Petition for Writ of Certiorari — Meghrig v. KFC Western, Inc.

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95-83 sul 13 1995

No.

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In the Supreme Court

OF THE

United States

OCTOBER TERM, 1995

ALAN MEGHRIG and MARGARET MEGHRIG,

Petitioners,

VS.

KFC WESTERN, INC.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

JOHN P. ZAIMES

Counsel of Record

CLIFTON J. MCFARLAND

McCLINTOCK, WESTON,

BENSHOOF, ROCHEFORT,

RUBALCAVA & MACCUISH

444 South Flower Street, 43rd Floor

Los Angeles, California 90071

(213) 623-2322

Counsel for Petitioners

Bowne of Los Angeles, Inc.. Law Printers (213) 627-2200

O70

: —

QUESTIONS PRESENTED

The citizen suit provision of the Resource Conservation and

Recovery Act ("RCRA") gives federal district courts limited

jurisdiction to "restrain" any person who has contributed to the

handling of a solid or hazardous waste which endangers the

environment or to “order such person to take such other action as

may be necessary." In a case of first impression, a divided panel

of the Ninth Circuit Court of Appeals has held that this provision

also authorizes a private party to pursue a damages claim for

reimbursement of the costs of cleaning up a contaminated site.

The same RCRA citizen suit provision allows a citizen suit

only where a solid or hazardous waste "may present an imminent

and substantial endangerment to health or the environment.” The

Ninth Circuit has also held that a RCRA citizen suit may be

commenced well after the site has been fully cleaned up.

notwithstanding the "imminent and substantial endangerment"

language of the statute.

The questions presented for review are:

I. Whether the citizen suit provision of RCRA, 42

U.S.C. § 6972 (aX 1B), which authorizes district

courts to "restrain" persons who have contributed to

contamination or to “order such persons to take

such other action as may be necessary", also

authorizes a private party suit for reimbursement of

cleanup costs.

Whether the citizen suit provision of RCRA, 42

U.S.C. § 6972(aX 1B), which only permits suits

against persons who have contributed to the

disposal of solid or hazardous waste “which may

present an imminent and substantial endangerment

to health or the environment", can be read to

authorize a suit for contamination that was fully

remediated years before commencement of the suit.

TABLE OF CONTENTS

QUESTIONS PRESENTED ....... 6-66 eeu

OPINIONS BELOW .... 0... cc cece cece ccnens

FURRISDICTION 2. cc ccc creer eccens

STATUTORY PROVISION INVOLVED ...........

STATEMENT OF THE CASE ...... 6... eeu eens

A. Statement Of Relevant Facts .........

B. Proceedings In The District

CI A os Shs cle cer cccccens.

S Proceedings In The Ninth Circuit

Court Of Appeals .... 2.6.55 .00eee-

REASONS FOR GRANTING THE PETITION .......

The Ninth Circuit's Determination That 42 U.S.C.

§ 6972(aX 1B) Contains An Implied Right Of

Action For Damages Conflicts With The Sea

Clammers And Gwaltney Decisions Of This Court

And Likely With A Pending Decision Of The

Bites Ciseult cc cece ee eeees

A. The Ninth Circuit's Decision

Directly Conflicts With This

Court's Decision In Sea Clammers

By Expanding Citizen Plaintiff

Remedies Beyond Those Expressly

Provided In The Statute And By Doing

So Contrary To Congressional

Sis wht uh eb bi OO0O BOO Cece.

TABLE OF CONTENTS

The History And Purpose Of

Federal Environmental Citizen Suit

Provisions And The Legislative

History Of RCRA Confirm That Citizen

Suits Are Limited To Injunctive Relief

Me bb REsededectenees so

a. The History And Purpose

Of Citizen Suits ........... 13

b. The Legislative History of RCRA 15

The Ninth Circuit's Decision Conflicts

With This Court's Decision In Gwaltney By

Providing A Remedy For Harms Wholly Past 19

The Ninth Circuit's Interpretation Of 42

U.S.C. § 6972(aX 1B) Will Likely Also

Conflict With The Impending Eighth Circuit

Decision In Furrerv. Brown ........... 2!

The Questions Presented Here Are

Important Ones... .... 22

eee © © © © © © © ee ee ——

The Ninth Circuit Erred In Interpreting The

Statute To Allow Private Parties To Sue For

Monetary Relief ...

TABLE OF CONTENTS

Page(s)

A. Under General Principles Of Statutory

Interpretation, Neither The Plain Language

Nor The Legislative History Of The RCRA

Citizen Suit Provision Authorizes A Suit

For Monetary Damages Or “Restitution”... 25

B. The Ninth Circuit Improperly Implied A

Damages Right Of Action For Citizen

ile ae te peedeene nse 26

C. The Relief That The Majority Opinion

Would Provide Runs Counter To The Very

Purpose of Citizen Suit Provisions ....... 28

D. The Ninth Circuit Erred In Interpreting

The Statute To Authorize Relief For Harms

GUE « cixcvh-wundeas n0sass os 28

ee ET) Cl ea ye en haaeanee 30

Fe ee Ra yee pei neni es ok Al

Ce... 4 cidbenesibacesevente’ A2I

pee T.. . c. cae vedas :acbdnddieweashs A24

I iio ics cbTéKe dave cehaebeedwncin A26

| a SE OR My YC ERE A27

TABLE OF AUTHORITIES

CASES

Baviess Invest. & Trad. Co. v. Chevron U.S.A., Inc.,

39 Env't Rep. Cas. 1428 (D. Ariz. 1994) ........ 15

California v. Sierra Club, 451 U.S. 287 (1981) ....... 26, 27

City of Chicago v. Environmental Defense Fund.

oe EN a COE ED CITED. ccccccecss 27

Commerce Holding Co., Inc. v. Buckstone,

749 F.Supp. 441 (E.D.N.Y. 1990)............. 15

Cort v. Ash, 422 U.S. 66 (197S) ... 2... cee eee 26, 27

Furrer v. Brown. No. 94-3281 EMSL

(8th Cir. argued Apr. 12, 1995) ............... 21

Gache v. Town of Harrison.

813 F.Supp. 1037 (S.D.N.Y. 1993) ............ 1S

Gwaltney of Smithfield, Lid. v. Chesapeake Bay Foundation, Inc..

in ss cohantectuinenaces passim

Hallstrom v. Tillamook County, 493 U.S. 20 (1989) .... 12, 13

KFC Western. Inc. v. Meghrig.

23 Cal.App.4th 1167. 28 Cal Rptr.2d 676 (1994) . 5, 22

KFC Western. inc. v. Meghrig.

SPEER GM SUED scccccecekscecava |

Kaufman and Broad - South Bay v. Unisys Corp..

822 F.Supp. 1468 (N.D. Cal. 1993) ........... 15

MESS. v. Weinberger.

707 F.Supp. 1182 (E.D. Cal. 1988) ............ 15

Middlesex County Sewerage Authority v. National Sea Clammers

Assn., 453 U.S. 1 (1981) ........6--2555- passim

Mola Dev. Corp. v. United States,

22 Env’t. Rep. Cas. 1443 (C.D. Cal. 1985) ...... 15

Portsmouth Redev. & Housing Auth. v. BMI Apt. Assoc.,

847 F Supp. 380 (E.D. Va. 1994) ............ 15

Touche Ross & Co. v. Redington,

fil | SPrrrevirirrereree 26

Transamerica Mortgage Advisors, Inc. v. Lewis,

GOGGLE, GE GRSUED ob cdc kes senbievetcsecs 26

United States v. Aceto Agric. Chem. Corp.,

872 F.2d 1373 (8th Cir. 1989) ...........6.. 7, 21

Wilshire Westwood Assocs. v. Atlantic Richfield Corp.,

881 F.2d 801 (9th Cir. 1989) ... 2.2... ee ee 23

STATUTES

15 U.S.C. § 2619, Toxic Substances Control Act ........ 13

16 U.S.C. § 1540(g), Endangered Species Act .......... 13

LTT eo errrerr rr rritt: rie) Tie Te 2

SOROS: 6 UES vcinscsdcced senesescedudbotennes 3

Ds, OU kkk bdecddedties bs tsb eehewen 13, 18

30 U.S.C. § 1270, Surface Mining Control

and Reclamation Act ............--..+55. 14, 18

vil

33 U.S.C. § 1365, Federal Water Pollution

PD ohh DwS oda pbk 6606000 oles co’ 14

33 U.S.C. §1415(g), Marine Protection,

Research and Sanctuaries Act ............... 13

42 U.S.C. § 300j-8 Safe Drinking Water Act .......... 14

42 U.S.C. § 4911, Noise Control Act ............... 14

fr Pre. a ee 16

ee i eh OG UW ad OW s oe NWah EO Re vaeaces 16

en ES Guus i php adeh octet 6 oe ot ks 08 passim

Ey "S ild edule tue che abdoaWs Gicdetat 16

42 U.S.C. § 7604, Clams Alp Act... .. 1.1... wees 14

42 U.S.C. §§ 9601-96. CERCLA ........... 8, 14, 22, 24

ey ey SE 6 650s CES dW eden coe céces odes. 24

43 U.S.C. § 1349, Outer Continental Shelf Lands Act .... 14

pes Se PY eee eee 24

cs a ae 3

MISCELLANEOUS

4 W. Rodgers. Environmental Law § 7.6(b) ........... 15

7 James W. Moore. Moore's Federal Practice, € 65.04{ 1},

ee Pe 11, 12

SOP GEE UU OGUUUED cece eecccccnecivccece 15

Vili

Boyer & Meidinger, Privatizing Regulatory Enforcement,

34 Buff. L. Rev. 833, 847-851 (1985) ......... 14

Fadil, Citizen Suits Against Polluters,

9 Harv. Envt’l L. Rev. 23, 26-28 (1985) ........ 14

D. Dobbs, Remedies §§ 4.2-4.3 (1973) 2. 6. ee es 27

Hecker. The Citizen's Role in Environmental Enforcement, Nat.

Res. & Env. (Spring 1994). 31) ©. 2. eee 28

H.R. Rep. No. 198, 98th Cong., 2d Sess. (1984), reprinted in 1984

USCEAM. SSPE, FOES cc ccccccccescccce 18, 25

H.R. Rep. No. 253, pt. 3, 99th Cong., Ist Sess. (1985) ... 17

Inside EPA Weekly Report, Court Ruling On Cost Recovery in

RCRA Spawns Raft of New Lawsuits, May 12, 1995 at 1-2. 22

G. Palmer, The Law of Restitution §§ 1.1-1.8 (1978) ... 27, 28

S. Cooke, The Law of Hazardous Waste § 16.03(3\f) (1995) 15

S. Rep. No. 284, 98th Cong., Ist Sess. 57 (1983) ....... 18

No.

In the Supreme Court

of the

United States

OCTOBER TERM, 1995

Alan Mcghrig and Margaret Meghrig.

Petitioners,

VS.

KFC Western, Inc..

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioners Alan Meghrig and Margaret Meghrig (the

"Meghrigs") respectfully petition for a writ of certiorari to review

the judgment and opinion of the United States Court of Appeals for

the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals fo: the Ninth Circuit

is reported at 49 F.3d 518, and is reprinted in the Appendix hereto

at pages Al to A20. The unpublished order of the Court of

Appeals dated April 14, 1995 denying the Meghrigs’ petition for

rehearing is reprinted in the Appendix at page A26.

The unpublished order and opinion of the District Court

dated November 9, 1992 dismissing the action is reprinted in the

Appendix at pages A21 to A23. The unpublished order of the

District Court dated September 21, 1992, granting the Meghrigs’

motion pursuant to Federal Rule of Civil Procedure 12(b\6) and

granting KFC Western leave to amend is reprinted in the Appendix

at pages A24 to A25.

JURISDICTION

The judgment of the Ninth Circuit Court of Appeals was

entered on March |, 1995. A timely petition for rehearing was

denied on April 14, 1995. This petition is filed within ninety days

of denial of the petition for rehearing by the Court of Appeals.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

Title 42, United States Code, § 6972(a\(1B), provides, in

pertinent part, that:

"Except as provided in subsection (b) or (c) of this

section, any person may commence a civil action

on his own behalf-- ;

(IMA) ***

(B) against any person, including the United

States, and any other governmental instrumentality

or agency, to the extent permitted by the eleventh

amendment to the Constitution, and including any

past or present generator, past or present

transporter, or past or present owner or operator of

a treatment. storage, or disposal facility, who has

contributed or who is contributing fo 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.

6 ores.

The district court shall have jurisdiction, without

regard to the amount in controversy or the

citizenship of the parties . . . 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), to order

such person to take such other action as may be

necessary, or both, or to order the Administrator to

perform the act or duty referred to in paragraph

(2), as the case may be, and to apply any

appropriate civil penalties under section 6928(a)

and (g) of this title.'

(Emphasis added.)

STATEMENT OF THE CASE

The District Court's jurisdiction in this action is based on

42 U.S.C. § 6972(a), and 28 U.S.C. §§ 1331 and 1367.

| This case arises out of the cleanup of gasoline-contaminated

soil at a commercial property located in Los Angeles, California

upon which a gasoline service station was once operated. The

District Court dismissed the case for lack of subject matter

jurisdiction based on Petitioners’ second motion therefor pursuant

to Federal Rule of Civil Procedure Rule 12(bX6). This Petition

follows the Ninth Circuit Court of Appeals’ reversal of the District

Court's decision.

Because the issues herein were raised at the pleadi

the facts set forth below. though disputed in tnd cy

Petitioners and incomplete in other instances. are primarily those

alleged by Respondent in its first amended complaint. Additionally

certain undisputed facts developed in discovery in the parallel state

court action are added sparingly to complete the factual picture for

Section 6972 of Tithe 42. United States Code. is reprinted in its entirety

| o- . in its

in the Appendia at pages A27 to A32.

this Court.

