DePue v. Exxon Mobil and CBS/Viacom

IN THE UNITED STATES DISTRICT COURTFOR THE CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

VILLAGE OF DE PUE ILLINOIS )A MUNICIPAL CORPORATION )

)Plaintiff )

) Case No 08-1272v ) Judge McDade

) Magistrate Judge GormanVIACOM INTERNATIONAL INC nka )CBS OPERATIONS INC and EXXON )MOBIL CORPORATION )

)Defendants )

PLAINTIFFrsquoS RESPONSE TO DEFENDANTSrsquo JOINT MOTION TO DISMISS ITS SECOND AMENDED COMPLAINT

RICHARD L STEAGALL MELISSA K SIMSNicoara amp Steagall WILLIAM J WIMBISCUS JR416 Main Street Suite 815 Wimbiscus Law FirmCommerce Building 102 E St Paul StreetPeoria IL 61602 Spring Valley IL 61362309-674-6085 815-664-4151Fax 309-674-6032 Fax 815-663-4351Email nicsteagmtcocom Email wjwlawhotmailcom

i

TABLE OF CONTENTS

I Introduction 1

A The Seventh Circuitrsquos Holdings in Depue I 1

B The Ordinance Prosecution of Depue I the Tort Clams of Depue II and TheNational Priority List Fact Sheet No 11 and the June 2009 National Priority ListFact Sheet No 12 2

II The Statute of Limitations Has Not Expired 6

A The Statue of Limitations is an Affirmative Defense Which Must be Plead andProven by the Defendant

6

B The Limitations Period is Provided by Illinois Law but the Accrual Date isSupplied by Section 309 of CERCLA Applying the Illinois Doctrine of theContinuing Tort Which is Longer Than the Period Provided by the FederalDiscovery Rule 8

1 Section 309 of CERCLA Determines Application of the Illinois Five Year Property Damage Statute of Limitations 8

2 Section 309 of CERCLA Applies the Continuing Tort Principles of theFive Year Illinois Statute of Limitations Providing Damages for the EntirePeriod of the Nuisance and Trespass When the Action is Timely Filed 10

C Even if the Continuing Tort Doctrine Were Not Applied the Villagersquos DamageAction Was Timely As It Was Brought Before Discovery of Damage to VillageProperty From the Disclosures in the June 2009 Fact Sheet

11

D The Villagersquos Claim for Damages to the Public Property It Owns is a Claim of the Sovereign Not Subject to Any Statute of Limitation 12

III Res JudicataClaim Preclusion Has No Application 14

A Res Judicata is an Affirmative Defense Which Can Not be Decided on a Rule 12(b)(6) Motion to Dismiss 14

ii

B The Claims Asserted in This Action and In Depue I Are Not Identical Causes of Action 15

C The Claim for Damage to the Villagersquos Own Property Could Not Have BeenLitigated in the Prior Nuisance Abatement Action As This Court and the SeventhCircuit Refused to Construe the Complaint to Include a Claim for Damages

17

D The Governmentrsquos Pursuit of a Criminal or Quasi Criminal Remedy Does NotPreclude It From Bringing a Later Action to Obtain a Civil Remedy

21

IV The Interim Consent Order Does Not Affect the Rights of Third PartiesAnd by Its Terms Does Not Apply to Village Owned Property or toLake Depue Twenty Acres of Which is Owned by the Village 21

V The Second Amended Complaint States a Claim for Common Law Public Nuisance Private Nuisance and Trespass 23

A The Common Law Torts of Public Nuisance Private Nuisance and TrespassWhen Applied to Pollution of the Plaintiffrsquos Land by the Defendant Address theSame Conduct 23

B The Village Has Repeatedly Alleged Conduct of ExxonMobil ViacomCBS andTheir Corporate Predecessors That is Tortious in the Second Amended Complaint

24

1 The Complaint States a Claim for Public Nuisance 24

2 The Complaint States a Claim for a Private Nuisance 27

3 The Complaint States a Claim for Trespass 29

V The Village Seeks Recovery of Damages That Are the Subject ofTort Liability And Not Precluded by the Economic Loss Doctrine 29

Signature 30

Local Rule 71 Certification 31

Certificate of Service 31

1

Now comes the Plaintiff Village of DePue Illinois a Home Rule Municipality by its

attorneys Richard L Steagall and Melissa K Sims and for Plaintiffrsquos Response to the Joint

Motion to Dismiss of Defendants states

IIntroduction

A The Seventh Circuitrsquos Holdings in Depue I

ExxonMobil and ViacomCBS say this is ldquothe third attempt by the Village to interfere

with the remediation of the DePueNew Jersey ZincMobil Chemical Superfund Site (the ldquoSiterdquo)rdquo

JointMotpara 1 The remediation is occurring at a snailrsquos pace under a March 6 1995 Interim

Consent Order ExxonMobil and ViacomCBS agreed to in an action brought by the Illinois

Environmental Protection Agency in the Circuit Court of Bureau County

ExxonMobil and ViacomCBS do not tell us what about the Villagersquos tort claim for

damage to its property caused by the 14 worst toxic site in the United States ldquointerfere[s] withth

the remediationrdquo of the pollution from that site In Depue I the Seventh Circuit held the

Comprehensive Environmental ResponseCompensation and Liability Act (ldquoCERCLArdquo) as

amended by the Superfund Amendments and Reauthorization Act (ldquoSARArdquo) did not preempt the

Villagersquos nuisance abatement action 42 USC sect 9613 Village of Depue Illinois v Exxon Mobil

Corporation 537 F3d 775 784-86 (7th Cir 2008) Section 113 (h) of CERCLA is limited to

federal actions reviewing remedial efforts under 9604 and 9606 (a) before completion It does not

preempt a state law nuisance action in state court or in federal court on diversity of citizenship Id

at 785 n8 During Depue I the Village was a non-home rule unit of government The Seventh

Docket numbers in this case are referred to by number and the particular paragraph or1

page number ldquo28para 6 is Dckt 28 paragraph six which is the second amended complaint

The Village is filing the exhibits separately Ex1 is The National Priority List Fact Sheet2

used in Depue I CD Ill Case No 06-1226 Dckt 1Ex12para 5[ExC National Priority List FactSheet]

2

circuit held the Villagersquos action under its nuisance abatement ordinance was preempted by clean

up being performed under the Illinois Environmental Protection Act This was because the non-

home rule ordinance was contrary to the ldquospirit and purposerdquo of that state statute Depue I 537

F3d at 789 The Village has been a home rule unit of local government since November 4 2008

28para 61

B The Ordinance Prosecution of Depue I the Tort Clams of Depue II and TheNational Priority List Fact Sheet No 11 and the June 2009 National PriorityList Fact Sheet No 12

Depue I was a prosecution brought by the Village under its nuisance abatement ordinance

Ex1 That ordinance required ExxonMobil and ViacomCBS to clean up the pollution on their2

own property The original ordinance action was a quasi criminal action City of Danville v

Clark 63 Ill2d 408 348 NE2d 844 (1976)(civil procedures applied in quasi criminal action to

prosecute regulatory ordinances that were criminal in nature)

The second amended complaint asserts common law tort claims against ExxonMobil and

ViacomCBS for the damage to its property28Part IV The Illinois Environmental Protection

Act provides that ldquo[n]o existing civil or criminal remedy for any wrongful act shall be excluded or

impaired by this Actrdquo415 ILCS 545 (a) (b) (2006) The modern contours of the common law

tort of nuisance for unreasonable use of onersquos land to the damage of adjoining landowners have

existed since Rylands v Fletcher LR 3 HL 330 (1868)(holding mill owners who constructed a

ExxonMobil = oil-grsquodammit rdquo CNN Money Apr il 23 20073

httpmoneycnncommagazinesfor tunefortunearchive200704308405398indexhtmExxonMobilrsquos 2006 profit s of $395 billion were the largest of any company in historyExxonMobil paid outgoing CEO Lee Raymond a $400 million retirement package Thecompany reject s the policy of rival BP to invest in environmentally friendly fuelsExxonMobil limit s its activities to petroleum and supplies better returns on its capital toits shareholders than any other company on earth United States v Shaughnessy 219 F2d 77 79(2d Cir 1955) Oran v Stafford 226 F3d 275 289 (3d Cir 2000)(newspaper reports ofcorporate earnings are the subject of judicial notice)

