A Chicago federal appellate panel has upheld a lower court ruling that said owners of land contaminated by chemicals from a General Electric plant in northwestern Illinois cannot force the company to remove the polluted soil, because the Illinois Environmental Protection Agency is only calling for GE to contain the contamination.
The decision was rendered March 4 by Judge Joel Flaum, with agreement from Judge Michael Kanne and David Hamilton, of the U.S. Seventh Circuit Court of Appeals, which sits in Chicago. The decision favored GE in an action by the executor of the Lowell Beggs estate -- Beggs' former live-in companion, Martha Conway -- and the operators of Prairie Ridge Golf Course.
GE ran a factory from 1949 to 2010 in Morrison, about 130 miles west of Chicago, making automotive and appliance parts. Toxic solvents that were used at the plant were found in 1986 to have leached into ground water. The Illinois EPA conducted tests and took other steps to safeguard the public, determining by the early 2000s the contamination had greatly decreased and was contained.
In 2007, Beggs bought the golf course and an adjacent house, which are near the plant. Before making the purchases, the seller told Beggs that soil around the course's first hole was contaminated by the GE property, but the matter was under control, according to court papers.
Beggs took action in 2013 in federal court, seeking to make GE eliminate the remaining contamination. The Illinois EPA said GE was engaging in remedial efforts with "diligence and rigorous oversight by the Illinois EPA," and if GE were required to go further, it could result in a "cleanup that is inconsistent with cleanups of other contaminated sites."
Magistrate Judge Iain Johnston concluded there was no need for GE to go beyond what the Illinois EPA had ordered.
Beggs died in 2016, while litigation was continuing. His executor, First National Bank of Amboy, took his place. Beggs' home next to the golf course was also sold during litigation.
Seventh Circuit Judge Flaum said he found no reason to overturn the district court decision.
"Plaintiﬀs failed to provide the district court with any evidence that injunctive relief, in addition to what the IEPA had already ordered in the state action, would improve the environment and not cause additional harm," Flaum said.
Flaum summarized plaintiffs' position as: "There is contamination, therefore there is harm. And because there is harm, there must be an injunction." However, Flaum noted the lower court judge repeatedly told plaintiffs evidence was needed of "harm not already being addressed through the state proceeding" and what plaintiffs wanted GE to be specifically ordered to do.
Flaum added the district court properly weighed the competing expert testimony, finding GE's expert the more compelling. Further, plaintiffs never undertook their own investigation to contradict GE's tests, Flaum pointed out.
Flaum said he sympathized with plaintiffs, because although the contamination is bottled up, it does remain beneath their property.
Plaintiffs are represented by William Anaya, Matthew Cohn, Thadford Felton and Elizabeth Austermuehle, of the Chicago firm of Greensfelder, Hemker & Gale, as well as by Aurora lawyer Douglas Lee.
General Electric is represented by Joseph Vallort, of Chilton Yambert Porter LLP, of Chicago. Also representing GE are Anthony Osterlund, Joseph Lonardo and Mark Norman, of Vorys, Sater, Seymour & Pease, of Columbus, Ohio.