A. Statement Of Relevant Facts

The real property which is the subject of the underlying

action is presently owned by Respondent (plaintiff below) KFC

Western, Inc. ("KFC"), which operates a Kentucky Fried Chicken

franchise on that property. (C.R. 10,4 2.) KFC bought the

property from Petitioners (defendants below) Alan Meghrig and

Margaret Meghrig ("the Meghrigs”) nearly twenty years ago, in or

about September 1975. (C.R. 10, $9 2, 15.)

The Meghrigs, who are brother and sister, had owned the

property for 12 years. Title had been put in their names by their

father when he acquired the property in 1963, while both Petitioners

were teenagers. The Meghrigs never operated a service station on

the property. Prior owners and/or their lessees had operated

gasoline service stations on the property for 45 years (dating beck

to 1917) before the Meghrigs bought it. Plaintiff has not sued any

of those prior owners or lessees.

The last underground storage tanks on the property. which

had previously been abandoned, were removed within two years of

the time the Meghrigs took title. Notwithstanding the long history

of service station operations on the property, KFC has sued the

Meghrigs. and only the Meghrigs, for reimbursement of the costs

of cleaning up gasoline contamination on the property caused by an

underground storage tank leak. (C.R. 10, {9% 1. 4.)

KFC discovered this contamination in October 1988,

commenced remediation. and completed that remediation in early

1989. (C.R. 10, § 5.) The Meghrigs were unaware of the

Although the record on appeal to the Ninth Circuit is not before this

Court. we inchads vefesences to it in coder to Gemonsuats the record exppen Ox

the factual assertions herein and to have those citations readily accessible to

Court should the record be made available to it.

Fee en eee ee

contamination until well after the completion of remediation. (C.R.

10, $€ 5, 16.) Any endangerment posed by the contamination was

thus eliminated in early 1989, when cleanup was completed and

was certified complete by the appropriate governmental agency.

KFC first brought suit in the District Court over three years

later, in late May 1992. (C.R. 10, $ 16.) Consequently, KFC

cannot plead, and has not pled, that any "imminent and substantial

endangerment” existed at the time it filed its suit. Rather, KFC can

only plead, and did only plead below, that the alleged

contamination "may have presented" (in the past) an imminent and

substantial endangerment. (C.R. 10, € 23.)

B. Proceedings In The District Court Below

KFC’s District Court complaint consisted of a single cause

of action brought under the citizen suit provisions of the Resource

Conservation and Recovery Act ("RCRA"), 42 USC.

§ 6972(a1\B). The complaint sought only monetary damages for

past cleanup expenses which KFC had allegedly incurred. (C.R.10.

* 7, 24.)

[KFC originally sued these same two defendants in

California state court under nine different state Statutory and

common law theories. See, KFC Western, Inc. v. Meghrig, 23

Cal.App.4th 1167, 28 Cal.Rptr.2d 676 (1994). In that action. as

here. KFC sought to recover damages in the form of monies it had

previously expended to remediate soil contamination on the

property. |

In the District Court, petitioners moved to dismiss KFC’s

original RCRA complaint on two independent grounds: (1) because

the complaint admitted that the alleged contamination had been

fully remediated more than three years prior to the filing of KFC’s

complaint, there was no "imminent and substantial endangerment,"

as required for RCRA citizen suits: and (2) because KFC sought

only money damages, it could not maintain a citizen suit under

RCRA. since that statute only authorizes injunctive relief. The

District Court granted the Meghrigs’ motion but gave KFC leave to

6 ,

District Court to the Court of Appeals for the Ninth Circuit. On

amend. App. at A24. March |, 1995, a divided Court of Appeals, in an opinion by

KFC’s amended complaint attempted to cure the defects in

its original complaint by alleging: (1) that the contamination may

have presented” (at some time in the past) an imminent and

substantial endangerment; and (2) that its damages claim was really

one for “equitable restitution.” Petitioners again moved to dismiss

on the grounds that these wording changes did not cure the defects

in KFC’s RCRA cause of action. The endangerment was still not

"imminent," irrespective of what it "may have been" at some past

time. And KFC’s “equitable restitution" claim, regardless of its

new label, sought no more than did KFC’s original complaint:

money damages.

The District Court relied on two ae nt — .

ting the Meghrigs’ renewed motion to dismiss, this tim

calean leave to a First, the Court determined that the citizen

suit provision of RCRA under which KFC had brought this action

was forward-looking and was designed to provide a method for

private citizens to function as private attorneys general to me om

to curtail current risks posed by contamination. App. at A22 to

A23. Because the citizen suit provision, 42 U.S.C. § 6972(ay 1B),

authorizes such suits only where there is an “imminent and

substantial endangerment to health or the environment," and because

the cleanup at issue here was completed several years before KFC

commenced its suit, the District Court determined that there was no

endangerment to be addressed and that KFC’s suit was therefore not

authorized by RCRA. App. at A22. Second, the District Court

ruled that the provision of RCRA that authorizes district courts to

"restrain" and “order such person to take such other action as may

be necessary” entitles plaintiffs like KFC only to injunctive relief

(prohibitory or mandatory). Because KFC was seeking damages in

the form of costs incurred for a completed cleanup. the relief which

KFC sought could not be granted under section 6972(aX 1 XB).

App. at A22 to A23.

C. Proceedings In The Ninth Circuit Court Of Appeals

In December 1992, KFC appealed the judgment of the

;

Circuit Judge Pregerson, reversed the judgment of the District

Court. App. at Al to Al2. Circuit Judge Brunetti issued a lengthy

and pointed dissenting opinion. App. at Al2 to A20.

The majority opinion first addressed the issue whether the

danger must exist at the time of filing suit in order to meet the

"imminent and substantial endangerment" requirement of a RCRA

citizen suit. The majority acknowledged that KFC had cleaned up

the gasoline contamination more than three years prior to filing suit

and further observed that the legislative history of RCRA disclosed

that the term "imminent" in the RCRA citizen suit provisions means

that a claim lies only:

"for events which took place at some time in the

past, but which continue to present a threat to the

public health or the environment." App. at A4

(emphasis in original).

Nevertheless, the majority opinion concluded that RCRA authorizes

citizen suits with respect to contamination that in the past posed

imminent and substantial danger. App. at AS. The majority relied

on dicta from an Eighth Circuit case brought by EPA, not a private

party, under a separate provision of RCRA. United States v. Aceto

Agric. Chem. Corp., 872 F.2d 1373 (8th Cir. 1989). The majority

also relied on its own reading of RCRA as having the broad

purpose of providing authority to the courts to grant all relief

necessary to ensure protection of human health and the

environment. App. at A6.

The Ninth Circuit majority also concluded that a citizen suit

for compensatory damages could be implied under RCRA based on

the following statutory language:

"[t}he district court shall have jurisdiction ... to

restrain any person who has contributed or who is

contributing to [an imminent and substantial

endangerment and] to order such person to take

\ such other action as may be necessary...

App. at A6 quoting 42 U.S.C. § 6972(aX | XB)

(emphasis supplied by majority opinion).

Finally, the majority opined that it would be poor “~

policy to interpret Ge SCRA chee ab pein oe

recovery of cleanup costs because the ergy om

Environmental Response, Compensation and Recovery —

("CERCLA") and state law do not provide oe —e

sources of relief. In a footnote, the Court explained es

specifically excludes suits based on pewctoum conten

cryptically observed as to state law claims that:

"Even though causes of action for nuisance.

i available to

trespass and potential negligence are

plaintiffs such as KFC, tort remedies are —

inadequate because of the difficulties of proof

attendant court delays.” App. at All n.6.

[Ironically, KFC’s ongoing state court action 4" — and

trespass was set to commence trial on August |,

A vigorous dissent urged four separate bases for affirming

the District Court’s opinion:

1. Both the plain language of the phrase "such othet

action as may be necessary" and the specific legislative oe =

the RCRA citizen suit provision demonstrate that “ay oe

intend environmental citizen suits to include actions for monetary

reimbursement. App. at Al3 to Al4.

2. The unambiguous term “may present an imminent

and substantial endangerment" means that — we ge must

exist at the site at the time the private citizen Tiles suit. statute

would read "may or may have presented” if it intended to also cover

> 42 U.S.C. §§ 9601-96.

past endangerments. App. at Al4.

3. The notice requirements of § 6972 of RCRA further

Support the requirement that the “imminent and substantial

endangerment” be present at the time of filing suit. The statute

requires that a private citizen give 90 days notice to the EPA

Administrator and further provides that, if the EPA Administrator

elects to bring suit, a private citizen is foreclosed from bringing

suit. The dissent urged that this provision confirmed that the

"imminent and substantial endangerment" must exist at the time the

suit 1s filed and that the citizen suit Provisions do not permit post-

cleanup reimbursement actions. App. at Al4.

4+ The absence of an express limitations period in

RCRA, particularly in light of the fact that there is such an express

limitations period in CERCLA, further confirms that RCRA does

not authorize citizen suits for damages. App. at AlS to Al6.

REASONS FOR GRANTING THE PETITION

By implying for the first time a right of action for the

recovery of cleanup costs in RCRA’s citizen suit provision, the

Court of Appeals has dramatically increased the scope of remedies

authorized by Section 6972 beyond the prohibitory and mandatory

injunctive relief expressly provided therein. In so doing. the Court

of Appeals has decided an important federal question with a heavy

impact on the extremely active area of environmental litigation in

a way that conflicts with two prior opinions of this Court on the

scope of citizen suit provisions in federal environmental statutes.

in addition. there is currently pending in the Cour of

Appeals for the Eighth Circuit an appeal which presents the same

issues and as to which it appears the Eighth Circuit will reach a

conflicting decision. For these reasons. it is necessary for this

Court to determine the Proper scope of the citizen suit provisions

of RCRA.

’ 42 U.S.C.

1. The Ninth Circuit’s Determination That

§ 6972(a)(1)(B) Contains An Implied Right Of Action

For Damages Conflicts With The Sea Clammers And

Gwaltney Decisions Of This Court And Likely With A

Pending Decision Of The Eighth Circuit

is! and extent citizen

provisions i general, and the scope

provision in RCRA in particular, are matters of exceptional

importance. This Court has issued two ye ;

interpreting the scope of environmental citizen isions.

eedteoe Comp Sewage Aatharly v National Sea Clammers

Assn., 453 U.S. 1 (1981) ("Sea Clammers"), Gwaltney of Smithfield.

Lid. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987)

("Gwaltney"). This Court expressly ruled in Sea Clammers that

federal courts should not expand the remedies provided to citizen

plaintiffs beyond those expressly provided in the statute, absent

strong indicia of Congressional intent to so expand. This Court

also held in Gwaltney that the structure of citizen suit provisions in

federal environmental statutes demonstrates that these provisions

permit ongoing harms to be enjoined, but do not provide a remedy

for harms wholly past.

The Court of Appests majority runs afoul of Bot

aM - “ i provision |

proscriptions by expanding the RCRA citizen su

an implied right of action for the reimbursement of cleanup costs

for contamination that has long since been cleaned up.

A. The Ninth Circuit’s Decision Directly Conflicts

With This Court’s Decision In Sea Clammers By

Expanding Citizen Plaintiff Remedies Beyond

Those Expressly Provided In The Statute And

By Doing So Contrary To Congressional Intent

1. The Plain Language Of The Statute

Authorizes Only Injunctive Relief

This Court’s decision in Sea Clammers forbids lower courts

to expand citizen suit remedies beyond those expressly provided in

the statute. The Ninth Circuit majority has construed RCRA in a

manner that its express language cannot support. The RCRA

citizen suit provision expressly provides only the following two

remedies where the handling of a hazardous or solid waste has

created an imminent and substantial endangerment:

"The district court shall have jurisdiction...to [1]

restrain any person who has contributed or who is

contributing to the past or present handling...of any

solid or hazardous waste [which may present an

imminent and substantial endangerment to human

health or the environment, or] [2] to order such

person to take such other action as may be neces-

sary. or both....

42 U.S.C. § 6972(aX 1B) (emphasis added).

The sole purpose of Section 6972(aX1\B) is to allow

injunctive relief where the handling of solid or hazardous waste

poses an imminent and substantial endangerment. The district

court's jurisdiction “to restrain” undisputedly confers the power to

issue an injunction prohibiting a person from acting in a manner

which may be creating an imminent and substantial endangerment.

The term “order such person to take such other action may be

necessary" allows courts to issue mandatory injunctions as well: to

order contamination cleanup, for example.

The Court of Appeals erroneously relied on the language

allowing district courts to take such “other action as may be

necessary” as the basis for a compensatory damages action. This

language does not allow for compensatory actions. The reference

to “such other action” in this phrase denotes action different from

or in addition to the action required of “such person” pursuant to a

restraining order.’ The "as may be necessary” language signifies

Congress's decision to grant district courts separate and explicit

(continued...)

measures required to stabilize and/or eliminate the imminent and

substantial endangerment.

Mandatory injunctive relief is important in the RCRA

only to make a defendant stop doing something (c.g. violating ©

air or water permit limit), in the RCRA context citizen-plainti

may need to make defendants both stop causing a solid waste

problem and s/art doing something, 1... cleaning it up. Thus arose

the need for language to provide for mandatory injunctive relief.

