# Amicus Curiae Brief — Meghrig v. KFC Western, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1995
- **Citation:** 515 U.S. 1192

## Text

Iu the Supreme Court of the United States
OCTOBER TERM, 1995

ALAN MEGHRIG AND MARGARET MEGHRIG,
PETITIONERS

Vv.
KFC WESTERN, INC.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS

BEST AVAILABLE COPY —

ee

QUESTION PRESENTED

Whether Section 7002(a)(1)(B) of the Resource
Conservation and Recovery Act (RCRA), 42 U.S.C.
6972(a)(1)(B), authorizes a private landowner to
sue prior owners in federal court to recover its past
cost of removing hazardous wastes that they had left
at the site, but that no longer pose any danger to
health or the environment.

(1)

TABLE OF CONTENTS

Page

Interest of the United States ...0..............ccccccccceeceeceeeeeeee 1

RT RE IRENE Sa oe NT 2

A. The Resource Conservation and Recovery Act... 3

EL 6

a eeeaerieemintahiais 9
Argument:

Section 7002(a) (1) (B) of RCRA does not provide
a mechanism for a private landowner to sue prior
owners in federal court to recover past costs of
removing hazardous wastes that no longer pose any
i eemnnen 11
A. Section 7002(a) (1) (B) quthevian a person to
commence a civil action in response to a current
threat of substantial danger to health or the
REE SR Rr lh Ro aa 11
B. A citizen plaintiff that properly states a cause of
action under Section 7002(a) (1) (B) may invoke
the Court’s traditional equitable powers to obtain

appropriate relief ........... sontageennaiiinnaiensensiambnasmesets 22
EEN TE TSA BB Te aN 29
TABLE OF AUTHORITIES

Cases:
—_ Inc. V. Sohio Indus. Prods. Co., 469 N.Y.S.2d
282 (N.Y. Sup. Ct. 1983) EE see ne 19
Brandon Township v. Jerome Builders, Ine., 263
N.W.2d 326 (Mich. Ct. App. 1977) . 22, 26

Burk v. High Point Homes, Inc., 197 N.Y.S.24 969
(Sup. Ct.), appeal dismissed, 205 N.Y.S.2d 862

(N.Y. App. Div. 1960) .. 19
City of Chicago V. Environmental Defense Fund,

I 3
City of Paterson Vv. Fargo Realty Inc., 415 A.2d

SR 8 8 oe 22

(III)

IV
Cc pact Beazer Materials & Services |
ity of v. } ices, Inc., ; ,
833 F. Supp. 646 (N.D. Rea 16 School Committee of Town of Burlington v. De-
Ceentte Peo Mecm ne oe partment of Education, 471 U.S. 359 (1985)... 24
Aqueduct & Sewer Authority, 888 F.2d 180 (ist -—-¥ Ot Co. v. Well, 108 P.2d S07 (Okla. "
Cir. 1989), cert. denied, 494 U.S. 1029 (1990)... 16 eR. RS RS SEK gggE Ne me
v. City of in 935 F.2d 1343 (2d State v. Schenectady Chems., Inc., 479 N.Y.S.2d
Dague } Burts gton, 1010 (N.Y. App. Div. 1984) 26
Cir. 1991), rev'd in part, 505 U.S. 557 (1992)... 16, 17
. V. Ridge Lumber, Inc., 619 N.Y.S.24 433 Stratford Theater, Ine. v. Town of Stratford, 101
ON A 19 Pl weg (Conn. 1958) .. mri ; 19
Earl v. Clark, 219 N.W.2d 487 (Iowa 1974) 19 esta V. Katt, 380 U.S. 386 (1947) 20
pate tal Defense Fund V. EPA: ecg Thompson, 484 U.S. 174 (1988) ed. 20
465 F.2d 528 (D.C. Cir. 1972) ............................. 16 Co. A, Supp. 126 4 fom . 27
852 F.2d 1316 (D.C. Cir. 1988), cert. denied, United States
489 U.S. 1011 (1989) at mrp yl my Eyal Corp., 812 .
Furrer Vv. Brown, 62 F.3d 1092 (8th Cir. 1995)... 9 United States v. Conservation Chem. Co., 619
Gwaltney of Smithfeld, Ltd. v. Chesapeake Bay F. Supp. 162 (W.D. Mo. 1985) 0. 17
PR acne “ — tes _ ~~ ee 14, 27 = — Vv. Moore, 340 U.S. 616 (1951) —_ 22, 24
, mook County, nited States v. Northeastern Pharmaceutical
(19GB) ...........--.---.--nencnensnveneneeesenesee:cosnensnsesecennese eens 11, 16, 27 Chem. Co., 810 F.2d 726 (8th Cir. 1986), 4
Hebron Public School Dist. No. 13 v. U.S. Gypsum, denied, 484 U.S. 848 (1987) Rg
690 F. Supp. 866 (D.N.D. 1988) a 27 United States Vv. Price, 688 F2 1 904 (3d Cir
Hecht Co. v. Bowles, 321 U.S. 321 (1944) ............ 22 las as van 2 O00 Ge 17
a Ayo rool - —_— 28 Cal. Rptr. 2d = — pon v. Valentine, 856 F. Supp. 621 (D.
sihinainatintandenneniemenimmnneness yo Se eS Ve ee eo ee 17
Mailman’s Steam Carpet Cleaning Corp. V. Lizotte, Weinberger Vv. Romero-Barcele,
616 N.E.2d 85 (Mass. 1993) 0 20 SS aa as us -— 25
McClellan Ecological Seepage Situation v. Perry, Wilshire Westwood Assocs. V. Atlantic Richfield
pod peg” og 1995), cert. denied, No. 94- - Behe Rptr. 2d 562 (Cal. Ct. App. 1998) 20
© Ep BD ccccccccncccsncesecccccsceseressscesveseseseccseses yandotte y tates,
Mertens V. Hewitt Assocs., 113 S. Ct. 2063 (1993) .. 22 191 (1967) Lanshorteatin omnes m8 nite 26, 28
Oberst Vv. Mays, 365 P.2d 902 (Colo. 1961)... 22 z ieipeeniie
Petropoulos Vv. Columbia Gas of Ohio, Inc., 840 Statutes and rule:
F. Supp. 511 (S.D. Ohio 1993) 16 Clean Air Act, 4 U.S.C. 7401 et seq. 00... 4
oy Land West, Inc., 526 P.2d 1110 (Idaho : § 113, 42 U.S.C. 7413 (Supp. V 1993) ach 4
LA El SOS 0 OO EE I Ee 1 § 308, 42 U.S.C. 7603 (Supp. V 1993) 4
oe ® Warner Holding Co., 328 os. pe $ seete) (1), 2 USE. 7604 (a) (1) (Supp. V
at surnseepeeeseeneeentenivsnseteonsenenionsn , 24, a Nate tbr a ae alee 5
“oe - » aa States Navy, 39 F.3d 1011 (9th ‘ Clean Water Act, 33 U.S.C. 1251 ppg 4
Roadmaster Indus., Inc. V. Columbia Mfg. Co., 898 § 308, 88 US.C. 1819 (1988 & Supp. V 1998). 4
>. Summ. 1868 (B. bana, 20080 - § 311(f), $8 U.S.C. 1821(f) 12
citeesststenanesceenenseeseees 8 OL Ree 4

