7th Circuit clarifies ‘imminent and substantial harm’ under RCRA
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March 19, 2019
7th Circuit clarifies ‘imminent and substantial harm’ under RCRA

A panel of the U.S. Court of Appeals for the 7th Circuit disagreed with a district court on how much harm two citizens had to have suffered from polychlorinated biphenyls (PCBs) on their property to prevail in a citizen suit brought against the party responsible for the contamination. 

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The district court ruled that the simple presence of PCBs on the plaintiffs’ property was insufficient evidence of injury under the Resource Conservation and Recovery Act (RCRA) and the Toxic Substances Control Act (TSCA). According to the district court, the plaintiffs’ claim was weakened because they could not prove that the contamination resulted in physical illness.

Fielding an appeal of that ruling, the 7th Circuit panel said the district court set the bar unnecessarily high for the plaintiffs to show a RCRA violation. The panel denied other parts of the plaintiffs’ appeal, but the judges clearly believed that their primary job in the case was to clarify the level of evidence needed to prove a citizen suit under RCRA and TSCA. Given that their interpretation of this aspect of the laws differed substantially from that of the district court, the panel vacated the district court’s order and remanded the case for further proceedings consistent with its opinion.

Demolished transformer factory

The two plaintiffs own three houses on the same block in Watertown, Wisconsin. Also on the block was an abandoned factory where electrical power transformers with PCBs were built until about 1971. The EPA banned PCBs, which the court identified as carcinogens, in 1979. The owner of the factory shut down all production in 2005 and determined several years later that the structure was contaminated with PCBs. A cleanup plan was approved by the EPA and Wisconsin’s Department of Natural Resources (DNR).

Once demolition began, the plaintiffs complained to the local government that dust from the operation was drifting onto their properties. The DNR took samples and confirmed the presence of PCBs at the residences. In 2015, the factory owner submitted a plan to remediate the contamination. At the same time, the plaintiffs sued in the district court under both RCRA and TSCA and also brought a host of state-law claims under supplemental jurisdiction, including strict liability, negligence, trespass, and negligent infliction of emotional distress.

The plaintiffs retained several expert witnesses. One is a professional engineer who testified that the defendant deviated from the standard methods used when demolishing PCB-contaminated buildings, thereby causing the contamination. Also, a public health physician provided his views on ways in which the plaintiffs’ properties might have been exposed to PCBs and the potential health effects of continuing exposure. Although the district court admitted the vast majority of the physician’s report, it struck the physician’s conclusion that there is no “safe” level of exposure to PCBs that does not increase the risk of disease” as unsupported by cited medical studies.

Evidence of health problems

The main finding by the district court was that the plaintiffs failed to present any admissible evidence to support their RCRA and TSCA claims.

“The district court’s opinion operates under the assumption that RCRA plaintiffs must demonstrate ‘an imminent and substantial danger with evidence of health problems they have already suffered,’” the panel states. “The district court set a high bar for RCRA plaintiffs holding that ‘it doesn’t follow necessarily that there is an imminent and substantial risk of harm simply because there is some amount of PCBs on the property.’”

‘May present’ endangerment

The panel found two related weaknesses in the district court’s opinion.

  • First, the district court’s opinion appears to conflict with the actual language in RCRA Section 6972, which states that “any person may commence a civil action against any person … 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.” The panel added the emphasis. Given that neither party disputed that the defendant’s demolition resulted in contamination of the plaintiffs’ properties, the critical question was how to determine whether the alleged contamination “may present an imminent and substantial endangerment to health.” The panel conceded that the 7th Circuit did not have extensive experience ruling on this matter, citing a single 2002 case in which it concluded that “[i]mminence does not require an existing harm, only an ongoing threat of future harm.”
  • Second, the district court avoided citing rulings by multiple circuit courts that adopted and further developed the same interpretation of Section 6972. (“We now join those courts and explicitly embrace the core content of their interpretation,” said the panel.) Instead, the district court “cursorily adopted a passing statement we made over 25 years ago that the ‘EPA’s accepted safe level of PCBs in the environment is 50 parts per million (ppm),’” said the panel. Under TSCA, the EPA established regulations that apply to any substance, mixture, or item with a concentration of 50 ppm PCBs or greater. There is no indication that the plaintiffs provided the district court with proof that PCB contamination on their property exceeded 50 ppm.

The panel counters this part of the district court’s ruling in two ways. First, the panel noted that RCRA does not require that plaintiffs demonstrate contamination above some agency-derived threshold level of concentration. “It merely requires that they show that contaminants on the property are seriously dangerous to human health or will be, given prolonged exposure over time.” Second, the EPA’s regulation simply states that industrial equipment and other wastes contaminated at levels above 50 ppm require special procedures for their storage and disposal. “It does not unequivocally state that PCBs concentrated at levels lower than 50 ppm are safe for human exposure,” the panel wrote. “[N]or [does] the EPA regulation stand for the proposition that PCBs concentrated at forty-nine ppm on residential property do not present a substantial endangerment to the health of the residents. That is especially apparent when we consider that the same set of regulations distinguishes between low[-] and high-occupancy areas and requires that, in high-occupancy areas, bulk PCB remediation waste, such as soil, be cleaned up to levels of concentration at or below 1 ppm.”

The panel emphasized that it was not suggesting that all the plaintiffs must do is to show that some bit of soil on their properties tests positive for PCBs above 1 ppm.

“Of course, there must be accompanying evidence that establishes some connection between the existing contaminants and some imminent and substantial endangerment to health,” the panel said. “But the [defendants] attempted to provide such evidence, and the district court held the bar higher than necessary under RCRA’s standard.”

Reevaluate physician’s report

The panel said that on remand, the district court should reevaluate the report of the plaintiffs’ public health physician and determine in light of PCB safety as established by RCRA and TSCA and their implementing regulations whether the report, if admissible, demonstrates that a substantial and imminent threat to the plaintiffs may be present.

The panel’s opinion in Liebhart v. SPX Corporation is here.

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