Petition for Writ of Certiorari — Manufacturers Bank v. Amoco Oil Co.

Supreme Court brief1999

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OFFICE

No. OF THE CLERK

IN THE

Supreme Court of the United States

AVONDALE FEDERAL SAVINGS BANK,

Petitioner,

Vv.

AMOCO OIL COMPANY, a Maryland corporation,

Respondent.

On PETITION FOR A Writ oF CERTIORARI

TO THE UNITED STATES Court OF APPEALS

FOR THE SEVENTH CIRCUIT

2 act ae ee

PETITION FOR A WRIT OF CERTIORARI

Oooo

JOHNINE J. BROWN

Counsel of Record

SHEILA H. DEELY

THE BROWN ENVIRONMENTAL

Law Group, P.C.

Attorneys for Petitioner

35 East Wacker Drive

Suite 1356

Chicago, Illinois 60601

(312) 236-1450

153635 @ Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

Se ee ee

QUESTION PRESENTED

May the District Court’s equitable power to order

restitution be invoked if, after filing a complaint that states

a proper cause of action under the Resource Conservation

and Recovery Act, plaintiff acts unofficiously in an

emergency, with notice to the defendant who refuses to act,

to abate contamination caused by defendant’s abandoned

underground tanks?

STATEMENT PURSUANT TO RULE 29.6

Petitioner is Avondale Federal Savings Bank, which

merged into Manufacturers Bank while this litigation was

pending. Manufacturers Bank is wholly owned by its parent,

MB Financial, Inc., a publicly held company. Respondent

is Amoco Oil Company. Amoco’s Parent company is

BP Amoco Company.

TABLE OF CONTENTS

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Table of Appendices

Opinions Below

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Statement of Jurisdiction

Pe Pete ee tence ane eae eae 2

Statutory Provision Involved

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Statement of the Case

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Reasons for Granting the Writ

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1. The Petition Should Be Granted Because The

Opinion Below Conflicts With This Court’s

And The Seventh Circuit’s Prior Rulings On

Equitable Jurisdiction.

Il. The Petition Should Be Granted Because

Restitution Is Important To The Integrity And

Administration Of RCRA. ..............

III. The Petition Should Be Granted Because The

Opinion Below Conflicts With This Court’s

Opinion In Meghrig Distinguishing Between

Cause Of Action And Relief.

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Conclusion

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TABLE OF CITED AUTHORITIES

Page

Cases:

Atlantic States Legal F oundation, Inc. v. Stroh Die

Casting Co., 116 F.3d 814 (7th Cir. 1997) ..... 15

Bell v. Hood, 327 U.S. 678 ae eee ere 13,14

Commodity Futures T, rading Commission vy. Nelson

Bunker Hunt, 591 F.2d 121] (7th Cir. 1979) ... 8

Franklin v. Gwinnett County Public Schools, 403

U.S. 60(1992) ... _13, 14

FTC v. Amy Travel Service, Inc., 875 F.2d 564 (7th

ity MEAs hss eou ache dake ee 10

FTC v. H.N. Singer, 668 F.2d | 107 (9th Cir. 1982)

Tu VA RMOM RETRO SEV Rw SOEN Se Eee ee koe eee et. 10

FTC v. World Travel Vacation Brokers, 861 F.3d

1020 (7h Cir. 1908) ..... 8... occ ee 8, 10

The Hecht Company y. Bowles, 321 U.S. 321 (1944)

ASAE SE AWEREOCRS ODA CROW OREN Eee eo cia et La! 6, 8, 10

Meghrig v. KFC Western, 516 U.S. 482 (1996) ...

caP aw OVW wh an ee ee ae eben ie oun 4, 13, 14, 16,17

Mertens v. Hewitt Associates, 508 U.S. 248 (1993)

Middlesex County Sewerage Auth. v. National Sea

Clammers Ass'n, 453 US. | (1981) .......... 14

Cited Aai .vrities

Page

Porter v. Warner Holding Co., 328 U.S. 395 (1946)

eT OPE ST eee rey sy Pee re er re rere 6, 7,9, 12

Transamerica Mortgage Advisors, Inc. v. Lewis, 444

Chae Se ROTO + 6b Stee as veda ccenense De 8, 14, 15

United Stats v. Price, 688 F.2d 204 (3d Cir. 1982)

eee PTET PET Ve COPE TET ee eC eee roe 12

Weinberger v. Romero-Barcelo, 456 U.S. 305

GR 60.450 054 ce eee eee a te tae

Wyandotte Transportation Co. v. United States, 389

ens SWS SEED bs sd ss 6 evned eres ceidee oes 8

Statutes:

OP es REED 5.0 00 on 0000 bknvccdeee l

oe Ws 8 084 955 dee eee l

Ce Giaeen © UME + i ek che bas és eeee ees 9

SS Ua SOPOT) 68.5 404500 veecenrnes 1,2, 10

Other Authorities:

Section 15 of the Rivers and Harbors Act ........ 8

Section 13(b) of the Federal Trade Commission Act

TABLE OF APPENDICES

Appendix A — Opinion Of The United States Court

Of Appeals For The Seventh Circuit Dated And

Decided March 11,1999 ........

Appendix B — Judgment Of The United States Court

Of Appeals For The Seventh Circuit Dated March

iii ON ee, EEG

Appendix C — Opinion And Order Of The United

States District Court For The Northern District

Of Illinois, Eastern Division Dated March 19,

1998 And Docketed March 24,1998 .........

Appendix D — Judgment Of The United States

District Court For The Northern District Of

Illinois, Eastern Division Dated March 23, 1998

And Docketed March 44,1996 ..............

Appendix E— Amended Order Of The United States

Court Of Appeals For The Seventh Circuit

Denying Petition For Rehearing Dated April 30,

1999 And Amended May 4,1999 ......

Page

l4a

l6a

35a

Petitioner, Avondale Bank, respectfully requests that a

writ of certiorari be issued to review the judgment of the

United States Court of Appeals for the Seventh Circuit in

this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit is reported at Avondale Federal Savings

Bank v. Amoco Oil Company, 170 F.3d 692 (7th Cir. 1999)

(App. A). The opinion of the District Court is reported at

Avondale Federal Savings Bank v. Amoco Oil Company,

997 F. Supp. 1073 (N.D. Ill. 1998) (App. C).

STATEMENT OF JURISDICTION

On April 21, 1998, Avondale filed a timely notice of

appeal from the District Court’s March 24, 1998 opinion

and order (App. C). The Court of Appeals affirmed the

District Court’s ruling on March 11, 1999 (App. A) and

denied the petition for rehearing on April 20, 1999, amended

May 4, 1999 (App. E).

The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1). The District Court has jurisdiction

under 28 U.S.C. § 1331 and Section 7002(a)(1)(B) (the

“citizen suit” provision) of the Resource Conservation and

Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(B).

STATUTORY PROVISION INVOLVED

The RCRA citizen suit provision provides:

[A]ny person may commence a civil action

on his own behalf — (B) against 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:

* * *”

The district court shall have jurisdiction ... to

restrain any person who has contributed or who

is contributing to the past or present handling,

Storage, treatment, transportation, or disposal of

any solid or hazardous waste referred to in

paragraph (1)(b), [or] to order such person to take

such other action as may be necessary... .

42 U.S.C. § 6972(a)(1)(B).

STATEMENT OF THE CASE

In late 1995, Avondale discovered that property it had

acquired through merger with another bank was

contaminated with petroleum, though Avondale had never

operated a gasoline station on the property. Avondale

discovered that Amoco had once owned the Lake Forest

site, and an Amoco gasoline station had been operated on it

~ nals ect

for about 44 years, from 1926 until 1970. Before selling

the property, Amoco razed the station but left the storage

tanks underground with product in them. Under state and

federal law, Amoco remained the “present” owner or

operator of the tanks because it was the last party to use

them before November 8, 1984. Avondale first found

petroleum in the soil at levels exceeding the State’s

standards for cleanup and in groundwater near migration

pathways to off-site properties and then later found the

abandoned, corroded tanks filled with a mixture of water

and petroleum.

As the District Court acknowledged, Avondale

complied with RCRA requirements for stating a proper

cause of action for a citizen suit against Amoco. The first

requirement was to give 90-day written notice to Amoco

so that it could abate without litigation and to specified

government authorities so that they could enforce RCRA,

thereby preempting a citizen suit. Neither Amoco nor the

government authorities acted. The second requirement was

to file suit while the contamination might still pose an

imminent and substantial endangerment to health or the

environment.

On May 8, 1996, Avondale filed a Complaint for

Declaratory Judgment and Other Relief in the District Court

seeking an order to require Amoco to abate the

contamination at its cost. Before Amoco answered,

Avondale discovered that the source of the contamination

was abandoned and leaking underground storage tanks.

Amoco was present when Avondale uncovered the tanks

and one of its representatives said, “These are probably our

USTs.”' When the corroded, leaking tanks were uncovered,

1. “UST” is the RCRA acronym for underground storage tank.

Amoco was required by law to report the condition to

authorities within 24 hours, propose an action plan, remove

the tanks, and abate the contamination. Amoco, however,

refused to act. Holding Amoco responsible, Avondale

notified authorities, proposed an action plan that was

approved, undertook the abatement in accordance with State

standards, and completed abatement in November 1996.

