Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 1 of 34 PageID #:1

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1 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 1 of 34 PageID #:1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, WESTERN DIVISION LAJIM, LLC, an Illinois Limited Liability Corporation, and Lowell Beggs, v. Plaintiffs, General Electric Company, a New York Corporation, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. 13-cv COMPLAINT Plaintiffs LAJIM, LLC, an Illinois Limited Liability Company ( LAJIM ) and Lowell Beggs, by their attorneys Arnstein & Lehr LLP, for their Complaint against the General Electric Company, a New York Corporation ( GE ), state as follows: Nature of Action 1. GE polluted an aquifer and properties in the City of Morrison, Illinois with chlorinated industrial solvents used at its local manufacturing operation. For decades, since at least the 1980s and continuing to this day, GE has allowed its contamination to endanger, harm, and damage persons and property in the City of Morrison, including Plaintiffs and their residential and golf course properties. 2. The contamination caused by GE is so significant that two City of Morrison municipal water supply wells were closed in the 1980s. Water produced from a third municipal water supply well underwent treatment since the 1980s, and that well was closed recently in 2013.

2 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 2 of 34 PageID #:2 3. The Illinois Environmental Protection Agency ( IEPA ) and the United States Environmental Protection Agency ( USEPA ) have been aware of the contamination since it was first discovered in the 1980s, but the federal and state agencies have been ineffective in addressing the contamination. Well into the third decade since GE s contamination was discovered, the contamination remains underneath the City of Morrison, the nature and extent of the contamination has not been defined, and the contamination continues to endanger, harm, and damage Plaintiffs and their properties. 4. GE s conduct has been outrageous. Through the manipulation and/or reckless or grossly negligent application of complicated quantitative groundwater modeling and risk assessment procedures, GE has mischaracterized its contamination and attempted to influence the perception of just how significant the contamination problem is. GE has erroneously represented to the IEPA, the USEPA, and the public that contamination has not spread as far as it actually has spread, and that the residents and users of certain homes and buildings in a portion of the City of Morrison are not exposed to actionable excess cancer risks from inhaling chlorinated industrial solvent vapors. 5. In order to minimize the amount of costly remediation it has to perform, GE has also sought to arbitrarily, and without consent, impose restrictions, burdens, and controls to and upon private property it does not own. 6. Now in 2013, over two and half decades after GE became aware that it caused contamination in the City of Morrison, contaminated groundwater still remains 2

3 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 3 of 34 PageID #:3 under the City of Morrison, including under Plaintiffs residential and golf course properties. 7. Now in 2013, over two and half decades after GE became aware that it caused contamination in the City of Morrison, the nature and extent of the groundwater contamination has still not been defined. 8. Now in 2013, over two and half decades after GE became aware that it caused contamination in the City of Morrison, GE still does not know how far its contamination has migrated and GE does not know all of the properties under which its contamination is located. 9. Now in 2013, over two and half decades after GE became aware that it caused contamination in the City of Morrison, GE still has not developed an effective plan to clean up, remediate, control, mitigate, and manage the groundwater contamination. 10. Plaintiffs seek an order compelling GE to abate the imminent and substantial endangerments to health and the environment caused by GE s release of chlorinated industrial solvents into the soil and groundwater pursuant to the Resource Conservation and Recovery Act ( RCRA ), 42 U.S.C. 6901, et seq., the recovery of costs incurred as a result of GE s release of chlorinated industrial solvents into the soil and groundwater pursuant to the Comprehensive Environmental Response, Liability and Compensation Act ( CERCLA ), 42 U.S.C. 9601, et seq., and damages caused by GE s release of chlorinated industrial solvents into the soil and groundwater pursuant to Illinois common tort law. 3

4 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 4 of 34 PageID #:4 Jurisdiction and Venue 11. This court has personal jurisdiction over the parties, who all reside or do business in this District. 12. This court has jurisdiction pursuant to 42 U.S.C. 6972(a), providing jurisdiction over citizen suits brought under RCRA. 13. This court has jurisdiction pursuant to 42 U.S.C. 9607, 9613(b), providing jurisdiction over controversies arising under CERCLA. 14. This court has jurisdiction over federal questions pursuant to 28 U.S.C. 2201, This court has supplemental jurisdiction over the Illinois tort law claims pursuant to 28 U.S.C. 1367(a). 16. Prior to filing this action, Plaintiffs issued to GE and all required government officials and agencies their pre-filing Notice of Intent to Sue pursuant to 42 U.S.C. 6972(b)(2)(A). A copy of the pre-filing Notice of Intent to Sue with proof of service is attached hereto as Exhibit A. 17. Venue is proper in this District pursuant to 42 U.S.C. 6972(a) and 9613(b), and 28 U.S.C. 1391(b), because the claims arose in this District, and the actual and threatened releases of hazardous substances and pollutants occurred in this District. The Parties and the Properties 18. LAJIM is the owner of the Prairie Ridge Golf Course, which has an address of 903 West Morris Street, in the City of Morrison, Illinois (the Golf Course ). 19. Lowell Beggs is the principal member of LAJIM. 4

