VILLAGE OF RIVERDALE v. 138TH STREET JOINT VENTURE No. 07 C 1388.
527 F.Supp.2d 760 (2007)
VILLAGE OF RIVERDALE, an Illinois municipal corporation, Plaintiff, v. 138TH STREET JOINT VENTURE, et al., Defendants.
United States District Court, N.D. Illinois, Eastern Division.
September 25, 2007.
Michael. S. Blazer, Thomas S. Yu, Jeep & Blazer, L.L.C., Hillside, IL, for Plaintiff.
Mark Anthony Larose, Clarissa Cutler Grayson, Joseph A. Bosco, Larose & Bosco, Ltd., Alan Bruce White, Christopher William Newcomb, John William Kalich, Karaganis, White & Magel Ltd.; Jennifer Talina Nijman, Winston & Strawn LLP, Michael James Hughes, Neal, Gerber & Eisenberg, Chicago, IL, for Defendants.
MEMORANDUM OPINION AND ORDER
DAVID H. COAR, District Judge.
The village of Riverdale, an Illinois municipal corporation ("Riverdale"), is suing DO 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
For the reasons set forth below, Defendants' motion to reconsider is DENIED. Defendants' motions to dismiss are DENIED partially and GRANTED partially.
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.; Greatbane 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
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. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
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, 112 S.Ct. 2130 (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 plaintiffs injury. Id. Determining Article HI 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, 95 S.Ct. 2197, 45 L.Ed.2d 343 (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 pleaded an actual or imminent injury in fact. Several of the Defendants challenge Riverdale's standing on the specific grounds that Riverdale has not alleged any injury that is fairly traceable to the actions of that particular defendant.
Riverdale's Purported Lack of Cognizable Interest
Throughout the memoranda in support of their motions to dismiss, Defendants refer to the purported fact that Riverdale, by its own pleadings and exhibits, establishes it is not interested in health or the environment, rather it is really interested in the redevelopment of the Location. Such assertions are entirely irrelevant when arguing for the dismissal of a claim for lack of constitutional standing. First, the Supreme Court has explained that when determining whether an interest
The RCRA allows any "person" to pursue a civil action against "any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, 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. The term "person" is defined to include municipalities. 42 U.S.C. § 6903(15). Therefore, a simple allegation of imminent harm stemming from a defendant's storage of solid waste will suffice to establish the injury-infact element of standing for a municipality. See City of North Chicago v. Hanovnikian, 2006 WL 1519578 at *2 (N.D.Ill.2006).
Defendants present a multi-faceted attack of Riverdale's basis for standing. First, Defendants argue that Riverdale does not assert an injury-in-fact because it does not properly plead a claim upon which relief can be granted under a new pleading standard announced by the United States Supreme Court in Bell Atlantic Corporation v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Defendants contend that Riverdale merely relies on a formulaic recitation of the statutory claim instead of presenting enough facts to establish actual imminent and substantial endangerment. Second, Defendants contend that Riverdale cannot properly maintain standing as a representative of its citizens when it does not include specific factual allegations of imminent harm to its citizens.
The RCRA does not obviate the requirements of Article III standing.
In City of Milwaukee v. Saxbe, the Seventh Circuit held that a municipality may demonstrate organizational standing in cases where it alleges an injury to itself or where it acts as a representative vindicating the injuries to its citizens. 546 F.2d 693, 698 (1976). Also, one other court in this judicial district has concluded that a general allegation of imminent and substantial endangerment to health or the environment was enough to support a municipality's showing of standing to pursue an RCRA claim. Hanovnikian, 2006 WL 1519578, 2006 U.S. Dist. LEXIS 39457. In the Complaint, Riverdale alleged that the defendants' "activities have caused, and continue to cause, the release of solid wastes to air, soils, subsurface soils, sediments, surface water and groundwater and physical structures at the Subject Property, which release presents an imminent and substantial endangerment to health or the environment, within the meaning of 42 U.S.C. § 6972(a)(1)(B)." Thus, Riverdale claims to satisfy standing by alleging either its own injury or injuries to its citizens.
Defendants claim that Riverdale's above-quoted generic allegation does not suffice to allege an injury-in-fact to Riverdale's citizens under the new standard of pleading announced in Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 167 L.Ed.2d 929, and confirmed by the Seventh Circuit in In re Ocwen Loan Servicing, LLC Mortgage Servicing Lit., 491 F.3d 638 (7th Cir.2007).
Defendants' reading of Twombly is too restrictive and its interpretation of In re Ocwen is misplaced. In Twombly, the United States Supreme Court held that the oft-repeated standard that a complaint should not be dismissed "unless it appears beyond all doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief," taken from Conley v. Gibson, 355 U.S. 41, 45-46, 78, S.Ct. 99, 2 L.Ed.2d 80 (1957), was from that point forward, rejected. 127 S.Ct at 1969. On its face, Twombly merely explains
The Seventh Circuit conveyed the same message in In re Ocwen as quoted above in Airborne Beepers & Video, Inc., See 491 F.3d at 649 ("the district court will want to determine whether the complaint contains `enough factual matter (taken as true)' to provide the minimum notice of the plaintiffs' claim that the Court believes a defendant entitled to."). This Court reads the current precedent as explaining that one can no longer rely on the formulaic recitation of Conley to save a complaint that in those specific instances where the complaint does not provide fair notice of what the claim is and the grounds upon which it rests even where it recites the elements of the claim. That is why the Supreme Court explained that the complaint in Twombly should have been dismissed pursuant to Rule 12(b)(6). It stated a legally cognizable statutory claim of a Section 1 Sherman Act violation against the defendants by stating they engaged in a contract, combination or conspiracy in restraint of trade, but it did not supply any factual assertions supporting the existence of an agreement. 127 S.Ct at 1961.
