Petition for Writ of Certiorari — LAJIM, LLC, et al., Petitioners v. General Electric Company
Supreme Court briefJun 18, 2019
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APPENDIX
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APPENDIX
TABLE OF CONTENTS
Appendix A Opinion in the United States Court of
Appeals for the Seventh Circuit
(March 4, 2019) . . . . . . . . . . . . . . . App. 1
Appendix B Order in the United States District
Court for the Northern District of
Illinois, Western Division
(August 14, 2018) . . . . . . . . . . . . App. 33
Appendix C Judgment in a Civil Case in the
United States District Court for the
Northern District of Illinois, Western
Division
(February 15, 2018) . . . . . . . . . . App. 46
Appendix D Notification of Docket Entry in the
United States District Court for the
Northern District of Illinois, Western
Division
(November 7, 2017). . . . . . . . . . . App. 48
Appendix E Memorandum Opinion and Order in
the United States District Court for
the Northern District of Illinois,
Western Division
(September 7, 2017) . . . . . . . . . . App. 50
Appendix F Memorandum Opinion and Order in
the United States District Court for
the Northern District of Illinois,
Western Division
(October 4, 2016). . . . . . . . . . . . . App. 73
ii
Appendix G Memorandum Opinion and Order in
the United States District Court for
the Northern District of Illinois,
Western Division
(February 17, 2016) . . . . . . . . . . App. 93
Appendix H Memorandum Opinion and Order in
the United States District Court for
the Northern District of Illinois,
Western Division
(December 18, 2015) . . . . . . . . . App. 104
Appendix I Order Denying Petition for Rehearing
and Petition for Rehearing En Banc in
the United States Court of Appeals for
the Seventh Circuit
(March 29, 2019) . . . . . . . . . . . . App. 157
Appendix J Plaintiffs-Appellants Petition for
Rehearing or Rehearing En Banc in
the United States Court of Appeals for
the Seventh Circuit
(March 14, 2019) . . . . . . . . . . . App. 159
App. 1
APPENDIX A
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Nos. 18-1522 & 18-2880
[Filed March 4, 2019]
_____________________________
LAJIM, LLC, et al.,
)
Plaintiffs-Appellants, )
)
v.
)
)
GENERAL ELECTRIC COMPANY, )
Defendant-Appellee. )
_____________________________ )
Appeals from the United States District Court for the
Northern District of Illinois, Western Division.
No. 13-cv-50348 — Iain D. Johnston,
Magistrate Judge.
____________________
ARGUED JANUARY 15, 2019 —
DECIDED MARCH 4, 2019
____________________
Before FLAUM, KANNE, and HAMILTON, Circuit
Judges.
FLAUM, Circuit Judge. Plaintiffs-appellants
purchased land near a former General Electric
Company manufacturing plant that had operated for
App. 2
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 because, 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”), 42 U.S.C. § 6901, et seq., “is a comprehensive
environmental statute that governs the treatment,
storage, and disposal of solid and hazardous waste.”
Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996). The
RCRA “is not principally designed to effectuate the
cleanup of toxic waste sites or to compensate those who
have attended to the remediation of environmental
hazards.” Id. Rather, the primary purpose of the RCRA
“is to reduce the generation of hazardous waste and to
ensure the proper treatment … of that waste which is
App. 3
nonetheless generated, ‘so as to minimize the present
and future threat to human health and the
environment.’” Id. (quoting 42 U.S.C. § 6902(b)).
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 present an
imminent and substantial endangerment to health or
the environment.” 42 U.S.C. § 6972(a)(1). Once the
violation or potential endangerment is shown, a 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” and “to order such person to take such other
action as may be necessary.” Id. § 6972(a).
B. Factual Background
1. General Electric Plant in Morrison, Illinois
Defendant-appellee 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
App. 4
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 plant, 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,
App. 5
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 approve
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 415
Ill. Comp. Stat. 5/42(d)–(e); and to enjoin a water
pollution hazard (Count III), see 415 Ill. Comp. Stat.
5/12(d). The state sought to recover costs it had
incurred as well as an injunction requiring that GE
investigate the nature and extent of the contamination
and then perform remediation. In 2010, GE and Illinois
entered into a Consent Order in which GE agreed to
submit to the IEPA a series of reports, including: (1) “a
work plan to survey private wells, install additional
monitoring wells, and complete additional soil borings”;
(2) “a Focused Site Investigation Report (‘FSI’)
summarizing the results of the work plan”; (3) “a
App. 6
Remedial Objectives Report to address the impact of
the soil and groundwater contamination”; and (4) “a
Remedial Action Plan to meet the remediation
objectives within six years of the entry of the Consent
Order.” Also in 2010, the City of Morrison passed an
ordinance prohibiting groundwater as a source of
potable water and prohibiting the installation of wells
“to limit threats to human health from groundwater
contamination.”
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
App. 7
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 and 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 Beggs1 purchased land
near the site of the shuttered GE plant in 2007. He
conveyed the property to plaintiff-appellant Prairie
Ridge Golf Course, LLC, which plaintiff-appellant
LAJIM, LLC operated. Beggs moved into a home next
to the golf course with his companion, plaintiffappellant Martha Kai Conway (the “Conway home”).
The golf course and Conway home are located south of
the former GE plant and downgradient from the plant.
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 remediation was
needed according to what I can find.” Beggs did not
inquire further about the environmental condition of
the golf course before completing the purchase in May
1
Beggs passed away during the course of this litigation. His
interest is now represented by the executor of his estate, plaintiffappellant First National Bank of Amboy.
App. 8
2007. The purchase agreement noted, “[S]eller [] has
disclosed to Purchaser that there is contamination on
the first hole of the Real Estate, such contamination
having been caused by General Electric, as which
contamination is part of the Superfund Site that
apparently does not require any further remediation.”
Additionally, Beggs walked the golf course prior to
completing the purchase and noticed a monitoring well
head protruding above the ground. After purchasing
the property, Beggs contacted GE to fix a leak from the
fixture, which he knew monitored “how much stuff was
coming out of GE.”
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 42 U.S.C.
§ 6972(a)(1)(B) (Count I); (2) cost recovery (Count II)
and a declaratory judgment (Count III) under the
Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”), see 42
U.S.C. §§ 9607(a), 9613(g)(3); and (3) recovery under
state law for nuisance (Count IV), trespass (Count V),
and negligence (Count VI).
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
App. 9
Bank & Tr. Co. v. Exxon Mobil Corp., 310 F.3d 969, 972
(7th Cir. 2002). On the sole remaining
question—whether plaintiffs established that the
contamination “may present an imminent and
substantial danger to health or the environment,”
id.—the district court found for plaintiffs and granted
summary judgment as to GE’s liability under the
RCRA. At plaintiffs’ request, the court deferred
consideration as to whether plaintiffs were entitled to
injunctive relief. On GE’s cross-motion for summary
judgment on the state law claims, the district court
found the continuing tort doctrine did not apply and
found the claims time-barred because plaintiffs had
knowledge of the claims more than five years before
they filed suit.
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
App. 10
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
EPA,” and that injunctive relief “may result in a cleanup that is inconsistent with clean ups of other
contaminated sites in 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 court 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.
App. 11
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.
App. 12
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.” 42 U.S.C.
§ 6972(a)(1)(B). This finding has not been challenged on
appeal. After finding GE liable, the district court then
considered whether plaintiffs were entitled to
injunctive relief as a remedy for the violation. Plaintiffs
assert, however, that once the district court made a
finding of liability, the RCRA required the court to
order injunctive relief.
In analyzing whether the RCRA mandates the
imposition of injunctive relief upon a finding of
liability, we first look to the plain language of the
statute. See United States v. Marcotte, 835 F.3d 652,
656 (7th Cir. 2016). The RCRA provides, in relevant
part:
[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; ….
App. 13
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 ….
42 U.S.C. § 6972(a) (emphasis added). As plaintiffs
acknowledge, this language authorizes injunctive
relief—it provides the district court with jurisdiction to
restrain a violator or to order other necessary action.
But nothing in the language mandates injunctive relief;
“shall” pertains only to the grant of jurisdiction and not
to the relief the district court may order.
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. 644 F.3d 483, 487 (7th Cir.
2011). We concluded that neither the statutory
language nor the abstention doctrines prevented the
Adkins plaintiffs from pursuing their citizen suit. Id.
Critically, we made clear that “[w]e [did] not suggest,
of course, that once a citizen suit has cleared RCRA’s
statutory hurdles it is immune from all other
constitutional and preclusive doctrines, such as
standing, mootness, and claim or issue preclusion.” Id.
at 503. In so stating, we advised courts to consider
these doctrines before awarding relief, thus evidencing
App. 14
that plaintiffs are not presumptively entitled to
injunctive relief once they have “cleared RCRA’s
statutory hurdles.”
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 longestablished 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 merely
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, 456 U.S. 305, 311–12
(1982) (citations and internal quotation marks
omitted); see also Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 32 (2008) (“An injunction is a matter of
equitable discretion; it does not follow from success on
the merits as a matter of course.”) (reversing and
vacating grant of injunction under National
Environmental Policy Act); Town of Huntington v.
Marsh, 884 F.2d 648, 651 (2d Cir. 1989) (“In applying
these general equitable standards for the issuance of
injunctions in the area of environmental statutes, the
Supreme Court has explicitly rejected the notion that
an injunction follows as a matter of course upon a
finding of statutory violation.”). The same principles
App. 15
apply to the RCRA; the 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.
Thus, the district court correctly held that it has
discretion 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., 547 U.S. 388, 391
(2006).
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 balancing of
equitable factors where the only statutory relief
App. 16
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., 38 F.3d 862, 867 (7th Cir. 1994).
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, 480
U.S. 531, 545 (1987) (“Environmental injury, by its
nature, can seldom be adequately remedied by money
damages and is often permanent or at least of long
duration, i.e., irreparable.… [T]herefore, the balance of
harms will usually favor the issuance of an injunction
to protect the environment.”). But that is not always
the case. Courts must consider the traditional equitable
factors, which appears to be what the district court did
here. eBay, 547 U.S. at 391. One aspect of the district
court’s reasoning does, however, give us pause. Despite
the previous finding that GE created a risk of
imminent and substantial harm, the district court
stated at the relief stage that irreparable harm is an
“essential requirement” for injunctive relief and defined
irreparable harm as “both certain and great, not merely
serious or substantial.” To the extent that language
might be interpreted as requiring RCRA plaintiffs to
demonstrate harm above and beyond that shown at the
merits stage, the district court erred.
App. 17
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, 688 F.2d 201, 211
(3d Cir. 1982); see also Attorney Gen. of Oklahoma v.
Tyson Foods, Inc., 565 F.3d 769, 777 (10th Cir. 2009)
(“Our prior case law indicates that under RCRA a
plaintiff need not ‘show proof of actual harm to health
or the environment’ to establish endangerment, but
rather injunctive relief is appropriate where there
simply may be a risk of harm.”); Dague v. City of
Burlington, 935 F.2d 1343, 1356 (2d Cir. 1991) (quoting
Price for the same proposition); United States v. Waste
Indus., Inc., 734 F.2d 159, 165 (4th Cir. 1984) (same).
The standard adopted by our sister circuits makes
sense, especially in the permanent injunction context.
RCRA authorizes only injunctive relief. Meghrig, 516
U.S. at 484. Accordingly, absent a permanent
injunction, a prevailing RCRA plaintiff will receive no
remedy. The proven harm is, by definition, irreparable
absent an injunction. See generally Walgreen Co. v.
Sara Creek Prop. Co., B.V., 966 F.2d 273, 275 (7th Cir.
1992). A RCRA plaintiff either demonstrates
irreparable harm or fails to prove his or her case on the
merits.
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., 471 F.3d 277, 296–97 (1st Cir. 2006)
(“[I]n an environmental case, [the court] should
consider the balance of relevant harms before granting
injunctive relief, even though the statute itself
App. 18
authorizes such relief. … [I]t is true that a district
court is not commanded, regardless of the
circumstances, to issue an injunction after a finding of
liability” under the RCRA.); United States v. Marine
Shale Processors, 81 F.3d 1329, 1360 (5th Cir. 1996)
(“We find nothing in RCRA which, ‘in so many words,
or by necessary and inescapable inference, restricts the
court’s jurisdiction in equity.’” (quoting Weinberger, 456
U.S. at 313)). District courts should apply the
traditional equitable factors to determine the necessity
of injunctive relief.2
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
2
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,” 42 U.S.C. § 6972(a)—nearly two years before it
denied the injunction. In finding GE liable under the RCRA, the
district court agreed that there may be a risk of endangerment
from the contamination. But in denying the injunction, the district
court found that plaintiffs failed to demonstrate harm not already
addressed in the state action. We do not see a conflict between the
district court’s holdings on liability (which acknowledges the risk
of harm) and the injunction (which it denied for lack of evidence of
unaddressed harm).
App. 19
Parenthood of Ind. & Ky., Inc. v. Comm’r of Ind. State
Dep’t of Health, 896 F.3d 809, 816 (7th Cir. 2018).
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 appropriate
remedy, at no point did plaintiffs retreat from their
request for remediation. They reiterated that request
in their complaint, in their initial motion for an
injunction, in argument at the evidentiary hearing, and
in their motions for reconsideration. Plaintiffs have not
waived their request for an injunction requiring GE to
remediate the contamination.
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, therefore 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
App. 20
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 factual 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
App. 21
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, 873 F.3d 971, 973 (7th Cir. 2017).
Clear error is a deferential standard of review that only
merits reversal if “after reviewing the entire record, we
are left with the firm and definite conviction that a
mistake has been made.” United States v. Ranjel, 872
F.3d 815, 818 (7th Cir. 2017) (quoting United States v.
Marty, 450 F.3d 687, 689–90 (7th Cir. 2006)). “[I]n a
case of dueling experts, as this one was, it is left to the
trier of fact, not the reviewing court, to decide how to
weigh the competing expert testimony.” Madden, 873
F.3d at 973–74 (alteration in original) (quoting Wipf v.
Kowalski, 519 F.3d 380, 385 (7th Cir. 2008)).
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 groundwater
sampling is not prohibitively expensive. Instead, Dr.
Banaszak advocated that GE drill deeper soil borings
that penetrate the bedrock and that GE install
additional monitoring wells north of the existing wells
to determine if the groundwater traveled north and
carried contamination north of the plant. Based on his
review of GE’s testing, Dr. Banaszak concluded that
the results did not show that the contamination plume
“is stable or shrinking, which leaves the possibility that
a DNAPL exists.”
App. 22
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 additional 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
App. 23
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 additional
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.”
Again, we cannot conclude this conclusion is clearly
erroneous.
App. 24
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.