5 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 5 of 34 PageID #:5 20. The Golf Course is depicted on the map which is attached hereto as Exhibit B. 21. Lowell Beggs is a resident and occupant of a home at 811 West Morris Street, in the City of Morrison, Illinois (the Beggs Residence ). 22. Lowell Beggs has a financial interest in the Beggs Residence. 23. The location of the Beggs Residence is identified on the map which is attached hereto as Exhibit B. 24. GE owns property that was historically used by GE as an industrial facility, and that facility has an address of 709 West Wall Street in the City of Morrison, Illinois (the GE Facility ). 25. The GE Facility is depicted on the map which is attached hereto as Exhibit B. Allegations Common to All Counts Background 26. From the late 1940s until 2010, GE used the GE Facility for the manufacture of components for motors and motor control equipment. 27. Prior to 1994, GE used chlorinated industrial solvents, including trichloroethylene ( TCE ), to remove oil from the components it manufactured at the GE Facility. 28. TCE is recognized in peer reviewed scientific reports and by the U.S. government health organizations as carcinogenic to humans. 29. GE used other chlorinated industrial solvents at the GE Facility, including 1,1,1-trichloroethane ( TCA ). 5

6 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 6 of 34 PageID #:6 30. After being released to the environment, primary solvents TCE and TCA degrade and break down into chemicals that include 1,2-dichloroethene, 1,2- dichloroethane, 1,1-dichloroethene, and 1,1-dichloroethane. 31. There are unspecified trace amounts of other chlorinated solvents contained in commercially available TCE and TCA (e.g., purchased TCE may contain some amount of TCA). 32. TCE, TCA, and their breakdown product chemicals are hazardous substances. 33. A small immersion tank degreaser and a large continuous process line degreaser were located in the main building at the GE Facility. 34. A container storage area, approximately 40 feet by 70 feet in size, that was not covered with asphalt or concrete, was located at the GE Facility and used by GE to store chlorinated industrial solvents, including TCE, and hazardous wastes. 35. As a result of GE s manufacturing activities and GE s chemical and hazardous waste handling and management practices, chlorinated industrial solvents, including TCE, were released into soil and groundwater at the GE Facility. 36. GE disposed of chlorinated industrial solvents, including TCE, in a wetland that was adjacent to the GE Facility. 37. The chlorinated industrial solvents, including TCE, released by GE have contaminated the soil and groundwater at the GE Facility. 38. The chlorinated industrial solvents, including TCE, released by GE have contaminated the groundwater and residential properties adjacent to the GE Facility, including the Beggs Residence. 6

7 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 7 of 34 PageID #:7 39. The chlorinated industrial solvents, including TCE, released by GE have contaminated the groundwater underneath the Golf Course, which is located downgradient from the GE Facility. 40. The chlorinated industrial solvents, including TCE, released by GE contaminated the water supply of the City of Morrison. 41. In the 1980s, because chlorinated industrial solvents, including TCE were found in groundwater samples collected from the City of Morrison s water supply wells, the City of Morrison closed two of its water supply wells. 42. As a result of the chlorinated industrial solvents released by GE, in 1988, GE funded the design, construction and installation of a packed tower air stripper to treat contaminated groundwater from a third City of Morrison water supply well. 43. In the decade that followed, during the 1990s, GE never fully investigated the nature and extent and never remediated the contamination it caused. The State of Illinois Consent Order 44. In 2004, now in the second decade after the initial discovery of GE s contamination, in an effort to compel GE to investigate and remediate its contamination, the Illinois Attorney General s Office filed a Complaint against GE on behalf of the People of the State of Illinois alleging that GE violated Illinois Environmental Protection Act (the Act ), particularly Section 22.2(f) of Act, 415 ILCS 5/22/2(f); Section 12(a) of the Act, 415 ILCS 5/12(a); and Section 12(d) of the Act, 415 ILCS 5/12(d). 45. In 2010, now in the third decade after the initial discovery of GE s contamination, a Consent Order, a copy of which is attached hereto as Exhibit C, was filed by the Illinois Attorney General s Office against GE, requiring that GE complete a 7

8 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 8 of 34 PageID #:8 soil and groundwater investigation and address the environmental impacts associated with the chlorinated industrial solvents, including TCE, used at the GE Facility and released into the soil and groundwater. 46. Attached to the Consent Order (after the signatures on page 30) is a map prepared in 2001 by GE s environmental consultant GeoTrans, Inc. ( GeoTrans ). 47. The GeoTrans map attached to the Consent Order shows a groundwater management zone that was never implemented. 48. The GeoTrans map attached to the Consent Order shows a boundary of groundwater contamination that is not accurate. 49. The GeoTrans map attached to the Consent Order incorrectly infers that contaminated groundwater does not flow south of Rock Creek. 50. Under the Consent Order, the IEPA was given the role of providing oversight of a groundwater contamination investigation and remediation work to be performed by GE. 51. The Consent Order did not address or contain any specific requirements that GE evaluate the potential for chlorinated industrial solvents to migrate in a vapor phase from the groundwater through the foundations and basement walls of structures and into the interior air space of homes and buildings (commonly known as vapor intrusion or VI ). 52. Under the oversight of the IEPA, GE has performed some of the investigation work required under the Consent Order. 8

