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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 922

## Text

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

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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?

ll

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

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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:
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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

vi

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

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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).

2
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

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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.

4

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.

5

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
I.

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.

6

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

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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:

8

* 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

10

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

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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.

a

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

15

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.

16

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.

17

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

la

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,
V.
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

2a

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

3a
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

4a

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

Sa
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.

6a

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.

7a

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

8a

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

9a

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

ns

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
v.

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,
v.
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
V.

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,
v.

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0620%3A1. Public record. Not legal advice.