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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TREX PROPERTIES LLC, )

)

Plaintiff, )

)

v. ) No. 1:20-cv-4159

)

ENVIRO TECH INTERNATIONAL, )

INC., et al., )

)

Defendants. )

ENVIRO TECH INTERNATIONAL, INC.’S

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

Defendant ENVIRO TECH INTERNATIONAL, INC. submits the following

memorandum in support of its Motion to Dismiss Count I of Plaintiff TREX PROPERTIES,

LLC’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

INTRODUCTION

On July 15, 2020, Trex filed its Complaint against Enviro Tech and 85 other parties

seeking cost recovery, contribution, and declaratory relief under the Comprehensive

Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9607, et seq.

(“CERCLA”). Trex has resolved its liability with the State of Illinois such that it is limited to

seeking contribution from other parties. Trex fails to state a claim for cost recovery, and

Count I of Plaintiff’s Complaint must be dismissed.

STATEMENT OF FACTS

Plaintiff Trex Properties, LLC (“Trex”) alleges that it currently owns an industrial

facility located at 2537 W. LeMoyne Avenue in Melrose Park, Illinois (“Property”).

According to its pleadings, Trex’s predecessor, Detrex Corporation, owned and operated

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an industrial solvent management facility at that location from 1974 through 2012. There

are three 20,000 gallon storage tanks on the Property. From 1974 through 2012, Detrex

used the Property to store and distribute solvents, including chlorinated solvent wastes.

Soil and groundwater under the Property is contaminated and migrated off-site. To

address off-site contaminant migration, Illinois Environmental Protection Agency (“IEPA”)

required Detrex to undertake corrective action. Complaint, ¶ 9. Detrex stopped

commercial operations at the Property in 2012. Complaint, ¶ 10. Thereafter, Detrex

created a closure plan which included decontamination of the Property, among other

things. Complaint, ¶ 11. IEPA approved Detrex’s closure plan pursuant to the Resource

Conservation and Recovery Act (“RCRA”). Complaint, ¶ 11.

Trex purchased the Property in 2013. IEPA transferred Detrex’s RCRA permit to

Trex, and Trex took over Detrex’s decontamination efforts. Complaint, ¶ 12. IEPA

continues to monitor the Property and Trex’s efforts to decontaminate. Complaint, ¶¶ 13-

18. According to the Complaint, Trex has incurred over $1,300,000 in response costs as

a result of remediation required by IEPA.

Trex filed this lawsuit seeking cost recovery, contribution, and declaratory relief

under CERCLA on July 15, 2020. As explained more fully below, Trex is not entitled to

cost recovery under Section 107 of CERCLA because the remedial actions Trex took

were conducted after Trex took over Detrex’s RCRA Permit and the obligations

thereunder. Furthermore, Trex to this remedial action at IEPA’s direction and it therefore

constitutes a settlement under Section 113(f)(3)(b). Trex has not stated a claim for cost

recovery under 42 U.S.C.A. § 9607 and Count I of Trex’s Complaint must be dismissed.

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ARGUMENT

Trex resolved some of its liability to the State of Illinois for contamination on the

Property. Therefore, the only remedy potentially available to Trex is contribution under 42

U.S.C. § 9613(f)(3)(b). Trex fails to state a claim for cost recovery under 42 U.S.C. §

9607, and Count I of Trex’s Complaint must be dismissed.

I. Legal Standard

A complaint must contain “a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The rules require a “‘showing’,

rather than a blanket assertion, of entitlement to relief.” Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 556 (2007). Accordingly, in order to survive a motion to dismiss under Fed.

R. Civ. P. 12(b)(6), a complaint must contain “more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. The

complaint must plead “enough facts to state a claim for relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 547 (2009). A complaint should be dismissed pursuant to

Fed. R. Civ. P. 12(b)(6) when its allegations, however true, cannot not raise a claim of

entitlement to relief. Twombly, 550 U.S. at 558. Courts will dismiss a complaint where it

fails to state a claim upon which relief can be granted. Fed. R. Civ. Pro. 12(b)(6).

