Petitioners Brief — Meghrig v. KFC Western, Inc.

pepma Court, US.

RIUED

wov 9 1995

No. 95-83

co

———— os

In the Supreme Court

of the

United States

OCTOBER TERM, 1995

Alan Meghrig and Margaret Meghrig,

Petitioners,

VS.

KFC Western, Inc..,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR THE PETITIONERS

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

Ve

i

QUESTIONS PRESENTED

The citizen suit provision of the Resource Conservation

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

limited jurisdiction: (1) to "restrain" any person who has

contributed or is contributing to the handling of a solid or

hazardous waste which endangers human health or the

environment and (2) to “order such person to take such other

action as may be necessary." The Ninth Circuit Court of

Appeals has held that this provision authorizes a citizen

plaintiff to pursue a claim for reimbursement of past costs

expended in cleaning up property contaminated with solid or

hazardous waste.

The same RCRA citizen suit provision authorizes an

action 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 citizen

suit may be commenced several years after the waste has been

fully cleaned up, notwithstanding the "imminent and

substantial endangerment" language of the statute.

The questions presented for review are:

l. Whether the citizen suit provision of RCRA

authorizes a private party to bring an action for

reimbursement of past cleanup costs.

Whether the citizen suit provision of RCRA

permits an action to be pursued where the solid

or hazardous waste was fully remediated prior

to commencement of the suit. _

TABLE OF CONTENTS

Page(s)

QUESTIONS PRESENTED ... wc ccccccccccscses i

OPRGONS BELOGD .. wc cctrctvivevve cabana l

PIRI TOUS ccc ecatseeeus tubal 2

STATUTORY PROVISION INVOLVED ......... 2

STATEMENT OF THE CASE ......ccccccscccs 3

A. Relevant History Of The Subject

s. . MORTAR Eee ee a eee 4

B Proceedings In The District Court

DOO oo cc évtess site eee 5

C Proceedings In The Ninth Circuit Court

OF AGRON. . ii esses wesnnereel 7

SUMMARY OF ARGUMENT ................. 10

ATESINGENE . wc ceccccivibetckt eee 13

I. The RCRA _ Citizen Suit Provision

Unambiguously Authorizes An Action Only

For Injunctive Relief And Only Where An

Imminent Endangerment Exists............ 13

A. The Express Terms Of The RCRA

Citizen Suit Provision Only Authorize

Actions For Injunctive Relief ........ 13

IV.

***

B. The Express Terms Of The RCRA

Citizen Suit Provision Only Authorize

Actions Where Contamination

Currently Presents An Imminent and

Substantial Endangerment ..........

Other Sections Of The RCRA Citizen Suit

Provision Confirm That Monetary Relief For

Past Endangerments Was Not Intended ..... .

A Comparison Of The RCRA Citizen Suit

Provision With Comparable Provisions In

CERCLA Reaffirms The Absence Of A Cost

Recovery Authorization In RCRA .........

A. The Absence Of An Express Statute Of

Limitations In The RCRA Citizen Suit

ee es

B. The Absence Of Statutory Guidance On

The Appropriateness Of Costs Sought

To Be Recovered Under RCRA ......

S The Ninth Circuit's Interpretation

Would Obviate Other Longstanding

Limitations On Private Party Cost

Cheb ckeGcdccecs

The Legislative History Of Federal

Environmental Citizen Suit Provisions, And

The Legislative History Of RCRA In

Particular, Confirm That RCRA Citizen Suit

I PPI Tee

A. The Legislative History Of

Environmental Citizen Suit Provisions . .

27

iV Vv

B The Legislative History Of The RCRA B. The Governmental Suit Provision

Citizen Suit Provision ............. 30 (Section 6973) is Distinct From The

Citizen Suit Provision (Section 6972) .. 45

c. The islative History Of The

a Amendments To Ss Dd bd ocd ees bab oer co beeces se 47

CERCLA’s Citizen Suit Provisions

Confirms Congress's Intent To Limit

RCRA’s Citizen Suit Authorization To

injunctive Relief Claims ........... 33

V. The Ninth Circuit Improperly Implied A

Private Party Right Of Action For Cost

A. There Can Be No Implied Right Of

Action For Damages In The RCRA

Citizen Suit Provision Because the Cort

v. Ash Criteria Are Not Met ......... 35

B. This Court’s Decision In The Sea

Clammers Case Reaffirms The

Unavailability Of An Implied Right Of

Action For Damages Under RCRA .... 39

VI. ‘The Analysis Of The Ninth Circuit, Which

Relies Heavily On Parallels Between Sections

6972 And 6973 And On Eighth Circuit

Precedents, Does Not Withstand Scrutiny .... . 41

A. The Eight Circuit Did Not Reach The

Issue Of the Governmental Right To

Recover Cleanup Costs Under Section

GUD os 20 dee ee heehee CUMS Ese oe 43

vi

TABLE OF AUTHORITIES

CASES

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

39 Env’t. Rep. Cas 1428 (D. Ariz. 1994) .... 35

California v. Sierra Club, 451 U.S. 287 (1981) ..... 36

City of Chicago v. Environmental Defense Fund,

“US. __, 114 S.Ct. 1888 (1993) ....... 36

Commerce Holding Co., Inc. v. Buckstone,

749 F.Supp. 441 (E.D.N.Y. 1990) .......... 35

Cort v. Ash, 422 U.S. 66 (1975) ............. passim

Furrer v. Brown, 62 F.3d 1092

ey ee .. passim

Gache v. Town of Harrison,

813 F.Supp. 1037 (S.D.N.Y. 1993) ......... 35

Gutierrez v. Mobil Oil Corp.,

798 F.Supp. 1280 (W.D. Tex. 1992) ..... 44, 45

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

Inc.,

Gp Ge SP Gowecdédneckos sae passim

Hallstrom vy. Tillamook County, 493 U.S. 20 (1989) passim

KFC Western, Inc. v. Meghrig,

23 Cal.App.4th 1167, 28 Cal.Rptr.2d 676

GD cw kevk'ecde cusocusan Austin 5, 22

eee 4

Vii

Key Tronic Corp. v. United States,

So ee 22, 26

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

822 F.Supp. 1468 (N.D. Cal. 1993) ........ 34

M.E.S.S. v. Weinberger,

707 F.Supp. 1182 (E.D. Cal. 1988) ......... 35

Middlesex County Sewerage Authority v. National Sea

Clammers Assn., 453 U.S. 1 (1981) 2.0.00... passim

Mola Dev. Corp. v. United States,

22 Env’t. Rep. Cas. 1443 (C.D. Cal. 1985) ... 35

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

847 F.Supp. 380 (E.D. Va. 1994) ......... 34

Touche Ross & Co. v. Redington,

es SES GUE ones 6% o's 0 os bb's co 36, 37

Transamerica Mortgage Advisors, Inc. v. Lewis,

ee EE tN wie che éeeckeee se 36

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

872 F.2d 1373 (8th Cir. 1989) ...... 41, 42, 43

United States v. Jones & Laughlin Steel Corp.,

804 F.2d 348 (6th Cir. 1986) ......... 44, 45

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

810 F.2d 726 (8th Cir. 1986) cert. denied 484

8 Pere ane 4]

Wilshire Westwood Assocs. v. Atlantic Richfield Corp.,

881 F.2d 801 (9th Cir. 1989) ...... beesce 25

Vill

STATUTES

15 U.S.C. § 2619, Foxic Substances Control Act .... 27

16 U.S.C. § 1540(g), Endangered Species Act ...... 27

WBUBG. OURS sc ccdveseces steers vevt snes 2

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

and Reclamation Act ..........5555: passim

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

Comteet Amt occ ive veins ceswoscens passim

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

Research and Sanctuaries Act ......... passim

42 U.S.C. § 300j-8 Safe Drinking Water Act ....... 27

42 U.S.C. § 4911, Noise Control Act ............ 27

BUBB. GR. 6 cdc ee tenes ci ond Cees 40

GE UBER GGG oc ncccteccdecccvevienereass 40

UBL. 6 Gres GRR cn tet es vetectedeas passim

UBC. © GGGS. cee'd C66 6es bc wee ws cee wa 40

42 U.S.C. §§ 7603, 7604 Clean Air Act ....... 27, 44

42 U.S.C. §§ 9601-96, CERCLA ............ passim

43 U.S.C. § 1349, Outer Continental Shelf Lands Act 27

40 C.F.R. §§ 300.400 - 300.440) 2... eee 24

<—-S eep-

ix

MISCELLANEOUS

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

7 James W. Moore, Moore's Federal Practice, 4 65.04{1},

RR RG re 14

116 Cong.Rec. 33104 (1970) ............ .. 28,29

ER ES ree 30

Boyer & Meidinger, Privatizing Regulatory Enforcement,

34 Buff. L. Rev. 833, 847-851 (1985) ........... 27

Fadil, Citizen Suits Against Polluters,

9 Harv. Envt’l L. Rev. 23, 26-28 (1985) .......... 27

D. Dobbs, Remedies §§ 4.2-4.3 (1973) ........... 38

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

reprinted in 1984 U.S.C.C.A.N. 5576, 5612 ..... passim

H.R. Rep. No. 253, pt. 3, 99th Cong., Ist Sess. (1985) 34

H.R. Rep. No. 911, 92nd Cong., 2nd Sess. 133 ..... 29

G. Palmer, The Law of Restitution §§ 1.1-1.8 (1978) . 38

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

URED SR RON eee PER WS CUCU UNS Ole SOC dee ees 35

S. Rep. No. 284, 98th Cong., Ist Sess. 57 (1983) .... 32

S. Rep. No. 414, 92nd Cong., 2nd Sess. 79 ....... 29

x No. 95-83

Water Pollution Control Legislation, Hearings before

the Subcomm. on Air and Water Pollution, Senate Comm.

