Liebhart, William et al v. Spx Corporation et al

Brief in Opposition

W.D. Wis.February 7, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN ______________________________________________________________________________ William Liebhart, Nancy Liebhart, Jacob Liebhart, and Emily Liebhart, Plaintiffs, Case No. 16-cv-700 v. SPX Corporation, TRC Companies, Inc., and Apollo Dismantling Services, Inc., Defendants. ______________________________________________________________________________ PLAINTIFFS’ RESPONSE IN OPPOSITION TO SPX CORPORATION’S AND TRC ENVIRONMENTAL CORPORATION’S MOTIONS TO DISMISS Plaintiffs, by and through their attorneys, David G. Peterson, of Reinhart Boerner Van Deuren s.c., and Carey S. Rosemarin, of the Law Offices of Carey S. Rosemarin, P.C., oppose Defendants SPX Corporation’s (“SPX”) and TRC Environmental Corporation’s (“TRC”) motions to dismiss and state as follows: 1 BACKGROUND AND NATURE OF THE CASE This is a toxic tort case. Plaintiffs are certain members of a family who until recently, resided in Watertown, Wisconsin adjacent to a large, aging industrial facility which had remained idle and unoccupied for years.2 In 2009, SPX, the owner of the facility, retained a consultant (not a named defendant in this action) to determine the extent of contamination of the 1 Defendant TRC Environmental Corporation (“TRC”) has joined in Defendant SPX Corporation’s (“SPX”) Motion to Dismiss. Therefore, the term, “Defendants” herein shall refer jointly to Defendants SPX and TRC. This Response addresses the arguments in both Defendants’ motions. 2 Complaint at ¶¶ 8-9, 20. Because the Court is addressing a motion to dismiss, the well-pled factual allegations in the Complaint are taken as true. Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir. 2013). Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 1 of 26 facility. SPX was particularly concerned about polychlorinated biphenyls (“PCBs”) because the facility was historically used to manufacture electrical transformers and in years past transformers and other equipment were commonly filled with PCB fluids.3 SPX’s consultant determined that the facility was contaminated with PCBs.4 PCBs are highly toxic and were largely banned in 1976 by the Toxic Substances Control Act (“TSCA”) 15 U.S.C. § 2601 et seq.5 In 2014, SPX decided to remove the PCBs and demolish the facility. It retained TRC and Apollo Dismantling Services, LLC (“Apollo”) for these purposes. SPX submitted a cleanup plan, written by TRC, to the United States Environmental Protection Agency (“EPA”), which EPA conditionally approved in February 2015. The PCB removal and demolition commenced that month.6 Unfortunately, the demolition caused visible plumes of dust to drift onto the Liebharts’ property. The dust and dirt floating onto the Liebharts’ property was so prevalent that it discolored the snow. The family immediately experienced various health problems caused by the demolition, ultimately diagnosed as impetigo, acute sinusitis, lymphadenopathy, conjunctivitis, bronchitis and vertigo. William Liebhart complained about the demolition dust to the Watertown Health Department.7 That agency contacted the Wisconsin Department of Natural Resources (“WDNR”) which in turn contacted TRC.8 But the demolition and resultant dust plumes drifting onto the Liebharts’ next door property continued unabated.9 Later, Plaintiff William Liebhart was also diagnosed with chloracne, the signature disease for PCB exposure, 3 Complaint at ¶¶ 18-22. 4 Complaint at ¶¶ 21, 30. 5 Complaint at ¶¶ 23-29. 6 Complaint at ¶¶ 30-35. 7 Complaint at ¶¶ 37-40. 8 Complaint at ¶ 44. 9 Complaint at ¶41. 2 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 2 of 26 and the family physician recommended that William and Nancy Liebhart leave their house and find alternative quarters, which they did (Jacob and Emily Liebhart had already moved out of the house by that time).10 TRC conducted limited sampling on the Liebhart property in April 2015, about two months after William complained. The results showed that surface soil in the Liebharts’ garden contained PCBs at twenty-five times WDNR’s residential standard.11 Defendants did not immediately notify EPA or conduct any clean up on the Liebhart property, as required by EPA’s PCB regulations (adopted under TSCA). Rather, they conducted additional sampling the following May, November and January. Each time, Defendants’ sampling results revealed more extensive PCB contamination.12 The demolition was completed in August 2015 but Defendants still have not remediated the Liebharts’ property. Nor have they otherwise complied with the TSCA regulations or the conditions EPA placed on the approval of the cleanup plan.13 The experience of the Liebharts epitomizes the reason that Congress provided for citizen suits under TSCA and other federal environmental statutes, including the Resource Conservation and Recovery Act. (“RCRA”). 42 U.S.C. §6901 et seq. Therefore, the Liebharts brought this action under both TSCA and RCRA, seeking injunctive relief for the cleanup of their property. (Counts I and II.) Additionally, the Liebharts sue under state common law for strict liability because the demolition constituted an abnormally dangerous activity. (Count III.) Plaintiffs also seek injunctive relief, as well as both compensatory and punitive damages for Defendants’ egregious conduct. Plaintiffs’ remaining state common law claims include negligence, trespass, nuisance and negligent infliction of emotional distress. (Counts IV-VIII.) 10 Complaint at ¶ 58, 67. 11 Complaint at ¶ 45. 12 Complaint at ¶ 56. 13 Complaint at ¶¶ 53-58. 3 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 3 of 26 STANDARD OF REVIEW This Court has articulated the standard to be applied to Defendants’ motions to dismiss under Fed. R. Civ. P. (12(b)(6), as follows: “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief can be granted.” Diamond Ctr., Inc. v. Leslie's Jewelry Mfg. Corp., 562 F. Supp. 2d 1009, 1013 (W.D. Wis. 2008). In “[e]valuating the sufficiency of the complaint, [the court] construes it in the light most favorable to the nonmoving party, accept[s] well-[pled] facts as true, and draw [s] all inferences in her favor.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir. 2013). To satisfy Rule 8, plaintiff need not provide detailed factual allegations, but must provide “just enough facts to raise [the claim] above the level of mere speculation.” Riley v. Vilsack, 665 F. Supp. 2d 994, 997 (W.D. Wis. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L.Ed.2d 868 (2009) (“A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.’”)). A plaintiff must provide enough facts to state a claim that is plausible on its face and allow the “court to infer more than the mere possibility of misconduct.” [Ashcroft v.] Iqbal, 556 U.S. [662] at 679, 129 S. Ct. 1937 [173 L. Ed. 2d 868 (2009)]. Complaints that merely provide vague and conclusory allegations are insufficient to state a claim […]; rather, the complaint must be sufficiently detailed “to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957) ) (quotation marks and ellipses omitted). Wesbrook v. Ulrich, 90 F. Supp. 3d 803, 806 (W.D. Wis. 2015). ARGUMENT I. “Hazardous Wastes” Under RCRA include: i) substances listed in the RCRA regulations and; ii) additional substances within the broader statutory definition, such as PCBs. Defendants’ primary argument is that RCRA does not regulate the disposal of PCB Waste.14 This argument is largely (though not completely) true – but utterly irrelevant. RCRA’s 14 Defendants set forth three subheadings to their main argument: A. Congress Manifested Its Intent That the EPA Regulate PCB Waste Dispose Solely Under TSCA – not RCRA. B. EPA Has Properly Interpreted RCRA as Not Regulating PCB Removal. 