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AVONDALE FED. SAV. BANK v. AMOCO OIL CO.

March 19, 1998

Avondale Federal Savings Bank, Plaintiff,
v.
Amoco Oil Company, a Maryland corporation, Defendant.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is Defendant Amoco Oil Company's Motion for Summary Judgment. For the following reasons, Defendant's motion is granted in part, and denied in part.

 I. BACKGROUND *fn1"

 Plaintiff, Avondale Federal Savings Bank ("Avondale"), filed a Second Amended Complaint for Declaratory Judgment and Other Relief against Amoco Oil Company ("Amoco"). In Counts I and II, brought pursuant to the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972, Avondale seeks: (1) recovery of the cleanup costs it incurred investigating and remediating solid or hazardous waste at 300 East Illinois Road, Lake Forest, Illinois ("Property"); and (2) an order requiring Amoco to undertake at its expense "any future action that may be required for residual on-site contamination caused by Amoco's USTs [underground storage tanks] or for contamination that migrated off-site from them." (Pl.'s Resp. at 5.) In Counts III and IV, brought pursuant to state common law, Avondale seeks recovery of the cleanup costs it incurred investigating and remediating solid or hazardous waste at the Property.

 From approximately November 19, 1926, to June 26, 1970, Amoco owned a gasoline service station located on the Property. In 1970, Amoco razed the gasoline service station, including all buildings, driveways, and approaches. On June 26, 1970, Amoco transferred the Property via warranty deed to George W. and Margaret M. Herman ("Hermans") who owned the Property from approximately June 26, 1970, to January 2, 1975. On January 2, 1975, the Hermans transferred the Property via warranty deed to First National Bank of Lake Forest ("First National") who owned the Property from approximately January 2, 1975, to July 1, 1975. On July 1, 1975, First National transferred the Property via warranty deed to Lake Forest Savings and Loan Association ("Lake Forest"). In December of 1982, Lake Forest merged into Avondale, and Avondale acquired title to the Property. Avondale then improved the Property with a parking lot and a building, and used it as a bank.

 In late 1995, in anticipation of selling the Property, Avondale conducted an environmental investigation of the Property. Boelter Environmental Consultants ("Boelter") on November 17, 1995, and EPS Environmental Services, Inc. ("EPS") on April 18, 1996, performed soil borings on the Property. The soil borings allegedly showed that there was petroleum contamination in the Property's soil at concentrations exceeding Illinois' cleanup objectives.

 On January 22, 1996, pursuant to RCRA's mandatory notice provision, 42 U.S.C. § 6972(b)(2)(A), Avondale served Amoco with a 90-day "Notice of Endangerment and Notice of Intent to Sue" ("90-day notice") for contributing to petroleum contamination on the Property that may present an imminent and substantial endangerment. Avondale also notified the necessary governmental officials and agencies pursuant to RCRA's mandatory notice provision to give them an opportunity to file a civil action against Amoco; the governmental officials and agencies did not choose to do so.

 On January 29, 1996, Avondale entered into a Purchase and Sale Agreement with First Chicago Building Corporation ("First Chicago") to sell the Property. As a condition of the purchase of the Property, First Chicago required Avondale to deliver the Property in a clean condition without any contamination and a "No Further Remediation Letter" from the Illinois Environmental Protection Agency ("IEPA").

 On February 12, 1996, Amoco acknowledged receiving the 90-day notice and requested the environmental records and reports referenced in the 90-day notice; Amoco did not concede any liability or offer to remediate any alleged contamination. Avondale promptly provided the requested records and reports to Amoco.

 On March 15, 1996, EPS discovered three USTs allegedly full of gasoline and water; strong petroleum odors allegedly emanated from the soils surrounding the USTs. EPS also allegedly discovered miscellaneous piping, a 45-gallon hydraulic oil reservoir, and a rectangular concrete containment structure on the Property.

 On March 25, 1996, Amoco requested additional information. Amoco, however, did not volunteer to investigate or remediate the alleged contamination, but requested Avondale to perform additional tests and provide complete chemical analyses of specified petroleum markers. Avondale undertook the requested chemical analyses and provided the results on May 9, 1996.

 On May 8, 1996, Avondale filed its original Complaint against Amoco. The 90-day notice period had expired in late April without any acknowledgment of liability or offer by Amoco to perform the necessary remediation of the alleged contamination. Amoco did, however, request to participate in the excavation of the USTs and sampling process.

 After Amoco allegedly refused to remediate the alleged endangerment caused by leaking USTs, Avondale allegedly informed Amoco that it was undertaking remediation and would hold Amoco responsible for the costs. Avondale entered a voluntary cleanup program offered by IEPA under which IEPA provided oversight and approval of Avondale's remediation plan.

 On May 21, 1996, three USTs and associated piping, as well as the 45-gallon hydraulic oil reservoir were uncovered, pumped free of gasoline and water, excavated, cleaned, and transported off the Property. Soil remediation was completed in late 1996. Avondale has remediated the Property to the most stringent standards established by IEPA, the "Tier I Residential Cleanup Objectives."

 On November 20, 1996, IEPA issued a "No Further Remediation Letter" ("IEPA Letter"). The IEPA Letter states that IEPA reviewed the "Remedial Action Completion Report" for the Property and that the remedial action was completed in accordance with the "Remedial Action Plan." The IEPA Letter further states that its issuance "signifies a release from further responsibilities under the [Illinois Environment Protection] Act in performing the approved remedial action and shall be considered prima facie evidence that the remediation site . . . does not constitute a threat to human health and the environment and does not require further remediation under the Act." (Def.'s 12(M) Stmt. at Ex. C.)

 On November 22, 1996, Avondale transferred the Property to First Chicago. Accordingly, Avondale seeks recovery of the cleanup costs it incurred after properly invoking RCRA's statutory process. In addition, Avondale seeks an order requiring Amoco to remediate at its expense any future residual contamination on the Property or off-site migration of contamination therefrom. Avondale maintains that "if excavation is ever performed under the streets adjacent to the Lake Forest Property, petroleum contamination will be found at ...


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