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Millman v. United Technologies Corp.

United States District Court, N.D. Indiana, Fort Wayne Division

March 28, 2017

OPAL MILLMAN, on behalf of herself and all others similarly situated, Plaintiff,
v.
UNITED TECHNOLOGIES CORPORATION, LEAR CORPORATION EEDS AND INTERIORS, as successor to United Technologies Automotive, Inc., ANDREWS DAIRY STORE, INC., and L.D. WILLIAMS, INC., Defendants. ERIC POWELL and LAURY POWELL Plaintiffs,
v.
UNITED TECHNOLOGIES CORPORATION, LEAR CORPORATION EEDS AND INTERIORS, as successor to United Technologies Automotive, Inc., ANDREWS DAIRY STORE, INC., and L.D. WILLIAMS, INC., Defendants.

          OPINION AND ORDER

          PHILIP P. SIMON UNITED STATES DISTRICT COURT JUDGE.

         These two related matters arise out of the exact same set of facts. Two plumes of contamination were discovered in Andrews, Indiana-one from a manufacturing plant and one from a gas station. Chemicals from the manufacturing plant and the gas station entered the environment and migrated through the subsurface soil and groundwater into the surrounding neighborhood. The first case arising from these facts was filed by Opal Millman in state court and sought both remediation of the contamination and damages. The Millman case is a class action and was removed here under the Class Action Fairness Act. Ms. Millman promptly moved for remand of the action, arguing that it fell under the local controversy exception to that statute.

         As I was considering the motion to remand in the Millman case, a second action was filed by the Eric and Laury Powell here in federal court under the Resource Conservation and Recovery Act seeking remediation of the same exact plumes of contamination. The Powells would be class members of the Millman action if the Millman class is certified.

         The Millman and the Powell matters are nearly identical except for the relief sought. They involve the same facts, the same parties, and the same attorneys, and so the Defendants moved to consolidate the cases. I held a hearing on the motions to consolidate at which I asked the parties to address, among other things, the effect of the second filed Powell action and the motions to consolidate on the motion to remand. Now having heard their arguments and reviewed their briefing on both motions, I find that these cases should be consolidated and the motion to remand the Millman matter denied.

         Background

         For purposes of this opinion, I will accept the facts as alleged in both the class action complaint in Millman, (1:16-cv-312, DE 7), and the RCRA complaint in Powell (1:17-CV-28, DE 1). Here are the allegations: United Technologies Automotive owned and operated a manufacturing facility located in Andrews, Indiana from approximately 1974 to 1992. [Millman DE 7 at ¶10; Powell DE 1 at ¶3.] UTA is a former subsidiary of Defendant United Technologies Corporation. [Id.] UTC sold its UTA subsidiary and the UTA Facility to Defendant Lear Corporation in 1999, which then changed UTA's name to Lear Corporation. [Millman DE 7 at ¶11; Powell DE 1 at ¶14.] UTC retained certain environmental liabilities arising from UTA's operations at the UTA Facility. [Millman DE 7 at ¶11; Powell DE 1 at ¶14.] At the UTA facility, UTA used large quantities of trichloroethylene (“TCE”), a powerful degreaser and “chlorinated solvent” and released, dumped, and/or spilled TCE and other hazardous chemicals that resulted in a plume of soil and groundwater contamination that extends off-site and into Millman and the Powells' neighborhood. [Millman DE 7 at ¶¶13-14, 28-32; Powell DE 1 at ¶¶3, 30-34 .] For ease of reference, I will refer to this plume of contamination as the “Chlorinated Plume.” Both Millman and the Powells allege that UTC and Lear have failed to effectively remediate the Chlorinated Plume despite 22 years as a voluntary participant in the Indiana Department of Environmental Management's Voluntary Remediation Program. [Millman DE 7 at ¶¶42-54; Powell DE 1 at ¶¶44-56.]

         The Gas Station is a Citgo-branded retail gasoline and convenience store also located in Andrews, Indiana that was formerly owned by Andrews Dairy Store, Inc. and is currently owned by L.D. Williams, Inc. and is located downgradient from the UTA Facility and sits on top of the Chlorinated Plume. [Millman DE 7 at ¶¶18-19; Powell DE 1 at ¶6.] The Gas Station regularly stores thousands of gallons of gasoline, which consists of benzene and other toxic aromatic hydrocarbon chemicals. During its operations, the Gas Station released, dumped, and/or spilled petroleum products, including gasoline, into the soil and groundwater from its underground storage tanks resulting in a plume of soil and groundwater contamination that includes benzene, tolulene, ethyl benzene, and exylene and extends off-site into the same neighborhood as the Chlorinated Plume. [Millman DE 7 at ¶¶20-21, 55-58; Powell DE 1 at ¶¶6, 57-61.] For ease of reference, I will refer to this plume of contamination as the “Aromatic Plume.”

