Neighbors Win on Imminent and Substantial Danger Claim and Court Grants Them No Remedy

In Lijam, LLC v General Electric Company, 2019 WL 1011021 (March 2019), neighbors of a contaminated site sued under the Resource Conservation and Recovery Act (RCRA), claiming the site “may present an imminent and substantial danger to health or the environment.”  The neighbors won on summary judgement, with the court concluding that General Electric was liable under RCRA.  The court then denied the neighbors’ request for an injunction requiring remediation and the neighbors appealed.   The Seventh Circuit Court of Appeals affirmed, concluding that the district court acted within its discretion in refusing to grant injunctive relief.

The neighbors argued that if the defendant is liable under RCRA for creating an imminent and substantial danger, the court must grant an injunction ordering remediation.  The Court, however, reasoned that the injunction was discretionary and concluded that no injunction was warranted.   The court reasoned that General Electric was performing remedial work under the supervision of the state environmental agency (Illinois Environmental Protection Agency or IEPA) and the neighbors had failed to prove that there was anything defective or ineffective about the remedy.  A key to the decision was that IEPA took the position that its remedy was adequate and the district court stated it was not in a position to second guess IEPA.

The court’s discussion of the role of RCRA in cleanups was instructive.  The court noted that “RCRA is not principally designed to effectuate the cleanup of toxic waste sites or to compensate those who have attended to the remediation.”  That is the role of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) or state CERCLA equivalents.  Here, the State exercised its authority to require remediation and the court was concerned that to grant an injunction under RCRA could interfere with the State’s remediation authority.   The court noted, that the finding of an imminent and substantial danger will often result in an injunction.  Relief, however, is discretionary and a court applies the balancing test used when assessing other requests for injunctive relief.

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