Koch Unit, BP Released from Chicago Toxic Dust Class Action Lawsuit

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On Wednesday, the class action lawsuit alleging that Koch unit KM Railways LLC and BP Products North America Inc. caused clouds of coal dust to blow onto Chicago residents’ properties was partially dismissed by a federal judge.

Four Chicago residents filed the Chicago toxic dust class action lawsuit against KCBX Terminals Co., George J. Beemsterboer Corp., Transload Realty, DTE Chicago Fuels Terminal, Calumet Transload Railroad and Koch Carbon, alleging that dust from their waste sites, particularly their petcoke sites, was having a negative effect on their property values as well as creating a fire and health hazard.

Petcoke is a fine, black powdery substance that is a byproduct of the coal refining process. It can be harmful if inhaled and, because of its dust-like make up, is easily transported by the wind. The plaintiffs filed claims against the operators of a coal storage and transfer terminal, the alleged source of the dust, as well as against the property owners, KM Railways.

U.S. District Court Judge Manish S. Shah ruled that, according to Illinois law, a landlord is generally not liable to third parties for a tenant’s negligence and the plaintiffs had not established that KM Railways had been negligent in any other way.

“Plaintiffs’ only allegation concerning defendant KMR is that it ‘owns the property on which KCBX’s Burley Terminal is situated, as well as rail tracks and rail facilities on and adjacent thereto,” Judge Shah pointed out. “Plaintiffs’ theory is that it is negligent to store petcoke unenclosed and uncovered at facilities that are near to residential neighborhoods,” continued the judge. “That theory does not directly implicate KMR, which is not alleged to control the manner of storage.”

Judge Shah also tossed the remaining claims of trespass and private nuisance against KM Railways.

Judge Shah similarly dismissed the class action lawsuit allegations against BP because, according to court documents, the plaintiffs did not claim that BP stored or distributes petcoke, the source of the coal dust, and didn’t provide any evidence to establish their claim that BP transported and stored petcoke in a negligent way. “These conclusions are the type of naked assertions devoid of further factual enhancement that the Supreme Court has held cannot defeat a motion to dismiss,” Judge Shah wrote in his order. “Indeed,” continued the judge, “plaintiffs undermine their own conclusions by alleging that all defendants other than BP own and operate the storage facilities.”

Judge Shah did not dismiss the plaintiffs’ claims against the other defendants, including claims of private nuisance, trespass and negligence claims. “As to the other storage/distribution defendants,” wrote the judge, “plaintiffs have pleaded enough: they allege that these defendants owned or operated storage facilities near residential neighborhoods.”

“Given the geographical proximity,” Judge Shah continued, “the foreseeability that a dust-like particle would be transported by wind … plaintiffs have sufficiently alleged that these defendants owed a duty to exercise reasonable care toward the plaintiffs.” The other defendants include Koch units KCBX Terminals Co. and Koch Carbon, as well as George J. Beemsterboer Inc., Beemsterboer Slag & Ballast Corp., Calumet Transload Railroad LLC and DTE Chicago Fuels Terminal.

The plaintiffs are represented by Thomas A. Zimmerman Jr., Adam M. Tamburelli and Frank J. Stretz of Zimmerman Law Offices PC.

The Chicago Toxic Dust Class Action Lawsuit is Lilly Martin, et al. v. KCBX Terminals Co., et al., Case No. 13CH24614, in the Circuit Court of Cook County, Illinois.

UPDATE: The Chicago Coal Dust Class Action Lawsuit Settlement is now open! Click here to file a Claim Form or visit https://eclaim.kccllc.net/caclaimforms/cux/home.aspx for more details.