A Chicago federal judge has refused to douse a counterclaim by a scrap metal yard against the city of Aurora, which alleges contaminated water on the property was runoff from a nearby city road, not contaminated by scrap waste as the city contends in its suit against the business.
In September 2020, the City of Aurora sued Fox Valley Iron and Metal, which runs a scrap metal yard. The city also sued the prior owners, BS Iron, Robert Swickert Sr. and Robert Swickert Jr., alleging contaminated storm and groundwater from the yard has drained into Fox River and the city sewer.
U.S. District Judge Matthew Kennelly
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The Swickert family ran the metal recycling business at 637-657 N. Broadway Ave., from 1933 to December 2018. In January 2019, they conveyed the site to Fox Valley Iron and Metal, according to court papers. During those years and to the present, the city alleged metal and other solid waste on the property has polluted the environment at the site, with current recycling operations at the site exacerbating the contamination.
The scrap yard owners responded by filing a counterclaim against Aurora. The scrap yard owners allege that, for decades, the city used their yard to dispose of such waste as lead pipes, auto batteries, crushed metal drums with oil residue and various scrap metal. In addition, defendants claimed that Aurora Road, a city thoroughfare without curbs or gutters, adjoins the scrap yard and is higher than the yard, causing already contaminated water on the pavement to flow onto the property.
The city lodged a motion to dismiss the counterclaims, which contained four counts, with Judge Kennelly tossing three.
The count that survived cited the U.S. Resource Conservation and Recovery Act, alleging the city contributed to the "handling, storage, treatment, transportation, or disposal" of waste that endangers the public or the environment.
Defendants claimed the city violated this Act by paying the scrap yard to be allowed to bring "solid or hazardous waste" to the yard for disposal.
Kennelly found this claim to be plausible enough and in comportment with the Act's requirements, to withstand dismissal.
Kennelly determined two other counts, which cited the U.S. Comprehensive Environmental Response, Compensation, and Liability Act, did not comply with the Act.
Another count accused the city of trespass, but Kennelly found defendants had to prove, but did not, that construction of the road led to an "unreasonable" increase in the amount of water draining onto the site.
The City of Aurora has been represented by Jeep & Blazer, of Hinsdale.
The Swickerts and BS Iron Inc. have been represented by Lowis & Gellen, of Chicago.
Fox Valley Iron has been represented by Swanson, Martin & Bell, of Chicago.
Defendants have asked that BNSF Railway be included as a defendant because they said the scrap yard property was owned by the railway from 1900 to the early 1970s, when the railway quit claimed its interest to the Swickert family.
BNSF responded that defendants have not put forth any facts that the railway conducted any operations involving hazardous waste at the site.
The railway has been represented by the Chicago and St. Louis offices of Thompson Coburn LLP.