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Rolan v. Atlantic Richfield Co.

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

December 17, 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

         This matter is before the Court on a Motion for Partial Summary Judgment of Dupont and Chemours [ECF No. 156], filed by E. I. du Pont de Nemours and Company and The Chemours Company (collectively, “DuPont Defendants”). Plaintiffs Lerithea Rolan and Lamottca Brooks 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.

         One of the Plaintiffs' claims against the DuPont Defendants is for cost recovery under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Plaintiffs seek two categories of CERCLA costs: (1) investigative costs; and (2) temporary relocation costs. The DuPont Defendants contend that they cannot recover either as a matter of law, and cite to the Court's previous grant of summary judgment in favor of Atlantic Richfield Company on the same CERCLA recovery claims. See Rolan v. Atlantic Richfield Co., 1:16-cv-357-HAB-SLC, 2019 WL 5429075 (N.D. Ind. Oct. 22, 2019).

         Plaintiffs filed their Response to Motion for Partial Summary Judgment of Dupont and Chemours [ECF No. 166], stating that although they disagree with the Court's decision granting Atlantic Richfield Company's summary judgment motion with respect to Plaintiffs' CERCLA claim, they recognize that the Court's previous decision will likely govern its decision with respect to the DuPont Defendants' motion for partial summary judgment. Further, because the arguments set forth by the DuPont Defendants are the same arguments made by Atlantic Richfield Company in its summary judgment motion, Plaintiffs adopted and incorporated by reference the arguments they made in their Response to Atlantic Richfield, including the statement of material disputed facts.

         Because the facts concerning Plaintiffs' CERLCA claims against the Dupont Defendants are indistinguishable from those designated in support of the claims against Atlantic Richfield, the same reasons that supported judgment as a matter of law in favor of Atlantic Richfield support the summary denial of Plaintiffs' remaining CERCLA recovery claims. Those reasons are set forth below.

         SUMMARY JUDGMENT STANDARD

         Summary judgment is warranted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The non-moving party must marshal and present the Court with evidence on which a reasonable jury could rely to find in their favor. Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). Although a bare contention that an issue of material fact exists is insufficient to create a factual dispute, a court must construe all facts in a light most favorable to the nonmoving party, view all reasonable inferences in that party's favor, Bellaver v. Quanex Corp., 200 F.3d 485, 491-92 (7th Cir. 2000), and avoid “the temptation to decide which party's version of the facts is more likely true, ” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).

         STATEMENT OF FACTS

         Plaintiffs formerly resided in the West Calumet Housing Complex located in East Chicago, Indiana. The West Calumet Housing Complex was situated in what became designated as the USS Lead Superfund Site (the “Site”). The Site became the subject of a Consent Decree approved by a federal district court in 2014 that resolved CERCLA claims brought by the United States and the State of Indiana with respect to the 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 Site. The housing complex 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. The EPA Investigation

         The EPA conducted initial testing in OU1 in 2007. In April 2009 the Site was listed on the National Priorities List (“NPL”) after the EPA tested the contamination concentration levels at the USS Lead facility and OU1. This NPL designation rendered the Site eligible for CERLA-financed remedial action.

         In June 2009, the EPA began a series of investigations and studies at the site of the West Calumet Housing Complex. EPA performed a Remedial Investigation of OU1 to “assess site conditions and collect data for the purpose of developing and evaluating effective remedial alternatives, ” which involved collecting and analyzing soil samples. (Ballotti Decl. ¶ 14(b), ECF No. 158-2.) The EPA also conducted a “baseline Human Health and Risk Assessment . . . to identify the current and potential threats to human health from the contaminants in the soil at ¶ 1.” (Id. ¶ 14(e)). In addition, the EPA performed a Feasibility Study “to develop and evaluate a range of remedial alternatives, ” each of which was evaluated in light of various criteria including “protectiveness of human health and the environment.” (Id. ¶ 14(f)).

         B. The EPA's Remediation Plan

         In June 2012, the EPA issued final reports on its Remedial Investigation and Feasibility Study. In early July 2012, the EPA issued and published its proposed remediation plan for OU1 and solicited public comment. 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, specifically through the removal and off-site disposal of the soils, while allowing for the continued residential use of impacted properties within OU1.

         The initial thirty-day period for public comment ran from July 12 through August 11, 2012. At the request of the City of East Chicago, the EPA extended the public comment period until September 10, 2012.

         Following the close of the public comment period and consideration of the comments received, in November 2012, the EPA issued its Record of Decision establishing its remediation plan for OU1. The Selected Remedy required several steps. First, soil that contained lead or arsenic in concentrations that exceeded the remedial action levels (400 ppm for lead and 26 ppm for arsenic) would be excavated to a maximum depth of 24 inches below ground surface (“bgs”) and disposed of at a CERCLA-approved landfill. Then, clean soil would be placed in the excavated area to the original grade; if contaminated soil existed at depths greater than 24 inches bgs, a visual barrier would be placed above the contaminated soil before backfilling with clean soil. Further, institutional controls would be used for properties where contamination remained below the 24 inches bgs.

         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. 158-1 at 50.)

         C. Communication of Soil Testing Results and EPA Response

         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.

         The EPA took additional measures to reduce exposure. Exposure to lead in contaminated soil only occurs if there is direct contact with the soil. Therefore, grass and mulch serve as a barrier to the chain of contact. The EPA identified any areas with no or poor grass cover and placed triple shredded hardwood mulch on those areas. The EPA also worked with parties responsible for maintenance to alter mowing practices to reduce or eliminate the disturbance of dirt and mulch.

         D. West Calumet Housing Complex: Resident ...


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