## Facts

- Wilshire Westwood Associates and Platt Development Company bought Los Angeles property previously used as a gasoline service station.
- Prior owners/operators stored gasoline in underground storage tanks on the site.
- Plaintiffs alleged the tanks leaked, contaminating soil with gasoline containing benzene, toluene, xylene, ethyl-benzene, and lead.
- Plaintiffs sought recovery of cleanup and related response costs under CERCLA § 107(a).
- Defendants moved to dismiss under Rule 12(b)(6), arguing CERCLA’s “petroleum exclusion” removed gasoline releases from the statute’s definition of “hazardous substance.”
- The district court dismissed the CERCLA claim on the ground that leaded gasoline falls within the petroleum exclusion.

## Issues

1. Whether CERCLA’s petroleum exclusion applies to refined gasoline, including leaded gasoline, so that leaks of gasoline containing benzene and lead are outside CERCLA liability.
2. Whether the statutory phrase “which is not otherwise specifically listed or designated a hazardous substance” limits only “any fraction thereof,” or also limits “petroleum” and “crude oil” such that petroleum containing listed hazardous constituents is excluded from the exclusion.

## Decision

- The Ninth Circuit affirmed the Rule 12(b)(6) dismissal after de novo review.
- The court held the petroleum exclusion applies to gasoline, including leaded gasoline, and covers its typical constituents and additives released as part of the petroleum product.
- The court read the qualifying phrase “which is not otherwise specifically listed or designated a hazardous substance” to modify only “any fraction thereof,” not “petroleum” or “crude oil.”
- The court rejected plaintiffs’ interpretation because it would effectively eliminate the petroleum exclusion, given that petroleum products commonly contain substances that are hazardous in other contexts.
- The court gave significant weight to EPA’s longstanding interpretation that the exclusion reaches refined products and their normal components/additives, and noted Congress left the exclusion unchanged during later amendments.

## Legal Principles

- CERCLA § 101(14)(F) excludes “petroleum,” including refined petroleum products such as gasoline, from the definition of “hazardous substance” when contamination results from the petroleum mixture itself.
- The presence in gasoline of constituents or additives that are listed hazardous substances in other contexts (e.g., benzene or lead compounds) does not, by itself, remove gasoline from the petroleum exclusion.
- The clause “which is not otherwise specifically listed or designated a hazardous substance” modifies “any fraction thereof,” meaning a petroleum fraction may fall outside the exclusion only if that fraction is itself separately listed or designated as hazardous.

## Conclusion

The Ninth Circuit held that CERCLA does not provide a § 107 cost-recovery remedy for soil contamination caused by leaks of leaded gasoline from underground tanks because such releases fall within CERCLA’s petroleum exclusion, even when the gasoline contains hazardous constituents like benzene and lead.


Wilshire Westwood Assocs. v. Atl. Richfield Corp., 881 F.2d 801 (9th Cir. 1989)