The opinion of the court was delivered by: RUBEN CASTILLO
Plaintiff Joseph Dydio ("Dydio") brings this citizen suit against the Hesston Corporation ("Hesston") under the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. § 6901 et seq., as amended (1983 & Supp. 1995), alleging that Hesston is responsible for petroleum contamination resulting from leaking underground storage tanks ("USTs") located on the property now owned by Dydio. Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), Hesston moves to dismiss the complaint.
Dydio's well pleaded allegations, accepted as true on a motion to dismiss, Sidney S. Arst Co. v. Pipefitters Welfare Educ. Fund, 25 F.3d 417, 420 (7th Cir. 1994), are as follows. In November of 1985, Dydio purchased real property located in Elk Grove Village, Illinois. Compl. P 1. From January 1965 through July 1975, the property was owned by the Joseph Goder Building Corp ("Goder").
Id. P 3. Goder installed, operated, and maintained USTs containing petroleum on the property. Id. The USTs were never used after Goder vacated the property on approximately July 10, 1975; Goder was the last entity who owned the USTs immediately prior to discontinuation of their use in 1975. Id. PP 4, 13. In July of 1994, the USTs were determined to be leaking petroleum products. Id. P 8. Petroleum-contaminated soil presently remains on the property. Id. P 9. The petroleum-contaminated soil contains known carcinogens including benzene and ethylbenzene as well as suspected carcinogens including toluene and xylene. Id. P 47. Despite notice provided to Hesston by Dydio, Hesston has refused to undertake corrective action with respect to the contaminated property. Id. PP 16, 21. Finally, Dydio alleges that by failing to undertake corrective actions, Hesston is in violation of regulations promulgated under RCRA. Id. P 22.
Dydio seeks (a) declaratory relief declaring Hesston the "owner" of the USTs located on the property and finding that Hesston has violated (and is in violation of) RCRA; (b) an order directing Hesston to undertake corrective action; and (c) fines in the amount of $ 50,000 per day for each day Hesston violated RCRA, attorney's fees and expenses incurred in bringing this suit, and other relief this Court deems appropriate and just.
Hesston contends that count I of the complaint must be dismissed because (1) it is based on wholly past violations and impermissibly attempts to apply RCRA retroactively; and, (2) Illinois' underground storage tank program supersedes RCRA's underground storage tank provisions. Hesston maintains that count II must be dismissed because petroleum is not a solid or hazardous waste but rather it is a useful product regulated solely by subchapter IX of RCRA and the regulations promulgated thereunder. Finally, Hesston contends that Dydio seeks civil penalties in access of those authorized by RCRA; accordingly, Hesston moves to strike Dydio's inflated civil penalty claim.
HESSTON'S CHALLENGES TO COUNT I
Count I of Dydio's complaint asserts a citizen suit under 42 U.S.C. § 6972(a)(1)(A) which provides:
Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf-
(1)(A) against any person . . . who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter[.]
42 U.S.C. § 6972(a)(1)(A) (hereinafter "Subsection A").
As noted above, Hesston contends that a Subsection A citizen suit may not be maintained to enforce subchapter IX because Illinois operates its own UST program that operates in lieu of and therefore supersedes RCRA. In support of this contention, Hesston has submitted various documents evidencing the existence of a state UST program funded, in part, by federal funds authorized under a cooperative agreement between USEPA and Illinois EPA pursuant to 42 U.S.C. § 6991b(h)(7)(A).
The short answer to Hesston's position is that the statutory provisions authorizing states to exercise authority to undertake corrective actions with respect to petroleum releases (or to cause such corrective actions to be undertaken by owners of USTs) and authorizing cooperative agreements of the sort presented here are entirely separate and distinct from the statutory provisions allowing the Administrator to authorize a state program to operate in lieu of RCRA. Compare 42 U.S.C. § 6991b(h)(7)(A) and 42 U.S.C. § 6991c. Under the latter provisions, the Administer may authorize a state program to operate in lieu of RCRA, after notice and opportunity for public comment, where, inter alia, the requirements of the state program are no less stringent than the corresponding requirements promulgated by the Administrator under RCRA. See 42 U.S.C. § 6991c(b)(1).
Hesston has submitted nothing to suggest that the Administrator has approved an Illinois program to operate in lieu of RCRA-and, indeed, Hesston acknowledges that Illinois' program is not approved by the Administrator. Nevertheless, Hesston argues that the Administrator has provided "constructive authorization" by entering into the cooperative agreement and that Illinois' UST program operates in lieu of the Federal program "for all practical purposes." Def.'s Reply at 1-2. There is no statutory or other support for these contentions and the Court finds them to be wholly without merit. Accordingly, the Court finds that RCRA is not superseded by Illinois' UST program and Hesston's motion to dismiss count I on this ground is, therefore, denied.
B. Present or "Wholly Past Violations "
Hesston's second challenge to count I presents a much more vexing issue-namely, whether the conduct complained of constitutes wholly past violations or present and ongoing violations of RCRA. Relying on Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 98 L. Ed. 2d 306, 108 S. Ct. 376 (1987), and its progeny, Hesston contends that count I is predicated on wholly past violations, and that a Subsection A citizen suit cannot be maintained when it is based on such past violations. Specifically, Hesston notes that the allegations of the complaint indicate that Hesston owned, operated and maintained the USTs at issue during a period ending July 10, 1975 and that the USTs were never used subsequent to that date. Compl. PP 3, 4. Thus, Hesston concludes, Dydio is seeking to bring an action based on wholly past acts. In response, Dydio maintains that the regulations promulgated under RCRA impose corrective action requirements upon the "owner" of a UST and that Hesston is the "owner" and is presently in violation of those regulations.
The corrective action requirements promulgated under subchapter IX of RCRA "apply to all owners and operators of a UST system as defined in § 280.12 [except as otherwise provided in sections having no relevance to this case]." 40 C.F.R. § 280.10(a). Section 280.12 defines "owner" as follows:
In the case of any UST system in use before November 8, 1984, but no longer in use on that date, any person who owned such UST immediately ...