Case: 1:20-cv-05337 Document #: 1 Filed: 09/10/20 Page 1 of 28 PageID #:1
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`
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`Plaintiff,
`
`
`vs.
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`Case No.
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`
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`City of Aurora, an Illinois municipal corporation,
`
`
`
`
`BS Iron, Inc., Fox Valley Iron and Metal, LLC,
`Robert H. Swickert, Sr., and Robert H. Swickert,
`Jr.
`
`
`)))))))))
`
`
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`
`
`
`
`
`
`Defendants.
`
`
`COMPLAINT
`
`Now comes Plaintiff, CITY OF AURORA, ILLINOIS, an Illinois Home Rule Municipal
`
`Corporation (the “City” or “Aurora”), by its attorneys, Jeffery D. Jeep and Jeep & Blazer, LLC,
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`and for its Complaint against Defendants, BS IRON, INC., FOX VALLEY IRON AND METAL,
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`LLC, ROBERT H. SWICKERT, SR., and ROBERT H. SWICKERT, JR., states as follows.
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`ALLEGATIONS COMMON TO ALL COUNTS
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`Nature of Action
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`1.
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`This is a civil action for declaratory and injunctive relief, cost recovery and
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`damages brought pursuant to: (1) Section 7002 of the Resource Conservation and Recovery Act
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`(“RCRA”), 42 U.S.C. §6972, et seq.; (2) Section 107 of the Comprehensive Environmental
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`Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §9607, et seq.; (3)
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`Section 505 of the Clean Water Act (“CWA”), 33 U.S.C. §1365, et seq.; and (3) the Illinois
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`common law of trespass and nuisance.
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`

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`2.
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`Pursuant to Section 7002 of RCRA, 42 U.S.C. §6972, and Section 505 of the CWA,
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`42 U.S.C. §1365, the City has served a Notice of Intent to Sue (“NOITS”) on Defendants. A copy
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`of the NOITS, including its Exhibits A - O, consisting of 268 pages, is attached hereto as Exhibit
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`1.1
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`3.
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`This Complaint concerns the (1) disposal of solid waste or hazardous waste at the
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`Fox Valley Iron & Metal scrap metal recycling operation (the “Site”) and (2) the discharge of
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`contaminated stormwater in violation of surface water effluent standards and limitations at and
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`from the Site.
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`Defined Terms
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`4.
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`The term “disposal” is defined in RCRA and CERCLA to mean the “discharge,
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`deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into
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`or on any land or water so that such solid waste or hazardous waste or any constituent thereof may
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`enter the environment or be emitted into the air or discharged into any waters, including ground
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`waters.” See RCRA, 42 U.S.C. § 6903(3) and CERCLA, 42. U.S.C. § 9601(29)
`
`5.
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`The term “CWA” in this Complaint means the federal Clean Water Act (also known as the
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`Federal Water Pollution Control Act), 33 U.S.C.A. § 1251 et seq., including, § 1342, National Pollutant
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`Discharge Elimination System (“NPDES”).
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`6.
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`As used in this Complaint, the term “ILR00” means General NPDES Permit No.
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`ILR00 issued by the Illinois Environmental Protection Agency (“IEPA”) on April 5, 2017 for
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`
`
`
`
`
` 1
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` This Complaint refers to exhibits to the NOITS as Exhibit 1 [identifying letter(s)], e.g., Exhibit 1-
`A, Exhibit 1-B, etc.
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`2
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`Case: 1:20-cv-05337 Document #: 1 Filed: 09/10/20 Page 3 of 28 PageID #:3
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`Stormwater
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`Discharges
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`from
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`Industrial
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`Activities,
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`available
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`at
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`https://www2.illinois.gov/epa/topics/forms/water-permits/storm-water/Pages/industrial.aspx (last
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`visited September 10, 2020) (consisting of a General Stormwater Permit for Industrial Activity
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`and Final Attachments 1 – 3) (Exhibit 1-A).
`
`7.
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`As used in this Complaint, the term “ILR007180” means the NPDES permit issued
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`by IEPA for the Site on October 13, 2013, under general permit ILR00, that has been assigned the
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`identifying number of ILR007180 and that replaced an earlier NPDES permit for the Site, assigned
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`the identifying number of ILR007175 by IEPA.
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`8.
