United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. Durkin, United States District Judge.
Clean Harbors Services, Inc. (“Clean Harbors”)
brought this action against Defendant The Illinois
International Port District (“Port District”)
asserting claims under the Comprehensive Environmental
Response, Compensation, and Liability Act
(“CERCLA”), 42 U.S.C. §§ 9607, 9613,
the Resource Conservation and Recovery Act
(“RCRA”), 42 U.S.C. § 6972, and state law.
Presently before the Court is the Port District's Motion
to Dismiss Counts II, III, and VIII of Clean Harbors'
Third Amended Complaint. For the reasons explained below, the
Port District's motion is granted in part and denied in
case involves contaminated property located at 11700 and
11800 South Stony Island in Chicago, Illinois (the
“property”). R. 108 ¶ 1. The Port District
has owned the property since 1955. In the 1960s and 1970s,
the Port District began to construct piers on the property
with fill materials consisting of industrial waste,
construction debris, natural material, and a mixture of soil,
steel industry wastes, and pea-sized gravel. Id.
¶¶ 27, 30, 31. Also in the 1970s, the Port District
leased the property to a now-dissolved company, Hyon Waste
Management Services, Inc. Id. ¶ 36. Hyon Waste
operated a series of surface impoundments at the property for
the treatment, storage, and disposal of hazardous wastes and
disposed of tens of millions of gallons of waste. Clean
Harbors alleges that the Port District, as the owner of the
property, knew or reasonably should have known of Hyon
Waste's contamination but did nothing to abate the
contamination or hold Hyon Waste accountable for the
contamination. Id. ¶ 51.
in the 1980s, the Port District leased the property to two
different companies, ChemClear, Inc. and CMW Chemical
Services, Inc., both of which Clean Harbors later acquired.
(Throughout this Order, the Court refers to Clean Harbors and
these companies collectively as “Clean Harbors.”)
Clean Harbors operated a waste processing facility at the
property that processed hazardous wastes for disposal or
recycling at offsite locations. Clean Harbors and the Port
District are co-permittees on permits issued by the Illinois
Environmental Protection Agency (“IEPA”). One
such permit is a RCRA Part B permit, which was originally
issued on November 4, 2005 and expired on December 9, 2015
(the “Permit”). The IEPA renewed the Permit
effective September 6, 2017. R. 108 ¶ 197.
IEPA eventually directed the Port District and Clean Harbors
to conduct a RCRA facility investigation of the property. The
parties performed the investigation and discovered
contamination primarily related to Hyon Waste's
operations in the 1970s. R. 108 ¶¶ 89-99. Clean
Harbors incurred substantial costs to conduct the
investigation. Id. ¶ 150. The Port District and
Clean Harbors subsequently worked with the IEPA to develop a
corrective action plan to address the contamination (known as
the “Cap and Drain Plan”). IEPA gave its final
approval for the plan in 2011. Id. ¶ 123. The
IEPA's plan required that an existing cover at the
property remain in place as an engineered barrier, required
the construction of a french drain, and required future
groundwater monitoring at the property. The Plan is projected
to cost $5.75 million in construction costs and an additional
$ 2.15 million in monitoring costs. Id. ¶ 151.
2012, Clean Harbors provided notice of its intent to
terminate its leases on the property and identified issues
related to the Cap and Drain Plan that needed to be resolved
as part of its winding down of operations at the property. R.
108 ¶¶ 130- 131. Two weeks after Clean Harbors gave
notice of its intent to terminate the leases, the Port
District wrote to the IEPA stating it had not approved the
Cap and Drain Plan. Id. ¶ 135. Later in 2012,
the Port District demanded that Clean Harbors remove the
engineered barrier discussed in the Plan, demanded it
construct a truck yard on the property, and refused to grant
it access to the property to remove certain improvements.
Id. ¶ 140-42. The Port District also refused to
complete forms required to wind down Clean Harbors'
operations properly with the IEPA. Id. ¶ 146.
Finally, Clean Harbors alleges the Port District overcharged
it quarterly rent payments from 2010 through 2012 totaling
$315, 000. Id. ¶ 78.
February 19, 2013, Clean Harbors provided written notice to
the Port District, the IEPA, and the U.S. Environmental
Protection Agency (“EPA”) of its intent to file a
RCRA citizen suit against the Port District pursuant to 42
U.S.C. § 6972. The notice letter accused the Port
District of violating the parties' IEPA permit by
refusing to implement the Cap and Drain Plan, refusing to
take financial responsibility for its share of the clean-up
under the Plan, refusing to execute documents to allow for
the closure of RCRA units (through Clean Harbors) at the
property, and by demanding that the engineered barrier be
removed in violation of the Cap and Drain Plan. R. 108-5 at
20-21. The notice letter also accused the Port District of
violating the RCRA's endangerment provision (42 U.S.C.
