City Of Evanston v. Northern Illinois Gas Company et al

Filing 41

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 1/17/17.Mailed notice(ca, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CITY OF EVANSTON,
an Illinois municipal corporation,
Plaintiff,
v.
NORTHERN ILLINOIS GAS
COMPANY, an Illinois corporation,
and COMMONWEALTH EDISON
COMPANY, an Illinois corporation,
Defendants.

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16 C 5692
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Plaintiff City of Evanston has sued Defendants Northern Illinois Gas
Company (“Nicor”) and Commonwealth Edison Company (“ComEd”), alleging
violations of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C.
§ 6901 et seq. (Count I). In addition to its RCRA claim, Plaintiff brings a variety of
state and municipal claims, including a claim for violations of Evanston Code of
Ordinances § 9-12-1 et seq. (Count II) and claims under Illinois law for trespass
(Count III), private nuisance (Count IV), public nuisance (Count V), and breach of
contract (Count VI). Plaintiff seeks a combination of injunctive, declaratory, and
compensatory relief, as well as civil penalties in connection with Count I and
punitive damages in connection with Counts III through V.
Nicor and ComEd (collectively, “Defendants”) have moved to dismiss all six
counts of the complaint for failure to state a claim pursuant to Federal Rule of Civil
Procedure (“Rule”) 12(b)(6).

Defendants have also moved to dismiss Plaintiff’s

requests for civil penalties and punitive damages. For the reasons stated herein,
the Court grants Defendants’ motion to dismiss Count II and to dismiss the request
for civil penalties with respect to Count I. To the extent Defendants’ motion seeks
to dismiss the remaining counts and to dismiss Plaintiff’s request for punitive
damages with respect to Counts III through V, the motion is denied.
Factual Background 1
The Skokie Manufactured Gas Plant (“Skokie MGP”) was built in 1910 and is
located just outside the City of Evanston. Compl. ¶ 35, ECF No. 1; id., Ex. A. When
it was in operation, the Skokie MGP employed a process for enhancing the caloric
value of manufactured gas using oil and water gas. Id. ¶ 37. This manufacturing
process left behind dense, oily waste materials (“MG Waste Oils”) that were stored
in above-ground tanks at the Skokie MGP’s site. Id. ¶¶ 38–39. Some MG Waste
Oils also condensed along the inside of the pipelines comprised in the Skokie MGP’s
distribution infrastructure, which was used to transport manufactured gas through
Evanston. Id. ¶¶ 2, 42–43.
The Skokie MGP ceased operations in the early 1950s. Id. ¶ 36. Since that
time, according to Plaintiff, MG Waste Oils have leaked out of the Skokie MGP’s
above-ground tanks and distribution pipelines into the soil and groundwater at
James Park, Dawes Elementary School, Levy Senior Center, and surrounding
properties in Evanston. Id. ¶¶ 2, 10, 41, 49. Plaintiff refers to these properties as

The following facts are taken from Plaintiff’s complaint and the documents attached
thereto, and they are accepted as true on review of Defendants’ motion to dismiss. See
Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
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the “Impacted Area.”

See id.

The complaint describes the Impacted Area as

“generally bounded by Oakton Street to [the] north, Dodge Avenue to the east,
Mulford Street on the south and the North Shore Canal on the west.” Id.; see also
id., Ex. A.
Plaintiff alleges that the released MG Waste Oils present an imminent and
substantial endangerment to health or the environment in two ways.

First,

released MG Waste Oils have coated and penetrated the Dodge Avenue Water Line,
which runs along the eastern boundary of the Impacted Area and conveys potable
water to local residents.

Id. ¶¶ 2, 4(t), 48.

MG Waste Oils coating the Dodge

Avenue Water Line have contaminated Evanston’s drinking water and also
threaten future contamination. Id. ¶ 2.
Second, as MG Waste Oils have degraded in the soil, groundwater, and
bedrock over time, they have released methane gas as a byproduct.

Id. ¶ 46.

Methane gas has been found at high pressure and concentration within the
Impacted Area. Id. ¶¶ 3, 12. And when methane is present at a sufficiently high
pressure and concentration in a given area, it can be easily ignited, resulting in an
explosion. Id. ¶ 12.
The methane released from MG Waste Oils first came to Plaintiff’s attention
in 2012. Around that time, MG Waste Oils and methane were found during an
investigation of an area 1,000 feet southwest of James Park.

Id. ¶ 51.

When

methane was subsequently detected in James Park itself, Plaintiff initially
suspected that it might have originated from a decades-old landfill beneath the

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park. Id., Ex. B ¶ 11. But Plaintiff later determined that gas pipelines were the
methane’s more likely source based on concentration levels. Id., Ex. B ¶¶ 12, 15.
In May 2014, Plaintiff informed Nicor that methane had been detected at
James Park and asked Nicor to provide documentation regarding distribution
pipelines it operated in the park’s vicinity.

Id. ¶ 56; id., Ex. B ¶¶ 12, 15–16.

According to Plaintiff, Nicor refused to cooperate with Plaintiff’s request for
information. Id. ¶¶ 54–57. On February 22, 2016, Plaintiff served an amended
notice of intent to sue on Defendants Nicor and ComEd. 2 Id. ¶ 13; see id., Ex. B.
The amended notice describes the endangerments posed by both the disposal of MG
Waste Oils and the MG Waste Oils’ degradation into methane around James Park.
Id., Ex. B ¶¶ 6(b)–(c), 35–48.
Plaintiff now seeks to hold Defendants responsible for the release of MG
Waste Oils in the Impacted Area, on the ground that Defendants or their corporate
predecessors owned

and operated the

Skokie

MGP

and its distribution

infrastructure at the time the MG Waste Oils were released into the soil and
groundwater around James Park. Id. ¶ 9; id., Count I ¶ 71. Plaintiff alleges that
Defendants knew or should have known no later than 2015 that MG Waste Oils had
penetrated the Dodge Avenue Water Line, id. ¶ 65, and that Defendants’ “negligent,
willful and wanton actions” have harmed Plaintiff’s property and the general public.

Plaintiff sent Defendants its original notice of intent to sue in October 2014 and
subsequently brought claims under RCRA and Illinois law against Defendants before this
Court. The Court dismissed the claims without prejudice on February 10, 2016, in part
because Plaintiff’s original notice was inadequate under RCRA. See generally N. Ill. Gas
Co. v. City of Evanston, 162 F. Supp. 3d 654 (N.D. Ill. 2016).
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Id., Count III ¶ 72, Count IV ¶ 70, Count V ¶ 70. Plaintiff also alleges that the
release of MG Waste Oils breaches a franchise agreement between Plaintiff and
Nicor regarding the construction and maintenance of Nicor’s gas distribution
system. Id., Count VI ¶¶ 68–72. Defendants now move to dismiss all counts of
Plaintiff’s complaint pursuant to Rule 12(b)(6).
Legal Standard
A motion under Rule 12(b)(6) challenges the sufficiency of the plaintiff’s
complaint. Christensen v. Cnty. of Boone, Ill., 483 F.3d 454, 457 (7th Cir. 2007).
Under the federal notice pleading standards, a complaint must “state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). The complaint “need only provide a short and plain statement of the claim
showing that the pleader is entitled to relief, sufficient to provide the defendant
with fair notice of the claim and its basis.” Tamayo v. Blagojevich, 526 F.3d 1074,
1081 (7th Cir. 2008); see also Fed. R. Civ. P. 8(a)(2). Federal pleading standards
govern all claims brought before a federal court, including any state or municipal
claims falling within the court’s jurisdiction. Johnson v. Hondo, Inc., 125 F.3d 408,
417 (7th Cir. 1997).
In reviewing a motion to dismiss under Rule 12(b)(6), a court must accept as
true all well-pleaded allegations in the complaint and must draw all possible
inferences in the plaintiff’s favor. See Tamayo, 526 F.3d at 1081. A court reviewing
a Rule 12(b)(6) motion may consider not only the allegations in the complaint but
also any documents attached thereto. See Geinosky v. City of Chi., 675 F.3d 743,

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745 n.1 (7th Cir. 2012). If the parties present matters outside the pleadings in the
course of litigating a Rule 12(b)(6) motion, the motion is converted into a motion for
summary judgment that must be reviewed under Rule 56, unless the court excludes
matters outside the pleadings from its consideration of the motion. Id.; Fed. R. Civ.
P. 12(d). 3
Analysis
I.

Count I: RCRA Claim
“RCRA is a comprehensive environmental statute that governs the

treatment, storage, and disposal of solid and hazardous waste.” Meghrig v. KFC W.,
Inc., 516 U.S. 479, 483 (1996). To state a claim under one of RCRA’s citizen-suit
provisions, a plaintiff must allege either a “violation of any [RCRA] permit,
standard, regulation, condition, requirement, prohibition, or order,” 42 U.S.C.
§ 6972(a)(1)(A), or the creation of “an imminent and substantial endangerment to
health of the environment,” id. § 6972(a)(1)(B).
Section 6972(a)(1)(B), sometimes referred to as the “endangerment”
provision, states that “any person may commence a civil action on his own behalf
against any person, including . . . 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,

Here, Plaintiff and Defendants have attached voluminous exhibits to the briefs
respectively opposing and supporting Defendants’ motion to dismiss. These exhibits
include documents that were attached to Plaintiff’s amended notice of intent to sue but that
were not attached to Plaintiff’s complaint. The Court has not considered these additional
materials because they are not necessary to decide Defendants’ motion to dismiss.
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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. A plaintiff suing under this provision must notify the defendant
of the alleged endangerment at least ninety days before filing suit.

Id.

§ 6972(b)(2)(A). If the plaintiff fails to comply with this notice requirement, the
plaintiff’s RCRA claim must be dismissed. Hallstrom v. Tillamook Cnty., 493 U.S.
20, 31 (1989).
In this case, Plaintiff has brought a claim under § 6971(a)(1)(B), alleging that
Defendants “have engaged in the handling, treatment, storage and/or disposal” of
MG Waste Oils. Compl., Count I ¶¶ 80–81. Plaintiff further asserts that MG Waste
Oils “may present, and may continue to present, an imminent and substantial
endangerment to public health and the environment.” Id. Plaintiff seeks injunctive
and declaratory relief as well as civil penalties under 42 U.S.C. § 6972(a).

Id.,

Count I ¶ 85.
Defendants have moved to dismiss Plaintiff’s RCRA claim on two grounds.
First, Defendants argue that the factual allegations in Plaintiff’s complaint fail to
state a plausible claim to relief under RCRA’s endangerment provision. Second,
they argue that Plaintiff’s amended notice of intent to sue does not comply with
RCRA’s notice requirement because the amended notice insufficiently identifies the
location of the alleged endangerment.

In addition, Defendants have moved to

dismiss Plaintiff’s request for civil penalties under § 6972(a).
address each of these issues in turn.

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The Court will

A.

Factual Sufficiency of Plaintiff’s RCRA Claim

To state an endangerment claim under RCRA, a plaintiff must allege that
(1) the defendant is a “past or present generator, past or present transporter, or
past or present owner or operator of a treatment, storage, or disposal facility”;
(2) the defendant has “contributed” to the handling of a solid or hazardous waste;
and (3) the waste “may present an imminent and substantial danger to health or
the environment.” 42 U.S.C. § 6972(a)(1)(B); see also Albany Bank & Trust Co. v.
Exxon Mobil Corp., 310 F.3d 969, 972 (7th Cir. 2002) (citing Cox v. City of Dallas,
256 F.3d 281, 282 (5th Cir. 2001)). “[A]t the pleading stage, it is sufficient that [the
plaintiff] 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 [local] inhabitants or the environment in general.” Vill.
of Riverdale v. 138th St. Joint Venture, 527 F. Supp. 2d 760, 767 (N.D. Ill. 2007).
Plaintiff has adequately alleged the three elements of an endangerment claim
under RCRA.

