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Liebhart v. SPX Corp.

United States District Court, W.D. Wisconsin

March 30, 2018

WILLIAM LIEBHART and NANCY LIEBHART, Plaintiffs,
v.
SPX CORPORATION, TRC ENVIRONMENTAL CORPORATION, and APOLLO DISMANTLING SERVICES, INC., Defendants.

          OPINION & ORDER

          JAMES D. PETERSON DISTRICT JUDGE.

         Plaintiffs 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 environmental consultant.[1]

         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.[2] The Liebharts assert claims under the Resource Conservation and Recovery Act, the Toxic Substances Control Act, and several theories of state common law.

         More 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.

         Defendants 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 motions.

         Finally, 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.

         BACKGROUND

         The 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.

         The 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.

         The 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.

         In 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.

         In or 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.

         SPX 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.

         ANALYSIS

         The 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 Cir. 2005).[3]

         Defendants 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.

         A. Resource Conservation and Recovery Act

         It is 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.

         As to 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.

         To 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.

         The 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 ...


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