United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE.
William and Nancy Liebhart own several properties, including
their former residence, that are adjacent to an old
industrial site that had been used to manufacture various
types of equipment for several decades. After manufacturing
ceased, the site lay dormant for several years until the
current owner, defendant SPX Corporation, decided to demolish
the structures on it in accordance with a plan approved by
the Environmental Protection Agency. SPX hired defendant
Apollo Dismantling Services, Inc. to perform the demolition
and defendant TRC Environmental Corporation as the
Liebharts allege that dust containing polychlorinated
biphenyls, or PCBs, settled on their property as a result of
the demolition and caused the Liebharts to suffer from
various health problems, such as chloracne. The Liebharts
assert claims under the Resource Conservation and Recovery
Act, the Toxic Substances Control Act, and several theories
of state common law.
than a dozen motions are ready for review, including motions
for summary judgment filed by both sides. The court will
grant defendants' motions for summary judgment and deny
the Liebharts' motion as they relate to the
Liebharts' federal claims. The reason is a failure of
proof. The Liebharts simply have not adduced evidence that
defendants have violated the relevant standards under the
RCRA or TSCA. Because the Liebharts rely on 28 U.S.C. §
1367 as the basis for exercising jurisdiction over their
state law claims, the court will dismiss those claims under
§ 1367(c)(3) without prejudice to the Liebharts'
refiling them in state court.
also seek to exclude the opinions of two of the
Liebharts' experts, David Carpenter and John Woodyard.
The court will grant these motions in part for the reasons
explained in the opinion and otherwise deny them as moot as
to opinions that are not relevant to the summary judgment
the Liebharts seek to amend their complaint to add new claims
and to supplement Carpenter's expert report to include
opinions about the new claim. The court will deny these
motions as untimely, unfairly prejudicial, and futile. The
court will deny all other motions as moot.
court will provide some undisputed background facts for
context. More facts related to the merits of the
Liebharts' claims will be discussed in the opinion.
Liebharts own the properties at 1113 South Third Street, 1115
South Third Street, 1117 South Third Street, and 1129 South
Third Street in Watertown, Wisconsin. Until August 2016, the
Liebharts resided at 1115 South Third Street.
Liebharts' properties are adjacent to a site at 304 Hart
Street, which is currently owned by defendant SPX. The site
is approximately 5.3 acres in size and was occupied by an
approximately 174, 000 square foot manufacturing facility and
office building. The facility was used for industrial
manufacturing as far back as the 1920s, making items such as
heat-treating furnaces, transformers, and hot plates. The
manufacturing of transformers ceased in 1971 and all other
operations ceased in 2005.
2009, SPX retained defendant TRC to conduct a “Phase I
Environmental Site Assessment” of the former
manufacturing facility. SPX also retained Delta Consultants
to evaluate the potential presence of PCBs on the concrete
floor of the Facility. In December 2010, Delta published its
findings that the concrete in the facility contained PCBs.
around November 2014, TRC, on behalf of SPX, submitted a plan
to the EPA to demolish the site at 304 Hart Street.
(Defendants do not explain what was happening between 2010
and 2014). In February 2015, the EPA approved a revised
version of the plan. The demolition was completed by the end
of March 2015.
later conducted a sampling analysis of some of the soil in
both the demolition site and the Liebharts' property.
Some of the soil from both sites contained varying levels of
PCBs. In September 2016, SPX submitted a remediation plan to
the Wisconsin Department of Natural Resources for the purpose
of removing contaminated soil. After SPX made multiple
revisions, the department approved SPX's sampling plan.
SPX is waiting for permission from the Liebharts to conduct
the necessary sampling on their property.
Resource Conservation and Recovery Act creates a private
right of action against anyone “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)(B). The Toxic Substances Control Act
authorizes suits against someone “who is alleged to be
in violation of this chapter or any rule promulgated
under” certain sections of the TSCA. 15 U.S.C. §
2619(a)(1). Neither statute authorizes an award of damages in
citizen suits like this one. Abreu v. United States,
468 F.3d 20, 32 (1st Cir. 2006); Cudjoe ex rel. Cudjoe v.
Dep't of Veterans Affairs, 426 F.3d 241, 248 n.5 (3d
raise two arguments as to each claim, one argument that
applies to each claim individually and one that applies to
both. As to the RCRA, defendants say that the Liebharts have
not adduced evidence that there is an imminent and
substantial danger to their health or the environment. As to
the TSCA, defendants say that the Liebharts have failed to
show that there is an “ongoing violation, ” which
is required to obtain relief. Gwaltney of Smithfield,
Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 57
(1987). And as to both claims, defendants say that injunctive
relief is premature because they already have a remediation
plan in place and that plan has been approved by the
Wisconsin Department of Natural Resources. The court will
consider each argument in turn.
Resource Conservation and Recovery Act
undisputed that the soil in the Liebharts' property
contains varying levels of PCBs according to testing
conducted by SPX. But that fact, defendants say, is not
sufficient to support a claim under the RCRA for two reasons:
(1) the Liebharts have failed to adduce evidence that any of
the PCBs discovered on their property are the result of the
demolition; and (2) even if some of the PCBs are the result
of the demolition, the Liebharts have failed to adduce
evidence that the level of PCBs attributable to the
demolition pose an “imminent and substantial”
threat of harm.
the first reason, both sides assume that none of the
defendants can be held liable for any PCB contamination on
the Liebharts' property that occurred before the
demolition began, so the court will make the same assumption.
According to defendants' expert, Russell Keenan, the PCBs
in the soil are not the result of the demolition project but
of many decades of sharing close quarters with an industrial
site that used PCBs. Dkt. 116, at 23. Neither side provided
sampling evidence of the Liebhart's property taken before
the demolition started, so a direct before-and-after
comparison is impossible.
support his conclusion that the PCBs are not from the
demolition, Keenan relied on the following information: (1)
surface soil samples taken on the demolition site itself had
lesser concentrations of PCBs than the soil on the
Liebharts' property, id. at 16-17; (2) the
Liebharts' soil contained PCBs even beneath the
Liebharts' asphalt driveway, which would have provided a
barrier against recently deposited PCB dust, id. at
21; (3) the greatest concentrations of PCBs were found at
greater depths, making it improbable that the PCBs were of
recent origin, id. at 23; (4) the highest
concentrations of PCBs in the surface soil were in areas that
the Liebharts admitted they had filled in with subsurface
soil for various yard projects in the years before the
demolition began, id. at 24.
Liebharts do not directly challenge any of the information
that Keenan cites. Their own causation expert, John Woodyard
devotes most of his report criticizing the demolition plan
and the steps taken to avoid propagation of PCBs. This
appears to be his main area of expertise, as he is an
engineer with experience with site-remediation plans. But the
Liebharts' also rely on him to establish the causal link
between the demolition and the contamination of the
Liebharts' property, and his treatment of this topic is
less than a full page of his report. Dkt. 117, at 8-9. The
gist of his opinion is that the demolition ...