Opinion
Cause No. 3:04-CV-17 RM.
May 21, 2004
MEMORANDUM AND ORDER
Northern Indiana Public Service Company (NIPSCO) has filed a motion to dismiss Hoosier Environmental Council, Inc., Janet Nona, and Cathi Murray's complaint. The complaint, which arises under the Resource Conservation and Recovery Act (RCRA), questions whether NIPSCO is doing enough to protect certain citizens in the Town of Pines from contaminants in their well water, contaminants that originated with NIPSCO. NIPSCO urges the court to dismiss the case for lack of subject matter jurisdiction and a claim upon which relief can be granted. It bases the former argument on a provision of the RCRA and the latter on a provision of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Both provisions limit a plaintiff's ability to attack an on-going clean-up action. For the reasons stated below, the court bifurcates the motion, converts the RCRA motion to a motion to dismiss for failure to state a claim upon which relief can be granted, and denies both motions.
I. FACTS
The facts are drawn from the first amended complaint, taken as true, and interpreted, as far as is reasonable, in the light most favorable to the plaintiffs. See, e.g., Chavez v. Illinois State Police, 251 F.3d 612, 648 (7th Cir. 2001).
Waste produced by two plants operated by NIPSCO was disposed of in a landfill and used as fill (in, among other things, the construction of roads) in the Town of Pines. The EPA determined that contaminants from this waste leached into the drinking water used by some of the townspeople; at the time, these people got their water from wells. These contaminants rendered the water unsafe for drinking. The EPA termed the affected areas of the Town the North Area and the South Area.
The EPA entered into an agreement with NIPSCO and the set of companies that own and operate the landfill, referred to in shorthand by the parties as Brown, Inc. The agreement is called an Administrative Order by Consent (AOC), and it is a negotiated administrative order that the EPA issued pursuant to § 106 of CERCLA after discussions with NIPSCO and Brown. The AOC requires a "removal action," which is a first-cut remedy to an emergent environmental problem. 42 U.S.C. § 9601(23); Schalk v. Reilly, 900 F.2d 1091, 1092 n. 1 (7th Cir. 1990). Specifically, the order requires that NIPSCO and Brown connect townspeople in the North and South Areas to Michigan City, Indiana's municipal water supply. Ancillary reporting, well-capping, landscaping, and road-repair obligations round out NIPSCO and Brown's duties under the Order. The removal action is ongoing.
Section 106, 42 U.S.C. § 9606, allows the government to order private parties to clean-up environmental problems.
CERCLA also recognizes remedial actions. 42 U.S.C. § 9601(24). A remedial action is a permanent fix that can take the place of or accompany a removal action. Schalk, 900 F.2d at1092 n. 1.
The plaintiffs, a group of townspeople who live outside the North and South Areas and an environmental group with members who are such residents, sued NIPSCO under the citizen suit provision of the Resource Conservation and Recovery Act (RCRA), § 7002(a)(1)(B), 42 U.S.C. § 6972 (a)(1)(B). This provision permits suits against any person who has or is "contributing to the past or present . . . storage . . . or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." Id. The plaintiffs contend that their drinking water, like that of the residents in the North and South Areas, has been contaminated by the waste generated by NIPSCO's plants. They seek declaratory and injunctive relief. Parroting the language of the RCRA's citizen suit provision, they ask the court to announce that NIPSCO "has contributed, and is contributing, to disposal which may present an imminent and substantial endangerment to health or the environment" in violation of the RCRA. They also ask the court to instruct NIPSCO to test the wells of all homes in the Town and provide safe drinking water for any residents whose well water has been contaminated.
NIPSCO moved to dismiss. Two theories underlie the motion, one springs from CERCLA, the other from the RCRA. For clarity's sake, the court treats each theory as a separate motion. The CERCLA motion relies on § 113(h), 42 U.S.C. § 9613(h). This provision restricts attacks on § 106 orders while clean-up is on-going. The RCRA motion grows out of § 7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B), which functions similarly to § 113(h). Though the provisions are similar, NIPSCO classifies the § 113(h) motion as a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), while it categorizes the RCRA motion as motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1).
