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KERR-MCGEE CHEM. CORP. v. EDGAR

November 10, 1993

KERR-McGEE CHEMICAL CORPORATION, Plaintiff,
v.
JIM EDGAR, in his official capacity as Governor of the State of Illinois; ROLAND BURRIS, in his official capacity as Attorney General for the State of Illinois; and TOM ORTCIGER, in his official capacity as Director of the Illinois Department of Nuclear Safety, Defendants. THE CITY OF WEST CHICAGO, Intervenor-Defendant.


ALESIA


The opinion of the court was delivered by: JAMES H. ALESIA

Defendants Jim Edgar, in his official capacity as Governor of the State of Illinois; Roland Burris, in his official capacity as Attorney General for the State of Illinois; and Thomas Ortciger, in his official capacity as Director of the Illinois Department of Nuclear Safety have moved to dismiss plaintiff Kerr-McGee Chemical Corporation's five-count complaint on two broad grounds. *fn1" First, defendants argue that the complaint should be dismissed for lack of jurisdiction, FED. R. Civ. P. l2(b)(1); specifically, defendants assert the claims are not ripe, and therefore there is no case or controversy over which the court would have jurisdiction, U.S. CONST. art. III, § 1, cl. 1. *fn2" Second, defendants argue that the complaint should be dismissed for failure to state a claim upon which relief can be granted, FED. R. Civ. P. 12(b)(6), asserting various arguments targeted at the respective five counts of the complaint.

 BACKGROUND

 This case involves a storied and stormy battle over a mound of nuclear by-product material at the West Chicago Rare Earths Facility, in West Chicago, Illinois. *fn3" The mound contains a substantial quantity of thorium filings, residue produced during the processing of thorium ores, from when such milling went on at the site. The milling has long since stopped, and Kerr-McGee, the current owner of the site, has contracted to move the by-product material to a permanent disposal site in Utah. The Utah site awaits licensing by the United States Environmental Protection Agency.

 In 1992 Illinois enacted the Uranium and Thorium Mill Tailings Control Act, P.A. 87-1024 (codified at 420 ILCS 42/1 through 42/49). The Act regulates storage of uranium and thorium mill tailings in a number of ways. First, the Act imposes storage fees of $ 2 per square foot on stored by-product material. These fees are to be placed in a "By-product Material Safety Fund," which is to be expended for state clean-up costs as well as reimbursement for private clean-up costs. 420 ILCS 42/15. The Act also provides that the owner or operator of a storage facility must file a "detailed plan" for "permanent remedial action" with the Illinois Department of Nuclear Safety as well as nearby municipal bodies in certain circumstances, within one year of the effective date of the Act (September 6, 1992). 420 ILCS 42/25. Furthermore, the Act contains a "local approval" provision, placing restrictions on operating a by-product disposal facility or placing by-product material without approval of nearby municipalities or counties. 420 ILCS 42/20. Failure to comply with the Act subjects a violator to severe civil penalties. 420 ILCS 42/40.

 Section 35 of the Act has an escape clause for owners of by-product material. That section provides that "if the Director of Nuclear Safety certifies to the General Assembly that the State and the owner or operator of a licensed by-product material storage or disposal facility have entered into an agreement enforceable in court that accomplishes the purposes of subsection (b) of Section 5 of this Act [legislative purposes section], and that also provides financial assurances to protect the State against costs [of clean-up] described in parts (1), (2), and (3) of subsection (b) of Section 15, then Sections 15 [storage fees], 25 [response plans] and 40(b) [civil penalties for failure to pay fees] of this Act, and any rules the [Illinois] Department [of Nuclear Safety] may adopt to implement those Sections, shall not apply to that owner or operator." 420 ILCS 42/35.

 Kerr-McGee filed suit for declaratory and injunctive relief, alleging that the Act violates the United States Constitution. While this is by no means round one of Kerr-McGee and the State of Illinois' legal battles, see, e.g., Illinois v. Kerr-McGee Chemical Corp., 677 F.2d 571 (7th Cir.), cert. denied, 459 U.S. 1049, 103 S. Ct. 469, 74 L. Ed. 2d 618 (1982) and Kerr-McGee Chemical Corp. v. City of West Chicago, 914 F.2d 820 (7th Cir. 1990), it is to the court's knowledge the first time the Uranium and Thorium Mill Tailings Control Act has been challenged on its constitutionality.

