Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 01 C 6353--George W. Lindberg, Judge.
Before Flaum, Chief Judge, and Diane P. Wood and
Williams, Circuit Judges.
The opinion of the court was delivered by: Diane P. Wood, Circuit Judge
Defendant Exxon Mobil Corporation (Exxon) owns a gas station in Calumet City, Illinois, that released petroleum from an underground storage tank. Exxon reported the spill to plaintiff Albany Bank & Trust Company (Albany), owner of an adjacent property, and requested access to Albany's property for the purpose of investigating whether petroleum had seeped onto that land as well. Albany refused. Instead, it sued Exxon and its board of directors alleging various violations of state and federal law. The district court dismissed the complaint on the ground that Exxon had no duty under federal law to remediate pollution on Albany's property prior to investigation and that Exxon was prevented from investigating by Albany itself. We reverse and remand for further proceedings. *fn1
There is little more to the facts than what we have already stated. On July 8, 1999, Exxon reported a petroleum release at its Calumet City facility to the Illinois Environmental Protection Agency (IEPA). In December 2000, Exxon's agent, Handex Environmental (Handex), requested access to investigate petroleum releases that might have migrated onto Albany's property. Albany, through its attorney, responded with a request that Exxon enter into an access agreement under which it would make a commitment to remove any contamination discovered on the property as a result of the release and to reimburse all of Albany's expenses in obtaining remediation, including attorneys' fees. Exxon was willing to agree to warrant its investigative work, but it refused to sign the broad agreement Albany had demanded. The parties negotiated for several months, but they never reached agreement on access for Exxon or Handex.
Albany instead conducted its own investigation, discovering high levels of MTBE and benzene in the property's soil and groundwater. Believing the contamination migrated from the gas station, it initiated this action under the citizen suit provision of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972, and added claims under Illinois statutory and common law. On the RCRA claim, Albany sought both an injunction compelling Exxon to undertake immediate remediation of all contamination on the property and payment of all attorneys' fees and costs Albany had incurred in the investigation. The district court dismissed the complaint.
We review a decision granting a motion to dismiss for failure to state a claim de novo, accepting all well-pleaded factual allegations as true and drawing all reasonable inferences in favor of the plaintiff. Vorhees v. Naper Aero Club, Inc., 272 F.3d 398, 401 (7th Cir. 2001). Generally, matters outside the pleadings may not be considered on such a motion. See FED. R. CIV. P. 12(b). However, this court has permitted district courts to examine "[d]ocuments that a defendant attaches to a motion to dismiss . . . if they are referred to in the plaintiff's complaint and are central to her claim." Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993); see also Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002). Relying on this authority, Exxon claims that we should consider the proposed access agreements and other correspondence it exchanged with Albany in reviewing the district court's ruling.
We reject Exxon's argument. In the first place, although cases like Tierney make it clear that documents attached to a complaint are part of it for all purposes, and suggest further that concededly authentic documents referred to in a complaint that are central to a claim may also be consulted on a motion under Rule 12(b)(6), the converse is also true: documents that are neither included in the plaintiff's complaint nor central to the claim should not be considered on a motion to dismiss. Berthold Types Ltd. v. Adobe Sys. Inc., 242 F.3d 772, 775 (7th Cir. 2001). In any event, the district court did not rely in its ruling on any of the extra materials to which Exxon now points, and so it would be inappropriate for us to take them into account for the first time on appeal. In fact, even if one were to take a more liberal approach to materials outside the complaint than the one taken in Berthold Types, these documents could still not be considered, because they were neither attached to a pleading nor even to Exxon's motion to dismiss. Instead, Exxon introduced them in connection with a related motion to disqualify Albany's counsel. For these reasons, we will consider only the complaint in resolving this dispute.
Both Albany and Exxon contend that this is a simple case, albeit for entirely different reasons. Albany rests on the fact that its complaint alleges every element of a prima facie RCRA case, which means, in its opinion, that it was error to dismiss it as a matter of pleading. RCRA is a comprehensive statute governing the treatment, storage and disposal of hazardous waste. City of Chicago v. Environmental Defense Fund, 511 U.S. 328, 331 (1994). Its primary purpose is to limit the harmful effects of hazardous waste "to minimize the present and future threat to human health and the environment." 42 U.S.C. § 6902(b). A citizen is empowered under RCRA to bring suit "against any person, including . . . any past or present generator . . . who has contributed or who is contributing to the past or present handling . . . of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." Id. § 6972(a)(1)(B).
To make out a prima facie claim under RCRA, a plaintiff must allege (1) that the defendant has generated solid or hazardous waste, (2) that the defendant is contributing to or has contributed to the handling of this waste, and (3) that this waste may present an imminent and substantial danger to health or the environment. Cox v. City of Dallas, 256 F.3d 281, 292 (5th Cir. 2001). Imminence does not require an existing harm, only an ongoing threat of future harm. Id. at 299. Albany's complaint makes each of these allegations. Its property is contaminated with petroleum waste at levels that substantially ...