US v. NL Industries, Inc., 91-CV-578-JLF.

• Decision Date: 22 August 1996
• Docket Number: No. 91-CV-578-JLF.,91-CV-578-JLF.
• Citation: 936 F. Supp. 545
• Parties: UNITED STATES of America, Plaintiff, v. NL INDUSTRIES, INC., et al., Defendants, and City of Granite City, Illinois, Lafayette H. Hochuli, and Daniel M. McDowell, Intervenor-Defendants.
• Court: U.S. District Court — Southern District of Illinois

936 F. Supp. 545

UNITED STATES of America, Plaintiff, v. NL INDUSTRIES, INC., et al., Defendants, and City of Granite City, Illinois, Lafayette H. Hochuli, and Daniel M. McDowell, Intervenor-Defendants.

No. 91-CV-578-JLF.

United States District Court, S.D. Illinois.

August 22, 1996.

William E. Coonan, Assistant U.S. Attorney, Fairview Heights, IL, John H. Grady, Kevin P. Holewinski, Leonard M. Gelman, U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C., Steven M. Siegel, Sean Mulroney, U.S. Environmental Protection Agency, Chicago, IL, Helen Keplinger, U.S. Environmental Protection Agency, Washington, D.C., Barry M. Hartman, Acting Asst. Attorney General, Environment & Natural Resources Division, U.S. Department of Justice, Washington, D.C., Mark A. Nitczynski, U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Plaintiff.

James Schink, Reed S. Oslan, Kirkland & Ellis, Chicago, IL, Steven A. Tasher, Bonni F. Kaufman, Willkie, Farr & Gallagher, Washington, D.C., Janet D. Smith, NL Industries, Inc., New York City, John W. Roberts, Sr., Zavnik, Horton, Guibord & McGovern, Chicago, IL, Allan M. Goodloe, Jr., Thompson Coburn, Belleville, IL, George M. von Stamwitz, Douglas R. Sprong, Armstrong, Teasdale, Schlafly & Davis, St. Louis, MO, William G. Dickett, Sheila B. Kennedy, Sidley & Austin, Chicago, IL, Dennis P. Reis, Amy M. Hindman, Quarles & Brady, Milwaukee, WI, Bruce D. Ryder, Thompson Coburn, Belleville, IL, Kenneth J. Mallin, Joseph G. Nassif, Thompson Coburn, St. Louis, MO, Louis F. Bonacorsi, Bryan Cave, St. Louis, MO, David G. Butterworth, David MacGregor, Morgan, Lewis & Backus, Philadelphia, PA, J. Martin Hadican, Clayton, MO, Crystal M. Kennedy, Thompson Coburn, St. Louis, MO, Richard J. Pautler, Peper, Martin, Jensen, Maichel & Hetlage, St. Louis, MO, Michael J. Merlo, Merlo, Kanofsky, Chicago, IL, Karen L. Douglas, Prospect Heights, IL, Brent Clark, Jeryl Dezelick, Thomas Dent, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, Edward C. Fitzhenry, Jr., Lueders, Robertson & Konzen, Granite City, IL, Susan E. Bacon, Granite City, IL, Mark C. Goldenberg, Bono, Goldenberg, Hopkins & Bilbrey, Granite City, IL, for Defendants.

MEMORANDUM AND ORDER

FOREMAN, District Judge:

Before the Court are motions for a temporary restraining order and preliminary injunction filed by defendants NL Industries, Inc., Johnson Controls, Inc., AT & T Corporation, Allied-Signal, Inc., Gould Electronics, Inc., and General Battery Company (Doc. No. 218), in which defendant Exide Corporation joins (see Doc. No. 227), and the City of Granite City ("City") (Doc. No. 220).

I. Introduction

The NL Industries/Taracorp Superfund Site includes roughly 16 acres in and around Granite City, Illinois, where a battery recycling facility and secondary lead smelter was operated from 1903 to 1983. Also included in the site are approximately 55 square blocks of residential property surrounding the smelter.

The United States Environmental Protection Agency ("EPA") is in the process of removing soil from residential yards in Granite City, Illinois, that have lead levels greater than 500 parts per million ("ppm"). The lead in the residential soil resulted from the emission of lead from smelting operations. The City and the defendants argue that the EPA's selection of the 500 ppm clean-up level was arbitrary and capricious and they believe that limiting the clean-up to residential properties with 1000 ppm or greater will adequately protect human health.¹ The City and the defendants seek to have the Court enjoin the residential clean-up until the Court has addressed the propriety of the EPA's selection of the 500 ppm clean-up threshold.

