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Brown v. Kerr-Mcgee Chemical Corp.

decided: July 18, 1985.

DONALD E. BROWN; EDITH R. BROWN; EDWIN E. BROWN; BETTY WOLSFELD; AND WEST CHICAGO STATE BANK, AS TRUSTEE U/T/A 213, DATED SEPTEMBER 16, 1969, PLAINTIFFS-APPELLANTS,
v.
KERR-MCGEE CHEMICAL CORPORATION, A DELAWARE CORPORATION, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 C 6323 -- Frank J. McGarr, Judge.

Wood and Cudahy, Circuit Judges, and Wisdom, Senior Circuit Judge.*fn* Cudahy, Circuit Judge, concurring in part and dissenting in part.

Author: Wood

WOOD, Circuit Judge.

This case is yet another lawsuit concerning the approximately forty-three acres of land known as the Kerr-McGee West Chicago Rare Earths Facility. See City of West Chicago v. United States Nuclear Regulatory Commission, 701 F.2d 632 (7th Cir. 1983); Illinois v. Kerr-McGee Chemical Corp., 677 F.2d 571 (7th Cir.), cert. denied, 459 U.S. 1049, 74 L. Ed. 2d 618, 103 S. Ct. 469 (1982). This time we are asked to decide whether the Atomic Energy Act, as amended, 42 U.S.C. § 2011 et seq., preempts a request for a state-law injunction to remove nonradioactive hazards when the nonradioactive and radioactive materials are inseparable. We hold that the federal law preempts plaintiffs' request that the district court order the defendant Kerr-McGee to move the waste material to another location.

I.

The Kerr-McGee property in West Chicago consists of an eight acre factory site, a twenty-seven acre storage and disposal site, and an eight acre intermediate site connecting the other two. From 1932 to 1973, Kerr-McGee and its predecessor companies used the factory area to process monazite ores containing thorium, a natural radioactive element, and then disposed of the solid and liquid wastes in the storage area. Kerr-McGee stopped processing monazite ores in 1973, but continues, under license from the Nuclear Regulatory Commission ("NRC"), to possess and store thorium ores at the West Chicago site. Pursuant to a July 1977 order of the NRC, for decommissioning the inactive West Chicago site and for disposing of the contaminated materials. On May 27, 1983, the NRC issued its Final Environmental Statement ("FES"), which outlined eight alternative proposals and recommended that the buildings be razed and the wastes be encapsulated and stored on the site for an indeterminate time period. The Commission subsequently authorized the Atomic Safety Licensing Board ("ASLB") to hold a hearing on the FES -- as requested by the Illinois Attorney General.

Plaintiffs-appellants Donald E. Brown, Edith R. Brown, and Betty Wolsfeld are the equitable and beneficial owners of two parcels of residential property whose backyards abut the Kerr-McGee site. Plaintiffs rent the 904 Joliet Street residence to Mr. and Mrs. R. Gill, and Donald Brown and his mother Edith reside at 914 Joliet Street.

Plaintiffs brought this action on a variety of state law tort theories. Plaintiffs allege that the buildings on the Kerr-McGee property are in such a state of disrepair as to constitute a public and private nuisance.*fn1 In addition, plaintiffs claim that rats from the disposal site have entered the Browns' backyard and made numerous holes. The plaintiffs also allege that the wastes dumped in the storage area include hazardous chemicals such as barium sulfate, sodium phosphate, ammonia, ethylenediaminetetraacetic acid, sulfuric acid, and kerosene. According to plaintiffs, the liquid wastes deposited in ponds at the disposal site by Kerr-McGee and its predecessors have permeated the soil and polluted the water table. The water table is further polluted, plaintiffs allege, as rain and melting snow percolate through the mounds of solid waste and thereby become contaminated. Plaintiffs claim that the underground waters near the Kerr-McGee site exceed the water pollution standards set by the Illinois Pollution Control Board. Donald Brown also stated at his deposition that rain drains off the waste piles and into his yard.

