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

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No. 95-83

: In the Supreme ptr I

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ee af ALAN MEGHRIG AND MARGARET MEGHRIG,

Racer) <9 _ Petitioners

; On Writ Of Certiorari To The

pe | Brief of Kaufman and Broad Home

S Corporation and Kaufman and Broad —

‘Sy. South bay, Inc. As Amici Curiae Supporting Respondent

WILLIAM N. KAMMER

7 Counsel of Record

} : ; J. MARTIN ROBERTSON

4 ; Ropert C. LONGSTRETH

LARRY J. BRADFISH

Gray CARY WARE & FREIDENRICH

A Professional Corporation

401 B Street

Suite 1700.

San Diego, California 92101

(619) 699-2711

400 Hamilton Avenue

Palo Alto, California 94301

(415) 328-6561

3 Counsel for Kaufman and

ee Mae Cocanee und

sd Kaufman and Broad — South Bay, Inc.

i

QUESTION PRESENTED

Whether Section 7002(a)(1)(B) of the Resource

Conservation and Recovery Act, 42 U-S.C.

§ 6972(a)(1)(B), authorizes a private party to seek

restitution of its costs of cleaning up solid or hazardous

wastes which may present an imminent and substantial

endangerment to health or the environment?

‘i

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST OF AMICI CURIAE ..1

SUMMARY OF ARGUMENT..................... 3

ET ChCCGEN eed Sbeeb0 ses ccececcceccsecees 5

|

The Ninth Circuit Correctly Determined That The RCRA

Citizen Suit Provision Authorizes Private Parties To

Seek Restitution Of Their Cleanup Costs ........... 5

A. The Broad Grant Of Authority In RCRA Section

7002(a)(1)(B) Allows The Court To Order A Party

ES ee 5

B. The Petitioners Inappropriately Apply The Analysis

Under Cort v. Ash To Determine The Extent Of

Relief Available Under RCRA Section 7002(a) .. .13

II

The Ninth Circuit Correctly Determined That

Restitutionary Relief Is Available To Private Parties

Where Private Parties Responded To Conditions Which

May Present An Endangerment Before Filing Suit... 15

SEE IE CS 18

TABLE OF AUTHORITIES

Cases

Page

Anderson v. Thompson, 658 F.2d 1205 (7th Cir.

BED cdedcdccecesecccccccceccceccecesoecce 14, 15

Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761

CPU Ge BED ce cccccccccccsccccccccccececes 10

Ascon Properties, Inc. v. Mobil Oil Co.,

866 F.2d 1149 (9th Cir. 1989) ...........0055. 13

Bayless Investment & Trading Co. v. Chevron

U.SA., Inc., 39 Envtl. Rep. Cas. 1428 (D. Ariz.

a 13

Brown v. Swann, 35 U.S. 497 (1836)............. 7

California v. America Stores Co., 495 U.S. 271

ER aes alte: Cla rt RE 7,9

Cort v. Ash, 422 U.S. 66 (1975) ...........4.. 13, 14, 15

Crawford v. University of North Carolina, 440 F.

Supp. 1047 (M.D.N.C. 1977) ..........600005 9

Davis v. Passman, 442 U.S. 228 (1979) .......... 14

Franklin v. Gwinnett County Public Schools, 503

LT EET datindbecconbececssenesceocccee 14

Furrer v. Brown, 62 F.3d 1092 (8th Cir. 1995)..... 14

Gwaltney v. Chesapeake Bay Found., 484 U.S. 49

|, PEP OPTTTIT TTTITIT TTT TTT Trey 15, 16

Hatco Corp. v. W.R. Grace & Co. — Conn.

859 F.Supp. 769 (D.N.J. 1994) ............55. 10

Hecht Co. v. Bowles, 321 U.S. 321 (1944) ........ 7

Kaufman and Broad — South Bay, Inc. v. Unisys

Corporation et al., No. C-92-20677 ............. 2, 3

Kaufman & Broad — South Bay, Inc. v. Unisys Corp., 868

F.Supp. 1212 (N.D. 1993) ..... 0... 6. ccc ceeees 2, 11

Key Tronic v. United States, _US. _, 114 S.Ct.

imo pr i ei a A 11

iv

TABLE OF AUTHORITIES

CASES

Page

KFC Western, Inc. v. Meghrig, 49 F.3d 518 (9th Cir.

Pestbidsdccconnnstddasausoncadsadadens 2, 3, 16

Lieberman v. Univ. of Chicago, 660 F.2d 1185 (7th

Sb Sa ceandescouséadceseess+<atbebesadeds 14

_ Lincoln Properties, Lid. v. Higgins, 23 Envtl. L. Rep.

SE Cs Ge GEE bb ceWe cdecccdsceceser 12, 13

Lincoln Properties v. Higgins, 24 Envtl. L. Rep.