First, Plaintiff alleges that Defendants are the past or present

owners and operators of the Skokie MGP and its distribution infrastructure.
Compl. ¶ 9.

Second, Plaintiff alleges that Defendants have contributed to the

handling of MG Waste Oils by “failing to properly handle dispose, contain[,] and
abate” MG Waste Oils released from the Skokie MGP and its distribution
infrastructure. Id., Count I ¶¶ 71, 80, 82. Finally, Plaintiff alleges that MG Waste
Oils and the methane produced from their degradation may present an imminent
and substantial endangerment.

Id. ¶¶ 2, 11–12; id., Count I ¶¶ 72–76.

The

complaint further describes the specific harms the MG Waste Oils may cause, and it
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supports these allegations with facts suggesting that MG Waste Oils have already
contaminated the local water supply. Id. Together, these allegations state a claim
under RCRA. See Albany Bank, 310 F.3d at 972–75; Vill. of Riverdale, 527 F. Supp.
2d at 767.
Defendants ask the Court to conclude otherwise, contending that Plaintiff
has not sufficiently alleged Defendants’ “contribution” to an endangerment because
some allegations with regard to this element are pleaded “on information and
belief.” Mem. Supp. at 6–8, ECF No. 29 (citing Compl. ¶¶ 9–10, 47, 51; id., Count I
¶¶ 71–76, 80–82). This argument is unavailing. Pleading on information and belief
is a “practical necessity” that is “desirable and essential [ ] when matters that are
necessary to complete the statement of a claim are not within the knowledge of the
plaintiff but he has sufficient data to justify interposing an allegation on the
subject.” Charles Wright & Alan Miller, 5 Fed. Prac. & Proc. Civ. § 1224 (3d ed.
2016); see also Brown v. Budz, 398 F.3d 904, 914 (7th Cir. 2005).

Here, facts

showing precisely how and to what extent Defendants contributed to the handling
of MG Waste Oils cannot be expected to fall within Plaintiff’s knowledge; rather,
such facts more likely fall within Defendants’ purview because, as the complaint
alleges and as the Court must assume to be true, Defendants owned and controlled
the Skokie MGP and distribution infrastructure at the time MG Waste Oils were
released.

Compl. ¶ 9.

Plaintiff’s allegations are thus sufficient to survive

Defendants’ motion to dismiss, notwithstanding the fact that some allegations are
pleaded on information and belief.

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Defendants also contend that Plaintiff’s allegations that they have
contributed to the alleged waste and resulting danger are simply implausible and
should be rejected. Rather, at least according to Defendants, the presence of
methane in the affected area is more plausibly explained by the landfill beneath
James Park.

Moreover, Defendants argue that Plaintiff has not sufficiently

investigated the methane’s source in the first place and has not alleged enough facts
to demonstrate contamination of the drinking water. Mem. Supp. at 8–10. Each of
these additional arguments, however, speaks to a factual dispute inappropriate for
resolution prior to discovery, see Tamayo, 526 F.3d at 1081, and none offers a basis
to dismiss Plaintiff’s RCRA claim at the pleading stage.
Next, Defendants argue that Plaintiff fails to adequately plead the “imminent
and substantial” element of its RCRA claim because its allegations as to this
element are mere legal conclusions unsupported by facts. Mem. Supp. at 11–12.
This argument is also unpersuasive.

Courts have given this element a broad

construction, such that the imminence requirement is satisfied as long as the
plaintiff alleges any substantial ongoing threat of future harm. Albany Bank, 310
F.3d at 972; see also Forest Park Nat’l Bank & Trust v. Ditchfield, 881 F. Supp. 2d
949, 976 (N.D. Ill. 2012) (collecting cases construing the elements of § 6972(a)(1)(B)
broadly). As a result, to survive a motion to dismiss, a plaintiff bringing a RCRA
endangerment claim need not allege an already existing harm, a harm that is
certain to occur, or a harm that will manifest immediately. Albany Bank, 310 F.3d
at 972.

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In support of its allegations that MG Waste Oils may present an imminent
and substantial endangerment, Plaintiff provides specific explanations of the
potential dangers posed by MG Waste Oils, including present and future
contamination of drinking water, as well as degradation into potentially dangerous
levels of methane. Id. ¶¶ 2, 11–12; id., Count I ¶¶ 72–76. These allegations are
more than enough to support the “imminent and substantial” element of Plaintiff’s
RCRA claim. See Vill. of Riverdale, 527 F. Supp. 2d at 762–63, 767 (denying motion
to dismiss RCRA claim where plaintiff broadly alleged that defendants “released
solid wastes into the air and ground . . . [,] presenting an imminent and substantial
endangerment to health or the environment”); City of Evanston v. Texaco, Inc., 19 F.
Supp. 3d 817, 821–22 (N.D. Ill. 2014) (denying motion to dismiss RCRA claim where
plaintiff alleged a threat of future environmental harm); T & B Ltd. Inc. v. City of
Chi., 369 F. Supp. 2d 989, 993 (N.D. Ill. 2005) (denying motion to dismiss RCRA
claim where plaintiff broadly alleged an “imminent and substantial endangerment
to health and the environment by polluting or threatening to pollute the soil [and]
surface water”). Accordingly, the Court finds that Plaintiff’s complaint sufficiently
states an endangerment claim under § 6972(a)(1)(B) of RCRA.
B.

Notice of Intent to Sue

Before filing a lawsuit under § 6972(a)(1)(B), a plaintiff must first provide the
defendant with a notice of intent to sue at least ninety days before the suit is filed.
42 U.S.C. § 6972(b)(2)(A).