§ 505 (a) (1), 38 U.S.C. 1865 (a) (1) 5,13

vl

Statutes and rule—Continued: . Page

Comprehensive Environmental Response, Compen-
sation, and Liability Act of 1980, 42 U.S.C. 9601

et seq.:
§ 101(14), 42 U.S.C. 9601(14) ................. Sibel 9
$ 107 (a), 42 U.S.C. 9607 (a) ................................ 12
§ 107(a) (4) (B), 42 U.S.C. 9607 (a) (4) (B) ..... 9
§ 310(a) (1), 42 U.S.C. 9659(a) (1) .................. 5
Deepwater Port Act of 1974, 33 U.S.C. 1515
STITT c-cocinisnetisipcatieasimpeniieeaiboadieiibenitesittieslitheamaditeedtihabiantineas 5
Education of the Handicapped Act, 20 U.S.C.
a 24
Emergency Price Control Act of 1942, ch. 26,
0 Re eee 23
Endangered Species Act of 1973, 16 U.S.C. 1540
| SS eee ee 5
Hazardous and Solid Waste Amendments of 1984,
Pub. L. No. 98-616, 98 Stat. 3221:
§ 401 (a) , 98 Stat. 3268-3269 13
fF Xf TERT 13
Housing and Rent Act of 1947, ch. 163, § 206(b),
EEE Veto ree 24
Marine Protection, Research, and Sanctuaries Act

of 1972, 33 U.S.C. 1415(g) (1) —.... fo A es al 5
Noise Control Act of 1972, 42 U.S.C. 4911 (a) (1)... 5
Outer Continental Shelf Lands Act, 43 U.S.C.

i RET: EASE ESE, GEES EN TRO 5
Resource Conservation and Recovery Act, 42 U. S. Cc.

SEI UIT cnc nnocsnaiieridlintnintdidemerisinnighisntatnnaninaasnetdenteetiinnn 2
§ 1004(5), 42 U.S.C. 6903 (5) 0... aeteadinte 3
§ 1004(15), 42 U.S.C. 6903(15) 0... — 5
§ 1004 (27), 42 U.S.C. 6908(27) 0... 3
§§ 3001-3013, 42-U.S.C. 6921-6934 (1988 &

Supp. V 1998) ............... ie Lat EN RET TRE 3
EET ED 4
§§ 4001-4009, 42 U.S.C. 6941-6949 0... 3
§ 7002, 42 U.S.C. 6972 ................ 2, 4, 5, 8, 10, 12, 20, 21
§ 7002(a), 42 U.S.C. 6972(a) ............... 6, 8, 9, 12, 13,

24, 25, 28

§ 7002(a) (1) (A), 42 U.S.C. 6972(a) (1) (A). 5,14
§ 7002(a) (1) (B), 42 U.S.C. 6972(a) (1) (B) ..passim

Vil

Statutes and rule—Continued: Page
§ 7002 (b), 42 U.S.C. 6972(b) 21
§ 7002 (b) (1) (B), 42 U.S.C. 6972(b) (1) (B). 21
§ 7002 (b) (2), 42 U.S.C. 6972(b) (2)... 6

§ 7002 (b) (2) (A), 42 U.S.C. 6972(b) (2) (A). 6, 16
§ 7002 (b) (2) (A) (ii), 42 U.S.C. 6972(b) (2)

/\\ _——a SS ae res OS Se 12
§ 7002 (b) (2) (A) (iii), 42 U.S.C. 6972(b) (2)

RES CEE Ee a 5 27
§ 7002 (b) (2) (B), 42 U.S.C. 6972 (b) (2) (B). 6, 12

§ 7002(b) (2) (C), 42 U.S.C. 6972 (b) (2) (C) 6

§ 7002(f), 42 U.S.C. 6972(f) _..... A ae ee ae 15, 20

§ 7003, 42 U.S.C. 6973 2, 6, 8, 13, 17, 21, 22, 27

§ 7008 (a), 42 U.S.C. 6973 (a) 0... 4, 6, 8, 22

§ 90038 (h) (6), 42 U.S.C. 6991b(h) (6) 12
Rivers and Harbors Appropriation Act of 1899, ch.

I a 22

Safe Drinking Water Act, 42 U.S.C. 300-8 (a) (1) 5

Surface Mining Control and Reclamation Act of

1977, 30 U.S.C. 1270(a) (1) ......... is SPS 5
Toxic Substances Control Act, 15 U.S.C. 2619(a)

(1). Hi RP ee AS 5
50 U.S.C. App. 925 (a) (1946) . Ey Se Ie es 23
50 U.S.C. App. 1986 (b) (1958) | ae ALT ENE 24
I 7

Miscellaneous:
1 D. Dobbs, Law of Remedies (2d ed.1993) 25
H.R. Rep. No. 198, 98th Cong., Ist Sess. Pt. 1

i Sy so WAS > 18, 21
Restatement of Restitution (1987) ee ene: 25, 26, 27, 28
S. Rep. No. 284, 98th Cong., Ist Sess. (1983) 13, 21

Staff of Subcommittee on Oversight and Investiga-
tions of the House Committee on Interstate and
Foreign Commerce, 96th Cong., Ist Sess., Haz-
ardous Waste Disposal (Comm. Print 96-IFC 31,

1979) ....... Teen es PAS ; 17
Webster's Third New International Dictionary
a a 17

In the Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-83

ALAN MEGHRIG AND MARGARET MEGHRIG,
PETITIONERS

Vv.
KFC WESTERN, INC.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

Congress has vested federal and state authorities
with primary responsibility for enforcing environ-
mental statutes, but it has supplemented the govern-
ment’s enforcement powers with “citizen suit” reme-
dies, which authorize private citizens to bring civil
actions in certain circumstances. The United States
has a strong interest in ensuring that a meaningful,
yet appropriate, citizen suit remedy is available to
private litigants.

The United States has a particular interest in the in-
terpretation of Section 7002(a)(1)(B) of the Resource
Conservation and Recovery Act (RCRA), which, un-

(1)

2

like the citizen suit provisions contained in other fed-
eral environmental statutes, authorizes a private
party to bring a civil action in response to an “im-
minent and substantial endangerment to health or
the environment.” 42 U.S.C. 6972(a)(1)(B). Sec-
tion 7002(a)(1)(B) grants citizens authority that is
similar, but not identical, to the authority that Sec-
tion 7003 grants to the federal government to respond
to an “imminent and substantial endangerment” re-
sulting from the handling, storage, treatment, trans-
portation, or disposal of solid or hazardous waste. See
42 U.S.C. 6973. The United States has a strong in-
terest in ensuring that the Court is aware of the
relationship between the relevant statutory provi-
sions.

The United States also has an interest in Section
7002(a)(1)(B) as a potential defendant in a citizen
suit. Section 7002(a)(1)(B) expressly provides
that “the United States and any other governmental
instrumentality or agency” may be named as a de-
fendant in a citizen action. 42 U.S.C. 6972(a)(1)
(B). Citizens accordingly have a right to seek
judicial relief against the federal government if its
waste management activities pose an “imminent and

substantial endangerment” within the meaning of

RCRA.
STATEMENT

The Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. 6901 et seg., empowers the fed-
eral government to regulate activities respecting solid
and hazardous wastes. RCRA contains a citizen suit
provision that authorizes private parties to commence
a civil action in response to waste activities that
present an “imminent and substantial endanger-
ment.” See RCRA § 7002, 42 U.S.C. 6972. Respond-
ent KFC Western, Inc., brought a RCRA citizen suit

3

against petitioners Alan and Margaret Meghrig to
recover its expenses in removing hazardous waste con-
tamination from property that it had purchased from
them. The district court dismissed the suit on the
ground that there was no “imminent and substantial
endangerment” at the time of suit. See Pet. App.
A21-A23. The court of appeals reversed, holding that
a citizen may bring suit under Section 7002(a) (1)
(B) in response to past endangerment and that a
court may provide the citizen with a restitutionary
remedy. Jd. at Al-A20.