4 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 4 of 26 citizen suit provisions provide for two types of claims: A) those based on the definition of hazardous wastes in the regulations, and regulatory violations; and B) those based on the broader definition of hazardous waste in the statute, and the allegations that such waste contributes to an imminent and substantial endangerment to health and the environment. Plaintiffs’ claims are based exclusively on B and have nothing to do with A. Defendants’ argument, which is based exclusively on A, misses the mark entirely. The dichotomy of the RCRA statute is explained below. Two definitions of hazardous waste. The issue Defendants raise is whether RCRA authorizes citizen suits premised on illicit handling of PCBs, notwithstanding RCRA’s lack of regulation of PCBs. RCRA’s plain language shows it does, even though PCBs are regulated under TSCA. RCRA comprehensively governs the handling of hazardous waste in two ways. The statute defines “hazardous waste” broadly in 42 U.S.C. § 6903(5).15 But in addition, Subtitle C (“Hazardous Waste Management”) directed EPA to identify the characteristics of hazardous waste and list particular hazardous wastes. 42 U.S.C. §§ 6921 et seq. Accordingly, EPA promulgated a separate regulatory definition of “hazardous waste” in 40 CFR § 261.3 (“Definition of hazardous waste”). The regulatory definition is a subset of the more comprehensive statutory definition. Many substances, including PCBs, satisfy RCRA’s statutory definition of “hazardous waste” but C. EPA’s Interpretation of RCRA As Not Regulating PCB Disposal Is Entitled to Controlling Weight Deference. SPX Motion at 6, 8 and 10, respectively (emphasis added). 15 The term “hazardous waste” means a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may— (A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. 42 U.S.C. § 6903(5). 5 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 5 of 26 are not listed as “RCRA Subtitle C hazardous wastes.”16 For that reason, they do not appear in the Subtitle C regulations’ lists of particular hazardous wastes in 40 CFR §§ 261.31-33.17 Additionally, both definitions share a similar structure. To be a hazardous waste under either, a substance must first qualify as a “solid waste.”18 But on the other hand, the converse is not true; a substance can be a solid waste, without being a hazardous waste. Two types of RCRA citizen suits. Defendants’ failure to recognize RCRA’s statutory/regulatory dichotomy is fatal to their argument. RCRA’s citizen suit provision is clearly structured to allow two types of suits based on the two definitions.” 42 U.S.C. §§ 6972(a)(1) (A), 6972(a)(1)(B).19 Subsection (a)(1)(A) is entirely devoted to regulatory matters; it only authorizes claims based on violations of the RCRA 16 See, e.g. Metal Trades, Inc. v. U.S., 810 F. Supp. 689, 697 (D.S.C. 1992) (“Asbestos is not listed as a hazardous waste in administrative regulations promulgated pursuant to RCRA. However, the term hazardous waste as defined by the actual legislation is sensible and clearly embraces waste asbestos as hazardous waste.”) (emphasis in original). 17 Defendant SPX argues “PCBs are nowhere among” the RCRA regulations’ lists of hazardous wastes.” SPX Motion at 8. Actually, the absence of PCBs from the Subtitle C regulation is not quite as complete as Defendants suggest. PCBs are listed as a “Hazardous Constituent” in 40 CFR Part 261, App. VIII. 40 CFR 261.11(a)(3). 18 The term, “solid waste” is also separately defined in both the statute and the regulations. 42 U.S.C. § 6903(27); 40 CFR § 261.2 (“Definition of solid waste”). 19 (a) In general Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf— (1)(A) against any person (including (a) the United States, and (b) any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter; or (B) against any person, including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution, and including any past or present generator, past or present transporter, or 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 present an imminent and substantial endangerment to health or the environment; or 42 U.S.C. § 6972 (emphasis added). 6 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 6 of 26 regulations, permits and administrative orders.20 In contrast, subsection (a)(1)(B) broadly authorizes citizen suits against any person who has contributed to the handling or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment (emphasis added).21 PCBs are included in RCRA’s broad statutory definition of “hazardous waste;” it is irrelevant that PCBs are also regulated by TSCA but not regulated by RCRA.22 Plaintiffs’ Count I is based solely on the broader language of subsection (a)(1)(B); it is an “imminent and substantial endangerment” citizen suit, not a regulatory citizen suit. Complaint, ¶¶ 71-86. The dual structure of the RCRA citizen suit provision makes perfect sense. The Subtitle C hazardous waste regulations are extensive but do not encompass all substances that may 20 As the table below shows, each item in the litany of types of requirements in subsection (1)(A) is addressed in the RCRA Subtitle C regulations (except, of course, for orders, which are authorized by statute at 42 U.S.C. §6928(a)). Permit 40 CFR Part 270, “EPA Administered Permit Programs: The Hazardous Waste Permit Program. Standard 40 CFR Part 262, Standards Applicable to Generators of Hazardous Waste Regulation 40 CFR Parts 260 through 265, the heart of the EPA Hazardous Waste Management System, were promulgated pursuant to the authority of 42 U.S.C. § 6921(b), directing EPA to “promulgate regulations identifying the characteristics of hazardous waste . . . . ” Condition 40 CFR Part 270, Subpart C, “Permit Conditions.” Requirements 40 CFR Part 271, “Requirements for Authorization of State Hazardous Waste Programs.” Prohibition 40 CFR Part 268, Subpart C, “Prohibitions on Land Disposal.” 21 The Second Circuit has recognized RCRA’s definitional duality and has held that the broader statutory definition applies to imminent and substantial endangerment suits. Cordiano v. Metacon Gun Club, Inc., 575 F. 3d 199, 205- 06 (2nd Cir. 2009). Cordiano relied on Conn. Coastal Fisherman’s Ass’n. v. Remington Arms Co., which held that the broader statutory definition of solid waste applied to imminent and substantial endangerment suits brought by the government under 42 U.S.C. § 6973, as provided by 40 CFR § 261.1(b)(2)(ii). Id. But it also noted that the imminent and substantial endangerment language in RCRA citizen suit provision was nearly identical to the imminent and substantial endangerment language in authorizing the government’s enforcement powers under 42 U.S.C. § 6973(a). Id. 22 Additionally, the citizen suit provision of TSCA, which is the subject of Count 2, clearly contemplates a suit premised on violation of the PCB regulations, but its clear language also permits a citizen suit under RCRA. “Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of this chapter or any rule or order under this chapter or to seek any other relief.” 