OE ere 9

Middlesex County Bd. of Chosen Freeholders v. New

Jersey, 645 F.Supp. 715 (D.N.J. 1986) .......... 13

Middlesex County Sewerage Auth. v. National Sea

Clammers Ass'n, 453 U.S. 1 (1981) ............ 16

Miener v. Missouri, 673 F.2d 969 (8th Cir. 1982) .. 14

NL Indus. v. Kaplan, 792 F.2d 896 (9th Cir. 1986) 12

Porter v. Warner Holding Co., 328 U.S. 395 (1946) 7,9

Thaler v. PRB Metal Products, Inc., 810 F.Supp. 49

Se Mad canbcdbhagestouééicddencs 10

United States v. Aceto Agric. Chems. Corp., 872 F.2d

Se PG EE cbaddeeactdudsctdctessce 8, 16

United States v. Colorado & E.R.R., 50 F.3d 1530

6 rr Se ere ee 10

United States v. Long, 537 F.2d 1151 (4th Cir.

1975) cert. denied, 429 U.S. 871 (1976) ........ 9

United States v. Mottolo, 605 F.Supp. 898 (D.N.H.

BOE accucactacduccesatscdséducdsbasetics vee 10

United States v. Northeastern Pharmaceutical &

Chem. Co., 810 F.2d 726 (8th Cir. 1986) ....... 10

United States v. Price, 688 F.2d 204 (3d Cir. 1982) .. 8, 9

United Technologies v. Browning-Ferris Indus., Inc.,

33 F.3d 96, cert. denied, US. , 115

Se Ge Su Wdntacdcescéucbandebeacee 10

Vv

TABLE OF AUTHORITIES

CASES

Page

Wickland Oil Terminals v. ASARCO, Inc., 792 F.2d

Gee GG HED. dvrendeddencoavesccccecess 12

Statutes, Regulations and Rules

ive Environmental Response, Compensation,

and Liability Act of 1980, 42 U.S.C. § 9601 ef seq.:

§ 101(27), 42 U.S.C. § 9601(27) ..... 11

§ 106(a), 42 U.S.C. § 9606(a) ....... 7

§ 107, 42 U.S.C. § 9607 ............. 11

§ 107(a), 42 U.S.C. § 9607(a) ...... 10, 11

§ 107(a) (4) (B), 42 U.S.C. § 9607(a)

ieee edi sce encéeneds 0ee ee 11

§ 113(f) (1), 42 U.S.C.

is cccesduetsocnevess 11

Resource Conservation and Recovery Act, 42 U.S.C.

§ 6901 ef seq.

§ 1004(5), 42 U.S.C. § 6903(5) ...... 11

§ 1004(27), 42 U.S.C. § 6903(27) .... Il

§ 7002(a), 42 U.S.C. § 6972(a) ...... passim

§ 7002(a)(1)(B), 42 U.S.C.

PT vocecaesovccces passim

§ 7002(a) (2), 42 U.S.C.

DTT iceasevdebeseseces 14

§ 7002(¢), 42 U.S.C. § 6972(e)....... 12

§ 7003, 42 U.S.C. § 6973 ......... 4, 6, 7,8

40 C.F.R. § 300.700(c) (3) (i)... 16. eee cece 12

55 Fed. Reg. 8666 (March 8, 1990).............. 12

Supreme Court Rule 37.3...............000eeee l

vi

TABLE OF AUTHORITIES

CASES

Page

Miscellaneous

Pub. L. 89-272, Title II, § 1001, as amended by

Pub. L. 89-272, 90 Stat. 2795 (1976) ..........

Pub. L. 94-580, 90 Stat. 2801 (1976) ............ 5

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

DE Chub nawenuelessibeosederbeds cceeeéd us 5,7

S. Rep. No. 284, 98th Cong.,

EE EE en a, Uh eava gp chondieae ee x

Adam Babich, RCRA Imminent Hazard Authority:

A Powerful Tool for Businesses, Governments,

and Citizen Enforcers, 29 Envtl. L. Rep. 10122

SY SE d6-6s Seuduédbbetnbbbedébecesece: 1!

J. Martin Robertson, Restitution Under RCRA

$7002 (a) (1) (B): The Courts Finally Grant What

Congress Authorized, 25 Envtl. L. Rep. 10491

SET DE kek cdcetaunsudcosécteceec cs 6

J. Martin Robertson, The ‘Lincoln Properties’ Case:

Shifting The Burden of Response,

8 Tox. L. Rep. 1395 (May 11, 1994) ........... 8, 11

No, 95-83

In the Supreme Court

OF THE

United States

OcToser TERM, 1995

ALAN MEGHRIG AND MARGARET MEGHRIG,

Petitioners

Vv.

KFC WEesTERN, INC.

Respondent

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

Brief of Kaufman and Broad Home

Corporation and Kaufman and Broad —

South Bay, Inc. As Amici Curiae Supporting Respondent

Kaufman and Broad Home Corporation and Kaufman

and Broad — South Bay, Inc. (collectively “Kaufman and

Broad”) respectfully submit this amici curiae brief in sup-

port of the Respondent, KFC Western, Inc. Kaufman and

Broad have obtained the written consent of the parties as

required by Rule 37.3 of the rules of this Court.

