The opinion of the court was delivered by: McDADE, District Judge.
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
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.
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
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.
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).
In their first two counts, Plaintiffs have filed citizen
suits pursuant to RCRA, § 6972(a). Title 42 U.S.C. § ...