A. The Resource Conservation and Recovery Act

RCRA, which is also known as the Solid Waste Dis-
posal Act, is a comprehensive environmental statute
that empowers the Environmental Protection Agency
(EPA) to regulate the treatment, storage, and dis-
posal of solid and hazardous wastes “from cradle to
grave.” City of Chicago v. Environmental Defense
Fund, 114 S. Ct. 1588, 1590 (1994); Environmental
Defense Fund v. EPA, 852 F.2d 1316, 1318 (D.C.
Cir. 1988), cert. denied, 489 U.S. 1011 (1989).

Subtitle C of RCRA, which includes Sections 3001
to 3013, authorizes the EPA to identify and list haz-
ardous wastes and to promulgate standards governing
generators and transporters of hazardous wastes and
owners and operators of hazardous waste facilities.
See 42 U.S.C. 6921-6934 (1988 & Supp. V 1993).
Subtitle D, which includes Sections 4001 to 4009,
authorizes standards for the regulation of non-
hazardous solid wastes. See 42 U.S.C. 6941-6949.
See generally City of Chicago, 114 S. Ct. at 1590."

' Section 1004(27) of RCRA defines the term “solid waste”
to include a broad range of solid, liquid, and contained gaseous
materials. 42 U.S.C. 6903(27). Section 1004(5) defines the
term “hazardous waste” as a subset of “solid waste” that
meets certain additional criteria. 42 U.S.C. 6903(5).

4

Section 3008 of RCRA grants the EPA authority
to enforce federal hazardous waste regulations
through compliance orders, criminal penalties, and
civil penalties. See 42 U.S.C. 6928. In addition, Sec-
tion 7003(a) authorizes the EPA to take action with
respect to imminent hazards. 42 U.S.C. 6973(a).
Section 7003(a) states that

upon receipt of evidence that the past or present
handling, storage, treatment, transportation or
disposal of any solid waste or hazardous waste
may present an imminent and substantial en-
dangerment to health or the environment,

the EPA may bring suit against any person who has
contributed to that endangerment

to restrain such person from such handling, stor-
age, treatment, transportation, or disposal, to
order such person to take such other action as
may be necessary, or both.

Ibid. Section 7003(a) also provides the EPA with
the additional authority, which is not available to
other plaintiffs, to “take other action under this sec-
tion including, but not limited to, issuing such orders
as may be necessary to protect public health and the
environment.” /bid.*

Like other federal environmental statutes, RCRA
includes citizen suit provisions. Section 7002 allows
private citizens and other “persons” to bring a civil

* The government’s enforcement powers under RCRA are
similar to those contained in the Clean Water Act (CWA), 33
U.S.C. 1251 et seq., and the Clean Air Act (CAA), 42 U.S.C.
7401 et seq., which also grant power to enforce statutory and
regulatory requirements and to respond to imminent hazards.
See CWA §§ 309 and 504, 33 U.S.C. 1319 (1988 & Supp. V
1998) and 1364; CAA §§113 and 3038, 42 U.S.C. 7413 and
7603 (Supp. V 1993).

5

suit against any person alleged to be in violation of
any permit, standard, regulation, condition, require-
ment, prohibition, or order under the Act. See RCRA
§ 7002(a)(1)(A), 42 U.S.C. 6972(a)(1)(A); see
also RCRA § 1004(15), 42 U.S.C. 6903(15) (defin-
ing “person’’).’ But unlike other environmental stat-
utes, RCRA also authorizes citizen actions to address
imminent hazards. See RCRA § 7002(a)(1)(B), 42
U.S.C. 6972(a) (1) (B).

Section 7002(a)(1)(B) states in relevant part
that “any person may commence a civil action on his
own behalf” against any other person, “including the
United States and any other government instrumen-
tality or agency” who

has contributed or who is contributing to the
past or present handling, storage, treatment,
transportation, or disposal of any solid or haz-
ardous waste which may present an imminent
and substantial endangerment to health or the
environment.

42 U.S.C. 6972(a)(1)(B). Section 7002 also sets out
the remedies that are available with respect to such

8 The CWA and the CAA contain a nearly identical authori-
zation. See CWA § 505(a) (1), 33 U.S.C. 1365(a) (1); CAA
§ 304(a) (1), 42 U.S.C. 7604(a) (1) (Supp. V 1993). Many
other environmental statutes contain a similar authorization.
See Toxic Substances Control Act, 15 U.S.C. 2619(a) (1); En-
dangered Species Act of 1973, 16 U.S.C. 1540(g) (1); Surface
Mining Control and Reclamation Act of 1977, 30 U.S.C.
1270(a) (1); Marine Protection, Research, and Sanctuaries
Act of 1972, 33 U.S.C. 1415(g) (1); Safe Drinking Water Act,
42 U.S.C. 300j-8(a) (1); Noise Control Act of 1972, 42 U.S.C.
4911(a) (1); Comprehensive Environmental Response, Com-
pensation, and Liability Act of 1980 (CERCLA), 42 U.S.C.
9659 (a) (1); Outer Continental Shelf Lands Act, 43 U.S.C.
1349(a)(1); Deepwater Port Act of 1974, 33 U.S.C.
1515(a) (1).

6

a suit. Section 7002(a) grants a district judge juris-
diction
to restrain any person who has contributed or
who is contributing to the past or present han-
dling, storage, treatment, transportation, or dis-
posal of any solid or hazardous waste referred to
in paragraph (1)(B), to order such person to

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

42 U.S.C. 6972(a).

Section 7002(a) expressly states that a citizen ac-
tion under Section 7002(a)(1)(B) is subject to the
notice requirements and other limitations contained
in Section 7002(b)(2). See RCRA § 7002(a), 42
U.S.C. 6972(a).* Section 7002(a)(1)(B) does not
contain any analog to the EPA’s power under Section
7003 to “take other action,” such as issuing admin-
istrative orders, in response to the imminent hazard.
See RCRA § 7003(a), 42 U.S.C. 6973(a). But in
other respects, Section 7002(a)(1)(B) grants the
private citizen a remedy that is similar to the EPA’s
remedy under Section 7003.

B. The Proceedings Below

This RCRA citizen action arises from the cleanup
of contaminated property in Los Angeles, California,
that is currently owned by respondent and used for
the operation of a “Kentucky Fried Chicken” restau-
rant. Pet. App. A2. Respondent purchased the prop-

* Section 7002 (b(2) basically provides (among other things)
that a citizen may not commence an action: (1) prior to 90
days after the plaintiff has given notice of the endangerment
to the EPA, the relevant State, and any alleged contributor;
or (2) if the EPA or a State has taken specified actions to
address the endangerment under RCRA or CERCLA. See
42 U.S.C. 6972(b) (2) (A), (B) and (C).

7

erty from petitioners in September 1975. In October
1988, respondent took steps to construct the restau-
rant and discovered that the underground soil was
contaminated with refined petroleum products, al-
legedly caused by past operation of a gasoline station
at the site. bid. The Ctiy of Los Angeles Depart-
ment of Building and Safety thereafter ordered re-
spondent to clean up the property. Respondent com-
pleted cleanup in 1989, at a cost of $211,000. Re-
spondent requested petitioners to reimburse those
costs, but petitioners refused. bid.

On May 29, 1992, respondent brought this citizen
action in federal district court to recover its cleanup
costs, pursuant to RCRA Section 7002(a)(1)(B).
Petitioners moved to dismiss under Federal Rule of
Civil Procedure 12(b)(6), asserting that: (1) be-
cause respondent had completed the cleanup three
years earlier, there was no “imminent and substan-
tial endangerment”; and (2) Section 7002(a) (1) (B)
provides no jurisdiction for a suit to recover private
cleanup costs. Pet. App. A2-A3. On September 21,
1992, the district court granted the motion to
dismiss without prejudice, holding that Section
7002(a)(1)(B) ‘does not provide for a private dam-
age suit” and that “there is no ‘imminent’ danger, a
prerequisite of a private suit,” because “the clean-up
is done.” /d. at A24-A25.