II. Procedural Background

The United States filed its complaint on July 31, 1991. The defendants and others were named as Potentially Responsible Parties ("PRPs") as either owner-operators of the smelter or as transporters of hazardous material to the site. See sections 106 and 107 of CERCLA,² 42 U.S.C. §§ 9606 & 9607. As such, the PRPs are potentially liable for costs associated with cleaning up the site under 42 U.S.C. § 9607. The plaintiff seeks: (1) to recover past response costs associated with the clean-up of hazardous materials at the site; (2) a declaration that the PRPs will be liable for future response costs; (3) injunctive relief to compel the PRPs to undertake response actions at the site; and (4) civil penalties and punitive damages. Complaint, Doc. No. 1. The City intervened in an attempt to stop or limit the scope of the EPA's proposed clean-up. See Doc. Nos. 50 & 76.

III. Jurisdiction

The City and the defendants cite CERCLA §§ 113(h)(1) & (4), 42 U.S.C. 9613(h)(1) & (4), as the bases on which the Court has jurisdiction to enjoin the EPA's remedial action.³ Section 113(h) provides in pertinent part:

(h) Timing of review

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:

(1) An action under 9607 of this title to recover response costs or damages or for contribution.

....

(4) An action under section 9659 of this title (relating to citizens suits) alleging that the removal or remedial action taken under section 9604 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.

A. Jurisdiction Under § 113(h)(1)

The City and the PRPs argue that the plain language of § 113(h)(1) provides that the Court has jurisdiction to award injunctive relief upon the filing of a cost recovery action under § 107, 42 U.S.C. § 9607.⁴ The EPA does not dispute the City's assertion that the Court has jurisdiction under § 113(h)(1) to review the selected remedy once a § 107 action is filed. However, the EPA takes issue with the City's contention that the Court has jurisdiction under § 113(h)(1) to enjoin an ongoing remedial action. The EPA contends that § 113(h)(1) gives the Court jurisdiction in a cost recovery action under CERCLA only to consider the PRP's defenses to liability and to challenge costs assessed against them.

In support of their assertion that § 113(h)(1) gives the Court jurisdiction to enjoin the clean-up, the City and the PRPs rely on United States v. Princeton Gamma-Tech, Inc., 31 F.3d 138 (3d Cir.1994). The defendant in Princeton Gamma-Tech sought to enjoin the EPA from drilling through the contaminated shallow layer of an aquifer into deeper and apparently uncontaminated layers on the grounds that the drilling would contaminate the deeper layers. The court concluded that once the EPA brought the cost-recovery suit under CERCLA, the jurisdictional bar to review of challenges to EPA's remedial action was lifted.

With regard to the remedies available, the court looked to § 113(j)(3), which provides:

If the court finds that the selection of the response action was arbitrary and capricious or otherwise not in accordance with law, the court shall award (A) only the response costs or damages that are not inconsistent with the national contingency plan, and (B) such other relief as is consistent with the National Contingency Plan.⁵

The court observed that § 113(j)(3) "makes it clear that the available remedies are not limited to a mere reduction of the amount recoverable for expenditures, but may also include any relief consistent with the National Contingency Plan." Princeton Gamma-Tech, 31 F.3d at 144. The court concluded that granting injunctive relief is consistent with the National Contingency Plan where the proposed remedy poses a bona fide threat of irreparable harm to public health or the environment. Id. at 148.

While Princeton Gamma-Tech clearly supports the position of the City and the PRP's, the Seventh Circuit has taken a more restrictive view of the relief available under § 113(h). In North Shore Gas Co. v. E.P.A., 930 F.2d 1239 (7th Cir.1991), Outboard Marine Corporation was ordered to clean up contamination at a Superfund site in Waukegan Harbor on Lake Michigan. North Shore was identified as a PRP in an adjoining superfund site that overlapped the Outboard Marine site. The EPA ordered Outboard Marine to build a new slip in the overlapping area between the two sites because the old slip was to be used to store hazardous waste. North Shore objected on the grounds that their costs would be higher and filed suit under NEPA and RCRA to enjoin the construction of the new slip. Id. at 1241.

The court first determined that North Shore did not have standing under NEPA or RCRA to challenge the construction of the new slip. Id. at 1243-44. The court then went on to analyze the jurisdictional bar of § 113(h). The court observed that "the purpose of section 113(h) is to prevent litigation from delaying remediation." Id. at 1244. The court posed a hypothetical in which, had the EPA listened to reason, the cost to build the new slip would be $1 million less with no added cost to Outboard Marine or the environment. Id. at 1245. North Shore's most promising course of action would be to sue the government for reimbursement under 42 U.S.C. § 9606(b)(2)(D), which is exempted from the jurisdictional bar by § 113(h)(1), 42 U.S.C. § 9613(h)(1). Id. However, the remedial order was addressed to Outboard Marine, not North Shore, and "the statute as worded envisages a suit by the person to whom the remedial order was addressed. ..." Id. The court observed that

the purpose of § 113(h) was not to defeat an aggrieved person's

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