In the Supr

on Public Works, 92d Cong., Ist Sess. pt. 1, 114 (1971) 29 preme Court

of the

United States

OCTOBER TERM, 1995

Alan Meghrig and Margaret Meghrig,

Petitioners,

VS.

KFC Western, Inc.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR THE PETITIONERS

OPINIONS BELOW

The opinion of the Court of Appeals for the Ninth

Circuit (Pet. App. Al-A20) is reported at 49 F.3d 518. The

order of the Court of Appeals (Pet. App. A26) denying the

Meghrigs’ petition for rehearing is unreported. The order and

opinion of the District Court dismissing the action (Pet. App.

A21-A23) is unreported.

2

JURISDICTION

The judgment of the Ninth Circuit Court of Appeals

was entered on March 1, 1995. A timely petition for

rehearing was denied on April 14, 1995. The petition for writ

of certiorari was filed on July 13, 1995, and was granted on

September 27, 1995. The jurisdiction of this court rests on 28

U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

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

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--

(1)(A) ***

(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;

** *

Ce ll

— ee

3

The district court shall have jurisdiction,

without regard to the amount in controversy or

the citizenship of the parties ... fo 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 mey 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.'

STATEMENT OF THE CASE

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 following Petitioners’ second

motion therefor pursuant to Federal Rule of Civil Procedure

12(b)(6). The case is here following reversal of the District

Court’s decision by the Ninth Circuit Court of Appeals.

Because the issues on appeal were raised at the

pleading stage, the facts set forth below, though disputed in

many instances by Petitioners and incomplete in other

instances, are primarily those alleged by Respondent in its

first amended complaint. Additionally, certain findings of fact

made by the court in the parallel state court action when it

, Section 6972 of Title 42, United States Code, has been reprinted in its

entirety at Pet. App. A27-A32.

4

granted summary judgment in favor of Petitioners on July 11,

1995,? are added sparingly to complete the factual picture for

this Court.

A. Relevant History Of The Subject Property

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. (J.A. 6,

13, 24.) KFC bought the property from Petitioners

(defendants below) Alan Meghrig and Margaret Meghrig ("the

Meghrigs") twenty years ago, in or about September 1975.

(J.A. 6, 13, 24.)

The Meghrigs, who are brother and sister, had owned

the property for 12 years prior to 1975. (J.A. 24.) 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.

(J.A. 24.) Prior owners and/or their lessees had operated

gasoline service stations on the property for 45 years (dating

back to 1917) before the Meghrigs bought it. (J.A. 25.)

Plaintiff has not sued any of those prior owners or lessees.

(J.A. 5-20.)

KFC discovered the contamination in October 1988,

commenced remediation, and completed that remediation in

> The state court's Amended Order With Findings of Fact and Conclusions

of Law ("Findings of Fact") appears in the record as Exhibit A to the Meghrigs’

Memorandum of Points and Authorities in Opposition to Motion to Dismiss

Without Prejudice; Request for Imposition of Attomeys’ Fees as Condition of

Dismissal or, In The Alternative, Request for Stay, which was filed in the United

States District Court on October 5, 1995. The Findings of Pact have been

reprinted in the Joint Appendix. (J.A. 23-30.)

rr we pe ee

5

March 1989. (J.A. 6, 13, 25.) The cleanup was certified

complete by the appropriate governmental agency in May

1989. The Meghrigs were unaware of the contamination until

well after the completion of remediation. (J.A. 26.)

B. Proceedings In The District Court Below

KFC first brought suit in the District Court in late May

1992, over three years after the completion of remediation.

(J.A. 5-11, 25.) KFC’s District Court complaint consisted of

a single cause of action brought under the citizen suit

provision of the Resource Conservation and Recovery Act

("RCRA"), 42 U.S.C. § 6972(a)(1)(B). The complaint sought

only monetary damages for past cleanup expenses which KFC

had allegedly incurred. (J.A. 11.)

KFC did not plead that any "imminent and substantial

endangerment" existed at the time it filed suit. Rather, KFC

only pled that the alleged contamination "may have presented"

(in the past) an imminent and substantial endangerment. (J.A.

10.)

[KFC had earlier 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 expended several years earlier to remediate

soil contamination on the property. Two demurrers to those

nine causes of action were sustained, the second without leave

to amend, based on statutes of limitations and failure to state

a claim. Limited portions of two causes of action were

reinstated on appeal, but defendants recently obtained

summary judgment as to those two causes as well. (J.A. 23-

30.)]

6

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, the

contamination did not present an "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, because that statute only

authorizes injunctive relief. The District Court granted the

Meghrigs’ initial motion but allowed KFC leave to amend.

(Pet. App. A24.)

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."

(J.A. 19.) Petitioners again moved to dismiss on the grounds

that these wording changes did not cure the defects in KFC’s

RCRA cause of action because: (1) the endangerment was

still not "imminent," irrespective of what it "may have been"

at some past time; and (2) KFC’s "equitable restitution"

claim, regardless of its new label, sought no more than did

KFC’s original complaint, i.e. money damages.

The District Court relied on two independent grounds

in granting the Meghrigs’ renewed motion to dismiss, this

time without leave to amend. First, the District 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 bring suit to curtail

current risks posed by contamination. (Pet. App. A22-A23.)

The District Court then concluded that, because the RCRA

citizen suit provision authorizes such suits only where there is

ee A a li ay ay

foe -

7

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, there

was no endangerment to be addressed. KFC’s suit was

therefore not authorized by RCRA. (Pet. App. A22.)

Second, the District Court ruled that the provision of

RCRA that authorizes district courts to "restrain" and to “order

such person to take such other action as may be necessary”

entitles plaintiffs like KFC only to injunctive relief

(prohibitory or mandatory). The District Court concluded

that, 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(a)(1)(B).

(Pet. App. A22-A23.)

Cc. Proceedings In The Ninth Circuit Court Of Appeals

In December 1992, KFC appealed the judgment of the

District Court to the Ninth Circuit Court of Appeals. On

March |, 1995, a divided Court of Appeals, in an opinion by

Circuit Judge Pregerson, reversed the judgment of the District

Court. (Pet. App. Al-A1l2.) Circuit Judge Brunetti issued a

lengthy and pointed dissenting opinion. (Pet. App. Al2-A20.)

The majority opinion first addressed the issue whether

the endangerment must exist at the time of filing suit in order

to meet the “may present an 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."

(Pet. App. A4) (emphasis in original),

Nevertheless, the majority opinion concluded that

RCRA authorizes citizen suits with respect to contamination

that only in the past posed imminent and substantial danger.

(Pet. App. AS.) The majority relied on dicta from two Eighth

Circuit cases brought by EPA, not a private party, under a

separate provision of RCRA, section 6973. United States v.

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

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

810 F.2d 726 (8th Cir. 1986).

The majority also relied on its own general 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. (Pet. App. A6.) The

court determined 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...”

(Pet. App. A6) (quoting 42 U.S.C.

§ 6972(a\( 1)(B) (emphasis supplied by majority

opinion. ))

Finally, the majority concluded that it simply would be

oe na

em

9

poor public policy to interpret the RCRA citizen suit provision

to forbid the recovery of cleanup costs because the

Comprehensive Environmental Response, Compensation and

Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-75, and state

law do not provide adequate substitute sources of relief. In a

footnote, the Court of Appeals explained that CERCLA

specifically excludes suits based on petroleum contamination.

It then cryptically observed as to state law claims that:

"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.”

(Pet. App. All n.6.)

Judge Brunetti’s vigorous dissent urged four separate

bases for affirming the District Court's opinion:

l. Both the plain language of the phrase “order

such person to take such other action as may be necessary”

and the specific legislative history of the RCRA citizen suit

environmental citizen suits to include actions for monetary

reimbursement. (Pet. App. Al3-A14.)

2. The unambiguous term “may present an

imminent and substantial endangerment" means that the

endangerment must exist at the site at the time the | *ivate

citizen files suit. The statute would read “may or may have

presented” if it intended to also cover past endangerments.

(Pet. App. Al4.)

3. The notice requirements of § 6972 of RCRA

10

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 alleged violator, to the EPA Administrator and to the

appropriate state agency, and further provides that, if the EPA

Administrator or the state elects to bring suit, a private citizen

is foreclosed from bringing suit. The dissent urged that these

notice and bar provisions confirmed that the “imminent and

substantial endangerment" must exist at the time the suit is

filed and that the citizen suit provisions do not permit post-

cleanup reimbursement actions. (Pet. App. Al4.)

4. The absence of an express statute of limitations

in RCRA, particularly in light of the fact that an express

limitations period is provided by CERCLA, further confirms

that RCRA does not authorize citizen suits for damages. (Pet.

App. A15-A16.)

SUMMARY OF ARGUMENT

Our discussion of the reasons that the Ninth Circuit's

majority decision should be reversed begins, as it should, with

an analysis of the unambiguous language of the RCRA citizen

suit provision. That provision gives the district courts

jurisdiction to either "restrain" a person who is contributing to

the handling of a solid or hazardous waste which poses an

“imminent and substantial endangerment" to human health, or

"to order such person to take such other action as may be

necessary,” or both. In other words, it authorizes a

prohibitory injunction, a mandatory injunction, or both, where

an endangerment is imminent, and nothing more. It does not

authorize a suit in the district courts to address past

endangerments, nor does it authorize a suit to recover costs

previously expended to clean up contaminated property.