Avondale then filed its First Amended Complaint for

Declaratory Judgment and Other Relief on October 28,

1996, seeking restitution and adding two common law

counts for negligence and unjust enrichment. On February

5, 1997, Avondale, by agreement of the parties, filed its

Second Amended Complaint for Declaratory Judgment and

Other Relief to change the defendant from Amoco

Corporation to Amoco Oil Company. On F ebruary 20, 1997,

Amoco answered the complaint and asserted a number of

affirmative defenses, the second and third of which are

relevant here. Amoco’s second affirmative defense states

that the court lacked jurisdiction or the case was moot

because Avondale had completed abatement during

litigation and thus the petroleum contamination no longer

presented an imminent and substantial endangerment.

Amoco’s third affirmative defense states that under Counts

I and II Avondale was really seeking, not restitution, but

compensatory or economic damages, relief that is not

equitable and thus is unavailable under RCRA. After

Avondale performed on-site abatement during litigation,

Amoco moved for summary judgment, asserting an

interpretation of Meghrig v. KFC Western, 516 U.S. 482

(1996), that would allow it to escape both liability and

restitution.

On March 24, 1998, the District Court entered an

opinion and order granting summary judgment on Counts |

and II in favor of Amoco. The District Court acknowledged

that Avondale “properly invok[ed] RCRA’s statutory

process” but held that RCRA does not authorize restitution

to plaintiff for abatement costs incurred during litigation.

Electing not to exercise pendant jurisdiction over

Avondale’s state common law claims, the District Court

also dismissed Counts III and IV. The order was corrected

and amended on April 6, 1998. The Court of Appeals

affirmed in a 2-1 decision, J. Wood dissenting, and denied

Avondale’s motion for rehearing en banc.

REASONS FOR GRANTING THE WRIT

THE PETITION SHOULD BE GRANTED BECAUSE

THE OPINION BELOW CONFLICTS WITH THIS

COURT’S AND THE SEVENTH CIRCUIT’S PRIOR

RULINGS ON EQUITABLE JURISDICTION.

Avondale’s petition for writ of certiorari should be

granted because the opinion below conflicts with this

Court’s long line of prior rulings on the federal courts’

equitable jurisdiction to enforce statutes while protecting

the public interest and respecting private interests. This

Court granted certiorari in Weinberger v. Romero-Barcelo,

456 U.S. 305 (1982), “[b]ecause . . . it posed an important

question regarding the power of the federal courts to grant

or withhold equitable relief for violations of the FWPCA.”

This case poses the same question for liability under RCRA.

The general rule about equitable jurisdiction was

compellingly enunciated more than fifty years ago in Porter

v. Warner Holding Co., 328 U.S. 395, 398 (1946), and has

been consistently followed by the Supreme Court and the

Seventh Circuit in cases dealing with a wide array of

statutes. The rule is that when a statute may be enforced

through injunction to compel compliance or restrain

violations, the federal courts may also grant other equitable

relief as necessary to fit the circumstances — unless

Congress clearly says otherwise.

[T]he comprehensiveness of this equitable

jurisdiction is not to be denied or limited in the

absence of a clear and valid legislative command.

Unless a statute in so many words, or by a

necessary and inescapable inference, restricts the

court’s jurisdiction in equity, the full scope of

that jurisdiction is to be recognized and applied.

Id. at 398. Although the Emergency Price Control Act

expressly authorized the District Court only to grant a

permanent or temporary injunction, restraining order, or

other order, this Court found restitution to be available

because Congress had not constrained the courts’ powers

to grant complete relief in enforcing the statute. Porter

followed The Hecht Company v. Bowles, 321 U.S. 321, 329

(1944), where this Court said that if Congress intended a

drastic departure from the traditions of equity practice, “an

unequivocal statement of its purpose would have been

made.”

Under Porter, the power to do equity trumps any

inference about congressional silence on the scope of

equitable jurisdiction. Congress cannot foresee every

thine

‘

enforcement circumstance. Though its silence does not strip

equitable powers from a District Court, Congress commonly

includes “other action” or “other order” language in

enforcement provisions to underline the power of federal

judges to exercise their discretion broadly, as necessary.

Framing equitable orders to fit the circumstances of a

particular case, especially where the public interest is

threatened, is necessarily a judicial process, not a legislative

one. The presumption of judicial discretion is so strong that

in Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982),

this Court held that statutory language mandating an

injunction did not constrain the District Court’s traditional

power to apply its discretion to the circumstances and deny

an injunction where appropriate.

When a District Court’s equitable jurisdiction is

invoked to enforce compliance or enjoin illegal acts, “all

the inherent equitable powers of the District Court are

available for the proper and complete exercise of that

jurisdiction.” Porter, 328 U.S. at 398. Under case law, “all”

equitable powers include freezing of assets, an accounting,

disgorgement, mandamus, contract recision, restoration of

the status quo, and restitution. Restitution allows a court to

“act in the public interest by restoring the status quo and

ordering the return of that which rightfully belongs

‘to another party.’ ” Porter, 328 U.S. at 402.

The Porter rule, if it may be called that, has been applied

to a wide variety of statutes that, like RCRA, are based in

equity but do not mention restitution, neither affirmatively

authorizing it nor limiting its availability. Examples of

Statutes that are like RCRA in this sense and cases granting

restitution and other equitable relief under them are legion:

* the Federal Trade Commission Act, FTC v. World

Travel Vacation Brokers, 861 F.3d 1020 (7th Cir.

1988):

* Section 15 of the Rivers and Harbors Act.

Wyandotte Transportation Co. v. United States, 389

U.S. 191 (1967);

* the Investment Advisors Act, Transamerica

Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19

(1979): ;

* the Federal Water Pollution Control Act,

Weinberger v. Romero-Barcelo, 456 U.S. 305

(1982):

* the Emergency Price Control Act of 1942. The

Hecht Company v. Bowles, 321 U.S. 321 (1944),

and Porter;

* the Employee Retirement Income Security Act,

Mertens v. Hewitt Associates, 508 U.S. 248 (1993);

and

* the Commodity Exchange Act, Commodity Futures

Trading Commission v. Nelson Bunker Hunt, 59]

F.2d 1211, 1219, 1221 (7th Cir. 1979).

The notable difference between these statutes and

RCRA is that the prerequisite to a RCRA suit is the

existence of contamination so harmful that it may constitute

an imminent and substantial endangerment to health or the

environment. As it did in this case, the contamination,

depending on the circumstances, is very likely to trigger

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immediate legal responsibilities and emergency action

during litigation, requiring one of the parties to act before

there can be a trial on the merits, with attendant delays for

discovery and appeal. For the congressional policy of quick

abatement to work when time is of the essence but liability

has not yet been conclusively established, each party needs

to know that restitution is available if it prevails later on

liability. Thus, the availability of restitution is even more

important under RCRA than under most statutes, and it is

just as important to defendants as to plaintiffs.

The court below adopted the reverse of the general rule,

holding that RCRA does not allow restitution because

Congress explicitly mentioned only mandatory injunctions

and restraining orders. App. A, 5a. This holding contravenes

the general rule about the breadth of equitable jurisdiction

when Congress does not limit it explicitly or by inescapable

inference. This holding also truncates RCRA’s actual

enforcement mechanisms. Four are expressly mentioned,

one of which is to require defendant to take such “other

action” as may be necessary. 42 U.S.C. § 6972(a).

Restitution, like disgorgement and the freezing of assets, is

action, physically different from abatement but legally still

action in that it requires the payment of money in

compliance with an order. Porter, 328 U.S. at 402.

“An order for the recovery and restitution of illegal rents

may be considered a proper ‘other order’... .” Jd. at 399.

Like this Court, the Seventh Circuit has applied the

Porter rule on equitable jurisdiction in a variety of statutes

where Congress did not expressly provide for restitution.

The Federal Trade Commission Act, for example, authorizes

the issuance of a permanent injunction to restrain violations,

but it has been interpreted by the Seventh Circuit to allow

such additional equitable relief as freezing assets, rescinding

contracts, and requiring restitution. FTC v. World Travel

Vacation Brokers, Inc., 861 F.2d 1020 (7th Cir. 1988), and

FTC vy. Amy Travel Service, Inc., 875 F.2d 564 (7th Cir.

1989). Section 13(b) of the Act, which authorizes a court

to grant a permanent injunction, “by implication gives

authority ‘to grant any ancillary relief necessary to

accomplish complete justice because it did not limit that

traditional equitable power explicitly or by necessary and

inescapable inference.’ ” Id., quoting FTC y. H.N. Singer,

668 F.2d 1107 (9th Cir. 1982).

Il.

THE PETITION SHOULD BE GRANTED BECAUSE

RESTITUTION IS IMPORTANT TO THE INTEGRITY

AND ADMINISTRATION OF RCRA.

Avondale’s petition should be granted because

restitution is important to the integrity and administration

of RCRA. This Court granted certiorari in Hecht v. Bowles

“because of the importance of the problem [of interpreting

a statute to limit the District Court’s discretion to grant or

deny an injunction] in the administration of the Act.”

321 U.S. at 326.

The general purpose of RCRA’s underground storage

tank provisions is to safeguard health and the environment

by requiring prompt abatement of dangerous petroleum

contamination. The only persons responsible for abating at

their cost are the past and present tank owners and operators.

