ConocoPhillips Pipe Line Company v. Rogers Cartage Company

Filing 60

ORDER denying 12 Motion to Dismiss Case for Lack of Jurisdiction. Signed by Chief Judge David R. Herndon on 7/11/12. (mtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PHILLIPS 66 PIPELINE LLC,
formerly known as ConocoPhillips
Pipe Line Company,
Plaintiff,
v.
ROGERS CARTAGE COMPANY,

v.

Defendant/Counterclaim
Plaintiff/Third-party Plaintiff,

MONSANTO COMPANY, SOLUTIA INC.,
and PHARMACIA CORPORATION,
Third-Party Defendants

No. 11-cv-497-DRH-DGW
ORDER

HERNDON, Chief Judge:
I.

INTRODUCTION

Pending before the Court is defendant Rogers Cartage Company’s motion to
dismiss Count II of plaintiff Phillips 66 Pipeline LLC’s complaint (Doc. 12).
Pursuant to FEDERAL RULE

OF

CIVIL PROCEDURE 12(b)(1), defendant argues

plaintiff’s Count II, seeking an injunction pursuant to the Resource Conservation
and Recovery Act (“RCRA”), § 7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B), lacks
subject matter jurisdiction, as the Environmental Protection Agency (“EPA”) has
commenced removal and/or remedial actions. Thus, defendant argues Section
113(h) of the Comprehensive Environmental Response, Compensation and
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Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9613(h), holds plaintiff’s Count II
lacks subject matter jurisdiction. Plaintiff responds that CERCLA Section 113(h)
is not jurisdictional; thus, Rule 12(b)(1) is not the proper vehicle for defendant’s
instant motion.

Moreover, plaintiff argues, as the EPA has merely begun to

investigate the contaminated site at issue, CERCLA Section 113(h) does not
preclude Count II (Doc. 23). For the following reasons, the Court agrees with
plaintiff’s reasoning and accordingly DENIES defendant’s motion (Doc. 12).
II.

BACKGROUND

Plaintiff filed the subject complaint on June 15, 2011 (Doc. 2). Plaintiff’s
complaint arises from defendant’s lease of five-acres (the “Site”) of plaintiff’s 360acre pipeline terminal property situated at 3300 Mississippi Avenue, Cahokia,
Illinois. Defendant leased plaintiff’s property from a predecessor of plaintiff from
the 1950s until at least 1970. Plaintiff alleges that while defendant conducted
operations on plaintiff’s property, it “hauled hazardous substances, including
polychlorinated biphenyl (‘PCB’) waste, to disposal facilities and washed out its
trucks at the Site.”

Plaintiff’s Count I is a cost recovery claim under Section

107(a) of CERCLA, 42 U.S.C. § 9607(a). Count II, the subject of the instant
motion, is a citizen suit claim pursuant to RCRA § 7002(a)(1)(B), 42 U.S.C. §
6972(a)(1)(B). Plaintiff’s Count II seeks “injunctive relief restraining and enjoining
[defendant] from allowing continued contamination of the Site and compelling
[defendant] to abate the contamination that it has caused.” Further, plaintiff
requests that the Court award it its attorney’s fees and impose civil penalties on
defendant, pursuant to the RCRA.
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Defendant filed the instant motion to dismiss plaintiff’s Count II on October
31, 2011 (Doc. 12). As plaintiff responded to defendant’s motion on November 8,
2011, the dispute is ripe for resolution (Doc. 23).
III.

