ELR Citation: ELR 20277
No(s). 3-84-996 (D. Minn. Sep 4, 1990)

The court holds, for the most part, that §113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) bars injunctive relief claims under CERCLA, the Resource Conservation and Recovery Act (RCRA), the Federal Water Pollution Control Act (FWPCA), and the Minnesota Environmental Rights Act (MERA) that challenge ongoing cleanup of chemical discharges at the federal government's Twin Cities Army Ammunition Plant (TCAAP). Local residents alleged that chemical discharges from TCAAP and the Trio Solvents and Equipment Company site, located approximately one-half mile from TCAAP, had polluted their water supplies. The court first holds that CERCLA §113(h) deprives the court of subject matter jurisdiction to hear the CERCLA claims challenging ongoing cleanup efforts at TCAAP. CERCLA §113(h) denies courts jurisdiction to review challenges to remedial actions selected under CERCLA §104. The court holds that authority for the TCAAP cleanup stems from §104, not from §120. Section 104(a)(1) empowers the president to provide for removal or remedial action whenever there is a release of a hazardous substance. Pursuant to CERCLA §115, the president has delegated that authority to the Secretary of Defense for releases occurring on Department of Defense property. If §113 did not apply to federal facilities, there would be no reason for the president to delegate response authority to the Secretary of Defense. The court next holds that CERCLA §113(h) also applies to the RCRA, FWPCA, and MERA claims challenging ongoing cleanup activities at TCAAP. Section 113(h) provides that it applies to state law, showing that Congress intended §113(h)(4) to hear challenges to a completed, separate phase of the TCAAP cleanup. Not only is this position supported by the legislative history, but the court recognized it in a previous order.

The court holds that plaintiffs' claims that payments be made into a fund for reimbursement of medical monitoring costs cannot be authorized as injunctive relief. Payment of cash by one party to reimburse other parties for costs incurred is not injunctive relief. The court next holds that past owners and operators of the Trio Solvents and Equipment Company site are entitled to summary judgment on plaintiffs' injunctive relief claims against them under RCRA. The court relies on case law that applies the U.S. Supreme Court's holding in Gwaltney of Smithfield v. Chesapeake Bay Foundation, 18 ELR 21275, to bar RCRA citizen suits based on wholly past violations. Without argument and evidence, the court finds that any RCRA violations at the site are wholly past. However, the court denies a motion to dismiss plaintiff's FWPCA claims, finding that a factual issue exists whether an ongoing FWPCA violation is occurring at the site. The court further holds that the past owners and operators of the Trio site are not entitled to summary judgment on injunctive relief claims under MERA. This case involves past pollution at the site that is allegedly causing ongoing pollution of an underground aquifer and several lakes. Even under the view that MERA only protects the land, air, and water from current or prospective harm, the statute applies, because both are present here.

The court next holds that plaintiffs' failure to provide statistically significant epidemiological data to support their common law damage claims for increased risk of disease, emotional distress, and medical monitoring does not render these claims legally defective. Plaintiffs have offered significant expert testimony detailing the adverse health effects of the toxic substances in plaintiffs' water supply. The basis for this testimony is not so fundamentally unreliable that it will not actually help the jury. The court further holds that defendants are not entitled to summary judgment on plaintiffs' claims for increased risk of future harm because plaintiffs have furnished expert testimony that they have suffered an actual physical injury that has caused an alleged increased future risk of disease. The court next holds that plaintiffs cannot recover the costs of medical monitoring as a response cost under CERCLA §107. Congress chose to handle the potential need for medical testing by deleting medical provisions from CERCLA §107 and creating the Agency for Toxic Substances and Disease Registry to address testing concerns. However, the court holds that plaintiffs can recover medical monitoring costs as tort damages under common law. If a plaintiff proves the existence of present injuries that increase the risk of future harm, appropriate monitoring is simply a future medical cost, which is certainly recoverable. The court next holds that defendants are not entitled to summary judgment on plaintiffs' claims for emotional distress. If Plaintiffs prove that they have suffered actual harm caused by the contaminants to which they have been exposed, or that they have suffered a present physical injury that has caused them to have an increased risk of future harm, they may recover emotional damages.

The court next denies defendants' motion for summary judgment on plaintiffs' claims for battery. The court also denies defendants' motion for summary judgment on plaintiffs' claims for punitive damages, except those against the United States. The court holds that plaintiffs cannot recover damages for increased water charges and taxes allegedly resulting from the obtaining of alternate water supplies by their city of residence. The United States has already compensated the city for the cost of obtaining these supplies. Plaintiffs must look to the political process to appropriately distribute these proceeds. The court denies motions for summary judgment on plaintiffs' claims for attorney fees and common law claims for personal injuries, property damage, and economic losses.

The court next holds that a local municipality may not seek natural resource damages under CERCLA §107(a)(4)(C) based on damage ot the aquifer from which it obtains its water. The plain meaning of CERCLA §107(f)(I) permits recovery only by the state. The Act (MERLA) for economic loss and personal injury are time barred. Although MERLA was amended after the commencement of plaintiffs' suit, the legislature clearly intended the statute to apply retroactively.

The court holds that defendants are entitled to summary judgment on plaintiffs' claims for nuisance and trespass to the extent those claims rely on a theory of strict liability. The two families alleging that they have been exposed to chemical discharges emitted into the air by cleanup mechanisms at TCAAP. Finally, the court certifies the class of plaintiffs claiming injunctive relief. The class includes all persons who could potentially be harmed by a completed remedial phase that does not comply with CERCLA, and all persons who could potentially be harmed by ongoing violations of MERLA, FWPCA, OR RCRA.

Counsel for Plaintiffs
John Van De North Jr., Ann Huntrods, David McDonald
Briggs & Morgan
2200 First National Bank Bldg., St. Paul MN 55101
(612) 291-1215

Counsel for Defendants
Peter Colby, Ina Strichartz
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000
Douglas Rainbow, Nicholas Nierengarten
Harstad & Rainbow
1036 Norwest-Midland Bldg., Minneapolis MN 55401
(612) 338-7811
Scott Smith
Popham, Haik, Schnobrich & Kaufman
3300 Piper Jaffray Twoer, 222 S. 9th St., Minneapolis MN 55402
(612) 333-4800
Maclay Hyde, Nancy Quattlebaum
Gray, Plant, Mooty, Mooty & Bennett
3400 City Ctr., 33 S. 6th St., Minneapolis MN 55402
(612) 343-2800