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Village of DePue, Illinois v. Viacom International

July 8, 2009

VILLAGE OF DEPUE, ILLINOIS, A MUNICIPAL CORPORATION, PLAINTIFF,
v.
VIACOM INTERNATIONAL, INC. N/K/A CBS OPERATIONS, INC. AND EXXON MOBIL CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Joe Billy McDADE United States District Judge

AMENDED OPINION & ORDER

This consolidated civil action, initiated by the Village of DePue ("Village"), is the Village's second recent suit against Viacom International, Inc./CBS Operations, Inc. and Exxon Mobil Corporation regarding environmental contamination at the DePue/New Jersey Zinc/Mobil Chemical Corp. Superfund Site ("Site"). The expansive 1500-acre Site is located within the Village in Bureau County, Illinois. The Site's environmental problems and the Village's earlier suit are discussed below.

In the present action, the Village alleges that Exxon and CBS Operations (collectively, "Defendants"), as respective owner and lessee of the Site, are in violation of a recently-enacted hazardous substances ordinance. In addition, the Village seeks to advance claims of common law nuisance and trespass. Defendants have jointly filed a motion to dismiss all of the Village's claims (Doc. 20). For the reasons stated below, the motion is GRANTED.

BACKGROUND

To put this lawsuit in proper context, it is necessary to briefly outline a few points: (1) the Site's environmental history; (2) the Village's earlier suit against Defendants in this Court; and (3) subsequent actions taken by the Village. The background information provided below is taken from the following sources: this Court's opinion in Village of DePue v. Exxon Mobil Corp., 2007 WL 1438581 (C.D. Ill. May 15, 2007); the decision of the Seventh Circuit Court of Appeals in Village of DePue v. Exxon Mobil Corp., 537 F.3d 775 (7th Cir. 2008); and the Environmental Protection Agency's ("EPA") National Priorities List ("NPL") Fact Sheet for the DePue Site, http://www.epa.gov/region5/superfund/npl/illinois/ILD062340641.htm (updated April 28, 2009) ("4/28/2009 NPL Fact Sheet").*fn1

1. The Site, State Involvement, and the Ongoing Cleanup

Defendants' corporate predecessors operated a zinc smelting facility and a diammonium phosphate fertilizer plant on the Site from 1903 until the late 1980s.*fn2

The manufacturing operations at these facilities generated waste material that contaminated the Site. As a result, the Site and some surrounding areas presently contain elevated levels of cadmium, lead, and other metals. (4/28/2009 NPL Fact Sheet -- Threats and Contamination). According to EPA assessments, the increased concentrations of metals in the area pose no short-term threats to nearby populations; however, the EPA has expressed general concern about potential long-term adverse health effects resulting from elevated amounts of cadmium. See Village of DePue, 2007 WL 1438581, at *1 (citing an earlier -- but unchanged in relevant part -- version of the NPL Fact Sheet).

After taking note of the Site in 1980, the EPA conducted preliminary environmental assessments in following years pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq. In 1992, the Illinois Environmental Protection Agency ("IEPA") also began to investigate the Site pursuant to its authority under Illinois law. Village of DePue, 2007 WL 1438581, at *2. As a result of the EPA's and IEPA's investigations and assessments, the EPA added the Site to the National Priorities List in 1999. This addition confirmed the Site's status as one of the most contaminated spots in the United States.

In 1995, prior to the Site's official placement on the NPL, the Illinois Attorney General filed suit against Defendants' corporate predecessors in Illinois circuit court (at the IEPA's request) pursuant to the Illinois Environmental Protection Act ("the Illinois Act"), 415 Ill. Comp. Stat. 5/22.2 & 42(d), (e).*fn3 As a result of the Attorney General's suit, Defendants entered into an interim consent order ("Consent Order") with the People of the State of Illinois. The Seventh Circuit Court of Appeals has described Defendants' responsibilities under the Consent Order as follows:

Under this Consent Order, [Defendants] must perform a phased investigation of the site and implement certain interim remedies. [They] also must propose final remedies to the State of Illinois before completing final remedial action for the site. The Consent Order requires [Defendants] to perform . . . investigations and remedial actions in compliance with both the ICP (Illinois Hazardous Substances Pollution Contingency Plan) and the NCP (National Oil and Hazardous Substances Pollution Contingency Plan). The State of Illinois, in consultation with the EPA, has sole discretion to decide if the final remedies proposed by [Defendants] are appropriate. The activities completed under the Consent Order are subject to approval by the State of Illinois.

Village of DePue, 537 F.3d 775, 780 (7th Cir. 2008) (citations and quotation omitted) (explanatory parentheticals for ICP and NCP added).*fn4

Currently, Defendants are in the process of conducting remedial investigations and feasibility studies at the Site, i.e. gathering data about the nature and extent of the contamination and evaluating possible cleanup options. (Am. Compl. ¶ 17; 4/28/2009 NPL Fact Sheet -- Cleanup Progress). As part of this phase of the cleanup, Defendants are collecting information about possible risks to human health. See Village of DePue, 537 F.3d at 780. The Consent Order expressly requires this type of health-related investigation. (Ex. B to Mot. to Dismiss, Consent Order ¶ III(B)(2)(b)).*fn5

While, overall, Defendants are at the investigatory stage of the cleanup process, they have already implemented certain limited environmental remedies at the Site, including a dust control program and a water treatment system to treat surface water discharging into Lake DePue. (4/28/2009 NPL Fact Sheet -- Cleanup Progress). After Defendants complete their remedial investigations, they will conduct design studies and, then, begin permanent remediation at the Site. See Village of DePue, 537 F.3d at 780-81. Defendants have spent over $30 million in ...


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