United States District Court, N.D. Illinois
Long, et al.
KZF Development, et al
For Sheryl Long, Robert Long, Plaintiffs: David S. Silverman, LEAD ATTORNEY, Ellen Kornichuk Emery, Lucy B. Bednarek, Brent O. Denzin, Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., Chicago, IL.
For Kogen-Zivin-Friedman Development, Inc. d/b/a KZF Development, Defendant: Deborah Eileen Jennings, LEAD ATTORNEY, PRO HAC VICE, Dla Piper Llp, Washington, DC; Joseph Anton Roselius, DLA Piper U.S. LLP, Chicago, IL; Mitchell B. Ruchim, Mitchell E. Ruchim & Associates, P.C., Northbrook, IL.
For Dundee Partners, LLC, Defendant: Joseph Anton Roselius, DLA Piper U.S. LLP, Chicago, IL; Mitchell B. Ruchim, Mitchell E. Ruchim & Associates, P.C., Northbrook, IL.
Robert M. Dow, Jr.
In May 2011, KZF Development (KZF) and/or Dundee Partners (Dundee) removed approximately 180 trees from a 6.8 acre residential parcel in Northbrook, Illinois (the Site). Plaintiffs Robert and Sheryl Long allege that the tree removal causes flooding, which has, among other things, damaged their home. On June 15, 2012, Plaintiffs filed this lawsuit alleging violations of the Clean Water Act, 33 U.S.C. § 1365 (Count I), as well as nuisance, trespass, and negligence under Illinois law (Counts II -- IV).
Count I is brought under the " citizen suit" provision of the Clean Water Act. At least 60 days before filing their Clean Water Act citizen suit, Plaintiffs were required to give notice of the alleged violation to (1) the EPA, (2) the state in which the alleged violation occurs, and (3) the
alleged violator. 33 U.S.C. § 1365(b)(1) (" [n]o action may be commenced" without notice to the EPA, the state, and the alleged violator); see also, e.g., Hallstrom v. Tillamook County, 493 U.S. 20, 31, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989) (holding that an identical notice requirement in Resource Conservation and Recovery Act was a mandatory precondition to suit); Friends of the Earth, Inc. v. Gaston Copper Recycling Corp, 629 F.3d 387, 399-400 (4th Cir. 2011) (holding that adequate notice is a mandatory precondition of a Clean Water Act citizen suit). Moreover, Plaintiff may only allege ongoing violations in a citizen suit, and the Court must dismiss the suit if it alleges " wholly past violations." See, e.g., Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 64, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987).
In the motion before the Court, Defendants argue that Count I must be dismissed because Plaintiffs did not provide proper 60-day notice -- they gave notice to KZF, not Dundee, which owns the Site -- and even if the proper parties were given notice, the notice letter alleged nothing more than that Defendants lacked required permits, a problem that was cured before Plaintiffs had a right to sue and, in any event, long before Plaintiffs filed this lawsuit. Thus, Defendants argue, Plaintiffs' only properly-noticed claims are " wholly past" and therefore, regardless of who was given notice, Count I must be dismissed and with it the entire complaint because Count I is the basis for federal jurisdiction.
On January 16, 2012, Plaintiffs sent the EPA, the Illinois Environmental Protection Agency (IEPA), and KZF a " 60-Day Notice of Intent to Sue for Violations of the Clean Water Act" (Notice). The Notice, which is attached to Plaintiff's complaint, states that the Longs' own property is " within approximately 50 yards from [" the Site" ] owned by KZF Development." The Notice continued:
KZF Development is the owner of the Site and is, therefore, responsible and liable for all land disturbing construction activities on the Site. See 33 U.S.C. § 1365(a)(1); 33 U.S.C. § 1362(5). Additionally, KZF Development is the lead operator of the land disturbing activities outlined in this notice letter and, thus, is also liable for all Clean Water Act violations associated with such activities as an " operator." Id.
The Notice went on to describe two alleged violations of the Clean Water Act. First, " [s]ince at least May 11, 2011, KZF Development has engaged in land disturbing activities on the Site * * *, without [National Pollutant Discharge Elimination System (NPDES)] permit approval and authorization." Without that required permit, the Notice continued, " every day stormwater is discharged from the Site is a separate Clean Water Act violation." Second, " [o]n or around May 11, 2011 KZF Development commenced land disturbing construction activities, and continues to engage in such activities, without implementing and adhering to a Stormwater Pollution Prevention Plan (SWPPP). * * * According to the [IEPA] records, KZF Development has not submitted, and IEPA has not approved, a SWPPP for KZF Development's land disturbing construction activities on the Site. * * * Under federal law, every day that stormwater is discharged from a regulated construction site, without adhering to and complying with an authorized SWPPP, is a separate Clean Water Act violation." The Notice concluded that " should the above violations continued at the end of the 60-day notice period, the Longs intend to file suit against you for all past and ongoing violations of the Clean Water Act."
Instead of issuing separate NPDES permits, the IEPA has issued a " General Permit" that contains the requirements applicable to all covered stormwater discharges. See www.epa.state.il.us/water/permits/storm-water/construction.html. A developer can avail itself of the authorization provided by the General Permit by submitting a Notice of Intent (NOI) to the IEPA that contains all required information.
On February 7, 2012, Dundee filed an NOI and Incidence of Noncompliance with IEPA requesting coverage under the General Permit and indicating that it should have filed earlier notice that Dundee would be replacing Mega Development (the previous developer) on the project. Dundee also advised the IEPA that it would be using the same development plan and SWPPP that the previous developer had been using, and it attached that SWPPP to ...