935 F. Supp. 2d 889
N.D. Ill.2013Background
- In May 2011, KZF Development and/or Dundee Partners removed trees on a 6.8-acre site in Northbrook, Illinois, potentially causing flooding and property damage to the Longs.
- Plaintiffs filed a 2012 lawsuit asserting Clean Water Act (CWA) violations (Count I) and nuisance, trespass, and negligence under Illinois law (Counts II-IV).
- Count I is a CWA citizen-suit; plaintiffs must provide 60-day notice to the EPA, state, and alleged violator before filing.
- Plaintiffs sent a 60-day notice on January 16, 2012 to EPA, IEPA, and KZF describing two alleged violations and stating intent to sue for all violations if not addressed.
- Dundee filed a Notice of Intent to be covered under the General Permit on February 7, 2012; IEPA confirmed General Permit coverage on March 7, 2012.
- KZF later claimed the Site is owned by Dundee and that plaintiffs’ notice targeted the wrong party; the court ultimately held the 60-day notice did not suffice for the ongoing-violation theory and dismissed Count I.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 60-day notice properly identified violator and ongoing violations. | Longs contend notice suffices since both owner and operator may be liable. | KZF/Dundee argue notice to the wrong party and lack of ongoing-violation notice. | Count I dismissed for inadequate notice and failure to plead ongoing violations. |
| Whether plaintiffs’ alleged ongoing CWA violations survived after being cured before suit. | Violations continued and could be subject to suit. | Only past violations, if any, remained; no ongoing violation. | Dismissed as to ongoing violations; only past notices were addressed. |
| Whether the court should retain jurisdiction over state-law claims after dismissing federal claims. | State claims should proceed under pendent jurisdiction. | Separation of federal and state claims is appropriate. | Dismissed without prejudice; declined supplemental jurisdiction. |
Key Cases Cited
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987) (limits citizen suits to ongoing violations; notice serves to prompt compliance)
- Atlantic States Legal Foundation, Inc. v. Stroh Die Casting Co., 116 F.3d 814 (7th Cir. 1997) (notice must be sufficiently specific to identify violations and allow corrective action)
- Hallstrom v. Tillamook County, 493 U.S. 20 (1989) (mandatory precondition of suit under analogous statutory scheme)