Failure to comply with this notice requirement is

grounds for dismissal of a RCRA claim. Hallstrom, 493 U.S. at 31. A notice of
intent to sue must be “sufficiently specific to inform the alleged violator about what
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it is doing wrong, so that it will know what corrective actions will avert a lawsuit.”
N. Ill. Gas Co., 162 F. Supp. 3d at 644 (quoting Atl. States v. Stroh, 116 F.3d 814,
819 (7th Cir. 1997)).
Without citing any supporting authority, Defendants assert that Plaintiff’s
amended notice of intent to sue is deficient because it “failed to provide sufficient
information to permit [Defendants] to identify the location of the alleged
endangerment.” Mem. Supp. at 14; see also Reply at 10, ECF No. 37. In particular,
Defendants take issue with Plaintiff’s use and definition of the term “Impacted
Area,” which appears in the complaint but not in the amended notice. Id.
Defendants’ argument, however, is swiftly undercut by a comparison of the
complaint and the amended notice.

The complaint specifically defines the area

affected by the alleged endangerment as including James Park, Dawes Elementary
School, Levy Senior Center, and their surrounding properties. Compl. ¶ 2. It then
specifies that these properties are generally bounded by Oakton Street on the north,
Dodge Avenue on the east, the North Shore Canal on the west, and Mulford Street
on the south, and it alleges facts concerning contamination of water flowing through
the Dodge Avenue Water Line. Id.
In much the same way, in describing the endangerments posed by MG Waste
Oils and the resulting methane, the amended notice makes repeated references to
James Park, Dawes Elementary School, and Levy Senior Center. Compl., Ex. B
¶¶ 35–48.

The amended notice also specifically refers to distribution pipelines

along Oakton Street and Dodge Avenue, under the North Shore Canal, and

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“immediately south of James Park,” and it refers to the Dodge Avenue Water Line
multiple times. Id., Ex. B ¶¶ 37–41, 44, 46–48.
Reading the complaint and the amended notice side by side, it is apparent
that the two documents identify the same area as the location of the alleged
endangerment. It is further apparent that the two documents describe this location
with a degree of specificity sufficient to put Defendants on notice of “what [they are]
doing wrong” and where the alleged harm has taken place. N. Ill. Gas Co., 162 F.
Supp. 3d at 644 (quoting Atl. States, 116 F.3d at 819). Moreover, to the extent
Defendants harbor concerns that Plaintiff might later attempt to redefine the
Impacted Area in order to expand its reach, those concerns should be put to rest by
Plaintiff’s concession that it “does not seek relief as to any property other than that
identified in its Amended RCRA Notice.” Resp. at 20 n.20.
For these reasons, the Court finds that Plaintiff’s amended notice of intent to
sue sufficiently identifies the location of the alleged endangerment.

Because

Plaintiff has both complied with RCRA’s notice requirement and stated a plausible
claim to relief, Defendants’ motion to dismiss Count I is denied.
C.

Civil Penalties Under § 6972(a)

In connection with its RCRA claim, Plaintiff requests injunctive and
declaratory relief as well as civil penalties under 42 U.S.C. § 6972(a).

Compl.,

Count I ¶ 85. Defendants have moved to dismiss the request for civil penalties on
the ground that it is not authorized under RCRA for the type of claim Plaintiff has
brought.

Mem. Supp. at 14–15.

For the reasons explained below, Defendants’

motion to dismiss Plaintiff’s request for civil penalties under § 6972(a) is granted.
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Section 6972(a) provides that, in a citizen suit alleging an endangerment
under § 6972(a)(1)(B), the district court “shall have jurisdiction . . . to restrain 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.” 42
U.S.C. § 6972(a). It further provides that, in suits brought under either of RCRA’s
two citizen-suit provisions, the district court “shall have jurisdiction . . . to apply
any appropriate civil penalties under section 6928(a) and (g) of this title.” Id. As
such, to determine whether a plaintiff may request civil penalties in a RCRA citizen
suit brought under § 6972(a)(1)(A) or (B), a court must decide whether § 6928(a) and
(g) apply.
Section 6928(a) addresses civil penalties that may be imposed in an order
issued by the EPA Administrator subsequent to a determination that a person “has
violated or is in violation of this subchapter.”

42 U.S.C. § 6928(a).

In turn,

§ 6928(g) provides that “[a]ny person who violates any requirement of this
subchapter shall be liable to the United States for a civil penalty in an amount not
to exceed $25,000 for each such violation.” 42 U.S.C. § 6928(g). In both provisions,
the phrase “this subchapter” refers to title 42, subchapter III of the United States
Code, the subchapter in which § 6928 is situated.
By contrast, § 6972 is located in title 42, subchapter VII.

A citizen suit

alleging an endangerment under § 6972(a)(1)(B) therefore alleges a violation of
subchapter VII, not subchapter III, see Vill. of Riverdale, 527 F. Supp. 2d at 768,
and civil penalties under § 6928(a) or (g) thus are not appropriate in such a suit.

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See id. (striking request for civil penalties in RCRA citizen suit brought under
§ 6972(a)(1)(B) because § 6972 appears in subchapter VII, not subchapter III); Verse
Two Props., LLC v. MedPlast Fremont, Inc., No. 5:14-CV-03765-EJD, 2015 WL
6955133, at *5 (N.D. Cal. Nov. 10, 2015) (dismissing plaintiff’s request for civil
penalties in RCRA citizen suit); Bd. of Cnty. Comm’rs of Cnty. of La Plata, Colo. v.
Brown Grp. Retail, Inc., No. 08-CV-00855-LTB-KMT, 2010 WL 3430919, at *3 (D.
Colo. Aug. 30, 2010) (“Interpreting Sections 6972(a) and 6928(a) & (g) according to
the plain language of these statutory provisions, I conclude that there can be no
award of civil penalties under RCRA in the absence of a violation of Subchapter III
of the Act.”); N. Cal. River Watch v. Exxon Mobil Corp., No. C 10-0534 PJH, 2010
WL 3184324, at *6 (N.D. Cal. Aug. 11, 2010) (striking plaintiff’s request for civil
penalties in RCRA citizen suit); see also Coll. Park Holdings, LLC. v. Racetrac
Petroleum, Inc., 239 F. Supp. 2d 1334, 1349 (N.D. Ga. 2002) (refusing to assess civil
penalties in RCRA suit brought under § 6972(a)(1)(A) where plaintiff alleged
violations of subchapter IX and not subchapter III).
In support of its argument that it is indeed entitled to seek civil penalties
under § 6972(a), Plaintiff cites City of Evanston v. Texaco, Inc., 19 F. Supp. 3d 817
(N.D. Ill. 2014). As in the present case, the plaintiff in Texaco brought a RCRA
endangerment claim under § 6972(a)(1)(B). Id. at 821. In addressing the question
whether civil penalties are available in RCRA suits brought by private plaintiffs,
the Texaco court reasoned that “Congress made clear” in § 6972(a) that “such civil
penalties may be awarded not only in enforcement suits brought by the EPA