4

httpmoneycnncommagazinesfor tunefor tune500industriesEntertainment1html Revenuesin 2006 were $145 billion on net worth of $217 billion

httpwwwcity-data comcityDe-Pue-Illinoishtmlp18 Laborers Pension Fund5

v Blackmore Sewer Const Inc 298 F3d 600 608 (7 Cir 2002)(judicial notice is appropriateth

of matters on the Internet)

3

reservoir which gave way and flooded the neighboring coal mine were strictly liable for the

damage) The Illinois Supreme Court has applied the doctrine of Rylands v Fletcher for over 120

years Seacord v People 121 Ill 623 13 NE 194 199 (1887)(affirming a verdict of public

nuisance against defendant who collected dead animal carcasses on his land near dwelling houses)

The EPA first began investigating the pollution from the site in 1980 Ex2 On November

9 1995 the predecessors of Exxon Mobil and ViacomCBS entered into an Interim Consent

Order with the Illinois EPA in the Circuit Court of Bureau County Illinois Id The Order

obligated ExxonMobil and CBSViacom to undergo the process for clean up of the toxic

materials on the site ExxonMobil is the worldrsquos most profitable corporation with 150 years

experience in chemical and petroleum distillates ViacomCBS is the fourth largest entertainment3

company in the world4

The Village has a population of 1842 It relied on ExxonMobil ViacomCBS and the5

Illinois EPA to clean up the site The National Priority List Fact Sheet existing at the time Depue I

6

httpwwwepastateiluscommunity-relationsfact-sheetsnew-jersey-zincnew-jersey-zinc-12html

Id Why has it taken so long for the responsible parties to focus on the clean-up of7

DePue Lake

Id Describe the types of contamination that have been found in the DePue Lake8

Id What are the most likely exposure pathways to potential contamination in DePue9

Lake

Id Are the fish in DePue Lake safe to eat The advisory limits consumption of catfish10

and carp to 1 meal per month of any size 6 meals year of fish less than 24 inches and not to eatfish greater than 24 inches caught in DePue Lake In addition there is an advisory to limitlargemouth bass to 1 meal week Channel Catfish to 1 meal week less than 12 inches 1 meal month between 12 and 18 inches 6 meals year 16 to 18 inches and not to eat Channel Catfishgreater than 18 inches

4

was filed stated the initial health evaluations found no short-term threats to nearby populations

Ex2 ExxonMobil and ViacomCBS spent 14 years from the November 6 1995 Interim Consent

Order erecting a water treatment plant in the South Ditch portion of the site and doing its testing

of ground water contamination Ex2 3 The water treatment plant it erected is only an ldquointerimrdquo6

plant Ex27

The first report of the results of testing ndash ldquoremedial investigationrdquo in environmental speak

ndash outside the site was finalized and made public in June 2009 It showed ldquoconcentrations of

metals (zinc cadmium copper lead etc) are elevated The highest concentrations of these metals

were located near the South Ditch discharge area and south of Division Streetrdquo Ex3ldquoThe most8

likely human exposure pathway with DePue Lake is incidental ingestion of the turbid water

sediment and soil through recreational activitiesrdquo Ex3 The Illinois Department of Natural9

Resources announced in that June 2009 Fact Sheet limitations on the ingestion of fish from Lake

Depue to 1 meal per month and 6 meals per year in great detail Ex3 10

Id What can I do to minimize my exposure to potential contaminants in and around11

DePue Lake

5

The Fact Sheet states exposure can be ldquominimizedrdquo by washing your hands before eating

and drinking after being in contact with Lake waters Any mud from clothing and skin the boat

and oars fishing rods and lure and draining bilge water must be washed and removed before

leaving the lake area Ex311

In the 10 years since the November 6 1995 Interim Consent Order ExxonMobil and

ViacomCBS have performed actual cleaning work on only 40 acres of the 1500 acre site Depue

I Ex2 At that rate the clean up will be completed in the year 2365 ExxonMobil and

ViacomCBS have obviously convinced the Illinois EPA that clean up is an overwhelming task for

the worldrsquos wealthiest corporation and its fourth largest entertainment company

The Village Council see the site everyday The members did their basic arithmetic and

determined on October 18 2006 that ExxonMobil ViacomCBS and the Illinois EPA were

unreliable and the Village exercise its governmental powers Depue I CDIll Case No 06-1226

Dckt 1Ex1 The site was 24 on the National Priority List of the worst toxic sites in the Unitedth

States at the time Depue I was filed on October 18 2006 It had risen to 14 when Depue II onth

August 10 2008 Ex2Ex3 The latest Fact Sheet refers to the site as 950 acresEx3 No

explanation is given for what happened to the 550 acres of the site designated as 1500 acres in the

Fact Sheet existing at the time Depue I began Ex2

The Villagersquos suspicions about the 365 year clean up were confirmed in the June 2009

Fact Sheet Ex3 The Fact Sheet reveals the pollution from the site has migrated onto the

Villagersquos property including 20 acres of Lake Depue causing significant damage to the Village

6

property Ex3

The simplest way for the Village to proceed was exercise its police powers in a home rule

ordinance That ordinance imposed $10000 a day in civil penalties on ExxonMobil and

ViacomCBS each for the pollution under a home rule ordinance The amount of the penalty is the

same imposed by Section 42 of the Illinois Environmental Protection Act for noncompliance with

Illinois EPA Orders or violations of the Act 415 ILCS 542 (2008) This court has held the

Illinois Attorney Generalrsquos approval of the Interim Consent Order in the Circuit Court of Bureau

County was sufficient action to preempt the Villagersquos home rule powers under Article VII Section

6 of the Illinois Constitution of 1970 25

The Village has now turned to the common law of torts to obtain compensatory and

punitive damages for ExxonMobil and ViacomCBSrsquos damage to the Villagersquos property The

Village owns the streets and public right of way the Village Hall and surrounding lot on the

shores of Lake Depue and the shores marina and the 20 acres of Lake Depue it owns

IIThe Statute of Limitations Has Not Expired

A The Statue of Limitations is an Affirmative Defense Which Must be Pleadand Proven by the Defendant and When a Discovery Rule is InvolvedPresents Questions of Fact

ExxonMobil ignores the fact the statute of limitation is an affirmative defense

FedRCivProc 8 ( c) The burden of pleading and proving the statute of limitations ndash as with all

affirmative defenses ndash is on the defendant Law v Medco Research Inc 113 F3d 781 786 (7th

Cir 1997)(ldquotoo much emphasis on the statute of limitations can precipitate premature and

groundless suitsrdquo)

7

This is a Rule 12 (b)(6) motion to dismiss A plaintiff is not required to negate an

affirmative defense in his complaint Tregenza v Great American Communications Co 12 F3d

717 718 (7 Cir 1993) A Rule 12 (b)(6) motion to dismiss can be granted for expiration of theth

statute of limitations only when the ldquoallegations leave no doubt that an asserted claim is

time-barredrdquo LaChapelle v Berkshire Life Ins Co 142 F3d 507 509 (1 Cir 1998) quoted inst

Kauthar SDN BHD v Sternberg 149 F3d 659 670 n 14 (7 Cir 1998) th

ExxonMobil and ViacomCBS do not address the issue of whether the Village has

asserted liability for continuing torts which result in the statute of limitations running anew each

time rain water or melting snow polluted with heavy metals on the site runs downhill through the

Village of Depue and into Lake Depue Meyers v Kissner 149 Ill2d 1 594 NE2d 336 340

(1992)(separate nuisance and trespass occur each time pollutants enter plaintiffrsquos property) Nor

do they make any mention of the application of the federal discovery rule imposed on state

statutes of limitations by Section 309 of CERCLA 42 USC sect 9658 (a)(1) The application of a

discovery rule to determine when a plaintiff knew or reasonably should have known of his injury

for commencement of the statute of limitations is a question of fact See Kedzierski v Kedzierski

899 F2d 681 683 (7 Cir 1990) JointMem6-8 th

It is ExxonMobil and ViacomCBSrsquo burden to establish on their Rule 12 (b)(6) motion

that the allegations of the complaint leave no doubt on the expiration of the statute of limitations

LaChapelle 142 F3d at 509 The failure to inform of their burden of proof and address the two

controlling principles of law applicable to their statute of limitations defense requires summary

denial of the statute of limitations grounds asserted in their joint motion to dismiss

