Davies v. National Cooperative Refinery Ass'n

No. 96-1124-WEB (D. Kan. July 12, 1996)

The court denies motions to dismiss Resource Conservation and Recovery Act (RCRA) and state-law claims against an oil refinery operator resulting from groundwater contamination in Kansas. Addressing the motion to dismiss the RCRA claim, the court first holds that plaintiffs failed to identify any specific facts showing that an imminent endangerment to health exists. The fact that their well water contains cancer-causing agents only shows that there would be a risk to health if the water were consumed. It does not address the likelihood at present or in the future that human health will be endangered by actual exposure to hazardous waste. Any imminent risk to plaintiffs' health has been diminished by their awareness that their water should not be consumed and any the availability of an alternative water supply. Plaintiffs may, however, be able to show a risk to health with evidence that other persons might be exposed to or ingest the contaminated water. The court next rejects the refinery operator's suggestion that harm to wetlands or aquatic life is required for an endangerment to the environment, because groundwater would have to be considered part of the environment. Because plaintiffs have alleged and may be able to prove that an imminent and substantial endangerment to health or the environment exists, the court denies the motion to dismiss the RCRA claim. Because uncontroverted facts are undefined at this point, the court declines to consider matters outside the pleadings. The court further holds that RCRA § 7002(b)(2)(C)(iii), which bars a citizen suit when a state is taking certain action under CERCLA, does not bar plaintiffs' action. There has been no showing that the Kansas Department of Health and Environment is engaging in a removal action under CERCLA § 104 or that it is proceeding with a remedial action under CERCLA.

The court next denies motions to dismiss that are based on the doctrines of abstention and primary jurisdiction, because the refinery operator has established none of the prerequisite facts. The court also denies a motion to dismiss that is based on standing. Although the refinery operator contends that plaintiffs' allegations relating to standing are unsupported by the facts, the court refuses to delve into the underlying facts at this stage. Finally, the court holds that it has no basis for declining to exercise supplemental jurisdiction over plaintiffs' state-law claims. The state-law claims are sufficiently related to the RCRA claim that they form part of the same case or controversy, and the court cannot say that the state-law claims will substantially predominate over the RCRA claim. In addition, the court has no basis for concluding that exceptional circumstances and compelling reasons justify dismissal of the state-law claims.

Counsel for Plaintiffs
Charles C. Steincamp
Depew & Gillen
151 N. Main St., Ste. 700, Wichita KS 67202
(316) 265-9621

Counsel for Defendants
Joseph W. Kennedy
Morris, Laing, Evans, Brock & Kennedy
200 W. Douglas, 4th Fl., Wichita KS 67202
(316) 262-2671

[27 ELR 20581]

Brown, J.:

Memorandum and Order

This dispute arises out of an alleged contamination of groundwater underlying plaintiffs' real property near McPherson, Kansas. Count I of the complaint alleges a claim under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a)(1)(B). Count II alleges pendent state-law claims. The matter is now before the court on motions to dismiss filed by the National Cooperative Refinery Association ("NCRA") (Doc. 19) and Coastal Refining & Marketing, Inc. ("Coastal") (Doc. 14).

Facts. In brief, the facts alleged in the complaint are as follows. Davies Communication, Inc., owns and operates a radio station in McPherson County, Kansas. In October of 1993, samples from a water well on the radio station's property showed the presence of petroleum contamination. Sometime thereafter, the Kansas Department of Health and Environment ("KDHE") notified plaintiffs of the presence of cancer-causing constituents in the well and directed them to cease using water from it. Further testing by KDHE revealed extensive petroleum contamination in the aquifer under the property. Plaintiffs allege that defendant NCRA has operated a refinery near the radio station in such a manner as to allow petroleum contamination to escape and pollute the aquifer. Plaintiffs further allege that defendants Coastal and Roman, Inc., have operated a nearby petroleum tank farm that has also caused or contributed to the contamination. Count I, the RCRA claim, alleges that pollution from defendants' facilities "presents an eminent [sic] and substantial endangerment to health and the environment" and requests an order requiring defendants to abate and remediate the pollution caused by their activities. Count II, based on state law, seeks a judgment against defendants for damages in excess of $ 50,000.