The RCRA citizen suit provision, then, is not ambiguous

and neither expressly nor implicitly grants a district court

jurisdiction to award a plaintiff costs it has incurred in cleaning up

a solid waste problem. eur a Sa’

federal courts that unambiguous statutory language should

accorded its plain meaning. See Hallstrom v. Tillamook County,

493 U.S. 20, 28 (1989) (construing the RCRA citizen suit =

and stating that plain statutory language is conclusive s oe

"clearly expressed legislative intention to the contrary. ) re

provision = issue hese plsinly goovides Ox puteaey &

mandatory injunctive relief and just as plainly does not provide for

recovery of past cleanup costs.

This Court has further instructed the federal courts that “to

acknowledge ambiguity manag IE eae

equally plausible.” Gwalmey. 484 U.S. at 57. Thus, even to

extent that the language in question may be ambiguous. its most

natural reading" (id.) is as a grant of jurisdiction to asa

mandatory injunctive relief and not monetary relief. In the case o

(continued) |

providing iy 9 came gut Ujmnetne quam. Gaull te steed oe

presumption that Congress was aware of the traditional reluctance federal courts

to rssue preliminary mandator, imjuncuons See 7 James W. Moore. Moore 's

Federal Practice.%65 041}. 65-84 (2d ed. 1994) By specifically granting a

courts jurisdiction to issue mandatory injunctions, Congress may have intended va

dispe! the longstanding concems of federal courts regarding the issuance

mandatory injunctions before a hearing on the merits

ambiguous language, recourse may be had to the legislative

history.”

2. The History And Purpose Of Federal

Environmental Citizen Suit Provisions And The

Legislative History Of RCRA Confirm That

Citizen Suits Are Limited To Injunctive Relief

Only

This Court’s decision in Sea Clammers only permits

deviation from the express terms of a citizen suit provision where

there are strong indicia of Congressional intent to provide a further

remedy. In the case of RCRA, there not only are no indicia of such

Congressional intent. the relevant legislative history confirms that

the citizen suit provisions of RCRA are limited to injunctive relief.

In fact, the legislative history of RCRA, particularly in light of the

history and purpose of environmental citizen suit provisions,

demonstrates that Congress has considered including a remedy for

monetary relief and deliberately decided not to do so.

a. The History And Purpose Of Citizen Suits

Congress introduced citizen suits into environmental

statutory law in the 1970 amendments to the Clean Air Act. Since

then. with the Clean Air Act serving as a model, Congress has

included such provisions in virtually every piece of federal

environmental legislation.” Hallstrom. 493 US. at 23.

The Court of Appeals did not indicate whether it viewed the language at

Issue as ambiguous or unambiguous. Apparently. that court concluded that

language allowing district courts to order parties to take “such other action as may

be necessary” unambiguously provides for monetary relief However. the Coun

provided no analysis other than to state that it “agree|d] with KFC that RCRA

authonzes a restitutionan remedy..." App. at A6é. Neither did the Coun of

Appeals examine the legisiative history on this issuc

See.eg Toxic Substances Control Act. 15 US.C § 2619. Endangered

Species Act, 16 US.C § 1540(g). Surface Mining Control and Reclamation Act.

30 U.S.C. § 1270; Marine Protection. Research and Sanctuaries Act. 33 USC §

Consequently, the citizen suit provisions in the various federal

environmental statutes resemble one another in many —.

Fadil, Citizen Suits Against Polluters, 9 Harv. Envt'l L. Rev. 23,

26-28 (1985); see also, Boyer & Meidinger, Privatizing a voor

Enforcement, 34 Buff. L. Rev. 833, 847-851 ( 1985). A —

a notice provision. Al contain 0 ter to oak © Oe Gee

pursuing the matter. Virtually all provide for federal nag ~

jurisdiction regardless of the amount in are 4 7

citizenship of the parties. 72 All authorize awards of ones

and expert witness fees and limited equitable relief (a — nf

be required to comply with the applicable standards). A ~ “ - y.

the rationale adopted by this Court in Sea Clammers and mney

is equally applicable to the RCRA citizen suit provision.

The of citizen suit provisions in federal

I yoo is to allow citizen-plaintiffs to act as poor

attorneys general.” There was concern in Congress as the initia

citizen suit provisions were being enacted into law that a citizen =

provision that provided too broad a remedy could strip the

government of prosecutorial discretion, lead to over-enforcemen a

the environmental laws and overburden the court emg

balance struck by Congress included the decision not to include a

private damages remedy in citizen suit provisions. — This position

was articulated in the debates over the first citizen suit provision (in

the 1970 Clean Air Act) as follows:

“It has been argued, however. that conferring

additional rights on the citizen may burden the

courts unduly. | would argue that the citizen suit

provision of (this bill] has been carefully drafted to

prevent this consequence from arising. First of all.

it should be noted that the bill makes no provision

y S.C. § 1365: Safe Drinking

- Federal Water Pollution Control Act. 33U -- |

ney 42 U.S.C. § 300)-8: Noise Control Act. 42 USC. § 4911. Clean Air

Act. 42 USC. § 7604. CERCLA, 42 USC. § 9659. Outer Continental Shelf

Lands Act. 43 U.S.C. § 1349

for damages to the individual. It therefore provides

no incentives to suit other than to protect the health

and welfare of those suing and others similarly

situated. It will be the rare, rather than the

ordinary, person, | suspect, who with no hope of

financial gain and the very real prospect of

financial loss, will initiate court action under this

bill.”

116 Cong. Rec. 33104 (1970)

(comments of Sen. Hart) quoted in

Sea Clammers, 453 U.S. at 17

n.27.

In light of the purpose of citizen suits, the overwhelming

weight of case authority supports the proposition that monetary

relief, whether labelled economic, compensatory or restitutionary,

is not available as part of a RCRA citizen suit cause of action.

Kaufman and Broad - South Bay v. Unisys C orp., 822 F.Supp. 1468

(N.D. Cal. 1993); Commerce Holding Co., Inc. v. Buckstone, 749

F.Supp. 441 (E.D.N.Y. 1990): Portsmouth Redev. & Housing Auth.

v. BMI Apt. Assoc., 847 F.Supp. 380 (E.D. Va. 1994); Gache v.

Town of Harrison, 8\3 F Supp. 1037 (S.D.N.Y. 1993); Mola Dev.

Corp. v. United States, 22 Env’t. Rep. Cas. 1443 (C.D. Cal. 1985):

M.E.S.S. v. Weinberger, 707 F.Supp. 1182 (E.D. Cal. 1988); but see

Bayless Invest. & Trad. Co. v. Chevron U.S.A., Inc., 39 Env’t Rep.

Cas. 1428 (D. Ariz. 1994). In addition, before the Ninth Circuit's

ruling, the leading treatises on hazardous waste and environmental

law had concluded that. under the RCRA citizen suit provision, "it

is well settled that" an award of damages is not permitted. S.

Cooke, The Law of Hazardous Waste § 16.03(3 Xf) (1995): see also

4 W. Rodgers. Environmental Law § 7.6(b) ( 1992).

b. The Legislative History of RCRA

In the early 1970s. some federal courts suggested that

citizen enforcers might recover damages under citizen suit

Provisions that did not expressly authorize damage relief. But in

1981, this Court ruled in Sea Clammers that no federal private right

of action for damages exists based on violations of the Federal

Water Pollution Control Act ("F WPCA") or the Marine Protection,

Research and Sanctuaries Act ("MPRSA"). This Court noted that

the legislative history of both the FWPCA and the Clean Air Act

mandated this conclusion.’ 453 U.S. at 17-18 n.28. As noted

earlier, the citizen suit provisions in all environmental statutes,

including RCRA, are modeled on the Clean Air Act and closely

resemble one another.

The chief difference in the language of the RCRA citizen

suit provision from the provision in the Clean Air and Clean Water

Acts is the inclusion of the authority to “order such action as may

be necessary,” which appears in RCRA but not the earlier Acts.

The only other citizen suit provision that contains the “order such

other action as may be necessary” language is the CERCLA citizen

suit provision. The legislative history of CERCLA makes the

purpose of this language very clear. The CERCLA citizen suit was

added to that statute by the Superfund Amendments and

Reauthorization Act of 1986, two years after the RCRA citizen suit

provision at issue here was enacted. In its consideration of the

CERCLA citizen suit provision, the House Judiciary Committee

both referenced and explained the "such other action” language in

RCRA:

This Court also noted that the “elaborate enforcement provisions”

addressing private and public enforcement under the FWPCA and the MPRSA and

reasoned that Congress intended such painstakingly defined remedies to be

exclusive. 453 U.S. at 13-15. The remedies afforded by RCRA are equally

elaborate. RCRA authorizes the EPA to respond to violations of RCRA with

compliance orders. civil suits. and such orders as may be necessary to protect

public health and the environment See 42 USC. § 6973. 42 U.S.C. § 6928. The

EPA may assess penalties for violations of Subtitle C (42 U.S.C. § 6921 ef seq.)

for noncompliance. and may assess penalties for failure to comply with an EPA

Order issued pursuant to 42 U.S.C. § 6973. 42 USC. §6928(a), and 42 USC. §

6973. Criminal penalties are available under 42 U.S.C. § 6928(d). In addition.

any citizen may file suit against the EPA where there 1s an alleged failure of the

EPA to perform any non-discretionary act or duty under 42 U.S.C. § 6972(a\(2).

err nitrate aia natin ee ee te tn

STR intent

"the cause of action for abatement of an imminent

and substantial endangerment, like the one added to

[RCRA] in 1984, is designed solely to aid in the

clean-up of hazardous waste sites.

The Committee notes that this type of relief is

consistent with that available for other actions

authorized by this section. These suits may also be

brought for injunctive relief only, i.e.. citizens may

seek a restraining order against private parties

and/or a mandamus order to require the EPA or

other relevant agency to perform a mandatory duty

under CERCLA. None of these actions are for

money damages. They are actions directly related

to the principal purpose of the Superfund law --

L€., 0 bring ~bhout quick identification and

effective clean-u, of dangerous hazardous waste

sites.”

H.R. Rep. No. 253, pt. 3, 99t

(1985) (emphasis added)" se danny

Not surprisingly, the legislative his

amendments to RCRA reflects the same Beno Beal - jen

authorize federal courts to issue injunctive relief to private party

plaintiffs but not to award compensatory damages. The legislative

history expressly stated that citizens have: :

"a limited right under Section 7002 [42 U.S.C.

§ 6972] to sue to abate an imminent and

) The language of the CERCLA amendments bill as j ici

Committee prov ided the district coun with junsdiction “to techno a

person contributing to the endangerment . for] to order such person om

response action as provided for in this Act.” The language in the bill as it rthnene

the House was identical. The Conference Committee deleted the “endan y

language in the citizen suit as redundant of RCRA and modified the coma

language accordingly. H.R.

ienahasie a Rep. No. 253. pt. 3. 99th Cong. Ist Sess. (1985)

18 19

B. The Ninth Circuit’s Decision Conflicts With This

Court’s Decision In Gwaltney By Providing A

Remedy For Harms Wholly Past

substantial endangerment." H.R. Rep. No. me

98th Cong., 2d Sess. (1984), reprinted in 19

U.S.C.C.A.N. 5576, 5612 (emphasis added.)

“The RCRA legislative history also explains the primary goa of

§ 6972(aX 1B) as “the prompt abatement o im

substantial endangerments." Jd. (Emphasis added.)

Finally, it bears noting that, when Congress ep

monetary relief to be available, it express/y says so. Indeed,

The Ninth Circuit’s conclusion that the RCRA citizen suit

provision can be used to address violations that have been remedied

three years prior to commencement of suit directly conflicts with

this Court’s opinion in Gwaltney of Smithfield, Ltd. v. Chesapeake

Bay Foundation, Inc., 484 U.S. 49 (1987). In Gwaltney,

respondent argued that an action should lie for wholly past

i itl i ision that allows

ly environmental statute with a citizen suit provi

pron to sue for damages is the Surface Mining eee

Reclamation Act ("SMCRA"). Section 520(f) of .

captioned "Action for damages", provides:

"Any person who is injured in his person or

property through the violation by any operator of

any rule, regulation, order, or permit ge

pursuant to this chapter may bring an action for

damages.”

= 30 U.S.C § 1270(f).

In sum, following this Court's directives in Sea Clammers,

the history of federal statutory citizen suit provisions, ar together ron

with RCRA’ s express legislative history compels the conc realm

only injunctive relief, and not monetary damages. is avai oe onmaed

the RCRA citizen suit provision. The Ninth Circuit s zg

directly contrary to this Court’s teachings in Sea Clammers.

: Several House members feared that the amende d citizen _ —

would cause citizens to flood the federal courts with pendent state-law “ -

including tort claims for damages. while suing to abate nenagrtncerheger -~ :

at 5635. While Congress decided not to prohibit penden { state- a ro

cautioned that it expected “courts to exercise their discretion concem 2 “ve

jurisdiction in a way that will not frustrate or gp Booed — pe ge fea

rovision, namely the prompt abatement 0 |

writes Se Id. at 53. The corresponding rahi ys page

the House Committee's comments on pendant jurisdiction. S. Rep. No. .

Cong.. Ist Sess. 57 (1983).

violations of the FWPCA despite the statutory language that

allowed suit only against parties alleged "to be in violation” of the

Act. This Court, noting the statute’s use of the present tense,

disagreed and concluded that the FWPCA citizen suit provision did

not apply to harms wholly past. Gwaltney, 484 U.S. at 57-59.

Here. the Ninth Circuit concluded that an action should lie for

wholly past endangerment despite the Statutory language that allows

suit only for conditions “which may present an imminent and

substantial endangerment." 42 U.S.C. § 6972(aX 1B) (emphasis

added).

