The opinion of the court was delivered by: Joe Billy McDade United States District Judge
In this state action, removed to federal court on diversity grounds, Plaintiff Village of Depue, has sued Defendant Exxon Mobil Corporation, aka Mobil Chemical Corporation; Viacom International, Inc.; and CBS Broadcasting Inc. (collectively referred to as "Defendants") for declaratory judgment, injunctive relief, and to recover fines for maintaining certain real estate as a public nuisance due to the presence of hazardous substances at the Site in violation of its nuisance ordinance. All Defendants have filed a Motion to Dismiss (Doc. 20) pursuant to Federal Rule of Civil Procedure 12(b)(6). The Village has filed a Response to the Motion. (Doc. 28.) In addition, Defendants filed a Motion for Leave to File a Reply Memorandum (Doc. 31) and Plaintiff filed a Response (Doc. 32) to that Motion. For the following reasons, the Motion to Dismiss is allowed.
This case concerns a property ("the Site") located in the Village of Depue, Illinois ("the Village"). The Site has sustained serious environmental damage and has been investigated by the Environmental Protection Agency ("EPA"). In 1999, the Site was added to the EPA's National Priority List ("NPL").*fn1 The NPL lists those sites in the United States that are most in need of cleanup.
1. History and Scope of the Site
The Site consists of a former zinc processing facility and a former diammonium phosphate fertilizer manufacturing facility operated by the corporate predecessors of Defendants CBS Operations and Exxon Mobil and third party Horsehead Industries, Inc. (who is not a party to this action). From 1903 to 1989, the industrial operations at the Site included zinc smelting, paint pigment production, sulfuric acid manufacturing, and diammonium phosphate fertilizer production. The Site is massive, spanning over 1500 acres (including the former manufacturing facilities and adjacent areas that might be impacted by historical releases).
All manufacturing facilities were demolished by 1992. To the south and east of the former manufacturing plants, there are a former municipal dump, rail lines, and DePue Lake - an Illinois River backwater lake. Waste generated by the manufacturing operations was disposed of on the Site. The major waste units include a slag pile (with over a million tons of zinc slag), a cinder fill area, paint pigment production waste piles, and a phosphogypsum stack covering 160 acres.
According to the NPL fact sheet, the contaminants found on the Site could pose a threat to the local population. The fact sheets states as follows:
Elevated levels of cadmium, lead, and other metals were found in residential soil samples. Although the initial health evaluation has documented no short-term threats to nearby populations, under certain conditions elevated concentration of cadmium have been found to pose a number of long-term, adverse health effects. Furthermore, contamination of a fishery, state wildlife refuge, and wetlands has been documented in Lake DePue.. (Doc. 1, at NPL Fact Sheet p. 2.)
2. Administrative and Legal History of the Site
In December 1980, pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et. seq., the EPA conducted a preliminary environmental assessment of the Site and additional assessments in July 1983 and May 1984. This led to the Site being added to the NPL.
In addition to actions by EPA, Illinois EPA is also involved at the Site. It conducted an initial investigation in March 1992. In 1995, the Illinois Attorney General, on his own motion and at Illinois EPA's request, filed suit in Bureau County Circuit Court against the corporate predecessors of Defendants for the recovery of response costs incurred by Illinois EPA at the site. Shortly thereafter,*fn2 Defendants agreed to an Interim Consent Order ("ICO") which required, among other things, that the Defendants complete a remedial investigation and feasibility study as well as take remedial action at the Site.
3. Key Provisions of the ICO
As provided in the ICO, the Illinois EPA is designated as "implementing agency" for the State of Illinois for all purposes of CERCLA, and is authorized to take all action necessary to secure CERCLA's benefits for the State. The ICO requires Defendants to perform a phased investigation of the Site and to take certain interim steps leading to final remedial action for the Site. The ICO's purpose is to determine ".the nature and extent of the release, threatened release or presence of Hazardous Substances at or from the Site, to identify and evaluate alternatives for remedial action that will be protective of human health and the environment and that will be consistent in all respects with the Illinois Hazardous Substance Pollution Contingency Plan and the National Oil and Hazardous Substances Pollution Contingency Plan.." (Doc. 1 at Ex. D.)(emphasis added)
To accomplish the ICO's objectives, Defendants are required to conduct a remedial investigation of the Site and surrounding area, including DePue Lake and the Village; implement interim remedial actions; and propose a feasibility/design study for any final remedies. All work under the ICO must be consistent with the regulatory environmental framework mandated by CERCLA, the National Oil and Hazardous Substances Pollution Contingency Plan ("NCP"), and the Illinois Hazardous Substances Contingency Plan ("ICP").
Under the ICO, the State of Illinois, in consultation with EPA, has "sole discretion" to decide if presumptive final remedies proposed by Defendants are appropriate. Although EPA is not a party to the ICO, the ICO is clear that EPA plays a vital role at the Site by ensuring NCP consistency and by approving contractors, Site work plans, and Defendants' studies for final remedial action at the Site. The State of Illinois, in consultation with the EPA, will select the final remedial actions for the Site.
The EPA noted, in its most recent Superfund Report, that Defendants have been fulfilling the requirements of the ICO. In accordance with the ICO, Defendants have completed extensive interim remedial actions at the Site.*fn3 Defendants have completed the first phase of the remedial investigation of the former plant site area and have proposed a second phase of that investigation. Defendants have begun investigation of potentially impacted soils within the Village and have initiated the remedial investigation of DePue Lake and surrounding wetland/flood plain areas. As part of this investigation, extensive data will be (and has been) gathered to support ecological and human health risk assessments of this area. Once all phases of the remedial investigation are complete, Defendants will conduct feasibility/design studies for a final remedy.
4. Proceedings in the Case at Bar
However, from the Village's perspective, these numerous investigative actions do not address their primary concern -- namely a more expeditious cleanup of the Site. After ten years of waiting under the ICO for the Defendants to completely remediate the environmental damage at the Site, the Village has now filed this claim. The Village is not a party to the ICO and is not seeking to enforce the terms of the ICO. Instead, the Village's claim is based upon its local nuisance ordinance. Specifically, the Village alleges that the Defendants are in violation of the Village of DePue Code 7-5-3. (Doc. 1 at Ex 1, Part 4, p. 12). While the Village of Depue Code does not define a nuisance, it does provide for a fine between $25 and $750 per offense. Furthermore, the Code states that every twenty-four hours that an offender fails to abate a nuisance constitutes a separate offense. As a result, the Defendant could receive a maximum fine in this suit of $750 per day.
The Village also alleges that the Site poses a public health and safety risk to the residents of the Village of DePue and constitutes a blighting of the area, diminishing property values and imposing economic costs to the residents and the Village itself. The Village seeks several forms of relief including a declaration that Defendants are in violation of the nuisance ordinance, injunctive relief requiring ...