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

ae No. 95-83

: Supreme Court of the United States

October Term, 1995

t ALAN MEGHRIG AND MARGARET MEGHRIG,

SA Petitioners,

Cis . vs.

“hae KFC WESTERN, INC.,;

fe “On Writ of Certiorari to the United States

ae | Court.of Appeals For the Ninth Circuit

~)*. BRIEF ROR THE STATE OF LOUISIANA

ok: TRANSPORTATION AND Ml

[= AS AMICUS CURIAB IN SUPPORT OF RESPONDENT

‘ Edgar D. Gankendorff

: Robert A. Mahsook, Jr.

‘ Victoria A. Guidry

é Lawrence E. Marino

% Oats & HUDSON

. ‘ Suite 400, Gordon Square

100 East Vermilion Street

9 . Lowisians 70501

4 . - (318) 233-1100

sae |

“by Counsel for Amicus Curiae

<p, a State of Louisians

eae a Through Rs Department of

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................

INTEREST OF THE AMICUS CURIAE ...........

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

I. SECTION 6972(A)(1)(B) OF RCRA PROVIDES

PRIVATE CITIZENS WITH THE RIGHT TO

RESTITUTION FROM THE RESPONSIBLE PARTIES

FOR THE COSTS OF REMEDIATING HAZARDOUS

WEE. x ecole ck oe ARR dk ok GS dk eos

A. Remediation Expenditures May Be

Recovered Pursuant to the RCRA

Citizen’s Suit Provision .............

1. The Plain Language of the

Citizen’s Suit Provision

Authorizes Restitutionary Relief. . . .

2. The Purposes For Which RCRA

Was Enacted Are Advanced By An

Interpretation of the Citizen’s

Suit Provision Permitting

3. Plaintiffs Are the Intended

Beneficiaries of the Citizen’s

SS > re

4. The Reasonableness of Remediation

Expenditures Pursuant to RCRA

Can Be Assessed Adequately.

of Restitution Must Also Be

DT £4 Sib os poe be e-e ee

Il. THE "IMMINENT AND SUBSTANTIAL

ENDANGERMENT" Must EXist WHEN

REMEDIATION IS INITIATED. ...............

Ill. RECOVERY OF REMEDIATION EXPENDITURES IS

PROPER UNDER RCRA REGARDLESS OF THE

APPLICABILITY OF CERCLA. ..............

A. CERCLA Has Not Preempted the Fields of

Remediation or Recovery of Remediation

ES Se eee eee

B. CERCLA and RCRA Are Independent

Statutes Which Apply to Different

Classes of Hazardous Materials. ........

C. RCRA Contains No Exclusion Comparable

in Scope or Substance to the CERCLA

Petroleum Exclusion. ...............

D. Leaking Underground Gasoline Storage

Tanks Are Regulated Pursuant to RCRA. . .

EEE OES Sta ee

B. Equity Permits Restitution oy Remediation

Expenditures in the Context of a RCRA

GRE AD Shh ce bem cece cccecs

l. The Courts Have the Inherent

Power to Apply the General

Principles of Equity and to

Provide Equitable Restitution.

2. The Language of RCRA Evidences

the Availability of Equitable

le ee

3. Reason Leads to the Logical

Conclusion That Because the

Equitable Defense of Laches Is

Available, the Equitable Remedy

.

14

17

22

22

. 26

TABLE OF AUTHORITIES

CASES

Agricultural Excess & Surplus Ins. Co. v. A.B.D.

Tank & Pump Co.,

878 F.Supp. 1091 (E.D. Ill. 1995) .....

Amoco Oil Co. v. Borden, Inc.,

889 F.2d 664 (Sth Cir. 1989).........

Bayless Investmt. & Trading Co. v. Chevron U.S.A.,

39 E.R.C. (B.N.A.) 1428 (D. Ariz. 1994) _.. .

Blood v. Fleming,

161 F.2d 292 (10th Cir. 1947) .......

Bollinger and Boyd Barge Services, Inc. v. Motor

Vessel, Captain Claude Bass,

576 F.2d 595 (Sth Cir. 1978). ........

Chapman v. Houston Welfare Rights Org..,

441 U.S. 600, 99 S.Ct. 1905 (1979) __..

Citizens and Landowners Against the Miles City/New

Underwood Powerline v. Secretary, United States

Department of Energy,

683 F.2d 1171 (8th Cir. 1982) ........

City of Chicago v. Environmental Defense Fund,

__ U.S. _, 114 S.Ct. 1588 (1994) ...........

Costello v. United States,

305 U.S. 265, 81 S.Ct. 534 (1961) ...........

Cowart v. Wicklos Drilling Co.,

__ US. __, 112 S.Ct. 2589(1992) ..........

13

17

Craig Lyle Lid. Partnership v. Land O'Lakes, Inc.,

877 F.Supp. 476 (D. Minn. 1995).......... 22, 27

Hecht Co. v. Bowles,

321 U.S. 321, 64 S.Ct. 587 (1944) ....... 8, 13, 15

Johnson v. Kay,

860 F.2d 529 (2d Cir. 1988) .........-- ee ees 7

KFC Western, Inc. v. Meghrig,

49 F.3d 518 (9th Cir. 1995) ............ passim

Morrissey v. Bologna,

123 So.2d 537 (Miss. 1960),

cert. denied, 81 S.Ct. 1091 ...........25255- 13

Niecko v. EMRO Marketing Co.,

769 F.Supp. 973 (E.D. Mich. 1991) .......... 23

Porter v. Warner Holding Co.,

328 U.S. 395, 66 S.Ct. 1086 (1946) ........... 8

Gwaltney of Smithfield, Lid. v. Chesapeake Bay

Foundation, Inc.,

484 U.S. 49, 108 S.Ct. 376 (1987) ............ 8

United States v. Aceto Agricultural Chemicals Corp.,

872 F.2d 1373 (8th Cir. 1989) ............ 20, 21

United States v. Conservation Chemical Company,

619 F.Supp. 162 (W.D. Mo. 1985) ........... 18

United States v. Dickerson,

640 F.Supp. 448 (D. Md. 1986) .............. 18

United States v. Mottolo,

605 F.Supp. 898 (D.N.H. 1985)............. 18

iv

United States v. Reilly Tar and Chemical Co.,

$46 F.Supp. 1100 (D. Minn. 1982)........... 17

Wilshire Westwood Associates v. Atlantic Richfield

Corp.