Respondent amended its complaint to assert that
there was an “imminent and substantial endanger-
ment” at the time of cleanup and that Section
7002(a)(1)(B) allowed a monetary recovery as a
form of “equitable restitution.” See Pet. App. A3.
The district court dismissed the amended complaint
with prejudice, ruling that Section 7002(a) (1) (B)

8

“is limited * * * to injunctive relief” and that “there
is no provision for suits for damage[s] after the
cleanup is done and the danger is gone.” /d. at
A21-A23.

A divided court of appeals reversed and remanded.
Pet. App. Al-A20. The court ruled that Section
7002 authorizes a citizen suit if an endangerment
existed as of the cleanup, even if it had been abated
at the time of filing the complaint. Jd. at A5. The
court found support for its holding in an Eighth Cir-
cuit decision, United States vy. Aceto Agric. Chems.
Corp., 872 F.2d 1373 (1989), which addressed the
government’s powers under Section 7003 of RCRA.
The court specifically relied on the Eighth Circuit’s
statement in Aceto that Section 7003(a) “does not
require the EPA to file and prosecute its RCRA ac-
tion while the endangerment exists.” Pet. App. A6,
quoting 872 F.2d at 1383 (emphasis in original).

The court of appeals also ruled that Section
7002(a)’s grant of jurisdiction to the district courts
to order “such other action as may be necessary”’ pro-
vides citizens with a right to recover their cleanup
costs. Pet. App. A6. The court reasoned from the
Eighth Circuit’s decisions in Aceto and United States
v. Northeastern Pharmaceutical & Chem. Co.
(NEPACCO), 810 F.2d 726 (1986), cert. denied,
484 U.S. 848 (1987), that the EPA is entitled to
sue for restitution. It concluded that there is “no
principled reason to distinguish between the relief
available to the [EPA] and that available to private
plaintiffs under the virtually identical statutory pro-
visions.” Pet. App. A7-A9.°

5 The court stated that it would be “unfair and poor public
policy” to bar private restitution actions, leaving innocent
parties to pay for cleanup. Pet. App. Al0. The court acknow!-
edged that state law may provide remedies, but it suggested

9

Judge Brunetti dissented. Pet. App. A12-A20.
He concluded that the “unambiguous” language of
Section 7002(a) “requires that the endangerment
must be occurring at the time of filing suit.” Jd. at
Al4. He also concluded that Section 7002(a) does
not authorize private cost reimbursement actions,
concluding that the Eighth Circuit decisions had
assumed the availability of a reimbursement remedy,
without actually deciding the issue. /d. at Al2, A13.°

SUMMARY OF ARGUMENT

Section 7002(a)(1)(B) of RCRA confers on pri-
vate plaintiffs an important, but limited, right to
obtain relief from a federal district court. It au-

that those remedies are “generally inadequate because of the
difficulties of proof and attendant court delays.” /d. at All n.6.
The court also recognized that Section 107(a)(4)(B) of
CERCLA authorizes private parties to recover cleanup costs
associated with the release of a “hazardous substance.” See
42 U.S.C. 9607(a) (4) (B). The court observed, however, that
CERCLA’s exclusion of petroleum from the definition of “haz-
ardous substance” would preclude a CERCLA cost recovery
action where, as here, the cleanup involves only refined petro-
leum products. Pet. App. All n.6; see 42 U.S.C. 9601(14).

* After the court of appeals decided this case, a divided
Eighth Circuit panel ruled that Section 7002(a)(1)(B) does
not authorize a private action for past cleanup costs. Furrer
Vv. Brown, 62 F.3d 1092, 1100 (1995). The panel concluded
that the court of appeals in this case had “misconstrue[d]”
Aceto and NEPACCO. Id. at 1101. It stated that in both
cases, “because the defendants did not raise the issue of sub-
ject matter jurisdiction and neither the district courts nor this
Court addressed it sua sponte, the decisions reflect no consid-
eration of the jurisdictional issue.” /bid. The panel did not
address whether Section 7002(a)(1)(B) requires a present
endangerment. See id. at 1095 n.6. The plaintiffs in Furrer
filed a petition for rehearing and suggestion for rehearing en
banc, which were denied.

10

thorizes a citizen to bring a private action in response
to a situation that “may present an imminent and
substantial endangerment to health or the environ-
ment.” 42 U.S.C. 6972(a)(1)(B). The court of
appeals erred in concluding that the citizen may
bring an action based on solely past endangerment.
The plain language of Section 7002(a)(1)(B) re-
quires the current existence of a potentially “immi-
nent” danger; it does not allow a private party to
bring suit in response to a situation that no longer
poses any substantial threat to health or the environ-
ment. Accordingly, respondent cannot bring suit
under Section 7002(a)(1)(B) to recover its past
cleanup expenditures and must instead pursue the
remedies that are available to property owners under
state law.

In the course of reaching its decision, the court of
appeals stated that Section 7002(a)(1)(B) provides
a citizen plaintiff with a “restitutionary remedy.”
Pet. App. A6. A citizen plaintiff that has alleged a
current threat of substantial endangerment, has sat-
isfied Section 7002’s other conditions for bringing a
citizen suit, and has spent sums to abate a current
endangerment, may be entitled to receive recompense
in the action under the equitable doctrine of restitu-
tion. The Court, however, is under no obligation to
resolve that issue in this case, because, as we have
explained, respondent has failed to satisfy the statu-
tory conditions for bringing a citizen suit.

11

SECTION 7002(a)(1)(B) OF RCRA DOES NOT PRO-
VIDE A MECHANISM FOR A PRIVATE LANDOWNER
TO SUE PRIOR OWNERS IN FEDERAL COURT TO
RECOVER PAST COSTS OF REMOVING HAZARDOUS
WASTES THAT NO LONGER POSE ANY DANGER
AT THE SITE

A. Section 7002(a)(1)(B) Authorizes A Person To Com-
mence A Civil Action In Response To A Current Threat
Of Substantial Danger To Health Or The Environment

1. As this Court has observed in prior cases in-
volving citizen suit provisions, ‘the starting point for
interpreting a statute is the language of the statute
itself.” Hallstrom v. Tillamook County, 493 U.S. 20,
25 (1989); Gwaltney of Smithfield, Ltd. v. Chesa-
peake Bay Foundation, Inc., 484 U.S. 49, 56 (1987).
Section 7002(a)(1)(B) authorizes a private party
to commence a civil action in federal court in re-
sponse to specified activities that “may present an
imminent and substantial endangerment to health or
the environment.” 42 U.S.C. 6972(a)(1)(B). That
statutory language unambiguously indicates that the
suit may go forward only if it alleges a current
threat of substantial danger.

Section 7002(a)(1)(B)’s carefully drawn lan-
guage indicates that Congi_ss recognized a distince-
tion between a situation that “may present” an im-
minent hazard and one that posed a threat to health
or the environment only in the past. Congress
granted citizens a right to seek relief in federal
courts to address current situations, which by their
nature present the most pressing need for a judicial
remedy. It did not grant citizens a right under Sec-
tion 7002(a)(1)(B) to commence an action in fed-

12

eral court to recover the past costs of cleaning up a
site that no longer presents any danger.’

The distinction between a past and present hazard
is manifested throughout the relevant provisions of
Section 7002. Section 7002(a) states that a Section
7002(a)(1)(B) action may be brought in the district
in which “the alleged endangerment may occur.” 42
U.S.C. 6972(a). Section 7002(b)(2)(A)(ii) pro-
vides that no action may be commenced prior to 90
days after notice to “the State in which the alleged
endangerment may occur.” 42 U.S.C. 6972(b) (2)
(A)(ii). And Section 7002(b)(2)(B) states that
no such action may be commenced if the EPA has
taken specified abatement actions in response to the
activities “which may present the alleged endanger-
ment.” 42 U.S.C. 6972(b) (2) (B).