II. Trex Fails to State a Claim for Cost Recovery

CERCLA (42 U.S.C. § 9607 (also referred to as “§ 107”) and 42 U.S.C. § 9613

(also referred to as “§ 113”)) “provides two clearly distinct remedies.” U.S. v. Atlantic

Research Corp., 551 U.S. 128, 138 (2007), quoting Cooper Industries v. Aviall Services,

Inc., 543 U.S. 157, 163 (2004). CERCLA provides a right to cost recovery through § 107

and, “separate rights to contribution in other circumstances” through § 113. Atlantic

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Research Corp., 551 U.S., at 138 (emphasis in original). These remedies “complement

each other by providing causes of action to persons in different procedural

circumstances.” Id., at 139, quoting Consolidated Edison Co. of New York v. UGI Utilities,

Inc., 423 F. 3d 90, 99 (2nd Cir. 2005).

Contribution under § 113 is a plaintiff’s sole remedy where it is available. Bernstein

v. Bankert, 733 F.3d 190, 206 (7th Cir. 2013). “[I]f either statutory trigger for a section

113(f) contribution action is present—a qualifying lawsuit under section 113(f)(1) or a

qualifying settlement under section 113(f)(3)(B)—the plaintiff may proceed only under that

provision.” Refined Metals Corp. v. NL Industries, Inc., 937 F.3d 928, 930 (7th Cir. 2019).

§ 113(f)(3)(b) states:

A person who has resolved its liability to the United States or a State for

some or all of a response action or for some or all of the costs of such action

in an administrative or judicially approved settlement may seek contribution

from any person who is not party to a settlement referred to in paragraph

(2).

42 U.S.C. § 9613(f)(3)(b). Moreover, a “response” action, “means remove, removal,

remedy, and remedial action; all such terms (including the terms “removal” and “remedial

action”) include enforcement activities related thereto.” 42 U.S.C. § 9601(25).

In this case, Trex alleges it incurred $1,300,000 in response costs, incurred to

address contaminant releases at the Trex Property as required by IEPA. Complaint, ¶¶

1, 21. Trex’s took action pursuant to a RCRA permit transferred by IEPA from Detrex to

Trex. Complaint, ¶ 12. Illinois EPA approved of Trex’s closure of the container storage

area by issuing a certificate of closure. Complaint, ¶ 14. This remedial action – directed

by and approved by the State of Illinois -- is what CERCLA contemplates in § 113(f)(3)(b).

Because Trex has “resolved its liability to the . . . [State of Illinois] . . . for some or all of a

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response action or for some or all of the costs of such action. . .”, Trex’s remedy, if any,

is limited to contribution. 42 U.S.C. § 9613(f)(3)(b). Because Trex can pursue contribution

through § 113(f)(3)(b), it cannot seek cost recovery under § 107. Trex fails to state a claim

for cost recovery, and Count I of its Complaint must be dismissed.

CONCLUSION

Trex seeks both cost recovery and contribution. Under CERCLA, a plaintiff is

limited to pursuing contribution where that remedy is available. Here, contribution is

available because Trex already resolved some of its liability to the State of Illinois for the

container area, via Illinois EPA’s approval of Trex’s work at the container storage area.

Therefore, Trex fails to state a claim for cost recovery, and Count I of its Complaint must

be dismissed.

WHEREFORE, Defendant ENVIRO TECH INTERNATIONAL, INC. respectfully

requests that this court enter judgement in its favor and against Plaintiff TREX

PROPERTIES, LLC and enter an order dismissing Count I of Plaintiff’s Complaint with

prejudice for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).

Respectfully Submitted,

One of the attorneys for Defendant

Enviro Tech International, Inc.

Michael J. Maher (#6191018)

Claire M. Whitehead (#6322880)

Swanson, Martin & Bell, LLP

330 North Wabash, Suite 3300

Chicago, IL 60611

(312) 321-9100

mmaher@smbtrials.com

cwhitehead@smbtrials.com

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