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NORFOLK SOUTHERN RY. CO. v. GEE CO.

August 20, 2001

NORFOLK SOUTHERN RAILWAY COMPANY, PLAINTIFF,
V.
GEE CO., CHICAGO FLAMEPROOF AND WOOD SPECIALTIES CORP., MAY WOOD INDUSTRIES, INC., JAMES W. GEE, A/K/A, JIM W. GEE, JOHN J. JANSSEN, AND VICENT W. MANCINI, DEFENDANTS.



The opinion of the court was delivered by: Pallmeyer, District Judge.

MEMORANDUM OPINION AND ORDER

On March 18, 1998, Norfolk Southern Railway Company ("Norfolk Southern") filed a ten-count complaint against Defendants Gee Company, James Gee. Sr., Chicago Flameproof and Wood Specialties Corp. ("CFW Specialties"), John Janssen, Vincent Mancini and Maywood Industries, Inc. The complaint asserted, inter alia, claims under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601, and the Illinois Environmental Protection Act, 415 ILCS 5/22.2, and sought recovery for environmental damage allegedly caused by Defendants to Plaintiff's property and an adjacent high school's athletic field.

Before evaluating the merits of the motion, however, the court notes some frustration concerning Defendants' focus on this issue at this stage. Neither CFW Specialties, Mancini, nor Gee Company mentioned the NCP in the memoranda supporting their respective motions for summary judgment. Instead, they chose to adopt Maywood Industries' memorandum as it applied to the CERCLA counts. The court is uncertain why, if Defendants believed this argument so compelling, they failed to devote a single sentence to the matter in their eight-page memorandum of law. Gee Company was represented by the same counsel who made the NCP argument on behalf of Maywood Industries; but this fact does not excuse Gee Co.'s own failure to highlight the issue for the court after Maywood Industries' dismissal from the lawsuit.

That aside, the Defendants are correct that "substantial compliance"*fn2 with the NCP is a prerequisite to CERCLA recovery, see 42 U.S.C. § 9607 (a)(4)(B); see also NutraSweet Co. v. X-L Eng'g Co., 227 F.3d 776, 790 (7th Cir. 2000); PMC Inc. v. Sherwin-Williams Co., 151 F.3d 610, 616 (7th Cir. 1998). This court explicitly acknowledged this on page 33 of its June 25 Order. Under NCP provisions, a proposed clean-up method in which costs will be incurred is to be submitted for public comment before it is implemented. PMC, 151 F.3d at 616 (citing 40 C.F.R. § 300.700 (c)(6)). Section 300.700(c)(6) states as follows:

Private parties undertaking response actions should provide an opportunity for public comment concerning the selection of the response action based on the provisions set out below, or based on substantially equivalent state and local requirements. The following provisions of this part regarding public participation are potentially applicable to private party response actions, with the exception of administrative record and information repository requirements stated therein:
(i) Section 300.155 (on public information and community relations);
(ii) Section 300.415(n) (on community relations during removal actions);
(iii) Section 300.430(c) (on community relations during RI/FS) except paragraph (c)(5);
(iv) Section 300.430(f)(2), (3), and (6) (on community relations during selection of remedy); and
(v) Section 300.435(c) (on community relations during RD/RA and operation and maintenance).

40 C.F.R. § 300.700 (c)(6) (emphasis added). Section 300.155, referred to in this section, states, in relevant part, that: "When an incident occurs, it is imperative to give the public prompt, accurate information on the nature of the incident and the actions underway to mitigate the damage. OSCs/RPMs and community relations personnel should ensure that all appropriate public and private interests are kept informed and that their concerns are considered throughout a response." 40 C.F.R. § 300.155 (a). And Section 300.415(n), also referred to in Section 300.700(c)(6), states, in relevant part:

In the case of all CERCLA removal actions taken pursuant to § 300.415 or CERCLA enforcement actions to compel removal response, a spokesperson shall be designated by the lead agency. The spokesperson shall inform the community of actions taken, respond to inquiries, and provide information concerning the release. All news releases or statements made by participating agencies shall be coordinated with the OSC/RPM. The spokesperson shall notify, at a minimum, immediately affected citizens, state and local officials, and, when appropriate, civil defense or emergency management agencies.

40 C.F.R. ยง 300.415 (n)(1). According to the Seventh Circuit, the purpose of these public comment regulations is "to make sure that the remedial measures under taken hopefully at the expense of someone else are not ...


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