881 F.2d 801 (9th Cir. 1989)............... 23

Winston v. Shell Oil,

861 F.Supp. 713 (C.D.Ill. 1984) ............ 27

Wyandotte Transp. Co. v. United States,

389 U.S. 191, 88 S.Ct. 379 (1967) ........... 16

Zands v. Nelson,

779 F.Supp. 1254 (S.D. Cal. 1991) ......... 22, 27

STATUTES

Comprehensive Environmental Resource Conservation,

Liability and Recovery Act of 1980,

Pub. L. No. 96-510, codified at 42 U.S.C. § 9601, et seq. 3, 24

ween ee oe est eee ah 15, 22

a re ok PN ae 21

Hazardous and Solid Waste Amendments of 1984,

Pub.L. No. 98-616, 98 Stat. 3221 (1984) ........ 6, 17, 24

Resource Conservation and Recovery Act, 42 U.S.C. § 6901, ef

P66 Ober ee O04 06s bs Wee eedaecoeneeces 2

ee eee. ee wie 9

I a Tees TR a Hee. 3 9

42 U.S.C. §@O2I@NQNA) ..... «2.2 ee ee ee ee 24

42 U.S.C. § G921(DM 2B) .. ©. ee eee 24

42 U.S.C. § 6972(aM IMB) ... 2... ee eee eee ees passim

42 U.S.C. § GBT2(a) (1984)... ee eee 6

GOB. CETTE .cccccccctesccssecesecs 14, 15

42 U.S.C. 6 GOP1, BOR. 0 ccc cece cence 26

Superfund Amendment and Reauthorization Act of 1986,

Pub.L. No. 99-499, 100 Stat. 1613 (1986) ........... 17

La. R.S. 30:2271(4)(c)3, 15

Cal.Health & Safety Code § 25317 .... 2... ee eens 15

MISCELLANEOUS

Robert N. Aguilez, Refining CERCLA’s Petroleum

Exclusion, 7 TULANE ENV. L.J. 41, 64 (1993) ......... 26

27 Am Jur. 2d Equity § 1... 2... 66 ee eee 12

27 Am Jur. 2d Equity §2 ....- 66-6. eee ee eee 12

27 Am Jur. 2d Equity § 23... ©. 2 6 ee es 11

27 Am Jur. 2d Equity § 86 ©... ©. 6 ee es 12

27 Am Jur. 2d Equity § 87 .... 2. 2 es 12

27 Am Jur. 2d Equity § 104 ©... 2.1 ees 14

27 Am Jur. 2d Equity §119 ... 2.6.6 eee eee 18

27 Am Jur. 2d Equity § 120 ©... 2... eee ee 13

vi

fo eS se 12

ee) 13

James Baller, The Petroleum Exclusion - Stronger

Than Ever After Wilshire Westwood, 43 SOUTHWESTERN

ie DE ES BRU h eG eed et eersdetices 23

BLACK’S LAW DICTIONARY (6th ed. 1990) ......... 7, 12

GBR ie rere 13

Fe dah aes'e. 12

ES ae 13

GID es kc caccacenecwoes 11, 12

ne I 2 ar ae) a te ced d 11

ae al a al a ae 13

ee 18

Rn 13

SD on esc cca ce ccccececns 17

I 7

126 Cong. Rec. H11,976 (Dec. 3, 1980) ............ 24

130 Cong. Rec. $2028 (Feb. 29, 1984) ............, 27

S. COOKE, THE LAW OF HAZARDOUS WASTE (1995) ... . . 21

EPA, Clarification of the Regulatory Determination

for Wastes from the Exploration Development and

vii

Production of Crude Oil, Natural Gas and Geothermal

Energy, 58 Fed. Reg. 15,284 (March 22, 1993) ........ 26

EPA, EXECUTIVE SUMMARIES, REPORT TO CONGRESS:

MANAGEMENT OF WASTES FROM THE EXPLORATION,

DEVELOPMENT, AND PRODUCTION OF CRUDE OIL,

NATURAL GAS, AND GEOTHERMAL ENERGY,

PO. OPE GRP cme i se cesucsvnceevesensn 25

EPA General Counsel, Scope of CERCLA Petroleum

Exclusion Under Sections 101 (14) and 104(a)(2) 5

Ee CUTE chat e ad debecteesrdeevecneeve 23

50 Fed. Reg. 13,456 (April 4, 1985) ...........565.. 23

51 Fed. Reg. 8,206 (March 10, 1986) .............. 23

House Conf. Rep. No. 96-1444, Joint Explanatory

Statement of the Committee of Conference,

reprinted in 1980 U.S.C.C.A.N. 5019, S031... ....... 25

RESTATEMENT OF RESTITUTION (1937) .............. 13

WEBSTER’S NEW COLLEGIATE DICTIONARY (1979) ....... 7

Vili

No. 95-83

In The

Supreme Court of the United States

October Term, 1995

ALAN MEGHRIG and MARGARET MEGHRIG,

Petitioners,

vs.

KFC WESTERN, INC.,

» Respondent.

On Writ of Certiorari to the United States

Court of Appeals For the Ninth Circuit

BRIEF FOR THE STATE OF LOUISIANA

THROUGH ITS DEPARTMENT OF

TRANSPORTATION AND DEVELOPMENT

AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICUS CURIAE

The Louisiana Department of Transportation and

Development ("DOTD"), an agency of the State of Louisiana

charged with the construction and maintenance of highways,

frequently encounters hazardous waste in the rights-of-* ay that it

has purchased or expropriated. Typically, when such materials are

discovered during highway construction, compliance with

Louisiana and federal environmental laws necessitates immediate

cessation of construction, pending investigation and/or remediation

of the site. When construction is stopped, DOTD is usually

obligated under industry-standard highway construction contracts

to pay “delay damages” to the contractors building the highways.

DOTD incurs significant costs when forced to delay construction

to comply with environmental laws.

Once a site is determined to contain hazardous materials,

DOTD must decide whether to remediate immediately at its own

expense in order to minimize the threat to human health and the

environment as well as the contractual delay damages, or to permit

the threat to remain unabated and to incur significantly greater

delay damages by allowing the highway construction site to remain

closed until the responsible parties are identified and mandated to

remediate the site.

DOTD has consistently and reasonably opted in favor of

the former by remediating sites as quickly as possible and then

recommencing highway construction. To date, DOTD has

encountered approximately forty (40) sites at which remediation

costs have been incurred. DOTD estimates that it has spent tens

of millions of state taxpayer funds and federal matching dollars in

remediating these sites. This money would otherwise have been

used to repair Louisiana's highways, complete unfinished

highways, or construct new highways. DOTD cannot

overemphasize the fact that it is in no way responsible for the

presence of the hazardous materials at these sites. Moreover, it is

suggested that the highway departments of the other forty-nine (49)

States may be similarly situated with respect to environmental

remediation, and that the combined financial cost to the nation’s

taxpayers is staggering.

DOTD is aggressively pursuing responsible parties to

recover the funds that DOTD has spent on remediation of the

hazardous waste it has encountered. The holding of the United

States Court of Appeals for the Ninth Circuit in the present case

confirms that the Resource Conservation and Recovery Act

("RCRA"), 42 U.S.C. § 6901 ef seq., confers upon private

citizens, including government agencies, the valuable right to

recover the costs of remediation from the parties who are truly

responsible for the presence of the hazardous materials. KFC

Western, Inc. v. Meghrig, 49 F.3d 518, 521 (9th Cir. 1995).

DOTD’s ability to recover these costs will be seriously

jeopardized if this Honorable Court does not affirm the Ninth

Circuit’s holding. Louisiana is a major petroleum-producing state,

with large petroleum refining and petrochemical industries.

Therefore, the “petroleum exclusion" contained in_ the

Comprehensive Environmental Response, Compensation, and

Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., 42 U.S.C.

§ 9601(14), and Louisiana’s analogous state environmental law,

La. R.S. 30:2271(4)(c), may render recovery of remediation

expenses at many sites difficult or impossible. Furthermore, as the

Ninth Circuit noted, state "common law” remedies (which are

necessarily statutory under Louisiana’s civil law system), such as

nuisance, trespass, negligence, and breach of warranty, are

severely limited as a result of the difficulties of proof, short

statutes of limitation, and the fact that the hazardous materials

present at the sites were usually placed there by or with the

acquiescence of the former owners of the property.