II. ANALYSIS A.
Section 113(h) of CERCLA, 42 U.S.C. § 9613(h), cabins a plaintiff's ability to bring certain kinds of environmental suits.
No Federal Court shall have jurisdiction under Federal law other than under section 1332 of Title 28 . . . 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 § 9606(a) of this title. . . .
The section contains five exceptions, but none apply to this case. See § 113(h)(1)-(5), 42 U.S.C. § 9613(h)(1)-(5).
The statute's use of the term "jurisdiction" notwithstanding, failure to comply with § 113(h) results in dismissal under Rule 12(b)(6), not 12(b)(1). Frey v. EPA, 270 F.3d 1129, 1132 (7th Cir. 2001). Rule 12(b)(6) authorizes dismissal when it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief. Szumny v. American 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, i.e., Article III competence to hear a case. Id. Section 113(h) doesn't address jurisdiction because it doesn't speak to the power of the court to hear the case. Instead, it establishes prerequisites for certain kinds of environmental suits. Frey v. EPA, 270 F.3d at 1132. 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. Distinguishing between Rule 12(b)(1) and 12(b)(6) dismissals matters because a district court finds jurisdictional facts under Rule 12(b)(1), while under Rule 12(b)(6), the court accepts the facts in the complaint as true and interprets them charitably in the plaintiff's favor. Id.
Though § 113(h) uses slightly different language with respect to § 104 actions and § 106 orders, courts understand the provision to treat both the same way: with the exceptions referenced earlier, it forbids "challenges to § 104 actions and § 106(a) orders." General Electric Company v. EPA, 360 F.3d 188, 191 (D.C. Cir. 2004).
One court defined a "challenge" as any action that seeks to "replace" or "modify," including by expansion, an existing remedial plan. Broward Gardens Tenants Assoc. v. EPA, 311 F.3d 1066, 1073 (11th Cir. 2002). To another court, an action constitutes a challenge if it simply "relate[s] to the goals of cleanup." Razore v. Tulalip Tribes, 66 F.3d 236, 239 (9th Cir. 1995). Our circuit has not yet defined "challenge," but has declared repeatedly that Congress intended for § 113(h) to prevent delays in on-going removal or remedial actions. United States v. Tarkowski, 248 F.3d 596, 601 (7th Cir. 2001); North Shore Gas Co. v. EPA, 930 F.2d 1239, 1244 (7th Cir. 1991);Schalk v. Reilly, 900 F.2d at 1097. The Broward Gardens andRazore definitions ignore whether the action (the potential "challenge") will slow any extant removal or remedial measures. Since this concern lies at the heart of § 113(h), the court cannot brook these definitions. Instead, in accordance with this circuit's understanding of the purpose of § 113(h), the court defines a "challenge" as a suit (related to the goals of clean-up) that would delay an on-going removal or remedial action.
The court inserts this caveat because it recognizes, to borrow and slightly modify an example, that something like a suit to enforce minimum wage requirements might slow a removal or remedial without constituting a challenge. See McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325, 330 (9th Cir. 1995).
NIPSCO argues that § 113(h) bars the plaintiffs' complaint because they are seeking review of the ongoing January 2003 Order. The plaintiffs' cause of action, it continues, conflicts and competes with the EPA and NIPSCO's current response action in the Town of Pines. NIPSCO doesn't detail this conflict and competition.
The court rejects NIPSCO's motion to dismiss. To show that there is no set of facts consistent with the complaint upon which relief can be granted, NIPSCO must persuade the court that the plaintiffs' requests would necessarily delay the ongoing removal action ( i.e., would necessarily constitute a challenge). NIPSCO cannot make this showing. The complaint leaves open the possibility that the plaintiffs' action wouldn't impede the progress of the extant removal activity. NIPSCO might be able to test more wells and attach more people to the Michigan City municipal water supply without losing a step on the current project by hiring new contractors or workers to take on these new tasks. That there may be a solid factual reason, such as a shortage of qualified workers or contractors, why opening a second front would slow down progress under the current plan, is unimportant. The important point for this analysis (of a motion to dismiss) is that delay is not a legal certainty.
