Plaintiffs-appellants purchased land near a former General Electric Company manufacturing plant that had operated for sixty years; the plant leached toxic chemicals that seeped into the groundwater. The Illinois Environmental Protection Agency filed suit under state law against General Electric in 2004 and has been working with the company since then to investigate and develop a plan to address the contamination. In 2013, plaintiffs filed suit under the citizen suit provision of the Resource Conservation and Recovery Act, seeking a mandatory injunction ordering General Electric to conduct additional investigation into the scope of the contamination and ordering the company to remove the contamination. The district court found the company liable for the contamination on summary judgment but denied plaintiffs' request for injunctive relief beсause, despite the many opportunities the court provided, plaintiffs did not offer evidence establishing a need for injunctive relief beyond what the company had already done in the state action. For the following reasons, we affirm.
I. Background
A. Statutory Scheme
The Resource Conservation and Recovery Act ("RCRA"),
The RCRA contains a citizen suit provision, which provides that "any person may commence a civil action" against "any person" who has allegedly 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
B. Factual Background
1. General Electric Plant in Morrison, Illinois
Defendant-аppellee General Electric Company ("GE") operated a manufacturing plant in Morrison, Illinois from 1949 to 2010. To remove oil from the automotive and appliance parts it manufactured, the plant used chlorinated organic solvents, including trichloroethylene ("TCE"), perchloroethene ("PCE"), and trichloroethane ("TCA"). These solvents are toxic and are regulated by federal and state environmental agencies. GE used these solvents and stored them in degreasers located at the plant until 1994, when it switched to a soap-like solution to clean the parts.
In 1986, chlorinated solvents were detected in three municipal supply wells that provided water to the City of Morrison, located several thousand feet southeast of the GE plant. Shortly thereafter, the Illinois Environmental Protection Agency ("IEPA") installed monitoring wells to analyze the groundwater around the GE рlant, which uncovered additional contamination. The IEPA completed a Phase I Remedial Investigation in 1987, which included sampling and analysis of soil, water, and sediment. Based on the investigation, the IEPA identified the GE plant as the source of the solvent contamination.
In 1988, GE installed additional monitoring wells and an air stripper to treat water pumped from one of Morrison's municipal wells to a level of contamination below the maximum contaminant level ("MCL") so the city could continue to use the well as a source of drinking water; the other two municipal supply wells were sealed. GE also conducted a Phase II Remedial Investigation, which identified elevated concentrations of solvents beneath the plant's former degreasing operations. Under the IEPA's supervision, GE continued to sample and monitor the groundwater in the monitoring wells and submitted reports of the results to the IEPA.
In 1994, the IEPA required GE to conduct a Phase III Remedial Investigation of the groundwater at and downgradient from the plant. GE reported the results of the investigation in 2001. According to the report, the solvents in the groundwater had decreased significantly by 2001, and the report modeled that the contaminants would naturally attenuate (i.e. , reduce) to concentrations below the MCL. Additionally, the report stated that Rock Creek was a natural groundwater divide that would prevent the contaminating solvents from migrating south from the GE plant across the creek. The report concluded that the contamination did not pose a risk to the public because a City of Morrison ordinance prohibited the use of groundwater as a source of drinking water and because GE's air stripper at the remaining municipal supply well provided safe drinking water.
In response, however, the IEPA did not approvе GE's proposal for natural attenuation of the contamination; instead, the IEPA concluded that active remediation of the site would be appropriate. The Illinois Attorney General commenced suit against GE in 2004 under the Illinois Environmental Protection Act: for cost recovery (Count I), see 415 Ill. Comp. Stat. 5/22.2(f) ; to enjoin water pollution (Count II), see
After approval of a work plan, GE installed monitoring wells along Rock Creek. Then, in 2013, GE submitted its FSI detailing the data obtained from the various monitoring wells; the report explained that the solvents had migrated south of the plant and that the monitoring wells along Rock Creek tested positive for contamination at levels above the MCL. Tests from wells on the other side of Rock Creek (and further from the plant) either did not detect chlorinated solvents or detected TCE at a level below the MCL. Following discussions between GE and the IEPA on the work plan and FSI, the IEPA conditionally approved the FSI in March 2015. It determined that GE "adequately defined the nature and extent of the contamination." The IEPA conditionally approved GE's revised Remedial Objectives Report in August 2016, after a number of additional submissions and a meeting between the technical representatives from GE and the IEPA.
