Clean Harbors Servs., Inc. v. Ill. Int'l
Clean Harbors Servs., Inc. v. Ill. Int'l
Opinion of the Court
Plaintiff Clean Harbors Services, Inc. ("Clean Harbors") brought this action against Defendant The Illinois International Port District ("Port District") asserting claims under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"),
BACKGROUND
This case involves contaminated property located at 11700 and 11800 South Stony Island in Chicago, Illinois (the "property"). R. 108 ¶ 1. The Port District has owned the property since 1955. In the 1960s and 1970s, the Port District began to construct piers on the property with fill materials consisting of industrial waste, construction debris, natural material, and a mixture of soil, steel industry wastes, and pea-sized gravel.
Beginning in the 1980s, the Port District leased the property to two different companies, ChemClear, Inc. and CMW Chemical Services, Inc., both of which Clean Harbors later acquired. (Throughout this Order, the Court refers to Clean Harbors and these companies collectively as "Clean Harbors.") Clean Harbors operated a waste processing facility at the property that processed hazardous wastes for disposal or recycling at offsite locations. Clean Harbors and the Port District are co-permittees on permits issued by the Illinois Environmental Protection Agency ("IEPA"). One such permit is a RCRA Part B permit, which was originally issued on November 4, 2005 and expired on December 9, 2015 (the "Permit"). The IEPA renewed the Permit effective September 6, 2017. R. 108 ¶ 197.
The IEPA eventually directed the Port District and Clean Harbors to conduct a RCRA facility investigation of the property. The parties performed the investigation and discovered contamination primarily related to Hyon Waste's operations in the 1970s. R. 108 ¶¶ 89-99. Clean Harbors incurred substantial costs to conduct the investigation.
In 2012, Clean Harbors provided notice of its intent to terminate its leases on the property and identified issues related to the Cap and Drain Plan that needed to be resolved as part of its winding down of operations at the property. R. 108 ¶¶ 130-131. Two weeks after Clean Harbors gave notice of its intent to terminate the leases, the Port District wrote to the IEPA stating it had not approved the Cap and Drain Plan.
On February 19, 2013, Clean Harbors provided written notice to the Port District, the IEPA, and the U.S. Environmental Protection Agency ("EPA") of its intent to file a RCRA citizen suit against the Port District pursuant to
In December 2013, the Court stayed the case to allow the IEPA to approve Phase II of the Cap and Drain Plan. R. 65. In January 2017, the Court resumed proceedings. R. 98. Clean Harbors subsequently filed its Third Amended Complaint ("TAC") on October 10, 2017. R. 108. At issue in this dispute are Counts II, III, and VIII. In Count II of the TAC, Clean Harbors asserts a cause of action under the endangerment citizen suit provision of the RCRA,
On October 31, 2017, the Port District filed a motion to dismiss Counts II, III, and VIII of the TAC under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). As to the RCRA claims, the Port District argues Clean Harbors (1) failed to allege any facts showing it has an "injury in fact" to demonstrate standing under Article III of the Constitution; (2) failed to provide adequate pre-suit notice; and (3) failed to sufficiently allege RCRA violations under each provision. The Port District argues that Count VIII should be dismissed because Clean Harbors improperly bases its unjust enrichment claim on an express written contract.
LEGAL STANDARD
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7 ,
Rule 12(b)(1) authorizes the Court to dismiss any claim for which the Court lacks subject matter jurisdiction according to Article III, Section 2 of the U.S. Constitution. When a defendant challenges jurisdiction, the plaintiff bears the burden of establishing a court's jurisdiction. Lujan v. Defenders of Wildlife,
*562DISCUSSION
I. RCRA (Counts II and III)
The RCRA was enacted to aid in a national policy to reduce or eliminate hazardous waste "as expeditiously as possible."
RCRA authorizes two general types of citizen suits. First, a plaintiff may commence a civil action against "any person ... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter."
