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

Gregory D. Trimarche

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.

[27 ELR 10172]

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.

Overview of Private Rights of Action Under CERCLA and RCRA

CERCLA and RCRA claims offer a variety of advantages over claims under state laws. For example, among other difficulties, state-law claims such as nuisance, trespass, and negligence often bring with them stiffer evidentiary burdens. Moreover, strategic considerations, not the least of which is the potential for the recovery of attorneys fees under RCRA, favor pursuing a claim in federal court. Thus, despite the obstacles, CERCLA and RCRA claims can and must be pursued.

CERCLA's Private Right of Cost Recovery

CERCLA imposes liability on potentially responsible parties (PRPs) for the release of hazardous substances. PRPs are generally defined as past and present owners and operators of the contaminated site and generators and transporters of the wastes that caused the contamination.⁶ CERCLA allows private parties to recover the costs of cleaning [27 ELR 10173] up contamination caused by such releases. Before CERCLA liability can be imposed, the plaintiff must show that: (1) the site at issue is a "facility"; (2) a release or threatened release of a "hazardous substance" has occurred; (3) the defendant is among the four classes of PRPs defined in the statute, and (4) "response costs" have been incurred.⁷

If available, the CERCLA cost-recovery claim typically is the claim of choice among parties seeking relief for environmental injury, not only because of the relatively low evidentiary burden, but also because CERCLA imposes strict⁸, joint and several⁹ liability. Regardless of the degree to which a defendant is culpable, it may be liable for the entire cost of the cleanup unless it qualifies for one of the very narrow defenses to liability available under CERCLA § 107(b).¹⁰

Moreover, CERCLA provides a very liberal statute of limitations. An initial action for cost recovery must be brought within three years after completion of a "removal action" or within six years after initiation of physical on-site construction of a "remedial action."¹¹ In practical effect, there is virtually no statute of limitations for CERCLA actions. CERCLA cost recovery generally is available regardless of when the contamination occurred or when it was discovered, so long as the plaintiff does not sit on its rights too long after cleanup has commenced.

Of course, there are important limits to the scope of relief available to a private party under CERCLA. CERCLA does not allow recovery of monetary damages for injuries such as diminution in value of land, lost profits, personal injuries, or medical monitoring.¹² In addition, CERCLA allows recovery of only investigative and cleanup costs already incurred. It does not provide for injunctive relief. Thus, CERCLA cannot be used to force a PRP to clean up contamination. A landowner seeking relief must investigate and remediate first, and then seek recovery of costs. Finally, CERCLA has no provision for attorneys fees, and has been interpreted not to allow recovery of most litigation-related attorneys fees.¹³

RCRA's Citizen Suit

RCRA § 7002(a)(1)(B) expressly authorizes citizen suits against persons who have contributed to waste disposal that "may present an imminent and substantial endangerment to health or the environment."¹⁴ Under this provision, any person (even a person with no proprietary interest in the contaminated property) may bring an action to abate the endangerment.¹⁵

RCRA's citizen-suit provision applies to "solid and hazardous wastes," which, unlike CERCLA "hazardous substances," may include petroleum in all its forms. Also unlike CERCLA, RCRA expressly gives courts the discretion to award attorneys fees to prevailing parties.¹⁶ Thus, RCRA provides a complementary avenue of relief to CERCLA by allowing claims related to petroleum products; issuance of cleanup orders requiring defendants to investigate and remediate contaminated property; and recovery of litigation-related attorneys fees.

Key Stumbling Blocks in CERCLA/RCRA Suits

The CERCLA Petroleum Exclusion

CERCLA applies only to "hazardous substances." CERCLA defines hazardous substances with broad reference to other federal environmental laws, but specifically excludes from the definition "petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance."¹⁷ This provision is commonly referred to as CERCLA's petroleum exclusion.

