ELR Citation: ELR 20362
No(s). 01 C 6353 (N.D. Ill. Nov 23, 2001)

The court dismisses a landowner's Resource Conservation and Recovery Act (RCRA) claims against a neighboring service station for failing to investigate and remediate possible contamination on the landowner's property and for failing to reimburse the landowner for past investigation and remediation costs. After learning of contamination on its own property, the service station offered to investigate the neighboring landowner's property for possible contamination. The landowner refused to let the service station investigate its property unless the station agreed to remediate any contamination found. The service station declined, and the landowner filed suit under RCRA and state law.

The court first holds that although the service station has a duty to investigate possible contamination on the landowner's property, the landowner may not use its own refusal of the service station's investigation to charge the service station with failure to investigate under RCRA. Thus, the court dismisses the landowner's failure to investigate claim. In addition, RCRA regulations do not require owners and operators to begin to remediate any contamination before they investigate. Because the station has not had an opportunity to investigate the landowner's property, any claim the landowner may have against the service station for remediation is premature. Similarly, citizen suits under RCRA do not permit recovery of money spent on past cleanup efforts. Consequently, the court also dismisses the landowner's failure to reimburse claim. The court, however, refuses to exercise supplemental jurisdiction over the landowner's state-law claims and, thus, dismisses those claims without prejudice.

The full text of this decision is available from ELR (9 pp., ELR Order No. L-411).

Counsel for Plaintiff
Frank M. Grenard
Whitfield & Eddy
317 6th Ave., Ste. 1200, Des Moines IA 50309
(515) 288-6041

Counsel for Defendants
Mark E. Burkland
Holland & Knight
55 W. Monroe St., Ste. 800, Chicago IL 60603
(312) 263-3600