In Counts II and III, Clean Harbors brings both types of citizen suits. Count II, (the "Endangerment Claim"), is a claim under § 6972(a)(1)(B). Clean Harbors alleges that the Port District was at all relevant times the owner of the property and (1) actively contributed to the contamination through the construction of the piers on the property; (2) knew and approved of hazardous waste handling, treatment, storage, and disposal activities at the property by Hyon Waste; and (3) presents an imminent and substantial endangerment to health and the environment through its demands that the engineered barrier be removed from the property. R. 108 ¶¶ 170, 171, 185. Clean Harbors alleges it issued a written notice and demand to the Port District, the EPA Administrator, and the IEPA as required by
In Count III, Clean Harbors brings a claim under § 6972(a)(1)(A) (the "Permit Claim"). Clean Harbors alleges the Port District violated the Permit by demanding that Clean Harbors remove engineered barriers approved as part of the Cap and Drain Plan; by refusing to implement and pay its fair share of the costs of the Cap and Drain Plan; and by obstructing Clean Harbors from accessing the Property to monitor ground water conditions in compliance with the Permit. R. 108 ¶¶ 197-201.
*563Clean Harbors alleges these actions violate (i) Section 4 of Attachment I and Section V(C)(1) of the Permit; (ii) 35 Ill. Admin. Code §§ 724.201(a), 702.141 and 703.121(a)(2); and (iii)
A. Article III Standing
To establish standing under Article III of the Constitution, Clean Harbors must plead: (1) a "concrete and particularized" injury in fact that may be either "actual or imminent;" (2) a causal connection between the injury and the conduct complained of; and (3) a likelihood that a favorable decision will result in a remedy for the plaintiff. Lujan ,
Further, "injury in fact" is loosely defined by courts as requiring a "personal stake in the outcome" of the litigation, (see Sierra Club v. Morton,
The Port District appears to confuse Article III standing with standing under a statute. It argues Clean Harbors has failed to allege that "it has any concerns-health, environmental, aesthetic, recreational, injury, or otherwise," R. 116 at 1, and that monetary claims do not provide the "necessary injury-in-fact under RCRA ," Id. at 2 (emphasis added). But Article III does not require nor bar specific injuries. Instead, it requires only that a plaintiff show it has an injury that is "concrete and particularized" enough to move beyond the world of individuals with only "generalized grievances." According to these standards, Clean Harbors has sufficiently alleged an injury in fact-it alleges it has incurred substantial costs due to the previous contamination of the property and continues to be injured due to the Port District's actions in violation of the Cap and Drain Plan. See R. 108 ¶¶ 86, 184-185, 198-216. Clean Harbors' injury is not the "generalized grievance" Article III intends to deter.
Neither of the cases the Port District cites support its argument. In Premier Assocs., Inc. v. EXL Polymers, Inc.,
Consequently, the Court concludes that Clean Harbors has established a basis for constitutional standing, and the Port District's motion to dismiss on that issue is denied.
B. Pre-Suit Notice
The Port District next argues that Clean Harbors failed to meet the pre-suit notice requirements of the RCRA in regard to both its Endangerment and Permit claims. Specifically, the Port District argues Clean Harbors' pre-suit notice was deficient because: (1) it failed to give the Port District notice that it used contaminated material to construct the piers (the "pier allegations"); (2) it failed to cite any regulations or sections of the RCRA permit provisions that the Port District violated (the "permit allegations"); and finally (3) it failed to notify the Port District of its obstruction of access to the property as alleged in ¶ 201 of Count III (the "obstruction allegation"). R. 112 at 5-6, 11-12; R.116 at 3.
The RCRA requires parties to notify a RCRA violator before commencing suit, but it does not specify what notice is required.