15 U.S.C. § 2619(c)(3). See also Hudson Riverkeeper Fund, Inc. v. Atlantic Richfield Co., 138 F. Supp.2d 482, 486 (S.D.N.Y. 2001) (TSCA does not preempt RCRA imminent and substantial endangerment citizen suit for PCB contamination.) 7 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 7 of 26 threaten human health or the environment. By themselves, they could not fulfill RCRA’s primary purpose “to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, ‘so as to minimize the present and future threat to human health and the environment.’” Meghrig v. KFC W., Inc., 116 S. Ct. 1251, 1254, (1996) (citing 42 U.S.C. § 6902(b)). Defendants’ Short-Sighted Reliance on Section 6905 and the Burns case. Defendants do not dispute that the PCBs they disposed on Plaintiffs’ property fit squarely within the statutory definitions of solid waste and hazardous waste. Indeed, they did not even recognize those definitions. Rather, they incorrectly argue that citizen suits involving PCBs are the province of TSCA exclusively. The foundation of this argument is Section 6905 of RCRA. 42 U.S.C. §6905(b)(1). It is a foundation of sand. Defendants argue that Congress “instructed the EPA to ‘integrate all provisions of [RCRA] . . . and [to] avoid duplication, to the maximum extent practicable, with the appropriate provisions of . . . such other Acts of Congress as grant regulatory authority to the [EPA] Administrator.” SPX Motion at 7, citing 42 U.S.C. § 6905(b)(1). And, their reasoning continues, since EPA has comprehensively regulated PCBs under TSCA, Section 6905(b)(1) amounted to a “mandate of non-duplication” that “foreclosed any application of RCRA as governing the disposal of PCB waste.” SPX Motion at 7. No such mandate exists. The obvious fallacy of Defendants’ position is that by its clear terms, Section 6905(b)(1) is a directive to EPA; it neither confers nor limits the rights of any private party. U.S. v. Vineland Chemical Co., Inc., 692 F. Supp. 415, 420 (D.N.J. 1988). Moreover, the final sentence of the statute reads, “Such integration shall be effected only to the extent that it can be done in a manner consistent with the goals and policies expressed in this chapter [RCRA] and the other acts referred to in this subsection.” 42 U.S.C. § 6905(b)(1) 8 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 8 of 26 (emphasis added). Thus, Congress clearly recognized the complexity of environmental statutes and regulations and certainly knew that no wholesale rule of non-duplication and mutual exclusivity was possible. So did EPA. Defendants argue that “EPA’s interpretation and application of RCRA [is] entitled to judicial deference.” SPX Motion at 10 (citing Chevron, USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837). But they have not and cannot allude to any pronouncement by EPA stating that a RCRA imminent and substantial endangerment citizen suit cannot be based on PCBs. U.S. v. Burns, 512 F. Supp. 916 (W.D. Pa. 1981), which Defendants rely on heavily, suffers from the same infirmity. 23 SPX Motion at 6-11. The Court stated that TSCA “adequately addresses the problems of disposal of PCBs” and concluded that “allowing the Government to proceed under both TSCA and RCRA would permit the kind of duplication that [42 U.S.C. § 6905] is designed to prevent.” Burns, 512 F. Supp. at 919. But what was so odd about Burns was that EPA – the very agency to which the integration provision was directed – was actually before the court arguing that PCBs were subject to imminent and substantial endangerment suits under RCRA.24 Odder still, in reaching its conclusion, the court cited a statement by EPA that clearly supported the application of RCRA to imminent and substantial endangerment suits. “Further, the EPA Administrator stated that the EPA will integrate TSCA PCB regulations and RCRA 23 Burns was not a citizen suit, but rather, a prosecution by EPA for imminent and substantial endangerment caused by PCBs under another RCRA provision using “imminent and substantial endangerment” language. 42 U.S.C. § 6973. See n. 21, supra and accompanying text. 24 In rejecting EPA’s argument out-of-hand, the Burns court effectively violated the rule of Chevron. Although Burns pre-dated Chevron by three years, other earlier cases nonetheless commanded judicial deference to administrative agencies. See, e.g. Udall v. Tallman, 85 S.Ct. 792, 801 (1965) (“When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration.) 9 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 9 of 26 regulations but “(i)n the interim the handling and disposal of waste PCBs will continue to be regulated under TSCA and other EPA statutes.” Id. (emphasis added.)25 Burns’ inartful analysis prompted the New Jersey District Court to unequivocally conclude that Burns “was wrongly decided.” U.S. v. Vineland Chemical Co., Inc., 692 F.Supp. 415, 420 (D.N.J. 1988). The defendant in Vineland argued that Section 6905(b) prevented the government from enforcing a provision of RCRA because the defendant was also subject to yet another federal environmental statute, the Comprehensive Environmental Response, Compensation and Liability Act. 42 U.S.C. § 9601 et seq. The court referred to the second sentence of the directive, quoted above. (“Such integration shall be effected only to the extent that it can be done in a manner consistent with the goals and policies expressed in this chapter [RCRA] and the other acts referred to in this subsection.”) “This sentence, we believe, suggests that Section 6905(b) creates no rights in defendants to resist regulation; rather it constitutes an exhortation to the EPA to avoid unnecessary and overlapping regulation.” Id. New York Communities for Change is correct and on-point. The district court in New York Communities for Change v. New York City Dept. of Educ., 2012 WL 7807955 (E.D. N.Y 2012), report and recommendation adopted, 2013 WL 1232244 (E.D.N.Y. Mar. 26, 2013) adopted the Vineland position. Communities dealt with PCBs and is on-point. It provided an in-depth analysis and rebuffed the same arguments Defendants assert here. The plaintiff in Communities filed both a RCRA imminent and substantial endangerment citizen suit and a TSCA citizen suit to have the New York City Department of Education remediate PCB-leaking light ballasts throughout New York City schools. The magistrate’s report and recommendation noted that RCRA “said nothing about immunizing defendants from 25 Defendants also refer to another 1980s case, Brewer v. Ravan, 680 F. Supp. 1176 (M.D. Tenn. 1988), apparently because it cited Burns for the proposition that PCBs “are not ‘hazardous wastes’ under RCRA, but are regulated exclusively under other federal and state environmental statutes.” SPX Motion at 8. 