***
App. 25
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.,
735 F.3d 131, 140 (3d Cir. 2013) (explaining that
ongoing remediation in independent proceedings may
justify the denial of injunctive relief in the RCRA
action); Adkins, 644 F.3d 501–02 (“When this case
finally addresses the merits, and if the [state
environmental] actions have been resolved by then, the
federal court will be entitled to insist that plaintiffs
show how the resolution of those cases was not
sufficient.”). In the end, plaintiffs could not present
contradictory facts because they did not conduct any of
their own investigation. As the district court held,
plaintiffs “have not provided the evidence necessary for
App. 26
this Court to second guess [GE]’s Remedial Action
Plan” and order relief in addition to what the IEPA has
already required.
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 on their
property. We sympathize with plaintiffs’ position—TCE
is a dangerous contaminant and the current plan
leaves the contamination in place (though contained
and restricted from access). But, despite plaintiffs’
characterization, the RCRA is not a “cleanup” statute.
See Meghrig, 516 U.S. at 483 (“[The] RCRA is not
principally designed to effectuate the cleanup of toxic
waste sites ….”). Under the RCRA, the district court
may “restrain” the handling of hazardous waste that
“may present an imminent and substantial
endangerment to health or the environment,” or order
actions that may be “necessary” to eliminate that
danger. 42 U.S.C. § 6972(a).
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
App. 27
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, 857 F.3d 748, 751 (7th Cir. 2017) (alteration
in original) (quoting Bakery Mach. & Fabrication, Inc.
v. Traditional Baking, Inc., 570 F.3d 845, 848 (7th Cir.
2009)). We review the district court’s decision for abuse
of discretion. Gleason v. Jansen, 888 F.3d 847, 851–52
(7th Cir. 2018).
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 natural 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
App. 28
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
of the denial of the injunction.3
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
3
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).
App. 29
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, 721 F.2d 210, 214 (7th Cir. 1983) (per
curiam). The district court did not abuse its discretion
in finding that neither the revised RAP submitted in
October 2017 nor the IEPA’s March 2, 2018 approval
existed at the time of its September 2017 judgment.
Rather, they were new evidence that did not exist and
thus could not have been discovered at the time. Nor
did the district court err in concluding that the revised
RAP did not pertain to facts in existence at the time of
judgment. To the contrary, the revised RAP responded
to the IEPA’s questions and concerns, contained new
information for the IEPA to consider, and included a
new proposed remedy.
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
App. 30
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, 905 F.3d 1047,
1053 (7th Cir. 2018).
In Illinois, the statute of limitations for tort claims
for damage to property is five years. 735 Ill. Comp.
Stat. 5/13-205. It is undisputed that, here, Lowell
Beggs knew about the contamination of the golf course
from the GE plant at the time he purchased the
property in 2007, but he did not file suit until
November 2013, more than five years later. Plaintiffs
argue, however, that GE is committing a continuous
violation because it “is doing nothing to stop its
contamination from migrating,” and that, under the
App. 31
continuing tort doctrine, the five-year statute of
limitations does not bar their claims.
“[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, 578 F.3d 574, 579 (7th Cir.
2009) (quoting Belleville Toyota v. Toyota Motor Sales,
U.S.A., 770 N.E.2d 177, 190 (Ill. 2002)). The problem
with plaintiffs’ argument is that the “continuing” action
they allege is not that GE is continuing to release
contaminants, but that the original contamination is
continuing to migrate. However, “[a] continuing
violation or tort is occasioned by continuing unlawful
acts and conduct, not by continual ill effects from an
initial violation.” Feltmeier v. Feltmeier, 798 N.E.2d 75,
85 (Ill. 2003); see Village of DePue v. Viacom Int’l, Inc.,
713 F. Supp. 2d 774, 779 (C.D. Ill. 2010) (continuing
tort doctrine did not apply where plaintiff’s allegations
were limited to injury from water flowing from
contaminated site because tortious conduct had ceased
when manufacturing at site ended years prior); Soo
Line R.R. Co. v. Tang Indus., Inc., 998 F.Supp. 889,
896–97 (N.D. Ill. 1998) (continuing tort doctrine did not
apply where defendant stopped dumping contaminants
years prior, “although the effects from [defendant]’s
violations may be persisting”). The continuing
migration plaintiffs allege is merely an ill effect from
the original violation, not a continuing unlawful act.
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, application of the continuing
App. 32
tort doctrine “turns on continuing conduct, not
continuing ownership or continuing injury.” Compare
Village of DePue, 713 F. Supp. 2d at 779 (“merely
owning the Site” after contamination insufficient for
liability under continuing tort doctrine), with City of
Evanston v. Texaco, Inc., 19 F. Supp. 3d 817, 827–28
(N.D. Ill. 2014) (continuing tort doctrine applied “at
least at the pleadings stage” where defendant’s
underground tanks allegedly continued leaking
contaminants into the environment even though
defendant no longer owned the property). That GE
retains possession of the plant is of no import where
there is a lack of demonstrated continuing unlawful
conduct.
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.
App. 33
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Case No. 13 CV 50348
Magistrate Judge Iain D. Johnston
[Filed August 14, 2018]
_______________________
LAJIM, LLC, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
General Electric Co.,
)
)
Defendant.
)
_______________________ )
ORDER
Before the Court is Plaintiffs’ motion for an
indicative ruling (“Motion”). Dkt. 217. For the reasons
stated below, Plaintiffs’ Motion is denied.
STATEMENT
On December 18, 2015, this Court granted
Plaintiffs’ motion for summary judgment on Count I as
to liability, finding General Electric liable under the
Resource Conservation and Recovery Act (“RCRA”), see
App. 34
42 U.S.C. § 6972(a)(1)(B), because Plaintiffs established
that the contamination from the General Electric plant
may present an imminent and substantial
endangerment. Dkt. 88. On September 7, 2017, this
Court denied Plaintiffs’ request for a mandatory
permanent injunction, finding that Plaintiffs failed to
show irreparable harm. Dkt. 181.
On November 7, 2017, this Court denied Plaintiffs’
motion to reconsider under Federal Rule of Civil
Procedure 54(b). Dkt. 200. Thereafter, Plaintiffs
dismissed the remaining counts under the
Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”), see 42
U.S.C. §§ 9607(a), 9613 (g)(3), and filed a notice of
appeal on March 6, 2018.
On March 23, 2018, Plaintiffs filed the instant
Motion under Federal Rule of Civil Procedure 62.1,
asking that this Court reconsider its decision denying
injunctive relief based on new evidence. Dkt. 217. Rule
62.1 provides that:
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:
(1) defer considering the motion;
(2) deny the motion;
(3) state either that it would grant the motion if
the court of appeals remands for that purpose or
that the motion raises substantial issues.
Fed. R. Civ. P. 62.1(a).
Although no separate motion for relief from
judgment was filed, Plaintiffs state in their reply that
App. 35
they are seeking relief under Federal Rule of Civil
Procedure 60(b)(2) based on newly discovered evidence.
This was the first mention of the procedural rule upon
which the Motion is based. For purposes of this ruling,
the court will interpret Plaintiffs’ Motion as a joint
motion under Rules 62.1 and 60(b)(2). See Fed. R. Civ.
P. 62.1(a) (requiring that a timely motion be made for
relief that the court lacks authority to grant). Relief
from a judgment under Rule 60(b) is “an extraordinary
remedy and is granted only in exceptional
circumstances.” McCormick v. City of Chicago, 230 F.3d
319, 327 (7th Cir. 2000) (internal quotation marks and
citation omitted). The district court has great discretion
in ruling on a Rule 60(b) motion. Id.
Federal Rule of Civil Procedure 60(b)(2) authorizes
a court to set aside a final judgment based upon “newly
discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a
new trial under Rule 59(b).” The parties agree that
Plaintiffs must establish the following eight
prerequisites to receive relief under Rule 60(b)(2):
(1) the evidence was in existence at the time of trial or
pertains to facts in existence at the time of trial; (2) the
evidence was discovered following the trial; (3) due
diligence on the part of the movant to discover the new
evidence is shown or may be inferred; (4) the evidence
is admissible; (5) the evidence is credible; (6) the new
evidence is material; (7) the evidence is not merely
cumulative or impeaching; and (8) the new evidence is
likely to change the outcome. See United States v.
App. 36
McGaughey, 977 F.2d 1067, 1075 (7th Cir. 1992).1 If
any one of the prerequisites is not met, the Rule
60(b)(2) motion must fail. Jones v. Lincoln Electric Co.,
188 F.3d 709, 732 (7th Cir. 1999) (citing In re Wildman,
859 F.2d 553, 558 (7th Cir. 1988)).
In their Motion, Plaintiffs rely on the Illinois
Environmental Protection Agency’s (“IEPA”) approval
of General Electric’s revised Remedial Action Plan
(“RAP”) on March 2, 2018, as newly discovered
evidence showing that they have established
irreparable harm, such that this Court should
reconsider its decision denying injunctive relief. A brief
overview of the submissions leading up to that
approval is as follows.
In March 2017, General Electric submitted its
original RAP under the 2010 Consent Order, which
proposed institutional controls and monitored natural
attenuation as the remedy for the contamination at the
site. In June 2017, the IEPA disapproved the proposed
remedy in the original RAP and indicated that a
different remedial technology needed to be proposed.
On September 7, 2017, this Court denied Plaintiffs’
request for injunctive relief. Dkt. 181. In October 2017,
after consulting with the IEPA, General Electric
1
But see Jones v. Lincoln Electric Co., 188 F.3d 709, 732 (7th Cir.
1999) (listing the following as the only five prerequisites for Rule
60(b)(2) relief: (1) the evidence was discovered following trial;
(2) due diligence on the part of the movant to discover the new
evidence is shown or may be inferred; (3) the evidence is not
merely cumulative or impeaching; (4) the evidence is material; and
(5) the evidence is such that a new trial would probably produce a
new result).
App. 37
responded to the IEPA’s comments and submitted a
revised RAP. General Electric proposed the use of
additional institutional controls as the only proposed
remedy. On March 2, 2018, the IEPA approved General
Electric’s revised RAP and the use of institutional
controls to address the remaining contamination at the
site.
Plaintiffs now argue that the IEPA’s approval of
institutional controls as the sole remedial method is
“newly discovered evidence” establishing irreparable
harm because these measures do not clean up the
contamination at the site or otherwise abate the
imminent and substantial endangerment this Court
previously found.
Accordingly, Plaintiffs seek an injunction from this
Court ordering General Electric to actively clean up the
site to complement the institutional controls already in
place with the Consent Order.2 This Court is not
convinced that such relief is warranted.
I. Is the Evidence Newly Discovered?
Initially, the parties dispute whether the March 2,
2018 approval letter is “newly discovered evidence”
within the meaning of Rule 60(b)(2). Plaintiffs argue
2
The Court is perplexed by this requested relief because,
throughout this litigation, Plaintiffs have repeatedly argued that
the scope of any clean-up effort is unknown as the underlying
investigation regarding the extent of the plume was insufficient.
Therefore, it seems odd that this Court could order a mandatory
injunction under Rule 65, with the specificity required by that rule,
to clean up the site when Plaintiffs argue that the extent of the
contamination remains undetermined.
App. 38
that such evidence is newly discovered because it
“pertains to GE’s Remedial Action Plan (“RAP”) and
Revised RAP, evidence that was before the Court last
year for its rulings on injunctive relief.” Plaintiffs’
Reply at 2, Dkt. 221. General Electric argues that this
evidence was not in existence at the time of trial, and
therefore, cannot be “newly discovered.” This Court
agrees that this is not the type of “newly discovered
evidence” contemplated by Rule 60(b)(2).
In their motion, Plaintiffs state that “evidence of
IEPA’s March 2, 2018 approval of GE’s proposed, but
unimplemented, institutional controls is the type of
new evidence that this Court should consider in a
Motion to Reconsider its September 7, 2017 decision.”
Plaintiffs’ Motion at 5, Dkt. 217 (emphasis added). It is
telling that Plaintiffs opening brief refers to the IEPA
approval letter as “new evidence.” Plaintiffs’ Motion at
4-5, Dkt. 217. “Rule 60(b) refers to newly discovered
evidence, not new evidence.” Hudson’s Bay Co. Fur
Sales v. American Legend Cooperative, 115 F.R.D. 337,
340 (D.N.J. 1987). “New facts cannot justify
relitigation. Policy and logic mandate an end to
litigation which in most cases prevent the reopening of
a case because of after occurring events.” Id. (denying
Rule 60(b)(2) motion where the evidence cited to prove
a “fact” before the court at trial actually came into
existence after the trial).3
3
Plaintiffs also cite to two cases where courts revisited their orders
granting injunctive relief because “new evidence” became
available. Plaintiffs’ Motion at 5, Dkt. 217 (citing Luxottica Group
S.p.A. v. Light in the Box Ltd., No. 16-cv-05314, 2016 U.S. Dist.
LEXIS 144660 (N.D. Ill. Oct. 19, 2016); Metalcraft of Mayville, Inc.
App. 39
It was not until their reply brief that Plaintiffs first
pointed to Rule 60(b)(2), explaining that the IEPA
letter “according to Fed. R. Civ. P. 60(b) and
interpretive case law, pertains to facts in existence at
the time of trial, and is appropriately the subject of a
motion to reconsider.” Plaintiffs’ Reply at 2, Dkt. 221
(emphasis in original). “Material not in existence until
after trial falls within 60(b)(2) only if it pertains to
facts in existence at the time of trial.” Peacock v. Board
of School Commissioners, 721 F.2d 210, 214 (7th Cir.
1983).
v. Toro Co., No. 16-cv-544, 2016 WL 8737777 (E.D. Wis. Nov. 18,
2016)). However, reference to these cases is unhelpful. Metalcraft
dealt only with the procedural posture of filing a Rule 62.1 motion
for indicative ruling while an appeal of the preliminary injunction
was pending. Metalcraft, No. 16-cv-544, 2016 WL 8737777. The
court did not address the discovery of “new prior art” as it related
to Rule 60(b)(2) relief. Id. Luxottica is similarly unhelpful because
it dealt with a court granting injunctive relief and the law allowing
the court to modify or vacate that order in light of changed
circumstances. Luxottica, No. 16-cv-05314, 2016 U.S. Dist. LEXIS
144660, at *20. Even Plaintiffs’ reference to a footnote about
modifying an injunction based on “new facts” after an appeal is
unhelpful because the underlying case cited specifically compared
the court’s lack of jurisdiction to “modify the injunction in such
manner as to finally adjudicate substantial rights directly involved
in the appeal” with the court’s authority “to continue supervising
compliance with the injunction.” Luxottica, No. 16-cv-05314, 2016
U.S. Dist. LEXIS 144660, at *21 n.5 (citing A&M Records v.