DOTD fully intends to continue to act in the best interest

of the public health and the environment, but its funds are not

unlimited, particularly in light of the current trend toward reducing

governmental budgets. The facts of the present case involve only

a party who has encountered hazardous waste in a single instance.

Many entities encounter hazardous waste sites repeatedly, such as

state highway departments, other government agencies, land

development companies, and gas or power companies when

constructing pipelines or power transmission lines. Such entities

cannot fund environmental remediation indefinitely, without

restitution of these funds. Precluding recovery of these funds by

DOTD (and other entities that encounter hazardous waste

repeatedly) will therefore ultimately thwart efforts to curtail

endangerment to human health and the environment, because such

entities will no longer be able to afford to remediate these sites.

Accordingly, DOTD respectfully represents to this

Honorable Court that it will suffer significant losses if the opinion

below is not affirmed. Specifically, DOTD will be left without an

adequate state, federal, or equitable remedy for recovery of the

3

state and matching federal dollars that it has expended in

remediating hazardous waste for which other parties should be

responsible under RCRA.

SUMMARY OF ARGUMENT

The plain language of RCRA'’s citizen suit provision,

conferring authority upon the courts to “restrain” responsible

parties, to order such parties to “take such other action as may be

necessary,” or “both,” clearly authorizes not only mandatory and

prohibitory injunctive relief, but also restitutionary relief. Given

RCRA's beneficial purpose of speedy remediation of hazardous

waste sites presenting a threat to the public health or the

environment, the “most natural” interpretation of the residual

power is that it authorizes the courts to require the parties

responsible for the improper disposal of hazardous waste to repay

others who have remediated the contaminated sites in question.

This interpretation maximizes private citizens’ incentive to

remediate and minimizes the delay within which remediation may

be performed.

Citizens’ suits under RCRA invoke the courts’ traditional

~ powers of eyuity, and therefore courts may order the equitable

remedy of restitution pursuant to RCRA. Equity may require

repayment by a person whose duty to the public has been

performed by another, because equity resolves disputes in

accordance with the principles of justice and fairness. Justice

would be frustrated if an innocent party were forced to bear the

ultimate responsibility for and cost of remediating hazardous waste

properly attributable to another party. Moreover, there is no

functional difference between requiring a responsible party to

remediate a site, which Petitioners admit is permissible, and

requiring such a person to repay another who has already

remediated the site.

RCRA expressly preserves all of the citizen's suit

plaintiff's rights to relief, including equitable relief. Thus, the

courts’ authority to order the responsible parties to take “such

other action as may be necessary” includes equitable relief, and the

remedy of restitution should be available to citizen's suit plaintiffs,

in the proper circumstances.

Furthermore, the "imminent and substantial endangerment”

necessary to give rise to liability under RCRA’s citizen's suit

provision need exist only at the time remediation is undertaken,

because any other interpretation would frustrate the purposes for

which the citizen's suit provision was enacted.

Finally, it is irrelevant to the propriety of claims for

recovery of remediation expenditures under RCRA whether

recovery is also permissible under CERCLA. CERCLA does not

preempt the field of remediation or recovery of remediation

expenditures. RCRA and CERCLA are entirely independent

statutes, and therefore, even if the leaded gasoline at issue in the

present case is properly exempted from CERCLA as a result of

CERCLA’s petroleum exclusion, recovery of KFC’s remediation

expenditures under RCRA is proper because RCRA contains no

such restriction.

ARGUMENT

I. SECTION 6972(A)(1)(B) OF RCRA PROVIDES PRIVATE

CITIZENS WITH THE RIGHT TO RESTITUTION FROM THE

RESPONSIBLE PARTIES FOR THE COSTS OF REMEDIATING

HAZARDOUS WASTE.

A. Remediation Expenditures May Be Recovered

Pursuant to the RCRA Citizen's Suit Provision.

RCRA, prior to its amendment in 1984, authorized private

citizens to file suit only to “enforce [a] regulation or order, or to

order the Administrator to perform such act or duties as the case

may be.” 42 U.S.C. § 6972(a) (1984). The 1984 amendments

substantially broadened the scope of the citizen’s suit provision by

adding subsection 6972(a)(1)(b), pursuant to which a citizen may

obtain a court order:

to restrain any person who has contributed or who

is contributing to the past or present handling,

storage, treatment, transportation, or disposal of

any solid or hazardous waste [which may present

an imminent and substantial endangerment to

health or the environment], to order such person to

take such other action as may be necessary, or

both.

Hazardous and Solid Waste Amendments of 1984, Pub.L. No. 98-

616, 98 Stat. 3221 § 402, codified at 42 U.S.C. § 6972(a)(1)(B).

The Ninth Circuit in its opinion in the present case held

that the relief contemplated by the phrase, "... such other action as

may be necessary,” includes restitutionary relief, such as

repayment by the responsible party of the costs of remediation

incurred by the citizen’s suit plaintiff. KFC, 49 F.3d at 521.

Petitioners, however, argue that RCRA's citizen's suit provision

authorizes only injunctive relief, and only with respect to an

"imminent endangerment" in existence at the time suit is filed.

Brief for the Petitioner at 13-18, Meghrig v. KFC Western, Inc.,

6

__ U.S. __ (19__) (No. 95-83) ("Petitioners’ Brief"). Petitioners’

interpretation of the statute is unduly narrow, and supported by

neither RCRA’s language nor its purpose.

1. The Plain Language of the Citizen’s Suit Provision

Authorizes Restitutionary Relief.

Judicial inquiry as to the proper interpretation of a statute

must end with its language when the meaning is clear. Cowart v.

Wicklos Drilling Co., _ U.S. ___, 112 S.Ct. 2589, 2594 (1992).

RCRA’s citizen’s suit provision authorizes courts to award

plaintiffs three (3) forms of relief: (1) "... to restrain any person";

(2) "... to order such person to take such other action as may be

necessary"; or (3) "both." 42 U.S.C. § 6972(a)(1)(B). The plain

language of the statute, authorizing courts to order any action that

is "necessary", logically includes the restitutionary relief sought by

KFC because the definition of “necessary” is not limited by the

language of the provision to injunctive relief.

The relief contemplated by the authorization "... to restrain

any person" indisputably includes injunctive relief, as Petitioners

concede. Petitioners’ Brief at 14. Injunctive relief includes both

prohibitory injunctions, which preserve the status quo, and

mandatory injunctions, which disturb the status quo by ordering

affirmative relief. Johnson v. Kay, 860 F.2d 529, 541 (2d Cir.

1988); 43 C.J.S. Injunctions § 7 ("an injunction is mandatory or

[prohibitive] according to whether it directs a person to do a

particular thing or to refrain from doing an act"); BLACK’s LAW

DICTIONARY 784-85 (6th ed. 1990).

To "restrain" means to “prevent from doing" or to “limit,

restrict, or keep under control.” WEBSTER’S NEW COLLEGIATE

DICTIONARY 979-80 (1979). The retrospective language contained

in the citizen’s suit provision authorizing a court to order restraint

of “any person who has contributed ... to the past ... handling,

storage, treatment, transportation, or disposal of any solid or

hazardous waste" that presents an imminent and substantial

endangerment to health or the environment, is expressly directed

to past conduci. 42 U.S.C. § 6972(a)(1)(B) (emphasis added). An

order issued with respect to such conduct would necessarily require

7

affirmative action to abate the endangerment because the person to

whom such an order would be issued would no longer be doing

anything that could be prohibited. Consequently, the authorization

to "restrain" includes the power to issue a mandatory injunction

ordering a responsible party to remediate the endangerment.

