any person . . . including . . . any past or present owner or operator of a treatment, storage, or disposal 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." Id.
As the court previously stated in the decision of March 29, 1994 at page 4, for contributor liability under § 6972(a)(1)(b) to attach, the party must have "contributed to" to the past or present handling, storage, treatment, transportation or disposal of hazardous waste. The court has held the term "contributing" infers something more than mere ownership of site, but some sort of causal link between the contamination and the owner. See March 29, 1994 decision at P. 4-7; Zands v. Nelson, 779 F. Supp. 1254, 1264 (S.D. Cal. 1991) (Zands I); Zands v. Nelson, 797 F. Supp. 805 (S.D. Cal. 1992) (Zands II).
The court finds that plaintiff since purchasing the property has never used the new storage tanks, and has added no contaminants to the property during the plaintiff's ownership period. Although plaintiff did not affirmatively place contaminants into the soil, the issue remains whether plaintiff's subsequent action or inaction could be considered "contributing to" in the context or a RCRA claim. The court finds that under the circumstances of this case the plaintiff will not be considered a contributor under the RCRA citizen suit provisions and, as such, defendant's amended counter claim is properly dismissed.
Defendants directed the court to the case of United States v. Price, 523 F. Supp. 1055 (D.N.J. 1981) to support the proposition that even passive inaction by a subsequent purchaser may rise to a level of "contributing to" under RCRA and support claims under § 6972(a)(1)(b). Under the facts presented in this case the court is unwilling to follow the Price court's ultimate determination. In the case at bar, important differences are presented in the fact pattern. In Price, the subsequent purchaser knew the site had been used as a landfill when they purchased it. Here, the plaintiff was not aware when they purchased the property that it was ever used as a gasoline station. Also a more important distinction is the Price court was dealing with an EPA sponsored suit against numerous current and past owners for contribution, and the Price court may have been more receptive to an expansive application of passive liability to ensure the broadest range of sources for cleanup funds on behalf of the EPA. Here, the party bringing the counter claim is seeking to offset their own potential liability with a subsequent purchaser's contribution. This court finds the dynamics of the contribution context of a government suit and a private suit by a potentially liable party to be different and, as such, require a different analysis. At this juncture, the court is unwilling to expand the doctrine of passive liability to subsequent purchasers in this context. The court is unaware of any case law which imposes RCRA liability under similar circumstances. Therefore, the court finds defendant Exxon's amended counter claim is properly dismissed.
As an additional matter, the plaintiff requested leave to file an amended complaint; the defendant did not oppose the request, and the court grants plaintiff's request to amend.
Upon due consideration of the parties' memoranda and exhibits, the arguments advanced at hearing, and for the reasons act forth above, the court hereby grants plaintiff's motion for leave to amend and motion to dismiss first amended counterclaim of defendant Exxon.
DATED: July 25, 1994.
WILLIAM B. ENRIGHT, Judge
United States District Court
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