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Administrator, but also in citizen suits.” Id. at 823–24. Based on this reasoning,
the court concluded that the plaintiff was permitted to seek civil penalties under
§ 6972(a). Id.
This Court agrees in part with the Texaco court’s reasoning: it is certainly
clear that Congress intended civil penalties to be available in at least some citizen
suits brought under § 6972(a). Indeed, to conclude otherwise would be to render the
civil penalties clause of § 6972(a) superfluous, which is a result that should be
avoided. See O’Kane v. Apfel, 224 F.3d 686, 689 (7th Cir. 2000); see also Clorox Co.
v. Chromium Corp., 158 F.R.D. 120, 128 (N.D. Ill. 1994) (internal quotation marks
and citations omitted) (“[A] district court should have jurisdiction . . . to apply any
appropriate civil penalties under § 6928(a) and (g) for violations of § 6972(a). To
find otherwise would render the language in question superfluous.”).
But the Court disagrees with Texaco’s conclusion that a plaintiff suing under
§ 6972(a)(1)(B) is entitled to seek civil penalties under § 6972(a) absent an
allegation of a violation of subchapter III. As explained above, § 6972(a) allows
penalties only as permitted under § 6928(a) and (g), and those provisions expressly
limit the availability of civil penalties to cases involving subchapter III violations.
The Court therefore holds that where a plaintiff brings suit under § 6972(a)(1)(B)
and does not separately allege a violation of subchapter III, the plaintiff is not
entitled to seek civil penalties under § 6972(a). This reading of § 6972(a) gives full
effect to Congress’s intent to allow civil penalties in some RCRA citizen suits,
because it leaves civil penalties available in many such cases.

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For example, a

plaintiff suing under § 6972(a)(1)(A) may allege violations of “any permit, standard,
regulation, condition, requirement, prohibition, or order which has become effective
pursuant to this chapter.”
chapter”

encompasses

42 U.S.C. § 6972(a)(1)(A).

subchapter

III

of

RCRA,

a

Because the term “this
plaintiff

suing

under

§ 6972(a)(1)(A) can allege a violation of any “permit, standard, regulation, condition,
requirement, prohibition, or order” effective pursuant to subchapter III, in which
case § 6972(a) would allow the plaintiff to seek civil penalties under § 6928(a) or (g).
Id. Alternatively, a plaintiff suing under § 6972(a)(1)(B) can separately allege a
violation of subchapter III, in which case § 6972(a) would likewise apply to allow
civil penalties under § 6928(a) or (g). See, e.g., Clorox, 158 F.R.D. at 128 (permitting
plaintiff in a RCRA suit brought under § 6972(a)(1)(B) to request civil penalties
when plaintiff separately alleged violations of subchapter III). Absent allegations of
a subchapter III violation, however, a plaintiff suing under § 6972(a)(1)(B) may not
seek civil penalties under § 6972(a). To arrive at the opposite conclusion would
render the phrase “under section 6928(a) and (g) of this title” in § 6972(a)
superfluous.
For these reasons, the Court agrees with the decisions of other courts that
have rejected requests for civil penalties in § 6972(a)(1)(B) cases in the absence of
an alleged violation under subchapter III. See Vill. of Riverdale, 527 F. Supp. 2d at
768; Verse Two Props., 2015 WL 6955133, at *5; La Plata, 2010 WL 3430919, at *3;
N. Cal. River Watch, 2010 WL 3184324, at *6. 4 As such, Defendants’ motion to
The Court rejects Plaintiff’s reliance on City of N. Chi. v. Hanovnikian, No. 06 C
0962, 2006 WL 1519578, (N.D. Ill. May 30, 2006), for the same reasons that the Court is

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dismiss Plaintiff’s request for civil penalties in Count I is granted.

Plaintiff’s

request for civil penalties is hereby stricken from Count I.
II.

Count II: Violation of Evanston’s Hazardous Substances Ordinance
In Count II, Plaintiff alleges a claim under Evanston Code of Ordinances § 9-

12-1 et seq. (“the Hazardous Substances Ordinance”).

In pertinent part, the

Hazardous Substances Ordinance authorizes the Evanston Fire and Life Safety
Services Department to “remove or abate the effects of any hazardous substance
incident involving the actual or threatened release of a hazardous material upon or
into property or facilities in the City.” E.C.O. § 9-12-2(A).

Certain persons, as

defined in the ordinance, may be held liable for these removal or abatement costs.
Id.; cf. Texaco, 19 F. Supp. 3d at 820 (permitting claim brought under Evanston’s
Hazardous Substances Ordinance).
In moving to dismiss Count II, Defendants argue that Plaintiff has not
sufficiently alleged the occurrence of a “hazardous substance incident.” Mem. Supp.
at 15–17.

