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Rolan v. Atlantic Richfield Co.

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

October 22, 2019

LERITHEA ROLAN, and LAMOTTCA BROOKS, Individually, and on behalf of all others similarly situated, Plaintiffs,
v.
ATLANTIC RICHFIELD COMPANY, E.I. DU PONT DE NEMOURS AND COMPANY, and THE CHEMOURS COMPANY, Defendants.

          OPINION AND ORDER

          HOLLY A. BRADY UNITED STATES JUDGE DISTRICT COURT

         This matter is before the Court on Plaintiff's Amended Motion and Incorporated Memorandum for Class Certification [ECF No. 129], filed by Plaintiffs Lerithea Rolan and Lamottca Brooks. Plaintiffs were residents of East Chicago, Indiana, living in the West Calumet Public Housing Complex (the “West Calumet Housing Complex”) in 2016 when the Environmental Protection Agency (the “EPA”) warned them of dangerous levels of lead and arsenic in the soil where they lived. Plaintiffs bring this matter as a class action on behalf of themselves and other former residents of the West Calumet Housing Complex, alleging that each was forced to relocate from his or her home as a result of lead and arsenic contamination caused by Defendants Atlantic Richfield Co., E.I. du Pont Nemours and Company, and The Chemours Company.

         STATEMENT OF FACTS

         The West Calumet Housing Complex was located in what became designated as the USS Lead Superfund Site, which became the subject of a Consent Decree approved by a federal district court in 2014 that resolved Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) claims brought by the United States and the State of Indiana with respect to the USS Lead Superfund Site. See United States v. Atlantic Richfield Co., et al., No. 2:14-CV-312-PPS-PRC (N.D. Ind. Oct. 28, 2014). The West Calumet Housing Complex was designated as “Zone 1” of Operable Unit One (“OU1”) within the larger USS Lead Superfund Site. It had been built on the former Anaconda Copper Company site, Atlantic Richfield's alleged predecessors-in-interest. Adjacent to OU1 is Operable Unit Two (“OU2”), which marks the location of the former USS Lead facility.

         A. Industrial Operations in East Chicago

         A number of companies operated in the vicinity of the Superfund Site. The USS Lead facility operated as a primary lead smelter from its construction in the early 1900s until its conversion into a secondary lead smelter in the early 1970s. USS Lead discontinued operations at the site in 1985. USS Lead spread blast-furnace slag over an adjoining wetland area and some lead-containing dust migrated to OU1 by wind. In 1993, USS Lead began a cleanup at its facility under an agreement with the EPA.

         Atlantic Richfield is the corporate successor to the entities that operated on the site that, in the early 1970s, became the West Calumet Housing Complex. Atlantic Richfield's alleged predecessors-in-interest had engaged in industrial activities on the same site, which included operating a white lead plant at the site from 1919 to 1946, a lead refinery from 1914 to 1946, and a zinc oxide plant from 1922 to 1946.

         From 1910 to 2000, DuPont operated a facility that was southeast of the area that Plaintiffs wish to designate as the Class Area for this litigation. From 1910 to 1949, DuPont manufactured lead arsenate at the facility. On February 1, 2015, DuPont transferred the property to Chemours, but Chemours never operated at the property. In June 2018, Chemours sold the property to a third party.

         B. History of the EPA Action

         The EPA conducted initial testing in OU1 in 2007, and the USS Lead Site was listed on the National Priorities List in April 2009. In June 2009, the EPA began a series of investigations and studies at the site of the West Calumet Housing Complex. In July 2012, the EPA issued its proposed remediation plan for OU1. The EPA, choosing from a variety of remedial alternatives, proposed a plan that would reduce exposure of residents to contaminated soils that posed a health risk through the removal and off-site disposal of the soils, while still allowing for the continued residential use of properties impacted within OU1.

         In November 2012, the EPA issued its Record of Decision establishing its remediation plan for OU1. The Record of Decision stated that “[t]he expected outcome of the Selected Remedy is that residents in OU1 will no longer be exposed to soil that poses a threat to human health. The land use of the properties will remain unchanged, and the Selected Remedy will allow for the continued residential use of impacted yards.” (ROD 49, ECF No. 140-2 at 50.)