§ 6972(a)(1)(B)) as the owner of the contaminated
property. Id. at 21-22.
December 2013, the Court stayed the case to allow the IEPA to
approve Phase II of the Cap and Drain Plan. R. 65. In January
2017, the Court resumed proceedings. R. 98. Clean Harbors
subsequently filed its Third Amended Complaint
(“TAC”) on October 10, 2017. R. 108. At issue in
this dispute are Counts II, III, and VIII. In Count II of the
TAC, Clean Harbors asserts a cause of action under the
endangerment citizen suit provision of the RCRA, 42 U.S.C.
§ 6972(a)(1)(B). In Count III, Clean Harbors brings a
citizen suit claim to abate RCRA permit violations under 42
U.S.C. § 6972(a)(1)(A). Both counts allege Clean Harbors
provided pre-suit notice to the Port District on February 19,
2013. R. 108 ¶¶ 186, 215. In Count VIII, Clean
Harbors alleges the Port District was unjustly enriched after
it refused to return rent overpayments Clean Harbors made.
Id. ¶¶ 237-244.
October 31, 2017, the Port District filed a motion to dismiss
Counts II, III, and VIII of the TAC under Fed.R.Civ.P.
12(b)(1) and 12(b)(6). As to the RCRA claims, the Port
District argues Clean Harbors (1) failed to allege any facts
showing it has an “injury in fact” to demonstrate
standing under Article III of the Constitution; (2) failed to
provide adequate pre-suit notice; and (3) failed to
sufficiently allege RCRA violations under each provision. The
Port District argues that Count VIII should be dismissed
because Clean Harbors improperly bases its unjust enrichment
claim on an express written contract.
12(b)(6) motion challenges the sufficiency of the complaint.
See Hallinan v. Fraternal Order of Police of Chicago
Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). Under
Rule 8(a)(2), a complaint must include “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). Under the
federal notice pleading standards, a plaintiff's
“factual allegations must be enough to raise a right to
relief above the speculative level.” Bell Atlantic
v. Twombly, 550 U.S. 544, 555 (2007). Put differently, a
“complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662 (2009) (quoting Twombly,
550 U.S. at 570). “In evaluating the sufficiency of the
complaint, [courts] view it in the light most favorable to
the plaintiff, taking as true all well-pleaded factual
allegations and making all possible inferences from the
allegations in the plaintiff's favor.”
AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th
12(b)(1) authorizes the Court to dismiss any claim for which
the Court lacks subject matter jurisdiction according to
Article III, Section 2 of the U.S. Constitution. When a
defendant challenges jurisdiction, the plaintiff bears the
burden of establishing a court's jurisdiction. Lujan
v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). As
with 12(b)(6) motions, in deciding a Rule 12(b)(1) motion the
Court must “accept as true all well-pleaded factual
allegations and draw all reasonable inferences in favor of
the plaintiff.” St. John's United Church of
Christ v. City of Chi., 502 F.3d 616, 625 (7th Cir.
2007) (quotation marks omitted).
RCRA (Counts II and III)
RCRA was enacted to aid in a national policy to reduce or
eliminate hazardous waste “as expeditiously as
possible.” 42 U.S.C. § 6902(b). Waste that cannot
be eliminated “should be treated, stored, or disposed
of so as to minimize the present and future threat to human
health and the environment.” Id. To help
enforce this goal, Congress enacted a citizen-suit provision
that allows “any person” to commence a civil
action against alleged violators of the RCRA. 42 U.S.C.
authorizes two general types of citizen suits. First, a
plaintiff may commence a civil action against “any
person . . . who is alleged to be in violation of any permit,
standard, regulation, condition, requirement, prohibition, or
order which has become effective pursuant to this
chapter.” 42 U.S.C. § 6972(a)(1)(A). To proceed
under subsection (a)(1)(A), a plaintiff is generally required
to provide 60 days advance notice to the EPA Administrator,
the State in which the violation occurred, and the alleged
violator. Id. § 6972(b)(1)(A) (“No action
may be commenced under subsection (a)(1)(A) . . . prior to 60
days after the plaintiff has given notice of the violation to
(i) the [EPA] Administrator; (ii) the State in which the
alleged violation occurs; [and] (iii) to any alleged violator
of such permit, standard, regulation, condition, requirement,
prohibition, or order.”). Second, a plaintiff may
commence a civil action 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.” Id. § 6972(a)(1)(B). To
proceed under subsection (a)(1)(B), a plaintiff is generally
required to provide 90 days advance notice. Id.
§ 6972(b)(2)(A) (“No action may be commenced under
subsection (a)(1)(B) . . . prior to ninety days after the
plaintiff has ...