Napster, Inc., 284 F.3d 1091, 1099 (9th Cir. 2002) (internal
quotation marks and citations omitted)). That is a very different
situation from what is before the Court. Plaintiffs are not asking
this Court to continue supervising an already existing injunction.
Rather, they seek a mandatory injunction based on new evidence
that was not before the Court at the time of trial.
App. 40
Accordingly, the critical question is this: What is the
“evidence” that Plaintiffs seek to introduce now?
Clearly, Plaintiffs contend that it is the IEPA’s
acceptance of the revised RAP. Indeed, Plaintiffs argue
that the IEPA approval letter “pertains precisely to
facts” from the “hearings in 2017,” namely to General
Electric’s RAP and revised RAP. Plaintiffs’ Reply at 4,
Dkt. 221. Plaintiffs’ argument fails for two reasons.
First, Plaintiffs’ reference to the “hearings in 2017”
attempts to encompass much more than what Plaintiffs
are seeking this Court to reconsider. Plaintiffs are
specifically asking that this Court reconsider its
September 7, 2017 ruling for injunctive relief.
Therefore, the evidence that was in existence or
pertains to facts in existence “at the time of trial”
relates to the evidentiary hearing this Court held on
June 1, 2017 and this Court’s ultimate ruling on
Plaintiffs’ request for an injunction on September 7,
2017. General Electric’s original RAP and the IPEA’s
disapproval of it were the only evidence before this
Court when it ruled on Plaintiffs’ request for injunctive
relief. General Electric did not submit its revised RAP
until October 19, 2017, well after this Court’s denial of
injunctive relief (i.e. “the trial”). Although this Court
held a hearing and ruled on Plaintiffs’ motion to
reconsider under Rule 54(b) on November 7, 2017,
Plaintiffs are not asking for the Court to reconsider
that ruling.
Second, the IEPA approval letter does not pertain to
General Electric’s original RAP, which was before the
Court when it denied injunctive relief. The letter only
addresses General Electric’s revised RAP submitted in
App. 41
October 2017. The revised RAP submitted new
information for the IEPA to consider about the site and
General Electric’s new proposed remedy. The new
information submitted to the IEPA does not pertain to
facts in existence at the time of the hearing. This is
very different from the cases Plaintiffs rely on where a
report or affidavits prepared after trial clearly related
to the facts at trial. Cf. Nat. Anti-Hunger Coalition v.
Exec. Comm. Etc., 711 F.2d 1071, 1075 n.3 (D.C. Cir.
1983) (report prepared after trial but based on preexisting data); United States v. Walus, 616 F.2d 283
(7th Cir. 1980) (new affidavits from witnesses who
could testify to prior events)). Therefore, this Court
finds that the IEPA’s approval of the revised RAP is
new evidence, not newly discovered evidence
contemplated under Rule 60(b)(2). See Nat. AntiHunger Coalition, 711 F.2d at 1075 n.3 (stating that
“evidence falls within [Rule 60(b)(2)] as long as it
pertain[s] to facts in existence at the time of the trial,
and not to facts that have occurred subsequently”)
(emphasis added) (internal quotations marks and
citation omitted).
II. Is the Newly Discovered Evidence
Likely to Change the Outcome?
Even assuming the IEPA approval letter is
considered newly discovered evidence under Rule
60(b)(2), Plaintiffs’ Motion still fails because the
evidence does not change this Court’s underlying
decision. Plaintiffs have not proven how this new
evidence shows irreparable harm.
The Court must point out that Plaintiffs have
always maintained that the parallel state-court
App. 42
proceedings and the 2010 Consent Order have been
insufficient to remedy their injury. When General
Electric submitted their original RAP, Plaintiffs argued
that institutional controls and monitored natural
attenuation were inadequate to remediate the
contamination at the site. However, Plaintiffs provided
little evidence about the ineffectiveness of the remedial
measures in General Electric’s RAP. Instead, at the
injunction hearing, Plaintiffs argued that any remedial
measures proposed by General Electric would be
premature because the extent of the contamination had
not been properly investigated and tested. This Court
disagreed and ultimately found that Plaintiffs failed to
establish irreparable harm.
Plaintiffs still remain unsatisfied with the statecourt proceedings, arguing that the use of institutional
controls is ineffective to address the contamination at
the site. Now that the IEPA has approved General
Electric’s use of institutional controls as the sole
remedial method, Plaintiffs argue this is conclusive
evidence that no abatement is being ordered in the
state-court proceedings. Plaintiffs believe that the use
of institutional controls alone does not comply with
RCRA because “they must be used in combination with
an actual cleanup.” Plaintiffs’ Reply at 12, Dkt. 221. To
support this claim, Plaintiffs cite to several guidance
document issued by the IEPA and the Environmental
Protection Agency to highlight the fact that
institutional controls leave the contamination in place.
Plaintiffs cite to one guide in particular, stating that
“[i]nstitutional controls should not be considered a
substitute for active or permanent corrective measures
(e.g. treatment and/or containment of source material,
App. 43
removal and restoration of groundwaters to their
beneficial uses).” Plaintiffs’ Exhibit H at 4, Dkt. 221-8;
Plaintiffs’ Reply at 10, Dkt. 221. But the remainder of
the paragraph in that guide explains that the project
manager should evaluate the institutional controls to
determine if they provide the best protection among the
remedial alternatives. The paragraph further
emphasizes the need to “compare the long-term risks
and costs associated with leaving contamination in
place to the risk reduction and cost of permanent
remedies that do not require institutional and
engineering controls.” Plaintiffs’ Exhibit H at 4, Dkt.
221-8. The Court believes this is precisely what the
IEPA has done when it approved the revised RAP.
General Electric addressed several questions the IEPA
had about its original RAP and then provided further
support for its proposal to use additional institutional
controls at the site.
Moreover, Plaintiffs already made similar
arguments about the need for active remediation in
their motion to reconsider. Plaintiffs argued that the
Consent Order and revised RAP did not propose any
abatement of the imminent and substantial
endangerment. Plaintiffs found this significant because
they believed the Court did not find irreparable harm
because General Electric’s original RAP was rejected by
the IEPA. Plaintiffs misunderstood this Court’s ruling.
In the order denying injunctive relief, this Court
pointed out that Plaintiffs evidence at the hearing
focused on General Electric’s investigation of the site,
and provided little evidence challenging the
remediation proposed by General Electric. In finding
App. 44
that Plaintiffs failed to establish irreparable harm, the
Court found that General Electric’s expert witness
credibly explained the reasons for the investigation of
the site and why a new and expanded investigation of
the site was not warranted, and indeed, was
contraindicated (such as punching holes through the
shale). Memorandum Opinion and Order at 8, 15-16,
Dkt. 181. The Court ultimately found that Plaintiffs
failed to provide “the evidence necessary for this Court
to second guess General Electric’s Remedial Action
Plan of institutional controls and monitored natural
attenuation, even though the IEPA has yet to approve
these measures.” Memorandum Opinion and Order at
9-10, Dkt. 181.
The Court also pointed out that the IEPA had
rejected General Electric’s original RAP proposing
institutional controls and monitored natural
attenuation, which undermined Plaintiffs’ claim of
irreparable harm. Nevertheless, this Court’s finding
was not tied to the IEPA’s rejection of the original RAP.
The Court 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 General Electric had
taken relating to the investigation and selected course
of remediation for the site.
Plaintiffs have used the IEPA’s most recent
approval of the revised RAP as a platform to make the
same arguments they have been making throughout
this case. Plaintiffs have not offered “newly discovered
evidence” that would establish irreparable harm or
otherwise excuse them from establishing the
App. 45
traditional elements for injunctive relief. Plaintiffs
already argued at the injunction hearing and in their
motion to reconsider that the Consent Order by itself
did not require abatement of the contamination
because it was merely an agreement between the IEPA
and General Electric. The Court was not persuaded by
this argument. Moreover, in denying Plaintiffs’ motion
to reconsider, the Court specifically reminded Plaintiffs
that a finding of imminent and substantial
endangerment did not in itself establish irreparable
harm under the elements for injunctive relief.
Accordingly, the fact that the IEPA has now approved
the use of institutional controls at the site does not
change this Court’s findings. Plaintiffs have yet to
establish irreparable harm.
Therefore, Plaintiffs’ Motion and request for relief
from judgment (Dkt. 217) is denied pursuant to Federal
Rule of Civil Procedure 62.1(a)(2).
Dated: August 14, 2018
By:
/s/Iain D. Johnston
Iain D. Johnston
U.S. Magistrate Judge
App. 46
APPENDIX C
ILND 450 (Rev. 10/13) Judgment in a Civil Action
IN THE UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF ILLINOIS
Case No. 13 CV 50348
Judge Iain D. Johnston
[Filed February 15, 2018]
__________________________
LAJIM, LLC et al,
)
)
Plaintiff(s),
)
)
v.
)
)
General Electric Company, )
)
Defendant(s).
)
__________________________ )
JUDGMENT IN A CIVIL CASE
Judgment is hereby entered (check appropriate box):
G in favor of plaintiff(s)
and against defendant(s)
in the amount of $ ,
which G includes pre–judgment interest.
G does not include pre–judgment
interest.
App. 47
Post-judgment interest accrues on that amount at
the rate provided by law from the date of this
judgment.
Plaintiff(s) shall recover costs from defendant(s).
G in favor of defendant(s)
and against plaintiff(s)
Defendant(s) shall recover costs from plaintiff(s).
: other:
Judgment in favor of Plaintiffs on Count I as to liability
only [88], but denied as to injunctive relief [181]
entered on 12/18/2015 and 9/7/2017.
Judgment of dismissal by stipulation of the parties as
to Count II and III [207] entered on 2/15/2018.
Judgment in favor of Defendant on Counts IV, V, and
VI [88] entered on 12/18/2015.
Each side to bear their own fees and costs [106],[210].
This action was (check one):
G tried by a jury with Judge
presiding, and the
jury has rendered a verdict.
G tried by Judge
without a jury and the above
decision was reached.
: decided by Judge Iain D. Johnston on a motion for
summary judgment.
Date: 2/15/2018
Thomas G. Bruton, Clerk of Court
Yvonne Pedroza , Deputy Clerk
App. 48
APPENDIX D
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
! CM/ECF LIVE, VER 6.1.1.2
WESTERN DIVISION
Case No.: 3:13!cv!50348
Honorable Iain D. Johnston
[Filed November 7, 2017]
__________________________
LAJIM, LLC, et al.
)
Plaintiff,
)
)
v.
)
)
General Electric Company )
Defendant. )
__________________________ )
NOTIFICATION OF DOCKET ENTRY
This docket entry was made by the Clerk on Tuesday,
November 7, 2017:
MINUTE entry before the Honorable Iain D.
Johnston: Status and motion hearing held on
11/7/2017. Plaintiff’s motion to reconsider [187] is
denied for the reason stated on the record. Telephonic
status hearing set for 12/1/2017 at 9:30 AM. By
11/29/2017 counsel shall provide direct!dial numbers
to the Court’s operations specialist. (yxp, )
App. 49
ATTENTION: This notice is being sent pursuant to
Rule 77(d) of the Federal Rules of Civil Procedure or
Rule 49(c) of the Federal Rules of Criminal Procedure.
It was generated by CM/ECF, the automated docketing
system used to maintain the civil and criminal dockets
of this District. If a minute order or other document is
enclosed, please refer to it for additional information.
For scheduled events, motion practices, recent opinions
and other information, visit our web site at
www.ilnd.uscourts.gov.
App. 50
APPENDIX E
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
No. 13 CV 50348
Magistrate Judge Iain D. Johnston
[Filed September 7, 2017]
_______________________
LAJIM, LLC, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
General Electric Co.,
)
)
Defendant.
)
_______________________ )
MEMORANDUM OPINION AND ORDER
INTRODUCTION
From the moment the parties consented to the
undersigned’s jurisdiction, the Court has read, re-read,
analyzed and re-analyzed the language of the Resource
Conservation and Recovery Act (“RCRA”), see 42 U.S.C.
§ 6901 et seq., so that it could precisely comply with a
complicated statutory scheme that attempts to balance
a host of competing interests involved in the important
App. 51
function of remediating toxic contaminants. That
should be no surprise. A federal court is duty bound to
follow Congressional mandates, even when the result
reached is different than what the court would have
liked. See Supporters to Oppose Pollution, Inc. v.
Heritage Group, 973 F.2d 1320, 1325 (7th Cir. 1992)
(“[C]ourts have no business bending one statute out of
shape because litigants (or even the judges) believe
that Congress should have written another statute
differently.”); “A judge who likes every outcome he
reaches is very likely a bad judge.” Neil Gorsuch,
Remarks Upon Being Nominated to the U.S. Supreme
Court (Jan. 31, 2017) in CHI. TRIB., Jan. 31, 2017,
http://www.chicagotribune.com/news/opinion/
editorials/ct-neil-gorsuch-trump-supreme-courtnominee-edit-0202-20170201-story.html (last visited
Sept. 7, 2017). But, sometimes, Congressional
mandates can be a little hazy. RCRA is an example of
a foggy statute. So, not surprisingly, the Court looked
to controlling Seventh Circuit case law for guidance as
well. In this regard, the Court was informed by the
Seventh Circuit’s excellent and helpful decision in
Adkins v. VIM Recycling, Inc., 644 F.3d 483 (7th Cir.
2011). Tellingly, the Adkins opinion begins with an
explication of RCRA. Again, this Court re-read and reanalyzed Adkins to guide it as it proceeded down the
murky path of RCRA litigation. Indeed, this Court
scrupulously followed Adkins’ guidance in many ways.
For example, as counseled by Adkins, this Court
coordinated with the Fifteenth Judicial Circuit, Illinois
Attorney General’s Office and Illinois Environmental
Protection Agency (“IEPA”). Adkins, 644 F.3d at 506;
Dkts. #123, 138 at 10 (soliciting an amicus brief), 14243. As noted later, this coordination proved invaluable
App. 52
to obtain the views of the IEPA. Likewise, this Court
ensured that it developed a sufficient factual record of
all the information it needed to properly evaluate
Plaintiffs’ request for mandatory permanent injunctive
relief. See Adkins, 644 F.3d at 496 (“These and other
relevant issues may be properly addressed on remand
with more information than is available from the
limited record on a motion to dismiss for failure to state
a claim.”); Dkt. #155 at 2 (rescheduling the evidentiary
hearing to allow time to review Defendant’s Remedial
Action Plan and the State’s anticipated amicus brief).
Again, as noted later, the facts developed at the
evidentiary hearing were critical to this Court’s
determination. And, finally, the Court held an
evidentiary hearing to press Plaintiffs to provide
evidence why they should be afforded the relief
requested. Adkins, 644 F.3d at 506 (“If [the state
agency] should achieve comprehensive relief in its state
court lawsuits, the federal judge will be entitled to
press the citizen-plaintiffs as to what more they hope
to accomplish in this suit.”); Dkt. #138 at 10 (setting an
evidentiary hearing to determine whether injunctive
relief is appropriate in light of the Consent Order).
