state claims still valid
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 lawsuits five tort claims, which are
based on state rather than federal law, the action seemed a favorable
one for YSI.
Its 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 doesnt
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 YSIs 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 companys 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
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 judges decision.
The plaintiffs asserted that the Ohio EPA was not pursuing its investigation
and cleanup with digilence, but digilence of a states 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 EPAs lack of digilence, he said, the state takes YSIs
word for things we think should be tested.
Adding to the decision to dismiss the RCRA claims was a deficiency in
the plaintiffs notice letter, according to the judges statement.
Altman said that his clients had not yet decided whether or not to appeal
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 judges 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, its 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 judges 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.