STATEMENT OF INTEREST OF AMICI CURIAE

Kaufman and Broad — South Bay, Inc. is a real estate

development company that developed for residential use

approximately one hundred acres of real property in

2

Milpitas, California. After discovering that hundreds of

barrels of toxic waste had been dumped and buried on the

property years before by others, Kaufman and Broad —

South Bay spent over $26 million to remedy the dangerous

conditions at the site. Kaufman and Broad — South Bay,

Inc. is a wholly owned subsidiary of Kaufman and Broad

Home Corporation. Subsidiaries of Kaufman and Broad

Home Corporation develop homes throughout the State of

California. In October, 1992, Kaufman and Broad — South

Bay filed an action in the United States District Court for

the Northern District of California, captioned Kaufman and

Broad — South Bay, Inc. v. Unisys Corporation, et al.,

No. C-92-20677 EFL, which remains pending in that court.

On May 7, 1993, in an order published at 822 F. Supp. 1468

(N.D. Cal. 1993), the district court dismissed that portion

of Kaufman and Broad — South Bay, Inc.’s complaint that

secks restitution of response costs under Section

7002 (a) (1) (B) of the Resource Conservation and Recovery

Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(B).

Petitioners here seek the reversal of a decision of the

United States Court of Appeals for the Ninth Circuit that

expressly “disapprove[s] of the reasoning used by district

courts that have dismissed complaints brought under section

6972(a)(1)(B) [of RCRA] to the extent the plaintiffs

sought reimbursement of clean-up costs.” KFC Western,

Inc. v. Meghrig, 49 F.3d 518, 523 (9th Cir. 1995). In the

ruling challenged here, the Ninth Circuit specifically identi-

fies the district court order dismissing Kaufman and

Broad — South Bay’s claim for restitution of response costs

as one of the two decisions it criticized. Accordingly, the

Ninth Circuit’s decision, which is binding on the United

States District Court for the Northern District of California,

makes it clear that the order dismissing Kaufman and

Broad — South Bay, Inc.’s claim for equitable restitution of

its response costs cannot stand.

3

On July, 25, 1995, Kaufman and Broad — South Bay,

Inc. moved the district court to reinstate its claim for

restitution of response costs under section 7002 (a) (1) (B)

of RCRA in light of the Ninth Circuit’s decision.’ On

September 11, 1995, the District Court granted Kaufman

and Broad — South Bay, Inc.’s motion.’ If the Ninth Cir-

cuit’s decision is reversed in this case, Kaufman and

Broad — South Bay, Inc. will lose an important means of

recovering from the responsible parties the millions of dol-

lars it has spent to remedy dangerous environmental con-

tamination that it did not create.

SUMMARY OF ARGUMENT

This case involves the construction of the citizen suit

provision set forth in Section 7002(a)(1)(B) of RCRA, 42

U.S.C. § 6972(a)(1)(B). The Ninth Circuit, in determin-

ing what it described as “a question of first impression,”

ruled that “the RCRA citizen suit provision authorizes a

private plaintiff to collect restitution of clean-up costs.” KFC

Western, Inc. v. Meghrig, 49 F.3d 518, 520 (9th Cir. 1995).

The Ninth circuit’s decision is correct for three reasons.

First, the broad language in Section 7002(a)(1)(B) of

RCRA authorizes district courts “to take such other action

as may be necessary” in cases in which private party

plaintiffs establish the liability of other parties for conditions

that may present an endangerment to the environment or

' See Kaufman and Broad — South Bay, inc. v. Unisys Corporation, et

al., No. C-92-20677 EFL, Plaintiff's Motion By Way of Reconsideration

Or, In the Alternative, A Motion for Leave to Amend Its Complaint to

Reinstate Claim for Restitution Against Unisys Corporation and In

Support of Plaintiff's Motion to Add Claim for Restitution Against

Trucking Companies (N.D. Cal. July 25, 1995).

? See Kaufman and Broad — South Bay, Inc. v. Unisys Corporation, et

al, No. C-92-20677 EFL, Order Granting Leave to File Third

Amended Complaint (N.D. Cal. September 11, 1995).

4

health. 42 U.S.C. § 6972(a)(1)(B). Nothing in Section

7002(a)’s broad grant of jurisdiction restricts the district

courts’ jurisdiction — by words or inference — to granting

injunctive relief, as petitioners suggest. The legislative his-

tory behind Section 7002(a)(1)(B) makes clear that Con-

gress intended that Section 7002(a)(1)(B) confer the same

rights on private parties that Section 7003 confers on the

government, and that Section 7003 provides the government

with a restitutionary remedy. Second, the private party in

this case (like many other private parties in other cases)

does not have adequate remedies under federal or state law

against the polluters of contaminated property. And, third, it

is important, for public policy reasons, to promote the

cleanup of contamination by private parties who, without

such incentive, might not engage in cleanup. A restitution-

ary remedy under RCRA Section 7002(a)(1)(B) promotes

such cleanup.

