881 F. Supp. 2d 949
N.D. Ill.2012Background
- FPNB acquired the adjacent 423 Ashland residential property after a 2009 foreclosure.”
- RFC operated at 7613-7615 Lake Street for decades; perc contamination is undisputed beneath RFC and in surrounding soil/groundwater.
- IEPA and Bonestroo investigated, with multiple FSIRs/RORs from 2003-2010; contamination plume extends toward 423 Ashland.
- USEPA involvement began in 2009-2010; vapor mitigation systems were installed at Annie’s and My Gym; Edward Ditchfield settled past response costs with the EPA in 2011.
- FPNB filed suit in 2010 alleging RCRA violations, CERCLA claims for past/future response costs, and related state-law claims; the court resolves some claims on summary judgment while others proceed to trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing for RCRA claims | FPNB has current and imminent injury to its property. | Standing lacks because injury must be concrete and actual; contamination on adjacent property may be insufficient. | FPNB has standing based on trespass and potential future harm to adjacent property. |
| RCRA § 6972(a)(1)(A) current presence vs Illinois regulations | Continued presence of perc constitutes ongoing violation and Illinois regulatory violations are ongoing. | Only ongoing regulatory violations or current emission are implicated; past emissions are not actionable. | Summary judgment for Defendants on current presence as wholly past violations; dispute remains on Illinois-regulatory ongoing violations. |
| RCRA § 6972(a)(1)(B) imminent and substantial endangerment | Defendants contributed to mishandling of hazardous waste may present imminent endangerment. | Threats are speculative and require concrete immediacy; no near-term danger shown for 423 Ashland. | Genuine disputes exist; cross-motions denied to the extent of endangerment claim; issues remain for trial. |
| CERCLA cost recovery and declaratory judgment (Counts III-IV) | Costs incurred for investigation were necessary; declaratory relief appropriate for future costs. | Costs not necessary or appropriately allocable; future cost obligations uncertain. | Court grants FPNB summary judgment on CERCLA cost recovery and future costs declaratory judgment. |
Key Cases Cited
- Covington v. Jefferson Cnty., 358 F.3d 626 (9th Cir. 2004) (standing requires reasonable concerns about injury and causation)
- Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (U.S. 1987) (continuous or intermittent violation; forward-looking framing of violation)
- American Bottom Conservancy v. U.S. Army Corps of Engineers, 650 F.3d 652 (7th Cir. 2011) (standing and injury-at-fact to environmental interests)
- North Shore Gas Co. v. EPA, 930 F.2d 1239 (7th Cir. 1991) (CERCLA § 113(h) context; limits on challenges to EPA actions)
- Dydio v. Hesston Corp., 887 F. Supp. 1037 (N.D. Ill. 1995) (continuous violation theory under RCRA §6972(a)(1)(A) with ongoing corrective actions)
- Mallinckrodt, Inc. v. Honeywell Int’l, Inc., 471 F.3d 277 (1st Cir. 2006) (interpretation of endangerment and may language under §6972(a)(1)(B))
- Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 399 F.3d 248 (3d Cir. 2005) (broad interpretation of endangerment may be)