In March 2017, GE submitted its Remedial Action Plan ("RAP") to the IEPA, proposing to achieve the remediation objectives through a "combination of institutional controls and monitored natural attenuation." The IEPA denied GE's proposal in June 2017, posing several questions about the plan, and specifically noting that it did not accept "an open-ended period of monitored natural attenuation as a remediation technology." GE submitted a revised RAP to the IEPA in October 2017, responding to the IEPA's questions and comments аnd proposing to address the remaining contamination through institutional controls. The IEPA approved GE's revised Remedial Action Plan in March 2018.
2. Plaintiffs' Interest in the Land
Plaintiff-appellant Lowell Beggs
When Beggs considered purchasing the golf course in April 2007, the seller advised him: "the golf course has contamination on the first hole. This was caused by General Electric. If you go to the EPA web site, GE is listed as a superfund site. No further
C. Procedural Background
Plaintiffs filed suit in the Northern District of Illinois on November 1, 2013 seeking: (1) a mandatory injunction requiring GE to remediate the contamination under the RCRA, see
After what the district court characterized as "extensive discovery," the court considered the parties' cross-motions for partial summary judgment. Plaintiffs moved for summary judgment on their RCRA claim. GE did not dispute that plaintiffs satisfied the first two elements of the claim-(1) defendant has generated solid or hazardous waste, and (2) defendant has contributed to the handling of the waste. See Albany Bank & Tr. Co. v. Exxon Mobil Corp. ,
Over the next two years, the district court considered plaintiffs' request for a mandatory injunction in a number of hearings and a series of opinions. On October 4, 2016, the court held that the plain language of the RCRA permitted, but did not require, the court to grant injunctive relief despite the ongoing state proceeding; thus, the question before the court was not whether it could grant relief but whether it should . On this point, the court concluded plaintiffs had not yet provided the court with facts supporting their assertion that the Consent Order in the state action was deficient and ineffective. The court ordered an evidentiary hearing and invited the IEPA and the Illinois Attorney General to provide their views on the progress under the Consent Order and whether the court should order injunctive relief under the RCRA. The Illinois Attorney General's Office submitted an amicus brief explaining that the State did not believe the court should impose injunctive relief because any court-ordered injunctive relief would overlap with the work currently being done-i.e. , "site investigation, monitoring and payment of costs as well as an order barring further endangerment ... [and] some type of remedial effort." The State asserted that all such actions were already underway and were "being done with diligence and rigorous oversight by the Illinois
After two days of evidentiary hearing on June 1 and 2, 2017, the court issued an opinion on September 7, 2017 denying the requested injunctive relief. Both parties had presented expert testimony at the hearing; the district сourt credited GE's expert as having "provided reasonable, rational and credible bases explaining why certain actions were taken and others were not," whereas it found plaintiffs' expert did not provide conclusions but merely "testified that additional investigation and testing was necessary to opine on the proper scope of remediation for the site." Notably, when asked by the district court judge what specific cleanup he recommended, plaintiffs' expert declined to make a recommendation. The district court thus concluded that plaintiffs had not met their burden of showing harm not already addressed sufficiently by the IEPA proceeding. The court denied plaintiffs' motion to reconsider the denial of injunctive relief on November 7, 2017. Plaintiffs voluntarily dismissed the remaining count under the CERCLA with prejudice and filed a notice of appeal on March 6, 2018.
Then, on March 23, 2018, plaintiffs filed a motion for an indicative ruling under Rule 62.1 and motion to reconsider based on newly discovered evidence. Plaintiffs pointed to the IEPA's March 2, 2018 approval of GE's Remedial Action Plan, which relies solely on institutional controls to address the remaining contamination. The district court denied plaintiffs' motion on August 14, 2018, and plaintiffs appealed. That appeal was consolidated with plaintiffs' original appeal; both are jointly before us now.
