City of Evanston v. Texaco, Inc.

19 F. Supp. 3d 817, 44 Envtl. L. Rep. (Envtl. Law Inst.) 20040, 78 ERC (BNA) 1678, 2014 U.S. Dist. LEXIS 21757, 2014 WL 683736
CourtDistrict Court, N.D. Illinois
DecidedFebruary 21, 2014
Docket13 C 2106
StatusPublished
Cited by17 cases

This text of 19 F. Supp. 3d 817 (City of Evanston v. Texaco, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Evanston v. Texaco, Inc., 19 F. Supp. 3d 817, 44 Envtl. L. Rep. (Envtl. Law Inst.) 20040, 78 ERC (BNA) 1678, 2014 U.S. Dist. LEXIS 21757, 2014 WL 683736 (N.D. Ill. 2014).

Opinion

Memorandum Opinion and Order

Gary Feinerman, United States District Judge

The City of Evanston, Illinois, filed this suit initially against Chevron U.S.A. Inc. and E-Town Community Ventures, alleging that they are responsible for contamination on and around a property in Evans-ton formerly occupied by a gasoline service station. Doc. 1. After questions were raised as to whether Chevron U.S.A. was a proper defendant, Evanston filed an amended complaint that kept E-Town as a defendant, dropped Chevron U.S.A. as a defendant, and added Chevron Corporation, Texaco, Inc., and Chevron Environmental Management Company (“Chevron EMC”) as defendants. Doc. 24. The three new defendants — which are affiliated and represented by the same lawyers, and which have filed joint pleadings — will be referred to collectively as “Chevron” unless the context requires otherwise. Count I of the amended complaint is a citizens suit under 42 U.S.C. § 6972(a) that seeks declaratory, injunctive, and other ancillary relief against Chevron for alleged violations of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq. Doc. 24 at pp. 8-10. Counts II-IV allege claims against Chevron and E-Town under the Illinois common law of trespass and private nuisance and the Evanston Hazardous Substances Ordinance. Doc. 24 at pp. 11-14.

Chevron has moved to dismiss Counts IIV under Federal Rule of Civil Procedure 12(b)(6). Doc. 29. E-Town has joined Chevron’s motion with respect to Counts II-IV. Docs. 32, 35. The motion is denied in its entirety.

Background

In considering the motion to dismiss, the court assumes the truth of the amended complaint’s factual allegations, though not its legal conclusions. See Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir.2012). The court must also consider “documents attached to the [amended] complaint, docu-[821]*821merits that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice,” along with additional facts set forth in Evans-ton’s brief opposing dismissal, so long as those facts “are consistent with the pleadings.” Geinosky v. City of Chicago, 675 F.3d 743, 745 n. 1 (7th Cir.2012). The following facts are set forth as favorably to Evanston as those materials allow. See Gomez v. Randle, 680 F.3d 859, 864 (7th Cir.2012).

From 1925 to the late 1990s, a gasoline and auto repair service station, most recently operated by Texaco, occupied the northeast corner of the intersection of Church Street and Darrow Street in Ev-anston (the “Texaco Station”). Doc. 24 at ¶¶2, 24-25. Texaco used underground storage tanks (“USTs”), “gasoline dispenser islands,” and piping under the station, as well as an “auto lift and grease pit.” Id. at ¶¶ 25-26. In the 1960s, during Texaco’s operation of the station, contaminants were leaked from at least two USTs. Id. at ¶¶ 27-30. The Texaco Station has been vacant since the late 1990s. Id. at ¶24. E-Town acquired legal title to the property in April 2002. Id. at ¶ 18.

In the meantime, in 2000, the Illinois State Fire Marshal conducted an “exploratory excavation” of the Texaco Station. Id. at ¶ 31. The Fire Marshal issued a Notice of Violation, concluding that “[a]t least two unregistered USTs were abandoned improperly” and that the “USTs contained water and gasoline” and were “leaking in close proximity to a sewer.” Id. at ¶ 31 & pp. 18-19. In April 2001, the Fire Marshal issued a report stating: “[NJothing has been done to this site. The tanks are still leaking and no caps are on the vents, fills[,] or product Unes. They are continuing to take on water.” Id. at ¶ 32.

In March 2012, an environmental consultant hired by Evanston issued a report noting the presence of petroleum exceeding the amounts allowed by state regulations. Id. at ¶ 35 & pp. 23-73. A subsequent report issued in July 2012 noted the presence of two 2,000-gallon USTs filled with water and gasoline and two 3,000-gallon USTs filled with sand. Id. at ¶ 36; see id. at pp. 75-83. That second report concluded that contamination was migrating from the Texaco Station to Church and Darrow Streets and could possibly affect commercial and residential properties to the east. Id. at ¶ 37.

As a result of Texaco’s conduct, the soil and groundwater at the Texaco Station and adjacent city-owned and privately-owned property are contaminated with petroleum, gasoline, and their byproducts, including benzene, toluene, ethylbenzene, xylene, polynuclear aromatic hydrocarbons, and lead. Id. at ¶¶ 5, 7-8. The contamination contains carcinogens. Id. at ¶11.

Discussion

I. Count I: RCRA Claim

A. Whether Count I Adequately Pleads a RCRA Claim

RCRA allows any person to file a citizen suit “against 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 which may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B); see generally Adkins v. VIM Recycling, Inc., 644 F.3d 483, 486-87 (7th Cir.2011). A § 6972(a) claim requires the plaintiff to show: “(1) that the defendant has generated solid or hazardous waste, (2) that the defendant is contributing or has contributed to the handling of this waste, and (3) that this waste [822]*822may present an imminent and substantial danger to health or the environment.” Albany Bank & Trust Co. v. Exxon Mobil Corp., 310 F.3d 969, 972 (7th Cir.2002). Chevron challenges only the third element, arguing that Evanston has not adequately alleged that the contamination at the Texaco Station presents an “imminent and substantial” threat because it has existed for fifty years, an ordinance prohibits extracting groundwater from wells, “most” of the station is covered by asphalt or concrete, and contaminated water has not reached the surface. Doc. 30 at 6-8.

Chevron’s argument cannot be resolved in its favor at the pleading stage. Precedent holds that “[imminence does not require an existing harm, only an ongoing threat of future harm.” Albany Bank & Trust, 310 F.3d at 972 (citation omitted). The amended complaint sufficiently alleges the threat of future harm, as it is plausible that contaminated subsurface water could migrate to the surface through the portions of the Texaco Station uncovered by asphalt or through adjacent properties to which the contamination has migrated and is migrating. It follows that the RCRA claim survives dismissal. See Forest Park Nat’l Bank & Trust v. Ditch-field,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
19 F. Supp. 3d 817, 44 Envtl. L. Rep. (Envtl. Law Inst.) 20040, 78 ERC (BNA) 1678, 2014 U.S. Dist. LEXIS 21757, 2014 WL 683736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-evanston-v-texaco-inc-ilnd-2014.