9 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 9 of 34 PageID #:9 53. GE principally utilized the services of environmental consultant MWH Americas, Inc. ( MWH ) to perform the groundwater contamination investigation work required under the Consent Order. USEPA s Recent Involvement 54. Around the time to the entry of the Consent Order, the USEPA requested that GE perform a vapor intrusion investigation. While the USEPA s request was not made pursuant to any particular federal enforcement action, GE obliged. 55. GE principally utilized the services ARCADIS U.S., Inc. ( ARCADIS ) to perform the vapor intrusion investigation work requested by the USEPA. The Focused Site Investigation Report 56. Pursuant to the Consent Order, GE submitted a report prepared by MWH to the IEPA titled Focused Site Investigation Report (the FSI Report ) in June of The groundwater investigation described in the FSI Report is incomplete. 58. The analysis of the groundwater quality and site characterization data described in the FSI Report is incorrect and inaccurate. 59. The data in the FSI Report includes the results of groundwater samples collected from the GE Facility and areas down-gradient of the GE Facility, including the Golf Course. 60. Two irrigation wells, two irrigation ponds and an irrigation system are present on the Golf Course. 61. Monitoring wells installed by GE are located on the Golf Course. 9

10 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 10 of 34 PageID #: TCE, its breakdown products, and other chlorinated industrial solvents were found in groundwater and pond water samples collected from the irrigation wells, an irrigation pond, and monitoring wells on the Golf Course. 63. Exhibit D contains Figures 10A, 10B, and 11 from the FSI Report, and these figures show the locations of groundwater and surface water samples and the concentrations of chlorinated industrial solvents, including TCE and its breakdown products, in samples collected at the sampling locations. 64. In January of 2012, TCE was found in groundwater samples collected from monitoring wells at the following locations on the Golf Course, and at the following concentrations: MW-7 MW-8 MW micrograms per liter (µg/l) 4,800 µg/l 140 µg/l 65. Monitoring wells MW-7, MW-8, and MW-4 are located adjacent to Rock Creek. 66. In August of 2012, TCE was found in groundwater samples collected from monitoring wells and irrigation wells at the following locations on the Golf Course, and at the following concentrations: MW-7 MW-8 MW-4 North Irrigation Well South Irrigation Well 2,700 µg/l 2,000 µg/l 130 µg/l 5,000 µg/l 0.93 µg/l (estimated concentration) 67. The North Irrigation Well is proximal to the GE Facility, and the South Irrigation Well is on the south side of Rock Creek. 10

11 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 11 of 34 PageID #: Between September 2012 and January 2013, TCE was detected in water samples collected from the irrigation pond located adjacent to the North Irrigation Well at the following concentrations: 9/11/ µg/l 10/31/ µg/l 1/30/ µg/l 69. The maximum contaminant level ( MCL ) established by the USEPA for TCE is 5 µg/l. 70. TCE was detected in groundwater and pond water samples on the Golf Course at concentrations in excess of the MCL. 71. TCE was detected in a groundwater sample from the North Irrigation Well at a concentration 1,000 times the MCL. 72. The presence of significantly elevated concentrations of TCE at sampling locations significant distances from both the GE Facility and the wetland adjacent to the GE Facility that was used by GE for the disposal of chlorinated industrial solvents indicates that substantial amounts of TCE were released by GE for decades and that the hydrogeologic characteristics of the underlying aquifer are such that the contamination is mobile. 73. In the FSI Report, GE and its environmental consultant MWH relied upon a report prepared in 2001 by GeoTrans titled Natural Attenuation Analysis and Groundwater Modeling Report (the Groundwater Modeling Report ). 74. The GeoTrans map attached to the Consent Order originated from the Groundwater Modeling Report. 11

12 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 12 of 34 PageID #: In the Groundwater Modeling Report, GeoTrans concluded that Rock Creek is a regional divide for groundwater flow, meaning that contamination in groundwater will not flow south of Rock Creek. 76. Since 2001, GE has embraced GeoTrans Groundwater Modeling Report and has taken the position that contamination does not migrate via groundwater flow south of Rock Creek. 77. It was not until 2012 that GE first collected a groundwater sample from a sampling point south of Rock Creek. 78. In August of 2012, TCE was found in a groundwater sample collected from a location south of Rock Creek. That sample was from the South Irrigation Well on the Golf Course, in which TCE was detected at 0.93 µg/l (estimated concentration). 79. TCE has been found in groundwater samples collected from wells located on residential properties south of Rock Creek. 80. The fact that TCE was found in groundwater south of Rock Creek disproves the regional divide for groundwater flow theory proposed by GeoTrans in The fact that TCE was found in groundwater south of Rock Creek invalidates the Groundwater Modeling Report. 82. The fact that TCE was found in a groundwater south of Rock Creek invalidates any groundwater data analysis that relies upon the Groundwater Modeling Report. 12