If Congress had wished to authorize private citi-
zen suits in cases involving past endangerment, it
could easily have indicated that intent by extending
Section 7002(a)(1)(B) to activities “which have
presented or may present” an endangerment. Con-
gress did not do so, and that omission does not appear
inadvertent. Congress understood the significance of
temporal distinctions. For example, it included among

7 Congress has addressed certain aspects of cost recovery in
other legislation, including CERCLA. See CERCLA § 107(a),
42 U.S.C. 9607(a) (allowing the government and private
parties to recover the costs of responding to releases and
threatened releases of “hazardous substances”). See also
CWA § 311(f), 33 U.S.C. 1321(f) (allowing the government
to recover costs of responding to discharges of oil or hazard-
ous substances into navigable waters); RCRA § 9003(h) (6),
42 U.S.C. 6991b(h) (6) (allowing the government to recover
costs of responding to petroleum leaks from underground
storage tanks). Other aspects of cost recovery remain pri-
marily the province of state law. See nn. 19-20, infra.

13

the potentially liable defendants “any past or present
generator, past or present transporter, or past or
present owner or operator * * * who has contributed
or who is contributing to the past or present handling,
storage, treatment, transportation, or disposal.” 42
U.S.C. 6972(a) (emphasis added). Congress never-
theless provided that those defendants would be sub-
ject to a citizen suit under Section 7002(a)(1)(B)
only in situations that “may present” an imminent
hazard. 42 U.S.C. 6972(a) (1) (B).*

2. This Court’s decision in Gwaltney provides
additional support for the conclusion that Section
7002(a)(1)(B) allows a citizen suit in response to
only a current threat of endangerment. Gwaltney
involved a dispute over whether Section 505(a) (1)
of the Clean Water Act, 33 U.S.C. 1365(a)(1),
which authorizes citizen suits against persons “al-
leged to be in violation of” permit conditions, confers
jurisdiction over suits for wholly past v-.vlations.
The Court held that the “most natural reading of ‘to
be in violation’ is a requirement that citizen-plaintiffs
allege a state of either continuous or intermittent
violation—that is, a reasonable likelihood that a past

* The legislative history supports the natural reading of the
text. Congress broadened the scope of Section 7002(a) (1) (B)
through the Hazardous and Solid Waste Amendments of 1984,
Pub. L. No. 98-616, § 401(a)-(b), 98 Stat. 3268-3269. The
House committee report explaining those amendments states
that Section 7002(a)(1)(B) “confers on citizens a limited
right * * * to sue to abate an imminent and substantial endan-
germent” pursuant to liability standards under Section 7003,
which “will complement, rather than conflict with, the Admin-
istrator’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.” H.R. Rep.
No. 198, 98th Cong., Ist Sess. Pt. 1, at 53 (1983); see also
S. Rep. No. 284, 98th Cong., Ist Sess. 55 (1983).

14

polluter will continue to pollute in the future.” 484
U.S. at 57.”

Gwaltney does not provide an exact analogy to
this case, because it did not deal with the same type
of citizen remedy that is at issue here. Gwaltney
addressed a statutory provision allowing citizens to
enforce regulatory requirements; it did not involve
RCRA’s unique statutory grant of citizen authority
to address “imminent and substantial endanger-
ment.” "® The different remedies respond to quite
different problems. For example, the citizen groups
in Gwaltney brought suit to compel a meat processing
plant to comply with its water pollution discharge
permit. The groups could not abate the plant’s viola-
tions through self-help interference in the plant’s op-
erations. By contrast, a citizen who seeks to enjoin
an imminent hazard, such as a tank or pipeline leak,
may have both the ability and an incentive to respond
to the hazard. If the spill has invaded the citizen’s
own property, he may have a compelling need to
abate or contain that threat himself without waiting
for a court to act.

®* Among other factors, the Court found persuasive the
“pervasive use of the present tense throughout § 505.” 484
U.S. at 59. The Court also observed that “[p]ermitting citizen
suits for wholly past violations of the Act could undermine the
supplementary role envisioned for the citizen suit.” Jd. at 60.

” The statutory provision at issue in Gwaltney represents
the most common formulation of a citizen suit remedy. RCRA
includes a similar provision authorizing suits against any
person “alleged to be in violation of” any permit, standard,
regulation, condition, requirement, prohibition, or order
effective under RCRA. See § 7002(a)(1)(A), 42 U.S.C.
6972(a) (1) (A). See also n.3, supra (citing other citizen suit
provisions).

15

Although Gwaltney addresses a different type of
citizen remedy, the Court’s decision remains rele-
vant. Perhaps most important, it indicates that
the citizen remedy must be construed with careful
attention to the statutory text. Section 7002(a)
(1)(B) specifically addresses potentially imminent
hazards. It expressly extends a citizen remedy only
to those situations in which there is a current threat
of substantial endangerment. Under the “most nat-
ural reading” of the statutory language, Section
7002(a)(1)(B) does not provide a remedy in a sit-
uation in which the danger has been wholly abated.
In that circumstance, the citizen plaintiff needs to
look elsewhere for any available legal remedies, in-
cluding remedies under state law."

3. We submit that Section 7002(a)(1)(B) does
not provide respondent with a remedy in this case.
Respondent has alleged that an imminent and sub-
stantial endangerment was present at the property
that it had purchased from petitioners and that the
danger existed until respondent cleaned up the site.
But respondent has not alleged that there was any
threat of substantial endangerment at the site when
it filed its citizen suit some three years later. See
Pet. App. A3. The district court correctly concluded
that respondent’s claim for relief did no* satisfy

" Section 7002(f) of RCRA expressly preserves state law
remedies. See 42 U.S.C. 6972(f) (“Nothing in this section
shall restrict any right which any person (or class of persons)
may have under any statute or common law to seek enforce-
ment of any standard or requirement relating to the manage-
ment of solid waste or hazardous waste, or to seek any other
relief (including relief against the Administrator or a State
agency).”).

16

the requirements for a citizen suit under Section
7002(a) (1) (B).”

Although Section 7002(a)(1)(B) does not provide
a remedy in this case, it does provide an important
remedy in many other situations. Section 7002
(a)(1)(B) authorizes a citizen suit whenever haz-
ardous waste activities “may present an imminent
and substantial endangerment.” 42 U.S.C. 6972(a)
(1)(B). The lower courts have recognized that this
language, by its terms, provides relief in a broad
variety of circumstances.” In doing so, the courts
have developed a cohesive body of law construing the
relevant statutory terms. For example, they have
held that the phrase “may present an imminent and
substantial endangerment” indicates that a citizen
may bring suit if there is a reasonable possibility of
imminent danger.'* They have also ruled that the

2 The district court also indicated that respondent failed
to provide 90 days’ notice of suit, see Pet. App. A25, which is
a mandatory condition precedent to commencing suit, under
Section 7002(b) (2) (A). See Hallstrom, 493 U.S. at 31.

3 See, e.g., Dague Vv. City of Burlington, 935 F.2d 1348 (2d
Cir. 1991) (city landfill), rev’d in part on other grounds, 505
U.S. 557 (1992); Comite Pro Rescate de La Salud v. Puerto
Rico Aqueduct & Sewer Authority, 888 F.2d 180 (1st Cir.
1989) (factory wastes), cert. denied, 494 U.S. 1029 (1990);
Petropoulos Vv. Columbia Gas of Ohio, Inc., 840 F. Supp. 511
(S.D. Ohio 1993) (wastes in underground storage tank);
City of Toledo v. Beazer Materials & Services, Inc., 833
F. Supp. 646 (N.D. Ohio 1993) (wastes from coke plant).