B The Limitations Period is Provided by Illinois Law but the Accrual Date is

The Comprehensive Environmental Response Compensation and Liability Act was12

adopted in 1980 (CERCLA) 42 USC sect 9601 et seq It purpose was to provide the necessarytools to clean up hazardous waste and impose liability on those responsible for the release of suchsubstances for the cost and clean up of the conditions they created Walls v Waste ResourceCorp 823 F2d 977 980 (6th Cir 1987) The Superfund Amendment and Reauthorization Act of1986 (SARA) was Congressrsquo response to the alarming lack of progress in cleaning up pollutedsites HR Report No 253 99thCong1st Sess Pt 1 a t 54-55 Pt 5 at 2-3 (1985)

8

Supplied by Section 309 of CERCLA Applying the Illinois Doctrine of theContinuing Tort Which is Longer Than the Period Provided by the FederalDiscovery Rule

1 Section 309 of CERCLA Determines Application of the Illinois FiveYear Property Damage Statute of Limitations

ExxonMobil and ViacomCBSrsquo reference to the five year Illinois property damage statute

of limitations is correct as far as it goes 735 ILCS 513-205 (2008) JointMem6-8 The

limitations period is supplied by the Illinois law but the accrual of that limitations period is

provided by Section 309 of CERCLA 42 USC sect 9568 (a)(1) Congress exercised its commerce

power in adopting the SARA Amendments to CERCLA to provide a uniform accrual period for

state law actions for personal injury or property damage caused by hazardous or polluting

substances Freier v Westinghouse Electric Company 303 F3d 176 184 (2d Cir2002) 12

The language of Section 309 of CERCLA refers to ldquopersonal injury or property damages

which are caused or contributed to by exposure to any hazardous substance or pollutant or

contaminant released into the environment from a facilityrdquo 42 USC sect 9658 (a) This is an action

to recover for the loss of use and clean up costs from the deposit of toxic metals on the Village of

Depuersquos streets City Hall land and the shores marina and 20 acres of Lake Depue the Village

owns

Plaintiff property owners had purchased a rock mine from the defendant McDonald v

ldquoIn the case of any action brought under State law for personal injury or property13

damages which are caused or contributed to by exposure to any hazardous substance orpollutant or contaminant released into the environment from a facility if the applicable limitationsperiod for such action (as specified in the State statute of limitations or under common law)provides a commencement date which is earlier than the federally required commencement datesuch period shall commence at the federally required commencement date in lieu of the datespecified in such State statuterdquo 42 USC 9568 (a)(1)

9

Sun Oil Company 548 F3d 774 778 (9 Cir 2008) The plaintiffs brought some of the calcineth

rock from the mine they had purchased to their residence and placed it on the drive and parking

lot The action was filed when plaintiffs learned from the Oregon Department of Environmental

Quality that the calcine rock in the mine was contaminated with mercury Id

Sun Oil contended the federal discovery limitations period of Section 309 of CERCLA did

not apply because there was no personal injuries and no property damage from release into the

environment The Ninth Circuit held Section 309 of CERCLA was applicable because plaintiffs

had suffered property damage in the form of the difference in value between mercury-free calcine

rock they purchased and the mercury contaminated calcine rock they received They also incurred

costs of cleaning up the mercury contaminated calcine rock they had placed in the drive and

parking lot of their residence 548 F3d at 784

Section 309 of CERCLA provides a discovery rule providing state period of limitations

accrues on the date the plaintiff knew (or reasonably should have known) that the personal injury

or property damages were caused or contributed to by the hazardous or polluting substance shall

be applied 42 USC sect 9568 (a)(4)A) Significantly this federal discovery rule applies only when

the state limitations period is earlier 42 USC 9568 (a)(1) 13

10

2 Section 309 of CERCLA Applies the Continuing Tort Principles of theFive Year Illinois Statute of Limitations Providing Damages for theEntire Period of the Nuisance and Trespass When the Action isTimely Filed

Illinois ndash like most every state -- provides a longer accrual date than fives years from the

date of discovery of damages from pollution A separate nuisance and trespass occurs each time

pollutants from a defendantrsquos property enter the plaintiffrsquos property Meyers v Kissner 149 Ill2d

1 594 NE2d 336 340 (1992) See City of Columbus v Myszka 246 Ga 571 272 SE2d 302

305 (1980)

Section 309 of CERCLA mandates application of the Illinois doctrine of continuing

nuisance and trespass torts because the period is longer than the federal minimum of five years

after the date of discovery In this case each time heavy metals ran downhill from the site during a

rain or melting snow and damaged the Villagersquos property a separate tort of nuisance and trespass

occurred The five year Illinois property damage statute of limitations began anew with each

deposit of pollutants on the Villagersquos property to its damage

While the Illinois five year statute of limitations does not preclude suits for a continuing

nuisance and trespass it does limit the time for which damages may be recovered to five years

before the action is filed Myers 594 NE2d at 340

This application of state law is preempted by the contrary federal rule of Section 309 of

CERCLA Parker v Scrap Metal Processors Inc 386 F3d 993 1016-17 (11 Cir 2004) Theth

plaintiffs brought a nuisance and trespass action for pollution of their land from migration of toxic

materials from defendantrsquos adjoining scrap metal business 385 F3d at 1016 Georgia courts apply

the same continuing tort rule as Meyers limiting damages from a continuing tort to the limitations

11

period before the action is brought Tucker v Southern Wood Piedmont Co 28 F3d 1089 1091

(11 Cir 1994) citing City of Columbus v Myszka 246 Ga 571 272 SE2d 302 305 (1980)th

Parker 386 F3d at 1016-17 The Eleventh Circuit held the Georgia restriction of damages to

those occurring with the period of its statute of limitations was preempted by Section 309 of

CERCLA 386 F3d at 1017 A plaintiff satisfies Section 309 by bringing the action within the

federal required commencement date on discovery of the wrong and the damage from that wrong

or longer period provided by state law Having met the federal mandated commencement date the

plaintiff is entitled to recover damages for the entire period the pollutants have caused him damage

386 F3d at 1017

The court reached the same result earlier in an action for damage to plaintiffrsquos adjoining

property from the defendantrsquos wood treatment plant Tucker v Southern Wood Piedmont Co

28 F3d 1089 1092-93 (11 Cir 1994)(illogical to conclude Section 309 tolls limitations on timeth

to bring the action but limits the period in which damages can be recovered) The Kentucky Court

of Appeals found Tucker was correctly decided Rockwell Intern Corp v Wilhite

143 SW3d 604 (KyApp 2003)(holding Section 309 of CERCLA requires that if action is

brought within the limitations period the plaintiff recovers damages for both the period within and

without the limitations period)

C Even if the Continuing Tort Doctrine Were Not Applied the VillagersquosDamage Action Was Timely As It Was Brought Before Discovery of Damageto Village Property From the Disclosures in the June 2009 Fact Sheet

Application of the federal discovery rule to the statute of limitations would lend

ExxonMobil and ViacomCBS no aid The Village relied on the statement in the Fact Sheet of the

National Priority List that there was no short term risk to health Ex2 That statement has been

12

superseded by the listing of the hazards to users of Lake Depue in the June 2009 Fact Sheet Ex3

The Villagersquos August 10 2008 action was brought before that disclosure 1Ex1 It was also

bought before the Village hired engineers to perform the March 2 2009 showing the elevated

levels of heavy metals in the blue water flowing downhill from the site through the Village when it

rained Reliance on publicized governmental reports finding an absence of injury from the presence

of pollutants is reasonable and tolls the statute of limitations until there are publicized

governmental reports concluding there is an injury See Freier v Westinghouse Electric

Corporation 303 F3d 176 208-10 (2d Cir2002)(plaintiffrsquos reliance on reports of absence of link

between cancer and toxic substances precluded expiration of statute of limitations under federal

discovery rule)

D The Villagersquos Claim for Damages to the Public Property It Owns is a Claim ofthe Sovereign Not Subject to Any Statute of Limitation

The abolition of sovereign immunity did not include elimination of the governmentrsquos

immunity from statutes of limitations City of Shelbyville v Shelbyville Restorium Inc 96 Ill2d

457 451 NE2d 874 876-77 (1983) The public should not bear the consequences of the neglect

of its officials Id The court held the Cityrsquos action to recover damages for the defendantrsquos failure

to construct the public streets in a workmanlike manner was a public right The safety of all that

use the streets require that they be constructed in a workmanlike manner which makes the

recovery of damages for defective construction an action in the public interest 451 NE2d at 877-