The Hazardous Substances Ordinance defines the term “hazardous

substance incident” as:
Any emergency circumstance involving the sudden release or
threatened release of a hazardous substance which, in the judgment of
an emergency response authority, . . . threatens immediate and
irreparable harm to the environment or the health, safety, or welfare
of any individual other than individuals exposed to the risks associated
with hazardous substances in the normal course of their employment.

unpersuaded by Texaco. The Court also rejects Plaintiff’s reliance on Hassain v. E.P.A., 41
F. App’x 888 (7th Cir. 2002). The plaintiff in Hassain had not requested civil penalties, and
the case is therefore not on point.

18

E.C.O. § 9-12-1 (emphasis added). In turn, the term “release,” which appears in the
definition of “hazardous substance incident,” is defined in the Hazardous
Substances Ordinance as “[a]ny actual or threatened spilling, leaking[,] pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or
disposing into the environment,” subject to limited exceptions not relevant to this
case. 5 Id.
In light of this definition, Defendants argue that Plaintiff has failed to allege
a hazardous substance incident on the ground that Plaintiff has alleged neither a
“sudden release” nor a “threatened release” of a hazardous substance. Mem. Supp.
at 15–17; Reply at 12–14. The Court agrees. First, although Plaintiff alleges that
MG Waste Oils have been released from the Skokie MGP and its distribution
pipelines, see Compl. ¶¶ 10, 41, 43–44, 47, nowhere does Plaintiff suggest that any
of these releases were “sudden” in nature.
In addition, the complaint is devoid of allegations suggesting any future
“threatened releases” of MG Waste Oils from the Skokie MGP or its distribution
infrastructure. It is true that Plaintiff alleges that previously released MG Waste
Oils continue to migrate through soil, groundwater, and bedrock and threaten
future contamination of the Dodge Avenue Water Line. See Compl. ¶ 2; id., Count I
These exceptions include: “(a) any release which results in exposure to persons solely
within a workplace, with respect to a claim which such persons may assert against the
employer of such persons; (b) emissions from the engine exhaust of a motor vehicle, rolling
stock, aircraft, vessel, or pipeline pumping station engine; (c) release of source, byproduct,
or special nuclear material from a nuclear incident, as those terms are defined in Atomic
Energy Act of 1954, if such release is subject to requirements with respect to financial
protection established by the Nuclear Regulatory Commission under Section 1870 of such
Act; and (d) the normal application of fertilizer.” E.C.O. § 9-12-1.

5

19

¶ 71; id., Count III ¶ 68.

But these allegations speak only to future harm, not

future releases of MG Waste Oils from the Skokie MGP or its distribution
infrastructure (which, according to Plaintiff, have already taken place).
For these reasons, the Court finds that Plaintiff has alleged neither a
“sudden release” nor a “threatened release” of MG Waste Oils triggering a
hazardous substance incident under Evanston’s Hazardous Substances Ordinance.
Count II is therefore dismissed for failure to state a claim. 6
III.

Counts III–V: Trespass, Private Nuisance, and Public Nuisance
In connection with the alleged release of MG Waste Oils in the Impacted

Area, Plaintiff has brought claims for trespass, private nuisance, and public
nuisance in Counts III, IV, and V, respectively. Plaintiff seeks injunctive relief,
compensatory damages, and punitive damages. Defendants have moved to dismiss
these counts, arguing that Plaintiff has not adequately alleged negligent or
intentional tortious conduct by Defendants. Mem. Supp. at 20–23. They have also
moved to dismiss Plaintiff’s request for punitive damages as barred by the statute of
limitations.

Id. at 23–26.

For the reasons provided below, the Court denies

Defendants’ motion to dismiss Counts III through V as well as their motion to
dismiss Plaintiff’s request for punitive damages.

Because Defendants’ motion to dismiss Count II is granted on the ground that
Plaintiff has failed to allege a hazardous substance incident, the Court does not address
Defendants’ alternative argument that they are not entities who may held liable as
“responsible parties” under the Hazardous Substances Ordinance.
6

20

A.

Trespass Claim

In Illinois, a trespass is “an invasion in the exclusive possession and physical
condition of land.” Millers Mut. Ins. Ass’n of Ill. v. Graham Oil Co., 668 N.E.2d 223,
230 (Ill. App. Ct. 1996) (citing Colwell Sys., Inc. v. Henson, 452 N.E.2d 889, 892 (Ill.
1983)). Trespass can occur through an act that is either negligent or intentional.
Helping Others Maintain Envtl. Standards v. Bos, 941 N.E.2d 347, 367 (Ill. App. Ct.
2010); Dial v. City of O’Fallon, 411 N.E.2d 217, 222 (Ill. 1980).
Defendants argue that Plaintiff’s trespass claim must be dismissed because
Plaintiff has not alleged either negligent or intentional conduct. Mem. Supp. at 20–
21. In support, Defendants cite Village of DePue, Illinois v. Viacom International,
Inc., 632 F. Supp. 2d 854 (C.D. Ill. 2009). The court in DePue dismissed a claim for
trespass under Illinois law where the claim was supported solely by an allegation
that “run off and downhill migration of the toxic metals . . . from the site into the
Village of DePue and the Village property [was] a continuing common law trespass
for which [defendants were] liable.” 632 F. Supp. 2d at 865 (quoting Am. Compl.
¶ 23).

In dismissing the claim, the court held that this single allegation was

insufficient because it pointed “merely [ ] to the migration of hazardous substances”
and did not allege any tortious conduct by the defendants. Id.
The allegations in the present case are distinguishable from the single
allegation of trespass presented to the court in DePue. Here, the complaint includes
detailed factual allegations explaining that MG Waste Oils caused harmful
contamination by leaking from the Skokie MGP and its distribution pipelines,
which were owned and operated by Defendants at the time of the leaking. Compl.
21

¶¶ 2, 9, 10, 41–50. Plaintiff also alleges that Defendants acted negligently, had
knowledge of the contaminants’ entry onto Plaintiff’s property, and “caused and
allowed, and continue to cause and allow, contaminants to migrate and enter soil,
groundwater and the bedrock formation in, under and around the Impacted Area.”
Id., Count III ¶¶ 68, 70, 72.