B.
The plaintiffs proceed under the citizen suit provision of the RCRA, § 7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B). Section 7002(b)(2)(B) of the RCRA, 42 U.S.C. § 6972(b)(2)(B), limits the circumstances under which such a suit may be brought.
No action may be commenced under subsection (a)(1)(B) of this section if the [EPA] Administrator, in order to restrain or abate acts or conditions which may have contributed or are contributing to the activities which may present the alleged endangerment —
(i) has commenced and is diligently prosecuting an action under section 6973 of this title or under section 106 of [CERCLA][;]. . . .
(iv) has obtained a court order (including a consent decree) or issued an administrative order under section 106 of [CERCLA] . . . pursuant to which a responsible party is diligently conducting a removal action, Remedial Investigation and Feasability Study (RIFS), or proceeding with a remedial action.
In the case of an administrative order referred to in clause (iv), actions under subsection (a)(1)(B) of this section are prohibited only as to the scope and duration of the administrative order referred to in clause(iv).
CERCLA § 7002(b)(2)(B)(i), (iv); 42 U.S.C. § 6972(b)(2)(B)(i), (iv).
NIPSCO asserts that § 7002(b)(2)(B) of the RCRA strips the court of subject matter jurisdiction, necessitating dismissal pursuant to Rule 12(b)(1). Its only support is LeClercq v. The Lockformer Company, in which the court said, "Section § 7002(b)(2)(B) operates as a `jurisdictional bar' for RCRA Section 7002(a)(1)(B) actions." 2002 WL 907969 at *5 (N.D. Ill. May 6, 2002)). Drawing on the logic underlying Frey, the plaintiffs insist that the issue raised by a motion to dismiss pursuant to § 7002(b)(2)(B) is not one of subject matter jurisdiction, but whether the complaint satisfies the prerequisites for filing a suit under the statute — a Rule 12(b)(6) question.
A dismissal motion under § 7002(b)(2)(B) challenges the sufficiency of the complaint, not the court's power to entertain the action. First, § 7002(b)(2)(B) does not mention jurisdiction. But even if one understood it to implicate jurisdiction, a jurisdictional dismissal would be inappropriate. Frey offered a rule of thumb for deciding whether to analyze a case under Rule 12(b)(1) or 12(b)(6): if the court's "jurisdiction" and the claim for relief flow from the same statute, and the court finds no basis for relief, the court should not dismiss the case under Rule 12(b)(1), but should instead do so under Rule 12(b)(6). 270 F.3d at 1132. Frey's rule applies here. "Jurisdiction" and the claim for relief both come from the same statute, 42 U.S.C. § 6972. See § 6972(b)(2)(B) and § 6972(a)(1)(B). Thus, NIPSCO's motion to dismiss is best thought of as a Rule 12(b)(6) motion. LeClercq does not convince the court otherwise. It refers to § 6972(b)(2)(B) as a "jurisdictional bar," but it does so in dicta without explanation. LeClercq v. Lockformer Co., 2002 WL 907969 at *5.
This is so because a failure under § 6972(b)(2)(B) does not mean that the court lacks the power to hear the case under Article III of the Constitution, and the phrase "subject matter jurisdiction" is misapplied to an issue that does not implicate constitutional competence. Frey, 270 F.3d at 1132 (citingSteel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89-92 (1998)).