The petroleum exclusion extends to all substances that are "indigenous" to petroleum or crude oil, even if such substances are listed as hazardous substances under some other federal environmental statute. "Petroleum" is defined as "an oily flammable bituminous liquid … that is essentially a compound mixture of hydrocarbons of different types with small amounts of other substances (as oxygen [27 ELR 10174] compounds, sulfur compounds, nitrogen compounds, resinous and asphaltic compounds, and metallic compounds) … and that is subjected to various refining processes … for producing useful products."¹⁸

The petroleum exclusion has effectively barred CERCLA cost recovery at many sites involving petroleum contamination. Nevertheless, the petroleum exclusion has been narrowed by various judicial decisions. For example, in Wilshire Westwood Associates v. Atlantic Richfield Corp.,¹⁹ the Ninth Circuit held that the petroleum exclusion applies only to petroleum and its constituents, not to hazardous substances released separately and apart from petroleum. Similarly, in Cose v. Getty Oil Co.,²⁰ the Ninth Circuit held that crude oil tank bottoms do not fall within the petroleum exclusion, because they are never subjected to refining processes and are not used for producing useful products. The petroleum exclusion also has been held not to apply to waste oil or other petroleum substances contaminated through use.²¹

Additionally, in Mid Valley Bank v. North Valley Bank,²² the defendants argued that lead, zinc, and thallium found at a contaminated site were due to petroleum products, and, therefore, that the plaintiff could not recover under CERCLA. In denying the defendants' motion for summary judgment, the district court first found that the waste oil at issue was not subject to the petroleum exclusion, because the CERCLA substances found in the oil had been added to, and were not naturally occurring in, the oil.²³ Next, the court found that since there was evidence to support the plaintiff's argument that the lead contamination was due to the waste oil, the defendants' motion had to be denied.²⁴ Thus, the petroleum exclusion does not extend to hazardous substances that were mixed with petroleum products during release, waste oils to which CERCLA hazardous substances have been added, or substances that are not petroleum (as CERCLA defines that term). Despite this narrowing of the petroleum exclusion, it has remained a problem for plaintiffs.

RCRA Statute of Limitations

Unfortunately for RCRA citizen-suit plaintiffs, a handful of federal courts have held that 28 U.S.C. § 2462, the five-year "catchall" federal statute of limitations generally applicable to civil penalty and forfeiture actions, also applies to certain RCRA citizen suits.²⁵ Section 2462 provides, in pertinent part, that "an action, suit, or proceeding for the enforcement of any civil fine, penalty or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued." The above-mentioned courts determined that because RCRA contains no express limitations period, § 2462 should apply to RCRA citizen suits, essentially as a "default" statute of limitations. RCRA citizen-suit defendants now routinely raise this statute of limitations as a defense. To date, no appellate court has addressed the issue.

Nixon-Egli: Oiling the Gears of the CERCLA/RCRA Suit

As mentioned earlier, the Nixon-Egli decision addressed both the petroleum exclusion and the limitations period applicable to RCRA suits. On both issues, the court ruled in favor of the plaintiff. The court's analysis in Nixon-Egli should have broad application to cases involving petroleum waste sites nationwide.

The Nixon-Egli action concerns a former oil field in Santa Fe Springs, California, contaminated with petroleum hydrocarbons, metals and metal compounds, and other hazardous substances. The defendants include the developer and various subcontractors who converted the former oil field into commercial warehouse property in the early 1970s. The plaintiff, Nixon-Egli Equipment Co., is the current owner of the property.

Nixon-Egli alleged that the defendants contaminated the property by spreading oil-field wastes and other hazardous substances throughout the property in connection with the grading and filling operations during development. Nixon-Egli asserted claims under CERCLA, RCRA, the California Hazardous Substances Account Act (HSAA), and common law. The defendants brought a partial summary judgment motion, alleging that CERCLA's petroleum exclusion barred the CERCLA and HSAA claims and that 28 U.S.C. § 2462 barred the RCRA claim.

CERCLA: Scaling Back the Petroleum Exclusion

In Nixon-Egli, the court followed and expanded on Cose and the other cases discussed earlier in connection with Cose. Nixon-Egli alleged and produced evidence showing that much or all of the contamination had been caused during development of the site from a former oil field into commercial warehouse property. Specifically, the plaintiff produced evidence to show that the defendants (the former owner and developer of the property and various contractors who had graded the site or otherwise participated in the development) had excavated old oil sumps and then mixed [27 ELR 10175] the wastes from those sumps into the fill soils used to grade the site.