13 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 13 of 34 PageID #: There are other fundamental inaccuracies in the Groundwater Modeling Report, including GeoTrans finding that Rock Creek is always a gaining stream and never a losing stream. 84. A gaining stream is one in which groundwater flows to the stream, and losing stream is one in which groundwater flows away from the stream. 85. By incorrectly identifying Rock Creek as always being a gaining stream, GeoTrans inaccurately concluded that contaminated groundwater will always flow toward Rock Creek and will stop at Rock Creek or discharge to Rock Creek. 86. Rock Creek is in fact not a regional divide for groundwater flow. 87. Contamination originating from the GE Facility actually migrates via groundwater flow through the Golf Course, underneath Rock Creek, and further to the south. 88. Because GE embraced GeoTrans Rock Creek regional divide for groundwater flow theory in 2001, GE did not test for the presence of contamination on the south side of Rock Creek for over a decade. 89. Because GE embraced GeoTrans Rock Creek regional divide for groundwater flow theory in 2001, the nature and extent of contamination on the south side of Rock Creek is not known or understood. 90. In order for any of GE s future investigations of groundwater contamination at the GE Facility, the Golf Course, and in and around the City of Morrison to be valid, reliable, and of good quality, GE and its environmental consultants must reject GeoTrans Groundwater Modeling Report and refrain from any further reliance on it. 13

14 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 14 of 34 PageID #: In order to characterize the nature and extent of groundwater contamination, GE must install new groundwater monitoring wells on the south side of Rock Creek on the Golf Course and collect groundwater samples from those new wells. GE s Proposed Irrigation Well Remedy 92. The North Irrigation Well and the South Irrigation Well on the Golf Course are each approximately 180 feet deep. 93. In an effort to partially fulfill its obligations under the Consent Order, GE proposed a remedy for the Golf Course in which GE would remove the present 180 foot deep North Irrigation Well and replace it with a deep irrigation well that is 900 feet deep. 94. GE s proposal to remove the present 180 foot deep North Irrigation Well and replace it with a deep irrigation well that is 900 feet deep will not result in the delivery of a reliably clean water supply to the entire Golf Course irrigation system. 95. The Golf Course irrigation system utilizes water from two irrigation ponds (a North Irrigation Pond and a South Irrigation Pond) which are each partially supplied with water from two irrigation wells (a North Irrigation Well and a South Irrigation Well). 96. The North Irrigation Pond supplies water to the irrigation system for the front nine holes of the Golf Course, and the South Irrigation Pond supplies water to the irrigation system for the back nine holes of the Golf Course. 97. Water is pumped from each of the irrigation ponds a rate of 300 gallons per minute ( gpm ). 98. In order to supplement the natural infiltration of water into the ponds and sustain a 300 gpm flow rate at each pond, the North Irrigation Well pumps water into the 14

15 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 15 of 34 PageID #:15 North Irrigation Pond at a rate of 90 gpm, and the South Irrigation Well pumps water into the South Irrigation Pond at a rate of 60 gpm. 99. GE s proposed remedy was to install a new, deep North Irrigation Well that can pump at a rate of 150 gpm Installing a 900 foot deep North Irrigation Well with a 150 gpm pumping capacity will not be an adequate solution to provide enough water to irrigate the entire Golf Course Installing a 900 foot deep North Irrigation Well with a 150 gpm pumping capacity will not do anything to provide a reliably clean supply of groundwater to the South Irrigation Pond used for the irrigation of the back nine holes Because Rock Creek is not a regional divide for groundwater flow, if the 180 foot deep North Irrigation Well is closed and replaced with a deep 900 foot well, and the 180 foot South Irrigation Well remains in place and in use, then there will be drawdown effect around the South Irrigation Well that will actually pull more contamination from the north side of Rock Creek to the south side of Rock Creek than is presently pulled by the South Irrigation Well The inadequacies of GE s proposed remedy to install a new 900 foot deep North Irrigation Well with a 150 gpm pumping capacity are known to GE, and GE has not proposed any alternative remedy Continued use of contaminated groundwater in the Golf Course irrigation system may result in human and environmental exposure to the chlorinated industrial solvent contaminants, including TCE, in the groundwater. 15

16 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 16 of 34 PageID #:16 Groundwater Use Restriction 105. In an effort to partially fulfill its obligations under the Consent Order, GE proposed that a groundwater use restriction ordinance that was adopted by the City of Morrison in 2010 be used to prevent the potable use of groundwater from underneath the Golf Course Presently, the entirety of the Golf Course is not the subject of a groundwater use restriction ordinance, particularly the portion of the Golf Course south of Rock Creek LAJIM never consented to any restriction being put in place that prevents the use of groundwater from underneath the Golf Course for potable purposes GE and the City of Morrison coordinated with each other, without consulting LAJIM, in a way that resulted in LAJIM being prevented from using the groundwater under the Golf Course for potable purposes, effectively taking without compensation from LAJIM its right to use the groundwater underneath the Golf Course in any way it chooses It is foreseeable that the Golf Course will not be used as a golf course at some time in the future Foreseeable future redevelopment options for the Golf Course include residential and agricultural projects The City of Morrison has the authority to amend its groundwater use restriction ordinance to no longer restrict the use of groundwater from underneath the Golf Course. 16