Motions to Dismiss. The defendants seeks [sic] dismissal of the complaint based on the following arguments: (1) the court lacks jurisdiction because RCRA authorizes suit only in the event of "imminent and substantial endangerment to health and the environment" and no such condition exists here; (2) the court lacks jurisdiction because defendants are subject to active enforcement by the KDHE; (3) the doctrines of primary jurisdiction and abstention mandate dismissal; (4) the individual plaintiffs have no standing to assert any claims; and (5) the court should decline to exercise its supplementary jurisdiction.

At the outset the court takes note of the general standard governing a motion to dismiss:

When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.

Scheurer v. Rhodes, 416 U.S. 232, 236 (1974). Under the limited review applicable at this stage of the litigation, the accepted rule is that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

1. Imminent and Substantial Endangerment to Health and Environment. RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste. Meghrig v. KFC Western, Inc., 134 L. Ed. 2d 121, 126 (1996). Although chief responsibility for enforcement of RCRA rests with the Administrator of the Environmental Protection Agency, RCRA contains a "citizen suit" provision that permits a private party to enforce its provisions in some circumstances. Id. Section 6972(a)(1)(B) of Title 42, subject to certain exceptions, authorizes private persons to bring suit against any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste "which may present an imminent and substantial endangerment to health or the environment. . . ." Although plaintiffs have alleged the existence of such a condition¹ on the radio station's property, defendants argue that "the uncontroverted facts" show otherwise.

Defendants contend that no "substantial endangerment" exists with respect to either health or the environment. As to health, they contend a "substantial endangerment" does not exist unless there is a population placed at risk by a "pathway of exposure" to hazardous waste at levels above those considered acceptable by the state. (Citing Price v. U.S. Navy, 818 F. Supp. 1323 (S.D. Cal. 1992)). There is no such threat here, defendants argue, because plaintiffs are aware of the contamination, as are other "receptors" in the area, and are now using bottled water for drinking and other purposes. As for endangerment to the environment, defendants assert that none exists because the pollution poses no hazard to any wetlands or aquatic life. Coastal Memo. at 10. Additionally, defendants argue that any potential threat to the environment is not "imminent" because "any contamination [of the aquifer] remains trapped and contained." NCRA Memo. at 9. [27 ELR 20582] In response, plaintiffs argue that the presence of cancer-causing agents in their well water constitutes an existing risk to their health. Additionally, they argue "there is actual harm today to the environment" because pollution from defendants' operations floats atop the Equus beds aquifer—said to be a principal source of usable water in South Central Kansas—and "the threat this pollution causes to this critical aquifer cannot be overstated." Pl. Memo. at 10.

As part of their claim under § 6972(a)(1)(B), plaintiffs must show that a solid or hazardous waste "may present an imminent and substantial endangerment to health or the environment." The requirement of an "endangerment" suggests there must be a condition that creates an unreasonable risk of harm to human health or of harm to the environment. Cf. Webster's Third New Int'l Dictionary 748 (1961) (defining "endanger" as "2: to bring into danger or peril of probable harm or loss . . . ."). See also Foster v. United States, 922 F. Supp. 642, 661 [26 ELR 21327] (D.D.C. 1996) (Imminent and substantial endangerment exists if there is "reasonable cause for concern that someone or something may be exposed to a risk of harm . . . if remedial action is not taken."). The endangerment must be "substantial," which suggests that an exceedingly low risk of harm or a risk of only minor harm will not support an action. The endangerment must be "imminent," which means that it threatens to occur immediately. Meghrig, 134 L. Ed. 2d at 128. The reference to waste which "may present" imminent harm excludes waste that no longer presents such a danger and "implies that there must be a threat which is present now, although the impact of the threat may not be felt until later." Id. (quoting Price v. United States Navy, 39 F.3d 1011, 1019 [25 ELR 20177] (9th Cir. 1994)).