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`As used in this Complaint, the term “SWPPP” means the Stormwater Pollution
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`Prevention Plan for the Site dated September 10, 2013 available on the IEPA NPDES Website at
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`http://dataservices.epa.illinois.gov/StormWaterPermitFileImage/IndustrialUploadedFiles.aspx?PermitId=
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`7175 (last visited September 10, 2020) (Exhibit 1-B).
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`9.
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`As used in this Complaint, the phrase “CWA Violations” means the violations of
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`the CWA, ILR00, ILR001780 and the SWPPP described in ¶¶ 40 through 52 of this Complaint.
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`The Site
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`10.
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`The Site is generally located at 637–663 North Broadway Avenue in Aurora,
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`Illinois, and is generally bounded on the North by 101 E. Illinois, on the East by the BNSF Railway,
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`on the South by 605 N. Broadway Avenue and 138 Pierce Street, and on the West by North
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`Broadway Avenue. The Site consists of Kane County tax parcels 15-15-452-010 and 15-15-452-
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`011. The IEPA has assigned the Site a Bureau of Land Site identifying number of 0894076019.
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`The United States Environmental Protection Agency (“USEPA”) has assigned the Site the
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`identifying number of 110011590162. The Site is shown on Exhibit 1-C (Site Map) and Exhibit
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`1-G (Aerial Photo).
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`3
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`11.
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`The Site includes locations where solid wastes, including contaminated stormwater
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`and groundwater, emanating from the Site have, on information and belief, come to be located, or
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`threaten to become located on properties adjacent to and in the vicinity of the Site, including North
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`Broadway Avenue and East Illinois Avenue, the City owned stormwater sewer shown on Exhibit
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`1-G, and ultimately, the Fox River.
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`12.
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`On information and belief, scrap metal recycling operations began at the Site in
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`1933.
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`13.
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`On information and belief, piles of scrap metal and other Solid Waste have
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`continuously been stockpiled, stored or disposed of at the Site since 1933.
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`14.
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`The following photograhs show piles of scrap metal and other Solid Waste that is
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`stockpiled, stored or disposed of at the Site:
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`a. Photographs taken of the Site by the IEPA in 2010 (Exhibit 1-O);
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`b. A photograph of the Site that was included in the SWPPP that Fox Valley Iron 1
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`submtted to the IEPA in 2013 (Exhibit 1-B, Figure 9, Proposed Curb); and;
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`c. Google Earth photos of the Site from 2018 (Exhibits 1-J through 1-M).
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`15.
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`On information and belief, since 1933 scrap metal recycling operations have
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`released large quantities of dust, metal fines, residual particulate matter and solid waste that has
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`been allowed to accumulate and been disposed at the Site.
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`16.
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`The residual particulate matter and solid waste that has been allowed to accumulate
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`and been disposed at the Site is commonly referred to in the scrap metal industry as “Scrap Yard
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`Soil Fill”.
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`17.
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`On information and belief, since 1933 a three to five-foot layer (or more) of Scrap
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`Yard Soil Fill has been disposed across some or all of the Site.
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`4
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`18.
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`On information and belief, since 1933 solid, toxic or hazardous waste has been
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`disposed at the Site, including, but not limited to, Scrap Yard Soil Fill, special waste, oil, grease,
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`used oil, oily water, lubricants, chemical residue, cutting oil, oil residue, coolants, antifreeze,
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`glycol, fuel (gasoline, kerosene and diesel), hydraulic oil, transmission fluid, brake fluid,
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`hazardous substances, hazardous materials, volatile organic compounds (“VOCs”), semi-volatile
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`organic compounds (“SVOCs”), polycyclic aromatic hydrocarbons, organic solvents, acetone,
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`benzene, xylenes, methylene chloride, toluene, tetrachloroethene, trichloroethene, vinyl chloride,
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`anthracene, benzo(a)pyrene, chrysene, fluoranthene, naphthalene, phenanthrene, pyrene, phenol,
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`polychlorinated biphenyls (“PCBs”), switches, capacitors, insulation, asbestos (friable and non-
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`friable), metals with painted and coated surfaces, fluorescent lights, ballasts, diagnostic equipment,
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`engines, transmissions, motors, valves, gauges, sensors, tanks, piping, discarded cracked or
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`damaged lead-acid batteries, and heavy metals, including iron, magnesium, cadmium, zinc,
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`chromium, lead, nickel, mercury, and arsenic, (collectively “Solid Waste” or “Solid Waste
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`Constituents”).