As the federal appellate authority supporting the decision

below attests, the Ninth Circuit’s determination is clearly

correct. The RCRA citizen suit provision is expressly di-

rected to past conduct and expressly permits a court to order

a party responsible for endangering health or the environ-

ment “to take such other action as may be necessary.”

42 U.S.C. § 6972(a). This statutory language provides clear

authority for a court to order a responsible party to make

equitable restitution to those who have addressed and allevi-

ated the dangerous condition. Contrary to petitioners’ argu-

ments, the Ninth Circuit has not created a new right of

action by implication; it has simply recognized that the right

of action already provided by Congress permits am order of

equitable restitution.

5

ARGUMENT

I

The Ninth Circuit Correctly Determined That The RCRA

Citizen Suit Provision Authorizes Private Parties To

Seek Restitution Of Their Cleanup Costs.

A. The Broad Grant Of Authority In RCRA Sec-

tion 7002(a)(1)(B) Allows The Court To Order A

Party To Make Restitution.

Section 7002(a) of the Resource Conservation and Re-

covery Act (“RCRA”)? authorizes any person to seek, on

his or her own behalf, necessary relief against “any [other]

person . .. who has contributed or who is contributing to the

past or present handling, storage, treatment, transportation,

or disposal of any solid or hazardous waste which may

present an imminent and substantial endangerment to

health or the environment.” 42 U.S.C. § 6972(a).

In 1984, Congress amended Section 7002 of RCRA to

allow private parties to sue responsible parties over situa-

tions in which solid or hazardous wastes may present an

imminent and substantial endangerment to the environment

or health. H.R.Rep. No. 189, 98th Cong., 2d Sess., pt. 1

(1984). Congress also added language authorizing district

* At the same time that Congress enacted RCRA, it enacted the Solid

Waste Disposal Act. From the legislative history, it is unclear which act

Congress enacted first. Section 1001 of Public Law 89-272, Title II, as

amended by Public Law 89-272, October 21, 1976, 90 Stat. 2795,

provides in part that Title II of Public Law 89-272 may be cited as the

“Solid Waste Disposal Act.” Section | of Public Law 94-580 provides

that “This Act may be cited as the Resource Conservation and Recovery

Act of 1976.” The two acts are generally cited as the Solid Waste

Disposal Act, as amended by the Resource Conservation and Recovery

Act of 1976. But the two acts are sometimes cited as the Resource

Conservation and Recovery Act, as amended by the Solid Waste

Disposal Act.

6

courts “to take such other action as may be necessary” when

private party plaintiffs establish the liability of other parties.

Id. Section 7002(a) of RCRA contains the same language

concerning the scope of equitable relief available to a private

party as RCRA Section 7003, which authorizes the govern-

ment to bring an action against responsible parties.

42 U.S.C. § 6972(a); 42 U.S.C. § 6973.

The court of appeals held that a private party plaintiff is

entitled to restitution of its cleanup costs under Sec-

tion 7002(a)(1)(B) of RCRA. The court squarely

grounded its decision on the broad language in Sec-

tion 7002(a)(1)(B) which authorizes district courts “to

take such action as may be necessary” in cases in which

private party plaintiffs establish the liability of other parties.

By adding this language to Section 7002(a), Congress

unquestionably intended the courts to have the same equita-

ble authority in actions private parties bring under Sec-

tion 7002(a)(1)(B) of RCRA that the courts have in

actions the government brings under Section 7003 of

RCRA. This broad equitable jurisdiction includes the au-

thority to grant restitution as well as injunctive relief to

private parties faced with contamination that may present an

endangerment to the environment or human health.‘

Unless specifically limited, Congress’ grant of equitable

jurisdiction to the courts is not restricted. The Court’s

equitable powers are presumed to include all of the tradi-

tional equitable powers that the courts have historically

exercised. As this Court has stated:

Unless a statute in so many words, or by

a necessary and inescapable inference,

\

“Congress’ broad grant of equitable jurisdiction under RCRA Sec-

tion 7002(a)(1)(B) is discussed in detail in a recent article. See

J. Martin Robertson, Restitution Under RCRA § 7002(a) (1) (B): The

Courts Finally Grant What Congress Authorized, 25 Envtl.L.Rep. 10491

(September 1995).

ee

meee

>

restricts the court’s jurisdiction in equity,

the full scope of that jurisdiction is to be

recognized and applied. “The great prin-

ciples of equity, securing complete jus-

tice, should not be yielded to light

inferences, or doubtful construction.”

Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946)

(quoting Brown v. Swann, 35 U.S. 497 (1836)). Accord

California v. American Stores Co., 495 U.S. 271, 295

(1990); Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944).

Nothing in Section 7002(a)’s broad grant of jurisdiction

restricts the district courts’ jurisdiction — by words or infer-

ence — to granting injunctive relief, as petitioners suggest.