78

Here the Village is seeking to damages for the deposit of metals well beyond those safe to

animal and plant life The June 2009 Fact Sheet details the risk of harm to the public An action to

13

recover damages from the polluters who stockpiled and then did not contain the toxic metals from

water running downhill whenever it rained or snow melted is an action to vindicate the public right

The statute of limitations does not preclude such an action by the sovereign

ExxonMobil and ViacomCBS classify the Villagersquos action as a private nuisance for

damage to public property it owns and say there is no sovereign immunity for application of the

statute of limitations JointMem7-8 This can not survive Shelbyville which held a breach of

contract for defective erection of public property involved the public safety and was in the public

interest precluding application of the statute of limitations to the sovereign

There is more The City of Chicago brought a nuisance action to recover the $24 million

cost asphalt concrete dirt and demolition debris posing a threat to the health of the public on a 20

acre site City of Chicago v Latronica Asphalt and Grading Inc 346 IllApp3d 264 805 NE2d

281 283-84 288 (2004) The court found the recovery of clean up costs of the pollutants on a lot

the City did not own was a public right which precluded application of the statute of limitations

against the sovereign 805 NE2d at 289 292

School districts brought actions to recover the cost of removal of asbestos against suppliers

of asbestos containing products Board of Educ of City of Chicago v A C and S Inc

131 Ill2d 428 546 NE2d 580 (1989) Like the Villagersquos action here the school districts asserted

common law claims for the cost of removing pollutants from their own property from the suppliers

of the pollutants The suppliers asserted the claims were precluded by the 10 year products

liability statute of repose now 735 ILCS 513-213 (2008) The Illinois Supreme Court held the

actions were brought to enforce public rights precluding application of the products liability statute

of limitations against the sovereign 546 NE2d 602

14

Sovereign immunity from statutes of limitations turns not on the particular label given the

cause of action as ExxonMobil and ViacomCBS Rather it turns on whether the action involves

the rights of the general public to health safety and welfare The Village of Depue has sovereign

immunity from the application of the statute of limitations for the claims of damage to the public

streets the land around the Village Hall the shores marina and 20 acres of Lake Depue it owns

IIIRes JudicataClaim Preclusion Has No Application

A Res Judicata is an Affirmative Defense Which Can Not be Decided on a Rule12 (b)(6) Motion to Dismiss

ExxonMobil and ViacomCBS begin by saying judgment in the prior action bars the tort

claims in this action under the doctrine of res judicata Village of Depue Illinois v Exxon Mobil

Corporation 537 F3d 737 (7 Cir 2007) They again ignore their burden of pleading andth

proving an affirmative defense in this case the defense of res judicata FedRCivProc 8 ( c)

There must be no doubt from the face of the complaint and the filings in the action claimed to have

estoppel effect that the plaintiffrsquos claim could avoid res judicata in order to grant a Rule 12 (b)(6)

motion to dismiss on those grounds LaChapelle v Berkshire Life Ins Co 142 F3d 507 509 (1st

Cir 1998) quoted in Kauthar SDN BHD v Sternberg 149 F3d 659 670 n14 (7 Cir 1998)th

ExxonMobil and ViacomCBS do not identify the source of law that governs the estoppel

effects of the federal judgment in the Depue I diversity of citizenship action The preclusive effect

of a federal diversity judgment is a matter of federal common law Semtek International Inc v

Lockheed Martin Corp 531 US 497 508 121 SCt 1021 (2001) But the law required to be

applied under federal common law is the law of the state in which the federal court sits Id

B The Claims Asserted in This Action and In Depue I Are Not Identical Causes

Ex1 of the plaintiffrsquos exhibits to its response to the joint motion to dismiss is the14

ordinance which was of record in Depue I CDIll Case No 06-1DefEx1-4-p12-14

15

of Action

Depue I satisfies two of the three elements of res judicata There is (1) identity of the

parties and (3) there was a final judgment on the merits in Depue I Cole v Board of Trustees of

University of Illinois 497 F3d 770 772 (7 Cir 2007)th

ExxonMobil and ViacomCBSrsquo failure to identity the actual claims asserted in Depue I is

fatal to their burden of demonstrating the identity of causes of action element of res judicata is

present Such a discussion is essential as res judicata precludes all claims that were litigated or

might have been litigated in the prior action Cole 497 F3d at 772 (7 Cir 2007) th

Illinois applies the transactional analysis test of identity of causes of action The evidence

on each claim is examined to determine if the claims arise from the same group of operative facts

and arise from the same transaction Illinois River Park Inc v City of Highland Park 184 Ill2d

290 703 NE2d 883 893 (1998) relying upon Restatement (Second) of Judgments sect 24

Comment b at 199 The identity of cause of action element of res judicata is not met if the same

facts or evidence are not essential to both proceedings People ex rel Hartigan v Illinois

Commerce Commn 243 IllApp3d 544 611 NE2d 1321 1326 (1993)

Depue I was an ordinance prosecution of ExxonMobil and ViacomCBSrsquo maintenance of

the polluted site in violation of the nuisance abatement ordinance Depue Code sect 7-5-3 Section 7-

5-3 provides that every day an offender fails to abate a nuisance on his property after notice

constitutes a separate offense subject to a civil penalty of $750 per day Ex1 The evidence14

required to sustain the ordinance prosecution Depue I was (1) a notice to abate ExxonMobil and

16

ViacomCBS and (2) the existence of a nuisance an unreasonable use of onersquos property resulting

in ldquoa material inconvenience discomfort or hurtrdquo Kolstad v Rankin 179 IllApp3d 1022 534

NE2d 1373 1379-80 (1989)(defining nuisance)

The transaction in Depue I was the failure to abate a nuisance on onersquos own property after

notice to abate Ex1 The second amended complaint here in Depue II asserts common tort claims

of public nuisance private nuisance and trespass proximately causing damage to the Villagersquos

property

A public nuisance requires evidence of ldquo(1) the existence of a public right (2) a substantial

and unreasonable interference with that right by the defendant (3) proximate cause and (4)

injuryrdquo City of Chicago v American Cyanamid Co 355 IllApp3d 209 823 NE2d 126 130

(2005) The nuisance must be the result of either intentional and unreasonable conduct or

negligence City of Chicago v Beretta USA Corp 213 Ill2d 351 821 NE2d 1099 1147

(2004)

The elements of a private nuisance are (1) substantial and unreasonable interference with

anotherrsquos interest in the use of his land (2) intentional reckless or negligent conduct (3)

proximate cause and (4) injury Willmschen v Trinity Lakes Improvement Assn 362 IllApp3d

546 840 NE2d 1275 1281 (2005) Patterson v Peabody Coal Company 3 IllApp2d 311 316

122 NE2d 48 51 (IllApp 4 Dist1954)

A trespass to land is any unauthorized entry on the land of another resulting directly or

indirectly from onersquos conduct 75 AmJur 2d Trespass sect 18 Unless nominal damages are sought

the plaintiff must prove an injury was proximately caused from the entry on the land An

intentional intrusion on land subjects one to liability irrespective of whether it causes harm to a

17

legally protected interest Dial v City of OFallon 81 Ill2d 548 411 NE2d 217 219 (1980)

citing Restatement (Second) of Torts sect 158 at 277 (1965) A reckless intrusion on the land of

another gives rise to liability if it causes harm to a legally protected interest Dial Id citing

Restatement sect165 at 300 There is no liability for an unintentional entry on to land that is not

negligent even though the entry causes harm to a legally protected interest Dial 411 NE2d at

220 citing Restatement sect 166 at 304 The projection of any substance onto the land of another is a

trespass Dial 411 NE2d at 221

The evidence necessary to prove the transactions involved in the torts of public nuisance

private nuisance and trespass are significantly different than the action to abate the nuisance under

the Section 7-5-3 of the Depue Code Ex1 The ordinance violation is failure to abate a nuisance

after notice The Village was not required to prove ExxonMobil and ViacomCBS acted

intentionally or negligently as it does in the public nuisance and private nuisance torts It does not

have to prove an entry onto the Villagersquos land caused by ExxonMobil and ViacomCBS as is

required under the tort of trespass The existence of a nuisance on ExxonMobil and ViacomCBSrsquo

land and failure to abate that nuisance after notice is all that need be shown in the ordinance

prosecution brought in Depue I

The facts essential to the common law tort claims in Depue II are not essential to the

abatement ordinance prosecution in Depue I The identity of causes of action element is not

present and res judicata does not apply People ex rel Hartigan 611 NE2d at 1326

C The Claim for Damage to the Villagersquos Own Property Could Not Have BeenLitigated in the Prior Nuisance Abatement Action As This Court and theSeventh Circuit Refused to Construe the Complaint to Include a Claim forDamages