Nixon-Egli produced direct and circumstantial evidence of the release of crude oil tank bottoms, drilling muds, and other petroleum wastes and byproducts at the property. Its expert testified that the documents he reviewed indicated: (1) that oil sumps appeared to have existed on and about the property, and that materials from the oil sumps may have been mixed in with fill soils used in the development of the property; (2) that drilling muds and cuttings typically were disposed of in oil sumps; (3) that lead, chromium, and barium²⁶ were detected at elevated levels in soil samples collected from the property; (4) that the lead levels in the soil were higher than the naturally occurring lead levels in crude oil; (5) that the elevated lead levels likely came from oil-production equipment, pipelines, and/or drilling muds; and (6) that the elevated barium and chromium levels appeared to come from drilling muds and cuttings.

The defendants' expert admitted that drilling muds generally contained mixtures of soil, water, heavy metals, and petroleum substances; that oil sumps typically were used as settling ponds, in that oil would be placed into them, the usable petroleum products pumped out and sent to the refinery, and the waste crude oil "bottoms" left in the ponds; and that the contamination at the property could be due to the mixing of drilling muds and crude oil "bottoms" into the fill soils used to grade the property.

Relying primarily on Cose and Wilshire Westwood, Nixon-Egli argued that the application of the petroleum exclusion depended on whether the petroleum was "clean" (i.e., an unadulterated "product" that can be subjected to the refining process) or "dirty" (petroleum that has become a waste or that has become mixed with other CERCLA hazardous substances through use or disposal). As stated in Wilshire Westwood, "petroleum" is a substance that is or will be subject to the refinery operations.²⁷ Therefore, Nixon-Egli reasoned, because tank bottoms, cuttings, drilling muds and other oily byproducts and wastes are never intended to be refined, to the extent that the petroleum substances present at the property were oil-sump materials such as bottoms, drilling muds, or other wastes or byproducts from exploration and production operations, they were not "petroleum" and were not excluded under CERCLA.²⁸ Conversely, the defendants argued that Cose should be limited to its facts, and that petroleum production byproducts other than tank bottoms should fall within the petroleum exclusion.

In denying the defendants' motion for summary judgment, the Nixon-Egli court held that the Cose analysis for tank bottoms applied to drilling muds, cuttings, and essentially any other petroleum-contaminated substances that, at the time of release, were not capable of being subjected to the refining process. Specifically, the court held that "Cose's reasoning compels the conclusion that drilling byproducts such as the ground soil ("cuttings") and mud used to lubricate the drill ("drilling muds") would not fall within the petroleum exclusion. Like the tank bottoms in Cose, cuttings and muds are never sent for refinement."²⁹ Moreover, the court found that the plaintiff's circumstantial evidence that drilling muds, cuttings, and other nonexcluded waste materials from the oil sumps were disposed of at the site raised an issue of fact that precluded summary judgment.

Notably, Nixon-Egli also argued that under CERCLA, the defendant bears the burden of proving that it is entitled to the petroleum-exclusion defense.³⁰ Of course, defendants' burden of proof on the petroleum exclusion is in addition to defendants' general burden of proof on their summary judgment motion.³¹ The Nixon-Egli court held that the petroleum exclusion is a statutory exception, similar to an affirmative defense, and that, as such, the party seeking the benefit of the exception has the burden of proving its applicability.³² Thus, a PRP seeking to avoid liability has the burden of proof on the applicability of the petroleum exclusion.

Debunking the RCRA Statute-of-Limitations Myth

Nixon-Egli also brought a RCRA claim, partly because of the uncertainty concerning the applicability of CERCLA's petroleum exclusion to the facts of the case, and partly because of the availability of injunctive relief and the possible recovery of attorneys fees under RCRA.

In at least three cases, federal district courts have held that the "catchall" federal statute of limitations generally applicable to civil penalty and forfeiture actions, 28 U.S.C. § 2462, should be applied to certain RCRA citizen suits.³³ Relying on these cases, the defendants brought a motion for summary judgment on the grounds that Nixon-Egli knew or should have known of the existence of its RCRA claim more than five years before filing the action.

In its opposition to the motion, Nixon-Egli argued that a RCRA citizen suit seeking abatement of an imminent and [27 ELR 10176] substantial endangerment could not fairly be deemed an action for the "enforcement of a civil penalty." It also argued that the language of RCRA § 7002(a)(1)(B) demonstrated that Congress intended to allow citizen suits whenever an endangerment exists, regardless of when the waste disposal occurred or was discovered. It argued that the district court cases that the defendants cited were inapplicable or incorrect, and that in KFC Western, Inc. v. Meghrig,³⁴ the only appellate court to address the issue implicitly determined that RCRA is not subject to a statutory limitations period.