With these principles in mind, the court turns to the endangerment of health alleged by plaintiff. Obviously, hazardous or solid waste is by nature harmful to health when people are exposed to it or ingest it. If the waste is trapped or contained in such a way that exposure (and harm) is foreclosed, however, it could not then be considered an imminent endangerment to health. See Price v. United States Navy, 818 F. Supp. 1323, 1325 (S.D. Cal. 1992), aff'd, 39 F.3d 1011 [25 ELR 20177] (9th Cir. 1994) (no imminent and substantial endangerment existed where concrete barrier blocked the only pathway of exposure to lead contamination). Logically, some evidence of risk of harm from the hazardous waste is required to show that an imminent endangerment to health exists. Plaintiffs argue that the fact their well water contains cancer-causing agents is sufficient. But this only shows there would be a risk to health if the water were consumed. It does not address the likelihood at present or in the future that human health will be endangered by actual exposure to the hazardous waste. As Price suggests, the risk of exposure is part of the equation in determining what constitutes an imminent endangerment to health. Although there is a "pathway" to the contaminated water in this case—namely, the wells on plaintiffs' property—it would seem that any imminent risk to the plaintiffs' health has been diminished by plaintiffs' awareness that their water should not be consumed and by the availability of an alternative water supply. Section 6972(a)(1)(B) requires a threat "which is present now"; it does not cover waste which no longer poses a danger to health. Meghrig, 134 L. Ed. 2d at 128. Of course, a risk to health might be shown by evidence that persons other than plaintiffs might be exposed to or ingest the contaminated water. At this point, however, plaintiffs have not identified any specific facts showing that an imminent endangerment to health exists.²

With respect to the alleged endangerment to the environment, the court first rejects defendants' suggestion that harm to wetlands or aquatic life is required for an endangerment to "the environment." Groundwater would have to be considered part of the "environment" as the latter term is commonly understood. Cf. 42 U.S.C. § 9601(8) (Under CERCLA, the term "environment" includes ground water.). As such, a threat of fresh groundwater being contaminated with hazardous or solid waste could constitute an endangerment to the environment. Having said that, it again must be noted that the focus of § 6972(a)(1)(B) is not on whether hazardous waste has caused harm in the past, but whether it poses a threat of harm now or in the future. Thus, the fact that waste has previously contaminated a portion of the aquifer under plaintiffs' property is not by itself sufficient to support a claim under § 6972(a)(1)(B).³ Cf. Foster, 922 F. Supp. at 661 (Plaintiff must prove "that the risk of threatened harm is currently present at the Site, and that the 'potential for harm is great.'"). The relevant issue is what present or future threat of contamination exists and whether that endangerment is imminent and substantial.

Although defendants' motions are denominated as motions to dismiss pursuant to 12(b)(1), all of the memoranda submitted by the parties contain assertions of fact with references to selected affidavits and depositions. The court can consider matters outside of the pleadings on a motion to dismiss by treating the motion as one for summary judgment under Rule 56. See Fed. R. Civ. P. 12. In this case, however, the parties' assertions of fact are not in the form required by local rule 56.1 and it is impossible to determine with precision the uncontroverted facts. For example, plaintiffs appear to assume that the proximity of waste to the Equus Beds aquifer establishes a threat of future contamination sufficient to support an action. The record contains no supporting facts, however, to quantify this alleged threat.⁴ For their part, defendants argue that "any contamination remains trapped and contained," but no facts are cited to establish that allegation. NCRA Memo. at 9. Because the uncontroverted facts are undefined at this point, the court declines to consider matters outside of the pleadings in ruling on defendants' motions.

Dismissal on the pleadings for failure to state a claim should only be granted if a plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Because plaintiffs have alleged and may be able to prove that an imminent and substantial endangerment to health or the environment exists, the court concludes that the motions to dismiss for failure to state a claim should be denied.

2. Jurisdiction in View of KDHE's "Active Enforcement." Defendants next argue that the court lacks jurisdiction because the KDHE is "actively engaged" in investigating the cause of the groundwater contamination at the South McPherson site. Defendants contend that a citizen suit is barred when governmental enforcement action is under way. The authority cited for this argument is § 6972(b)(2)(C)(iii), which prohibits commencement of a RCRA citizen suit under subsection (a)(1)(B) if a state, "in order to restrain or abate acts or conditions which may have contributed or are contributing to the activities which may present the alleged endangerment—

* * *

(iii) has incurred costs to initiate a Remedial Investigation and Feasibility Study under section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and is diligently proceeding with a remedial action under that Act.