10 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 10 of 26 enforcement provisions of the law” and the citizen suit imminent and substantial endangerment provision “contains no language requiring that this enforcement provision be integrated with the enforcement provisions of other statutes.” Communities, 2013 WL 1232244 at *32. Communities also said that even if PCBs [leaking from light ballasts] were not listed wastes under the RCRA regulations, they were nonetheless solid wastes within the scope of the RCRA citizen suit imminent and substantial endangerment provision. Id. In other words, leaking PCBs satisfied the statutory definition of solid wastes, and since a RCRA imminent and substantial endangerment suit could be based on either solid wastes or hazardous wastes, it was irrelevant whether the PCBs were also hazardous wastes under the RCRA regulations. Here, the Liebharts as Plaintiffs have alleged that the PCBs at the Watertown facility satisfied the definition of solid wastes. Complaint ¶ 74. Since such solid wastes alone could support Plaintiffs’ RCRA citizen suit, Defendants’ argument that they are not regulated hazardous wastes is of no effect. This Court should follow the holding in Communities and deny Defendants’ motions to dismiss Plaintiffs’ RCRA claim. Communities noted that EPA had considered and rejected the wholesale transfer of the PCB regulations to RCRA, and concluded that “handling and disposal of waste PCBs will continue to be regulated under TSCA and other EPA statutes.” Id. citing 45 Fed. Reg. 33,086 (May 19, 1980). This observation soundly refutes Defendants’ assertion that Communities did not properly defer to EPA under Chevron. SPX Motion, at 11. Defendants’ argument to dismiss Count I amounts to mere shadow-boxing. It is premised on the theory that RCRA does not permit citizen suits for substances, such as PCBs, that are not regulated by RCRA Subtitle C. However, as demonstrated above, Count I is based on the status of PCBs as solid waste and hazardous waste within the broader statutory definitions of those 11 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 11 of 26 terms; it is irrelevant to Plaintiffs’ position whether or not the PCBs at issue qualify as RCRA Subtitle C hazardous wastes. Defendants can cite no valid legal impediment to a citizen suit for imminent and substantial endangerment based on illicit disposal of PCBs. This Court should deny Defendants’ Motion to Dismiss as to Count I. II. Defendants violated the TSCA regulations and their violations continue. Defendants argue that Plaintiffs did not allege that Defendants’ violations of the TSCA regulations were continuing when they filed their complaint and should thus be dismissed. SPX Motion at 12-13. “Plaintiffs do not allege that defendants’ alleged violation of TSCA is of a continuous or intermittent nature. Nor can they, as plaintiffs concede that defendants completed the demolition of the facility in August 2015.” SPX Motion at 13. Defendants are wrong. Plaintiffs have plainly alleged that Defendants’ violations continue.26 Effectively, Defendants argue that TSCA citizen suits must be filed before defendants complete the activities that cause the violations, lest they be “wholly past” violations prohibited under Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987). The logical extension of Defendants’ theory is that if a driver of a tanker truck unloads PCBs into a stream, potential TSCA citizen suit plaintiffs lose their rights as soon as he drives away (notwithstanding the sixty-day advance notice period of 42 U.S.C. § 2619(b)). Defendants’ theory is untenable. 26 Paragraph 87 of Count II incorporated by reference Paragraphs 1 through 70 of the Complaint. Paragraph 50 alleged that Defendants continue to violate the standard of care incorporated into the PCB Spill Cleanup Policy. Paragraph 53 states that SPX still has not complied with the conditions U.S.EPA established for approval of the TRC-SPX Cleanup Plan. Paragraph 54 alleged that Defendants have continued to ignore the procedures in the Spill Cleanup Policy requiring the application of a statistically based sampling scheme. Paragraph 81 alleged that Defendants continue to contribute to the disposal of solid and hazardous waste that may present an imminent and substantial endangerment to health or the environment by causing Plaintiffs to be exposed to PCBs and by causing PCBs to be disposed on Plaintiffs’ properties. And, Paragraph 86 alleges that the Court has jurisdiction to enjoin Defendants from allowing continued contamination of the Liebhart’s property. 12 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 12 of 26 Under TSCA, violations consist not only of actions in contravention of the law, but passive failure to comply. “It shall be unlawful for any person to – fail or refuse to comply with . . . any requirement prescribed by section 2604 or 260527 of this title.” 15 U.S.C. § 2614(1)(B) (emphasis added). An unlawful failure to comply is a violation. Clarifying that such failure would not merely count as one violation for purposes of calculating penalties in cases brought by EPA, TSCA’s penalty provision states that “Each day [a violation of 15 U.S.C. § 2614] continues shall, for purposes of this subsection, constitute a separate violation of section 2614.” 15 U.S.C. § 2615(a)(1) (emphasis added). For decades, EPA has interpreted continuing failure to comply as an on-going violation. Disposal of PCBs was at issue in In the Matter of: Standard Scrap Metal Company, Respondent, 3 E.A.D. 267 (Docket No. TSCA-V-C-288, August 2, 1990). The EPA Environmental Appeals Board stated: . . . the responsible party must dispose of the PCBs in accordance with the requirements. Failure to do so constitutes a violation of the regulation, and the violation continues as long as the PCBs remain out of service and in a state of improper disposal. . . . Under Section 761.60(d), an “uncontrolled discharge” amounts to an improper disposal. Accordingly the PCBs thus disposed of have been out of service since the time they were discharged into the soil, thus giving rise to a duty to dispose of the PCB-contaminated soil in the prescribed manner. Standard Scrap’s failure to do so, therefore, would appear to constitute an ongoing violation of the disposal requirements of Section 761.60(a), as alleged in the Region’s Amended Complaint.28 Id. at *2 (italics emphasis in original; underscored emphasis added). 27 The TSCA PCB regulations were promulgated under Section 2605. 15 U.S.C. § 2605(e), “Polychlorinated biphenyls.” 28 See also, In re Harmon Elec. Inc., 7 E.A.D. 1 (EPA 1997) (1997 WL 133778) (RCRA “clearly contemplates the possibility of continuing violations.” (1997 WL 133778 at *2), rev’d on other gounds sub nom. Harmon Indus. Inc. v. Browner, 19 F. Supp. 2d 988 (W.D. Mo. 1998), aff’d, 191 F.3d 894 (8th Cir. 1999); In re: Rocky Well Service, Inc. & Edward J. Klockenkemper, 14 E.A.D. 541 (EPA) (2010 WL 1715639) (“ . . . simply maintaining the status quo absent compliance with [the Safe Drinking Water] requirement constitutes an ongoing violation.”) (2010 WL 1715639 at *16.) 