The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
The village of Riverdale, an Illinois municipal corporation ("Riverdale"), is suing no less than fourteen different corporations and trustees, some of whom operated industrial businesses on, all of whom own or owned properties in a 57 acre area (the "Location") of Riverdale, Illinois. Riverdale alleges that these defendants disposed of contaminants over the course of several years or are currently releasing contaminants onto the surface and the ground underneath the Location. It is suing the defendants on three separate counts. Count I alleges each of the defendants violated the Resource Conservation and Recovery Act (the "RCRA"), codified at 42 U.S.C. §6901 et seq. (2006) and seeks declaratory and injunctive relief, civil fines and penalties. Count II alleges each of the defendants' actions also violated Article I, Chapter 5.01, Section 5.02.100 of the Riverdale Code of Ordinances (the "Ordinace") and seeks injunctive relief and the imposition of civil penalties. Count III alleges each of the defendants' actions were acts of public nuisance and seeks compensatory damages in excess of $75,000.
Now before the Court are motions to dismiss by the following defendants (collectively "Defendants"): First National Bank of Blue Island, as Trustee under Trust No. 88133 and Trust No. 83097, Circus Auto Parts Inc., A.B.C. Auto Parts & Sales, Inc., and Great Lakes Trust Company, as Trustee under Trust No. 01064 moving jointly for dismissal; Metal Management Midwest, Inc.; 138th Street Joint Venture, Fritz Enterprises, Inc., and Greatbanc Trust Company as Trustee under Trust No. 5375 and as successor in interest to First National Bank in Chicago Heights as Trustee under Trust No. 5375 moving jointly for dismissal; Huron Valley Steel Corporation; Handschy Industries, LLC and Riverdale Industries, LLC. The alleged grounds for the motions are as follow: First, Riverdale lacks standing to pursue this action in federal court, therefore there is no subject-matter jurisdiction. Second, pursuant to Federal Rule of Civil Procedure 12(b)(6), the complaint fails to state a claim upon which relief can be granted and should be dismissed. Third, Riverdale's request for civil penalties under RCRA is barred by a statute of limitations provided by 28 U.S.C. § 2462. Finally, the defendants also request that should the Court dismiss Count I, the only claim containing a federal question, the Court should dismiss Counts II and III. On June 12, 2007, this Court denied the motions to dismiss on the grounds that the complaint failed to state a claim upon which relief can be granted. Defendants First National Bank of Blue Island, Circus Auto Parts Inc., A.B.C. Auto Parts & Sales, Inc., and Great Lakes Trust Company jointly request that this Court reconsider its denial of the 12(b)(6) motions.
For the reasons set forth below, Defendants' motion to reconsider is DENIED. Defendants' motions to dismiss are DENIED partially and GRANTED partially.
I. FACTUAL BACKGROUND*fn1
The Location sits on 57 acres of land in Riverdale, Illinois. Beginning as long ago as 1924, solid waste has been generated and disposed of on the Location by various polluters, their successors and assigns. Solid waste has been disposed of both on the Location's surface and in the ground underneath. The solid waste contains leachate, a substance made up of a host of toxic materials, which is contaminating and will continue to contaminate the land, surface water and groundwater at the Location. Sometime in the 1970s, the leachate broke through the ground of the various sites at the Location and discharged into the Calumet River.
In 1960, one or more of the Defendants has operated or currently operates auto salvaging businesses and have deposited additional solid waste made up of such pollutants as oil, PCBs and heavy metals on the Location. One or more of the Defendants operates a metal cleaning business and has deposited additional solid waste made up of tetrachloroethene and other chlorinated solvents on the Location. One or more of the Defendants operates filling businesses and has deposited additional solid waste in underground storage tanks on the Location containing several different chemicals and petroleum products. One or more of the Defendants has disposed of solid waste containing pentachlorophenol on the Location. Lastly, one or more of the Defendants has disposed of solid waste consisting of human fecal matter on the Location. The activities of the Defendants have released solid wastes into the air and ground at the Location, such release presenting an imminent and substantial endangerment to health or the environment on or about the Location.
Each of First National Bank of Blue Island, as Trustee under Trust No. 88133 and Trust No. 83097; Circus Auto Parts Inc.; A.B.C. Auto Parts & Sales, Inc.; Great Lakes Trust Company; Metal Management Midwest, Inc.; 138th Street Joint Venture; Fritz Enterprises, Inc.; Greatbanc Trust Company; Huron Valley Steel Corporation; Handschy Industries, LLC and Riverdale Industries, LLC owns or has owned industrial businesses that have generated, transported and/or disposed of solid wastes at the Location or owns or has owned property at the Location upon which such activities have occurred.
On November 4, 2003, Riverdale sent a Notice to Sue to each of the Defendants (as well as others not named in this suit or otherwise dismissed by Riverdale) informing them of their right to sue under the RCRA and their intent to do so. Riverdale explained in the notice that it wished to redevelop the Location without incurring an exorbitant amount of costs for decontamination. It also explained that the waste disposal is suspected to have began in 1924 and continued throughout the early 1970s. On April 3, 2006, Riverdale sent a second Notice to Sue to each of the Defendants.
In reviewing a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the district court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in favor of the plaintiff. See Transit Exp. Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001). On a 12(b)(1) motion, the plaintiff bears the burden of establishing that the jurisdictional requirements have been met. Kontos v. Dep't of Labor, 826 F.2d 573, 576 (7th Cir. 1987). Thus, when a party moves for dismissal under Rule 12(b)(1), the nonmoving party must provide competent proof of jurisdictional facts to support its allegations. Thomason v. Gaskill, 315 U.S. 442, 446 (1942); Kontos, 826 F.2d at 576. However, the degree of proof grows concomitantly with the stage of the litigation, with general allegations of injury usually sufficient to demonstrate standing at the pleading stage. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
A. Constitutional Standing
Defendants attack this Court's jurisdiction over this action by claiming Riverdale does not have constitutional standing to sue them in federal court. Under Article III of the United States Constitution, to establish standing a plaintiff must first have suffered an actual injury or be subject to an imminent injury. Lujan, 504 U.S. at 561 (1992). Second, that injury must be fairly traceable to the defendant's actions. Id. Lastly, a favorable decision rendered by the court must likely redress the plaintiff's injury. Id. Determining Article III standing is the same as determining "whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498 (1975). Thus, standing is a question of justiciability, which a court must have to hear a matter. All of the Defendants challenge Riverdale's standing to bring this action under RCRA on the grounds that Riverdale has not ...