Had Congress intended to impose such a limitation, it would

have been a simple matter to draft the statute so that courts

would be limited to ordering only “relief as may be neces-

sary to abate such danger or threat,” instead of broadly

providing that courts may order responsible parties to take

any necessary action. Cf. Section 106(a) of the Comprehen-

sive Environmental Response, Compensation and Liability

Act (“CERCLA”), which authorizes the President to re-

quire the Attorney General “to secure such relief as may be

necessary to abate such danger or threat.” 42 U.S.C.

§9606 (a).

The legislative history behind Section 7002(a)(1)(B)

makes clear that Congress intended that Sec-

tion 7002(a)(1)(B) confer the same rights on private

parties that Section 7003 confers on the government. The

House of Representatives stated that Section

7002 (a) (1)(B) confers on private parties the right to bring

actions “pursuant to the standards of liability established

under Section 7003.” H.R. Rep. No. 198, 98th Cong.,

2d Sess. pt. 1, at 53 (1984), reprinted in U.S.C.C.A.N.

5576, 5612. Similarly, the Senate stated that:

These amendments [adding Section 7002 (a) (1) (B)]

are intended to allow citizens the same broad substan-

tive and procedural claim for relief which is already

available to the United States under Section 7003. Any

differences in language between these amendments and

7003 are not intended to reflect a difference in such

claims, but merely clarify that citizens have the same

claim presently available to the United States.

S.Rep. No. 284, 98th Cong., Ist Sess., at 56-57 (1983).°

Because Congress intended that citizen suits brought under

Section 7002(a)(1)(B) confer the same rights as govern-

mental actions brought under Section 7003, the relief availa-

ble under the two provisions should be interpreted similarly.

The court of appeals followed the interpretations of the

language in Section 7003 by the Eighth Circuit Court of

Appeals in United States v. Aceto Agric. Chems. Corp.,

872 F.2d 1373 (8th Cir. 1989) and the Third Circuit Court

of Appeals in United States v. Price, 688 F.2d 204 (3d Cir.

1982) in its decision. This Court should, too.

Because neither Section 7003 nor Section

7002(a)(1)(B) restricts Congress’ grant of equitable juris-

diction in any way, the Eighth Circuit's interpretation of

Section 7003 in Aceto and the Ninth Circuit’s interpretation

of Section 7002(a)(1)(B) in this case are correct. Both

sections authorize a restitutionary remedy: Section 7003

authorizes a restitutionary remedy for EPA and Sec-

tion 7002(a)(1)(B) authorizes a restitutionary remedy for

*See J. Martin Robertson, The ‘Lincoln Properties’ Case: Shifting the

Burden of Response, 8 Tox.L.Rep. 1395, 1403-04 (May 11, 1994), for

further discussion of this.

9

private parties.® Thus, restitution of reasonable cleanup costs

should be available to private parties under Section

7002 (a) (1)(B).

Petitioners contend that reimbursement of private parties

for their costs of cleaning up contamination must be charac-

terized as damages. That is not so. Reimbursement of the

costs a private party expends to clean up contamination

simply restores the party to the position it occupied before

conducting the cleanup. The remedy by which the courts

restore a party to its pre-cleanup position is restitution, not

damages. The Fourth Circuit distinguished restitution from

damages by stating that:

“[a] person obtains restitution when he is restored to

the position ne formerly occupied either by the return

of something which he formerly had or by the receipt of

its equivalent in money.” ... Damages, on the other

hand, are determined by reference to the loss sustained

by a victim as a result of wrongfu! conduct on the part

of another.

United States v. Long, 537 F.2d 1151, 1153-54 (4th Cir.

1975) (quoting Restatement of Restitution, § 1 Comment:

a, at 12 (1937)), cert. denied, 429 U.S. 871 (1976).’

*In the court of appeals’ opinion, the dissent stated that “the lan-

guage, ‘such other action as may be necessary,’ does not contemplate

actions for reimbursement.” 49 F.3d 518, 525 (Brunetti, J., dissenting).

In so stating, however, the dissent ignored the general rule that the full

scope of a court’s equitable jurisdiction must be recognized and applied

unless a statute restricts the court’s equitable jurisdiction. Porter v.

Warner Holding Co., 328 U.S. 395, 398; California v. American Stores

Co., 495 U.S. 271, 295.

"Courts have issued mandatory injunctions requiring the payment of

money on numerous occasions. See Lincoln Properties, Lid. v. Higgins,

24 Envtl. L. Rep. 21068 (E.D. Cal. 1993). See also United States v.

Price, 688 F.2d 204, 213 (3d Cir. 1982), citing Crawford v. University of

North Carolina, 440 F. Supp. 1047 (M.D.N.C. 1977). Moreover, the

10

Equitable reasons buttress the legal Sround for affirming

the court of appeals’ decision. The private party in this case

(like many other private parties in other cases) does not

have adequate remedies under federal or state law against

the polluters of contaminated property.