The plaintiffs raise the possibility that the court should convert NIPSCO's motion to dismiss (now pursuant to 12(b)(6)) into a motion for summary judgment under Rule 56. If matters outside the pleading are included in a Rule 12(b)(6) motion, the district court must either expressly refuse to consider those materials, or convert the motion into one for summary judgment.See Travel All Over The World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1430 (7th Cir. 1996). The pleadings include any exhibits attached to the complaint as well as any documents attached to the motion to dismiss that are referred to in the complaint and are central to the plaintiffs' claims.Thompson v. Illinois Dept. of Professional Regulation, 300 F.3d 750, 753 (7th Cir. 2002);Wright v. Assoc. Ins. Co., 29 F.3d 1244, 1248 (7th Cir. 1994). Were the court to convert the motion to dismiss into a summary judgment motion, the plaintiffs would have to be given notice and an opportunity to marshal facts in opposition. See, e.g., Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 428, 431 (7th Cir. 1992)
According to the plaintiffs, NIPSCO included materials outside of the pleadings in its motion to dismiss. Should the court consider these materials, they say, it must decide the motion under Rule 56 and afford them time to discover facts with which to oppose the motion. Response at 3-4. NIPSCO answers that the court needn't employ Rule 56 "because the thrust of Defendant's motion is predicated on the [§ 106] Order" which was attached to the amended complaint and as such is part of the pleadings.
The court declines the plaintiffs' invitation to convert NIPSCO's motion to a motion for summary judgment. The motion to dismiss cites more than just the § 106 order, which is a part of the pleadings because the plaintiffs attached it to the complaint. The motion mentions as well the affidavits of Daniel Sullivan and Donald Babcock. These affidavits are not referred to in the complaint and are not central to it, so they stand outside the pleadings. They also force the court to decide whether conversion is appropriate. Because the court can preserve the integrity of NIPSCO's arguments without the information from the affidavits ( i.e., even if the court accepted all of the facts in Mr. Sullivan's and Mr. Babcock's depositions as true, the outcome would be the same), it declines to convert NIPSCO's motion to a summary judgment motion.
Turning to the merits, NIPSCO, claiming that the EPA is diligently prosecuting an action under § 106, presses for dismissal under subsection (i) of § 7002(b)(2)(B). The plaintiffs rejoin that subsection (iv) of § 7002(b)(2)(B), not subsection (i), governs this action because the EPA already has issued the § 106 order. In reply, NIPSCO rejects the notion that diligent prosecution ends with the issuance of the § 106 order. It maintains that activities undertaken pursuant to the § 106 order — "implementation" activities — constitute diligent prosecution under the RCRA. (NIPSCO invokes the excluded affidavits when discussing these implementation activities.) The parties dispute the relevant subsection because subsection (i) is a broader prohibition against suit than subsection (iv), which only prohibits suits "as to the scope and duration of" the § 106 order.
Subsection (iv), not subsection (i), applies to this case. Subsection (iv) not only refers to the issuance of a § 106 order, but it also considers implementation activities ( e.g., removal and remedial actions) to be prerequisites for its application. In other words, the statutory scheme classifies implementation actions as incidents of subsection (iv), not aspects of the diligent prosecution of a § 106 action. See A-C Reorganization Trust v. E.I. DuPont De Nemours Co., 986 F. Supp. 423, 429, 430 (E.D. Wis. 1997) (applying subsection (iv) because the EPA had already issued a § 106 order). NIPSCO's reading of these provisions renders subsection (iv) meaningless, in contravention of a long established interpretational norm. If § 106 orders accompanied by implementation activities fall under subsection (i), the narrower subsection (iv) will serve no purpose. A long established canon of statutory construction holds that when reasonable, courts should endeavor to give each section of a statute meaning. See, e.g., In re Scott, 172 F.3d 959, 969 (7th Cir. 1999). The court can attach meaning to subsection (iv) without any unnatural interpretive contortions: subsection (iv) applies after the EPA issues a § 106 order (assuming all of the other prerequisites for its application are satisfied).
Since subsection (iv) controls, the court must decide whether the plaintiffs' suit goes to the scope or duration of the administrative order. § 7002(b)(2)(B). If so, it is barred, otherwise not. The plaintiffs argue that their action stands outside the scope of the § 106 order because it addresses residents of the Town excluded from the § 106 order — those who do not live in the North or South Areas. NIPSCO argues that the § 106 order covers residents outside the North and South Areas via a broad reservation clause by which the "EPA reserves the right to take any other legal or equitable action it deems appropriate and necessary, or to require the Respondents [NIPSCO and Brown, Inc.,] in the future to perform additional activities pursuant to CERCLA or any other applicable law."
