City of East St. Louis, Illinois v. Monsanto Corporation

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CITY OF EAST ST. LOUIS,
Plaintiff,
vs.
MONSANTO CO., PHARMACIA LLC,
and SOLUTIA, INC.,
Defendants.
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Case No. 3:21-cv-232-DWD
MEMORANDUM & ORDER
DUGAN, District Judge:
Before the Court are the parties’ Motions for Summary Judgment, including:
Defendants’ Motion for Summary Judgment on Plaintiff’s Claims; Plaintiff’s Motion for
Partial Summary Judgment on Defendants’ Liability for Trespass and First Affirmative
Defense; the parties’ Motions for Summary Judgment on Defendants’ First Amended
Counterclaim; and Defendant Solutia Inc.’s Motion for Partial Summary Judgment on
Direct Liability. 1 Those Motions are fully briefed with the parties’ Responses and
Replies. 2 Also before the Court are the parties’ Motions to Exclude Expert Testimony
together with their Responses and Replies. 3 Finally, Defendants filed a Motion for a
Judicial Determination on Plaintiff’s Demand for a Jury Trial, the parties filed Motions in
Limine, and the parties filed a Joint Motion for an Extension of Time. 4 For the reasons
1(Docs. 261, 263, 268, 271, 283).
2(Docs. 322, 324, 328, 329, 330, 345, 347, 348, 349, 351).
3(Docs. 255, 256, 257, 258, 259, 260, 262, 264, 265, 266, 267, 269, 270, 278, 313, 314, 315, 316, 317, 318,
319, 320, 321, 323, 325, 326, 327, 337, 338, 339, 340, 341, 342, 343, 344, 346, 350).
4(Docs. 357, 361, 362, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402, 403, 404,
405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 416, 417, 418, 419, 420, 421).
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explained below, the Court holds Defendants are entitled to summary judgment based
on the statutes of limitations and repose and the nullum tempus doctrine. Accordingly,
Defendants’ Motion for Summary Judgment on Plaintiff’s Claims is GRANTED, in part,
and DENIED as moot, in part, and Plaintiff’s Motion for Partial Summary Judgment on
Defendants’ Liability for Trespass and First Affirmative Defense is DENIED. 5 By
extension of these rulings, the parties’ Motions for Summary Judgment on Defendants’
First Amended Counterclaim, Defendant Solutia Inc.’s Motion for Partial Summary
Judgment on Direct Liability, the Motions to Exclude Expert Testimony, Defendants’
Motion for a Judicial Determination on Plaintiff’s Demand for a Jury Trial, the parties’
Motions in Limine, and the Joint Motion for an Extension of Time are DENIED as moot.
Defendants’ First Amended Counterclaim is DISMISSED without prejudice.
I. BACKGROUND
This case was removed from the Circuit Court of St. Clair County. (Doc. 1). Plaintiff
filed a Second Amended Complaint for Damages and Abatement (Doc. 129), alleging a
public nuisance (Count I), violations of the Municipal Code (§ 50-71 (Nuisance)) (Count
II), abatement under the Municipal Code (§§ 50-79 and 62-2) (Count III), a continuing
trespass (Count IV), a design defect (Count V), a failure to warn and instruct (Count VI),
and negligence (Count VII). (Doc. 129, generally). Plaintiff’s claims relate to “the
contamination of vast swaths of its land with polychlorinated biphenyls…manufactured
in Defendants’ Monsanto Plant in adjacent Sauget, Illinois.” (Doc. 129, pg. 1). 6
5These Motions were the subject of a hearing and oral argument on January 15, 2026. (Doc. 383).
6The Court dismissed Count II of the Second Amended Complaint without prejudice. (Doc. 171).
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Defendants filed a First Amended Counterclaim under 42 U.S.C. § 1983, stating an
as-applied due process challenge to the enforcement of §§ 50-79 and 62-2 of the Municipal
Code (“Abatement Ordinances”). (Doc. 179, generally). 7 Defendants seek the following
relief: “[J]udgment in their favor and against Plaintiff/Counter-Defendant…to the extent
authorized by law, including preliminary and permanent injunctive relief against
enforcement of the Abatement Ordinances against Defendants, declaratory relief that the
Abatement Ordinances are unconstitutional as applied to Defendants, and attorneys’ fees
pursuant to 42 U.S.C. § 1988.” (Doc. 179, pgs. 13-14). 8 The Abatement Ordinances, which
are the only portions of the Municipal Code still at issue, are invoked in Count III of the
Second Amended Complaint for Damages and Abatement. (Doc. 129, pgs. 29-31).
II. ANALYSIS
A. The Parties’ Motions for Summary Judgment
The Court will grant summary judgment if the movant shows there is no genuine
dispute as to any material fact, such that it is entitled to a judgment as a matter of law.
Fed. R. Civ. P. 56(a); Driveline Sys., LLC v. Arctic Cat, Inc., 936 F.3d 576, 579 (7th Cir. 2019)
(quoting Dunderdale v. United Airlines, Inc., 807 F.3d 849, 853 (7th Cir. 2015); citing Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Assertions that a fact cannot be or is genuinely
disputed must be supported by citations to the materials of record. Fed. R. Civ. P.
56(c)(1)(A). Alternatively, the assertions must be supported by a showing that the
7Defendants do not bring a facial challenge to the Abatement Ordinances. (Doc. 179, pg. 2 n. 1).
8Section 1988(b), in pertinent part, states the following in relation to actions or proceedings to
enforce, among other statutory provisions, § 1983: “[T]he court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable attorney’s fee as part of the costs.” See 42 U.S.C. § 1988.
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materials cited do not establish the absence or presence of a genuine dispute or that an
adverse party cannot produce evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B).
If the movant presents evidence to show the absence of a genuine dispute of
material fact, then the burden shifts to the nonmovant to provide evidence of specific
facts that create a genuine dispute of material fact. Carroll v. Lynch, 698 F.3d 561, 564 (7th
Cir. 2012) (citing Hudson Ins. Co. v. City of Chicago Heights, 48 F.3d 234, 237 (7th Cir. 1995)).
A genuine dispute of material fact exists if there is sufficient evidence for the nonmovant
to receive a verdict. Driveline Sys., 936 F.3d at 579 (quoting Aregood v. Givaudan Flavors
Corp., 904 F.3d 475, 482 (7th Cir. 2018), reh’g denied (Oct. 30, 2018)). Speculation,
unsupported by the evidence, cannot defeat summary judgment. Moje v. Fed. Hockey
League, LLC, 377 F. Supp. 3d 907, 920 (N.D. Ill. 2019) (citing Sbika v. Ill. Cent. R.R. Co., 884
F.3d 708, 721 (7th Cir. 2018); Cleveland v. Porca Co., 38 F.3d 289, 295 (7th Cir. 1994)).
When considering a motion for summary judgment, the Court will not determine
credibility, weigh the evidence, or decide which inferences to draw from the facts, as
those tasks are reserved for the finder of fact. Runkel v. City of Springfield, 51 F.4th 736, 741
(7th Cir. 2022) (quoting Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 893 (7th
Cir. 2018)). Instead, based on the evidence, the Court will decide whether a genuine
dispute of material fact requires a trial. Id. (quoting Johnson, 892 F.3d at 893). When doing
so, the Court construes the evidence in a light most favorable to the nonmovant while
avoiding the temptation of deciding one party’s version of the facts is more likely true
than the other party’s version of the facts. Id. (quoting Johnson, 892 F.3d at 893).
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It is notable, too, that these summary judgment standards apply to cross-motions
for summary judgment. See Tokio Marine Specialty Ins. Co. v. Altom Transp., Inc., 618 F.
Supp. 3d 791, 795 (N.D. Ill. 2022) (quoting Blow v. Bijora, Inc., 855 F.3d 793, 797 (7th Cir.
2017)). The Court evaluates cross-motions for summary judgment together; however,
neither may be granted unless the evidence, as a whole, shows the absence of a genuine
dispute of material fact. Id. (quoting Bloodworth, 475 F.App’x at 95). As such, each party
must still bear their burden of proof under the summary judgment standards. Wilson v.
Baptiste, No. 13-cv-7845, 2016 3878125, *2 (N.D. Ill. July 18, 2016) (quoting McKinney v.
Cadleway Props., Inc., 548 F.3d 496, 504 n. 4 (7th Cir. 2008)); see also Chicago Wine Co. v.
Holcomb, 532 F. Supp. 3d 702, 708 (S.D. Ind. 2021) (“The process of taking the facts in the
light most favorable to the non-moving party, first for one side and then for the other,
may reveal that neither side has enough to prevail without a trial.”). Courts cannot
assume cross-motions for summary judgment result in no undisputed material facts, and
denying one cross-motion does not require granting the other cross-motion. Wilson, 2016
3878125 at *2 (quoting Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997)).
1. Defendants’ Motion for Summary Judgment on Plaintiff’s Claims
and Plaintiff’s Motion for Partial Summary Judgment on
Defendants’ Liability for Trespass and First Affirmative Defense 9
In their briefing, the parties raise a number of issues relating to Plaintiff’s Article
III standing, the statutes of limitations and repose and the nullum tempus doctrine, the
merits, and the U.S. Environmental Protection Agency’s (“EPA”) primary jurisdiction.
