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Dydio v. Hesston Corp.

ELR Citation: 26 ELR 20312
Nos. No. 94 C 7319, 887 F. Supp. 1037/(N.D. Ill., 05/22/1995)

The court holds that Subtitle I of the Resource Conservation and Recovery Act (RCRA) does not bar an individual's RCRA §7002(a)(1)(B) suit against a company that formerly owned his land and maintained underground storage tanks (USTs) there, and that the individual may bring a §7002(a)(1)(A) suit against the company for failure to undertake corrective action to clean up petroleum that leaked from the USTs. The court first holds that the state UST program does not supersede RCRA, because the company acknowledges that the U.S. Environmental Protection Agency (EPA) has not approved the state's program to operate in lieu of RCRA and there is no support for the company's contention that EPA has provided constructive authorization by entering into a cooperative agreement. The court rejects the company's argument that the individual's RCRA §7002(a)(1)(A) claim should be dismissed as alleging wholly past violations. Although the individual's allegations derive from the company's past conduct in the sense that the company's alleged obligation to take corrective action derives from its prior commercial operations, this does not render its alleged present failure to undertake corrective action a wholly past violation. The regulations promulgated under RCRA Subtitle I create a regime under which past owners of USTs have continuing obligations to take corrective action following the confirmed release of a regulated substance, and the individual has properly alleged a present violation of those regulations. The court next holds that Subtitle I does not preclude citizen suits under §7002(a)(1)(B) and that leaking petroleum is a solid or hazardous waste supporting a citizen suit under §7002(a)(1)(B). Rejecting the company's argument that leaking gasoline is a useful product which RCRA therefore does not cover, the court adopts the reasoning of Zands v. Nelson, 22 ELR 20757 (S.D. Cal. 1991), that gasoline is no longer a useful product after it leaks into, and contaminates, soil. The conclusion that petroleum-contaminated soil constitutes "solid waste" is further buttressed by the fact that 40 C.F.R. §261.4(b)—entitled "Solid wastes which are not hazardous wastes"—includes "petroleum-contaminated media and debris." Even if leaking petroleum from an UST is also considered a regulated substance covered by Subtitle I, that fact does not compel the conclusion that citizen suits under §7002(a)(1)(B) are precluded. As evidenced by §7002(b)(2)(B)(i) and (iv), Congress knows how to explicitly preclude citizen suits and to give exclusive remedial authority to EPA when it so chooses; it has not chosen to do so with respect to actions stemming from USTs leaking petroleum. Finally, the court grants the company's motion to strike the individual's request for civil penalties.

Counsel for Plaintiff
Michael J. Maher, Gregory L. Cochran
McKenna, Storer, Rowe, White & Farrug
200 N. La Salle St., 30th Fl., Chicago IL 60601
(312) 558-3900

Counsel for Defendant
Thomas D. Lupo
Seyfarth, Shaw, Fairweather & Geraldson
Mid Continental Plaza
55 E. Monroe St., Chicago IL 60603
(312) 346-8000