Plaintiff Manleys filed a lawsuit against General Motors seeking a court order requiring GM to fence off a portion of plaintiffs’ land that plaintiffs contend is polluted with PCBs from GM’s facility. The Manleys raise paint horses. One year all foals born of mares that watered at the creek adjoining GM’s property died, but no veterinary examinations were conducted to determine the cause of death.
In this trial court opinion, the court decides that the plaintiffs have not proved the need for a court order to require GM to erect a fence on their property. There was insufficient evidence of PCB contamination on its property. Besides, there is nothing to prevent plaintiffs from erecting a fence and then suing GM for its cost if plaintiff can show building the fence was necessitated by GM contamination.
Plaintiffs Gary A. Manley and Mary Alice Johnson Manley and William J. Woody and Robin T. Woody, et al., moved for a preliminary injunction against Defendant General Motors Corporation, asking the Court to require Defendant to demarcate, fence, and place signs around areas of environmental contamination on their properties. For the reasons set forth in detail below, we DENY Plaintiffs' Motion for Injunctive Relief.
Plaintiffs, Gary A. Manley and Mary Alice Johnson Manley ("the Manleys") and William J. Woody and Robin T. Woody, et al. ("the Woodys") (collectively, "Plaintiffs"), are Bedford, Indiana residents. Manley Compl. ¶ 1, Woody Compl. ¶ 1. Defendant General Motors Corporation ("GM") is a Delaware corporation with its principal place of business in Detroit, Michigan. Manley Compl. ¶ 2, Woody Compl. ¶ 2. The GM Powertrain Group has a Plant in Bedford, Indiana, which produces aluminum casting products, such as transmission cases, pistons, and engine blocks. In March of 2001, GM entered into a Voluntary Corrective Action Agreement ("Agreement") with the U.S. Environmental Protection Agency ("EPA"), in which GM agreed "to work independently and voluntarily to investigate, and as necessary stabilize and remediate releases of hazardous wastes or hazardous constituents at or from the [Plant]." Pls.' Mot. for Inj. Relief, Ex. A.
Plaintiffs claim that certain hazardous wastes, namely polychlorinated biphenyls ("PCBs"), were released from the Plant into waterways in the Bedford area and resulted in the contamination of Plaintiffs' properties. Manley Compl. ¶ 5, Woody Compl. ¶¶ 5, 12. Plaintiffs argue further that this contamination of their properties is a nuisance as defined by Ind.Code § 34‑1‑52‑1. Manley Compl. ¶¶ 9‑10, Woody Compl. ¶ 10. As a result of this alleged nuisance, Plaintiffs claim to have suffered toxic health effects, emotional distress, the loss of the use and enjoyment of their land, and the loss of substantially all the value of their properties. Manley Compl. ¶¶ 16‑21, Woody Compl. ¶¶ 16‑21.
The Manleys own 104 acres of land which they purchased in 2001 and upon which they constructed a residence in 2002. Manley Compl. ¶¶ 1, 7. The Manleys raise registered paint horses on their land. In the spring of 2002, the "bottom 15" acres of the Manley property near the allegedly contaminated Salt Creek flooded. All foals born to mares that watered at the creek died. As a result of this unfortunate occurrence, the mares were dry lotted and watered with city water purchased from the city of Bedford. Although Mrs. Manley began a search for an expert to conduct autopsies on the foals, no expert autopsy was ever conducted to determine the foals' cause of death. The Manleys have fenced various sections of their property as it became necessary for the efficient care of their horses. They have not, however, fenced off the "bottom 15" flood‑ prone acres of their property.
The Manleys were first alerted to the possibility that their property was contaminated by PCBs in May 2002. At the end of that month, GM performed soil sample tests on the property, the results of which showed no detectable amounts of PCBs on the Manleys' property. GM provided the Manleys with the results of its testing in a packet, which included among other things a coded map indicating from where on the property the samples were taken as well as whether they met certain screening criteria. Ex. F‑1.
The Woodys have lived with their two minor children and pets in their current residence since 1995. Woody Compl. ¶¶ 1, 6‑7. When the Woodys built their residence, they used rocks and sand from the allegedly contaminated Bailey's Branch, a creek which borders their property, to landscape their property as well as to build retaining walls and a firepit, which they use to entertain friends and business associates. In addition, they use the area along the creek for picnics and gardening. Around December 2001, a GM representative, Kim Dobosenski, warned the Woodys to stay out of those areas, and the Woodys have not used them since.