42 U.S.C. § 6972(a)(1)(B). Amoco did not violate any

federal statute when it left the tanks behind in 1970

(nor did the complaint allege otherwise), but in 1996 when

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the tanks were discovered to be contributing to dangerous

contamination, Amoco had a RCRA duty to remove the

tanks and abate the contamination at its cost. Because

Amoco did not act after notice, federal and state government

authorities could have sued to enforce RCRA and, failing

that, Avondale was authorized to sue for an order requiring

abatement.

Avondale discovered the emergency requiring 24-hour

reporting and prompt action before there was time to

establish liability in court — in fact, months before Amoco

even answered. Avondale acted to protect both the public

interest and its own private interests in the real estate, but

only under protest after Amoco saw the leaking tanks and

refused to act. Had the scenario been the obverse — Amoco

abating in an emergency, without a prior determination of

liability but under a reservation of rights — it would have

been entitled to a hearing on liability and, if the result had

been unfavorable to Avondale, Amoco could have sought

restitution for the benefit it had unofficiously conferred upon

Avondale. Why then should restitution not be mutually

available?

Though Avondale met the standard for restitution, the

District Court said restitution would “undermine the

methodology that Congress employed to safeguard human

health and the environment.” RCRA policy strongly

suggests otherwise.

Congress in the endangerment provisions of

RCRA ... sought to invoke nothing less than

the full equity powers of the federal courts in

the effort to protect public health, the

environment, and public water supplies from the

pernicious effects of toxic wastes. Courts should

not undermine the will of Congress by either

withholding relief or granting it grudgingly.

United States v. Price, 688 F.2d 204, 214 (3d Cir. 1982).

Restitution has been found important to support Congress’

enforcement methods in many statutes. Porter enunciates

two theories to justify restitution, one of which is applicable

here. Restitution may be “an order appropriate and necessary

to enforce compliance with the Act.” “In framing

[appropriate equitable remedies for specific situations],

courts must act primarily to effectuate the policy of the...

Act and to protect the public interest while giving necessary

respect to the private interests involved. ... Future

compliance may be more definitely assured if one is

compelled to restore one’s illegal gains.” Porter, 328 U.S.

at 400.

Unless the benefit conferred upon Amoco under protest

during litigation is restored to Avondale upon a finding of

Amoco’s liability, future compliance with RCRA will be

anything but assured, for plaintiffs in Avondale’s position

and defendants in Amoco’s will be motivated to do nothing

rather than protect the public interest as Congress intended.

Inaction generated by denial of restitution to plaintiff is not

only dangerous to the public but is disrespectful toward the

private interest in the highest and best use of property. The

equitable powers of the district courts are broad enough to

avoid such unfortunate results because they “assume an even

broader and more flexible character than when only a private

controversy is at stake.” Jd. at 398.

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THE PETITION SHOULD BE GRANTED BECAUSE

THE OPINION BELOW CONFLICTS WITH THIS

COURT’S OPINION IN MEGHRIG DISTINGUISHING

BETWEEN CAUSE OF ACTION AND RELIEF.

In Meghrig, this Court decided that the prerequisite for

stating a proper RCRA cause of action to invoke the District

Court’s jurisdiction is the existence of contamination that

may cause imminent and substantial endangerment to health

and the environment. KFC Western did not qualify because

it had abated petroleum contamination years before filing

suit against the Meghrigs. Without a way to invoke the

District Court’s jurisdiction, KFC Western, of course, had

no way to get any relief. The Meghrig case is limited to

KFC Western’s peculiar facts, as this Court carefully

acknowledged near the end of the opinion.

The lower court and Amoco, however, interpret

Meghrig as if it had decided an issue not then before this

Court — that is, the kind of equitable relief that a District

Court could award if a proper cause of action had been stated

and its equitable jurisdiction had thus been properly

invoked. The misinterpretation seems to rest on this Court’s

use of the word “remedy” in the Meghrig opinion sometimes

to mean cause of action and sometimes to mean relief. In

common usage, “remedy” has both meanings, and the

distinction is not always clear (although in Meghrig the

context makes the meaning clear enough). In Franklin v.

Gwinnett County Public Schools, 403 U.S. 60, 66 (1992),

this Court noted that the federal courts “do not always

distinguish clearly between a right to bring suit and a remedy

available under such a right.” In Bell v. Hood, 327 U.S.

678, 648 (1946), quoted with approval in Franklin, this

Court said that the distinction between a cause of action

and an available remedy wes a jurisdictional rule and

“ ‘upheld the exercise of the federal courts’ power to award

appropriate relief so long as a cause of action existed under

the Constitution or laws of the United States.’ ” Franklin,

403 US. at 66.

In Meghrig, this Court carefully noted that it was not

deciding the kind of relief that would be available to a

plaintiff like Avondale who stated a proper RCRA cause of

action and then sought restitution for post-complaint costs

because those facts were not before it:

Without considering whether a private party

could seek to obtain an injunction requiring

another party to pay cleanup costs which arise

after a RCRA citizen suit has been properly

commenced, ... or otherwise recover cleanup

costs paid out after the invocation of RCRA’s

statutory process, ....

Meghrig, 516 U.S. at 487-88. This limitation has led to

confusion, though it is easy enough to understand if one

considers the context, the facts of the case, this Court’s prior

rulings in cases like Franklin and Bell on the distinction

between cause of action and relief, and the two cases this

Court cited in support of its holding, Middlesex County

Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S.

1, 14-15(1981), and Transamerica Mortgage Advisors, Inc.

v. Lewis, 444 U.S. 11, 19 (1979). In Middlesex, the private

citizen sought compensatory and punitive damages under

“a wide variety of legal theories” for defendants’ failure to

protect the ocean from pollution. One of the theories loosely

connected defendants’ alleged failure to enforce the Clean

Water Act to the damage that plaintiffs’ fishing grounds

had suffered. Not surprisingly, this Court found that RCRA

has no mechanism for stating a cause of action for damages.

Citing Transamerica, this Court said that a court must be

chary of reading remedies — meaning causes of action —

into an act other than those expressly provided.

Amoco argued below that a properly stated cause of

action under RCRA becomes moot and is no longer

justiciable if the dangerous contamination or the violation

that gave rise to the suit is cured during litigation, even if it

is plaintiff that unofficiously cures under protest. But even

in a garden-variety scenario where defendant (not plaintiff)

cures, the Seventh Circuit found otherwise in Atlantic States

Legal Foundation, Inc. v. Stroh Die Casting Co., 116 F.3d

814 (7th Cir. 1997). Defendant’s partially successful efforts

to come into compliance after a citizen suit was filed were

found not to moot the cause of action but merely to change

the kind of relief that plaintiff could obtain.

Alternatively, Amoco argued in circular fashion that

once the danger had been abated, plaintiff's only relief was

money damages unavailable in equity. This argument

ignores the distinction between damages — a remedy at

law measured by plaintiffs loss — and restitution — an

equitable remedy, Mertens, 508 U.S. at 261, measured by

defendant’s benefit. A cause of action that properly invokes

the court’s equitable jurisdiction invokes the court’s full

range of equitable powers, and a prayer for restitution under

those circumstances is not a damage claim. ERISA, a statute

structured for enforcement like RCRA, has been held not

to allow a claim for money damages but, where appropriate,

to allow equitable relief, including restitution of ill-gotten

assets or profits. /d.

The opinion below seizes the wrong end of the

jurisdictional stick, putting relief before cause of action:

“Congress deliberately limited RCRA’s remedies to

injunctive relief — more specifically, injunctive relief

obtained before the property is cleaned up, while the danger

to health or the environment is ‘imminent and substantial.’ ”

In this sentence the Seventh Circuit blurs the distinction

between cause of action and injunctive relief and glosses

over the fact that Avondale stated a proper cause of action,

originally seeking injunctive relief in the form of abatement,

a prayer transmuted by force of circumstances into one for

restitution. The effect of the Seventh Circuit’s interpretation

of RCRA and Meghrig is to force the danger, even in an

emergency, to continue until discovery and a preliminary

hearing have occurred and appeals have been exhausted, a

result that no reading of RCRA suggests was intended by

Congress, which envisioned quick abatement at defendant’s

expense.

The lower court believed Avondale was asking that a

new remedy, meaning cause of action, be read into RCRA,

but that cannot be, for even the lower court does not dispute

that Avondale stated a proper RCRA cause of action for

invoking its equitable powers. Nor does Avondale ask that

any legal remedy such as damages be read into RCRA, for

it did not eliminate the danger before suit and does not seek

any pre-complaint costs. Avondale merely asks that the

District Court exercise its traditional equitable power, after

a finding of Amoco’s liability, to order restitution in the

reasonable amount by which Avondale unofficiously, under

protest, benefitted Amoco during litigation.

CONCLUSION

This case presents three federal questions of exceptional

importance about the breadth of the federal courts’ equitable

jurisdiction to grant complete relief in enforcing statutes,

the integrity of RCRA to implement congressional policy

holding tank owners and operators financially responsible

for promptly abating petroleum contamination while

protecting the public interest and respecting private

interests, and this Court’s distinction in Meghrig between

a RCRA cause of action and appropriate equitable relief.

Respectfully submitted,

JOHNINE J. BROWN

Counsel of Record

SHEILA H. DEELY

THE BROWN ENVIRONMENTAL

Law Group, P.C.