9These Motions for Summary Judgment present overlapping arguments by the parties. For the sake
of brevity, the Court addresses those arguments simultaneously whenever possible.
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However, the Court concludes Plaintiff’s case may be resolved pursuant to the arguments
on the statutes of limitations and repose and the nullum tempus doctrine. As a result, the
Court limits its resolution of the Motions for Summary Judgment to only those issues. 10
Before considering those issues, though, the Court briefly discusses the history of
PCBs in the City of East St. Louis and the nature of the properties at issue in this case. It
is undisputed that Monsanto’s Sauget Plant began producing PCBs in 1936, “after Old
Monsanto acquired Swann Chemical Company in 1935 and the rights to its Aroclor
patent.” (Docs. 271, pgs. 7, 12; 283, pg. 12; 322, pgs. 5, 19; 330, pg. 13). 11 The parties also
agree that “Old Monsanto manufactured Aroclors at the Sauget Plant…until 1977.”
(Docs. 271, pgs. 7, 12; 283, pg. 12; 322, pgs. 5, 19, 24-25; 330, pg. 13; 345, pg. 18). At that
time, which was “two years before the EPA banned the production of most PCBs,” Old
Monsanto “voluntarily ceased all production.” (Docs. 283, pg. 13; 322, pgs. 24-25; 330, pg.
15; 345, pg. 18). The EPA “undertook PCB cleanup actions for the Sauget Plant, as well as
at two neighboring Superfund sites in the Sauget area.” (Docs. 283, pg. 15; 330, pg. 17).
There are 273 properties, with alleged PCB contamination, at issue in this case.
(Docs. 283, pg. 17; 330, pg. 20). The parties agree the 273 properties are currently “vacant,
10The Court notes Article III standing is usually a matter of jurisdiction that must be considered.
However, here, Defendants alleged a lack of standing in their Answer to Plaintiff’s Second Amended
Complaint and Affirmative Defenses, and Defendants would bear the burden on the standing issue by
virtue of their removal. See City of Chicago v. DoorDash, Inc., 636 F. Supp. 3d 916, 921 (N.D. Ill. 2022) (citing
Bryant v. Compass Grp. USA, 958 F.3d 617, 620 (7th Cir. 2020)); (Doc. 136, pgs. 18, 40-42). Further, the Court
is “more likely to find that standing is properly listed as an affirmative defense where, as here, the case is
a diversity action and Illinois law would have required defendants to include standing as an affirmative
defense.” DoorDash, Inc., 636 F. Supp. 3d at 921 (citing Acuity Optical Lab’ys, Inc. v. Davis Vision, Inc., No.
14-cv-3231, 2014 WL 5900994, *4 (C.D. Ill. Nov. 13, 2014)); see also Greer v. Illinois Hous. Dev. Auth., 122 Ill.
2d 462, 494 (1988) (“In Illinois, lack of standing is an affirmative defense.”). From these principles, the Court
finds it is proper to rule based only on the statutes of limitations and repose and the nullum tempus doctrine.
11“Aroclors” are a trade name for a series of PCB mixtures. (Docs. 283, pg. 8; 330, pg. 7).
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undeveloped lots,” and there is presently no specific plan to redevelop the properties for
residential or commercial use. (Docs. 283, pg. 18; 330, pgs. 20-21). Additionally, it is
undisputed that Plaintiff undertook “no efforts to address PCB contamination on the 273
parcels before [filing] this suit.” (Docs. 283, pg. 20; 322, pg. 27; 330, pg. 23; 345, pg. 22).
The parties agree that Plaintiff only currently owns 100 of the 273 properties, and
it has never owned 126 of the 273 properties. (Docs. 271, pg. 9; 283, pgs. 17, 20; 322, pgs.
13, 25; 330, pgs. 20, 23-24, 31; 345, pg. 19; 351, pg. 14). Of the 47 properties that it once
owned, Plaintiff “has not owned them since 2011 at the latest.” (Docs. 283, pg. 20; 330, pg.
24). The following illustration is helpful to understand these various properties:
(Doc. 283, pg. 26).
St. Clair County, Illinois, as a trustee, currently owns 73 of the properties. (Docs.
283, pg. 23; 330, pg. 20). The other 100 properties are currently owned by private persons
or non-City entities, including the East St. Louis Housing Authority, the East St. Louis
School District, and the East St. Louis Township. (Docs. 283, pg. 23; 330, pg. 20).
a. The Statutes of Limitations and Repose
On the statute of limitations, Defendants note: “There is no dispute that Monsanto
stopped manufacturing PCBs in 1977 and that the last allegedly tortious act thus occurred
decades ago.” (Doc. 283, pg. 6). Nevertheless, Plaintiff filed this lawsuit in St. Clair
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County, Illinois, on February 3, 2021, which was allegedly “four decades too late.” (Doc.
283, pgs. 6, 34). As a result, Defendants argue Plaintiff’s common law claims for damages
(Counts I, IV, V, VI, and VII), as well as its claim under the Abatement Ordinances (Count
III), are barred by the five-year statute of limitations set forth in 735 ILCS 5/13-205. (Doc.
283, pgs. 6, 33-37). Defendants also suggest the discovery rule is “no help” to Plaintiff
because 	it 	“plainly 	knew, 	or 	at 	minimum 	should 	have 	known, 	of 	the 	alleged
contamination of its lands well before 2016,” when Plaintiff’s claims must have accrued
to comport with the limitations period. (Doc. 283, pg. 34). Again, Defendants note “[i]t
was public knowledge that the Sauget Plant ceased manufacturing PCBs in 1977, shortly
before the EPA banned the manufacture of PCBs in 1979 due to environmental concerns,”
and “the East St. Louis community was aware of potential contamination in the areas at
issue.” (Doc. 283, pgs. 34-35). On the latter point, Defendants suggest the following
undisputed facts gave actual notice of the PCB contamination to Plaintiff: in 2000, the
EPA worked with Defendants to clean up sites associated with the Sauget Plant; in 2006,
developers chose not to pursue projects in the areas at issue due to “industrial
contamination and pollutants”; in 2009 and 2012, respectively, the EPA tested and
retested the areas at issue for PCB contamination; and between 2012 to 2016, the EPA
“dispatched letters to two different City mayors about PCB contamination” in the areas
at issue. (Doc. 283, pg. 35). For similar reasons, Defendants argue Plaintiff’s strict product
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liability claims (Counts V & VI) are also barred by the statute of repose, 735 ILCS 5/13-
213(b), notwithstanding any application of the discovery rule. (Doc. 283, pgs. 6, 37-38). 12
In response, Plaintiff argues genuine disputes of material fact, relating to accrual,
must be answered by a jury. (Doc. 330, pgs. 5, 51, 62-63). Plaintiff states: “The community
rumors and supposition that Monsanto points to as evidence of accrual are not the same
as actual knowledge—on behalf of the City—that another person caused harmful levels
of PCB contamination on its property.” (Doc. 330, pgs. 62-63). It also states Defendants’
other accrual evidence, i.e., the evidence related to the EPA’s cleanup activities, does not
establish there is a single reasonable view on the accrual issue, as Plaintiff was excluded
from the cleanup activities and it was not told about the PCB sampling in 2009 and 2012.
(Doc. 330, pg. 63). Plaintiff states: “The only document about the EPA testing that facially
suggests it was sent to a City official is dated September 9, 2016.” (Doc. 330, pg. 63).
Now, 	the 	applicable 	statute of 	limitations provides: 	“[A]ctions…to 	recover
damages for an injury done to property, real or personal…shall be commenced within 5
years next after the cause of action accrued.” 735 ILCS 5/13-205. Similarly, in relation to
Plaintiff’s claims of product liability, the applicable statute of repose provides:
[N]o product liability action based on any theory or doctrine shall be
commenced except within the applicable limitations period and, in any
event, within 12 years from the date of first sale, lease or delivery of
possession by a seller or 10 years from the date of first sale, lease or delivery
of possession to its initial user, consumer, or other non-seller, whichever
period expires earlier, of any product unit that is claimed to have injured or
damaged the plaintiff, unless the defendant expressly has warranted or
12Defendants also suggest: “The City does not dispute that summary judgment is appropriate on
its product-liability claims—its strict-liability claims are barred by the statute of repose.” (Doc. 351, pg. 56).
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promised the product for a longer period and the action is brought within
that period.
735 ILCS 5/13-213(b).
As a matter of policy, statutes of limitations and repose “are designed ‘to promote
justice by preventing surprises through the revival of claims that have been allowed to
slumber until evidence has been lost, memories have faded, and witnesses have
disappeared.’ ” Wilson v. Groze, 800 F. Supp. 2d 949, 957 (N.D. Ill. 2011) (quoting Order of
R.R. Tels. v. Ry. Express Agency, 321 U.S. 342, 348–49 (1944)). It is for these and similar
reasons that the Seventh Circuit has observed: Limitation periods “are not arbitrary
obstacles to the vindication of just claims, and therefore they should not be given a
grudging application. They protect important social interests in certainty, accuracy, and
repose.” Cada v. Baxter Healthcare Corp., 920 F.2d 446, 452-53 (7th Cir. 1990).
