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WINSTON v. SHELL OIL CO.

August 18, 1994

KIM WINSTON, SCOTT B. WINSTON, AND GARY W. WINSTON, CO-EXECUTORS OF THE ESTATE OF HAZEL WOOD WINSTON AND THE ESTATE OF HAZEL WOOD WINSTON, PLAINTIFFS,
v.
SHELL OIL COMPANY, A DELAWARE CORPORATION; WILLIAM ALEXANDER; P.K.M. CORPORATION, AN ILLINOIS CORPORATION; AND CHARLES D. MACDONALD, DEFENDANTS.



The opinion of the court was delivered by: McDADE, District Judge.

ORDER

Plaintiffs, the co-executors of the estate of Hazel Wood Winston, deceased, own property located at 4310 N. Knoxville Avenue, Peoria, Illinois. They have filed this action against Defendants: Shell Oil, William Alexander, P.K.M. Corporation ("P.K.M."), and Charles MacDonald, seeking monetary & equitable' relief for environmental contamination to their property, pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, (commonly known as "RCRA"), and Illinois common law.

In Count I, Plaintiffs allege that P.K.M. and MacDonald are in violation of RCRA, 42 U.S.C. § 6972(a)(1)(A), for failing to comply with state regulations concerning underground storage tanks. In Count II, Plaintiffs allege that all Defendants are in violation of RCRA, § 6972(a)(1)(B), for contributing to the storage and handling of hazardous waste. In Count III, Plaintiffs allege breach of contract against P.K.M. for not remediating the gasoline contamination in the soil once it was discovered. In Count IV, Plaintiffs allege that P.K.M. and Shell were negligent in regards to the upkeep of the property. In Count V, Plaintiffs seek punitive damages alleging wilful and wanton conduct on the part of Shell and P.K.M. In Counts VI and VII, Plaintiffs seek a declaratory judgment and an award of attorney's fees pursuant to RCRA.

Before the Court is Magistrate Judge Robert J. Kauffman's Report and Recommendation [Doc. # 27] recommending that the Court deny Defendants' Motions to Dismiss [Doc. # 16, 17, 19]. Defendants have filed timely objections to the Magistrate's Recommendation. Accordingly, the Court has made a de novo review of the record and determined that Plaintiffs Amended Complaint must be dismissed for failure to state a claim upon which relief can be granted.

BACKGROUND

In ruling on a motion to dismiss, this Court must accept as true all well pleaded factual allegations in the Complaint and all reasonable inferences that may be drawn therefrom. Mid America Title Co. v. Kirk, 991 F.2d 417, 418 (7th Cir. 1993); see also Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1973) (allegations of the complaint should be construed favorably to the pleader). Therefore, the following facts from Plaintiffs' Amended Complaint are taken as true.

At all times relevant to this action up until her death, Winston owned a parcel of property located at 4310 N. Knoxville Avenue, in Peoria, Illinois. From 1953 until 1984, Winston leased this property to Defendant Shell Oil for the purposes of opening a gasoline filling station. In November of 1970, Shell sub-leased the property for six months to Defendant William Alexander. From November 1984 through the present, Defendant P.K.M. has leased the property directly from Hazel Winston and Plaintiffs. All Defendants who have occupied the land were involved in the operation of gasoline filling stations, and at no times pertinent to this action did Winston or Plaintiffs occupy the property or operate a gasoline station on the property.

In 1970, Shell renovated the property replacing two steel underground storage tanks ("USTs") with 3 fiberglass USTs. In 1971, William Alexander detected gasoline in a nearby stream, and upon investigation, Shell discovered that two of the fiberglass tanks were leaking gasoline into the surrounding soil. After repairing the USTs, Shell covered the soil with concrete but did not remove any of the contaminated soil.

In 1991, P.K.M., with its President, Defendant Charles MacDonald, removed a large waste oil UST from the property.*fn1 When the UST was removed, safety officials detected the presence of gasoline contamination in the soil. P.K.M. then hired Environmental Science and Engineering, Inc. ("ESE") to test part of the property where the waste oil UST was located, but P.K.M. did not direct ESE to test the soil near the gasoline USTs. The test revealed high concentrations of common chemical constituents normally found in gasoline, which were in excess of those requiring remediation and clean up by the Illinois Environmental Protection Agency. After discovery of the contamination, P.K.M. and MacDonald failed to remove all of the contaminated soil, failed to test all areas of the property for contamination, and failed to notify Plaintiffs about the contaminated soil until June 15, 1992. Plaintiffs subsequently filed this action.

ANALYSIS

Because Plaintiffs have alleged violations of a federal statute in their first two counts, this Court has original jurisdiction under 28 U.S.C. § 1331.*fn2 All Defendants have filed motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. This Court will dismiss the Complaint only if Plaintiffs cannot prove any set of facts to support their claim for relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101-42, 2 L.Ed.2d 80 (1957).

I. COUNTS I AND II

In their first two counts, Plaintiffs have filed citizen suits pursuant to RCRA, § 6972(a). Title 42 U.S.C. § ...


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