4 As the Second Circuit has explained, that language “does
not require a showing that actual harm will occur immediately
so long as the risk of threatened harm is present.” Dague,
935 F.2d at 1355-1356. An imminent hazard “may be declared
at any point in a chain of events which may ultimately result
in harm to the public.” Jd. at 1356, quoting Environmental
Defense Fund v. EPA, 465 F.2d 528, 535 (D.C. Cir. 1972);

17

specific term “imminent” refers to “the nature of
the threat” regardless of when that threat initially
arose and therefore allows a citizen to bring suit in
response to current threats originating from past
conduct that may produce future harm.” And they
have indicated that while the threat of danger must
be “substantial,” that requirement will be satisfied
if “there exists reasonable cause for concern for the
integrity of the public health or the environment.” "

cf. United States v. Price, 688 F.2d 204, 213-214 (3d Cir.
1982) (Section 7003 “authorizes the cleanup of a site, even
a dormant one, if that action is necessary to abate a present
threat”).

% Dague, 935 F.2d at 1356. Cf. Staff of Subcommittee on
Oversight and Investigations of the House Committee on
Interstate and Foreign Commerce, 96th Cong., Ist Sess.,
Hazardous Waste Disposal 32 (Comm. Print 96-IFC 31, 1979)
(“Imminence in [Section 7003] applies to the nature of the
threat rather than identification of the time when the endan-
germent initially arose. The section, therefore, may be used
for events which took place at some time in the past but which
continue to present a threat to the public health or the environ-
ment.”). The term “imminent” endangerment denotes a
current hazard, see Webster’s Third New International Dic-
tionary 1130 (1986) (defining “imminent” as “ready to take
place; near at hand; impending” and “hanging threateningly
over one’s head; menacingly near’), but it does not require
current harm. In the case of environmental hazards, where
current exposure may produce delayed incidences of cancer,
birth defects, or mutagenic disorders, a danger can be “im-
minent” even though the actual harm “may not be realized for
years.” United States v. Conservation Chem. Co., 619 F. Supp.
162, 193-194 (W.D. Mo. 1985).

' United States v. Valentine, 856 F. Supp. 621, 626 (D.
Wyo. 1994). See also Conservation Chem. Co., 619 F. Supp.
at 194 (“the word ‘substantial’ does not require quantification
of the endangerment (e.g., proof that a certain number of
persons will be exposed, that ‘excess deaths’ will occur, or that
a water supply will be contaminated to a specific degree)”;

18

Section 7002(a)(1)(B) does not provide a remedy
in the situation presented here, where the plaintiff
has taken self-help action that completely eliminates
a threat of substantial danger. That situation is not
the one that Congress envisioned in enacting the citi-
zen suit provisions. In most cases of substantial
endangerment warranting federal relief, the perils
posed by hazardous waste contamination cannot be
eliminated instantaneously. A plaintiff who diligently
pursues his legal rights should be able to commence a
citizen action before a long-term cleanup can be fully
implemented.” A_ plaintiff who undertakes some
abatement efforts while pursuing his legal remedies
does not forfeit the right to seek judicial relief
under Section 7002(a)(1)(B) as long as a threat of
substantial endangerment exists when the suit is
filed.”

There may be situations in which a plaintiff must
take immediate action to protect his own property
from contamination and in doing so completely abates
a threat of substantial endangerment that would
otherwise be actionable. Those situations, however,
are likely to involve hazards of limited scope and
entail expenses that are recoverable under traditional

rather, “an endangerment is substantial if there is reason-
able cause for concern that someone or something may be
exposed to a risk of harm by a release or a threatened release
of a hazardous substance if remedial action is not taken’’).

7In this case, KFC learned of the hazardous situation
(which had existed since 1975) in October 1988. It did not
complete its cleanup (which cost in excess of $200,000) until
some time in 1989. See Pet. App. A2.

18 As we explain below, a plaintiff that has been forced to
take emergency action but has not completed cleanup of the
longer term danger may be entitled, in appropriate circum-
stances, to reimbursement of its expenses in a RCRA citizen
suit. See pp. 22-28, infra.

19

state law principles. For example, state law com-
monly provides a plaintiff with a remedy for “rea-
sonable measures to remedy a nuisance.” A land-
owner may also have rights to cost recovery as a
successor owner of property based on theories such
as breach of warranty or fraudulent concealment.”

'® Stratford Theater, Inc. v. Town of stratford, 101 A.2d
279, 281 (Conn. 1953) (flooding from sewer pipe) (“Where
* * * the owner takes reasonable measures to remedy the
nuisance and prevent further injury, he is entitled to recover,
as an element of damages, the reasonable cost of the measures
he takes.”). See also, e.g., Drowin v. Ridge Lumber, Inc., 619
N.Y.S.2d 433, 434-435 (N.Y. App. Div. 1994) (discharge of
fuel) (“Plaintiffs were properly granted summary judgment
declaring and holding defendant liable * * * for all cleanup
and removal costs [incurred by plaintiffs] * * * resulting
from defendant’s discharge of gasoline.”); Amaz, Inc. v. Sohio
Indus. Prods. Co., 469 N.Y.S.2d 282, 284 (N.Y. Sup. Ct. 1983)
(radioactive contamination) (“The abatement of the nuisance
does not affect the right to recover damages for its past exist-
ence.”); Pollard v. Land West, Inc., 526 P.2d 1110, 1114 (Idaho
1974) (sewage contamination) (recovery of costs of drilling
well to abate sewage nuisance); Earl v. Clark, 219 N.W.2d
487, 490 (Iowa 1974) (cattle manure) (“It is also understood
the special damages which may be allowed include reasonable
costs attendant upon removal of offensive nuisance deposits.” ;
Burk Vv. High Point Homes, Inc., 197 N.Y.S.2d 969, 972 (Sup.
Ct.) (tons of highly piled loose dirt and sand) (“[D]efendant
is * * * liable for damages to the plaintiffs’ properties,” includ-
ing “the cost of removal of the defendant’s dirt, sand and
mud.”), appeal dismissed, 205 N.Y.S.2d 862 (N.Y. App. Div.
1960); Sheridan Oil Co. v. Wall, 103 P.2d 507, 510 (Okla.
1940) (crude oil leakage) (“The rule as to recovery of ‘tem-
porary’ damages assumes either that the defendant by reason
of successive suits against him will be compelled to remove
or abate the [nuisance] * * * and where plaintiff abates the
nuisance, he is entitled to recover his reasonable expenses
thereby incurred.”’).

* See Roadmaster Indus., Inc. v. Columbia Mfg. Co., 893
F. Supp. 1162 (D. Mass. 1995) (allowing suit for contract

20

As the court of appeals noted (Pet. App. All n.6),
respondent currently has an action pending in state
court. See KFC Western, Inc. v. Meghrig, 28 Cal.
Rptr. 2d 676 (Cal. Ct. App. 1994).

The text of RCRA indicates that Congress recog-
nized the availability of state law remedies and sup-
ported their use in response to dangers posed by
hazardous wastes. See RCRA § 7002(f), 42 U.S.C.
6972(f) (preserving state law remedies). Congress’s
explicit preservation of those remedies manifests its
belief that state law adequately addresses situations
that fall outside of Section 7002’s scope. Further-
more, there is no reason to expect that duties imposed
by federal law will be ignored in the application of
state remedies. To the contrary, state courts are
under an obligation to take into account RCRA’s en-
vironmental standards and requirements when apply-
ing their state remedies. See, e.g., Testa v. Katt,
330 U.S. 386, 393 (1947) (“the policy of the federal
Act is the prevailing policy in every state”).

rescission and tort damages for sale of contaminated prop-
erty); Mailman’s Steam Carpet Cleaning Corp. Vv. Lizotte, 616
N.E.2d 85 (Mass. 1993) (costs to clean up underground oil
tanks awarded under breach of warranty claim). A nuisance
action may be available in actions between a purchaser and
former lessee. See Wilshire Westwood Assocs. Vv. Atlantic
Richfield Co., 24 Cal. Rptr. 2d 562, 569-570 (Cal. Ct. App.
1993) (holding plaintiffs entitled to seek recovery for damages
in nuisance against former lessees who contaminated the

property).

