State of Ohio, ex rel., Michael DeWine, Ohio Attorney General v. Superior Fibers, Inc. et al

Filing 41

ORDER finding as moot 38 Motion for Leave to File; granting in part and denying in part 2 Motion for Preliminary Injunction. Signed by Judge George C. Smith on 9/30/15. (lvw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

STATE OF OHIO, ex rel.
MICHAEL DeWINE
OHIO ATTORNEY GENERAL,
Plaintiff,
Case No.: 2:14-cv-1843
JUDGE SMITH
Magistrate Judge Kemp

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SUPERIOR FIBERS, INC., et al.,
Defendants.

OPINION AND ORDER
Plaintiff, the State of Ohio, initiated this case against Defendants Superior Fibers, Inc.,
William Miller, Superior Bremen Filtration, LLC, and Reichhold, Inc. and immediately moved
for a preliminary injunction to “enjoin Defendants . . . to implement an Interim Action to address
a plume of ground water contamination caused by the disposal of waste solvents at the
manufacturing facility located at 499 North Broad Street, Bremen, Fairfield County, Ohio.” (See
Attachment A to Pl.’s Mot., Doc. 2). Plaintiff alleges that Defendants have violated the
Comprehensive Environmental Response Compensation and Liability Act of 1980 (“CERCLA”),
as amended 42 U.S.C. §§ 9601 et seq., and Ohio’s surface water and hazardous waste laws under
Ohio Revised Code §§ 6111.07(B), 3734.10, 3734.13(C), 3734.20(B), 3767.02-3767.06.
Plaintiff’s Motion is fully briefed and ripe for review. For the reasons that follow, Plaintiff’s
Motion for Preliminary Injunction is GRANTED IN PART AND DENIED IN PART.

I.

BACKGROUND

The following facts are set forth for the limited purpose of addressing the immediate
motion before the Court. It should be noted that any findings of fact and conclusions of law
made by a district court in addressing a request for injunctive relief are not binding at a trial on
the merits. See United States v. Edward Rose & Sons, 384 F.3d 258, 261 (6th Cir. 2004) (citing
Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981)).
A.

The Parties
This matter involves the contamination of ground water caused by the disposal of waste

solvents at the manufacturing facility located at 499 North Broad Street, Bremen, Fairfield
County, Ohio (hereinafter “manufacturing facility” or “site”). This manufacturing facility has
had several owners over the years.
Defendant Reichhold, Inc. was the owner and operator of the manufacturing facility from
around February 20, 1964 until May 11, 1984. Defendant Reichhold used trichloroethylene
(“TCE”) as a solvent in it manufacturing process and it disposed of or discharged TCE during its
operation of the manufacturing facility. On September 30, 2014, Defendant Reichhold filed a
Chapter 11 Voluntary Petition in the Bankruptcy Court for the District of Delaware, Case No.
14-12237-MFW.1 (Compl. at ¶¶ 11-13, 17-20, Doc. 1).
Defendant Superior Fibers, Inc. was the owner and operator of the manufacturing facility
from on or about May 11, 1984 until October 11, 2006. Defendant Superior Fibers
manufactured fiberglass media at the manufacturing facility. Superior Fibers also used TCE as a

1

The State of Ohio’s commencement and continuation of this action against Defendant Reichhold is
exempted from the automatic stay provision of the United States Bankruptcy Code pursuant to 11 U.S.C.
§ 362(b)(4).

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solvent in its manufacturing process and disposed of the solvent during the time it operated the
facility. Defendant William Miller is also named as an individual Defendant and is the statutory
agent for Superior Fibers. (Compl. at ¶¶ 8-9, 21-24, Doc. 1).
Defendant Superior Bremen Filtration, LLC has been the owner and operator of the
manufacturing facility from on or about October 11, 2006 until the present. (Compl. at ¶ 25,
Doc. 1). There are no allegations in the Complaint, or otherwise, that Defendant Superior
Bremen Filtration has used and/or disposed of any contaminants contributing to the ground water
contamination.
B.

History of the Ground Water Contamination
Defendant Superior Fibers conducted an investigation of the site pursuant to the rule

requirements set forth in the State’s Voluntary Action Program (“VAP”), which allows voluntary
project cleanup of contaminated properties in accordance with Ohio Administrative Code
Chapter 3745-300 without direct oversight by the Ohio EPA. On February 19, 2003, Defendant
Superior Fibers, through its certified professional, submitted a no further action letter2 to Ohio
EPA.
Here, the no further action letter stated that the investigation at the site was in compliance
with VAP applicable standards. A covenant not to sue request, submitted with the letter, was
granted by the Director of the Ohio EPA on March 22, 2005. The covenant not to sue was
conditioned on the performance of an operation and maintenance plan, which included periodic

2

These letters are issued by a certified professional under affidavit certifying that there is either no
information indicating there has been a release of hazardous substances at the property or that there has
been a release of hazardous substances at the property and that applicable standards were not exceeded or
have been or will be achieved in accordance with Ohio Revised Code Chapter 3746 and the rules adopted
it. See Ohio Adm. Code § 3745-300-01(A)(84).