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`19.
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`The CWA Violations may endanger the water quality of the Fox River on which
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`the City of Aurora, other communities and their residents depend for potable water and for use as
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`a natural resource for fishing, recreation and other activities.
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`20.
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`Defendants have failed to take necessary corrective action to remediate a petroleum
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`release from underground storage tanks at the Site.
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`21.
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`22.
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`The above conditions at and around the Site are known to Defendants.
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`In general terms, the City seeks to have Defendants held liable for the conditions at
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`and around the Site, which may threaten human health, public safety and the environment. The
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`City also seeks:
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`5
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`Case: 1:20-cv-05337 Document #: 1 Filed: 09/10/20 Page 6 of 28 PageID #:6
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`a. Injunctive relief under RCRA and common law compelling Defendants to abate the
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`conditions at and around the Site and Solid Waste contamination they caused or
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`contributed to, by their acts and omissions;
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`b. Recovery of response costs under CERCLA;
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`c. Compensatory damages;
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`d. Punitive damages for the willful and wanton conduct that has threatened, and
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`continues to threaten, the safety of the City’s residents; and
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`e. Recovery of the City’s attorneys' fees, expert costs and costs of suit under RCRA.
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`23.
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`In general terms, the City also seeks to have Defendant Fox Valley Iron and Metal,
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`LLC held liable for the continuing CWA Violations at the Site. The City also seeks:
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`a. A declaratory judgment that Fox Valley Iron and Metal, LLC has violated and
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`continues to be in violation of ILR00, ILR001780, the SWPPP and the CWA;
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`b. Injunctive relief under the CWA compelling Fox Valley Iron and Metal, LLC to
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`abate the continuing CWA Violations;
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`c. An Order that Fox Valley Iron and Metal, LLC pay civil penalties for each day of
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`CWA Violations committed by Fox Valley Iron and Metal, LLC;
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`d. Recovery of the City’s attorneys' fees, expert costs and costs of suit under the CWA.
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`Jurisdiction and Venue
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`24.
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`This Court has jurisdiction over this action pursuant to 28 U.S.C. §1331, 42 U.S.C.
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`§6972(a), 42 U.S.C. 9607(a), 42 U.S.C. §9613(g)(2) and 33 U.S.C. §1365 because this case arises
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`under the laws of the United States. Specifically, Counts I, II and III are predicated upon and seek
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`relief pursuant to RCRA, CERCLA and the CWA, respectively.
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`6
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`25.
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`This Court has supplemental jurisdiction over the State and local law claims herein
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`pursuant to 28 U.S.C. §1367, in that said claims are so related to the RCRA, CERCLA and CWA
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`claims that they form part of the same case or controversy under Article III of the U.S. Constitution.
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`The claims in Counts IV - VI are predicated upon and seek relief pursuant to the common law of
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`trespass and nuisance, including punitive damages related to the willful and wanton conduct of the
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`Defendants.
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`26.
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`27.
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`The Parties
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`The City is an Illinois home rule municipal corporation.
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`Fox Valley Iron and Metal Corp. was incorporated as an Illinois corporation on
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`May 18, 1970 and has been assigned File Number 49664761 by the Illinois Secretary of State
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`(“ILSOS”). On January 28, 2019, Fox Valley Iron and Metal Corp. changed its corporate name to
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`BS Iron, Inc. Fox Valley Iron and Metal Corp. and BS Iron, Inc. are referred to collectively in this
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`Complaint as “Fox Valley Iron 1”.
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`28.
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`Fox Valley Acquisition, LLC was formed as an Illinois limited liability company
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`on November 28, 2018 and has been assigned File Number 07403747 by the ILSOS. On February
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`5, 2019, Fox Valley Acquisition, LLC changed its name to Fox Valley Iron and Metal, LLC. Fox
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`Valley Acquisition, LLC and Fox Valley Iron and Metal, LLC are referred to collectively in this
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`Complaint as “Fox Valley Iron 2”.
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`29.
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`Robert H. Swickert, Sr. (“Swickert, Sr.”) is an individual residing at 1320
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`Coldeway Drive, Unit 121 in Punta Gorda, Florida and is the father of Robert H. Swickert, Jr.
