United States District Court, N.D. Illinois, Eastern Division
ANN MUNIZ and ED MUNIZ, JOSEPH SHROKA and DIANE SHROKA, individually and on behalf of all others similarly situated, Plaintiffs,
REXNORD CORPORATION; AMES SUPPLY CO.; THE MONEY CORPORATION; SCOT INCORPORATED; LINDY MANUFACTURING CO.; PRECISION BRAND PRODUCTS, INC.; TRICON INDUSTRIES, INC.; and MAGNETROL INTERNATIONAL, INC., Defendants.
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs filed a multi-count class action suit against
Defendants, alleging Defendants contaminated drinking water with
cancer-causing pollutants by dumping such contaminants in the
water supply. Presently before the Court are the Joint Motion to
Dismiss Count II (RCRA) and to Strike and Dismiss Certain Claims
and Alternative Joint Motion to Strike Class Allegations in Count
In reviewing a motion to dismiss, the court reviews all facts
alleged in the complaint and any reasonable inferences drawn
therefrom in the light most favorable to the plaintiff. See
Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326
(7th Cir. 2000) (Marshall-Mosby). A plaintiff is not required
to plead the facts or the elements of a claim, with the
exceptions found in Federal Rule of Civil Procedure 9. See
Swierkiewicz v. Sorema, 534 U.S. 506, 511 (2002); Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002). A
filing under Federal Rules of Civil Procedure need not contain
all the facts that will be necessary to prevail. It should be
"short and plain," and it suffices if it notifies the defendant
of the principal events. Hoskins v. Poelstra, 320 F.3d 761, 764
(7th Cir. 2003). Dismissal is warranted only if "it appears
beyond a doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46 (1957). The simplified notice
pleading relies upon liberal discovery and summary judgment
motions to define disputed issues and facts and to dispose of
unmeritorious claims. Swierkiewicz, 534 U.S. at 513.
A reading of the Class Action Complaint supports the following
summary of the alleged operative conduct of the parties.
Plaintiffs reside in unincorporated DuPage County, Illinois.
Defendants are Illinois corporations who occupied, operated, and
controlled property within the Ellsworth Industrial Park.
Defendants used chlorinated solvents and other hazardous solvents
over several years, which have spilled into the soil and
groundwater. The hazardous substances from each of the
Defendants' properties have commingled and migrated, and continue
to migrate, in liquid and vapor form, in a groundwater plume
running from Defendants' properties toward and into Plaintiffs'
properties, contaminating, infiltrating and threatening the soil,
groundwater, domestic water supply and indoor air quality of the
homes in the area. Plaintiffs and other class members have been
exposed for many years to potentially dangerous levels of these
chemicals through ingestion, dermal exposure, and inhalation. Beginning in 2001, the Illinois Environmental Protection Agency
("IEPA") formed a groundwater investigation near Downers Grove,
Illinois. The investigation consisted of three rounds of
residential well sampling in the area. Approximately 495 private
drinking wells were sampled and analyzed for volatile organic
compounds. Sample results of more than 84 percent of the
properties revealed elevated levels of certain volatile organic
compounds. Based on the results, the United States Environmental
Protection Agency ("USEPA") classified the Ellsworth Industrial
Park, including each of the Defendants' properties, and the
groundwater contamination running from the Defendants' properties
onto Plaintiffs' properties, as a Superfund site.
Due to the test results, the Illinois Department of Health
advised the Plaintiffs to cease using their wells for drinking
water or other purposes. Plaintiffs were warned to use an
alternative water source or install a water treatment unit
designed to remove volatile organic compounds. Additionally, in
2003, in response to the contamination, the DuPage County Board,
citing its obligation to protect the health of its residents,
declared all homes in the class area to be connected to a public
water supply and enacted legislation requiring all private
groundwater wells in the class area abandoned and sealed.
As a result of the contamination, the properties in the class
area have been substantially decreased and impaired. The release
of the volatile organic compounds has also threatened the
Plaintiffs' health, including an increased cancer rate.
Furthermore, the Plaintiffs have expended time and money to
respond to the releases.
Plaintiffs, on their own behalf and on behalf of the Class,
bring nine counts against the Defendants. Count I seeks response
costs pursuant to the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended ("CERCLA").
