Schmucker v. Johnson Controls, Inc.

477 F.Supp.3d 791

Ronald SCHMUCKER, et al., Plaintiffs,

v.JOHNSON CONTROLS, INC., et al., Defendants.

Case No. 3:14-cv-1593 JD

United States District Court, N.D. Indiana, South Bend Division.

Signed August 10, 2020

Andrielle M. Metzel, Michael P. O'Neil, Rodney L. Michael, Jr., Thomas A. Barnard, Benjamin A. Wolowski, Taft Stettinius & Hollister LLP, Indianapolis, IN, John D. Ulmer, Yoder Ainlay Ulmer & Buckingham LLP, Goshen, IN, Mark T. Hayden, PHV, Pro Hac Vice, Taft Stettinius & Hollister LLP, Cincinnati, OH, for Plaintiffs.

Daniel W. Glavin, Michael E. O'Neill, O'Neill McFadden & Willett LLP, Schererville, IN, Thomas Joseph Hall, PHV, Lauren T. Lee, PHV, Allison L. Silverman, PHV, Andrew E. Skroback, PHV, Stacey L. Trimmer, PHV, Norton Rose Fulbright US LLP, New York, NY, for Defendants.

Tocon Holdings LLC, Georgetown, IN, pro se.

OPINION AND ORDER

JON E. DEGUILIO, Chief Judge

Johnson Controls, Inc. used to operate a manufacturing facility in Goshen, Indiana. Over the years, TCE and other chemicals were released into the ground at the facility. This contaminated the soil at the site and also created a plume of contaminated groundwater extending into an adjacent residential neighborhood. When the groundwater contamination was discovered off-site about thirty years ago, all of the homes nearby were connected to city waterlines to prevent exposure to contaminated water from private wells. About ten years ago, Johnson Controls learned that vapors from the contamination were entering the indoor air in some homes in the neighborhood, so vapor mitigation systems were installed in those homes. Not a single indoor air sample has exceeded the applicable screening level since. Johnson Controls regularly monitors the contamination under the supervision of the state agency and has undertaken several remediation activities, but contamination still exists both on- and off-site.

Five individuals who live in or own homes by the site filed this suit under the Resource Conservation and Recovery Act. They claimed that Johnson Controls was in violation of its obligations under that Act and that the contamination may present an endangerment to their health and the environment. The Court previously granted summary judgment on the "violation" claim but held a bench trial on the "endangerment" claim. The Court now sets forth its findings of fact and conclusions of law on that claim.

For the reasons that follow, the Court finds in favor of Johnson Controls. Though contamination still exists on- and off-site, the Plaintiffs have not shown that the contamination may present an endangerment that is both imminent and substantial. The groundwater contamination does not pose a threat to the city wellfield, nor is there any non-speculative threat to drinking water through private wells or city waterlines. The contamination does not endanger the environment, either. As to vapor intrusion, any endangerment that may have existed has already been handled through the installation of vapor mitigation systems. Sampling data and other lines of evidence prove that those systems are successfully preventing any threat to health through exposure to vapors, just as they were meant to do, and just as they are counted on to do at many other sites.

The Plaintiffs express understandable frustration that contamination still exists in their neighborhood after all these years. Injunctive relief is only available on this claim when the contamination may present an imminent and substantial endangerment, though. Otherwise, the Act places responsibility on the state or federal agency to oversee remediation. The Indiana Department of Environmental Management is overseeing Johnson Controls’ ongoing remediation through its Voluntary Remediation Program. The Plaintiffs have submitted comments to the agency in response to Johnson Controls’ most recent remediation plan, and the agency is still evaluating that plan. But because the Plaintiffs have not proven that the contamination may present an imminent and substantial endangerment to health or the environment, no injunctive relief through the Act's citizen-suit provision is warranted.

I. FINDINGS OF FACT

A. History of TCE Contamination

This case involves contamination by chlorinated volatile organic compounds (cVOCs). These compounds consist of an ethene molecule and a number of chlorine molecules. As the compounds degrade, they lose one chlorine molecule at a time, producing daughter products. Tetrachloroethylene, also known as perchloroethylene or PCE, is composed of four chlorine molecules. As PCE degrades and loses one chlorine molecule, it becomes trichloroethylene, or TCE. TCE is the primary contaminant in question here, and is the only one upon which the Plaintiffs’ endangerment-to-health claim is based. TCE was commonly used in industrial settings as a degreaser. It is a known carcinogen and can also produce a variety of toxic effects. As TCE loses chlorine molecules, it becomes cis-1,2 dichloroethene (DCE) (two chlorines), and then vinyl chloride (one chlorine). Stripping away the last chlorine produces ethene, which is harmless.