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`30.
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`Robert H. Swickert, Jr. (“Swickert, Jr.”) is an individual residing at 7477 Mikasa
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`Drive in Punta Gorda, Florida and is the son of Robert H. Swickert, Sr.
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`7
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`Ownership and Operating History
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`31.
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`On information and belief, in 1933, Henry M. Swickert, the father of Swickert, Sr.
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`and grandfather of Swickert, Jr., began scrap metal recycling operations at the Site.
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`32.
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`On information and belief, on May 18, 1970, Henry M. Swickert and other
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`members of the Swickert family incorporated Fox Valley Iron and Metal Corp. as an Illinois
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`corporation and continued the scrap metal recycling operations at the Site.
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`33.
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`On December 26, 2018, Swickert, Sr., as Trustee under provisions of a certain
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`Declaration of Trust dated December 30, 1986, conveyed the Site to Fox Valley Iron 1.
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`34.
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`On January 11, 2019, Fox Valley Iron 1 issued a mortgage to Fox Valley Iron 2 in
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`the amount of $500,000.00. Swickert, Sr. executed the mortgage on behalf of Fox Valley Iron 1.
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`35.
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`36.
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`On January 11, 2019, Fox Valley Iron 1 conveyed the Site to Fox Valley Iron 2.
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`On information and belief, since May 18, 1970, Swickert, Sr. has exercised
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`authority and control over, actively participated in and was personally involved in the management
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`and decision-making of Fox Valley Iron 1.
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`37.
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`On information and belief, since at least 1994, Swickert, Jr. has exercised authority
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`and control over, actively participated in and was personally involved in the management and
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`decision-making of Fox Valley Iron 1.
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`Leaking Underground Storage Tanks
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`On August 18, 1999, the Illinois Emergency Management Agency ("IEMA")
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`38.
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`received a report of a release of petroleum from an underground storage tank at the Site and
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`assigned an incident number of 991955 ("IEMA Incident No. 991955").
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`39.
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`Defendants have failed to take necessary corrective action to remediate the
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`petroleum release identified as IEMA Incident No. 991955.
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`8
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`
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`The CWA Violations
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`40.
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`On April 12, 2013, the City and IEPA collected a sample from a puddle and
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`stormwater at the Site. The locations and photographs of sample locations are shown on the site
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`map and the photographs attached to the NOITS (Exhibits 1-C and 1-D, respectively). The sample
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`results are reported in an April 30, 2013 laboratory report (Exhibit 1-E). The following Table
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`compares the results in the April 30, 2013 report to regulatory limits (Reg. L.) for stormwater
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`runoff in Illinois:
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`Table of Discharge Monitoring Data, Schoeny April 12, 2013
`Sample Analyte
`Result R.L.2 Units
`Reg. L.3
`Reg. L. Citation
`Puddle Oil &
`57
`Grease
`Runoff Oil &
`Grease
`Puddle Mercury
`
`1
`
`mg/L
`
`15
`
`35 IAC 304.124
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`36
`
`0.0073
`
`0.0022
`(AQL4)
`and
`0.000012
`(HHP5)
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`Runoff Mercury
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`0.0067
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`0.005 mg/L
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`35 IAC 302.208
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`0.001 mg/L
`
`0.0076
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`35 IAC 302.208
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`0.001 mg/L
`
`NA7
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`35 IAC 302.208
`
`
`Puddle
`Runoff
`Puddle
`Runoff
`
`Cadmium6
`Cadmium
`Chromium
`Chromium
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`0.031
`0.024
`0.13
`0.107
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` 2
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`“R.L.” means the Routine Reporting Limit (Lowest amount that can be detected when routine weights/volumes
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`are used without dilution.)
`3
`“Reg. L.” means the regulatory limit referenced in the column captioned “Reg. L. Citation”.
`4
`“AQL” means Aquatic Life Protection.
`5
`“HHP” means Human Health Protection.
`6 Cadmium standard is hardness based, derived using a 162 mg/L hardness value, calculated upper limit for
`hardness of 250 mg/L would equal 0.0116 mg/L cadmium.
`7
`The values reported were for total chromium. The R.L. in Part 302.208 (hexavalent and trivalent chromium)
`were not reported.
