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Waldschmidt v. Amoco Oil Co.

ELR Citation: 26 ELR 21368
Nos. 95-1507, 924 F. Supp. 88/42 ERC 1893/(C.D. Ill., 04/23/1996)

The court holds that subchapter IX of the Resource Conservation and Recovery Act (RCRA) does not bar a citizen suit against a gasoline service station operator seeking monetary and equitable relief for the cleanup of petroleum-contaminated soil and groundwater under RCRA §7002(a). The court reexamines its decision in Winston v. Shell Oil Co., 861 F. Supp. 713, 25 ELR 20280 (C.D. Ill. 1994), in which it held that petroleum leaks from underground storage tanks (USTs) are exclusively regulated under RCRA subchapter IX. The court notes that the decision is contrary to every other court that has considered this issue. The court first holds that petroleum contamination from the operator's service station is a solid waste under §7002(a)(1)(B), and notes that this holding is consistent with Winston. The court acknowledges, however, that it "fundamentally misconstrued" the D.C. Circuit's opinion in Edison Electric Institute v. U.S. Environmental Protection Agency, 2 F.3d 438, 23 ELR 21173, (D.C. Cir. 1993). Contrary to the court's conclusion in Winston, the Edison court did not determine that because petroleum is a regulated substance it is not a solid or hazardous waste, nor did the court hold that regulation of leaking petroleum USTs falls exclusively under subchapter IX. Rather, the Edison court concluded that the U.S. Environmental Protection Agency's (EPA's) construction of RCRA finding that subchapters III and IX overlap with respect to petroleum waste is permissible. The court concludes that because it erred by relying on Edison to find that subchapter IX provided the exclusive remedy for petroleum leaks from USTs, it must now determine whether any provisions of subchapter IX prevent a citizen suit under §7002(a). The court notes that § 9006e(a) allows EPA to file a civil action based on a violation of any requirement of subchapter IX. Moreover, §7002(b)(2)(A)-(C) provide the exceptions to a private citizen's right to bring suit pursuant to §7002(a)(1)(B), and none of these exceptions include any provision prohibiting citizen suits based on UST petroleum leaks or spills. The court therefore holds that subchapter IX does not bar a citizen suit under either §7002(a)(1)(A) or (a)(1)(B), and abandons its prior holding in Winston.

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

Counsel for Defendant
David M. Harris
Greensfelder, Hemker & Gale
1800 Equitable Bldg.
10 S. Broadway, St. Louis MO 63102
(314) 241-9090