Attorneys for Petitioner

35 East Wacker Drive

Suite 1356

Chicago, Illinois 60601

(312) 236-1450

APPENDIX

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

DATED AND DECIDED MARCH 11, 1999

In the

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

No. 98-2003

AVONDALE FEDERAL SAVINGS BANK,

Plaintiff-Appellant,

Amoco OIL Company, a Maryland corporation,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 96 C 2762 — Charles R. Norgle, Sr., Judge.

ARGUED DECEMBER 4, 1998 — DecIDED MARCH 1 1, 1999

Before Bauer, DiANE P. Woop, and Evans, Circuit

Judges.

Evans, Circuit Judge. Amoco Oil Company owned and

operated a gas station in Lake Forest, Illinois, from 1926 to

1970. Amoco sold the property to George and Margaret

Herman, who in turn sold it to First National Bank of Lake

Forest, which in turn sold it to Lake Forest Savings and

Appendix A

Loan Association. Avondale Federal Savings Bank took title

to the property in 1982 when it merged with Lake Forest

Savings and Loan.

In late 1995 Avondale negotiated to sell the property

to First Chicago Building Corporation — the first in a long

line of parties to insist (wisely, in hindsight) on acquiring

the property with a clean bill of health. To satisfy its

obligations under the purchase agreement with First

Chicago, Avondale had an environmental investigation done

on the property, and the study revealed petroleum

contamination in the soil. Avondale traced the

contamination to Amoco and served Amoco and the

appropriate governmental agencies with a 90-day notice

letter as required by the Resource Conservation and

Recovery Act. Neither the government nor Amoco

responded, and in May 1996, after the 90-day notice period

expired, Avondale sued Amoco seeking an injunction under

§ 6972(a)(1)(B) of RCRA requiring Amoco to clean up the

property. Later that month, before the court ordered any

relief, Avondale excavated and removed three underground

storage tanks, associated piping, and a hydraulic oil

reservoir from the property. By November 1996 Avondale

had cleaned up the soil and remediated the property to meet

the Illinois EPA’s residential standards, so the IEPA issued

a “No Further Remediation Letter” signifying that the

property was clean and absolving Avondale of any further

remediation responsibility. Avondale’s sale to First Chicago

then proceeded without a hitch.

Back in court, Avondale changed its request for an

injunction (which was no longer needed because the

oshieeniilin etieniainiens atetenentiane Meni nden adda ae LN ce ee we

Appendix A

property was cleaned up) to a claim for restitution to recover

the value of the benefit it conferred on Amoco by cleaning

up the mess. Avondale still sought an injunction requiring

Amoco to clean up any further contamination that might be

caused by off-site migration. Amoco moved for summary

judgment, arguing that Avondale failed to satisfy RCRA’s

“imminent and substantial endangerment” requirement. See

42 U.S.C. § 6901 et seg. The district court granted Amoco’s

motion. On Avondale’s claim for restitution for the on-site

contamination cleanup, the court found that it was precluded

from awarding the requested relief under Meghrig v. KFC

Western, Inc., 516 U.S. 479 (1996). On Avondale’s claim

for an injunction for off-site contamination, the court found

that any threat was not imminent.

On appeal Avondale makes two arguments. First, it

argues Meghrig does not preclude the relief sought because

it cleaned up the property after filing its citizen suit and

Meghrig precludes relief only if the property is cleaned up

before suit is filed. Second, Avondale argues the district

court was wrong to conclude that off- site migration posed

no imminent threat. The threat of harm was imminent,

Avondale argues, though the effects of the harm might not

be felt until later. We are not persuaded by either of these

arguments.

In Meghrig the Supreme Court painstakingly analyzed

the language of RCRA’s citizen suit provision and

concluded that RCRA “is not directed at providing

compensation for past cleanup efforts.” 516 U.S. at 484.

Instead, RCRA offers a private citizen a choice of two

remedies: “a mandatory injunction, i.e., one that orders a

Appendix A

responsible party to ‘take action’ by attending to the cleanup

and proper disposal of toxic waste, or a prohibitory

injunction, i.e., one that ‘restrains’ a responsible party from

further violating RCRA.” /d. “Neither remedy, however, . . .

contemplates the award of past cleanup costs, whether these

are denominated ‘damages’ or ‘equitable restitution.’ ” Jd.

We think this precise language in Meghrig bars the remedy

Avondale seeks.

But Avondale has latched onto the language in the last

paragraph of Meghrig where the Court also said: “Without

considering whether a private party could seek to obtain an

injunction requiring another party to pay cleanup costs

which arise after a RCRA citizen suit has been properly

commenced, ... or otherwise recover cleanup costs paid

out after the invocation of RCRA’s statutory process, we

agree with the Meghrigs that a private party cannot recover

the cost of a past cleanup effort under RCRA... .”

Id. at 488 (emphasis added). This is the precise language

Avondale thinks saves it from defeat.

We think reading this sentence in isolation and to the

exclusion of the rest of the opinion — which is what we

have to do for Avondale to prevail — betrays the Supreme

Court’s resounding message. The entire opinion, save this

one sentence, emphasizes that in interpreting RCRA we

need to take Congress at its word and that we must “be

chary of reading” additional remedies into a statute that,

like RCRA, expressly provides for a particular remedy.

Id. at 488 (quoting Middlesex County Sewerage Auth. v.

National Sea Clammers Ass'n, 453 U.S. 1, 14-15 (1981)).

The dissent is willing to read an additional remedy into

Appendix A

RCRA — namely, reimbursement of cleanup costs. But we

are not. Congress deliberately limited RCRA’s remedies to

injunctive relief — more specifically, injunctive relief

obtained before the property is cleaned up, while the danger

to health or the environment is “imminent and substantial.”

42 U.S.C. § 6972(a)(1)(B). Neither Meghrig nor RCRA can

be read to allow a party to recover cleanup costs. And,

neither Meghrig nor RCRA exempts from that principle

cleanup costs incurred after RCRA is invoked. Given the

Supreme Court’s admonition that we must strictly follow

RCRA’s statutory scheme, we are unwilling to accept

Avondale’s invitation to expand RCRA’s remedial reach.

Quite simply, RCRA’s remedial scheme could have worked

here. Avondale properly invoked the scheme by filing suit.

for an injunction before taking any action to clean up the

property. But Avondale got antsy and chose not to wait for

the wheels of justice to spin. It made a business decision to

clean up the property quickly so it could close the deal with

First Chicago. That decision allowed Avondale to take

advantage of a business opportunity that may very well have

evaporated by the time any injunction issued. But it doesn’t

change RCRA’s remedial scheme.

In short, although Meghrig may have left an opening

for private remedies to redress cleanup costs that arise after

a RCRA citizen suit is filed, Avondale cannot Squeeze

through in this instance. No matter how it categorizes its

claim, Avondale wants to get back from Amoco the money

it spent to clean up the contamination it thinks Amoco

caused. While this certainly seems fair, it is simply not

allowed under RCRA. Avondale may still get money from

Amoco — but not in this court and not under RCRA.

Appendix A

Avondale has a number of state law recovery theories

available to it and, in the end, justice can be done.

Avondale’s claim for an injunction requiring Amoco

to clean up off-site contamination also fails, though for a

different reason. Here, Avondale sought the right relief —

a mandatory injunction — but the claim was premature

under RCRA. Avondale’s own expert testified that “if

excavation is ever performed under the streets adjacent

to the property, petroleum contamination will be found at

levels requiring abatement to protect health and the

environment.” (Emphasis added.) Thus off-site

contamination may very well present an imminent and

substantial danger at some point, but it does not present

such a danger right now.

For these reasons, we affirm the district court’s entry

of summary judgment in Amoco’s favor.

Appendix A

Diane P. Woon, Circuit Judge, concurring in part and

dissenting in part. No one would disagree that the result

the majority feels constrained to reach today creates

perverse incentives for landowners whose property has been

contaminated by another party. Feeling bound by the

language of the Resource Conservation and Recovery Act

(“RCRA”), 42 U.S.C. § 6972(a)(1)(B), and the Supreme

Court’s decision in Meghrig v. KFC Western, Inc., 516 U.S.

479 (1996), the majority concludes that landowners who

comply with all prerequisites to a suit under RCRA and

who file a timely action must nonetheless refrain from

conducting any clean-up operations until a court has had

time to rule on a motion for an injunction, unless the

landowner wants to be stuck with the bill and provide a

windfall to the polluter. In my view, nothing in either the

statute or Meghrig compels such an undesirable result, and

I dissent from that part of the court’s holding. For the

reasons stated in the court’s opinion, I agree that Avondale

was not entitled to an injunction requiring Amoco to clean

up off-site contamination, and I therefore concur in that part

of the judgment.

My first point of disagreement is a fundamental one.

The majority sees no distinction between the situation

presented in Meghrig, in which the property owner cleaned

up its property before filing suit, and our case, in which

Avondale waited to clean up the property until after it filed

its RCRA action. I disagree. The pre-filing period has

independent significance under the statutory scheme

Congress created, and a person who tries to circumvent that

scheme (like the Meghrig plaintiff) has nothing left but a

suit for reimbursement of monies spent by the time litigation

Appendix A

begins. The person who complies with the pre-filing

requirements RCRA imposes gives the statutory system a

chance to work. Furthermore, at the time the suit is filed,

the latter person is seeking precisely the injunctive relief

that § 6972(a)(1)(B) authorizes. Just because the person

attempts to mitigate damages and clean up the property

sooner rather than later changes neither of those facts.

