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Pollack v. United States Dep't of Justice

September 12, 2008

STEVEN B. POLLACK AND BLUE ECO, LEGAL COUNCIL, PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES COAST GUARD, UNITED STATES NAVY, UNITED STATES MARINE CORPS, AND UNITED STATES DEPARTMENT OF DEFENSE, DEFENDANTS.



The opinion of the court was delivered by: Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER

Plaintiffs have sued various departments of the federal government for their alleged violations of the Clean Water Act ("CWA"), 33 U.S.C. § 1365, the Resource Conservation Recovery Act ("RCRA"), 42 U.S.C. § 6972, the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9659 and for damages under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). The case is before the Court on defendants' motion pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1) to dismiss the second amended complaint for lack of subject matter jurisdiction. For the reasons set forth below, the Court grants the motion.

Facts

Between January 19, and September 12, 2006, the U.S. Coast Guard discharged 62,584 bullets, made primarily of lead, into the Great Lakes during eighteen live-fire training exercises. (Second Am. Compl. ¶ 5.) Lead is listed as a toxic chemical under the Emergency Planning and Community Right-to-Know Act. See 42 U.S.C. § 11002; 40 C.F.R. § 372.65. The Coast Guard discharged the bullets into the Great Lakes without a permit under the CWA and has taken no action to retrieve them. (Second Am. Compl. ¶¶ 7, 13.)

On December 18, 2006, the Coast Guard issued a press release saying that it had "withdraw[n] the Notice of Proposed Rulemaking to establish 34 safety zones for live-fire training on the Great Lakes." (Id., Ex. D, Coast Guard Press Release of 12/1/8/06.) The release also said that the Coast Guard would "not conduct live-fire training on the Great Lakes to satisfy non-emergency training requirements unless [it] publish[ed] a rule." (Id.)

On March 10, 2007, plaintiffs submitted a Freedom of Information Act request to the Justice Department seeking documents regarding the FBI firearms training that occurs at the Great Lakes Naval Base in North Chicago, Illinois. (Id., Ex. F, Letter from Pollack to FBI of 3/10/07.) In response, plaintiffs received, among other things, an April 25, 1986 real estate appraisal of the FBI's North Chicago facility, which says that the "property has been used for a firing range since 1918" and uses 2,975 acres of Lake Michigan as "the impact area for overfiring." (Id., Ex. G, Real Estate Appraisal of 4/25/86 at 1-2.) Consequently, the appraisal states, [h]azardous waste contamination, primarily from lead, may pose a threat to ground water and possibly to lake waters." (Id. at 1.) Plaintiffs allege that the FBI continues to use the North Chicago firing range and discharges, or allows other agencies to discharge, lead bullets into the lake. (Id. ¶ 18.)

Plaintiffs also allege that there are two water intake areas in the range impact area, one of which is for drinking water used by the city of North Chicago. (Id. ¶ 21.) The City of North Chicago's Water Quality Report for 2006 shows that two of the water sites it sampled had concentrations of lead in excess of 15 parts per billion ("ppb"), the maximum allowed by law. (Id., Ex. K, 2006 North Chicago Water Quality Report.)

Plaintiffs contend that the government's operation of the North Chicago firing range violates CWA, RCRA, CERCLA and constitutes a public nuisance, and they seek a declaration that defendants have damaged the water and land surrounding the firing range, an order requiring them to stop firing lead bullets into that area and remediate the damage they have caused, and an award of damages.

Discussion

There are two kinds of Rule 12(b)(1) motions: those that attack the sufficiency of the jurisdictional allegations and those that attack the factual basis for jurisdiction. Facial attacks are subject to the same standard as motions pursuant to Rule 12(b)(6) motions; that is, the Court accepts as true all well-pleaded factual allegations of the complaint, drawing all reasonable inferences in plaintiff's favor. United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2002). However, in factual attacks, like this one, "the court is not bound to accept the truth of the allegations in the complaint." Commodity Trend Serv., Inc. v. Commodity Futures Trading Comm'n, 149 F.3d 679, 685 (7th Cir. 1998). "Rather, the plaintiff has the obligation to establish jurisdiction by competent proof, and the court may properly look to evidence beyond the pleadings in this inquiry." Id.

Defendants argue that the Court lacks jurisdiction over the claims asserted in the second amended complaint because neither plaintiff has standing to pursue them. An individual plaintiff has standing to sue if he suffered a particularized injury, i.e., one that affects him "in a personal and individual way," that is fairly traceable to defendants' conduct and can be redressed by a decision in his favor. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 & n.1 (1992). Defendants say Pollack has not satisfied the particularized injury element.

With respect to that element, plaintiffs allege that Pollack "lives several miles south of . . . North Chicago," which obtains its drinking water from the firing range impact area and has recently detected lead in its drinking water. (Second Am. Compl. ¶¶ 9, 21-22.) However, the story told by the evidence plaintiffs submitted is a bit different.

For example, Pollack attests that he lives in Highland Park, about thirteen miles south of the North Chicago water intakes. (See Pls.' Reply Supp. Mot. Prelim. Inj. at 8; id., Exs., Pollack Aff. ¶ 3.) Moreover, though Highland Park's water is drawn from Lake Michigan, it uses different intake pipes than those that supply North Chicago. See City of Highland Park 2008 Drinking Water Quality Report at 1, available at, http://www.ci.highland-park.il.us/pdf/pw/waterQualityReport.pdf. Further, Highland Park's latest water quality report shows that three of its sampling sites had lead in excess of the federal limit of 15 parts per billion ("ppb"), but the overall lead level in the city's drinking water is below that level. Id. at 3.

Plaintiffs do not dispute those facts but point out that North Chicago's water has a higher concentration of lead, 11 ppb, than Highland Park's. (See Pls.' Reply Supp. Mot. Prelim. Inj., Exs., Ex. K, 2006 North Chicago Water Quality Report.) Given that fact, and the dynamic nature of the lake's water, see U.S. E.P.A & Gov't of Canada, Great Lakes: Environmental Atlas and Resource Book, ch. 2, ยง 4, available at, http://epa.gov/greatlakes/atlas/index.html, plaintiffs say the risk that the lead found in North ...


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