunctive relief | Plaintiffs face ongoing, real threat from vapor migration and seek source remediation. | VMS installation by GMI already mitigates risk; no redressable ongoing injury. | Plaintiffs have Article III standing for injunctive relief. |
| CERCLA jurisdiction over injunctive relief and RCRA claim | Remediation by MPCA/state actions are not CERCLA-driven; federal CERCLA jurisdiction is not triggered. | Remediation is under CERCLA via federal oversight and related agreements. | Remediation at GMI site was under state MERLA, not CERCLA; § 9613(h) does not bar claims. |
| Sufficiency of CERCLA claim for response costs | Plaintiffs incurred necessary and reasonable response costs connected to threats and mitigation. | Costs lack sufficient nexus to CERCLA-remedial action and are not adequately tied to removal actions. | CERCLA claim survives; plaintiffs adequately alleged necessary and consistent response costs. |
| Negligence claim sufficiency | Property values have diminished due to vapor intrusion; plaintiffs’ve alleged ongoing injury and duty breached by GMI. | Need more concrete factual basis tying diminution to defendant’s breach; injury may be inadequately pleaded. | Negligence claim plausibly alleged; dismissal denied. |
| RCRA pre-suit notice sufficiency | Notice provided adequately identifies violations and targets; Milbrandt’s notice is addressed within the same notice framework. | Milbrandt did not provide pre-suit notice; Ebert/Krauze notices lack sufficient detail. | RCRA notice deemed sufficient; Count V survives. |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires injury, causation, and redressability)
- Osborn v. United States, 918 F.2d 724 (8th Cir. 1990) (facial vs. factual 12(b)(1) challenge; jurisdictional review standards)
- Park v. Forest Serv. of the United States, 205 F.3d 1034 (8th Cir. 2000) (injunction standing requires real and immediate threat)
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) (standing and redressability; injunctive relief considerations)
- Twombly v. Bell Atlantic Corp., 550 U.S. 544 (2007) (pleading must plead plausible claim, not mere conclusoryAssertions)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard requires non-conclusory factual content)
- Lubbers v. Anderson, 539 N.W.2d 398 (Minn. 1995) (negligence pleading standards under Minnesota law)
- Osborn v. United States, 918 F.2d 724 (8th Cir. 1990) (jurisdictional dismissal standards and scope)
- O’Shea v. Littleton, 414 U.S. 488 (1974) (threat of future injury required for standing to seek injunctive relief)