II. Discussion
A. Injunctive Relief
Plaintiffs raise several issues related to the district court's denial of injunctive relief: they assert (1) the district court did not have discretion to deny injunctive relief once it found GE liable under the RCRA; (2) the district court erred in conducting the traditional balancing of equitable factors for injunctive relief; and (3) the district court erred in finding plaintiffs failed to establish irreparable harm. Plaintiffs' arguments on each issue fail to carry the day. We note that the denial of injunctive relief after a district court has found a risk of imminent and substantial danger to public health or to the environment should be rare. Here, however, plaintiffs failed to provide the district court with any evidence that injunctive relief, in addition to what the IEPA had already ordered in the state action, would improve the environment and not cause additional harm.
1. Discretion to Deny Relief
On summary judgment, the district court found GE liable for contaminating groundwater in a manner that "may present an imminent and substantial endangerment to health or the environment."
In analyzing whether the RCRA mandates the impositiоn of injunctive relief upon a finding of liability, we first look to the plain language of the statute. See United States v. Marcotte ,
[A]ny person may commence a civil action on his own behalf- ...
(1)(B) against any person, ... including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, 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; ....
The district court shall have jurisdiction ... to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), [or] to order such person to take such other action as may be necessary ....
Nor do our past comments on the RCRA indicate injunctive relief is mandatory upon a finding of liability. In Adkins v. VIM Recycling, Inc. , we considered whether the prohibitions in the RCRA or several abstention doctrines precluded the plaintiffs from bringing a citizen suit under the RCRA after the state had already filed enforcement actions against the same alleged violators.
Furthermore, the Supreme Court applies traditional equitable principles to environmental statutes. For example, in a Federal Water Pollution Control Act case, the Supreme Court explained that the statute did not require courts to immediately enjoin all statutory violations; instead, the Court highlighted that long-established principles of equity applied:
It goes without saying that an injunction is an equitable remedy. It is not a remedy which issues as of course or to restrain an act the injurious consequences of which are mеrely trifling. An injunction should issue only where the intervention of a court of equity is essential in order effectually to protect property rights against injuries otherwise irremediable.
Weinberger v. Romero-Barcelo ,
Thus, the district court correctly held that it has disсretion to award injunctive relief under the RCRA and is not required to order relief after a finding of liability.
2. Traditional Balancing of Equitable Factors
In a similar but distinct argument, plaintiffs assert that the district court erred in applying the traditional equitable factors when considering whether to award injunctive relief. To merit injunctive relief, a plaintiff must demonstrate:
(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
eBay Inc. v. MercExchange, L.L.C. ,
Plaintiffs base their argument on their role in this citizen suit as private attorneys general, acting on behalf of the public. They argue that it is common in environmental protection cases for courts to order injunctive relief without the traditional balаncing of equitable factors where the only statutory relief available is injunctive relief and where the plaintiff is a sovereign or private attorney general. However, commenting directly on the RCRA, we have reasoned that "[o]rdinarily, a court is obligated to conduct an equitable balancing of harms before awarding injunctive relief, even under an environmental statute which specifically authorizes such relief (as does RCRA section 3008(a))." United States v. Bethlehem Steel Corp. ,
True, once a court finds a defendant liable for creating a risk of imminent and substantial danger, it will usually be the case that injunctive relief is warranted. Amoco Prod. Co. v. Village of Gambell ,
Multiple circuits have held that RCRA plaintiffs need only show "a risk of harm," not "the traditional requirement of threatened irreparable harm," to justify an injunction. United States v. Price ,
The standard adopted by our sister circuits makes sense, especially in the permanent injunction context. RCRA authorizes only injunctive relief. Meghrig ,
We reiterate, however, that a permanent injunction does not automatically follow from success on the merits. See Me. People's All. & Nat. Res. Def. Council v. Mallinckrodt, Inc. ,
3. Necessity of Injunctive Relief
Plaintiffs next claim the district court erred in denying injunctive relief because it found they failed to establish irreparable harm. We review a district court's denial of injunctive relief for an abuse of discretion; we review its factual determinations for clear error and its legal conclusions de novo, and we give deference to the court's balancing of the equitable factors. Planned Parenthood of Ind. & Ky., Inc. v. Comm'r of Ind. State Dep't of Health ,
As an initial matter, we must address GE's contention that plaintiffs abandoned their request for remediation at the evidentiary hearing, instead deferring to a request for additional investigation prior to remediation. According to GE, plaintiffs have thus waived their claim to an injunction ordering remediation. We disagree. GE mischaracterizes plaintiffs' position; although plaintiffs' expert at the evidentiary hearing testified he believed additional investigation was necessary to determine the extent of the contamination and the correspondingly
Turning to plaintiffs' argument regarding the irreparable harm finding, we note that it is somewhat indirect. Rather than directly challenging the district court's factual findings, plaintiffs repeat their general assertion: There is contamination, therеfore there is harm. And because there is harm, there must be an injunction. In oversimplifying the argument, plaintiffs fail to grapple with the thoughtful and nuanced decisions the district court made that led it to deny injunctive relief. In their request for an injunction, plaintiffs claimed action under the RCRA was necessary because the Consent Order and actions in the state proceeding were insufficient to remedy their injury. For that reason, the district court informed the parties repeatedly that it was looking for evidence of harm not already being addressed through the state proceeding and for what exactly plaintiffs wanted the court to order GE to do to address that harm.
