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February 6, 1997


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.


A. Counts I-III

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 regulatory law.

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

B. Counts IV-VI

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.

A. Abstention

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 ...

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