An accrual date is when the clock associated with statutes of limitations or repose
begins to tick. See Cada, 920 F.2d at 450. At the time of accrual, “facts exist that authorize
the bringing of a cause of action.” Khan v. Deutsche Bank AG, 2012 IL 112219, ¶ 20;
see also Wilson, 800 F. Supp. 2d at 956 (“Generally, a claim accrues when all its elements
have come into existence.”). However, the accrual date is not always the point in time
when “the wrong that injures the plaintiff occurs”; instead, it can be when “the plaintiff
discovers that he has been injured.” See Cada, 920 F.2d at 450; see also Antos v. Bell & Howell
Co., 891 F. Supp. 1281, 1287 (N.D. Ill. 1995) (“Once the plaintiff discovers an injury, the
statute begins to run and will run to its completion unless it is tolled.”); Wilson, 800 F.
Supp. 2d at 956 (“The discovery rule is an exception to the general application of a statute
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of limitations period…and applies where there is a temporal gap between when a
plaintiff suffered an injury and when he discovers that he has been injured.”); 735 ILCS
5/13-213(d) (applicable statute of repose providing: “[I]f the injury complained of occurs
within any of the periods provided by subsection (b) and paragraph (2) of subsection (c),
the plaintiff may bring an action within 2 years after the date on which the claimant knew,
or through the use of reasonable diligence should have known, of the existence of the
personal injury, death or property damage, but in no event shall such action be brought
more than 8 years after the date on which such personal injury, death or property damage
occurred.”). The accrual rules that apply in the State of Illinois and in federal question
cases in federal court are similar in that they “do[] not run unless the plaintiff knew or
should have known about his injury” and that it was wrongfully caused. See Ferguson v.
Roberts, 11 F.3d 696, 704-05 (7th Cir. 1993) (citing Cada, 920 F.2d at 450); see also Khan, 2012
IL 112219 at ¶ 20 (“To ameliorate the potentially harsh results of [a mechanical
application of the statute of limitations], this court has adopted the ‘discovery rule,’ the
effect of which is to postpone the start of the period of limitations until the injured party
knows or reasonably should know of the injury and…that the injury was wrongfully
caused.”); In re Sandburg Mall Realty Mgmt. LLC, 563 B.R. 875, 886 (C.D. Ill. 2017) (stating
this rule while noting, “[w]here the discovery rule applies, the date that the limitations
period begins is often a question of fact to be resolved upon summary judgment or at
trial”); Antos, 891 F. Supp. at 1287 (“[T]he limitations period will be postponed from the
date of accrual (i.e., the date of the injury) only if a reasonable person in the plaintiff’s
position would not have known that he or she had been injured.”) (Emphasis in original).
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It is not necessary for the plaintiff to know the full extent or consequences of his
or her injury; instead, the limitations period runs when the plaintiff knows or should
know that he or she was injured. See Khan, 2012 IL 112219 at ¶ 22 (quoting Golla v. Gen.
Motors Corp., 167 Ill.2d 353, 364 (1995)). And, importantly, when the plaintiff is a
corporation or a municipality, as is true in this case, “it can only learn that it has been
injured through its agents.” See Lease Resol. Corp. v. Larney, 308 Ill. App. 3d 80, 86 (1999).
For this reason, the knowledge of an agent is, generally, imputed to the corporation or
municipality. See Lease Resol. Corp., 308 Ill. App. 3d at 86; see also Nat’l Prod. Workers Union
Ins. Tr. v. Life Ins. Co. N. Am., No. 5-cv-5415, 2010 WL 1292429, *12 (N.D. Ill. March 29,
2010) (“[I]t is a well-established principle of agency law that an agent’s knowledge is
imputed to the principal.”); Campen v. Exec. House Hotel, Inc., 105 Ill. App. 3d 576, 586
(1982) (“[K]nowledge which a corporate agent receives while acting within the scope of
his or her agency is imputed to the corporation if the knowledge concerns a matter within
the scope of the agent’s authority. And, once an agent’s knowledge is imputed to a
corporation, the imputed knowledge is not affected by changes in the corporation’s
personnel.”) (internal citations omitted); Heath v. City of Naperville, 2024 IL App (3d)
230663, ¶ 59 (“[A] municipal employee’s actual knowledge may be imputed to the
municipality.”). Further, the term “wrongfully caused” is viewed generically rather than
as a term of art. Khan, 2012 IL 112219 at ¶ 22 (citing Knox Coll. v. Celotex Corp., 88 Ill.2d
407, 416 (1981)). When these requirements are satisfied, the Supreme Court of Illinois has
stated “the burden is on the injured person to inquire further as to the possible existence
of a cause of action.” Id. at ¶ 20 (citing Witherell v. Weimer, 85 Ill.2d 146, 156 (1981)).
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Relevantly, Plaintiff filed this action in St. Clair County, Illinois, on February 3,
2021. (Docs. 283, pg. 17; 322, pg. 25; 330, pg. 20; 345, pg. 19). Therefore, under section 13-
205, Plaintiff’s claims must have accrued after February 3, 2016. See 735 ILCS 5/13-205.
On this issue, Mr. Robert Betts, who served as City Manager from 2006 to 2010,
and who has again served in that capacity since June 2023, was asked what sorts of EPA
involvement, interactions, or investigations he could recall from his past and present
employment with the City. (Doc. 283-30, pgs. 7-8, 14). He testified: “I do know that they
did some studies and some testing at one period of time…and determined that there was
some high levels of [probably lead and probably PCB[]] contamination in the south end
area.” (Doc. 283-30, pg. 14). Mr. Betts indicated he did not know when exactly the studies
and testing occurred or whether they involved lead or PCB contamination. (Doc. 283-30,
pg. 14). When asked what, specifically, he remembered about the EPA involvement, Mr.
Betts further indicated a belief that “there was a cleanup of some sort in Sauget some
years ago but fell short of including East St. Louis.” (Doc. 283-30, pg. 14). And, when
asked if that was while he was working at City Hall, Mr. Betts testified: “No. It’s just
knowledge, firsthand knowledge being a resident of East St. Louis.” (Doc. 283-30, pg. 14).
Later in his deposition, Mr. Betts was also asked about the time period before 2006,
when he was employed by the Housing Authority of East St. Louis. (Doc. 283, pgs. 7, 18-
20). Mr. Betts was asked whether he was aware of transactions or projects in East St. Louis
that were stalled due to environmental concerns. (Doc. 283-30, pg. 19). He answered:
“[T]he south end portion of town for an example, there’s been numerous discussions
about housing development in that area, but no developer wants to develop in a
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contaminated area or exposing its residents to clouds of pollution.” (Doc. 283-30, pg. 19).
He was specifically talking about “the Monsanto area.” (Doc. 283-30, pg. 19). When asked
if he knew of examples of developers staying away from that area due to environmental
concerns, Mr. Betts stated: “I’m thinking somewhere during the 2004 period. But, yes, we
were actually considering developing homes in that area, but the contamination [from
Monsanto] was a concern even way back then.” (Doc. 283-30, pgs. 19-20).
Ms. Shaneal Clayborne, who has been employed by Plaintiff as the Director of
Economic and Community Development since 2021, was also deposed in this matter.
(Doc. 283-32, pgs. 4, 6, 9, 11-12). Ms. Clayborne was asked about “the first time that [she]
heard of issues associated with PCBs in the south end.” (Doc. 283-32, pg. 16). Based on
her personal knowledge, as opposed to what she “heard about in [her] position,” Ms.
Clayborne answered as follows: “[I]t’s been made very clear that there was soil
contamination in the south end pertaining to Monsanto.” (Doc. 283-32, pgs. 16-17).
Further, the record reflects that representatives of the EPA sent two separate letters
to two different mayors of the City. The first EPA letter, which is undated, was sent to
Mayor Alvin Parks by Mr. Ken Bardo, an EPA Project Manager with the Corrective
Action Section. (Doc. 330-37, pg. 2). That letter advised Mayor Parks as follows:
The United States [EPA] sampled soil at four residences along Wilford
Avenue in East St. Louis on August 14 and 15. Five surface soil samples
collected down to a depth of six inches were combined from the grass area
in 	the 	backyards. 	The 	composite 	soil 	sample 	was 	analyzed 	for
polychlorinated biphenyls (PCBs). The sampling was conducted based on
information obtained by EPA that suggests that the far southern and
western areas of East St. Louis could be impacted from historical industrial
operations to the south.
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The level of PCBs found in backyard soil at the four homes typically
exceeded the EPA health screening level of 1 part per million (ppm) for
residential soils recommended by EPA. The level of PCBs ranged from 0.6
to 7 parts per million. For your information, enclosed is a fact sheet from
the Illinois Department of Public Health on how people can reduce
exposure to contaminants in soil. Also enclosed is an EPA fact sheet that
describes the sampling event. EPA will be evaluating all the sampling
results in the East St. Louis area and will keep you informed of our progress.