In assessing these issues, it is crucial to understand that there are two different citizen suits available under § 7002. On the one hand, § 7002(a)(1)(A) allows citizens to sue operating facilities for ongoing permit violations, and allows the court to enforce the permit requirements and impose civil penalties. To the extent that a § 7002(a)(1)(A) claim seeks to impose civil penalties, one can reasonably argue that the five-year limitations period under 28 U.S.C. § 2462, which expressly refers to civil penalties, should apply.

On the other hand, § 7002(a)(1)(B) allows citizens to sue to force responsible parties to take remedial action to abate conditions that may present an "imminent and substantial endangerment" to health or the environment. Under this provision, a plaintiff can seek injunctive relief, such as an order to force the defendant to clean up contaminated property. This relief cannot fairly be characterized as "the enforcement of any civil fine, penalty or forfeiture, pecuniary or otherwise" within the meaning of 28 U.S.C. § 2462. For the most part, it is this distinction between the types of relief available under the two separate RCRA citizen-suit provisions that causes confusion and, arguably, has resulted in some questionable judicial decisions and even more questionable arguments by defendants in RCRA "imminent and substantial endangerment" suits.

For example, RCRA defendants routinely cite Glazer v. American Ecology Environmental Services Corp.³⁵ in support of their argument that 28 U.S.C. § 2462's five-year limitations period should apply to RCRA § 7002(a)(1)(B) endangerment suits. In Glazer, the plaintiffs brought a § 7002(a)(1)(A) claim against an operating, RCRA-permitted hazardous-waste facility for the enforcement of civil penalties. The court held that the five-year limitations period under 28 U.S.C. § 2462 should apply. Regardless of whether Glazer is correct in applying § 2462 to civil penalty actions under RCRA § 7002(a)(1)(A), the case can have no bearing on "imminent and substantial endangerment" suits under § 7002(a)(1)(B), which do not involve the enforcement of a civil penalty.

Similarly, Bodne v. Geo A. Rheman Co., Inc. and Southern Fuel Co. v. Amoco Oil Co. are of questionable relevance, but for different reasons.³⁶ Unlike Glazer, both Bodne and Southern Fuel involved "imminent and substantial endangerment" claims under § 7002(a)(1)(B). In holding that 28 U.S.C. § 2462 should apply to such suits, the court in Bodne stated:

Numerous courts have held that 28 U.S.C. § 2462 is the relevant federal statute of limitations to citizen actions under environmental statutes. Sierra Club, 834 F.2d at 1521 (citing cases which have held that § 2462 applies to citizen actions seeking the enforcement of civil penalties under the [Federal Water Pollution Control Act], a statute which this court finds is comparable to RCRA).³⁷

The court in Bodne lost sight of the fact that the remedy sought in Sierra Club and the cases cited therein was the enforcement of civil penalties, which are expressly governed by 28 U.S.C. § 2462, as opposed to the equitable injunctive remedies available in "imminent and substantial endangerment" suits under RCRA § 7002(a)(1)(B). While the Bodne court may have found the Federal Water Pollution Control Act (FWPCA) "comparable to RCRA," there can be no question that the relief available in a § 7002(a)(1)(B) "imminent and substantial endangerment" suit is not comparable to a "civil fine, penalty, or forfeiture."

Furthermore, Sierra Club based its application of 28 U.S.C. § 2462 to FWPCA cases on its express determination that § 2462 "clearly applies to [FWPCA] enforcement actions brought by the EPA; such actions are by the government and 'for the enforcement of a civil fine.'"³⁸ The same does not hold true for a RCRA § 7002(a)(1)(B) "imminent and substantial endangerment" claim. Such a claim cannot fairly be characterized as an action "for the enforcement of a civil fine" whether brought by the government or otherwise. Therefore, § 2462 cannot apply to a RCRA § 7002(a)(1)(B) "imminent and substantial endangerment" claim. Interestingly, despite the faulty analysis, the Bodne court's application of § 2462 rendered the plaintiff's "imminent and substantial endangerment" claim timely under § 2462's five-year limitations period.³⁹

In Southern Fuel, the court noted, without analysis, that "Section 2462 is the statute of limitations provision for enforcement of federal civil fines and penalties and states that the action must be commenced within five years from the date when the claim first accrued."⁴⁰ As did the Bodne court, the Southern Fuel court completely missed the distinction between a citizen suit that seeks to impose civil penalties and one that does not. Notably, the Southern Fuel court did not hold the plaintiff's claim time barred. The court held that the determination of when the claim accrued was an issue for the trier of fact, inappropriate for resolution [27 ELR 10177] on a summary judgment motion.⁴¹ Thus, ironically, neither Bodne nor Southern Fuel actually held that a RCRA § 7002(a)(1)(B) claim was barred by 28 U.S.C. § 2462.