In holding that the citizen suit provision of the FWPCA

reached only ongoing and not wholly past violations, this Court also

focused on the notice provision in that Act which is virtually

identical to the RCRA notice provision:

"Any other conclusion would render

incomprehensible [the Act's} notice provision,

which requires citizens to give 60 days’ notice of

their intent to sue to the alleged violators as well as

to the Administrator and the State. If the

Administrator or the State commences enforcement

action within that 60-day period, the citizen suit is

barred, presumably because governmental! action

has rendered it unnecessary. It follows logically

that the purpose of notice to the alleged violator is

to give it an opportunity to bring itself into

complete compliance with the Act and thus

likewise render unnecessary a citizen suit. /f we

assume, as respondents urge, that citizen suits may

target wholly past violations, the requirement of

notice to the alleged violators becomes gratuitous.

Id., 484 U.S. at 59-60 (Emphasis added.)

Finally, the FWPCA provision examined in Gwaltey, bars

citizen suits in circumstances where the government is addressing

the harm at issue. RCRA bars citizen suits under those same

circumstances. This Court in Gwaltney further addressed the import

of the citizen suit bar in rejecting the argument that wholly past

harms could be reached by the FWPCA citizen suit provision:

"Adopting respondents’ interpretation (that the

citizen suit provision reaches harms wholly past]

_ . would create a second and even more

disturbing anomaly. The bar on citizen suits when

governmental enforcement action is under way

suggests that the citizen suit is meant to supplement

rather than to supplant governmental action. . .

Permitting citizen suits for wholly past violations of

the Act could undermine the supplementary role

envisioned for the citizen suit.”

Id. at 60 (emphasis added).

This Court determined in Gwaltney that citizen suit

provisions in federal environmental statutes allow ongoing harms to

be enjoined. but do not provide a remedy for harms wholly past.

Under this Court's opinion in Gwaltney, the "most natural reading"

of the phrase “may present an imminent and substantial

endangerment" in RCRA is that the citizen-plaintiff must allege an

ongoing state of endangerment. Congress could have phrased its

requirement in language that looked to the past ("may have

presented"). but it did not choose this "readily available option.”

See, Gwaltney, 484 U.S. at 57. The Ninth Circuit's conclusion that

Respondents could bring suit under RCRA for a harm that had been

fully eliminated over three years before Respondent commenced this

suit directly conflicts with this Court’s determination in

Gwaltney."

Cc. The Ninth Circuit’s Interpretation Of 42 U.S.C.

§ 6972(a)(1)(B) Will Likely Also Conflict With

The Impending Eighth Circuit Decision In

Furrer v. Brown

ae: A case which presents the same issues decided by the Ninth

Circuit herein is now before the Eighth Circuit Court of Appeal

Furrer v. Brown, No. 94-3281 EMSL. The Furrer case was argued

on April 12. 1995. Counsel for one of the defendants in that case

indicates that argument before the Eighth Circuit panel focused

primarily on the then recently issued opinion of the Ninth Circuit

herein. Counsel also indicates that the Eight Circuit panel

questioned whether a cost reimbursement action was available to

citizen plaintiffs under RCRA and in particular questioned the

substantial reliance of the Ninth Circuit on a prior decision issued

by the Eighth Circuit Court of Appeal. United States v. Aceto Agric

Chem. Corp.. 872 F.2d 1373 (8th Cir. 1989). It appeared to

counsel that the Eighth Circuit may reach a result opposite to that

of the Ninth Circuit.

— Counsel in Furrer v. Brown also advises that the Eighth

Circuit has already issued opinions in other cases that were argued

on April 12. 1995 and that a decision in Furrer v. Brown thus

appears imminent. If Furrer v. Brown is decided during the

pendency of this Petition. Petitioners anticipate filing a short

supplemental paper addressing the decision.

The “contributed contributing” language and the "

handling” language of § 6972 make it clear that = action will us for wr

is either ongoing or wholly past. However. the "may present an imminent and

substantial endangerment” language also makes it clear that an action will lie only

if the endangerment Is Ongoing and not wholly past. In this case, the conduct in

question ts wholly past and the endangerment at issue is wholly past. having bee

cleaned up more than three years before suit was filed. hae

Il. The Questions Presented Here Are Important Ones

No other reported decision in the 20 years since RCRA was

enacted in 1976, or in the 11 years sine co nage ee emer

add a cause of action for abatement of an imminent and substant

endangerment, has authorized a private party to sue cost

recovery under RCRA. Before the Ninth ee negate

opinion herein, the remedies available to a private party -

cost reimbursement for property contamination were we

established. An aggrieved party had a full array of state common

law and state statutory causes of action available to it. In many

instances, an aggrieved party could also sue in federal court for cost

recovery under CERCLA. 42 U.S.C. § 9607(a). This has been ,

state of the law over the course of the lengthy development o

property contamination litigation.

The Ninth Circuit's majority opinion swings open the doors

of the fedetal courthouses to a plethora of new cost recovery <~

The threshold has apparently already been crossed by ~~

current litigants. Counsel for Petitioners has received — “4

counsel from all over the United States about the Ninth ircu

decision. These counsel have repeatedly indicated that woes ~

plaintiffs in ongoing litigation in which they were involv ve

recently amended their property contamination complaints to now

add a cause of action under RCRA.

In addition, an authoritative trade publication has recently

discussed this very trend under the headline Court Ruling On Cost

Recovery Under RCRA Spawns Raft of New Lawsuits. inside EPA

Weekly Report, May 12. 1995 at 1-2. The article states that:

¥ The dispute between KFC and the Meghnigs serves as a good example

of the availability of that array of remedies. since plainuff pled causes of =

state court for: (1) statutory cost recovery. (2) tortious breach of gg Sy

private nuisance. (4) public nuisance. (5) equitable imdemnity. ) .

enrichment. (7) ultrahazardous activity, (8) negligence, and (9) om aa a

practices. KFC Western v Meghrig. 23 Cal.App.4th 1167, 28 Cal. Rpw.

(1994).

The (Court of Appeals) decision has spurred a

wave of new lawsuits and amendments to ongoing

suits... One industry source says there are "dozens.

and should be hundreds soon” of new cases in the

Ninth Circuit, adding that the appeals court

decision is “opening vast new vistas” of potential

litigation, and “in another month or so, people will

be giving seminars” on the new approach.

Because Congress never envisioned the RCRA citizen suit

Provision as a cost recovery mechanism, there is no express

limitations period in the statute. As a result of the Ninth Circuit's

decision, these private parties can now sue years and years after

contamination has been discovered, and even years after it has been

cleaned up. One area of environmental litigation that will be

overwhelmingly impacted is cost recovery suits over gasoline leaks

from underground storage tanks. Such suits were previously barred

from the federal courts in most instances by the petroleum exclusion

in CERCLA and were subject to state statutes of limitations. Now,

however. such suits may be filed in federal court under RCRA with

no express statute of limitations to be applied. Virtually every

citizen plaintiff with a gasoline tank leak claim can now proceed to

federal court. including those who have already been barred from

proceeding in state court by state statutes of limitations.

The questions presented here are also important because the

Ninth Circuit's decision effectively nullifies a set of congressionally

mandated limitations on private party cost recovery actions

embodied in the primary federal property contamination statute.

CERCLA. CERCLA applies only to hazardous substances. A

RCRA remedy would apply to any solid waste problem -- a much

broader universe. As just noted. CERCLA excludes petroleum

product from its list of hazardous substances. Wilshire Westwood

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

Responsibility for petroleum contaminated property ts in the hands

of state enforcement agencies and state courts. The Ninth Circuit's

decision would nullify this important aspect of the CERCLA

petroleum exclusion -- it would allow petroleum cost recovery cases

to be brought in federal court even though Congress and the courts

have determined otherwise under CERCLA.

in addition, CERCLA provides a mechanism for

determining which costs expended by a plaintiff are recoverable.

Only costs that are "necessary and consistent with the National

Contingency Plan” are recoverable. 42 U.S.C. § 9607(a). The

National Contingency Plan contains regulations on “hazardous

substance response” that cover 29 pages in the Code of Federal

Regulations. 40 C.F.R. §§ 300.400 - 300.440. Since Congress

never envisioned response costs as being recoverable under RCRA,

it is not surprising that RCRA, unlike CERCLA, provides no

guidance on what types of response costs are recoverable under its

citizen suit provision. Under the Ninth Circuit's holding, the courts

will have to engage in extensive interstitial lawmaking to define

which costs are recoverable in this highly technical area.

Finally, a statute of limitations has been specifically

provided for CERCLA cost recovery actions. 42 U.S.C. § 9613(g).

Again. because Congress never envisioned RCRA as a cost recovery

mechanism. there is no express statute of limitations for RCRA

citizen suit cost recovery actions. To simply assert, as the Ninth

Circuit majority does (App. at A9), that the indefinite doctrine of

laches may substitute for a definite statute of limitations 1s

anomalous. to say the least, particularly in a context where. when

Congress did expressly provide for cleanup cost recovery in

CERCLA. Congress believed it important that the specificity of a

fixed statute of limitations accompany such a remedy.

To create by judicial fiat a remedy for cost recovery under

RCRA. unaccompanied by the protection of a fixed statute of

limitations. runs very much against the scheme Congress intended

to establish. This Court has held that the citizen suit is meant to

supplement. not supplant, governmental action. Gwaltney, 484 U.S.

at 60. However. by allowing a private plaintiff to recover its costs

for cleaning up contamination under the RCRA citizen suit

provision, the Ninth Circuit would wholly supplant governmental

action in this sphere. In turn, an outcome that Congress steadfastly

sought to avoid would surely follow: the overburdening of the

federal courts with lawsuits seeking recovery of costs previously

expended to clean up waste problems -- solid and inazardous wastes

~- of all types and sizes, without regard for whether the underlying

danger is imminent or non-existent, and without any statutory

limitations period, but only /aches as a time constraint. App. at A9.

Il. The Ninth Circuit Erred In Interpreting

The Statute T

Allow Private Parties To Sue For Monetary Relief .

We have already detailed above the ways ji i

. . 9 — . = which the

Ninth Circuit's decision directly conflicts with this Court’s decisions

in Sea Clammers and Gwaltney. But there should be no doubt that.

in other respects as well, the Ninth Circuit majority’ ing i

seriously flawed analytically. wtotacere, ta

A. Under General Principles Of Statutory

interpretation, Neither The Plain Language Nor

The Legislative History Of The RCRA Citizen

Suit Provision Authorizes A Suit For Monetary

Damages Or "Restitution" ’

Viglen oe ae et: the plain language of the citizen suit

pro om of RCRA grants private parties the right to sue for

— tory and mandatory injunctions. The legislative history of

‘CRA further demonstrates that Congress did not intend the RCRA

citizen suit provision to include monetary relief. Most notably, in

ae amended rende the RCRA citizen suit provision to allow

citizen Injunctions requiring responsible person

imminent and substantial endangerments” caused by rep ra

of solid or hazardous waste. The legislative history of the 1984

a ! » stated that citizens would have "a limited right under

tion 7002 [42 U.S.C. § 6972] to sue to abate an imminent and

a endangermen 7 t." H.R. Rep. No. 198, 98th Cong., 2d

S. (1964), reprinted in 1984 U.S.C.C_A.N. 5576, 5612 (emphasis

added.) It also explains the primary goal of § 6972(a\ 1B) as "the

prompt abatement of imminent and substantial endangerments.” /d

(emphasis added.) Under basic principles of statutory interpretation.

the Ninth Circuit has misanalyzed both the express terms of the

Statute and their legislative history.

The Ninth Circuit Improperly Implied A

48 Damages Right Of Action For Citizen Plaintiffs

It is clear that the RCRA citizen suit provision

express i Court of

ide a money damages remedy. What the

sarreals hes now created, then, is an implied right of action under

the RCRA citizen suit provision."

In Cort v. Ash, 422 U.S. 66, 78 (1975), this Court listed

four factors which guide the process of determining —

implying a claim is consistent with Congressional intent. _

first consideration under Cort is whether the plaintiffs are mem :

of a class for "whose especial benefit the statute was enacted.

California v. Sierra Club, 45\ U.S. 287, 293 (1981) (quoting Cort,

422 U.S. at 78, 80-82). RCRA is a statute designed to a

public at large by ensuring environmental safety, rather

= Cour of A did not label its construction an “implied nght of

action.” oun enen of prea instead interpreted the language of eae eem

provides for mandatory myunctive relief (“to order such person to take suc |

action as may be necessary”) to allow paceman patina chs ora

over to a plaintiff in restituvon that amount of mone) that the plainu

expended on its cleanup

- "First. is the plaintiff one of the class for whose especial

benefit the statute was enacted. that is. does the statute create

a federal mght in favor of the plaintiff? Second. is there any

indication of such a remedy or to deny one? Third. Is ul

consistem with the underlying purposes of the legislative

scheme to imply such a remedy for the plainuff? And finally.

is the cause of action one traditionally relegated to state law,

in an area basically the concem of the States. so that it would

be inappropnate to inter a cause of action based solely on

federal law?”

Cort. 422 U.S. at 95 (Emphasis Added).

The Cort factors are not of equal weight: the dispositive question Aaah

legislative iment. Transamerica Mortgage Advisors, Inc v Lewis, 444 US. 11,

23-24 (1979). Touche Ross & Co v. Redington. 442 U.S. $60, 575-576 (1979). ;

focusing on any particular class or group. City of Chicago v.

Environmental Defense Fund, __ U.S. __, 114 S.Ct. 1588, 1590

(1993): accord California v. Sierra Club, 451 U.S. 287, 295. KFC

does not belong to a special class to which Congress intended to

give special protections under RCRA, and this requisite for an

implied right of action is not met.

