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

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## Record

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

## Text

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

AMICUS CURIAE BRIEF OF
SOUTHERN CALIFORNIA SERVICE
STATION ASSOCIATION
IN SUPPORT OF PETITIONERS

Dimitri G. Daskalopoulos
3 Church Circle

Suite 500

Annapolis, MD. 21401
(301) 261-8480

Counsel of Record

for Amicus Curiae

QUESTIONS PRESENTED

1. Whether the citizen suit provision
of RCRA, 42 U.S.C. 6972 (a)(1)(B),
which authorizes district courts to
restrain persons who have contributed
to contamination or to ‘order such
persons to take such other action as
may be necessary", also authorizes a
private party suit for reimbursement
of clean up costs, despite the absence
in RCRA, unlike CERCLA and other
Statutes, of any express language
authorizing such an action.

2. Whether the citizen suit provision
of RCRA, 42 U.S.C. 6972 (a)(1)(B),
which only permits. suits against
persons who have contributed to the
generation, transport or disposal of
solid or hazardous waste “which may
present an imminent and substantial
endangerment to health or the
environment” authorizes a citizen suit
for contamination that was fully
remediated at least 3 years before the
action was commenced.

a a ee ee cad I
TABLE OF CONTENTS ..n nce ccc ccc cces II
TABLE OF AUTHORITIES......... meediueekae III
STATEMENT OF THE CASE... ... 0... cc ccc ccces 1
INTRODUCTION AND INTEREST OF AMICUS ..... 1
A ee es 11
I. THE 9th CIRCUIT DECISION IS BASED *
UPON ERRONEOUS ASSUMPTIONS ..............

II. THE PLAIN LANGUAGE OF THE STATUTE DOES
NOT AUTHORIZE THE CAUSE OF ACTION CREATED

a a atened 15
III. THE LEGISLATIVE HISTORY DOES NOT SUPPORT
sae Oe

IV. IF SUCH A CAUSE OF ACTION EXISTS
IT IS LIMITED TO CASES PRESENTING

- II -

TABLE OF AUTHORITIES

CASES
bette 11975) AGL AEE TEES ESS ee 11, 17
ay ieee eth Cir. 1995) ........ 15, 17
Foundation,
nse occvecce 29
Satie eo. | SSSR 3
ee BS Sak 15

Middlesex County Sewerage Authority v.
National Sea Clammers Association,
453 U.S. l (19S Adcccccccecs ee ee | rf 24, 25

Milwaukee v. Illinois (II)

Ge ee 25
Wilshire Westwood Associates v. Atlantic
Richfield Co.

881 F.2d 601 (9th Cir. 1991)....... 5

Yommer _v. McKenzie
255 Md. 220, 257 A.2d 138 (Md. 1969)... ‘5

STATUTES

42 U.S.C. 6972 (a)(1)(B)............ 15,27,28
42 uU.S.C. 6991lb se efeeweeneeeeeee#sees © © @ =

- 333 =

C2 DeB.C GPDID 66100). ccccccccccece 13,15

42 U.S.C. 6991b (h)(2)......ccceceee 18

en ORS I ee eo Sr ee 9

on eee ME Mee eee 5,7

42 U.S.C. 9607 (a)(2)(B).......... 23

af ' Sf ee Se epee e Rear 23

California Health & Safety Code

SY MEGS CULEEG be déeececcecec 18
25299.10..... eevcce eece 10
ME MOEN ob cbccbeccccces 10
|| § | — Fee 10
LEGISLATIVE HISTORY

Senate Report 94-988,
94th Cong. Second Session, (1976)... 20

House Report # 98-198 (Part 3)

(Judiciary Committee)
98th Cong. 2d Session, (1984) ...... 25

House Report 98-1133,
98th Cong., 2nd Sess. Sens 6beeeeos 7, 22

House Report # 99-962,
(99th Cong. 2d BOSGEGR) oc acccccccce cooe 9

Congressional Record...

116 Cong. Record 33104 ........... 29

Oct. 5, 1984 pp. S13812, 13813...... 27

S. 2513 (Sen. Durenberger)........ 6
- IV -

BR 2560 (Rep. Florio)..ccccccccccccce 7

REGULATORY MATERIALS

40 CFP 280 ceoeoeveeeeeeeeeeeeeeeseeeeees 4
subpart > Gade COnGanews é0e chee 9, 12

60 Federal Register 46692 ........... 2
Se eesveececce &
SUE ncccescesces §
GeGee secsecceces F

,3
’

STATEMENT OF THE CASE
Amicus hereby adopts the statement of the

case as shall be set forth in Petitioner's
brief on the merits.