A look at the pre-filing requirements helps to show why

the two cases should be treated differently under the statute.

RCRA imposes several detailed requirements on

potential plaintiffs who want to bring suit under its citizen

suit provision. A citizen plaintiff must provide notice to

the potential defendant and wait 60 days before actually

filing suit, so that the defendant may act on its own initiative

to clean up the site and thus avoid the costs of litigation

to the parties and the environment. See 42 U.S.C.

§§ 6972(b), (c). In the Meghrig situation, a jump-the-gun

plaintiff frustrates this important purpose. In the case before

us, in contrast, Avondale fulfilled all of the requirements

for filing suit and the defendant, Amoco, indicated that it

intended to contest its liability, as it was entitled to do.

Avondale therefore filed its complaint on May 8, 1996,

seeking declaratory and injunctive relief — precisely the

forms of relief that § 6972(a)(1)(B) authorizes. Shortly

thereafter, Avondale uncovered some corroded underground

storage tanks (“USTs”) on the site, which were filled with

a gasoline and water mixture. It also found petroleum in

the soil at concentrations exceeding state cleanup levels,

and it found petroleum in perched groundwater, which acted

as a subterranean pathway for off-site migration. An Amoco

representative who was present when Avondale uncovered

Appendix A

and removed the USTs commented at the time, “These are

probably our USTs.”

Only then, after suit was filed and after it realized the

gravity of the situation and the potential for further

spreading of the hazardous material, did Avondale undertake

clean-up measures. It did so (as it was required to do) in

accordance with the Illinois Pre-Notice Site Program, which

is administered by the Illinois Environmental Protection

Agency (“IEPA”). IEPA approved a level of remedial action

that met state objectives for circumstances in which

groundwater is contaminated and, significantly, off-site

migration is likely. On November 20, 1996, IEPA issued a

No Further Remediation Letter that released Avondale

(but not Amoco) from further responsibility under state law.

The letter did not address any action with respect to

contaminants not mentioned in the plan or contaminants

that had migrated to other sites. Amoco then moved for

summary judgment, on the ground that Avondale had

foolishly lost its RCRA right to relief by cleaning up the

site and preventing any future migration.

While it agrees that the Supreme Court’s decision in

Meghrig did not address the precise question before us, the

majority has chosen to extend Meghrig to our situation. This

is a step I would not take. In Meghrig, the question before

the Supreme Court was, in its own words:

whether § 7002 of the Resource Conservation

and Recovery Act of 1976 (RCRA), 42 U.S.C.

§ 6972 (1988 ed.) authorizes a private cause of

action to recover the prior cost of cleaning up

10a

Appendix A

toxic waste that does not, at the time of suit,

continue to pose an endangerment to health or

the environment.

516 U.S. ai 481. It answered that question in the negative,

for several reasons. First, it noted that the language of

§ 6972 refers to mandatory and prohibitory injunctions. This

could not encompass an award of past cleanup costs, the

Court held, whether they were labeled “equitable

restitution” or “damages.” In making this connection, it

contrasted the broader language of the citizen suit provision

found in the Comprehensive Environmental Response,

Compensation and Liability Act (“CERCLA”), 42 U.S.C.

§ 9659(c), and found that the lack of language in RCRA

permitting recovery of past cleanup costs was a clear sign

from Congress about the scope of the two laws. Second,

the Court pointed out that the need for imminent action

implicit in the RCRA scheme has plainly passed for a parcel

that has been cleaned up, when the only remaining dispute

is about money. RCRA also lacks a statute of limitations

— a serious concern if one is talking about past

expenditures, as opposed to something that happens after

suit is filed — and it does not contain an express provision

requiring that the response costs sought must be reasonable.

At the end of its opinion, the Court emphasized that its

ruling was not intended to address the distinct question

before us today. Again, it is best to let the Court speak for

itself:

Without considering whether a private party

could seek to obtain an injunction requiring

lla

Appendix A

another party to pay cleanup costs which arise

after a RCRA citizen suit has been properly

commenced, ... or otherwise recover cleanup

costs paid out after the invocation of RCRA’s

Statutory process, we agree with the Meghrigs

that a private party cannot recover the cost of a

past cleanup effort under RCRA, and that KFC’s

complaint is defective for the reasons stated by

the District Court.

516 U.S. at 488 (citation omitted). In my view, when the

Supreme Court cautions us not to interpret its decision in a

certain way, we should take heed. The language just quoted

makes it clear that the Court saw distinctions between the

recovery of pre-filing cleanup costs and the recovery of post-

filing cleanup expenses. Here, when Avondale filed its suit,

it was plainly eligible for an injunction requiring Amoco to

clean up the site (assuming, obviously, that it could prove

Amoco’s liability on the merits). At that point, § 6972

empowered the district court not only to order responsible

parties to clean up hazardous waste sites, but also “to order

such person to take such other action as may be necessary.”

42 U.S.C. § 6972. This is hardly what one would call

constraining language. To the contrary, it indicates to me

that once the court’s equitable jurisdiction was properly

invoked, the full range of equitable remedies were available

to the court. If the plaintiff found it necessary to clean up

some or all of the property while the suit was pending, the

court could order the wrongdoer to make equitable

restitution of that amount by which it had been unjustly

enriched. In this context, it is important to note that the

measure of unjust enrichment would not necessarily be

12a

Appendix A

equal to the amount the plaintiff spent. If a property owner

took actions that the court would not have required of the

wrongdoer, whether those were extra studies, remediation

to standards that were too strict, or wasteful scheduling,

those actions would not have unjustly enriched the

wrongdoer, and thus there would be no call for equitable

restitution. (A damages remedy, in contrast, would put the

plaintiff in the position it would have enjoyed had it not

been for the wrong, which is quite a different matter.) |

read the Court’s rejection of equitable restitution in Meghrig

to mean only that one cannot avoid RCRA’s pre-filing

requirements and re-label a damages claim as restitution,

and remain true to the language of the statute.

Nothing in Meghrig answers another important

question, which also points in the direction of allowing the

present action. It provides no guidance about whether the

category of “past cleanup efforts” for which private citizens

cannot recover costs should be defined by reference to the

time at which the suit is filed or the time judgment is entered.

The choice of one approach over the other is not without

consequence. By definition, the hazardous waste

sites to which RCRA applies pose an “imminent and

substantial endangerment to health or the environment,” and

therefore the extra time that passes between the filing of a

lawsuit and the issuing of a cleanup order may often serve

to aggravate an already precarious situation. We should not

be blind to the realities of litigation, and one of those

realities is that with today’s crowded dockets it takes time

even to demonstrate an entitlement to a preliminary

injunction. Thus the court’s holding is particularly ironic

because it essentially finds that a statute designed to remedy

13a

Appendix A

imminent and substantial environmental hazards must on

occasion operate to exacerbate these hazards rather than to

ameliorate them. Foot-dragging is hardly unknown in

environmental litigation, whenever a defendant believes that

it will be better off if it delays the progress of the case,

where losing later simply means it will have to pay later.

As the court envisions RCRA’s statutory scheme,

defendants have an extra incentive to stall because the longer

the lawsuit runs, the more likely it is that another party will

as a practical matter be forced to take it upon itself to clean

up the defendants’ messes. In the absence of a clear signal

from Congress and the Supreme Court that we are forced

to this pass, | cannot read the law this way.

Instead, in my view, if a citizen plaintiff has fulfilled

all of the statutory requirements to bring suit under § 6972

and has filed such an action, RCRA permits the plaintiff to

clean up the environmental hazard during the pendency of

the lawsuit and, upon a finding of liability against the

defendant, obtain an order from the court requiring the

defendant to pay the plaintiff an amount equal to the cost

the court would have imposed on the defendant for clean-

up. I therefore respectfully dissent from this part of the

judgment of the court.

A true Copy:

Teste:

Clerk of the United States Court

of Appeals for the Seventh Circuit

l4a

APPENDIX B — JUDGMENT OF THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH

CIRCUIT DATED MARCH 11, 1999

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

JUDGMENT - WITH ORAL ARGUMENT

Date: March 11, 1999

BEFORE: Honorable WILLIAM J. BAUER,

Circuit Judge

Honorable DIANE P. WOOD,

Circuit Judge

Honorable TERENCE T. EVANS,

Circuit Judge

No. 98-2003

AVONDALE FEDERAL SAVINGS BANK,

Plaintiff — Appellant

AMOCO OIL COMPANY, A Maryland Corporation,

Defendant — Appellee

lSa

Appendix B

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 96 C 2762, Charles R. Norgle, Judge

The judgment of the District Court is AFFIRMED, with

costs, in accordance with the decision of this court entered

on this date.

16a

APPENDIX C — OPINION AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS, EASTERN

DIVISION DATED MARCH 19, 1998 AND

DOCKETED MARCH 24, 1998

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NO. 96 C 2762

HONORABLE CHARLES R. NORGLE

Avondale Federal Savings Bank,

Plaintiff,

Amoco Oil Company, a Maryland corporation,

Defendant.

OPINION AND ORDER

CHARLES R. NORGLE, SR., District Judge:

Before the court is Defendant Amoco Oil Company’s

Motion for Summary Judgment. For the following reasons,

Defendant’s motion is granted in part, and denied in part.

