Groundwater Remediation Done under State Consent Order Is Sufficient to Preclude Private Party’s Injunction Demand

Under a Consent Order with the State and Illinois EPA (IEPA), General Electric (GE) is remediating groundwater contamination caused by historical operations at a facility in Illinois.  Some neighboring landowners filed a citizen suit under the Resource Conservation and Recovery Act (RCRA) and requested an injunction that would require GE to do more investigative work than what IEPA is requiring.  The trial judge determined the landowners did not prove GE’s work under the Consent Order was inadequate and denied the request for injunction.  In LAJIM, LLC v. General Electric, the US Court of Appeals for the Seventh Circuit affirmed the denial of the landowners’ request for injunction.

No Injunction despite Meeting RCRA Citizen Suit Requirements
The Seventh Circuit and the trial judge agreed the landowners met the requirements for the trial court to consider injunctive relief by showing GE was responsible for contamination that may present an imminent and substantial danger to health or the environment.  However, the trial court found, and the Seventh Circuit agreed, that GE’s work under the Consent Order with IEPA was adequate.

The landowners argued GE should be required to do additional investigative work beyond what IEPA was requiring.  The trial judge placed the burden on the landowners to show the necessity for additional work and held the landowners failed to meet this burden.  The Seventh Circuit agreed.

RCRA Injunctions Not Mandatory
The landowners argued that once they established GE was responsible for contamination that may present an imminent and substantial danger, an injunction was mandatory.  The trial judge and Seventh Circuit disagreed.  The Seventh Circuit acknowledged injunctions would usually be granted in RCRA cases, but they are not mandatory.  When a state agency is adequately addressing the contamination, the federal judge has discretion not to issue an injunction.

IEPA Supported GE
The State filed an amicus (friend of the court) brief on behalf of IEPA advocating no injunction.  IEPA argued its oversight was adequate and an injunction risked inconsistent remediations in Illinois.

For a copy of the Seventh Circuit opinion, http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2019/D03-04/C:18-1522:J:Flaum:aut:T:fnOp:N:2302582:S:0