The City of East St. Louis and CDC Development Corporation own various
lots just south of Wilford Avenue, located between D Street and South 19th
Street. These lots are mostly undeveloped and located in the TIF 3C
Redevelopment Project Area. EPA recommends that investigation be
performed in this area to assess the PCB levels in soils at these lots and how
the levels may need to be addressed during future development. EPA
would be glad to meet and discuss the options for these investigations and
share the information we have.
I can be reached at 312-[XXX]-[XXXX]. I am also available by e-mail at
[email address].
(Doc. 330-37, pg. 2).
Consistent with this first letter, in October 2012, the EPA published a document
entitled: “Results Released for Homes and Former Dead Creek Area, East St. Louis Soil
Sampling Project, East St. Louis, Illinois.” (Doc. 330-32). It indicated that the “EPA invites
you to review technical reports and plans, and other official documents related to the
cleanup of the Solutia Inc. (formerly Monsanto) hazardous waste site in Sauget, IL at the
information repository located at: Cahokia Public Library[,] 140 Cahokia Drive[,]
Cahokia, IL.” (Doc. 330-32, pg. 2). The documents could also be viewed online at specific
website addresses. (Doc. 330-32, pg. 2). Mr. Bardo, who authored the first EPA letter, was
listed as a point of contact. (Doc. 330-32, pg. 1). The document, in pertinent part, stated:
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U.S. [EPA] Region 5 has just released the results from soil sampling of
residential yards and the former Dead Creek area in East St. Louis. EPA
collected these samples to find out whether PCBs carried by the wind or
released from past industrial activity in the area were present in the soil.
This recent work is a follow up to soil sampling conducted in November
2009 where PCBs were found to be present at some residential properties
and parks in East St. Louis and Sauget. PCBs are man-made chemicals
widely used in electrical equipment and hydraulic fluids. Commercial
production of PCBs ended in 1977 but they have been found to accumulate
and persist in the environment.
Results show that PCB contamination was found in soil at most residences
sampled and at some locations at the former Dead Creek but at low levels.
Levels of PCBs at 8 of 9 properties sampled were slightly above screening
levels used by EPA to assess health risks to the public. Levels of PCBs at 2
of 7 Dead Creek locations were slightly above the screening levels. These
levels do not indicate an acute health risk. However, in the coming months
EPA will evaluate whether further sampling work is necessary and will
keep the public informed.
Sample Details
On August 14 and 15, EPA sampled surface soil at 9 residences in East St.
Louis. The residences sampled were chosen based on air modeling that
suggested 	PCB 	contamination 	could 	be 	present 	in 	soil 	from 	former
industrial 	activities 	near 	these 	neighborhoods. 	EPA 	also 	sampled 	7
locations within the former Dead Creek area that extends north of the
Village of Sauget into the Rush City community of East St. Louis. The
northern end of the former Dead Creek historically extended into East St.
Louis. It is now filled and dry. The cleanup of the portion of Dead Creek
present in the villages of Sauget and Cahokia was completed in 2009.
Five soil locations to a depth of 6 inches were collected at each residence
and combined into one sample. Samples were taken from the former Dead
Creek at varying depths from the upper foot of soil. All the samples were
then sent to an environmental laboratory and analyzed for PCBs. Dead
Creek samples were also tested for metals like lead.
Exposure to PCBs at elevated levels has been shown to cause a variety of
adverse health effects in people and animals. Exposure in soil would be
expected to occur mainly through direct contact with skin or by incidental
swallowing of dirt particles.
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Sample Results
In highly industrialized areas of the United States, no soil, water or air mass
is without pollutants of some sort and zero contamination is impossible to
achieve. For PCBs in residential areas, EPA typically uses a health screening
level of one part PCB per million parts soil (one part per million or 1 ppm).
Sample results show that soil at 8 residential yards was slightly to
somewhat above this screening level for PCBs. The 9 residential yards in
East St. Louis contained PCBs between 0.6 and 7 ppm. Soil within the
former Dead Creek area in East St. Louis contained PCBs between 0.1 and
1.9 ppm and lead was present at three locations above the EPA screening
level of 400 ppm for residential areas.
Recommendations
EPA has notified property owners of the sample results….
* * *
Next Steps
The level of contamination found in this sampling is not an acute health
risk. 	However, 	EPA 	will 	continue 	to 	evaluate 	whether 	additional
investigations or a health risk evaluation are necessary and will make sure
the public stays informed as work moves along.
(Doc. 330-32, pgs. 2-3).
The second EPA letter, dated September 9, 2016, was sent to Mayor Emeka
Jackson-Hicks by Mr. Jose Cisneros, the Chief of the Remediation and Re-Use Branch of
Region 5 of the EPA. (Doc. 283-36, pgs. 2-3). That letter advised Mayor Jackson-Hicks:
In 2012, the United States [EPA] wrote to (then) Mayor Parks to report the
results of backyard soil contamination sampling at residences along
Wilford Avenue in East St. Louis. In the letter, EPA recommended that
sampling continue in the area just south of Wilford Avenue, which is zoned
for residential use. The 2012 sampling was a continuation of sampling
begun 	in 	the 	in 	[sic] 	2009 	to 	investigate 	whether 	local 	historical
manufacturing had contaminated residential areas. In 2015, EPA sampled
additional properties in this area to determine whether local historical
industrial operations could have spread contamination.
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The sampled soil was in an area zoned for residential use near the City’s
western boundary adjacent to the Solutia, Inc., W.G. Krummrich facility, in
Sauget, IL. Sampling occurred from April 29-30, 2015, and included the
collection 	of 	20 	(composite) 	soil 	samples 	from 	mainly 	undeveloped
properties located between the facility boundary and residential locations
sampled in 2012. Please refer to the enclosed figure. The properties, which
are 	primarily 	owned 	by 	the 	City 	of 	East 	St. 	Louis 	and 	the 	CDC
Development Corporation, are located in the TIF 3C Redevelopment Project
Area.
EPA collected the samples from the top six inches of the ground from City
owned parcels and in grassy areas in City rights-of-way, and analyzed them
for polychlorinated biphenyls (PCBs) in a laboratory. A number of the
sample results exceeded the EPA health screening-level for residential soils
of one part per million (ppm) for total PCBs. The levels of PCBs ranged from
0.2 to 17 parts per million PCB.
EPA is evaluating the samples from 2009, 2012, and 2015 to determine
whether the sampled area qualifies for removal actions or whether more
information is needed to make that determination. EPA recommends that
additional 	investigation 	be 	performed 	in 	this 	area 	to 	assess 	how
contamination levels should be considered during future development. For
your information, enclosed is a fact sheet from the Illinois Department of
Public Health on how people can reduce exposure to contaminants in soil.
(Doc. 283-36, pg. 2).
Mr. 	Michael 	Wagner 	testified 	individually 	and 	as 	Plaintiff’s 	corporate
representative under Federal Rule of Civil Procedure 30(b)(6). (Docs. 283-34 & 283-35,
generally). He served as Plaintiff’s outside legal counsel from 1999 to 2017. (Doc. 283-34,
pg. 5). Mr. Wagner testified that he was never made aware of the sampling, referenced in
the above-discussed letters and document, that was conducted in the City in 2009, 2012,
and 2015. (Doc. 283-35, pgs. 22-23, 27). He was also unfamiliar with the October 2012 EPA
document. (Doc. 283-35, pg. 27). As for the first undated EPA letter, which he testified to
never seeing, Mr. Wagner agreed it would have been sent to Mayor Parks before 2015, as
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Mayor Parks served from 2007 until “he was beaten by Mayor [Jackson-]Hicks in 2015-
ish. ’16.” (Doc. 283-35, pg. 26). Although he did not know if Plaintiff ever received the
October 2012 EPA document, Mr. Wagner agreed it “indicate[d] that the 2012 sampling
[wa]s reflected in the [first] letter to the Mayor.” (Docs. 283-34, pg. 43; 283-35, pg. 28). He
also testified to being unaware of anything in the second EPA letter, dated September 9,
2016, to Mayor Jackson-Hicks. (Doc. 283-35, pg. 23). However, at relevant times, Mr.
Wagner simultaneously served as outside legal counsel for the City and as counsel for
the Village of Sauget in Area 1 and Area 2 Superfund proceedings. (Doc. 283-34, pg. 12).
When asked if he brought his knowledge of the activities associated with PCBs and other
contaminants in Sauget to the attention of Plaintiff, while serving in the dual roles, Mr.
Wagner testified: “I don’t believe we had specific conversations about PCBs. But I do
think that everybody at city hall was aware of environmental cleanup that was happening
directly to the south of city hall.” (Doc. 283-34, pg. 12). Similarly, when asked if there was
any question in his mind that Plaintiff’s City-government knew of the environmental
actions occurring to the south of the City in Cahokia and Sauget, Wagner testified: “I
think that they were aware that there was a Super Fund cleanup that was underway there.
As to specifics, I don’t think they had any knowledge. But I think it was general
knowledge in the community that that had been undertaken.” (Doc. 283-34, pg. 12).
The record also contains the EPA’s May 2010 Community Involvement Plan for
Sauget Area 1 and Area 2 Superfund Sites, which are referenced in relation to Mr.