Excerpts of the plaintiffrsquos brief are provided in Ex615

18

This court considered whether the $750 a day penalty sought in the ordinance prosecution

complaint could be construed as an action for damages from a nuisance Ex4 Depue I CDIll

O6-1266 Dckt 36Tr15-16 Actions for the costs of clean up and the diminished value of

property are authorized under Section 907 of CERCLA42 USC sect 9607 (a)(4) Section 113 (h)

excepts such actions from the preclusion of federal review during development of a plan for

remediation 42 USC sect 9613 (h)

This court considered the contention further in its Order ruling on the motion to dismiss

The fine could be construed as compensation for the delay in cleaning up the pollution even though

it was not developed by plaintiff at argument It noted plaintiff did not pursue that contention at

argument but did not construe that to be a waiver Depue I Village of Depue Illinois v Exxon

Mobil Corp 2007 WL 1438581 p9 (2007) Ex5

The court addressed the issue on the merits It accepted defendantrsquos contention that the

fine is a means of leveraging a party into injunctive relief to clean up the property and a challenge

to the remedial plan adopted in the Interim Consent Order Depue I at p 9 supra The Village

argued on appeal the complaint could be sustained as a damage action Ex6 15

This was appropriate under the liberal standards for review of a Rule 12 (b)(6) motion to

dismiss Hrubec v National Railroad Passenger Corp 981 F 2d 962 963-64 (7th Cir

1992)(dismissal reviewed on the basis of the complaint and any additional facts supplied by

memorandum or brief on appeal that are consistent with the complaint) Stevens v Umsted 131

F3d 697 704 (7th Cir 1997)(affirming Hrubec standard) Plaintiff cited Hrubec and Stevens along

with the fact the plaintiff is entitled to the benefit of imagination in construction of the claims

19

asserted in the complaint in its brief in the Seventh Circuit Sanjuan v American Board of

Psychiatry amp Neurology 40 F 3d 247 251 (7 Cir 1994) cited approvingly Bell Atlantic vth

Twombly 127 SCt 1955 1964 (2007) Ex6

The Seventh Circuit rejected this argument construing the complaint as alleged an action

under the Villagersquos nuisance abatement ordinance for a declaratory judgment Exxon and Viacom

violated the ordinance daily fines up to $750 a day and an injunction requiring the immediate

clean up of the site Depue I 537 F3d at 781

The Seventh Circuit stated ldquoThe Villagersquos application of its nuisance ordinance seeks to

address in a heavy-handed manner a difficult environmental problem that is not only of local

concernrdquo Id at 788 The attempted enforcement of the nuisance ordinance by the Village ndash then a

non-home rule unit of local government ndash conflict was outside its limited powers not to act in

conflict ldquowith the spirit and purposerdquo of the clean up being pursued under the Illinois

Environmental Protection Act Id

It is the defendants ldquoheavyrdquo burden to demonstrate ldquowith clarity and certaintyrdquo the matter

claimed to be precluded by res judicata could actually have been litigated in the prior action Jones

v City of Alton Ill 757 F2d 878 885-86 (7 Cir 1985) The plaintiff in Jones filed a raceth

discrimination action for his termination as an Alton Police officer because of plaintiffrsquos off-duty

retail theft The plaintiffrsquos offer of evidence that white officers involved in as bad or worse

activities were not recommended for discharge was refused by the Alton Civil Service

Commission The plaintiff raised this issue and it was rejected in the action for administrative

review in the Illinois circuit court The plaintiff made the same claim on appeal but his evidence

was rejected as inadequate by the Illinois Appellate Court The court also found the evidence that

20

whites received more favorable treatmentndash even if in proper form ndash did not demonstrate the

discharge was unaerated757 F2d at 880-82

The Seventh Circuit held the defendants had not sustained their burden on res judicata that

the racial discrimination could have been litigated in the Illinois courts The evidence of racial

discrimination was rejected by the Alton Civil Service Commission the circuit court and the

Appellate Court Since plaintiffrsquos racial discrimination was not fully litigated on the merits the

might have litigated element of the identity of causes of action element of res judicata was not

present 757 F2d at 886

The Governmentrsquos action for an injunction for environmental pollution was dismissed with

prejudice and its claim for cost recovery dismissed without prejudice United States v Outboard

Marine Corp 789 F2d 497 508 (7 Cir 1986) The Seventh Circuit held the dismissal withoutth

prejudice was not erroneous It also held the judgment did not have res judicata effects on the

United Statesrsquo pursuit of a cost recovery action for the defendantrsquos pollution Id

Here the Village asserts the claim for damages the district court and the court of appeals

refused to consider in Depue I Both this court and the Seventh Circuit limited Depue I to the

complaint which prosecuted the Village nuisance abatement ordinance requiring ExxonMobil and

ViacomCBS to clean up the site or face $750 a day fines Like Jones the Village could not have

litigated the merits of a nuisance damage claim in Depue I Res judicata does not litigation of the

claims for damage to the Villagersquos property in this action

21

The Governmentrsquos pursuit of a criminal remedy does not prevent it from seeking a civil

remedy in a later action United States v Cunan 156 F3d 110 115 (1 Cir 1998) A priorst

governmental quasi-criminal ordinance enforcement action is subject only to issue preclusion Claim

preclusion is inappropriate Stoutmire v Strickland 1985 WL 1940 p1 (NDIll 2005)(Shadur J)

See also East Hanover Township v Cuva 156 NJSuper 159 383 A2d 725 (NJSuperAD

1978)(holding not guilty in quasi criminal action did not preclude civil action on same conduct)

IVThe Interim Consent Order Does Not Affect the Rights of Third Parties

And by Its Terms Does Not Apply to Village Owned Property or toLake Depue Twenty Acres of Which is Owned by the Village

This court and the Seventh Circuit in Depue I held the Village could not use the terms

Interim Consent Order as a sword to bring its nuisance abatement ordinance action in the Circuit

Court of Bureau County The Interim Consent Order addressed only actions interpreting the Order

itself It was not intended to benefit the Village Depue I 537 F3d at 783

Now ExxonMobil and ViacomCBS contend the Interim Consent Order entered into with

the Illinois Attorney General on behalf of the Illinois Environmental Protection Agency immunizes

them from any liability to the Village of Depue for damage to its property That contention runs

directly into the language of the Order The Order expressly provides that it shall not have any

effect on the claims of others for personal injury or property damage Ex7 ICO82para 3 (ldquoNothing

herein is intended to be a release or settlement of any claim for personal injury or property damage

The relevant language of this portion of page 83 para 3 of the Interim Consent Order and16

the Order is filed as Ex7

The Order lists the operations a) primary smelting of zinc ore b) production of17

lithopone paint pigment c) production of sulfuric acid d) production of phosphoric acid e)manufacturer and distributor of diammonium phosphate fertilizer f) manufacturer of zinc dust g)recovery an refinery of other lesser concentration contained in zinc ore and scrap zinc and h)operation of secondary zinc smelter (ICO VIII) Ex7

22

by any person not a party to this Interim Consent Order) Ex716

ldquoConsent decrees derive their authority from the parties consent which permits the parties

to give away their rights not the rights of third partiesrdquo State of Ohio ex rel Skaggs v Brunner

549 F3d 268 274 (6 Cir 2008) Rumpke of Indiana Inc v Cummins Engine Company Inc 107th

F3d 1235 1242 (7 Cir 1997)th

There is more By its terms the ICO applies to the 1500 acre site of the abandoned

manufacturing plant and the various operations conduced on that site Ex7 The second amended17

complaint seeks recovery of damages for the toxic metals which have drained downhill from the site

into Lake Depue and polluted that spring fed lake bordering the Illinois River The Village owns the

marina and beachfront of Lake Depue and 20 acres of the Lake itself Ex7 The Interim Consent

Order does not include any of the Villagersquos property ndash including Lake Depue ndash in its terms