INTR“DUCTION AND INTEREST OF AMICUS _

Amicus, the Southern California Service
Station Dealers Association, represents the
interests of gasoline retailers throughout the
region, a region which is the largest single
petroleum market in the world.

The activities of the gasoline retailers

represented by the Association have been

' extensively regulated by the Resource

Conservation and Recovery Act (RCRA) since
1984 Amendments thereto became effective.

The interpretation of RCRA, particularly
with respect to underground storage tanks, is

of tremendous concern to the Association.

If the interpretation of the 9th Circuit
is upheld, the practical impact on our members
would go far beyond the legal implications.

In particular, if upheld, the ruling
would hurt our members ability to obtain
investment capital, and would substantially
drive up our costs of dealing with the RCRA
regulated substances that are at the heart of
the daily operation of a modern service
station.

Moreover, if upheld, the ruling would
effectively repeal EPA's newly promulgated
underground tank lender liability rule. 60
Fed. Regis. 46692 (Sept. 7, 1995).

EPA explained the need for the rule:

" Until now, EPA believes that concerns
over environmental liability have made a
significant number of lenders reluctant to
make loans to otherwise credit-worthy owners
and operators of UST's. The free flow of
credit to UST owners (many of whom are small

entities and that may rely on _ secured
financing mechanisms for capital){such as our

2

ao ew —

a a ee

members},is expected to assist UST owners and
operators in meeting their obligations to
upgrade, maintain, or otherwise comply with
RCRA Subtitle I and other environmental
requirements.

Conversely, the lack of such capital may
adversely affect the ability of an UST owner
to meet its obligations under subtitle I with
concomitant adverse environmental impacts from
UST's and UST systems, that are out of
compliance due to the lack of financing to
make the necessary improvements. 60 Fed.
Regis. at 46692, 46693.

It is extremely important that the Court
be aware that the major reason EPA believes
the tank lender liability rule will withstand
scrutiny is the absence of a private damage
action under RCRA subtitle I; whereas a
similar rule under CERCLA was struck down by

in Kelley, et.al. _v. EPA, 15 F.3rd .1100
(D.C.Cir. 1994).

EPA explains:

“ The Court held that “EPA lacked statutory
authority to restrict by regulation private
rights of action under the statute....

Whereas CERCLA contains a provision regarding
private rights of action, there is no explicit

3

provision for private rights of action
contained under RCRA Subtitle I. " 60 Fed.
Regis. at 46699.

This ruling reverses that well settled
principal, a principal that has been relied
upon by both regulators and the regulated
community.

The importance of the rule to our
members, a rule puc in jeopardy by the 9th
Circuit ruling, compels us to seek reversal.

A review of the history of regulation of
underground storage tanks, shows why creation
of this new federal cause of action by the 9th
Circuit is particularly inappropriate.

Prior to 1983, gasoline underground
storage tanks were largely out of sight and
out of mind.

Those instances where leakage had
eccurred were dealt with under state law,

under a variety of theories, ranging from

strict liability, See, e.g., Yommer v.
McKenzie, 255 Md. 220, 257 A.2d 138 (Md.
1969), to trespass and nuisance.

A series of highly publicized leaks, in
particular, one at Canob Park, Rhode Island,
that ended up on the TV show “60 Minutes",
spurred calls for Congressional action.

Members of Congress were told by the EPA
that it lacked authority under existing
statutes to remediate leaking underground
storage tanks ("LUSTS”).

In particular, Superfund (CERCLA) could
not be used, because gasoline falls within the
“petroleum exclusion” found at 42 U.S.C. 9601

(14). See generally, Wilshire Westwood

Associates v. Atlantic Richfield Co., 881 F.2d
801 (9th Cir. 1991).

As a result, two bills amending CERCLA

were introduced in that 98th Congress, H.R.

4761-by Rep. Ritter, and 'S. 2513 by Sen.
Durenberger, that shared — common
objectives:

(1) to repeal the petroleum exclusion and
allow Superfund authority to be used in
leaking tank cases and (2) to authorize EPA to
establish regulations for UST's.

Amicus, represented by Counsel of Record,
and our national organization, the Service
Station Dealers of America, were key players
in the ensuing legislative debate.