Accordingly, both prohibitory and mandatory relief is

contemplated by the phrase, "... to restrain any person,” and

therefore the phrase, "... such other action as may be necessary,”

may not reasonably be interpreted, as Petitioners urge, Petitioners’

Brief at 14, merely to restate the authorization of mandatory

injunctive relief already provided by the former phrase. See Porter

v. Werner Holding Co., 328 U.S. 395, 399, 66 S.Ct. 1086, 1089

(1946); Hecht Co. v. Bowles, 321 U.S. 321, 328, 64 S.Ct. 587,

591 (1944) (authority to grant injunctive relief or “other order”

contemplates a remedy other than an injunction, including equitable

relief). Such redundancy is particularly unlikely to represent

Congressional intent in light of the final words of the sentence, “or

both.” The inclusion of these words indicates unequivocally that

the preceding phrases represent alternative remedies, and that

neither constitutes a reiteration of the other. Rather, further relief

is clearly authorized.

Contrary to Petitioners’ arguments, Petitioners’ Brief at 35,

the Ninth Circuit has not created a new right of action by

implication with its decision in this case; it has simply recognized

an alternative remedy already provided by Congress.

2. The Purposes For Which RCRA Was Enacted Are

Advanced By An Interpretation of the Citizen's

Suit Provision Permitting Recovery of Remediation

Expenditures.

When the language of a statute is ambiguous, a court must

adopt the “most natural" interpretation of that provision. Gwaltney

of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 US.

49, 57, 108 S.Ct. 376, 381 (1987). As in all cases of statutory

construction, the words of the statute must be interpreted in light

of the purposes Congress sought to serve. Chapmu. v. Houston

Welfare Rights Org., 441 U.S. 600, 608, 99 S.Ct. 1905, 1911

(1979). Therefore, even if the language of RCRA’s citizen's suit

provision were ambiguous, its proper interpretation may be

ascertained only by reference to the purposes for which RCRA and

its citizen's suit provision were enacted.

One of RCRA'’s stated purposes is to “assurfe] that

hazardous waste management practices are conducted in a manner

which protects human health and the environment." 42 U.S.C. §

6902(a4). Hazardous waste disposed of in a manner that

endangers health or the environment violates this policy, and must

not be permitted to remain unabated. Further, Congress

established in RCRA a national goal of protecting the public from

the dangers associated with improper handling of hazardous wastes,

by stating that:

The Congress hereby declares it to be the national

policy of the United States that, wherever feasible,

the generation of hazardous waste is to be reduced

or eliminated as expeditiously as possible. Wastes

that are nevertheless generated should be treated,

stored or disposed of so as to minimize the present

and future threat to human health and the

environment.

42 U.S.C. § 6902(b). This Honorable Court, too, has recognized

that RCRA’s goals are to encourage resource recovery and protect

against contamination. City of Chicago v. Environmental Defense

Fund, _U.S. _., 114 S.Ct. 1588, 1594 (1994). Clearly, these

goals are best and most fully achieved when hazardous waste

constituting an imminent endangerment is remediated as quickly as

possible.

The purposes for which RCRA was enacted are also

furthered by an interpretation of the phrase "... such other action"

to include restitution of remediation costs to a citizen's suit plaintiff

by the parties responsible for the presence of the waste. Such an

interpretation encourages innocent parties to remediate

contaminated land voluntarily, secure in the knowledge that they

will be repaia by those responsible. Landowners will be more

willing to remediate imminent endangerments with respect to which

9

federal, state, and local environmental authorities have declined to

take action, whether as a result of resource constraints or for other

reasons, if the landowners can expect to recover their costs. Even

more importantly, permitting such recovery speeds the process of

abating the dangers presented by hazardous waste, because

from the responsible parties. These benefits would be lost if the

phrase were interpreted as sthorizing only injunctive relief.

Under the latter interpretation, the danger presented by the waste

would continue to threaten the public health and the environment

until responsible parties could be identified, sued, and mandated to

remedy the problem.

Given RCRA's purpose of ameliorating the problems posed

by the improper disposal of hazardous waste, and the fact that this

purpose is best advanced by interpreting the statutory language to

include the award of restitutionary relief, interpreting the citizen's

suit provision, "... such other action as may be necessary,” as

authorizing recovery of remediation expenditures is the “most

natural” reading of that passage.

3. Plaintiffs Are the Intended Beneficiaries of the

Citizen's Suit Provision.

permissible only to supplement the regulatory role of the federal

government as private “attorneys general” or “enforcers” of

RCRA. Petition for Writ of Certiorari at 28, Meghrig v. KFC

Western, Inc, _ US. _ (19__) (No. 95-83) ("Petition for

Writ"). This position is flatly contradicted by the language of

RCRA’s citizen's suit provision, which states that “any person may

commence a civil action on his own behalf..." 42 U.S.C. §

6972(a)1)(B). While RCRA as it existed prior to 1984 permitted

a private citizen to sue only to enforce an order or regulation, the

addition of the language of Subsection 6972(a)(1)(B)

unambiguously grants to private citizens a right of redress, and not

merely a responsibility to be exercised charitably for the good of

all humanity or not at all. Accordingly, private citizens may

10

|

benefit as a result of pursuing their claims under RCRA, to the

extent of recouping their remediation expenses.

Furthermore, the word “necessary” in the phrase, “... such

other action as may be necessary,” refers to the citizen bringing the

suit, as the phrase occurs in the section entitled “Citizens’ Suits.”

42 U.S.C. § 6972. The relief that may be awarded thereunder

should be that which is necessary to citizen's suit plaintiffs, i.e.,

that which is necessary to restore them to their original positions.

4. The Reasonableness of Remediation Expenditures

Pursuant to RCRA Can Be Assessed Adequately.

Petitioners also argue that RCRA’s lack of a mechanism

for determining which of the remediation expenditures by plaintiffs

are recoverable indicates that RCRA was not intended to be used

as a cost recovery vehicle. Petitioners’ Brief at 24. This position

is untenable, because the determination whether expenditures are

recoverable under RCRA can be made in the same manner as in

any other area of the law, through the traditional means of

hearings, expert testimony, introduction of evidence as to the

reasonableness of the expenditures, and the application of

remedy, as discussed infra, and therefore only “reasonable” or

“fair” expenditures may be recovered thereunder. 27 AM. JUR. 2D

Equity §23; 30A C.J.S. Equity §§ 94-95. Significant remedial

activity has been undertaken throughout the United States in recent

years, primarily as a result of the impact of CERCLA and RCRA,

creating a large body of knowledge regarding the cost and

character of appropriate remediation expenditures. Experts in

remediation and remediation technology can opine on the basis of

knowledge and experience as to the necessity or reasonableness of

particular remediation procedures. Moreover, CERCLA’s National

Contingency Plan provides a valuable yardstick against which a

finder of fact can measure the reasonableness of remediation

undertaken pursuant to RCRA. The absence of a statutory scheme

within RCRA by which to determine whether remediation

expenditures were proper is irrelevant to the propriety of

permitting the recovery of such expenditures.