Wagner’s deposition testimony. (Doc. 283-33, generally). “The Sauget Area 1 and Area 2
Superfund sites are located in the Villages of Sauget (formerly the Village of Monsanto)
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and Cahokia in west-central St. Clair County.” (Doc. 283-33, pg. 3). Portions of the areas,
which were found to contain PCBs, “extend[ed] from the W.G. Krummrich Plant at its
northern end and flow[ed] south through Sauget and Cahokia.” (Doc. 283-33, pgs. 3-8).
In the Plan, the EPA indicated the following: “Everyone EPA spoke with said they knew
there was contamination in the area.” (Doc. 283-33, pg. 12) (Emphasis added).
On this record, the Court finds Plaintiff’s claims accrued well before February 3,
2016, such that the filing of this lawsuit on February 3, 2021, was untimely. See 735 ILCS
5/13-205; Cada, 920 F.2d at 450. More specifically, the Court finds under the discovery
rule that Plaintiff, through the imputed knowledge its agents, knew or reasonably should
have known of its injury, and that it was wrongfully caused, years before that date.
See Ferguson, 11 F.3d at 704-05; Khan, 2012 IL 112219 at ¶¶ 20, 22; In re Sandburg Mall Realty
Mgmt. LLC, 563 B.R. at 886; Lease Resol. Corp., 308 Ill. App. 3d at 86; Nat’l Prod. Workers
Union Ins. Tr., 2010 WL 1292429 at *12; Campen, 105 Ill. App. 3d at 586; Heath, 2024 IL App
(3d) 230663 at ¶ 59. When so finding, the Court stresses that Plaintiff did not have to know
the full extent or consequences of the alleged injury to property. See Khan, 2012 IL 112219
at ¶ 22. Again, the above-discussed record demonstrates that Plaintiff, at a minimum,
knew or should have known of the circumstances surrounding the alleged injury to
property 	through 	its 	agents, 	such 	that 	the 	burden 	shifted 	to 	Plaintiff
“to inquire further as to the possible existence of a cause of action.” Id. at ¶ 20. For these
reasons, the Court concludes Plaintiff’s claims are time-barred under section 13-205.
In addition, under the applicable statute of repose, Plaintiff must have filed Counts
V and VI, in any event, within “8 years after the date on which such personal injury, death
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or property damage occurred.” See 735 ILCS 5/13-213(b), (d). It did not do so. For that
reason, the Court concludes Counts V and VI are also barred by the statute of repose.
By virtue of these conclusions, Plaintiff must rely on the nullum tempus doctrine to
excuse it from an application of the limitation periods. As discussed below, the nullum
tempus doctrine does not apply, so Defendants are entitled to summary judgment.
b. The Nullum Tempus Doctrine
Defendants argue the nullum tempus doctrine cannot revive Plaintiff’s time-barred
claims. (Docs. 283, pgs. 38-43; 322, pg. 4). Under that doctrine, Defendants argue Plaintiff
“disguises the essentially private nature of this suit through artful pleading” about public
rights. (Docs. 283, pgs. 38-39; 322, pg. 36). Based on the “undisputed evidence,” rather
than just the pleadings, they explain: Plaintiff’s claims are based on an alleged injury to
particular City-owned properties rather than to the broader public health, safety, and
property of the entire community; Plaintiff has no specific and mandatory legal duty to
remediate 	the 	“imperceptible 	chemicals” 	on 	the 	subject 	properties 	or 	to 	request
“historical loss-of-use damages” while retaining contingency-fee counsel; and Plaintiff
has not expended any material funding to address the PCB contamination or presented
evidence of an intent to do so in the future. (Docs. 283, pgs. 39-42; 322, pgs. 4, 33-42).
Defendants emphasize that Plaintiff “produced no evidence…that PCBs spread from the
soils on the properties at issue to the public at large” or that “PCBs from the parcels at
issue endangered public health at all.” (Doc. 322, pg. 39) (Emphasis in original omitted).
Plaintiff responds that Defendants ignore decisions, governing the modern
application of the nullum tempus doctrine, from the Supreme Court of Illinois. (Docs. 271,
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pgs. 6, 23-28; 330, pgs. 5, 51-52). Plaintiff suggests that omission was “no oversight,” as
the decisions “and their progeny show the doctrine is applied unfailingly to cases
touching on the public’s health, safety, and property.” (Docs. 271, pgs. 6, 28-31; 330, pgs.
5, 51-58). Indeed, Plaintiff claims “public rights are at stake when a governmental plaintiff
asserts claims for property damage and those claims have a plausible nexus to public
health or safety.” (Docs. 271, pg. 29; 330, pgs. 55-56; 345, pgs. 11-12). Plaintiff also rejects
the argument that the threat of PCBs must affect all of East St. Louis; instead, it states
affecting the 273 subject properties (or the 100 City-owned properties) gives rise to a
sufficient public interest, especially where PCBs in particulate matter can blow to other
areas of the City. (Docs. 271, pgs. 27, 30-31; 330, pg. 57; 345, pgs. 11-12).
Further, Plaintiff argues it was obligated to file this lawsuit on behalf of the public
due to its common law duty to maintain its property in a reasonably safe condition, the
fact that its Abatement Ordinances authorize and obligate it to address any and all
nuisances, and the fact that other private plaintiffs would lack standing to sue for damage
to City-owned property. (Docs. 271, pgs. 6, 31-32; 330, pgs. 58-60; 345, pg. 12). On the
requirement to expend public funds, Plaintiff argues it “faces immense financial
obligation if it cannot recover PCB cleanup costs through this suit,” as it is the only way
to avoid passing the costs onto the public. (Docs. 271, pg. 33; 330, pg. 61). The costs, which
Plaintiff seeks as damages, “are well into the millions of dollars,” and they are necessary
to protect the health and safety of residents and to make productive use of public
property. (Docs. 271, pgs. 6, 33; 330, pg. 61; 345, pg. 12). For these reasons, Plaintiff argues
the nullum tempus doctrine, which it stresses presents a pure question of law for the Court
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to decide based on the pleadings, immunizes it from applications of the statutes of
limitations and repose. (Docs. 271, pgs. 6, 23-26; 330, pgs. 5, 51-57; 345, pgs. 8-11).
“Nullum tempus occurrit regi,” the phrase from which the nullum tempus doctrine is
derived, translates to “time does not run against the King.” City of Shelbyville v. Shelbyville
Restorium, Inc., 96 Ill. 2d 457, 460 (1983); City of Chicago v. Latronica Asphalt and Grading,
Inc., 346 Ill. App. 3d 264, 269 (2004). Over 150 years ago, in 1876, the Supreme Court of
Illinois described the nullum tempus doctrine in the following manner:
Our understanding of the law is, that, as respects all public rights, or as
respects property held for public use, upon trusts, municipal corporations
are not within the operation of the Statute of Limitations, but in regard to
contracts or mere private rights, the rule is different, and such corporations,
like private citizens, may plead or have pleaded against them the Statute of
Limitations.
Bd. of Sup’rs of Logan Cnty. v. City of Lincoln, 81 Ill. 156, 158 (1876) (citing City of Alton v.
Illinois Transp. Co., 12 Ill. 38 (1850); Dillon on Mu. Cor. 2 Vol. §§ 532 & 533); accord Bond
Cnty. Cmty. Sch. Dist. No. 2 v. Indiana Ins. Co., 269 Ill. App. 3d 488, 492 (1995).
In 1941, the Supreme Court of Illinois affirmed these legal principles, stating:
It is established that unless the terms of a Statute of Limitations expressly
include the State, county, municipality or other governmental agencies, the
statute, so far as public rights are concerned, as distinguished from private
and local rights, is inapplicable to them.
Clare v. Bell, 378 Ill. 128, 130-31 (1941); accord Bond Cnty. Cmty. Sch. Dist. No. 2, 269 Ill. App.
3d at 492; see also Brown v. Trs. of Schools, 224 Ill. 184, 186-87 (1906) (“The rule that statutes
of limitation do not run against the state also extends to minor municipalities created by
it as local governmental agencies, in respect to governmental affairs affecting the general
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public. The exemption extends to counties, cities, towns, and minor municipalities in all
matters respecting strictly public rights as distinguished from private and local rights.”).
In this day and age, governmental entities are still immune from limitation periods
when the nullum tempus doctrine applies. See Shelbyville Restorium, Inc., 96 Ill. 2d at 460-
62; see also City of Chicago ex rel. Scachitti v. Prudential Secs., Inc., 332 Ill. App. 3d 353, 368-
69 (2002) (rejecting the argument that, even if the nullum tempus doctrine can be invoked
against statutes of limitation, it cannot be invoked against certain statutes of repose);
People v. Asbestospray Corp., 247 Ill. App. 3d 258, 261-63 (1993) (same conclusion but in the
context of § 13-213(b)). That governmental immunity still serves to “embody[] a policy of
protecting the public purse” and to represent a “ ‘judgment that the public should not
suffer because of the negligence of its officers and agents’ in failing to promptly assert
causes of action which belong to the public.” Shelbyville Restorium, Inc., 96 Ill. 2d at 460-
62 (quoting State ex rel. Bd. of Univ. & Sch. Lands v. Andrus, 671 F.2d 271, 274 (8th Cir.