Only after hearing from the parties’ respective experts,
viewing the voluminous record as a whole and
questioning Plaintiffs’ counsel and expert, the Court
was able to confidently and comfortably come to the
conclusion that, based on the facts presented and in the
exercise of its discretion, the Court will not grant a
mandatory permanent injunction. Plaintiffs have
simply failed to meet their high burden.
App. 53
MANDATORY INJUNCTIVE RELIEF
UNDER RCRA
With exceedingly clunky language, under certain
limited circumstances, RCRA empowers federal district
courts to enter mandatory permanent injunctions to
require companies to remediate their contamination.
Because the precise wording of the statute is
important, the language is quoted here. But because
the Court is not sadistic, only the relevant provisions
are quoted:
[A] person may commence a civil action on his
own behalf . . . against any person . . . including
any. . . past or present owner or operator of a . . .
storage . . . facility, who has contributed. . . to
the past or present handling [or] storage . . . of
any . . .hazardous waste which may present an
imminent and substantial endangerment to
health or the environment. . . The district court
has jurisdiction . . . to restrain any person who
has contributed. . . to the past. . . handling [or]
storage . . . of any . . . hazardous waste . . . [or]
order[ ] such person to take such other action as
may be necessary, or both. . .
42 U.S.C. § 6972(a)(1)(B), (a)(2).
Despite the awkward wording, courts have
consistently found that all types of injunctive relief are
available. Interfaith Community Organization v.
Honeywell Int’l, Inc., 726 F.3d 403, 411 n.3 (3d Cir.
2013); Litgo New Jersey Inc. v. Commissioner of New
Jersey Department of Environmental Protection, 725
F.3d 369, 393 (3d Cir. 2013); Voggenthaler v. Maryland
App. 54
Square LLC, 724 F.3d 1050, 1056 (9th Cir. 2013)
(“RCRA, in 42 U.S.C. § 6972, authorizes citizen suits
for two types of injunctive relief – an injunction
ordering the responsible parties to clean up the
contamination and an injunction ordering them to stop
any further violations.”).
Before the Court is Plaintiffs’ request for a
mandatory permanent injunction.1 To obtain a
permanent injunction, a plaintiff must establish the
following: (1) it has suffered an irreparable injury;
(2) legal remedies, such as damages, are inadequate to
compensate for that injury; (3) considering the balance
of hardships between the plaintiff and the defendant,
an equitable remedy is warranted; and (4) the public
interest would not be disserved by a permanent
injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S.
388, 391 (2006).
In this case, this Court has already stated that
Plaintiffs must establish all these elements. LAJIM,
LLC v. General Electric Co., 13 CV 50348, 2016 U.S.
Dist. LEXIS 137448, at *14-15 (N.D. Ill. Oct. 4, 2016).
The Court reiterates its view that Plaintiffs must
1
The Court, and apparently the parties, have operated under the
assumption that at this stage of the proceedings the Court is being
asked to issue a mandatory permanent injunction. The assumption
is based on the fact that Plaintiffs seek to change the status quo,
and that this Court has already ruled in Plaintiffs’ favor on
liability under RCRA. Important differences exist between
preliminary and permanent injunctions. University of Texas v.
Camenisch, 451 U.S. 390, 395 (1981). One important difference is
that the movant must succeed on the merits, not just that it is
likely to do so. Plummer v. American Institute of Certified Public
Accountants, 97 F.3d 220, 229 (7th Cir. 1996).
App. 55
establish each element. To be sure, some cases hold
that a civil plaintiff need not meet all the traditional
elements of injunctive relief if a statute authorizes the
relief. See, e.g., Illinois Bell Telephone Co. v. Illinois
Commerce Commission, 740 F.2d 566, 571 (7th Cir.
1984). But those cases have been limited; they apply
only when the specific statutory language at issue
clearly requires injunctive relief for a particular set of
circumstances. See Bedrossian v. Northwestern
Memorial Hospital, 409 F.3d 840, 843 (7th Cir. 2005).
This limitation is consistent with subsequent United
States Supreme Court case law. See, e.g., eBay, 547
U.S. at 391 (“[A] major departure from the long
tradition of equity practice should not be lightly
implied.”). When a statute merely authorizes a district
court to grant injunctive relief, rather than requires
the relief, a plaintiff must meet all the traditional
elements of injunctive relief. Daveri Development
Group, LLC v. Village of Wheeling, 934 F. Supp. 2d
987, 1007 (N.D. Ill. 2013). Because RCRA authorizes,
but does not require, injunctive relief, Plaintiffs must
establish all the traditional elements for a permanent
injunction, including irreparable harm.
A showing of irreparable harm is an essential
requirement of injunctive relief. Alabama v. United
States Army Corp. of Engineers, 424 F.3d 1117, 1133
(11th Cir. 2005) (irreparable injury is sine qua non of
injunctive relief). Indeed, irreparable harm is the most
important requirement. Kamerling v. Massanari, 295
F.3d 206, 214 (2d Cir. 2002). For harm to be
“irreparable,” it must be both certain and great, not
merely serious or substantial. New Mexico Department
App. 56
of Game and Fish v. United States Department of
Interior, 854 F.3d 1236, 1250 (10th Cir. 2017).
As this Court has previously held, because Plaintiffs
seek an order requiring General Electric to investigate
and remediate (which might be different than that
required by the IEPA under the Consent Order),
Plaintiffs must meet an even higher standard for this
mandatory injunction. LAJIM, LLC v. General Electric,
13 CV 50348, 2016 U.S. Dist. LEXIS 137448, at *16
(N.D. Ill. Oct. 4, 2016) (citing Schrier v. University of
Colorado, 427 F.3d 1253, 1261 (10th Cir. 2005) and
Cacchillo v. Insmed, Inc., 638 F.3d 401, 406 (2d Cir.
2011)). Mandatory injunctions are “cautiously viewed
and sparingly issued.” Graham v. Medical Mutual of
Ohio, 130 F.3d 293, 295 (7th Cir. 1997).
ISSUE
Throughout this litigation, General Electric’s
counsel has passionately argued that this Court should
not grant Plaintiffs’ requested injunctive relief that
would interfere with the Consent Order. General
Electric asserted that this Court should deny the
request based on the Consent Order reached in the
parallel state-court proceedings, regardless of what
label is placed on the reasoning for the denial. Dkt. #79
(October 7, 2015 Report of Proceedings, pp. 72, 103)
(“This court has a duty to avoid duplication of suits, to
avoid conflicting orders. . .”; “whether you call it
mootness, diligent prosecution, lack of entitlement to
injunctive relief. . .”). The Court understands that
parties are usually more interested in judgements than
rationales. But this Court must properly analyze the
App. 57
requested relief, and a more nuanced2 approach is
required.
The issue is not simply that a parallel state-court
proceeding exists. If that were the main focus, then
Adkins would not have scotched any reliance on the
various abstention doctrines. Adkins, 644 F.3d at 506
(“For the reasons we have explained, we believe the
congressional policy choices reflected in the RCRA
citizen-suit provisions remove the abstention options
from the district court’s toolbox.”).
Instead, the issue is what remedies are sought and
what relief has been granted in those parallel statecourt proceedings. Specifically, this Court must focus
on whether those parallel state-court proceedings are
repairing Plaintiffs’ injury. If they are, then a
mandatory permanent injunction should not issue.
In conducting the analysis, the facts that courts
have considered under a “diligent prosecution” inquiry
are relevant to the irreparable harm analysis. Just as
the same facts can be used by a plaintiff to plead a
variety of claims, the same facts can be used by a
defendant to establish a multitude of defenses. The
Court disagrees with General Electric’s conflation of
the various defenses into an amalgam barring
Plaintiffs’ claims and relief. But the Court agrees with
General Electric that when it reviews the record from
December 2010 – when the Consent Order was entered
– to today, the requested mandatory permanent
2
Unlike Modell from Diner, the Court is comfortable with the word
“nuance” and believes that it is a real word.
App. 58
injunction under RCRA is not warranted. Dkt. #79
(October 7, 2015 Report of Proceedings, p. 103).
Throughout the litigation, Plaintiffs have
strenuously argued that the IEPA’s analysis was
flawed from the beginning, and, consequently, the
horizontal and vertical extent of the contamination has
not been properly determined. Dkt. #38 at 20-24, 34-38
(Plaintiffs’ memorandum in support of summary
judgment). But at the injunction hearing, General
Electric’s expert witness provided reasonable, rational
and credible bases explaining why certain actions were
taken and others were not.
Moreover, the IEPA’s recent rejection of General
Electric’s Remedial Action Plan undermines Plaintiffs’
requested relief. See Dkt. #179 at p. 1 (stating that on
June 21, 2017, the IEPA rejected General Electric’s
Remedial Action Plan). At the injunction hearing,
General Electric made a forceful, coherent and nonfrivolous argument that natural attenuation in
conjunction with institutional controls and monitoring
was a sufficient remedy. General Electric made this
same pitch to the IEPA. At the injunction hearing,
Plaintiffs presented contrary evidence and arguments
to General Electric’s remedial plan. And, as it turns
out, the IEPA agrees with Plaintiffs – at least in part
in this regard. The IEPA rejected General Electric’s
Remedial Action Plan. Dkt. #179, p. 4-5 (rejecting
General Electric’s proposal of institutional controls and
monitored natural attenuation). In short, the IEPA’s
rejection of General Electric’s Remedial Action Plan
under the Consent Order remedied – at least in part –
Plaintiff’s harm.
App. 59
PLAINTIFFS HAVE FAILED TO MEET THEIR
BURDEN ESTABLISHING ENTITLEMENT TO
A MANDATORY PERMANENT INJUNCTION
Plaintiffs have maintained that the parallel statecourt proceedings, which produced the 2010 Consent
Order, are insufficient to remedy their injury. Plaintiffs
argue that the measures outlined by General Electric
in the Remedial Action Plan, namely institutional
controls and monitored natural attenuation, are
inadequate to remove the contamination at the site.
This is based largely on Plaintiffs’ contention that any
remedial measures would be premature at this stage
because the extent of the contamination has not been
properly determined. Therefore, Plaintiffs seek an
injunction that would require General Electric to
complete a thorough investigation of the site to
properly identify the measures required to remove the
contamination.
At the evidentiary hearing, Plaintiffs focused on the
inadequacy of General Electric’s investigation of the
site. As a result, Plaintiffs’ retained expert provided
limited testimony about the effectiveness of the
remedial measures outlined by General Electric.
Instead, Plaintiffs’ expert testified that additional
investigation and testing was necessary to opine on the
proper scope of remediation for the site. Accordingly,
without showing General Electric’s investigation into
the site was inadequate, Plaintiffs have not provided
the evidence necessary for this Court to second guess
General Electric’s Remedial Action Plan of institutional
controls and monitored natural attenuation, even
though the IEPA has yet to approve these measures.
App. 60
Despite several revisions to General Electric’s
Focused Site Investigation Report and the IEPA’s
ultimate approval of it, Plaintiffs are requesting that
General Electric perform the following investigation of
the site to determine the extent of the contamination:
(1) determine if dense non-aqueous phase liquid
(“DNAPL”) containing the trichloroethylene (“TCE”)
and 1,1,1 trichlorethane (“TCA”) solvents previously
used by General Electric is present at the General
Electric plant; (2) define the horizontal and vertical
extent of groundwater contamination at the General
Electric plant and all downgradient areas;
(3) understand the behavior of Rock Creek and why
contamination is present in the south irrigation well;
and (4) determine the source of and monitor
chlorinated solvent vapors inside the golf course
clubhouse, the former home of Lowell Beggs and
Martha Kai Conway, and the surrounding residences.
See Dkt. #111, p. 9-10. As part of this investigation,
Plaintiffs propose soil borings that would penetrate the
bedrock, installation of additional and deeper
monitoring wells (“MW”), additional sampling of the
new and existing wells, and implementation of longterm vapor intrusion monitoring for Plaintiffs’
properties and the surrounding residences. Id. Many of
these issues are interrelated, but the Court will
address each in turn.
DNAPL and Groundwater Contamination
Plaintiffs, through their retained expert Dr. Konrad
Banaszak, argue that the investigation of the site to
date has not adequately determined whether DNAPL
is present in the geologic materials under the General
App. 61
Electric plant property and extending under and
beyond Rock Creek and how far it has penetrated below
the surface. Plaintiffs are concerned that a DNAPL
would act as a continuing source of contamination at
the site. Plaintiffs argue that without additional testing
and remediation efforts, nothing prevents the DNAPL
(if one exists) from leaving the General Electric plant
and migrating south of Rock Creek.
Plaintiffs admit that they are putting forward an
untested theory regarding the extent of the
contamination. As General Electric noted at the
hearing, Plaintiffs merely offer different conclusions
about the data collected by General Electric and the
data they hope to develop with additional investigation
and testing. At no time before or during this litigation
have Plaintiffs or Dr. Banaszak tested the groundwater
or soil. Dr. Banaszak visited the site once in 2013, but
he did not take any samples.3 Instead, Plaintiffs have
asked the Court “to look at the underlying facts and the
data and importantly to take notice of the data that has
not been gathered…” Dkt. #177 (June 1, 2017 Report of
Proceedings, p. 31) (emphasis added). Dr. Banaszak
testified that groundwater sampling was not
prohibitively expensive;4 yet, no sampling was
3
Dr. Banaszak explained that any single sample he would have
collected would not add much to his understanding of the site
because samples would need to be taken over a long period of time
to show a trend. As it is now 2017 and the case was filed in 2013,
had additional testing started when the case was filed, there would
at least be four years of data.
4
Dr. Banaszak testified that it would cost approximately $2,000 to
$2,500 to have someone travel out to the site, take a field sample
App. 62
conducted by Plaintiffs. Not even on the property that
Plaintiffs own.
Despite not taking a single sample, Dr. Banaszak
opined that the soil borings at the two degreaser
locations in the plant’s main building did not go deep
enough to rule out DNAPL because “the lowest boring
still had evidence of contamination at reasonable,
substantial levels.” Dkt. #177 (June 1, 2017 Report of
Proceedings, p. 54). Dr. Banaszak opined that any TCE
contamination spilled onto the ground at the degreaser
locations would eventually travel into the bedrock
through various cracks and fissures. Dr. Banaszak
argued that drilling into the bedrock to sample
groundwater was possible and not too costly, generally
tens of thousands of dollars. Dr. Banaszak testified
that he would need additional information to determine
if it would be necessary to drill below the bedrock to
sample the deep aquifer material for contamination.
