EAST ST. LOUIS - For three years this city performed discovery on possible pollution by Monsanto, Pharmacia and Solutia, and now defendants get to perform discovery on the city.
U.S. District Judge David Dugan ruled on Nov. 5 that they can pursue a counter claim against the city’s suit to collect billions for violation of abatement ordinances.
Dugan found they may present evidence that the ordinances failed to provide adequate notice of proscribed behavior and that the ordinances invited arbitrary or discriminatory enforcement.
“The court believes it would be particularly inappropriate to answer the unique and complex questions presented on the applicability and enforcement of the ordinances as a response to defendants’ alleged PCB contamination on the pleadings without discovery," Dugan wrote.
PCB stands for polychlorinated biphenyl.
“The court in no way suggests such allegations will win the day but it believes defendants have done enough for their claim to proceed," he wrote.
East St. Louis began the litigation in 2021 by issuing violation notices for properties it owned.
Defendants removed the notices to district court as a Missouri citizen and the city replaced the notices with a civil complaint seeking daily penalties for 51 years.
Last year the city amended its complaint and defendants filed a counter claim.
Defendants amended the counter claim this April, claiming application of the ordinances was unconstitutional because they were devoid of standards for what might constitute a violation.
Defense counsel Charles Hobbs of St. Louis County claimed the ordinances didn’t specify a level or concentration that constituted a nuisance.
Hobbs claimed they could apply to anything offensive or obnoxious to health and welfare or anything that created a hazard to property or had a detrimental effect on property.
He claimed they had a boundless purpose, no time limit, no location restrictions and no requirement for causality between harm and misconduct.
He claimed they didn’t require that an unlawful action or inaction be willful.
e claimed the city failed to cite any case law to support such expansive ordinances.
He claimed the city’s assertion that PCBs might cause health effects at some dose provided no guidance as to concentrations that would reach a level of concern.
He claimed PCBs affect none of the senses, are measured in parts per billion, and were deposited by wind, water, and other elements of nature over an indefinite period.
City counsel Matthew Limoli of North Carolina moved to dismiss the counter claim, stating prohibitions in the ordinances were reasonably ascertainable and stated in objective terms.
He claimed uncertainty was inconsequential.
He claimed it wasn’t difficult to foresee that the objective criteria implicated PCBs.
He claimed that whether something offends health and welfare or creates a hazard or a detrimental effect on property can be answered as a matter of fact.
Dugan found a vague statute is constitutionally objectionable if it fails to provide the public with fair notice of the line between lawful and unlawful conduct and it allows fundamentally legislative decisions to be made on a subjective basis at the point of enforcement.
He found an ordinance must sufficiently define offending conduct for ordinary people of common intelligence to understand what is prohibited and must do so in a manner that will not encourage arbitrary and discriminatory enforcement.
“That is, a statute or ordinance must provide fair warning of the conduct subjecting a person to liability and include an explicit and ascertainable standard to be applied by those charged with its enforcement," he wrote.
He found he wasn’t tasked with resolving the merits of the counter claim at this stage and must merely ascertain whether defendants satisfied the federal pleading standards.
He found they satisfied those standards.
He has set trial to start in June.