Melton Props., LLC. v. Ill. Cent. R.R. Co., 4:18-CV-79-DMB-JMV

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
Citation539 F.Supp.3d 593
Docket NumberNO. 4:18-CV-79-DMB-JMV,4:18-CV-79-DMB-JMV
Parties MELTON PROPERTIES, LLC., et al., Plaintiffs v. ILLINOIS CENTRAL RAILROAD COMPANY, et al., Defendants
Decision Date14 May 2021

Charles M. Merkel, Jr., Edward Peacock Connell, Jr., Merkel & Cocke, P.A., Clarksdale, MS, Keith Whiteman Turner, William A. Orlansky, Louis B. Lanoux, Watkins & Eager, PLLC, Jackson, MS, William C. Spencer, Spencer Law Firm, William Collins Spencer, Jr., William C. Spencer, Jr. - Attorney at Law, Tupelo, MS, for Plaintiffs Melton Properties, LLC, Floyd M. Melton, Jr., Floyd M. Melton, III, Moss B. Melton.

Keith Whiteman Turner, William A. Orlansky, Louis B. Lanoux, Watkins & Eager, PLLC, Jackson, MS, Edward Peacock Connell, Jr., Merkel & Cocke, P.A., Clarksdale, MS, William C. Spencer, Spencer Law Firm, William Collins Spencer, Jr., William C. Spencer, Jr. - Attorney at Law, Tupelo, MS, for Plaintiffs McMillan Acres, Danny Hargett, Jane Hart McMillan Hargett, David Hargett.

Glenn F. Beckham, Upshaw, Williams, Biggers, Beckham & Riddick, Greenwood, MS, Scott Fuller Singley, Brunini, Grantham, Grower & Hewes, Columbus, MS, William Easom Jones, III, Brunini, Grantham, Grower & Hewes, Jackson, MS, for Defendants.



On September 29, 2020, this Court, on Illinois Central Railroad Company's motion, stayed the plaintiffs’ remediation-related claims for ninety days under the doctrine of primary jurisdiction. Before the 90-day stay expired, Illinois Central, invoking primary jurisdiction, exhaustion of administrative remedies, and Burford abstention, filed a motion to extend the stay until October 2023. Due to an extended briefing period requested by the parties (including requests to supplement the record), the stay expired before briefing on the motion was completed. Now, having reviewed the briefing and the relevant supplements, the Court concludes that, due to administrative delays, the doctrine of exhaustion does not justify a stay. The Court further concludes that, because Illinois Central failed to adequately brief the propriety of Burford abstention, a stay under that doctrine is inappropriate. However, because the Court finds a stay would benefit these proceedings and would not irreparably harm the plaintiffs, a stay of 180 days is warranted under the doctrine of primary jurisdiction.

IProcedural History

On March 27, 2018, Melton Properties, LLC; Floyd M. Melton, Jr.; Floyd M. Melton III; Moss B. Melton; McMillan Acres; Danny Hargett; Jane Hart McMillan Hargett; and David Hargett filed this action in the United States District Court for the Northern District of Mississippi against Illinois Central Railroad Company; Canadian National Railway (Illinois Central's parent corporation); Union Tank Car Company, Inc.; and certain fictitious parties. Doc. #1. The complaint, as amended,1 asserts state and federal claims arising from a toxic spill caused by a March 30, 2015, derailment of a railcar owned by Union Tank, which was being transported by "Illinois Central and/or Canadian National" on tracks "owned by Illinois Central and/or Canadian National." Doc. #92 at ¶¶ 14–15, 36–114. The plaintiffs, all property owners or farmers near the site of the spill in Leflore County, Mississippi (known as the Minter City site), also asserted claims related to the remediation of the spill. Id. at ¶¶ 69–72.2

On February 11, 2020, Illinois Central filed a motion to dismiss the plaintiffs’ remediation-related claims or, in the alternative, to stay such claims. Doc. #108. The motion also sought dismissal of the plaintiffs’ claims brought under the Clean Water Act and under the Resource Conservation and Recovery Act. Id. at 3. After receiving an extension to respond to the motion to dismiss,3 the plaintiffs filed a motion for leave to file a second amended complaint "to reflect ... additional facts [related to the remediation process] and to clarify allegations previously made." Doc. #119 at 1. On March 9, 2020, United States Magistrate Judge Jane M. Virden granted the plaintiffsmotion to amend. The second amended complaint was filed the same day. Doc. #127.

On September 29, 2020, the Court granted in part and denied in part Illinois Central's motion to dismiss. Doc. #222. Of relevance here, the order stayed the plaintiffs’ remediation-related claims for injunctive relief for ninety days under the doctrine of primary jurisdiction. Id. at 26–27. Additionally, the Court stayed the remediation-related claims for damages to avoid piecemeal litigation. Id.

