On January 21, 2011, the U.S. District Court for the Central District of Illinois held that a current property owner’s refusal to grant a prior owner access for the purpose of remediation could result in the current owner being held liable as a “contributor” under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(B). Carlson v. Ameren Corp., No. 10-1230 (C.D. Ill. Jan. 21, 2011). This section of RCRA allows a private right of action, known as a “citizens suit,” for injunctive relief 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.”
In 2005, Ethel Carlson bought a Galesburg, Illinois property from Ameren Corp., also known as Illinois Power Company (“Ameren”). Ethel’s son, Rex Carlson, currently operates an excavating and snow removal business on the property. Ameren’s predecessors owned the property from 1861 to the mid 1940’s as a manufactured gas plant (“MGP”) site. The Carlsons allege that the historical disposal of wastes contaminated the soil and groundwater such that they now pose an imminent and substantial endangerment to persons and property.
On July 22, 2010, the Carlsons filed a RCRA suit against Ameren, to which Ameren responded with affirmative defenses and counterclaims. Those defenses focus on the Carlsons’ alleged refusal to allow Ameren access to the property to remediate the site. Specifically, for its counterclaim Ameren alleged that the Carlsons themselves were liable under RCRA by “contributing” to the hazardous waste condition on the property. In addition, as an affirmative defense, Ameren asserted that the Carlsons, for their own financial gain, had refused Ameren access to remediate the property. The Carlsons moved to dismiss Ameren’s counterclaim and affirmative defense.
The District Court denied the Carlsons’ motions. On the RCRA counterclaim, the court found that Ameren had adequately pled a reasonable set of facts to support a non-speculative claim of RCRA liability. Specifically, the Carlsons could be liable because, by refusing Ameren access, the Carlsons are actively permitting hazardous material to further degrade. Distinguishing a Seventh Circuit case finding that mere knowledge of contaminated property is not sufficient to establish RCRA “contribution” to the hazardous condition, the court found that the Carlsons’ access refusal could be sufficient to establish that “contribution” and, hence, liability. See Sycamore Indus. Park Assoc. v. Ericsson, Inc., 546 F.3d 847, 854 (7th Cir. 2008). With respect to the Carlsons’ motion to strike Ameren’s affirmative defense, the court found that, based on yet another Seventh Circuit case, merely impeding access would not be sufficient for an Ameren defense. See Albany Bank & Trust Co. v. Exxon Mobil Corp., 310 F.3d 969, 973(7th Cir. 2002). However, Ameren also alleged that the Carlsons obstructed the remediation for their own financial advantage, which the court found could be the basis for an affirmative defense. Thus, in defense of the Carlsons’ claim, Ameren is permitted to assert a RCRA counterclaim and an affirmative defense based on the Carlsons’ alleged denial of access to remediate the property.