North Shore Gas Co. v. USEPA, 90 C 7122.

• Decision Date: 17 December 1990
• Docket Number: No. 90 C 7122.,90 C 7122.
• Citation: 753 F. Supp. 1413
• Parties: NORTH SHORE GAS COMPANY, an Illinois corporation, Plaintiff, v. The UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, William K. Reilly, Administrator of USEPA Valdas V. Adamkus, Regional Administrator of USEPA Region V, The Corps of Engineers of the United States Army, Michael P.W. Stone, Secretary of the Army, Lt. General H.J. Hatch, Commander in Chief of Engineers, Lt. Colonel Randall Inouye, District Engineer, Chicago District, The Illinois Environmental Protection Agency, Bernard F. Killian, Director of IEPA, and Outboard Marine Corporation, a Delaware corporation, Defendants.
• Court: U.S. District Court — Northern District of Illinois

753 F. Supp. 1413

NORTH SHORE GAS COMPANY, an Illinois corporation, Plaintiff, v. The UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, William K. Reilly, Administrator of USEPA Valdas V. Adamkus, Regional Administrator of USEPA Region V, The Corps of Engineers of the United States Army, Michael P.W. Stone, Secretary of the Army, Lt. General H.J. Hatch, Commander in Chief of Engineers, Lt. Colonel Randall Inouye, District Engineer, Chicago District, The Illinois Environmental Protection Agency, Bernard F. Killian, Director of IEPA, and Outboard Marine Corporation, a Delaware corporation, Defendants.

No. 90 C 7122.

United States District Court, N.D. Illinois, E.D.

December 17, 1990.

John Joseph Verscaj, Nancy J. Rich, Russell B. Selman, Bell, Boyd & Lloyd, Chicago, Ill., for North Shore Gas Co.

Gail C. Ginsberg, U.S. Atty.'s Office, Chicago, Ill., for E.P.A., William K. Reilly, Administrator of USEPA, Valdas V. Adamkus, Regional Administrator of USEPA Region V, Corps of Engineers of the United States Army, Michael P.W. Stone, Secretary of the Army, H.J. Hatch, Lt. Gen., Commander in Chief of Engineers, and Randall Inouye, Lt. Colonel, Dist. Engineer, Chicago Dist.

Douglas J. Rathe, Cook County State's Atty.'s Office, Chicago, Ill., for Illinois E.P.A. and Bernard F. Killian, Director of IEPA.

Steven H. Frankel, Dale M. Cohen, Jeffery C. Fort, Sonnenschein, Nath and Rosethal, Chicago, Ill., for Outboard Marine Corp., a Delaware Corp.

ORDER

NORGLE, District Judge.

Before the court is the joint motion of defendants Outboard Marine Corporation ("OMC") and "federal defendants" — the United States Environmental Protection Agency ("USEPA"), William K. Reilly, Administrator of USEPA, Valdas V. Adamkus, Regional Administrator of USEPA Region V, the Corps of Engineers of the United States Army, Michael P.W. Stone, Secretary of the Army, Lt. General H.J. Hatch, Commander in Chief of Engineers, and Lt. Colonel Randall Inouye, Chicago District — to dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6).¹ For the reasons stated below, the motion is granted.

FACTS

On December 10, 1990, plaintiff North Shore Gas Company ("North Shore") filed this action for declaratory and injunctive relief, challenging the "imminent excavation and construction" of a boating slip on a Superfund Site abutting the Waukegan Harbor of Lake Michigan, in Waukegan, Illinois. Complaint, ¶ 12. North Shore alleges that the construction of this boating slip may expose hazardous compounds presently in the soil and contaminate the surrounding environment. North Shore claims that due to the likelihood of contamination, construction of the boating slip will violate various federal environmental statutes and regulations as well as creating a statutory and common law public nuisance under state law. Together with its complaint, plaintiff filed a motion for temporary restraining order to enjoin construction of the boating slip and a motion for reassignment based on relatedness.²

All parties acknowledge that the present action is related to United States v. Outboard Marine Corp., 88 C 8571 (N.D.Ill.), an action filed with this court in October of 1988. In the Outboard Marine case, the USEPA brought a CERCLA³ action against OMC seeking the reimbursement of response costs relating to the removal of polychlorinated biphenyls ("PCBs") released from an OMC facility into Waukegan Harbor.⁴ In April 1989, this court entered a detailed consent decree (the "OMC Decree") in which OMC agreed, among other things, to pay $19 million over a three year period to fund the PCB cleanup. The remedial action set forth in the Decree requires OMC, among other things, to dredge certain PCB contaminated areas in the harbor, and to store the dredged contaminants in a containment cell to be built at a location presently occupied by a boating slip owned by Larsen Marine Co. ("Slip No. 3"). Because the remedial action requires Slip No. 3 to be closed, the OMC Decree provides for the construction of a new boating slip ("New Slip") adjacent to Slip No. 3 to compensate Larsen Marine Co. for the loss of its property. The construction of the New Slip is a necessary prerequisite to the closing of Slip No. 3, which must be accomplished before the containment cell can be built or the dredging can begin.