Here, the complaint contains sufficient factual assertions to support the elements of an RCRA claim. In paragraphs 19 through 33, Riverdale sets out factual assertions concerning the ownership of and operations conducted on various parcels of the Location by the Defendants. Paragraphs 34 through 57 outline the activities conducted by the Defendants at the Location that made up the storage and disposal of solid and/or hazard wastes. Finally, paragraphs 65 and 66 of Count I set out the injury-in-fact caused by Defendants-actual and threatened release of pollutants. Riverdale asserts that the Defendants have engaged in activities that present an imminent and substantial endangerment to health or the environment. The facts fairly apprise Defendants of the nature of the claim. Therefore, this Court denies Defendants' First National Bank of Blue Island, Circus Auto Parts Inc., A.B.C. Auto Parts & Sales, Inc., and Great Lakes Trust Company joint request for reconsideration of this Court's dismissal of the 12(b)(6) motions. Furthermore, this Court does not accept Defendants' arguments that first, Twombly makes Riverdale's complaint more susceptible to dismissal and second, Twombly creates a higher hurdle to demonstrate Article III standing.
Injury Not Fairly Traceable to the Respective Actions of Each of the Defendants
Several of the Defendants assert that the complained injury is not fairly traceable to their individual actions. This
Riverdale has pleaded allegations sufficient to show a causal connection between the Location, the solid waste alleged to be currently stored on the Location and the injury-in-fact recognized under the RCRA-imminent and substantial endangerment to health or the environment. While Defendants are correct that Riverdale's complaint does not contain any specific factual allegations explaining how each of the several of the Defendant's actions contributed to the imminent and substantial endangerment to health or the environment; it does not need to do so at this stage of the litigation. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130 ("on a motion to dismiss we `presum[e] that general allegations embrace those specific facts that are necessary to support the claim.'" (quotation omitted)). RCRA provides for liability against "any past or present generator, past or present transporter, or past or present owner or operator . . ., 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). Riverdale's complaint contains allegations that each Defendant is a current or former 1) owner of a parcel of the Location, and/or 2) operator of a facility that disposed of solid waste that now threatens imminent and substantial endangerment to health or the environment. Nothing more is required at this stage of the action. Therefore, at the pleading stage, it is sufficient that Riverdale has identified each of the Defendants as a possible contributor to the solid waste, the release of which may present an imminent and substantial endangerment to health of Riverdale inhabitants or the environment in general.
Defendants claim that 28 U.S.C. § 2642 bars Riverdale's RCRA claim in its entirety. Section 2642 states as follows:
(emphasis added). Thus, even if Section 2642 applies to RCRA, it only applies to Riverdale's request for civil fines and penalties, not to its request for injunctive relief from imminent and substantial harm.
RCRA does not contain a statute of limitations provision. When a federal statute does not provide a statute of limitations, a court should first look to see
In Meghrig, the Supreme Court considered whether RCRA authorizes a private cause of action to recover the prior cost of cleaning up toxic waste that did not pose any harm to health or the environment at the time the suit was commenced. Id. at 481, 116 S.Ct. 1251. The Court held that it did not. Id. In dicta, the Court explained that RCRA contains its own inherent timing provision because it only authorizes suit to protect against activities that may present an imminent and substantial endangerment to health or the environment. Id. at 486, 116 S.Ct. 1251. This Court has already held that Riverdale has stated a legally cognizable claim under the RCRA and thus Riverdale satisfies the timing provision implicit in the elements of the cause of action provided in the statute.
The parties have unnecessarily focused on the issue of a statute of limitations instead of the real issue of whether Riverdale can even pursue civil penalties under this statute. Section 6972 provides in relevant part that the "district court shall have jurisdiction, . . . to apply any appropriate civil penalties under section 6928(a) and (g) of this title" (emphasis added). Sections 6928(a) and (g) pertain to compliance orders issued by the Administrator under subsection III of the RCRA and liability to the United States for violations of the requirements of subsection III. Section 6972(a)(1)(B) is not contained in subsection III, instead in appears in subsection VII. The "Administrator" refers to the Administrator of the Environmental Protection Agency. 42 U.S.C. § 6903. Thus, civil penalties are not appropriate or available to Riverdale under Section 6972(a)(1)(B), regardless of the applicability of the federal statute of limitations codified at 28 U.S.C. § 2642. Section 6972(a) authorizes citizen suits; it does not authorize qui tam actions. See Burnette v. Carothers, 192 F.3d 52, 54 (2nd Cir.1999). Riverdale is not asserting any rights on behalf of the Administrator or the United States and is not entitled to recover any penalties that may have been due to either party under Sections 6928(a) or (g), which are the only civil penalties a district court may award under Section 6972(a). Therefore, the motions to dismiss are GRANTED as to Riverdale's request for civil penalties and such request is hereby stricken from the complaint. This Court passes no judgment on the request for civil penalties in Count of the complaint arising under Riverdale's Ordinance.
For the foregoing reasons, Defendants' motions to dismiss and joint motion to reconsider are DENIED partially and GRANTED partially. Riverdale's request for civil penalties under the RCRA in Count I of its Complaint is stricken. Defendants' motion for reconsideration is DENIED.
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