The second consideration under Cort is whether there is any

indication of legislative intent, explicit or implicit, to create a

federal cause of action for private party recovery of cleanup costs.

As noted elsewhere in this Petition, nothing in the RCRA legislative

history in any way suggests that Congress intended to grant

jurisdiction to district courts to adjudicate claims for recovery of

cleanup costs under RCRA’s citizen suit provision.

The third consideration under Cort is whether implying a

cause of action for recovery of cleanup costs by a private plaintiff

is consistent with the underlying purpose of RCRA. As this Court

noted in Sea Clammers. a comprehensive and elaborate enforcement

scheme. expressly created by Congress within a federal Statute,

reveals Congress’ intent that the enforcement scheme it wrote was

complete and exclusive. See Sea Clammers, 453 U.S at 14. Like

the FWPCA reviewed in Sea Clammers, RCRA contains a

comprehensive and elaborate remedial scheme. The comprehensive

character of RCRA’s remedial scheme reflects C ongress’ intent not

to authorize additional remedies. See Sea C lammers, 453 U.S. at

14.

The fourth consideration under Cort is whether the cause of

action is One that is traditionally relegated to the states, such that it

would be inappropriate to infer a cause of action based solely on

federal law. Causes of action for recovery of cleanup costs or

restitution have been developed by common law courts and by

courts of equity for several centuries. See G. Palmer. The Law of

Restitution §§ \.1-1.8 (1978); D. Dobbs Remedies §§ 4.2-43

(1973). Common law courts of general jurisdiction, such as those

of the states. have power to develop and elaborate further a cause

of action for restitution, as well as the defenses to such a cause of

i i iSt the facts of the

action, by applying general rules of decision to

cases before them. This task is uniquely suited to the state courts.

Moreover, the law governing the duties of a property owner to a

successor in title is also a matter historically determined by state

law.

In sum, there is no justification for implying a damages

right of action under RCRA when measured by the standards set

forth in this Court’s decision in Cort v. Ash.

C. ~ The Relief That The Majority Opinion Would

Provide Runs Counter To The Very Purpose of

Citizen Suit Provisions

tire concept of a citizen-plaintiff acting as a private

Rs clashes with the-notion of such a plaintiff being

able to receive monetary relief. As the District Court stated: "where

the relief sought is to benefit the plaintiff rather than act for the

public, the action is not within the scope or the purpose of the

citizen suit provision. App. A22 to A23. The earlier review in this

Petition of the history of environmental citizen suit provisions

reveals the essential purposes and limitations of these provisions.

As an advocate of citizen suits recently noted:

"A citizen suit is not a private tort remedy because

citizens can only obtain an injunction and/or civil

penalties payable to the U.S. Treasury, not damages

for their own injuries. It is not a gui fam action

because citizens do not recover a share of the

penalties obtained."

Hecker, The Citizen's Role in Environmental Enforcement, Nat.

Res. & Env. (Spring 1994) at 31.

D. The Ninth Circuit Erred In Interpreting The

Statute To Authorize Relief For Harms Wholly

Past

The RCRA citizen suit provision provides for relief as

against any person:

"who has contributed or who is contributing to the

past or present handling . . . of any solid or

hazardous waste that may present an imminent and

substantial endangerment to human health or the

environment."

42 U.S.C. § 6972(aX 1B) (emphasis added).

The statute clearly requires that the endangerment be imminent.

even if the acts which caused it occurred in the past.

Other subsections of RCRA conclusively demonstrate that

the imminent danger at issue must be ongoing at the time suit is

filed. First, the notice requirement contained in the RCRA citizen

Suit provision requires the citizen-plaintiff to provide notice of

intent to file suit to: the defendant(s), the Administrator of EPA and

the appropriate state 90 days prior to filing, 42 USC. §

6972(bX2)A). Such a provision is gratuitous if citizen suits are

permitted to target wholly past violations. Gwaltney, supra, at 59-

60.

In addition, RCRA completely bars a citizen suit where the

EPA has taken action following receipt of the required 90 day

notice. To allow citizen suits for past violations where the Statute

provides a complete bar to citizen suits in this type of situation

would undermine the supplementary nature of the citizen suit.

Gwaltney at 60." The Court of Appeals majority's reasoning

totally undermines the supplemental nature of the RCRA citizen

suit. Citizen-plaintiffs can simply clean up a solid waste problem

without prior notice to any governmental entity or potential

defendant. Then. as occurred in this case. the citizen-plaintiff can

provide the requisite notices years after the cleanup had been

completed and proceed to file suit 90 days later. Whatever

The Court of Appeals did not address this portion of Gwaltney, although

the dissent did and found it persuasive in urging affirmance of the lower court's

decision.

governmental role Congress had envisioned is surely supplanted

under this scenario.

CONCLUSION

The Ninth Circuit majority has implied a damages remedy

for citizen-plaintiffs under RCRA where none was provided for in

the statute, where Congress evinced no intent to so provide and

where the effect is to render supporting provisions of the statute

meaningless. That is contrary to the prior clear pronouncements of

this Court in Sea Clammers and Gwaltney and likely conflicts with

an impending decision of the Eighth Circuit as well. The flood of

new federal court litigation which has already been spawned by the

Ninth Circuit's decision can be expected to increase exponentially.

For these and all of the other reasons set forth in this Petition, we

respectfully petition this Court to issue a writ of certiorari to review

the decision of the Ninth Circuit below.

Dated: July 13, 1995.

Respectfully submitted,

JOHN P. ZAIMES

Counsel of Record

CLIFTON J. MCFARLAND

McCLINTOCK, WESTON,

BENSHOOF, ROCHEFORT,

RUBALCAVA & MacCUISH

444 South Flower Street, 43rd Floor

Los Angeles, California 90071

(213) 623-2322

Counsel for Petitioners

A-|

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Argued: April 5, 1994 Decided: March |, 1995

Docket No. 92-56597

KFC WESTERN, INC..,

Plaintiff-Appellant,

-against-

ALAN MEGHRIG and MARGARET MEGHRIG,

Defendants-Appellees.

Before’ BROWNING, PREGERSON and BRUNETTI,

Circuit Judges.

PREGERSON. Circuit Judge:

KFC Western, Inc. ("KFC") appeals the district court's

dismissal of its action under the Resource Conservation and

Recovery Act ("RCRA") to recover environmental clean-up costs

from the prior owners of contaminated property sold to KFC. The

district court dismissed KFC’s action under Federal Rule of Civil

A-2

Procedure 12(b\6) because it concluded that RCRA § 7002,

codified at 42 U.S.C. § 6972(aX1\B), does not authorize private

plaintiffs to collect a restitutionary remedy. We have jurisdiction

under 28 U.S.C. § 1291. We reverse and remand.

BACKGROUND

In September 1975, Alan and Margaret Meghrig (the

"Meghrigs") sold real property to KFC, which continues to own and

operate a Kentucky Fried Chicken franchise on the property.

Unbeknown to KFC, underground soil at the property was

contaminated with elevated levels of refined petroleum products

(lead and benzene) at the time of the sale. The contamination

allegedly resulted from the Meghrigs’ negligence in operating a

gasoline station on the property. The Meghrigs never informed KFC

about the contamination.

In October 1988. in the course of improving the property,

KFC discovered the contaminated soil. The City of Los Angeles

Department of Building and Safety issued a corrective notice

ordering KFC to stop all construction on the property pending

analysis of the soil and clearance from the County of Los Angeles

Department of Health Services (the "DHS"). Analysts confirmed the

presence of elevated levels of refined petroleum in the soil.

Although KFC neither caused the contamination nor owned the

property when the contamination occurred, the DHS ordered KFC

to clean up the property. KFC spent over $211,000.00 to assess and

remove the contaminated soil for off-site disposal. KFC completed

the clean-up in 1989 and. in June 1990, asked the Meghrigs to

reimburse the costs. The Meghrigs refused.

On May 29, 1992. KFC filed a complaint in district court

against the Meghrigs under RCRA § 7002, codified at 42 U.S.C. §

6972(aX 1B). for restitution of the expended clean-up costs. The

Meghrigs filed a Federal Rule of Civil Procedure 12(b\(6) motion

to dismiss the complaint. offering two reasons why KFC’s action

did not come within the RCRA citizen suit provision: (1) there was

no “imminent and substantial endangerment" because KFC had

completed the clean-up three years before filing. and (2) RCRA

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authorized suits for injunctive relief only, not for damages. The

district court granted the Meghrigs’ motion and granted KFC leave

to amend its complaint.

KFC filed an amended complaint which alleged that the

contaminated soil, at the time of clean-up, presented an "imminent

and substantial endangerment" to public health and the environment

by threatening surrounding groundwater and potentially risking the

health of people expected to use the property and the KFC

franchise. RCRA § 7002, codified at U.S.C. § 6972(a\1\B). Also.

KFC stated that its damages claim was actually a claim for

"equitable restitution." Upon the Meghrigs’ renewed motion, the

district court dismissed the amended complaint. In its dismissal

order, the district court stated that 42 U.S.C. § 6972(a\ 1B)

authorizes only injunctive or other equitable relief and only in cases

involving an existing, imminent danger to public health or the

environment. KFC appeals.

ANALYSIS

We review de novo a dismissal for failure to state a claim

pursuant to Federal Rule of Civil Procedure 12(b\6). Oscar v.

University Students Co-op. Ass'n, 965 F.2d 783, 785 (9th Cir.) (en

banc). cert. denied, U.S. _, _ , 113 S.Ct. 655, 656, 121 L.Ed.2d

581 (1992). In reviewing such a dismissal, our review is limited to

the contents of the complaint, Buckey v. County of Los Angeles, 968

F.2d 791, 794 (9th Cir.), cert. denied, U.S. _, 113 S.Ct. 599, 121

L.Ed.2d 536 (1992), and we must take as true all allegations of

material fact and construe them in the light most favorable to the

plaintiff, Oscar, 965 F.2d at 785.

This appeal presents us with a question of first impression -

-- whether the RCRA citizen suit provision authorizes a private

plaintiff to collect restitution of clean-up costs. The RCRA citizen

suit provision provides:

[A]ny person may commence a civil action on his

own behalf ... against any person . . . including any

A-4

_. ,. 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 1s

contributing to the past or present handling,

storage, treatment, transportation, or disposal of any

solid or hazardous waste referred to in [§

6972(a\ 1B) (the endangerment provision) } [and]

to order such a person to take such other action as

may be necessary, or both....

RCRA § 7002, codified at 42 U.S.CA. § 6972(aX1B) and §

6972(a) (West 1984 & Supp.1993) (emphasis added).

The parties dispute initially whether, for purposes of §

6972(aX1)(B), "imminent and substantial endangerment" must exist

at the time the plaintiff files a complaint or may exist at the time of

clean-up. The Meghrigs urge us to adopt the district court's

reasoning that § 6972(aX1\B) authcrizes citizen suits only if

contamination poses an imminent and substantial endangerment at

the time the plaintiff files the complaist. Because KFC completed

the clean-up of the property three yeas before commencing this

lawsuit, the Meghrigs argue that KFC has no remedy under RCRA.

The result urged by the Meghrigs is supported by certain comments

in the legislative history that explain the meaning of the term

“imminence.” "Imminence in this section applies to the nature of the

threat.... The section, therefore, may be used for events which took

place at some time in the past but which continue to present a

threat to the public health or the environment.” Staff of House

Subcommittee on Oversight and Investigation, Committee on

Interstate and Foreign Commerce, 96thCong., | st Sess., Hazardous

A-5

Waste Disposal 32 (Comm. Print 96-IFC 31, 1979) ("Eckhardt

Report") (emphasis added). See Dague v. City of Burlington, 935

F.2d 1343, 1356 (2d Cir.1991) (finding an “imminent hazard”

requires proof that a risk of harm is present), rev d in part on other

grounds, U.S. _ , 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992):

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

imminent danger existed at the time of the district court's

hearing). '

mi Nonetheless. we agree with KFC that RCRA authorizes

citizen suits with respect to contamination that in the past posed

imminent and substantial danger. We choose to follow the Eighth

Circuit's interpretation of RCRA § 7003, codified at 42 U.S.C. §

6973, which authorizes suits by the Administrator of the

Environmental Protection Agency ("EPA"), and which is worded

virtually identically to § 6972(a\1\B).’ The Eighth Circuit reads

| The Meghrigs also cite Gwaltney of Smithfeld Lid v C

Found . 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2¢ ms (1987) ‘ames tee on

case) and McClellan Ecological Seepage Situation v Weinberger. 707 F Supp

1182. 1187 (E.D.Cal.1988) (dismissing for mootness a RCRA action under P

6972(a1MA)). which are inapposite. Both cases explain only that citizen suit

Provisions not at issue here do not apply retroactively to allow an action against

a defendant who violated a statutory obligation in the past. if the defendant no

longer allegedly is “in violation.” In contrast. § 6972(ax1\B) apples both

prospectively and retrospectively. to persons who contributed in the past to current

endangerment. See Ascon Properties. Inc v. Mobil Oil Co. 866 F.2d 1149. 1159

(9th Cir. 1989) (citing Gwaliney. 484 U.S. at $7 & 58 n. 2. 108 S.Ct. at 381 « 382

n 2. wherein the Supreme Cour described the section as one where “Congress has

demonstrated that it knows how to avoid [limiting a statute to prospective

application} by using language that expressly targets past violations”)

Specifically. § 6973 provides

[U]pon receipt of evidence that the past or present handling.

storage. treatment. transponation or disposal of any solid waste

or hazardous waste may present an imminent and substantial

endangerment to health or the environment. the Administrator

may bring suit .. against any person... who has contributed

or who ts contributing to such handling. storage. treatment.