1982), rev’d on other grounds sub nom., Block v. North Dakota ex rel. Bd of Univ. & Sch. Lands,
461 U.S. 273, (1983); citing Guar. Tr. Co. v. U.S., 304 U.S. 126, 132 (1938); U.S. v. Cent. Soya,
Inc., 697 F.2d 165, 166 (7th Cir. 1982); 34 Am. Jur., Limitation of Actions §§ 388 to 399 (1941));
see also id. at 463 (“Inasmuch as citizens who share a public right which has been violated
may be unable in certain cases to bring suit on their own behalf while the government
has a representative interest in the controversy, abolition of the government’s immunity
from limitations defenses would expose these citizens to the harsh consequences of
neglect by officials over whose actions they had no control.”) (internal citations omitted).
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Importantly, when discussing applications of this governmental immunity in
Illinois, 	the 	Supreme 	Court 	of 	Illinois 	recognized: 	“[T]he 	practice…has 	been 	to
determine whether the right which the plaintiff governmental unit seeks to assert is in
fact a right belonging to the general public, or whether it belongs only to the government
or to some small and distinct subsection of the public at large.” Id. at 462 (collecting cases);
accord Bd. of Educ. of City of Chicago v. A, C & S, Inc., 131 Ill. 2d 428, 471 (1989); Champaign
Cnty. Forest Pres. Dist. v. King, 291 Ill App. 3d 197, 202-03 (1997); see also In re Chicago Flood
Litig., 176 Ill. 2d 179, 191 (1997) (“If the duty or act involves the general public benefit,
rather than a corporate or business undertaking for the municipality’s corporate benefit,
then the function is governmental whether the duty be directly imposed on the
municipality or is voluntarily assumed.”); Village of DePue, Ill. v. Viacom Intern., Inc., 713
F. Supp. 2d 774, 781 (C.D. Ill. 2010) (“The fact that the residents of a particular
municipality would benefit from the action is not alone sufficient to render it ‘public’ in
nature.”). The governmental entity is not required to assert an interest that affects
“everyone in the State in order for it to qualify as a public right,” but “there must be
sufficient interest in the general public.” A, C & S, Inc., 131 Ill. 2d at 474 (collecting cases);
accord Latronica Asphalt and Grading, Inc., 346 Ill. App. 3d at 273-76. It is for this reason
that, when determining whether a governmental entity is acting in a public or private
capacity, “[t]he question of who would be benefited by the government’s action and who
would lose by its inaction is of paramount importance in statute-of-limitations immunity
cases.” Shelbyville Restorium, Inc., 96 Ill. 2d at 462; Champaign Cnty. Forest Pres. Dist., 291
Ill App. 3d at 200. The focus of the inquiry is “properly concentrated…on the effects of
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the interest on the public.” A, C & S, Inc., 131 Ill. 2d at 476 (citing Shelbyville Restorium,
Inc., 96 Ill. 2d at 464-65); accord Champaign Cnty. Forest Pres. Dist., 291 Ill App. 3d at 200.
Moreover, as noted by the parties in this case, the governmental entity’s obligation
to act on behalf of the public and the extent to which it must expend public funds are also
considerations in the inquiry. A, C & S, Inc., 131 Ill. 2d at 476 (citing Shelbyville Restorium,
Inc., 96 Ill. 2d at 464-65); accord Champaign Cnty. Forest Pres. Dist., 291 Ill App. 3d at 200.
However, at least one Illinois court has observed: “As the question of who benefits from
the government’s action is of paramount importance, it can be inferred that the[se] factors
are not equally important.” Prudential Secs., Inc., 332 Ill. App. 3d at 366.
The former consideration, pertaining to the obligation to act, has been viewed as
“requiring,” not merely “authorizing,” action by the governmental entity. See Champaign
Cnty. Forest Pres. Dist., 291 Ill App. 3d at 201-02 (discussing the distinction between
authorized and required government acts identified in Stafford v. Bowling, 85 Ill. App. 3d
978, 982 (1980), the Downstate Forest Preserve District Act (70 ILCS 805/8b, 22), and the
Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/9–
103)); see also Viacom Intern., Inc., 713 F. Supp. 2d at 783 (“In each of the Illinois cases cited
to the Court in which a governmental entity was immune from the statute of limitations,
the governmental entity had a legal obligation to undertake the action for which it sought
to recover its costs.”); People ex rel. Hartigan v. Agri-Chain Prods., Inc., 224 Ill. App. 3d 298,
302-03 (1991) (discussing Stafford and mandatory versus discretionary acts).
The latter consideration, relating to the expenditure of public funds, “must be
given a realistic application” and account for the nature of the damage, including the
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reasons for and the source of the expended funds. A, C & S, Inc., 131 Ill. 2d at 476;
Champaign Cnty. Forest Pres. Dist., 291 Ill App. 3d at 203. In A, C, & S, Inc., for example, it
was important to the Supreme Court of Illinois that it was “not dealing…with small sums
of money; rather, the cost of the[] abatement projects w[ould] run into the millions” and
would “be shouldered by the local school districts, appropriations from the State, Federal
funds, or th[e] litigation.” Id.; see also Champaign Cnty. Forest Pres. Dist., 291 Ill App. 3d at
202 (recognizing, in both Shelbyville Restorium, Inc., and A, C, & S, Inc., “the court focused
upon the amount of money that was needed and the burden placed on the public
treasury”); Agri-Chain Prods., Inc., 224 Ill. App. 3d at 303 (same).
Here, as alluded to above, the Court holds the nullum tempus doctrine does not
apply, so Defendants are entitled to summary judgment. In doing so, the Court also holds
it is not limited to a review of the pleadings when considering that question of law for
the first time on summary judgment, as Plaintiff suggests; rather, the Court may properly
consider the undisputed material facts. Compare Village of Roxana, Ill. v. Shell Oil Co., No.
12-cv-577, 2013 WL 4510164, *6 (S.D. Ill. Aug. 26, 2013) (“So, while the Court bases its
statute of limitations determination on the abundance of outstanding material facts, it
does note that Roxana’s sovereign immunity argument appears meritorious. Defendants’
motion to dismiss/for summary judgment on the basis of the statute of limitations is
denied.”); with City of Chicago v. Equte LLC, 693 F. Supp. 3d 879, 895 (N.D. Ill. 2023)
(“Defendants’ recycling of identical arguments rejected at the motion to dismiss stage does
not persuade the Court that it should reverse course.”) (Emphasis added).
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Further, as an initial matter, the Court again observes there are 273 “vacant,
undeveloped” properties with alleged PCB contamination at issue. (Docs. 283, pgs. 17-
18; 330, pgs. 20-21). Only 100 of those 273 properties are presently owned by Plaintiff, and
Plaintiff has never owned 126 of the 273 properties. (Docs. 271, pg. 9; 283, pgs. 17, 20; 322,
pgs. 13, 25; 330, pgs. 20, 23-24, 31; 345, pg. 19; 351, pg. 14). The 47 properties that Plaintiff
once owned were sold in “2011 at the latest.” (Docs. 283, pg. 20; 330, pg. 24).
Therefore, the particular properties at issue, as well as Plaintiff’s claims in relation
to those properties, vary greatly in terms of ownership status and requested relief. And,
as to the relationship between the overarching ownership issue and the nullum tempus
doctrine, it is difficult for the Court to discern the nature of Plaintiff’s rights in the
properties at differing times over the many years at issue. For example, the parties have
not fully briefed the extent to which Plaintiff’s claims under the nullum tempus doctrine
could be acquired or extinguished through agreements with private or non-City entities
before, during, or after the allegedly tortious conduct of Defendants. See (Doc. 386, pgs.
15-20, 53-54) (the Court indicating at oral argument that it was concerned with how the
ownership of the properties, the timing and manner of their acquisition, and the manner
in which they were held could affect the property rights at issue in the case). By extension,
the extent to which Plaintiff, as a property owner, could properly place itself, through the
acquisition of property and the invocation of the nullum tempus doctrine, in a better than
other private property owners, remains equally unclear. In any event, though, such
questions about acquired or foregone rights are inconsequential to the Court’s present
ruling. The nature of the properties and Plaintiff’s claims allow for a ruling on this record.
