# 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

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No. 95-83

: In the Supreme ptr I

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0633%3A14. Public record. Not legal advice.