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Voss v. Waste Management of Illinois

May 4, 2006

GENE E. VOSS, GARY W. VOSS, CATHERINE A. MOLENAUR, AND CHRIS A. MOLENAUR, PLAINTIFFS,
v.
WASTE MANAGEMENT OF ILLINOIS, INC., MORTON INTERNATIONAL, INC. HONEYWELL, INC., EXXON MOBIL CORPORATION, H.B. FULLER COMPANY, BFI WASTE SYSTEMS OF NORTH AMERICA, INC INDIVIDUALLY AND D/B/A BROWNING FERRIS INDUSTRIES, MAIL-WELL ENVELOPE COMPANY, WEBER FOREIGN MANUFACTURING, INC. F/K/A INK SPECIALTIES COMPANY, INC., AND WELLS MANUFACTURING COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

Plaintiffs Gene and Gary Voss (the "Vosses") and Catherine and Chris Molenaur (the "Molenaurs") filed a five-count second amended complaint against defendants Waste Management of Illinois, Inc. ("Waste Management"), Morton International, Inc. ("Morton"), Honeywell, Inc. ("Honeywell"), Exxon Mobil Corporation ("Exxon"), H.B. Fuller Company ("H.B. Fuller"), BFI Waste Systems of North America (individually and doing business as Browning Ferris Industries), Mail-Well Envelope Company, Weber Foreign Manufacturing, Inc. (formerly known as Ink Specialties Company, Inc.) ("Weber") and Wells Manufacturing Company. The Court previously dismissed plaintiffs' first amended complaint but granted plaintiffs leave to amend. In Count I of the second amended complaint, plaintiffs assert a claim under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). In Counts II through V, plaintiffs assert state law claims, including claims for negligence, negligence per se, private nuisance and trespass.

Before the Court are three motions to dismiss plaintiffs' second amended complaint and one motion to adopt. Defendant BFI Waste Systems of North America filed the first motion to dismiss. Defendant H.B. Fuller filed the second motion to dismiss. Defendants Waste Management, Morton, Honeywell, Exxon, H.B. Fuller, Mail-Well Envelope Company and Weber Foreign Manufacturing, Inc. (the "moving defendants") filed the third motion to dismiss. In addition, defendant Wells Manufacturing Company has moved the Court to adopt the third motion to dismiss. The Court grants Wells Manufacturing Company's motion (#171) to adopt. For the reasons set forth below, the Court grants in part and denies in part defendant BFI Waste System's motion (#161) to dismiss. The Court denies defendant H.B. Fuller's motion (#165) to dismiss. The Court denies the moving defendants' motion (#166) to dismiss.

I. Background

The Court has previously outlined the facts relevant to defendants' motions and will reiterate only a few here. The gist of plaintiffs' second amended complaint is that defendants operated the Wauconda Sand & Gravel Pit (the "Landfill"), which is located in Wauconda, Illinois. Originally a sand and gravel pit, the landfill was later filled with industrial waste without a clay or other liner. The plaintiffs allege that vinyl chloride was dumped in the landfill and remains there, contaminating both the aquifers and the water table in Wauconda, Illinois, where plaintiffs reside.

II. Standard on a Motion to Dismiss

The Court may dismiss a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure if the plaintiff fails "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss, the Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the plaintiff's favor. McCullah v. Gadert, 344 F.3d 655, 657 (7th Cir. 2003). On a motion to dismiss, the "issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Cole v. U.S. Capital, Inc., 389 F.3d 719, 724 (7th Cir. 2004) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). As the Seventh Circuit recently admonished:

Plaintiffs need not plead facts; they need not plead law; they plead claims for relief. Usually they need do no more than narrate a grievance simply and directly, so that the defendant knows what he has been accused of. . . . Any district judge (for that matter, any defendant) tempted to write "this complaint is deficient because it does not contain . . ." should stop and think: What rule of law requires a complaint to contain that allegation.

Doe v. Smith, 429 F.3d 706, 708 (7th Cir. 2005).

In considering a motion to dismiss, a court may not consider matters outside the pleadings without converting the motion to a motion for summary judgment. See Fed.R.Civ.P. 12(b). The pleadings include documents attached to the complaint. See Fed.R.Civ.P. 10(c).

III. Discussion

A. Plaintiffs' CERCLA Claim

CERCLA (sometimes called the Superfund law) "requires that sites contaminated by toxic wastes be cleaned up by or at the expense of the persons responsible for the contamination." Employers Ins. of Wausau v. Browner, 52 F.3d 656, 660 (7th Cir. 1995). CERCLA "grants the President broad power to command government agencies and private parties to clean up hazardous waste sites." United States v. Bestfoods, 524 U.S. 51, 55 (1998) (quoting Key Tronic Corp. v. United States, 511 U.S. 809, 814 (1994)). CERCLA also encourages private citizens to "assume the financial responsibility of cleanup by allowing them to seek recovery" from responsible parties. T&B Limited, Inc. v. City of Chi., 369 F. Supp.2d 989, 994 (N.D. Ill. 2005) (citing Young v. United States, 394 F.3d 858, 862 (10th Cir. 2005)).

In Count I, plaintiffs seek to recover response costs under CERCLA § 107(a), 42 U.S.C. § 9607(a). That section makes liable certain parties for "necessary costs of response incurred by any other person consistent with the national contingency plan[.]" See 42 U.S.C. § 9607(a)(4)(B). In this way, private individuals are incentivized to incur response costs because ...


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