Chemtool cleans up, lawsuits warm up

More than a year after the  massive explosion and fire on June 14, 2021 at the Chemtool facility in Rockton, the company's official website says, "Our company remains committed to the cleanup of our Chemtool Rockton site. We are in the process of cleaning up the area at our Rockton site in a safe and efficient manner. For queries,  please reach out to us at connect@lubrizol.com."

An April 25, 2022 court order [PDF] required Lubrizol, Chemtool's parent company, to finish hauling off the wastewater that had been used in putting out the fire. It was still stored in frac tanks and Clean Harbors was assigned to dispose of it. Also, they were to "install permanent, clay seals of all plugged storm water drains along the west side of the Site." After demolition, Lubrizol might have to permanently seal off the Chemtool sewer line, if that's necessary to protect the Rockton sanitary sewer. Otherwise, if the sanitary or storm sewers connections no longer pose a threat, then Lubrizol might be allowed to remove the plug or plugs.

The April 2022 judgment also required Lubrizol to reimburse the Illinois EPA, Winnebago County, and Illinois Emergency Management Agency (IEMA) for the cost of cleanup.  Independent engineering consultant Baker Engineering and Risk Consultants was hired to perform a "root cause analysis" of the cause of the fire.

Is Chemtool on track to meet those deadlines and to follow those orders?

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Early this month, Kim Biggs, Public Information Officer for the Illinois EPA told us, "Regarding remediation of the site, removal of the burned structures is projected to be complete by the end of November.  Environmental site investigation is ongoing. Once the environmental site investigation is complete, the Illinois EPA will review the results to evaluate the need for further site investigation or environmental remediation. A date for completion of any environmental cleanup needed is currently unknown. Work is proceeding in accordance with the Agreed Immediate and Preliminary Injunction Order and follows the plan proposed in April. The Illinois EPA remains focused on ensuring Chemtool is complying with the Agreed Immediate and Preliminary Injunction Order.

Karol Szul, a spokesperson in the Winnebago County State’s Attorney’s Office, told us, “The demolition of the building structure and removal of all materials is ongoing, and our understanding is that Chemtool expects to complete demolition by early December. While this process continues, Chemtool is operating five air monitors on site and the Illinois Environmental Protection Agency (EPA) is monitoring several waste streams generated by the demolition.” The Winnebago County State’s Attorney joined with the Illinois Attorney General to file a lawsuit that led to the April 25 order.

Speaking of lawsuits, on October 10, 2022, Judge Stephen Balogh of the 17th Judicial Circuit Court granted the plaintiffs’ motion for class certification for Grasley vs. Chemtool No. 2021-L-0000162.

That means, ruled the judge, that the state class action lawsuit can cover "all current Illinois citizens who were, on June 14, 2021, owners or tenants of property located in Illinois within a three-mile radius of the Chemtool Chemical Plant."

The attorneys who want to represent these Stateline residents told the judge they have "no claims for personal injury, only for damages and injunctive relief for property injuries."

Judge Balogh has set the next hearing for Grasley vs. Chemtool for Friday, Dec. 2, 2022 at 3 p.m. in Courtroom 108. The hearing is not scheduled to be livestreamed on YouTube.

In two federal cases in the Northern District of Illinois, attorneys with The Collins Law Firm and Miner, Barnhill, & Galland are representing Stephanie Mackey and Nick Migliore (Mackey v. Chemtool, Inc., 2021-L-0000165) and Sara Henderson (Henderson v. Chemtool, Inc., 2021-L-0000175.1). They wanted to move their two cases back to state court, where Grasley v. Chemtool Inc. is still being decided. They pointed out that the Class Action Fairness Act of 2005 (CAFA) [PDF] says that state courts, not federal courts, should decide purely "local controversies."

United States District Judge Honorable Iain D. Johnston agreed the Chemtool case meets some of the requirements of being a "local controversy." That is, the plaintiffs and defendants are in Illinois. But when Congress wrote CAFA, they also included another requirement: "no other class action" can have been filed "asserting the same or similar factual allegations."

The problem is that, in fact, two other class actions have been filed since Grasley v. Chemtool. The plaintiffs argued that those shouldn't count because they were filed only days apart, that CAFA is ambiguous, so the judge needs to add exceptions to CAFA.  Judge Iain Johnston ruled CAFA isn't ambiguous. "Congress is fully capable of drafting statutory text that expands the definition of a class action, or that redefines the local controversy exception." But since Congress didn't, he denied the plaintiffs' request to move the case back to state court.

Meanwhile, Judge Johnston's colleague, the Honorable Lisa A. Jensen says that, "by 11/29/2022, the parties shall file a joint written status report updating the Court on the completion of class discovery. A telephonic status hearing is set for 12/1/2022 at 10:30 AM. The parties shall be prepared to discuss next steps in the case. Public access is available via the following call−in number: (877) 336−1831 with access code 2813746 #." Photographing or recording the proceedings is prohibited.