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`9
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`Case: 1:20-cv-05337 Document #: 1 Filed: 09/10/20 Page 10 of 28 PageID #:10
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`Table of Discharge Monitoring Data, Schoeny April 12, 2013
`Sample Analyte
`Result R.L.2 Units
`Reg. L.3
`Reg. L. Citation
`Puddle
`Copper
`2.5
`
`0.001 mg/L
`
`0.0048
`
`0.01
`
`mg/L
`
`1
`
`0.002 mg/L
`
`0.21
`
`2.02
`61.2
`
`52.3
`2.94
`
`2.29
`704
`
`1,020
`
`1
`
`mg/L
`
`100
`
`ILR00, Sector N
`Benchmark, Table
`N-1 and
`35 IAC 302.208
`
`ILR00, Sector N
`Benchmark, Table
`N-1 and 35 IAC
`302.208
`
`ILR00, Sector N
`Benchmark, Table
`N-1 and 35 IAC
`302.208
`
`ILR00, Sector N
`Benchmark, Table
`N-1
`
`Runoff
`Puddle
`
`Copper
`Iron
`
`Runoff
`Puddle
`
`Iron
`Lead8
`
`Runoff
`Puddle
`
`Runoff
`
`Puddle
`
`Runoff
`
`Puddle
`Runoff
`
`Lead
`Total
`Suspended
`Solids
`
`Total
`Suspended
`Solids
`
`Total
`Petroleum
`Hydrocarb
`ons (TPH)
`as Diesel
`TPH as
`Diesel
`TPH as Oil
`TPH as Oil
`
`250
`
`ug/L
`
`Total Petroleum Hydrocarbons
`(TPH) represent a broad spectrum
`of pollutants; oily sheen is
`consistent with high
`concentrations of TPH.
`
`3,730
`
`3,290
`
`28,400
`19,600
`
`
`
`41.
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`On July 25, 2013, the IEPA issued a Violation Notice to Fox Valley Iron 1 for
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`failure to obtain an NPDES Permit for stormwater discharges from the Site.
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`
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`
`
`
` 8
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`35 IAC 302.208 sets this R.L. as hardness-based calculations. ILR00, Sector N Benchmark is the source of the
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`cited R.L. for lead.
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`10
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`42.
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`On September 11, 2013, Fox Valley Iron 1 submitted a Notice of Intent for the Site
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`to be included in ILR00, along with the SWPPP.
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`43.
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`The SWPPP states that the Site discharges stormwater to an impaired segment of
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`the Fox River.
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`44.
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`ILR00 prohibits discharges that cause or contribute to violations of water quality
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`standards.
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`45.
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`A discharger of stormwater must comply with both narrative and numeric water
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`quality standards of ILR00.
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`46.
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`The Site discharges stormwater to a City-owned storm sewer that discharges into
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`the Fox River. The location of the storm sewer that receives stormwater from the Site and the
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`stormwater sewer outfall to the Fox River is identified on Exhibit 1-G.
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`47.
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`ILR00 required Fox Valley Iron 1, and continues to require Fox Valley Iron 2, to
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`apply All Known Available Reasonable Methods of Prevention Control and Treatment
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`(“AKART”) to all discharges, including preparing and implementing an adequate SWPPP and
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`Best Management Practices (“BMPs”). Fox Valley Iron 1 violated, and Fox Valley Iron 2
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`continues to violate these conditions by failing to apply AKART to its discharges by, among other
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`things, failing to implement an adequate SWPPP and BMPs as evidenced by the elevated levels of
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`pollutants in its stormwater discharge. These violations have occurred continually since at least
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`April 12, 2013.
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`48.
`
`ILR00 requires that all discharges and activities authorized be consistent with the
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`terms and conditions of the General NPDES Permit, including those conditions in Attachment 1
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`to ILR00, Subpart N – Sector N – Scrap Recycling and Waste Recycling Facilities (“Sector N”).
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`11
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`49.
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`On information and belief, the scrap metal operations that have been conducted at
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`the Site endanger water quality for the following reasons, among others:
`
`a. The Site has received a diverse mix of materials that have not been pre-screened
`and that have been accepted without inspection.
`b. The scrap metal that has been accepted at the Site contained switches, capacitors,
`insulation, asbestos (friable and non-friable), metallic fines, painted and coated
`surfaces, and component parts (such as fluorescent lights, ballasts, diagnostic
`equipment, engines, transmissions, motors, valves, gauges, sensors, tanks and
`piping).
