United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON, District Judge
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.
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.
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. 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.
reasons explained below, the court will deny all of these
Liebharts allege the following facts in their complaint. Dkt.
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.
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.
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.)
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.
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.
Liebharts collected a sample of the discolored snow for
laboratory analysis, which also showed the presence of PCBs.
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.
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.
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