We thought we were safe: federal court holds RCRA preempts state petroleum cleanup bar statute.

• Author: Fingar, Robert D.

In the recent case of Boyes v. Shell Oil Products Company, 2000 WL 3724 (11th Cir., Jan. 4, 2000), the U. S.Court of Appeals for the 11th Circuit held that citizens have a right to sue to compel cleanup of petroleum contamination sites upon allegations that there is a violation of the Resource Conservation and Recovery Act (RCRA)[1] regulation or "imminent and substantial endangerment to public health or the environment."[2] In reaching this conclusion, the court held that F.S. [sections] 376.308(5),[3] which purports to delay suits to compel cleanup of sites eligible for state restoration funding assistance, is preempted by the "citizen suit" provisions of the RCRA.[4] This article will examine the possible ramifications of this case and the prospects for its continued, and perhaps widespread, application.

Some background is necessary to explain why state law contains any sort of defense against compelled cleanup in the first place. In 1986, as part of the State Underground Petroleum Environmental Response environment (Super Act), the Florida Legislature created the Early Detection Incentive Program.[5] The EDI program was funded by the Inland Protection Trust Fund.[6] The purpose of the EDI program was to encourage detection, assessment, and remediation of petroleum contamination sites.[7] Cleanup of "qualified sites" would be "without recourse" against the responsible party.[8] In other words, the EDI program could be termed an "amnesty" program with respect to cleanup costs.

Under the EDI program, qualified sites could be cleaned up under a state cleanup option or under a reimbursement option.[9] The most significant difference between the two options was that cleanup under the state cleanup option would occur in accordance with the site's environmental priority ranking score.[10] In contrast, under the reimbursement option, the responsible party could perform cleanup as soon as possible, but would presumably have to await reimbursement until funds were available.[11]

In 1988, after the U.S. Environmental Protection Agency proposed rules to implement RCRA's financial responsibility requirements,[12] the legislature ended the EDI program and created what is now known as the Petroleum Liability and Restoration Insurance Program.[13] PLIRP provided that "restoration," i.e., cleanup claims, would continue to be paid for from the IPTF, while claims for "third-party damages," i.e., personal injury and property damage, would be covered under premium-based insurance policies or through another form of financial responsibility arranged by the tank owner or operator.[14]

Initially, PLIRP participants could participate in either the state cleanup or reimbursement option to manage restoration costs.[15] In 1992, the legislature took steps to transfer as many sites as possible into the reimbursement option.[16] These changes increased the number of ongoing cleanups to the point where, in 1995, the legislature decided to end the reimbursement option, no longer allowing participants to clean up sites and apply for reimbursement on a first-come, first-served basis.[17]

The reimbursement option was replaced by preapproved site cleanup procedures.[18] These procedures provide that sites will generally be funded for cleanup in accordance with their environmental priority ranking order.[19] Consequently, low-ranked sites have to wait until they are funded for cleanup.[20]

In recognition of the fact that the reimbursement option was terminated,[21] the legislature enacted the defense in F.S. [sections] 376.308(5), which is at issue in the Boyes case. The defense: 1) preserves the rights of third parties to sue for "personal injury" or "property damages"; 2) temporarily prohibits suits against program sites after March 29, 1995, for cleanup costs or to compel cleanup until the site is funded (at which point a cooperative program participant would have state cleanup funds available to satisfy the claim); and 3) tolls the statute of limitations.[22]

According to the allegations in the Boyes' complaint, filed in the District Court for the Northern District of Florida, the Boyes' two properties in Gainesville, Florida, are contaminated by a "comingled plume" resulting from discharges at the defendants' three respective gasoline stations.[23] All three discharges are qualified for the EDI program and none of the facilities were in operation at the time the complaint was filed.[24]

The Boyes' complaint included two counts under the "citizens suit"...