ELR Citation: ELR 21115
No(s). 4-93-88 (D. Minn. Feb 21, 1995)

The court holds that petroleum spilled or leaked from underground storage tanks (USTs) used in commercial operations is "discarded material" that is "solid waste" under Resource Conservation and Recovery Act (RCRA) §1004(27). The owner of properties on which USTs were located brought a RCRA citizen suit requesting injunctive relief against the former owners of the properties for contamination resulting from their operation of the USTs. The court first holds that petroleum spilled or leaked from USTs used in commercial operations is "solid waste" under RCRA §1004(27). Although petroleum is a useful product, petroleum leaked into soil or groundwater ceases to be useful and cannot be used for its intended purpose. Moreover, petroleum left behind from commercial operations is abandoned. The court next holds that the existence of federal and state UST regulations does not bar a RCRA §7002 citizen suit. RCRA §7002(b)(2) clearly states the exceptions to a private citizen's right to bring a §7002(a)(1)(B) action, and no provision prohibits citizen suits based on UST petroleum leaks or spills. When Congress enumerates such exceptions, a court cannot infer additional exceptions without evidence of contrary legislative intent.

The court holds that evidence on the risks from the contamination presents a genuine issue for trial on whether the contaminated property poses an imminent and substantial endangerment to the environment. The court, therefore, does not address whether the landowner has satisfied the other element of its prima facie case on whether the former landowners have contributed, or are contributing, to the handling, storage, treatment, transportation, or disposal of the petroleum.

The court rejects a motion for abstention on the grounds of the primary jurisdiction doctrine that would let stand the state's decision not to require remedial action, because applying the doctrine in citizen suits would greatly reduce the instances in which a plaintiff could pursue such an action, and would be inconsistent with RCRA §7002. The court also holds that the state's UST program does not supersede §7002. That the state is authorized to enforce its laws regarding hazardous waste in lieu of RCRA Subtitle C does not mean that the landowner has to bring its claims in state court. The court further holds that the Burford abstention doctrine does not require it to abstain from exercising jurisdiction over this suit. The court rejects the former owners' argument that to exercise jurisdiction would disrupt the state's complex system for regulating USTs and petroleum cleanup. Congress has granted jurisdiction to federal courts to decide citizen suit actions and has set forth those situations in which a §7002(a)(1)(B) citizen suit is precluded.

The court dismisses the purchaser's state-law claims without prejudice. It is clear from the landowner's complaint that its trespass, negligence, nuisance, strict liability, and environmental tort claims predominate over the RCRA claim. Those state-law claims involve issues triable to a jury and are subject to various state-law defenses. If the landowner were successful on those state claims, it would be entitled to compensatory damages. Under RCRA, however, the purchaser would only be entitled to injunctive relief. Also, the landowner's state-law claims raise unsettled issues of state law that are more properly addressed in state courts.

Counsel for Plaintiff
Ruth S. Marcott
Maun & Simon
2300 Minnesota World Trade Ctr.
30 E. 7th St., St. Paul MN 55101
(6120 229-2900

Counsel for Defendant
Linda T. Hatten
Doherty, Rumble & Butler
2800 Minnesota World Trade Ctr.
30 E. 7th St., St. Paul MN 55101
(612) 291-9333