Finally, permitting RCRA citizen's suit claims with respect

to underground storage tanks ("USTs") will not, as Petitioners

allege, Petition for Writ at 17, remove such claims improperly and

en masse from state to federal court. The RCRA citizen’s suit

provision authorizes recovery of remediation expenditures only

with respect to “imminent endangerments,” 42 U.S.C. §

6972(a(1)(B), and therefore only suits in which there is an

imminent endangerment can be shifted to federal court from state

court. The federal courts will not be overwhelmed by remediation

claims because only a fraction of hazardous waste sites present an

imminent endangerment within the meaning of RCRA.

Additionally, it must be remembered that RCRA causes of action

may be sued upon in state court. More importantly, however, it

would be inappropriate to interpret a statute in a particular manner

purposefully to ensure that fewer citizens will be able make use of

it, especially when the statute has a purpose as beneficial as the

remediation of imminent endangerment to human health or the

environment.

B. Equity Permits Restitution of Remediation

ee fo ae ap?

t.

KFC may also obtain restitution of its remediation

expenditures pursuant to the courts’ broad, inherent authority in

equity.

_ Equity is a system of jurisprudence that resolves disputes

according to the dictates of justice, or fairness, rather than

according to the strictly formulated rules of the common law. 27

AM. JuR. 2D Equity §§ 1, 121; BLACK’s LAW DICTIONARY 540

(6th ed. 1990). Equity applies when the law does not provide an

adequate remedy, and proceeds flexibly, case-by-case and on a

highly fact-specific basis, as fairness necessarily depends heavily

upon the particular facts of a given situation. See 27 AM. JuR. 2p

Equity §§ 2, 86-87; 30A C.J.S. Equity §§ 20, 94.

12

Equitable relief, in the form of equitable restitution of

remediation expenditures, is available in the context of a RCRA

citizen's suit action. The award of equitable restitution is properly

awarded through the courts’ inherent equitable power to do justice,

as well as under the statutory language preserving the right to

equitable relief pursuant to RCRA itself.

1. The Courts Have the Inherent Power to Apply the

General Principles of Equity and to Provide

Where there is statutory law, equity follows the law. 27

AM. Jur. 2D Equity § 123; 30A C.J.S. Equity § 118.

Nevertheless, even when an area of substantive law is addressed by

statute, the courts retain their inherent jurisdiction in equity unless

the statute specifically restricts that jurisdiction. Porter, 328 U.S.

at 39°: 30A C.J.S. Equity § 6(c). Equity goes beyond the statute

to provide the necessary remedy when the given legal procedure is

inadequate, provided that it is just to do so. Bollinger and Boyd

Barge Services, Inc. v. Motor Vessel, Captain Claude Bass, 576

F.2d 595, 597-98 (Sth Cir. 1978); and Morrissey v. Bologna, 123

So.2d 537, 543 (Miss. 1960), cert. denied, 81 S.Ct. 1091. Equity

will not suffer a wrong to be without a remedy. 27 AM. JUR. 2D

Equity § 120; and 30A C.J.S. § 120.

The equitable remedy of restitution, or repayment for costs

expended, is available when a person performs another’s duty to

the public, even without the other’s knowledge or consent, when

the former intends to charge the latter for the services, and the

performance is necessary to the public safety. RESTATEMENT OF

RESTITUTION §§ 114, 115 (1937). Restitution should be granted

when good conscience demands it. Hecht, 321 U.S. at 326; Blood

v. Fleming, 161 F.2d 292, 296 (10th Cir. 1947); 30A CJS.

Equity § 93. Conscience demands that the party who causes harm

should pay to remedy the damage. Accordingly, under the proper

circumstances, equity will require that the party who is responsible

for the creation of an imminent and substantial endangerment must

remediate the hazardous waste causing the danger. Petitioners

13

admit that this result is proper in the context of a citizen's suit

under RCRA. Petition for Writ at 11.

The next logical step, however, is to require the

responsible party to repay the innocent citizen who actually

undertook the remediation. There is no logical or functional

difference between payment for remediation and repayment to an

innocent third person who has paid for the remediation; the same

result of requiring the person causing the harm to bear the expense

of remediating the damage is obtained either way. Thus,

restitution represents the fair and equitable resolution required by

good conscience, and it is an appropriate equitable remedy under

RCRA.

Repayment is simply shifting the burden of remediation

back to the party who is ultimately responsible for the presence

(and therefore the remediation) of the hazardous waste. Such

restitution is more nearly akin to repayment of a debt than to

payment of damages. Thus, in the present case, KFC seeks only

repayment of a debt due as a result of KFC having paid for

remediation that should have been paid by the Meghrigs (assuming

for purposes of this case, as we must, that the factual allegations

of KFC’s Complaint are true).

Furthermore, courts go much further to provide relief in

furtherance of the public interest than when purely private interests

are involved. 27 AM. JUR. 2D Equity § 104. The compelling

public interest in speedy remediation of hazardous waste is a

critical consideration supporting the award of restitutionary relief

in the present case.

2. The Language of RCRA Evidences the Availability

of Equitable Restitution.

Two separate components of RCRA’s citizen’s suit

provision evidence Congressional intent to allow courts to retain

their traditional powers of equity with respect to citizen suits, and

to provide the equitable relief that justice demands.

First, 42 U.S.C. § 6972(f) provides that:

14

Nothing in this section [the citizen’s suit provision] shall

restrict any right which any person (or class of persons)

may have under any statute or common law to seek

enforcement of any standard or requirement relating to the

management of so'id waste or hazardous waste, or to seek

any other relief (including relief against the Administrator

or a State agency).

Subsection 6972(f) clearly leaves available to the courts the ability

to provide “any other relief,” including equitable relief. This

language does not preclude the exercise of the court’s equitable

powers, but rather explicitly preserves such remedies.

Second, the passage describing the relief that may be

awarded, "... such other action as may be necessary,” 42 U.S.C.

§ 6972(a)(1)(B), is broad and open-ended. The citizen's suit

provision indisputably confers the ability to award injunctive relief,

an equitable remedy. See Hecht, 321 U.S. at 329. However,

injunctions represent only one of the permissible forms of relief

available in equity. Limiting the interpretation of this phrase to

injunctive relief would be reading into the statute restrictions that

do not exist. The statute does not limit the type of relief available,

but instead specifically provides for authority to require responsible

parties to take “other actions”.

The Ninth Circuit’s observation that KFC would be denied

all right to recover its costs of remediation if RCRA is not

construed to provide such relief, KFC, 49 F.3d at 524, is entitled

to considerable weight. Petroleum and its fractions are unregulated

under CERCLA and many state hazardous substance laws,

including those of California and Louisiana. 42 US.C. §

9601(14); Cal.Health & Safety Code § 25317; La. RS.

30:2271(4)(c). The hazardous waste in question in the present case

was gasoline, a petroleum product, and therefore recovery may be

difficult or impossible to obtain under CERCLA and analogous

state laws.

Further, as the Ninth Circuit properly recognized, the tort

remedies that are available to plaintiffs in KFC’s position are

largely inadequate, because of short statutes of limitation,

difficulties of proof, and court delays. KFC, 49 F.3d at 523.

15

Moreover, negligence is nearly impossible to prove, given the

historical standards for hazardous waste disposal, many-of which

are unsatisfactory according to modern disposal standards, and the

difficulty of establishing the reasonableness of waste disposal

methods decades in the past. Trespass and nuisance causes of

action are useless in many or most of these cases because the

hazardous waste was usually placed on the property by its owner

at the time or by a person otherwise privileged to do so. As

CERCLA does not apply to sites contaminated by hazardous waste

comprised of petroleum or petroleum fractions, potentially

including gasoline, regardless of the extent of the threat to human

health or the environment posed thereby, such sites may be

remediated only through RCRA. Thus, the need to encourage

remediation of petroleum-derived hazardous waste through RCRA

is particularly compelling.

