Waukegan Port Dist. v. N. Shore Gas Co.
Waukegan Port Dist. v. N. Shore Gas Co.
Opinion of the Court
Before the Court is plaintiff's motion to remand this action to the Circuit Court of *454Lake County, Illinois, which is granted in large part for the reasons explained below.
BACKGROUND
On October 1, 2018, plaintiff, Waukegan Port District (the "Port District"), filed a lawsuit against defendant, North Shore Gas Company ("North Shore Gas" or "NSG"), in the Circuit Court of Lake County, Illinois. The Port District states in its complaint: "This is a civil action for damages caused by the continuing release of hazardous substances from property owned by NSG into the soil and groundwater of a number of neighboring parcels owned by the Port District." (ECF No. 1-1, Compl. ¶ 1.) The Port District further alleges the following. North Shore Gas's South Plant MGP (Manufactured Gas Plant) in Waukegan operated from 1898 to 1927, and then again between 1935 and 1946. It was demolished in 1951. The South Plant MGP generated various byproducts and wastes, such as coal tar, ammonia, cyanide, ammonium sulfate, sulfur, wastewater sludges, ash, and tar/oil emulsions. These materials contain polynuclear aromatic hydrocarbons, petroleum hydrocarbons, heavy metals, and phenolic compounds, several of which are known or suspected carcinogens. North Shore Gas released hazardous substances from these byproducts and wastes onto the South Plant MGP parcel and further released and continues to release these hazardous substances onto adjacent and nearby parcels owned by the Port District and others.
North Shore Gas conducted contaminant investigations and limited cleanup activities on its parcel from the early 1990s to around 2003. Most of the work was done under the Illinois Voluntary Site Remediation Program and did not address off-site property contamination. In 2003 or 2004, North Shore Gas removed some of the contaminated soils above the groundwater table from its own property only. It left in place the contamination in soil and groundwater located below the groundwater table on its property, and it did not install any barriers at its eastern property boundaries to prevent continuing releases of contamination onto the Port District's and other neighboring parcels. In 2006, North Shore Gas requested that the South Plant MGP parcel be included in the federal Superfund program. The United States Environmental Protection Agency (the "EPA") accepted the site into the Superfund Alternative program. The South Plant MGP Superfund Site (the "Site"), as defined by the EPA, covers more than twenty acres and includes several properties adjacent to the South Plant MGP parcel, among them eight parcels comprising more than thirteen acres that are owned by the Port District and located east of the South Plant MGP parcel. The Port District's parcels include a marina, a visitor center/administration building, a maintenance building, a marine service facility, landscaped open space and a public park, and asphalt-paved public parking lots.
At the direction of the EPA, and pursuant to a 2007 Administrative Order on Consent under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), North Shore Gas conducted a Remedial Investigation ("RI") of the Site. The RI found that Dense Non-Aqueous Phase Liquid ("DNAPL") hazardous-substance contamination (made up of the substances described above) released as a result of North Shore Gas's operations was a continuing source of contamination to the soil and groundwater of nearby properties. In July 2015, the EPA issued a "Record of Decision for Interim Action" (the "ROD"), which established an interim remedy for the DNAPL contamination beneath the Site. The ROD provides for interim action-the *455"enhanced recovery of mobile DNAPL using a network of co-located horizontal groundwater injection and DNAPL recovery wells." (ECF No. 1-1 at 171.) Recovered DNAPL is to be collected and shipped off site for treatment and disposal. The ROD estimates that "DNAPL recovery would occur over a[n] 8-year period before the mass and mobility is reduced to the extent practicable." (Id. at 194.) The work is projected to begin in 2020. The ROD states that once the work under the interim remedy is completed, the EPA will select a final remedy to address site groundwater and soil contaminants as well as potential soil vapor intrusion risks. (Id. at 182.) In September 2015, North Shore Gas and the EPA entered into an Administrative Order on Consent for Remedial Design under CERCLA.