17a

Appendix C

I. BACKGROUND!

Plaintiff, Avondale Federal Savings Bank

(“Avondale”), filed a Second Amended Complaint for

Declaratory Judgment and Other Relief against Amoco Oil

Company (“Amoco”). In Counts I and II, brought pursuant

to the Resource Conservation and Recovery Act (“RCRA”),

42 U.S.C. § 6972, Avondale seeks: (1) recovery of the

cleanup costs it incurred investigating and remediating solid

or hazardous waste at 300 East Illinois Road, Lake Forest,

Illinois (“Property”); and (2) an order requiring Amoco to

undertake at its expense “any future action that may be

required for residual on-site contamination caused by

Amoco’s USTs [underground storage tanks] or for

contamination that migrated on-site from them.” (P1.’s Resp.

at 5.) In Counts III and IV, brought pursuant to state

common law, Avondale seeks recovery of the cleanup costs

it incurred investigating and remediating solid or hazardous

waste at the Property.

From approximately November 19, 1926, to June 26.

1970, Amoco owned a gasoline service station located on

the Property. In 1970, Amoco razed the gasoline service

station, including all buildings, driveways, and approaches.

On June 26, 1970, Amoco transferred the Property via

warranty deed to George W. and Margaret M. Herman

(“Hermans”) who owned the Property from approximately

June 26, 1970, to January 2, 1975. On January 2, 1975, the

Hermans transferred the Property via warranty deed to First

1. The following facts are taken from the court’s reconciliation

of the parties Local Rule 12(M) and 12(N) statements.

18a

Appendix C

National Bank of Lake Forest (“First National’””) who owned

the Property from approximately January 2, 1975, to July

1, 1975. On July 1, 1975, First National transferred the

Property via warranty deed to Lake Forest Savings and Loan

Association (“Lake Forest”). In December of 1982, Lake

Forest merged into Avondale, and Avondale acquired title

to the Property. Avondale then improved the Property with

a parking lot and a building, and used it as a bank.

In late 1995, in anticipation of selling the Property,

Avondale conducted an environmental investigation of the

Property. Boelter Environmental Consultants (“Boelter’”’)

on November 17, 1995, and EPS Environmental Services,

Inc. (“EPS”) on April 18, 1996, performed soil borings on

the Property. The soil borings allegedly showed that there

was petroleum contamination in the Property’s soil at

concentrations exceeding Illinois’ cleanup objectives.

On January 22, 1996, pursuant to RCRA’s mandatory

notice provision, 42 U.S.C. § 6972(b)(2)(A), Avondale

served Amoco with a 90-day “Notice of Endangerment and

Notice of Intent to Sue” (“90-day notice”) for contributing

to petroleum contamination on the Property that may present

an imminent and substantial endangerment. Avondale also

notified the necessary governmental officials and agencies

pursuant to RCRA’s mandatory notice provision to give

them an opportunity to file a civil action against Amoco;

the governmental officials and agencies did not choose to

do so.

On January 29, 1996, Avondale entered into a Purchase

and Sale Agreement with First Chicago Building

19a

Appendix C

Corporation (“First Chicago”) to sell the Property. As a

condition of the purchase of the Property, First Chicago

required Avondale to deliver the Property in a clean

condition without any contamination and a “No Further

Remediation Letter” from the Illinois Environmental

Protection Agency (“IEPA”).

On February 12, 1996, Amoco acknowledged receiving

the 90-day notice and requested the environmental records

and reports referenced in the 90-day notice; Amoco did not

concede any liability or offer to remediate any alleged

contamination. Avondale promptly provided the requested

records and reports to Amoco.

On March 15, 1996, EPS discovered three USTs

allegedly full of gasoline and water; strong petroleum odors

allegedly emanated from the soils surrounding the USTs.

EPS also allegedly discovered miscellaneous piping, a

45-gallon hydraulic oil reservoir, and a rectangular concrete

containment structure on the Property.

On March 25, 1996, Amoco requested additional

information. Amoco, however, did not volunteer to

investigate or remediate the alleged contamination, but

requested Avondale to perform additional tests and provide

complete chemical analyses of specified petroleum markers.

Avondale undertook the requested chemical analyses and

provided the results on May 9, 1996.

On May 8, 1996, Avondale filed its original Complaint

against Amoco. The 90-day notice period had expired in

late April without any acknowledgment of liability or offer

20a

Appendix C

by Amoco to perform the necessary remediation of the

alleged contamination. Amoco did, however, request to

participate in the excavation of the USTs and sampling

process.

After Amoco allegedly refused to remediate the alleged

endangerment caused by leaking USTs, Avondale allegedly

informed Amoco that it was undertaking remediation and

would hold Amoco responsible for the costs. Avondale

entered a voluntary cleanup program offered by IEPA under

which IEPA provided oversight and approval of Avondale’s

remediation plan.

On May 21, 1996, three USTs and associated piping,

as well as the 45-gallon hydraulic oil reservoir were

uncovered, pumped free of gasoline and water, excavated,

cleaned, and transported off the Property. Soil remediation

was completed in late 1996. Avondale has remediated the

Property to the most stringent standards established by

IEPA, the “Tier I Residential Cleanup Objectives.”

On November 20, 1996, IEPA issued a “No Further

Remediaton Letter” (“IEPA Letter”). The IEPA Letter states

that IEPA reviewed the “Remedial Action Completion

Report” for the Property and that the remedial action was

completed in accordance with the “Remedial Action Plan.”

The IEPA Letter further states that its issuance “signifies a

release from further responsibilities under the [Illinois

Environment Protection] Act in performing the approved

remedial action and shall be considered prima facie evidence

that the remediation site . . . does not constitute a threat to

human health and the environment and does not require

21a

Appendix C

further remediation under the Act.” (Def.’s 12(M) Stmt. at

Ex. C.)

On November 22, 1996, Avondale transferred the

Property to First Chicago. Accordingly, Avondale seeks

recovery of the cleanup costs it incurred after properly

invoking RCRA’s statutory process. In addition, Avondale

seeks an order requiring Amoco to remediate at its expense

any future residual contamination on the Property or off-site

migration of contamination therefrom. Avondale maintains

that “[i]f excavation is ever performed under the streets

adjacent to the Lake Forest Property, petroleum

contamination will be found at levels requiring abatement

to protect human health and the environment.” (P1.’s 12(N)

Stmt. at | 57.) Amoco moves for summary judgment.

II. DISCUSSION

Rule 56(c) of the Federal Rules of Civil Procedure

provides that summary judgment “shall be rendered

forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). “An

issue of fact is genuine only ‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving

party.’ ” Smith v. Severn, 129 F.3d 419, 426 (7th Cir. 1997)

(quoting Newell v. Westinghouse Elec. Corp., 36 F.3d 576,

578 (7th Cir. 1994)) (citation omitted).

22a

Appendix C

“One of the principal purposes of the summary

judgment rule is to isolate and dispose of factually

unsupported claims or defenses.” Celotex Corp. v. Catrett,

477 U.S. 317, 323-24 (1986). When considering all the

evidence presented in a motion for summary judgment, a

court cannot make credibility determinations. See Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court

must “view the record and all reasonable inferences drawn

from the record in the light most favorable to the

non-moving party.” Sample v. Aldi, Inc., 61 F.3d 544, 546

(7th Cir. 1995).

“If the non-moving party bears the burden of proof on

an issue, that party may not rest on the pleadings and must

instead show that there is a genuine issue of material fact.”

Id. at 547. “[A] party will be successful in opposing

summary judgment only when they present definite,

competent evidence to rebut the motion.” Severn, 129 F.3d

at 427 (citations and internal quotation marks omitted). The

non-moving party, therefore, will not survive summary

judgment with merely a scintilla of evidence supporting its

position. See Essex v. United Parcel Serv., Inc., 111 F.3d

1304, 1308 (7th Cir. 1997).

“The question is whether the evidence presents a

sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a

matter of law.” Severn, 129 F.3d at 427. Accordingly, “if

the evidence presented by the parties is subject to conflicting

interpretations, or if reasonable minds could differ as to its

significance,” summary judgment must not be granted.

O'Connor v. Chicago Trans. Auth., 985 F.2d 1362, 1360

(7th Cir. 1993).

23a

Appendix C

A. RCRA Claims

The citizen suits provision of RCRA states, in relevant

part, that a citizen suit may be brought against any “past or

present owner or operator of a ... 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). When a

citizen suit is brought pursuant to § 6972(a)(1)(B), the

District Court has jurisdiction: “[1] to restrain any person

who has contributed or is contributing to the past or present

handling, storage, treatment, transportation, or disposal of

any solid or hazardous waste referred to in paragraph (1)(B);

[2] to order such person to take such other action as may be

necessary; or [3] both. . . .” 42 U.S.C. § 6972(a).

In this case, Avondale seeks: (1) recovery of cleanup

costs it incurred after properly invoking RCRA’s statutory

process (“restitution”); and (2) an order requiring Amoco

to remediate at its expense any future residual contamination

on the Property or off-site migration of contamination

therefrom (“injunction”). With respect to the restitution

sought, Amoco argues that it is entitled to summary

judgment because RCRA does not authorize the recovery

of cleanup costs incurred after properly invoking RCRA’s

Statutory process. With respect to the injunction sought,

Amoco argues that it is entitled to summary judgment

because Avondale cannot show that an imminent and

substantial endangerment to health or the environment

currently exists.

