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 ...