The opinion of the court was delivered by: McDADE, District Judge.
Before the Court is Defendant's Motion to Dismiss. [Doc. #
6]. Plaintiffs have filed a response in opposition. [Doc. # 9].
For the following reasons, Defendant's motion is denied.
Plaintiffs — Magna Bank as trustee and Russell L.
Waldschmidt as the sole beneficiary — have filed an action
against Defendant Amoco as a lessee of property located at 7817
N. Knoxville Avenue, Peoria, Illinois. Defendant leased this
property for the purpose of operating a gasoline service
station from 1957 until July of 1995.*fn1 As part of the
construction of the service station, underground storage tanks
("UST"), pumps, and piping systems were installed at the
property. Environmental testing done at the site revealed
petroleum contamination of the soil and groundwater.*fn2
Although Defendant removed some of the contaminated soil,
substantial quantities of contaminated soil and groundwater
remain at the site. In order to cure and/or alleviate this
contamination, Plaintiffs seek monetary and equitable relief
pursuant to the Resource Conservation and Recovery Act,
42 U.S.C. § 6901, et seq., ("RCRA") and Illinois common law.*fn3
A complaint should not be dismissed unless it appears from
the pleadings that the plaintiff could prove no set of facts in
support of his claim which would entitle him to relief.
Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957). For purposes of a motion to dismiss, the complaint is
construed in the light most favorable to the plaintiff and the
factual allegations are taken as true. Northwest Airlines, Inc.
v. Transport Workers Union of America, AFL-CIO, 451 U.S. 77, 81
n. 3, 101 S.Ct. 1571, 1575 n. 3, 67 L.Ed.2d 750 (1981) (citing
Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90
(1974)). In addition, a complaint must contain either direct or
inferential allegations respecting all the material elements
necessary to sustain recovery under some viable legal theory.
Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th
Cir. 1984) (quoting Sutliff, Inc. v. Donovan, Co., 727 F.2d 648
(7th Cir. 1984)), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758,
84 L.Ed.2d 821 (1985). A plaintiff does not need to set out in
detail the facts upon which the claim is based, it is
sufficient to allege facts outlining the cause of action.
Marmon Group, Inc. v. Rexnord, Inc., 822 F.2d 31, 34 (7th Cir.
1987) (quoting Doe v. St. Joseph's Hosp., 788 F.2d 411, 414
(7th Cir. 1986)).
Plaintiffs have premised their federal claims on the citizen
suit provisions of RCRA, 42 U.S.C. § 6972(a). One portion of
RCRA's citizen suit provision subsection 6972(a)(1)(A)
Except as provided in subsection (b) or (c) of
this section, any person may commence a civil
action on his own behalf —
(1)(A) against any person (including (a) the
United States, and (b) any other governmental
instrumentality or agency, to the extent permitted
by the eleventh amendment to the Constitution) who
is alleged to be in violation of any permit,
standard, regulation, condition, requirement,
prohibition or order which has become effective
pursuant to this chapter[.]