Gatzke v. City of W. Bend
| Decision Date | 21 September 2021 |
| Docket Number | Case No. 21-C-0243 |
| Citation | 561 F.Supp.3d 792 |
| Parties | Robert GATZKE, et al.,, Plaintiffs, v. CITY OF WEST BEND, WISCONSIN, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Jonathan B. Nace, Nidel & Nace PLLC, Rockville, MD, Jay A. Urban, Urban & Taylor SC, Milwaukee, WI, for Plaintiffs.
J. Wesley Webendorfer, Ronald R. Ragatz, DeWitt LLP, Madison, WI, for Defendant City of West Bend.
Ronald R. Ragatz, DeWitt LLP, Madison, WI, for Defendants Jay Shambeau, Doug Neumann.
DECISION AND ORDER
The plaintiffs in this action propose to represent a class of residents and property owners in the Villa Park neighborhood of the City of West Bend, Wisconsin. They allege that a landfill owned by the City is leaking toxic chemicals that are contaminating their properties. Most of the plaintiffs’ claims seek damages for property damage and injunctive relief to prevent further harm to the properties. These claims are largely based on state-law legal theories such as negligence and creation of a nuisance. However, in their original complaint, the plaintiffs also alleged a claim under the Emergency Planning and Community Right-to-Know Act of 1986 ("EPCRA"), 42 U.S.C. §§ 11001 –50, a federal law that, as is relevant here, requires entities that use, store, or release hazardous chemicals to make certain public disclosures. In their EPCRA claim, the plaintiffs allege that West Bend has failed to make various disclosures required by the Act. The plaintiffs allege that, because they asserted an EPCRA claim, which gives rise to federal-question jurisdiction, see 28 U.S.C. § 1331, the court has supplemental jurisdiction over the state-law claims under 28 U.S.C. § 1367.
Shortly after the plaintiffs commenced this action, West Bend filed a motion for summary judgment on the EPCRA claim. The motion asserts that the claim must be dismissed because the plaintiffs did not provide proper pre-suit notice, as required by 42 U.S.C. § 11046(d)(1). The motion also asserts that, if the EPCRA claim is dismissed, the court should relinquish supplemental jurisdiction over the remaining state-law claims. See 28 U.S.C. § 1367(c)(3). In addition to opposing the motion for summary judgment, the plaintiffs filed an amended complaint that purports to assert claims against the City and two of its officials under 42 U.S.C. § 1983. The plaintiffs contend that, in light of these new federal claims, even if the EPCRA claim is dismissed, the court would continue to have federal-question jurisdiction and should exercise supplemental jurisdiction over the state-law claims.
I address the motion for summary judgment, and its effect on federal jurisdiction, in this order.
The City of West Bend is the owner and former operator of the Schuster Drive Landfill. The landfill was used between 1964 and 1984 as a municipal solid waste disposal facility. The landfill does not have a liner, and the City admits that the landfill "has released substances which qualify as hazardous substances under Wisconsin law." West Bend Answer to Am. Compl. ¶ 23. Releases from the landfill have contaminated the groundwater in the Villa Park neighborhood, where the plaintiffs reside and/or own property. Id. ¶ 25. When the City discovered the contamination in 1986, it closed the local drinking wells and ran municipal water to the area. Id. The City asserts that it has been working with the Wisconsin Department of Natural Resources to address the releases from the landfill and that its ongoing efforts to investigate and remediate groundwater impacts are matters of public record. Id. ¶¶ 23–24, 29.
The plaintiffs allege that their property has been contaminated by hazardous substances leaking from the Schuster Landfill. They allege that these substances include "carcinogenic chlorinated solvents and 1,4-dioxane." Am. Compl. ¶ 20. They allege that, for over 30 years, the City has "failed to properly control the contamination, properly remediate the contamination, and ... notify the public about the presence and threat of the contamination." Id. ¶ 30. The plaintiffs claim that the "bungled investigation, containment, and remediation failed to protect the public, and instead facilitated the development of the Villa Park neighborhood[,] placing families including pregnant mothers, young infants, and children living among the contamination for 30-plus years with no knowledge of the contamination of the property or health threats associated with this contamination." Id. ¶ 31. The plaintiffs "seek redress and damages for economic losses, such as loss of property value and the interference with the use and enjoyment of their property; the prompt identification, delineation, cleanup, excavation, treatment, and identification [sic] and removal of Landfill contaminants from their properties; and punitive damages and other damages as the result of the carelessness, recklessness, negligence, and willful and wanton violation of law by the Defendants." Id. ¶ 43.
