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Aurora Nat'l Bank v. Tri Star Mktg., Inc.

ELR Citation: 28 ELR 21230
Nos. 96-C-4175, 990 F. Supp. 1020/46 ERC 1433/(N.D. Ill., 01/15/1998)

The court holds that property owners could proceed under either a general or alternative liability theory in a Resource Conservation and Recovery Act (RCRA) suit against former operators of a gasoline station on their property. The court first holds that it does not possess enough information to make a definitive judgment on whether the owners would succeed in their RCRA §7002(a)(1)(A) claim against the last operator. Although it is clear that the last operator was obligated to investigate and take corrective action in conjunction with its closure of underground storage tanks (USTs) located on the property, it is less clear whether the last operator was relieved of its legal obligations by the owners' conduct.

The court next holds that in order to establish general liability under RCRA §7002(a)(1)(B) the owners must demonstrate that two of the defendant-operators were responsible for gasoline leaks that occurred during the periods when each operated the gasoline station on the property. If the owners cannot prove that the leaks at issue occurred during the tenancies of the two defendant-operators, the chain of causation would not necessarily extend to these defendant-operators, and there is no reason why they should be held responsible for the cleanup. Thus, far the owners have not attempted to make this showing.

The court then holds that the owners must add the original operator as a defendant in order to employ the alternative liability theory, which shifts the burden to the operators to show that the contamination did not occur during their respective periods of operation of the gasoline station. The court rejects the owners' argument that the first operator need not be joined as a defendant because it was not subject to RCRA regulations when it conducted operations on the property. RCRA §7002(a)(1)(B) applies retroactively to create liability for any person who has contributed to the past or present storage of solid waste. The court then holds that the evidence presented thus far would create a genuine issue of material fact as to whether the defendant-operators are liable for contributing to contamination under an alternative liability theory. The owners have proffered evidence with respect to defendant-operators that would permit them to establish their prima facie case by showing that the contamination occurred during the period of the operators' collective operation of the gasoline station. In turn, defendant-operators claim that they did not use some of the contaminated systems and assert that they are able to proffer some evidence that the systems they did use always tested "tight" during their tenancies.

The court next rejects defendant-operators' argument that the owners cannot attempt to hold them strictly liable for the entire site remediation under RCRA because the owners' passive behavior has contributed to the contamination. Although it may reasonably be said that owners' passive behavior helped to cause the leakages in question, this is not enough to establish liability under the contributing language of RCRA §7002(a)(1)(B).

Counsel for Plaintiffs
Stephen D. Sharp
Law Offices of Stephen D. Sharp
221 N. La Salle St., Chicago IL 60602
(312) 357-0044

Counsel for Defendants
Richard L. Reinish
D'Ancona & Pflaum
30 N. La Salle St., Ste. 2900, Chicago IL 60602
(312) 580-2000