`c. The scrap metal that has been accepted at the Site contained cracked or damaged
`lead-acid batteries.
`d. The scrap metal that has been accepted at the Site contained a variety of liquids,
`such as oil, solvents (e.g. trichloroethylene and benzene), lubricants, chemical
`residue, cutting oil, oil residue, coolants, antifreeze, fuel (gasoline, kerosene and
`diesel), hydraulic oil, transmission fluids, brake fluid, and PCBs.
`e. The scrap metal that has been accepted at the Site was processed outdoors with
`enormous physical force (e.g., shearing, shredding, compacting and baling) which
`released large quantities of dust and metal fines.
`f. The Scrap metal that has been accepted at the Site has been stockpiled outdoors
`before, during and after processing.
`g. The Scrap metal that has been accepted at the Site has corroded, releasing a variety
`of metals to soil and stormwater, including magnesium, cadmium, zinc, chromium,
`lead, nickel, mercury, and arsenic.
`h. The trucks, forklifts, shredders, and other ancillary equipment that have been used
`at the Site in scrap metal operations have spilled and released oil, fuel and other
`contaminants to soil and stormwater.
`
`50.
`
`ILR007180 expired on April 30, 2014. Neither Fox Valley Iron 1 nor Fox Valley
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`Iron 2 ever applied for renewal of ILR007180, as required by 40 CFR 122.26(e) and 35 IAC
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`309.104(a)(1)(A)(i).
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`12
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`Case: 1:20-cv-05337 Document #: 1 Filed: 09/10/20 Page 13 of 28 PageID #:13
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`51.
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`Fox Valley Iron 1 failed to comply with permit ILR007180 when that permit was
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`in effect. For example, Fox Valley Iron 1 failed to take the following actions that were required by
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`the permit:
`
`a. Ensure that stormwater discharged from the Site did not violate stormwater
`discharge standards, including treating contaminated stormwater as necessary to
`meet discharge standards;
`b. Perform Benchmark Monitoring;
`c. Notify the City that they were discharging contaminated stormwater at the Site;
`d. Prepare and implement a Spill Control and Countermeasures Plan;
`e. Take the actions described in the Notice of Intent that was submitted to the IEPA
`on September 11, 2013 to contain contaminated stormwater on-Site, namely
`construct a 10-inch containment curb and implement “enhanced evaporation”
`procedures;
`f. Minimize the exposure of stormwater to fluids and hazardous materials contained
`in scrap metal; and
`g. Conduct inspections of the Site, including inspections of inbound scrap metal.
`
`52.
`
`On information and belief, discharges of stormwater from the Site are causing
`
`and/or contributing to violations of the water quality standards for visible oil sheen, oil & grease,
`
`metals (such as arsenic, lead, zinc, mercury, cadmium, chromium, copper and iron), total
`
`suspended solids, total petroleum hydrocarbons, high oxygen demand, nitrogen, PCBs and
`
`aesthetic criteria, among others, and have occurred continually since at least April 12, 2013.
`
`Defendants Caused or Allowed the CWA Violations and Disposed of Solid Waste
`
`53.
`
`On information and belief, Swickert, Sr. and Swickert, Jr. made decisions
`
`concerning when and whether to conduct disposal of Solid Waste at the Site.
`
`54.
`
`On information and belief, Swickert, Sr. and Swickert, Jr. participated in day-to-
`
`day decision-making concerning operations at the Site.
`
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`55.
`
`On information and belief, Swickert, Sr. and Swickert, Jr negotiated contracts with
`
`persons that sell, transport or otherwise arrange for the delivery of scrap metal and Solid Waste to
`
`the Site.
`
`56.
`
`On information and belief, Swickert, Sr. and Swickert, Jr. negotiated contracts with
`
`facilities to which Solid Waste or scrap metal was transshipped from the Site for treatment, storage,
`
`disposal, recycling or reuse.
`
`57.
`
`On information and belief, Swickert, Sr. and Swickert, Jr. negotiated with
`
`government agencies regarding authorizations, licenses, permits, approvals, consents and
`
`agreements, including, but not limited to, the resolution of issues with respect to stormwater
`
`management and leaking underground storage tanks.
`
`58.
