ensures that, apart from petroleum, the substances regulated under Subchapters III and IX would not overlap. Id. Once a substance is defined as a hazardous substance under Subchapter III, it is no longer regulated under Subchapter IX falling instead into the domain of Subchapter III. Id.
However, the EPA recognized that a problem arises because Subchapter III defines petroleum as a hazardous waste and yet the kickout provision of § 6991(2)(A) does not apply to petroleum.
Id. The EPA contended, and the Edison court agreed, that the appropriate solution to this problem was to leave regulation of petroleum waste to Subchapter IX to avoid duplication of regulation efforts under Subchapters III and IX. Edison, 2 F.3d at 452. Thus, the Edison court permitted the EPA to temporarily defer regulating petroleum waste under Subchapter III until it sorted out the overlap between Subchapter III and Subchapter IX with regard to the regulation of petroleum leakage from underground storage tanks. Id. at 452-53.
Based on the reasoning of Edison, the Winston court concluded that petroleum underground storage tanks should be regulated only under Subchapter IX. 861 F. Supp. at 717. While this Court agrees with Winston that petroleum leakage from underground storage tanks should be regulated under Subchapter IX, not Subchapter III, this Court does not conclude that regulation of petroleum leakage from underground storage tanks under Subchapter IX prohibits civil enforcement suits under Subchapter VII.
Subchapter VII § 6972(a) allows a private citizen to bring a civil suit against anyone "who has contributed or 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." 42 U.S.C. § 6972(a). Because § 6972(a) allows a private citizen to bring a civil enforcement suit against anyone who is contributing to the disposal of any solid or hazardous waste, this Court finds, contrary to the holding in Winston, that the Edison court's reasoning does not require this Court to conclude that Subchapter IX of the RCRA precludes private civil enforcement suits. The Edison court's conclusion that petroleum leakage from underground storage should be regulated under Subchapter IX, not Subchapter III, (even though petroleum waste might be defined as a hazardous waste under Subchapter III) does not mean that a private citizen cannot bring a civil enforcement suit, pursuant to Subchapter VII, against someone who is contributing to the disposal of petroleum - defined as a solid waste.
The Winston court notes that Subchapter IX defines petroleum as a "regulated substance," see 42 U.S.C. § 6991(2)(B), separate and apart from all other "regulated substances" which are defined as any substance defined in section 9601(14) of this title (but not including any substance regulated as a hazardous waste under subchapter III of this chapter)." 861 F. Supp. at 717. The Winston court notes further that § 9601(14) of the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA") defines "hazardous substance" to exclude petroleum.
From CERCLA's definition of hazardous substance, which explicitly excludes petroleum, the Winston court concludes that petroleum is neither a hazardous or solid waste under RCRA, and thus a private civil enforcement suit is not available under § 6972(a). Id.
Contrary to the Winston court's reasoning, this Court agrees with Zands that CERCLA's exclusion of petroleum from the definition of "hazardous substance" does not mean that RCRA excludes petroleum from its definition of hazardous or solid waste. RCRA, unlike CERCLA, does not explicitly exclude "petroleum" from its definition of hazardous waste or more importantly from its definition of solid waste. Again, this Court notes that, even if Edison counsels that petroleum leakage from underground storage tanks should not be defined as a hazardous waste regulated under Subchapter III, Edison does not prevent an individual from bringing a civil enforcement action, pursuant to Subchapter VII, to enjoin further contamination from petroleum leakage from underground storage tanks where such leakage is defined as a solid waste. Thus, this Court refuses to bar civil enforcement suits under RCRA § 6972(a) for petroleum leakage from underground storage tanks simply because CERCLA excludes petroleum from its coverage.