The Order obligated ExxonMobil and ViacomCBS to do an ldquoimmediate investigationrdquo into

groundwater contamination Fourteen years have passed and the result of that testing have been

disclosed in the June 2009 Fact Sheet Ex3 ExxonMobil and ViacomCBS can not now

unilaterally amend the Order of the Circuit Court of Bureau County Illinois to shield them from the

liability for pollution of the Village owned Lake Depue

V

23

The Second Amended Complaint States a Claim for Common Law Public Nuisance Private Nuisance and Trespass

A The Common Law Torts of Public Nuisance Private Nuisance and TrespassWhen Applied to Pollution of the Plaintiffrsquos Land by the Defendant Addressthe Same Conduct

The Illinois Supreme Court has found the Restatement sets forth the Illinois law of public

and private nuisance City of Chicago v Beretta USA Corp 213 Ill2d 351 821 NE2d 1099

1110-11 (2004) A public nuisance as ldquoan unreasonable interference with a right common to the

general publicrdquo Restatement of Torts (Second) sect 821B (a) (1965) Circumstances that determine

whether a public nuisance exists are whether there is a (1) ldquosignificant interference with the public

health safety peace comfort or conveniencerdquo and (2) ldquothe conduct is of a continuing nature or has

produced a permanent or long-standing effect and as the actor knows or has reason to know has a

significant effect on a public rightrdquo Restatement sect 821B (b) (2)

A public official a public agency or someone who has suffered injury apart from that

suffered by the public at large may bring an action for a public nuisance Restatement sect 821C

A private person who suffers physical harm or damage to their land has suffered an injury different

from that suffered by the public at large and can bring a damage action for a public nuisance

Restatement sect 821C Comment d

A public nuisance which inflicts damage upon a person different from that of the public at

large can also be brought as a private nuisance Restatement sect 821D An invasion of onersquos land by

substances from an adjoining landowner is a continuing trespass to land Id Comment e Thus the

same conduct can be the subject of a damage action for a public nuisance a private nuisance and a

trespass to land Restatement sect 821D Comment h

24

Municipalities may bring public nuisance actions to recover damages to municipal property

Town of East Troy v Soo Line Railroad 653 F2d 1123 (7 Cir 1980)(affirming verdict in favor ofth

Town for the costs of remedying water pollution by the defendant railroad) City of Evansville

Indiana v Kentucky Liquid Recycling Inc 604 F2d 1008 1018 (7 Cir 1979)(holding City mayth

maintain an action to recover the damage incurred when the Cityrsquos water treatment plants from the

discharge of toxic chemicals into the Ohio River by the defendant refiner) Louisiana Dept Of

Transportation and Development v Kansas City Southern Railway Co 846 So2d 734

(2003)(Louisiana Department of Transportation could recover cost of removal of hazardous

material from highway from previous property owners who deposited it there)

B The Village Has Repeatedly Alleged Conduct of ExxonMobil ViacomCBSand Their Corporate Predecessors That is Tortious in the Second AmendedComplaint

1 The Complaint States a Claim for Public Nuisance

ExxonMobil and ViacomCBS say the amended complaint rdquofailed to identify tortious

conductrdquo and ldquothe second amended complaint suffers from that fatal deficiencyrdquo DefsMem14 The

second amended complaint repeatedly alleges misconduct by ExxonMobil and ViacomCBS

1 para 24 The managerial acts of the Defendants from 1903 to present day knowinglycontaminated Lake DePue with the byproducts of its heavy metal manufacturing

2 para25 The managerial acts of the predecessor corporations of ExxonMobil andViacomCBS during the operation of the manufacturing plant making zinc products sulfuricacid diammonium phosphate and fertilizers for 84 years was done intentionally willfullyand wantonly or negligently by the managerial agents of ExxonMobil and ViacomCBScreated an unreasonably dangerous in the land on the site that interfered with the rights ofthe general public

25

3 para 30 The ownership and occupation of the Site by ExxonMobil and ViacomCBSsince 1987 when the manufacturing plant closed until 1995 wherein the metals at toxiclevels continue to pollute the Village sic [by] accumulation and failure to confine the toxicmetals from water run off whenever it rains or melts

4 para 31 These abnormally dangerous activities subject ExxonMobil and ViacomCBSto liability for a public nuisance Alternatively the managerial agents of ExxonMobiland ViacomCBS acted intentionally willfully and wantonly or negligently in stockpilingthe toxic metals as stated above [ie ldquofailure to confine the toxic metals from water runoff whenever it rains or meltsrdquo alleged in para 30]

5 para 34 The managerial agents of ExxonMobil and ViacomCBS and their corporatepredecessors have intentionally willfully and wantonly or negligently allowed toxic metalsfrom the Site including zinc lead arsenic cadmium chromium and copper to pollute theVillage of DePue and Lake DePue28

The Illinois system of fact pleading is more stringent than the federal system of notice

pleading Vincent v City Colleges of Chicago 485 F3d 919 923-924 (7th Cir2007) But the

Illinois Supreme Court applies less exacting standards to nuisance claims because the concept

ldquoeludes precise definitionrdquo and ldquodepends on peculiar facts presented by each caserdquo City of Chicago

v Beretta USA Corp 213 Ill2d 351 821 NE2d 1099 1110 (2005)

ExxonMobil and ViacomCBS next say the second amended complaint does not allege the

ldquounreasonable interference element of a public nuisance claimrdquo The paragraphs quoted above and

contain such references which are set forth here

1 para 25 The managerial acts of the predecessor corporations of ExxonMobil andViacomCBS during the operation of the manufacturing plant making zinc products sulfuricacid diammonium phosphate and fertilizers for 84 years was done intentionally willfullyand wantonly or negligently by the managerial agents of ExxonMobil and ViacomCBScreated an unreasonably dangerous in the land on the site that interfered with the rights ofthe general public

2 para 31 These abnormally dangerous activities subject ExxonMobil and ViacomCBSto liability for a public nuisance Alternatively the managerial agents of ExxonMobil

26

and ViacomCBS acted intentionally willfully and wantonly or negligently in stockpilingthe toxic metals as stated above [ie ldquofailure to confine the toxic metals from water runoff whenever it rains or meltsrdquo alleged in para 30] 28

These allegations must not be read in isolation

para13 During these years of heavy manufacturing these toxic metals however did notsimply remain in place where they were dumped The Site is located on a hill withsubstantial incline from the Site downward through the Village of DePue and Lake DePuerdquo

Ex8-10 are satellite maps showing the significant incline from the Illinois River bluff wherethe site is located to the Village of Depue Lake Depue and the Illinois River

para15 The byproducts [from the 84 years of manufacturing] were stored in a number ofways and remain on the Site at the following locations among others

A Heavy metals were deposited in a ditch known as the South DitchMaterials in the South Ditch directly migrate into Lake DePue

B Smelting and coal cinder wastes from the zinc processing operations wereaccumulated in a large pile called the ldquogob pilerdquo or ldquocinder pilerdquo The gobpile covers about 15 acres along Marquette Street in DePue whichcontains solid smelting wastes and coal cinders

C Lithopone was accumulated in ridges that cover approximately 28 acresand are in places the size of a building of more than two stories TheseLithopone Ridges are adjacent to Marquette Street in DePue and arereferred to by local residents as the ldquoBlack Pile of Deathrdquo

para 17 Toxic metals from the South Ditch the gob pile and the lithopone ridges continueto wash into the groundwater the Village of DePue and Lake DePue with each rainfall andmelting snow The vegetation from the seeding eroded and failed leaving the contaminationbare to runoff and ambient exposure It is a blight to the community

para19 The toxic metals in the South Ditch gob pile and lithopone ridges contaminatedthe Village of DePue from 1903 to present day Toxic metals do not break down Becausethe contaminants remain in the groundwater and in the Lake the damages from the nuisanceare ongoing continue to accrue and will continue to accrue for many years to comeindependently of whether the nuisance itself continues 28

Nine photographs taken on October 6 2008 after a rain occurred show the blue water that runs

down the hill from the site through the Village of Depue and into Lake Depue

27

para 20 The photographs that are ExA amp B to the [second] amended complaint and Ex5accurately depict the results which occur whenever it rain The photographs accuratelydepicts the results that occur whenever it rains or snow melts 28

The Village waited 14 years since the Interim Consent Order was entered on November 6 1995 for

the results of testing to determine if there was any damage from the site to the Village and Lake

