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Avondale Fed. Sav. Bank v. Amoco Oil Co.

ELR Citation: 29 ELR 21001
Nos. 98-2003, 170 F.3d 692/48 ERC 1225/(7th Cir., 03/11/1999) Aff'd

The court holds that the Resource Conservation and Recovery Act (RCRA) bars a current property owner's claim for cleanup costs against the property's former owner. The current owner filed a claim for injunctive relief against the former owner, and then proceeded to clean up the property before relief was ordered. The court first holds that Meghrig v. KFC Western, Inc., 116 S. Ct. 1251, 26 ELR 20820 (1996), precludes the relief sought by the current owner. In Meghrig, the U.S. Supreme Court concluded that RCRA is not directed at providing compensation for past cleanup efforts. Congress deliberately limited RCRA's remedies to injunctive relief—more specifically, injunctive relief obtained before the property is cleaned up, while the danger to health or the environment is imminent and substantial. Neither Meghrig nor RCRA can be read to allow a party to recover cleanup costs. The court next holds that the current owner's claim for an injunction against the former owner to clean up off-site contamination fails because the off-site contamination does not present an imminent and substantial danger. The current owner's own expert testified that petroleum contamination will be found only if excavation is performed.

A judge concurring in part and dissenting in part agrees that the current owner was not entitled to an injunction requiring the former owner to clean up the off-site contamination. However, the judge would hold that RCRA permits a citizen plaintiff to clean up the environmental hazard during the pendency of the lawsuit and, upon a finding of liability against the defendant, obtain an order from the court requiring the defendant to pay the plaintiff an amount equal to the cost the court would have imposed on the defendant for cleanup.

[The district court decision in this litigation is published at 28 ELR 21388.]

Counsel for Plaintiff
Johnine J. Brown
Brown Environmental Group
35 E. Wacker Dr., Ste. 1356, Chicago IL 60601
(312) 236-1450

Counsel for Defendant
Vincent S. Oleszkiewicz
Baker & McKenzie
One Prudential Plaza
130 E. Randolph Dr., Chicago IL 60601
(312) 861-8000

Before Bauer, J., with Wood, J., concurring in part and dissenting in part