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Lajim, LLC v. General Electric Co.

United States District Court, N.D. Illinois, Western Division

October 4, 2016

LAJIM, LLC, et al. Plaintiffs,


          Iain D. Johnston U.S. Magistrate Judge

         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.

         I. BACKGROUND

         A. Site History[1]

         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, 2-dichloroethane (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 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 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 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 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. ยง 9607(a) (cost recovery) ...

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