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June 2, 1993

Barry Minkoff, General Partner, East Blade Investors Limited Partnership Successors in Interest to Harry Minkoff and Allen Baer, Trustees
Clark Transfer, Inc., Highway Film Service, Inc.

The opinion of the court was delivered by: JUNE L. GREEN

 This case arises out of the discovery of leaking underground storage tanks located at plaintiff's rental property, 3194 Bladensburg Road, N.E. in the District of Columbia ("the Property"). The plaintiff leased the Bladensburg Road property to defendants Clark Transfer, Inc. ("Clark") and Highway Film Service, Inc. ("Highway") from 1964 to 1984. At some point in the beginning of the lease term, underground storage tanks were installed to supply fuel for the defendants' trucking operation and to store waste oil. In 1987, plaintiff was ordered by the District of Columbia Fire Department to remove the tanks within 90 days or show cause for failure to do so. The tanks were not removed until September 1990. More than seven thousand gallons of fuel were pumped out of the tanks before they were removed from the ground. Upon removal, the tanks were discovered to be corroded and leaking. Under the direction of the District of Columbia Department of Consumer and Regulatory Affairs, Environmental Control Division the plaintiff arranged for the cleanup of the contamination caused by the leaking fuel. Plaintiff seeks to recover from the defendants the costs associated with the cleanup. The plaintiff asserts common law claims for breach of contract, waste, negligence, nuisance, trespass, and ultra-hazardous activity, as well as claims pursuant to the underground storage tank and citizen suit provisions of the Resource Conservation and Recovery Act ("RCRA"), sections 9001-9009, 42 U.S.C. §§ 6991-6991i, and section 7002, 42 U.S.C. § 6972, respectively. Plaintiff also requests, pursuant to 28 U.S.C. § 2201, a declaration of its rights and liabilities in relation to the defendants concerning their respective obligations for costs which have been incurred and may in the future be incurred by plaintiff in connection with the investigation and cleanup of contamination at the Property.

 This matter was tried before the Court without a jury on May 10, 1993. After considering all of the testimony, exhibits, and arguments presented, the Court makes the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.


 Plaintiff Barry Minkoff is the general partner of East Blades Investors Limited Partnership which is the owner of the Property. In March 1964, the plaintiff's predecessor in interest leased the Property to defendant Clark and its subsidiary, defendant Highway. The parties executed a lease dated March 5, 1964 ("Lease"), the contents of which are not in dispute. Sometime between 1964 and 1965 the defendants installed five underground storage tanks in the parking area of the premises to fuel their vehicles and store waste oil. *fn1" The underground storage tanks consisted of two 5,000 gallon diesel fuel tanks, two 6,000 gallon gasoline fuel tanks, and one 1,000 gallon waste oil tank.

 The Lease obligated the defendants to "maintain and repair the demised premises including the parking area, its driveway and the appurtenances thereto belonging and every part thereof with all kinds of necessary repairs . . . ." Lease, P 3. The defendants were further obligated under the Lease to "promptly comply with, observe and perform all of the requirements of all of the statutes, ordinances, rules, orders and regulations, [then] in effect or thereafter promulgated, whether required by Federal or Municipal Governments and whether required of the LESSEE or LESSORS." Lease, P 10.

 The Lease term ran from August 1, 1964 to July 31, 1974 with provisions for two five-year renewals. The defendants exercised both options for renewal, extending the Lease term until July 31, 1984. In March 1982, the plaintiff inspected the Property and in a letter to defendant Highway identified damage done to the parking lot, the overhead doors, exit doors and the loading docks.

 In June or July of 1982, the defendants transferred all their commercial operations to another location and vacated the Property except for storage purposes. From that point onward the defendants stopped using the underground storage tanks. More than seven thousand gallons of fuel and waste oil remained in the tanks. However, the defendants made no efforts to remove such fuel and oil or to comply with District of Columbia Fire Prevention regulations requiring such removal.

 With respect to underground storage tanks no longer in use, the District of Columbia Municipal Regulations, then in effect, required that "(a) All of the flammable liquid shall be removed from the tank; (b) The tank shall be removed from the premises or filled with an inert, solid material; (c) All pipe lines shall be disconnected from the tank; and (d) All openings in the tank shall be capped wrench tight." District of Columbia, Mun. Regulations, Title 25, § 1034.5 (August 1983). No credible evidence was presented to support defendants' suggestion that perhaps plaintiff intended to use the tanks after the defendants completely vacated the property in 1984. The Court finds that the tanks were taken out of use and abandoned in June or July of 1982.

 Two years later, the defendants vacated the Property in full. On July 31, 1984, the last day of the Lease, the plaintiff conducted a "walk-through" on the Property with a representative of the defendants. The parties agreed upon an amount of money that would be held back by plaintiff to cover the cost of repairing certain damages to the Property. There was no discussion regarding the underground storage tanks.

 Thereafter, the plaintiff leased the premises to Universal Appliance Company ("Universal"). The new tenant converted the Property's parking area to use as a storage lot for the tenant's used and reconditioned appliances.

 In early May 1987, the plaintiff was informed by notice from the D.C. Fire Department of a "hazardous condition," and "underground tanks (gasoline-diesel) not abandoned properly. Not removed from the ground." Pl.'s Exhibit 5. Citing Section 1034 of the D.C. Municipal Regulations, the Fire Department inspector instructed plaintiff to "remedy the conditions" within 90 days or show cause why plaintiff should not be required to do so.

 Plaintiff requested permission from the Fire Department to abandon the tanks by filling them with sand and leaving them in the ground. This request was denied. Nevertheless, plaintiff was reluctant to remove the tanks. Universal informed plaintiff that any excavation of the tanks from the Property's parking area would force a complete cessation of Universal's storage and sales activities and pleaded with plaintiff not to disrupt its business. Plaintiff's property manager, Mr. George Tyler, presented this dilemma to the D.C. Fire Department inspector charged with handling the matter and requested further directions. For unexplained reasons, the Fire Department inspector did not respond to this request and did not act on several phone calls made by Mr. Tyler to the Fire Department.

 Mr. Tyler testified that he allowed the matter to sit unattended, while the "ball was in their court," until he learned of the potential for serious liabilities associated with underground storage tanks. In or about September of 1990, Mr. Tyler persuaded the plaintiff to have the tanks removed. Plaintiff incurred the following charges in connection with the removal of the tanks and the cleanup of the Property for which he seeks recovery: 1. Air Analysis Associates $ 870.00 2. Bevard & Walden 18,029.50 3. N&S Towing 65.00 4. Testwell Craig 14,719.76 5. Environmental Resource Management 17,502.25 6. H&H Construction 12,287.85 7. Wayne Keefer 1,142.88 8. ...

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