The Nixon-Egli court rejected the reasoning of Bodne and Southern Fuel. The court held that with the exception of RCRA suits seeking civil penalties, § 2462 does not apply to RCRA citizen suits. Rather, the court held, RCRA "imminent and substantial endangerment" suits are limited only by the equitable defense of laches.⁴²

Conclusion

The arguments made in Nixon-Egli and the conclusions reached by the court are suitable for broad application. Cose and Nixon-Egli have significantly narrowed the petroleum exclusion, and perhaps justifiably so, given that the exclusion was a political compromise with scant scientific justification. Moreover, the Nixon-Egli court's analysis rejects the dubious arguments made in favor of a statutory limitations period for "imminent and substantial endangerment" suits under RCRA. Nixon-Egli clarified some important issues, and in so doing, removed some significant hurdles for plaintiffs in CERCLA and RCRA suits.

1. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

2. Id. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012.

3. Id. § 6972(a)(1)(B), ELR STAT. RCRA § 7002(a)(1)(B).

4. See, e.g., Zands v. Nelson, 779 F. Supp. 1254, 22 ELR 20757 (S.D. Cal. 1991) [hereinafter Zands I]; Zands v. Nelson, 797 F. Supp. 805, 23 ELR 20340 (S.D. Cal. 1992) [hereinafter Zands II]; Lincoln Properties, Ltd. v. Higgins, 23 ELR 20665 (E.D. Cal. Jan. 18, 1993). Zands I held that where prior property owners left a leaking underground petroleum storage tank in the ground when they sold the property, they could be liable in a RCRA citizen suit as people who "contributed to" the creation of a "solid waste" that "may present an imminent and substantial endangerment to health or the environment," even though they had never operated the underground tank. Zands II held that where the plaintiff has not "contributed to" the "disposal" and all defendants are joined in the action, the burden of proof may be shifted to each defendant to prove that the leakage did not occur during its period of ownership or operation, so that prior owners and operators would escape liability only if they could prove that no leakage occurred while they were owners or operators of the site. Lincoln Properties granted the owner of a shopping center affirmative injunctive relief in the form of a court order to force the dry cleaners who had deposited perchloroethylene into their floor drains to investigate and remediate the contamination.

5. 27 ELR 20584 (C.D. Cal. Aug. 13, 1996).

6. 42 U.S.C. §§ 9607, 9613, ELR STAT. CERCLA §§ 107, 113.

7. Id. § 9607(a), ELR STAT. CERCLA § 107(a). Section 107 is notable for what it does not require plaintiffs to prove. A plaintiff need not produce evidence that defendant's contaminants were the proximate cause of harm at the site. California v. Verticare Inc., 1993 U.S. Dist. LEXIS 3062, at *14 (N.D. Cal. Mar. 2, 1993) (citing United States v. Monsanto Co., 858 F.2d 160, 19 ELR 20085 (4th Cir. Sept. 7, 1988)); United States v. Cauffman, 15 ELR 20161 (C.D. Cal. Oct. 23, 1984). Nor must a plaintiff allege the particular manner in which a release occurred to establish a prima facie CERCLA claim. See Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1153, 19 ELR 20374, 20376 (9th Cir. 1989). Furthermore, a plaintiff need not show any specific causal link between response costs and an individual generator's waste. Transportation Leasing Corp. v. California, 1991 U.S. Dist. LEXIS 20734, at *23 (C.D. Cal. Sept. 24, 1991).

8. CERCLA imposes liability without regard to fault. A PRP (i.e., owner, operator, generator, or transporter) is liable unless the release of hazardous substances was due solely to an act of God, war, or the fault of a wholly unrelated third party. 42 U.S.C. § 9607(b), ELR STAT. CERCLA § 107(b).

9. Although CERCLA does not expressly mandate joint and several liability, the courts have interpreted it as such. E.g., United States v. Chem-Dyne Corp., 572 F. Supp. 802, 13 ELR 20986 (S.D. Ohio 1984).

