Statutory Interpretation – RCRA – Imminent or Substantial Hazards

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7^th Circuit Court of Appeals

Case Name: Ronald Schmucker, et al., v. Johnson Controls, Inc., et al.,

Case No.: 20-3432

Officials: Easterbrook, Rovner, and Hamilton, Circuit Judges.

Focus: Statutory Interpretation – RCRA – Imminent or Substantial Hazards

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.

The district judge wrote much, much more, and the opinion shows compellingly why homeowners’ risk from TCE in Goshen is neither imminent nor substantial. Plaintiffs lost this case on the facts, not on the law. If vapor mitigation systems begin to fail, or the contaminated water migrates toward the aquifer, or conditions otherwise change for the worse, plaintiffs will be free to renew their litigation. A conclusion that hazards are not “imminent and substantial” today does not mean that they will be slight forever. But the district judge did not err in concluding on this records that the risks are too slight to compel more action than Johnson Controls is already undertaking with Indiana’s supervision.

Affirmed

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Derek A Hawkins is Corporate Counsel, at Salesforce.