Aug. 20—GOSHEN — The 7th Circuit Court of Appeals this week affirmed a federal judge's 2020 ruling that the site of a former Johnson Controls factory on East Monroe Street does not pose an ongoing danger to the health of nearby residents.

On Monday, the appellate court in Ronald Schmucker, et al. v. Johnson Controls, Inc. and Tocon Holdings, LLC, affirmed a ruling by Chief Judge Jon DeGuilio of the U.S. District Court for the Northern District of Indiana, South Bend Division, that claims of pollution don't pose "imminent" or "substantial" danger to local residents.

DeGuilio had issued his ruling in August of 2020 following a December 2019 bench trial. The plaintiffs appealed that decision, and Monday's opinion by the appellate court affirming DeGuilio's original ruling is the result of that appeal.

The endangerment claim, filed in 2014 by a group of five Goshen residents who live in or own homes near the site at 1302 E. Monroe St., centers on the accusation that Johnson Controls Inc. and its predecessor, Penn Electric Switch Co., allowed dangerous chemicals such as trichloroethylene (TCE), a known carcinogen, to be released into the surrounding environment during a period spanning 1937 to 2006, and that some of those chemicals reached the groundwater and continue to pose an "imminent and substantial endangerment" to the health of area residents.

Johnson Controls, under the supervision of the Indiana Department of Environmental Management, started remedial operations at the site while the plant was still operating, as company officials worried that houses located above the plume might draw contaminated water from their wells, the court opinion notes.

In 1992, the company ensured all the impacted houses were connected to Goshen's water mains, and all private wells were closed. A pump and treat procedure was also used from 1994 to 2012, where contaminated groundwater was pumped out, treated to remove TCE and other contaminants, and then injected back into the ground.

That treatment was discontinued only when treatment did not further reduce levels of TCE in the water, according to the opinion.

Given the possibility that contamination might reach the aquifer from which Goshen draws water, an expert was hired to investigate such a possibility, the results of which revealed that Goshen's municipal water comes from a direction different from the contaminated plume.

"The study has been repeated several times and the findings confirmed," the opinions notes. "To date there is no sign of TCE in the public water supply. Nor has any TCE been found in Goshen's high school, which sits just outside the affected zone."

However, it was noted that TCE did appear in the air over the plume, so Johnson Controls installed vapor mitigation systems in all houses whose air showed unsafe levels.

And, because TCE can be dangerous if allowed to accumulate inside a house, foundations were also inspected and patched to seal cracks, and fans installed to create an area under the foundation with pressure less than the air inside the house.

"After these systems were installed, a process completed in 2011, not a single house registered TCE levels exceeding the safe threshold set by the department," the opinion notes, referencing IDEM. "One expert concluded that if 10 residents in houses over the plume stayed indoors constantly for 70 years, the probability of even one excess cancer is less than 0.02%."

While acknowledging that contamination still exists on- and off-site, DeGuilio in his 2020 ruling noted that the plaintiffs were unable to show that the contamination presents an endangerment that is both imminent and substantial.

As such, DeGuilio indicated that he was satisfied with Johnson Controls' ongoing efforts to remediate the site, and ruled in the company's favor.

In the opinion issued Monday, the 7th Circuit Court of Appeals affirmed DeGuilio's findings, noting that the plaintiffs with their appeal had not successfully challenged any of the judge's factual findings.

"The opinion shows compellingly why homeowners' risk from TCE in Goshen is neither imminent nor substantial," the opinion notes. "Plaintiffs lost this case on the facts, not on the law."

However, the opinion did acknowledge that if vapor mitigation systems ever begin to fail at the site, contaminated water begins migrating toward the aquifer, or conditions otherwise change for the worse, the plaintiffs will be free to renew their litigation.

"A conclusion that hazards are not 'imminent and substantial' today does not mean that they will be slight forever," the opinion notes. "But the district judge did not err in concluding on this record that the risks are too slight to compel more action than Johnson Controls is already undertaking with Indiana's supervision."

ADDITIONAL REMEDIATION

Also this week, Johnson Controls and its environmental consultants at GZA GeoEnvironmental Inc. have announced that additional remediation activities are scheduled to begin later this month for the neighborhood located between the former JCI property at 1302 E. Monroe St. and Goshen High School.

According to GZA, the company will be working with IDEM to conduct more extensive remediation directly in the neighborhood, with work to include the injection of emulsified vegetable oil and nutrients into groundwater using drill borings to speed the natural breakdown of chemicals remaining in the groundwater.

As planned, the soil borings will be drilled at intervals along eight lines running north to south between East Monroe Street on the north and Sander Avenue on the south. The work will be conducted on weekdays between 7 a.m. and 7 p.m. over a period of approximately four to six weeks until the drilling and injections are completed.

John Kline can be reached at john.kline@goshennews.com or 574-533-2151, ext. 240315. Follow John on Twitter @jkline_TGN.