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MUNIZ v. REXNORD CORPORATION

ANN MUNIZ and ED MUNIZ, JOSEPH SHROKA and DIANE SHROKA, individually and on behalf of all others similarly situated, Plaintiffs,
v.
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 II.

LEGAL STANDARD

  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.

  BACKGROUND

  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.

  ANALYSIS

  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 ...


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