The industry viewed repeal of the
petroleum exclusion as a costly disaster in
the making. If gas stations were hung with the
“Superfund Site” label, investment capital and
liability insurance would disappear, and the
cost of handling our products would
substantially increase.

On the other hand, regulation of tanks

was viewed as a sensible step.

As a result, a consensus was reached
which enabled a regulatory program to be
established under Subtitle I of RCRA created
by the 1984 Amendments. See generally, House
Report 98-1133, 98th Cong., 2nd Sess. (1984).

Nevertheless, a Congressman or Senator
with a tank leak in his or her district still
could not call EPA and request a federal
response to a tank leak.

The next Congress saw proposals to
partially lift the CERCLA petroleum exclusion,
42 U.S.C. 9601(14), by defining releases from
petroleum underground tanks as hazardous
substances. See, e.g., Section 101 of HR 2560
(99th Cong. lst Session) (authored by Chairman
Florio).

Once again, these proposals to repeal or

modify the petroleum exclusion, and thus

subject gasoline UST cases to CERCLA,
authority did not survive.

It is instructive to note that had any of
these proposals passed, then a federal cause
of action for cost eesevery in petroleum UST
cases would exist under CERCLA.

The fact that they did not pass shows
that the 9th Circuit ruling lacks merit.

Congress chose a different path.

Under Section 205 of the 1986 Superfund
Amendments and Reauthorization Act (SARA) a
comprehensive financial responsibility scheme
was established, along with creation of the
federal leaking underground storage tank trust
fund. See, 42 U.S.C. 699lb.

Although a Superfund bill was used as the
vehicle, the fund was created under RCRA,
primarily because of the desire to keep

underground gasoline storage tanks out of the

ineffective quagmire that Superfund had turned
into. See generally, House Report # 99-962,
(99th Cong. 2d Session) (The Conference Report
on SARA).

The net result of the legislative debate
was to create a comprehensive regulatory
scheme, See 60 Fed. Regis. 46693- 46694, and
40 CFR 280, 281, that EPA was authorized to,
and in fact has, “franchised” to the states
under 42 U.S.C. 699lc.

For purposes of this case, the key
provisions are those dealing with corrective
action, financial responsibility, and the
federal and state funds.

EPA's financial responsibility
regulations (40 CFR part 280 subpart 48)
require UST owners and operators to maintain
an annual aggregate of “financial assurance”

of 1 million to 2 million dollars.

———————— Oe

TF a ie eee

|

The method of demonstrating financial
assurance most relied upon nationwide is the
42 state tank trust funds.

California has a tank fund set up on the
authority of the Section 25299.10 of the
Health and Safety Code.

That fund, like others, was set up
because of the unavailability of insurance,
See, Cal. Health & Safety Code, 25299.10
(b)(4), and provides reimbursement of clean up
costs and other costs to eligible claimants.

It was also designed so that California
could obtain its “tank franchise” from EPA,
and was enacted to further:

" the interest of the people of the state in

order to avoid direct federal requlation, of

persons already subject to state law...Cal.
Health & Safety Code 25299.10 (b)(10).

Congress did not create an implied
federal cause of action for cost recovery in
UST cases; it left the issue to state law.

10

ARGUMENT
As a threshold matter, SCSSA believes the

time has come for the Court to refine the
analysis under Cort v. Ash, 422 U.S. 66
(1975), as to when an implied cause of action
is available under a federal statute.

Specifically, we believe that where the
statute does not expressly provide for the
cause of action or relief sought, there must
exist a clearly articulated and affirmatively
expressed intent in the legislative history
that creates an unmistakable implication that
Congress intended to create such a cause of
action.

If this threshold inguiry is not met,
then federal courts should not be required to
engage in the analysis under the other three
factors enunciated in Cort.

As demonstrated, infra, this test cannot

ll

be met, therefore then decision below should
be reversed on this basis alone.

I. THE 9th CIRCUIT DECISION IS BASED
UPON ERRONEOUS ASSUMPTIONS

The basis of the 9th Circuit decision is
an assumption that to rule against an implied
right of action for contribution under RCRA
would leave the plaintiffs without a remedy,
and thus would be “bad public policy”.

The fact is that state law has always
provided the remedies for our members, who
have more experience with petroleum
contaminated properties than anyone else.

As noted, supra, due to the requirements
of RCRA that underground tank owners and
operators be able to demonstrate financial
responsibility, See, 40 CFR Pa t 280 Subpart
H, and the unavailability of underground tank
insurance for small businesses such as those

operated by our members, California and 41

12

other states have created underground tank
clean up funds.