          In April 1993, Huntington County notified the Indiana Department of Environmental Management as to the presence of petroleum vapors in the Town's municipal sanitary sewer system and subsequent investigation indicated petroleum vapors were present in residences sourced from the sewer line. The impact to the sewer line was attributable to fuel release from the Gas Station. [Millman DE 7 at ¶¶59-60; Powell DE 1 at ¶¶61-62.] As a result, the Gas Station was placed by IDEM in its Leaking Underground Storage Tank program, but despite the Gas Station's investigation and remediation work, Millman and the Powells allege that petroleum contamination is continuing to migrate from the Gas Station into the neighborhood. [Millman DE 7 at ¶¶61-80; Powell DE 1 at ¶¶63-82.]

         Millman and the Powells allege that the Chlorinated and Aromatic Plumes are the current source of vapors throughout the Neighborhood and, specifically, that groundwater impacted by the Chlorinated and Aromatic Plumes has infiltrated the Town's sewer lines, providing a pathway for the contamination and enabling vapors to impact any home connected to an infiltrated sewer line. [Millman DE 7 at ¶¶83-86; Powell DE 1 at ¶¶85-88.] Both TCE and benzene have been characterized by the EPA as carcinogenic to humans by all routes of exposure and both chemicals can cause serious health issues. [Millman DE 7 at ¶¶94-98; Powell DE 1 at ¶¶95-99.]

         On June 21, 2016, Eric and Laury Powell sent a Notice of Intent to File RCRA Citizens Suit under 42 U.S.C. §6972(a)(1)(B) to UTC, Lear, and L.D. Williams, Inc. advising them of the Powells' intent to sue and sent a similar notice to Andrews Dairy Store, Inc. on June 27, 2016. [Powell DE 1-1.] Three weeks later, on July 18, 2016, Opal Millman filed a putative class action in state court against all the same entities that the Powells had served with their RCRA Notice regarding the same exact contamination identified in the RCRA Notice. [Millman DE 7.] Millman's proposed class consists of all Indiana citizens within the area impacted by the Chlorinated and Aromatic Plumes who have owned, rented, or resided at property at any time since 1993. [Id. at ¶¶110-112.] Millman alleges that the class will easily exceed 100 persons. [Id. at ¶¶113.] Millman's complaint seeks class certification and alleges exclusively state law causes of action for trespass, nuisance, negligence, injunctive relief under Indiana's Environmental Legal Action (“ELA”) statute with fee shifting, and negligent infliction of emotional distress. Millman seeks compensatory and punitive damages plus costs and fees as well as an injunction requiring the removal of contamination from the affected properties.

         Although Millman seeks remediation under the ELA, she did not include a RCRA claim in her complaint. Despite the fact that Millman's complaint does not contain a federal claim, it explicitly pleads the elements of federal jurisdiction under the Class Action Fairness Act (“CAFA”) and Defendants UTC and Lear timely removed the action to this Court. [Millman DE 1.] Millman now seeks a remand arguing that this action falls within the local controversy exception to CAFA. [Millman DE 20.]

         On January 24, 2017, while I was considering Millman's motion to remand and determining whether that action's proper place was state or federal court, the Powells filed their promised RCRA lawsuit in federal court. 79 of the 105 numbered paragraphs in the Powell complaint are identical to numbered paragraphs in the Millman complaint. The Powells are members of the Millman proposed class, are represented by the same attorneys, and brought their action against the same defendants. The Powells, like Millman, seek an injunction requiring the Defendants to investigate, abate, and otherwise respond to potential endangerments associated with the contamination that is impacting the UTA Facility, the Gas Station, and the neighborhood, as well as fee shifting. [Powell DE 1 at p. 16.] In addition, the Powells seek civil penalties of up to $25, 000 per day of noncompliance for each violation of RCRA, as authorized by RCRA. [Id.]

         Shortly after the Powells filed their lawsuit, Lear, UTC, and L.D. Williams moved to consolidate the Powell action with the Millman action.[1] [DE 49, 50.] The Defendants argue that the two nearly identical lawsuits should be consolidated and that by doing so, the federal RCRA claim would establish federal jurisdiction independent of CAFA, thereby mooting Millman's motion to remand, which they argue could and should be denied on its own merits anyway. I ...


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