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Seventh Circuit Joins Other Circuits in Holding RCRA Does Not Require Showing of Imminent Harm to Obtain Injunctive Relief

The U.S. District Court for the Western District of Wisconsin applied traditional standards for obtaining injunctive relief in granting summary judgment to a defendant accused of having caused PCB contamination of residential property while demolishing a nearby abandoned transformer factory, and on that basis awarded summary judgment to the defendant because the plaintiffs did not establish an “imminent and substantial danger” to their health. Considering the matter for the first time, the Seventh Circuit Court of Appeals joined numerous courts in holding that the federal Resource Conservation and Recovery Act’s citizen suit provision authorizes the issuance of an injunction on the basis of a “risk of harm”—a far more lenient standard. [Liebhart v. SPX Corp., ___F.3d___, Case No. 18-2598 (7th Cir. Mar. 6, 2019).]


A transformer factory in Watertown, Wisconsin, operated from 1920 through 2005. Until 1971, the transformers produced at the factory included “polychlorinated biphenyls (PCBs), a carcinogenic chemical banned by the [U.S.] Environmental Protection Agency in 1979.” In 2009, defendant SPX commissioned a study of the factory property to:

“. . .determine the extent and precise location of any PCB contamination. Those studies revealed that the concrete floor of the factory was generally contaminated, with concentrated amounts located in specific areas throughout the site.”

In 2015, SPX began demolition of the factory pursuant to a “self-implementing cleanup plan” it had submitted to the U.S Environmental Protection Agency (EPA) pursuant to 40 C.F.R. §761.61(a).

The plaintiff-Liebharts own three houses on the same block as the SPX property. They were unhappy with how the demolition proceeded, in particular the amount of dust generated that entered their properties. They “collected a dust-covered sample of snow from their yard and placed it in a mason jar.” SPX’s contractor also:

“. . .collected samples of the surface soil (roughly down to eight inches below ground) on both the industrial and residential properties. Sure enough, the properties tested positive for the presence of PCBs.”

The Liebharts vacated their property in August 2015 on the advice of their physician, and filed suit in October 2015, alleging SPX’s demolition contractor:

“. . .demolished the building recklessly, failing to use appropriate safety methods to control the dust generated by demolition equipment. They assert that their properties were covered in dust, and they submitted hundreds of photos and videos of dust from the facility blowing toward their homes to support their allegation.”

Their complaint sought injunctive relief under both the federal Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq., and the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2601 et seq. The Liebharts also brought a variety of state-law tort claims, relying on supplemental federal jurisdiction.

At the District Court

The parties brought cross-motions for summary judgment. The Liebharts’ expert Woodyard submitted a report testifying regarding:

“. . .standard methods used when demolishing PCB-contaminated buildings and an analysis of the purported ways in which the defendants deviated from those practices, thereby causing the contamination of the residences.

Their medical expert Dr. Carpenter:

“. . .opined on ways in which the Liebharts might have been exposed to PCBs and the potential health effects of continuing exposure. He concluded that ‘there is no ‘safe’ level of exposure to PCBs that does not increase the risk of disease.

The District Court excluded Woodyard’s report, explaining it “was ‘equivocal’ as to the issue of causation; it hedged on whether the contaminants came from demolition or from runoff during the preceding decades” and that Woodyard relied on “‘unreliable or uninformative’” evidence, including the snow sample that had been improperly collected and stored by the Liebharts themselves. The court also excluded Dr. Carpenter’s opinion that “‘there is no “safe” level of exposure to PCBs that does not increase the risk of disease.’”

With that expert testimony off the table, the District Court concluded that the Liebharts failed to present any admissible evidence to support their RCRA and TSCA claims. The remaining photos and videos certainly showed dust migrating onto the Liebharts’ property, but there was no reliable evidence proving that the dust contained PCBs. Given that any PCBs detected in the soil may have been there prior to the demolition, the lack of evidence doomed the Liebharts’ case.

The Seventh Circuit’s Decision

Addressing an issue of first impression in the Seventh Circuit, the court focused on the District Court’s “assumption that RCRA plaintiffs must demonstrate ‘an imminent and substantial danger with evidence of health problems they have already suffered’” in order to obtain injunctive relief. It began with RCRA’s citizen suit provision, § 6972, which provides in relevant part:

“. . .any person may commence a civil action on his own behalf … against any person, … including … any past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may presentan imminent and substantial endangerment to health or the environment.” (Emphasis in Opinion.)

The court went on to state that:

“Notably, Congress amended the language in 1980 by substituting the phrase ‘may present’ for the original 1976 wording is presenting. . . .[t]he critical question in this case is how to determine whether alleged contamination ‘may present an imminent and substantial endangerment to health.’”

Following the First, Second, Third, Fourth, Fifth, Ninth and Tenth circuits, the Seventh Circuit found § 6972’s “‘statutory language “unequivocal,” demonstrating that Congress “intended to confer upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate” the risks posed by toxic waste, and specifically that the statute:

“. . .enhanced the courts’ traditional equitable powers by authorizing the issuance of injunctions when there is but a risk of harm, a more lenient standard than the traditional requirement of threatened irreparable harm.” United States v. Price, 688 F.2d 204, 211 (3d Cir. 1982); see also,Mallinckrodt, 471 F.3d 277, 287 (1st Cir. 2006), Dague v. City of Burlington, 935 F.2d 1343, 1355–56 (2d Cir. 1991); United States v. Waste Indus., Inc., 734 F.2d 159, 165 (4th Cir. 1984); Cox v. City of Dallas, 256 F.3d 281, 299-301 (5th Cir. 2001); Price v. United States Navy, 39 F.3d 1011, 1019 (9th Cir. 1994); Burlington N. and Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1019–22 (10th Cir. 2007); Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1014–15 (11th Cir. 2004).

In the end, the Seventh Circuit found that the District Court erred in finding the Liebharts failed to show violation of regulatory standards for acceptable levels of PCBs in industrial equipment, as RCRA “merely requires” that plaintiffs “show that contaminants. . .are seriously dangerous to human health (or will be, given prolonged exposure over time).” Thus, on remand the District Court was commanded to “reevaluate its exclusion of Dr. Carpenter’s assertion regarding PCB safety under the standards we have outlined above and determine whether, if admissible, the report demonstrates that a substantial and imminent threat to the Liebharts’ health may be present” justifying injunctive relief.

Conclusion and Implications

RCRA’s citizen suit provisions are relatively lenient standards for obtaining injunctive relief allow the plaintiffs to not only obtain extraordinary equitable relief, but also to maintain numerous state-law tort claims in federal court. That combination can result in plaintiffs obtaining significant leverage over defendants. The Seventh Circuit’s decision is available online at:

(Deborah Quick)