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White & Brewer Trucking, Inc. v. Donley

ELR Citation: 27 ELR 20883
Nos. 95-3224, 952 F. Supp. 1306/(C.D. Ill., 02/06/1997)

The court holds that the Burford abstention doctrine does not preclude it from hearing a purchaser's Resource Conservation and Recovery Act (RCRA) §7002(a)(1)(A) citizen suit against the sellers of a solid waste disposal site that is leaching contaminants. A RCRA citizen suit is exclusively a federal cause-of-action and there can be no timely and adequate state court review of the purchaser's RCRA claim. Further, the state's environmental policies and scheme are not at issue and the court's ruling would not adversely affect the state's attempts at forming a coherent environmental policy. And although the purchaser could have joined the sellers as parties in a suit pending before the state pollution control board, it does not mean that the purchaser must only seek relief from the pollution control board. This is especially true because the board cannot consider the purchaser's cause-of-action under RCRA §7002. The court next holds that the purchaser's §7002 claim is not improperly based on a wholly past violation. The purchaser has in good faith alleged a continuing violation of the site's national pollution discharge elimination system permit. The court then dismisses the purchaser's breach of contract claim against the president of the company that sold the site. Under Illinois law, officers and directors are not subject to personal liability based solely on their status as officers and/or directors. The president signed the purchase agreement and a handwritten commitment to obtain state approval of a new groundwater monitoring system only in his official capacity. Further, there is no evidence within the documents themselves to indicate that the parties intended to personally bind the president. The court next dismisses the purchaser's negligent and fraudulent misrepresentation claims against the company it retained to perform an environmental assessment of the site. The purchaser failed to allege facts that would establish that the company or its president acted carelessly or negligently. And it failed to allege that the company's president had any knowledge of the allegedly false statements contained in the environmental report or that the president intended to induce the purchaser to rely or act on those allegedly false statements. Finally, the court refuses to dismiss the purchaser's claim that the company and its president violated the Illinois Fraud and Deceptive Practices Act. The purchaser is not required to plead proof of a public injury to establish a prima facie case under the Act.

Counsel for Plaintiff
Christine Zeman, Nancy L. Driver
Hodge & Dwyer
808 S. Second St., Springfield IL 62704
(217) 523-4900

Counsel for Defendants
James R. Potter
Londrigan, Potter & Randle
1227 S. 7th St., Springfield IL 62705
(217) 544-9823