Gatzke v. City of W. Bend
| Decision Date | 04 May 2022 |
| Docket Number | Case No. 21-C-0243 |
| Citation | 601 F.Supp.3d 384 |
| Parties | Robert GATZKE, et al., Plaintiffs, v. CITY OF WEST BEND, WISCONSIN, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Jonathan B. Nace, Nidel & Nace PLLC, Rockville, MD, Jay A. Urban, Urban & Taylor SC, Milwaukee, WI, for Plaintiffs Robert Gatzke, Theresa Deuel, Bryan Schofield, Geoffrey Rickaby.
Christian M. Poland, Bryan Cave Leighton Paisner LLP, Chicago, IL, for Defendant Greenfield Worldtrade Inc.
Eric L. Maassen, Kelsey C. Boehm, Peter A. Tomasi, Foley & Lardner LLP, Milwaukee, WI, for Defendants Gehl Company, Berres-Gehl Manufacturing Company, Gehl Brothers Manufacturing Company.
Eric L. Maassen, Kelsey C. Boehm, Peter A. Tomasi, Foley & Lardner LLP, Milwaukee, WI, J. Wesley Webendorfer, Ronald R. Ragatz, DeWitt LLP, Madison, WI, for Defendant Manitou America Holding Inc.
Michael C. Lueder, Paul R. Jacquart, Timothy M. Hansen, Hansen Reynolds LLC, Milwaukee, WI, for Defendant Regal Ware Global, Inc.
DECISION AND ORDER
The plaintiffs in this action propose to represent a class of residents and property owners in the Villa Park subdivision of the City of West Bend, Wisconsin. They allege that, for decades, toxic chemicals from a city-owned landfill adjacent to the subdivision have been leaching into the groundwater and migrating to surrounding properties. West Bend has been aware of the groundwater contamination since the early 1980s and has taken measures to control and mitigate the harm, including closing the landfill and replacing contaminated well water with municipal water. The plaintiffs, however, believe that West Bend has not done enough to protect their properties from the contaminants and that it has failed to properly inform them of the extent of the contamination and its associated risks.
In their latest complaint,1 the plaintiffs seek damages for "economic losses," such as loss of property value, caused by the contamination of their properties, and an order requiring the defendants to fully remediate the contamination. (Compl. ¶ 49.) Although the plaintiffs claim that the contamination presents a risk of harm to human health, no plaintiff claims to have suffered bodily harm, sickness, or disease from exposure to contaminants. The defendants are the City of West Bend, two of its officers, and several private companies that may have disposed of hazardous waste at the landfill or succeeded to the liability of companies that did so.
The plaintiffs allege that all defendants are liable under various state-law theories, including negligence, strict liability, and creation of a nuisance. Because the parties are not completely diverse, these claims do not fall within the subject-matter jurisdiction of a federal court. See 28 U.S.C. § 1332(a). However, the plaintiffs also allege that West Bend's failure to properly respond to the release of chemicals from the landfill has resulted in violations of their constitutional rights. The plaintiffs allege claims for damages under 42 U.S.C. § 1983 against West Bend and two of its officers, Jay Shambeau (who has been City Administrator since 2016) and Doug Neumann (who has been Director of Public Works since 2015), in their personal capacities. The plaintiffs allege that the presence of these federal claims provides a basis for supplemental jurisdiction over the state-law claims. See 28 U.S.C. § 1367(a).
The City of West Bend and its officers now move for summary judgment on the federal claims. These defendants argue that, if the federal claims are dismissed, the court should relinquish supplemental jurisdiction over the state-law claims pursuant to 28 U.S.C. § 1367(c). I consider these matters in this order. I also consider the plaintiffs’ request that I defer considering the motion for summary judgment until the plaintiffs have had an opportunity to further develop the factual record. See Fed. R. Civ. P. 56(d).
The landfill at issue is known as the Schuster Drive Landfill. The City of West Bend began operating it in 1964, but it was used by other entities for waste disposal prior to that time. Because of its age, the landfill does not have an engineered liner designed to prevent contaminated liquids from reaching the groundwater beneath it. The landfill predates modern environmental regulation. Indeed, the Wisconsin Department of Natural Resources ("DNR"), which was created in 1967, did not exist when West Bend began operating the landfill. However, the DNR licensed the landfill in 1970 and has regulated it ever since.
