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Plaintiff Grace Christian Fellowship (Grace) filed this action against KJG Investments, Inc. (KJG) and Colony Insurance Co. (Colony) pursuant to the RCRA citizen suit provision; state law claims for continuing trespass, nuisance, and negligence were also asserted. The case focused on a plume of contaminants from a service station. Apparently, one of a series of spills over time resulted in vapor intrusion into the Church; the building was shutdown and actions taken to address the plume and vapors.
Plaintiff sought an preliminary injunction pursuant to FRCP 65(a) and 42 U.S.C. § 6972(a)(1)(B) requiring defendant “KJG to take specific investigatory and remedial steps to protect the children, teachers, staff, church members and employees who use Grace's building, from the gasoline saturated soils and 'free product' beneath Grace's building and the gasoline vapors which are emanating from under Grace's basement.” Defendants alleged that the dangerous situation vis-à-vis the interior of the building no longer existed, and that absent showing of irreparable harm the injunction should not issue.
Grace Christian Fellowship v. KJG Investments Inc. et al, 2009 U.S. Dist. LEXIS 76954 (E.D. Wis. 2009), the District Court addressed the issue. The Court noted that “…a party seeking a preliminary injunction must demonstrate that 1) absent a preliminary injunction, it will suffer irreparable harm in the interim period prior to a final resolution of its claims; 2) traditional legal remedies would be inadequate; and 3) its claim has some likelihood of success on the merits.” Further, these principles apply even when the statute authorizes injunctive relief. Also, “The court of appeals for this circuit has held that there are two circumstances under which a court may enter an injunction without balancing the equities: cases in which the defendant's conduct has been willful and cases in which the plaintiff is a sovereign and the activity may endanger the public health.” Since RCRA does not evidence any intent to overrule the traditional analytical approach to ascertaining if an injunction should issue, the Court found it would follow that analytical framework.
Factually the Court found that “In this case, it is undisputed that sometime between April 20, 2006, and April 26, 2006, a gasoline spill occurred at the KJG Site and migrated to the Grace Site. Although some of the spill was captured by a sump below the gas dispenser island at the KJG Site, an unknown quantity of gasoline migrated to Grace's basement sump. On April 26, 2006, gasoline vapors entered Grace's basement sump and several employees and students became ill from the odors. The Milwaukee Fire Department (MFD) subsequently declared the Grace building uninhabitable, set up an emergency venting system, and ordered the electricity be shut off to avoid an explosion.
The plaintiff initiated an emergency response. The plaintiff's contractor pumped free product from the Grace building's footing drain tiles and excavated contaminated soil. The contractor also installed a blower to address vapors from contamination that could not be removed. On May 1, 2006, the DHFS determined that the building was safe and the plaintiff was allowed to reoccupy and use its building.” Both the State and environmental contractors for the defendants have found that the building is safe to occupy; the testimony of plaintiff’s expert was not deemed persuasive.
The Court thus concluded: “In sum, based on the evidence presented, the plaintiff has not established that there is a complete exposure pathway from any gasoline vapors in the sub-slab under the Grace basement (or the utility trench) to the Grace building. The plaintiff has not shown that gasoline vapors are present in the Grace building creating ‘an imminent and substantial endangerment to health or environment.’ 42 U.S.C. § 6972(a)(1)(B). Accordingly, the plaintiff has failed to establish that absent a preliminary injunction, it will suffer irreparable harm in the interim period prior to a final resolution of its claims…Therefore, the plaintiff's motion for a preliminary injunction will be denied.”