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Avondale Fed. Sav. Bank v. Amoco Oil Co.

Citation: 28 ELR 21388
No. 96 C 2762, 997 F. Supp. 1073/(N.D. Ill. , 03/19/1998)

The court holds that a landowner cannot recover from previous site owner petroleum contamination cleanup costs it incurred after it invoked Resource Conservation and Recovery Act (RCRA) § 7002's statutory process for bringing a citizen suit. The court first holds that a private party cannot recover cleanup costs incurred after properly invoking RCRA's statutory process. Pursuant to RCRA § 7002, Congress did not expressly authorize the award of cleanup costs. Unlike the Comprehensive Environmental Response, Compensation, and Liability Act, RCRA contains no statute of limitations and it does not require a showing that the response costs being sought are reasonable. Similarly, the absence of these provisions support the conclusion that RCRA does not authorize the recovery of cleanup costs incurred after properly invoking RCRA's statutory provisions. In addition, RCRA would be a wholly irrational mechanism for compensating cleanup costs incurred after properly invoking RCRA's statutory process because only a party cleaning up insubstantial waste problems could recover. If RCRA provides recovery of cleanup costs, parties remediating an insubstantial waste problem can begin remediation immediately after invoking RCRA's statutory process and then recover its cleanup costs after the conclusion of its citizen suits. By contrast, a party remediating a substantial waste problem would have to wait for the government to win its enforcement suit before any remediation can take place. It is unlikely that Congress intended to safeguard human health and the environment by employing a methodology that results in cleaning up insubstantial waste problems faster than substantial waste problems. Moreover, concluding that RCRA does not authorize the recovery of cleanup costs merely confirms that a plaintiff cannot clean up a site and sue for response costs in lieu of seeking an injunction. If a plaintiff chooses to clean up the site in lieu of seeking an injunction, it can still pursue its cleanup costs against the responsible party under other federal or state laws.

The court next rejects the landowner's motion for an order compelling the previous site owner to remediate any future residual contamination from the site. There is no imminent and substantial endangerment to human health or the environment that requires the previous site owner to remediate at its expense contamination that may in the future cause danger serious enough to require abatement. Last, having granted summary judgment for the previous site owner on the landowner's RCRA claims, the court declines to exercise supplemental jurisdiction on the landowner's state-law claims.

Counsel for Plaintiff
William M. McErlean
Seidler & McErlean
161 N. Clark St., Ste. 2650, Chicago IL 60601
(312) 516-0700

Counsel for Defendant
Vincent S. Oleszkiewicz
Baker & McKenzie
One Prudential Plaza
130 E. Randolph Dr., Chicago IL 60601
(312) 861-8000