Count II seeks relief under the Resource Conservation and Recovery Act ("RCRA"). Count III
alleges a nuisance, and Count IV alleges trespass. Count V
alleges a claim for strict liability of an ultrahazardous
activity. Count VI alleges a claim of res ipsa loquitur. Count
VII alleges a claim of negligence, and Count VIII alleges a claim
of negligence based on statutory violations. Lastly, Count IX
alleges a claim of willful and wanton misconduct.
Defendants first argue that Plaintiffs' RCRA claim is barred
because an Administrative Order on Consent has been entered into
by the USEPA and all Defendants.
RCRA contains a provision, 42 U.S.C. § 6972, which permits
private citizen suits to enforce the RCRA's provisions. However,
to assure that the USEPA Administrator remains the primary
enforcement authority under RCRA and that polluters are not
subject to duplicative litigation, the RCRA provides several bars
to private causes of action. See 42 U.S.C. § 6972(b); Organic
Chemicals Ste PRP Group v. Total Petroleum, Inc.,
6 F. Supp.2d 660, 664 (W.D. Ohio 1998) (Organic); McGregor v. Industrial
Excess Landfill, Inc., 709 F.Supp. 1401, 1407 (N.D. Ohio 1987).
Section 6972(b)(2)(B)(iv) provides that a private cause of
action can be commenced if the Administrator has obtained a court
order, including a consent decree, or has issued an
administrative order under Section 106 of CERCLA, to which a
responsible party is diligently conducting a removal action,
remedial investigation and feasability study ("RI/FS"), or
proceeding with a remedial action. 42 U.S.C. § 6972(b)(2)(B)(iv).
However, such private causes of action are prohibited pursuant to
this clause "only as to the scope and duration of the
administrative order referred to in clause (iv)."
42 U.S.C. § 6972(b)(2)(B)(iv). The parties concede that an order on consent ("AOC") relating
to the Ellsworth Industrial Park has been entered. Plaintiffs
argue that they seek relief beyond the scope of the AOC.
Specifically, Plaintiffs contend that their RCRA claim seeks
monies for service fees and monthly water bills and to compel
Defendants to abate airborne contamination caused by the
contaminated groundwater and that such relief is not included in
the scope of the AOC.
The AOC, of which the Court may take judicial notice,*fn1
includes funding of the connection of the Plaintiffs to a
non-contaminated water supply. The AOC does not address possible
airborne contamination from the contaminated groundwater. At the
time the AOC was issued, the Defendants entered into an Agreement
in Principle ("AIP") regarding remedial investigation. Defendants
cite to the USEPA's comments to residents' concerns over the
proposed settlement between the alleged contaminators and the
other interested entities, including the USEPA, the IEPA, and
DuPage County, in which the USEPA states that airborne
contamination will be addressed in a later stage of the Superfund
process. While the USEPA's comments indicate that airborne
contamination will be addressed, the AOC does not address this
issue. Accordingly, 42 U.S.C. § 6972(b)(2)(B)(iv) does not bar
Plaintiffs' RCRA claim. See Organic, 58 F.Supp.2d at 764-65
(RCRA claim could proceed because it addressed both groundwater
and soil contamination while the Administrative Order only
addressed groundwater contamination); A-C Reorganization Trust
v. E.I. DuPont De Nemours & Co., 968 F.Supp. 423, 430-31 (E.D.
Wis. 1997) (finding plaintiff's claims not barred by Consent
Order because there existed at least two possible ways the RCRA
claims went beyond the Consent Order). Defendants also argue that Plaintiffs' RCRA claim is barred
pursuant to Section 6972(b)(2)(B)(iii) of the RCRA.
The RCRA also prohibits private citizen suits brought under
42 U.S.C. § 6972(b)(2)(B) where the USEPA has incurred costs to
initiate a RI/FS under Section 104 of CERCLA and is diligently
proceeding with a remedial action under CERCLA.
