ELR Citation: ELR 20280
No(s). 93-1296 (C.D. Ill. Aug 18, 1994)

The court holds that co-executors of a landlord's estate may not bring a citizen suit under the Resource Conservation and Recovery Act (RCRA) against its tenants for property damage resulting from releases of petroleum from underground storage tanks (USTs). The tenants operated a gasoline station on property leased from the landlord. The court first holds that, although petroleum could be considered a solid waste, the co-executors may not bring a citizen suit because RCRA subtitle I exclusively regulates petroleum USTs, and therefore petroleum cannot be classified as either hazardous or solid waste. The court next holds that it seems fairly clear from the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), RCRA subtitle I, and federal regulations that petroleum is not meant to be regulated as a hazardous or solid substance. CERCLA, which regulates hazardous and solid wastes, supports RCRA subtitle I's regulation of petroleum by expressly excluding petroleum from CERCLA §101(14)'s definition of hazardous waste. RCRA subtitle I expressly includes petroleum in its coverage of "regulated substances" and sets it apart from the hazardous and solid substances included within CERCLA's scope. The federal UST regulations and subtitle I's limitation of its coverage to petroleum USTs further establishes that its coverage was meant to be exclusive from the regulation of hazardous waste in RCRA subtitle C. The court holds that the regulatory definition of "hazardous waste UST system" demonstrates that subtitle C is meant to regulate only hazardous waste USTs and that petroleum USTs are expressly excluded from subtitle C's coverage. Since the alleged contamination flowed from a petroleum UST holding gasoline, the court holds that the regulation and relief for the contamination of the property is solely within subtitle I. No section in subtitle I allows citizen suits, and only the Administrator can bring suit against the tenants. Lastly, the court dismisses for lack of jurisdiction the co-executors' state-law claims because the claims were supplemental to the RCRA claims that were dismissed.

Counsel for Plaintiffs
Robert M. Riffle, David G. Lubben
Keck, Mahin & Cate
331 Fulton St., Ste. 640, Peoria IL 61602
(309) 673-1681

Counsel for Defendants
Thomas R. Davis
Miller, Hall & Triggs
416 Main St., Ste. 1125, Peoria IL 61602
(309) 671-9600