Depue On March 6 2009 the Village retained engineer gathered samples during a rain and tested

the blue water that runs downhill from the site The tests revealed Copper levels 56 times the

accepted levels to avoid risk of injury to animals and plants 398 times such levels for Manganese

224 times such levels for Zinc 31 such levels times for Cadmium and 20 times such levels for

Nickel 28 para 22

Part D para 24-25 sets forth the specifics of the running of the blue water containing toxic

metals through the Village of Depue and into Lake Depue contaminating the Lake 28 These

allegations and the risk to health have been confirmed in the test results released in the June 2009

National Priority List Fact Sheet Ex3 It is a substantial and unreasonable interference with the

public right when one can not consume fish over a certain size and only so many per month and per

year It also a substantial interference with a public right when you must wash your hands before

eating and drinking after being in contact with Lake Depue waters That is not all You must also

wash any mud from clothing and skin the boat and oars fishing rods and lure and draining bilge

water before leaving the lake area Ex3 So much for the prior Fact Sheetrsquos statement there was no

short term threat to the public health from the site Ex2

2 The Complaint States a Claim for a Private Nuisance

ExxonMobil and ViacomCBS repeat their assertion there were no allegations any

ldquointentional negligent or unreasonable invasion of a private interest in land JointMem15 They

28

also say ldquothe Village does not allege any facts showing how under the Restatement sect 520 factors

defendantsrsquo operation of a zinc smelterfertilizer plant was an abnormally dangerous activity as

required under Illinois lawrdquo DefMem16

The detailed allegations of para 15 17 19 20 22-24 25 30 31 34 of the second amended

complaint contain those facts28 The toxic byproducts of the zinc smelting and fertilizer

manufacturing copper manganese and zinc were stockpiled where they would run downhill in

rainwater at 100-500 times acceptable levels cadmium at 31 times and zinc 21 times acceptable

levels through the Village of Depue and into Lake Depue These levels are specifically alleged in para

22 These metals ran with the water downhill in the 86 years of manufacturing at the site and have

continued to run downhill for the 20 years since the plant was closed in 1989 Fourteen of those

years ndash 1995-2009 -- the site was the subject of the Interim Consent Order under which

ExxonMobil and ViacomCBS agreed not to remediate the pollution but to plan to remediate the

pollution on the site

ExxonMobil has multitudes of petroleum engineers and geologists ExxonMobil and

ViacomCBS also have multitudes of environmental and civil engineers It does not take an engineer

to know water runs downhill The sophisticated chemical processes required by the manufacturing

process and in the testing for a plan of remediation necessarily revealed levels of the toxic metals at

levels that are unacceptable to animal and plant life Yet ExxonMobil and ViacomCBS and its

corporate predecessors did nothing to contain the toxic metals and dispose of them Instead they

allowed them to run downhill through the Village and into Lake Depue whenever it rained or snow

melted That is tortious conduct

3 The Complaint States a Claim for Trespass

29

Exxon Mobil and ViacomCBS repeat their contention of insufficient allegations of tortious

conduct in the trespass claim The allegations referred to previously in the public nuisance and

private nuisance claims are likewise applicable to the trespass claim The second amended complaint

states a claim for trespass

VThe Village Seeks Recovery of Damages That Are the Subject of

Tort Liability And Not Precluded by the Economic Loss Doctrine

ExxonMobil and ViacomCBS close by contending the Villagersquos claim is precluded by the

economic loss doctrine JointMem17-19 The Illinois Supreme Court has defined ldquodamages for

inadequate value costs of repair and replacement of the defective product or consequent loss of

profits-without any claim of personal injury or damage to other property Moorman Mfg Co v

National Tank Co 91 Ill2d 69 435 NE2d 443 449 (1982) Moorman was a strict products

liability action for a crack in a grain storage tank manufactured by the defendant No one injured

and no property was physically damaged Strict products liability would have been appropriate if

there were personal injury physical damage to property or the defect caused a sudden calamitous

But the crack in the tank was a failure of the product addressed by contract law The plaintiffrsquos

remedies were those available for breach of warranty under the Uniform Commercial Code Id at

450-51 453

The economic loss doctrine applies to ldquodisappointed commercial expectations gradual

deterioration internal breakage or other nonaccidental causes rather than a dangerous eventrdquo

Redarowicz v Ohlendorf 92 Ill2d 171 177-78 441 NE2d 324 (1982) It does not apply to

property damage from a nuisance such as the perishable inventory lost in the Chicago River flooded

into underground tunnels under the Loop In re Chicago Flood Litigation 176 Ill2d 179 680

30

NE2d 265 276 (1997)

The costs of repairing a building contaminated by asbestos asserted in tort claims of strict

products liability and negligence is not barred by the economic loss doctrine Tioga Public School

Dist No 15 of Williams County State of ND v US Gypsum Co 984 F2d 915 918 (8 Cirth

1993)(applying North Dakota law) The risk to the health of persons exposed to asbestos makes

clean up costs the appropriate subject of tort liability Id at 918 The tort claims of grain farmers

whose corn was destroyed by contact with defendantrsquos defective genetically altered corn from cross

pollination in the field or by commingling in distribution were not precluded by the economic loss

doctrine In re StarLink Corn Products Liability Litigation 212 FSupp2d 828 842-43 (NDIll

2002)

Here the Village has suffered physical injury to its streets land surrounding the Village Hall

and the shores and bottom of Lake Depue This occurs from the deposit of toxic metals in the blue

water runoff from the site whenever it rained or snow melts Those claims are actionable in tort and

not precluded by the economic loss doctrine

Respectfully submitted

s Richard L Steagall RICHARD L STEAGALLAttorney for the Plaintiff

31

LOCAL RULE 71 CERTIFICATION

The undersigned states this document was prepared on his law firmrsquos Wordperfect X4software and the word count exclusive of the title page table of contents the Local Rule 71 BCertification and Certificate of Service is 9472

s Richard L Steagall RICHARD L STEAGALL

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed this document with the Clerk of the court onNovember 6 2009 using the CMECF system which will send this document and notification ofits filing by e-mail to the following

Mr Henry W IpsenHolme Roberts amp Owen LLPSuite 14001700 Lincoln Street Suite 1400Denver CO 80203-4541303-866-0430Fax 303-866-0200Email hankipsenhrocom Attorney for Viacom International Inc nka CBS Operations Inc

Mr Rex K LinderMr Robert M BennettHeyl Royster Voelker amp Allen124 SW Adams Street Suite 600Peoria IL 61602309-676-0400Fax 309-676-3374Email rlinderhrvacom Email rbennetthrvacom Attorneys for Viacom International Inc nka CBS Operations Inc

32

Mr Mark S LillieMr Peter Michael StasiewiczKirkland amp Ellis200 E Randolph DriveChicago IL 60601312-861-2000Fax 312-861-2200Email mlilliekirklandcom Email pstasiewiczkirklandcom Attorneys for DefendantExxon Mobil Corporation

Ms Wendy BloomKirkland amp Ellis LLP200 East Randolph DriveChicago IL 60601312-861-2000Fax 312-861-2200Email wbloomkirklandcom Attorneys for Defendants Viacom International Incnka CBS Operations Incand Exxon Mobil Corporation

Page 1
Page 2
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Page 7
Page 8
Page 9
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Page 11
Page 12
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Page 34
Page 35

Page 2: DePue v. Exxon Mobil and CBS/Viacom

i

TABLE OF CONTENTS

I Introduction 1

A The Seventh Circuitrsquos Holdings in Depue I 1

B The Ordinance Prosecution of Depue I the Tort Clams of Depue II and TheNational Priority List Fact Sheet No 11 and the June 2009 National Priority ListFact Sheet No 12 2

II The Statute of Limitations Has Not Expired 6

A The Statue of Limitations is an Affirmative Defense Which Must be Plead andProven by the Defendant

6

B The Limitations Period is Provided by Illinois Law but the Accrual Date isSupplied by Section 309 of CERCLA Applying the Illinois Doctrine of theContinuing Tort Which is Longer Than the Period Provided by the FederalDiscovery Rule 8

1 Section 309 of CERCLA Determines Application of the Illinois Five Year Property Damage Statute of Limitations 8

2 Section 309 of CERCLA Applies the Continuing Tort Principles of theFive Year Illinois Statute of Limitations Providing Damages for the EntirePeriod of the Nuisance and Trespass When the Action is Timely Filed 10

