United States District Court, N.D. Illinois, Eastern Division
CITY OF EVANSTON, an Illinois municipal corporation, Plaintiff,
TEXACO, INC, a Delaware corporation, CHEVRON CORPORATION, a Delaware corporation, CHEVRON ENVIRONMENTAL MANAGEMENT COMPANY, a California corporation, and E-TOWN COMMUNITY VENUTRES, LLC, an Illinois limited liability company, Defendants
[Copyrighted Material Omitted]
For City Of Evanston, an Illinois municipal corporation, Plaintiff: Michael S. Blazer, LEAD ATTORNEY, Jeep & Blazer, L.L.C., Hillside, IL; Jeffery Donald Jeep, Jeff Diver Group, Wheaton, IL; Thomas S Yu, Rotec Industries, Inc., Hampshire, IL.
For E-Town Community Ventures, LLC, an Ilinois limited liability company, Defendant: William Joseph Anaya, LEAD ATTORNEY, Matthew E Cohn, Arnstein & Lehr, LLP, Chicago, IL.
MEMORANDUM OPINION AND ORDER
Feinerman, United States District Judge.
The City of Evanston, Illinois, filed this suit initially against Chevron U.S.A. Inc. and E-Town Community Ventures, alleging that they are responsible for contamination on and around a property in Evanston formerly occupied by a gasoline service station. Doc. 1. After questions were raised as to whether Chevron U.S.A. was a proper defendant, Evanston filed an amended complaint that kept E-Town as a defendant, dropped Chevron U.S.A. as a defendant, and added Chevron Corporation, Texaco, Inc., and Chevron Environmental Management Company (" Chevron EMC" ) as defendants. Doc. 24. The three new defendants--which are affiliated and represented by the same lawyers, and which have filed joint pleadings--will be referred to collectively as " Chevron" unless the context requires otherwise. Count I of the amended complaint is a citizens suit under 42 U.S.C. § 6972(a) that seeks declaratory, injunctive, and other ancillary relief against Chevron for alleged violations of the Resource Conservation and Recovery Act (" RCRA" ), 42 U.S.C. § 6901 et seq. Doc. 24 at pp. 8-10. Counts II- IV allege claims against Chevron and E-Town under the Illinois common law of trespass and private nuisance and the Evanston Hazardous Substances Ordinance. Doc. 24 at pp. 11-14.
Chevron has moved to dismiss Counts I-IV under Federal Rule of Civil Procedure 12(b)(6). Doc. 29. E-Town has joined Chevron's motion with respect to Counts II-IV. Docs. 32, 35. The motion is denied in its entirety.
In considering the motion to dismiss, the court assumes the truth of the amended complaint's factual allegations, though not its legal conclusions. See Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012). The court must also consider " documents attached to the [amended] complaint, documents
that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice," along with additional facts set forth in Evanston's brief opposing dismissal, so long as those facts " are consistent with the pleadings." Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). The following facts are set forth as favorably to Evanston as those materials allow. See Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012).
From 1925 to the late 1990s, a gasoline and auto repair service station, most recently operated by Texaco, occupied the northeast corner of the intersection of Church Street and Darrow Street in Evanston (the " Texaco Station" ). Doc. 24 at ¶ ¶ 2, 24-25. Texaco used underground storage tanks (" USTs" ), " gasoline dispenser islands," and piping under the station, as well as an " auto lift and grease pit." Id. at ¶ ¶ 25-26. In the 1960s, during Texaco's operation of the station, contaminants were leaked from at least two USTs. Id. at ¶ ¶ 27-30. The Texaco Station has been vacant since the late 1990s. Id. at ¶ 24. E-Town acquired legal title to the property in April 2002. Id. at ¶ 18.
In the meantime, in 2000, the Illinois State Fire Marshal conducted an " exploratory excavation" of the Texaco Station. Id. at ¶ 31. The Fire Marshal issued a Notice of Violation, concluding that " [a]t least two unregistered USTs were abandoned improperly" and that the " USTs contained water and gasoline" and were " leaking in close proximity to a sewer." Id. at ¶ 31 & pp. 18-19. In April 2001, the Fire Marshal issued a report stating: " [N]othing has been done to this site. The tanks are still leaking and no caps are on the vents, fills[,] or product lines. They are continuing to take on water." Id. at ¶ 32.
In March 2012, an environmental consultant hired by Evanston issued a report noting the presence of petroleum exceeding the amounts allowed by state regulations. Id. at ¶ 35 & pp. 23-73. A subsequent report issued in July 2012 noted the presence of two 2,000-gallon USTs filled with water and gasoline and two 3,000-gallon USTs filled with sand. Id. at ¶ 36; see id. at pp. 75-83. That second report concluded that contamination was migrating from the Texaco Station to Church and Darrow Streets and could possibly affect commercial and residential properties to the east. Id. at ¶ 37.
As a result of Texaco's conduct, the soil and groundwater at the Texaco Station and adjacent city-owned and privately-owned property are contaminated with petroleum, gasoline, and their byproducts, including benzene, toluene, ethylbenzene, xylene, polynuclear aromatic hydrocarbons, and lead. Id. at ¶ ¶ 5, 7-8. The contamination contains carcinogens. Id. at ¶ 11.
I. Count I: RCRA Claim
A. Whether Count I Adequately Pleads a RCRA Claim
RCRA allows any person to file a citizen suit " against any person ... who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6972(a)(1)(B); see generally Adkins v. VIM Recycling, Inc., 644 F.3d 483, 486-87 (7th Cir. 2011). A § 6972(a) claim requires the plaintiff to show: " (1) that the defendant has generated solid or ...