Although the primary focus of the plaintiffs’ complaint is on the alleged harm caused to their properties, the plaintiffs also bring a claim under the Emergency Planning and Community Right-to-Know Act of 1986.1 Under this Act, certain businesses must submit information about a broad spectrum of potentially hazardous chemicals used in their facilities to state and local authorities and to the public upon request. See Christopher L. Bell, et al., Environmental Law Handbook 801 (20th ed. 2009). The primary goals of EPCRA are to provide the public access to information concerning hazardous chemicals present in the community and to use this information to adopt local emergency response plans in the event of a hazardous chemical release. Id. To achieve these goals, EPCRA creates four basic programs. First, it contains provisions that aid in emergency response planning. See 42 U.S.C. § 11001 –03. Second, it contains provisions requiring facilities to provide emergency notification of accidental releases of hazardous chemicals. Id. § 11004. Third, it creates inventory reporting requirements that apply to facilities that store hazardous chemicals. Id. §§ 11021, 11022. Finally, it requires facilities that manufacture, process, or use hazardous chemicals to report the quantities of such chemicals they release annually into the environment. Id. § 11023.
EPCRA has several enforcement mechanisms. The Environmental Protection Agency may seek criminal, civil, or administrative penalties for violations. 42 U.S.C. § 11045. State and local governments can also seek civil penalties, as well as injunctive relief. Id. §§ 11046(a)(2) and (c). But there is also a citizen-suit provision, under which "any person" can commence a civil suit against an owner or operator of a facility for failure to comply with EPCRA's notice and reporting requirements.
Id. § 11046(a)(1)(A). If a citizen suit is successful, the district court may "enforce the requirement concerned" and "impose any civil penalty provided for violation of that requirement." Id. § 11046(c). However, any civil penalty is paid to the U.S. Treasury rather than to the plaintiff who filed the suit. Id. § 11045 ; Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 106, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Further, before a citizen may commence an action under § 11046(a)(1)(A), he or she must give 60 days’ notice of the alleged violation to the EPA, to the state in which the alleged violation occurred, and to the alleged violator. 42 U.S.C. § 11046(d)(1).
In the present case, the plaintiffs allege that West Bend violated EPCRA by failing to make three kinds of required disclosures in connection with the Schuster Landfill: (1) immediate notices of accidental releases of a hazardous substances, as required by 42 U.S.C. § 11004 ; (2) the filing of inventory forms and "material safety data sheets" relating to hazardous chemicals, as required by §§ 11021 and 11022 ; and (3) the filing of annual "toxic chemical release forms" for each toxic chemical "that was manufactured, processed, or otherwise used in quantities exceeding [certain threshold quantities]," as required by § 11023. In their complaint, the plaintiffs request an injunction requiring West Bend to make the required disclosures. Am. Compl. at 30 ¶ D.
After answering the complaint, West Bend filed a motion for summary judgment on the EPCRA claim, alleging that the plaintiffs failed to provide proper pre-suit notice of the alleged violations. West Bend submits a letter to it dated November 16, 2020 by plaintiffs’ counsel on behalf of the named plaintiffs and others in the Villa Park neighborhood. ECF No. 13-1. The letter purports to notify West Bend of the alleged EPCRA violations described above. However, West Bend contends that the letter is conclusory, in that it does not contain enough information about the alleged EPCRA violations to enable the City to identify what the plaintiffs believe it did wrong and what corrective action it could take to avoid a lawsuit. Therefore, West Bend argues, the notice was defective, and the EPCRA claim must be dismissed.
West Bend filed its motion for summary judgment while the plaintiffs’ original complaint was still the operative complaint. Because the EPCRA claim was the only federal claim alleged in that complaint, West Bend argued that, once the EPCRA claim was dismissed, the court should relinquish supplemental jurisdiction over the plaintiffs’ state-law claims under 28 U.S.C. § 1367(c)(3), which provides that a court may decline to exercise jurisdiction over supplemental claims once all claims conferring original jurisdiction have been dismissed. However, after West Bend filed its motion for summary judgment, the plaintiffs filed an amended complaint that, among other things, adds four new federal claims. These claims are all alleged to arise under 42 U.S.C. § 1983. Three claims are alleged against two of West Bend's officials, Jay Shambeau and Doug...
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