Dr. Banaszak disagreed with General Electric’s
determination that it would take 4,000 years for
groundwater to penetrate all the way through the
Maquoketa Shale. He opined that the Shale near the
site was highly fractured and that groundwater could
move more quickly through those fractures, but he was
unsure how much faster because he did not make any
independent calculations. He also opined that despite
from one of the wells, and submit it to a laboratory to have it
analyzed. However, it would only cost $500 to actually take the
sample and $150 to pay a laboratory to analyze it.
App. 63
sealing and closing City Well 1,5 the investigation to
date has not shown that it was the only conduit for
contamination to travel below the Maquoketa Shale.6
Additionally, Dr. Banaszak was concerned that
neither soil borings nor monitoring wells were installed
at a possible third degreaser in Building 14. Dr.
Banaszak opined that contaminated groundwater
under Building 14 would travel north, not south.
Accordingly, if groundwater traveled north, the
samples taken from soil borings 15 and 41, located
south of Building 14 and revealing no significant source
of contamination, would not shed light on the extent of
any contamination from a third degreaser. Dr.
Banaszak opined that additional and deeper soil
borings and monitoring wells would need to be
installed and sampled to determine if contamination
was released from the possible degreaser located in
Building 14.
Overall, Dr. Banaszak opined that the data collected
throughout the site did not show that the
contamination plume is stable or shrinking, which
leaves the possibility that a DNAPL exists. He argued
that contamination detected in the monitoring and
irrigation wells hundreds of feet from the General
Electric’s plant suggests there is a DNAPL. But
Plaintiffs conducted no testing to confirm this
“suggestion.” He also argued that the north irrigation
5
City Well 1 penetrated the Shale because it was over 1,000 feet
deep.
6
The Maquoketa Shale begins approximately 225 feet below the
surface and ends approximately 400 feet below the surface.
App. 64
well was drawing water, and contamination, out of the
bedrock. Additionally, Dr. Banaszak noted that the two
monitoring wells north of Rock Creek, MW 7 and 8, had
been sampled only twice and revealed a wide
variability in the contamination level.
In response to Plaintiffs’ arguments, General
Electric presented the testimony of its retained expert
Dr. Peter Vagt, who has been the project director of
this site since 2008. Dr. Vagt testified that any
additional investigation is unnecessary. Dr. Vagt
testified that based on the soil samples taken from the
area around the General Electric plant, there was no
evidence DNAPL was present. Pursuant to the IEPA’s
directive, General Electric performed a CSAT7 analysis
on the soil samples collected to determine the
concentration for each volatile organic compound. If
any of the soil samples were above a threshold CSAT
number for any volatile organic compound, the IEPA
would find DNAPL present. However, none of the
samples General Electric analyzed exceeded the CSAT
number.
The IPEA even requested a more detailed
explanation from General Electric regarding soil
7
“CSAT” or the soil saturation limit means “the contamination
concentration at which the absorptive limits of the soil particles,
the solubility limits of the available soil moisture, and saturation
of soil pore air have been reached. Above the soil saturation
concentration, the assumptions regarding vapor transport to air
and/or dissolved phase transport to groundwater (for chemicals
that are liquid at ambient soil temperatures) do not apply, and
alternative modeling approaches are required.” 35 Ill. Adm. Code
§ 742.200.
App. 65
concentrations near the main building and the two
degreasers. In particular, monitoring well G105D was
installed near the central degreaser and groundwater
samples were taken from 1987 until 2014. See Dkt.
#166-6 (General Electric’s Exhibit V). Dr. Vagt testified
that the earlier samples revealed very high
concentrations of TCE, which suggested DNAPL may
be present. However, the concentrations dropped
significantly over time, eventually down to 1/1,000 of
the original concentration. Dr. Vagt interpreted this to
mean the source of TCE and TCA had dispersed and
there was not a continuing source of TCE and TCA
underneath the plant feeding a plume of
contamination. He opined that if a DNAPL were
present, the concentrations would have stayed
constant. Ultimately, the IPEA was satisfied that
DNAPL was not present and approved General
Electric’s Focus Site Investigation Report.
As to a potential third degreaser, Dr. Vagt recalled
that a General Electric employee testified that there
may have been a third degreaser in Building 14 that
used TCA or TCE. However, the soil samples taken
near Building 14 either detected no TCA/TCE or low
levels of it. Based on this evidence, Dr. Vagt opined and
the IEPA agreed, that no further testing was necessary
to determine if a third degreaser was located in
Building 14. Furthermore, Dr. Vagt determined that
groundwater was flowing south from Building 14, not
north as Dr. Banaszak testified. The conceptual site
model Dr. Banaszak relied on was preliminary. After
that preliminary model was made, Dr. Vagt revisited
the site and discovered that the high point in the
groundwater was several hundred feet farther north of
App. 66
Building 14 than he previously thought, which would
cause the groundwater to flow south from Building 14.
Dr. Vagt also maintained his conclusion that City
Well 1 was the only conduit for contaminants to travel
below the Maquoketa Shale. Once City Well 1 was
sealed and closed in 1988, the TCE concentrations
dropped significantly in the first two years and
continued dropping slowly after that. Dr. Vagt opined
that this data revealed that City Well 1 was the
conduit and that there were no other natural ways for
contamination to get into the deep aquifer below the
Maquoketa Shale. Dr. Vagt calculated that it would
take 4,000 years for water to travel through to the
bottom of the Maquoketa Shale at a rate of 1/20 of a
foot per year. Dr. Vagt testified that based on the
seepage rate of the Maquoketa Shale even if TCE were
present in the ground, it would only have traveled 5 or
6 feet into the Shale. Therefore, Dr. Vagt did not
recommend drilling into the Maquoketa Shale because
the only contamination of the deep aquifer has been
through man-made bore holes or wells, like City Well
1.8
Based on the evidence presented at the hearing, the
Court finds that General Electric’s investigation into
the presence of DNAPL and the IEPA’s approval of this
investigation and ultimate determination that no
DNAPL existed was not unreasonable. Therefore,
Plaintiffs have not met their burden to show that
8
The principle of primum non nocere is apparently applicable in
environmental studies as well.
App. 67
additional testing for DNAPL is necessary to determine
the proper scope of any remediation for the site.
Rock Creek
The parties dispute whether Rock Creek is a
groundwater divide that would prevent contamination
from flowing underneath Rock Creek and to the south.
Plaintiffs argue that trace amounts of TCE present in
the south irrigation well located south of Rock Creek is
evidence of this. Plaintiffs believe that the
contamination is moving through the competent
bedrock under Rock Creek and into the south irrigation
well. Plaintiffs further believe that the 6 monitoring
wells on the south side of Rock Creek,9 which did not
detect site-related contaminants in the groundwater
samples, are not deep enough to reveal any
contamination because they are shallower than the
level at which groundwater and contamination move
through the bedrock.10
9
Namely MW11, MW11-LS, MW 12, MW12-LS, MW13, MW13-LS.
10
Similarly, Dr. Banaszak believed that the shallow depth of the
monitoring wells skewed the evaluation of potentiometric pressure,
which pulls groundwater from a higher pressure in the monitoring
well to a lower pressure. Dr. Banaszak opined that the data
collected by General Electric revealed that Rock Creek was pulling
groundwater into it, which would make it a groundwater divide;
however, he believed this data was incomplete. Dr. Banaszak
testified that there is evidence from 1999 that Rock Creek was a
losing stream (it was losing its water to the aquifers below), which
would allow contamination to flow under Rock Creek.
However, Dr. Vagt testified that the gage data collected by the
United States Geological Survey on almost a daily basis from 1978
through 1985 about Rock Creek reveals it is predominately a
App. 68
At the hearing, General Electric maintained that
Rock Creek is a groundwater divide. Dr. Vagt relied on
the gage data for Rock Creek and the samples taken
from the two monitoring wells installed north of Rock
Creek, MW 7 and 8, to conclude that Rock Creek was a
groundwater divide. General Electric asserted this
conclusion in their Focused Site Investigation Report.
The IEPA requested additional information and
required the installation of monitoring wells and the
testing of residential wells to the south of Rock Creek
to confirm General Electric’s conclusion. Dr. Vagt
determined that the lack of site contaminants in these
wells confirmed his conclusion that Rock Creek
prevented contaminants from moving past it. Dr. Vagt
testified that a single sample revealing trace amounts
of TCE from the south irrigation well did not
overshadow the lack of contamination detected in
samples taken from 6 monitoring wells and the
residential wells located south of Rock Creek that were
at differing depths and in close proximity to the south
irrigation well. Dr. Vagt opined that pumping from the
south irrigation well, which is beyond the wells that
were sampled, was likely pulling TCE from under Rock
Creek toward the well. Based on this explanation, the
gaining stream. A gaining stream would pull groundwater into it
from both sides and beneath it, creating a groundwater divide. Dr.
Vagt testified that Rock Creek is a gaining stream about 90% of
the time and that the data Dr. Banaszak relied on from 1999
indicating it was a losing stream was likely during one of these
intermittent changes. Dr. Vagt further testified that even though
the daily gage data only went through 1985, it was representative
of how Rock Creek would act in 2012, namely that it remained
predominately a gaining stream.
App. 69
IEPA determined that additional investigation and
sampling was unnecessary.
Accordingly, the testimony at the hearing reveals
that Plaintiffs merely interpreted the data differently
than General Electric and the IEPA. However,
Plaintiffs have offered no additional testing that would
seriously challenge the finding that Rock Creek is a
groundwater divide, and have therefore provided no
basis for ordering a new, longer-term investigation into
the site.
Vapor Intrusion
Plaintiffs seek to determine the extent of the vapor
intrusion into the homes and clubhouse. They also seek
implementation of long-term vapor intrusion
monitoring. At the hearing, Plaintiffs informed the
Court that the home once owned by Lowell Beggs and
Martha Kai Conway had been sold. Plaintiffs agreed
that the Court cannot force access into the home for
testing and monitoring. Accordingly, Plaintiffs asked
the Court to order General Electric to obtain consent
from the new owners to implement the vapor intrusion
monitoring not only for this home, but for the
surrounding residences as well.
Plaintiffs assert that 1,2-dichloroethane (“1,2-DCA”)
was detected inside Plaintiffs’ former home and is the
same compound from the plant contamination. Based
on the detection of 1,2 DCA, Plaintiffs argue that
General Electric should be required to investigation
where the contaminants came from, even if they were
not site related.
App. 70
General Electric maintains that vapor intrusion is
not an issue because no site-related contaminates were
found in the groundwater and sub-slab samples taken
from under and around Plaintiffs’ former home,
regardless of whether contaminants were detected in
the indoor air. The investigation into the indoor
inhalation exposure revealed that there was not a
complete pathway between the source of site-related
contamination around or under the home and the
indoor air, noting that 1,2-DCA, which was not
detected in the samples taken from the groundwater or
the sub-slap vapor, could come from a number of
sources unrelated to the site contamination. Without a
complete pathway, any additional investigation into
the source of 1,2-DCA would be unnecessary. The IEPA
agreed with this conclusion and did not require
additional testing. This Court is not in a position to
second guess the IEPA’s decision based on Plaintiffs’
discontent with the decision.
***
For all the reasons stated above, the Court finds
that Plaintiffs have not met their heavy burden to show
they are entitled to a mandatory permanent injunction.
This Court is not in a position to second guess the wellreasoned decisions of General Electric and the IEPA
with respect to the site investigation. The IEPA has
consistently pushed back on General Electric’s
proposals since 2010. And the IEPA’s rejection of
General Electric’s Remedial Action Plan is just the
latest example. The IEPA’s actions, including the latest
rejection, is strong evidence that Plaintiffs’ injuries are
being remedied in the parallel state-court proceeding.
App. 71
The Court sympathizes with Plaintiffs about the delay
in cleaning up the site, but as Dr. Banaszak indicated,
any investigation into the site requires data collection
over a long period of time to determine the trends in
the contamination and how that is affected by the
groundwater flow. The IPEA is satisfied with General
Electric’s investigation to date and has moved on to
evaluating what remedial measures are necessary for
this site.11 Obviously, what has satisfied the IEPA has
not satisfied Plaintiffs. But Plaintiffs’ lack of
satisfaction does not mean that they have met their
high burden to obtain a mandatory permanent
injunction. The IEPA has even shared Plaintiffs’
concerns over the proposed use of institutional controls
and monitored natural attenuation. However, this
Court will leave it to General Electric to provide
additional support for its proposed plan or modify it in
accordance with the IEPA’s requirements.
CONCLUSION
The Court recognizes that the IEPA is not seeking
every aspect of relief Plaintiffs desire and that General
Electric may seem like it has been dawdling for
decades. Plaintiffs have the Court’s sympathies in this
11
It is important to remember the issue before the Court. The
issue is whether Plaintiffs have met their burden of showing
irreparable harm so that a completely new investigation of the site
should be ordered, despite the IEPA’s approval of the investigation
to date. The issue is not whether the Court necessarily agrees with
General Electric’s proposed remedy of natural attenuation and
monitoring with institutional controls. Indeed, the IEPA’s rejection
of that remedy as proposed is strong evidence that irreparable
harm was not established.
App. 72
regard. But sympathy is not a basis upon which to
grant a mandatory permanent injunction that would
disrupt the actions taken under the Consent Order.
Holbrook v. University of Virginia, 706 F. Supp. 2d 652,
653 (W.D. Va. 2010). A reasonable person might
disagree with this Court’s determination, but that
disagreement does not necessarily mean this Court
abused its discretion in denying the relief. United
States v. Williams, 81 F.3d 1434, 1437 (7th Cir. 1996).
Moreover, it is important to remember that Plaintiffs’
Comprehensive Environmental Response,
Compensation, and Liability Act claim remains at this
stage of the litigation. Plaintiffs are not currently
without a remedy in this case, in addition to the
remediation efforts sought by the IEPA and Illinois
Attorney General under the Consent Order. Indeed,
Plaintiffs’ hopes of a more expansive remediation
should be buoyed by the IEPA’s recent rejection of
General Electric’s Remediation Action Plan.
Plaintiffs’ request for a mandatory permanent
injunction is denied. Plaintiffs have failed to establish
irreparable harm.
Dated: September 7, 2017
By:
/s/Iain D. Johnston
Iain D. Johnston
U.S. Magistrate Judge
App. 73
APPENDIX F
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
No. 13 CV 50348
Magistrate Judge Iain D. Johnston
[Filed October 4, 2016]
__________________________
LAJIM, LLC, et al.
)
Plaintiffs,
)
)
v.
)
)
GENERAL ELECTRIC CO., )
Defendant.
)
__________________________ )
MEMORANDUM OPINION AND ORDER
As beautifully illustrated in the movie Avalon, “can”
differs from “may.” Likewise, in the legal context,
whether a court could enter mandatory injunctive relief
differs from whether a court should grant that
extraordinary relief. This case exemplifies that critical
difference.
