917 F.3d 952
7th Cir.2019Background
- William and Nancy Liebhart own three houses adjacent to an abandoned transformer factory formerly owned by SPX; SPX demolished the factory in 2015 with contractors TRC (supervision) and Apollo (demolition).
- Prior studies showed PCB contamination in the factory concrete dating from operations before 1971; Liebharts allege dust from the 2015 demolition deposited PCBs on their yards and endangered health.
- State testing found PCBs in surface soil on both industrial and residential properties; Liebharts produced photos/videos of dust migration and submitted (but had flaws in) a privately collected snow sample and later soil and blood tests (soil positive; interior and blood tests negative).
- Plaintiffs sued under RCRA and TSCA seeking injunctive relief and asserted state-law claims; district court excluded portions of plaintiffs’ experts (Woodyard entirely; Carpenter in part), granted defendants summary judgment on RCRA/TSCA, and denied leave to amend (futility and undue delay). Costs were taxed by the clerk.
- The Seventh Circuit vacated and remanded, holding the district court applied an overly stringent legal standard for RCRA/TSCA (misreading the required showing of "may present an imminent and substantial endangerment") while upholding most discretionary evidentiary and procedural rulings; remand for reconsideration under the correct legal standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard for RCRA §6972(a)(1)(B) relief | Liebhart: need only show contaminants may present an imminent and substantial endangerment (no requirement of current harm or a strict numeric threshold) | Defendants/district ct: plaintiffs must show more (e.g., actual health problems or contamination above agency thresholds) | Court: RCRA requires only that contamination "may present" an imminent and substantial endangerment; lower bar than district court applied; vacated and remanded |
| Admissibility of experts (Woodyard, Carpenter) | Woodyard/Carpenter offered causation and health-risk opinions supporting RCRA/TSCA claims | Defendants: experts unreliable, failed to rule out alternative explanations; district ct excluded Woodyard and struck part of Carpenter | Court: district court did not abuse discretion excluding Woodyard and partially excluding Carpenter, but directed district court to reevaluate Carpenter on remand under correct legal standard |
| TSCA §2619 claim based on PCB "spill" regulation | Liebhart: regulation defines spill concentration by source material; demolition of PCB-contaminated concrete (source >50 ppm) could constitute a spill even if deposited material is <50 ppm | Defendants: no evidence PCBs were spilled at >50 ppm onto plaintiffs' property; demolition completed so no ongoing violation | Court: district court erred in failing to consider that the regulation measures concentration by source material; remand to determine if TSCA ongoing-violation/spill element is met |
| Denial of leave to amend (adding claims re: buried concrete) | Liebhart: discovered burial in Oct 2017; sought to amend but did not provide new EPA notice; urged amendment timely and justified | Defendants: undue delay and prejudice; lack of fresh notice to EPA renders amendment futile under notice requirements | Court: futility analysis was incorrect (prior notice to EPA sufficed here), but district court did not abuse discretion in denying leave because of undue delay and prejudice given four-month delay and proximity to trial |
| Injunctive relief given state-approved cleanup plan | Liebhart: DNR-approved plan may be deficient; federal injunction/remediation still warranted | Defendants: state-supervised cleanup adequate; federal relief unnecessary | Court: district court’s deference to state plan not clearly erroneous, but remand required to reassess injunctive relief under the correct (lower) RCRA standard |
Key Cases Cited
- City of Chicago v. Envtl. Def. Fund, 511 U.S. 328 (overview of RCRA regulatory scheme)
- Meghrig v. KFC Western, Inc., 516 U.S. 479 (RCRA citizen-suit scope and remedies)
- Albany Bank & Trust Co. v. Exxon Mobil Corp., 310 F.3d 969 (7th Cir.) (elements of a prima facie RCRA claim)
- United States v. Price, 688 F.2d 204 (3d Cir.) (statutory interpretation: injunctions may issue on risk of harm)
- Mallinckrodt, Inc. v. Allied Chem. Corp., 471 F.3d 277 (1st Cir.) (interpretation of "may present" standard under RCRA)
- Dague v. City of Burlington, 935 F.2d 1343 (2d Cir.) (RCRA citizen-suit standards)
- Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 399 F.3d 248 (3d Cir.) (no strict numeric threshold required under RCRA)
- Cox v. City of Dallas, 256 F.3d 281 (5th Cir.) (imminence does not require existing harm)
- Price v. United States Navy, 39 F.3d 1011 (9th Cir.) (discussion of imminence and agency standards)
- Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc., 40 F.3d 146 (7th Cir.) (contextual discussion of EPA regulatory thresholds for PCBs)