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

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No. 95-83 +)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995.

ALAN MEGHRIG AND MARGARET MEGHRIG,

Petitioners,

Vv.

KFC WESTERN, INC.,

Respondent.

ON WRIT OF CERIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

.

BRIEF OF AMICI CURIAE

Massachusetts, Missouri, Alaska, Florida, Guam, Kansas,

Kentucky, Louisiana, Nevada, New Jersey, New Mexico,

New York, West Virginia, and Wisconsin

SCOTT HARSHBARGER JEREMIAH W. NIXON

Attorney General Attorney General

of Massachusetts State of Missouri

WILLIAM L. PARDEE* JAMES LAYTON

KAREN MCGUIRE DOUGLAS E. NELSON

Assistant Attorneys Assistant Attorneys

General General

200 Portland Street

Boston, MA 02114

(617) 727-2200

*Counsel of Record

See inside front cover for additional counsel

BRUCE M. BOTELHO

Attorney General

State of Alaska

CALVIN E. HOLLOWAY

Attorney General

Territory of Guam

CHRIS GORMAN

Attorney General

Commonwealth of

Kentucky

FRANKIE SUE DEL PAPA

Attorney General

State of Nevada

TOM UDALL

Attorney General

State of New Mexico

DARRELL V. MCGRAW, JR.

Attorney General

State of West Virginia

ROBERT A. BUTTERWORTH

Attorney General

State of Florida

CARLA STOLLA

Attorney General

State of Kansas

RICHARD P. IEYOUB

Attorney General

State of Louisiana

DEBORAH T. PORITZ

Attorney General

State of New Jersey

DENNIS C. VACCO

Attorney General

State of New York

JAMES E. DOYLE

Attorney General

State of Wisconsin

Table of Contents

Interest of Amici Curiae

Summary of Argument

Argument

Section 7002 of RCRA Confers Upon the Courts

Full Equitable Jurisdiction, Including the Power

to Award Restitution.

A. Where Congress Has Conferred Equitable

Jurisdiction Over a Matter, It Is Presumed

To Have Conferred The Ability To Award

All Traditional Equitable Remedies.

B. Section 7002 Confers Upon the Courts Full

Equitable Jurisdiction, Including the Power to

Award Restitution.

1. The Power Granted to Courts Under

Section 7002 is Identical to the Power

Granted to Courts Under Section 7003

2. An Order Awarding Restitution is Proper

as an “Equitable Adjunct to An Injunction

Decree”

3. An Order Awarding Restitution is an

“Order Proper and Necessary To Enforce

Compliance” With RCRA

Section 7002 Empowers Courts To Award

Restitution To Citizens Who, Prior to Filing Suit,

Incur Expenses In Abating A Condition Which

May Present An Imminent And Substantial

Endangerment To Health Or The Environment.

A. Section 7002 Is Not Limited To Prospective

Relief.

13

13

17

18

ii

B. Denying Courts the Ability to Award

Restitution Where a Citizen Has Acted To

Abate the Potential Hazard Prior To Filing

Suit Would Frustrate Congressional Intent. 22

Conclusion 30

TABLE OF AUTHORITIES

Cases.

Brandon Township v. Jerome Builders, Inc.,

80 Mich.App.180, 263 N.W.2d 326 (1977) 17

Brown v. Swann, 35 U.S. 497 (1836) 2

California v. American Stores Co.,

495 U.S. 271 (1990) 8

Chauffeurs, Teamsters & Helpers, Local No. 391 v.