At the evidentiary hearing, plaintiffs argued that the extent of the contamination had not been determined and that the IEPA's analysis based on a limited investigation was flawed; as such, their expert testified that additional investigation was necessary before he could opine on the proper remediation. Plaintiffs requested GE perform the following additional investigation: additional and deeper monitoring wells, soil borings penetrating the bedrock, and vapor-intrusion monitoring to the extent necessary to (1) determine if a dense non-aqueous phase liquid ("DNAPL") is present and, relatedly, determine the vertical and horizontal extent of the groundwater contamination; (2) determine whether Rock Creek is a groundwater divide, and if so, explain the presence of contamination in the well across the creek; and (3) determine the source of and monitor the vapors present in the Conway home. Noting that many of these issues are interrelated, the district court considered the competing expert testimony presented on each avenue of investigation.
Although plaintiffs do not directly challenge the district court's fаctual findings, we review those findings briefly to highlight the court's thoroughness in evaluating the evidence (or lack thereof) supporting plaintiffs' request for injunctive relief. A district court's finding of an expert witness's credibility is one of fact that we review for clear error. Madden v. U.S. Dep't of Veterans Affairs ,
i. DNAPL and Groundwater Contamination
Plaintiffs argued that GE's testing was insufficient to determine whether a DNAPL is present. However, plaintiffs did not take any of their own samples or conduct any of their own tests, despite their expert-Dr. Banaszak-testifying that
GE's expert, Dr. Vagt, who has been the project director of the site since 2008, testified that additional investigation is unnecessary because the evidence demonstrates no DNAPL is present. He explained that the concentration of TCE in the samples has decreased over time, whereas, if a DNAPL were present, the TCE concentrations would have remained constant. As to the need for a north monitoring well, Dr. Vagt testified that soil samples taken north of the plant (near the site of an alleged potential additional source of TCE) detected little to no TCE. Dr. Vagt concluded (and the IEPA agreed), that no additional testing was necessary. And Dr. Vagt conducted site visits, which led him to conclude that the groundwater flowed south, not north, as Dr. Banaszak had hypothesized based on a conceptual site model. Additionally, Dr. Vogt advocated against drilling through the bedrock; he opined that the only conduit for contamination through the bedrock was the preexisting city well, and that any additional drilling could be harmful in that it could provide a new route for contamination to travel through the bedrock.
The district court concluded that GE's investigation into the presence of DNAPL, and the IEPA's approval of the investigation, was not unreasonable. Because plaintiffs "merely offer[ed] different conclusions about the data collected by [GE] and the data they hope[d] to develop with additiоnal investigation and testing," the district court found that plaintiffs had not met their burden to show that any additional testing for DNAPL was necessary. The district court weighed the competing expert testimony and found GE's expert made reasonable conclusions supported by facts; we see nothing in the court's factual findings that are clearly erroneous.
