The opinion of the court was delivered by: Richard Mills, District Judge:
Defendants petition for abstention and cite Burford.
Plaintiff petitions for retention of jurisdiction and cites
the Resource Conservation and Recovery Act.
Bottom line: We decline to invoke Burford abstention and
retain both the federal and pendent state law claims.
I. FACTS ALLEGED IN THE COMPLAINT
Environmental Site Developers, Inc., ("ESDI") is a Delaware
corporation which does business in Illinois. From 1977 to 1990,
its president was Leroy Donley. On or about December 13, 1977,
the Illinois Environmental Protection Agency ("IEPA") issued a
permit to ESDI to develop a solid waste disposal site in
Montgomery County, Illinois. By 1981, ESDI had received permits
from the IEPA to operate four separate "cells" on the disposal
site known as Cells A, B, C, and D. In 1986, ESDI received a
permit to operate a fifth cell on the disposal site known as Cell
E. During this time, the disposal site was authorized to operate
as a pollution control facility and accepted fly ash generated by
the Central Illinois Public Service Company's ("CIPS") power
plant in Coffeen, Illinois.
By 1985, Cells A, B, C, and part of Cell D were closed.*fn1 On
November 22, 1988, and on December 22, 1988, the IEPA sent ESDI
a letter which stated that during its October 21, 1988 inspection
of ESDI's disposal site, certain violations were observed.
Specifically, the inspection revealed that leachate*fn2 was flowing
from Cell D, onto the surface of the disposal site, and into
Shoal Creek. On August 3, 1990, ESDI applied for the closure of
the remaining operating portion of Cell D.*fn3 Accordingly, the
disposal of coal combustion waste in Cells A-D occurred only
during ESDI's ownership of the disposal site.
On August 1, 1990, ESDI and White & Brewer Trucking entered
into a purchase agreement for the sale of the disposal site.
Thus, on August 23, 1990, ESDI transferred its ownership rights
in the disposal site to White & Brewer Trucking. On February 8,
1991, the IEPA issued permits to White & Brewer Trucking to
operate Cells A-E as disposal sites for coal combustion waste.
However, the permit separated Cell E from Cells A-D, forming two
independent facilities. Since the purchase of the disposal site,
White & Brewer Trucking has deposited coal combustion waste in
Cell E only.
On October 28, 1992, the Montgomery County Health Department
inspector observed a leachate flow emanating from the disposal
site. At a follow-up inspection on December 23, 1992, the
inspector informed White & Brewer Trucking that the leachate was
emanating from Cell D and was eventually emptying into the east
branch of Shoal Creek. Since this initial inspection, the
Montgomery County Health Department inspector has conducted
several repeat inspections and has noted numerous violations with
respect to Cells A-D. Each of the noted violations are alleged to
have violated some provision of either Illinois' statutory or
On January 27, 1986, the IEPA issued a National Pollution
Discharge Elimination System ("NPDES") permit to ESDI pursuant to
the Federal Water Pollution Control Act. 33 U.S.C. § 1251. This
permit prescribed testing requirements for the discharge of water
from an outfall or point source at the disposal site. This point
source discharges into a tributary of Shoal Creek. The permit
established limitations on the level of contaminants discharged
based upon Illinois' water quality standards. According to White
& Brewer Trucking, ESDI violated its NPDES permit during its
ownership and operation of the disposal site.
On September 10, 1991, the NPDES permit was transferred to
White & Brewer Trucking. Pursuant to said permit, White & Brewer
Trucking is required to conduct a sampling and analysis of
groundwater from various points on the disposal site and in Shoal
Creek. Throughout White & Brewer
Trucking's ownership of the disposal site,*fn4 the groundwater on
the disposal site has consistently exceeded Illinois' water and
groundwater quality standards for sulfate, boron, manganese, and
total dissolved solids. Accordingly, White & Brewer Trucking has
brought this suit against ESDI and Leroy Donley based upon
42 U.S.C. § 6972 and for breach of contract.*fn5
Prior to White & Brewer Trucking's purchase of the disposal
site, CIPS retained Envirocon of Illinois to prepare an
environmental assessment of the disposal site for White & Brewer
Trucking. Mary Jane Donley was the president of Envirocon until
the corporation was dissolved on December 1, 1992. Mary Jane
Donley is also the wife of Leroy Donley. White & Brewer Trucking
asserts that it relied upon the report prepared by Envirocon when
it purchased the disposal site from ESDI. White & Brewer Trucking
also alleges that the Envirocon report misrepresented the
problems with Cells A-D in that the report stated that the site
had not experienced any significant environmental event which was
detrimental to the waters of the State of Illinois or to the
macro-eco system of the region. The report further stated that
there had not been a significant environmental problem associated
with the facility since its inception. Accordingly, White &
Brewer Trucking has brought this suit against Envirocon and Mary
Jane Donley based upon negligent misrepresentation, fraudulent
misrepresentation, and the Illinois Consumer Fraud and Deceptive
Business Practices Act.