 Count I of Kerr-McGee's complaint alleges that the Act is preempted by federal law. Count II alleges that the Act violates the commerce clause. Count III alleges that the Act is a bill of attainder. Count IV alleges that the Act is a taking without just compensation. Count V alleges a violation of the fourteenth amendment's due process clause.

 COUNT I: PREEMPTION

 Defendants challenge Count I first on the basis that it does not state a ripe claim. Therefore, defendants argue, no Article III case or controversy exists, stripping this court of jurisdiction.

 The Supreme Court has long instructed that "the question of ripeness turns on [1] 'the fitness of the issues for judicial decision' and [2] 'the hardship to the parties of withholding court consideration.'" Pacific Gas & Electric Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 201, 103 S. Ct. 1713, 1720, 75 L. Ed. 2d 752 (1983) (quoting Abbott Lab. v. Gardner, 387 U.S. 136, 149, 87 S. Ct. 1507, 1515, 18 L. Ed. 2d 681 (1967)). The Court has also made clear that the mere fact that a statute's effective or operative date is in the future does not leave a challenge to that statute per se unripe. Where interference with planning or other hardships may be worked by an impending statutory provision, courts may consider a challenge ready for review. See New York v. United States, 120 L. Ed. 2d 120, 112 S. Ct. 2408, 2428 (1992); Pacific Gas & Electric Co., 461 U.S. at 201, 103 S. Ct. at 1721; Regional Rail Reorganization Act Cases, 419 U.S. 102, 144-45, 95 S. Ct. 335, 359, 42 L. Ed. 2d 320 (1974). That rule is important here because the aspect of the act primarily complained of by Kerr-McGee -- the fee provision of section 15, 420 ILCS 42/15 -- will not create a duty to pay any fees until March 1994, and no fees will accrue until January 1994.

 A state statute may be preempted by federal law under two circumstances. The first circumstance, sometimes referred to as field preemption, is where Congress either expressly or impliedly has preempted states from regulating whatsoever in a field of law. The second circumstance of preemption occurs where a state law specifically conflicts with federal law. E.g., Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 152-53, 102 S. Ct. 3014, 3022, 73 L. Ed. 2d 664 (1982).

 Plaintiffs claim of preemption by the AEA is the following: "Contrary to the AEA requirement that a state's regulation of by-product material must be at least as protective of public health, safety and the environment as federal standards, the Act is designed to force Kerr-McGee to move the West Chicago by-product material out of state regardless of the consequences to the public health, safety and the environment." (Complaint P 48).

 While briefing on the preemption issue has focused on the question of which party is relying more on conjecture than the other, one thing remains clear: the federal regulatory outlook is anything but certain. The United States Environmental Protection Agency is expected to license a facility in Utah for the disposal of the by-product material at issue in this case, as explained to the court by both parties in recent briefs. With a development as crucial as this in flux, the court must hold the claim not ready for review. Otherwise, the court would be issuing a classic advisory opinion. If developments warrant, the court will entertain an amended complaint.

 The claim that CERCLA preempts the Act similarly does not survive this motion. Plaintiff's CERCLA preemption claim is that "contrary to the requirements of CERCLA, the Act will impose a penalty on Kerr-McGee for complying with the EPA's directive that Kerr-McGee transfer by-product material from the NPL [National Priorities List] sites to the West Chicago facility. In addition, the Act conflicts with CERCLA because it is intended to coerce Kerr-McGee to move by-product material from the West Chicago NPL sites out of Illinois without regard to any final remedial action plans that may be adopted by the EPA pursuant to CERCLA and without regard to the concerns for the public health, safety and the environment embodied in CERCLA." (Complaint P 49).

 This is an allegation of preemption by specific contradiction, but it is again an allegation that is not ripe. The complaint itself concedes that the specific federal directive that Kerr-McGee points to as preempting the Act, an EPA directive that Kerr-McGee transfer by-product material from NPL sites to the West Chicago facility, is not yet law. The allegation is therefore based on speculation, and would have the court rule in the abstract.

 Accordingly, Count I is dismissed based upon Rule 12(b)(1) for lack of jurisdiction, and issues raised as to failure to state a claim, Rule 12(b)(6), need not be addressed.

 COUNT II: COMMERCE ...


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