In January 2002, GM conducted soil, rock, and well‑water sampling of the Woodys' property. Mr. Woody was present at the time some of the samples were taken. Although he believed the samples to be inadequate both in terms of number and location, he has not hired any experts of his own to form a basis of comparison. In March 2002, GM made known to the Woodys the results of the sampling in a packet, which included among other things a coded map indicating from where on the property the samples were taken as well as whether they met certain screening criteria. Ex. C‑1. Although detectable levels of PCBs were found in samples taken from the creek bed, no samples taken from areas surrounding the Woodys' house, including the firepit, revealed detectable levels of PCBs.
In mid‑summer 2002, the Woodys erected a sign at the entrance to their property to forewarn visitors of the presence of PCBs, which they removed in November 2002. The Woody property is private; however, the city of Bedford has an easement to use the Woodys' road to get to a sanitary lift station located in the western portion of the property near the creek. In addition, Mr. Woody claims that this area is also frequented by teenagers. Although Plaintiffs presented no evidence that the Woodys or any visitors to the Woodys' property have been injured by PCBs, the Woodys fear adverse long‑term health effects.
On January 24, 2003, the Court held a hearing on Plaintiffs' Motion for Injunctive Relief. At the hearing, Plaintiffs submitted evidence such as photos of signs posted by GM in the area surrounding the Bedford Plant as well as a map of Lawrence County constructed by Mr. Woody, which plotted the locations where GM had posted signs warning the public to avoid waterways that may be contaminated with PCBs. In turn, GM presented to the Court exhibits including C‑1 and F‑1, detailed maps of the Plaintiffs' properties coded to reflect the sampling locations and PCB detection levels. [FN1]
FN1. At the conclusion of the January 24, 2003 hearing, the Court asked GM if it would voluntarily provide six signs comparable to the exhibit it had brought to court to each of the Plaintiffs for posting on their property. GM provided these signs to Plaintiffs on February 4, 2003. We note that in providing these signs to Plaintiffs, GM assumes responsibility neither for the posting of these signs nor for any resulting consequences.
Plaintiffs request that the Court issue a mandatory preliminary injunction, which would require GM to:
Provide plaintiffs with an opinion from a qualified scientist/toxicologist describing the need to demarcate, fence, and place warning signs around the areas of PCB contamination on the property of the plaintiffs that constitute an imminent threat of endangerment to human health and/or the environment based on U.S. EPA and/or Indiana Department of Environmental Management soil screening levels for residential property.
Pls.' Reply p. 2. (Plaintiffs stipulated to the dismissal of sub‑paragraphs 1, 2 and 3 of their original Motion for Injunctive Relief.) In order to be entitled to a preliminary injunction, the moving party, Plaintiffs here, must demonstrate:
(1) some likelihood of prevailing on the merits, and (2) an inadequate remedy at law and irreparable harm if preliminary relief is denied. If the movant clears these two thresholds, the court must consider (3) the irreparable harm the nonmovant will suffer if preliminary relief is granted, balanced against the irreparable harm to the movant if relief is denied, and (4) the public interest, meaning the effect that granting or denying the injunction will have on nonparties.
Grossbaum v. Indianapolis‑Marion County Bldg. Auth., 63 F.3d 581, 585 (7th Cir.1995). These factors do not assume absolute weights. Instead, courts use a sliding scale approach, under which "the more likely it is that plaintiff will succeed on the merits, the less the balance of irreparable harms need weigh towards its side; the less likely it is the plaintiff will succeed, the more the balance need weigh toward its side." Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6, 12 (7th Cir.1992). In addition, because Plaintiffs are asking for a mandatory injunction (an injunction compelling the defendant to take action), they must provide evidence sufficient to justify a remedy that is "cautiously viewed and sparingly used." Kimbley v. Lawrence County, Ind., 119 F.Supp.2d 856, 874 (S.D.Ind.2000) (Barker, C.J.).
