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Organic Chems. Site PRP Group v. Total Petroleum, Inc.

ELR Citation: 28 ELR 21542
Nos. 5:97 CV 168, 6 F. Supp. 2d 660/46 ERC 1412/(W.D. Mich., 02/03/1998)

The court declines to dismiss a suit brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA) by a company seeking to recover remediation costs from the previous owner of a contaminated site. The court rejects the previous owner's claim that the company's suit is barred by the terms of each statute. The court first holds that under CERCLA, the company has clearly alleged sufficient facts of a contamination to survive the previous owner's Fed. R. Civ. P. 12(b)(6) motion. Although some of the substances that spilled, leaked, and were disposed regularly and predictably may fall within CERCLA's petroleum exception, it is also possible that they will constitute hazardous substances under the Act. Similarly, while the previous owner may present evidence that demonstrates it qualifies for a secured creditor exception under CERCLA §101(20), it is possible that the company will prevail on this point as well. Given that the company has stated a prima facie case, the court finds that dismissal in advance of discovery would be premature. The court next holds that the company is not barred by RCRA §6972(b)(2)(B). This bar is only applicable where the government is acting diligently either by pursuing actions noted or by actually engaging in a RCRA §104 removal action. The company has asserted facts from which the court could infer a lack of diligence on the part of the government. The U.S. Environmental Protection Agency has issued two records of decision (RODs), however, it has not taken action on the 1997 ROD addressing soil contamination. The court also holds that the company alleged facts in support of each element of the RCRA claim. Although the previous owner contended that harm cannot be imminent because the company is engaged in remedial activities, the mere fact that cleanup has begun does not itself indicate that the risk of endangerment has been alleviated. Thus, the company has alleged sufficient facts to withstand the motion to dismiss. The court finally holds that the company cannot recover damages for past cleanup costs. Thus, the court grants the previous owner's motion to dismiss insofar as the company attempts to recover past cleanup costs under RCRA. The court reserves the question of what injunctive relief would be appropriate for a later date.

Counsel for Plaintiff
Carlos Leal III, Russell E. Yates
Yates & Leal
455 Sherman St., Ste. 455, Denver CO 80203
(303) 744-7911

Counsel for Defendant
Troy R. Taylor, James G. Fausone
Fausone, Taylor & Bohn
41820 W. Six Mile Rd., Ste. 103, Northville MI 48167
(248) 380-0000