CERCLA no more provides an adequate remedy preclud-

ing restitution under RCRA Section 7002(a)(1)(B) than it

provides an adequate remedy precluding injunctive relief

under RCRA Section 7002(a)(1)(B). Recently, several

courts have limited private parties’ abilities to recover re-

sponse costs under CERCLA.* In addition, in 1994, this

Court severely restricted the recoverability of attorneys’ fees

Eighth Circuit Court of Appeals and every district court that has

addressed the issue has held that a claim for recovery of response costs

under CERCLA, an environmental statute like RCRA. is not an action

at law for money damages but is instead an equitable action. See United

States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726, 749

(8th Cir. 1986) (holding that when the government seeks response costs

it is “seeking equitable relief in the form of restitution or reimbursement

of the costs it expended in order to respond to the health and environ-

mental danger presented by hazardous substances”) See also Hatco

Corp. v. WR. Grace & Co. — Conn., 859 F.Supp. 769, 774 (D.N_J.

1994), Thaler v. PRB Metal Products, Inc., §\0 F.Supp. 49, 50

(E.D.N.Y. 1993) (both cases applying the Northeastern rule to actions

between private parties). See also United States v. Mottolo, 605 F Supp.

898, 912-13 (D.N.H. 1985) (citing seven cases that characterize recov-

ery of response costs under CERCLA as equitable relief).

"The Courts of Appeals for the First, Seventh and Tenth Circuits

District Court for the Northern District of California lable pnvate

parties who cannot recover their response costs can do no more than

seek contribution from other liable parties under CERCLA Sec-

tion 107(a). See United Technologies v. Browning-Ferris Indus. Inc.

33 F.3d 96 (Ist Cir. 1994), cert. denied, U.S. , 115 S.Ct 1176

(1995); Akzo Coatings, Inc. v. Aigner Corp. 30 F.3d 761 (7th Cir

1994); reh’g en banc denied (7th Cir. 1994): United States v Colorado

under CERCLA Section 107.” In the wake of these recent

CERCLA decisions, an action for restitution under Section

7002(a)(1)(B) offers several distinct advantages over a

CERCLA Section 107(a) cost recovery action or a CER-

CLA Section 113(f)(1) contribution action. First, RCRA

Section 7002(a)(1)(B) applies to a broader range of con-

tamination than CERCLA. Section 7002(a)(1)(B) can be

used to obtain restitution of private parties’ costs of respond-

ing to solid and hazardous wastes as broadly defined in

RCRA Sections 1004(5) and 1004(27), whereas CERCLA

can only be used to recover private parties’ costs of respond-

ing to hazardous substances as defined in CERCLA.

42 U.S.C. § 6903(5) (defining “hazardous waste” as used in

RCRA); 42 U.S.C. § 6903(27) (defining “solid waste” as

used in RCRA); and 42 U.S.C. § 9601 (27) (defining “haz-

ardous substances” as used in CERCLA).'° Second, to be

recoverable under RCRA Section 7002(a)(1)(B), private

parties’ response costs need only be incurred in response to

conditions that may present an imminent and substantial

endangerment to the environment or health, and need only

be reasonable. In contrast, CERCLA allows private parties

to recover only those costs of cleanup that are necessary and

consistent with the National Oil and Hazardous Substances

Pollution Contingency Plan (“NCP”). 42 U.S.C.

§ 9607(a)(4)(B).'' Third, under RCRA Section

4 ERR. SO F.3d 1530 (10th Cir. 1995); Kaufman 4 Broad — South

Bay, Inc. v. Unisys Corp. 868 F.Supp. 1212 (N.D.Cal. 1994).

"Key Tronic v. United States, U.S__, 114 S.Ct. 1960 (1994).

°For succinct explanations of these terms, see J. Martin Robertson,

The ‘Lincoln Properties’ Case: Shifting the Burden of Response,

8 Tox.L.Rep. 1395, 1401-02. See also Adam Babich, RCRA Imminent

Hazard Authority. A Powerful Tool for Businesses, Governments. and

Citizen Enforcers, 24 Envtl.L.Rep. 10122, 10124-27 (March 1994).

"Proving consistency with the NCP can be difficult and burdensome

because of the evidence that must be offered, even though some courts

only require private party plaintiffs to demonstrate substantial compli-

12

7002(a)(1)(B), private parties may impose joint and sev-

eral liability for restitution of all response costs on the

parties who contributed to the handling, storage, treatment,

transportation, or disposal of solid or hazardous waste. See

Lincoln Properties, Lid. v. Higgins, 23 Envtl.L.Rep. 20665,

20672 (E.D.Cal. 1993) (concluding that the defendants’

liability under RCRA Section 7002(a)(1)(B) was joint and

several). And, fourth, RCRA Section 7002(¢) specifically

reasonable attorneys’ fees, expert witness fees and other

litigation expenses, to private parties who prevail or substan-

tially prevail in an action under Section 7002(a)(1)(B) of

RCRA. By contrast, private parties generally may not re-

cover attorneys’ fees associated with prosecuting cost recov-

ery actions under CERCLA. State law does not provide an

adequate remedy either.