As further noted by the Ninth Circuit, precluding recovery

of remediation expenses under RCRA would deprive “the very

citizens who most deserve the remedy, namely innocent citizens,

like KFC,” of the right to restitution of expenditures for

compliance with the environmental laws with respect to

environmental hazards that they did not create. KFC, 49 F.3d at

523. Instead, the persons who actually generated, transported, or

disposed of the hazardous waste would be fully insulated from

liability for their actions, and the entire cost of their actions would

fall upon innocent parties. Restitution is available to prevent

wrongdoers from shifting responsibility for the consequences of

their actions onto innocent victims. Wyandotte Transp. Co. v.

United States, 389 U.S. 191, 204, 88 S.Ct. 379, 387 (1967).

Equity demands fairness. Equity gives the courts the

power to decide each case on its individual merits, and to avoid

harsh results when broad and far-reaching rules of law are applied

to a narrow set of facts. The manifest injustice caused by allowing

the responsible party to escape liability while burdening the

innocent party with all costs of remediation can be avoided by the

reasonable application of the principles of equity to the specific

facts of each RCRA case.

16

3. Reason Leads to the Logical Conclusion That

Because the Equitable Defense of Laches Is

Available, the Equitable Remedy of Restitution

Must Also Be Available.

Petitioners argue that because RCRA contains no statute of

limitations, it must not provide for a restitutionary remedy. The

Ninth Circuit, however, recognized that laches would be available

to limit the time within which a citizen could bring an action under

RCRA. KFC, 49 F.3d at 522. Acknowledgment of the

availability of the equitable defense necessarily requires

acknowledgment of the availability of equitable remedies.

Laches is an equitable mechanism by which enforcement

of a right is pretermitted wh. its exercise would unjustly cause

injury to the defendant as a result of inexcusable delay or lack of

diligence on the part of the person asserting the right. Costello v.

United States, 305 U.S. 265, 282, 81 S.Ct. 534, 543 (1961); and

30A C.J.S. Equity §§ 129. Determining whether the doctrine of

laches should bar a claim requires consideration of all of the

circumstances of a particular case. See Citizens and Landowners

Against the Miles City/New Underwood Powerline v. Secretary,

United States Department of Energy, 683 F.2d 1171 (8th Cir.

1982); and United States v. Reilly Tar and Chemical Co., 546

F.Supp. 1100 (D. Minn. 1982).

Petitioners contrast RCRA with CERCLA, in order to

support their argument that only CERCLA provides for recovery

of remediation costs. Petitioners’ Brief at 23. CERCLA, unlike

RCRA, expressly provides a statute of limitations for citizens’

suits. Petitioners ignore the fact that CERCLA, as it was enacted

in 1980, also lacked a specific statute of limitations with respect to

recovery of remediation expenditures. For six years, CERCLA

actions for cost reimbursement were not subject to a statute of

limitations. Congress did not enact a statute of limitations for

CERCLA until the Superfund Amendment and Reauthorization Act

of 1986. Pub. L. No. 99-499, 100 Stat. 1613 (1986).

Several cases interpreting CERCLA as it existed prior to

the 1986 amendment addressed the issue of whether a time

limitation existed for cost recovery under CERCLA, and each

17

determined that the exercise of these rights was limited by laches.

The court in United States v. Mottolo, 605 F.Supp. 898, 909

(D.N.H. 1985) held that, prior to its amendment, CERCLA

contained no statute of limitations with respect to actions for

recovery of remediation costs, but that the doctrine of laches

would be applied instead because a cost reimbursement action

under CERCLA is essentially equitable in nature. The court

further held that the doctrine of laches does not apply to suits

brought by a federal or state government in its sovereign capacity.

Id. Thus, prior to the addition of a statute of limitations on cost

recovery actions, there was no limit on the time within which a

government could pursue cost recovery under CERCLA. See also

United States v. Dickerson, 640 F Supp. 448, 451 (D. Md. 1986)

(adopting same); and United States v. Conservation Chemical

Company, 619 F.Supp. 162, 213 (W.D. Mo. 1985). (adopting

same).

Amicus respectfully asserts that the equitable defense of

laches must be available under RCRA, as noted by the Ninth

Circuit, KFC, 49 F.3d at 522. Amicus further asserts that,

because the equitable defense is availabie to the benefit of

defendants, the equitable right to restitution must be available to

the plaintiff. The principles of equity do not permit advantage to

accrue to either party to a dispute. Bollinger, 576 F.2d at 598.

Equity must be equally available to all parties because “equity

delights in doing justice completely, and not by halves." 27 AM.

Jur. 2D Equity § 119; 30A C.J.S. Equity § 119. It would be

unfair for the defendant to obtain the benefit of equitable defenses

such as /aches if plaintiffs are not similarly afforded the benefits

of equity.

Il. THE "IMMINENT AND SUBSTANTIAL ENDANGERMENT"

Must Exist WHEN REMEDIATION Is INITIATED.

Petitioners interpret RCRA's authorization of citizens’ suits

for improper disposals of hazardous waste that "... may present an

imminent and substantial endangerment” to require the danger to

be imminent when suit is filed, rather than when remediation is

commenced. This strained and restrictive interpretation ignores

RCRA's express authorization of citizens’ suits concerning past

conduct, as well as the compelling public policy behind RCRA, as

discussed supra at Section 1(A).

Petitioners’ interpretation of RCRA would require

abatement of an imminent endangerment to await, at a minimum,

identification of the responsible parties, proper notice, and filing

of suit. Meanwhile, the potential danger to public health and the

environment would continue, and the harm threatened thereby

might actually come to pass. As noted by the Eight Circuit in the

context of the nearly identically-worded provision by which EPA

can file suit with respect to an “imminent and substantial

endangerment":

We agree with the district court, however, that

RCRA's “imminent and substantial endangerment”

language does not require the EPA to file and

prosecute its RCRA action while the endangerment

exists. As the district court aptly noted, this

would be an “absurd and unnecessary”

requirement. The endangerment language is

plainly intended by Congress to limit the reach of

RCRA to sites where the potential for harm is

great.... The purpose of [RCRA] is to ‘give broad

authority to the courts to grant all relief necessary

to ensure complete protection of the public health

and the environment’ (citations omitted). The

limitation urged by defendants [that the EPA must

file suit under RCRA prior to undertaking

remed.ation] would defeat this purpose.

19

United States v. Aceto Agricultural Chemicals Corp., 872 F.2d

1373, 1383 (8th Cir. 1989).

The absurdity of requiring private citizens to file suit prior

to remediating hazardous waste sites is similarly apparent, as such

a requirement would similarly defeat the compelling public policy

behind RCRA, i.e., the immediate remediation of imminent

endangerment. The words “imminent endangerment” entail a real

threat to human health or the environment, and the neutralization

of such threats would be severely impeded if remediation were

delayed by bureaucratic hurdles that are unnecessary under a

reasonable reading of the statute.

Under Petitioners’ interpretation of RCRA, those parties

who act promptly to address dangerous contamination would be

deprived of their remedy under RCRA, while the remedies of those

who chose to do nothing, or to litigate rather than remediate, will

be preserved. See Bayless Investmt. & Trading Co. v. Chevron

U.S.A., 39 E.R.C. (B.N.A.) 1428, 1432 (D.Ariz. 1994). The

statute should be read to avoid such an inappropriate result.