13 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 13 of 26 In Acme Printing Ink Co. v. Menard, Inc., 812 F. Supp. 1498 (E.D. Wis. 1992), a RCRA imminent and substantial endangerment citizen suit, the court found sufficient an allegation that defendants “contributed to the . . . disposal of solid or hazardous waste.” Id., 812 F. Supp. at 1511 (emphasis in original). Quoting “Gwaltney, 108 S.Ct. at 380, the court held that this statement alleged ‘a state of either continuous or intermittent violation[s] – that is, a reasonable likelihood that past polluter[s] will continue to pollute in the future.’” Id., 812 F. Supp at 1512. The court premised its decision on RCRA’s definition of disposal, which encompassed the continuous leaking of hazardous substances. Id. Similarly, Plaintiffs alleged that Defendants’ demolition resulted in an “uncontrolled discharge” of PCBs. That term is included in the TSCA regulations’ definition of “spill.” Complaint at ¶¶ 47-50. By definition, an uncontrolled discharge remains uncontrolled – and thus ongoing – until controlled. Plaintiffs have alleged that Defendants’ demolition caused a spill within the meaning of the regulations. Id. Plaintiffs have alleged that the regulations required Defendants to immediately clean up their spill. Complaint at ¶ 52. And, Plaintiffs have clearly alleged that Defendants have not taken any action to gain control over the spill. Complaint at ¶53. Therefore, Plaintiffs have alleged that Defendants’ violations are on-going. The purpose of the PCB regulations to avoid unreasonable risk of injury to health or the environment. 15 U.S.C. §§ 2601(b)(2), 2605(2)(B). Defendants’ argument that a violation which causes an uncontrolled discharge of PCBs ceases when the specific act causing the discharge is done contravenes the statute. Such a rule would aid violators of the TSCA regulations by placing a premium on not getting caught, rather taking remedial action. It would thus increase unreasonable risk rather than avoid it. This Court should deny Defendants’ Motion to dismiss Count II. 14 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 14 of 26 III. Defendants’ Demolition of the PCB-Contaminated Facility Ten Feet From Plaintiffs’ Residence was Abnormally Dangerous. 29 Count III alleges strict liability should apply because Defendants’ demolition was an abnormally dangerous activity. Sections 519 and 520 of the Restatement (Second) of Torts (1977), address this subject. Sections 519 and 520 are part of the common law of Wisconsin and articulates six factors to determine whether an activity is abnormally dangerous.30 Fortier v. Flambeau Plastics Co., 476 N.W. 2d 593, 604 (Ct. App. 1991).31 Flambeau made a critical observation in applying the third Restatement factor – “inability to eliminate the risk by the exercise of reasonable care.” The plaintiffs in Flambeau asserted that the defendants’ disposal of volatile organic compounds was an abnormally dangerous activity in part because Wisconsin’s disposal regulations, which allowed certain hazardous wastes to be accepted at certain licensed facilities, demonstrated the risk could be eliminated. The court flatly rejected that notion. “The regulations fail to establish that the risk referred to in sec. 520(c) can be ‘eliminated’ with the exercise of reasonable care. At most, the 29 SPX and TRC addressed Count III separately. SPX Motion at 14-16; TRC Motion at 3-10. This Response is directed to both motions. 30 Section 520 of the Restatement (Second) of Torts reads as follows: In determining whether an activity is abnormally dangerous, the following factors are to be considered: a. Existence of a high degree of risk of some harm to the person, land or chattels of others; b. Likelihood that the harm that results from it will be great; c. Inability to eliminate the risk by the exercise of reasonable care; d. Extent to which the activity is not a matter of common usage; e. Inappropriateness of the activity to the place where it is carried on; and f. Extent to which tis value to the community is out-weighed by its dangerous attributes. Restatement (Second) of Torts (1977) § 520. 31 Flambeau differed procedurally from the present case because it was decided on a motion for summary judgment rather than a motion to dismiss. The court framed the issue as “whether the uncontroverted facts establish that the [defendants] use of the landfill was an abnormally dangerous activity.” Id., 476 N.W.2d at 605. 15 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 15 of 26 regulations represent an attempt to minimize the risk. The [defendants] have presented no other evidence that the risk can be eliminated.”32 Id. 476 N.W. 2d at 673. Flambeau’s distinction between reduction of the risk and elimination of the risk is especially significant. Congress’ goal in directing EPA to regulate PCBs was to eliminate unreasonable risk of injury to health or the environment. 15 U.S.C. §§ 2605(e)(2)(B), 2605(e)(2)(C); see also, 63 Fed. Reg. 35384-01, June 29, 1998 (1998 WL 339309) (discussing the “unreasonable risk standard” guiding EPA’s regulation of PCBs). As Defendant TRC noted, the Seventh Circuit also focused on inability to eliminate risk as the key factor in determining whether common law is a “workable regime, because the hazards of an activity can be avoided by being careful (which is to say, nonnegligent),” or as in the present case, there is a need to resort to strict liability. TRC Motion at 4, citing Indiana Harbor Belt R. Co. v. American Cyanamid Co., 916 F. 2d 1174, 1177 (7th Cir. 1990). The essential portion of Indiana Harbor Belt stated as follows: Sometimes, however, a particular type of accident cannot be prevented by taking care but can be avoided, or its consequences minimized, by shifting the activity in which the accident occurs to another locale, where the risk of harm of an accident will be less ((e)), or by reducing the scale of the activity in order to minimize the number of accidents caused by it ((f)). Bethlehem Steel Corp. v. EPA, 782 F.2d 645, 652 (7th Cir.1986); Shavell, Strict Liability versus Negligence, 9 J. Legal Stud. 1 (1980). By making the actor strictly liable—by denying him in other words an excuse based on his inability to avoid accidents by being more careful—we give him an incentive, missing in a negligence regime, to experiment with methods of preventing accidents that involve not greater exertions of care, assumed to be futile, but instead relocating, changing, or reducing (perhaps to the vanishing point) the activity giving rise to the accident. Anderson v. Marathon Petroleum Co., 801 F.2d 936, 939 (7th Cir.1986). The greater the risk of an accident ((a)) and the costs of an accident if one occurs ((b)), the more we want the actor to consider the possibility of making accident-reducing activity changes; the stronger, therefore, is the case for strict liability. Finally, if an activity is extremely common ((d)), like driving an automobile, it is unlikely either that its hazards are perceived as great or 32 Although the court decided the Section 520(c) factor in favor of plaintiffs, it decided other factors in favor of defendants and ultimately held that disposal of volatile organic compounds in landfills was not abnormally dangerous. Flambeau, 476 N.W.2d at 604-08. 