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Statel ex rel Hood v. Meritor, Inc.

United States District Court, N.D. Mississippi, Greenville Division

March 13, 2018

THE STATE OF MISSISSIPPI, ex rel. JIM HOOD, ATTORNEY GENERAL PLAINTIFF
v.
MERITOR, INC., ROCKWELL AUTOMATION, INC., THE BOEING COMPANY TEXTRON, INC. DEFENDANTS

          MEMORANDUM OPINION

          Sharion Aycock UNITED STATES DISTRICT JUDGE.

         This matter arises on Plaintiff's Motion to Remand [28]. Defendants responded, and Plaintiff replied. Defendants requested leave to file a sur-reply, as well [46]; however, after review of the record and the relevant precedent, that request is DENIED. The Court finds as follows.

         Facts and Procedural History

         Attorney General Jim Hood brought this action on behalf of the State of Mississippi and its citizens in the Chancery Court of Grenada County, Mississippi. Plaintiff seeks to enjoin Defendants from discharging contaminants into the groundwater and surface waters, releasing toxic sludge and chemicals onto the ground and emitting thousands of tons of hazardous chemicals into the air through its operation of an automobile wheel cover (hubcap) plant. The Chancery Court Complaint made state law claims of gross negligence, public nuisance, and trespass for those actions alleged by the Plaintiff.

         Defendants removed the action, arguing that this Court has original subject matter jurisdiction pursuant to 28 U.S.C. 1331 under the substantial federal question doctrine, arguing that Plaintiff's claims are completely preempted. See Grable & Sons Metal Prods. v. Darue Eng. & Mfg., 545 U.S. 308, 312, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005); Bd. of Comm'rs of Se. Louisiana Flood Prot. Auth.-E. v. Tennessee Gas Pipeline Co., L.L.C., 850 F.3d 714, 722 (5th Cir. 2017), cert. denied sub nom. Bd. of Comm'rs of Se. Louisiana Flood Prot. Auth. - E. v. Tennessee Gas Pipeline Co., No. 17-99, 2017 WL 4869188 (Oct. 30, 2017). Defendants argue that Environmental Protection Agency (“EPA”) regulations relating to the Resource Conservation and Recovery Act's (RCRA) and its Hazardous and Solid Waste Amendments of 1984 (HSWA) effectively subsume Plaintiff's claims.[1] Further, Defendants move the Court to find that the federal regulatory scheme enforced by the EPA via its permit procedure, pursuant to the RCRA, mandates federal jurisdiction.

         RCRA and Defendants' EPA Permit

         In 1976, Congress enacted the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6992, “to promote the protection of health and the environment . . . .” 42 U.S.C. § 6902(a). The “RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste.” Meghrig v. KFC Western, Inc., 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996) (citation omitted); 42 U.S.C. § 6924. Subsequently, the EPA promulgated compliance and corrective action regulations for hazardous waste monitoring and disposal pursuant to HSWA and enforceable by the EPA Administrator. See id; 40 C.F.R. §§ 264.92-264.100. Primarily, the EPA Administrator monitors disposal and corrective action through use of a permit system much like the one in the case at bar. 42 U.S.C. § 6925.

         On July 31, 1998, the EPA issued a 10-year RCRA/HSWA permit to Defendant Textron, Inc., for the Grenada Plant Site. In 1999, Grenada Manufacturing, LLC, purchased the Plant Site. As a part of this transaction, Grenada Manufacturing, LLC, acquired the RCRA/HSWA permit and assumed responsibility for all duties and obligations owed to the EPA under the permit.

         The EPA approved certain remedial measures in 2000 to address plant groundwater contamination at and off the Grenada Plant Site, including the construction of a permeable reactive barrier (PRB) to prevent migration of contaminants from the Grenada Plant Site to the Yalobusha River. The EPA later approved a Conceptual Site Model Report (CSM) submitted by Grenada Manufacturing, LLC, identifying corrective measures for the plant site, including the construction of the PRB, to remediate and prevent off-site migration of groundwater into waters of the United States.

         However, in 2004, Grenada Manufacturing, LLC, filed for bankruptcy relief in the Northern District of Mississippi. The Bankruptcy Court approved the aspects of a sale motion, wherein Grenada Manufacturing, LLC, was to sell substantially all of its assets to Grenada Manufacturing Acquisition Corporation, a subsidiary of Ice Industries, Inc. Under the Proposal, Ice Industries, Inc., would ensure that the environmental remediation continued by coordinating environmental permitting and corrective action activities under oversight of the EPA, but Grenada Manufacturing, LLC, would retain the RCRA/HSWA permit. In late 2005, the EPA again modified the permit, requiring Grenada Manufacturing, LLC, to investigate and remediate contamination migrating beyond the Grenada Plant Site boundary, including Riverdale Creek.

         On July 29, 2010, the EPA issued a second 10-year RCRA/HSWA permit to Grenada Manufacturing, LLC. Non-compliance with the provisions of the permit is grounds for an EPA enforcement action under RCRA and HSWA. A subsidiary of Ice Industries Inc. continues to lease and operate portions of the Grenada Plant Site, and Grenada Manufacturing, LLC, continues to hold the EPA RCRA/HSWA permit.

         Removal Standard

         Federal courts are courts of limited jurisdiction. Epps v. Bexar-Medina-Atascosa Counties Water Improvement Dist. No. 1, 665 F.2d 594, 595 (5th Cir. 1982). The Judiciary Act of 1789 provides that “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a).

         After removal of a case, the plaintiff may move for remand, and “[if] it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). Moreover, once a motion to remand has been filed, the removing party bears the burden to establish that federal jurisdiction exists. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). Furthermore, the Fifth Circuit has held that “[a]ny ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand.” Mangu ...


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