Avondale Federal Sav. Bank v. Amoco Oil Co., 98-2003

• Decision Date: 11 March 1999
• Docket Number: No. 98-2003,98-2003
• Citation: 170 F.3d 692
• Parties: , 29 Envtl. L. Rep. 21,001 AVONDALE FEDERAL SAVINGS BANK, Plaintiff-Appellant, v. AMOCO OIL COMPANY, a Maryland corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 692

170 F.3d 692

48 ERC 1225, 29 Envtl. L. Rep. 21,001

AVONDALE FEDERAL SAVINGS BANK, Plaintiff-Appellant, v. AMOCO OIL COMPANY, a Maryland corporation, Defendant-Appellee.

No. 98-2003.

United States Court of Appeals Seventh Circuit.

Argued Dec. 4, 1998.

Decided March 11, 1999.

Johnine J. Brown (argued), Julie D. Melvin, Brownmartin P.C., William M. McErlean, Chicago, IL, for plaintiff-appellant.

Vincent S. Oleskiewicz (argued), Baker & McKenzie, Chicago, IL, for defendant-appellee.

Before BAUER, DIANE P. WOOD, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

Amoco Oil Company owned and operated a gas station in Lake Forest, Illinois, from 1926 to 1970. Amoco sold the property to George and Margaret Herman, who in turn sold it to First National Bank of Lake Forest, which in turn sold it to Lake Forest Savings and Loan Association. Avondale Federal Savings Bank took title to the property in 1982 when it merged with Lake Forest Savings and Loan.

In late 1995 Avondale negotiated to sell the property to First Chicago Building Corporation--the first in a long line of parties to insist (wisely, in hindsight) on acquiring the property with a clean bill of health. To satisfy its obligations under the purchase agreement with First Chicago, Avondale had an environmental investigation done on the property, and the study revealed petroleum contamination in the soil. Avondale traced the contamination to Amoco and served Amoco and the appropriate governmental agencies with a 90-day notice letter as required by the Resource Conservation and Recovery Act. Neither the government nor Amoco responded, and in May 1996, after the 90-day notice period expired, Avondale sued Amoco seeking an injunction under § 6972(a)(1)(B) of RCRA requiring Amoco to clean up the property. Later that month, before the court ordered any relief, Avondale excavated and removed three underground storage tanks, associated piping, and a hydraulic oil reservoir from the property. By November 1996 Avondale had cleaned up the soil and remediated the property to meet the Illinois EPA's residential standards, so the IEPA issued a "No Further Remediation Letter" signifying that the property was clean and absolving Avondale of any further remediation responsibility. Avondale's sale to First Chicago then proceeded without a hitch.

Back in court, Avondale changed its request for an injunction (which was no longer needed because the property was cleaned up) to a claim for restitution to recover the value of the benefit it conferred on Amoco by cleaning up the mess. Avondale still sought an injunction requiring Amoco to clean up any further contamination that might be caused by off-site migration. Amoco moved for summary judgment, arguing that Avondale failed to satisfy RCRA's "imminent and substantial endangerment" requirement. See 42 U.S.C. § 6901 et seq. The district court granted Amoco's motion. On Avondale's claim for restitution for the on-site contamination cleanup, the court found that it was precluded from awarding the requested relief under Meghrig v. KFC Western, Inc., 516 U.S. 479, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996). On Avondale's claim for an injunction for off-site contamination, the court found that any threat was not imminent.

On appeal Avondale makes two arguments. First, it argues Meghrig does not preclude the relief sought because it cleaned up the property after filing its citizen suit and Meghrig precludes relief only if the property is cleaned up before suit is filed. Second, Avondale argues the district court was wrong to conclude that offsite migration posed no imminent threat. The threat of harm was imminent, Avondale argues, though the effects of the harm might not be felt until later. We are not persuaded by either of these arguments.

In Meghrig the Supreme Court painstakingly analyzed the language of RCRA's citizen suit provision and concluded that RCRA "is not directed at providing compensation for past cleanup efforts." 516 U.S. at 484, 116 S.Ct. 1251. Instead, RCRA offers a private citizen a choice of two remedies: "a mandatory injunction, i.e., one that orders a responsible party to 'take action' by attending to the cleanup and proper disposal of toxic waste, or a prohibitory injunction, i.e., one that 'restrains' a responsible party from further violating RCRA." Id. "Neither remedy, however, ... contemplates the award of past cleanup costs, whether these are denominated 'damages' or 'equitable restitution.' " Id. We think this precise language in Meghrig bars the remedy Avondale seeks.

