ELR Citation: ELR 20115
No(s). 5-89-0202 (D. Minn. Dec 21, 1992)

The court adopts a magistrate judge's findings that an oil company that leased service stations and sold petroleum products to franchisees is not liable as a "generator" under §107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act for contamination of a site where an oil refiner deposited hazardous waste resulting from recycling waste oil it collected from the service stations. The magistrate first holds that affidavits of two service station lessees do not raise genuine issues of material fact. One affidavit states that the oil company may have arranged for the collection of drain oil, and the other states that if any arrangements for removal of drain oil were made, the oil company would have made them. The affiants do not state material facts of their personal knowledge, but merely relate what they surmise. The magistrate holds that a third affiant's statement that an oil company representative consented to letting the refiner collect used oil from the affiant's station is insufficient to denote active participation by the oil company in the decision to use the refiner for waste oil disposal. The statement merely imputes knowledge of the lessee's decision to the oil company and establishes that the oil company, with that knowledge, did not interfere with the decision. The oil company did not own the waste oil or control the process that generated it. There is also no showing that it possessed contractual power to dictate the manner of disposition of waste oil. The statement does not establish responsibility, or assumption of responsibility, for the critical decision. In addition, even if it raised an issue of material fact, it did not raise a genuine issue, because it is not sufficiently probative to outweigh other contrary evidence and prove that the oil company, actively or passively, participated in the decision to dispose of waste oil through the refiner. The magistrate holds that the third affiant's statement that the oil company required him to provide oil changes is also insufficient to denote active participation by the oil company in the decision to use the refiner for waste oil disposal, because waste oil disposal was a facet of the service station operation that was exclusively within the domain of the lessee. His contract with the oil company did not impose an obligation on the oil company to control and direct the manner of waste oil disposition. The magistrate also holds that generator liability cannot be imposed on the oil company based on its sale of useable petroleum products to the service stations, because the sale was not made for the purpose of ridding the oil company of hazardous substances.

Counsel for Plaintiff
Robin L. Juni, Peter W. Colby
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Dennis M. Coyne
Fredrikson & Byron
1100 International Ctr., 900 Second Ave. S., Minneapolis MN 55402
(612) 347-7000