The opinion of the court was delivered by: Herndon, Chief Judge:
Pending before the Court is defendant Rogers Cartage Company's motion to dismiss Count II of plaintiff Phillips 66 Pipeline LLC's complaint (Doc. 12). Pursuant to FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1), defendant argues plaintiff's Count II, seeking an injunction pursuant to the Resource Conservation and Recovery Act ("RCRA"), § 7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B), lacks subject matter jurisdiction, as the Environmental Protection Agency ("EPA") has commenced removal and/or remedial actions. Thus, defendant argues Section 113(h) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9613(h), holds plaintiff's Count II lacks subject matter jurisdiction. Plaintiff responds that CERCLA Section 113(h) is not jurisdictional; thus, Rule 12(b)(1) is not the proper vehicle for defendant's instant motion. Moreover, plaintiff argues, as the EPA has merely begun to investigate the contaminated site at issue, CERCLA Section 113(h) does not preclude Count II (Doc. 23). For the following reasons, the Court agrees with plaintiff's reasoning and accordingly DENIES defendant's motion (Doc. 12).
Plaintiff filed the subject complaint on June 15, 2011 (Doc. 2). Plaintiff's complaint arises from defendant's lease of five-acres (the "Site") of plaintiff's 360-acre pipeline terminal property situated at 3300 Mississippi Avenue, Cahokia, Illinois. Defendant leased plaintiff's property from a predecessor of plaintiff from the 1950s until at least 1970. Plaintiff alleges that while defendant conducted operations on plaintiff's property, it "hauled hazardous substances, including polychlorinated biphenyl ('PCB') waste, to disposal facilities and washed out its trucks at the Site." Plaintiff's Count I is a cost recovery claim under Section 107(a) of CERCLA, 42 U.S.C. § 9607(a). Count II, the subject of the instant motion, is a citizen suit claim pursuant to RCRA § 7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B). Plaintiff's Count II seeks "injunctive relief restraining and enjoining [defendant] from allowing continued contamination of the Site and compelling [defendant] to abate the contamination that it has caused." Further, plaintiff requests that the Court award it its attorney's fees and impose civil penalties on defendant, pursuant to the RCRA.
Defendant filed the instant motion to dismiss plaintiff's Count II on October 31, 2011 (Doc. 12). As plaintiff responded to defendant's motion on November 8, 2011, the dispute is ripe for resolution (Doc. 23).
III. ARGUMENTS AND APPLICATION
Defendant argues this Court lacks subject matter jurisdiction over plaintiff's Count II, as the facts demonstrate that the EPA has commenced removal and/or remediation actions with respect to the Site under CERCLA. Thus, defendant argues any injunction this Court may order would conflict with the EPA's clean-up orders and directions under CERCLA. In support, defendant cites Section 113 of CERCLA, 42 U.S.C. § 9613(h), which provides:
No Federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title.
Defendant argues that an EPA removal and/or remedial action pursuant to 42 U.S.C. § 9604 is ongoing with respect to the Site. Thus, the Court does not have jurisdiction to entertain plaintiff's Count II. As defendant characterizes its dismissal as a factual attack on the subject matter jurisdiction of plaintiff's Count II, it states the Court may consider matters outside of the pleadings. See Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009). Accordingly, defendant cites a letter demanding reimbursement of costs from the EPA dated May 27, 2011, as evidencing the EPA's ongoing removal and/or remedial action (Doc. 13, pp. 7-16). The letter states that the EPA, [H]as been conducting response actions to address contamination at the [Site]. Under § 107(a) of CERCLA, 42 U.S.C. § 9607(a), you ["Potentially Responsible Party"] are responsible for unrecovered costs incurred by EPA while investigating the Site.
Pursuant to authority contained in § 104 of [CERCLA], 42 U.S.C. § 9604, the EPA determined that there was a release of hazardous substances (as defined by § 101(14) of CERCLA) at the Site. (Doc. 13, p. 7).
Plaintiff responds that CERCLA Section 113(h) does not divest the Court of subject matter jurisdiction over its Count II, as the EPA has not "selected" a removal or remedial action that plaintiff's Count II somehow "challenges." In support, plaintiff first alleges that defendant's reliance on Rule 12(b)(1) is misplaced, as the Seventh Circuit has determined that the Timing of Review provision in CERCLA Section 113(h) cannot deprive a Court of subject matter jurisdiction. Thus, any motion based on Section 113(h) must rely on Rule 12(b)(6), failure to state a claim upon which relief can be granted. See Frey v. EPA, 270 F.3d 1129, 1132 (7th Cir. 2001) ("Frey I").
The Court agrees that Rule 12(b)(1) is not the proper authority for the instant motion, as Frey I makes clear that failure to comply with Section 113(h) results in dismissal under Rule 12(b)(6), not Rule 12(b)(1). Id. Rule 12(b)(6) authorizes dismissal when it appears beyond doubt that the plaintiff can prove no set of facts that would entitle it to relief. Szumny v. Am. Gen. Fin., 246 F.3d 1065, 1067 (7th Cir. 2001). Dismissal under Rule 12(b)(1) is appropriate when a court lacks subject matter jurisdiction, meaning Article III competence to hear a case. Frey I, 270 F.3d at 1132. However, Section 113(h) does not speak to a Court's power to hear a case, but instead establishes prerequisites for certain kinds of environmental suits. Id. Thus, "[a] person who does not comply with § 113(h) will not prevail, but the court's power to adjudicate the case is clear, and a dismissal should be predicated on FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6), not 12(b)(1)." Id.
The distinction is important to the instant dispute, as in the Rule 12(b)(1) context, the court may weigh the evidence and make factual findings regarding jurisdiction based on evidence presented by the parties. See Apex, 572 F.3d at 444. However, under Rule 12(b)(6), only the complaint and its exhibits are examined. Documents outside the complaint and its exhibits are not considered unless the court converts the motion into one for summary judgment. FED. R. CIV. P. 12(d). Further, ...