Schmucker v. Johnson Controls, Inc.

9 F.4th 560

Ronald SCHMUCKER, et al., Plaintiffs-Appellants,

v.JOHNSON CONTROLS, INC., and Tocon Holdings, LLC, Defendants-Appellees.

No. 20-3432

United States Court of Appeals, Seventh Circuit.

Argued May 26, 2021

Decided August 16, 2021

Thomas A. Barnard, Attorney, Taft Stettinius & Hollister LLP, Indianapolis, IN, for Plaintiffs-Appellants.

Brian E. Casey, Attorney, Kelly Hartzler, Barnes & Thornburg LLP, South Bend, IN, Thomas J. Hall, Attorney, Lauren Lee, Attorney, Norton Rose Fulbright US LLP, New York, NY, for Defendant-Appellee.

Tocon Holdings LLC, Georgetown, IN, Pro Se.

Elizabeth Tisher, Attorney, City of Chicago Law Department, Chicago, IL, for Amicus Curiae City of Chicago.

Kelley A. Gandurski, Attorney, City of Evanston Law Department, Evanston, IL, for Amicus Curiae City of Evanston, Illinois.

Caroline Leary, Attorney, Environmental Working Group, Washington, DC, for Amicus Curiae Environmental Working Group.

Before Easterbrook, Rovner, and Hamilton, Circuit Judges.

Easterbrook, Circuit Judge.

Between 1937 and 2006 Johnson Controls and a predecessor operated a manufacturing plant in Goshen, Indiana. The plant used chlorinated volatile organic compounds in its degreasing agents, some of which reached the groundwater. Chlorinated organics slowly break down by losing chlorine atoms. The version with three chlorine atoms, known as trichloroethylene or TCE, is a carcinogen. The end product with no chlorine atoms, ethene, is harmless. The breakdown process can take decades, and a plume of TCE remains in water under part of Goshen. Plaintiffs contend in this suit under 42 U.S.C. § 6972(a), part of the Resource Conservation and Recovery Act (RCRA or the Act), that Johnson Controls and Tocon Holdings (which bought the land in 2007) must do more to reduce the amount of TCE in the environment. For simplicity we refer to both defendants as Johnson Controls.

Johnson Controls, under the supervision of Indiana's Department of Environmental Management (IDEM or the Department) started remedial operations while the plant was still operating. Johnson Controls worried that houses above the plume might draw contaminated water from wells, so in 1992 it ensured that all of these houses were connected to Goshen's water mains, and Goshen ordered all private wells closed. Then it began a "pump and treat" procedure, which ran from 1994 to 2012. It pumped groundwater out of the affected areas, treated it to remove TCE and other contaminants, and injected the water back into the ground. This system was discontinued only when treatment did not further reduce levels of TCE in the water.

The possibility that contamination might reach the aquifer from which Goshen itself draws water was investigated. An expert found that Goshen's municipal water comes from a direction different from the contaminated plume. That study has been repeated several times and the finding confirmed. To date there is no sign of TCE in the public water supply. Nor has any TCE been found in Goshen's high school, which sits just outside the affected zone.

But TCE did appear in the air over the plume—TCE is a volatile organic compound, after all. Johnson Controls installed vapor mitigation systems in all houses whose air showed unsafe levels of TCE. Like radon, gaseous TCE can enter a house through cracks in the foundation or basement walls; outside it mixes with and is diluted to insignificance by the air, but inside a house TCE can reach dangerous levels. The sort of system used to prevent a buildup of radon works with TCE too. Foundations are inspected and patched to seal cracks. Fans create an area under the foundation with pressure less than the air inside the house. TCE and other gasses migrate to the outside of the house, where they are dispersed, rather than entering through cracks.

After these systems were installed, a process completed in 2011, not a single house registered TCE levels exceeding the safe threshold set by the Department, and many tests have found no detectable TCE. One expert concluded that if 10 residents in houses over the plume stayed indoors constantly for 70 years, the probability of even one excess cancer is less than 0.02%. And no one stays in an unventilated house that long. A different expert estimated that, under realistic assumptions, it would be a million years before Goshen saw a statistically significant risk of cancer caused by TCE. And long, long before then, all of the TCE will have changed to ethene naturally.

The facts we have just stated come from extensive findings made by the district court after a bench trial. 477 F. Supp. 3d 791 (N.D. Ind. 2020). The opinion contains a wealth of detail that we have omitted in order to concentrate on the basics. Plaintiffs (whose three homes are located above the plume) do not contend that any of the factual findings is clearly erroneous—but they nonetheless argue that the Act requires Johnson Controls to do more.

The Act permits citizen suits in two pertinent circumstances:

(1)(A) against any person ... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter; or

(B) 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[.]

42 U.S.C. § 6972(a). Plaintiffs say that Johnson Controls is in violation of § 6972(a)(1)(A) because it has not complied with the Environmental Protection Agency's closure regulation, 40 C.F.R. § 265.111. They contend that Johnson Controls is in violation of § 6972(a)(1)(B) because the risk to which they are exposed is a form of "endangerment".

Only the second of these contentions went to trial. The district judge granted summary judgment to Johnson Controls on the first after finding that it does not even arguably violate "any permit, standard, regulation, condition, requirement, prohibition, or order". 2019 WL 718553 at *––––, 2019 U.S. Dist. LEXIS 26657 at *45–86 (N.D. Ind. Feb. 19, 2019).

That conclusion is sound. The regulation on which plaintiffs rely says that a hazardous site must be closed in a manner that:

(a) Minimizes the need for further maintenance, and

(b) Controls, minimizes or eliminates, to the extent necessary to protect human health and the environment, post-closure escape of hazardous waste, hazardous constituents, leachate, contaminated runoff, or hazardous waste decomposition products to the ground or surface waters or to the atmosphere, and

(c) Complies with the closure requirements of [other regulations promulgated under the Act].

40 C.F.R. § 265.111. The district judge thought the suit premature, because the Johnson Controls site is a work in progress. And he added that plaintiffs have not pointed to "any permit, standard, regulation, condition, requirement, prohibition, or order" that Johnson Controls has violated. It can't have violated § 265.111 because that regulation lacks content. It just says that polluters must clean up "to the extent necessary" and comply with other requirements. Section 265.111 does not impose any requirements of its own.

Plaintiffs recognize that the regulation "does not define what constitutes clean closure or set clean-up levels that are ‘protect[ive] of human health.’ " Brief at 23. To furnish what the regulation omits, plaintiffs turn to a memorandum entitled Risk-Based Clean Closure that the EPA's staff issued on March 16, 1998. This does not get plaintiffs anywhere, however. The...