ii. Rock Creek
As to Rock Creek's status as a groundwater divide, plaintiffs and GE again offered differing interpretations of the same data. Plaintiffs argued that the lone sample from the south well containing trace amounts of TCE evidences that contamination is flowing past Rock Creek. They further contended that the rest of the wells on the south of Rock Creek, which did not detect contamination, are not deep enough to properly measure contamination. GE, on the other hand, maintained that Rock Creek is a groundwater divide. The IEPA required that GE install аdditional monitoring wells and test the residential wells south of Rock Creek to confirm this proposition. Dr. Vagt contrasted the contaminated samples from the north side of Rock Creek with the lack of contamination from the south side wells; he testified that the single sample from the south well with trace levels of contamination was an outlier when compared with the lack of contamination in the six other monitoring wells and residential wells located in close proximity and at varying depths.
Weighing the competing expert testimony, the district court found that plaintiffs had not offered any additional testing that would "seriously challenge the finding that Rock Creek is a groundwater divide."
iii. Vapor Intrusion
Lastly, the district court considered plaintiffs' request for vapor intrusion monitoring for the Conway home and the surrounding residences. By the time of the evidentiary hearing, plaintiffs had sold the Conway home. They agreed the court did not have the power to force access into the home for testing but asked the court to order GE to obtain consent from the new owners. They based this request on a 2012 test that detected the compound 1,2 DCA in the indoor air in the Conway home at a level above the residential standard. After detecting this compound, however, GE took samples of the groundwater and sub-slab under and around the Conway home, which did not reflect contamination. GE thus maintained that there is no complete pathway between the source of the GE-site contamination and the indoor air in the Conway home, and that 1,2 DCA comes from a variety of sources unrelated to the site contamination (such as household cleaners). The IEPA agreed that, without a complete pathway, no additional testing was necessary.
The district court stated that it was "not in a position to second guess the IEPA's decision based on Plaintiffs' discontent with the decision." Considering that plaintiffs no longer own the Conway home and the court does not have authority to force the new owners to consent to testing, as well as the lack of a complete pathway from the site contamination to the home, we cannot say that the district court clearly erred.
* * *
While an injunction does not follow automatically from a finding of a risk of imminent and substantial endangerment-as this case demonstrates-such a finding usually goes a long way towards justifying an injunction. Here however, despite the district court's admonition that it was looking for evidence of harm requiring relief in addition to the IEPA action, at no point did plaintiffs ever conduct their own investigation to contradict GE's test results. Rather, they continue to insist that irreparable harm is "self-evident" where there is contamination and criticize GE's investigation, which had been conducted subject to the IEPA's oversight and direction. As demonstrated by the two years it spent grappling with the injunctive relief questions, the district court understood it had to "walk a fine line" between supplementing and supplanting the Consent Order. The court focused on the facts before it, commenting repeatedly that "facts matter," and it provided plaintiffs with numerous opportunities to present evidence that the state proceedings were not adequately protecting the public and the environment. See Trinity Indus., Inc. v. Chicago Bridge & Iron Co .,
Nevertheless, plaintiffs insist they are entitled to relief because they did not get what they wanted; they want more than the IEPA found adequate and will be satisfied with nothing less than a mandatory injunction ordering GE to remove any contamination
Here, the district court considered both parties' expert presentations and concluded that plaintiffs had not established any additional actions were "necessary" to eliminate the danger. In spite of the district court's multiple inquiries to plaintiffs' expert as to what remedy he proposed the court order, he did not make a recommendation, leaving the court without guidance. Conversely, the court found GE's explanations for the actions it had taken to investigate and develop its remediation plans "reasonable, rational and credible." The RCRA does not require a court-ordered cleanup where the court has not found such action necessary to prevent harm to the public or the environment, especially where, as here, an expert the court found credible testified that additional cleanup could cause further harm.
The district court did not abuse its discretion in concluding plaintiffs had not carried their burden to establish mandatory injunctive relief was necessary under the RCRA.
