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. Gascoyne Laboratories 2,860.00
9. Haley & Aldrich 8,215.43
10. George Tyler management fees 8,075.00
Total $ 83,767.24
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