A. Likelihood of prevailing on the merits
For an injunction to issue, Plaintiffs must demonstrate some likelihood of prevailing on their nuisance claim. Although there is a minimum threshold for likelihood of success, the Seventh Circuit held in Roland Machinery Co. v. Dresser Indus., Inc., 749 F.2d 380 (7th Cir.1984), that it is a low one: "[i]t is enough that the plaintiff's chances are better than negligible." Id. at 387 (internal quotations omitted). Applicants for interim injunctive relief with relatively weak cases will not always obtain injunctions, however. The less compelling the case on the merits, the greater the showing of irreparable harm must be. Sofinet v. I .N.S., 188 F.3d 703, 707 (7th Cir.1999).
Indiana defines a nuisance as follows: Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property.
Ind.Code § 34‑1‑52‑1. When determining what constitutes a nuisance, the question is whether it is reasonable to believe that the situation would naturally produce physical discomfort to persons of ordinary sensibilities, tastes and habits. Wendt v. Kerkhof, 594 N.E.2d 795, 797 (Ind.App.1992). Plaintiffs' allegations that their property is unmarketable and that their health, and that of their animals, is at risk due to PCB contamination state a claim for nuisance. See Gray v. Westinghouse Elec. Corp., 624 N.E.2d 49, 54 (Ind.App.1994). Plaintiffs, however, have provided no evidence that the contamination of their land by PCBs released from GM's Bedford Plant poses a dangerous threat to Plaintiffs' health and that the erection of fences and signs will decrease this threat.
Plaintiffs have not put forth any evidence to rebut the results of well‑water and soil sampling of the Woody property and the results of soil sampling of the Manley property offered by GM at the hearing. See Def.'s Exs. A‑C, F. Although Plaintiffs testified at the hearing that they believe the testing done by GM was inadequate (both in terms of the number and location of samples taken and the level of PCB detection that GM considered safe), Plaintiffs have not hired experts of their own to provide a basis of comparison. In addition, Plaintiffs testified at the hearing that they fear an increased risk of cancer, yet they have not taken any precautionary steps in this regard, including not taking advantage of the free blood testing offered by GM to determine and monitor Plaintiffs' exposure to PCBs.
In support of the Motion for Preliminary Injunction, Plaintiffs submit the Agreement that GM entered into with the EPA. The Agreement does not, however, directly support their position. It does not mention Plaintiffs or their property specifically; it does not hold GM liable for any violation of law; and it provides that "all current human exposures to contamination at or from the Site" and that "migration of contaminated groundwater at or from the Site" must be under control by January 30, 2005, and April 30, 2007, respectively. As these dates are more than two years in the future, they do not support Plaintiffs' request for an immediate preliminary injunction. Given the paucity of Plaintiffs' evidence, we find that the likelihood that Plaintiffs will prevail on the merits of their cases, while perhaps "better than negligible," is patently weak. As such, under the sliding scale approach to the preliminary injunction standard, Plaintiffs must make a strong showing of irreparable harm to justify a preliminary injunction.
B. Inadequate remedy at law and irreparable harm if preliminary relief is denied
Plaintiffs bear the burden of demonstrating the necessity of the injunction, i.e., the existence of irreparable harm. Smith v. Office of Civilian Health and Medical Program of the Uniformed Services (CHAMPUS), 884 F.Supp. 303, 308 (S.D.Ind.1994) (Barker, C .J.), rev'd on other grounds, 97 F.3d 950 (1996), cert. denied, 519 U.S. 1144 (1997). A showing of irreparable harm is insufficient if the harm will occur only in the indefinite future: the moving party must make a clear showing of immediate irreparable harm. Id. (citations omitted). Irreparable harm is that which cannot be prevented or fully rectified by the entry of final judgment after trial. Graham v. Med. Mut. of Ohio, 130 F.3d 293, 296 (7th Cir.1997).
Plaintiffs argue that they are already suffering irreparable harm to their health and that of their animals (horses, dogs, and strays) by virtue of the fact that PCBs are carcinogens. [FN2] Plaintiffs claim that "[t]he need for a fence and warning signs for the residential property of the plaintiffs is self‑evident" because there is no other way for Plaintiffs to know what areas of the property may have been damaged by the PCB‑contaminated streams and to limit access to and use of those areas. Pls.' Reply p. 3. Plaintiffs argue by analogy to another case involving PCBs where similar measures were undertaken by Westinghouse (now Viacom) during its rehabilitation of the Lemon Lake Superfund site in Bloomington, Indiana.