In fact, the RCRA citizen suit provision elsewhere

requires that notice be given to: (a) the alleged contaminator,

(b) to the EPA, and (c) to the state where the property is

located, and affords those persons a 90 day period within

which to take action. If action is undertaken by the EPA or

the state, a citizen suit is absolutely barred by the statute.

Thus, the notice and bar provisions reaffirm the entitlement to

injunctive relief only. If a party could simply clean up the

property itself and then turn around and sue an allegedly

responsible party, these provisions would have neither

meaning nor purpose.

A comparison of the RCRA citizen suit provision with

provisions in other statutes which do authorize citizens to sue

for cost recovery confirms the limitation of RCRA citizen

suits to injunctive relief only. When Congress intends to

provide a citizen plaintiff with a right of action for damages,

it explicitly does so, as it did in the Surface Mining Control

and Reclamation Act ("SMCRA"). Moreover, when Congress

intends to authorize parties to sue for cost recovery with

respect to cleanup of contaminated property, it provides

detailed cost evaluation guidelines like the National

Contingency Plan in CERCLA and provides a statute of

limitations, as it also did in CERCLA. Indeed, to adopt the

Ninth Circuit's reasoning here would summarily override

several important limitations in CERCLA, the primary federal

property contamination statute, including its application only

to hazardous substances, its exclusion for petroleum products,

and its lack of an attorney’s fees provision.

Petitioners’ analysis is not founded solely upon a

“plain meaning of the statute" argument. Their arguments are

fully buttressed by the legislative history of RCRA’s citizen

suit provision, as well as the legislative history of citizen suit

provisions in environmental statutes generally. Indeed, during

the evolution of environmental statutes, Congress has

consistently evinced a well-documented reluctance to permit

12

citizens to sue for damages in environmental statutes for fear

of spawning a flood of new federal court litigation. And

finally, the limited scope of the RCRA citizen suit provision

is absolutely confirmed by the legislative history of the 1986

CERCLA amendments, which amendments were undertaken

after the most recent amendments to RCRA.

Since the RCRA citizen suit provision does not by its

terms provide for a private party right of action for damages,

if one is to be created, it must be done by implication. But

this Court has clearly held in Cort v. Ash and Middlesex

County Sewerage Authority v. National Sea Clammers Assn.

that creating rights of action by implication is highly

disfavored and is permissible only when certain criteria are

met. None of those criteria are present here.

The Ninth Circuit's opinion below implied a cause of

action without addressing the factors set forth in Cort v. Ash

and without addressing this Court’s Sea Clammers decision.

Rather, it based its interpretation of the "order such person to

take such other action as may be necessary" portion of the

RCRA citizen suit provision on its analysis of two Eighth

Circuit Court of Appeals precedents dealing with a separate

provision of RCRA which authorizes suits by the government.

The Eighth Circuit has now soundly rejected the Ninth

Circuit’s interpretation of its precedents in its recent decision

in Furrer v. Brown. (Pet. Rep. Al7-A20.) Moreover, a

comparison of the RCRA citizen suit provision with the

RCRA government suit provision does not, when properly

analyzed, support the Ninth Circuit’s conclusion.

' On October 30, 1995, the Eighth Circuit denied plaintiff's Petition for

Rehearing and Suggestion for Rehearing En Banc in Furrerv Brown. Only two

circuit judges indicated that they would grant the suggestion for rehearing.

— ~~

13

For all of these reasons, we ask this Court to reverse

the Ninth Circuit's decision in its entirety.

ARGUMENT

This case presents two questions: (1) whether the

RCRA citizen suit provision is limited to injunctive, rather

than monetary, relief, and (2) whether the RCRA citizen suit

provision requires that an imminent and _ substantial

endangerment exist at the time of filing suit. The answer to

both questions is in the affirmative, and an affirmative answer

to either one requires reversal in this case. See also Pet. App.

Al2-Al3.

I. The RCRA Citizen Suit Provision Unambiguously

Authorizes An Action Only For Injunctive Relief

And Only Where An Imminent Endangerment

‘Exists

As this Court has repeatedly stated, "the starting point

for interpreting a statute is the language of the statute itself."

Hallstrom v. Tillamook County, 493 U.S. 20, 25 (1989).

A. The Express Terms Of The RCRA Citizen

Suit Provision Only Authorize Actions For

Injunctive Relief

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 anc

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

14

handling...of any solid or hazardous waste

[which may present an imminent and

substantial endangerment to human health or

the environment, or] [2] fo order such person

to take such other action as may be necessary,

or both...

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

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 as may be

necessary" allows courts to issue mandatory injunctions as

well, to order contamination cleanup, for example. The

reference to “such other action" in this phrase denotes

mandatory injunctive relief different from or in addition to the

action required of “such person" pursuant to a restraining

order.“ The “as may be necessary" language allows district

courts to order measures required to stabilize and/or eliminate

the imminent and substantial endangerment.

Mandatory injunctive relief is important in the RCRA

context because citizen-plaintiffs may need to make

defendants both stop causing a solid waste problem and start

doing something, i.e., cleaning it up. The RCRA citizen suit

. Congress's decision to grant district courts separate and explicit

jurisdiction to issue both prohibitory and mandatory injunctions, rather than simply

providing for a more general injunctive power, should be viewed under the

presumption that Congress was aware of the traditional reluctance of federal courts

to issue preliminary mandatory injunctions. See 7 James W. Moore, Moore's

Federal Practice, %65S.04(1}, 65-84 (2d ed. 1994). By specifically granting district

‘ourts jurisdiction to issue mandatory injunctions, Congress may have intended to

dispel the longstanding concerns of federal courts regarding the issuance of

mandatory injunctions before a hearing on the merits.

15

provision is unambiguous in this regard, and it neither

expressly nor implicitly grants a district court jurisdiction to

award a plaintiff costs it has incurred where the plaintiff has

chosen to itself clean up a solid waste problem.

As noted above, this Court has repeatedly instructed

the federal courts that unambiguous statutory language should

be accorded its plain meaning. See Hallstrom v. Tillamook

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

suit provision and stating that plain statutory language is

conclusive absent a "clearly expressed legislative intention to

the contrary.") This Court has further instructed the federal

courts that "to acknowledge ambiguity is not to conclude that

all interpretations are equally plausible." Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc. , 484 U.S.

49, 57 (1987). Thus, even to the extent that the language in

question may be ambiguous, its "most natural reading" (id.) is

as a grant of jurisdiction to provide mandatory injunctive

relief for existing harms and not monetary relief for harms

addressed in the past.’ The Ninth Circuit erroneously relied

on the language allowing district courts to "order such person

to take such other action as may be necessary" as the basis for

a compensatory damages action. The statutory language

cannot be stretched this far.

When Congress intends an action for monetary relief

to be available to citizen plaintiffs it expressly says so.

Indeed, the only environmental statute that has a citizen suit

provision authorizing an action for damages is the Surface

. The Cour: 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 »rovides for monetary relief, However, the Court

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

authorizes a restitutionary remedy..." Pet. App. at A6.

oe—-

Mining Control and Reclamation Act ("SMCRA"). Section

520(f) of SMCRA, 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 issued

pursuant to this chapter may bring an action

for damages."

30 U.S.C § 1270(f) (emphasis added).

The clarity of the damages remedy provided in the SMCRA

citizen suit provision contrasts starkly with the RCRA citizen

suit provision. Congress plainly has no difficulty in evincing

its intent to provide a damages remedy.

B. The Express Terms Of The RCRA Citizen

Suit Provision Only Authorize Actions

Where Contamination Currently Presents

An Imminent and Substantial

Endangerment

The RCRA citizen suit provision only provices for

relief as against any person:

“who has contributed or who is contributing to

the past or present handling . . . of any solid or

hazardous waste that may present an imminent

and substantial endangerment to human health

or the environment."

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

The statute thus clearly requires that the endangerment be

imminent, even if the acts which caused it occurred at some

17

time in the past.

This Court addressed a closely analogous issue in

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

Inc., 484 U.S. 49 (1987). In Gwaltney, respondent argued

that an action should lie for wholly past violations of the

Federal Water Pollution Control Act ("FWPCA") under that

Act’s citizen suit provision. The FWPCA citizen suit

provision contains language that allows suit only against

parties alleged "to be in violation" of the Act. This Court,

noting the statute’s use of the present tense, concluded that the

FWPCA citizen suit provision does not apply to violations

that were wholly past. This Court stated that:

"Congress could have phrased its requirement

in language that looked to the past (‘to have

violated’), but it did not choose this readily

available option."

Gwaltney, 484 U.S. at 57-59.

Here, the same present tense language allows suit only

for conditions "which may present an imminent and substantial

endangerment.” 42 U.S.C. § 6972(a)(1)(B) (emphasis added).

Congress could have phrased the RCRA citizen suit provision

to reach endangerments that had once existed but which had

since been remediated ("which may have presented an

imminent and substantial endangerment"). However, Congress

did not choose this readily available option.

The statutory language does indicate that Congress

intended the RCRA citizen suit provision to reach ongoing

conduct and past conduct that has been discontinued. The

statute makes liable any person "who has contributed or who

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

or hazardous wasie." 42 U.S.C. §6972(a)(1)(B) (emphasis

added). See, Gwaltney, 484 U.S. at 58 n.2. Thus, Congress

clearly demonstrated in the specific context of the RCRA

citizen suit provision that it recognizes a distinction between

its use of the past tense and present tense.