App. 74
I. BACKGROUND
A. Site History1
From 1949 through 2010, General Electric (“GE”)
operated a plant in Morrison, Illinois (“City”). The
plant manufactured appliance and automotive controls
for products, including refrigerators, air conditioners,
and motor vehicles. During the relevant time, the
manufacturing process used chlorinated organic
solvents to remove oil from parts. These solvents can
break down into other matter, such as 1,2dichloroethane (1,2-DCA), all of which are toxic and
regulated by federal and state environmental agencies.
GE stored the chlorinated solvents in degreasers
located in the plant. The degreasers were
decommissioned in 1994.
Beginning 1986, and continuing throughout the
remainder of the 1980s and 1990s, various monitoring
procedures – most at the order of the Illinois
Environment Protection Agency (“IEPA”) – detected the
presence of solvents in and near the local water supply
downgradient of GE’s plant. Two of the City’s
municipal drinking water wells were closed as a result
and the third had an air stripper installed by a
contractor hired by GE to filter the water used by the
1
The site background is set out in abbreviated form. A much more
complete history, which this Court incorporates by reference, is
included in the Court’s order adjudicating the parties’ cross
motions for summary judgment. See LAJIM, LLC v. General Elec.
Co, No. 13 CV 50348, 2015 WL 9259918, at *1-4 (N.D. Ill. Dec. 18,
2015).
App. 75
City. Soil samples taken from around the degreaser
sites also confirmed the presence of solvents in the soil.
In 2001, due to an IEPA order, GE hired a different
contractor to conduct an extensive survey.
Consequently, a report was issued that found that the
Rock Creek, which flows through the contaminated
area, was a natural divide that would prevent the
solvents from migrating further south and that natural
attenuation (functionally, allowing the plume of
solvents to dissolve naturally over time) would deal
with the rest. The IEPA rejected that report and
concluded active remediation would be required to
clean up the site. In 2004, the IEPA, through the
Illinois Attorney General, filed suit against GE on
state-law grounds seeking the costs it had expended as
a result of the hazardous substance release and an
injunction requiring GE to determine the nature and
extent of the soil and groundwater contamination, and
then to perform remediation. After years of litigation,
on December 12, 2010, the suit resulted in a consent
order between GE and the IEPA (“Consent Order”).
B. The Consent Order
Pursuant to the Consent Order, GE agreed to
submit to the IEPA for its approval a series of plans
and reports including the following: (1) a work plan to
survey private wells, install additional monitoring
wells, and complete additional soil borings; (2) a
Focused Site Investigation Report (“FSI”) summarizing
the results of the work plan; (3) a Remedial Objectives
Report (“ROR”) to address the impact of the soil and
groundwater contamination; and (4) a Remedial Action
Plan (“RAP”) to meet the remediation objectives
App. 76
identified in the ROR. In short, the process was to
investigate the problem (the work plan), report on that
investigation (the FSI), identify what goals needed to
be met (the ROR), and then develop a plan to reach
those goals (the RAP).
Under the terms of the Consent Order, the work
plan was to be submitted within sixty days of the
adoption of the order, which would be by February 22,
2011. After IEPA approval (which was not limited to a
certain time frame), GE had sixty days to implement
the work plan. From there, GE had one-hundred-eighty
days to complete the work plan and submit the FSI.
IEPA again had an indefinite time frame to approve
the FSI, after which the ROR time limits became
operative. GE was required to present the ROR by the
either December 31, 2012, the day the last City well
was abandoned, or ninety days after the FSI was
approved – whichever was earlier. Following another
indefinite approval period by the IEPA, GE was
required to propose the RAP within ninety days of the
ROR’s approval. Assuming the IEPA took
approximately ninety days to approve of GE’s various
plans (in reality, the IEPA took between 30-90 days to
approve or reject all filings with one notable exception),
the ROR should have been filed on or about May 22,
2012. Under the worst case scenario, pursuant to the
Consent Order, the ROR had to be filed by December
31, 2012. It is notable, however, that any of these dates
were modifiable by agreement of the parties, although
it is unclear that this ever occurred.
GE timely proposed its first work plan on February
18, 2011. The IEPA rejected that work plan on March
App. 77
28, 2011. GE proposed a revised work plan on April 26,
2011, which was likewise rejected on July 12, 2011.
Ultimately, an additional revised work plan was
proposed on August 26, 2011 and approved—after
additional negotiation—on November 30, 2011. The
plan was implemented on December 5, 2011 and
initially completed on January 27, 2012. However,
supplemental investigatory work extended the work
plan out another year, until January 30, 2013. The
FSI—some 3,500 pages of data, sampling, and
activity—was initially offered on April 26, 2013. But on
July 25, 2013, the IEPA rejected the plan and ordered
additional testing. On August 23, 2013, GE presented
a supplemental work plan to address that additional
testing. The IEPA approved this plan on October 11,
2013. On May 15, 2014, GE proposed an addendum to
the FSI, which the IEPA rejected (or, more realistically,
sought clarification concerning) on August 14, 2014. On
October 23, 2014, GE responded to that rejection by
letter, and the IEPA gave conditional approval for the
FSI on March 18, 2015. That approval was reached
after additional back-and-forth correspondence and
some additional sampling. Finally, on June 18, 2015,
GE provided its ROR. The IEPA rejected that ROR on
February 10, 2016, to which GE responded on March
10, 2016. Following a meeting and additional
discussions, the IEPA conditionally approved the ROR
on August 10, 2016. To date, this Court has not been
provided a copy of the approved ROR.
A great deal of investigatory work has been ordered
and performed pursuant to the Consent Order. But the
entire proceeding appears years off schedule. Moreover,
no remediation has been performed anywhere on the
App. 78
site in the thirty years since the initial discovery of
toxic contaminants traceable to GE’s degreasers in the
downgradient soil and water supplies of the City.
C. This Citizen Suit
Plaintiffs, individuals and an entity that owns a golf
course, filed a citizen suit against GE on November 1,
2013. See 42 U.S.C. §6972. They seek a mandatory
injunction to require GE to remediate the
contamination (Count I) under the Resource
Conservation and Recovery Act (“RCRA”), see 42 U.S.C.
§ 6972(a)(1)(B); cost recovery (Count II) and a
declaratory judgment (Count III) under the
Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”), see 42
U.S.C. § 9607(a) (cost recovery) and § 613 (g)(3)
(declaratory judgment); and allege state law claims of
nuisance (Count IV), trespass (Count V), and
negligence (Count VI).
Following extensive discovery, on December 18,
2015, this Court granted summary judgment to
plaintiffs as to liability on Count I.2 The Court granted
2
In granting plaintiffs summary judgment, this Court found that
plaintiffs’ citizen suit was not barred because the IEPA’s suit was
not seeking to enforce §6972(a)(1)(B) of RCRA. LAJIM, No. 13 CV
50348, 2015 U.S. Dist. LEXIS 169753 at *19-20. In making that
determination, this Court applied the plain meaning of the
statute’s terms. Id. As a result of the most recent briefing and
argument, the Court again re-read and analyzed the critical cases
affecting its decision as to liability on Count I, including, but not
limited to Adkins v. VIM Recycling, Inc., 644 F.3d 483 (7th Cir.
2011) and Friends of Milwaukee’s Rivers v. Milwaukee
Metropolitan Sewage Dist., 382 F.3d 743 (7th Cir. 2004). Having
App. 79
summary judgment to defendants on Counts IV-VI.3
Having made these rulings, the parties then briefed
three issues: (1) whether plaintiffs can establish the
traditional required elements of injunctive relief;
(2) whether plaintiff’s injunctive relief request is moot
in light of the Consent Order; and (3) whether this
Court can contradict determinations made in the statecourt proceedings or Consent Order. Dkt. #106. The
main thrust of these three issues focuses on the
availability and propriety of injunctive relief. The
parties again provided helpful submissions.
II. ISSUE
Currently before the Court is the question of what
appropriate injunctive remedy, if any, is available to
plaintiffs under RCRA. Specifically, plaintiffs seek a
re-read those cases, the Court is even more convinced that its
summary judgment liability determination is correct, despite GE’s
protestations. In both of those decisions, the Seventh Circuit
employed a plain meaning analysis and strictly applied RCRA’s
language, just as this Court used. Additionally, Friends of
Milwaukee’s Rivers was a Clean Water Act (CWA) case. The CWA
has both a similar citizen suit provision as well as a barring
provision. Citizen suits brought under the CWA allow for citizens
to seek a civil penalty, but a State cannot obtain a civil penalty if
it is proceeding under a comparable state statute. Accordingly, this
provision evidences that Congress knows how to limit remedies in
environmental cases when a State is proceeding under a
comparable state law. If Congress wanted to bar RCRA citizen
suits because the State was proceeding under a similar state
statute, Congress would have said so.
3
Counts II and III remain pending, and the parties have filed no
dispositive motions as to those counts.
App. 80
mandatory injunction for immediate
remediation, which GE opposes.
active
III. CONTENTIONS OF THE PARTIES
GE contends that if a state-court proceeding already
exists that covers the same scope of the relief sought by
the citizen suit, then the plaintiffs are not entitled to
injunctive relief in this Court. According to GE, this is
true whether the Court considers the issue in the
context of mootness or the lack of irreparable harm or
however else phrased. Transcript of Report of
Proceedings, August 18, 2016 at p. 45. In other words,
“if the field is occupied by the state [this Court] cannot
supplant that with [its] own judgment.” Id. at p. 46. GE
made a similar argument as to liability. Transcript of
Report of Proceedings, October 7, 2015 [Dkt. 79] at p.
72 (“This court has a duty to avoid duplication of suits,
to avoid conflicting orders, and to [. . .] give deference
to a state agency which has primary authority.”).
Plaintiff contends that because it seeks broader
injunctive relief, based in part on the IEPA’s alleged
failure to investigate and address aspects of the
contamination, then not only is injunctive relief
available, but also that it must be granted. Id.
IV. ANALYSIS
A. Whether This Court Could Enter Mandatory
Injunctive Relief
Whether this Court can enter injunctive relief in a
citizen suit, even when a state proceeding is ongoing, is
squarely addressed by RCRA. And RCRA answers that
question in the affirmative. Initially, any person may
App. 81
commence a civil action on his own behalf against any
person who contributed to past or present handling,
storage, treatment, transportation, or disposal of
hazardous waste which may present an imminent and
substantial endangerment to health or environment. 42
U.S.C. §6972(a)(1)(B). There is no dispute that GE is a
“person” that handled or stored hazardous waste.
Moreover, this Court has already determined that
there may be an imminent and substantial
endangerment to health or environment. However, that
type of citizen suit is statutorily barred if the IEPA
were diligently prosecuting an action under
§6972(a)(1)(B). 42 U.S.C. §6972(b)(2)(C). This Court
has already determined that because the State of
Illinois was not prosecuting a case under
§6972(a)(1)(B), the suit is not barred. Consequently,
plaintiffs’ citizen suit may proceed. And RCRA plainly
authorizes injunctive relief in citizen suits. 42 U.S.C.
§6972(a). Accordingly, once a court finds that the
plaintiff has met the requirements of a citizen suit and
the suit is not barred, a court has the power to stop
further contamination as well as to remediate past
contamination.
Therefore, despite GE’s position, the plain language
of RCRA gives this Court the power to enjoin GE. The
real issue is whether this Court should enjoin GE
under the particular facts of this case.
Case law supports this conclusion. Indeed, Adkins
v. VIM Recycling, Inc., 644 F.3d 483 (7th Cir. 2011) – a
case upon which GE heavily relies throughout this case
App. 82
– supports this Court’s finding.4 In Adkins, the Seventh
Circuit specifically stated the following: “We do not
suggest, of course, that once a citizen suit has cleared
RCRA’s statutory hurdles it is immune from all other
constitutional and preclusive doctrines, such as
standing, mootness, and claim or issue preclusion.” Id.
at 503. This statement evidences GE’s error. There
would be no reason for the Seventh Circuit to make
4
The Court is a bit confused by GE’s heavy reliance on Adkins.
This Court views Adkins as a bad case for GE on many levels,
including, but not limited to, its reliance on the plain language of
RCRA as well as its complete rejection of two abstention doctrines,
the rationales of which GE repeatedly espouses. While this Court
has previously stated and still remains concerned that it should
not trample on a parallel state-court proceeding, Adkins holds that
once Congress has considered those precise concerns and
nevertheless authorized federal courts grant injunctions, those
concerns are all but eliminated. Adkins, 644 F.3d at 506 (“[W]e
recognize that the busy district court’s decision to abstain in this
case was based on a healthy respect for state courts and a desire
to avoid duplicating or interfering with their efforts. For the
reasons we have explained, we believe the congressional policy
choices reflected in the RCRA citizen-suit provisions remove the
abstention options from the district court’s toolbox.”). Having said
that, the Court recognizes that the jurisprudential concerns
underpinning abstention doctrines (that the Adkins decision says
do not apply) are kissing cousins to other court created
jurisprudential restraints, such as mootness and standing (that
the Adkins decision says may apply). Additionally, although GE
focuses on footnote 2 of Adkins, that footnote does not support GE’s
positions in this case. As noted previously, the Seventh Circuit did
not address the citizen suit bar under §6972(b)(2)(C). LAJIM, 2015
U.S. Dist. LEXIS 169753 at *26-27. Moreover, the Seventh Circuit
explicitly noted that the State of Indiana did not commence its own
RCRA “endangerment” action, and as a result, that case could not
address the specific bar at issue here which would prevent a citizen
suit under §6972(a)(1)(B).
App. 83
this statement if injunctive relief were not available.
Instead, Adkins finds that courts should consider these
doctrines under the particular facts of a case before
granting injunctive relief. This clear statement likewise
rejects plaintiffs’ assertion that once they meet RCRA’s
statutory requirements they are presumptively entitled
to relief. See also Phoenix Beverages, Inc. v. Exxon
Mobil Corp., No. 12 CV 3771, 2015 U.S. Dist. LEXIS
16959, *12 (E.D.N.Y. Feb. 11, 2015) (citing Amoco Prod.
Co. v. Village of Gambell, 480 U.S. 531, 545, 542
(1987)).
B. Whether This Court Should Enter Mandatory
Injunctive Relief
In determining whether mandatory injunctive relief
should be awarded, the Court must consider the nature
of the relief (including the traditional elements of
injunctive relief) as well as the appropriateness of the
relief sought under the facts of the case.