`
`On information and belief, Swickert, Sr. and Swickert, Jr. signed applications for
`
`permits and other authorizations submitted to the IEPA or other regulatory authorities.
`
`59.
`
`On information and belief, Swickert, Sr. and Swickert, Jr. held themselves out to
`
`regulatory authorities as the person(s) in charge of the Site.
`
`60.
`
`On information and belief, Swickert, Sr. and Swickert, Jr. were present when
`
`regulatory authorities conducted inspections of the Site, responded to questions and provided
`
`information at such inspections.
`
`61.
`
`On information and belief, Swickert, Jr. was responsible for selecting,
`
`communicating with, and managing environmental consultants and engineers who performed
`
`work at the Site.
`
`62.
`
`On information and belief, Swickert, Sr. and Swickert, Jr. directed, controlled,
`
`hired, disciplined, fired and supervised employees at the Site.
`
`
`
`
`
`
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`63.
`
`On information and belief, Swickert, Sr. and Swickert, Jr. made, or participated in
`
`making, all important financial decisions involving the Site.
`
`64.
`
`Since January 11, 2019, Fox Valley Iron 2 has continued to stockpile, store or
`
`dispose of piles of scrap metal and other Solid Waste at the Site and continues to stockpile, store
`
`or dispose of piles of scrap metal and other Solid Waste at the Site.
`
`65.
`
`Since January 11, 2019, the piles of scrap metal and other Solid Waste that have
`
`been stockpiled, stored or disposed of at the Site have leaked or released Solid Waste Constituents
`
`into the air, soil, groundwater and surface water at the Site and continue to leak or release Solid
`
`Waste Constituents into the air, soil, groundwater and surface water at the Site.
`
`66.
`
`On information and belief, since January 11, 2019, Fox Valley Iron 2 has moved,
`
`relocated and cleared pathways through the piles of scrap metal and other Solid Waste that is
`
`stockpiled, stored or disposed of at the Site and, in doing so, has exacerbated the leakage or release
`
`of Solid Waste Constituents from the piles and from the Scrap Yard Soil Fill into the air, soil,
`
`groundwater and surface water at the Site.
`
`COUNT I
`RCRA INJUNCTION AGAINST DEFENDANTS
`
`1-66. The City adopts and re-alleges paragraphs 1 through 66 of the Allegations Common
`
`to all Counts as Paragraphs 1 through 66 of this Count I.
`
`67.
`
`42 U.S.C. §6972 confers upon any person the right to file suit:
`
`(B) against any person ... or past or present owner or operator of a
`... facility ... who has contributed or who is contributing to the past
`or present handling, storage, treatment ... or disposal of any solid
`or hazardous waste which may present an imminent and substantial
`endangerment to health or the environment.
`
`The City is a “person” under §6903(15) of RCRA.
`
`68.
`
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`69.
`
`70.
`
`Defendants are "persons" under §6903(15) of RCRA.
`
`On information and belief, during the period of time Defendants owned or operated
`
`the Site, or exercised authority and control over the Site, the conditions at the Site have caused, or
`
`threatened to cause, the disposal of Solid Waste, including contaminated stormwater, at and around
`
`the Site.
`
`71.
`
`The conditions at the Site have caused and threaten to cause solid or hazardous
`
`wastes or hazardous substances, including contaminated stormwater, to be disposed at and around
`
`the Site.
`
`72.
`
`On information and belief, because of the conditions at the Site, including the
`
`disposal of a three to five-foot layer (or more) of Scrap Yard Soil Fill across some or all of the Site
`
`and the failure to remediate the release recorded as IEMA Incident Number 991955, the Site may
`
`present an imminent and substantial endangerment to health or the environment.
`
`73.
`
`On information and belief, the three to five-foot layer (or more) of Scrap Yard Soil
`
`Fill across some or all of the Site constitutes an open dump, as the term “open dump” is defined in
`
`RCRA, 42 U.S.C. §6903(14).
`
`74.
`
`The Defendants have caused or contributed to the conditions at the Site that may
`
`present an imminent and substantial endangerment to health or the environment.
`
`75.
`
`On one or more occasions, the particulars of which are not presently known to the
`
`City, but occurring as early as 1933, and as recently as the present, the Defendants have caused or
`
`allowed the disposal of a solid or hazardous waste, including contaminated stormwater, within the
`
`meaning of RCRA, 42 U.S.C. § 6901, et seq.