*565but requiring that the notice direct the violator's attention to the issue); Mejdreck v. Lockformer Co.,
Further, Congress has authorized the EPA to oversee the implementation of the RCRA and to issue regulations with the force of law to support the RCRA's purposes. See
1. Pier Allegations
The Port District argues that Clean Harbors failed to provide it with any notice of the pier allegations in its notice letter. The Court agrees. Clean Harbors' notice,
2. Permit Allegations
The EPA requires notice regarding a permit violation to include sufficient information to allow the recipient to (1) identify the specific permit, standard, regulation, condition, requirement, or order which has allegedly been violated; (2) the activity alleged to constitute a violation; (3) the person or persons responsible for the alleged violation; (4) the date or dates of the violation; and (5) the full name, address, and telephone number of the person giving notice.
Clean Harbors then specified the activities that caused the violation, including the Port District's refusal to implement the Cap and Drain Plan, its refusal to cooperate to execute Permit modifications, and its demand that the engineered barrier on the property be removed.
3. Obstruction Allegation
Finally, the Port District argues that Clean Harbors' allegations that "the Port District has obstructed Clean Harbors from accessing the Property in order to monitor ground water conditions in compliance with the Permit" (R. 108 ¶ 201) were not included in the pre-suit notice and must be dismissed. Clean Harbors provided written notice to the Port District of certain violations on October 2, 2012 and provided notice of additional violations on February 19, 2013. R. 6-5 at 21; 108-5 at 19. The October notice accused the Port District of, among other things, refusing to grant Clean Harbors access to the property "for the purpose of allowing Clean Harbors to comply with conditions and requirements of the RCRA Permit, including monitoring the facility perimeter and systems."
*567C. Failure to State RCRA Claims
1. RCRA Endangerment Claim (Count II)
RCRA's endangerment provision authorizes suit 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 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."
The Port District cites cases to support its argument that merely being an owner of the property is insufficient to find it was actively involved with the contamination. R. 112 at 8-9. But the Port District's cases dealt with owners of properties who had purchased the properties after the contamination, not with owners alleged to be actively involved in the contamination. See e.g, Town & Country Co-Op, Inc. v. Akron Prod. Co.,
Clean Harbors alleges the Port District was the owner of the property at the time of contamination and had an active role in the contamination-it alleges the Port District authorized Hyon Waste to contaminate; failed to hold Hyon Waste accountable for its contamination activities; and demands Clean Harbors remove the engineered barrier that prevents additional contamination. See R. 108 ¶¶ 51-53, 170-172, 185. Whether Clean Harbors can show the Port District's role with Hyon Waste was in fact active rather than passive is a matter for summary judgment or trial. At this stage, however, Clean Harbors' allegations are sufficient to plead that the Port District "contributed or is contributing to" the contamination to sustain its RCRA Endangerment Claim. See Carlson v. Ameren Corp.,
2. RCRA Permit Claim (Count III)
Because the Court finds that Clean Harbors failed to provide pre-suit notice as to the pier allegations, the issues remaining under Count III involve Clean Harbors' allegations that the Port District violated the Permit provisions by refusing to implement the Cap and Drain Plan, refusing to execute the closure forms, and by denying Clean Harbors access to the property. All the RCRA requires are allegations of (1) [a] violation of (2) any permit, standard, regulation, condition, requirement, prohibition, or order (3) which has become effective pursuant to the RCRA.
II. Unjust Enrichment (Count VIII)
In Count VIII, Clean Harbors alleges the Port District overcharged it for rental payments. Specifically, Clean Harbors alleges the parties entered into an amendment of the lease, which required Clean Harbors to pay the Port District a percentage of its gross annual revenues. R. 108 ¶ 76. The payments were set to expire in 2009, but the Port District continued to charge Clean Harbors through 2012, in an amount totaling $315,000.