Defendants argue that KDHE has incurred costs in initiating a remedial investigation and feasibility study. NCRA points out that it entered into a consent decree with KDHE in 1988 pursuant to which it agreed to monitor and remediate pollution in the groundwater beneath its refinery. NCRA further states that it is currently negotiating a new consent order with KDHE to replace the earlier one. NCRA Memo. at 3. Coastal states that it has granted KDHE a right of access so the agency can conduct its investigation into the source of the pollution and further asserts that it is currently negotiating a consent order with KDHE. Coastal Memo. at 11.

Defendants have not shown that the statutory bar in § 6972 applies to plaintiffs' claim. Section 6972(b)(2)(C) does not bar a citizen suit whenever a state agency is "engaged"—actively or otherwise—at a site. In subsections (b)(2)(B) and (C), Congress spelled out the specific [27 ELR 20583] circumstances that bar a citizen suit. Subsection (C)(iii) does so when the state is taking certain action under CERCLA. As plaintiffs point out, there has been no showing that KDHE is engaging in a removal action under § 104 of CERCLA or that it is proceeding with a remedial action under CERCLA. Accordingly, the statutory bar in subsection (iii) does not apply.⁵

3. Primary Jurisdiction and Abstention. Defendants next argue that the court should refrain from exercising jurisdiction over the RCRA claim because of the doctrines of primary jurisdiction and abstention. "The doctrine of primary jurisdiction . . . is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties." United States v. Western Pac. R.R. Co., 352 U.S. 59, 63 (1956). It "allows a federal court to refer a matter extending beyond the 'conventional experiences of judges' or 'falling within the realm of administrative discretion' to an administrative agency with more specialized experience, expertise, and insight." Williams Pipe Line Co. v. Empire Gas Corp., 76 F.3d 1491, 1496 (10th Cir. 1996). Defendants argue primary jurisdiction should be invoked because KDHE, which has expertise in environmental matters, is actively addressing the contamination problem. (Citing Friends of Sante Fe County v. LAC Minerals, Inc., 892 F. Supp. 1333 [26 ELR 20135] (D.N.M. 1995).) As for abstention, defendants argue that the RCRA claim should be dismissed under the "Burford" abstention doctrine, which holds that "where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are 'difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar'; or (2) where the 'exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.'" New Orleans Public Service, Inc. v. Council of New Orleans, 491 U.S. 350, 361 (1989).

The courts are divided as to whether the primary jurisdiction and abstention doctrines are appropriately applied in RCRA citizen suits. See Coalition for Health Concern v. LWD, Inc., 60 F.3d 1188, 1193 [25 ELR 21408] (6th Cir. 1995) (abstention appropriate); Space Age Fuels, Inc. v. Standard Oil Co. of California, 1996 WL 160741 (D. Or., Feb. 29, 1996) (abstention appropriate); Friends of Sante Fe County v. LAC Minerals, Inc., 892 F. Supp. 1333 [26 ELR 20135] (D.N.M. 1995) (same); Craig Lyle Ltd. Partnership v. Land O'Lakes, Inc., 877 F. Supp. 476 [25 ELR 21115] (D.Minn. 1995) (abstention inappropriate); Prisco v. New York, 1992 WL 88165 (S.D.N.Y., Apr. 22, 1992) (inappropriate); Middlesex County Bd. of Chosen Freeholders v. State of New Jersey, 645 F. Supp. 715 [17 ELR 20475] (D.N.J. 1986) (inappropriate).

