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Business Law FLASHPOINTS September 2019

September 13, 2019Print This Post Print This Post

Joseph R. Podlewski, Jr., Podlewski & Hanson P.C., Western Springs
708-784-0624 | E-mail Joseph R. Podlewski, Jr.

Below is an excerpt from §8.5 of ENVIRONMENTAL LAW IN CORPORATE AND REAL ESTATE TRANSACTIONS — 2019 EDITION.

RCRA and Its Illinois Analog

The federal Resource Conservation and Recovery Act of 1976 (RCRA), Pub.L. No. 94-580, 90 Stat. 2795, and its Illinois counterpart (found at 35 Ill.Admin. Code pts. 720 – 729) regulate the generation, treatment, storage, and disposal of hazardous waste. In the landlord-tenant context, RCRA compliance is an issue if the tenant generates, or otherwise manages, hazardous waste for two main reasons. First, the landlord may find itself subject to RCRA if the tenant abandons hazardous waste at the leased premises; it is all too common for a landlord to find drums of hazardous waste left behind by a departing tenant. Second, §7002(a)(1)(B) of RCRA (the citizen suit provision) provides that any person may commence a civil action against 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. 42 U.S.C. §6972(a)(1)(B).

It has been observed that RCRA liability may be imposed on a landlord under §7002(a)(1)(B) for gasoline contamination of its property without regard to fault. Sachs v. Exxon Company, U.S.A., 9 Cal.App.4th 1491, 12 Cal.Rptr.2d 237, reh’g denied & op. modified, 10 Cal.App.4th 1512B (Oct. 29, 1992), review denied, (Dec. 17, 1992).

Underground storage tanks (USTs) are regulated under RCRA at both the federal and state levels. 42 U.S.C. §6991, et seq.; 40 C.F.R. pt. 280; 415 ILCS 5/57, et seq.;35 Ill.Admin. Code pts. 731, 734. Once again, liabilities are imposed on “owners” and “operators”:

a. In the case of an UST in use on November 8, 1984, or brought into use after that date, the “owner” is the person who owns the UST.

b. In the case of an UST no longer in use on November 8, 1984, the “owner” is the person who owned the UST immediately before the discontinuation of its use.

c. An “operator” is any person in control of, or having responsibility for, the daily operation of the UST. 35 Ill.Admin. Code §734.115.

Accordingly, although often a tenant is both the “owner” and “operator” of an UST, it is not uncommon for a landlord to “own” an UST that is “operated” by the tenant and therefore be equally responsible for compliance with federal and state operating and corrective action requirements.

For more information about financial services, see ENVIRONMENTAL LAW IN CORPORATE AND REAL ESTATE TRANSACTIONS — 2019 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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