In other words, unlike the complaint in DePue,

Plaintiff’s complaint alleges negligent or intentional conduct causing contaminants
to enter Plaintiff’s property, and it therefore states a claim for trespass under
Illinois law.

Cf. Texaco, 19 F. Supp. 3d at 826–27 (denying motion to dismiss

trespass claim under Illinois law where plaintiff alleged that defendants had
negligently leaked contaminants onto plaintiff’s property). Defendants’ motion to
dismiss Count III is accordingly denied.
B.

Nuisance Claims

Under Illinois law, a private nuisance is an invasion of another’s interest in
the use and enjoyment of his or her land. In re Chi. Flood Litig., 680 N.E.2d 265,
277 (Ill. 1997).

The invasion must be substantial, unreasonable, and either

negligent or intentional.

Id.

Similarly, a public nuisance is a substantial and

unreasonable interference with a public right. City of Chi. v. Am. Cyanamid Co.,
823 N.E.2d 126, 131 (Ill. 2005). Under the federal notice pleading standards, a
nuisance claim under Illinois law can survive a motion to dismiss pursuant to Rule
12(b)(6) where the plaintiff alleges that the defendant’s conduct threatens the
plaintiff’s property with environmental contamination. See Texaco, 19 F. Supp. 3d
at 825–26 (holding that plaintiff stated a private nuisance claim under Illinois law
“[b]y alleging that petroleum, gasoline, and their carcinogenic byproducts migrated
22

and continue[d] to migrate from the Texaco station to [plaintiff’s] adjacent
property”); Echternach v. D.H. Martin Petroleum Co., No. 97 C 3802, 1997 WL
627646, at *4 (N.D. Ill. Sept. 30, 1997) (holding that plaintiff stated a public
nuisance claim under Illinois law by alleging releases of petroleum that had
“infiltrated the soil, sewer system, groundwater, surface water, and air in the area
surrounding the [defendant’s] property” and “present[ed] an immediate threat to
health and the environment”); Dominick’s Finer Foods, Inc. v. Amoco Oil Co., No. 93
C 4210, 1993 WL 524808, at *1, *8 (N.D. Ill. Dec. 15, 1993) (holding that plaintiff
stated a nuisance claim under Illinois law by alleging that “gasoline, fuel oil, and
waste oil . . . leak[ed] from the underground tanks” at defendant’s facility and
contaminated the soil on plaintiff’s property).
In this case, Plaintiff has alleged that MG Waste Oils leaking from the
Skokie MGP and distribution infrastructure, which are or were owned and operated
by Defendants, have contaminated the soil, groundwater, and bedrock on Plaintiff’s
property. Compl. ¶¶ 2, 9, 49. In addition, Plaintiff has alleged that MG Waste Oils
have contaminated and may continue to contaminate the local water supply. Id.
¶¶ 48–50. Plaintiff thus has sufficiently stated private and public nuisance claims
under Illinois law. Defendants’ motion to dismiss Counts IV and V is therefore
denied.
C.

Punitive Damages

In connection with its claims for trespass and nuisance, Plaintiff seeks
punitive damages, among other forms of relief. Defendants argue that Plaintiff’s
request for punitive damages should be dismissed because “none of the purportedly
23

wrongful conduct occurred within the five-year statute of limitations.” Mem. Supp.
at 23 (citing 735 Ill. Comp. Stat. 5/13-205). According to Defendants, the Court
should conclude that the alleged wrongful conduct occurred more than five years
prior to the filing of the complaint on the basis that the complaint “unambiguously
alleges that the Skokie MGP ceased operations more than six decades ago.” Id.
(emphasis omitted) (citing Compl. ¶ 36).
But such a conclusion would be a non sequitur.

Although the complaint

states that “[t]he Skokie MGP ceased operation in or about the early 1950s,” Compl.
¶ 36, nowhere does it state that the migration of MG Waste Oils, on which
Plaintiff’s claims are based, also occurred in the early 1950s. To the contrary, the
complaint plausibly suggests that MG Waste Oils may have migrated onto
Plaintiff’s property within the past five years. See, e.g., Compl., Count III ¶ 68
(“Nicor and ComEd have caused and allowed, and continue to cause and allow,
contaminants to migrate and enter soil, groundwater and the bedrock formation in,
under and around the Impacted Area.”). Because “there is a conceivable set of facts,
consistent with the complaint, that would defeat a statute of limitations defense,
questions of timeliness are left for summary judgment (or ultimately trial), at which
point [this Court] may determine compliance with the statute of limitations based
on a more complete factual record.” Sidney Hillman Health Ctr. of Rochester v.
Abbott Labs., Inc., 782 F.3d 922, 928 (7th Cir. 2015) (citing Clark v. City of
Braidwood, 318 F.3d 764, 767 (7th Cir. 2003); Early v. Bankers Life & Cas. Co., 959

24

F.2d 75, 80 (7th Cir. 1992)). Defendants’ motion to dismiss Plaintiff’s request for
punitive damages as barred by the statute of limitations is thus denied. 7
IV.

