CHICAGO (CN) – A dry cleaning business may be liable for contaminating a neighboring property with a possible carcinogen for more than a decade, a federal judge ruled.
For nearly 35 years, Edward and Helen Ditchfield operated a dry cleaning business, River Forest Cleaners, in River Forest, Ill., a suburb of Chicago.
A common solvent used in the dry cleaning process, perchloroethlene or “perc,” is known to be a possible carcinogen. Perc is denser than water and not very soluble, so when it seeps into the ground, it is difficult to clean up.
From 1978 to 1992, the Ditchfields used a machine that used 100 gallons of perc each month. It required the transfer of clothing from the washer to the dryer mid-cycle, which allowed vaporized perc to escape into the air when the machine operator opened the washer door.
Edward Ditchfield testified that the “very vast majority” of perc simply “evaporated into the air,” during this 14 year period.
In 1992, the couple switched to a more environmentally friendly machine that only used 50 gallons of perc per year – a 96 percent reduction in perc consumption – and was self-contained, so far less vaporized perc escaped.
Following a foreclosure, Forest Park National Bank & Trust (FPNB) repossessed a neighboring residential property in 2009. An environmental assessment found that the soil and groundwater on the property were contaminated with perc above EPA standards.
Shortly thereafter, the EPA tested the site and also found contamination levels to be over the legal limit. In 2011, Edward Ditchfield and the EPA signed a settlement agreement requiring Ditchfield to pay almost $40,000 for cleanup costs.
However, the settlement did not address the contamination to FPNB’s property. The bank sued the Ditchfields, seeking a judgment ordering them to pay for environmental clean-up costs on its property.
U.S. District Judge Rebecca Pallmeyer granted the dry cleaners motion for summary judgment in part, finding that the bank may only claim relief for an ongoing violation, not for a wholly past offense.
“FPNB owns a residential property immediately adjacent to defendants’ property, which is indisputably contaminated with hazardous materials such that the EPA investigated the property and ordered remedial measures for other nearby commercial facilities. Should the contamination continue to spread, FPNB could suffer further decreased value of its property and heightened threats to the health of any employees that inspect, clean, or show the property in an effort to sell it,” Pallmeyer said.
However, since the dry cleaners no longer emit illegal levels of perc, the bank cannot sue over the continued contamination of the property. Granting the bank relief for past offenses “would make every and any illegal emission actionable, even of a de minimis amount of pollutant that poses no genuine threat. Such an approach could divert resources from truly threatening violations and allow any individual to supplant agency enforcement determinations,” Pallmeyer found.
The bank may pursue its claim that the Ditchfields violated “Illinois regulations requiring them to properly label drums, maintain hazardous waste manifest, submit annual reports and develop a written closure plan,” the court said.
Pallmeyer also ruled that the bank’s suit does not interfere with the Ditchfield’s settlement with the EPA. “There is no evidence that this litigation is delaying or will delay the completion of an ongoing cleanup action. To the contrary, the evidence suggests that FPNB’s suit seeks to jumpstart a nonexistent cleanup action. In that sense, this citizen-suit serves the very gap-filling purpose for which the citizen-suit provision was designed.”