Reference no: EM132258597

Joe and Jane Sixpak owned the land in question from 1961 to November 1976. In 1972, they leased the land to Jim Got Bucks who installed piping and pumps for gasoline tanks at a service station on this land. This installation was done at the instruction of the Mr. and Mrs. Bad Luck, who operated the gas station until 1975. In 1975, the Mr. and Mrs. Bad Luck leased the gas station to Jack and Jill Lamb. Although the Lamb’s maintained their lease and operated the gasoline station pumps from May 1975 to March 1979, the property was sold to Jane Doe, who owned the property from November 1976 to April 1978, and then to Bill and Norma Investor, who owned the property from April 1978 to December 11, 1980. It was during the time of operation by the Bad Luck’s and the Lamb’s that large amounts of gasoline leaked into the soil and groundwater surrounding the tanks. In 1980, Joe Nice Guy purchased the land from Bill and Norma Investor. Joe Nice Guy was unaware of the gasoline leakage. In 2018 Joe Nice Guy goes to Butte Bank to borrow money using the land as security for the loan. The bank asks that the land be subject to a Phase 1 audit. As a result of the audit the bank asks Joe Nice Guy to take soil samples of the site. The samples show contamination of the soil and groundwater with gasoline and gasoline residues. The data is sent to the state which then requires Joe Nice Guy to clean up the site, and more importantly, pay for the cleanup. Joe Nice Guy comes to you to find out if he can sue any of the folks responsible for the contamination. Your research discloses that both RCRA and CERCLA apply to this situation. RCRA Section 6972(a) (1) (B) does cover gasoline that leaks into soil. RCRA applies to individuals who do no more than create solid waste. Here, the parties are individuals who owned the land during which time the gasoline allegedly leaked; individuals who operated the pumps during which time the gasoline allegedly leaked; and individuals responsible for the installation of the piping and pumps for the gasoline tanks that allegedly leaked. None of these individuals are so far removed that it can be said that, as a matter of law, they did not contribute to the leakage. On the other hand your research finds that Section § 9601(14) of CERCLA contains a so-called “petroleum exception,” under which “petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a “hazardous substance” is not a hazardous substance for which the present landowner can recover any removal or response costs.

So what advice do you give to Joe Nice Guy?