February 20, 2003
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Five state claims still valid—
Court dismisses two counts in YSI environmental suit

Last month a federal judge dismissed two federal counts, and stayed a third, of a lawsuit three neighbors filed against YSI Incorporated. Recently, the neighbors requested that the court dismiss the third claim, according to their attorney.

While Judge Thomas Rose of the U.S. District Court in Dayton did not dismiss, in his Jan. 22 decision, the lawsuit’s five tort claims, which are based on state rather than federal law, the action seemed a favorable one for YSI.

“It’s good for us,” said Lisa Abel, the YSI director of corporate social responsibility. “It puts many of the legal issues behind us so we can focus on the investigation and cleanup. It doesn’t clear the litigation slate but it helps us move forward.”

David Altman, the Cincinnati attorney who represents YSI neighbors Bob Acomb, Fred Arment and Lisa Wolters, stressed in a recent interview that the action does not bring the lawsuit to a close.

“The litigation is not finished,” he said.

Acomb said that he could not comment on the case, and Arment and Wolters were out of town and unavailable for comment.

The neighbors filed the suit last July, claiming that hazardous waste and chemicals from YSI had contaminated their properties. The suit contained three federal counts, one under CERCLA, the Comprehensive Environmental Response, Compensation and Liability Act, and two under RCRA, the Resource Conservation and Recovery Act, plus five state tort claims.

Judge Rose dismissed the two RCRA claims and stayed the CERCLA claim, and did not dismiss the tort claims, which request compensation for nuisance, trespass, negligent environmental contamination, infliction of emotional distress and injury from dangerous activity.

The neighbors filed the suit a year after YSI’s discovery, in the spring of 2001, of groundwater contamination in several wells on its property as well as in several neighboring wells including those of the three neighbors who filed the suits. While the company initially did not know the source of contamination, an internal investigation revealed that a few YSI employees dumped hazardous wastes on the company’s property in the late 1980s and early 1990s.

Since the discovery of the contamination, YSI has said that it wants to pursue an open process of addressing the contamination, and has held meetings with neighbors and community members to discuss solutions to the problem, and made available to the public internal communications regarding the issue.

Judge Rose dismissed the citizen suit claims because the Ohio Environmental Protection Agency has, since April 2002, put YSI under an administrative order and is working with the company to remediate the contamination. Because the Ohio EPA is currently addressing the problem, citizens are barred from suing the company, according to the judge’s decision.

The plaintiffs asserted that the Ohio EPA was not pursuing its investigation and cleanup with digilence, but “digilence of a state’s prosecution is presumed,” Rose said.

Regarding that decision, “we respectfully disagree that digilent prosecution should be presumed,” Altman said. As an example of the Ohio EPA’s lack of digilence, he said, “the state takes YSI’s word for things we think should be tested.”

Adding to the decision to dismiss the RCRA claims was a deficiency in the plaintiff’s notice letter, according to the judge’s statement.

Altman said that his clients had not yet decided whether or not to appeal the decision.

Judge Rose stayed a third federal claim, which sought to recover financial damages brought on by the contamination. The judge gave the plaintiffs 21 days to submit additional documents to further establish their “innocence” as landowners rather than parties responsible for the contamination.

However, said Altman, his clients have asked the court to dismiss this count, responding to the judge’s concern that the claim may not be “ripe” at this time, due to a lack of clearly identified “costs” already borne by the plaintiffs. The claim may be submitted at a later date, Altman said.

If the third federal claim is dismissed, it’s possible that the court will also dismiss the state claims, said Altman. If so, his clients may choose to pursue the tort claims in the state courts, or they may appeal the judge’s decision in federal court.

In the meantime, YSI continues to address the problem, Abel said. The company has completed two rounds of testing in an attempt to determine the extent of the contamination, and was recently asked by the Ohio EPA to conduct a third round, she said. The company will pursue a third round of sampling in the next several months.

—Diane Chiddister