ELR Citation: ELR 20135
No(s). 1:91-cv-3123-RHH (N.D. Ga. Aug 23, 1993)

The court holds that despite defendant's remediation efforts, the owner of a paper recycling plant may bring a citizen suit under §7002(a)(1)(B) of the Resource Conservation and Recovery Act (RCRA) against the defendant operator of a bulk fuel terminal to remedy soil and groundwater contamination caused by a fuel leak from a petroleum pipeline near the plant site. The court holds that leaking petroleum product constitutes disposal of solid waste that may present an imminent and substantial endangerment to health or the environment within the meaning of §7002(a)(1)(B). The court holds that the owner may bring this citizen suit even though defendant has already begun remediation efforts, because free product remains in the soil on the plant's property and there is no evidence that the operator has attempted to remediate dissolved product found in the groundwater. Moreover, the operator's incomplete cleanup efforts do not rule out the existence of an imminent and substantial endangerment to health or the environment as a result of the leak, and it is unclear whether the cleanup complies with federal law. The court also rejects the operator's claim that its remediation efforts bar the citizen suit, because there has been no comparable state or federal action to remedy the contamination.

Affirming its decision on reconsideration, the court also holds that applying RCRA to contamination that occurred in 1986 is not unfair. The Act permits citizen suits for past contamination, and the operator has consistently misjudged the length of time needed to remedy the situation.

Counsel for Plaintiff
W. Pitts Carr, David H. Pope
Carr, Tabb & Pope
1355 Peachtree St., Ste. 2000, Atlanta GA 30309
(404) 876-7790

Counsel for Defendant
Sanford R. Karesh, Gary L. Seacrest
Bentley, Karesh & Seacrest
Two Ravina Dr., Ste. 1400, Atlanta GA 30346
(404) 804-1800