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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0633%3A15

## Record

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

## Text

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
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0633%3A15. Public record. Not legal advice.