16 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 16 of 26 that there is no technology of care available to minimize them; so the case for strict liability is weakened. Indiana Harbor Belt R. Co. v. Am. Cyanamid Co., 916 F.2d 1174, 1177 (7th Cir. 1990) (emphasis added). The reasoning in Indiana Harbor Belt shows why the risk of harm by the demolition of the PCB-contaminated industrial facility in Watertown could not be eliminated and why strict liability should be applied. Most obvious, the demolition obviously had to occur at 304 Hart Street. Defendant TRC recognized this, “The potential consequences of the activity in this case could not be minimized by shifting the activity to another locale.” TRC Motion at 7. But under Indiana Harbor Belt, that is exactly why strict liability should be imposed. In analyzing whether to impose strict liability on the defendant shipper, Judge Posner opined that strict liability would provide the incentive to consider alternate routes, but that option proved to be unworkable. Here, the option to change the locale was not even available. But that is not to say Defendants could not have considered “accident-reducing changes” (see quote above). For example, Indiana Harbor Belt noted that if a substitute for the acrylonitrile were available, that would be a stronger argument for strict liability. In the present case, a safer method of dealing with the PCBs, such as encapsulation or other some other technology, may have been available. Indeed, the demolition itself may not have been necessary; Defendants do not point to any law stating demolition was required. The imposition of strict liability would provide the incentive to seek such alternatives. Another reason that the risk of harm could not be eliminated in the present case is that the risk had already been created by the pre-existing release of the PCBs in the facility and did not disappear upon the arrival of the demolition crew. An extreme hypothetical illustrates this point. If residents of a neighborhood wake up one day to find an errantly placed unexploded atom 17 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 17 of 26 bomb in the playground, all would agree that would be an abnormally dangerous condition. And, because that condition would not evaporate upon the arrival of skilled nuclear bomb disarmers but would persist until they completed their work, the disarming project would have to be an “abnormally dangerous activity.” The situation in Watertown was analogous. The facility presented an abnormally dangerous condition in and of itself. And any work undertaken on it was an abnormally dangerous activity. Unlike the acrylonitrile in Indiana Harbor Belt, which while hazardous, ranked 52 in toxicity among the 125 most heavily shipped hazardous materials at the time, PCBs are uniquely hazardous and toxic. Id., 916 F.2d at 1179; Complaint at ¶¶ 23-29. Congress found that PCBs may present an unreasonable risk of injury to health or the environment if not used in a “totally enclosed manner”. Id. The PCBs in the Watertown facility were not being used in a totally enclosed manner – much of 20,000 square feet of concrete had PCB contamination resting on the surface, as shown by the results of the “wipe samples.”33 Complaint at ¶¶ 21, 26-28. Therefore, the facility presented an unreasonable risk of injury to health and the environment even before the demolition crew arrived. 15 U.S.C. §§ 2601(b)(2-3), 2605(e)(2)(A- C). The demolition activity added to the mix the obvious risks of further spreading PCB-laden dust and causing human exposure by inhalation, dermal contact and other pathways of exposure. Complaint at ¶¶ 24, 41, 101. The risk of harm could not possibly have been eliminated, irrespective of the degree of care exercised in conducting the demolition.34 33 Wipe samples are collected by wiping a solution-wetted cloth along the contaminated surface; the amount of contamination on the cloth is then analyzed in the laboratory. 34 Defendants seem to argue that the mere (conditional) approval of the TRC-SPX Cleanup Plan by EPA eliminated all risk from the demolition and thus prevented the application of the strict liability standard. SPX Motion at 14; TRC Motion at 5-6. This argument fails because the mere approval of a plan says absolutely nothing about its execution. 18 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 18 of 26 Indiana Harbor Belt (which was an appeal of a grant of summary judgment) extensively analyzed the facts before it and observed that “abnormal dangerousness, is in the contemplation of the law at least, a property not of substances, but of activities; not of acrylonitrile, but of the transportation of acrylonitrile by rail through populated areas.” Id., 916 F.2d at 1181. The court considered not only the substance, but what was being done with it, and where.35 Using the same reasoning here, the issue is whether the demolition of a facility known to be extensively contaminated with toxic PCBs, located ten feet from an occupied residence, is an abnormally dangerous activity. The application of the six factors of Section 520 of the Restatement shows that the demolition was an abnormally dangerous activity. a) Existence of a high degree of risk of some harm to the person. land, or chattels of others; and b) The likelihood that the harm that results from it will be great. The PCBs in the facility were deposited on the concrete, which was to be removed during the demolition. Concrete removal creates dust, and the PCB regulations contemplate the transport of PCB-contaminated dust by wind dispersal. 40 CFR § 761.65(c)(9)(i). Even a clearly foreseeable slight breeze can transport such dust a mere ten feet or more to neighboring properties. Therefore, the demolition contemplated and conducted by Defendants involved a high degree of risk of harm.36 c) The inability to eliminate the risk by the exercise of reasonable care. 35 For this reason, Defendants citations of cases such as Ganton Tech. v. Quadion Corp., 834 F. Supp. 1018 (N.D. Ill. 1993) or Bloomington v. Westinghouse Elec. Corp., 891 F.2d 611 (7th Cir. 1989), G.J. Leasing Co. v. Union Elec. Co., 825 F. Supp. 1363, 1375, vacated on other grounds on denial of reconsideration, 839 F. Supp. 21 (S.D. Ill. 1993) do not aid their cause. Ganton concluded that the PCB cleanup activities are not abnormally dangerous, but kept its reasoning a mystery. Ganton, 834 F. Supp. at 1020-21. Bloomington merely denied the application of strict liability “to the party [the manufacturer] whose activity did not cause the injury.” Bloomington, 891 F.2d at 616-17. And G.J. Leasing, which dealt with the demolition of a building containing asbestos, denied summary judgment because the parties did not analyze the six Restatement factors. G.J. Leasing, 825 F. Supp. at 1376. See also, Indiana Harbor Belt, 916 F.2d at 1179 (citing cases that imposed strict liability that impose strict liability for the storage of a dangerous chemical, but distinguishing them on the basis of control.) 36 Defendants do not really address this issue, other than to assert that Plaintiffs alleged that wetting was part of the EPA-approved cleanup plan and because Plaintiffs alleged Defendants failed to wet the concrete, then Plaintiffs must only be alleging Defendants were negligent. TRC Motion at 9. In fact, Plaintiffs did not allege that wetting was part of the SPX-TRC Cleanup Plan. Plaintiffs do allege that Defendants’ activities were abnormally dangerous. Complaint at ¶43. 