As the Zands and Dominick's courts noted, even given Edison's direction that petroleum leakage from underground storage tanks should be regulated under Subchapter IX, no section of Subchapter IX prohibits civil enforcement suits. Subchapter IX does permit the Administrator of the Environmental Protection Agency to issue orders requiring compliance with Subchapter IX and to bring a civil action to enforce such orders. Dominick's, 1993 U.S. Dist. LEXIS 17668, 1993 WL 424808 at *3 (citing 42 U.S.C. § 6991e(1)). Subchapter IX also allows states to impose and enforce more stringent regulations. 1993 U.S. Dist. LEXIS 17668, 1993 WL 424808 at *3 (citing 42 U.S.C. § 6991g). However, Subchapter IX contains no provision establishing that Subchapter IX is the exclusive remedy for leaks from underground storage tanks. 1993 U.S. Dist. LEXIS 17668, 1993 WL 424808 at *3. Moreover, Subchapter VII § 6972 expressly recognizes that federal and state governments have enforcement authority and precludes a private civil enforcement action where the Administrator or the State has initiated certain actions. See 42 U.S.C. § 6972(b)(1)(B) and (C). Thus, this Court agrees with the Zands and Dominick's courts that Subchapter IX merely provides additional, not exclusive, means for addressing problems with underground storage tanks. Civil enforcement suits brought pursuant to Subchapter VII § 6972(a) would merely supplement the federal enforcement provisions of Subchapter IX. Because this Court concludes petroleum leakage from an underground storage tank can be defined as disposed solid waste and regulation of underground storage tanks under Subchapter IX does not preclude a civil enforcement action under Subchapter VII § 6972(a)(1)(B), this Court denies ABD Tank's Motion to Dismiss Count I of the Amended Complaint on the basis that civil enforcement actions are not available for petroleum leakage from underground storage tanks.
b. Imminent and Substantial Endangerment to Health or the Environment
Even if § 6972(a) does provide a private cause of action to compel the remediation of soil and ground contamination caused by leaking petroleum, ABD Tank argues that AESIC and Delta Sonic cannot state a claim under § 6972(a) as they have not alleged a substantial and imminent damage to public health or the environment. Contrary to ABD Tank's argument, paragraph 22 of Count I of the Amended Complaint alleges that "the conditions caused by the leaking UST at the Site may present an imminent and substantial endangerment to health or the environment as these terms are defined and described in the [RCRA] . . . in that leaked petroleum products from the UST or UST systems have migrated through the soil and into the groundwater at the Site and onto and through the soil and groundwater at adjacent properties." (Amended Complaint at P 21.)
Despite paragraph 22, ABD Tank focuses on paragraphs 18, 28 and 29 of the Amended Complaint which suggest that the escaping petroleum products have cost AESIC $ 180,222.00 in remedial expenses, $ 275,765.80 in property damage and $ 50,000.00 in related expenses and Delta Sonic over $ 50,000.00 (the amount of its deductible, plus non-covered expenses). According to ABD Tank such paragraphs suggest that AESIC and Delta Sonic brought this action to recoup monies expended for remediation of contamination at the site, and thus no imminent or substantial threat or endangerment to health or the environment exists. Because § 6972(a) does not permit a private citizen to bring a civil enforcement act for damages, ABD Tank argues that this Court should dismiss Count I of the Amended Complaint.
RCRA § 6972(a) states in relevant part,
The district court shall have the jurisdiction . . . to restrain 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 referred to in paragraph (1)(B), [and] to order such person to take such other action as may be necessary . . .
42 U.S.C. § 6972(a). In Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 57 n. 2, 98 L. Ed. 2d 306, 108 S. Ct. 376 (1987), the Supreme Court specifically mentioned the RCRA as an example of an environmental statute that authorizes only prospective relief. Moreover, subsequent cases have specifically held that, while injunctive relief is available under § 6972(a)(1)(B), the statute does not provide a private action for damages. Kaufman and Broad-South Bay v. Unisys Corp., 822 F. Supp. 1468, 1476-77 (N.D. Cal. 1993); Commerce Holding Co. v. Buckstone, 749 F. Supp. 441, 445 (E.D.N.Y. 1990).
Thus, the Court agrees with ABD Tank that AESIC and Delta Sonic cannot bring an action under § 6972(a)(1)(B) to recoup past remediation expenses. However, a close look at the allegations in the Amended Complaint suggest that, while the state law claims, which include paragraphs 28 and 29, may seek to recover remediation expenses, Count I prays for a preliminary and permanent injunction which orders ABD Tank and Xerxes to address the problem of petroleum in the soil and groundwater at the site and to prevent continuing migration of petroleum into the soil and groundwater beyond the site. (Amended Complaint at P 24, Prayer for Relief A.)
Yet, ABD Tank argues that, even if paragraphs 28 and 29 are part of AESIC's and Delta Sonic's attempt to recoup remediation expenses under state law, paragraph 18, which is incorporated in the RCRA claim, suggests that AESIC and Delta Sonic have already cleaned up the site, and thus no imminent or substantial threat to health or the environment exists. Paragraph 18 reads,
The escaping petroleum products have caused great expense to AESIC and Delta Sonic to determine the cause, and to determine the threat and extent of environmental damage, and to remedy the cause and the threat of environmental damage at the Site and at adjacent property, and other serious damage.