ARGUMENTS AND APPLICATION

Defendant argues this Court lacks subject matter jurisdiction over
plaintiff’s Count II, as the facts demonstrate that the EPA has commenced
removal and/or remediation actions with respect to the Site under CERCLA. Thus,
defendant argues any injunction this Court may order would conflict with the
EPA’s clean-up orders and directions under CERCLA. In support, defendant cites
Section 113 of CERCLA, 42 U.S.C. § 9613(h), which provides:
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.
Defendant argues that an EPA removal and/or remedial action pursuant to
42 U.S.C. § 9604 is ongoing with respect to the Site. Thus, the Court does not
have jurisdiction to entertain plaintiff’s Count II. As defendant characterizes its
dismissal as a factual attack on the subject matter jurisdiction of plaintiff’s Count
II, it states the Court may consider matters outside of the pleadings. See Apex
Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009).
Accordingly, defendant cites a letter demanding reimbursement of costs from the
EPA dated May 27, 2011, as evidencing the EPA’s ongoing removal and/or
remedial action (Doc. 13, pp. 7-16). The letter states that the EPA,
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[H]as been conducting response actions to address contamination at
the [Site]. Under § 107(a) of CERCLA, 42 U.S.C. § 9607(a), you
[“Potentially Responsible Party”] are responsible for unrecovered
costs incurred by EPA while investigating the Site.
...
Pursuant to authority contained in § 104 of [CERCLA], 42 U.S.C. §
9604, the EPA determined that there was a release of hazardous
substances (as defined by § 101(14) of CERCLA) at the Site.
(Doc. 13, p. 7).
Plaintiff responds that CERCLA Section 113(h) does not divest the Court of
subject matter jurisdiction over its Count II, as the EPA has not “selected” a
removal or remedial action that plaintiff’s Count II somehow “challenges.” In
support, plaintiff first alleges that defendant’s reliance on Rule 12(b)(1) is
misplaced, as the Seventh Circuit has determined that the Timing of Review
provision in CERCLA Section 113(h) cannot deprive a Court of subject matter
jurisdiction. Thus, any motion based on Section 113(h) must rely on Rule
12(b)(6), failure to state a claim upon which relief can be granted. See Frey v.
EPA, 270 F.3d 1129, 1132 (7th Cir. 2001) (“Frey I”).
The Court agrees that Rule 12(b)(1) is not the proper authority for the
instant motion, as Frey I makes clear that failure to comply with Section 113(h)
results in dismissal under Rule 12(b)(6), not Rule 12(b)(1). Id.

Rule 12(b)(6)

authorizes dismissal when it appears beyond doubt that the plaintiff can prove no
set of facts that would entitle it to relief. Szumny v. Am. Gen. Fin., 246 F.3d
1065, 1067 (7th Cir. 2001). Dismissal under Rule 12(b)(1) is appropriate when a
court lacks subject matter jurisdiction, meaning Article III competence to hear a
case. Frey I, 270 F.3d at 1132. However, Section 113(h) does not speak to a

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Court’s power to hear a case, but instead establishes prerequisites for certain
kinds of environmental suits. Id. Thus, “[a] person who does not comply with §
113(h) will not prevail, but the court’s power to adjudicate the case is clear, and a
dismissal should be predicated on FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6), not
12(b)(1).” Id.
The distinction is important to the instant dispute, as in the Rule 12(b)(1)
context, the court may weigh the evidence and make factual findings regarding
jurisdiction based on evidence presented by the parties. See Apex, 572 F.3d at
444.

