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AURORA NAT'L BANK v. TRI STAR MKTG.

January 15, 1998

AURORA NATIONAL BANK, as Trustee of Trust No. 53, and MARGARET WOOLWORTH and HAZEL WOLLWERT, as Beneficiaries of Trust No. 53, Plaintiffs,
v.
TRI STAR MARKETING, INC., an Illinois corporation, MARATHON PETROLEUM COMPANY, an Ohio corporation, and LINCOLN LAND OIL COMPANY, an Illinois corporation, Defendants.



The opinion of the court was delivered by: MORAN

 Plaintiffs Aurora National Bank, as Trustee of Trust No. 53, and Margaret Wollwert and Hazel Wollwert, as beneficial owners of Trust No. 53 (property owners), originally brought this action against defendants Tri Star Marketing, Inc. (Tri Star), Marathon Petroleum Company (Marathon), and Lincoln Land Oil Company (Lincoln). In their complaint plaintiffs sought declaratory and injunctive relief under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901 et seq., for alleged violations stemming from defendants' involvement in the operations of a gasoline service station on property that was leased from plaintiffs (Counts I-VI). Plaintiffs also invoked this court's supplemental jurisdiction under 28 U.S.C. § 1332 to make various state law claims for relief (Counts VII-XI).

 On May 15, 1997, this court issued a minute order asking the parties to submit statements of position in order to narrow the legal and factual issues with respect to plaintiffs' RCRA claims. Specifically, the parties were asked to address the following issues: (1) whether some or all of the named defendants are liable for taking corrective action with regard to the petroleum discovered to be present in the soil, backfill and groundwater at plaintiffs' property; (2) whether additional parties need to be added as defendants; and (3) whether it is plaintiffs' or defendants' burden to prove which defendants, if any, are responsible for the contamination. After reviewing the parties' statements it is clear that they are no closer to agreement on any of these issues than they were before. For this reason we here attempt to sort out, as best we can, what happened, when it happened, and where that legally leads -- not necessarily conclusively, but in all probability. We will therefore evaluate the parties' arguments as we would if we were reviewing them on a motion for summary judgment.

 BACKGROUND

 At issue in this case is assigning liability under the RCRA for remediating contamination on plaintiffs' property. In 1959, plaintiff property owners leased the property to North States Oil, a now defunct company not a named defendant in this lawsuit. North States Oil operated a gas station on the property from 1959 until September 30, 1981. In 1959, North States Oil installed three steel gasoline underground storage tanks (USTs) on the property that were in existence until 1989. According to plaintiffs there was also a kerosene UST in place on the property during the tenancy of North States Oil.

 On October 17, 1979, the property owners entered into the prime lease with North States Oil, under which all subsequent lessees were obligated. The prime lease made the lessee liable for property damage and required it to carry insurance against property damage in the amount of at least $ 100,000. It provided that

 
at the termination of this lease or any extension thereof, all buildings, improvements, changes, and additions upon the premises shall remain and become the property of Lessor, excepting such trade fixtures as Lessee can remove without injury to the premises. It being agreed that upon the removal of such trade fixtures, the premises shall be placed by Lessee in the condition in which they were prior to the affixing of such trade fixtures to the premises.

 Cplt. Ex. 1, P6).

 Chronister took an assignment of sublease from North States Oil on October 29, 1979, and operated a gasoline station on the property from October 29, 1979, to October 1, 1981. Plaintiffs allege that Chronister used the four USTs (three gasoline, one kerosene) that North States installed, although defendants dispute that the kerosene UST was on the property when Chronister took over the lease. During Chronister's tenancy it undertook substantial alterations of the property. Plaintiffs allege that Chronister relocated the dispenser islands and installed new piping to connect the USTs to the dispenser islands. The old piping was disconnected but not removed. Defendants agree that Chronister disconnected and replaced the old lines (which they claim were never used by Chronister) running from the USTs to the service islands. They also agree that the old lines were not removed from the ground, and assert that the reason for the installation of new lines was that there were problems with the old lines. They further state that Chronister replaced the pumps and dispensers and added a new canopy over the site. Finally, defendants state that Chronister tested its new tanks and lines and found that there were no leaks.

 Marathon took an assignment of sublease from Chronister on October 1, 1981, and an assignment of the prime lease from North State Oil's shareholders on March 15, 1982. Plaintiffs allege, and defendants do not dispute, that Marathon did not operate the gasoline station during this time, instead engaging Tri Star to do so.

 Tri Star took an assignment of sublease from Marathon on December 1, 1985. Tri Star operated the gasoline station until sometime before June 1, 1992, when it vacated the property. Tri Star states that when it took over the property it immediately implemented its system for detecting product loss. It hired an independent firm to periodically test the tanks and the lines for tightness. During Tri Star's possession the tanks and lines were tested ten times, and each time the test revealed the system was "tight."

 Before vacating the property in 1992, Tri Star removed the new fiberglass USTs and, according to plaintiffs, removed the kerosene UST as well. Tri Star states that when it excavated the USTs and vacated the property it attempted to investigate the nature and extent of any contamination and make any remediation efforts required by UST laws, including the RCRA and its implementing regulations, as well as the Illinois UST laws and regulations. See 415 ILCS § 5/57 et seq., 35 Il. Admin. Code Parts 731, 732. Tri Star claims it was unable to fully comply with its UST obligations because plaintiffs would not allow further access to the property unless Tri Star agreed to make continued rent payments.

 Petroleum contamination now exists in the soil, backfill, and groundwater at the property. Plaintiffs allege that contamination was discovered in the vicinity of the old piping that Chronister left behind, the second set of piping that Chronister installed, and the new piping that Tri Star installed. Plaintiffs also allege that contamination was found around the dispenser islands that Chronister installed and in the vicinity of the old steel USTs. Tri Star asserts that the area containing Tri Star's tanks was clean and petroleum product was only detected in the area of the lines in the pump islands. It further asserts that no contamination was found in the gravel surrounding the lines Chronister installed, although it concedes that contamination was detected by odor in the clay trenches.

 Tri Star has offered to remediate the site in accordance with the Illinois EPA (IEPA) Leaking Underground Storage Tank (LUST) program. Plaintiffs have rejected this offer to the extent that it would relieve defendants of any responsibility for past and future rental payments or attorney fees incurred up to this point.

 DISCUSSION

 Counts I through VI of plaintiffs' complaint were brought under the citizen suit provision of the Resource Conservation and Recovery Act (RCRA), which provides in relevant part as follows:

 
§ 6972. Citizen Suits
 
(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. . .who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has ...

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