Neighbors 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 have incurred.

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 tort claims.

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 Rose’s decision to dismiss the two RCRA claims. The appeals process could take 12 to 18 months.

Altman said that the appeal questions whether the State’s 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 federal law.

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. “We’re going to move ahead and proceed with what we’re going to do to respond” to the appeal,” she said.

Abel also said that the appeal will not affect YSI’s investigation and remediation plans, explaining that the company will proceed on all technical activities.

In a press release on the appeal, Rick Omlor, YSI’s president and CEO, said, “Regardless of the legal process, we are pushing ahead on the contamination investigation process and will begin remediation this summer.”

Altman contended that the State’s 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 YSI’s cooperating a little different than the State does,” Altman said, adding that he wants to independently verify YSI’s findings and information. While the State of Ohio has done “little to challenge” YSI’s findings, Altman said, “we, on the other hand, thought YSI wasn’t coming clean.”

Abel said that it was “hard to respond” to Altman’s allegations because they were “general statements.”

She also indicated that Altman has tried to make similar allegations in the past. “We’ve been dancing this dance for a while, where he makes allegations, but it’s hard for us to respond to them,” Abel said.

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 we’ve tried to do what we can to get information out there that’s 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 Altman’s allegations about the State’s 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,” Lauer said.

Matt Justice, the Ohio EPA’s 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 this time.”

—Robert Mihalek