Petitioners’ interpretation of the RCRA citizen's suit provision is

neither the most natural reading nor the reading most conducive to

fulfillment of RCRA's purpose, and therefore constitutes an

impermissible curtailment of the relief available under RCRA.

Ill. RECOVERY OF REMEDIATION EXPENDITURES IS PROPER

UNDER RCRA REGARDLESS OF THE APPLICABILITY OF

CERCLA.

The Ninth Circuit stated in its opinion below that KFC

“has no remedy under CERCLA because CERCLA’s petroleum

exclusion covers refined petroleum products such as gasoline and

therefore bars a lawsuit to recover response costs occasioned by its

release.” KFC, 49 F.3d at 523 n.6. Petitioners and the Western

States Petroleum Association ("WSPA") as Amicus Curiae, argue

that recovery of remediation expenditures under RCRA is improper

because permitting such relief would nullify CERCLA’s petroleum

exclusion. Petitioners’ Brief at 25-26; Brief for the Western States

Petroleum Association as Amicus Curiae in Support of Petitioners

20

at 17, Meghrig v. KFC Western, Inc., U.S. ___ (19__) (No. 95-

83) (“WSPA Brief"). This argument is without merit.

RCRA and CERCLA were both enacted to address the

problem of hazardous materials discharged into the environment,

but they are independent statutory schemes. CERCLA does not

preempt the field of remediation or recovery of remediation

expenditures and CERCLA's applicability vel non is irrelevant to

the existence of a cause of action under RCRA.

A. CERCLA Has Not Preempted the Fields of

Remediation or Recovery of Remediation

Expenditures.

This Honorable Court should not construe CERCLA’s

explicit provision for recovery of the costs of remediation from the

parties ultimately responsible to preclude such recovery under

RCRA. Admittedly, CERCLA is primarily a clean-up statute (it

has been described as “overwhelmingly remedial" in nature, U.S.

v. Aceto Agricultural Chemicals Corp., 872 F.2d 1373, 1380 (8th

Cir. 1989)), while RCRA is primarily a regulatory statute (it has

been described as a "prospective cradle-to-grave regulatory regime

governing the movement of hazardous waste in our society,” /d. at

1377). Nevertheless, in light of RCRA’s authorization for private

citizens to pursue civil actions, recovery of the costs of remediation

of such hazardous waste from those ultimately responsible is also

appropriate under RCRA.

CERCLA explicitly states that "[t}his chapter [CERCLA]

does not affect or otherwise impair the rights of any person under

Federal, State, or common law,” with certain exceptions not

relevant here. 42 U.S.C. § 9659(h). Thus, CERCLA does not

provide the sole means of redress relative to matters regulated

thereunder. Although CERCLA is “the centerpiece of the federal

hazardous substance cleanup and liability program", S. COOKE,

THE LAW OF HAZARDOUS WASTE § 12.01(2) (1995), it is not the

only piece. CERCLA'’s existence in no way alters the availability

of other remedies under other statutes, including RCRA, the

common law, or equity.

21

B. CERCLA and RCRA Are Independent Statutes

Which Apply to Different Classes of “lazardous

Materials.

The terms “hazardous waste" and “hazardous substance”,

to which RCRA and CERCLA apply respectively, are not

coextensive; a material can meet the definition of one without

satisfying the definition of the other. A “hazardous substance” is

defined under CERCLA to include any material defined as a

“hazardous waste" under RCRA, except petroleum or a fraction

thereof, or natural or synthetic gas. 42 U.S.C. § 9601(14). Thus,

only RCRA, and not CERCLA, applies to hazardous waste

consisting of petroleum or petroleum fractions, and the exclusion

of CERCLA does not bar application of RCRA. Agricultural

Excess & Surplus Ins. Co. v. A.B.D. Tank & Pump Co., 878

F.Supp. 1091, 1097 (E.D. Ill. 1995); Craig Lyle Lid. Partnership

v. Land O'Lakes, Inc., 877 F.Supp. 476, 480-81 (D. Minn. 1995);

and Zands v. Nelson, 779 F.Supp. 1254, 1263 (S.D. Cal. 1991).

It would be unconscionable, as well as contrary to the language of

RCRA, to proscribe regulation of hazardous waste on the grounds

that RCRA cannot apply because CERCLA's petroleum exclusion

precludes regulation under CERCLA. Such an interpretation

would free petroleum and its fractions, including benzene, toluene,

and xylene, from all environmental regulation, despite the threat

to human health and the environment that such materials may pose.

C. RCRA Contains No Exclusion Comparable in

Scope or Substance to the CERCLA Petroleum

Exclusion.

CERCLA applies exclusively to “hazardous substances",

which are defined to exclude “petroleum, including crude oil or

any fraction thereof which is not otherwise listed or designated as

a hazardous substance under subparagraphs (A) through (F) of this

paragraph.” 42 U.S.C. § 9601(14). This exclusion is commonly

referred to as the “petroleum exclusion".

The United States Environmental Protection Agency

("EPA") has interpreted the CERCLA petroleum exclusion to apply

22

to materials such as crude oil and crude oil fractions, hazardous

substances indigenous to petroleum, such as benzene, and

indigenous, refinery-added hazardous substances that are normally

mixed with or added to crude oil or crude oil fractions during the

refining process. EPA General Counsel, Scope of CERCLA

Petroleum Exclusion Under Sections 101 (14) and 104(a)(2) 5 (July

31, 1987). EPA has stated that the petroleum exclusion does not

apply to hazardous substances that are added to oil during use. /d.

at 4, citing 50 Fed. Reg. 13,456 (April 4, 1985) and 51 Fed. Reg.

8,206 (March 10, 1986). The courts have largely followed EPA's

interpretation of the petroleum exclusion. E.g., Wilshire Westwood

Associates v. Atlantic Richfield Corp., 881 F.2d 801, 810 (9th Cir.

1989); and Niecko v. EMRO Marketing Co., 769 F Supp. 973, 982

(E.D. Mich. 1991).

The limited legislative history regarding the petroleum

exclusion is comprised primarily of concerns expressed by

members of Congress about the lack of authority under the bill to

respond to releases of petroleum. James Baller, The Petroleum

Exclusion - Stronger Than Ever After Wilshire Westwood, 43

SOUTHWESTERN L.J. 915, 918 (1990). Typical of these concerns

are the comments of Representative Mikulski of Maryland:

I realize that it is disappointing to see no

oil-related provision in the bill, but we must also

realize that this is our only chance to get

hazardous waste dump site cleanup legislation

enacted. | would note that we have had assurances

from Members of the Senate that an oilspill

proposal would be considered a very high

legislative priority in the 97th Congress.

Moreover, there is already a mechanism in

place that is designed to deal with spills in

navigable waterways. There is not, however, any

provision currently in our law that addresses the

potentially ruinous situations of abandoned toxic

waste dump sites.

I, therefore, believe that it is very

imperative that we pass the Senate bill as a very

23

important beginning in our attempt to defuse the

ticking environmental time bomb of abandoned

toxic waste sites.

126 Cong. Rec. H11,976 (Dec. 3, 1980). Thus, the CERCLA

petroleum exclusion was enacted as a compromise measure to

ensure the passage of a stopgap bill to begin the process of

regulating hazardous substances in circumstances, such as the

absence of a responsible party, to which RCRA did not apply at

the time. RCRA'’s authorization for citizen suits with respect to

imminent endangerments was added in 1984, Pub.L. No. 98-616

(1984), four years after CERCLA was enacted, Pub.L. No. 96-510

(1980).