NIPSCO's argument does not persuade the court. The purpose of the "scope and duration" proviso undermines NIPSCO's argument. Courts agree that "the `scope and duration' clause manifests Congress's desire to permit citizen suits to be brought to remedy imminent and substantial dangers which are not being addressed by existing section 106 orders." Acme Printing Ink Co. v. Menard Inc., 881 F. Supp. 1237, 1245 (E.D. Wis. 1995). See also Coburn v. Sun Chemical Corp., 1988 WL 120739 at *12 (E.D. Pa. Nov. 9, 1988); Fishel v. Westinghouse Elec. Corp., 617 F. Supp. 1531, 1539 (M.D. Pa. 1985). Were broad reservation clauses interpreted to enlarge the sweep of § 106 orders, the scope and duration clause would be rendered useless. Imminent and substantial dangers left unaddressed by the EPA would be deprived of the medicine of citizen suits. As such, this interpretation is unreasonable and should be avoided if a more reasonable one is available. See generally American Tobacco Co. v. Patterson, 456 U.S. 63, 71 (1982) ("Statutes should be interpreted to avoid . . . unreasonable results whenever possible."). A more reasonable interpretation is available: reservation clauses do not expand the scope of § 106 orders for the purpose of § 7002(b)(2)(B).
This understanding of the "scope and duration" provision fits comfortably with the best interpretation of the reservation clause. The EPA likely included the clause not to bar citizen suits, but to prevent NIPSCO and Brown from claiming that the § 106 order extinguished the EPA's right to take any other measures to fix the town's water supply. Support for this interpretation inheres in the clause itself, which focuses on the importance of "protect[ing] public health, welfare, [and] the environment." Reading it (in conjunction with subsection (iv)) to forbid citizen suits runs contrary to the clause's concern for health and safety given that these suits are designed to spur the elimination of unaddressed environmental hazards.
The only other reported case to decide whether a reservation clause expands the scope of a § 106 order for purposes of subsection (iv) concluded, in line with this court, that "the Order's broad reservation language alone cannot justify barring [a] citizen suit; for all the Court knows, the EPA may use such broad language in every 106 Order, in which case reading the language to exclude citizen suits would eviscerate [subsection (iv)]." Goe Engineering Co., Inc. v. Physicians Formula Cosmetics, Inc., 1997 WL 889278 at *8 (C.D. Ca. June 4, 1997).
In light of the decision to apply subsection (iv) and the more modest definition of "scope," dismissal pursuant to Rule 12(b)(6) is inappropriate. NIPSCO tried to demonstrate that § 7002(b)(2)(B) acts as a legal bar to relief. As set forth above, the court disagrees. Because NIPSCO has not provided the court with any other reason to doubt the plaintiffs' ability to state a claim, dismissal is unwarranted.
NIPSCO sought leave to supplement its motion to dismiss. The proposed supplemental brief includes information similar to that in the excluded Sullivan and Babcock affidavits. Nothing in the brief would change the outcome; even if NIPSCO undertook all of the implementation activities described in the briefs, subsection (iv) governs, and it allows the plaintiffs to proceed because their suit falls outside the scope of the § 106 order. Accepting it would require the court to convert the RCRA motion to a summary judgment motion, with the attendant period for rebuttal that entails. Conversion, then, would serve no useful purpose. The court declines to permit NIPSCO to supplement its motion to dismiss.
III. CONCLUSION
For the reasons stated above, the court BIFURCATES NIPSCO's motion [Doc. No. 10] into two separate motions, CONVERTS the motion premised on the RCRA to a motion to dismiss pursuant to Rule 12(b)(6), and DENIES both Rule 12(b)(6) motions. In light of this disposition, the court DENIES as moot the plaintiffs' motion to strike NIPSCO's motion to dismiss [Doc. No. 12]. Finally, the court DENIES NIPSCO's motion for leave to supplement its motion to dismiss [Doc. No. 30].
SO ORDERED.