24a

Appendix C

1. Restitution

Recently, the Supreme Court held that “a private party

cannot recover the cost of a past cleanup effort under

RCRA.” Meghrig v. KFC W., Inc., 116 S. Ct. 1251, 1256

(1996). The Supreme Court, however, left open for the lower

courts to determine whether a private party could recover

cleanup costs incurred after properly commencing a RCRA

citizen suit or invoking RCRA’s statutory process. /d. Here,

the court is asked to determine the issue the Supreme Court

left open. In so doing, the court relies on the Supreme

Court’s opinion in Meghrig. Id. Although the Meghrig

opinion was in the context of past cleanup costs, incurred

before properly invoking RCRA’s statutory process, the

reasoning behind the Supreme Court’s decision in Meghrig

is equally applicable here. See Agric. Excess and Surplus

Ins. Co. v. A.B.D. Tank & Pump Co., No. 95 C 3681, 1996

WL 515088, at *2 (N.D. Ill. Sept. 6, 1996); Andritz

Sprout-Bauer, Inc. v. Beazer East, Inc., 174 F.R.D. 609,

618 (M.D. Penn. 1997).

In Meghrig, the Supreme Court concluded that costs

for past cleanup efforts are not recoverable under RCRA

for two reasons: (1) § 6972(a)(1)(B) permits a citizen suit

if there is “an imminent and substantial endangerment to

health or the environment” (“timing requirement’); and

(2) § 6972(a) sets forth two remedies the District Court is

authorized to provided in a suit brought pursuant to

§ 6972(a)(1)(B) (“remedy requirement”). See Meghrig, 116

S. Ct. at 1254. Based on the latter reason, remedy

requirement, the court concludes that a private party cannot

recover cleanup costs incurred after properly invoking

25a

Appendix C

RCRA’s statutory process. See Agric. Excess, 1996 WL

515088, at *2 (“[U]nder the Supreme Court’s reasoning in

Meghrig, this Court feels compelled to find that Plaintiff's

also may not recover cleanup costs incurred after the

invocation of RCRA’s statutory process.”); Andritz, 174

F.R.D. at 618 (“No framework has been provided by

Congress for pursuing a private right of action for costs

[incurred after invoking RCRA’s statutory process], a clear

signal that Congress did not intend to create such a cause

of action.”). But see PMC, Inc. v. Sherwin-Williams Co.,

No. 93 C 1379, 1997 WL 223060, at * 13 (N.D. Ill. April

29, 1997) (“While it is clear from the case law that

restitutionary relief for completed remediation efforts is not

available, [citation omitted], there is no prohibition against

recovery relating to contamination that has not been

abated.”’).

Pursuant to § 6972(a), Congress authorized the District

Court to order “a mandatory injunction, i.e., one that orders

a responsible party to ‘take action’ by attending to the

cleanup and proper disposal of toxic waste, or a prohibitory

injunction, i.e., one that ‘restrains’ a responsible party from

further violating RCRA.” See Meghrig, 116 S. Ct. at 1254;

see also 42 U.S.C. § 6972(a). Congress did not expressly

authorize the District Court to award cleanup costs. Cf. id.

If Congress so intended, “it knew how to provide for the

recovery of cleanup costs, and ... the language used to

define the remedies under RCRA does not provide that

remedy.” See Meghrig, 116 S. Ct. at 1255.

As the Supreme Court noted in Meghrig, a comparison

between the Comprehensive Environmental Response,

26a

Appendix C

Compensation and Liability Act of 1980 (“CERCLA”) and

RCRA is telling. Jd. at 1253-54. CERCLA was enacted

several years after RCRA to address many of the same toxic

waste problems addressed by RCRA. /d. at 1254. CERCLA

was “designed to effectuate the cleanup of toxic waste sites

or to compensate those who have attended to the remediation

of environmental hazards.” /d. at 1254. In order to achieve

that purpose, Congress expressly provides for the recovery

of cleanup costs in CERCLA. /d. at 1255.

RCRA, on the other hand, was designed “ ‘to minimize

the present and future threat to human health and the

environment’ ” and not to function as a “cost-recovery

mechanism.” /d. at 1254-55. As such, Congress did not

expressly provide for the recovery of cleanup costs in RCRA

nor intend to do so. Cf. id. at 1255; see also 42 U.S.C.

§ 6072(a). In Meghrig, the Supreme Court noted that

“RCRA’s enforcement scheme strongly support[ed]” its

conclusion that RCRA does not authorize recovery of past

cleanup costs. /d. at 1255. Specifically, the Supreme Court

noted that “[uJnlike CERCLA, RCRA contains no statute

of limitations . . . and it does not require a showing that the

response costs being sought are reasonable.” /d. (citations

omitted). Similarly, the absence of these provisions support

the conclusion that RCRA does not authorize the recovery

of cleanup costs incurred after properly invoking RCRA’s

statutory provisions. See Agric. Excess, 1996 WL 515088,

at *3.

In addition, under RCRA, a citizen suit can only be

brought if the Environmental Protection Agency and the

State choose not to commence and prosecute a separate

27a

Appendix C

enforcement action. See Meghrig, 116 S. Ct. at 1255: see

also 42 U.S.C. §§ 6972(b)(2)(B), (b)(2)(C). Hence, if RCRA

authorized the recovery of past cleanup costs, only “[t]hose

parties with insubstantial problems, problems that neither

the State nor the Federal Government feel compelled to

address, could recover their response costs, whereas those

parties whose waste problems were sufficiently severe as

to attract the attention of Government officials would be

left without a recovery.” Meghrig, 116 S. Ct. at 1255. Thus,

the Supreme Court concluded that RCRA “would be a

wholly irrational mechanism” for compensating for past

cleanup costs because only parties cleaning up insubstantial

waste problems could recover. /d.

Similarly, the court concludes that the RCRA “would

be a wholly irrational mechanism” for compensating

cleanup costs incurred after properly invoking RCRA’s

Statutory process since only a party cleaning up

“insubstantial” waste problems? could recover. Cf. id. To

illustrate the irrationality, Party A needs to cleanup Site A.

Party A invokes RCRA’s statutory process, and the

2. For purposes of the hypothetical, whether a waste problem

is characterized as “substantial” or “insubstantial” is to connote

whether the Government intervenes after receiving notice of the

problem. See 42 U.S.C. § 6972(b)(2)(A) (before a citizen suit can

be brought pursuant to RCRA, the Environmental Protection

Agency and the State must be given an opportunity to file a civil

action against the responsible party). An “insubstantial” waste

problem is one that “neither the State nor the Federal Government

feel compelled to address.” Meghrig, 116 S. Ct. at 1255. A

“substantial” waste problem is one that the Government does feel

compelled to address. Cf. id.

28a

Appendix C

Government decides not to intervene (an insubstantial waste

problem). As a result, Party A can begin immediately

thereafter to remediate the contamination and recover its

costs from the responsible party. Consequently, Party A

would have the option to begin the remediation process right

away and recover its cleanup costs. In other words, Party A

would not be required to wait until it wins its citizen suit.

By contrast, Party B needs to cleanup Site B. Party B

invokes RCRA’s statutory process, and the Government

decides to intervene (a substantial waste problem). As a

result, Party B would not incur any costs since it would be

presumably incumbent upon the intervening Government

officials to prosecute a separate enforcement proceeding

against the responsible party. Consequently, Party B would

be in the same position as if RCRA did not authorize

recovery of cleanup costs. In other words, even if RCRA

authorized recovery of cleanup costs, Party B would be

required to wait until the Government wins its enforcement

suit before any remediation of the alleged contamination

can take place.

It is doubtful that Congress designed RCRA to allow

Party A, cleaning up insubstantial waste problems, to

recover cleanup costs incurred after properly invoking

RCRA’s statutory process while precluding Party B,

cleaning up substantial waste problems, from recovering

such costs. Furthermore, if RCRA authorized the recovery

of cleanup costs incurred after invoking RCRA’s statutory

process, it would undermine the methodology that Congress

employed to safeguard human health and the environment.

Cf. id. at 1254 (RCRA’s primary purpose is to “minimize

29a

Appendix C

the present and future threat to human health and the

environment.’’).

As the above illustration shows, if RCRA provides

recovery of cleanup costs, Party A, remediating an

insubstantial waste problem, can begin remediation

immediately after invoking RCRA’s statutory process and

then recover its cleanup costs after the conclusion of its

citizen suit. By contrast, Party B, remediating a substantial

waste problem, would have to wait for the Government to

win its enforcement suit before any remediation can take

place. As a result, Party A’s waste problem would be

remedied faster than Party B’s waste problem. It is unlikely

that Congress intended to safeguard human health and the

environment by employing a methodology that results in

cleaning up insubstantial waste problems faster than

substantial waste problems.°

Accordingly, based on the “limited remedies described

in § 6972(a), along with the stark differences between the

language of that section and the cost recovery provisions

of CERCLA,” the court concludes that RCRA “would be a

wholly irrational mechanism” for compensating cleanup

costs incurred after properly invoking RCRA’s statutory

3. The court assumes that Government intervention is more

likely where a site is more dangerous to human health and the

environment. That assumption was apparently shared by the

Supreme Court in Meghrig when it used the terms “substantial”

and “insubstantial” to conclude that RCRA “would be a wholly

irrational mechanism” for compensating for past cleanup costs

because only parties cleaning up insubstantial waste problems could

recover. See 116 S. Ct. at 1255.