These funds are designed to reimburse
petroleum tank clean up costs such as those at
issue in this case. |

In the cases of orphan tank leaks, where
no responsible owner or operator can be found,
States and EPA may turn to the federal leaking
underground storage tank (LUST) trust fund.

Neither service station dealers, who pay
the tax that finances the fund, nor any other
private party, are allowed to tap into the
federal fund for reimbursement, as the plain
- language of the statute limits cost recovery
to “costs incurred by the Administrator or by
a State” . 42 U.S.C. 699lb (6)(a).

The reimbursement issue has quite
properly been handled by the states, and

claims for reimbursement have been, and

13

continue to be made to state tank funds in
California and 41 other states.

In addition, the full range of legal
remedies under state iaw will continue to be
available to our members, who buy more
contaminated property than anyone else, as
well as to others.

What the 9th Circuit majority saw as bad
public policy, was in fact a carefully crafted
legislative response, that has created an
award winning program and a model federal -
state partnership.

In this case, the bad public policy would
come about through legislating from the bench,
based upon the erroneous assumption that the
Respondent, or similarly situated persons
would be left without a remedy.

The second erroneous assumption made by

the 9th Circuit majority is that the same

a4

remedies available to the EPA Administrator
should also be available in a citizen suit.

KFC Western v. Meghrig, 49 F.3rd 516, at 521-
522.(9th Cir. 1995).

In Furrer v. Brown, 62 F.3rd 1092 (8th
Cir. 1995), the 8th Circuit aptly described

this argument as a non seguitur. Id. at 1100.

As we have seen, cost recovery from the
federal LUST trust fund is limited to costs
incurred by “the Administrator or by a State”
42 U.S.C. 699lb (6)(a). The available remedies
to the Administrator and a private party are
not the same, thus, the 9th Circuit's
assumption is contradicted by the plain

language of the statute.

II. THE PLAIN LANGUAGE OF THE STATUTE DOES NOT
AUTHORIZE THE CAUSE OF ACTION CREATED

BY THE 9th CIRCUIT
In pertinent part, 42 U.S.C.

6972(a)(1)(B) allows any person to

15

maintain a civil suit :

"on his own behalf against any past or
present generator, transporter or past or
present operator of a treatment, storage or
disposal facility who has contributed or is
contributing to the past or present to the
past or present handling, storage, treatment
or disposal of any solid or hazardous waste

which may present an imminent and substantial
endangerment to health or the environment...

The district court shall have
jurisdiction to ... enforce permits and other
requirements, to restrain any person who is
contributing to the past or present handling,
storage, treatment, transportation or disposal
of any solid or hazardous waste...

as_may be necessary, or both...”
The 9th Circuit majority attempted to

support its holding by relying on the term

ns suc

as may be necessary “ with respect to

regulated substances that pose an imminent and
substantial endangerment to health or the
environment.

We believe the key is the term
"necessary".

16

SCSSA fails to see how it is “necessary”
to award cost recovery or damages under
federal law in order to have a potentially
responsible party abate an imminent and
substantial endangerment.

In its analysis of the Cort v. Ash

factors in Furrer, the 8th Circuit noted that
a persuasive argument can be made that the
Furrers, (as well as respondent KFC Western
herein), are in a class of persons that the
statute is directed against - owners of a
storage facility where petroleum products or
hazardous waste presents an imminent and
substantial endangerment. 62 F.3rd at 1092.
The key point is that the “carrot” of a
potential damage award under RCRA is not what
would motivate a service station operator or
owner of a leaking tank to take action; rather

it is the “stick” of “corrective action”

17

mandated by 42 U.S.C. 699lb(h)(2) et. seq.

The “stick” is provided by the threat of
heavy fines and even criminal prosecution in
some cases under state (See, e.g. Cal. Health
and Safety Code Sec. 25299) or federal law if
the corrective action is not taken.

Thus, to characterize potential damage
awards made by federal courts under RCRA as
“action necessary” defies logic and common
sense.

Additionally, to the extent that
“carrots” are relevant at all, those carrots
exist in the form of the ability of owners and
operators who have complied with applicable
UST regu)ations to seek reimbursement under
state funds.