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monitoring of ground water monitoring wells and a contingent remedy to be implemented within
forty-five (45) days if chemicals of concern were detected in ground water monitoring wells at
the property boundary of the manufacturing facility.
In February and March 2006, ground water samples collected by the Ohio EPA showed
that the ground water contamination was greater than previously revealed by sampling results
submitted under the VAP and that the contamination had spread. This sampling detected TCE
and its breakdown compounds at the property boundary of the manufacturing facility, and
indicated the presence of ground water contamination beyond the manufacturing facility
property boundary. On December 13, 2006, Ohio EPA sent Defendants William R. Miller and
Superior Fibers a Notice of Failure to Comply with VAP Applicable Standards and a Proposed
Compliance Schedule Agreement.
On December 21, 2006, the Director of the Ohio EPA revoked the license of Dennis
Smalley, the certified professional that had submitted the February 19, 2003 no further action
letter, after he was found by the Ohio EPA to have falsified the ground water sampling data in
the letter’s addenda. On January 26, 2007, the Ohio EPA and Defendants William R. Miller and
Superior Fibers entered into a Compliance Schedule Agreement to restore the site to compliance
with VAP applicable standards. Limited soil excavation was conducted at the manufacturing
facility during July and August 2007 to remove some of the source area shallow soil
contamination contributing to TCE ground water contamination.
From March 2006 to February 2011, ground water sampling at the site confirmed ground
water contamination. Sampling results confirm that TCE and breakdown compounds, cis-1,2
dichloroethene and vinyl chloride, are the primary contaminants in ground water at the site, and

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that, at certain locations, these contaminants have exceeded their respective maximum
contaminant levels (“MCL”). The contingent remedy contained in the covenant’s operation and
maintenance plan was never implemented; however, an amended O & M Plan approved on
August 11, 2008 by the Ohio EPA was implemented, but it has not been effective in reducing the
contaminant levels or their mobility.
From May 16, 2006 to May 15, 2011, or five years from when the contingent remedy
should have been implemented, Superior Fibers failed to show that the manufacturing facility
met VAP applicable standards at the property boundary of the manufacturing facility or that
ground water contamination was not migrating off-property at or above VAP standards. As a
result of this failure, the Director of the Ohio EPA revoked the covenant not to sue by
administrative order dated May 16, 2011.
Further ground water sampling at the site in October - November 2012 and October 2013
documented significant increases in cis-1,2-dichloroethene and vinyl chloride concentrations.
When compared to sampling results from 2006 through 2010, this confirms that the ground water
contaminant plume at the site has expanded and that it is migrating toward existing private and
public potable use wells.
The State of Ohio initiated this case on October 9, 2014, and is seeking a preliminary
injunction for Defendants to implement an “Interim Action”3 at the site which will include the

3

The State’s proposed “Interim Action” requires Defendants to install ground water monitoring wells
at shallow and intermediate depths in the northeast corner of the Village of Bremen’s North Wellfield to
be sampled quarterly for the following volatile organic compounds: trichloroethene, cis-1,2dichloroethene, trans-1,2-dichloroethene, 1,1-dichloroethene, and vinyl chloride; to conduct quarterly
sampling of the private water system wells and analyze samples for VOCs including the contaminants
listed above or install a proximally located monitoring wells on properties owned by Jeffery M. and
Celesta A. Schmelzer, 90 Logan-Thornville Road Southeast, Bremen, Ohio, and Jeffery and Pamela Sue
Thomas, 520 Logan-Thornville Road Southeast, Bremen, Ohio (“Schmelzer and Thomas Properties”).

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installation of ground water monitoring wells at varying depths to allow for regular sampling.
The State argues that the proposed Interim Action is necessary to prevent further migration of
the ground water contamination.
II.

STANDARD OF REVIEW

Rule 65(b) of the Federal Rules of Civil Procedure permits a party to seek injunctive
relief to prevent immediate and irreparable injury. The factors considered in granting a
temporary restraining order or a preliminary injunction are similar in nature. In the Sixth
Circuit, it is well-settled that the following factors are to be considered in determining whether a
temporary restraining order is necessary:
(1) whether the movant has a strong or substantial likelihood of success on the
merits; (2) whether the movant would suffer irreparable injury without the relief
requested; (3) whether issuance of the injunction will cause substantial harm to
others; and (4) whether the public interest will be served by issuance of the
injunction.
Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 432 (6th Cir.