The Port District says that it has never consented to, permitted, or approved of North Shore Gas's continuing contamination and impairment of the use of its property. In June 2017, a Master Plan for Redevelopment of the Port District's marina property was approved. The Port District alleges that the contamination of its property by North Shore Gas has damaged redevelopment efforts. It asserts state-law claims for negligence, trespass, public nuisance, and private nuisance, and it seeks compensatory and punitive damages. On November 1, 2018, North Shore Gas removed the action to this court. It asserts that federal-question jurisdiction exists under
DISCUSSION
"The presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Citadel Sec., LLC v. Chi. Bd. Options Exch., Inc. ,
One exception to the well-pleaded complaint rule, known as the complete-preemption doctrine, "provides that, where Congress has completely preempted a given area of state law, a plaintiff's state law claim will be 'recharacterized' as a federal claim so that removal becomes proper." Hart v. Wal-Mart Stores, Inc. Assocs.' Health & Welfare Plan ,
Even when state law creates a plaintiff's cause of action, "its case might still 'arise under' the laws of the United States if a well-pleaded complaint established that its right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties." Franchise Tax Bd. v. Constr. Laborers Vacation Tr. ,
According to North Shore Gas, the Port District's right to relief depends on the resolution of a substantial question of federal law. North Shore Gas cites authority from other jurisdictions for the proposition that a substantial question of federal law may exist where an ostensibly state-law-based claim constitutes a "challenge" to a CERCLA cleanup. (Def.'s Opp'n Pl.'s Mot. at 6 (citing Coffey v. Freeport-McMoRan Copper & Gold Inc. ,
North Shore Gas contends that the Port District's complaint "reveals that it is, in fact, challenging" the EPA's interim remedy because the complaint is replete with allegations that the interim remedy does not adequately address the contamination of the Port District's property. (Def.'s Opp'n Pl.'s Mot. at 8.) In North Shore Gas's view, the Port District is essentially saying that by complying with the EPA's chosen remedy and the consent order, North Shore Gas is violating tort law. North Shore Gas further asserts that a trial on the Port District's claim would necessarily require a factfinder to consider the appropriateness of the EPA's interim remedy; whether North Shore Gas has breached any duties it may owe by implementing the remedy; whether the remedy interferes with the Port District's property rights; and whether North Shore Gas's implementation of the remedy rises to the level of willful and wanton conduct.
The Court does not see it that way. Assuming that the Seventh Circuit would adopt other circuits' approach to *457"challenges" to CERCLA cleanups in the context of "substantial federal question" jurisdiction,
North Shore Gas's attempt to characterize the Port District's complaint as an assertion that "the interim remedy itself breaches duties owed to" the Port District, (Def.'s Opp'n Pl.'s Mot. at 9 (emphasis omitted)), is unpersuasive.
All but one of the decisions cited by North Shore Gas in support of its argument that a substantial federal question exists here are distinguishable on the ground that the plaintiffs sought relief other than, or in addition to, money damages-injunctive or other equitable relief, or modification of a remedial plan. The remaining decision, New Mexico v. General Electric Co. ,
A final matter the Court must address is the Port District's request for an award of attorneys' fees under
CONCLUSION
Plaintiff's motion to remand this action [13] is granted as to remand and denied as to the request for attorneys' fees. Pursuant to
The parties are not of diverse citizenship.
Understandably so, because complete preemption does not apply here. CERCLA does not wholly displace state-law claims. Vill. of DePue v. Exxon Mobil Corp. ,
North Shore Gas does not cite any Seventh Circuit decisions analyzing what constitutes a "challenge" to a CERCLA cleanup, nor any such decisions analyzing the issue within a "substantial federal question" framework.
North Shore Gas also asserts that because the Port District's "only plausible remedy" on its public-nuisance claim "would be limited to injunctive relief," the Port District is therefore "implicitly" requesting injunctive relief. (Def.'s Opp'n Pl.'s Mot. at 11.) That conclusion does not follow. There is no request in the complaint, explicit or implicit, for injunctive relief. Even if there were such a request as to this claim, North Shore Gas fails to explain why the resolution of the issue would create a "substantial" federal question. The relief to which the Port District may be entitled if it prevails on its wholly state-law claim is a matter of state law, not federal law. And a potential determination of whether such relief would conflict with the terms of the interim remedy-the evaluation of an ordinary conflict-preemption defense-is something state courts are "clearly competent to do." Vorhees v. Naper Aero Club, Inc. ,
In New Jersey Department of Environmental Protection v. Minnesota Mining & Manufacturing Co., Civ. Action No. 06-2612(NLH),
Defendants also rely on a Tenth Circuit case, New Mexico v. General Elec. Co. ,467 F.3d 1223 , 1237 (10th Cir. 2006). This case is distinguishable.... There, the plaintiffs brought two complaints-one against private defendants under state law, and the other in federal court against the State of New Mexico. The state court action was removed to federal court. After a year of extensive discovery, the plaintiffs filed a motion to dismiss its CERCLA claim as well as all the federal defendants, and also moved for remand. The district court granted the state plaintiffs' motion to dismiss their CERCLA claims and the federal defendants, but it denied their motion for remand. The court explained that "the remaining claims inescapably must be defined in terms of the CERCLA remedy and the scope and extent of the ongoing CERCLA remediation," and that "considerations of economy and convenience in a case over three years old weighed in favor of retaining jurisdiction over the state law claims."Id. By this time, the plaintiffs had narrowed their claim for damages to those "not recoverable under CERCLA for groundwater contamination," and by doing so, the "core of the controversy" between the parties had become the intended scope of CERCLA-mandated remedial efforts.Id. at 1240 . Thus, this case is distinguishable because of its particular procedural posture, as well as the fact that the CERCLA remediation was directly challenged, which Plaintiffs here have not done.
Reference
- Full Case Name
- WAUKEGAN PORT DISTRICT v. NORTH SHORE GAS COMPANY
- Status
- Published