Plaintiffs' complaint requested three types of relief. Count I sought an injunction ordering Kerr-McGee to repair or destroy the existing structures on the property and to remove all the hazardous wastes to some other location. Count II sought compensatory damages, and count III sought compensatory and punitive damages. Kerr-McGee, offering affidavits that all the wastes are radioactive and arguing that federal law preempts a state-law injunction, moved for dismissal of that part of count I requesting that the wastes be removed and stored at some other location. The district court agreed that federal law preempted such relief and granted partial summary judgment for defendant Kerr-McGee.*fn2 Plaintiffs appealed the summary judgment order to this court.

II.

We first consider whether the district court order granting partial summary judgment for defendant on count I is appealable. The order is obviously not final, and the district court did not certify the issue under 28 U.S.C. § 1292(b). Appellants argue, however, that this court has jurisdiction under 28 U.S.C. § 1292(a)(1) because the summary judgment had the practical effect of denying plaintiffs' request for permanent injunctive relief. We agree.

Section 1292(a)(1) provides that appellate courts have jurisdiction of interlocutory district court orders "granting, continuing, modifying, refusing or dissolving injunctions." 28 U.S.C. § 1292(a)(1) (1982). The plaintiffs never moved for an injunction, but an order having the practical effect of denying an injunction is considered a denial of an injunction for purposes of section 1292(a)(1). See Carson v. American Brands, Inc., 450 U.S. 79, 83-84, 67 L. Ed. 2d 59, 101 S. Ct. 993 (1981); Data Cash Systems, Inc. v. JS & A Group, Inc., 628 F.2d 1038, 1040 (7th Cir. 1980). Here the plaintiffs' complaint sought injunctive relief in count I and damages in counts II and III. By granting partial summary judgment in favor of the defendant on plaintiffs' request that the wastes be moved elsewhere, the court denied the plaintiffs part of the injunctive relief they sought; thus the court's order constitutes a denial of an injunction for purposes of section 1292(a)(1). See Plymouth County Nuclear Information Committee, Inc. v. Boston Edison Co., 655 F.2d 15, 17 (1st Cir. 1981).

Prior to the Supreme Court's decision in Carson, a finding that the summary judgment had the practical effect of denying an injunction would end our inquiry and we would take jurisdiction. See Data Cash Systems, Inc., 628 F.2d at 1040; cf. South Bend Consumers Club, Inc. v. United Consumers Club, Inc., 742 F.2d 392, 394 (7th Cir. 1984). Carson, however, requires more. In Carson, the Court held that an interlocutory order of a district court is immediately appealable under section 1292(a)(1) only if the appellant demonstrates that the order has a "serious, perhaps irreparable, consequence," and that the order can be "effectually challenged" only by immediate appeal. Carson, 450 U.S. at 84 (quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 99 L. Ed. 233, 75 S. Ct. 249 (1955)). Although this two-part test seems straightforward, there is some disagreement -- both among circuits and within this circuit -- as to whether Carson applies when the interlocutory order addresses the merits of the claim.

In Carson, a discrimination case, the Supreme Court held that an appeal lay from a district court order denying a joint motion of the parties to approve and enter a negotiated consent decree. The Court decided that, because the order would cause the plaintiffs to lose both their right to settle the case and any job opportunities that might arise under the consent decree, the order had "'serious, perhaps irreparable, consequences' that petitioners [could] 'effectually challenge' only by an immediate appeal." 450 U.S. at 90.