17 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 17 of 34 PageID #: Without a groundwater use restriction in place at the Golf Course, the foreseeable future redevelopment options may result in human and environmental exposure to chlorinated industrial solvents, including TCE and its breakdown products, in the groundwater. The Vapor Intrusion Study 113. Pursuant to a commitment GE made to the USEPA, GE submitted a report prepared by ARCADIS titled Vapor Intrusion Investigation Summary Report (the VI Report ) to the USEPA in March of The vapor intrusion investigation described in the VI Report is incomplete The analysis of the indoor air and soil gas data described in the VI Report is incorrect and inaccurate In March and December of 2012, GE collected indoor air samples from the basement of the Beggs Residence ,2-Dichloroethane, a breakdown product of TCE, was detected in an indoor air sample collected from the Beggs residence on December 6, 2012 at 0.55 micrograms per cubic meter (µg/m 3 ) The USEPA s target indoor air concentration for 1,2-dichloroethane for residential properties based on a USEPA default one in a million (10-6 ) target cancer risk factor is µg/m ,2-Dichloroethane was detected in an indoor air sample from the basement of the Beggs Residence at a concentration at and in excess of the USEPA s residential indoor air screening criterion for 1,2-dichloroethane calculated using the USEPA default 10-6 target cancer risk factor. 17

18 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 18 of 34 PageID #: A target cancer risk factor is a variable used in risk calculations that considers the possible excess cancer that could be caused by exposure to chemicals A target cancer risk factor of 10-6 is the default value used for the calculation of contaminant screening criteria by the USEPA A target cancer risk factor of 10-6 (1 in 1,000,000) is more conservative than a target cancer risk factor of 10-5 (1 in 100,000) Using a target cancer risk factor of 10-5 instead of 10-6 in risk assessment calculations results in the calculation of screening criteria that are 10 times higher than such criteria would have been using a 10-6 target cancer risk factor In the VI Report, GE raised the residential indoor air screening criterion for 1,2-dichlroethane by a factor of ten, by applying a one in one-hundred thousand (10-5 ) target cancer risk factor, resulting in GE proposing a residential indoor air screening criterion for 1,2-dichloroethane of 0.94 µg/m Based on arbitrary elevation of target cancer risk factor by GE from the conservative and USEPA default value of 10-6 to the less conservative and non-default value of 10-5, GE concluded that presence of 1,2-dichloroethane in indoor air in the Beggs Residence required no action Had GE utilized a target cancer risk factor of 10-6 in its risk calculations, GE would have concluded that the Beggs Residence requires remedial action In order to properly abate the vapor intrusion risks associated with the measured presence of 1,2-dichloroethane in the indoor air in the Beggs Residence, GE must perform remediation work at the Beggs Residence. 18

19 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 19 of 34 PageID #: In March and December of 2012, GE collected soil gas samples from beneath the basement of the clubhouse at the Golf Course, and the following chlorinated industrial solvents were detected in soil gas at the following concentrations: 1,1-dichloroethane (12/6/2012) 51 µg/m 3 1,1-dichlroeothene (12/6/2012) 6,100 µg/m 3 TCE (3/9/2012) 44 µg/m 3 TCE (12/6/2012) 780 µg/m The soil gas screening levels for residential use, based on the use of the USEPA default value of 10-6 for the target cancer risk factor (and the use of GE s recommended application of the USEPA default attenuation factor of 0.03) are as follows: 1,1-dichloroethane 50 µg/m 3 1,1-dichlroeothene 700 µg/m 3 TCE 7 µg/m TCE, 1,1-dichloroethane, and 1,1-dichloroethene were detected in soil gas samples from beneath the clubhouse on the Golf Course at concentrations greater than the soil gas screening criteria based on residential land use and a USEPA default value of 10-6 for the target cancer risk factor (and GE s recommended application of the USEPA default attenuation factor of 0.03) The soil gas screening levels calculated and proposed by GE which were based upon industrial/commercial land use and a non-default 10-5 target cancer risk (and a 0.03 attenuation factor) are as follows: 1,1-dichloroethane 2,567 µg/m 3 1,1-dichlroeothene 29,333 µg/m 3 TCE 293 µg/m Screening criteria based on industrial/commercial land use are higher than screening criteria based on residential land use. 19

20 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 20 of 34 PageID #: ,1-Dichloroethane and 1,1-dichlorethene were detected in soil gas samples from beneath the clubhouse on the Golf Course at concentrations lower than the soil gas screening criteria based on GE s less conservative screening standards assuming industrial/commercial use and a 10-5 target cancer risk factor TCE was detected in a soil gas sample from beneath the clubhouse on the Golf Course at a concentration above the soil gas screening criterion for TCE based on GE s proposed less conservative screening standards assuming industrial/commercial use and a 10-5 target cancer risk factor Based on arbitrary elevation of the target cancer risk from 10-6 to 10-5 by GE, the inappropriate assumption that a recreational use facility (i.e., the Golf Course clubhouse) should be treated as an industrial/commercial facility, and the inappropriate assumption that industrial/commercial uses would be maintained on the Golf Course indefinitely, GE concluded that for two of the three chemicals in paragraph 128, particularly 1,1-dichloroethane and 1,1-dichlorethene, the concentrations found in soil gas beneath the basement of the clubhouse do not impose remedial action requirements Even applying GE s less conservative analysis based on non-default, industrial/commercial land use and a 10-5 target cancer risk factor, TCE is present in soil gas at concentrations that require remedial action In the VI Report, GE and its environmental consultant ARCADIS arbitrarily selected non-default and non-conservative variables to use in risk assessment calculations in order to minimize the amount of remedial action that GE would have to perform to address vapor intrusion risks in residences, including the Beggs Residence, 20