Finally, it is important, for public policy reasons to have a

restitutionary remedy under RCRA Section

7002(a)(1)(B). The availability of restitution under Sec-

tion 7002(a)(1)(B) will promote the cleanup of contamina-

tion by private parties who, without such incentive, might

not engage in cleanup. Prompt, private cleanup was an

objective Congress intended to promote when it amended

Section 7002(a) in 1984.'? The Ninth Circuit was right to

recognize the importance of this objective.

ance with the NCP. See, e.g, Wickland Oil Terminals v. ASARCO, Inc.,

792 F.2d 887, 891-92, (9th Cir. 1986); NL Indus. v. Kaplan, 792 F.2d

896, 898-99 (9th Cir. 1986) (holding that a private-party plaintiff need

not show strict compliance with the NCP to establish consistency with

its provisions); see also 40 C.F.R. § 300.700(c)(3)(i); 55 Fed. Reg.

8666, 8858 (Mar. 8, 1990) (providing that a private-party plaintiff need

only show substantial compliance with the NCP to establish consistency

with its provisions).

“The courts have recognized that Congress amended the RCRA

citizen suit provision in 1984 to “invigorate citizen litigation” and to

“provide a private means of obtaining the same relief that the EPA has

13

Addressing Congress’ intent in Bayless Investment &

Trading Co. v. Chevron U.S.A., Inc., the Arizona District

Court noted that:

If this court were to adopt a rule that would

allow a plaintiff to obtain an injunction to

require responsible parties to clean up the

contamination but would not allow the

same plaintiff to recover the costs that he

has spent in initiating prompt [cleanup],

the court would provide future plaintiffs

with an incentive to wait until the conclu-

sion of a lawsuit before spending money to

commence remediation. Such a ruling

would frustrate clearly delineated congres-

sional objectives and be contrary to the

purposes of RCRA.

39 Envtl. Rep. Cas. 1428, 1432 (D. Ariz. May 1994).

B. The Petitioners Inappropriately Apply The Analy-

sis Under Cort v. Ash To Determine The Extent

Of Relief Available Under RCRA

Section 7002(a).

Petitioners incorrectly apply the analysis for an implied

private right of action under Cort v. Ash, 422 US. 66

(1975), to assess what relief may be available under the

RCRA citizen suit provision which is expressly set forth in

Section 7002(a) of RCRA, 42 U.S.C. § 6972(a). It is clear

that Congress, in enacting RCRA Section 7002(a), created

an express right of action for private parties to sue under

RCRA. Because of this, the Court need not conduct an

previously been authorized to seek under RCRA.” Lincoln Properties,

Lid. v. Higgins, 23 Envtl.L.Rep. 20665, 20669-70 (citing Ascon Proper-

ties, Inc. v. Mobil Oil Co, 866 F.2d 1149, 1158 (9th Cir. 1989));

Middlesex County Bd. of Chosen Freeholders v. New Jersey, 645

F.Supp. 715, 721 (D.N_J. 1986).

14

analysis under Cort v. Ash to determine whether an implied

right of action exists. The Eighth Circuit Court of Appeals

was wrong in doing so in Furrer v. Brown, 62 F.3d 1092 (8th

Cir. 1995), which was decided afier the Ninth Circuit

entered its decision in this case.

The issue before the Court is not whether a private right

of action should be implied under RCRA Sec-

tion 7002(a)(1)(B), but whether Section 7002(a)’s provi-

sion empowering the court to “order . . . such other action as

may be necessary” affords restitution to private parties. 42

U.S.C. § 7002(a) (2). See also Anderson v. Thompson, 658

F.2d 1205, 1210 n.7 (7th Cir. 1981). Clearly, “[t]he ques-

tion of what remedies are available under a statute that

provides a private right of action is ‘analytically distinct’

from the issue of whether such a right exists in the first

place.” Franklin v. Gwinnett County Public Schools, 503

U.S. 60, 65-66 (1992); Davis v. Passman, 442 U.S. 228, 239

(1979); Lieberman v. Univ. of Chicago, 660 F.2d 1185,

1186-87 & 1187, n.4 (7th Cir. 1981). Moreover, the deter-

mination of what relief is available under a private right of

action must not be considered until after a court determines

whether the private right of action exists at all. Cf Franklin

v. Gwinnett County Public Schools, 503 U.S. 60, 69 (1992)

(“Whether Congress may limit the class of persons who

have a right of action under Title [X is irrelevant to the issue

in this lawsuit. To reiterate, ‘the question whether a litigant

has a “cause of action” is analytically distinct and prior to

the question of what relief, if any, a litigant may be entitled

to receive.””)