(continued...)

A-6

the imminent endangerment requirement as “limit[ing] the reach of

RCRA to sites where the potential for harm is great” but not as

limiting the time for filing an action. United States v. Aceto Agric.

Chemicals Corp., 872 F.2d 1373, 1383 (8th Cir.1989).

In Aceto A ic. Chemicals Corp., the Eighth Circuit, when

it reversed a Federal | Rule of Civil Procedure 12(b\6) dismissal

order, addressed and rejected the same arguments that the Meghrigs

make here. The defendants in the Eighth Circuit case argued that

because the plaintiff (EPA) cleaned up the site before bringing suit,

the required “imminent and substantial endangerment did not exist.

The court concluded that the language of RCRA “does not require

the EPA to file and prosecute its RCRA action while the

endangerment exists.” /d. The court explained that RCRA S$ purpose

"is to ‘give broad authority to the courts to grant all relief necessary

to ensure complete protection of the public health and the

environment. The limitation urged by defendants would defeat this

purpose,” would be an "absurd and unnecessary” requirement. Id.

(citations to quoted material omitted).

We also agree with KFC that RCRA authorizes a

restitutionary remedy under these circumstances. KFC’s action to

collect restitution of clean-up costs falls within the statutory

allowance for district court orders that defendants take “such other

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

court shall have jurisdiction . . . to restrain any person who has

contributed or who nace yma Sen peo em re apne age

endangerment]. to order such person to such ot ion as

may be mtn or both....") (Emphasis added). We reject the

Meghrigs’ contention that the statute entitles citizens to obtain only

an injunction or other equitable relief that is not the equivalent of

*(. .contunued)

transponation or disposal to restrain such person from {such

activity}. to order such person to take such other action as may

be necessary. or both...

42 USCA. § 6973 (West 1984 & Supp.1993) (emphasis added).

A-7

Because Congress intended that citizen suits be governed by

the same standards of liability as governmental actions.’ and

because it worded the provisions almost identically, we choose to

interpret similarly the relief available under the two provisions. The

Eighth Circuit has recognized the Administrator's right to sue under

§ 6973 for restitution of costs incurred. See, e.g, Aceto Agric.

Chemicals Corp., 872 F.2d at 1383 (Administrator may collect

reimbursement after government cleaned up contaminated property ).

United States v. Northeastern Pharmaceutical & Chem. Co., 810

F.2d 726 (8th Cir.1986) (Administrator may collect an equitable

award of abatement costs from persons who non-negligently

contributed to endangerment). cert. denied, 484 U.S. 848, 108 S.Ct.

146, 98 L.Ed.2d 102 (1987). The Third Circuit also has stated that

"[rjeimbursement could ... be directed against those parties

ultimately found to be liable” after the EPA itself funded a

diagnostic study of contaminated property. Price, 688 F.2d at 214

(holding that district court could have granted the Administrator a

preliminary injunction to obtain funding for diagnostic study).

H.R.Rep. No. 198. 98th Cong. 2d Sess.. pt. 1. $3 (1983). reprinted in

1984 USCCAN $576, 5612. The legislative history for the 1984 RCRA

Amendments suggests that when Congress added the endangerment provision it did

not intend to grant a narrower nght of action to citizens than to the Administrator.

who ts authorized (according to persuasive oul-of-circuit case law. discussed infra)

to bring reimbursement actions Nothing indicates that Congress intended citizen

Suits to serve a purpose different from that served by governmental actions The

House Committee on Energy and Commerce explained in its report that citizens

have a limited right to sue im endangerment cases “pursuant to the standards of

hability established under Section 7003 [42 U.S.C. § 6973. Administrator s nght

of action|” and only if the Administrator. after receiving notice. fails to file an

action /d “The committee believes [the] expansion of the citizen suit Provision

will complement | the Administrator's efforts to eliminate threats as to public

health and the environment. particularly where the Government is unable to take

action because of madequate resources " /d

Sull. the legislative history cuts both ways because other language

supports the Meghngs contention that Congress intended to allow citizens to sue

only for injunctions when it added the endangerment provision. The House

Committee stated that citizens have a “limited right. . to sue to abate an

imminent and substanual endangerment” /d (emphasis added)

A-8

We are not persuaded by the Meghrigs’ contention that

material differences exist between the substantially identical citizen

suit provisions in § 6972(aX1\B) and § 6973, SO as to justify

affording restitutionary relief only to the Administrator. The

Meghrigs focus first on the different notice requirements for filing

actions. The Administrator may bring an action “upon receipt of

evidence” of the requisite endangerment, and the statute does not

preclude actions filed by the Administrator without notice. See 42

U.S.C. § 6973(a). On the other hand, a private plaintiff cannot

commence an action without giving ninety days’ notice to the

Administrator, the State, and to any alleged contributor to the

endangerment. See 42 U.S.C. § 6972(bK 2K A); Ascon Properties.

Inc. v. Mobil Oil Co., 866 F.2d 1149, 1159 (9th Cir.1989). Notice

by a private plaintiff might encourage certain polluters to abate

harmful conduct to obviate an expensive law suit. Still, there is no

inconsistency between a notice requirement and the recovery of

clean-up costs from past polluters.° Requiring notice of a citizen

suit restitution action still serves certain interests of the EPA and

the states by notifying them that endangerment was corrected and

that the polluters are being held accountable. Furthermore, even the

Administrator must provide immediate notice of hazardous waste

endangerment to the appropriate local governmental agencies, see

42 U.S.C. § 6973(c). and no courts have treated this notice

requirement as a basis for refusing to allow governmental restitution

* Compliance with the citizen suit nouce requirement, infra, 1s not an issue

on appeal

Section 6972(aK 1B) permits private actions against persons who in the

past contributed to current endangerment. even though they no longer engage in

conduct that requires abatement. Because § 6972(aK 1B) applies retroactively nm

some cases. we do not impor into our analy sts the Supreme Court's discussion in

Gwaltney on the significance of a nouce requirement. 484 US. at 60-61. 108 S.Ct.

at 383 (rejecting a statutory, interpretation that would render nouce gratuitous

because one purpose of notice ts to give an alleged violator an opportunity to bring

itself into compliance with tederal requirements and thereby render unnecessary a

citizen suit), As explained supra in note |. the Gwaltney case concerned a different

statute which only apphes to persons alleged to be currently in violation of federal

obligations

A-9

actions.

The Meghrigs also argue that the lack of a limitations

period for RCRA citizen suits is evidence of the unavailability of

reimbursement actions under RCRA. They argue that it would be

problematic for us to conclude that private citizens can file suit

many years after they complete clean-up of once-imminent

endangerment. Congress provided a limitations period in other

statutes, such as the Comprehensive Environmental Response,

Compensation, and Liability Act ("CERCLA"), when it expressly

authorized actions to recover response costs, 42 U.S.C. § 9612(d\1)

(West 1986 & Supp.1993) (claim to recover clean-up costs must be

made within six years after the completion of all response action).

Instead, in RCRA, Congress provided that private plaintiffs retain

the right "to seek any other relief" available "under any statute or

common law.... " See 42 U.S.C. § 6972(f). We do not see this as a

problem. By applying equitable defenses such as laches. courts can

alleviate any unfairness that might be created by the lack of a

limitations period for RCRA citizen suits.

We have found no principled reason to distinguish between

the relief available to the Administrator and that available to private

plaintiffs under the virtually identical statutory provisions. Nor are

we persuaded by the case law cited by the Meghrigs. Some circuit

courts have held that citizens cannot bring reimbursement actions

because RCRA authorizes only preventive, rather than

compensatory relief. See Walls v. Waste Resource Corp., 761 F.2d

311, 316 (6th Cir.1985) (refusing to imply a private right of action

for damages): Environmental Defense Fund. Inc. v. Lamphier, 7\4

F.2d 331, 337 (4th Cir.1983) (affirming award of injunctive relief

because plaintiffs were "acting as private attorneys general rather

than pursuing a private remedy [for damages]"). These decisions are

inapposite because they do not address private actions like KFC’s

action, brought under § 6972(a\ 1B). Rather, they concern actions

brought under the predecessor to § 6972(aX1\A). formerly 42

U.S.C. § 6972(a), which authorized actions to “enforce” a

requirement against any person alleged to be currently "in violation”

of the requirement. Cf § 6972(a1\B) (allowing actions against

A-10

any contributor, past or present, to an imminent and substantial

endangerment).

Furthermore, we disapprove of the reasoning used by

district courts that have dismissed complaints brought under §

6972(aX 1B) to the extent the plaintiffs sought reimbursement of

clean-up costs. See Kaufman and Broad-South Bay v. Unisys Corp.,

822 F.Supp. 1468 (N.D.Cal.1993) (refusing to follow cases

interpreting § 6973 to afford a restitution remedy to the

Administrator, and relying on Walls, and Commerce Holding Co.

v. Buckstone, 749 F.Supp. 441 (E.D.N.Y.1990)); Commerce

Holding Co., 749 F.Supp. at 445 (Although plaintiff characterized

complaint as a request for "equitable relief in the form of [clean-up

cost] reimbursement,” court construed it as one for damages, stating

that the complaint failed even if treated as a request for equitable

relief because the plaintiff "would be the direct beneficiary of the

substantive relief.”). Because we choose to follow the Eighth

Circuit's rule that the Administrator may sue for equitable

restitution of costs, we now allow such suits by private plaintiffs

under § 6972(a\ 1 KB).

It would be unfair and poor public policy to interpret §

6972(a\1)(B) as barring restitution actions. By doing so, we would

make the citizen suit remedy meaningless in most cases for the very

citizens who most deserve the remedy, namely innocent citizens,

like KFC, who have a financial stake in the contaminated property

as well as potential and actual clean-up liability. As in this case, the

government often orders innocent parties, so-called responsible

parties” under thr. statute, to remedy discovered contamination on

their property even though they did not cause the contamination or

have any ties to the property when the contamination occurred.

When the government orders cleanup, the innocent citizen must

respond expeditiously to the order. There is no time to sue for

“other equitable relief" in the form of a mandatory clean-up

injunction against past polluters who may or may not still be on the

scene.

CERCLA and state law do not provide an adequate

a eee

A-11

substitute source of relief for these innocent citizens.” In practice.

an interpretation of § 6972(a\1)\B) that afforded only injunctive

relief, not compensation, would make the remedy available only to

concemed outsiders, who can never be held responsible for

environmental clean-up. We would foreclose a RCRA remedy for

the innocent buyers who clean up contaminated property.

In fact, it is even more important for private citizens, as

compared to the EPA Administrator, to have a restitutionary remedy

under RCRA. A private citizen often cannot control the timing of

clean-up actions but, rather, must clean the contaminated property

whenever the government obtains an appropriate order. Even the

innocent private party, like KFC, who purchases

already-contaminated property, often must clean the property

immediately and recover secondarily from the actual polluter. The

Administrator, on the other hand, can control the timing of clean-up

actions and impose the clean-up burden on the polluters or other

"responsible parties" in the first instance. The right to

reimbursement becomes important to the Administrator only when

contamination requires prompt attention, which is always the case

for private citizens who are ordered to remedy contamination. As

the Third Circuit has recognized, public-policy concerns might

KFC has no remedy under CERCLA because CERCLA’s petroleum

exclusion covers refined petroleum products such as gasoline and therefore bars a

lawsuit to recover response costs occasioned by its release: See Cose v Getty Oil

Co. 4 F.3d 700, 704 (9th Cir. 1993) (CERCLA excludes refined petroleum from

its definition of "hazardous substance"). Wilshire Westwood Assocs. v Atlantic

Richfield Corp.. 881 F.2d 801, 810 (9th Cir.1989) (same). Due to a similar

petroleum exclusion in California's Hazardous Substance Account Act. KFC also

has no statutory state law remedy. KFC Western, Inc. v Meghrig. 23 Cal.App.4th

1167, 28 Cal.Rptr.2d 676. 682 (1994). KFC might be able to state common law

claims for private continuing nuisance and continuing trespass based on the

Meghrigs’ allegedly tortious contamination of the soil. See id. 28 Cal. Rptr.2d at

685 (reversing dismissal and remanding to allow KFC to amend its complaint).

Even though causes of action for nuisance. trespass. and potential negligence are

available to plaintiffs such as KFC, tort remedies are generally inadequate because

of the difficulties of proof and attendant court delays.

A-12

favor allowing a plaintiff to clean contaminated property first and

seek reimbursement later. See Price, 688 F.2d at 214 ("Prompt

preventive action [is] the most important consideration."). We

therefore hold that § 6972(aX1\B) entitles KFC to bring a

restitution action. REVERSED AND REMANDED.

BRUNETTI, Circuit Judge, dissenting:

Because | believe that RCRA § 7002, 42 USC. §

6972(a)(1 XB), does not contemplate actions for restitution when

there is no "imminent and substantial endangerment” at the time of

suit, | must dissent from the majority's opinion.

The majority's main argument is that because the Eighth

Circuit allowed the administrator to bring an action for restitution

under § 6973. private citizens should be permitted to bring actions

for restitution under § 6972/a)(1)(B) since those two sections are

worded virtually identically. In United States v. Aceto Agric.

Chemicals Corp., 872 F.2d 1373, 1383 (8th Cir.1989) (emphasis in

original), the Eighth Circuit held that "RCRA’s ‘imminent and-

substantial endangerment’ language does not require the EPA to file

and prosecute its RCRA action while "the endangerment exists."