10. Of course, CERCLA allows only recovery of "response costs" (i.e., cleanup and investigation costs), and these costs must be "necessary" and "consistent with the National Contingency Plan" (NCP). 42 U.S.C. § 9607, ELR STAT. CERCLA § 107.

11. Id. § 9613(g)(2), (g)(3), ELR STAT. CERCLA § 113(g)(2), (g)(3).

12. E.g., Price v. Department of the Navy, 39 F.3d 1011, 25 ELR 20177 (9th Cir. 1994).

13. In Key Tronic Corp. v. United States, 114 S. Ct. 1960, 24 ELR 20955 (1994), the U.S. Supreme Court considered whether attorneys fees incurred in litigating cost-recovery claims under CERCLA might be recoverable as "response costs" despite CERCLA's lack of an express attorneys fee provision. The Court held that a private litigant may not recover, as "response costs," attorneys fees incurred in suing other PRPs, or attorneys fees incurred in preparing and negotiating agreements with EPA. Nevertheless, the Court held that a private litigant can recover attorneys fees incurred in investigating and identifying other PRPs, ensuring NCP compliance, or otherwise assisting in accomplishing site cleanup.

14. 42 U.S.C. § 6972(a)(1)(B), ELR STAT. RCRA § 7002(a)(1)(B).

15. Beyond demonstrating a potential "imminent and substantial endangerment," the only other significant statutory requirement for a plaintiff seeking relief under RCRA § 7002(a)(1)(B) is the notice requirement. No person may bring a § 7002(a)(1)(B) citizen suit until 90 days after giving notice of the alleged endangerment to EPA, the state in which the alleged endangerment may occur, and any person alleged to have contributed to the disposal of waste giving rise to the endangerment. Id. § 6972(b)(2)(A), ELR STAT. RCRA § 7002(b)(2)(A).

16. Id. § 6972(a)(1), ELR STAT. RCRA § 7002(a)(1).

17. Id. § 9601(14), ELR STAT. CERCLA § 101(14).

18. Wilshire Westwood Assocs. v. Atlantic Richfield Corp., 881 F.2d 801, 803, 19 ELR 21313, 21314 (9th Cir. 1989) (citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED (1981)).

19. 881 F.2d 801, 805, 19 ELR 21313, 21315 (9th Cir. 1989).

20. 4 F.3d 700, 23 ELR 21335 (9th Cir. 1993).

21. Mid Valley Bank v. North Valley Bank, 764 F. Supp. 1377, 22 ELR 20614 (E.D. Cal. 1991) (waste oil containing CERCLA hazardous substances does not fall under CERCLA petroleum exclusion); United States v. Mexico Feed & Seed Co., 729 F. Supp. 1250, 20 ELR 20775 (E.D. Mo. 1990) (CERCLA liability imposed for tanks containing waste oil contaminated with polychlorinated biphenyls). EPA's interpretation of the petroleum exclusion is consistent with this case law:

[EPA] interprets the petroleum exclusion to apply to materials such as crude oil, petroleum feedstocks, and refined petroleum products, even if a specifically listed or designated hazardous substance is present in such products. However, EPA does not consider materials such as waste oil to which listed CERCLA substances have been added to be within the petroleum exclusion.

50 Fed. Reg. 13460 (Apr. 4, 1985).

22. 764 F. Supp. 1377, 22 ELR 20614.

23. Id. at 1384, 22 ELR at 20617.

24. Id. at 1385, 22 ELR at 20617.

25. See Glazer v. American Ecology Envtl. Servs. Corp., 894 F. Supp. 1029, 26 ELR 20108 (E.D. Tex. 1995); Southern Fuel Co. v. Amoco Oil Co., 1994 U.S. Dist. LEXIS 15769 (D. Md. Aug. 25, 1994); Bodne v. Geo A. Rheman Co., Inc., 811 F. Supp. 218 (D.S.C. 1993).

26. EPA has listed lead, chromium, barium, and other heavy metals found in the fill soils as hazardous substances pursuant to CERCLA § 102. 42 U.S.C. § 9602, ELR STAT. CERCLA § 102.