The fact that a private party has no
right to tap into the federal UST Trust Fund

is telling evidence of two facts:

18

(1) that the federal cause of action implied
by the 9th Circuit was expressly rejected by
Congress and (2) that an implied federal cost
recovery cause of action can not be justified
on the basis that it is “action necessary” to
ensure that parties undertake the abatement of
imminent and substantial hazards to human
health or the environment.

Simply put, if Congress had intended to
allow the relief sought, it would have done so
in the plain language of the statute.

Congress refused to repeal or modify the
CERCLA petroleum exclusion, and also did not
allow private parties to tap into the federal
underground tank trust fund.

Moreover, if the cause of action created
by the 9th Circuit had in fact been created by
Congress, either expressly or implicitly, in

the 1984 RCRA Amendments at issue here, then

19

there would have been no — to attempt to
repeal or modify the petroleum exclusion, or
to open up the federal UST fund to private
party cost recovery during the 1986 Superfund
Amendments debate.

This fact lends further support to view
taken by the 86th Circuit in Furrer; and
clearly de..onstrates that the opinion below

must be reversed.

III. THE LEGISLATIVE HISTORY DOES NOT SUPPORT
CREATION OF AN IMPLIED CAUSE OF ACTION

RCRA has contained a citizen suit
provision dating back to its original
enactment in 1976.

According to the discussion of the
original citizen suit provision found in
Senate Report 94-988, 94th Cong. Second

Session at p.18:

“ The Committee drew on the similar
provisions of the Clean Air Act of 1970 and
the Federal Water Pollution Control Act

20

Amendments of 1972.

The bill provides for citizen
participation in the enforcement of
requirements and regulations established under
this Act.

to
actions where violations of standards or
regulations or a failure on the part of
officials to perform mandated action is
alleged.

Time is provided between notice and
filing of the action to give the State or the
Administrator an opportunity to act on the
alleged violation.”

We believe two points are critical here.

First, from its inception, the RCRA
citizen suit provision has been “carefully
restricted”.

Those “careful restrictions" have never
been removed by Congress, despite efforts to
do so.

Even a cursory review of the Conference
Report to the 1984 Amendments reveals that :

. The Senate Amendment contains a
Seer Ceres, limiting citizens’ right of

CONFERENCE SUBSTITUTE.- The Conference
Substitute adopts the Senate Amendment with

21

es

additional limitations on citizens’ right of

action ...
House Report # 98-1133 (98th Cong. 2d Session,
1984).

If Congress has removed these “careful
restrictions” and “additional limitations",
then the source of that removal is absent from
the legislative history.

Given the detailed list of restrictions
spelled out in the Confere. -e Report, (and the
statute itself), it stands to reason that such
restrictions would appear in the important
areas of what costs are recoverable, and the
statute of limitations.

The 9th Circuit opinion gives us
no guidance as to what costs would be
recoverable, rather it would require an ad hoc
determination of whether the onthe incurred
are, or were, “action necessary”.

By contrast, under CERCLA, where the

right of private parties to seek reimbursement

22

for clean up costs incurred is expressly
provided for in the statute, the only costs
recoverable are those that are :

“necessary costs of response incurred by any
other person consistent with the National
Contingency Plan.” 42 U.S.C. 9607(a)(2)(B)-

A second area where the 9th Circuit would
throw “careful restrictions” out the window is
with respect to the statute of limitations.

CERCLA provides a remarkably detailed
statute of limitations for cost recovery
actions. 42 U.S.C. 9613 (g)(2).

RCRA's silence on this point, both in the
statute, as well as in the legislative
history, is deafening.

If Congress’ intended to create a private
right of action for cost recovery or damages
under “carefully restricted" citizen suit
provision of RCRA, it would have spelled out

what costs are recoverable, and when an action

23

to recover such costs must be filed.

At a minimun, in should be able to find
legislative history that clearly articulates
and affirmatively expresses what costs are
recoverable, what standard is used in
conducting judicial review of such cost
recovery actions; and what statute of
limitations is to be applied.

Such history is conspicuous by its
absence, thus it is entirely inappropriate to
“unlimit" the carefully restricted RCRA
citizen suit provision.

The second point made clear by the
legislative history is that the result in this
case is virtually dictated by the decision in
Middlesex County . Sewerage Authority v.-
National Sea Clammers Association, 453 U.S. 1,
17 (1981).

As discussed, supra, the history makes

24

clear that the RCRA citizen suit provision is
based upon the comparable provision of the
Clean Air Act.