From 1937 until 2006, Johnson Controls and its predecessor operated a manufacturing facility in Goshen, Indiana. During its operations at that facility, Johnson Controls manufactured control devices for measuring temperature, pressure, and liquid flow that were used in commercial heating, refrigeration, and environmental control systems. Certain of those manufacturing processes entailed the use of a vapor degreaser that used the solvent TCE, though Johnson Controls ceased using TCE at the site by 1998. Johnson Controls was a generator of hazardous waste under the Resource Conservation and Recovery Act, and it contributed to the handling, storage, treatment, transportation, or disposal of solid and hazardous waste.

After the passage of the Resource Conservation and Recovery Act, Johnson Controls elected to pursue closure of its waste management units instead of seeking a permit for the treatment, storage, and disposal of hazardous waste. In 1991, Johnson Controls conducted soil and groundwater sampling as part of its closure activities, and it discovered a large amount of TCE contamination in onsite soil and groundwater. Further investigation revealed a plume of contamination extending downgradient from the site, into a residential neighborhood. In early 1992, Johnson Controls identified homes in the vicinity of the site that might have private wells, and those homes were each connected to the municipal water supply to avoid exposure to contaminated groundwater.

The following figure is a more recent depiction of the scope of the plume of groundwater contamination:

[Jx. 2, fig. 7¹ ]. The red line depicts the approximate area in which the shallow groundwater contamination exceeds the regulatory screening level (for vapor intrusion). The Johnson Controls site (at which the buildings have since been demolished, leaving only the building slab) is at the right side of that area. To the site's left is a neighborhood consisting primarily of residences, plus some commercial buildings. At the far left (west) end of the plume is Goshen High School. All of the homes in that area are connected to municipal water. Johnson Controls has also conducted follow-up investigations to confirm that all structures in that area and farther downgradient (to the west) past the high school receive city water bills and do not have private wells in use.

High levels of TCE contamination have consistently been detected in the soils at the site. Though no off-site soil contamination exists, the on-site soil contaminated the groundwater, which then carried the contamination into the neighborhood, as shown above. The water table in the area is about ten to fifteen feet below ground level. The groundwater contamination at the site is relatively shallow, but it becomes deeper as the groundwater carries the contamination off-site, into the neighborhood, leading to contamination in both the deep and shallow groundwater. The following figure depicts the underground geology and the areas of contamination across a cross-section of the plume:

[Jx. 1, app. B]. The TCE contamination (depicted in orange) mostly stays near the ground surface. As the contamination gets farther from the site, the contamination consists primarily of the degradation products of DCE (blue) and vinyl chloride (green), since the TCE naturally degrades over time.

When Johnson Controls discovered the groundwater contamination in the 1990s, it expressed concern that the contamination may reach one of the wellfields from which the City of Goshen draws its drinking water, as the site is located about a mile southeast of the North Wellfield. In 1997, however, the City of Goshen had a wellhead protection report prepared, as required by the Safe Drinking Water Act. That report, prepared by Peerless, determined that the groundwater in the area of the wellfield generally flows from the northeast, and that the wellfield primarily draws its water from that direction. The report estimated the area from which the wellfield draws water over one-year and five-year periods. The Johnson Controls site, which is to the southeast of the wellfield, was not within either of those capture zones, and the site was not identified as a potential source of contamination for the wellfield. [Dx. V-2]. The Peerless report has been periodically reviewed since it was issued, and has not materially changed. [Dx. L-4].

In 2011, Johnson Controls also began to investigate the possibility of vapor intrusion by TCE. In a typical vapor intrusion pathway, contamination in the shallow groundwater volatizes into vapors.² The vapors then rise through the soil towards the surface. When those vapors encounter a structure, they can enter the structure through cracks or other openings, and can thus cause indoor air to be contaminated. The vapors can also infiltrate sewer lines or other preferential pathways and...