The court found that "in the context of a reimbursement action, this

would be an ‘absurd and unnecessary’ requirement. The

endangerment language is plainly intended by Congress to limit the

reach of RCRA to sites where the potential for harm is great." /d.

at 1383. The court concluded that requiring an "imminent and

substantial endangerment” at the time of suit would defeat RCRA’s

purpose to "give broad authority to the courts to grant all relief

necessary to ensure complete protection of the public health and the

environment.” /d (quotations omitted).

The Eighth Circuit's decision assumes without deciding that

RCRA § 6973 provides for reimbursement actions. Looking at the

two issues presented in the instant action makes this clear. Those

two issues are: (1) whether RCRA requires an “imminent and

substantial endangerment” at the time of filing suit, and (2) whether

§ 6972 is limited to injunctive, rather than restitutionary, relief.

A-13

Although the two issues are intertwined, allowing an action for

restitution after a site has been cleaned up requires an affirmative

answer to both questions. If the answer to either question is no,

then the answer to the other question should also be no. Instead of

addressing both questions under the statute, the Eighth Circuit

assumed that RCRA permits reimbursement actions.

The majority adopts the Eighth Circuit's decision in Aceto

without discussing its assumption that § 6973 permits

reimbursement actions. This approach undermines the plain

language of § 6972(a1\B). Therefore, | disagree with the

majority's unquestioning adoption of Aceto.'

The majority relies on the language in § 6972(a\1\B).

allowing the district court to restrain any person ... [or} order such

person to take such other action as may be necessary, or both ...,"

to conclude that actions for reimbursement are contemplated by the

statute. The majority finds KFC’s action for restitution permissible,

because it concludes that the language, “such other actions as may

be necessary,” allows the district court to award whatever relief it

deems necessary.

| disagree, however, because | believe that the language,

“such other action as may be necessary," does not contemplate

actions for reimbursement. The legislative history suggests that

reimbursement actions are not permitted and that an "imminent and

substantial endangerment" must exist at the time of filing suit. The

House Committee stated that citizens have “a limited right under

Section 7002 to sue to abate an imminent and _ substantial

| agree with the majority that § 6973 and § 6972(ay1\B). which are

worded identically . should be interpreted the same. The legislative history supports

this conclusion. See H.R.Rep No. 198, 98th Cong. 2d Sess. 53 (1984). reprinted

in, 1984 US.C.C.A.N. 5576, 5612. (citizens have right to sue “pursuant to the

standards of liability established under Section 7003 [42 U.S.C. § 6973}").

However. because Aceto does not address the issue of reimbursement. | do not

believe that the majority should rely on it to include actions for restitution within

the scope of § 6972(ax 1B).

A-14

endangerment.” H.R.Rep. No. 198, 98th Cong., 2d Sess. 53 (1984),

reprinted in, 1984 U.S.C.C.A.N. 5576, 5612 (emphasis added). It

also explains the primary goal of § 6972(aX1\(B) as "the prompt

abatement ot imminent and substantial endangerments.” /d.

(emphasis added). Therefore, the majority's decision contravenes

the plain language of the statute and the legislative history.

As to the “imminent and substantial endangerment

requirement,” the language of the statute suggests that it must exist

at the time the private citizen files suit. Section 6972(a 1B)

allows suit against "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 which

may present an imminent and substantial endangerment to health

or the environment." This unambiguous language requires that the

endangerment must be occurring at the time of filing suit. Only if

the statute had read “may or may have presented" would it have

implied that § 6972(a 1B) permits reimbursement actions for an

endangerment that had already cleaned up.

Moreover, the notice requirement under § 6972 supports the

requirement - that an “imminent and substantial endangerment”

must be present at the time of filing suit. Under § 6972(bX2 Ai).

a private citizen seeking to file suit under § 6972(aX 1B) must

give notice to the administrator and cannot file suit for 90 days

after giving such notice. The purpose of this notice requirement 1s

to give the administrator the opportunity to bring suit itself, since

under § 6972(b\2\B). a private citizen cannot bring suit if the

administrator has initiated its own suit. Thus, the notice requirement

and the fact that the administrator has the first and exclusive

opportunity to bring suit suggest that § 6972 does not permit

reimbursement actions and requires an "imminent and substantial

endangerment” at the time of filing suit.

The majority argues that "there is no inconsistency between

a notice requirement and recovery of clean-up costs from past

polluters." See Opinion at 522. It finds that notice in a

reimbursement action “still serves certain interests of the EPA and

A-15

the states by notifying them that endangerment was corrected and

that the polluters are being held accountable." /d. However, the

majority stretches the effects of the notice requirement too far, since

all notice according to the majority's policy rationales really

accomplishes is informing the EPA that certain alleged polluters

are being sued by a private citizen. In addition, the majority states

that "the Administrator must provide immediate notice of hazardous

waste endangerment to the appropriate local governmental agencies.

see 42 U.S.C. § 6973(c), and no courts have treated this notice

requirement as a basis for refusing to allow governmental

restitution} actions.” See Opinion at 522. However, this rationale is

inapposite, since the purpose of the notice requirement in §

6972(aX 1B) is to allow the administrator to bring suit instead of

the private citizen. See H.R.Rep. No. 198, 98th Cong.. 2d Sess. 53

(1984), reprinted in 1984 U.S.C.C.A.N. 5576, 5612 (The private

citizens’ right to sue “can only be exercised if the Administrator

(following notice of the intended litigation) fails to file an action

under 7003."). In contrast, the purpose of the notice requirement in

§ 6973(c) is not to have the local government agencies bring suit

before the administrator. Thus, | believe that the majority uses

faulty reasoning to obfuscate the fact that the notice requirement for

private citizens shows that § 6792(a1\B) does not permit

reimbursement actions and requires an "imminent and substantial

endangerment” at the time of filing suit.

The majority also dismisses without support the fact that

RCRA lacks any statute of limitations for actions under §

6972(aX1\(B). Because no statute of limitations exists under §

6972(aX 1B), if reimbursement actions are allowed, private

citizens, like the KFC owners in this case, can bring suit against

past contributors many years after cleaning up the contamination.

This case is a prime example. The KFC owners brought the

property from the Meghrigs in 1975. KFC did not discover the

contamination until October 1988. KFC cleaned up the property in

1989. Then in June 1990, it asked the Meghrigs to reimburse its

costs. Not until 1992 did KFC bring suit under RCRA. This course

of events illustrates the problem that if reimbursement actions are

permitted, private citizens will be able to sue past contributors many

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years after the contamination and clean-up. Thus, the lack of a

statute of limitations supports the fact that § 6972(a1 XB) does not

contemplate reimbursement actions when there is no "imminent and

substantial endangerment."

The majority recognizes the lack of limitations period and

attempts to reconstruct Congressional intent to conclude that

Congress did not intend for RCRA to have a statute of limitations.

It notes that "Congress provided a limitations period in other

statutes such as [CERCLA] when it expressly authorized actions to

recover response costs..." See Opinion at 522. It uses this fact to

conclude that "{iJnstead, in RCRA Congress provided that private

plaintiffs retain the right ‘to seek any other relief available ‘under

any statute or common law’ [under § 6972(f)}." This conclusion is

illogical this is not an "instead" and does not indicate that Congress

chose a statute of limitations period for CERCLA but not for

RCRA. As the majority concedes, CERCLA included a statute of

limitations "when it express/y authorized actions to recover response

costs.” Jd. (emphasis added). This does not imply that because

Congress included no statute of limitations in § 6972(aX 1B), it

provided for reimbursement actions brought by private citizens at

any time, unless barred by laches. /d. In fact, the lack of limitations

period in RCRA in contrast to the limitations period in CERCLA

and the express authorization for recovery of response costs

suggests that Congress did not contemplate reimbursement actions

in RCRA.

Furthermore, the majority finds support in § 6972(f), which

provides that

{njothing in this section shall restrict any right

which any person (or class of persons) may have

under any statute or common law to seek

enforcement of any standard or requirement

relating to the management of solid waste or

hazardous waste, or to seek any other relief

(including relief against the Administrator or a state

agency).

;

‘

A-17

§ 6972(f) (emphasis added). This section does not limit the type of

relief available; however, it in no way suggests that a private citizen

has a cause of action under RCRA for reimbursement of clean-up

costs from a prior "imminent and substantial endangerment." It

simply gives a person the right to bring any claim allowable under

State or federal law.

The majority then states that it has "found no principled

reason to distinguish between the relief available to the

Administrator and that available to private plaintiffs under the

virtually identical statutory provisions." See Opinion at 523.

However, other than the Eighth’s Circuit's decision in Aceto, which

assumes reimbursement actions are permissible, the majority has

offered no support for its conclusion that an "imminent and

substantial endangerment" need not exist at the time of filing suit.

The majority's citation to United States v. Price, 688 F.2d

204 (3d Cir.1982) is wholly unpersuasive. In Price, the court did

state that in the case before it "[p]rompt preventive action was the

most important consideration. Reimbursement could thereafter be

directed against those parties ultimately found to be liable.” /d. at

214. However the court did not state that reimbursement would be

available under RCRA § 6973. In addition, the court also stated that

RCRA “authorizes the clean-up of a site, even a dormant one, if

that action is necessary to abate a present threat to the public health

or the environment." /d. (emphasis added). It also cited the

Eckhardt Report which describes § 6973:

The section’s broad authority to "take such other

actions as may be necessary" includes both short-

and long-term injunctive relief, ranging from the

construction of dikes to the adoption of certain

treatment technologies, upgrading of disposal

facilities, and removal and incineration. Imminence ex

in this section applies to the nature of the threat

rather than identification of the time when the

endangerment initially arose. The section, therefore,

may be used for events which took place at some

A-18

time in the past but which continue fo present a

threat to the public health o the environment.

Id. at 213. Therefore, Price does notsupport suits under § 6973 for

reimbursement when no "imminent and substantial endangerment

exists at the time of filing.

The majority also summarily rejects district court cases

which have dismissed cases fer reimbursement under §

6972(aX 1B). See Kaufman and Bread-South Bay v Unisys C orp..

822 F.Supp. 1468, 1477 (N.D.Cal.5 |993) ("While injunctive relief

is available under § 6972(a\ 1B), the statute does not provide a

private action for damages. Nor shoud one be implied... [Although

the Eighth Circuit allowed a reimbursement action under § 6973.

other] cases persuasively argue agaiist implying a private remedy

for damages or restitution."); Commurce Holding Co. v. Buckstone.

749 F.Supp. 441 (E.D.N.Y.1990) (injunctive relief available under

§ 6972(a1B) not damages and sourt will not imply right to

private action for damages). Although these case are more directly

on point because they interpret § 69°2(aX 1 XB), the statute at issue

in this case, the majority dismisses them and chooses to follow

Aceto from the Eighth Circuit whict involved § 6973.

The majority also finds Wall: v. Waste Resource Corp., 76

F.2d 311 (6th Cir.1985), and Enviromental Defense Fund. Inc. v.

Lamphier. 714 F.2d 331 (4th Cir.19i3), unpersuasive because they

addressed actions brought under the predecessor to § 6972(aX IMA).

“which authorized actions to ‘enfore a requirement against any

person alleged to be currently ‘in vioation’ of the requirement.” See

Opinion at 523. While the majority is correct that these cases did

interpret another subsequently amenced statute, it fails to recognize

that the main difference betwees the prior statute and §

6972(aX 1B), the statute at issue in this case, is that under §

6972(a 1B). private citizens can sue pas! contributors. This

allows private citizens to require pas contributors to clean-up sites,

even if those past contributors are 90 longer contributing to the

"imminent and substantial endangernent.” It does not, however,

imply that private citizens can sue past contributors for

A-19

reimbursement. Thus. while Walls and Environmental Defense Fund

do not directly support the fact that § 6972(aX1\B) does not

contemplate reimbursement actions, the fact that courts under §

6972(a) (now amended and § 6972(aX1\A)) would not imply

private rights of action for damages indirectly could lend credence

to the theory that those actions should not be permitted under either

§ 6972(aX 1B) or § 6973.

The majority's final arguments in favor of reimbursement

actions under § 6972(aX1B) are based on public policy. It

recognizes that private citizens may not have time to bring actions

for a mandatory clean-up injunction against past polluters before

cleaning up as ordered by the government. This may be true, but

we should not make a legislative determination that because some

private citizens will not have time to bring suit before cleaning up

as ordered, reimbursement actions should be implied under §

6972(aX 1B). In addition, there is nothing in the record in this case

that indicates that KFC could not bring suit against the Meghrigs

before clean-up at the time they discovered the contamination. The

majority speculates--theoretically, one could say just as easily that

had KFC provided the EPA with notice at the time it discovered

thee contamination, the EPA would have brought suit against the

Meghrigs and ordered them to clean-up. Finally, the majority's

policy considerations do not apply at all to § 6973. While normally

policy considerations need not support another statutory provision,

in this case, in which the majority heavily relies on the Eighth

Circuit's decision to allow the administrator to sue for

reimbursement under § 6973, it seems that some of the majority's

policy concerns should apply to § 6973 as well, especially since the

Eighth Circuit simply assumes that reimbursement actions are

permitted under § 6973.

In conclusion, | understand the majority's desire to hold

contaminators accountable. In this case, however. in which KFC

failed to bring suit before clean-up, RCRA does not offer them a

remedy. It is unfortunate in a case such as this that neither

CERCLA nor state statutory schemes provide relief for KFC

because the substance found at the site was petroleum. But, this is

an issue that Congress should address. Maybe restitutionary actions

A-20

under RCRA are necessary and practical, but it is not something

that Congress has thus far enacted into legislation.

| would affirm the district court's dismissal of the amended

complaint.

A-21

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE CENTRAL

DISTRICT OF CALIFORNIA

Case No. 92-3269-HLH(Sx)

November 9, 1992

KFC WESTERN, INC.