The Interim Action will require Defendants to establish a trigger level, consisting of any detection
above the reporting limit (quantitation limit) for every volatile organic compound noted above.
Quantities that exceed the reporting limit and are confirmed by a second round of sampling would trigger
an interim action contingency plan. Defendants would, under those circumstances, be required to submit
a plan and schedule to Ohio EPA to provide safe and reliable alternate sources of potable water to the
Village of Bremen’s public water system, the Schmelzer and Thomas Properties, and/or any other
contaminated wells discovered via the Interim Action.
If trigger levels are exceeded in monitoring wells in the Village of Bremen’s public water system,
the interim action contingency plan requires the installation of a replacement well or wells to provide a
contaminant-free source of potable water. If installation of a replacement well or wells is not technically
or financially feasible, the interim action contingency plan requires Defendants to provide best available
treatment technology to the Village of Bremen’s public water system to treat the contamination in the
public drinking water well or wells.
If trigger levels are exceeded in the Schmelzer and/or Thomas private water system(s), the interim
action contingency plan requires Defendants to connect the contaminated private water system or systems
to the Village of Bremen public water system. If connection to the Village of Bremen’s public water
system is not technically or financially feasible, the interim action contingency plan requires Defendants
to provide best available treatment technology to the Schmelzer and/or Thomas private water system(s) to
treat the contamination in the private drinking water well or wells.

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2004). The factors are not prerequisites; rather, they must be balanced. Capobianco, D.C. v.
Summers, 377 F.3d 559, 561 (6th Cir. 2004); see also Michigan Bell Tel. Co. v. Engler, 257 F.3d
587, 592 (6th Cir. 2001) (no single factor is determinative.); Monongahela Power Co. v.
Schriber, 322 F.Supp.2d 902, 918 (S.D. Ohio 2004) (Sargus, J.). However, Plaintiff asserts that
because it is “seeking to enjoin statutory and regulatory violations, it is not bound by the strict
requirements of traditional equity as developed in private litigation. Rather, the State need only
prove that the conditions set forth by the statute authorizing such relief have been met.
Ackerman v. Tri-City Geriatric & Health Care, Inc., 55 Ohio St.2d 51 (1978).”
The decision whether or not to issue a preliminary injunction falls within the sound
discretion of the district court. See Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d
100, 102 (6th Cir. 1982). “The purpose of a preliminary injunction is always to prevent
irreparable injury so as to preserve the court’s ability to render a meaningful decision on the
merits.” United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg’l
Transit Auth., 163 F.3d 341, 348 (6th Cir. 1998) (citing Stenberg v. Checker Oil Co., 573 F.2d
921, 925 (6th Cir. 1978)).
III.

DISCUSSION

Plaintiff, the State of Ohio, asserts that it is entitled to injunctive relief based on
Defendants violation of the Comprehensive Environmental Response Compensation and
Liability Act of 1980 (“CERCLA”), as amended, 42 U.S.C. § 9601, et seq., and Ohio’s surface
water and hazardous waste laws under Ohio Revised Code §§ 6111.07(B), 3734.10, 3734.13(C),
3734.20(B), 3767.02-3767.06. Plaintiff asserts that immediate relief is necessary because the
ground water contamination is migrating toward the Village of Bremen’s public water system,

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which draws public water from ground water, and two properties with private drinking water
wells.
The Court will consider Plaintiff’s claims against the respective Defendants in turn.
A.

Defendants Reichhold and Superior Fibers
Plaintiff has notified the Court that it has entered into a proposed settlement agreement

with Defendant Reichhold which Reichhold will pay the State of Ohio $75,000 from its
bankruptcy estate. However, no such agreement and/or dismissal entry has been filed with the
Court and Reichhold remains a party to this action at the time of the issuance of this Opinion and
Order. Reichhold filed an answer to Plaintiff’s Complaint (see Doc. 16), however, it has not
responded to Plaintiff’s Motion for Preliminary Injunction.
Defendant Superior Fibers failed to file a responsive pleading to Plaintiff’s Complaint
and the Clerk’s Entry of Default was entered against it on January 13, 2015. The actual motion
for default judgment has not yet been filed by Plaintiff. Superior Fibers has failed to respond to
Plaintiff’s Motion for Preliminary Injunction. Further, William R. Miller, the statutory agent for
Superior Fibers has failed to respond to both Plaintiff’s Complaint and Motion.
There is no dispute in this case that Defendants Reichhold and Superior Fibers are the
companies who released the TCE and other contaminants during their respective periods of
operation of the manufacturing facility, which ultimately led to the contamination of the water
supply. Based on the information submitted by Plaintiff and the lack of any argument to the
contrary by Defendants, Plaintiff has established that the aforementioned Defendants have
violated the environmental protection statutes at issue in this case. Therefore, Plaintiff is entitled
to the injunctive relief sought against Defendants Reichhold, Superior Fibers and William R.