21 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 21 of 34 PageID #:21 and at the Golf Course clubhouse, and in order to avoid alarming residents and land owners in the City of Morrison affected by the chlorinated industrial solvent contamination caused by GE. Land Use Restrictions and Institutional Controls for Vapor Intrusion Risks 138. GE has actually and/or implicitly proposed that an industrial/commercial land use restriction be applicable to the Golf Course GE has actually and/or implicitly proposed that any future buildings that may be constructed on the Golf Course contain and potentially utilize vapor intrusion mitigation technology in order to prevent chlorinated industrial solvents, including TCE and its breakdown products, from migrating as a vapor into future constructed buildings LAJIM never consented to an industrial/commercial land use restriction at the Golf Course LAJIM never consented to requiring the use of vapor intrusion mitigation technology for new construction at the Golf Course Without an industrial/commercial land use restriction at the Golf Course, and without institutional controls requiring future building construction to contain mitigation systems to address vapor intrusion risks, the foreseeable future redevelopment options for the Golf Course may result in human exposure to chlorinated industrial solvents, including TCE and its breakdown products, in indoor air. Inaction by the USEPA and the IEPA 143. Since the 1980s, the USEPA and the IEPA have been aware of and/or involved in regulatory and enforcement matters related to the groundwater contamination in the City of Morrison associated with the GE Facility. 21

22 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 22 of 34 PageID #: Despite the fact that USEPA and the IEPA have been aware of and/or involved in regulatory and enforcement matters related to the groundwater contamination in the City of Morrison associated with the GE Facility since the 1980s, the nature and extent of groundwater contamination associated with the GE Facility s operations has still not been defined Despite the fact that USEPA and the IEPA have been aware of and/or involved in regulatory and enforcement matters related to the groundwater contamination in the City of Morrison associated with the GE Facility since the 1980s, the groundwater contamination underlying the Golf Course has still not been remediated Despite the fact that USEPA and the IEPA have been aware of and/or involved in regulatory and enforcement matters related to the groundwater contamination in the City of Morrison associated with the GE Facility since the 1980s, the vapor intrusion risk to the Beggs Residence and the clubhouse on the Golf Course have not been remediated. GE s Outrageous Conduct 147. GE s manipulation and/or reckless or grossly negligent application of the quantitative groundwater modeling process to reach the incorrect conclusion that contaminated groundwater does not migrate beyond Rock Creek, and GE s willingness to hold onto that conclusion for over a decade, and to present that conclusion to the IEPA and the public as though it were fact, demonstrates the extent to which GE will go to shirk its environmental cleanup responsibility. 22

23 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 23 of 34 PageID #: GE s manipulation and/or reckless or grossly negligent application of the quantitative risk assessment process to calculate the most favorable vapor intrusion screening criteria, while leaving residents and landowners to unknowingly accept and tolerate risks that they may not and/or do not find acceptable, demonstrates the extent to which GE will go to shirk its environmental cleanup responsibility. COUNT I RCRA Injunction for Imminent and Substantial Endangerment 149. Plaintiffs adopt and re-allege paragraphs 1 through 148 as paragraph 149 of this Count I RCRA, at 42 U.S.C. 6972(a)(1)(B) gives private parties the right to obtain a judicial order requiring the owner and operator of a contaminated property to remedy hazardous waste contamination emanating and flowing from a contaminated property, stating in part as follows: Section 6972 Citizens Suits Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf (1) (B) against any person including any past or present generator, or past or present owner or operator of a disposal facility, who has contributed or 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 The district court shall have jurisdiction, without regard to the amount in controversy to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), to order such persons to take such other actions as may be necessary, or both. 23

24 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 24 of 34 PageID #: GE, through its actions and omissions, has caused or contributed to the past or present handling, storage, treatment and/or disposal of TCE and other chlorinated industrial solvents at and near the GE Facility GE s failure to take timely and sufficient corrective action from the 1980s to the present day to address the chlorinated industrial solvent contamination, including TCE, in soil and groundwater at the GE Facility and in groundwater down-gradient from the GE Facility has caused contaminated groundwater to be present underneath the Golf Course and in the Golf Course irrigation system GE s failure to take timely and sufficient corrective action from the 1980s to the present day to address the chlorinated industrial solvent contamination, including TCE, in soil and groundwater at the GE Facility and in groundwater down-gradient from the GE Facility has caused and/or may cause the intrusion of chlorinated industrial solvent vapors into the Golf Course clubhouse and into the Beggs Residence The presence and use of groundwater contaminated with chlorinated industrial solvents, including TCE and its breakdown products, in the Golf Course irrigation system now and in the future may present an imminent and substantial endangerment to human health and the environment The intrusion of chlorinated industrial solvent vapors, including TCE and its breakdown products, into Golf Course clubhouse and into the Beggs Residence now and in the future may present an imminent and substantial endangerment to human health and the environment There is no restriction indefinitely preventing the use of groundwater for potable and/or non-potable purposes throughout the entirety of the Golf Course, and the 24