B. Motion for Indicative Ruling and for Reconsideration
Next, plaintiffs contend the district court erred in denying their motion for indicative ruling under Rule 62.1 and for reconsideration under Rule 60(b)(2). Relief under Rule 60(b) is "an extraordinary remedy ... granted only in exceptional circumstances." Davis v. Moroney ,
A refresher of the timeline of events is necessary: Prior to the district court's ruling on the motion for injunction, the IEPA had denied GE's initial Remedial Action Plan, which proposed naturаl attenuation and institutional controls to address the contamination. After the district court denied the injunction in September 2017, plaintiffs dismissed their remaining claim with prejudice and filed a notice of appeal. In October 2017, GE submitted a revised RAP to the IEPA, in which GE proposed institutional controls as the sole method of remedial action. Then, on March 2, 2018, the IEPA approved GE's revised RAP. Shortly thereafter, plaintiffs filed a motion for indicative ruling under Rule 62.1(a)(3), which provides:
If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may: ... state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.
Fed. R. Civ. P. 62.1(a)(3). In the motion, plaintiffs raised a single basis for their requested relief: the IEPA's approval of GE's revised RAP. Plaintiffs asserted that the IEPA's March 2, 2018 approval was newly discovered evidence supporting reconsideration
Plaintiffs' arguments fail for two reasons. First, the IEPA's March 2, 2018 approval of GE's RAP is not "newly discovered evidence" under Rule 60(b)(2). See Fed. R. Civ. P. 60(b)(2) ("On motion and just terms, the court may relieve a party or its legal representative from a final judgment ... for ... newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)."). Newly discovered evidence must have been in existence at the time of the original judgment or pertain to facts in existence at the time of the judgment. Peacock v. Bd. of Sch. Comm'rs of City of Indianapolis ,
Second, even if it were "newly discovered" evidence, the district court did not abuse its discretion in holding that the IEPA's approval of the revised RAP would not have changed the outcome. According to plaintiffs, the district court's denial of injunctive relief was predicated on the IEPA's rejection of GE's initial RAP. For that reason, they claim that the IEPA's acceptance of the revised RAP that did not require any additional remedies is a basis upon which the district court should have reconsidered injunctive relief. In support, plaintiffs pointed to the district court's statement that "[t]he IEPA's actions, including the latest [RAP] rejection, is strong evidence that Plaintiffs' injuries are being remedied in the parallel state-court proceeding." In denying the Rule 62.1 motion, however, the district court explained that plaintiffs misunderstood its ruling: "The [c]ourt merely used the IEPA's most recent rejection to highlight that the IEPA had been making well-reasoned decisions under the Consent Order and had challenged numerous actions [GE] had taken ...." Noting that plaintiffs were using the approval of the revised RAP to make the same arguments the court had rejected throughout the case, the district court concluded that plaintiffs had not offered any newly discovered evidence that would necessitate injunctive relief.
The district court did not abuse its discretion in denying the motions for indicative relief and for reconsideration.
C. State Law Tort Claims
Lastly, plaintiffs assert that the district court erred in granting summary judgment to GE on their state law claims of nuisance, trespass, and negligence. We review a grant of summary judgment de novo, viewing the record in a light most favorable to the nonmoving party. Minerva Dairy, Inc. v. Harsdorf ,
In Illinois, the statute of limitations for tort claims for damage to property is five years.
"[W]hen 'a tort involves a continuing or repeated injury, the limitations period does not begin to run until the date of the last injury or the date the tortious acts cease.' " Brooks v. Ross ,
Nor does plaintiffs' assertion that GE retains possession of the plant and has mismanaged the remediation suffice as a continuing injury. As the district court explained, аpplication of the continuing tort doctrine "turns on continuing conduct, not continuing ownership or continuing injury." Compare Village of DePue ,
Because plaintiffs do not allege a continuing unlawful act necessary to invoke the continuing tort doctrine, we affirm the grant of summary judgment to GE on plaintiffs' state law tort claims.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.
Notes
Beggs passed away during the course of this litigation. His interest is now represented by the executor of his estate, plaintiff-appellant First National Bank of Amboy.
The unique procedural history of this case may also be a source of plaintiffs' confusion regarding the applicable standard. Here, the court made a liability finding-that the contamination "may present an imminent and substantial endangerment to health or the environment,"
Although plaintiffs did not file a separate motion for relief from judgment and failed to explain that they were seeking relief under Rule 60(b)(2) until their reply brief, the district court excused this omission and treated the Rule 62.1 motion as a joint motion for reconsideration under Rule 60(b)(2).