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Miller. It is hereby ordered that Defendants Reichhold, Superior Fibers and William R. Miller
must perform the following Interim Action:
a.

Install two ground water monitoring wells, one at shallow depth and one at
intermediate depth, in the northeast corner of the Village of Bremen’s Public
Water System (PWS) North Wellfield, located on North Broad Street,
Bremen, Ohio to be sampled quarterly for volatile organic compounds
(VOCs) and analyzed by USEPA Method 524.2 (or other analytical method,
subject to approval by Ohio EPA). Contaminants related to the ground water
plume that shall be sampled include trichloroethene, cis-1,2-dichloroethene,
trans-1,2-dichloroethene, 1,1- dichloroethene, and vinyl chloride.

b.

Conduct quarterly sampling of the private water system wells and analyze
samples for VOCs including the Contaminants listed above or install a
proximally located monitoring well on both the Schmelzer Property and the
Thomas Property and analyze samples from these wells for VOCs including
the Contaminants listed above by the analytical method listed above.

c.

The trigger-levels shall consist of any detection above the reporting limit
(quantitation limit) for every Contaminant listed above, at the village of
Bremen's North Wellfield and/or the private water system wells to trigger the
implementation of the interim action contingency discussed herein.

d.

If a ground water sample exceeds the trigger-level for implementation of the
interim action contingency, Respondents may either collect a second sample
within sixty (60) days of the collection of the initial sample
exceeding the trigger-level, to confirm the initial detection, or implement the
interim action contingency within ninety (90) days of the initial sample
exceeding the trigger-level.
i.

ii.

e.

If a confirmation sample is collected and the trigger-level is
confirmed to be exceeded, the interim action contingency must be
implemented within ninety (90) days of the date of the collection of
the confirmation sample.
If a confirmation sample is collected and the trigger-level is not
exceeded, the detection is not confirmed and no contingent interim
actions shall be needed. The next quarterly ground water sampling
shall be collected as previously scheduled.

Respondents shall facilitate the creation of an account for the shallow and
intermediate depth monitoring well ground water sampling results obtained
from the village of Bremen’s PWS North Wellfield for reporting purposes
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using Ohio EPA’s electronic drinking water reports (eDWR).
f.

If trigger levels are exceeded in either of the monitoring wells installed in the
northeast corner of the village of Bremen’s PWS North Wellfield, pursuant
to the requirements above, Respondents shall implement the following
interim action contingencies within ninety (90) days from the date that any
exceedence is identified or confirmed, according to the hierarchy listed
below:
i.

ii.

g.

Respondents shall submit a plan and schedule to Ohio EPA to
provide a safe and reliable alternate source of potable water to the
Village of Bremen PWS through the installation of a new well or
wells, as needed, at the sole expense of the Respondents to provide
sufficient volume of water required to replace the village of Bremen’s
PWS northern supply wells (Well 1 and Well 2), subject to siting
requirements and plan approvals of Ohio EPA, or
If installation of a replacement well or wells is not technically or
financially feasible, Respondents shall provide best available
treatment technology to the village of Bremen’s PWS to treat all
Contaminants that have impacted these drinking water sources as a
result of the ground water contaminant plume originating from the
Superior property at the sole expense of the Respondents, subject to
the requirements of Ohio EPA.

If trigger levels are exceeded in the Schmelzer and/or Thomas private water
system(s), or proximally located monitoring wells pursuant to the
requirements above, Respondents shall implement the following interim
actions contingencies within ninety (90) days from the date that any
exceedence is identified or confirmed, according to the hierarchy listed
below:
i.

Respondents shall submit a plan and schedule to Ohio EPA to
provide a safe and reliable alternate source of potable water to the
Schmelzer and/or Thomas Properties through the connection of the
affected private water system to the village of Bremen’s PWS, as
needed, at the sole expense of the Respondents to provide sufficient
volume of water required to replace the Schmelzer and/or Thomas
private water wells, or

ii.