However, under Rule 12(b)(6), only the complaint and its exhibits are

examined. Documents outside the complaint and its exhibits are not considered
unless the court converts the motion into one for summary judgment. FED. R. CIV.
P. 12(d). Further, under Rule 12(b)(6), “the court indulges every reasonable
presumption in favor of the complainant.” Frey I, 270 F.3d at 1132.
Instantly, defendant’s motion relies entirely on a document that is not an
exhibit to plaintiff’s complaint, nor “referred to in plaintiff’s complaint and []
central to [its] claim.” See Venture Assoc. Corp. v. Zenith Data Sys., 987 F.2d
429, 432 (7th Cir. 1993) (“Documents that a defendant attaches to a motion to
dismiss are considered part of the pleadings if they are referred to in the
plaintiff’s complaint and are central to her claim.”). Further, the Court will not
convert defendant’s motion into one for summary judgment under Rule 56. Thus,
the EPA letter is not properly before this Court on the instant motion.
Moreover, even if the EPA letter was properly before the Court, it does not
indicate CERCLA Section 113(h) precludes plaintiff’s Count II. In Frey v. EPA,
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403 F.3d 828 (7th Cir. 2005) (“Frey II”), the plaintiffs brought suit to compel the
EPA to clean up toxic waste dumps near Bloomington, Indiana. The EPA moved
for summary judgment, arguing CERCLA Section 113(h) barred the suit as
concrete and remedial measures were still underway at the sites. Id. at 831-32.
In concluding that the EPA’s ongoing investigation and testing of
groundwater and soil contamination did not preclude review under Section
113(h), the Seventh Circuit focused on the provision’s use of the term “selected.”
The court opined,
For EPA to delay Frey’s suit, it must point to some objective referent
that commits it and other responsible parties to an action or plan. No
such objective evidence exists in this record. There is no timetable or
other objective criterion by which to assess when EPA’s amorphous
study and investigation phase may end.
Id. at 834. Thus, the court held, “EPA cannot preclude review by simply pointing
to ongoing testing and investigation with no clear end in sight.” Id. at 835.
Defendant argues the EPA letter of May 27, 2011, “demonstrates that an
EPA removal and/or remedial action pursuant to 42 U.S.C. § 9604 is ongoing with
respect to the Site.” As the Seventh Circuit explained in Frey II, “[r]emoval refers
to a short-term action taken to halt risks posed by hazardous wastes immediately.
Remedial actions involve permanent solutions, taken instead of or in addition to
removal, such as the destruction of hazardous materials.” Id. The EPA letter of
May 27, 2011, does not indicate either removal or remedial actions have been
“selected” under the Seventh Circuit’s interpretation of CERCLA Section 113(h),
as it merely states the EPA’s “response actions” of “investigating the Site” have
“determined that there was a release of hazardous substances . . . at the Site.”
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This does not demonstrate the type of objective plan contemplated under Frey II.
Thus, even if the EPA letter was properly before this Court, it does not
demonstrate plaintiff’s Count II is barred at this time.
Defendant cites to non-binding and factually distinguishable precedent in
support of its contention that the EPA letter demonstrates CERCLA Section
113(h) bars plaintiff’s Count II. In Wason Ranch Corp. v. Hecla Mining Corp., No.
07-cv-00267, 2008 WL 906110, *3 (D. Colo. Mar. 31, 2008), the EPA had issued
an Action Memorandum documenting its approval of a removal action. The Action
Memorandum additionally approved a “Project Implementation Plan,” providing
additional details for the removal action. These documents, “outlined the first
phase of the EPA’s program to investigate, assess, and remove or remediate
sources of metals contamination within the” site at issue. Id. Thus, the sites at
issue were subject to ongoing response action. Id. at *12. Instantly, the EPA letter
seeking reimbursement for investigation costs clearly does not indicate the type of
response action demonstrated in Wason Ranch.
Additionally, in McClellan v. Ecological Seepage Situation v. Perry, 47
F.3d 325, 328 (9th Cir. 1995), the Department of Defense was already
implementing a groundwater cleanup program; thus, the district court concluded
that, “a comprehensive cleanup effort is currently underway.” The Ninth Circuit
further noted the “Action Plan” at issue took into account all applicable statutory
requirements, including those of the RCRA and the Clean Water Act, and
coordinated compliance with each. Id. at 329.

Again, a similar plan

demonstrating EPA response actions are ongoing is not present in the instant
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case. Similarly, the plaintiffs in Razore v. Tulalip Tribes of Wash., 66 F.3d 236,
238 (9th Cir. 1995), could not assert a RCRA citizen suit claim, as they had
signed an Administrative Order of Consent with the EPA that required them to
perform a Remedial Investigation/Feasibility Study (“RI/FS”) pursuant to 40 C.F.R.
§ 300.430.
Finally, in Cannon v. Gates, 538 F.3d 1328, 1334 (10th Cir. 2008), the
government had completed a preliminary assessment of the property, including
conducting an “Archive Search Report” which compiled historical records,
interviews, and site surveys to determine the exact nature of the subject testing
conducted on the property. Based on this assessment, the government prepared a
cost analysis report demonstrating the property was highly contaminated.
Further, the government was planning a site survey at the time of suit. Thus, the
court found the government’s efforts to “monitor, assess, and evaluate” the
hazardous substances on the subject property constituted an ongoing removal
action. Id. There is nothing to indicate the EPA has made a similar effort to
“monitor, assess, and evaluate,” the instant Site.
The Court reiterates that the EPA letter of May 27, 2011, is not properly
before the Court on defendant’s motion, which the Court deems a motion to
dismiss for failure to state a claim under Rule 12(b)(6). Thus, defendant has not
provided the Court with any authority holding plaintiff’s Count II fails as a matter
of law to state a claim. Moreover, even if the EPA letter was properly before the
Court it does not demonstrate the EPA has “selected” removal or remedial
response actions, as it is merely a demand for reimbursement for costs expended
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in investigating the Site. The one page letter does not demonstrate any objective
plan of action is contemplated at this time. Thus, on the record before the Court,
defendant’s motion is DENIED (Doc. 12).
IV.

CONCLUSION

For the foregoing reasons, the Court DENIES defendant’s motion to
dismiss Count II of plaintiff’s complaint (Doc. 12).
IT IS SO ORDERED.
Signed this 11th day of July, 2012.

Digitally signed by
David R. Herndon
Date: 2012.07.11
10:51:17 -05'00'
Chief Judge
United States District Court

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