In sum, it is implausible that Congress intended the

RCRA citizen suit provision to reach not only waste which

may currently present an imminent endangerment but also

waste already cleaned up which presented an endangerment in

the past when it chose to phrase the operative provision in the

present tense only.

II. Other Sections Of The RCRA Citizen Suit

Provision Confirm That Monetary Relief For Past

Endangerments Was Not Intended

Other sections of the RCRA citizen suit provision

confirm that it provides a limited right of action to enjoin

ongoing harms and not a broad damages remedy for the

recovery of past cleanup costs.

The RCRA citizen suit provision also contains a notice

section that requires citizens to give 90 days’ notice of an

endangerment to the persons alleged to have contributed, or

to be contributing, to the handling of the solid or hazardous

waste in question, as well as to the Administrator of EPA and

the State. 42 U.S.C. § 6972(b)(2)(A).° If the Administrator

¥ The notice provision reads:

“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

(iii) any person alleged to have contributed or to be

contributing to the past or present handling, storage, treatment,

occur,

19

or the EPA commences action with respect to the site within

that 90 day period, a citizen suit is barred. 42 U.S.C. §

6972(b)(2)(B).

This Court again addressed a nearly identical provision

in Gwaltney and determined that the notice requirement

confirmed that the citizen suit provision of the FWPCA

reached only ongoing and not wholly past violations:

"Any other conclusion would render

incomprehensible [the Act’s] notice provision,

which requires citizens to give 60 days’ notice

of their intent to sue to the alleged violators as

well as to the Administrator and the State. If

the Administrator or the State commences

enforcement action within that 60-day period,

the citizen suit is barred, presumably because

governmental action has_ rendered it

unnecessary. It follows logically that the

purpose of notice to the alleged violator is to

give it an opportunity to bring itself into

complete compliance with the Act and thus

likewise render unnecessary a citizen suit. /f

we assume, as respondents urge, that citizen

suits may target wholly past violations, the

requirement of notice to the alleged violator

becomes gratuitous.

Gwaltney, 484 U.S. at 59-60 (emphasis added.)

The same reasoning applies here. The purpose of the

90 day notice requirement is to give the person alleged to

transportation, or disposal of any solid or hazardous waste referred to in

subsection (aX 1\B) of this section.”

20

have contributed to, or to be contributing to, the waste

problem an opportunity to initiate cleanup or to give the

government an opportunity to address the problem. The EPA

and state governments have a strong interest in addressing

waste problems that present an imminent danger to human

health or the environment. In either event, the citizen suit is

rendered unnecessary.

If the RCRA citizen suit provision is read to provide

a cost recovery mechanism for waste problems previously

cleaned up, the notice provision truly becomes gratuitous.

Providing notice would simply provide a potential defendant

advance warning of a lawsuit. There would be nothing that

such a party could do to address the endangerment and thus

forestall suit because there would be no endangerment -- the

waste would already have been cleaned up. Similarly, with

respect to the Administrator and the State, the notice would

simply provide information that a waste problem had been

cleaned up and that a private party cost recovery lawsuit

would be filed. There would be almost nothing the

government could meaningfully do with this information.

Again, the notice would be gratuitous.

That precise scenario is amply demonstrated by KFC’s

actions with respect to the Petitioners and the EPA in this

case. KFC discovered the contamination in October 1988. It

did not give the required RCRA notice to Petitioners or to the

EPA or to the state at that time. When it finally did give

notice in late 1990, that act was entirely meaningless. Since

there was no imminent and substantial endangerment to

address by that time, Petitioners and EPA were powerless to

take any of the action contemplated by the statute.

Finally, as noted earlier, when, following notice to the

EPA, the government begins addressing the endangerment, a

citizen suit is completely barred. 42 U.S.C. § 6972(b)(2)(B).

21

The significance of this bar has been specifically addressed by

this _— in reviewing the nearly identical FWPCA citizen

sult ;

"The bar on citizen suits when governmental

enforcement action is under way suggests that

the citizen suit is meant to supplement rather

than supplant governmental action."

Gwaltney, 484 U.S. at 60.

In Gwaltney, this Court went on to express its concern

that governmental enforcement and prosecutorial discretion

would be undermined if citizen suits could be brought for

wholly past violations where the condition causing the

violation had been corrected:

"[plermitting citizen suits for wholly past

violations of the [FWPCA] could undermine

the supplementary role envisioned for the

citizen suit." /d.

In the RCRA context, as in the FWPCA, reading a

damages remedy into the citizen suit provision would

completely supplant governmental action. Such a construction

would allow a citizen to: (1) clean up a solid waste site, (2)

provide notice to the government and the allegedly responsible

party after the cleanup is complete, and then (3) commence

suit. It is hard to imagine a situation in which governmental

action is more fully supplanted.

22

il. A Comparison Of The RCRA Citizen Suit

Provision With Comparable Provisions In

CERCLA Res‘firms The Absence Of A Cost

Recovery Authorization In RCRA

Congress has, of course, elsewhere created a

comprehensive waste cleanup and cost recovery statute: the

Comprehensive Environmental Response, (ov. vensation and

Liability Act, ("CERCLA"), 42 U.S.C. §% 9601-9675.’

CERCLA provides that any person may seek cost recovery or

contribution from any other person who is liable or potentially

liable for response costs. 42. U.S.C. §§ 9607(a); 9613(f)(1)."

A comparison of several aspects of the RCRA citizen suit

provision with those in the cost recovery provision in

CERCLA demonstrates conclusively that Congress did not

intend RCRA to provide a private party cost recovery

mechanism.

. In Key Trome Corp v United States, Justices Stevens and Scalia debated

whether the CERCLA private party cost recovery action is expressorimplied.

US. _, 114 S. Ct. 1960, 1966 n.11 and 1968 n.* (1994). Petitioners note that

if the CERCLA private party cost recovery action is implied, then surely the

“RCRA citizen suit cost recovery action” that respondents urge upon this Court is

implied. See, Section IV of this Brief, infra, at 26.

. These causes of action are in addition to CERCLA’s citizen suit

provision, which allows suit to be brought against “any person .. who is alleged

to be m violation of any standard, regulation, condition, requirement, or order

which has become effective pursuant to [(CERCLA]” 42 US.C. § 9659%(ay1).

The district court is provided with jurisdiction in such a case “to enforce the

standard. regulation, condition, requirement, or order concerned —_, to order such

action as may be necessary to correct the violation, and to impose any civil penalty

provided for in the violation.” 42 U.S.C. § 965%c).

23

A. The Absence Of An Express Statute Of

Limitations In The RCRA Citizen Suit

Provision

The RCRA citizen suit provision does not include an

express statute of limitations. On the one hand, the lack of a

statute of limitations in the RCRA citizen suit provision is

unsurprising, since that provision only authorizes mandatory

or prohibitory injunctive relief where an imminent and

substantial endangerment exists. As long as the endangerment

remains imminent, the cause of action remains viable. After

the waste problem is cleaned up and the endangerment ceases,

the cause of action is barred. Thus, there is no need for a

statute of limitations in the RCRA citizen suit provision if

only injunctive relief is authorized.

If on the other hand, the RCRA citizen suit provision

provided a damages remedy, the lack of a statute of

limitations would be completely anomalous. A cause of

action for damages would become viable upon creation or

discovery of the imminent danger and would remain viable

even after the endangerment ended. The limitations period

for such a damages cause of action would be undefined by the

statute. It is unlikely that Congress intended such a result,

particularly where, when Congress did expressly provide for

cleanup cost recovery in CERCLA, Congress believed it

important that an express limitations period’ accompany such

. The CERCLA statute of limitations provides that:

“An initial action for recovery of the costs referred to in

Section 9607 of this title must be commenced --

(A) for a removal action, within 3 years after completion of the removal

(B) for remedial action, within 6 years after mitiation of

physical on-site construction of the remedial action ..” 42

USC. § 9613(gx2).

"No action for contribution for any response costs or

24

a remedy."

Moreover, to simply assert, as the Ninth Circuit

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

laches can substitute for a definite limitations period obscures

the point. The lack of a statute of limitations accompanying

the RCRA citizen suit provision is compelling evidence that

Congress did not intend the RCRA citizen suit provision to

provide a damages remedy.

B. The Absence Of Statutory Guidance On The

Appropriateness Of Costs Sought To Be

Recovered Under RCRA

CERCLA’s cost recovery provisions include a

mechanism for determining which costs expended by a

plaintiff seeking reimbursement are recoverable. Only costs

that are “necessary and consistent with the National

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

damages may be commenced more than 3 years after --

(A) the date of judgment in any action under this chapter for

recovery of such costs or damages, or

(B) the date of an administrative order under section 9622(g)

.. Of 9622(h) of this title ..." 42 U.S.C. § 9613(gX3).

_ If the Ninth Circuit's decision is upheld, private parties could sue years

after contamimation had been discovered, and even years after it had been cleaned

up. One area of environmental litigation that would be overwhelmingly impacted

is Suits seeking recovery of costs expended cleaning up gasoline leaks from

underground storage tanks. Such suits were generally barred from the federal

courts by the petroleum exclusion in CERCLA and are thus subject to state statutes

of lumitations. If the Ninth Circuit's decision were affirmed, such suits could 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 could

proceed to federal court, including those who have already been barred from

proceeding in state court by state statutes of limitations.