If connection to the village of Bremen’s PWS is not technically or
financially feasible, Respondents shall provide best available
treatment technology to the Schmelzer and Thomas private water
systems to treat all Contaminants that have impacted these drinking
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water sources as a result of the ground water contaminant plume
originating from the Superior property at the sole expense of the
Respondents.
h.

i.

B.

If additional private water system/potable wells not listed above are
identified proximal to the contaminant plume, Respondents shall report the
location of these wells to Ohio EPA within fifteen (15) days of discovery and
sample those private water system wells and address the protection of
potential potable-use receptors as required by paragraphs b., c., d., q., and i
of this Interim Action.
All ground water analytical results from each quarterly sampling event and
confirmation sampling event conducted pursuant to the ground water
monitoring discussed in herein shall be submitted to Ohio EPA within thirty
(30) days of receipt from the laboratory. The certified laboratory ground
water analytical results from the ground water monitoring wells in the village
of Bremen’s PWS North Wellfield shall be reported to Ohio EPA using the
eDWR format.

Defendant Superior Bremen Filtration
Unlike the aforementioned Defendants, Defendant Superior Bremen Filtration has both

answered Plaintiff’s Complaint and filed a response in opposition to Plaintiff’s Motion for
Preliminary Injunction. And, additionally, unlike the other Defendants, Defendant Superior
Bremen Filtration has not used and/or disposed of any contaminants contributing to the ground
water contamination. Defendant Superior Bremen argues that it is not liable for any remedial
work to address the water contamination for the following reasons: it had a reasonable
expectation that the covenant not to sue offered it protection; it was qualified as a bona fide
prospective purchaser; it has not violated any statute or regulation as alleged by the State; and
finally that the remedy requested by the State is now moot in light of the proposed settlement
with Defendant Reichhold.
1.

Likelihood of success on the merits on the alleged statutory violations

Plaintiff asserts that an injunction should be issued against all Defendants in this case for
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violations of Ohio Revised Code §§ 3734.02(E) and (F), 3734.20(B), 6111.04, and 3767.01 and
3767.13 based on the unpermitted and unauthorized disposal of hazardous waste, the
unpermitted discharge of industrial wastes and/or other wastes into ground water, and the
creation of a statutory nuisance. Plaintiff then proceeds to argue that statutory injunctions should
be issued if statutory requirements are fulfilled. However, noticeably absent from Plaintiff’s
Motion is any evidence or even argument as to how Defendant Superior Bremen has violated the
specific statutes in question. Therefore, at this time, Plaintiff has failed to show a likelihood of
success on the merits of its claims against Defendant Superior Bremen and therefore the motion
for preliminary injunction as to Defendant Superior Bremen Filtration is denied.
2.

Irreparable Harm

The Court is very concerned with Plaintiff’s allegations that the water contamination
could be spreading to the Village of Bremen, the Village of Rushville, and Fairfield Union High
School. However, at this time, the Interim Action has been ordered against Defendants
Reichhold, Superior Fibers and William R. Miller. Further, Defendant Reichhold has agreed to
provide $75,000 to the State of Ohio to implement the Interim Action. Therefore, Defendant
Superior Bremen argues, and this Court agrees, that “[t]he underlying litigation process is now
the appropriate forum to determine any further relief the Plaintiff is entitled to (if any) from
Superior Bremen.” (Def.’s Response in Opp. at 9). Defendant Superior Bremen Filtration,
however, is required to allow the State of Ohio and its representatives to carry-out the Interim
Action at the manufacturing facility. And if Superior Bremen Filtration can assist the State in
any way, it is encouraged to do so.
In summary, the Court finds that Plaintiff has demonstrated a substantial likelihood of

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success on the merits of its claims against Defendants Reichhold, Superior Fibers and William R.
Miller, and therefore injunctive relief, in the form of the Interim Action, has been granted.
However, Plaintiff has failed to establish a substantial likelihood of success on the merits of its
claims against Defendant Superior Bremen Filtration.
V.

CONCLUSION

Based on the foregoing reasons, Plaintiff’s Motion for Preliminary Injunction is
GRANTED IN PART AND DENIED IN PART. Plaintiff’s Motion is granted as to
Defendants Reichhold, Superior Fibers and William R. Miller. Plaintiff’s Motion is denied as to
Defendant Superior Bremen Filtration. Defendant Superior Bremen Filtration also filed a
Motion for Leave to File a Sur-Reply to which Plaintiff opposed. In light of foregoing Opinion
and Order, Defendant’s Motion is DENIED AS MOOT. Those arguments can be raised during
the normal course of litigation.
The Clerk shall remove Documents 2 and 38 from the Court’s pending motions list.
IT IS SO ORDERED.
s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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