25 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 25 of 34 PageID #:25 ongoing possibility of future redevelopment of the Golf Course in a way that may utilize groundwater for potable and/or non-potable purposes may present an imminent and substantial endangerment to human health and the environment There is no restriction preventing the residential redevelopment of the Golf Course or controlling the manner in which new buildings for any land use may be constructed on the Golf Course, and the ongoing possibility of future redevelopment of the Golf Course in a way that may allow contaminated vapors to migrate from the groundwater into buildings to be occupied and/or used by people may present an imminent and substantial endangerment to human health and the environment. WHEREFORE, Plaintiffs respectfully requests that this Court issue an Order that requires Defendant to do the following: A. Implement all corrective actions necessary to eliminate the threat of an imminent and substantial endangerment to human health and the environment posed by chlorinated industrial solvent contamination present at the Golf Course and the Beggs Residence. B. Pay Plaintiffs litigation costs, including without limitation, its reasonable attorney fees and expert fees, as authorized by 42 U.S.C. 6972(e). C. Provide Plaintiffs all other relief that this Court deems appropriate. COUNT II CERCLA Cost Recovery 158. Plaintiffs adopt and re-allege paragraphs 1 through 148 as paragraph 158 of this Count II. 25

26 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 26 of 34 PageID #: CERCLA, at 42 U.S.C. 9607(a), confers upon private parties the right to file a suit to recover their costs of responding to a release of hazardous substances from certain categories of liable parties, as follows: Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section (1) the owner and operator of a vessel or a facility, [and] (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for (B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; The amounts recoverable in an action under this section shall include interest on the amounts recoverable [which] shall accrue from the later of (i) the date payment of a specified amount is demanded in writing, or (ii) the date of the expenditure concerned GE is a person as defined in CERCLA, 42 U.S.C. 9601(21) The GE Facility, the Golf Course, and the Beggs Residence are facilities with the meaning of CERCLA, 42 U.S.C. 9601(9), 9607(a) TCE and other chlorinated industrial solvents, which have been released from the GE Facility, disposed of in the wetland adjacent to the GE Facility, and allowed to migrate via groundwater underneath the Golf Course and in the City of Morrison, Illinois, are hazardous substances with the meaning of CERCLA, 42 U.S.C. 9601(14), 9607(a) and 40 C.F.R The spilling, leaking, and/or escaping of TCE from the GE Facility into the groundwater underneath the Golf Course and the Beggs Residence constituted a disposal and release within the meaning of CERCLA, 42 U.S.C. 9607(a), 9601(22), 9601(29). 26

27 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 27 of 34 PageID #: GE is a current owner and operator of the GE Facility within the meaning of CERCLA, 42 U.S.C. 9607(a)(1), 9601(20) GE was an owner and operator of the GE Facility at the time of disposal of a hazardous substance within the meaning of CERCLA, 42 U.S.C. 9607(a)(2), 9601(20) The costs that Plaintiffs incurred to investigate the source, scope, extent, cause, and impact of chlorinated industrial solvent contamination, including TCE and its breakdown products, at the Golf Course and at the Beggs Residence, including certain investigatory attorney fees and all environmental consulting fees, were necessary costs of response within the meaning of CERCLA, 42 U.S.C. 9607(a), 9601(23), 9601(25). WHEREFORE, Plaintiffs respectfully requests that this Court enter a judgment which does the following: A. Holds Defendant strictly liable for all response costs that have been incurred by Plaintiffs to investigate and otherwise respond to the chlorinated industrial solvent contamination caused by GE that has migrated to the Golf Course and the Beggs Residence. B. Holds Defendant strictly liable for any pre-judgment interest. C. Provide Plaintiffs all other relief as the Court deems appropriate. COUNT III CERCLA Declaratory Judgment 167. Plaintiffs adopt and re-allege paragraphs 1 through 148 as paragraph 167 of this Count III. 27

28 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 28 of 34 PageID #: Pursuant to CERCLA, 42 U.S.C. 9613(g)(2) and 28 U.S.C. 2201, Plaintiffs have the right to a declaratory judgment that GE is liable to reimburse it for future necessary costs of response relating to the chlorinated industrial solvent contamination, including TCE and its breakdown products, originating from the GE Facility and migrating onto the Golf Course and the Beggs Residence, that will be binding on any subsequent action to recover such further response costs. WHEREFORE, Plaintiffs respectfully request that this Court enter a judgment which does the following: A. Grants Plaintiffs a declaratory judgment, binding on all subsequent actions to recover further response costs relating to the chlorinated industrial solvent contamination, including TCE and its breakdown products, at the GE Facility, the Golf Course, and the Beggs Residence and holding Defendant liable to reimburse Plaintiffs for all such future response costs. B. Provide Plaintiffs all other relief as the Court deems appropriate. COUNT IV Nuisance 169. Plaintiffs adopt and re-allege paragraphs 1 through 148 as paragraph 169 of this Count IV At all times relevant hereto, GE had a duty to operate the GE Facility, and handle, control and manage its TCE, chlorinated solvents and wastes, in a manner that would avoid causing or allowing hazardous substances, including TCE, to migrate onto adjacent properties, including the Golf Course and the Beggs Residence, at levels that cause or threaten damage to health or the environment, and adversely impact the value 28