On November 23, 2020, Illinois Central moved to extend the stay through the completion of MDEQ's remediation process, Doc. #252, which Illinois Central anticipates will be "no later than October 2023,"4 Doc. #277 at 1. Due to requests for extensions and a motion for leave to file a sur-rebuttal, briefing on the motion was not completed until January 20, 2021. On April 26, 2021, Illinois Central was granted leave to supplement the record with additional exhibits. See Doc. #330.

IIFactual Background

The relevant facts are largely undisputed. On March 30, 2015, an Illinois Central train derailed, spilling contaminants—primarily Dicyclopentadine ("DCPD")—onto property owned and/or farmed by the plaintiffs. Following the spill, Illinois Central made initial efforts to remediate the spill site.5

On September 28, 2015, MDEQ wrote Illinois Central requesting "a Corrective Action Plan addressing residual soils that exist above the EPA [Regional Screening Level] and the identification and removal both of surficial and buried debris and solid waste on or before October 30, 2015." Doc. #117-1 at PageID 2123.6 Illinois Central submitted a Supplemental Site Assessment Work Plan, which MDEQ approved on December 23, 2015, subject to certain conditions, including that "should the data support a complete conceptual site model, then [Illinois Central] will develop a comprehensive Corrective Action Plan for the removal of contaminated soils and solid waste remaining on site from the property." Doc. #117-2 at PageID 2136.

On September 22, 2016, MDEQ rejected as inadequate Illinois Central's proposal of a "Site-Specific Cleanup Level." Doc. #117-4. Approximately six months later, on March 17, 2017, MDEQ conditionally approved a Groundwater Delineation Work Plan submitted by Illinois Central. Doc. #117-7. MDEQ approved with comments Illinois Central's June 23, 2017, Corrective Action Plan ("CAP") on July 24, 2017. Doc. #117-8. On December 28, 2017, the agency approved with comments an October 26, 2017, addendum to the CAP. Doc. #117-9.

On January 12, 2018, Melton Properties, LLC, Caroline McComb Scheppe, and the Caroline McComb Scheppe Trust Number One filed a petition with MDEQ requesting "an evidentiary hearing for the Commission to consider actions taken in connection with the assessment, delineation, remediation, and cleanup of soil and groundwater contamination caused by [the] train derailment." Doc. #117-11 at PageID 2192. Consistent with the petition, MDEQ set an evidentiary hearing for November 14, 2018. Id. at PageID 2192–93.

On February 20, 2018, after receiving Illinois Central's response to its comments, MDEQ approved the October 26, 2017, addendum to the CAP. Doc. #108-9 at PageID 1987. The approval "requests that the remediation and restoration activities proposed begin by March 23, 2018 and all actions be completed on or before June 29, 2018 with a final Corrective Action Report submitted to MDEQ on or before July 31, 2018." Id. It appears work began on the site on or about April 30, 2018. Doc. #117-10.

On August 2, 2018, MDEQ wrote Illinois Central regarding certain deficiencies in the CAP. Doc. #117-12 at PageID 2197. The letter noted that "considering that as of August 1, 2018, the remediation and restoration activities are still ongoing, MDEQ will extend the completion due date to Friday, August 17, 2018, and the Corrective Action Report due date to Friday, September 7, 2018." Id. at PageID 2198. Due to this extension, MDEQ postponed the evidentiary hearing until further notice. Id. at PageID 2200.

On April 4, 2019, MDEQ approved with comments a March 1, 2019, Revised Monitoring Well Installation and Groundwater Sampling Work Plan submitted by Illinois Central. Doc. #117-13. The approval required that the "assessment activities be implemented within 45 days of receipt of this letter." Id. at PageID 2202.

On April 28, 2020, Illinois Central submitted to MDEQ a Fourth Quarterly Groundwater Sampling Report which, among other things, proposed "a pilot study work plan to evaluate the efficacy of various remedial strategies for miscible phase DCPD in groundwater." Doc. #180-1 at PageID 3127. On May 15, 2020, MDEQ approved the pilot study with the requirement that it be submitted to MDEQ for review by June 15, 2020. Id. at PageID 3443. Illinois Central submitted the proposed pilot study on June 15, 2020. Id. at PageID 3445. The schedule initially included a completion date of October 13, 2020. Id. at PageID 3452.

On June 22, 2020, counsel for the Meltons wrote MDEQ complaining of the pace of the remediation and MDEQ's actions. Doc. #180-1 at PageID 3453–58. On July 21, 2020, after its July 10 approval in part of the proposed pilot study plan with comments,7 MDEQ responded to the Meltons’ counsel by letter. Doc. #187-2. Acknowledging the Meltons’ counsel's concerns, the letter states that "MDEQ has only one other experience with DCPD contamination" and that "DCPD is a unique chemical and there is little data available regarding cleanup options." Id. at PageID 3483. The letter concludes that "MDEQ does not dictate deadlines for final site remediation unless the responsible party has been unresponsive to its requests to initiate cleanup" and that "MDEQ expects [Illinois Central] to submit the CAP and provide a schedule of remedial implementation within six to eight weeks upon completion of the Work Plan (October 13, 2020)." Id. at...

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