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Painwebber Income Properties Three Ltd. Partnership v. Mobil Oil Corp.

ELR Citation: 26 ELR 20677
Nos. No. 92-1839-Civ-T-17B, 902 F. Supp. 1514/(M.D. Fla., 04/28/1995)

The court holds that a plaintiff property owner in a Resource Conservation and Recovery Act (RCRA) §7002(b)(2)(A) citizen suit against the owner of an adjacent service station for damages from petroleum contamination failed to meet §7002(b)(2)(A)'s 90-day notice of endangerment requirement. The court first holds that petroleum is not hazardous waste under RCRA. Congress intended that petroleum be excluded from the definitions of hazardous waste under RCRA, including petroleum in the definition of a regulated substance while excluding it from the definition of hazardous wastes under RCRA. Therefore, because RCRA subchapter III regulates only hazardous wastes, the property owner is not entitled to an exemption under §7002(b)(2)(A) from the RCRA notice requirement. The court dismisses the property owner's RCRA claim, because the notice requirement is not a technical wrinkle or superfluous formality that federal courts may waive at will. The court also dismisses the supplemental state claims, because the U.S. Supreme Court has admonished that pending state-law claims should be dismissed if federal claims are dismissed before trial.

Counsel for Plaintiff
Clifford A. Schulman
Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel
1221 Brickell Ave., Miami FL 33131
(305) 579-0500

Counsel for Defendant
Roger S. Kobert
Mark A. Cohen & Associates
1221 Brickell Ave., Ste. 1780, Miami FL 33131
(305) 375-9292