Federal Rule of Civil Procedure 12(c) allows for the filing
of a motion for judgment on the pleadings at any time after the
pleadings are closed. Rule 12(c) may be used in two ways. First,
Rule 12(c) may be used "after the close of the pleadings to raise
various rule 12(b) defenses regarding procedural defects, in
which case courts apply the game standard applicable to the
corresponding 12(b) motion." Alexander v. City of Chicago,
994 F.2d 333, 336 (7th Cir. 1993); Thomason v. Nachtrieb,
888 F.2d 1202, 1204 (7th Cir. 1989). Thus, all well-pleaded allegations of
the complaint are accepted as true, and all reasonable inferences
are drawn in favor of the non-moving party. Travel All Over The
World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1429 (7th
Cir. 1996). "Dismissal is proper only where it appears beyond a
doubt that the plaintiffs can prove no set of facts in support of
their claims that would entitle them to relief." Id. at 1429-30.
Second, Rule 12(c) may be used to dispose of the case based
upon the underlying substantive merits. Alexander, 994 F.2d at
336. For this second use, "the appropriate standard is that
applicable to summary judgment, except that the court may
consider only the contents of the pleadings."*fn6 Id. All of the
non-moving party's well-pleaded allegations are taken as true,
and all facts and inferences are viewed in the light most
favorable to the non-moving party. Id.; Republic Steel Corp. v.
Pennsylvania Eng'g Corp., 785 F.2d 174, 177 n. 2 (7th Cir. 1986).
Therefore, judgment on the pleadings will not be granted
unless "no genuine issues of material fact remain to be resolved
and unless the [moving party] is entitled to judgment as a matter
of law." Alexander, 994 F.2d at 336; National Fidelity Life Ins.
Co. v. Karaganis, 811 F.2d 357, 358 (7th Cir. 1987). "For
purposes of determining whether a material issue of fact exists,
uncontested allegations to which a party had an opportunity to
respond are taken as true." Flora v. Home Fed. Sav. and Loan
Ass'n, 685 F.2d 209, 211 (7th Cir. 1982).
Defendants argue that each of the six counts of Plaintiff's
Complaint should be dismissed. Accordingly, the Court will
address each of Defendants' arguments in turn.
Defendants argue that Burford abstention is applicable to the
case at bar. Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098,
87 L.Ed. 1424 (1943). Defendants claim that the Court should
abstain from considering Counts I & II of the Complaint because
the exercise of the Court's jurisdiction in this matter might
interfere with Illinois' complex and exhaustive environmental
statutory and regulatory scheme. Thus, Defendants assert that
this matter would best be handled via the relief available to
Plaintiff under Illinois' regulatory, administrative, and
statutory law. Finally, Defendants assert that abstention is
appropriate because Illinois has an interest in developing a
coherent environmental policy which may be hindered if the Court
does not abstain.
Plaintiff argues that neither Illinois' environmental
regulatory scheme nor its permit process are at issue in the
instant case. Thus, no complex issue of state law is involved,
and the Court should not abstain based upon Burford. Plaintiff
states that if the Court abstains, it will be left without
meaningful relief because Counts I & II are brought pursuant to
the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972,
which is exclusively a federal claim. Accordingly,
Plaintiff argues that the Court should not abstain from
considering Counts I & II of the Complaint based upon Burford.
Abstention is a judicially created exception to the general
grant of jurisdiction found in Article III of the U.S.
Constitution. Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61
S.Ct. 643, 85 L.Ed. 971 (1941). The doctrine of abstention allows
a federal court to decline or to stay the exercise of its
jurisdiction to give a state court the opportunity to decide an
issue. Colorado River Water Conservation Dist. v. United States,
424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). However,
abstention by a federal court should be the exception and not the
rule. Id. at 813, 96 S.Ct. at 1244; Coalition for Health Concern
v. LWD, Inc., 60 F.3d 1188, 1193 (6th Cir. 1995). Abstention is
justified only where the "order to the parties to repair to the
state court would clearly serve ...