United States District Court, N.D. Illinois, Western Division
MICHAEL LEWIS AND GENEVA D. LEWIS, Plaintiffs,
300 WEST LLC, et al. Defendants.
MEMORANDUM OPINION AND ORDER
Robert Blakey, United States District Judge.
in this lawsuit sue under the Resource Conservation and
Recovery Act (RCRA) for injunctive relief and damages arising
from the contamination of their groundwater supply. Several
Defendants have moved to dismiss Plaintiffs' complaint.
For the reasons explained below, the Court denies three of
the motions in full , , , and grants in part and
denies in part the fourth .
Michael Lewis and Geneva D. Lewis own a piece of real
property located at 4913 Ritz Road, in Marengo, Illinois.
They purchased the property in April 2012 and have resided
there ever since. At some point, they learned that their
groundwater supply, a well, had been contaminated. They sue
here for injunctive relief and compensatory and punitive
filed this lawsuit June 6, 2018. See . Their
initial complaint named 300 West LLC; The Arnold Engineering
Co., d/b/a The Arnold Engineering Company; Arnold Magnetic
Technologies Corporation, d/b/a Arnold Magnetic Technologies;
Arnold Magnetic Technologies, LLC; Arnold Magnetic
Technologies Holdings Corporation; Allegheny Technologies
Incorporated, f/k/a Allegheny Technologies Inc.; Allegheny
International, Inc.; Allegheny Ludlum Corporation, f/k/a
Allegheny Ludlum Steel Corporation; Allegheny Ludlum, LLC;
Flexmag Industries, Inc.; Arnold Magnetic Technologies; SPS
Technologies, Inc.; Precision Castparts Corp.; Audax Group,
LLC; Compass Group Diversified Holdings, LLC; and MPR
Management Inc.  at p. 1. They asserted claims against all
Defendants under the RCRA (count I), for negligence (count
II), private nuisance (count III), and trespass (count IV).
Id. at ¶¶ 45-77.
Defendants-Precision Castparts Corp. ; 300 West LLC ;
MPR Management, Inc. ; and Compass Group Diversified
Holdings LLC, Arnold Magnetic Technologies Holdings
Corporation, Arnold Magnetic Technologies Corporation, The
Arnold Engineering Co., and Flexmag Industries -moved to
dismiss. In response, Plaintiffs voluntarily dismissed
Allegheny Technologies Incorporated f/k/a Allegheny
Technologies Inc.; Allegheny Ludlum, LLC, and Allegheny
Ludlum Corporation, see ; they also voluntarily
dismissed Arnold Magnetic Technologies, LLC and Audax
Management Company, LLC, see ; and they amended
their complaint as to the remaining Defendants, see
.[2" name="FN2" id=
First Amended Complaint ("FAC") asserts the same
claims as the original complaint. See Id. at
¶¶ 43-75. As a result, after Plaintiffs filed the
FAC, the Defendants (who had previously moved to dismiss)
advised that they wished to stand on their pending motions.
See . The parties, therefore, briefed the
motions, and they are now ripe for resolution.
own and reside at 4913 Ritz Road, in Marengo, Illinois. ,
¶ 12. The sole source of water on that property is a
private well. Id. at ¶ 1- In June of 2013, the
Illinois Department of Public Health notified Plaintiffs that
water samples taken from their well revealed the presence of
dangerous chemicals, including 1, 1-dichloroethene ("1,
1-DCE") and trichloroethene ("TCE").
Id. at ¶¶ 1, 9. Indeed, hazardous
substances contaminate properties throughout and along Ritz
Road in Marengo. Id. at ¶ 7. The source of the
contamination is 300 N. West Street in Marengo, a site
comprised of as many as 19 individual parcels situated on
approximately 92.5 acres. Id. at ¶ 2. This site
is currently owned by Defendant 300 West LLC and currently
operated by Defendant Arnold Engineering Co. Id. at
alleges that contaminants from the Site "migrated in
groundwater to contaminate the groundwater and soils of
Plaintiffs' property, as well as the potable water well
owned and used by Plaintiffs." Id. at ¶
32-33. The FAC alleges that Defendant 300 West owns the Site,
and that "each Defendant generated and/or transported
materials containing hazardous substances to the Site."
