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Zands v. Nelson

ELR Citation: 22 ELR 20757
Nos. Nos. 89-0989-GT, 90-1144-GT, 779 F. Supp. 1254/34 ERC 1561/(S.D. Cal., 12/03/1991)

The court holds that the owners of land contaminated with gasoline from underground storage tanks (USTs) at a gas station on the plaintiffs' property may bring a citizen suit under §7002 of the Resource Conservation and Recovery Act (RCRA) against past owners of the property, past operators of the gas station, and installers of piping and pumps for the tanks. The court first holds that the plaintiffs complied with the 90-day notice requirement in RCRA §7002(b)(2)(A). The court holds that the plaintiffs need only comply with the requirement for their third amended complaint, which contained the §7002 claim, because causes of action not contained in the third complaint are not before the court. The court holds that for purposes of §7002(a)(1)(B), the plaintiffs' cause of action commenced with the filing of the third amended complaint, because an alternative rule would require the plaintiffs to give the 90-day notice before filing a complaint that does not include a §7002(a)(1)(B) claim. The court next holds that the 90-day notice need not be followed by a nonadversarial period. The plain meaning of the statute does not mention or require a nonadversarial period, and the lack of a nonadversarial requirement will not affect a government agency's decision to intervene in a suit. Moreover, without this requirement alleged violators would still have the opportunity, and the incentive, to take measures to stop the commencement of the §7002(a)(1)(B) action.

The court rules that the leakage of gasoline from a UST can create a cause of action under §7002. RCRA does not contain a petroleum exception. Although RCRA §9001 established a separate response program for USTs that leak various products, including petroleum, the legislative history of §9001 is not dispositive of congressional intent. The existence of a special program for USTs under §9001 does not mean that program was intended to be the exclusive means for addressing possible contamination from USTs. The court further notes that an Environmental Protection Agency memorandum states that gasoline leaking from USTs may be controlled under RCRA as "solid waste." The court holds that the creation of solid waste, and the subsequent abandonment of it in the ground, will support a cause of action under RCRA §7002(a)(1)(B), because of the statute's plain meaning, Congress' reference to RCRA as a "cradle-to-grave regulatory regime," and the inclusion of generators within the meaning of "persons" in §7002(a)(1)(B).

The court next holds that the defendants' motions for summary judgment on the issue of contribution are premature. However, the court holds that each defendant may be a "contributor" under RCRA, because none of the defendants is so far removed that it can be said, as a matter of law, he or she did not contribute to the leakage. Finally, the court holds that the plaintiffs' motion for partial summary judgment is premature, because the defendants are still conducting discovery on the site as to the cause or causes of the contamination.

Counsel for Plaintiffs
Harry V. McGahey
McGahey & McGahey
1200 3rd Ave., San Diego CA 92122
(619) 597-2444

Counsel for Defendants
John H. Stephens, Lynn M. Beekman
Robbins & Keehn
530 B St., Ste. 1700, San Diego CA 92101
(619) 232-1700