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Ebert v. Gen. Mills, Inc.

United States Court of Appeals, Eighth Circuit

May 20, 2016

Karl Ebert; Carol Krauze; Jackie Milbrandt, individually and on behalf of all persons similarly situated, Plaintiffs - Appellees
v.
General Mills, Inc., Defendant - Appellant

         Submitted October 21, 2015.

Page 473

[Copyrighted Material Omitted]

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          Appeal from United States District Court for the District of Minnesota - Minneapolis.

         For Karl Ebert, Carol Krauze, Jackie Milbrandt, individually and on behalf of all persons similarly situated, Plaintiffs - Appellees: Norman B. Berger, Michael Damon Hayes, VARGA & BERGER, Chicago, IL; Shawn Michael Collins, Edward J. Manzke, COLLINS LAW FIRM, Naperville, IL; Anne T. Regan, John Gordon Rudd, Jr., ZIMMERMAN & REED, Minneapolis, MN; Mark Handley Thieroff, SIEGEL & BRILL, Minneapolis, MN.

         For General Mills, Inc., Defendant - Appellant: Emily A. Ambrose, Jerry Blackwell, Corey L. Gordon, Benjamin Winters Hulse, BLACKWELL & BURKE, Minneapolis, MN; Aaron Daniel Van Oort, FAEGRE & BAKER, Minneapolis, MN.

         Before WOLLMAN, BEAM, and GRUENDER, Circuit Judges.

          OPINION

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          BEAM, Circuit Judge.

         General Mills, Inc., challenges the district court's grant of class certification in this environmental-contamination lawsuit.[1] Plaintiffs, all owners of residential properties in a particular neighborhood in Minneapolis, Minnesota, sued General Mills, alleging General Mills caused the chemical substance trichloroethylene (TCE) to be released onto the ground and into the environment at a former General Mills facility, located within the same neighborhood. The plaintiffs claim that as a result of this contamination, TCE vapors migrated into the surrounding residential area, threatening the health of the residents and diminishing the value of their property. Finding the requisites of Federal Rule of Civil Procedure 23 satisfied, the district court certified a proposed class. Because the class lacks the requisite commonality and cohesiveness to satisfy Rule 23, we reverse.

         I. BACKGROUND

         General Mills owned and operated an industrial facility in the Como neighborhood of Minneapolis from approximately 1930 to 1977. In 1977, Henkel Corporation purchased the property from General Mills. From 1947 to 1962, General Mills disposed of as much as one-thousand gallons of hazardous substances per year by burying it in perforated drums in the ground at the General Mills facility. In December 1980, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which required current and former owners of facilities at which chemicals were used to notify the Environmental Protection Agency (EPA) of suspected onsite disposal so EPA could identify and inventory hazardous sites and prioritize them on a national list for cleanup. Under this rubric, without admitting liability, General Mills, in 1984, signed a Consent Order and Remedial Action Plan with the Minnesota Pollution Control Agency (MPCA) in which it agreed, in part, to address TCE presence, if any, in groundwater below and near the facility. Accordingly, for nearly thirty years, General Mills participated in groundwater clean-up and remediation efforts in the Como neighborhood under the direction of, and in conjunction with, the federal government and the State of Minnesota.

         In late 2011, in cooperation with the MPCA, General Mills began to evaluate the potential for migration of TCE in the form of vapor from shallow groundwater to the soil above. After discovering TCE in soil vapor in October 2013, General Mills modified the consent order with the MPCA to address the investigation and mitigation of vapor risk near the facility. Under that plan, General Mills contractors sampled soil gas beneath building foundations (" sub-slab sampling" ) and discovered variation among properties. Wherever the TCE concentration in sub-slab vapor exceeded a particular threshold, General Mills installed vapor mitigation systems (VMSs) to prevent TCE intrusion into the

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building above. As noted by the district court, according to one of General Mills' experts, 327 homes in the Como neighborhood have had soil vapor testing and do not have detectable TCE concentrations. General Mills installed VMSs in 118 homes in the Como neighborhood.

         In this action, Plaintiffs allege that in the past, " over the course of many years," General Mills released TCE onto the ground and into the environment surrounding its former facility and that now the TCE, in the form of vapors, is threatening home and business owners in the Como neighborhood. The chemical's ...


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