ELR Citation: ELR 20147
No(s). 92-1379-FR (D. Or. Jul 19, 1994)

The court holds that §309 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) preempts Oregon's statute of repose for negligence claims, and that plaintiff landowner satisfied the Resource Conservation and Recovery Act's (RCRA's) notice requirements in its RCRA §7002 and state-law action against the owner of a petroleum bulk storage and distribution plant to recover damages for groundwater contamination beneath the landowner's property that was caused by petroleum products leaking from the plant. The court first holds that it has jurisdiction over the landowner's RCRA §7002(a)(1)(B) imminent and substantial endangerment claim. Although the landowner had filed its original complaint, which included non-RCRA allegations, before expiration of §7002(b)(2)(A)'s 90-day notice period, it filed an amended complaint containing the RCRA claim more than 90 days after giving notice to defendant. The court also holds that there exists a genuine issue of material fact regarding whether the plant owner's operations have caused an imminent and substantial endangerment to the environment. Turning to the landowner's state-law claims, the court holds that the bulk plant operation is an ultrahazardous activity under Oregon law. The operation is subject to stringent safety laws and involves a hazardous substance that could greatly harm health or property should an accident occur. That the operation is appropriate where it is situated does not exempt it from strict liability. Next, the court holds that CERCLA §309 preempts Oregon's statute of repose for negligence claims. Although CERCLA's definition of hazardous substance excludes petroleum products, §309 preempts state statutes of limitations for actions involving pollutants and contaminants, as well as hazardous substances. The bulk plant is a "facility" and the damages alleged involve "pollutants" or "contaminants" within the meaning of §309. The court holds that the applicable 10-year statute of limitations began running when the landowner discovered the contamination in 1991, not when the contamination occurred in 1983. The statute of limitations has not run on the landowner's claims, because there is no evidence that he knew, or reasonably should have known, of the property damage more than 10 years before he filed suit in 1993.

Counsel for Plaintiff
Karl G. Anuta
Jolles, Sokol & Bernstein
721 SW Oak St., Salem OR 97205
(503) 228-6474

Counsel for Defendants
William D. Okrent, G. Marts Acker
Acker & Okrent
1618 SW First Ave., Ste. 403, Portland OR 97201
(503) 222-1445