Clearly, the Cort v. Ash analysis is an inappropriate

vehicle for determining the extent of relief available under

an ¢xpress private right of action. Indeed, other courts have

previously rejected the application of the Cort v. Ash analy-

sis to determine available remedies under a expressly cre-

ated private right of action. For example, the Eighth Circuit

15

rejected the application of the Cort v. Ash analysis in

interpreting the extent of relief provided by an express right

of action under the Education of the Handicapped Act,

which authorizes “such relief as the [district] court deter-

mines is appropriate.” See Miener v. Missouri, 673 F.2d 969,

979 (8th Cir. 1982) (quoting 20 U.S.C. § 1415(e)(2)).

The correct analysis for determining the extent of relief

available under an express right action involves statutory

interpretation, including consideration of “the statutory lan-

guage, the legislative history, and the purposes Congress

wished to achieve.” See Anderson v. Thompson, 658 F.2d

1205, 1210 (7th Cir. 1981). It does not involve using a

Cort v. Ash analysis to determine whether a private litigant

is entitled to relief under the federal statute.

The Ninth Circuit Correctly Determined That Restitution-

ary Relief Is Available To Private Parties Where Private

Parties Responded To Conditions Which May Present

An Endangerment Before Filing Suit.

Petitioners contend that the RCRA citizen suit provision

may never be used where an imminent and substantial

endangerment presented by the disposal of wastes has been

remedied before suit is filed. Petitioners argue that the

Ninth Circuit’s contrary holding is barred by this Court’s

decision in Gwaltney v. Chesapeake Bay Found., 484 U.S.

49, 52, 66-67 (1987), which held that citizen suits may not

be brought for “wholly past violations” of the Clean Water

Act.'’ Petitioners’ argument is specious.

Unlike the Clean Water Act provision, the RCRA citizen

suit provision expressly allows suits concerning past conduct.

"The Clean Water Act was formerly known as the Federal Water

Pollution Control Act (“FWPCA”).

16

Indeed, Gwaltney itself specifically cited Section

7002(a)(1)(B) of RCRA for the proposition tiat “Con-

gress has demonstrated in yet other statutory provisions that

it knows how to avoid this prospective implication by using

language that explicitly targets wholly past violations.”

Gwaltney v. Chesapeake Bay Found. 484 U.S. 49, 57

(1987). Petitioners’ attempt to rely upon Gwaltney for the

proposition that “wholly past harms” (which, of course,

cannot be meaningfully distinguished from “wholly past

violations”) are not redressable under RCRA is misplaced.

Moreover, as noted above with respect to Middlesex

County Sewerage Auth. v. National Sea Clammers Ass'n,

453 U.S. 1 (1981), the citizen suit provision of the Clean

Water Act does not contain the critical language allowing a

court to order “such other action as may be necessary.”

Accordingly, Gwaltney, like Sea Clammers, cannot be relied

on to dictate a limiting construction of that language.

Contrary to petitioners’ assertions, the statutory language

actually used in RCRA does matter, and the significant

differences between this language and the provisions of

other environmental statutes precludes an attempt to fabri-

cate an overarching “history” or “purpose” of citizen suits

that overrides the express statutory text.

Both the Eighth and the Ninth Circuits have concluded

that the “imminent and substantial endangerment” lan-

guage limits the sites as to which a RCRA action can be

filed, not the time at which such an action should be filed.

KFC Western, Inc. v. Meghrig, 49 F.3d at 521; United States

v. Aceto Agric. Chems. Corp., 872 F.2d at 1383. Petitioners

do not cite a credible authority to the contrary; instead, they

rely on Gwaltney for their argument that a RCRA suit is

barred when the imminent and substantial endangerment

has been addressed before suit is filed. Because there is no

dispute here that the site has posed an “imminent and

17

substantial endangerment,” RCRA was appropriately uti-

lized with respect to the contamination at the site.

Petitioners’ narrow interpretation of the “may present an

imminent and substantial endangerment” lan,uage of Sec-

tion 7002(a)(1)(B) would effectively foreclose all lawsuits

where a plaintiff took the initiative to clean up contamina-

tion before it dispersed. Prospective plaintiffs would have to

litigate their RCRA claims before they could clean up

contamination to preserve their ability to recover restitution-

ary relief. Meanwhile, contamination would continue to seep

into the soil and groundwater. Clearly, this is not what

Congress had in mind when it enacted RCRA. Congress

sought to facilitate the prompt abatement of contamination

which may present endangerment to health or the environ-

ment when it enacted RCRA.

18

Conclusion

For all these reasons, the decision of the United States

Court of Appeals for the Ninth Circuit in this case should

be affirmed.

Dated: December 7, 1995.

Respectfully submitted.

WILLIAM N. KAMMER

Counsel of Record

J. MARTIN ROBERTSON

ROBERT C. LONGSTRETH

LARRY J. BRADFISH

GRAY CARY WarRE &

FREIDENRICH

A Professional Corporation

401 B Street, Suite 1700

San Diego, California 92101

619-699-2711

400 Hamilton Ave.

Palo Alto, California 94301

415-328-6561

Counsel For Kaufman And

Broad Home Corporation

And Kaufman And Broad —

South Bay, Inc.