ELR Citation: ELR 20701
No(s). 00 C 7164 (N.D. Ill. May 6, 2002)

The court grants in part and denies in part summary judgment motions by a corporation being sued by neighboring property owners who allege that trichloroethylene (TCE) from the corporation's subsidiary contaminated their soil, groundwater, and domestic water supplies. The court first holds that although the property of some of the property owners has yet to test positive for TCE, the court cannot grant summary judgment to the corporation on the claims of the nonimpacted members of the case. The neighbors offered evidence that the TCE contamination would contaminate certain wells in the future causing the nonimpacted neighbors to incur response costs, and the corporation offered no evidence to rebut this assertion. Likewise, the court holds that the corporation's motion to modify the class to remove the nonimpacted neighbors must be denied since the potential exists for future contamination of their property. Moreover, the court holds that the neighbors' Comprehensive Environmental Response, Compensation, and Liability Act claim is not barred due to their failure to comply with the national contingency plan (NCP). Although permanent solutions to the contamination would definitely be contingent on NCP compliance, the actions at issue include the costs of bottled water and filtration systems. These actions are more akin to preliminary emergency costs associated with site investigation and monitoring, and, consequently, the corporation is not entitled to summary judgment. Further, the court holds that the neighbors need not establish a physical invasion of their property that is perceptible to the senses in order to prevail on their private nuisance claims against the corporation. The neighbors' property has certainly been invaded by a substance that interferes with the use and enjoyment of their homes, and the fact that TCE is not readily perceptible to the senses is irrelevant to the invasion. However, the court holds that the neighbors improperly pleaded their allegation of a Resource Conservation and Recovery Act (RCRA) §7002(a)(1)(A) claim for failure to comply with the corrective standards of 40 C.F.R. §280. This regulation applies to underground storage tanks (USTs), and the corporation did not possess an UST. Similarly, the court holds that the neighbors' RCRA §7002(a)(1)(B) claim is barred because the state of Illinois filed an identical action in state court, and the state action bars the private action.

The full text of this decision is available from ELR (5 pp., ELR Order No. L-522).

Counsel for Plaintiffs
Norman Berger
Varga, Berger, Ledsky, Hayes & Casey
224 S. Michigan Ave., Ste. 350, Chicago IL 60604
(312) 341-9400

Counsel for Defendants
David Tecson
Fumagalli, Tecson, Hyman & Brent
30 S. Wacker Dr., Ste. 2600, Chicago IL 60606
(312) 444-9300