, ¶ 27, 31. More specifically, the FAC alleges the
following as to each Defendant:
• Defendant Arnold (a moniker defined to include The
Arnold Engineering Co., d/b/a The Arnold Engineering Company,
its predecessors and/or successors, including but not limited
to, Arnold Magnetic Technologies Corporation and Arnold
Magnetic Technologies LLC, id. at ¶ 18, and
possibly also Arnold Magnetic Technologies Holdings
Corporation, see Id. at ¶ 17) owned and
operated the Site from 1940 to 2006, when it sold the
property to 300 West. Id. at ¶ 34. Plaintiffs
allege, on information and belief, that 300 West leased the
Site back to Arnold. Id. Plaintiffs allege that,
since 1940, Arnold's operations on the Site have
generated "solid wastes" or "hazardous
wastes" within the meaning of the RCRA Id. at
• From approximately 1946 to 1986, Defendant AI owned
and operated Arnold, and/or controlled those processes and
activities at the Site that generated such wastes.
Id. at ¶ 36.
• From approximately 1986 to 2003, Defendant SPS, a
predecessor of Defendant Precision, owned and operated Arnold
and/or controlled those processes and activities at the Site.
Id. at ¶37. And, from 2003 to 2005, Defendant
Precision itself owned and operated Arnold and, through such
ownership, controlled those processes and activities that
generated such wastes and caused the contamination.
• From approximately January 2005 to March 5, 2012,
Defendant Audax Group owned Arnold Magnetic Technologies
Corporation and managed, operated, and controlled those
processes and activities. Id. at ¶ 38.
• On or about March 5, 2012, Defendant Audax Group sold
Arnold Magnetic Technologies Corporation to [Compass Group
Diversified Holdings LLC], which also controls Arnold
Magnetic Technologies Holdings Corp. Id. at
• From approximately 2006 to the present, Defendant MPR
has been responsible for removal of the contamination at the
Site and adjoining properties; yet, MPR has done nothing to
remove contamination from Plaintiffs' property or to
restore Plaintiffs' potable water supply. Id. at
the FAC alleges that:
[t]hrough their ownership, control, or operation of the Site,
or ownership, control, or operation of the processes and
activities generating solid waste on the Site, or their
control or operation of efforts to remove Contamination from
the Site and adjoining properties, Defendants have
contributed or are contributing to the past or present
handling, storage, or disposal at the Site of those
"solid wastes" and "hazardous wastes," .
. . and which handling, storage, or disposal have presented
and may present an imminent and substantial endangerment to
health or the environment within the meaning, and in
violation, of 42 U.S.C. § 6972(a)(1)(B).
Id. at ¶ 42.
seek relief under the citizen suit provision of the Resource
Conservation and Recovery Act (RCRA), as amended, 42. U.S.C.
§ 6901 et seq. They also assert state law
claims of negligence, private nuisance, and trespass. The FAC
seeks injunctive relief, damages (compensatory and punitive),
and disgorgement of profits.
The Illinois Enforcement Action
FAC, Plaintiffs acknowledge the existence of a prior state
enforcement action relating to groundwater contamination at
and from the Site, and they acknowledge the existence of a
Consent Order executed by two named Defendants, 300 West and
The Arnold Engineering Co. on June 1, 2016. ,
¶¶ 57-59. They allege, however, that the remedies
they seek fall outside the scope of a Consent Order executed
in that action on or about June 1, 2016. Id. at
¶ 57. Plaintiffs claim that that Consent Order does not
provide for any remedial response to, or otherwise address,
the imminent and substantial endangerment presented by
Defendants' failure to treat groundwater contamination.
