United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
This matter comes before the Court on defendants Shell Oil Company's and Equilon Enterprises, LLC's (collectively "Shell") motion for certification of order for interlocutory appeal (Doc. 62). Plaintiff Village of Roxana, Illinois ("Roxana") filed a response (Doc. 64) to which Shell replied (Doc. 65).
Shell seeks an order from this Court certifying Judge Patrick G. Murphy's order (Doc. 60) dated August 26, 2013, in which Judge Murphy denied Shell's motion to dismiss and for summary judgment, to the Court of Appeals for the Seventh Circuit. Specifically, Shell asks the Court to certify the following issues for interlocutory appeal: (1) Whether the Village of Roxana's Municipal Ordinance § 8.16.010 violation claims are preempted under Illinois law?; and (2) Whether the plain meaning of section 8.16.010, as a matter of law, encompasses Roxana's Municipal Ordinance violation claims? For the following reasons, the Court grants in part and denies in part Shell's motion.
Roxana is a small industrial village in southern Illinois that was built up around Shell's petroleum refinery. The refinery defined the village for many years as evidenced by the city park's name of "Shell Park" and the high school's "Shells" mascot. While the refinery has undoubtedly had a positive financial impact on the village, petroleum byproducts, including benzene,  leaked into the soil and groundwater have caused great concern to both the Illinois Environmental Protection Agency ("IEPA") and Roxana's residents.
In response to the petroleum byproduct pollution, Roxana filed 230 separate complaints, each complaint representing a different Roxana property allegedly contaminated by Shell's pollutants, in the Circuit Court for the Third Judicial District, Madison County, Illinois, in an effort to enforce Roxana Municipal Code § 8.16.010 against Shell. Section 8.16.010 provides as follows:
8.16.010 Leaving garbage, dirt or rubbish in public way or watercourse. It is unlawful for any person to place, deposit, throw, leave or permit to remain, or to cause or permit to flow, any liquid, slops, animal or vegetable matter, filth, dirt or rubbish, or substance of any kind likely to become rotten, foul, nauseous, putrid or offensive, in or upon any premises occupied or controlled by him, or into or upon any adjacent premises, or upon the premises or any other person, or into or upon any street, alley or public ground, or into any stream of water or pond.
Roxana, Ill. Mun. Code § 8.16.010 (1932). Based on this ordinance, each complaint states as follows:
On or about March 21, 2007, and continuing every day thereafter through the present date and beyond, the Defendants, Shell Oil Company and Equilon Enterprises LLC d/b/a Shell Oil Products, US, a Corporation, or either one of the Defendants acting on behalf of all the others, did place, deposit, leave or permit to remain, or cause or permit to flow, an offensive substance, namely petroleum byproducts including but not limited to benzene, into or upon the premises of any other person, or into or upon any street, alley or public ground, namely [each lot and block number for 230 claims] in the Village of Roxana. The Defendants are jointly and severally responsible for the aforesaid.
Doc. 2-1, p. 1. Each ordinance violation claim seeks a fine of up to $750 per day for each day the nuisance existed, beginning March 21, 2007.
Shell removed the 230 cases on the basis of diversity of citizenship. Thereafter, Shell filed a motion to dismiss and for summary judgment arguing that the claims were preempted by Illinois law and that the alleged facts were not encompassed within the plain meaning of section 8.16.010. After considering the plain language of the statute, Judge Murphy concluded that the ordinance encompassed Shell's alleged benzene contamination of Roxana properties.
Next, Judge Murphy considered whether the Roxana ordinance conflicted with a 1989 IEPA permit that was renewed in 2010 or with a 1998 consent order. He concluded that there was no conflict between the consent order and the ordinance. Specifically, the consent order related to land in the "Rand Avenue" section of a 1989 oil spill. Judge Murphy noted it was not clear that the properties concerned in the ordinance violations related to the "Rand Avenue" area. Further, the consent order concerned contaminations from a different time period than the alleged ordinance violations. Alos, the alleged ordinance violations did not conflict with the IEPA permits because the IEPA permits were limited to the 1986 spill and the disposal basin area. Finally, Judge Murphy indicated that "the sticking point for [Shell] here is their failure to say how rectifying these ordinance violations in any way prevents them from compliance with either the Consent Order or the IEPA permit requirements." Doc. 60, p. 6. The Court will turn to consider whether either of these issues presents a question appropriate for interlocutory appeal.
The court of appeals, in its discretion, may hear an interlocutory appeal after certification from the district court that the appeal presents "a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). Accordingly, "[t]here are four statutory criteria for the grant of a section 1292(b) petition to guide the district court: there must be a question of law, it must be controlling, it must be contestable, and its resolution must promise to speed up the litigation." Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674, 676 (7th Cir. 2000). The party seeking an interlocutory appeal bears the burden of demonstrating ...