                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                               Nos. 03-3151/3264
                                 ___________

Arkansas Department of Environmental *
Quality,                               *
                                       *
            Appellant/Cross-Appellee, * Appeals from the United States
                                       * District Court for the Eastern
      v.                               * District of Arkansas.
                                       *
Eugene Pfeifer, doing business as One *       [UNPUBLISHED]
Source Home and Building Centers,      *
                                       *
            Appellee/Cross-Appellant. *
                                  ___________

                            Submitted: August 11, 2004
                               Filed: August 19, 2004
                                ___________

Before SMITH, FAGG, and HANSEN, Circuit Judges.
                           ___________

PER CURIAM.

       The Arkansas Department of Environmental Quality (ADEQ) appeals the
district court’s* adverse grant of summary judgment in ADEQ’s action under the
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6991, 6991b.
Eugene Pfeifer, doing business as One Source Home and Building Centers (One
Source), cross-appeals the district court’s denial of attorney’s fees. We affirm.

      *
       The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
      ADEQ’s amended complaint, in relevant part, sought under 42 U.S.C.
§ 6991b(h)(6)(A) and Ark. Code Ann. § 8-7-807(b) recovery of funds expended on
response and corrective actions in connection with the release of petroleum from
underground storage tanks (USTs) formerly located on property owned by Pfeifer,
and a declaratory judgment holding Pfeifer liable for the cost of future response and
corrective actions in connection with such release.

       Pfeifer moved for summary judgment and attorney’s fees. The district court
granted summary judgment, finding as relevant Pfeifer was never the owner of the
USTs. The court, however, denied Pfeifer attorney’s fees because ADEQ’s case “was
not totally unsupported.”

I. Summary Judgment

        We review a grant of summary judgment de novo. See Meyers v. Neb. Health
and Human Servs., 324 F.3d 655, 658-59 (8th Cir. 2003). Under Federal Rule of
Civil Procedure 56(c), summary judgment must be granted if “there is no genuine
issue as to any material fact and . . . the moving party is entitled to a judgment as a
matter of law.” However, the nonmoving party “‘must present more than a scintilla
of evidence and must advance specific facts to create a genuine issue of material fact
for trial.’” See Meyers, 324 F.3d at 659 (quoted case omitted).

       Under RCRA, the term “owner,” in the case of a UST “in use on November 8,
1984, or brought into use after that date,” means “any person who owns [a UST] used
for the storage, use, or dispensing of regulated sustances [sic].” See 42 U.S.C.
§ 6991(3)(A). We find the evidence shows Pfeifer was not the owner of the USTs
before they were removed by Pollution Management, Inc. (PMI). While One Source
was designated as owner in various documents filed with ADEQ, apparently all
prepared by PMI, these documents predate Pfeifer’s purchase of the land on which
the USTs were located. Further, there is no indication Pfeifer intended to make use

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of the USTs other than to remove them from the land, as is evidenced by Pfeifer’s
execution of the warranty deed only after PMI had completed their removal. These
circumstances support Pfeifer’s uncontroverted attestation he conditioned purchase
of the land on removal of the USTs, and evidence Pfeifer sought a cost estimate from
PMI regarding their removal is consistent with this conclusion. Thus, while Pfeifer
surely was interested in making certain the USTs were properly removed, a
reasonable trier of fact could not find Pfeifer was an “owner” of the USTs as defined
by section 6691(3)(A). See Herring v. Can. Life Assurance Co., 207 F.3d 1026, 1028
(8th Cir. 2000) (dispute is not “genuine” unless evidence is such that reasonable trier
of fact could return verdict for nonmovant).

II. Attorney’s Fees

       We review for abuse of discretion a district court’s denial of a motion for
attorney’s fees. See Gelco Corp. v. Baker Indus., Inc., 779 F.2d 26, 28 (8th Cir.
1985) (per curiam). The district court may award attorney’s fees to a litigant if the
other party acted “in bad faith, vexatiously, wantonly, or for oppressive reasons.” See
Hoover v. Armco, Inc., 915 F.2d 355, 357 (8th Cir. 1990), cert. denied, 499 U.S. 961
(1991). An award of attorney's fees is not necessarily justified merely because a party
loses on summary judgment. In this case, we find colorable arguments were made in
support of each of the controlling issues. Thus, even though a reasonable trier of fact
could not conclude Pfeifer was the owner of the USTs, we find the district court did
not abuse its discretion in denying Pfeifer attorney’s fees.

      Accordingly, we affirm the judgment of the district court.
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