C Even if the Continuing Tort Doctrine Were Not Applied the Villagersquos DamageAction Was Timely As It Was Brought Before Discovery of Damage to VillageProperty From the Disclosures in the June 2009 Fact Sheet

11

D The Villagersquos Claim for Damages to the Public Property It Owns is a Claim of the Sovereign Not Subject to Any Statute of Limitation 12

III Res JudicataClaim Preclusion Has No Application 14

A Res Judicata is an Affirmative Defense Which Can Not be Decided on a Rule 12(b)(6) Motion to Dismiss 14

ii

17

21

24

Signature 30

1

IIntroduction

2

28para 61

4

3

6

DePue Lake

Lake

4

plant Ex27

DePue Lake

5

6

property Ex3

7

8

owns

9

10

305 (1980)

11

386 F3d at 1017

12

discovery rule)

78

13

14

15

of Action

16

property

(2004)

122 NE2d 48 51 (IllApp 4 Dist1954)

17

18

Mobil Corp 2007 WL 1438581 p9 (2007) Ex5

19

Twombly 127 SCt 1955 1964 (2007) Ex6

20

21

22

F3d 1235 1242 (7 Cir 1997)th

V

23

24

25

26

27

Nickel 28 para 22

28

29

450-51 453

30

NE2d 265 276 (1997)

2002)

31

32

Page 1
Page 2
Page 3
Page 4
Page 5
Page 6
Page 7
Page 8
Page 9
Page 10
Page 11
Page 12
Page 13
Page 14
Page 15
Page 16
Page 17
Page 18
Page 19
Page 20
Page 21
Page 22
Page 23
Page 24
Page 25
Page 26
Page 27
Page 28
Page 29
Page 30
Page 31
Page 32
Page 33
Page 34
Page 35

Page 3: DePue v. Exxon Mobil and CBS/Viacom

ii

17

21

24

Signature 30

1

IIntroduction

2

28para 61

4

3

6

DePue Lake

Lake

4

plant Ex27

DePue Lake

5

6

property Ex3

7

8

owns

9

10

305 (1980)

11

386 F3d at 1017

12

discovery rule)

78

13

14

15

of Action

16

property

(2004)

122 NE2d 48 51 (IllApp 4 Dist1954)

17

18

Mobil Corp 2007 WL 1438581 p9 (2007) Ex5

19

Twombly 127 SCt 1955 1964 (2007) Ex6

20

21

22

F3d 1235 1242 (7 Cir 1997)th

V

23

24

25

26

27

Nickel 28 para 22

28

29

450-51 453

30

NE2d 265 276 (1997)

2002)

31

32

Page 1
Page 2
Page 3
Page 4
Page 5
Page 6
Page 7
Page 8
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Page 11
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IIntroduction

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28para 61

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3

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Lake

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plant Ex27

DePue Lake

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property Ex3

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owns

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12

discovery rule)

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of Action

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property

(2004)

122 NE2d 48 51 (IllApp 4 Dist1954)

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28para 61

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Lake

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plant Ex27

DePue Lake

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property Ex3

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owns

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305 (1980)

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386 F3d at 1017

12

discovery rule)

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of Action

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property

(2004)

122 NE2d 48 51 (IllApp 4 Dist1954)

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Mobil Corp 2007 WL 1438581 p9 (2007) Ex5

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Lake

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plant Ex27

DePue Lake

5

6

property Ex3

7

8

owns

9

10

305 (1980)

11

386 F3d at 1017

12

discovery rule)

78

13

14

15

of Action

16

property

(2004)

122 NE2d 48 51 (IllApp 4 Dist1954)

17

18

Mobil Corp 2007 WL 1438581 p9 (2007) Ex5

19

Twombly 127 SCt 1955 1964 (2007) Ex6

20

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F3d 1235 1242 (7 Cir 1997)th

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2002)

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DePue Lake

Lake

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plant Ex27

DePue Lake

5

6

property Ex3

7

8

owns

9

10

305 (1980)

11

386 F3d at 1017

12

discovery rule)

78

13

14

15

of Action

16

property

(2004)

122 NE2d 48 51 (IllApp 4 Dist1954)

17

18

Mobil Corp 2007 WL 1438581 p9 (2007) Ex5

19

Twombly 127 SCt 1955 1964 (2007) Ex6

20

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F3d 1235 1242 (7 Cir 1997)th

V

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28

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2002)

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DePue Lake

5

6

property Ex3

7

8

owns

9

10

305 (1980)

11

386 F3d at 1017

12

discovery rule)

78

13

14

15

of Action

16

property

(2004)

122 NE2d 48 51 (IllApp 4 Dist1954)

17

18

Mobil Corp 2007 WL 1438581 p9 (2007) Ex5

19

Twombly 127 SCt 1955 1964 (2007) Ex6

20

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F3d 1235 1242 (7 Cir 1997)th

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6

property Ex3

7

8

owns

9

10

305 (1980)

11

386 F3d at 1017

12

discovery rule)

78

13

14

15

of Action

16

property

(2004)

122 NE2d 48 51 (IllApp 4 Dist1954)

17

18

Mobil Corp 2007 WL 1438581 p9 (2007) Ex5

19

Twombly 127 SCt 1955 1964 (2007) Ex6

20

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F3d 1235 1242 (7 Cir 1997)th

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2002)

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305 (1980)

11

386 F3d at 1017

12

discovery rule)

78

13

14

15

of Action

16

property

(2004)

122 NE2d 48 51 (IllApp 4 Dist1954)

17

18

Mobil Corp 2007 WL 1438581 p9 (2007) Ex5

19

Twombly 127 SCt 1955 1964 (2007) Ex6

20

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F3d 1235 1242 (7 Cir 1997)th

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Page 11: DePue v. Exxon Mobil and CBS/Viacom

8

owns

9

10

305 (1980)

11

386 F3d at 1017

12

discovery rule)

78

13

14

15

of Action

16

property

(2004)

122 NE2d 48 51 (IllApp 4 Dist1954)

17

18

Mobil Corp 2007 WL 1438581 p9 (2007) Ex5

19

Twombly 127 SCt 1955 1964 (2007) Ex6

20

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22

F3d 1235 1242 (7 Cir 1997)th

V

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10

305 (1980)

11

386 F3d at 1017

12

discovery rule)

78

13

14

15

of Action

16

property

(2004)

122 NE2d 48 51 (IllApp 4 Dist1954)

17

18

Mobil Corp 2007 WL 1438581 p9 (2007) Ex5

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Twombly 127 SCt 1955 1964 (2007) Ex6

20

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10

305 (1980)

11

386 F3d at 1017

12

discovery rule)

78

13

14

15

of Action

16

property

(2004)

122 NE2d 48 51 (IllApp 4 Dist1954)

17

18

Mobil Corp 2007 WL 1438581 p9 (2007) Ex5

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Twombly 127 SCt 1955 1964 (2007) Ex6

20

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F3d 1235 1242 (7 Cir 1997)th

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11

386 F3d at 1017

12

discovery rule)

78

13

14

15

of Action

16

property

(2004)

122 NE2d 48 51 (IllApp 4 Dist1954)

17

18

Mobil Corp 2007 WL 1438581 p9 (2007) Ex5

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Twombly 127 SCt 1955 1964 (2007) Ex6

20

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12

discovery rule)

78

13

14

15

of Action

16

property

(2004)

122 NE2d 48 51 (IllApp 4 Dist1954)

17

18

Mobil Corp 2007 WL 1438581 p9 (2007) Ex5

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Twombly 127 SCt 1955 1964 (2007) Ex6

20

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F3d 1235 1242 (7 Cir 1997)th

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14

15

of Action

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property

(2004)

122 NE2d 48 51 (IllApp 4 Dist1954)

17

18

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15

of Action

16

property

(2004)

122 NE2d 48 51 (IllApp 4 Dist1954)

17

18

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19

Twombly 127 SCt 1955 1964 (2007) Ex6

20

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of Action

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property

(2004)

122 NE2d 48 51 (IllApp 4 Dist1954)

17

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Twombly 127 SCt 1955 1964 (2007) Ex6

20

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F3d 1235 1242 (7 Cir 1997)th

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property

(2004)

122 NE2d 48 51 (IllApp 4 Dist1954)

17

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F3d 1235 1242 (7 Cir 1997)th

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DePue v. Exxon Mobil and CBS/Viacom

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