25

The National Contingency Plan contains regulations on

“hazardous substance response" that comprise twenty nine

pages in the Code of Federal Regulations. 40 C.F.R. §§

300.400 - 300.440. By contrast, the RCRA citizen suit

provision provides no guidance whatsoever as to the types of

response costs that are recoverable under its citizen suit

provision. This lack of statutory guidance is entirely logical

if the RCRA citizen suit provision is limited, as it appears to

be, to enjoining imminent and substantial endangerments. If,

however, Congress intended RCRA to authorize citizen suits

for cost recovery, the lack of definition as to which costs are

recoverable would be a momentous omission, particularly

given its detailed treatment in CERCLA." In point of fact,

Congress did not intend the RCRA citizen suit provision to

function as a cost recovery mechanism, and the lack of

guidance on the reasonableness of cleanup expenditures is of

no moment.

Cc. The Ninth Circuit’s Interpretation Would

Obviate Other Longstanding Limitations On

Private Party Cost Recovery Actions.

If upheld, the Ninth Circuit’s decision would nullify

additional important limitations on private party cost recovery

actions embodied in CERCLA. First, CERCLA applies only

to hazardous substances. A RCRA remedy would apply to

any solid waste problem -- a much broader universe.

In addition, CERCLA excludes petroleum products

from its list of hazardous substances. 42 U.S.C. § 9601(14);

Wilshire Westwood Assocs. v. Atlantic Richfield Corp., 881

F.2d 801 (9th Cir. 1989). Responsibility for petroleum

ti

Indeed, if the Ninth Circuit's decision were upheld, the lower courts

would have to engage in extensive interstitial lawmaking to define which costs are

recoverable im this highly technical area.

26

contaminated property has long resided with 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 actions to

be brought in federal court even though Congress expressly

provided otherwise under CERCLA.

Finally, the RCRA citizen suit provision authorizes an

award of attorney's fees to the prevailing party. 42 U.S.C. §

6972(e). Attorney's fees are not recoverable in private party

CERCLA cost recovery actions. Key Tronic Corp. v. United

States, ___ ~¥US. __, 114 S. Ct. 1960 (1994). In all

likelihood, Congress decided to allow an attorney’s fees award

in the RCRA citizen suit provision due to the limited nature

of the relief Congress was providing: prohibitory and

mandatory injunctive relief. If the Ninth Circuit’s ruling is

allowed to stand, attorney's fees will be recoverable in a

federal "cost recovery" action brought under RCRA, but not

under CERCLA. Thus, CERCLA, the statute designed to

address the less numerous but potentially more dangerous

hazardous substance sites, will provide a less comprehensive

remedy, from a plaintiff's perspective, than the RCRA citizen

suit provision.

IV. The Legislative History Of Federal Environmental

Citizen Suit Provisions, And The Legislative

History Of RCRA In Particular, Confirm That

RCRA Citizen Suit Remedies Are Limited

As just reviewed, the plain language of RCRA

conclusively establishes that its citizen suit provision only

authorizes private party claims for injunctive relief to address

ongoing dangers and does not provide a cost recovery remedy.

This Court has repeatedly stated that the words of a statute are

controlling absent a clearly expressed legislative intention to

the contrary. E.g, Hallstrom, supra, 493 U.S. at 28;

27

Middlesex County Sewerage Authority v. National Sea

Clammers Assn, 453 U.S. 1, 15 (1981) ("Sea Clammers"). In

this case, not only are there no indicia of such Congressional

intent, but the relevant legislative history confirms that the

citizen suit provision of RCRA is limited to injunctive relief.

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

of the history and purpose of citizen suit provisions in

environmental statutes, demonstrates that Congress considered

including a remedy for monetary relief in RCRA and

deliberately decided not to do so.

A. The Legislative History Of Environmental

Citizen Suit Provisions

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 citizen suit provisions in virtually every

piece of federal environmental legislation.’ Hallstrom, 493

U.S. at 23. Consequently, the citizen suit provisions in the

various federal environmental statutes closely resemble one

another. Fadil, Citizen Suits Against Polluters, 9 Harv. Envt’l

L. Rev. 23, 26-28 (1985); see also, Boyer & Meidinger,

Privatizing Regulatory Enforcement, 34 Buff. L. Rev. 833,

847-851 (1985). All, for example, contain a notice provision.

All contain a bar to suit if the government is pursuing the

matter. Virtually all provide for federal district court

jurisdiction regardless of the amount in controversy or the

7 See, e.g Toxic Substances Control Act, 15 U.S.C. § 2619; Endangered

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

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

1415(g), Federal Water Pollution Control Act, 33 U.S.C. § 1365, Safe Drinking

Water Act, 42 U.S.C. § 300)-8, Noise Control Act, 42 U.S.C. § 4911; Clean Air

Act, 42 USC. § 7604; CERCLA, 42 U.S.C. § 9659; Outer Continental Shelf

Lands Act, 43 US.C. § 1349.

28

citizenship of the parties.

The general purpose of citizen suit provisions in

tederai environmental statutes is to allow citizen-plaintiffs to

act as "private attorneys general." Sea Clammers, 453 U.S. at

14 n.23. But there was concern in Congress, even as the

initial citizen suit provisions were being enacted, that a citizen

suit provision that provided too broad a remedy could strip the

government of prosecutorial discretion, lead to over-

enforcement of the environmental laws and overburden the

court system. See, Hallstrom, 493 U.S. at 29. The 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. I 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 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, I 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

29

(emphasis added).

During the floor debates, the citizen suit provision of

the Clean Air Act was contrasted with the citizen suit

provision of Senate Bill 3201, a pending, separate consumer

protection bill that would have authorized private suits for

damages:

"Senate Bill 3201 provides damages and a

remedy for recovery of fines and restitution,

and other monetary damages. The pending bill

is limited to seek [sic] abatement of violation

of standards established administratively under

the act, and expressly excludes damage

actions."

Id. at 33102 (comments of Sen. Muskie) quoted in Sea

Clammers, 453 U.S. at 17 n. 27 (emphasis added).

Senator Muskie then placed in the Record a staff

memorandum stating that the availability of damages in the

Clean Air Act "would encourage frivolous or harassing suits

against industries and government agencies." /d. at 33103.

In 1972, Congress enacted the second environmental

citizen suit provision as section 505 of the FWPCA. The

F WPCA citizen suit provision was explicitly modeled after the

Clean Air Act citizen suit provision. See S. Rep. No. 414,

92d Cong., 2d Sess. 79 (Citizen participation under the Clean

Water Act is "modeled on the provision enacted in the Clean

Air Act Amendments of 1970"); H.R. Rep. No. 911, 92d

Cong., 2d Sess. 133 ("Section 505 closely follows the

concepts utilized in section 304 of the Clean Air Act"). See

also, Gwaltney, 484 U.S. at 62 ("The Senate and House

Reports explicitly connected the FWPCA citizen suit provision

to the citizen suit provision of the Clean Air Act, which is

30

wholly injunctive in nature").

Members of Congress repeatedly characterized the

FWPCA citizen suit provision as an “abatement” provision or

as an injunctive measure. See, e.g., Water Pollution Control

Legislation, Hearings before the Subcomm. on Air and Water

Pollution, Senate Comm. on Public Works, 92d Cong., Ist

Sess., pt. 1, 114 (1971) ("Any person may sue a polluter to

abate a violation ..."). In the accompanying debates, Senator

Bayh stated that "[t]hese sorts of citizen suits -- in which a

citizen can obtain a injunction but cannot obtain money

damages for himself -- are a very useful additional tool in

enforcing environmental protection laws". 118 Cong. Rec.

33717 (1972). -

B. The Legislative History Of The RCRA

Citizen Suit Provision

The legislative history of the 1984 amendments to

RCRA reflects the same Congressional intent with respect to

citizen suit provisions as RCRA’s ancestor environmental

statutes: to authorize federal courts to issue injunctive relief

to private party plaintiffs but not to award compensatory

damages. For example, the House Committee report states

that the RCRA citizen suit provision:

"Confers on citizens a limited right under

section 7002 [42 U.S.C. § 6972] to sue to

abate an imminent and _ substantial

endangerment ...."

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

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

added).

The report also explains the primary goal of § 6972(a)(1)(B)

ee

31

as "the prompt abatement of imminent and substantial

endangerments." /d. (emphasis added).

Several House members feared that the amended

RCRA citizen suit provision would cause citizens to flood the

federal courts with supplemental state-law claims, including

tort claims for damages. The debate on this issue is

illuminating as to the limitation of the RCRA citizen suit

provision to injunctive (abatement) actions. The minority

report, for instance, objected to the citizen suit provision

because of the failure of the committee to adopt a clarifying

amendment:

"That amendment stated that no district court

before which an imminent and substantial

endangerment action is brought is empowered

to hear related state law claims. That

amendment simply clarified what we had

understood to be the intention of the citizen

suit provision and that is to give citizens a

federal cause of action to abate imminent and

substantial endangerments created by hazardous

waste disposal facilities.

Unfortunately, we believe the citizen suit

provision goes much further than was intended

because, under a legal doctrine called pendent

jurisdiction, citizens will have the opportunity

to try to bring all related state claims they may

have into the federal court system when they

sue to abate imminent hazards .... This could

slow down the proceeding which, as we

understand it, is intended to be an emergency

type action to abate imminent hazards. Instead

of ending the imminent hazard, federal judges

will be trying to decide cumbersome questions

32

of state law nuisance, trespass, and personal

and property damage compensation.

Id., 1984 U.S.C.C.A.N. at 5634-35 (emphasis added).

While Congress decided not to prohibit supplemental

state-law claims,'’ the committee majority cautioned that it

expected courts:

"[tlo exercise their discretion concerning

pendent jurisdiction in a way that will not

frustrate or delay the primary goal of this

provision, namely the prompt abatement of

imminent and substantial endangerments."