         At the end of 2014 and pursuant to its remediation plan, the EPA collected soil samples from the properties of the West Calumet Housing Complex residents and tested those samples for lead and arsenic. In early June 2016, the EPA began mailing letters to the residents of the West Calumet Housing Complex to notify them of the test results. The letters, including one dated July 8, 2016, to Plaintiff Rolan, advised residents that the sampling results “show that lead and/or arsenic concentrations in soils at [the] property exceed health-based standards, and therefore [the] property qualifies for a cleanup of those soils which pose a risk.” (ECF No. 1-5 at 5.) The letters advised that the cleanup of soils would be conducted at “NO COST” to the residents. (Id.)

         The EPA explained that the cleanup would involve five steps: (1) a “[p]re-cleanup interview” with the resident, including documenting existing conditions of the property; (2) excavation of contaminated soils; (3) backfilling with clean soils; (4) restoration of landscaping and grass; and (5) a “[p]ost-construction interview” with the resident. (ECF No. 1-5 at 6.) The letter advised parents to prevent children from playing in dirt, to wash their children's toys regularly and to wash their children's hands after they played outside. All residents were advised to remove shoes before walking into their homes. It was recommended that residents not dig or garden in their yards. The EPA and staff from the Agency for Toxic Substances and Disease Registry also went door-to-door to residents' homes to provide them with additional information concerning the cleanup and how to reduce exposure to lead contamination.

         In August 2016, the EPA issued a “Residents' Guide to Temporary Relocation” for the West Calumet Housing Complex. The Guide explained that the EPA was offering to clean all homes in the West Calumet Housing Complex and that residents who wanted the EPA to clean their homes were “being asked to relocate temporarily while the cleaning is being done.” (ECF No. 139-2 at 6.) The Guide stated that the EPA had “made arrangements with several hotels and motels which are being used as temporary housing for families during the cleaning of their homes” and that the EPA's “Relocation Team will work with [the residents] to find a suitable location for you and your family.” (Id. at 12.) The EPA informed residents that the EPA will pay the housing costs related to residents' temporary relocation during the cleanup, including moving services and drivers available to take children to and from school. Residents were told to expect that they would be away from their homes for five to seven days. The EPA advised that residents' dishes, cookware, towels, clothes, and bedding were still safe to use.

         The EPA also informed residents of the types of expenses that would not be eligible for reimbursement. The EPA made clear that although residents could choose to secure their own temporary housing-rather than staying at the hotels that the EPA arranged-they had to obtain the EPA's approval before making arrangements to rent or sublease housing.

         The EPA cleaned Plaintiff Rolan's and Plaintiff Brooks's homes in 2016 and paid for their relocation during the cleanup.

         C. West Calumet Housing Complex: Resident Relocation; Demolition

         The Mayor of East Chicago sent his own letter to the residents of the West Calumet Housing Complex in July 2016. He acknowledged that the City and the East Chicago Housing Authority (the “ECHA”) had recently been informed of the results of the EPA's soil testing.[1] He advised that it was in the best interest of the residents to “temporarily relocate [their] household[s] to safer conditions.” (ECF No. 1-5 at 19.) The letter advised that the ECHA would be assisting residents in the coming days and would continue to provide information.

         In 2010, the ECHA had determined that most of the units in the West Calumet Housing Complex had reached the end of their useful life and would be too costly to repair. In a five-year plan, dated October 15, 2014, the ECHA identified the West Calumet Housing Complex for demolition or sale. In July 2016, in light of the EPA's findings, the ECHA expedited its application to the U.S. Department of Housing and Urban Development to begin removing residents from the West Calumet Housing Complex. At the same time, the ECHA informed West Calumet residents that soil testing had revealed high levels of contaminants. At the end of July, the ECHA issued a public notice stating that it desired to demolish 346 units located at the West Calumet Housing Complex. A public hearing was scheduled for August 3, 2016. At the August 3 public meeting, the West Calumet Housing Complex residents “were formally informed through a public hearing of the decision to expedite” permanent relocation of all residents of the West Calumet Housing Complex. (ECF No. 140-6 at 4.) The West Calumet Housing Complex was projected to be 100% vacant by April 2017. (Id. at 5.)

         By August 5, 2016, HUD approved $1.9 million for tenant protection vouchers for new housing. By March 1, 2017, three-quarters of the West Calumet Housing Complex residents had relocated or were in the process of relocating. In September 2017, HUD ...


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