Carson has raised some questions because, although the Supreme Court states that the "serious, perhaps irreparable, consequences" test is applicable to interlocutory judgments appealed under section 1292(a)(2), id. at 84, the Court relies primarily on cases in which the interlocutory orders were not decisions on the merits of the appellants' claims. See Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 480, 57 L. Ed. 2d 364, 98 S. Ct. 2451 (1978) (order denying class certification); Switzerland Cheese Association, Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 24-25, 17 L. Ed. 2d 23, 87 S. Ct. 193 (1966) (appellants sought interlocutory review of district court's denial of appellants' motion for summary judgment); Baltimore Contractors, 348 U.S. at 177 (district court order refusing to stay a state court accounting action pending arbitration). Consequently, several courts, including a panel of this circuit, have read Carson narrowly to apply only to interlocutory orders that did not reach the merits of appellants' claims or did not dispose of all requests for injunctive relief. See Winterland Concessions Co. v. Trela, 735 F.2d 257, 260-61 (7th Cir. 1984); Center for National Security Studies v. Central Intelligence Agency, 229 U.S. App. D.C. 131, 711 F.2d 409, 412 (D.C. Cir. 1983); Tokarcik v. Forest Hills School District, 665 F.2d 443, 446-47 (3rd Cir. 1981), cert. denied, 458 U.S. 1121, 102 S. Ct. 3508, 73 L. Ed. 2d 1383 (1982). These courts rely on General Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430, 433, 77 L. Ed. 408, 53 S. Ct. 202 (1932), for the rule that an interlocutory order disposing of all requests for injunctive relief and addressing the merits of the case is immediately appealable under section 1292(a)(1) and Gardner and Carson for the proposition that an order either not disposing of all requests for injunctive relief or not addressing the merits is immediately appealable only if the appellant shows a "serious, perhaps irreparable, consequence" that can be effectually challenged only by immediate appeal. See Winterland Concessions, 735 F.2d at 261 (citing Gardner, 437 U.S. at 481); Center for National Security Studies, 711 F.2d at 412-13 & n.6; see also Gardner, 437 U.S. at 481 n.7 ("There is an important distinction between an order denying an injunction on the merits and 'one based on alleged abuse of a discretionary power over the scope of the action.'") (quoting Stewart-Warner Corp. v. Westinghouse Electric Corp., 325 F.2d 822, 829 (2nd Cir. 1963) (Friendly, J., dissenting)).

Other courts, including a different panel of this circuit, have held that Carson prescribes a broad rule applicable to all appeals under section 1292(a)(1) -- whether or not the district court addressed the merits of the appellant's claim. See Carson, 450 U.S. at 84; South Bend Consumers Club, 742 F.2d at 393-94; see also United States v. RMI Co., 661 F.2d 279, 281-82 (3rd Cir. 1981); Gould v. Control Laser Corp., 650 F.2d 617, 621 (5th Cir. 1981). This position is supported by the Supreme Court's suggestion in Carson that each of the prior cases on appellate jurisdiction under section 1292(a)(1) could be explained in terms of the "serious, perhaps irreparable, consequences" requirement. Carson, 450 U.S. at 84-86; see Donovan v. Robbins, 752 F.2d 1170, 1173-74 (7th Cir. 1985). Indeed, the Court even suggested that Marvel, the case now used as the basis for the "merits" distinction, reflected a finding by the Court that "serious, perhaps irreparable, consequences" would have resulted without an immediate appeal. Carson, 450 U.S. at 86 n.11; see also Shirey v. Bensalem Township, 663 F.2d 472, 477 (3rd Cir. 1981).

We need not resolve these inconsistencies, however, because in the present case the two analyses yield the same result. The courts adopting the "addressing the merits" approach have held that an interlocutory order denying, on the merits, a request for an injunction is immediately appealable under section 1292(a)(1) only if the order disposes of all pending requests for injunctive relief. See Winterland Concessions, 735 F.2d at 261. If some requests for injunctive relief are still pending in the district court, the appellant must show that the interlocutory order will cause serious, perhaps irreparable, consequences that can be effectually challenged only by immediate appeal. See Center for National Security Studies, 711 F.2d at 413. In the present case, the district court granted summary judgment for the defendant with respect to plaintiffs' request for an injunction ordering the wastes removed to "some other safe and distant location," but the court did not decide whether plaintiffs are entitled to the other requested injunctive relief. Thus, even though the district court addressed the merits of plaintiffs' claim for an injunction ordering removal of the wastes, the Winterland Concessions approach would require plaintiffs to show that the interlocutory ...


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