19 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 19 of 26 Plaintiffs have addressed this factor above. Defendant TRC merely argues that since EPA approved the cleanup plan, then EPA “appears to have determined that the risks of PCBs could be sufficiently eliminated.” TRC Motion at 5-6. This argument is essentially the same as that which failed in Flambeau. Flambeau, 476 N.W. 2d at 673. It is no more creditable in the present context. d) The extent to which the activity is not a matter of common usage. Defendant TRC argues that “one can infer that if an entire section of Federal regulations is devoted to PCB cleanup, then it must be a common practice that occurs with some modicum of regularity. TRC Motion at 7-8. The Restatement notes that “an activity is a matter of common usage if it is customarily carried on by the great mass of mankind or by many people in the community. . . . . Thus automobiles have come into such general use that their operation is a matter of common usage.” Restatement (Second) of Torts, § 520, comment i. Donning a hazmat suit to clean up PCBs is not as common as driving an automobile. e) The inappropriateness of the activity to the place where it is carried on. Defendant TRC argues, “[The] demolition and Cleanup necessarily had to occur at that precise location. The potential consequences of the activity in this case could not be minimized by shifting the activity to another locale.” TRC Motion at 7. The mere fact that Defendants chose to demolish a facility that was located adjacent to a residential area did not render that activity appropriate to the locale. It is not known whether demolition was legally required, but even – indeed, especially – if it was, then the reasoning of Indiana Harbor Belt would require a finding of strict liability because the risk could not be eliminated. Indiana Harbor Belt, 916 F.2d at 1180. f) The extent to which its value to the community is outweighed by its dangerous attributes. Without citation, Defendant argues that the City of Watertown “greatly valued the demolition of the site.” TRC Motion at 6. In any event, the Restatement sheds light on the meaning of the sixth factor. It notes that even if a particular activity presents a high degree of danger, it might not be found to be abnormally dangerous if “the community is largely devoted to the dangerous enterprise and its prosperity largely depends on it. Restatement (Second) of Torts, § 520, comment k. TRC does not argue that the prosperity of Watertown was dependent on the demolition of the facility. This Court should deny Defendants’ motion to dismiss Count III. 20 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 20 of 26 IV. Defendants’ reckless release of toxic PCBs on Plaintiffs and their property satisfies Bowen’s test for negligent infliction of emotional distress. Plaintiffs’ Count VII for negligent infliction of emotional distress is not premised on property damage, as Defendants incorrectly assert. SPX Motion at 17. The Complaint clearly alleged that “Defendants’ conduct caused the uncontrolled discharge of PCBs, thus causing Plaintiffs to be exposed to PCBs in their own home, and further, causing PCBs to be disposed on the Liebhart Properties.” Complaint ¶117. Further, “As a direct result of such exposure and disposal, Plaintiffs have suffered severe emotional distress, causing them to alter their normal practices and behavior, and causing them to constantly worry that their health has been impaired, and that their lives may be cut short.” Complaint ¶118. Defendants also ignore the diagnosis of Plaintiff William Liebhart’s skin condition as chloracne, which is associated with PCB exposure. Complaint ¶58. Nor is there any mention of the family physician’s diagnoses of impetigo, acute sinusitis, lymphadenopathy, conjunctivitis, bronchitis and vertigo, which the family physician attributed to exposure to the demolition dust. Complaint ¶38.37 Defendants rely on Bowen v. Lumbermens Mut. Cas. Co., 517 N.W.2d 432 (Wis. 1994). SPX Motion at 17. In that case, the Wisconsin Supreme Court held physical injury was not required to assert a claim for negligent infliction of emotional distress, but the traditional elements of negligence (negligent conduct, causation and injury; the injury being emotional distress) would suffice to determine whether a cause of action for emotional distress could be 37 See also Complaint ¶45 (DNR tells William not to use the family garden because contamination in the garden is twenty-five times the residential standard); Complaint ¶63 (Liebharts’ concern and anxiety exacerbated by Health Department official’s advice not to have guests in backyard for anniversary celebration); Complaint ¶¶ 23-29 (toxicity and regulation of PCBs). 21 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 21 of 26 asserted. Bowen, 517 N.W.2d at 443. However, the Court also established a public policy test to determine whether such a case could proceed, notwithstanding the satisfaction of the initial three requirements.38 Id. The Court held that the test was satisfied in the case before it, but two years later found that the test was not satisfied in Kleinke v. Farmers Co-op Supply & Shipping, 549 N.W.2d 714, 716-17 (Wis. 1996), the property damage case cited by Defendants. SPX Motion at 17. 39 Defendants recognized the public policy test, but offer no explanation as to why Plaintiffs’ allegations did not satisfy it. SPX Motion at 20. In fact, an examination of the six factors shows not only that Plaintiffs’ claim for emotional distress are authentic, but that they also plainly satisfy the Iqbal/Twombly test. 1. Whether the injury is too remote from the negligence. Plaintiffs observed plumes of dust emanating from the demolition and became ill immediately thereafter. The family physician attributed these ailments to the exposure to demolition dust. Complaint ¶¶ 37-38. Plaintiffs’ injury is not too remote from Defendants’ negligence. 2. Whether the injury is wholly out of proportion to the culpability of the negligent tortfeasor. PCBs are unique in their toxicity and regulation. Complaint ¶¶ 23-29. Considering the copious amounts of information about the adverse health effects of PCBs readily available on the internet, a person who is negligently exposed to PCBs should be expected to experience severe emotional trauma. Complaint ¶¶ 62-63. This is especially true considering that even after Plaintiffs registered their concerns, the Demolition continued at full bore. Complaint ¶¶ 39-41. The injury claimed by Plaintiffs is entirely commensurate with the culpability of the negligence of Defendants. 38 Bowen involved a “bystander claim,” that is, a claim for emotional distress arising from a tortfeasor’s negligent infliction of physical harm on a third person. Bowen, 517 N.W.2d at 434. However, the holding is not limited to bystander claims. Camp ex. Rel. Peterson v. Anderson, 721 N.W. 2d 146, 152 (“Bowen recognizes direct claims for negligent infliction of emotional distress, as long as a plaintiff’s claim satisfies the elements of negligent conduct, causation and injury (severe emotional distress) and is not otherwise barred by public policy.”) 