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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 515 U.S. 1192

## Text

_. Supreme Court, vU.8.
\ gist é.

95-83 sul 13 1995

No.
EEE

ee eee

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

: —

i
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.

tv

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

to

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 ...

IV

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

vi

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

oo

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.

2

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.
*e

6 ores.

3

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

5

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

;
t
'
-
2
:

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.

9
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...)

12

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

13

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

6

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 §

14

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

15

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

16

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

17

"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

20

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

21

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

22
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).

23

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

24
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

25

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.

26

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). ;

27

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

28

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

29
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

4

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.

30

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

A-3

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

6

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

A-16

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).

1

,
;
i
:
‘
4
?
t
:
i

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.
v.
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.
v.

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).

(C) No action may be commenced under subsection
(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.

(c) Notice

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 se

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0633%3A02. Public record. Not legal advice.