ALAN MEGHRIG and MARGARET MEGHRIG

ORDER DISMISSING ACTION

The motion to dismiss the First Amended Complaint (FAC)

is granted without leave to amend. The action is dismissed by

separate order signed and filed this date.

The complaint is a rewrite of the original complaint, with

fancier labels attached. However, the substance is precisely the

same. Plaintiff. a private (non-governmental) party sues for

recovery of the costs expended for an environmental cleanup of

contamination allegedly left on the property by defendant. a former

owner. The cleanup is long since complete and allegedly cost

plaintiff $211,000. Plaintiff places the label "response costs” on the

amount sought and classifies the recovery sought as “equitable

restitution”.

The action is brought solely under the Resource

Conservation and Recovery Act (RCRA). 42 USC 6901-6992(k).

No other federal or state claims (common law or statutory) are

invoked. The court concludes that limiting the claim to one under

RCRA is deliberate.

The difficulty with plaintiff's claim under RCRA is dual.

A-22

The private suit must be brought under §6972(a\ 1B), which is the

authority claimed by plaintiff in its complaint. However, that

section is limited (1) to injunctive relief and (2) to situations which

"present an imminent and substantial endangerment to health or the

environment". Thus, there is no provision for suits for damage after

the cleanup is done and the danger is gone. There may be (there

probably are) other bases for recovery, but it is not in RCRA. These

conclusions are expressed in Walls 6Cir’85 761 F2d 311, 316 (no

damages in a private suit under RCRA) and Commerce Holding Co.

EDNY’90 749 FSupp 441, 445 (ditto; suit to recover remediation

costs is a damage suit). These cases comport with the language of

the statute, which provides for injunctive relief only for an existing

imminent danger.

Plaintiff argues that recovery of the costs of digging up and

disposing of the contaminated earth is "equitable restitution” and

should be classified as an equitable remedy. This might be so if

there was anything else equitable about the case, as to which the

damages sought would be incidental, but there is not. This is a

straight suit for damages incurred by plaintiff for violation of a duty

allegedly imposed by law on defendant; merely placing the

equitable label on the remedy sought does not change its character.

Further, there is nothing now imminent about the danger. Plaintiff

argues that suit can be brought if the danger was imminent before

plaintiff expended the money to clean up the property, and cites

Aceto 8Cir’89 872 F2d 1373 and Price 3Cir.’89 688 F2d 204. Each

of these cases was decided under a different section (§6973),

dealing with suits brought by the United States. Aceto was arguably

an alternative holding but Price was only an off-the-cuff dictum.

In Aceto. it was held irrelevant that the RCRA suit was not brought

by the government before the cleanup in a situation in which

CERCLA also applied. The language of §6973 (authorizing the

government suit) bears certain similarities to the section in this case

(authorizing a private suit), so the argument is not frivolous.

However, the purposes of the two sections are entirely different.

§6972(a\ 1B) allows private plaintiffs to be “attorneys general” to

force remedial measures for an imminent danger, thus the logic is

that that section only applies to a suit for equitable relief. (See

Commerce Holding. supra, at pg. 445; where the relief sought is to

A-23

benefit the plaintiff rather act for the public, the action is not within

the scope of the purpose of §6972). So, here, even if some label

could stick calling the relief sought “equitable” rather than one for

damages, such relief is not within the purposes of the section. It can

be readily argued that the same is not true of a suit by the United

States under §6973. Whether all of this is true or not, the court does

not consider Aceto controlling here, in dealing with a different

section adopted for different purposes. The court cannot “buy” the

heroic construction necessary to turn 2 section allowing injunctions

to prevent imminent danger into a general damages statute.

Plaintiff has chosen to make or break this case on the single

theory espoused. Since he cannot state a claim on that theory. the

motion to dismiss is granted without leave and the action is

dismissed.

This action is dismissed in its entirety with prejudice.

This is the final judgment for purposes of Fed.R.Civ.P.

54(a). It shall be entered pursuant to Fed.R.Civ.P. 58 and 79(a),

and served upon the parties.

IT 1S SO ORDERED.

Date: November 9, 1992

/s/ Harry L. Hupp

HARRY L. Hupp

United States District Judge

A-24

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE CENTRAL

DISTRICT OF CALIFORNIA

Case No. 92-3269-HLH(Sx)

September 21, 1992

KFC WESTERN, INC.

ALAN MEGHRIG and MARGARET MEGHRIG

ORDER

The motion to dismiss is granted with 10 days leave to

amend.

Since § 6972(aX1XB) does not provide for a private

damage suit (Walls 6Cir’85 761 F2d 311, 316: Commerce Holding

Co. EDNY’90 749 FSupp 441, 445), and that is what this is, no

claim is stated. Plaintiff says that it sues for restitution (an

equitable remedy), but that approach is merely applying an

inapplicable label to what is clearly a suit for damages. There is no

money received by defendant from plaintiff that plaintiff wishes to

have restored to it (i.e. "restitution"). Instead, plaintiff has allegedly

suffered damage which it claims was caused by defendant. That.

surely, involves a suit for money damages.

Defendant appears to be correct about one other thing also:

that is, there is no “imminent” danger, a prerequisite of a private

suit. Since the clean-up is done, there is no present danger at all.

This, of course, goes to the same basic concept that the statute

provides only for equitable relief, not for damages.

A-25

Since the section sued under requires 90 days notice, which

is not alleged, there is an additional problem for plaintiff to solve.

Since the complaint is under subsection B, not subsection

A as posited by defendant, there is no retroactivity problem. The

statute is expressly retroactive. It just does not provide for a private

damage suit.

A-26

APPENDIX D

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

April 14, 1995 Docket No. 92-56597

KFC WESTERN, INC..

Plaintiff-Appellant,

Vv.

ALAN MEGHRIG and MARGARET MEGHRIG.

Defendants-Appellees.

ORDER

Before: BROWNING, PREGERSON, and BRUNETTI,

Circuit Judges.

Judges Browning and Pregerson vote to deny appellees’

petition for rehearing. Judge Brunetti would grant the petition.

Judges Browning and Pregerson vote to reject the

suggestion for rehearing en banc. Judge Brunetti would grant the

Suggestion for rehearing en banc.

The full court has been advised of the suggestion for

rehearing en banc and no active judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing is denied and the suggestion for

rehearing en banc is rejected.

A-27

APPENDIX E

UNITED STATES CODE, TITLE 42

§ 6972. Citizens’ suits

(a) In general

Except as provided in subsection (b) or (c) of this

section, any Derson may commence a civil action on his

own behalf-

(1X A) against any person (including (a) the United States.

and (b) any other governmental instrumentality or agency, to the

extent permitted by the eleventh amendment to the Constitution)

who 1s alleged to be in violation of any permit, standard, regulation

condition, requirement, prohibition, or order which has become

effective pursuant to this chapter, or

(B) against any person, including the United States. and

any other governmental instrumentality or agency, to the extent

permitted by the eleventh amendment to the Constitution. and

including any past or present generator, past or present transporter.

Of 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. or

(2) against the Administrator where there is alleged a failure

of the Administrator to perform any act or duty under this chapter

which ts not discretionary with the Administrator.

Any action under paragraph (aX!) of this subsection shall

be brought in the district court for the district in which the alleged

Violation occurred or the alleged endangerment may occur. Any

action brought under paragraph (aX2) of this subsection may be

A-28

brought in the district court for the district in which the alleged

violation occurred or in the District Court of the District of

Columbia. The district court shall have jurisdiction, without regard

to the amount in controversy or the citizenship of the parties, to

enforce the permit, standard, regulation, condition, requirement,

prohibition, or order, referred to in paragraph (1 A), 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), to

order such person to take such other action as may be necessary, or

both, or to order the Administrator to perform the act or duty

referred to in paragraph (2), as the case may be, and to apply any

appropriate civil penalties under section 6928(a) and (g) of this title.

(b) Actions prohibited

(1) No action may be commenced under subsection

(aX! A) of this section-

(A) prior to 60 days after the plaintiff has given notice

of the violation to-

(i) the Administrator,

(ii) the State in which the alleged violation occurs:

and

(iii) to any alleged violator of such permit, standard.

regulation, condition, requirement. prohibition, or order.

except that such action may be brought immediately after

such notification in the case of an action under this section

respecting a violation of subchapter II! of this chapter, or

(B) if the Administrator or State has commenced and is

diligently prosecuting a civil or criminal action in a court of the

United States or a State to require compliance with such permit,

In any action under subsection (aX! A) of this section in a court

of the United States, any person may intervene as a matter of right.

A-29

(2A) No action may be commenced under subsection

(aX 1B) of this section prior to ninety days after the plaintiff has

given notice of the endangerment to-

(i) the Administrator,

(ii) the State in which the alleged endangerment

may occur,

(iii) any person alleged to have contributed or to be

contributing to the past or present handling. storage,

treatment, transportation, or disposal of any solid or

hazardous waste referred to in subsection (aX!\B) of this

section, except that such action may be brovght

immediately after such notification in the case of an action

under this section respecting a violation of subchapter II] of

this chapter.

(B) No action may be commenced under subsection

(aX 1B) of this section if the Administrator, in order to restrain or

abate acts or conditions which may have contributed or are

contributing to the activities which may present the alleged

endangerment-

(i) has commenced and 1s diligently prosecuting an

action under section 6973 of this title or under section 106

of the Comprehensive Environmental Response.

Compensation and Liability Act of 1980 [42 U.S.C._A. §

9606}.

(ii) ts actualy engaging in a removal action under

section 104 of the Comprehensive Environmental Response.

Compensation and Liability Act of 1980 [42 U.S.C.A. §

9604}.

(iii) has incurred costs to initiate a Remedial

Investigation and Feasibility Study under section 104 of the

Comprehensive Environmental Response. Compensation

and Liability Act of 1980 [42 U.S.C_A. § 9604] and is

diligently proceeding with a remedial action under that Act

[42 U.S.C.A. § 9601 et seq.}: or

(iv) has obtained a court order (including a consent

decree) or issued an administrative order under section 106

of the Comprehensive Environmental Response.

A-30

Compensation and Liability Act of 1980 [42 U.S.C.A. §

9606] or section 6973 of this title pursuant to which a

responsible party is diligently conducting a removal action,

Remedial Investigation and Feasibility Study (RIFS), or

proceeding with a remedial action.

In the case of an administrative order referred to in clause (iv),

actions under subsection (aX 1 (B) of this section are prohibited only

as to the scope and duration of the administrative order referred to

in clause (iv).

(aX 1B) of this section if the State, in order to restrain or abate

acts or conditions which may have contributed or are contributing

to the activities which may present the alleged endangerment-

(i) has commenced and is diligently prosecuting an

action under subsection (aX! B) of this section:

(ii) is actually engaging in a removal action under

section 104 of the Comprehensive Environmental Response,

Compensation and Liability Act of 1980 [42 U.S.C.A. §

9604). or

(iii) has incurred costs to initiate a Remedial

Investigation and Feasibility Study under section 104 of the

Comprehensive Environmental Response, Compensation

and Liability Act of 1980 [42 U.S.C.A. § 9604] and is

diligently proceeding with a remedial action under that Act

[42 U.S.C.A. § 9601 et seq.}.

(D) No action may be commenced under subsection

(aX!B) of this section by any person (other than a State or local

government) with respect to the siting of a hazardous waste

treatment, storage. or a disposal facility. nor to restrain or enjoin the

issuance of a permit for such facility.

(E) In any action under subsection (a |B) of this section

in a court of the United States. any person may intervene as a

matter of right when the applicant claims an interest relating to the

subyect of the action and he is so situated that the disposition of the

action may. as a practical matter, impair or impede his ability to

A-31

protect that interest. unless the Administrator or the State shows that

the applicant's interest 1s adequately represented by existing parties.

(F) Whenever any action is brought under subsection

(aX1\(B) of this section in a court of the United States, the plaintiff

shall serve a copy of the complaint on the Attorney General of the

United States and with the Administrator.

No action may be commenced under paragraph (a2) of

this section prior to sixty days after the plaintiff has given notice to

the Administrator that he will commence such action. except that

such action may be brought immediately after such notification in

the case of an action under this section respecting a violation of

subchapter II] of this chapter. Notice under this subsection shall be

given in such manner as the Administrator shall prescribe by

regulation. Any action respecting a violation under this chapter may

be brought under this section only in the judicial district in which

such alleged violation occurs.

(d) Intervention

In any action under this section the Administrator, if not a

party. may intervene as a matter of right.

(e) Costs

The court. in issuing any final order in any action brought

pursuant to this section or section 6976 of this title may award costs

of litigation (including reasonable attorney and expert witness fees)

to the prevailing or substantially prevailing party, whenever the

court determines such an award is appropriate. The court may, if a

temporary restraining order or preliminary injunction is sought.

require the filing of a bond or equivalent security in accordance

with the Federal Rules of Civil Procedure.

A-32

(f) Other rights preserved

Nothing in this section shall restrict any right which any

person (or class of persons) may have under any statute or common

law to seek enforcement of any standard or requirement relating to

the management of solid waste or hazardous waste, or to seek any

other relief (including relief against the Administrator or a State

agency).

(g) Transporters

A transporter shall not be deemed to have contributed or to

be contributing to the handling, storage, treatment or disposal,

referred to in subsection (aX 1B) of this section taking place after

such solid waste or hazardous waste has left the possession or

control of such transporter, if the transportation of such waste was

under a sole contractual arrangement arising from a published tariff

and acceptance for carriage by common carrier by rail and such

transporter has exercised due care in the past or present handling.

storage, treatment. transportation and disposal of such waste.

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.