39 Defendants also rely on Alsteen v. Wauleco, 802 N.W.2d 212 (Wis. Ct. App. 2011) (fear of cancer), and Howard v. Mt. Sinai Hosp., Inc., 217 N.W.2d 383, 385 (Wis. 1974) (mere possibility of future harm). But neither of those cases involve claims for negligent infliction of emotional distress. They are not applicable to the present case. 22 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 22 of 26 3. Whether in retrospect it appears too extraordinary that the negligence should have brought about the harm. Considering the extensive prescriptive regulations concerning the handling of PCBs, the harm visited upon Plaintiffs due to Defendants’ negligence should have been anticipated. The harm is not extraordinary either prospectively or retrospectively. Complaint ¶¶ 23-29. 4. Whether allowance of recovery would place an unreasonable burden on the negligent tortfeasor. Defendants make no assertion that allowance of recovery would place an unreasonable burden upon them. It must be assumed that no such unreasonable burden exists. 5. Whether allowance of recovery would be too likely to open the way to fraudulent claims. Plaintiffs’ claims are founded on technical data collected by SPX itself. Complaint ¶¶ 45-58. Anyone showered with toxic substances, especially while on their own property, can be expected to experience severe emotional distress. The facts of this case are unique and would be of no assistance to any person who might be inclined to assert a fraudulent claim. 6. Whether allowance of recovery would enter a field that has no sensible or just stopping point. Federal courts are amply equipped to apply the appropriate stopping point. See e.g. Woltring v. Specialized Loan Servicing LLC, 56 F. Supp. 3d 947 (E.D. Wis. 2014) (Decision and order denying defendant’s motion to dismiss Plaintiffs’ intention infliction of emotional distress claim); Jackson v. McKay-Davis Funeral Home, Inc., 830 F.Supp. 2d 635 (E.D.Wis. 2011). The present case is well- defined. Defendants caused PCBs to invade Plaintiffs’ residence, thus causing them to be exposed to PCBs and causing them severe emotional distress. On its face, Plaintiffs’ Complaint extends to no other person. This Court should deny Defendants’ motion to dismiss Count VII for negligent infliction of emotional distress. IV. Plaintiffs alleged that Jacob and Emily Liebhart have a possessory interest in the Liebhart Property and they thus have standing to sue. Defendants assert that Plaintiffs have not alleged that Plaintiffs Jacob and Emily Liebhart “had (or have) an ownership or legal interest sufficient to afford them standing to bring the tort 23 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 23 of 26 claims alleged in the Complaint,” focusing on trespass and nuisance. SPX Motion at 24-25. Plaintiffs alleged that “Plaintiffs Jacob and Emily Liebhart resided at the residence at 1115 South Third Street, prior to and during the demolition of the Facility. They moved from 1115 South Third Street in August, 2015.” Jacob and Emily moved out of the house in August, 2015 because of the excessive dust.” Complaint at ¶¶ 9, 67. Defendants argue these allegations are insufficient, claiming (without citation) the existence of a “pleading requirement” to allege “ownership of, dominion over, or title to the property at issue.” SPX Motion at 26. Plaintiffs’ allegations are sufficient for the reasons stated in Milwaukee Metropolitan Sewerage Dist. v. City of Milwaukee, 691 N.W.2d 658 (2005), cited by Defendants themselves. SPX Motion at 25. In that case, the Wisconsin Supreme Court stated, “an action to recover damages for private nuisance may be brought by those who ‘have property rights and privileges in respect to the use and enjoyment of the land affected,’ including possessors of the land and owners of easements. Id., 691 N.W.2d at 669-70 (emphasis added), citing Restatement (Second) of Torts § 821E. Comment d to that section settles the issue. d. Members of the family. “Possession” is not limited to occupancy under a claim of some other interest in the land, but occupancy is a sufficient interest in itself to permit recovery for invasions of the interest in the use and enjoyment of the land. Thus members of the family of the possessor of a dwelling who occupy it along with him may properly be regarded as sharing occupancy with intent to control the land and hence as possessors, as defined in § 328E. When there is interference with their use and enjoyment of the dwelling they can therefore maintain an action for private nuisance. Although there are decisions to the contrary, the considerable majority of the cases dealing the question have so held. The same rule obtains in the context of trespass, as clearly stated in Restatement (Second) of Torts § 162. A trespass on land subjects the trespasser to liability for physical harm to the possessor of the land at the time of the trespass, or to the land or to his things, or to members of his household or to their things, caused by any act done, activity carried on, or condition created by the trespasser, irrespective of whether his conduct is such as would subject him to liability were he not a trespasser. 24 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 24 of 26 Plaintiffs’ allegation that Jacob and Emily Liebhart resided at 1115 South Third, was clearly sufficient to show that Jacob and Emily “possessed” that property within the Wisconsin Supreme Court’s intended meaning. Therefore, Plaintiffs allegations sufficiently allege claims of nuisance and trespass. See Hanes v. Continental Grain Co., 58 S.W.3d 1, 5 (Mo. Ct. App. 2001) (“We find that a person who rightfully occupies but does not own a home may sure for injuries caused by a temporary nuisance. In a temporary nuisance action, the damages are for personal injuries inflicted upon the person occupying the property.”); Birke v. Oakwood Worldwide, 169 Cal.App. 4th 1540, 1551 (Ca. Ct. App.) (“a child living with her family in a rented apartment has standing to bring a private nuisance claim based on interference with her right to enjoy the rented premises.”); Mueller v. Hill, 345 P.3d 998, 1003 (Idaho 2015) (“ ‘as against a mere tort-feasor, actual possession of land, under a claim of right, is sufficient to maintain trespass.’”, citing Hanson v. Seawell, 204 P. 660, 660 n.6 (1922)); Cassel-Hess v. Hoffer, 44 A.3d 80 (Pa. Super. Ct. 2012) (“standing to sue for trespass is not limited to the owner of the property.”) In their complaint, Plaintiffs have, with considerable detail, alleged that Defendants recklessly caused toxic PCBs to be emitted, thus exposing the residents of 1115 South Third to those substances without their consent and injuring them. Plaintiffs also alleged that Jacob and Emily were residents of 1115 South Third at the time of Defendants’ conduct and were directly injured by Defendants’ conduct. This Court should deny Defendants’ motion to dismiss claims by Jacob and Emily. CONCLUSION For the reasons stated above, this Court should deny in their entirety SPX’s and TRC’s motions to dismiss. 25 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 25 of 26 Dated: February 7, 2017 Respectfully submitted, By: /s Carey S. Rosemarin Attorney for Plaintiff David G. Peterson Reinhart Boerner Van Deuren s.c. N16 W23250 Stone Ridge Drive, Suite One Waukesha, WI 53188 Telephone: 262-951-4527 E-mail: dgpeterson@reinhartlaw.com Carey S. Rosemarin Law Offices of Carey S. Rosemarin, P.C. 500 Skokie Boulevard, Suite 510 Northbrook, IL 60062 Telephone: 847-897-8000 x11 E-mail: csr@rosemarinlaw.com 26 Case: 3:16-cv-00700-jdp Document #: 37 Filed: 02/07/17 Page 26 of 26