Marc Grossman, a founding partner of the national law firm, discusses the recent Supreme Court’s ruling on how it will affect units of local government and innocent landowners’ state court-based nuisance suits against polluters.
“Polluters have for too long hidden behind “preemption” as a shield to prevent cities and neighbors from seeking compensation. The Supreme Court has ruled that these suits can proceed. We are proud that our firm’s partners played a role in this ruling. We intend on making communities cleaner and safer using precedent we helped create” Grossman said.
Atlantic Richfield Company v. Christian
On April 20, 2020, the Supreme Court of the United States decided Atlantic Richfield Company v. Christian, a case addressing the interplay between the Environmental Protection Agency’s authority under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “the Act”) and private tort actions seeking relief that goes beyond the CERCLA remedy adopted by EPA.
The Court held that Section 113(2) of CERCLA does not bar state courts from hearing landowner claims arising under state common-law doctrines such as nuisance, trespass, or strict liability, even if the alleged common-law claim seeks to require the defendant to fund more or different work than EPA’s CERCLA remedy. In doing so, the Court ruled:
“Second, the company’s argument does not account for the exception in §113(h) for federal courts sitting in diversity. Section 113(h) permits federal courts in diversity cases to entertain state law claims regardless of whether they are challenges to cleanup plans. See DePue v. Exxon Mobil Corp., 537 F. 3d 775, 784 (CA7 2008). But Atlantic Richfield field does not even try to explain why the Act would permit such state law claims to proceed in federal court, but not in state court. The Act permits federal courts and state courts alike to entertain state law claims, including challenges to cleanups. (Atlantic Richfield at 11)”
During a regularly scheduled board meeting in August 2006, then DePue Assistant Village Attorney Melissa K. Sims, sat next to mayor, Donald Bosnich, Jr. listening to the “DePue Group”( a team from corporate giants, Exxon and CBS/Viacom) discuss why the cleanup of the massive and toxic Superfund site was taking decades. Following a circus of finger pointing, the exasperated mayor asked Sims “what can we do?” Sims, having known Bosnich since childhood, said “We’ll sue them.”
Exxon and CBS/Viacom were successor owners to a large smelting facility in DePue which processed film for Kodak and Paramount pictures. This 950-acre area had at one time contained a primary zinc smelting facility and a phosphate fertilizer plant. The site is contaminated with elevated levels of metals that includes zinc, lead, arsenic, cadmium, chromium and copper. In the 1980’s, the corporations left when film was replaced with digitalized format. Now, during a heavy rain, blue mud puddles appear. In 2001, researchers found that between 1971 and 1990, statistically significant excess of new Multiple Sclerosis cases in DePue. In terms of the Superfund’s “hazardous ratings index” the site was ranked 14th in the nation.
No Time Runs Against the King
In Illinois, units of local government pursuing a public right have no statute of limitations, a legal doctrine at common law called “nullum tempus occurit regi” Latin for “no time runs against the king.”
Knowing that she had the statute of limitations on her side, Sims needed to see if the law was on her side. Following the meeting, Sims, a devout Christian from a large Catholic family, went for a run, prayed and talked with the Holy Spirit about DePue’s problem.
Sims said she was told to “fine them.” Sims ran home and scoured the Superfund law, looking for any preemption statute which would prevent her from using local law during the Superfund cleanup. She found none. She then called her good friend–an environmental lawyer who defends big corporations–and asked her if “she would look stupid if she fined them with a local ordinance” not knowing if there was some obscure defense she could not locate. Her friend said “no one has ever tried it before. Why not?”
As village attorney, Sims went to court twice a week, fining residents for such offenses as tall weeds, dog feces, owning three dogs instead of only two, owning farm animals, abandoned vehicles, etc. “These are good people, not harming anyone, but rules are rules. I could not sleep at night if I continued to fine these people and not take a shot at the big guys,” Sims said.
With that, Sims and her boss, the late Bill Wimbiscus–the only two lawyers in the firm–filed an ordinance case against Exxon, CBS/Viacom in local circuit court for violating the nuisance code and filed an “abatement” action which is akin to an injunction. The corporate giants removed the ordinance case to federal court and the cause was dismissed. Sims took an appeal. The Seventh Circuit’s Judge Easterbrook ruled in August of 2008 that there was no federal preemption on the abatement portion of the case and focused on a nuanced exclusion in the complicated federal law, namely Section 113(h). The Seventh Circuit did dismiss the abatement (injunctive) portion under state law, ruling that DePue was a non-home rule unit of local government and could not supersede the State of Illinois’ authority in how the site was cleaned.
Undeterred, Sims had DePue place a home rule referendum on the November 2008 ballot, which passed. Immediately following the Seventh Circuit’s decision, Sims also filed a new suit, this one a “fine only” case and not tied to any injunction or abatement relief. Having no precedent, the federal court dismissed that case as well and Sims took another appeal. The parties settled pending briefing submissions on appeal.
Village of Roxana v. Shell and Conoco Phillips
Following DePue, Sims was approached by lawyers for the Village of Roxana, Illinois regarding the polluted groundwater caused by the Shell/Conoco Phillips refinery. Sims found a plat of the town and a map of the plume. She used a 1932 ordinance—an ordinance that is replicated in every town across the country– basically saying that no one can place anything that is “noxious, foul or offensive” on the property of another. A litter ordinance with no statute of limitations.
Using the DePue precedent, Roxana fined Shell and Conoco/Phillips in Madison County ordinance (traffic) court 230 tickets each under this 1932 litter ordinance for every lot, street and alley in the massive benzene plume at $750 per day. Shell and ConocoPhillips removed the cases to federal court and the case was assigned to Judge Patrick Murphy of the Southern District of Illinois.
On August 26, 2013, Judge Murphy denied Shell and ConocoPhillips’ motion to dismiss and cited the DePue Seventh Circuit decision:
The narrow question here is whether the Roxana ordinance conflicts with a 1989 IEPA permit that was renewed in 2010 or with a 1998 consent order. There is no conflict and the closest case on the subject makes this clear. In Village of DePue, Illinois v. Exxon Mobil Corp., the Seventh Circuit affirmed a Central District of Illinois order on a similar case.
The case subsequently settled.
Now, Sims chairs the Environmental Department for the national law firm, Sanders Phillips Grossman, LLC. Along with founder, Marc Grossman, the firm, utilizes the DePue and Roxana precedents to help communities across the country seek justice for environmental pollution.
She can be reached at email@example.com
 Randolph B. Schiffer, Michael P. McDermott & Catherine Copley (2001) A Multiple Sclerosis Cluster Associated with a Small, North-Central Illinois Community, Archives of Environmental Health: An International Journal, 56:5, 389-395, DOI: 10.1080/00039890109604473