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Liebhart v. Spx Corp.

United States District Court, W.D. Wisconsin

November 2, 2017


          OPINION & ORDER

          JAMES D. PETERSON, District Judge

         This case arises out of the demolition of an old industrial facility in Watertown, Wisconsin. Plaintiffs William Liebhart and Nancy Liebhart, who lived on property adjacent to the facility, allege that the demolition contaminated the surrounding area with polychlorinated biphenyls, or PCBs, causing the Liebharts to suffer from a variety of health problems, including acute sinusitis, bronchitis, conjunctivitis, vertigo, skin infections, and swollen lymph nodes. The Liebharts are suing SPX Corporation (the owner of the site), TRC Companies, Inc. (the firm that oversaw the demolition), and Apollo Dismantling Services, LLC (the company that conducted the demolition) under various federal and state law theories.

         Defendant SPX has filed a motion to dismiss many of the Liebharts' claims on the following grounds: (1) the Resource Conservation and Recovery Act (RCRA) does not regulate the disposal of PCB waste; (2) the Liebharts do not state a claim under the Toxic Substances Control Act (TSCA) because they are not alleging that the demolition is ongoing; (3) SPX cannot be held strictly liable because the demolition does not meet the requirements for an "abnormally dangerous activity" under Wisconsin law; and (4) the Liebharts' allegations do not meet the requirements for bringing a claim for negligent infliction of emotional distress. Dkt. 35.

         Defendant TRC has adopted SPX's motion as its own and has filed its own motion to dismiss the Liebharts' claim for strict liability. Dkt. 31. None of the defendants seek dismissal of the Liebharts' claims for negligence, nuisance, or trespass.[1] For their part, the Liebharts have filed a motion for leave to amend their complaint to include a request for civil penalties under the RCRA. Dkt. 49.

         For the reasons explained below, the court will deny all of these motions.


         The Liebharts allege the following facts in their complaint. Dkt. 2.

         Plaintiffs William and Nancy Liebhart own three properties adjacent to a former industrial facility in Watertown, Wisconsin. They lived in one of these properties until August 2016.

         The facility was originally a woodworking factory. In the 1950s it was used to manufacture electrical transformers, which commonly included PCBs at the time. Both the International Agency for Research on Cancer and the Environmental Protection Agency have concluded that exposure to PCBs may have harmful effects on humans, including certain kinds of cancer, respiratory tract symptoms, gastrointestinal effects, mild liver effects, and effects on the skin and eyes such as chloracne, skin rashes, and eye irritation.

         In 1998, defendant SPX became the owner of the facility, but by then the facility was not operational and SPX allowed it to lay idle. In 2010, laboratory analyses showed that approximately 20, 650 square feet of concrete contained PCBs at concentrations greater than 10 parts per million and as much as 3, 310 parts per million. (The Liebharts say that the "residential standard" for PCBs is .22 ppm.)

         In December 2014, SPX submitted a plan to the EPA for a proposed demolition of the facility. Under defendant TRC's supervision, defendant Apollo would remove the contaminated concrete and demolish the facility. In February 2015, the EPA approved the plan, subject to three conditions: 1) within 60 days of completion of the project, SPX would submit a completion report, including verification sampling results and other data; 2) within 60 days of completion of the project, SPX would file a deed restriction prohibiting the use of the property for residential purposes; and 3) SPX would give the EPA 45 days advance notice before transferring ownership of or responsibility for the site.

         Shortly after the demolition began, the Liebharts observed plumes of dust coming from the demolition site as well as discolored snow on their properties. William Liebhart was diagnosed with impetigo, acute sinusitis, and lymphadenopathy. Nancy Liebhart was diagnosed with conjunctivitis and bronchitis, and vertigo. The family physician attributed these aliments to the exposure to the demolition dust.

         The Liebharts collected a sample of the discolored snow for laboratory analysis, which also showed the presence of PCBs.

         The demolition continued and the Liebharts continued seeing plumes of dust drifting onto their property. Oil leaking from a transformer drained into the Liebharts' soil. A laboratory analysis showed that the soil contained over 200 ppm of PCBs.

         The Watertown Health Department confirmed "the existence of uncontrolled PCB-contaminated concrete" on the site, id., ¶ 40, and notified the Wisconsin Department of Resources, which notified defendant TRC. In April 2015, TRC collected soil samples from the Liebharts' properties. The test results showed that soil from the Liebharts' garden was about 5.5 ppm of PCBs, 25 times higher than the residential standard. Much of the food that the Liebharts consumed had come from that garden. Defendants obtained more soil samples in May 2015, November 2015, and January 2016, all of which showed PCBs in the soil.

         In August 2016, William Liebhart suffered from a rash on his face, which his physician diagnosed as chloracne, a condition associated with exposure to PCBs. The Liebharts decided to ...

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