42 U.S.C. § 6972(b)(2)(B)(iii).
It is undisputed that the USEPA and IEPA have incurred
substantial costs for sampling and analysis of various parcels of
land in and around Ellsworth Industrial Park. This data that is
being collected is to be used by both the USEPA and IEPA in the
RI/FS undertaken as part of the AIP process. Plaintiffs cite to
language in the AIP that they consider "speculative" as to the
USEPA's future activities and that it has not yet been
established that the USEPA has incurred costs to initiate a
RI/FS. However, the AIP clearly states that the USEPA will pay
for the sampling of the site in preparation of the RI/FS. The
collection and analysis of the site is required to draft the
actual RI/FS. As such, the payment for the collection and
analysis of the site constitutes paying costs to initiate the
RI/FS. Furthermore, the USEPA's activities, including the AOC,
the AIP, and the payment for the costs of sampling the site in
preparation for the RI/FS, demonstrate diligently proceeding with
a remedial action to address the contaminated site. "To permit a
private suit to go forward under RCRA when the state has already
acted would contradict the Congressional intent of avoiding
duplication of efforts." McGregor v. Industrial Excess Landfill,
Inc., 709 F.Supp. 1401, 1408 (N.D. Ohio 1987) (payment of funds
for sampling and analysis of groundwater and soil prohibited
private citizen suit under 42 U.S.C. § 6972(b)(2)(B)(iii)). Based on the above, Count II of Plaintiffs' Complaint is
dismissed. Furthermore, in light of the dismissal of Count II,
Defendants' Alternative Joint Motion to Strike Class Allegations
in Count II is denied as moot.
Defendants also seek dismissal of Plaintiffs' personal injury
claims, arguing that such claims are barred by the statute of
limitations. Defendants argue that Illinois's discovery rule
controls the operation of the statute of limitations for
Plaintiffs' personal injury claims and that such claims are
barred by the applicable two-year statute of limitations.
Plaintiffs argue that the continuing tort doctrine controls the
operation of the statute of limitations and that their claims are
not time-barred. Plaintiffs also argue that if the discovery rule
is applicable to their claims, such claims are not barred.
The running of the statute of limitations is generally a
question of fact. However, the running of the statute of
limitations can be decided by the court as a question of law when
the existence of the bar is clear from the pleadings. See Clay
v. Kuhl, 189 Ill. 2d 603, 609-10 (2000) (Clay).
Under the discovery rule, a cause of action accrues when the
party knows or reasonably should have known of an injury and that
the injury was wrongfully caused. See Knox College v. Celotex
Corp., 88 Ill. 2d 407, 415 (1982) (Knox). "Wrongfully caused"
does not mean that a plaintiff must have knowledge of the
defendant's negligent conduct before the statute of limitations
is triggered. See Knox, 88 Ill. 2d at 415. Instead, "[a]t some
point the injured person becomes possessed of sufficient
information concerning his injury and its cause to put a
reasonable person on inquiry to determine whether actionable
conduct is involved. At that point . . . the running of the
limitations period commences." Knox, 88 Ill. 2d at 416.
When a tort involves continuing or repeated conduct, the
limitation period does not begin to run until the date of the
last injury or when the tortious conduct ceased. See Johnson v.
Tipton, 103 Ill. App. 3d 291, 300 (1982). A continuing tort "is occasioned by
continuing unlawful acts and conduct." Hyon Waste Mgmt. Serv.,
Inc. v. City of Chicago, 214 Ill. App. 3d 757, 763 (1991)
(Hyon). The continuing tort rule is generally applied to
nuisance and trespass cases. See, e.g., Meyers v. Kissner,
149 Ill. 2d 1 (1992) (uninterrupted flooding of downstream landowner
by upstream landowner). However, a continuing tort is
distinguished from a continuing injury, or "continuing ill
effects from an initial violation." Hyon, 214 Ill. App. 3d at 763.
In the case of a continuing injury, a plaintiff's cause of
action accrues when the effects of the injury first become known
to the property owner, notwithstanding the fact that these
effects are continuing. See Powell v. City of Danville,
253 Ill. App. 3d 667, 669 (1993).
Plaintiffs allege that the Defendants dumped, spilled or
otherwise released chlorinated compounds into the soil and
groundwater in the Ellsworth Industrial Park, resulting in
injuries to the Plaintiffs. This alleged conduct constitutes the
alleged tortious activities by the Defendants. The Complaint does
not indicate when, or if, the alleged tortious conduct ceased.
Accordingly, the Court cannot determine as a matter of law when
the tortious activities ceased and if the continuing tort theory
is applicable. Nor can it be determined when Plaintiffs had
knowledge of the Defendants' alleged conduct for applying the
discovery rule. Accordingly, a question of fact remains; and
Defendants' motion as to this issue must be denied. CONCLUSION
For the foregoing reasons, Defendants' Joint Motion to Dismiss
Count II and to Strike and Dismiss Certain Claims is granted as
to dismissing Count II and denied as to the remaining counts.
Defendants' Alternative Joint Motion to Strike Class Allegations
in Count II is denied as moot.