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Petroleum Waste Sites Revisited: Oiling the Gears of the CERCLA/RCRA Suit

April 1997

Citation: 27 ELR 10172

Issue: 4

Author: Gregory D. Trimarche

One of the more daunting tasks facing environmental practitioners over the past decade or two has been the recovery of cleanup costs and related relief at sites contaminated with petroleum substances. Parties seeking relief face significant hurdles under the federal environmental statutes. The key federal environmental cost-recovery statute, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)1 often provides little help because of its petroleum exclusion. Many litigants thus turn to the Resource Conservation and Recovery Act (RCRA),2 because it has no petroleum exclusion. RCRA § 7002(a)(1)(B) offers private plaintiffs the right to bring citizen suits against persons who have "contributed to" the "disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment."3 This citizen-suit provision has provided one of the most fertile growth areas for plaintiff's rights in environmental cases.4 Recently, however, defendants in RCRA "imminent and substantial endangerment" suits have been arguing that the citizen-suit provision is subject to the five-year "catchall" federal statutory limitations period in 28 U.S.C. § 2462. Unfortunately, as discussed below, a handful of courts have accepted this argument.

This Dialogue will address the two key issues that often determine the viability of suit under these statutes: (1) the breadth of the CERCLA petroleum exclusion; and (2) the extent to which RCRA citizen suits are subject to a statute of limitations. In particular, this Dialogue will focus on Nixon-Egli Equipment Co. v. John A. Alexander Co.,5 in which a district court recently issued an important ruling on these issues that should have broad application to cases involving petroleum-waste sites nationwide. Specifically, as discussed in detail below, the Nixon-Egli court held that in a CERCLA cost-recovery suit, drilling muds, cuttings, and other wastes and byproducts that are not "capable of being refined" are not "petroleum" under CERCLA's petroleum exclusion and, moreover, that the defendant has the burden of proving the applicability of the petroleum exclusion. The court further held that citizen suits under RCRA § 7002(a)(1)(B) are not subject to any specific statute of limitations but, instead, may be time barred only by equitable theories such as laches.

Mr. Trimarche is a partner at Demetriou, Del Guercio, Springer & Moyer, LLP, in Los Angeles, California, where he heads the firm's environmental litigation practice. He represents the plaintiff in Nixon-Egli.

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