Terry, 494 U.S. 558 (1990) 16

Commonwealth of Massachusetts v. United States

Department of Agriculture, C.A. No. 95-11668 REK

(D. Mass., filed July 27, 1995) 28, 29

Consumer Product Safety Comm'n v. GTE

Sylvania, Inc., 447 U.S. 102 (1980) 6

.Cort v. Ash, 422 U.S. 66 (1975) 6

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

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

Dague v. City of Burlington,

935 F.2d 1343 (2d Cir. 1991) 24

Dalehite v. United States,

346 U.S. 15 (1953) 28

iV

Department of Energy v. Ohio,

503 U.S. 607 (1989)

Furrer v. Brown, 62 F.3d 1092

(8th Cir. 1995)

Gwaltney of Smithfield v. Chesapeake Bay

Foundation, 484 U.S. 49 (1987)

Hatco Corp. v. W.R. Grace & Co.,

59 F.3d 400 (3d Cir. 1995)

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

KFC Western, Inc. v. Meghrig,

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

Laird v. Helms, 406 U.S. 797 (1972)

Maryland Casualty Co. v. Armco, Inc.,

822 F.2d 1348 (4th Cir. 1987)

Middlesex County Bd. of Chosen Freeholders v.

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

Mitchell v. Robert De Mario Jewelry,

361 U.S. 288 (1960)

New York v. United States,

620 F.Supp. 374 (E.D.N.Y. 1985)

Oscar Mayer & Co. v. Evans,

441 U.S. 750 (1979)

6, 7, 10, 14,

19

19, 20, 24

16

2, 7, 12

4, 10, 14

28

16

12

12

Paper Recycling, Inc. v. Amoco Oil Co.,

856 F.Supp. 671 (N.D. Ga. 1993) 27

Porter v. Warner Holding Co.,

328 U.S. 395 (1946) 2, 4, 7, 8, 10, 12, 13, 16, 17, 20, 21,

23

Renegotiation Board v. Bannercraft Co.,

415 U.S. 1 (1974) 8

State v. Schenectady Chemicals, Inc.,

103 A.D.2d 33, 479 N.Y.S.2d 1010 (N.Y.App.1984) 16

Transamerica Mortgage Advisors, Inc. v. Lewis,

444 U.S. 11 (1979) s

United States v. Aceto Agric. Chemicals Corp.,

872 F.2d 1373 (8th Cir. 1989) 10, 18, 19

United States v. Conservation Chemical Co.,

619 F.Supp. 162 (D.C. Mo. 1985) 1]

United States v. Moore, 340 U.S. 616 (1951) 21, 22

United States v. Northeastern Pharmaceutical &

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

cert. denied, 484 U.S. 848 (1987) 10, 14, 16

United States v. Price, 688 F.2d 204

(3d Cir. 1982) 2,10,11, 14, 15, 22

United States v. Reilly Tar & Chemical Corp.,

546 F.Supp. 1100 (D.Minn. 1982) 18

United States v. Valentine,

856 F.Supp. 627 (D. Wyo. 1994) 11, 15, 26

vi

United States v. Waste Industries,

734 F.2d 159 (4th Cir. 1984) 18

Wyandotte Trans. Co. v. United States,

389 U.S. 191 (1967) 13, 16

Zands v. Nelson, ;

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

Statutes, Regulations & Court Rules.

15 U.S.C. § 2619 (Toxic Substances Control Act) 19

28 U.S.C. §§ 1346, 2671 ef seq.

(Federal Tort Claims Act) 29

42 U.S.C. § 300j-8 (Safe Drinking Water Act) 19

42 U.S.C. § 6972 (RCRA § 7002) : 3-29

42 U.S.C. § 6973 (RCRA § 7003) 4, 5, 9-12, 14, 15, 17-19,

22, 23, 26, 28

42 U.S.C. §§ 6901-6987 2-6, 10, 12-15, 17-20, 24, 25, 27

42 U.S.C. § 9601(14) 29

42 U.S.C. § 9659 (Comprehensive Environmental

Response Compensation and Liability Act) 19, 29

Clayton Act, § 16 8

Fair Labor Standards Act, § 15(a)(3) 8

Vii

Investment Advisers Act of 1940, § 215 8

Mass. Gen. Laws c. 21E, § 5 (1983 & 1995 Supp.) 29

Miscellaneous.

H.R. Rep. No. 198, 98th Cong., 2d Sess., pt. I,

53 (1983), reprinted in 1984 U.S.C.C.A.N.