Id. at 53.

It is clear from this debate that all of the

Representatives on the committee, both majority and minority

members, understood and intended that the RCRA citizen suit

provision would provide only injunctive relief. The debate

centered on whether a citizen-plaintiff should be permitted to

bring in federal court, inter alia, a supplemental state law

cause of action for “personal and property damage

compensation." The minority would have amended the RCRA

citizen suit provision to prohibit the federal courts from

exercising supplemental jurisdiction over state law damage

claims. The majority decided that such supplemental state law

claims should not be prohibited, but urged the federal courts

to exercise discretion in exercising supplemental jurisdiction

to avoid frustrating the primary goal of the RCRA citizen suit

= The corresponding Senate Committee Report echoed the House

Committee's comments on supplemental jurisdiction. S. Rep. No. 284, 98th Cong.,

Ist Sess. 57 (1983).

33

provision -- "the prompt abatement of imminent and

substantial endangerments." This entire debate about

supplemental jurisdiction over state law damage claims would

be nonsensical if Congress intended the RCRA citizen suit

provision to provide a federal cause of action for damages.

C. The Legislative History Of The Subsequent

Amendments To CERCLA’s Citizen Suit

Provisions Confirms Congress’s Intent To

Limit RCRA’s Citizen Suit Authorization

To Injunctive Relief Claims

The chief difference in the language of the RCRA

citizen suit provision from the provisions in the Clean Air Act

and FWPCA is the inclusion of the authority to "order such

person to take such other 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 person to

take such other action as may be necessary" language is the

CERCLA citizen suit provision. 42 U.S.C. § 9659. The

legislative history of CERCLA with respect to this provision

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 amended. In considering the CERCLA citizen suit

provision, the House Judiciary Committee both referenced and

explained RCRA’s "order such person to take such other

action" language:

"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.

34

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 -- i.e.,

to bring about quick identification and effective

clean-up of dangerous hazardous waste sites."

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

(emphasis added)."*

In sum, the legislative history of federal environmental

citizen suit provisions, read together with RCRA’s express

legislative history, compels the conclusion that only injunctive

relief, and not monetary damages, is available under the

RCRA citizen suit provision.'*

" The language of the CERCLA amendments bill as it left the Judiciary

Committee provided the district court with jurisdiction "to immediately restrain any

person contributing to the endangerment ... [or] to order such person to take

response action as provided for in this Act." The language in the bill as it passed

the House was identical. The Conference Committee deleted the “endangerment”

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

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

" 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 aRCRA

citizen suit cause of action. Furrer v. Brown, 62 F.3d 1092 (8th Cir. 1995),

Portsmouth Redev. & Housing Auth. v. BMI Apt. Assoc., 847 F.Supp. 380 (E.D.

Va. 1994), Kaufman and Broad - South Bay v. Unisys Corp, 822 F.Supp. 1468

35

V. The Ninth Circuit Improperly Implied A Private

Party Right Of Action For Cost Recovery

The RCRA citizen suit provision does not expressly

provide a cost recovery remedy. What the Ninth Circuit's

decision has created, then, is an implied right of action for

damages under the RCRA citizen suit provision." But

implied rights of action are permissible only when certain key

criteria are met.

A. There Can Be No Implied Right Of Action

For Damages In The RCRA Citizen Suit

Provision Because the Cort v. Ash Criteria

Are Not Met

In Cort v. Ash, supra, this Court listed four factors

which guide the process of determining whether implying a

(N.D. Cal. 1993), Gache v. Town of Harrison, 813 F Supp. 1037(S.D.N-Y. 1993).

MESS wv Weinberger, 707 F Supp. 1182 (E.D. Cal. 1988), Commerce Holding

Co, Inc v Buckstone, 749 F Supp. 441 (E.D.N.Y. 1990), Mola Dev. Corp v

United States, 22 Env't. Rep. Cas. 1443 (C_D. Cal. 1985), but see Bayless Invest

& Trad Co. v. Chevron USA. Inc., ¥9 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 § 16.0331) (1995), see also 4 W. Rodgers,

Environmental Law § 7 6(b) (1992).

- The Court of Appeals did not undertake an “implied right of action”

analysis. The Court of Appeals instead interpreted the language of RCRA which

provides for mandatory injunctive relief (“to order such person to take such other

action as may be necessary”) expansively as allowing a district court to order a

defendant to pay over to a plaintiff in restitution that amount of money that the

plaintiff had expended on its cleanup.

36

right of action is consistent with Congressional intent.'’ The

first consideration under Cort is whether the plaintiffs are

members of a class for "whose especial benefit the statute was

enacted." California v. Sierra Club, 451 U.S. 287, 293 (1981)

(quoting Cort, 422 U.S. at 78, 80-82). RCRA is a statute

designed to benefit the public at large by ensuring

environmental safety, rather than focusing on any particular

class or group. City of Chicago v. Environmental Defense

Fund, __ US. __, 114 S.Ct. 1588, 1590 (1993); accord

California v. Sierra Club, 451 U.S. 287, 295. Respondent

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 cleanup cost

recovery. As discussed extensively above, nothing in the

RCRA legislative history in any way suggests that Congress

intended to grant jurisdiction to district courts to adjudicate

” This Court phrased the factors as inquires.

"First, is the plaintiff one of the class for whose especial

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

a federal right in favor of the plaintiff? Second, is there any

indication of such a remedy or to deny one? Third, is it

consistent with the underlying purposes of the legislative

scheme to imply such a remedy for the plaintiff? And finally,

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

in an area basically the concern of the States, so that it would

be inappropriate to infer 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 is one of

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

23-24 (1979), Towche Ross & Co. v. Redington, 442 U.S. 560, 575-576 (1979).

37

claims for recovery of cleanup costs under RCRA’s citizen

suit provision. See supra at 30 - 32. In fact, the legislative

history supports the contrary intent.

The third consideration under Cort is whether implying

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

plaintiff is “necessary to make effective the congressional

purpose" of RCRA. See Cort, 422 U.S. at 84. RCRA itself

states that the objectives of the Act “are to promote the

protection of health and the environment and to conserve

valuable material and energy resources," and then sets forth

eleven routes to that goal, none of which relates directly to the

citizen suit provision. 42 U.S.C. § 6902(a). The “national

policy" statement accompanying RCRA addresses only the

reduction or elimination of "the generation of hazardous waste

... a8 expeditiously as possible," and the appropriate treatment,

storage, or disposal of "[wJaste that is nevertheless generated,"

but does not speak specifically to contaminated property, to its

remediation or to recovery of costs of remediation. /d §

6902(b). The overriding purpose of RCRA is clear: to

prevent generation of hazardous waste in the first instance,

and, further, to dispose of and treat properly that which is

produced. In other words, RCRA’s goal is to prevent the

creation of hazardous waste sites, rather than to promote the

cleanup of existing sites.

As to the RCRA citizen suit provision in particular, as

reviewed above, the statute has a notice provision and a

provision that bars suit when the government is addressing the

problem. The obvious goal of these provisions is to forestall

citizen suits so that they become available only as a last

resort. It is apparent that, while Congress intended to allow

citizen suits in order to foster compliance with RCRA’s

regulations, it wrote the RCRA citizen suit provision to

supplement, and not supplant, governmental enforcement

efforts. See supra at 18 - 21; Furrer v. Brown, Pet. Rep. at

38

A-12.

Indeed, as this Court has observed, the legislative

history of the 1984 amendments to the RCRA citizen suit

provision further indicates that Congress intended the section

to enhance the enforcement of RCRA regulations, that is, the

regulation of hazardous waste, and did not intend to give

citizens a cause of action for recovery of costs incurred for

the cleanup of hazardous waste sites when regulation has

failed:

"[ T]he legislative history indicates an intent to

strike a balance between encouraging citizen

enforcement of environmental regulations and

avoiding burdening the federal courts with

excessive numbers of citizen suits."

Halistrom, supra, 493 U.S. at 29.

The fourth consideration under Cort is whether the

implied 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 state common law courts and by courts of equity for

several centuries. See G. Palmer, The Law of Restitution §§

1.1-1.8 (1978); D. Dobbs Remedies §§ 4.2-4.3 (1973).

Common law courts of general jurisdiction, such as those of

the states, have developed and have power to further develop

causes of action for recovery of cleanup costs. The California

courts to which KFC first turned for relief are an able

example. KFC pled fully nine different causes of action in

39

state court before filing this federal action.'* This task is in

fact uniquely suited to the state courts. Moreover, the duties

of a property owner to a successor in title are matters

historically determined by state law, and it would thus be

inappropriate to imply a cause of action based solely on

federal law.

B. This Court’s Decision In The Sea Clammers

Case Reaffirms The Unavailability Of An

Implied Right Of Action For Damages

Under RCRA

The issue of implied rights of action in a similar

context was addressed by this Court in Middlesex County

Sewerage Auth. v. National Sea Clammers Assn., 453 U.S. |

(1981). In Sea Clammers, the respondent Association urged

this Court to imply a private cause of action for damages in

the FWPCA and the Marine Protection, Research, and

Sanctuaries Act of 1972 ("MPRSA").

This Court first noted that both the FWPCA and

MPRSA "contain unusually elaborate enforcement provisions"

providing causes of action both to the government and to

private citizens. The Court further reasoned that Congress

intended such painstakingly defined remedies to be exclusive:

"In view of these elaborate enforcement

provisions it cannot be assumed that Congress

intended to authorize by implication additional

judicial remedies for private citizens suing

under MPRSA and FWPCA. As we [have]

stated, ‘it is an elemental canon of statutory

” Only one cause of action was determined to have failed to state a claim

for relief. Six of the remaining cight may have stated a claim for relief but were

barred by the applicable statutes of limitations.