In early 1989, the USEPA and IEPA learned that the land adjacent to the PCB contamination area was also contaminated with hazardous waste. This land had been the site of various industrial facilities over the years, including among other things, an operating facility owned by North Shore, another gas manufacturing facility known as the Waukegan Manufactured Gas and Coke Plant, and a creosoting facility run by prior occupants in the early 1900s. Soil samples from this site indicate the presence of hazardous substances⁵ which may be linked to the former industrial activities on this site. Shortly after the consent decree had been entered in the Outboard Marine case, the USEPA identified this property adjacent to the OMC PCB contamination area, as a Superfund Site (the "Superfund Site"). The USEPA and IEPA notified North Shore and other previous occupants of this property that they were potentially responsible parties ("PRPs") under the Superfund Amendments and Reauthorization Act of 1986 ("Superfund")⁶ for the contamination on this site. In August 1990, North Shore signed an Administrative Order on Consent with the USEPA and IEPA,⁷ agreeing to conduct a detailed Remedial Investigation/Feasibility Study ("RI/FS") of the potential hazardous waste dangers and feasible remedies at the Superfund Site. This administrative order has been entered as a final order with the USEPA.

Coincidentally, the construction location for the New Slip required by the OMC Decree falls within the Superfund Site on which North Shore is obligated, pursuant to the Administrative Order, to conduct its RI/FS. North Shore claims that the investigation of the Superfund Site has not been sufficient to determine the extent of the potential dangers which may result from the excavation and construction of the New Slip. North Shore also alleges that excavation of the soil on the Superfund Site will hamper or destroy its efforts to conduct a complete and accurate investigation of the site, as well as create a hazard for citizens using the New Slip or otherwise exposed to the contaminants. North Shore seeks to enjoin the construction of the New Slip until it completes its RI/FS of the Superfund Site.

In its complaint, North Shore seeks this relief under four legal theories. In count I, North Shore requests relief from the federal defendants to the action pursuant to the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. In count II, plaintiff asserts claims against all defendants under Section 7002(a)(1)(A) of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a)(1)(A). Plaintiff asserts state law claims against all defendants for creation of a statutory public nuisance and a common law public nuisance in counts III and IV, respectively. OMC and USEPA have moved to dismiss North Shore's complaint in its entirety for lack of subject matter jurisdiction.

DISCUSSION

Defendants' motion to dismiss is based primarily upon 42 U.S.C. § 9613(h) which states in pertinant part:

No Federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title, in any action except one of the following:

* * * * * *

(4) An action under section 9659 of this title (relating to citizens suits) alleging that the removal or remedial action taken under section 96-4 of this title or secured under section 9606 of this title was in violation of any requirement of this chapter. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site.

Defendants characterize plaintiff's complaint as a challenge to the remedial action required by the OMC Decree which § 9613(h) expressly places outside the court's subject matter jurisdiction. Defendants cite to two recent federal appellate decisions, Schalk v. Reilly, 900 F.2d 1091 (7th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 509, 112 L.Ed.2d 521 (1990) and State of Alabama v. United States Environmental Protection Agency, 871 F.2d 1548 (11th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 538, 107 L.Ed.2d 535 (1989), in support of their position.

In Schalk, the Seventh Circuit upheld the dismissal of two citizens suits seeking federal court review of remedial action proposed in a consent decree between the USEPA and Westinghouse Electric Corporation, concerning PCB contamination in several sites in Monroe County, Indiana. The Seventh Circuit held that the "obvious meaning of this statute § 9613(h)(4) is that when a remedy has been selected, no challenge to the cleanup may occur prior to completion of the remedy." Schalk, 900 F.2d at 1095. In rejecting plaintiffs' argument that they were not really challenging the Westinghouse consent decree, but were merely asking that certain procedural requirements be met, the court stated:

Challenges to the procedure employed in selecting a remedy nevertheless impact the implementation of the remedy and result in the same delays Congress sought to avoid by passage of the statute; the statute necessarily bars these challenges. The judicial review itself slows the process down. See Jefferson County v. United States, 644 F.Supp. 178, 182 (E.D.Mo.1986) ("Judicial review of agency clean-up activities would hinder and delay the hazardous waste disposal. This delay would be inconsistent with the

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