21 The court of appeals’ suggestion that state law remedies
will be inadequate in light of “difficulties of proof and attend-
ant court delays” (Pet. App. All n.6) is open to question.
In any event, those concerns do not provide an adequate basis
for creating a federal cause of action that Congress did not
provide. Cf. Thompson Vv. Thompson, 484 U.S. 174, 187 (1988).

21

More generally, the result that we urge is con-
sistent with the statutory objectives that Congress
sought to achieve through the citizen suit mechanism.
Congress created a citizen remedy to supplement fed-
eral enforcement efforts in order to bring about com-
pliance to protect public health and safety, not to
provide a private cause of action that merely dupli-
cates state law remedies in disputes between individ-
uals.” Just as a citizen suit cannot go forward if
the government is appropriately responding to the
hazard, RCRA § 7002(b)(1)(B), 42 U.S.C. 6972(b)
(1)(B), the suit should not proceed if the alleged
hazard has been completely abated prior to suit. See
Price v. United States Navy, 39 F.3d 1011, 1019-
1021 (9th Cir. 1994). Section 7002(a)(1)(B) pro-
vides no basis for reaching a different result simply
because the citizen plaintiff, rather than someone else,
has eliminated the potential endangerment.”

* See H.R. Rep. No. 198, supra, at 53; S. Rep. No. 284,
supra, at 55, 57. Section 7002(b)’s statutory notice require-
ment and other limitations on citizen suits reflect Congress’s
overarching concern that the citizen suit complement federal
enforcement efforts. See RCRA § 7002(b), 42 U.S.C. 6972(b).
See also McClellan Ecological Seepage Situation v. Perry, 47
F.3d 325, 328-329 (9th Cir. 1995) (explaining that if the
government initiates a CERCLA cleanup, CERCLA itself pre-
cludes a citizen plaintiff from seeking RCRA relief at the
site), cert. denied, No. 94-1807 (Oct. 2, 1995).

** As the court of appeals recognized, the citizen’s remedy
under Section 7002 and the government’s remedy under Sec-
tion 7003 are similar in many respects. See Pet. App. A7;
see also H.R. Rep. No. 198, supra, at 53 (stating that Section
7002 confers a limited right to sue to abate an endangerment
“pursuant to the standards of liability established under Sec-
tion 7003”); S. Rep. No. 284, supra, at 55-57 (accord). The
Court should be aware, however, that the federal govern-
ment’s remedy is broader than the citizen’s remedy. Section

22

B. A Citizen Plaintiff That Properly States A Cause Of
Action Under Section 7002(a)(1)(B) May Invoke The
Court’s Traditional Equitable Powers To Obtain Appro-
priate Relief

1. This Court has stated on numerous occasions
that if Congress grants a district court authority to
provide equitable relief, the court may exercise “all
the inherent equitable powers” of traditional equity
jurisdiction, including the power to order restitution.
Porter v. Warner Holding Co., 328 U.S. 395, 398
(1946); Weinberger v. Romero-Barcelo, 456 U.S.
305, 313 (1982); United States v. Moore, 340 U.S.
616, 618-620 (1951); Hecht Co. v. Bowles, 321 U.S.
321, 329 (1944). See also Mertens v. Hewitt Assocs.,
113 S. Ct. 2063, 2069 (1993) (“ ‘equitable relief’ can
also refer to those categories of relief that were
typically available in equity (such as injunction, man-

7003(a) grants the EPA authority to take “other action * * *
including, but not limited to, issuing such orders as may be
necessary to protect public health and the environment.” 42
U.S.C. 6973(a). Thus, the EPA may act to protect the public
welfare without invoking the jurisdiction of the courts. Fur-
thermore, the government may be entitled to restitution for
the costs of such action. See Wyandotte Transp. Co. Vv. United
States, 389 U.S. 191, 204-205 (1967) (recognizing the govern-
ment’s right to restitution for abatement actions under the
Rivers and Harbors Appropriation Act of 1899). The federal
rule in Wyandotte reflects the familiar principle that public
agencies and municipalities may recover the costs of abating
public nuisances. City of Paterson v. Fargo Realty Ine., 415
A.2d 1210, 1216-1217 (N.J. Dist. Ct. 1980) (recovery of costs
through imposition of lien or a personal judgment against
property owner); Brandon Township Vv. Jerome Builders, Inc.,
263 N.W.2d 326, 327 (Mich. Ct. App. 1977) (reec very of costs
through assessment against property); Oberst v. Mays, 365
P.2d 902, 904 (Colo. 1961) (recovery of costs through assess-
ment against property). Issues respecting the reach of Section
7003 are not before the Court in this case.

23

damus, and restitution, but not compensatory dam-
ages”) ).

The Court’s decision in Porter addressed Section
205(a) of the Emergency Price Control Act of 1942,
ch. 26, 56 Stat. 33; 50 U.S.C. App. 925(a) (1946).
That Act provided that if the Administrator of the
Office of Price Administration made a showing of a
price control violation to the appropriate district
court, “a permanent or temporary injunction, re-
straining order, or other order shall be granted with-
out bond.” 328 U.S. at 397. The Court concluded
that the phrase “other order” included an order for
the restitution of illegal rents. Jd. at 399. The Court
reasoned that unless the underlying statute provided
otherwise, the district court was entitled to exercise
“all the inherent equitable powers” in providing an
appropriate remedy. /d. at 398.

The Court explained that “the comprehensiveness
of this equitable jurisdiction is not to be denied or
limited in the absence of a clear and valid legislative
command.” 328 U.S. at 398. It laid down the follow-
ing principle:

Unless a statute in so many words, or by a nec-
essary and inescapable inference, restricts the
court’s jurisdiction in equity, the full scope of
that jurisdiction is to be recognized and applied.
“The great principles of equity, securing com-
plete justice, should not be yielded to light infer-

ences, or doubtful construction.” Brown vy.
Swann, 10 Pet. 497, 503.

Ibid. The Court held that restitution may be granted
either as “an equitable adjunct to an injunction
decree” or as “an order appropriate and necessary to
enforce compliance with the Act.” Jd. at 399-400.
As to the latter, “inherent equitable jurisdiction * * *
clearly authorizes a court, in its discretion, to decree

24

restitution of excessive charges in order to give effect
to the policy of Congress.” Jd. at 400.

The Court reached a similar result in Moore, which
held that a court could order restitution of rent over-
charges under Secticr 206(b) of the Housing and
Rent Act of 1947, ch. 163, 61 Stat. 199-200; 50 U.S.C.
App. 1986(b) (1958). That Act authorized courts to
grant a permanent or temporary injunction, restrain-
ing order, “or other order” in response to a showing
of an actual or threatened rent control violation. 340
U.S. at 618-619. The Court concluded that restitution
“clearly enforces compliance with the Act” and that
Section 206(b) is not confined to securing prospective
adherence to the law. /d. at 620.