40

construction that where a statute expressly

provides a particular remedy or remedies, a

court must be chary of reading others into it.’

In the absence of strong indicia of a contrary

congressional intent, we are compelled to

conclude that Congress provided precisely the

remedies it considered appropriate."

453 U.S. at 14-15 (citations omitted).

This Court further determined that the legislative

history of both the FWPCA and the Clean Air Act mandated

this conclusion and concluded that:

"Both the structure of the Acts and their

legislative history lead us to conclude that

Congress intended that private remedies in

addition to those expressly provided should not

be implied. Where, as here, Congress has

made clear that implied private actions are not

contemplated, the courts are not authorized to

ignore this legishative judgment."

453 US. at 18.

The remedies afforded by RCRA are equally as

elaborate as those in the MPRSA and the FWPCA. RCRA

authorizes the EPA to respond to violations of the statute with

compliance orders, civil suits, and such orders as may be

necessary to protect public health and the environment. See

42 U.S.C. § 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 and 42 U.S.C. § 6928(a). Criminal penalties are

available under 42 U.S.C. § 6928(d). In addition, any citizen

41

may file suit against the EPA where there is an alleged failure

of the EPA to perform any non-discretionary act or duty

under 42 U.S.C. § 6972(a)(2).

There is, then, no justification for implying a damages

right of action under RCRA when measured by the standards

set forth in this Court’s decisions in Cort v. Ash and Sea

Clammers.

VI. The Analysis Of The Ninth Circuit, Which Relies

Heavily On Parallels Between Sections 6972 And

6973 And On Eighth Circuit Precedents, Does Not

Withstand Scrutiny

In the case below, the Ninth Circuit noted that section

6973 of RCRA is worded similarly to the RCRA citizen suit

provision. Section 6973 is the governmental imminent

endangerment provision of RCRA and allows EPA to bring

suit against any person who has caused or contributed to a

solid or hazardous waste problem that may present an

imminent and substantial endangerment to health or the

environment.

The Ninth Circuit interpreted two Eighth Circuit

precedents to stand for the proposition that EPA could recover

costs expended in cleaning up a solid waste site pursuant to

section 6973. United States v. Aceto Agric. Chem. Co., 872

F.2d 1373 (8th Cir. 1989); United States v. Northeastern

Pharmaceutical & Chem. Co., ("NEPACCO") 810 F.2d 726

(8th Cir. 1986) cert. denied 484 U.S. 848 (1987). Relying on

the similarity in language between sections 6972 and 6973 and

its reading of these two Eight Circuit opinions, the Ninth

Circuit concluded that the RCRA citizen suit provision should

be read to include a cost recovery remedy.

But the Ninth Circuit’s reliance on those precedents

42

was seriously misplaced. The Eighth Circuit did not actually

decide the issue of the recoverability of governmental

response costs in Aceto and NEPACCO. The Eighth Circuit

itself expressly reaffirmed that fact after it read the Ninth

Circuit's KFC Western decision:

“We think, however, that the [Ninth Circuit]

began with a questionable proposition and then

mistakenly reached its result in reliance on

cases from this Circuit that, when carefully

analyzed, do not support the KFC Western

decision."

Furrer v. Brown, Pet. Rep. at

A-17.

The "questionable proposition" referred to by the

Eighth Circuit was the Ninth Circuit's misinterpretation of a

key portion of the legislative history of RCRA in support of

its contention that Congress intended to give private citizens

the nght to recover money damages. /d. at A-18 to A-19.

The Eighth Circuit further opined that:

"From an arguably faulty premise, then, the

[Ninth Circuit] goes on to misconstrue two

Eighth Circuit opinions involving governmental

plaintiffs and to conclude that § 6972

authorizes the recovery of cleanup costs by

private plaintiffs. /n the two cases from this

circuit upon which the KFC Western court

relies, the issue of whether cleanup costs may

be recovered in a governmental action under

§ 6973(a) was never before this Court.

Id. at A-19. (emphasis added).

43

The Eighth Circuit went on to explain, as we review

next, how it never considered the issue of governmental

entitlement to recovery of cleanup costs under § 6973(a) in

NEPACCO and Aceto. But in any event, as we discuss in the

final section of this Brief, an analysis of section 6973 is not

directly transferable to section 6972.

A. The Eight Circuit Did Not Reach The Issue

Of the Governmental Right To Recover

Cleanup Costs Under Section 6973

The Eighth Circuit corrected the Ninth Circuit’s mis-

reading of NEPACCO and Aceto in Furrer v. Brown. Pet.

Rep. at A19-A20:

[In NEPACCO], the United States in a cross-

appeal challenged the district court’s refusal to

award "response costs" under § 6973(a), a

decision made because the court believed the

statute required a showing of negligence and

the government had made none. The Eighth

Circuit reversed that holding on the negligence

issue, but never made a finding that the

recovery of response costs was available to the

government under § 6973 in the first instance,

apparently because the jurisdiction of the

district court to award the recovery of such

costs under RCRA was unchallenged. The

issue may have been overlooked because many

of the costs sought by the government were

explicitly recoverable as response costs under

CERCLA.

In Aceto, the RCRA claim for "response costs"

had been dismissed by the district court on the

basis of its conclusions concerning the

44

"imminent and substantial endangerment" and

the “contributed to" language found in §

6973(a). The Eighth Circuit reversed and

remanded for further proceedings, but again

never addressed whether the remedy sought

was authorized by § 6973.

Furrer, Pet. Rep. at Al9 (emphasis

added).

Thus, the very Court of Appeals that issued the opinions in

Aceto and NEPACCO, has unequivocally concluded that it has

not decided the issue of the recoverability of response costs

under section 6973.

Indeed, it bears noting that the text of Section 6973 is

identical or similar to enforcement provisions in other federal

environmental statutes. The analogous provisions of the Clean

Air Act, CERCLA and the Clean Water Act do not authorize

recovery of monetary damages. Injunctive relief and civil

penalties are the only available remedies. See Gwaltney of

Smithfield v. Chesapeake Bay Foundation, 484 U.S. 49, 61-2

(1987) (Clean Air Act and Clean Water Act citizen suit

provisions); United States v. Jones & Laughlin Steel Corp.,

804 F.2d 348, 351 (6th Cir. 1986) (Clean Air Act); Gutierrez

v. Mobil Oil Corp., 798 F.Supp. 1280, 1285 (W.D. Tex.

1992).

For example, the Clean Air Act contains language

virtually identical to Section 6973 of RCRA:

"to immediately restrain any person causing or

contributing to the alleged pollution to stop the

emission of air pollutants causing or

contributing to such pollution or fo take such

~ other action as may be necessary.” (emphasis

45

added).

42 U.S.C. § 7603.

This Court and others have consistently held that monetary

damages are unavailable pursuant to any section of the Clean

Air Act. See Gwaltney, 484 U.S. at 61-62; Jones & Laughlin

Steel, 804 F.2d at 351; Gutierrez v. Mobil Oil Corp., 798

F.Supp. 1280, 1285 (W.D. Tex. 1992).

B. The Governmental Suit Provision (Section

6973) is Distinct From The Citizen Suit

Provision (Section 6972)

The Ninth Circuit’s analysis is based on the premise

that: "[njothing indicates that Congress intended citizen suits

{under section 6972] to serve a purpose different from that

served by governmental actions [under section 6973]."_ Pet.

App. A7 n.3. This premise is belied by the statute itself. The

RCRA citizen suit provision contains a bar to action if the

government is proceeding with enforcement activities. The

RCRA citizen suit also contains a notice provision that allows

the government to intervene, thus eliminating the need for a

citizen suit. See, Hallstrom, 493 U.S. at 29; Gwaltney, 484

U.S. at 60.

The very committee report that the Ninth Circuit

references makes the point very clearly:

"The committee believes [the] expansion of the

citizen suit provision will complement... the

Administrator [of EPA’s] efforts to eliminate

threats as to public health and the environment,

particularly where the Government is unable to

take action because of inadequate resources."

46

H.R. Rep. No. 198, 98th Cong., 2d Sess., pt. 1, 53 (1963)

reprinted in 1984 U.S.C.C.A.N. 5576, 5612 quoted at Pet.

App. A7 n.3. Moreover, as this Court has repeatedly noted,

citizen suits are intended to supplement and not supplant

governmental action. Gwaltney, 484 U.S. at 60.

Thus, the Ninth Circuit’s premise is erroneous. In

fact, the statutory language and legislative history

overwhelmingly indicate that Congress intended citizen suits

to serve a very different purpose from that served by

governmental actions. Thus, although the language of the

citizen suit provision in section 6972 is virtually identical to

the language of the imminent hazard provision in section

6973, it does not necessarily follow that the construction of

the two sections must be identical.

For example, the differing purposes of the two sections

in the context and structure of RCRA could lead to different -

conclusions regarding the remedies provided by each section.

In addition, the intent of Congress as expressed in the

legislative history could differ as to the two sections. Finally,

the Cort analysis as applied to the two sections could lead to

different conclusions as to the remedies provided. The Ninth

Circuit’s apparent conclusion that, because the sections are

worded virtually identically they must be construed identically

glosses over several important steps in the statutory analysis.

In sum, the analysis of the Ninth Circuit, which relies

heavily on a misreading of two Eighth Circuit precedents and

on parallels between the RCRA citizen suit provision and

section 6973, does not withstand scrutiny.

