accepted the Illinois program because its requirements are less stringent than federal law but permits it to operate subject to primary federal jurisdiction to seek federal enforcement if EPA chooses. It relies on Dydio v. Hesston Corp., 887 F. Supp. 1037 (N.D.Ill. 1995). Why then, responds defendants, do plaintiffs allege that they are relying upon state law, since the primacy of state law customarily displaces federal law -- particularly since the design of RCRA implies that Congress intended those burdened to be subject to one set of regulations, either federal or state, not both? See G. J. Leasing Co., Inc. v. Union Elec. Co., 825 F. Supp. 1363, 1381 (S.D. Ill. 1993), vacated in part on denial of reconsideration, 839 F. Supp. 21 (S.D.Ill. 1993). In reply, plaintiffs rely again upon Dydio, and refer to counts II and IV as resting on state law. We think that is correct, in a sense. After all, the Illinois program is an Illinois creation. We believe, however, that 42 U.S.C. § 6991b(h)(7)(A) in effect adopts that Illinois creation, at least to the extent it is consistent with federal law, and permits Illinois to enforce its plan as surrogate federal law. We think that is what Judge Castillo had in mind in Dydio. Accordingly, we deny the motion to dismiss counts I through IV on grounds of lack of jurisdiction.
Tri Star, Marathon and Lincoln also move to dismiss counts I through VI as multifarious, citing Brignoli v. Balch Hardy and Scheinman, 645 F. Supp. 1201 (S.D.N.Y. 1986). Plaintiffs respond that proper pleading requires that the bases for different claims for relief be set forth in separate counts and, besides, the motion should at most ask for dismissal of three counts, not six. Here the bases for alternate relief are the same for both. There should be three counts, not six. Rather than cutting down more trees and expending more lawyer time, we think a repleading for such a minor transgression is unwarranted. We suggest that defendants adopt their prior answers as their answer to all the allegations of the three paired counts.
As the above should have foreshadowed, we deny the Rule 11 motion. The fact that we agree more with plaintiffs than with defendants (although we do not wholly agree) does not mean defendants have violated Rule 11. Indeed, the statutory pattern in this area is so complex that courts have great difficulty in discerning their meaning, their interrelationships, and their application, and they often disagree. On the multifarious issue, we agree more with defendants (but not wholly) than we do with plaintiffs.
Before discussing Lincoln's motion to dismiss we describe how Lincoln, according to the complaint, was involved with the property. Lincoln was formerly known as Chronister Oil Company, and we will hereafter refer to that defendant as Chronister. Chronister became a sublessee on November 1, 1979. It temporarily ceased operating the existing service station while it relocated the pump islands, removed the existing fuel dispensers and relocated some of them, installed additional fuel dispensers, relocated the existing canopy, and installed new piping from the existing underground storage tanks (USTs) to the relocated and new fuel dispensers. The old piping was left in the ground. Chronister operated the station until October 1, 1981, when it assigned its rights and duties to Marathon. At that time there were four USTs on the property. Three of them, all gasoline, were replaced in 1989, leaving a kerosene UST. The replacement USTs and the kerosene UST were removed in 1992. The piping Chronister disconnected remains buried on the property.
We turn then to a consideration of 42 U.S.C. § 6972(a)(1)(A) and (B), in light of those allegations. That section, in relevant part, provides as follows:
Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf --