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WALDSCHMIDT v. AMOCO OIL CO.

April 23, 1996

RUSSELL L. WALDSCHMIDT AND MAGNA BANK, AS TRUSTEE UNDER TRUST AGREEMENT DATED NOVEMBER 11, 1988, AND KNOWN AS TRUST NUMBER 88-599, PLAINTIFFS,
v.
AMOCO OIL COMPANY, A MARYLAND CORPORATION, DEFENDANT.



The opinion of the court was delivered by: McDADE, District Judge.

ORDER

Before the Court is Defendant's Motion to Dismiss. [Doc. # 6]. Plaintiffs have filed a response in opposition. [Doc. # 9]. For the following reasons, Defendant's motion is denied.

BACKGROUND

Plaintiffs — Magna Bank as trustee and Russell L. Waldschmidt as the sole beneficiary — have filed an action against Defendant Amoco as a lessee of property located at 7817 N. Knoxville Avenue, Peoria, Illinois. Defendant leased this property for the purpose of operating a gasoline service station from 1957 until July of 1995.*fn1 As part of the construction of the service station, underground storage tanks ("UST"), pumps, and piping systems were installed at the property. Environmental testing done at the site revealed petroleum contamination of the soil and groundwater.*fn2 Although Defendant removed some of the contaminated soil, substantial quantities of contaminated soil and groundwater remain at the site. In order to cure and/or alleviate this contamination, Plaintiffs seek monetary and equitable relief pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq., ("RCRA") and Illinois common law.*fn3

LEGAL STANDARD

A complaint should not be dismissed unless it appears from the pleadings that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). For purposes of a motion to dismiss, the complaint is construed in the light most favorable to the plaintiff and the factual allegations are taken as true. Northwest Airlines, Inc. v. Transport Workers Union of America, AFL-CIO, 451 U.S. 77, 81 n. 3, 101 S.Ct. 1571, 1575 n. 3, 67 L.Ed.2d 750 (1981) (citing Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). In addition, a complaint must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984) (quoting Sutliff, Inc. v. Donovan, Co., 727 F.2d 648 (7th Cir. 1984)), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985). A plaintiff does not need to set out in detail the facts upon which the claim is based, it is sufficient to allege facts outlining the cause of action. Marmon Group, Inc. v. Rexnord, Inc., 822 F.2d 31, 34 (7th Cir. 1987) (quoting Doe v. St. Joseph's Hosp., 788 F.2d 411, 414 (7th Cir. 1986)).

ANALYSIS

Section 6972(a)(1)(A)

Plaintiffs have premised their federal claims on the citizen suit provisions of RCRA, 42 U.S.C. § 6972(a). One portion of RCRA's citizen suit provision subsection 6972(a)(1)(A) provides:

(a) In general

  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 (including (a) the
  United States, and (b) any other governmental
  instrumentality or agency, to the extent permitted
  by the eleventh amendment to the Constitution) 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). The only basis Defendant provides to dismiss Plaintiff's claims under section 6972(a)(1)(A) is that petroleum leaks from USTs are exclusively regulated under subtitle IX of RCRA such that a citizen suit is not available. In support of its position, Defendant relies on this Court's opinion in Winston v. Shell Oil Co., 861 F. Supp. 713 (C.D.Ill. 1994), which held that petroleum leaks from USTS are exclusively regulated under subtitle IX*fn4 of RCRA, 42 U.S.C. § 6991, et seq., and, as a result, are not subject to the citizen suit provision of RCRA. As discussed below, the Court — having reconsidered its decision in Winston — concludes that petroleum leaks from USTs are not exclusively ...


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