47

CONCLUSION

The judgment of the Court of Appeals for the Ninth

Circuit should be reversed. The opinion of the Ninth Circuit

should be vacated and the case dismissed.

Dated: November 9, 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

la

JOHN P. ZAIMES (Bar No. 091933)

McCLINTOCK, WESTON, BENSHOOF,

ROCHEFORT, RUBALCAVA & MacCUISH

444 South Flower Street, Forty-Third Floor

Los Angeles, California 90071-2901

Telephone: (213) 623-2322

Attorneys for Defendants

ALAN MEGHRIG and MARGARET MEGHRIG

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

CASE NO. BC 043874

AMENDED ORDER WITH

FINDINGS OF FACT

- AND CONCLUSIONS OF

)

Plaintiff,

)

ALAN MEGHRIG and LAW

)

)

)

)

MARGARET MEGHRIG)

and DOES 1-10,

Defendants.

(Filed Aug. 21, 1995)

PLEASE TAKE NOTICE that the Motion for Sum-

mary Judgment of Defendants Alan Meghrig and Marga-

ret Meghrig (the “Meghrigs”) in the above-captioned

matter came on regularly for hearing at 8:30 a.m. on July

11, 1995 before the Honorable Stephen E. O'Neil in

Department 46 of the above-entitled Court. John P.

Zaimes of McClintock, Weston, Benshoof, Rochefort,

Rubalcava & MacCuish appeared on behalf of defendants

and moving parties, the Meghrigs; Daniel Romano

2a

appeared on behalf of plaintiff and responding party KFC

Western, Inc. -

After considering the papers filed in support of, and

in opposition to, the Meghrigs’ Motion for Summary

Judgment, and the oral argument of counsel, the Court

makes the following findings of facts and conclusions of

law and grants summary judgment in favor of defen-

dants.

FINDINGS OF FACT

1. Plaintiff is the owner of real property located at

340 North Western Avenue in Los Angeles, California (the

“Subject Property”). (Defendants’ Undisputed Fact No.

1.) ;

2. The Meghrigs took title to the Subject Property in

March 1963. (Defendants’ Undisputed Fact No. 2.)

3. The Meghrigs never owned a gasoline service

station business on the Subject Property. (Defendants’

Undisputed Fact No. 3; Defendants’ Objections to Plain-

tiff’s Response to Fact No. 3.)

4. The Meghrigs never operated a gasoline service

station located on the Subject Property. (Defendants’

Undisputed Fact No. 4.)

5. A service station did not operate on the Subject

Property during the period of the Meghrigs’ ownership.

(Defendants’ Undisputed Fact No. 5.)

6. The Meghrigs took no part in the management of

the Subject Property during the 1960s. (Defendants’

Undisputed Fact No. 6.)

3a

7. The Meghrigs never undertook any acts which

caused gasoline contamination on the Subject Property.

(Defendants’ Undisputed Fact No. 7.)

8. There was a gasoline service station on the Sub-

ject Property from 1917 until 1962, prior to the property's

ownership of the Meghrigs. (Defendants’ Undisputed

Fact No. 8.)

9. Underground storage tanks on the Subject Prop-

erty were replaced in 1951. (Defendants’ Undisputed Fact

No. 9.)

10. Underground storage tanks on the Subject Prop-

erty were completely removed in December 1964. No

tanks were placed on the Subject Property thereafter.

(Defendants’ Undisputed Fact No. 12.)

11. A strip mall was constructed on the Subject

Property in 1965. Plaintiff leased a portion of the strip

mall from the Meghrigs from May 1965 to the time the

Subject Property was sold to plaintiff in 1975. (Defen-

dants’ Undisputed Fact No. 10.)

12. Plaintiff discovered the contamination on the

Subject Property on or about October 26, 1988. (Defen-

dants’ Undisputed Fact No. 11.)

13. Plaintiff completed its cleanup of the Subject

Property on or before March 12, 1989. (Defendants’

Undisputed Fact No. 13.)

14. Plaintiff filed its initial complaint in this matter

on December 9, 1991. (Defendants’ Undisputed Fact No.

14.)

4a

15. There is no evidence that plaintiff suffered any

actual damage arising out of the contamination of

groundwater after December 1, 1988. In fact, plaintiffs’

own evidence shows that the groundwater beneath the

Subject Property contained less than action level amounts

of contaminants in 1988, and no groundwater cleanup

was necessary. (Defendants’ Undisputed Fact No. 15;

Defendants’ Objections to Plaintiffs’ Response to Fact No.

15.)

16. There is no evidence that plaintiff suffered any

actual damage arising out of soil contamination after

December 1, 1988. In fact, plaintiffs’ own evidence shows

that the soil contamination at the Subject Property had

naturally biodegraded over time and was decreasing dur-

ing the 1980s. (Defendants’ Undisputed Fact No. 16;

Defendants’ Objections to Plaintiffs’ Response to Fact No.

16.)

17. There is no evidence that the Meghrigs had

either actual or constructive knowledge of contamination

on the Subject Property. (Defendants’ Objections to Plain-

tiffs’ Fact No. 17.)

CONCLUSIONS OF LAW

1. Having presented no evidence that the Meghrigs

engaged in any acts, or tortiously omitted to undertake

any act, which resulted in contamination of the Subject

Property, plaintiff KFC Western, Inc.’s causes of action for

continuing public nuisance, private nuisance and trespass

fail as a matter of law. Newhall Land & Farming v. Superior

Court, 19 Cal.App.4th 334, 345, 23 Cal.Rptr. 2d 377, 383

(1993); RTC v. Rossmoor Corp., 34 Cal.App.4th 93 (1995);

5a

Lussier v. San Lorenzo Valley Water District, 206 Cal.App.3d

92, 100, 253 Cal.Rptr. 470 (1988).

2. Having presented no evidence that it suffered

any damage within the applicable three-year limitations

period, plaintiff KFC Western, Inc.’s causes of action for

continuing public nuisance, private nuisance and trespass

fail as a matter of law. Capogeannis v. Superior Court, 12

Cal.App.4th 668, 676, 15 Cal.Rptr.2d 796 (1993).

3. The money expended by plaintiff to clean up the

Subject Property does not constitute damage to the prop-

erty arising out of nuisance or trespass. CAMSI IV v.

Hunter Technology Corporation, 230 Cal.App.3d 1525, 282

Cal.Rptr. 80 (1991).

4. Civil Code Section 3483 does not provide a mech-

anism for a current owner of property to recover costs it

expends in abating a nuisance on its property from the

immediately preceding owner where the immediately

preceding owner did not engage in any acts or omissions

which resulted in the creation of the nuisance. Leslie Salt

Co. v. San Francisco Bay Cons. & Dev. Comm., 153

Cal.App.3d 605, 200 Cal.Rptr. 575 (1989); People v. South-

ern Pacific Co., 150 Cal.App.2d Supp. 831, 311 P.2d 200

(1957).

5. To the extent that Civil Code Section 3483 may

provide a mechanism for a current owner of property to

recover its costs expended in abating a nuisance on its

property from a prior owner, recovery may be had only if

the prior owner knew of the existence of the nuisance.

Since KFC has presented no competent evidence that the

Meghrigs knew of the existence of contamination on the

6a

Subject Property during their ownership, KFC’s continu-

ing public nuisance and private nuisance causes of action

fail, as a matter of law. Reinhard v. Lawrence Warehouse Co.,

42 Cal.App.2d 741, 107 P.2d 501, (1940).

ORDER

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that summary judgment is granted in favor of

the Meghrigs and against plaintiff on the grounds that

there is no triable issue of material fact with respect to the

nuisance and trespass causes of action contained in plain-

tiff’s complaint and that the Meghrigs are entitled to

judgment as a matter of law.

DATED: AUG 21 1995

STEPHEN E. O’NEIL

JUDGE OF THE

SUPERIOR COURT

7a

(PROOF OF SERVICE - 1013a, 2015.5 C.C.P.)

STATE OF CALIFORNIA ]

] ss.

COUNTY OF LOS ANGELES |]

I am employed in the County of Los Angeles, State of

California. I am over the age of 18 and not a party to the

within action; my busimess address is 444 South Flower

Street, Forty-Third Floor, Los Angeles, California 90071.

On August 3, 1995, I served the foregoing docu-

ment(s) described as AMENDED ORDER WITH FIND-

INGS OF FACT AND CONCLUSIONS OF LAW on the

interested parties in this action by placing a true copy

thereof enclosed in a sealed envelope addressed as fol-

lows:

Daniel Romano, Esq.

100 Wilshire Boulevard

Suite 1300

Santa Monica, California 90401

X I placed such envelope with postage thereon fully

prepaid in the United States mail at Los Angeles, Califor-

nia.

X I am “readily familiar” with the firm’s practice of

collection and processing correspondence for mailing.

Under that practice, it would be deposited with U.S.

postal service on that same day with postage thereon

fully prepaid at Los Angeles, California in the ordinary

course of business. I am aware that on motion of the

8a

party served, service is presumed invalid if postal can-

cellation date or postage meter date is more than one day

after date of deposit for mailing in affidavit.

I sent such document(s) by Federal Express/UPS Air.

_ I delivered such envelope by hand to the offices of the

addressees.

X I declare under penalty of perjury under the laws of

the State of California that the above is true and correct.

_ I declare that I am employed in the office of a member

of the bar of this court at whose direction the service was

made.

Executed on August 3, 1995, at Los Angeles, Califor-

nia.

/s/ Alicia D. Araneta

Alicia D. Araneta