7th Circuit Affirms Both RCRA Liability and Denial of Injunctive Relief

In LAJIM LLC v. General Electric, in both the district court and on appeal, the plaintiff both won and lost. The U.S. Court of Appeals for the 7th Circuit readily affirmed the federal district court’s grant of summary judgment under the Resource Conservation and Recovery Act (RCRA) to a down-gradient golf course operator who alleged that solvents from a now-closed GE facility had contaminated groundwater that migrated from the plant site to plaintiff’s property. However, the appellate court also affirmed the lower court’s determination that no injunctive relief should be ordered in the absence of any evidence that plaintiff’s injury was not already being addressed under an order implemented by the Illinois Environmental Protection Agency (IEPA), and affirmed dismissal of state law tort claims for damages as time-barred. From the facts, this appears to be one of those frequent cases where a neighbor or citizen group files a citizen suit because it is unhappy with the pace and/or approach of a state cleanup. 

IEPA had filed suit over the contamination from the former GE facility in 2004, and had been working with GE ever since to implement a cleanup. The plaintiff had bought the down-gradient property in 2007 with knowledge that contamination had reached the first tee, but understood that no further remediation was required. While there had been significant progress, GE had been attempting to obtain acceptance of a remediation program relying heavily on monitored natural attenuation and institutional controls for the remaining groundwater plume.

As the IEPA-supervised remediation dragged on, the plaintiff filed its own suit in 2013, alleging both RCRA claims for injunctive relief and tort law damage claims. Surprisingly, there is no discussion in the opinion of an effort to dismiss the RCRA action under the provision of RCRA barring citizen suits where a state action is pending. In any event, after “extensive discovery,” plaintiff obtained summary judgment on RCRA liability, while losing a cross motion for dismissal of the tort claims as time-barred. The court then denied plaintiff’s request for injunctive relief directing cleanup under RCRA, after taking it under advisement for two years.

On appeal, the 7th Circuit held that while RCRA authorized injunctive relief, it did not require it, despite the finding of an imminent and substantial endangerment, as required for RCRA liability:“[t]he remedy of an injunction does not issue as a matter of course upon a finding of liability but only as necessary to protect against otherwise irremediable harm.” Slip Opinion, p. 30. In determining appropriate relief under RCRA, a court considers the same balancing factors as otherwise applied to requests for injunctions. In this case, the plaintiff’s expert would not state what additional remediation was required, but only opined that further investigation was required. GE’s expert, on the other hand, explained why the additional investigation was unnecessary or potentially harmful, and the IEPA filed an amicus brief opposing an injunction as providing over-lapping and potentially inconsistent cleanup obligations. The appellate court refused to second-guess the district court on its assessment of the expert testimony. It also affirmed dismissal of plaintiff’s tort claims on statute of limitations grounds.

This result is a pyrrhic victory for plaintiffs, a finding of liability, but no money damages under the tort claims and no injunction under RCRA. RCRA does not provide for damages, but does allow a request for attorney’s fees by a prevailing plaintiff, and LAJIM, LLC might try for that since there was a finding of liability. However, a fee award, like injunctive relief, is within the district court’s discretion. The moral here may be that you can’t always get what you want, even if you are right, especially if you don’t make it clear what you are asking for and why.