30a

Appendix C

process. Cf. id at 1255-56; see also Express Car Wash Corp.

v. [rinaga Bros., Inc., 967 F. Supp. 1188, 1194 (D. Or. June

4, 1997) (“[T]he Supreme Court’s logic in Meghrig indicates

that, if squarely faced with the question at issue here, it

would hold that RCRA does not allow a plaintiff to recover

any costs for remediation substantially in place at the time

of suit.”); Orange Env't, Inc. v. County of Orange, 923

F. Supp. 529, 539 (S.D.N.Y. 1996) (“[T]he [Meghrig]

opinion suggests that the Court would be reluctant to read

into the RCRA remedies not clearly provided by

Congress.”’); cf AM Int'l, Inc. v. Datacard Corp., DBS, Inc.,

106 F.3d 1342, 1348 (7th Cir. 1997) (citing Meghrig, 116

S. Ct. at 1251 (RCRA does not allow a party to clean up

site and sue for response costs in lieu of seeking an

injunction)); Nutrasweet Co. v. X-L Eng'g Corp., 926

F. Supp. 767, 771 (N.D. Ill. 1996) (J. Norgle) (This court

opined that there is no private right of action under RCRA

for the recovery of investigation and remediation costs, and

that the plaintiff would have to seek such costs by bringing

a State law tort claim.).

Avondale argues that such an interpretation results in a

RCRA that is “ ‘a wholly irrational mechanism — and a

wholly ineffective and unfair one — if a defendant like

Amoco were to be allowed to escape its statutory duties

and responsibilities simply by manipulating the RCRA

process to evade them.” (PI’s Resp. at 16.) This, however,

is not the case. Under the courts interpretation of RCRA, a

defendant like Amoco, assuming it is the responsible party,

would not escape its statutory duties and responsibilities

since a plaintiff like Avondale is entitled to bring a citizen

suit to enforce remediation of the alleged contamination.

3la

Appendix C

See Meghrig, 116 S. Ct. at 1254: see also 42 U.S.C.

§ 6972(a). Concluding that RCRA does not authorize the

recovery of cleanup costs merely confirms that plaintiff

cannot “clean up [a] site and sue for response costs in lieu

of seeking an injunction.” Cf AM Int'l, Inc., 106 F.3d at

1348 (citing Meghrig, 116 S. Ct. at 1251). Moreover, if

plaintiff chooses to clean up the site in lieu of seeking an

injunction, it can still pursue its cleanup costs against the

responsible party under other federal or state laws.

See Meghrig, 116 S. Ct. at 1256.

Therefore, the court grants Amoco’s motion for

summary judgment to the extent that Avondale seeks

recovery of the cleanup costs it incurred after properly

invoking RCRA’s statutory process.

2. Injunction

Section 6972(a)(1)(B) provides that a citizen suit may

be brought only upon showing that the solid or hazardous

waste involved “may present an imminent and substantial

endangerment to health or the environment.” See also

Meghrig, 116 S. Ct. at 1255. “The meaning of this timing

restriction is plain: An endangerment can only be

‘imminent’ if it ‘threaten[s] to occur immediately.’ ” /d.

(citation omitted). “ ‘[T]here must be a threat which is

present now, although the impact of the threat may not be

felt until later.’ ” Jd. (citing Price v. United States Navy, 39

F.3d 1011, 1019 (1994)).

Avondale argues that it is entitled to an order

compelling Amoco to remediate at its expense any future

32a

Appendix C

residual contamination on the Property or off-site migration

of contamination therefrom. According to Avondale,

“[{c]ontamination from Amoco’s USTs is known to have

migrated from the Property under adjacent streets, but it

was not remediated as part of Avondale’s abatement because

IEPA did not require it.” (Pl.’s Resp. at 27.) Additionally,

Avondale asserts that “[i]f and when adjacent properties

are excavated or otherwise disturbed, they will be found to

be contaminated by petroleum from Amoco’s USTs at level

requiring abatement.” /d. Therefore, Avondale argues that

it is “entitled to injunctive and declaratory relief

against Amoco ... for contributing to existing off-site

contamination that may in the future cause danger serious

enough to require abatement.” Jd.

The court need not go any further than Avondale’s own

evidence and arguments to conclude that there is no

imminent and substantial endangerment to human health

or the environment. Avondale states that it seeks an order

compelling Amoco to remediate at its expense

“contamination that may in the future cause danger serious

enough to require abatement.” /d. There is no evidence to

show that there exists any solid or hazardous waste that

causes endangerment to human health or the environment

now. See Meghrig, 116 S. Ct. at 1255 (citing Price, 39 F.3d

at 1019).

This conclusion is further supported by IEPA’s issuance

of a “No Further Remediation Letter.” The IEPA Letter

states that its issuance “signifies a release from further

responsibilities under the [Illinois Environment Protection]

Act in performing the approved remedial action and shall

33a

Appendix C

be considered prima facie evidence that the remediation site

[the Property] ... does not constitute a threat to human

health and the environment and does not require further

remediation under the Act.” (Def.’s 12(M) Stmt. at Ex. C.)

Therefore, the court grants Amoco’s motion for

summary judgment to the extent that Avondale seeks an

order compelling Amoco to remediate some future

endangerment Amoco allegedly caused. See also Foster v,

United States, 922 F. Supp. 642, 662 (D.D.C. 1996) (“While

there can be no question that the levels of contamination

present at the Site may warrant future response action, the

plaintiff cannot establish either a current risk of ‘substantial

or serious’ threatened harm, or ‘some necessity for

action.” ’’).

B. State Common Law Claims

Although the court concludes that RCRA does not

authorize the recovery of cleanup costs incurred after

properly invoking RCRA’s statutory process, “RCRA does

not prevent a private party from recovering its cleanup costs

under other federal or state laws.” Meghrig, 116 S. Ct. at

1256. However, having granted summary judgment for

Amoco on Avondale’s RCRA claims, the court declines to

exercise supplemental jurisdiction over Avondale’s state

common law claims. See 28 U.S.C. § 1367(c); see also City

of Chicago v. Intern. College of Surgeons, 118 S.Ct. 523,

533 (1997) (stating that pendent jurisdiction is a matter of

discretion); Van Harken v. City of Chicago, 103 F.3d 1346,

1354 (7th Cir. 1997) (noting presumption against retention

of supplemental state law claims); Khan v, State Oil, 93

34a

Appendix C

F.3d 1358, 1366 (7th Cir. 1996) (same), vacated on other

grounds 118 S. Ct. 275 (1997); Vukadinovich v. Bd. of

School Trustees of Michigan, 978 F.2d 403, 415 (7th Cir.

1992) (“It is well established that if federal claims are

dismissed before trial, the federal district courts should

generally dismiss the state law claims as well.”); Wright v.

Associated Ins. Co., Inc., 29 F.3d 1244, 1251-530 (7th Cir.

1994) (same, but noting three exceptions). Therefore, the

court dismisses Counts III and IV, and denies Amoco’s

motion for summary judgment as to these counts.

Ill. CONCLUSION

For the foregoing reasons, the court grants Amoco’s

motion for summary judgment as to Counts I and II, and

dismisses Counts III and IV. Case is terminated.

IT IS SO ORDERED.

ENTER:

s/ Charles R. Norgle, Sr.

CHARLES RONALD NORGLE, SR.., Judge

United States District Court

DATED: 3-19-98

35a

APPENDIX D — JUDGMENT OF THE UNITED

STATES DISTRICT COURT FOR THE NORTHERN

DISTRICT OF ILLINOIS, EASTERN DIVISION

DATED MARCH 23, 1998 AND

DOCKETED MARCH 24, 1998

UNITED STATES DISTRICT COURT

Northern District of Illinois

Eastern Division

Case Number: 96 C 2762

AVONDALE FEDERAL SAVINGS BANK

AMOCO OIL COMPANY

JUDGMENT IN A CIVIL CASE

* * *

* Decision by Court. This action came to trial or

hearing before the Court. The issues have been tried

or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that summary

judgment is granted in favor of Defendant, Amoco

Corporation and against plaintiff, Federal Savings Bank on

Counts | and II and Count III and IV are hereby dismissed.

Michael W. Dobbins, Clerk of Court

s/ Eric Fulbright

Date: 3/23/98 Eric Fulbright, Deputy Clerk

36a

APPENDIX E — AMENDED ORDER OF THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT DENYING PETITION FOR

REHEARING DATED APRIL 30, 1999 AND

AMENDED MAY 4, 1999

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

AMENDED May 4, 1999

April 20, 1999

Before

Hon. William J. Bauer, Circuit Judge

Hon. Diane P. Wood, Circuit Judge

Hon. Terence T. Evans, Circuit Judge

No. 98-2003

AVONDALE FEDERAL SAVINGS BANK,

Plaintiff-Appellant,

AMOCO OIL COMPANY,

a Maryland corporation,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 96 C 2762

Charles R. Norgle, Sr., Judge

37a

Appendix E

ORDER

On March 24, 1999, the plaintiff-appellant filed a

petition for rehearing with suggestion for rehearing en banc.

All the judges on the original panel have voted to deny the

petition, and none of the active judges* have requested a

vote on the suggestion for rehearing en banc. The petition

is therefore DENIED.

* The Honorable Walter J. Cummings and Honorable John

L. Coffey took no part in the consideration of the suggestion for

rehearing en banc.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.