ELR Citation: ELR 20255
No(s). 91-14199-CIV (S.D. Fla. Jun 5, 1992)

The court holds that the owners of property on which an oil company operated a gasoline service station and bulk petroleum storage facility and allegedly dumped and spilled petroleum, failed to state a claim under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) on which relief can be granted for recovery of future remediation costs and costs incurred in conducting site tests and preparing a contamination assessment report. The court finds that a fair reading of the plaintiffs' complaint leads to the inescapable conclusion that the hazardous substances discovered on the site were derived from the petroleum products that were stored and sold by the oil company. The pleading identifies no other viable sources of the pollutants and contaminants. Accordingly, the court dismisses the plaintiffs' claims without prejudice and grants the plaintiffs 11 days from the date of the opinion to file an amended complaint. The court notes that the pleading should give an indication of which hazardous substances were found on the site, whether they are inherent in petroleum, and if possible, their sources. The court also holds that the plaintiffs' complaint was deficient for failure to allege consistency with CERCLA's national contingency plan.

Counsel for Plaintiffs
Roy Jordan Jr.
Jordan & Stinson
The Commerce Ctr., 324 Datura St., Ste. 324
West Palm Beach FL 33401
(407) 832-4500

Jeff Harmon
Cors & Bassett
1700 Carew Tower, Cincinnati OH 45202
(513) 381-0312

Counsel for Defendants
Kirk L. Burns
Douglas M. Halsey Law Firm
First Union Financial Ctr.
200 S. Biscayne Blvd., Ste. 4980, Miami FL 33131
(305) 375-0077

Jordan Fields
Fields & Wilkinson
55 E. Osceola St., Ste. 100, Stuart FL 34994
(407) 286-0890