Id. at ¶ 58.
of background as to the enforcement action, on May 14, 2013,
at the direction of the Illinois Environmental Protection
Agency ("EPA"), water samples were taken from
thirteen private wells located near the Site, including from
Plaintiffs' property. On June 6, 2013, the Illinois
Department of Public Heath notified Plaintiffs that water
samples from their property contained various Volatile
Organic Compounds (VOCs), including 1, 1-dichloroethylene and
trichloroethene [57-2]. The concentration of the VOCs
exceeded their regulatory concentrations for drinking water,
and the IDPH recommended that Plaintiffs not use their water
for drinking, cooking, or bathing.
14, 2013, upon the request of the Illinois EPA, the State of
Illinois, through the Illinois Attorney General, sued 300
West LLC and Arnold Engineering Co. in McHenry County Circuit
Court, alleging violations of Section 43(a) of the Illinois
Environmental Protection Act and seeking injunctive relief.
[42-2]. In its state court complaint, the State alleged that
The Arnold Engineering Co., a/k/a Arnold Magnetic
Technologies Corporation, has, for approximately 100 years,
owned and operated a manufacturing facility at the Site and
historically "utilized chlorinated solvents in its
product processes . . . ." Id. at ¶ 5. The
state complaint alleged that, in or about June of 2003,
Arnold sold the Site to 300 West, though Arnold continued to
conduct manufacturing operations at the Site, operating on a
lease from 300 West after the sale. Id. at ¶ 6.
The state complaint described testing done at and near the
Site and alleged that chlorinated VOCs released at the Site
had migrated through the groundwater, contaminating
residential wells; testing showed that chlorinated VOCs
exceeded the Illinois Pollution Control Board's Class 1
Groundwater Quality Regulations in at least two drinking
water wells, "thereby threatening the health and safety
of the public." Id. at ¶ 26. The state
complaint identified Plaintiffs' well, at 4913 Ritz Road,
as one of the contaminated wells with a class 1 groundwater
exceedance about the 7ppb standard for 1, 1-DCE and above the
5ppb standard for TCE.[4" name="FN4" id=
"FN4">4] [42-2], p. 8.
1, 2016, the State of Illinois, 300 West, and The Arnold
Engineering Co., executed a Consent Order to resolve the
state enforcement action. See [42-4]. Without
admitting the violations claimed in the State's
complaint, Defendants agreed to: (1) continue to provide
bottled water to certain private well owners, including
Plaintiffs; (2) continue to conduct water sampling at those
private wells; (3) perform all work necessary to hook up the
affected properties to the City of Marengo's municipal
water supply (including extending the City's water main
and water lines, extending water lines from the water main to
each property to hook up such properties to the municipal
water main, installing a flush hydrant on Ritz Road,
conducting any necessary confirmation sampling, providing
restorative landscaping, sealing wells as necessary, and
repairing any damage caused by any of the associated work.
Id. at p. 15. 300 West and Arnold also agreed to pay
all costs associated with this work and to pay each well
owner $2, 400. Id. at pp. 15-16. 300 West and Arnold
also agreed to pay a civil penalty of $100, 000 to the
Illinois EPA, plus a penalty of $30, 000 for violations of
prior orders; and to pay the Illinois EPA's costs ($70,
393.72) and the Illinois Attorney General's costs ($13,
892.44). Id. at pp. 7-8. The Consent Order provided
that, if 300 West and Arnold failed to complete any
obligation or failed to comply with their response and
reporting obligations, they faced penalties of $300 per day
for the first seven days, $500 per day for the next seven
days, $750 per day for the next 15 days, and $1, 000 per day
thereafter until they complied. Id. at p. 9.
Finally, the Consent Order included provisions for a Remedial
Action Plan to address soil and groundwater remediation.
Id. at pp. 24-27.
regard to releases and waivers of claims, the Consent Order
provided that affected well owners were not required to
accept the offer to hook them into the City of Marengo's
water, and that declining to hook up did not waive any
potential causes of action, rights or remedies with regard to
any alleged contamination. Id. at pp. 21-22.
Additionally, the Consent Order provided that nothing therein
waived, discharged, released, or otherwise impacted "any
private causes of action or rights that may exist. . .
." Id. at p. 38.
Defendants' Motions ...