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First, as to both Plaintiff’s claims for remediation costs and for loss-of-use
damages, the Court holds private rather public rights are at issue in the case. Again, the
case undisputedly involves 273 “vacant, undeveloped” properties for which there is
currently no public right of access or use. (Docs. 283, pgs. 17-18; 330, pgs. 20-21). Indeed,
as stated above, 173 of the properties are owned by private persons, non-City entities, or
St. Clair County, Illinois, as opposed to Plaintiff. (Docs. 283, pg. 23; 330, pg. 20). Therefore,
at a minimum, there is no risk to health from the public, i.e., either residents of the City
locally or residents of the State more broadly, accessing or using the properties. See Miller
v. Metro. Water Reclamation Dist. of Greater Chicago, 374 Ill. App. 3d 188, 191 (2007) (“[T]he
term ‘public use’…means that the people of the state at large must have a general interest
in the property at issue. It does not mean that the public necessarily must have total and
unlimited access to the property, but rather that the property is for the general benefit of
the people of the state.”); A, C & S, Inc., 131 Ill. 2d at 473-74 (finding, on review of a motion
to dismiss, the plaintiff alleged an interest in the safety of public buildings and the safety
of a large segment of the population, where the large segment of the population attended
the public schools, would attend the public schools, and used or would use the public school
system and public school buildings for mandatory classroom attendance and other public
functions). By extension, Plaintiff has not provided evidence to support its contention
that PCBs, after migrating from the subject properties to other areas, create a measurable
risk to public health in this case. See Latronica Asphalt and Grading, Inc., 346 Ill. App. 3d at
271-72 (finding, on review of a motion to dismiss, the defendant’s alleged disposal of
2,498 cubic yards of construction debris and other waste, which could scatter to nearby
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properties after becoming airborne, implicated the interests of the general public). It is at
least notable, too, neither the U.S. EPA nor the Illinois EPA has required corrective action
on these bases. For these reasons, the Court agrees with the following notion: “Where
there’s no exposure, there’s no health risk.” (Doc. 386, pg. 56); see also (Doc. 283-27, pg.
31) (Plaintiff’s expert testifying, “as long as the lots are vacant and no one’s exposed,”
“you can’t have the risk”); (Doc. 283-39, pg. 16) (Plaintiff’s expert testifying, generally,
that “if you’re not in a location, you’re not likely to have excess exposure”).
Similarly, the record reflects there is currently no specific plan to redevelop the
properties for residential or commercial use, and Plaintiff made no efforts to address the
PCB contamination before filing this lawsuit. (Docs. 283, pgs. 18, 20; 322, pg. 27; 330, pgs.
20-21, 23; 345, pg. 22). It stands to reason from these circumstances that the rights asserted
in relation to the subject properties are of a private nature that belong to Plaintiff, and
inure to its commercial or municipal benefit, or another small and distinct subsection of
the community rather than to the general public. Put another way, the Court cannot
conclude under these speculative circumstances that the general public would benefit
from Plaintiff’s action and lose from its inaction. To be sure, though, Plaintiff’s attempt
to vindicate private rights, including for property that it admittedly does not own, does
not serve to “protect[] the public purse” or represent a “ ‘judgment that the public should
not suffer because of the negligence of its officers and agents’ in failing to promptly assert
causes of action” belonging only to Plaintiff or to the small and distinct subsection of the
community. The Court stresses that certain of Plaintiff’s residents may benefit from the
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action, pursuant to possible decision making of Plaintiff in relation to the properties at
some indeterminate time in the future, but that cannot, by itself, render the action public.
Second, section 2-133 of Plaintiff’s Municipal Code undisputedly provides: “The
city manager…shall be responsible to the city council for the proper administration of all
affairs of the city. The City manager shall have the power and be required to…[e]nforce
all laws and ordinances of the city.” (Docs. 271, pg. 13; 322, pgs. 21-22; 330, pg. 34; 351,
pg. 21). However, section 50-79 of the Municipal Code, more specifically, does not contain
the mandatory language required by the case law in this context. See Champaign Cnty.
Forest Pres. Dist., 291 Ill App. 3d at 201-02; Viacom Intern., Inc., 713 F. Supp. 2d at 783; Agri-
Chain Prods., Inc., 224 Ill. App. 3d at 302-03. Section 50-79 merely provides: “Whenever
any nuisance shall be found on any premises within the city, the officials are authorized to
cause such nuisance to be summarily abated in such a manner as may be directed.” (Docs.
271, pg. 13; 322, pg. 22; 330, pg. 34; 351, pg. 21) (Emphasis added).
Similarly, section 50-80 of the Municipal Code provides:
It shall be the duty of the duly authorized authorities to serve a written
notice upon the owner…of any lot, building or premises in or upon which
any nuisance may be found or who may be the owner or cause of any such
nuisance requiring such persons to abate the nuisance in such manner as
shall be prescribed within a reasonable period of time…. No person so
notified shall neglect or refuse to comply with the requirements of such
order by abating such nuisance within the time specified. If such nuisance
is not abated within the time specified in such notice, it shall be the duty of
such authorized authority to proceed at once to cause such nuisance to be
abated; provided, further, that whenever the owner…is unknown or cannot
be found, the authorized authority shall proceed to abate such nuisance
without notice. In either case, the expense of such abatement shall be
collected from the person who may have created, continued or suffered
such nuisance to exist.
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(Docs. 330, pgs. 34-35; 351, pgs. 21-22).
This provision, admittedly, contains much stronger language than section 50-79.
However, the parties agree that section 50-80 “provides [the] specific procedure to trigger
§ 50-79’s authorization.” (Doc. 283, pg. 49); see also (Doc. 330, pg. 77) (“Monsanto is on
target when it identifies Section 50-80 as ‘provid[ing] a specific procedure to trigger § 50-
79’s authorization’ ”). In other words, an exercise of discretion by “the officials” in section
50-79 must precede the mandatory actions required by section 50-80. (Docs. 271, pg. 13;
322, pg. 22; 330, pgs. 34-35; 351, pgs. 21-22). And, alternatively, the Court tends to agree
with Defendants that “[n]othing in th[is] provision[] empowers the City to ask a court to
order third parties to clean up [or pay damages for] imperceptible chemicals on the City’s
own property.” (Doc. 283, pg. 49). It allows Plaintiff, with or without notice “upon the
owner,” to itself “proceed at once to cause such nuisance to be abated” “[i]f such nuisance
is not abated within the time specified in such notice.” (Docs. 330, pgs. 34-35; 351, pgs.
21-22). Thereafter, Plaintiff can “collect[]” “the expense of such abatement.” (Docs. 330,
pgs. 34-35; 351, pgs. 21-22). It may be true Plaintiff served the pleadings, “which request
‘the immediate and complete abatement and remediation’ of the PCB contamination,” on
Defendants, who did not subsequently abate the alleged nuisance on the subject
properties. (Doc. 330, pg. 78). But Plaintiff made no efforts to address the PCB
contamination before this lawsuit, i.e., by “proceed[ing] at once to cause such nuisance to
be abated.” (Docs. 283, pg. 20; 322, pg. 27; 330, pgs. 23, 34-35; 345, pg. 22; 351, pgs. 21-22).
Likewise, as to section 62-2, the “health department” no longer exists, so it cannot “cause
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all nuisances” that “it may deem prejudicial or obnoxious to the public health or comfort”
“to be abated or removed.” (Docs. 271, pgs. 13-14; 322, pg. 22; 330, pg. 35; 351, pg. 22).
Third, regarding the extent to which Plaintiff must expend public funds, the Court
again notes Plaintiff has no specific plan to redevelop the properties and it has made “no
efforts to address PCB contamination on the 273 parcels before [filing] this suit.” (Docs.
283, pgs. 18, 20; 322, pg. 27; 330, pgs. 20-21, 23; 345, pg. 22). To be sure, Plaintiff claims
that is due to the high cost of remediation outside of this lawsuit. However, the Court has
already held the case, which Plaintiff was not required to file under its Municipal Code,
involves rights of a private or local nature. Compare A, C & S, Inc., 131 Ill. 2d at 473 (noting,
among other things, that “a costly program [wa]s [allegedly] underway to repair, replace
and maintain the [asbestos containing materials]”); with City of Chicago v. DoorDash, Inc.,
No. 21-cv-5162, 2024 WL 4252797, *10 (N.D. Ill. Sept. 20, 2024) (finding “there is no
indication that [the plaintiff] has had to or will have to expend public funds to address
the damage caused by [the defendant]’s allegedly unlawful conduct,” “[t]he absence of
public expenditures distinguishes th[e] case from others” where nullum tempus applied,
and the costs of prosecuting the lawsuit were not “evidence of public expenditures since
[the plaintiff] was not ‘required by law to undertake’ th[e] suit”); Viacom Intern., Inc., 713
F. Supp. 2d at 781 (“[I]n Shelbyville, A, C & S, and Latronica, the governmental entities
were required by law to undertake these expenditures and were thus entitled to recover;
here, there is no obligation on the part of Plaintiff to maximize potential tax or business
revenue, or to clean up pollution caused by releases from the Site. In addition, Plaintiff
does not allege what costs it has been forced to incur in dealing with pollution from the
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Site, other than to allege that it has lost potential tax and business revenues from declining
property values and tourism, and that the cost of remediation ‘is believed to be in the
multiple millions of dollars.’ As Plaintiff is not required by law to undertake the actions
that these damages seek recovery for, no expenditure of public funds has been
necessitated by the contamination from the Site.”) (internal citation omitted).
Therefore, at this point, Plaintiff has asserted private or local rights, in its
discretion, without materially expending any funds. Indeed, as discussed at other
junctures in the case, it is prosecuting the case under a contingency-fee agreement.