Count VI: Breach of Contract
The final count of Plaintiff’s complaint brings a claim for breach of contract,

alleging that the release of MG Waste Oils in the Impacted Area violates a
franchise agreement that Plaintiff and Nicor entered in 1982. Plaintiff bases its
breach of contract claim upon §§ 2 and 3 of the agreement.
Codified in the form of an Evanston municipal ordinance, the franchise
agreement grants Nicor the rights to construct, operate, and maintain a gas
distribution system in the City of Evanston. See Compl., Count VI ¶ 68; id., Ex. H.
Section 2 concerns the location of Nicor’s pipes and other gas distribution
components. It obligates Nicor to repair, or pay for the repair costs of, “any drain,
sewer, catch basin, water pipe, pavement or other like public improvement [ ]
injured by such location.” Id., Count VI ¶ 69; id., Ex. H § 2. In turn, § 3 obligates
Nicor to indemnify Plaintiff for certain costs and expenses that Plaintiff “may
legally suffer or incur” as a result of Nicor’s exercise of privileges granted pursuant
to the agreement’s terms. Id., Count VI ¶ 71; id., Ex. H § 3.
Plaintiff alleges that Nicor is in breach of § 2 of the agreement because Nicor
“fail[ed] to maintain that portion of the Skokie’s MGP’s distribution infrastructure
Because the Court rejects Defendants’ statute of limitations argument as
inappropriate for resolution at this stage, the Court does not address Plaintiff’s
counterargument that Plaintiff is not subject to the statute of limitations as a unit of
government asserting public rights. See Resp. at 27–28. Plaintiff may raise this argument
at another time if Defendants choose to raise a statute of limitations defense later in the
proceedings.
7

25

located within the City so as to prevent the leakage of MG Waste Oils into the
environment.”

Id., Count VI ¶ 70. Plaintiff further alleges that Nicor is liable

under § 3 because Plaintiff has incurred “damages, costs, expenses and attorney’s
fees” in connection with Nicor’s “placement of pipes . . . in locations in the City that
have leaked MG Waste Oils into the environment and degraded to form methane.”
Id., Count VI ¶ 72.
Nicor has moved to dismiss Plaintiff’s breach of contract claim on two bases.
First, Nicor argues that the codified franchise agreement cannot be retroactively
applied to any of its conduct prior to the agreement’s formation in 1982. Mem.
Supp. at 27–28. As Nicor points out, the complaint alleges only that the Skokie
MGP ceased operations in the early 1950s and that Plaintiff first became aware of
the released MG Waste Oils around 2012, see Compl. ¶¶ 36, 51; it does not specify
whether the alleged releases of MG Waste Oils occurred before or after 1982.
To survive a motion to dismiss, however, a plaintiff is not necessarily
required to provide the exact dates of the alleged violations, as long as the
complaint “give[s] the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.” Twombly, 550 U.S. at 555 (internal quotation marks omitted).
When conduct alleged in a complaint “straddles” the effective date of a governing
statute or ordinance, “[a] retroactivity question cannot be decided at the pleading
stage.” Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 617 (7th Cir. 2007).
This is because, “accepting the allegations as true, the [ ] violation could have
occurred before [the statute’s or ordinance’s] effective date; discovery may or may

26

not bear this out.” Id. at 623. Here, discovery may reveal that the alleged releases
of MG Waste Oils occurred only after 1982, in which case “the issue of retroactivity
may ultimately be irrelevant.” Id. Nicor’s argument against retroactive application
of the codified franchise agreement is therefore inapposite at this stage of the
proceedings.
Next, Nicor takes issue with Plaintiff’s breach of contract claim to the extent
it is based on § 2 of the agreement. 8 In particular, Nicor argues that § 2 “addresses
a limited issue—where pipes ‘shall be . . . located’—and provides a remedy for
damage caused by such location.” Mem. Supp. at 27. Plaintiff has failed to allege a
breach of this provision, according to Nicor, because the complaint attacks “Nicor’s
fail[ure] to maintain [pipelines] located within the City” instead of directly
attacking the pipelines’ location. Id. at 27–28 (quoting Compl., Count VI ¶ 70). In
response, Plaintiff argues that it has plausibly alleged a breach of § 2 based on
harms “caused by [the] location” of Nicor’s pipes, presumably reasoning that harms
caused by the release of MG Waste Oils from certain pipes would have been
mitigated if those pipes had been differently located. Resp. at 29.
In essence, this dispute revolves around the question of how to interpret what
it means for something to be “injured by [the] location” of Nicor’s pipes under § 2 of
the agreement. Compl., Ex. H § 2. In interpreting a contract, a court’s primary
objective is to determine and give effect to the intention of the parties. Harmon v.
Apart from the retroactivity argument discussed above, which Nicor aims at both § 2
and § 3 of the agreement, Nicor’s motion to dismiss does not appear to challenge Plaintiff’s
breach of contract claim to the extent it is based on § 3. See Mem. Supp. at 26–28; Reply at
28–30.
8

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Gordon, 712 F.3d 1044, 1050 (7th Cir. 2013).

When a contract’s language is

unambiguous, the court must give the language its plain and ordinary meaning. Id.
Contract language is ambiguous “when it is reasonably susceptible to different
constructions.” Kaplan v. Shure Bros., 266 F.3d 598, 605 (7th Cir. 2001). “[O]nce
contractual ambiguity is established, the task of interpreting the contract’s meaning
generally becomes a question of fact for the jury.” Lesaint Logistics, LLC v. Electra
Bicycle Co., LLC, 146 F. Supp. 3d 972, 976–77 (N.D. Ill. 2015) (citing Cont’l Cas. Co.
v. Nw. Nat’l Ins. Co., 427 F.3d 1038, 1041 (7th Cir. 2005)).
Nicor makes no attempt to explain why the language of the franchise
agreement is not reasonably susceptible to Plaintiff’s interpretation. As such, Nicor
has not persuaded the Court at this point that the agreement’s language is
unambiguous, much less that Nicor’s interpretation of the agreement’s language is
unambiguously correct. Accordingly, Nicor’s motion to dismiss Count VI is denied.

28

Conclusion
For the reasons stated herein, the Court grants in part and denies in part
Defendants’ motion to dismiss Plaintiff’s complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6) [27]. Count II is dismissed without prejudice. In addition,
the Court grants Defendants’ motion to dismiss Plaintiff’s request for civil penalties
under RCRA.

The request for civil penalties in Count I of the complaint is

accordingly stricken. In all other respects, Defendants’ motion to dismiss is denied.
IT IS SO ORDERED.

ENTERED 1/17/17

__________________________________
John Z. Lee
United States District Judge

29