On September 04, 2014, the United States District Court for the District of Minnesota denied a motion by defendant General Mills, Inc., to dismiss plaintiff homeowners’ claims under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA) as well as plaintiffs’ common law claims. Ebert v. General Mills, Inc., Slip Copy (No. 13–3341) (D. Minn. 2014). The claims related to vapor intrusion resulting from historic releases of trichloroethylene (TCE) and other hazardous substances from an industrial facility owned and operated by General Mills from 1930-1977 in the Como neighborhood of Minneapolis.

Diagram showing status of building mitigation status addressing vapor intrusion from General Mills/Henkel Corp. Superfund Site, 2010 East Hennepin Ave., Minneapolis MN (Source: http://www.pca.state.mn.us/  "Soil Vapor: SE Hennepin Ave. Minneapolis," Sept. 2014)

Diagram (click to enlarge) showing status of building mitigation status addressing vapor intrusion from General Mills/Henkel Corp. Superfund Site, 2010 East Hennepin Ave., Minneapolis MN
(Source: http://www.pca.state.mn.us/ “Soil Vapor: SE Hennepin Ave. Minneapolis,” Sept. 2014)

With regard to CERCLA, General Mills argued that 42 U.S.C. 9613(h) divested the court of jurisdiction because General Mills had entered a consent decree and various other agreements with MPCA regarding the remediation of the site. The court looked to the language of the agreements and concluded that they had been entered into under state law (specifically the Minnesota Environmental Response and Liability Act (MERLA)), not federal law, and thus section 9613(h) did not apply. General Mills’ other CERCLA argument was that the homeowners’ response costs were not consistent with the National Contingency Plan. Again the court disagreed, concluding the homeowners had pled sufficient facts to avoid dismissal.

The procedural posture was similarly key to the court’s denial of General Mills’ motion with respect to the common law claims. For example, General Mills argued the homeowners had not stated how their property values had been diminished, but the court found the complaint sufficient for a 12(b)(6) motion. Similarly, General Mills argued that the homeowners failed to plead a “material” interference for their nuisance claim, but the court thought that the allegation of “toxic” vapors was enough.

Finally, the court disagreed with General Mills that some of the homeowners’ claims under the Resource Conservation and Recovery Act should be dismissed for lack of statutory notice. The court found that the notice given by one set of homeowners, which claimed to be notice for others similarly situated, covered the other homeowners. Plus, the affected area was relatively small and General Mills had actual notice of the claims.

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