But Avondale has latched onto the language in the last paragraph of Meghrig where the Court also said: "Without considering whether a private party could seek to obtain an injunction requiring another party to pay cleanup costs which arise after a RCRA citizen suit has been properly commenced, ... or otherwise recover cleanup costs paid out after the invocation of RCRA's statutory process, we agree with the Meghrig that a private party cannot recover the cost of a past cleanup effort under RCRA...." Id. at 488, 116 S.Ct. 1251 (emphasis added). This is the precise language Avondale thinks saves it from defeat.

We think reading this sentence in isolation and to the exclusion of the rest of the opinion--which is what we have to do for Avondale to prevail--betrays the Supreme Court's resounding message. The entire opinion, save this one sentence, emphasizes that in interpreting RCRA we need to take Congress at its word and that we must "be chary of reading" additional remedies into a statute that, like RCRA, expressly provides for a particular remedy. Id. at 488, 116 S.Ct. 1251 (quoting Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 14-15, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981)). The dissent is willing to read an additional remedy into RCRA--namely, reimbursement of cleanup costs. But we are not. Congress deliberately limited RCRA's remedies to injunctive relief--more specifically, injunctive relief obtained before the property is cleaned up, while the danger to health or the environment is "imminent and substantial." 42 U.S.C. § 6972(a)(1)(B). Neither Meghrig nor RCRA can be read to allow a party to recover cleanup costs. And, neither Meghrig nor RCRA exempts from that principle cleanup costs incurred after RCRA is invoked. Given the Supreme Court's admonition that we must strictly follow RCRA's statutory scheme, we are unwilling to accept Avondale's invitation to expand RCRA's remedial reach. Quite simply, RCRA's remedial scheme could have worked here. Avondale properly invoked the scheme by filing suit for an injunction before taking any action to clean up the property. But Avondale got antsy and chose not to wait for the wheels of justice to spin. It made a business decision to clean up the property quickly so it could close the deal with First Chicago. That decision allowed Avondale to take advantage of a business opportunity that may very well have evaporated by the time any injunction issued. But it doesn't change RCRA's remedial scheme.

In short, although Meghrig may have left an opening for private remedies to redress cleanup costs that arise after a RCRA citizen suit is filed, Avondale cannot squeeze through in this instance. No matter how it categorizes its claim, Avondale wants to get back from Amoco the money it spent to clean up the contamination it thinks Amoco caused. While this certainly seems fair, it is simply not allowed under RCRA. Avondale may still get money from Amoco--but not in this court and not under RCRA. Avondale has a number of state law recovery theories available to it and, in the end, justice can be done.

Avondale's claim for an injunction requiring Amoco to clean up off-site contamination also fails, though for a different reason. Here, Avondale sought the right relief--a mandatory injunction--but the claim was premature under RCRA. Avondale's own expert testified that "if excavation is ever performed under the streets adjacent to the property, petroleum contamination will be found at levels requiring abatement to protect health and the environment." (Emphasis added.) Thus off-site contamination may very well present an imminent and substantial danger at some point, but it does not present such a danger right now.

For these reasons, we affirm the district court's entry of summary judgment in Amoco's favor.

DIANE P. WOOD, Circuit Judge, concurring in part and dissenting in part.

No one would disagree that the result the majority feels constrained to reach today creates perverse incentives for landowners whose property has been contaminated by another party. Feeling bound by the language of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a)(1)(B), and the Supreme Court's decision in Meghrig v. KFC Western, Inc., 516 U.S. 479, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996), the majority concludes that landowners who comply with all prerequisites to a suit under RCRA and who file a timely action must nonetheless refrain from conducting any clean-up operations until a court has had time to rule on a motion for an injunction, unless the landowner wants to be stuck with the bill and provide a windfall to the polluter. In my view, nothing in either the statute or Meghrig compels such an undesirable result, and I dissent from that part of the court's holding. For the reasons stated in the court's opinion, I agree that Avondale was not entitled to an injunction requiring Amoco to clean up off-site contamination, and I therefore concur in that part of the judgment.

My first point of disagreement is a fundamental one. The majority sees no distinction between the situation presented in Meghrig, in which the property owner cleaned up its property before filing suit, and our case, in which...