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SINGER v. BULK PETROLEUM CORP.

June 11, 1998

HORTENSE SINGER, Plaintiff,
v.
BULK PETROLEUM CORP., Defendant.



The opinion of the court was delivered by: ALESIA

MEMORANDUM OPINION AND ORDER

 Before the court is defendant Bulk Petroleum Corporation's motion to dismiss plaintiff Hortense Singer's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the court denies in part and grants in part defendant's motion to dismiss.

 I. BACKGROUND

 The complaint alleges the following facts which, for the purpose of ruling on this motion, are taken as true. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). Plaintiff Hortense Singer ("Singer") is the successor in interest to the JLS Corporation ("JLS"). Singer owns the real property located at the northwest corner of the intersection of Route 56 and Route 59 in Warrenville, DuPage County, Illinois ("the subject property").

 On March 1, 1963, JLS Corporation leased the subject property to defendant Bulk Petroleum Corporation ("Bulk"). *fn1" The lease was for "the purpose of the sale and storage thereon of gasoline, petroleum and petroleum products, and at Lessee's option for the conduct of any other lawful business thereon." Pursuant to this lease, Bulk leased a fully equipped gas station facility, which included three underground storage tanks ("USTs"). The term of the lease was for a period of fifteen years, commencing on March 1, 1963 and ending on February 28, 1978, with a five year option to extend.

 Beginning in November of 1967, with JLS' consent, Bulk began to demolish and remove the existing gas station facility and began to construct a new gas station facility. This included constructing three new USTs and taking the three old USTs out of service. Unbeknownst to JLS, Bulk did not remove the three old USTs after taking them out of service but, rather, simply covered over them.

 At the end of the fifteen year lease, Bulk exercised its option and extended the lease term to February 28, 1983. Near the end of the extended term, Bulk advised JLS that it would terminate the lease effective February 28, 1983 and that the equipment in place at the gas station "included two 8,000 gallon underground storage tanks and one 10,000 gallon storage tank."

 In June of 1994, the three registered USTs, the USTs installed by Bulk, were taken out of service. Investigation of the three USTs at the site revealed that each of the USTs may have been leaking. These three registered USTs were removed on January 19, 1995. The Illinois Office of the State Fire Marshal declared the site a "major" release incident due to contamination.

 During the removal of the three registered USTs, the previously unknown USTs ("orphan USTs") were discovered. The orphan USTs were removed in January and June of 1995. The orphan USTs were the USTs in use at the beginning of Bulk's lease term, which were subsequently taken out of service and covered up by Bulk. Investigation of the three orphan USTs revealed that each of those USTs might have been leaking.

 As a result of Bulk's failure to remove the USTs, Singer has incurred over $ 75,000 in costs in investigating and removing the USTs. Further, leaked petroleum products have migrated through the soil and petroleum contamination remains in the soil and groundwater near the site, which requires clean up and/or remediation.

 On November 6, 1997, Singer filed this five-count complaint against Bulk, asserting claims for violations of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901-6992k, and the Illinois Environmental Protection Act ("IEPA"), 415 ILL. COMP. STAT. § 5/21(e), negligence, contractual indemnity, and restitution. The court has subject matter jurisdiction over Singer's claims pursuant to 28 U.S.C. §§ 1331 and 1367 and 42 U.S.C. § 6972(a).

 This matter is currently before the court on Bulk's motion to dismiss Singer's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Bulk makes several arguments as to why Singer's complaint should be dismissed, each of which the court addresses below.

 II. DISCUSSION

 A. Standard of Review

 When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Cromley v. Board of Educ. of Lockport, 699 F. Supp. 1283, 1285 (N.D. Ill. 1988). If, when viewed in the light most favorable to the plaintiff, the complaint fails to state a claim upon which relief can be granted, the court must dismiss the complaint. See FED. R. CIV. P. 12(b)(6); Gomez v. Illinois State Board of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). However, the court may dismiss the complaint only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 B. Count I -- Singer's claim under the RCRA

 Count I is Singer's claim against Bulk for violations of section 6972(a)(1)(B) of the RCRA. Section 6972(a)(1)(B) permits a private party to bring suit against any person, including any past or present owner or operator of a storage facility, "who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." 42 U.S.C.A. § 6972(a)(1)(B). Subsection (a)(1)(B) authorizes suits against all past or present owners or operators. See Aurora Nat'l Bank v. Tri Star Marketing, Inc., 955 F. Supp. 894, 897 (N.D. Ill. 1997); Buch v. Guettler, 1996 U.S. Dist. LEXIS 9361, No. 95 C 50292, 1996 WL 377168, at *3 n.3 (N.D. Ill. July 3, 1996). Singer's complaint alleges that Bulk, as a lessee, was a past operator of the USTs. Accordingly, subsection (a)(1)(B) permits Singer to bring suit against Bulk as a past operator.

 Bulk, however, argues that Count I fails to state a claim for two reasons. Bulk's first argument is that the complaint fails to allege that Bulk is either an "owner" or an "operator" as defined by the RCRA. Bulk's second argument is that the complaint fails to allege sufficiently the existence of a "substantial and imminent endangerment." The court addresses each of Bulk's arguments in turn.

 Bulk first argues that Singer's RCRA claim should be dismissed because the complaint fails to allege that Bulk was either an "owner" or an "operator" as defined by section 6991 of the RCRA. Singer contends that Bulk's argument is misplaced because the definitions provided in section 6991 apply only to the subchapter IX of the RCRA, which concerns the regulation of USTs and is comprised of sections 6991-6991i of the RCRA, and do not apply to the subchapter VII, which is the subchapter under which Singer's claim is brought.

 Bulk is correct that section 6991(4) of the RCRA defines the term "operator" as "any person in control of, or having responsibility for, the daily operation of the underground storage tank." 42 U.S.C.A. § 6991(4). Bulk is also correct that some courts have interpreted that definition to include only current operators and not past operators. See Buch, 1996 WL 377168, at *3-4. However, section 6991 specifically provides that the definitions are for the purposes of Subchapter IX, 42 U.S.C.A. §§ 6991-6991i. Thus, the definitions provided in section 6991(4) are inapplicable to Singer's claim under section 6972(a)(1)(B).

 Bulk relies on Buch v. Guettler in support of its argument that it does not qualify as an "operator" under the RCRA. Buch, however, does not support Bulk's argument. In Buch, the court was addressing whether the plaintiff could state a subsection (a)(1)(A) claim against the defendants as past operators of several USTs. The Buch court found that the plaintiff could not because subsection (a)(1)(A) provides for suits only against present, not past, operators. However, the Buch court specifically stated that unlike subsection (a)(1)(A), subsection (a)(1)(B) "provide[s] for suits against past operators who have contributed to the disposal of solid or hazardous waste." Buch, 1996 WL 377168, at *3 n.3. Thus, Buch actually supports Singer's argument that she can bring a claim against ...


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