The 7th Circuit Court of Appeals has affirmed a federal judge’s ruling that a former factory in Goshen is not posing any ongoing dangers to the health of residents in the area.
On Monday, the appellate court in Ronald Schmucker, et. al v. Johnson Controls, Inc. and Tocon Holdings, LLC, 20-3432, affirmed a ruling by U.S. District Court for the Northern District of Indiana, South Bend Division, Chief Judge Jon DeGuilio that claims of pollution don’t pose “imminent” or “substantial” danger to locals.
Between 1937 and 2006, Johnson Controls and its predecessor used chlorinated volatile organic compounds in its degreasing agents, some of which reached the groundwater. Chlorinated organics slowly break down by losing chlorine atoms. The version with three chlorine atoms, known as trichloroethylene (TCE), is a carcinogen and can be harmful to humans.
Johnson Controls, under the supervision of the Indiana Department of Environmental Management, started remedial operations while the plant was still operating, as the company worried that houses above the plume might draw contaminated water from the well.
In 1992, the company ensured all the houses were connected to Goshen’s water mains, and Goshen ordered all private wells closed. A “pump and treat” procedure also ran from 1994 to 2012 to remove TCE and other contaminants, and injected water back into the ground. The treatment was discontinued only when treatment did not further reduce levels of TCE in the water.
The possibility that contamination might reach the aquifer from which Goshen draws water was investigated, and experts found that the municipal water comes from a direction different from the contaminated plume. The study has been repeated several times and the findings confirmed, and to date there is no sign of TCE in the public water supply nor has any been found in Goshen High School, which is just outside the affected zone.
TCE did appear in the air over the plume, however, so vapor mitigation systems were installed in houses whose air showed unsafe levels. Because TCE can be dangerous if found inside a house, foundations are also inspected and patched to seal cracks, and fans create an area under the foundation with pressure less than the air inside the house.
After these systems were installed, completed in 2011, not a single house registered TCE levels exceeding the threshold set by IDEM. One expert concluded that if 10 residents in houses over the plume stayed indoors constantly for 70 years, the probability of even one excess cancer is less than 0.02%.
The plaintiffs, who filed the endangerment claim in 2014, argued Johnson Controls was in violation of 42 U.S.C. § 6972(a)(1)(A) because it had not complied with the Environmental Protection Agency’s closure regulation, 40 C.F.R. § 265.111 They also contended Johnson Controls was in violation of § 6972(a)(1)(B) because the risk to which they were exposed is a form of “endangerment.”
Only the second of the contentions went to trial, as the district judge granted summary judgment to Johnson Controls on the first after finding that it “does not even arguably violate ‘any permit, standard, regulation, condition, requirement, prohibition, or order.’”
On the second accused violation, the district judge didn’t doubt there was risk of TCE but ruled there was neither “imminent” nor “substantial” risk, pointing to Liebhart v. SPX Corp., 917 F.3d 952 (7th Cir. 2019).
Plaintiffs turned to a memorandum entitled Risk-Based Clean Closure that the EPA’s staff issued on March 16, 1998, but it was rejected by the 7th Circuit.
Circuit Judge Frank Easterbrook wrote, “This doesn’t get the plaintiffs anywhere … . The statutory list of enforceable requirements is ‘permit, standard, regulation, condition, requirement, prohibition, or order’. These are documents with legal force. Memoranda are not on the list, and for good reason.
“… All a memorandum can do is express a point of view — or perhaps imply a threat that people who ignore the agency’s goals or desires may be sued,” Easterbrook wrote. “Staff-written memos are not themselves a source of legal obligations, any more than an agency’s brief in a suit could create legal obligations.
“… Plaintiffs accuse (DeGuilio) of applying a ‘heightened’ imminent-and-substantial standard, but we don’t see how,” Easterbrook wrote. “The judge used those words in their natural sense. Imminent means soon, and substantial means, well, substantial … . The judge found that risk from TCE in Goshen is neither around the corner (imminent) nor big (substantial) — and plaintiffs have not challenged any of the judge’s factual findings.”
Easterbrook added that if vapor mitigation systems begin to fail, contaminated water migrates toward the aquifer or conditions otherwise change for the worse, plaintiffs will be free to renew their litigation.
“Plaintiffs lost this case on the facts, not on the law,” he wrote.