27. Wilshire Westwood Assocs. v. Atlantic Richfield Corp., 881 F.2d 801, 803, 19 ELR 21313, 21314 (9th Cir. 1989).

28. Cose v. Getty Oil Co., 4 F.3d 700, 23 ELR 21335 (9th Cir. 1993); Mid Valley Bank v. North Valley Bank, 764 F. Supp. 1377, 1384, 22 ELR 20614, 20617 (E.D. Cal. 1991).

29. Nixon-Egli Equipment Co. v. John A. Alexander Co., (C.D. Cal. Aug. 13, 1996), slip op. at 16 n.7, 27 ELR 20584, 20587 n.7.

30. Ekotek Site PRP Comm. v. Self, 881 F. Supp. 1516, 25 ELR 21131 (D. Utah 1995); accord KN Energy v. Sinclair Oil, 1995 U.S. Dist. LEXIS 15581 (D. Wyo. Aug. 24, 1995); Dartron Corp. v. Uniroyal Chem. Co., 917 F. Supp. 1173, 26 ELR 21056 (N.D. Ohio 1996); see also United States v. Shell Oil Co., 22 ELR 20791 (C.D. Cal. Jan. 16, 1992) (defendant bears the burden of proving each element of any defense to CERCLA).

31. On a summary judgment motion brought by a defendant in a civil action, the initial burden of production lies with defendant. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Because the moving party has the initial burden of establishing that no genuine issues of material fact exist, all doubts must be resolved in favor of the nonmoving party. British Airways Bd. v. Boeing Co., 585 F.2d 946, 951 (9th Cir. 1978), cert. denied, 440 U.S. 981 (1979). Conversely, to survive a motion for summary judgment, the nonmoving party "need not persuade the court that [its] case is convincing; [it] need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact." Premium Plastics v. LaSalle Nat'l Bank, 904 F. Supp. 809, 813, 26 ELR 20681, 20683 (N.D. Ill. 1995) (citing Waldridge v. American Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994). In Premium Plastics, the court found that although the plaintiff's circumstantial evidence of a CERCLA claim was not "overwhelming," it was nevertheless sufficient to withstand summary judgment. Id., 26 ELR at 20683.

32. Nixon-Egli, slip op. at 14-15, 27 ELR at 20586-87.

33. Glazer v. American Ecology Envtl. Servs. Corp., 894 F. Supp. 1029, 26 ELR 20108 (E.D. Tex. 1995); Southern Fuel Co. v. Amoco Oil Co., 1994 U.S. Dist. LEXIS 15769 (D. Md. Aug. 25, 1994); Bodne v. Geo A. Rheman Co., Inc., 811 F. Supp. 218 (D.S.C. 1993).

34. 49 F.3d 518, 522, 25 ELR 20638 (9th Cir. 1995) rev'd on other grounds, 116 S. Ct. 1251 (1996).

35. 894 F. Supp. 1029, 1044, 26 ELR 20108, 20115 (E.D. Tex. 1995). In finding that 28 U.S.C. § 2462 applied to plaintiffs' RCRA claims, the Glazer court relied on two cases involving the enforcement of civil penalties under other statutes, namely the Federal Water Pollution Control Act (FWPCA) and the Clean Air Act. Id., 26 ELR at 20115. In one of those cases, the court specifically found 28 U.S.C. § 2462 applicable to the plaintiffs' FWPCA claims because "citizen suits under the [FWPCA] are brought to enforce a civil fine" and because "plaintiffs in a [FWPCA] citizen suit are acting as an adjunct to government enforcement actions." Public Interest Research Group of N.J. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 74, 20 ELR 21216, 21220 (3d Cir. 1990), cert. denied, 498 U.S. 1109 (1991).

36. Bodne, 811 F. Supp. 218; Southern Fuel, 1994 U.S. Dist. LEXIS 15769.

37. Bodne, 811 F. Supp. at 221 (citing Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1521, 18 ELR 20237, 20239-40 (9th Cir. 1987)) (emphasis added).

38. Sierra Club, 834 F.2d at 1521, 18 ELR at 20329.

39. Bodne, 811 F. Supp at 221. The court held that the five-year federal limitations period should be applied instead of a shorter state-law limitations period and thereby held the RCRA claim timely and proper. Id.

40. Southern Fuel, 1994 U.S. Dist. LEXIS 15769, at *9.

41. Id.

42. In other words, a plaintiff who knew about the alleged endangerment for many years without taking action might be barred from RCRA relief.