ELR Citation: ELR 21091
No(s). 94 C 2854 (N.D. Ill. Feb 16, 1995)

The court holds that the purchaser of an underground storage tank (UST) that leaked petroleum, and the purchaser's insurer, stated a claim for cleanup costs under Resource Conservation and Recovery Act (RCRA) §7002(a)(1)(B) against the UST's manufacturer and the company that sold and installed the UST on the purchaser's property, but plaintiffs failed to comply with §7002(b)(2)(A)'s 90-day notice requirement. The court first holds that gasoline that leaked from a UST is no longer useful and is solid waste. Congress did not intend that soil and groundwater contaminated by gasoline should escape RCRA's coverage simply because a formerly useful product is the contaminant. Because RCRA allows a private citizen to bring a civil enforcement suit against anyone who is contributing to the disposal of any solid or hazardous waste, the court holds that RCRA subtitle I does not preclude private civil enforcement suits against someone who is contributing to the disposal of petroleum defined as a solid waste. The court also holds that the Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA's) exclusion of petroleum from its definition of hazardous substance does not mean that RCRA excludes petroleum from its definition of hazardous or solid waste. RCRA, unlike CERCLA, does not explicitly exclude petroleum from its definition of hazardous waste or solid waste. Thus, the court refuses to bar civil enforcement suits under RCRA §7002(a) for petroleum leakage from USTs simply because CERCLA excludes petroleum from its coverage. The court further holds that RCRA subtitle I merely provides additional, not exclusive, means for addressing problems with USTs.

The court holds that the purchaser and its insurer cannot recoup past remediation expenses under RCRA §7002(a)(1)(B). The court finds, however, that the amended complaint indicates that the UST petroleum leak continues to grow, making it clear that petroleum remains in the groundwater and soil and that the contamination continues to migrate beyond the site. Accepting all allegations in the amended complaint as true and construing all reasonable inferences in favor of the purchaser and its insurer, the court holds thatthe complaint sufficiently alleges that the petroleum leakage from the UST may present an imminent and substantial endangerment to health or the environment.

The court holds that the term "contributor" as used in RCRA §7002(a)(1)(B) should not be interpreted to foreclose a suit against the UST's manufacturer. The purchaser's allegations clearly suggest that the UST manufacturer's faulty manufacture and design caused the petroleum to leak from the UST into the soil and groundwater. Given the allegations in the amended complaint and accepting those allegations as true, the court cannot hold as a matter of law that the UST's manufacturer does not fall within §7002(a)(1)(B)'s definition of one who is contributing to the disposal of a solid waste.

The court holds that RCRA §7002 bars the purchaser's and its insurer's action because they failed to wait 90 days after providing notice to the defendants before filing suit. The purchaser filed its complaint on May 9, 1994, and an amended complaint on June 9, 1994. The manufacturer did not respond to the amended complaint until it filed its motion to dismiss on October 20, 1994. Reading §7002(b)(2) in light of Fed. R. Civ. P. 3, a plaintiff may not file suit before fulfilling the 90-day notice requirement. The fact that the manufacturer did not respond to the amended complaint until it filed its motion to dismiss does not delay the suit's commencement. Although §7002(b)(2)(A) provides an exception to the 90-day rule, the exception only applies to actions involving subtitle C hazardous wastes and is therefore not available to the purchaser and its insurer. Because they have not satisfied the notice requirement and since that requirement is a prerequisite to bringing suit under §7002(a)(1)(B), the court dismisses the amended complaint without prejudice. Finally, because the federal claims have been dismissed before trial, the court also dismisses the state-law claims without prejudice.

Counsel for Plaintiff
Daniel C. Murray
Johnson & Bell
222 N. La Salle St., Ste. 2200, Chicago IL 60601
(312) 372-0770

Counsel for Defendants
Donald F. Hemmesch Jr.
Taslitz, Smith & Hemmesch
11 E. Adams St., Ste. 1400, Chicago IL 60603
(312) 939-0100