RCRA also contains a “petroleum exclusion” of sorts, but

it is far more limited in scope than CERCLA’s petroleum

exclusion. Congress temporarily exempted from regulation under

RCRA all “drilling fluids, produced waters, and other wastes

associated with the exploration, development, or production of

crude oil or natural gas", pending investigation by EPA as to

whether regulation of these materials under RCRA was warranted.

42 U.S.C. § 6921(b)(2)(A), (B). This exemption is commonly

referred to as the “Bentsen exemption.” EPA eventually

determined that regulation of these materials under RCRA was

inappropriate, and the Bentsen exemption became a permanent part

of RCRA.

The legislative history of the exemption indicates that it

excludes from regulation only those wastes intimately associated

with the exploration for and initial recovery of oil, and nothing

more’

The term “other wastes associated” is specifically

included to designate waste materials intrinsically

derived from primary field operations associated

with the exploration, development, or production

of crude oil, natural gas or geothermal energy. It

would cover such substances as: Hydrocarbon

bearing soil in and around related facilities, drill

cuttings; and material (such as hydrocarbons,

24

water, sand, and emulsion) produced from a well

in conjunction with crude oil, natural gas or

geothermal energy; and the accumulated material

(such as hydrocarbons, water, sand, and emulsior )

The phrase “intrinsically derived from the

primary field operations” is intended to

differentiate exploration, development, and

production operations from transportation (from

_ the point of custody transfer or of production

separation and dehydration) from manufacturing

operations .

House Conf. Rep. No. 96-1444, Joint Explanatory Statement of the

Committee of Conference, reprinted in 1980 U.S.C.C.A.N. 5019,

5031.

Subsequently, EPA expanded on the distinction between

waste resulting from field operations and waste produced, stating

that:

wastes associated with such processes as oil

refining and petrochemical-related manufacturing

are not exempt because those processes are not an

integral part of primary field operations.

EPA, EXECUTIVE SUMMARIES, REPORT TO CONGRESS:

MANAGEMENT OF WASTES FROM THE EXPLORATION,

DEVELOPMENT, AND PRODUCTION OF CRUDE OIL, NATURAL GAS,

AND GEOTHERMAL ENERGY, Pt. 1, p. 7 n.1 (1987). Accordingly,

the Bentsen exemption applies only to hazardous waste that is:

associated with operations to locate or remove oil

or gas from the ground or to remove impurities

from such substances, and it must be intrinsic to

and uniquely associated with oil and gas

exploration, development or production operations

(commonly referred to simply as exploration and

25

production or E&P); the waste must not be

generated by transportation or manufacturing

operations.

EPA, Clarification of the Regulatory Determination for Wastes

from the Exploration Development and Production of Crude Oil,

Natural Gas and Geothermal Energy, 58 Fed. Reg. 15,284 (March

22, 1993).

Thus, the RCRA Bentsen exemption does not create a

blanket exemption of all petroleum-related substances from

RCRA’s ambit. Rather, it is a narrow exemption, the purpose of

which is merely to except from RCRA hazardous waste produced

by oil and gas exploration and production activities.

The court of appeals below did not even discuss whether

the leaded gasoline discharged onto the property falls within the

Bentsen exemption, and the foregoing discussion of EPA's

interpretation of the exemption renders it apparent that the

exemption does not apply to leaded gasoline, a refined petroleum

product that is well-removed from exploration and production

activities.

The scope of the CERCLA petroleum exclusion is much

more broad than that of the RCRA Bentsen exemption, in that it

applies to all petroleum fractions, rather than merely to substances

used for oil and gas exploration and development. Moreover,

according to its plain meaning, as well as its interpretation by

Congress and EPA, the Bentsen exemption does not encompass

refined petroleum products, such as the leaded gasoline at issue in

the present case, regardless of whether such products fall within

the CERCLA petroleum exclusion.

D. Leaking Underground Gasoline Storage Tanks Are

Regulated Pursuant to RCRA.

When Congress addressed the problem of leaking

underground gasoline storage tanks in 1984, it did so not by

amending CERCLA and its petroleum exclusion, but by amending

RCRA explicitly to permit regulation of leaking USTs. 42 U.S.C.

§ 6991, et seq. ("Subtitle I"). See Robert N. Aguilez, Refining

26

CERCLA’s Petroleum Exclusion, 7 TULANE ENV. L.J. 41, 64

(1993), citing Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 667

(Sth Cir. 1989). Thus, Congress has clearly indicated its

willingness to regulate disposal of petroleum-derived substances

through RCRA, regardless of the exclusion of these substances

from CERCLA’s regulatory scheme.

WSPA raises two issues with respect to USTs. First,

WSPA implies that citizens cannot file suit under RCRA with

respect to leakage of gasoline from USTs because gasoline is not

“waste” within the meaning of RCRA. WSPA Brief at 11, citing

130 Cong. Rec. $2028, S2080 (daily ed., Feb. 29, 1984)

(comments of Sen. Durenberger). Most courts that have examined

the issue, however, have held that leaked gasoline is a waste

material. Agricultural Excess, 878 F.Supp. at 1095; Craig Lyle,

877 F.Supp. at 482; and Zands, 779 F.Supp. at 1262. C/,,

Winston v. Shell Oil, 861 ©.Supp. 713, 716 (C.D.Ill. 1984).

WSPA also notes ' at Subtitle | contains no cost recovery

mechanism. WSPA Brief at 11. This point is irrelevant because

Subtitle I is part of RCRA, and RCRA’s citizen suit provision

authorizes suit for any “imminent and substantial endangerment" ,

as discussed supra at section I(A), including threats caused by

violation of Subtitle 1. 42 U.S.C. § 6972(a)(1)(B).

Accordingly, by providing for the regulation of USTs

under Subtitle I of RCRA, Congress has clearly indicated that the

CERCLA petroleum exclusion does not preclude regulation under

RCRA of gasoline that has leaked from USTs, when an imminent

endangerment to human health and the environment is presented

thereby.

27

CONCLUSION

For the foregoing reasons, Amicus respectfully urges this

Honorable Court to affirm the decision of the United States Court

of Appeals for the Ninth Circuit recognizing that, under proper

circumstances, the RCRA citizen's suit provision authorizes courts

to order a party responsible for the disposal of hazardous waste

which creates an imminent and substantial endangerment to health

and the environment to repay an innocent party who has

remediated the contamination in question.

Respectfully submitted:

Lawrence A. Durant

General Counsel

Counsel of Record

James M. Bookter

Senior Attorney

Office of General Counsel

Louisiana Department of

Transportation and

Development

P.O. Box 94245

Baton Rouge, Louisiana 70000

(504) 379-1207

Charley Hutchens

Suite 105

412 West University

Lafayette, Louisiana 70506

(318) 237-4102

Special Counsel

December 8, 1995

William M. Hudson, III

Edgar D. Gankendorff

Robert A. Mahtook, Jr.

Victoria A. Guidry

Lawrence E. Marino

OaTS & HUDSON

Suite 400

Gordon Square

100 East Vermilion Street

Lafayette, Louisiana 70501

(318) 233-1100

Special Counsel

Counsel for Amicus Curiae

State of Louisiana

Through Its Department of

Transportation and

Development