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Premcor Refining Group, Inc v. Apex Oil Company, Inc.

United States District Court, S.D. Illinois

January 15, 2020

THE PREMCOR REFINING GROUP INC., Plaintiff,
v.
APEX OIL COMPANY, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE.

         Pending before the Court is a Motion to Reconsider filed by Plaintiff The Premcor Refining Group, Inc. (“Premcor”) (Doc. 196). For the reasons set forth below, the Court grants in part and denies in part the motion.

         Factual & Procedural Background

         This action arises out of claims under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) brought by Premcor against Apex Oil Company, Inc. (“Apex”) and seven other defendants. Premcor seeks recovery of costs associated with environmental contamination at a refinery in Hartford, Illinois (“Hartford Site”) (Doc. 130, p. 1-2).

         The Hartford Site has been the subject of a number of state and federal judicial and administrative proceedings which are relevant to the consideration of the instant motion. In 2005, the United States Environmental Protection Agency (“U.S. EPA”) sued Apex under the Resource Conservation and Recovery Act to address contamination at the Hartford Site and the spread of contaminated groundwater beneath the Village of Hartford. After a bench trial, on July 28, 2008, Judge Herndon of the Southern District of Illinois issued a 178-page “Order Following Bench Trial” with findings of fact describing a lengthy history of contamination at the Hartford Site and describing migration of the contamination into groundwater extending beneath the Village of Hartford (Case No. 3:05-cv-00242, Doc. 199). Judge Herndon concluded that Apex was jointly and severally liable “for the contamination at the Hartford Site” (Doc. 199 p. 178) and ordered Apex to comply with an injunctive order (Doc. 147-3) issued contemporaneously that required Apex (Judge Herndon's orders together, “Herndon Order”) to take measures to monitor and remediate the “migration of groundwater contamination from beneath the Hartford Refinery to beneath the Village of Hartford” as well as “the hydrocarbon contamination at the Hartford Site[.]”

         This was followed in 2010 by a Unilateral Administrative Order issued by the U.S. EPA (“U.S. EPA Order”) in which the U.S. EPA mandated the structure of certain cleanup work at and around the Hartford Site required by the Herndon Order and other orders against different parties also liable for the contamination. Hartford Area Hydrocarbon Site Unilateral Administrative Order, RCRA-05-2010-0020, Filing #1 (2010).[1] In a letter sent to Apex and other parties with the order, the EPA noted that the parties liable for the contamination, “U.S. EPA, and the State of Illinois have engaged in settlement discussions relating to the Hartford Site . . . [i]f the parties were to enter into a settlement in the near future, the requirements of this Order could be integrated into a consent decree” (Id. at 1). The EPA further noted that:

While liability under Section 7003 of RCRA is joint and several, U.S. EPA is considering that at this Site efficient implementation of the work may be best achieved through assignment of certain tasks to specific parties. However, such assignments shall in no way diminish or otherwise affect any party's liability for this Site as a whole. Nor would any such assignment constitute a U.S. EPA allocation of costs for the site. Finally, even if certain work is assigned to specific Respondents, implementation of this cleanup will require continuous cooperation amongst all Respondents (Id. at 2).

         Apex did not reach a settlement with the U.S. EPA as contemplated in the U.S. EPA order, and its responsibilities to the U.S. EPA and to the other liable parties contemplated in the U.S. EPA Order were not integrated into any future consent order but rather were preserved.

         These federal actions were followed by an action brought against Apex in Illinois State Court by the Illinois Environmental Protection Agency (“IEPA”) in 2013 under the Illinois Environmental Protection Act for contamination at the Hartford Site. That state action culminated in a consent order between Apex and the IEPA (“State Consent Order”) (Doc. 143-1). In the State Consent Order, IEPA released Apex from “any and all liability . . . arising under any Environmental Laws relating to each Release of Substances, threatened Release of Substances, and resulting conditions existing at, under, from, on or upon the Refinery” (Id. at 14). This blanket release, however, was qualified with the statement that “[t]his Consent Order does not resolve, settle or in any way alter any liability imposed upon Apex by the [Herndon Order] or by the [U.S. EPA Order]” (Id. at 15-16).

         The State Consent Order was approved by an order of the Circuit Court of Madison County, Illinois (“State Court Order”) (Doc. 143-2). In its order, the Madison County Circuit Court addressed concerns raised by Premcor that the State Consent Order would give Apex a free pass on liability imposed in the Herndon Order and U.S. EPA Order, stating that “this agreement and order does not let Apex ‘off the hook' financially for the federal orders” (Id. at 5). After reviewing pleadings presented by the parties to the State Consent Order and hearing arguments as to the intended scope and meaning of the State Consent Order, the Illinois Circuit Court concluded that it “does not affect any liabilities of any parties created by the [U.S. EPA Order]” and that it “does not impair or impinge upon matters addressed and resolved by the [Herndon Order]” (Id.). The court dismissed Premcor's motion for summary judgment for contribution costs, noting that as the State Consent Order did not affect the U.S. EPA Order or Herndon Order, any dispute over those orders “would be filed in Federal court where the orders were entered” (Id. at 6).

         Premcor commenced this action in 2017, seeking contribution for costs incurred in remediating contamination at the Hartford Site under Section 113(f) of CERCLA, among other claims (Doc. 1). Section 113(f)(2) of CERCLA contains a “settlement bar” provision, which states that “A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement[.]” 42 U.S.C. § 9613.

         This Court previously reviewed motions brought by several defendants seeking to dismiss this action or individual claims within it for a variety of reasons (Doc. 189). Among other holdings, the Court found in its order of September 20, 2019, that Premcor's claim against Apex under Section 113(f) of CERCLA was estopped by the settlement bar in Section 113(f)(2) of CERCLA due to the State Consent Order. Premcor now brings this motion to reconsider, arguing that the State Consent Order could not end liability under the CERCLA settlement bar because it explicitly carved out liability arising under the Herndon Order. In the alternate, Premcor asks that this question be certified for interlocutory appeal.

         Legal Standard

         Motions for reconsideration are only appropriate where the court has misunderstood a party, made a decision outside of the issues presented by the parties, made an error of apprehension (not of reasoning), where a significant change in the law has occurred, or where significant new facts have been discovered. Broaddus v. Shields, 665 F.3d 846, 860 (7th Cir. ...


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