The principles that this Court articulated in Porter
and Moore are well established, and they have been
applied as a matter of course in cases involving the
exercise of equitable powers. See, e.g., Romero-
Barcelo, 456 U.S. at 313. The Court’s decision in
School Committee of Town of Burlington v. Depart-
ment of Education, 471 U.S. 359 (1985), reflects a
similar conception of a federal court’s equitable
powers. The Court there concluded that the Educa-
tion of the Handicapped Act, 20 U.S.C. 1415(e) (2),
which authorizes courts to “grant such relief as the
court determines is appropriate,” confers power to
order school authorities to reimburse parents for pri-
vate school expenses. 471 U.S. at 369. The Court
reasoned that the statutory provisions confer “broad
discretion on the court” and require only that “the
relief is to be ‘appropriate’ in light of the purpose of
the Act.” Ibid.

2. Section 7002(a) of RCRA grants the district
courts the power

to restrain any person who has contributed or
who is contributing to [the solid or hazardous

25

waste activities] referred to in paragraph
(1)(B), to order such person to take such other
action as may be necessary, or both.

42 U.S.C. 6972(a). That Section clearly confers equi-
table power, and neither Section 7002(a) nor any
other provision of RCRA contains any “clear and
valid legislative command” restricting the district
courts’ exercise of traditional equitable authority.
See Romero-Barcelo, 456 U.S. at 313; Porter, 328
U.S. at 398. To the contrary, by authorizing district
courts to order responsible persons ‘“‘to take such other
action as may be necessary,” Congress evinced an
intent to confer the full scope of equitable jurisdic-
tion.

Under this Court’s decisions in Porter and Moore,
Section 7002(a)’s authorization to “restrain” and
“order * * * such other action as may be necessary”
draws on “all the inherent equitable powers,” includ-
ing the power to order restitution. Porter, 328 U.S.
at 398-399. Restitution, which provides a remedy for
“unjust enrichment,” is a familiar form of equitable
relief. See 1 D. Dobbs, Law of Remedies § 4.1(1) at
551-552, 556-557 (2d ed. 1993); Restatement of Res-
titution §1 (1937). That remedy may be “appro-
priate and necessary” in some circumstances to en-
sure the effectiveness of a citizen suit. See Porter,
328 U.S. at 400.

Of particular relevance here, a court may award
restitution to provide reimbursement for “perform-
ance of another’s duty to the public.” Restatement of
Restitution $115 (1937). Section 115 specifically
states :

A person who has performed the duty of
another by supplying things or services, although
acting without the other’s knowledge or consent,
is entitled to restitution from the other if

26

(a) he acted unofficiously and with intent to
charge therefor, and

(b) the things or services supplied were im-
mediately necesary to satisfy the require-
ments of public decency, health, or safety.

Federal and state courts have awarded a restitution-
ary remedy in a variety of such circumstances.”

A court must, of course, examine the specific facts
to determine whether restitution is warranted and in
what amount. Restitution is not the equivalent of a
damages remedy.” It generally is not available to a
party who, “incidentally to the performance of his
own duty or to the protection or the improvement of
his own things,” confers a benefit on another. Re-
statement of Restitution $106 (1937).” Further-
more, restitution generally will not-be awarded “un-
less the person having the duty has been first re-

** See, e.g., Wyandotte Transp. Co., 389 U.S. at 204, citing
Restatement of Restitution § 115; State v. Schenectady Chems.,
Inc., 479 N.Y.S.2d 1010, 1014 (N.Y. App. Div. 1984) (recog-
nizing the State’s cause of action for restitution for cleaning
up waste contamination, notwithstanding the State’s statutory
enforcement duties); Brandon Township, 263 N.W.2d at 328
(cause of action for restitution, under Restatement of Restitu-
tion § 115, where Township repaired privately owned dam to
address “imminent threat” of rupture and flooding).

2° In cases where the recipient has abated a hazard, resti-
tution is generally “limited to the reasonable costs for
abatement, not necessarily the amount expended, and does
not extend to future costs.” Schenectady Chems., Inc., 479
N.Y.S.2d at 1014.

** For example, under that Section of the Restatement, a
private plaintiff that is itself responsible under RCRA Section
7002(a) (1) (B) to clean up an imminent and substantial en-
dangerment or is under some other legal duty to perform the
cleanup may not be entitled to restitution.

27

quested to perform it, except where such request
would be useless because the one having the duty
has indicated an intent not to perform or where time
limitations prevent the making of such a request.”
Restatement of Restitution $115 emt. a (19387).”

Indeed, RCRA’s citizen suit provisions impose a
90-day notice requirement that is consistent with that
principle of restitution. Section 7002(b) (2) (A) (iii)
provides that, as a precondition to suit, a citizen
plaintiff must give notice of its intent to sue to any
person “alleged to have contributed or to be contribut-
ing to the past or present handling, storage, treat-
ment, transportation, or disposal of any solid or haz-
ardous waste.” 42 U.S.C. 6972(b)(2)(A)(iii). A
primary purpose of providing notice is to give the
recipient an opportunity to take action on its own
and thereby “render unnecessary a citizen suit.”
Gwaltney, 484 U.S. at 60; Hallstrom, 493 U.S. at 29.
Hence, a person who receives notice but thereafter
fails or declines to abate the endangerment may be
liable in restitution under traditional equitable prin-
ciples.

Thus, in appropriate circumstances, an award of
restitution would be proper in the citizen suit con-
text. As we have explained, Congress authurized
citizen actions “to abate imminent and substantial
endangerments” as a2 complement to the EPA’s au-
thority to address imminent hazards under Section
7003. If persons responsible for creating public
health hazards could ignore a duty to abate those
hazards, free from any obligation of recompense to
those who take necessary response actions on their

27 See Town of Hooksett School Dist. v. W.R. Grace & Co.,
617 F. Supp. 126, 134 (D.N.H. 1984); Hebron Public School
Dist. No. 13 v. U.S. Gypsum, 690 F. Supp. 866, 869 (D.N.D.
1988).

28

behalf, the responsible parties would evade their legal
obligations and innocent citizens would be unfairly
penalized for assisting the government’s abatement
efforts. See Wyandotte Transp. Co. v. United States,
389 U.S. 191, 204 (1967) (concluding that restitu-
tion was necessary to avoid “the result, extraordi-
nary in our jurisprudence, of a wrongdoer shifting
responsibility for the consequences of his negligence
onto his victim” ).”

3. In light of the foregoing principles, there should
be little doubt that a federal court is empowered to
award restitution under Section 7002(a)(1)(B) in
appropriate circumstances. The question whether to
provide that remedy in any particular case requires
a careful examination of the facts and a principled
exercise of remedial discretion. See generally Re-
statement of Restitution Ch. 1, introductory note at
11 (1937). This Court, however, need not address
any of those issues in this case. The court of appeals
erred in concluding that respondent qualified to seek
relief in a citizen suit under Section 7002(a) (1) (B).
That error requires reversal of the court of appeals’
decision and renders hypothetical the question of
what remedies would be available if respondent had
stated a valid claim for relief.

** As we have explained, a person who abates a nuisance,
but does not satisfy the preconditions for Section 7002(a)
relief, would normally be entitled to pursue traditional reme-
dies, including restitution, under state law. See pp. 18-20
& nn.19-20, supra. There is no reason why a person who
does satisfy those preconditions should—by contrast—be de-
nied a restitutionary remedy, which is a familiar form of
equitable relief under both federal and state law.

ne

29
CONCLUSION

The judgment of the court of appeals should be
reversed.

Respectfully submitted.

Drew S. Days, III
Solicitor General

Lois J. SCHIFFER
Assistant Attorney General

LAWRENCE G. WALLACE
Deputy Solicitor General

JEFFREY P. MINEAR
Assistant to the Solicitor General

ANNE S. ALMY
JOHN T. STAHR

Attorneys
NOVEMBER 1995

v. ©. CovERnmenT peimTine orrice, 19068 408017 40002

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0633%3A11. Public record. Not legal advice.