As a general rule, parties may not bring unjust enrichment claims where a contract governs. See Utility Audit Inc. v. Horace Mann Srvc. Corp. ,
Clean Harbors argues the overcharges were not part of the lease agreement after 2009 and are not barred under a theory of unjust enrichment. R. 116 at 15. Indeed, the lease amendment discusses quarterly payments only through 2009, R. 108-3 at 35, and neither the lease nor the subsequent amendments discuss overpayments. See generally , R. 108-3. Because Clean *569Harbors has alleged that its payments were mistaken, were improperly withheld, and are not covered under the lease and its amendments, R. 108 ¶¶ 239-240, the Court finds Clean Harbors' allegations are sufficient to bring an unjust enrichment claim under Illinois law. The Port District's motion to dismiss Count VIII is denied.
CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss the Third Amended Complaint, R. 111, is (1) granted as to pier allegations in Counts II and III and (2) denied in all other respects.
Additional background of this case is set forth in the Court's February 25, 2013 order, R. 27. In that order, the Court granted the Port District's motion to dismiss Clean Harbors' Resource Conservation and Recovery Act ("RCRA") claims and also dismissed the Port District's RCRA counterclaim because neither party had provided the proper pre-suit notice required by the RCRA.
Atlantic States interpreted a nearly identical regulatory notice provision in the Clean Water Act. Because of the similarities between the notice provisions of the Clean Water Act and the RCRA, courts sometimes rely on cases interpreting one statute to interpret the other statute. See N. Illinois Gas Co. v. City of Evanston, Illinois ,
Relevant portions of the notice are as follows:
The Port District was, at all times, the owner of the Property. The Port District entered into a lease with one of its tenants, Hyon Waste, in the 1970s. As the Port District's tenant, Hyon Waste received approximately 68 million gallons of chemical waste and treated the waste in the ground on the Property. The Port District also allowed Hyon Waste to deposit the byproducts of this waste treatment on other portions of the Property, thereby contributing to the pollution at the Property. Moreover, as the Port District's tenant, Hyon Waste, received "pickle liquor" or steel mill waste at the Property and the Port District allowed Hyon Waste to bury the "pickle liquor" in the ground at the Property. Further, while a tenant at the Property, Hyon Waste operated an incinerator illegally, causing the City of Chicago, Department of Environment to shut it down. The Port District benefitted financially from Hyon Waste's contamination of the Property and took no apparent action to abate the environmental contamination caused by Hyon Waste.
...
Through a joint RCRA facilities investigation, the Port District and Clean Harbors have demonstrated that Hyon Waste is a primary cause for the Work Plan at the Property. The Port District and Clean Harbors have identified the historical pollution at the Facility. The Port District was involved in the storage or disposal of the hazardous waste at the Property because it served as the landlord for the Property for Hyon Waste's historical pollution and contamination of the Property. The Port District failed to exercise the degree of care necessary for an owner with respect to Hyon Waste's pollution on the Property. These facts, together with the Port District's lack of cooperation with Clean Harbors and the IEPA to abate the historical contamination at the Property, its failure to implement the Work Plan and its failure to contribute its fair share of the clean-up costs presents a substantial endangerment to health and the environment. R. 108 at 21-22.
Because the Court dismisses the pier allegations, it need not reach whether Clean Harbors alleged the piers contain "solid waste" to state a claim under the endangerment provision. See 112 at 9-11.
The Port District's argument that Clean Harbors failed to provide it notice of violations of the final "Part B renewal permit which has an effective date of September 6, 2017" (R. 112 at 12) is misguided. The allegations indicated that the renewal was just that, a renewal of the Permit. Neither party has alerted the Court that the Permit and its renewal differed in any way or that the violations changed with the renewal. Accordingly, there is no reason to require Clean Harbors to provide a second, identical notice. Clean Harbors adequately notified the Port District of the violations of the Permit to meet the standards laid out in Hallstrom and Atlantic States.
The Port District argues that Carlson is wrongly decided and contradicts Seventh Circuit precedent in Albany Bank and Trust Co. v. Exxon Mobil Corp. ,
Reference
- Full Case Name
- CLEAN HARBORS SERVICES, INC. v. The ILLINOIS INTERNATIONAL, PORT DISTRICT
- Cited By
- 3 cases
- Status
- Published