Whatever discretion the court has in applying abstention or primary jurisdiction should be exercised cautiously where, as here, Congress specifically set forth the circumstances under which state or administrative action would preclude the federal claim. See § 6972(b)(2)(C). Cf. Sierra Club v. United States Department of Energy, 734 F. Supp. 946, 951 [20 ELR 21044] (D.Colo. 1990) (delay to permit agency action would defeat Congress' intent to allow citizen enforcement when there is no diligent prosecution in court). The statutory bar in subsections (b)(2)(B) & (C) is clearly based on a consideration of factors similar to those at issue in questions of abstention and primary jurisdiction. Moreover, the court notes that Congress made the statutory bar in § 6972 applicable when the EPA issues administrative orders or enters into consent decrees pursuant to which a responsible party is diligently remedying the endangerment, but did not include a similar provision for actions taken pursuant to administrative orders or consent decrees issued by state agencies. Compare §§ 6972(b)(2)(B)(iv) & (b)(2)(C). This suggests that Congress intended the citizen-suit enforcement provision to remain available in the event that a state agency's response to an imminent hazard is inadequate.

Nevertheless, the court concludes that abstention or primary jurisdiction might be justified in some circumstances. To read § 6972(b)(2) as precluding abstention over a citizen suit while a state administrative agency pursues a diligent remedial effort could undermine Congress' stated objective of establishing a federal-state partnership to carry out the purposes of RCRA. See 42 U.S.C. § 6902(a)(7). It would also make little practical sense. If the court takes jurisdiction of a matter in midstream of the administrative process, there is a good chance the result will either be a needless duplication of the agency's efforts or conflicting orders as to how to go about remedying the situation. See Friends of Sante Fe County, 892 F. Supp. at 1350. If the prerequisites of subsection (b)(2)(B)(iv) were shown to be satisfied in all respects except that the responsible parties were acting under a state agency administrative order instead of an EPA order, the court would be hard-pressed to see what federal interest would be harmed by abstaining while remedial action diligently progressed under state supervision. Similarly, if the state agency were diligently proceeding with a remedial action but was acting under a state hazardous waste law rather than under CERCLA (cf. § 6972(b)(2)(C)(ii)), deferral of this court's equitable jurisdiction might be the best course absent a showing that the state response falls short of what would be required under federal law.

As the foregoing indicates, the court does not rule out the possibility of abstaining or invoking primary jurisdiction in this case to permit the state agency to remedy the problem. But such action would clearly be inappropriate on the record now before the court. Before the court could consider abstention on the basis of KDHE consent orders, defendants would have to show several prerequisite facts. First, defendants would have to demonstrate that they are in fact subject to a KDHE administrative order (including a consent order). (That a defendant may be "currently negotiating" with KDHE is not a sufficient reason for this court to abstain.) Second, defendants would have to demonstrate that pursuant to the administrative order they or KDHE are diligently conducting an appropriate removal action, RIFS, or remedial action to abate the hazard. Whether or not such actions are being taken "diligently" is a question of fact. The court notes that none of the materials submitted with the motions to dismiss appear to contain any timetable for remedial action. Cf. Friends of Sante Fe County, 892 F. Supp. at 1350 (Administrative delay constitutes reason to retain jurisdiction.) Third, defendants would have to show that the plaintiffs' property is included within the scope of the consent order.

Insofar as the current motions to dismiss are concerned, none of the foregoing facts are established by the record. Accordingly, defendants' motions to dismiss based on abstention and primary jurisdiction are denied.

4. Standing of the Individual Plaintiffs. Defendants next argue that Jerry and Diane Davies lack standing because these individuals are not the owners of the property in question, they do not claim to have suffered any personal injury as a result of the pollution, and they would not benefit by any prospective RCRA relief. In response, plaintiffs argue that Mr. and Mrs. Davies, as officers of Davies Communication, have taken the necessary steps to obtain an alternate water supply for their employees. Additionally, they claim that they face personal liability to the employees for any adverse health effects the employees might suffer from having consumed contaminated water.

Standing requires a showing of at least three elements: first, the plaintiff must have suffered an "injury-in-fact"—an invasion of a legally protected interest which is: (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 [22 ELR 20913] (1992).