1. Nature of Mandatory Injunctive Relief
As this Court has previously determined, a plaintiff
in a citizen suit must meet the traditional elements for
injunctive relief. LAJIM, LLC v. General Electric Co.,
No. 13 CV 50348, 2016 U.S. Dist. LEXIS 19183, *11
(N.D. Ill. Feb. 17, 2016). Nothing plaintiffs have
presented in the latest round of filings requires a
different determination. Indeed, plaintiffs continue to
ignore the important distinction between when a
government agency is statutorily authorized to seek
and obtain injunctive relief, in which case the elements
of injunctive relief are not necessary, and when a
citizen brings its own private suit seeking injunctive
App. 84
relief. Compare Commodity Futures Trading Comm’n
v. Hunt, 591 F.2d 1211, 1220 (7th Cir. 1979) (where
CFTC seeks injunction under authorizing statute, it
“need not meet the requirements for an injunction
imposed by traditional equity jurisprudence.”) with
United States v. Bethlehem Steel Corp., 38 F.3d 862,
867 (7th Cir. 1994) (“Ordinarily, 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)).”).
The required elements of injunctive relief are the
following: an irreparable injury; an inadequate remedy
at law; a balancing of hardships favoring an injunction;
and a showing that the public interest weighs in favor
of the relief. LAJIM, 2016 U.S. Dist. LEXIS 19183 at
*11 (citing Maine People’s Alliance & Natural
Resources Defense Council v. Mallinckrodt, Inc., 471
F.3d 277, 296 (1st Cir. 2006)). Critically, it is important
to remember four aspects of injunctive relief. First,
injunctive relief is discretionary. EEOC v. AutoZone,
707 F.3d 824, 840 (7th Cir. 2013). Second, because the
relief is discretionary, two different judges faced with
identical facts can exercise their discretion differently,
and both still be acting within the scope of their
discretion. See United States v. Williams, 81 F.3d 1434,
1437 (7th Cir. 1996). Third, the decision to grant or
deny an injunction is heavily driven by the particular
facts of a case. Groupe SEB USA, Inc. v. Euro-Pro
Operating LLC, 774 F.3d 191, 205 (3d Cir. 2014) (in
determining whether to grant injunctive relief the
court must exercise it equitable discretion in a case-bycase, fact specific manner). Fourth, even if an
App. 85
injunction is warranted, fashioning the scope of the
injunction is fact driven. In re Mirant, 378 F. 3d 511,
522 (5th Cir. 2004). Additionally, because plaintiffs
seek remediation by GE, they seek a mandatory
injunction. See Schrier v. University of Colorado, 427 F.
3d 1253, 1261 (10th Cir. 2005) (mandatory injunctions
require nonmovant to act in a particular manner).
Consequently, plaintiffs must meet an even higher
burden. Cacchillo v. Insmed, Inc., 638 F.3d 401, 406 (2d
Cir. 2011).
2. Determining the
Injunctive Relief
Appropriateness
of
Numerous cases exist regarding the availability and
propriety of injunctive relief in citizen suits under the
various federal environmental statutes, including
RCRA. Each side did an excellent job surveying a vast
array of those cases and was able to mine the Federal
Reporter, LEXIS and Westlaw and present cases it
believed were helpful to their cause. GE cited a
particularly relevant Clean Air Act case, involving a
requested injunction in a citizens suit and the CAA’s
“diligent prosecution” bar. Group Against Smog and
Pollution, Inc. v. Shenango Inc., 810 F.3d 116 (3d Cir.
2016). Group Against Smog and Pollution stands for
some helpful propositions for GE, including that merely
because the state may not be taking the precise
remedial action desired by the citizen plaintiffs or is
moving slowly does not mandate injunctive relief. But
many of the other cases GE cites are easily
distinguishable because they involve situations in
which the citizen plaintiffs fail to adequately identify
what more they desire by way of remediation or the
App. 86
citizen plaintiffs seek nearly the identical relief
obtained by the state. Trinity Industries, Inc. v.
Chicago Bridge & Iron Co., 735 F.3d 131, 140 (3d Cir.
2013) (“Trinity has not contended that the remediation
scheme put in place by the Consent Order is deficient
or ineffective.”); Center for Biological Diversity, Inc. v.
BP America Prod. Co., 704 F.3d 413, 431 (5th Cir.
2013) (“The [plaintiff] does not dispute that cleanup
efforts are and have been ongoing in the Gulf, and it
identifies no deficiency in those efforts.”); Stratford
Holding, LLC v. Foot Locker Retail Inc., No. CIV 12772, 2013 U.S. Dist. LEXIS 145120, *13 (W.D. Ok. Oct.
8, 2013) (“A consent order has been entered, which
plaintiff does not allege will fail to remedy the
contamination.”); Clean Harbors, Inc. v. CBS Corp., 875
F. Supp. 2d 1311, 1331, 1332 (D. Kan. 2012)
(“Problematically, however, [plaintiff] fails to specify
what ‘additional obligations’ it has in mind.” and
“[Plaintiff] does not specify how the relief it seeks as
against [defendant] would differ from or supplement
[its] own obligations under the RCRA permit.”); 87th
Street Owners Corp. v. Carnegie Hill-87th Street Corp.,
251 F. Supp. 2d 1215, 1219 (S.D.N.Y. 2002) (“And,
despite repeated requests from the Court, plaintiff has
been unable to describe a single action that defendant
could be ordered to take to reduce or eliminate any risk
its past actions may have caused, that is not already
being undertaken by DEC.”).5 In those cases, the courts
routinely find that they will not exercise their
5
Additionally, nearly all of GE’s cases involve the issue as to which
entity is required to pay for clean up costs, which is not an issue
under RCRA, and as a result, not a basis for an injunction.
App. 87
discretion in granting injunctive relief.6 But even these
types of cases recognize that citizen suits under RCRA
are routinely allowed to proceed despite parallel state
proceedings. Stratford Holding, LLC v. Foot Locker
Retail Inc., No. CIV 12-772, 2013 U.S. Dist. LEXIS
145120, *11 (W.D. Ok. Oct. 8, 2013). Indeed, Phoenix
Beverages rejects GE’s overly broad argument that the
existence of the Consent Order prevents this Court
from enjoining it:
“Defendants’ reliance on cases such as Rococo
Assocs., Inc. v. Award Packaging Corp., 803 F.
Supp. 2d 184, 192 (E.D.N.Y. 2011) for the
proposition that Plaintiffs cannot obtain relief
under RCRA because of DEC’s ongoing oversight
is misplaced. . . In those cases, a remedial
scheme already was underway or had concluded,
such that there was nothing more that the Court
could direct any party to do in furtherance of
RCRA’s goal of remediating the hazardous
waste. . . By contrast, Defendants remedial
investigation report was only submitted to the
DEC in November 2014, and has not yet
resulted in remedial measures. DEC
involvement does not by itself divest this Court
of jurisdiction to award relief under RCRA.
6
Most of the cases cited by the parties are “diligent prosecution”
bar cases. This is not surprising. The same type of facts that are
important to determine whether a state is diligently prosecuting
a case are the type of facts that relate to whether the citizen
plaintiffs are seeking injunctive relief of a different scope than the
state.
App. 88
Phoenix Beverages, Inc., 2015 U.S. Dist. LEXIS 16959
at *19, n. 5. And critically, in most (but not all) of the
cases by GE, remediation was occurring.
But the case before this Court is different. Without
doubt, here, much investigation and monitoring has
occurred. However, it is uncontested that GE has not
taken any remediation actions to clean up what this
Court has already found to be an imminent risk to the
health and environment. Plaintiffs adamantly assert
that the scope of the relief they seek is far different
that the remediation the IEPA will impose, and
plaintiffs have specifically identified the precise
mandatory injunction they seek. [Dkt. #121, Ex. 2.] As
a result, it is not surprising that plaintiffs rely upon
Interfaith Community Organization v. Honeywell
International, Inc., 399 F.3d 248 (3d Cir. 2005). In that
case, the district court held a bench trial to develop the
factual record. In Interfaith, the Third Circuit found
that the district court did not abuse its discretion in
imposing an injunction. Id. at 268. After finding
recalcitrance and delay, the district court fashioned
what it believed was an appropriate injunction under
the particular facts. Critically, the district court
specifically required injunctive relief that the state
agency may have thought was unnecessary. Id. at 266.
Indeed, the Third Circuit stated the following:
“Depending on the particular characteristics of a given
RCRA site, as found by a district court on a cases-bycase basis, particular types of injunctive relief may not
be circumscribed by arguments as to what an agency
might have done.” Id. at 267-68.
App. 89
During argument, GE’s counsel colorfully described
Interfaith as “the poster child for a recalcitrant
company challenging a federal judge,” and claimed that
Interfaith only authorized a federal court to enter an
injunction if the state proceeding was “a train wreck.”
Transcript of Report of Proceedings, August 18, 2016 at
p. 39, 40. In doing so, GE’s counsel rightfully attempted
to distinguish Interfaith on its facts. And GE correctly
stated that Trinity distinguished Interfaith. But
importantly, Trinity distinguished Interfaith on the
basis that the plaintiffs in Trinity had “not contended
that the remediation scheme put in place by the
Consent Order [was] deficient or ineffective.” Trinity,
735 F.3d at 140. That is precisely what plaintiffs in this
case have done. Plaintiffs have steadfastly asserted
that the Consent Order is deficient and ineffective.
Plaintiffs will be required to establish that assertion.
The parties have bickered back and forth about the
scope of the IEPA remediation. But the IEPA has not
yet authorized the RAP so no remediation has even
occurred, and this Court has not been provided the
ROR. Consequently, the Court is unable to determine
whether the scope of remediation plaintiffs seek is
similar to that found to be appropriate by the IEPA, let
alone warranted. Facts matter. Courts routinely
analyze the precise facts relating to the underlying
state consent order to compare those to the relief
citizen plaintiffs seek. Indeed, Group Against Smog
and Pollution provides a good example of a court
engaged in that fact intensive inquiry. Group Against
Smog and Pollution, 810 F.3d at 131-32. Similarly, the
court in Phoenix Beverages denied the motion for
preliminary injunction based on the facts before it;
App. 90
namely, that the plaintiffs had failed to present
evidence that the methane under the concrete slab of
the building was likely to ignite or migrated to an
enclosed space where ignition might occur so no
irreparable injury existed. Phoenix Beverages, 2015
U.S. Dist. LEXIS 16959 at *14.
V. ACTION PLAN
Accordingly, this Court finds that it has the
authority to enter mandatory injunctive relief. But this
Court also finds that before it can determine whether
plaintiffs have met their heavy burden to afford them
the injunctive relief they seek, the Court needs facts.
See Adkins, 644 F.3d at 496 (noting that on remand
factual record needed to be developed to determine
whether there was an overlap between state court suit
and federal citizen suit). Additionally, in recognizing
the careful balance between the statutory rights
authorized by RCRA on one side of the scale, and the
jurisprudential concerns behind the mootness doctrine
and the need to show irreparable harm on the other
side of the scale, the Court will defer for a reasonable
period of time to allow the RAP to be developed and
considered by the IEPA. This deferral will also allow
the Court the opportunity to compare the scope of the
remediation in the RAP and compare it to the scope of
the relief plaintiffs have already proposed so that it can
better determine if plaintiffs seek to supplement or
supplant the Consent Order. See Supporters to Oppose
Pollution, Inc. v. Heritage Group, 973 F.2d 1320, 1324
(7th Cir. 1992). As a result, the Court will take the
following actions.
App. 91
By October 31, 2016, the parties are to file a joint
status update regarding the Consent Order. Depending
on the status of the implementation of the Consent
Order, this Court currently intends to hold a hearing to
make factual findings as to the extent of the
contamination for which this Court already found GE
liable in an effort to determine whether injunctive
relief is appropriate. The factual hearing is scheduled
for February 23 (and 24, if necessary), 2017, at 10:00
a.m. On February 14, 2017, at 10:00 a.m., the Court
will hold a status concerning the scope of and what
witnesses will appear at that hearing. Lead counsel
must appear in person. The Court also invites the IEPA
and the Illinois Attorney General to send
representatives to the hearings to inform the Court of
the State’s position on the IEPA’s progress with the
Consent Order as well as its view, if any, as to whether
this Court should enter mandatory injunctive relief
requiring remediation and the scope of remediation.
See Adkins, 644 F.3d at 487 (“The district court may
certainly coordinate its efforts with the state courts,
and may use its sound discretion in doing so....”). To be
blunt, the Court is inviting an amicus brief or
presentation from the State on these issues. The
parties are ordered to provide a copy of this order to the
IEPA and the Illinois Attorney General’s Office. The
parties are also ordered to provide a copy of this order
to the Office of the Circuit Clerk for the Fifteenth
Judicial Circuit, Carroll County and the Honorable Val
Gunnarsson, Presiding Judge, Carroll County, Illinois
(the “Other Interested Entities”). The Other Interested
Entities are not required to take any action in response
to this order or to attend the February 14, 2017 status,
but are merely invited. Moreover, by providing notice
App. 92
and inviting the IEPA, the Illinois Attorney General’s
Office, and the Other Interested Entities, the Court is
not signaling what, if any, injunctive relief it might
order. At this point, the Court needs facts to determine
whether the extraordinary remedy of mandatory
injunctive relief is appropriate under the specific facts
of this case and if so, what that relief would entail. By
January 31, 2017, the parties are also ordered to file
with the Court a copy of the ROR as well as the final
and approved RAP, if it exists.
Entered: October 4, 2016
By:
/s/Iain D. Johnston
U.S. Magistrate Judge
Iain D. Johnston
App. 93
APPENDIX G
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
No. 13 CV 50348
Magistrate Judge Iain D. Johnson
[Filed February 17, 2016]
________________________________
LAJIM, LLC, PRAIRIE RIDGE
)
GOLF COURSE, LLC, LOWELL )
BEGGS, and MARTHA KAI
)
CONWAY,
)
Plaintiffs, )
)
v.
)
)
GENERAL ELECTRIC CO.,
)
Defendant, )
________________________________ )
MEMORANDUM OPINION AND ORDER
Plaintiffs LAJIM, Prairie Ridge Golf Course, Lowell
Beggs, and Martha Conway have sued General Electric
for injunctive relief and damages allegedly caused by
contaminated groundwater and soil under Beggs’s golf
course and adjacent home. The Court previously
granted General Electric’s motion for summary
judgment on the state-law claims, denied General
Electric’s motion for summary judgment under the
Resource Conservation and Recovery Act (“RCRA”),
App. 94
and granted the plaintiffs’ motion for summary
judgment on that claim, but only as to liability. Dkt. 88.
The Court has yet to resolve the plaintiffs’ claim for
injunctive relief under RCRA. Moreover, plaintiffs’
claims based on the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA),
42 U.S.C. §9601 et seq., were not addressed in this
round of summary judgment briefing.