Finally, Plaintiff’s attempt to show how it intends to expend the funds from this
lawsuit is also unconvincing. The “Ordinance Concerning Proceeds From Monsanto PCB
Litigation,” which implicates both the first and the third nullum tempus factors, was
passed on April 10, 2025, and, in pertinent part, provides the following recitals:
WHEREAS, the City has filed and is prosecuting the matter captioned City
of East St. Louis, Illinois v. Monsanto Company et al., No. 3:21-cv-232-DWD,
pending in the United States District Court for the Southern District of
Illinois, a lawsuit which arises from alleged polychlorinated biphenyl
(“PCB”) contamination within the City (the “Litigation”); and
WHEREAS, the City desires to use any proceeds it may receive from the
Litigation (by judgment, settlement, or otherwise), after the payment of
costs and attorneys’ fees (the “Litigation Proceeds”), to remediate PCB
contaminated property that has been identified within the City, investigate
other PCB contamination within the City, and fund projects that will further
social and economic development within the City (“Qualifying Purposes”);
and
WHEREAS, the City desires to enter into an agreement with a person or
entity who has substantial experience in state and local government and the
management of municipal finances (“Oversight Partner”), pursuant to
which the City and the Oversight Partner will review and approve use of
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the Litigation Proceeds for Qualifying Purposes (“Proceeds Agreement”);
and
WHEREAS, the City desires to enter into an agreement with the Oversight
Partner and a third-party escrow agent (“Escrow Agent”), pursuant to
which the City will deposit the Litigation Proceeds with the Escrow Agent,
and pursuant to which the City and the Oversight Partner will authorize
the release of the Litigation Proceeds for Qualifying Purposes per the
Proceeds Agreement (“Escrow Agreement”); and
WHEREAS, the Mayor and the City Council have determined that it is in
the best interest of the City and the public to identify potential candidates
for Oversight Partner and Escrow Agent and plan for the implementation
of a Proceeds Agreement and Escrow Agreement.
(Doc. 371-2, pg. 2) (Emphasis in and omitted from original).
The Ordinance then proceeds to set forth the process for Plaintiff to select an
oversight partner, enter a proceeds agreement, select an escrow agent, enter an escrow
agreement, and preserve any litigation proceeds. (Doc. 371-2, pgs. 2-3). However,
Defendants are generally correct that it is the nature of the right, as opposed to the plans
for recovery, that govern the analysis. See Shelbyville Restorium, Inc., 96 Ill. 2d at 460-65; A,
C & S, Inc., 131 Ill. 2d at 471, 474, 476 (1989); Champaign Cnty. Forest Pres. Dist., 291 Ill App.
3d at 200, 202-03; Latronica Asphalt and Grading, Inc., 346 Ill. App. 3d at 273-76;
see also DoorDash, Inc., 2024 WL 4252797 at *8 (“Accepting the City’s argument would
entail an expansive theory of government power whereby municipal governments could
immunize themselves from state limitations periods by enacting ordinances with only a
marginal connection to public welfare.”); (Doc. 378, pgs. 1-2). Further, even if the
Ordinance could, by itself, transform what have been found to be private or local rights,
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asserted in Plaintiff’s discretion, into public rights requiring the expenditure of public
funds, the Court believes it lacks the specificity and certainty to accomplish that tall task.
Having found the nullum tempus doctrine is inapplicable in this case, the Court
holds Defendants are entitled to summary judgment on Plaintiff’s claims. Accordingly,
Defendants’ Motion for Summary Judgment on Plaintiff’s Claims is GRANTED, in part,
and DENIED as moot, in part, and Plaintiff’s Motion for Partial Summary Judgment on
Defendants’ Liability for Trespass and First Affirmative Defense is DENIED. As a final
aside, though, the Court highlights its understanding of Plaintiff’s predicament in this
case. It is undisputed that there is some level of PCB contamination on the subject
properties in the City. However, the Court could not reach the merits of Plaintiff’s claims.
It could only hold that those claims are barred by the applicable statutes of limitations
and repose. As an extension of that holding, the Court could only conclude that the
nullum tempus doctrine cannot excuse Plaintiff from sleeping on the private rights
asserted in this action. Unable to apply that doctrine, the Court must adhere to the above-
stated legal principle: Limitation periods “are not arbitrary obstacles to the vindication of
just claims, and therefore they should not be given a grudging application. They protect
important social interests in certainty, accuracy, and repose.” Cada, 920 F.2d at 452-53.
2. The Parties’ Separate Motions for Summary Judgment on
Defendants’ First Amended Counterclaim and Defendant Solutia Inc.’s
Motion for Partial Summary Judgment on Direct Liability
As discussed above, Defendants filed a First Amended Counterclaim under 42
U.S.C. § 1983, stating an as-applied due process challenge to the enforcement of the
Abatement Ordinances. (Doc. 179, generally). Defendants allege, as applied to them, the
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Abatement Ordinances are unconstitutionally vague. (Doc. 179, generally). For that
reason, Defendants request: “[J]udgment in their favor and against Plaintiff/Counter-
Defendant…to the extent authorized by law, including preliminary and permanent
injunctive relief against enforcement of the Abatement Ordinances against Defendants,
declaratory relief that the Abatement Ordinances are unconstitutional as applied to
Defendants, and attorneys’ fees pursuant to 42 U.S.C. § 1988.” (Doc. 179, pgs. 13-14).
Notably, Plaintiff’s case was resolved on nonconstitutional grounds. Its claim
under the Abatement Ordinances was held to be time-barred, and the nullum tempus
doctrine does not apply. Therefore, Plaintiff cannot enforce the Abatement Ordinances
against Defendants, and it is not necessary for the Court to consider whether the
Abatement Ordinances, as applied to Defendants, are unconstitutional. See Gulf Oil Co. v.
Bernard, 452 U.S. 89, 99 (1981) (“[P]rior to reaching any constitutional questions, federal
courts must consider nonconstitutional grounds for decision.”); Jean v. Nelson, 472 U.S.
846, 854 (1985) (identifying the aforementioned principle from Gulf Oil Co. as “a
‘fundamental rule of judicial restraint”); St. Augustine School v. Underly, 78 F.4th 349, 358
(7th Cir. 2023) (recognizing “the U.S. Supreme Court’s preference for constitutional
avoidance, if a difficult question can be resolved either by reliance on state law or on
statutory grounds,” such that “[c]onstitutional adjudication must be unavoidable”)
(cleaned up); U. S. ex rel. Isaac v. Franzen, 531 F. Supp. 1086, 1092 (N.D. Ill. 1982) (noting
the “general federal policy of avoiding a constitutional question when the merits of a case
may be resolved on nonconstitutional grounds”). This is true even though constitutional
avoidance arose from Defendants’ First Amended Counterclaim rather than Plaintiff’s
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case. Again, in light of the specific relief requested by Defendants, which is essentially
what the Court granted with the above rulings, it is unnecessary to consider the merits of
the First Amended Counterclaim. On this basis alone, the parties’ Motions for Summary
Judgment 	on 	Defendants’ 	First 	Amended 	Counterclaim 	are 	DENIED 	as 	moot.
Defendants’ First Amended Counterclaim is DISMISSED without prejudice.
Next, in light of the above rulings on Defendants’ Motion for Summary Judgment
on 	Plaintiff’s 	Claims 	and 	Plaintiff’s 	Motion 	for 	Partial 	Summary 	Judgment 	on
Defendants’ Liability for Trespass and First Affirmative Defense, Defendant Solutia Inc.’s
Motion for Partial Summary Judgment on Direct Liability (Doc. 261) is DENIED as moot.
B. The Parties’ Motions to Exclude Expert Testimony,
Defendants’ Motion for a Judicial Determination on Plaintiff’s
Demand for a Jury Trial, and the Parties’ Motions in Limine
By virtue of the Court’s rulings on Defendants’ Motion for Summary Judgment on
Plaintiff’s Claims and Plaintiff’s Motion for Partial Summary Judgment on Defendants’
Liability for Trespass and First Affirmative Defense, it is unnecessary to resolve these
Motions. As such, the Motions to Exclude Expert Testimony (Docs. 255, 256, 257, 258, 259,
260, 262, 264, 265, 266, 267, 269, 270, 278), Defendants’ Motion for a Judicial Determination
on Plaintiff’s Demand for a Jury Trial (Doc. 357), and the Motions in Limine (Docs. 388,
389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 407,
408, 409, 410, 411, 412, 413, 414, 415, 416, 417, 418, 419, 420) are DENIED as moot.
III. CONCLUSION
For the reasons explained above, the Court holds Defendants are entitled to
summary judgment based on the statutes of limitations and repose and the nullum tempus
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doctrine. Accordingly, Defendants’ Motion for Summary Judgment on Plaintiff’s Claims
is GRANTED, in part, and DENIED as moot, in part, and Plaintiff’s Motion for Partial
Summary Judgment on Defendants’ Liability for Trespass and First Affirmative Defense
is DENIED. By extension, the parties’ Motions for Summary Judgment on Defendants’
First Amended Counterclaim, Defendant Solutia Inc.’s Motion for Partial Summary
Judgment on Direct Liability, the Motions to Exclude Expert Testimony, Defendants’
Motion for a Judicial Determination on Plaintiff’s Demand for a Jury Trial, the parties’
Motions in Limine, and the Joint Motion for an Extension of Time are DENIED as moot.
Defendants’ First Amended Counterclaim is DISMISSED without prejudice.
SO ORDERED.
Dated: February 27, 2026
___________________________
DAVID W. DUGAN
United States District Judge
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