ELR Citation: ELR 20726
No(s). C2-92-1076 (S.D. Ohio Oct 27, 1993)

Ruling on summary judgment motions, the court holds that §7002(a)(1)(A) of the Resource Conservation and Recovery Act (RCRA) may not be applied retroactively to a former leaseholder's violations of RCRA's underground storage tank (UST) regulations, but that §7002(a)(1)(B) may be applied retroactively to the violations. The former leaseholder of the site, who used it for servicing motor vehicles and stored waste oil and gasoline in the USTs, challenged by motions for summary judgment the site owner's RCRA citizen suit claims under §7002(a)(1)(A) and (a)(1)(B). The court first holds that §7002(a)(1)(A) may not be applied retroactively. Because the lease had terminated and the leaseholder had vacated the premises and relinquished all rights to the USTs prior to that section's enactment, the court grants the leaseholder's motion for summary judgment on the owner's §7002(a)(1)(A) claim.

The court next holds that §7002(a)(1)(B) may be applied retroactively. The language of this section provides a remedy for either past or present actions. The court denies the leaseholder's motion for summary judgment as to the owner's §7002(a)(1)(B) claim, holding that a genuine issue of material fact remains as to whether the waste in the tanks may present an imminent and substantial endangerment to health and the environment. Also, although the USTs technically were not installed withinthe leasehold, having been installed beneath the concrete floor of the leasehold, applying common law to preclude liability on that basis would frustrate RCRA's purposes. Moreover, whether the leaseholder is the "owner" of the site is irrelevant to a §7002(a)(1)(B) claim. Finally, the court holds that the owner's failure to serve timely notice of its claims on the U.S. Attorney General, as required by §7002(b)(2)(F), does not preclude it from commencing a §7002(a)(1)(B) action.

Counsel for Plaintiff
David W. Hardymon
Vorys, Sater, Seymour & Pease
52 Gay St., P.O. Box 1008, Columbus OH 43216
(614) 464-6400

Counsel for Defendant
John W. Edwards
Jones, Day, Reavis & Pogue
1900 Huntington Ctr., Columbus OH 43215
(614) 469-3939