In Sea Clammers, 453 U.S. 1, (1981), the
Court noted that the citizen suit provision of
Clean Air Act of 1970:

“ makes no provision for damages to the
individual” 453 U.S. at 17, citing 116 Cong.
Record 33104 (Statement of Senator Hart).

It should be noted that the legislative
history does reveal an effort in the House to
undercut the holding of Sea Clammers and also
that of Milwaukee v. Illinois (11), 451 U.S.
304 (1981), with respect to the issue of
whether actions may be brought under RCRA
pursuant to supplementary authority to the
express language of the statute inferred by
“federal common law". See, House Report 98-
198, Part 3, at p.20 (Judiciary Committee).

The provision was dropped in Conference,

25

as evidenced by the following:

“ I note with satisfaction the decision
of the Conference Committee to reject the
House Amendment entitled * Preservation of
Other Rights ” ;

This innocuous sounding amendment was
intended to convey the message to the federal
judiciary that there is a “ federal common law
“ applicable to hazardous waste.

As a result of the decisions in the City

and National Sea Clammers cases,
it is clear beyond dispute that there cannot
be any “federal common law” in an area covered
by a comprehensive Federal statute such as the
Solid Waste Disposal Act......--

The ironic thing is that there is hardly any
area in which the ad hoc creation of remedies
by individual judges is less necessary.”
(Cong. Rec. Oct. 5, 1984 pp. $13812, 13813;
(remarks of Sen. Simpson).

Whether it is viewed as an implied cause
of action, or an attempt to revive the notion
that “federal common law" can create this
cause of action, the fact is that Congress
affirmatively ejected attempts on several
fronts to create the ad hoc remedy conjured up

by the 9th Circuit majority.

The ruling sought by the Respondents

26

would revolutionize the rules of the game that
those of us who making our living in the
petroleum marketing industry have lived with
for over a decade.

In conclusion, the legislative history is
utterly devoid of the a clearly articulated
and affirmatively expressed intent to create
the cause of action relied upon by the
Respondent, therefore the opinion below must
be reversed.

IV. IF SUCH A CAUSE OF ACTION EXISTS
IT IS LIMITED TO CASES PRESENTING AN

“IMMINENT AND SUBSTANTIAL ENDANGERMENT"
The plain language of the citizen suit
provision allows a person to bring an action:

“" on his own behalf against any past or
present generator, transporter or past or
present operator of a treatment, storage or
dicposal facility who has contributed or is
contributing to the past or present handling,
storage, treatment or disposal of any solid or

hazardous waste which may present an imminent
and substantial endangerment to health or the

environment...
42 U.S.C. 6972(a)(1)(B).

27

The key is the plain meaning of the term
“imminent”.

There is simply no imminent endangerment
where the site has question has been cleaned
up three years prior to the action being
brought.

Thus, even if a cause of action for cost
recovery or damages can be implied, it cannot
be applied under the facts of this case.

The endangerment in this case is neither
“imminent” nor is it ongoing, rather damages
are sought for actions of the past.

The opinion in effect rewrites the
statute by adding the term “may have” to the
existing law, which addresses only situations
: which may present an imminent and
substantial endangerment to health or the

environment. 42 U.S.C. 6972(a)(1)(B).-

Congress could just as easily added the

28

term “may have” and thus applied RCRA to past
endangerments, as it defined potentially
responsible parties as those of the “past or
present" whose actions may be causing an
imminent endangerment.

The plain language of the statute is
clearly dispositive on this point.

In _Gw ithfi Vv.
Bay Foundation, 484 U.S. 49 (1987), the Court
held that under the Federal Water Pollution
Act, no action should lie where a citizens
suit is based upon violations that occurred
entirely in the past. Gwaltney further shows
that no cause of action should lie in the case
at bar.

CONCLUSION

Congress never intended to create a

private right of action for cost recovery or

damages under RCRA generally, or under the

29

underground tank program created by Subtitle I
of RCRA specifically.

The practical effect of the 9th Circuit's
ruling is enormous. Congress was aware of
those effects and rejected efforts to
expressly provide the cause of action that the
9th Circuit has implied.

The opinion under review amounts to
judicial repeal of a carefully crafted
legislative framework that has worked well.

SCSSA therefore must urge the Court to

reverse the decision of the 9th Circuit.

Respectfully submitted,
Dei fe Dale ciale —
Dimitri G. D opoulos

3 Church Circle
Suite 500

Annapolis, Md. 21401
(301) 261-8880

30

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0633%3A17. Public record. Not legal advice.