of YSI appeal dismissal in federal lawsuit
As expected, three neighbors of YSI Incorporated last month filed an appeal
challenging the dismissal of two of their claims against the company in
a federal lawsuit.
The neighbors attorney, D. David Altman of Cincinnati, also said
on Monday that they would likely take further action by separating
the case into two parts, federal claims and state claims and file a state
lawsuit against YSI, possibly by the middle of the month. The state counts
are tort claims pertaining to damages the neighbors alleged that they
The neighbors, Bob Acomb, Fred Arment and Lisa Wolters, filed the suit
last July, claiming that hazardous waste and chemicals from YSI had contaminated
their Miami Township properties as well as the groundwater the neighbors
have consumed and used. The neighbors asked the District Court to order
YSI, with oversight by the neighbors, to thoroughly, verifiably
and comprehensively investigate and disclose the environmental contamination
and to remediate the areas affected by the release of chemical wastes.
The suit contained three federal claims, one under the Comprehensive Environmental
Response, Compensation and Liability Act, or CERCLA, and two under the
Resource Conservation and Recovery Act, or RCRA, as well as five state-level
In January, U.S. District Court Judge Thomas Rose dismissed the two RCRA
claims, saying that the neighbors were barred from suing the company because
YSI is under orders from the Ohio Environmental Protection Agency and
because the State of Ohio filed a lawsuit against the company in a Greene
County court after YSI revealed that employees dumped the chemical 1,1,1-trichloroethane
(1,1,1-TCA) onto the ground between 1985 and 1992 or 1993.
In response, the neighbors withdrew the third federal claim, though they
may refile it later, as well as the state claims, according to Altman.
Then on April 9, the neighbors filed a note of appeal with the Sixth Circuit
Court of Appeals in Cincinnati, challenging Roses decision to dismiss
the two RCRA claims. The appeals process could take 12 to 18 months.
Altman said that the appeal questions whether the States lawsuit
amounts to diligent prosecution and asks, Did Judge Rose jump the
gun on our RCRA case? Altman said that the State is not doing
enough to block a citizen inquiry that wants full enforcement of
He said that he and the neighbors believe the State is not diligently
prosecuting its case against YSI, giving the neighbors the right to sue
YSI in federal court.
Lisa Abel, the YSI director of corporate social responsibility, said that
the appeal did not surprise the company since Altman had said previously
that the neighbors would take that action. Were going to move
ahead and proceed with what were going to do to respond to
the appeal, she said.
Abel also said that the appeal will not affect YSIs investigation
and remediation plans, explaining that the company will proceed on all
In a press release on the appeal, Rick Omlor, YSIs president and
CEO, said, Regardless of the legal process, we are pushing ahead
on the contamination investigation process and will begin remediation
Altman contended that the States investigation has not found all
the chemicals that the company used that have potential for human
and environmental impacts as well as other contaminant sources.
Altman said that he and his clients believe that YSI disposed of chemicals
that the company has not made public. When asked for more information
on this allegation, Altman said that he would release it to the court,
which would make it public, sooner rather than later.
We look at YSIs cooperating a little different than the State
does, Altman said, adding that he wants to independently verify
YSIs findings and information. While the State of Ohio has done
little to challenge YSIs findings, Altman said, we,
on the other hand, thought YSI wasnt coming clean.
Abel said that it was hard to respond to Altmans allegations
because they were general statements.
She also indicated that Altman has tried to make similar allegations in
the past. Weve been dancing this dance for a while, where
he makes allegations, but its hard for us to respond to them,
But Abel also said that YSI has attempted to be open and transparent
with the public since it discovered water contamination on its Brannum
Lane property two years ago. We feel like weve tried to do
what we can to get information out there thats about the groundwater
impacts, she said.
She also noted that YSI has taken more than 100 soil samples and close
to 100 groundwater samples, is monitoring the groundwater on and around
its property every quarter and has installed 15 monitoring wells on and
around the property to determine the extent of the groundwater contamination.
Heather Lauer, a spokeswoman for the Ohio EPA, said that without more
specific information she could not comment on Altmans allegations
about the States investigation. She said that the agency would welcome
more information from Altman. If he has information that he is holding
that would lead him to those conclusions, we would like to see it because
our ultimate goal is to protect human health and the environment,
Matt Justice, the Ohio EPAs site coordinator on the YSI investigation,
said, Mr. Altman has been afforded many opportunities to provide
information to us, but the agency has received nothing at