The court concludes that the motion to dismiss based on standing should be denied. Although defendants contend that the plaintiffs' allegations relating to standing are unsupported by the facts, the court will not delve into the underlying facts at this stage. As the Court stated in Lujan, "at the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we 'presume that general allegations embrace those specific facts that are necessary to support the claim. . . .'" Lujan, 119 L. Ed. 2d at 364. "In response to a summary judgment motion, [27 ELR 20584] however, the plaintiff can no longer rest on such 'mere allegations,' but must 'set forth' by affidavit or other evidence 'specific facts,' . . . which for purposes of the summary judgment motion will be taken as true. And at the final stage, those facts (if controverted) must be 'supported adequately by the evidence adduced at trial. . . .'" Id.

5. State-Law Claims. Defendants' final argument is that the court should dismiss the state-law claims asserted by plaintiffs in this action. According to defendants, plaintiffs filed identical state-law claims against them in McPherson County, Kansas, in October of 1995, and discovery has been proceeding in that case. Defendants argue that it would further judicial economy to permit the state-law claims to be tried in state court.

Generally, when a federal district court has original jurisdiction over a claim it "shall have" supplemental jurisdiction over all other claims that are so related to the federal claim that they form part of the same case or controversy. 28 U.S.C. § 1367(a). A district court may decline to exercise supplemental jurisdiction over state-law claims in certain circumstances, including when "(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, * * * or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction."

The state-law claims in this case are sufficiently related to the RCRA claim that they form part of the same case or controversy. Based on the record before it, the court cannot say that the state-law claims will "substantially predominate" over the RCRA claim. Although the state claims involve questions of monetary damages which are not a part of the RCRA claim—the predominate issues in terms of proof in both claims will likely be the questions of who caused the pollution, what the extent of it is, and what is the appropriate remedial design. Thus, the exception in § 1367(c)(2) is not satisfied. Nor does the court have any basis for concluding that "exceptional circumstances" and "compelling reasons" justify dismissal of the state-law claims. See § 1367(c)(4). The court does note that Congress was concerned the federal courts might become bogged down in state-law issues when dealing with RCRA claims. On that subject Congress stated its expectation that the federal courts will "exercise their discretion concerning pendent jurisdiction in a way that will not frustrate or delay the primary goal of this provision, namely the prompt abatement of imminent and substantial endangerments." Furrer v. Brown, 62 F.3d 1092, 1099 [25 ELR 21450] (8th Cir. 1995) (quoting H.R.Rep.No. 198, 98th Cong., 2d Sess., pt. 1, at 53 (1984), reprinted in 1984 U.S.C.C.A.N.5576, 5612.) The court does not anticipate that the state law claims in this case will delay the disposition of the RCRA claim. Accordingly, the court has no basis for declining to exercise supplemental jurisdiction.

Conclusion

Defendants National Cooperative Refinery Association ("NCRA") and Coastal Refining & Marketing, Inc.'s Motions to Dismiss (Docs. 14, 19) are hereby DENIED.

1. The complaint actually alleges an "eminent" and substantial endangerment. Because this is clearly a typographical error, the court will not dismiss the complaint for failure to properly allege the elements of a RCRA claim.

2. This is not to suggest that the contamination of plaintiffs' groundwater or the fact that they have been forced to obtain water from an outside source is inconsequential. Plaintiffs may very well have a legal remedy under state law for this alleged injury, but that is not the issue before the court. The question here is whether the condition presents an imminent and substantial danger to human health.

3. Plaintiffs' singular reliance on the fact that contamination has already occurred is misplaced. Unlike CERCLA (42 U.S.C. §§ 9601 et seq.), RCRA is not principally designed to effectuate the cleanup of toxic waste sites or to compensate those who remedy environmental hazards. Meghrig v. KFC Western, Inc., 134 L. Ed. 2d 121, 126 (1996). Rather, RCRA's primary purpose is "to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, 'so as to minimize the present and future threat to human health and the environment.'" Id. (quoting 42 U.S.C. § 6902(b)).

4. The court takes note of plaintiffs' assertion that the pollution "threatens the water supplies of a large portion of the residents of Kansas." Pl. Memo. at 4. If proven, of course, such a threatwould constitute an endangerment both to health and environment.

5. As plaintiffs point out, CERCLA does not apply to the pollution in this case because of the petroleum exclusion in that act. See 42 U.S.C. § 9601(33).