Before the Court are motions filed in response to the
Court’s summary judgment order. First, General
Electric seeks certification to take an interlocutory
appeal and for an interim stay of proceedings in this
Court. Dkt. 89. Meanwhile, the plaintiffs filed a motion
for interim costs and fees. Dkt. 101. At the Court’s
request, the parties also filed a joint position paper on
how to proceed on the plaintiffs’ request for injunctive
relief under RCRA. Dkt. 99. Although the parties not
surprisingly disagree as to how proceed, the joint
status report was extremely helpful, and the Court
thanks counsel for their efforts in this regard. For the
reasons that follow, General Electric’s petition for
certification and for a stay [89] is denied, the plaintiffs’
motion for interim costs and fees [101] is denied, and
the plaintiffs’ request in the joint position paper for
appointment of a special master is denied without
prejudice.
I. INTERLOCUTORY APPEAL
General Electric seeks certification under 28 U.S.C.
§ 1292(b), which allows a party to appeal an
interlocutory order if the issue to be appealed
(1) involves a controlling question of law, (2) the
question of law is contestable (i.e. there is a substantial
App. 95
ground for difference of opinion), and (3) the immediate
appeal would materially advance the disposition of the
litigation. 28 U.S.C. § 1292(b); Ahrenholz v. Board of
Trustees of the Univ. of Ill., 291 F.3d 674, 675 (7th Cir.
2000). To appeal, a party must obtain authorization
from both the district and then the appellate courts. 28
U.S.C. § 1292(b); People Who Care v. Rockford Bd. of
Educ. Dist. No. 205, 921 F.2d 132, 134 (7th Cir. 1991).
The requirements balance the need for interlocutory
appeals in extraordinary instances with the interest in
keeping the court system efficient and not interjecting
on every motion presented at the district court.
Ahrenholz, 291 F.3d at 677. Under Ahrenholz, the
“denial of summary judgment is a paradigmatic
example of an interlocutory order that normally is not
appealable.” Id. at 676.
A. Controlling Question of Law
A controlling question of law involves “the meaning
of a statutory or constitutional provision, regulation, or
common law doctrine.” Id. Typically a question of law
is one that an appellate court can “decide quickly and
cleanly without having to study the record.” Id. 677.
The question is controlling “if its resolution is quite
likely to affect the further course of the litigation, even
if not certain to do so.” Sokaogon Gaming Enter. Corp.,
v. Tushie–Montgomery Assocs., Inc., 86 F.3d 656, 659
(7th Cir.1996).
General Electric contends that its proposed appeal
involves a controlling question of law, specifically,
whether RCRA prohibits a citizen suit if the state has
already sued the defendant under a state law similar
to or “in lieu of” § 6972(a)(1)(B) of RCRA program. See
App. 96
42 U.S.C. § 6972(b)(2)(C)(i). The Court generally agrees
that the issue is, in fact, a question of law. But the
plaintiffs argue that the question of law is not
“controlling” because it would not likely end litigation
if answered in the movant’s favor. Specifically, they
argue that to find in favor of General Electric, the
Court would also have had to find that General
Electric’s state suit was being diligently prosecuted, a
finding the Court explicitly declined to address. See 42
U.S.C. § 6972(b)(2)(C)(i). Because the Court never
addressed the diligent prosecution prong of the citizen
suit inquiry, General Electric would not prevail even if
the Seventh Circuit favored General Electric’s
argument regarding “in lieu of.” Thus, to further the
litigation, the diligent prosecution issue must first be
addressed, which would require the kind of focus on the
record that takes the issue beyond the scope of an
appropriate interlocutory appeal. See NMHG Financial
Services, Inc. v. Wickes Inc., No. 07 CV 2962, 2007 U.S.
Dist. LEXIS 77886, at **6-7 (N.D. Ill. Oct. 17, 2007)
(issues that require an analysis of the factual record
are not controlling questions of law for purposes of
certification of interlocutory appeals)
B. Contestable
A question of law is contestable if there is
substantial ground for a difference of opinion. 28 U.S.C.
§ 1292(b); Ahrenholz, 219 F.3d at 675. A substantial
ground for a difference of opinion exists if there is a
“‘difficult central question of law which is not settled by
controlling authority,’ and a ‘substantial likelihood’
exists that the district court’s ruling will be reversed on
appeal.” Republic Bank of Chicago v. Desmond, No. 13
App. 97
CV 6835, 2015 U.S. Dist. LEXIS 93020, at *11 (N.D. Ill.
July 17, 2015).
Although in Adkins v. VIM Recycling, Inc., 644 F. 3d
483, n.2 (7th Cir. 2011), the Seventh Circuit specifically
declined to address the “in lieu of” argument General
Electric now advances, the argument was addressed by
the district court in Mejdreck v. Lockformer Co., No. 01
CV 6107, 2002 U.S. Dist. LEXIS 14785 (N.D. Ill. Aug.
9, 2002). In Mejdreck, the court rejected the argument
that a state court lawsuit brought under the Illinois
Environmental Protection Act barred a citizen suit
under RCRA because the court noted that under the
statute only prior lawsuits brought under
§ 6972(a)(1)(B) of RCRA barred citizen suits. Moreover,
the approach taken in Mejdreck and adopted here
followed the rules of statutory construction that focus
on a statute’s plain meaning. Robinson v. Shell Oil Co.,
519 U.S. 337, 340 (1997) (“If the language at issue has
a plain and unambiguous meaning, then that meaning
controls.”). General Electric has not presented
authority rejecting that approach, and thus has not
established a substantial ground for a difference of
opinion.
C. Materially Advance the Disposition of the
Litigation
The final requirement of § 1292(b) is that the
interlocutory appeal would materially advance the
ultimate termination of the litigation. See 28 U.S.C.
§ 1292(b). General Electric contends that an
interlocutory appeal would materially advance the
litigation because a favorable decision from the
Seventh Circuit “will moot efforts by this court to now
App. 98
require the parties to engage in further proceedings to
determine whether injunctive relief is available.”
Motion [Dkt. 89 at 6]. However, as noted above, even if
General Electric succeeds on appeal on its “in lieu of”
argument, this Court must still address whether the
state proceeding has been diligently prosecuted. If the
plaintiffs are able to show that the state prosecution
has not been diligent, General Electric would not have
established that the citizen suit is barred, and the case
would proceed to the injunctive relief phase just as it is
now. Therefore, success on the “in lieu of” argument
would not, by itself, moot the RCRA claim. Moreover,
the parties sought summary judgment on only the
RCRA claim, meaning they must still litigate the
plaintiffs’ claims under CERCLA. . Because multiple
issues would remain unresolved, even if General
Electric succeeded on an interlocutory appeal, the
appeal would not materially advance the ultimate
termination of the litigation. Republic Bank, 2015 U.S.
Dist. LEXIS 93020, at *11 (the existence of other
unresolved issues means even a successful
interlocutory appeal would not significantly advance
the litigation).
Given that the question of law at stake has not been
shown to be controlling, and an interlocutory appeal in
favor of General Electric would not materially advance
the disposition of the litigation, the Petition for
Certification is denied, and the request for a stay
pending an interlocutory appeal is denied as moot.
App. 99
II. Motion for Interim Costs
The plaintiffs filed a motion for leave to file an
interim bill of costs and advised that they also plan to
file a motion for interim fees. In support, the plaintiffs
contend that under RCRA they are entitled to costs and
fees as “the prevailing or substantially prevailing
party.” 42 U.S.C. § 6972(e). They contend an additional
source of authority to award costs is found in Federal
Rule of Civil Procedure 54(d)(1), which allows costs to
the prevailing party. They argue that they are the
prevailing party under both RCRA and Rule 54 because
the Court granted their motion for summary judgment
as to liability under RCRA.
To be prevailing, a party must have obtained an
enforceable judgment, a court-ordered consent decree
based on a settlement, or an award of damages. See
Buckhannon Board & Care Home, Inc. v. West Virginia
Dep’t of Health & Human Resources, 532 U.S. 598, 60304 (2001). A plaintiff who obtained a judgment that he
was wronged but no “action (or cessation of action) by
the defendant that the judgment produces-the payment
of damages, or some specific performance, or the
termination of some conduct” is not a prevailing party.
Hewitt v. Helms, 482 U.S. 755, 7601 (1987) (“The real
value of the judicial pronouncement--what makes it a
proper judicial resolution of a ‘case or controversy’
rather than an advisory opinion--is in the settling of
some dispute which affects the behavior of the
defendant towards the plaintiff.”). The plaintiffs have
cited no case in which interim fees were awarded.
The plaintiffs proposed the bifurcated approach the
Court took under which the issue of injunctive relief
App. 100
will be separately addressed. Without injunctive relief,
the plaintiffs have only an order establishing liability,
not a judgment granting relief, the scope of which and
right to the parties will be briefing. Accordingly, the
plaintiffs are not yet “prevailing parties” entitled to
fees or costs. The Court notes that the case on which
the plaintiffs here relied and modeled their bifurcated
approach sought fees not after obtaining a judgment of
liability in 2002, but rather five years later in 2007,
after obtaining relief in the form of a court-ordered
environmental study. See Maine People’s Alliance v.
Holtrachem Manufacturing Co., No. 00 CV 69, U.S.
District Court, District of Maine, Dkts. 331 (plaintiff’s
memorandum in support of fees) and 356 (order
denying motion for fees). Notably, the court in Maine
People’s Alliance denied the motion as premature
because no final order had issued. Id. at Dkts. 331
(plaintiff’s memorandum in support of fees) and 356
(order denying motion for fees). Only now are the
parties in that case briefing the issue of costs and fees.
See Dkts. 842 and 847.
Accordingly, the plaintiffs here are not yet
prevailing parties, and therefore any request for
interim fees and costs is premature.
III. Special Master
In the parties’ joint position paper, the plaintiffs
propose appointment of a special master to assist the
Court in its decisions on their request for a preliminary
injunction. In support, the plaintiff cited a case in
which a special master was appointed, Interfaith
Comm. Org. v. Honeywell Int’l, Inc., 263 F.Supp.2d 796,
834 (D.N.J. 2003), but did not otherwise identify under
App. 101
what authority the Court could make such an
appointment, set out who the special master would be
or identify who would bear the costs. The parties and
Court discussed the issue further at oral argument,
including the possibility of utilizing the expertise of the
Illinois Environmental Protection Agency, which is
already involved in the ongoing state proceeding.
However, the Court is not persuaded at this time to
appoint a special master given the Court’s role as
ultimate finder of fact, as well as the financial burden
a special master would entail. Additionally, at this
time, the Court is not convinced that the issues in this
case are so complicated and time consuming that a
special master is warranted. Without doubt,
environmental litigation can be complicated and
protracted. However, much of this Court’s docket, as
well as the dockets of other federal judges around the
country, is complicated and protracted. But federal
judges should not run in fear from such cases, even
when the cases involve (gasp!) matters of science.
Accordingly, the request for a special master at this
point is denied without prejudice.
IV. Preliminary Injunction Proceedings
In light of the parties’ views expressed in their joint
status report as well as discussions during oral
argument, the Court shall proceed to the preliminary
injunction phase as follows. At the parties’ request, the
Court shall proceed with briefing. As the Court
previously concluded in its decision on the motions for
summary judgment, to obtain injunctive relief under
RCRA the plaintiffs must establish not only liability,
but must also satisfy the traditional elements of
App. 102
injunctive relief even where a statute specifically
authorizes that type of relief. United States v.
Bethlehem Steel Corp., 38 F.3d 862, 867 (7th Cir. 1994)
(citing Amoco Prod. Co. v. Village of Gambell, 480 U.S.
531 (1987)). Thus, the plaintiffs must also show (1) an
irreparable injury, (2) an inadequate remedy at law,
(3) the balance of hardships weighs in favor of an
injunction, and (4) the public interest would not be
disserved by a permanent injunction. Maine People’s
Alliance & Natural Resources Defense Council v.
Mallinckrodt, Inc., 471 F.3d 277, 296 (1st Cir. 2006).
The parties need not brief the underlying issue of
whether these elements must be met. The Court
recognizes that it has changed its position in regard to
the need for briefing on this issue. The plaintiffs have
preserved their record with regard to this issue so no
further briefing is necessary. The parties efforts and
the Court’s time are better spent in addressing whether
injunctive relief is available and required under the
facts of this case, and if so, the extent of that relief.
Briefing will therefore be limited as follows:
(1) whether the plaintiffs can establish the traditional
required elements for injunctive relief; (2) whether the
plaintiffs’ request for relief is moot because of the
Consent Order entered in the state proceeding; and
(3) the possibly related issue of whether this Court can
contradict or second-guess determinations made by the
IEPA or the court in the state proceeding. The
plaintiffs’ memorandum in support of injunctive relief
shall be filed by 3/11/2016, General Electric shall
respond by 4/1/2016, and the plaintiffs shall reply by
4/15/2016. If oral argument is required, the Court shall
set a date for a hearing. Otherwise, the Court will rule
by mail.
App. 103
V. Conclusion
For the reasons given, the motion for certification
and an interim stay [89] is denied, the motion for
interim fees and costs [101] is denied, the request for
appointment of a special master is denied without
prejudice, and briefing limited to the issues identified
above shall proceed as follows: plaintiffs’ memorandum
shall be filed by 3/11/2016, General Electric’s response
shall be filed by 4/1/2016, and the plaintiffs’ reply shall
be filed by 4/15/2016. The Court urges the parties to
consider the possible benefits of a settlement
conference, perhaps one coordinated with the parties to
the state court proceeding between the Illinois
Environmental Protection Agency and General Electric.
If they believe a settlement conference would be
beneficial, they may express their interest by jointly
contacting the Court’s operations specialist at the email address on the Court’s website.
Date: February 17, 2016
By:
/s/Iain D. Johnston
Iain D. Johnston
United States Magistrate Judge
App. 104
APPENDIX H
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
No. 13 CV 50348
Magistrate Judge Iain D. Johnson
[Filed December 18, 2015]
________________________________
LAJIM, LLC, PRAIRIE RIDGE
)
GOLF COURSE, LLC, LOWELL )
BEGGS, and MARTHA KAI
)
CONWAY,
)
Plaintiffs, )
)
v.
)
)
GENERAL ELECTRIC CO.,
)
Defendant, )
________________________________ )
MEMORANDUM OPINION AND ORDER
Plaintiff Lowell Beggs contends that the golf course
he bought in 2007 contains more hazards than just
bunkers and a creek. Beggs alleges that the course also
has toxic hazards migrating through the groundwater
and soil under the course and his adjacent home. He
and his business partners sued General Electric under
multiple environmental statutes seeking a court order
requiring General Electric to clean up and pay for the
damage caused by the contaminants from its former
App. 105
plant. The parties have each moved for partial
summary judgment on one of the environmental
claims, and General Electric has moved for partial
summary judgment on all of the state-law claims. For
the reasons that follow, General Electric’s motion for
summary judgment on the state law claims [48] is
granted, its motion for summary judgment on the
federal environmental claim [5
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