`
`
`
`
`
`
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`76.
`
`As a consequence of such disposal, the Site and surrounding areas have become
`
`contaminated by, or are threatened to be contaminated by, solid or hazardous wastes or hazardous
`
`substances, including contaminated stormwater.
`
`77.
`
`The Defendants have contributed to or are contributing to the past or present
`
`handling, storage or disposal of substances which are solid waste or hazardous waste at and around
`
`the Site, including contaminated stormwater, which may present an imminent and substantial
`
`endangerment to health or the environment, within the meaning of 42 U.S.C. § 6972(a)(1)(B).
`
`78.
`
`The Site may present an imminent and substantial endangerment to health or the
`
`environment, within the meaning of 42 U.S.C. § 6972(a)(1)(B).
`
`79.
`
`In accordance with 42 U.S.C. §6972 and 40 C.F.R. § 254.2, on August 12, 2019,
`
`the City sent the NOITS, via registered mail with return receipt requested, to BS Iron, Inc. (Fox
`
`Valley Iron 1), Fox Valley Iron and Metal, LLC (Fox Valley Iron 2), Robert H. Swickert, Sr.,
`
`Robert H. Swickert, Jr., the Administrator of the USEPA, the USEPA Region 5 Administrator, the
`
`U.S. Attorney General and the Director of the IEPA. Copies of the proofs of service via Registered
`
`Mail are attached hereto as Group Exhibit 2.
`
`80.
`
`Since the issuance of the NOITS, no action has been taken by the USEPA
`
`Administrator, the USEPA Region 5 Administrator, the U.S. Attorney General or the IEPA
`
`Director, which would preclude the City from pursuing a claim under RCRA Section
`
`7002(a)(1)(B).
`
`81.
`
`Pursuant to 42 U.S.C. §6972(b)(2)(F), a copy of this Complaint will be served upon
`
`the U.S. Attorney General and the USEPA Administrator.
`
`WHEREFORE, the City prays for judgment in its favor and against the Defendants as
`
`follows:
`
`
`
`
`
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`A.
`
`For a declaration that the Defendants are jointly and severally liable for the
`
`subject contamination under 42 U.S.C. §6972 of RCRA;
`
`B.
`
`For injunctive relief restraining and enjoining the Defendants from
`
`disposing of Solid Waste at and around the Site, including contaminated
`
`stormwater, and compelling Defendants to take any and all actions
`
`necessary to abate the conditions at and around the Site that may present an
`
`imminent and substantial endangerment to health or the environment;
`
`C.
`
`For injunctive relief restraining and enjoining the Defendants from taking
`
`any actions in violation of RCRA and the regulations promulgated or
`
`authorized thereunder;
`
`D.
`
`E.
`
`For an award of the City’s attorneys' fees, expert costs and costs of suit; and
`
`For such further relief as this Court deems appropriate.
`
`COUNT II
`COST RECOVERY AND DECLARATORY JUDGMENT UNDER CERCLA
`
`1-66. The City adopts and realleges paragraphs 1 through 66 of the Allegations Common
`
`to All Counts as Paragraphs 1 through 66 of this Count II.
`
`67.
`
`CERCLA Section 107(a), 42 U.S.C. 9607(a), provides, in pertinent part, that the
`
`following persons are liable for response costs which are consistent with the National Contingency
`
`Plan, 40 C.F.R. Part 300, and which have been incurred by the City as result of a release or
`
`threatened release of hazardous substances from a facility:
`
`a. the [current] owner or operator of ... [the] facility,
`
`b. any person who at the time of disposal of any hazardous substance owned or
`
`operated [the] facility ....
`
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`Case: 1:20-cv-05337 Document #: 1 Filed: 09/10/20 Page 19 of 28 PageID #:19
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`68.
`
`Each of the Defendants falls within the class of persons described in §§107(a)(1)
`
`or 107(a)(2), or both, of CERCLA, 42 U.S.C. §§9607(a)(1) and (a)(2).
`
`69.
`
`The Site, and all locations where Solid Waste has come to be located, are
`
`collectively a “facility” (the “Facility”) within the meaning and scope of CERCLA Sections 109(9)
`
`and 107(a), 42 U.S.C. §§9601(9) and 9607(a).
`
`70.
`
`The Cit