29 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 29 of 34 PageID #:29 and marketability of the Golf Course and the Beggs Residence, and the ability to use such properties as security for loans GE s actions and omissions in mishandling TCE, chlorinated solvents, and wastes has caused a substantial, unreasonable invasion of Plaintiffs interest in the use and enjoyment of the Golf Course and the Beggs Residence that is continuing up through the filing of this complaint The contamination of groundwater at, on and beneath the Golf Course and the Beggs Residence continues unabated, as there is contamination at the GE Facility that continues to migrate from the GE Facility via groundwater to the Golf Course and the Beggs Residence The contamination of groundwater at, on and beneath Golf Course and the Beggs Residence has occurred and persists because of GE s acts and omissions, including, but not limited to, GE s past and current operation and maintenance of the GE Facility; GE s handling, storage, use and disposal of hazardous substances, including TCE; and GE s failure to timely and effectively clean up the chlorinated industrial solvent contamination, including TCE, and to prevent such contamination from further migrating via groundwater flow to the Golf Course and the Beggs Residence GE knew, or should have known, that hazardous substances, including TCE, were present in high concentrations at the GE Facility, and that the TCE and hazardous substances were migrating to adjacent properties, including the Golf Course and the Beggs Residence, since the 1980s, but GE failed to take timely and effective corrective action. 29

30 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 30 of 34 PageID #: The migration of TCE and chlorinated industrial solvent contamination due to GE s actions and omissions has substantially interfered with Plaintiffs use and enjoyment of the Golf Course and the Beggs Residence, and are the actual and proximate causes of damages to Plaintiffs, the Golf Course, and the Beggs Residence, harming the suitability of the Golf Course and the Beggs Residence for their current uses, and adversely affecting the value and marketability of those properties, and the ability to use those properties as security for loans. WHEREFORE, Plaintiffs respectfully prays for judgment in their favor against Defendant as follows: A. For injunctive relief restraining and enjoining Defendant from allowing continued contamination of the Golf Course and the Beggs Residence and compelling Defendant to take all actions necessary to abate the contamination of the Golf Course and the Beggs Residence. B. For an award of compensatory and other appropriate damages in amounts to be determined by the evidence at trial and allowed by law. this Court. C. For an award of punitive damages in an amount deemed appropriate by D. For such further relief as this Court deems appropriate. COUNT V Trespass 176. Plaintiffs adopt and re-allege paragraphs 1 through 148 as paragraph 176 of this Count V When GE caused or allowed its TCE, chlorinated industrial solvents and hazardous substances to migrate, and to continue to migrate, from the GE Facility and 30

31 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 31 of 34 PageID #:31 the wetland adjacent to the GE Facility onto the Golf Course and onto the Beggs Residence, GE unlawfully entered upon Plaintiffs properties with force, and invaded Plaintiffs possessory rights in those properties The migration of contamination from the GE facility and wetland adjacent to the GE facility via groundwater flow to the Golf Course and the Beggs residence continues through the time of the filing of this Complaint GE s trespass onto the Golf Course and the Beggs Residence constitutes a wrongful interference with Plaintiffs possessory rights Plaintiffs, the Golf Course, and the Beggs Residence have been damaged by GE s trespass in that the TCE, TCE breakdown products, and chlorinated industrial solvent contamination present an imminent and substantial endangerment to human health and the environment, impose costs upon Plaintiffs and, impair the suitability of the properties for their intended uses, their marketability, and their ability to be used as security for loans. WHEREFORE, Plaintiffs respectfully prays for judgment in their favor against Defendant as follows: A. For injunctive relief restraining and enjoining Defendant from allowing continued contamination of the Golf Course and the Beggs Residence and compelling Defendant to take all actions necessary to abate the contamination of the Golf Course and the Beggs Residence. B. For an award of compensatory and other appropriate damages in amounts to be determined by the evidence at trial and allowed by law. 31

32 Case: 3:13 cv Document #: 1 Filed: 11/01/13 Page 32 of 34 PageID #:32 this Court. C. For an award of punitive damages in an amount deemed appropriate by D. For such further relief as this Court deems appropriate. COUNT VI Negligence 181. Plaintiffs adopt and re-allege paragraphs 1 through 148 as paragraph 181 of this Count VI At all times relevant hereto, GE had a duty to operate and maintain the GE Facility and handle, control and manage its TCE, chlorinated solvents and wastes in a manner that would avoid causing or allowing hazardous substances, including TCE, to migrate onto adjacent properties, including the Golf Course and the Beggs Residence, at levels that cause or threaten damage to health or the environment, and adversely impact the value and marketability of the Golf Course and the Beggs Residence, and the ability to use such properties as security for loans GE s negligent acts and omissions, which continue through the time of the filing of this complaint, including, but not limited to, GE s operation and maintenance of the GE Facility; GE s handling, storage, use and disposal of TCE, chlorinated solvents, and hazardous substances, in violation of applicable environmental regulations and/or reasonable environmental standards; and or GE s failure to timely and effectively clean up its TCE, chlorinated industrial solvents, and wastes on the GE Facility to prevent the further migration of contamination via groundwater to the Golf Course and the Beggs Residence, breached GE s duty to Plaintiffs, and were the actual and proximate cause of substantial damage to the Golf Course, the Beggs Residence, and Plaintiffs enjoyment of those properties. 32