In the late 1970s and early 1980s, testing revealed that contaminated groundwater underneath the landfill was migrating to surrounding properties. On October 31, 1983, the Wisconsin DNR sent a letter to the city stating that it was the DNR's opinion that leachate (essentially, contaminated liquid) from the landfill had altered the quality of the groundwater under the landfill and offsite. (ECF No. 41-7.) The DNR noted that the leachate had contaminated two private wells in the vicinity of the landfill. (Id. ) Among the contaminants found in the groundwater were hazardous volatile organic compounds ("VOCs"). (Id. ) The DNR stated that, unless the landfill was closed, the contamination would get worse and possibly spread to additional wells. The DNR required West Bend to close the landfill and strongly recommended that it immediately provide an alternative water supply to the affected private well owners. (Id. )
In December 1983, the City of West Bend agreed to the entry of a consent order issued by the DNR. (ECF No. 41-4.) Among other things, the order required the city to close the landfill by June 1, 1984, to provide an alternative source of water to a resident whose well was contaminated, and to devise a plan (to be supervised by the DNR) for monitoring conditions at the landfill and offsite after the landfill's closure. (Id. )
In September 1985, post-closure testing found that private wells in an area known as the Jansen subdivision were contaminated with VOCs. (ECF No. 41-5.) This finding caused the City of West bend to extend municipal water supply lines to the affected areas so that the contaminated private wells could be closed. (Id. ) The defendants state that the areas provided with municipal water included the area on which the Villa Park subdivision was later built. (Def. Prop. Finding of Fact ("PFOF") ¶ 15.2 )
In 1988, the city entered into a second consent order with the DNR. (ECF No. 41-5.) This order memorialized the discovery of the contaminated wells in the Jansen subdivision and the city's extension of municipal water to the area in 1986. The order also required the city to install groundwater monitoring wells at new locations. In 1991, the city and the DNR entered into a third consent order under which additional groundwater investigations were conducted. (ECF No. 41-6.)
During the 1990s, the city installed a network of wells for the purpose of extracting contaminated groundwater from the landfill and reducing the volume of contaminated groundwater migrating offsite. The wells are still operating to this day, and the city reports that, in 2020 alone, the wells extracted and treated approximately 20 million gallons of groundwater. (Def. PFOF ¶ 29.) The plaintiffs, however, note that the extraction system has had its share of problems over the years and has not always operated at full capacity.
On April 26, 2018, representatives of the DNR visited the landfill for a compliance inspection. (ECF No. 40-2.) Defendant Doug Neumann, the City of West Bend's Director of Public Works, was present for the inspection, as was Leo Linnemanstons, a hydrogeologist employed by the city's environmental consulting firm, AECOM Technical Services, Inc. During the inspection, one of the DNR representatives "strongly encouraged" Linnemanstons to perform a "desktop vapor assessment to determine the potential risk to off-site residents." (Id. at 2.) Linnemanstons understood this to mean that he should evaluate the potential for "vapor intrusion" from the plume of contaminated groundwater into nearby homes. (Linnemanstons Decl. ¶ 23.) Vapor intrusion occurs when volatile chemicals from underground pass though the foundation of a home or other structure and accumulate inside. The process is similar to radon gas seeping into homes. Vapor intrusion is not a problem outdoors, where the dangerous compounds are diluted by the air. But indoors the concentration of volatile compounds can pose a risk to the health of inhabitants. See Schmucker v. Johnson Controls, Inc. , 9 F.4th 560, 562 (7th Cir. 2021).
On May 9, 2018, the DNR representative made a written request to the city for "[a] proposed plan to evaluate the potential vapor pathway in nearby structures/residences (e.g., those within the footprint of the contaminant plumes)." (ECF No. 40-3.) In accordance with the DNR's request, the city asked Linnemanstons to prepare a desktop evaluation, which involved reviewing existing data to determine if vapor intrusion was a concern. On September 13, 2018, Linnemanstons provided a report to the DNR that contained the requested desktop evaluation. (ECF No. 40-4.) The report recommended further study of areas generally south of the landfill. After Linnemanstons submitted the report, he suggested that further study of the potential for vapor intrusion be conducted in phases. The DNR concurred with Linnemanstons’ proposal, and the city authorized Linnemanstons to proceeded with the investigation.
The investigation began in the first quarter of 2019 with the installation of monitoring wells. Later, Linnemanstons tested groundwater at certain residences, tested for vapors immediately below the foundations of residences (sub-slab testing), and took indoor air samples from residences. Results were submitted to the DNR on September 18, 2019. The sub-slab testing showed that, at some residences, concentrations of VOCs underneath the...
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