FN2. With regard to the irreparable nature of the harm to Plaintiffs' property, under Indiana law, PCB contamination of land will generally be considered a temporary injury capable of being remediated or "repaired." Terra‑Products, Inc. v. Kraft Gen. Foods, Inc., 653 N.E.2d 89, 92 (Ind.App.1995). Plaintiffs may recover, in damages, the cost of repair and, under certain circumstances, the reduction in the property's fair market value after repair due to the stigma of PCB contamination. Id. at 93‑94. As harm to property is compensable with money damages, it is ordinarily not an appropriate subject of a preliminary injunction.
GM, on the other hand, argues that fences and signs are unnecessary because, after it tested Plaintiffs' properties, its representatives gave Plaintiffs data packets, which included maps of Plaintiffs' properties indicating the locations from which samples were taken and the codes of the samples which reflect whether they met certain screening criteria. Exs. C‑1 and F‑1. GM contends that if Plaintiffs need a boundary demarcated, they may identify one from the data GM has provided them. We must agree with GM on this point.
As stated above, Plaintiffs have not submitted to blood tests to determine the extent of the harm, if any, caused by their exposure to PCBs, and even if they had, they have not offered evidence, other than their own testimony, that erecting a fence or a sign would immediately decrease their exposure to PCBs and therefore obviate any increased risk of cancer Plaintiffs might face. Regardless of any evidentiary deficiencies, however, Plaintiffs cannot overcome the fact that they have a remedy at law for the problem at issue in their motion. They could themselves, for example, pay for a "qualified scientist/toxicologist" to examine their properties and identify the area of the properties damaged by contaminated creek water, and then erect a fence along that boundary. Subsequently, they could sue GM to recover these costs, if GM is deemed liable for such damages.
Plaintiffs have already demonstrated that self‑help is not beyond their reach. At the hearing, Mr. Woody testified that he had put up a sign at the entrance to his property warning prospective visitors of PCB contamination. (He has since taken down the sign.) Similarly, Mrs. Manley testified that she had begun to make inquiries of experts to determine the effect of PCB contamination on the deaths of their horses. Plaintiffs admit that building a fence is "inexpensive" (indeed, Mr. and Mrs. Manley have erected other, fairly substantial fencing on their property to manage their horses efficiently) and while the demarcation of the boundary may not be cheap, we note that Plaintiffs are not entitled to shift the burden to GM to arrange and pay for expert reports and other costs of litigation. The Seventh Circuit has recognized that the burdens and expenses of the legal process are not irreparable injury. See Owens‑Corning Fiberglass Corp. v. Moran, 959 F.2d 634, 636 (7th Cir.1992). [FN3]
FN3. GM strongly encourages the Court to consider, as evidence against a finding of irreparable harm, the four month delay between the time GM filed its Answer to Plaintiffs' Complaint and the time Plaintiffs filed their Motion for Injunctive Relief. Although the fact of delay between the time a plaintiff knows about or should know about the alleged injury and the time the plaintiff moves for injunctive relief is relevant to a court's finding of irreparable harm, it is not dispositive. See Ideal Industries, Inc. v. Gardner Bender, Inc., 612 F.2d 1018, 1025 (7th Cir.1979). Because four months is a not a long delay as compared to other cases and because it appears GM has not relied to its detriment on Plaintiffs' inaction, we note the delay, but find it of little persuasive value. See, e.g., Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 903 (7th Cir.2001) (eight month delay not unreasonable); In re: Aimster Copyright Litigation, 2002 U.S. Dist. LEXIS 21453, 2002 WL 31006142, *24 (N.D.Ill.2002) (sixteen or seventeen month delay appears less objectionable when assessed in light of parties' situation and affect on defendant).
For the reasons stated above, we hold that Plaintiffs have not made a showing of irreparable harm, and as such, the threshold requirements for a preliminary injunction to issue have not been met. Therefore, Plaintiffs' Motion for Preliminary Injunction must be denied.
Plaintiffs seek a preliminary mandatory injunction against GM, asking the Court to require GM to demarcate, fence, and place signs around areas of environmental contamination on their properties. For the reasons set forth above, we find that the requirements of a preliminary injunction have not been met. We therefore DENY Plaintiffs' Motion for Injunctive Relief.
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