5612 13, 22, 24, 25

Restatement of Restitution, § 115 (1937) 15

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

Ist Sess. (1983) 1]

S. Rep. No. 96-172, 96th Cong., Ist Sess., (1979),

reprinted in 1980 U.S.C.C.A.N. 5019 (1980) 28

S. Rep. No. 96-172, 96th Cong., Ist Sess., reprinted in

[1980] U.S.C.C.A.N. 5019 (1980) 15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995.

No. 95-83

ALAN MEGHRIG AND MARGARET MEGHRIG,

Petitioners,

v.

KFC WESTERN, INC.,

Respondent.

ON WRIT OF CERIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE

Massachusetts, Missouri, Florida, Guam, Kansas,

Kentucky, Louisiana, Nevada, New Jersey, New Mexico,

New York, West Virginia, and Wisconsin

Interest of Amici Curiae

The primary interest of the amici states' in this case is the

preservation of the ability of federal courts sitting in equity to

devise appropriate remedies in environmental matters. It is an

ancient maxim of this Court that “[t]he great principles of

equity, securing complete justice, should not yield to light

'The states participating in this brief as amici curiae are: Florida,

Guam, Kansas, Kentucky, Massachusetts, Missouri, Nevada, New

Jersey, New Mexico, New York, West Virginia and Wisconsin.

inferences, or doubtful construction.” Brown v. Swann, 35 U.S.

497, 503 (1836).

The ability of the states and their citizens to “secure

complete justice” in environmental matters is dependent in part

upon the ability of the federal judiciary to administer the

federal environmental laws in a flexible manner. Where the

environmental laws grant the courts their full equitable powers

in order to “protect the public health, the environment, and

public water supplies from the pernicious effects of toxic

wastes[,] . . . [cjourts should not undermine the will of

Congress by either withholding relief or granting it grudgingly.”

United States v. Price, 688 F.2d 204, 214 (3d Cir. 1982). The

States, as the primary governmental guardians of the public

health and welfare, have a great interest in preserving for

themselves and for their citizens the judicial tools needed to

perform that mission.

Accordingly, the amici urge this Court to affirm the

decision of the Ninth Circuit Court of Appeals and to re-affirm

the principle that where the federal district courts sit in equity

and the public interest is at stake, the courts have the power “to

do equity and to mould each decree to the necessities of the

particular case.” Hecht Co. v. Bowles, 321 U.S. 321, 329

(1944): see also Porter v. Warner Holding Co., 328 U.S. 395,

397 (1946).

This aim can be achieved by holding that the Citizens’ Suit

provision of the Resource Conservation and Recovery Act

(“RCRA”), 42 U.S.C. §§ 6901-6987, enables courts to award

restitution to plaintiffs in appropriate circumstances.

Such a decision is of particular interest to states which lack

a statute that enables states’ or private parties to recover the

costs of responding to petroleum contamination which has

produced a hazardous condition, since it is established that this

provision applies to petroleum spills which endanger the public.

In addition, interpreting this provision in such a fashion will in

most circumstances provide the only means for the states and

their citizens to recover from the federal government the costs

of cleaning up petroleum contamination, where the federal

government is responible for a release of petroleum that has

created a hazardous condition.

Summary of Argument

The issue before the Court is the power of the district courts

to award restitution to a party who has expended funds

responding to conditions which may present an “imminent and

substantial endangerment to health or the environment,”

pursuant to Section 7002’ of the Resource Conservation and

Recovery Act (“RCRA”), 42 U.S.C. §§ 6901-6987 (1988 &

Supp. 1993). In holding that restitution is available under

Section 7002, the Ninth Circuit relied upon decisions of federal

courts recognizing that restitution is available to the federal

government when it sues under a similar provision of RCRA,

as well as the strong policy reasons for permitting citizens to

?As this Court has recognized, a State is a “person” which may

maintain an action under Section 7002. See Department of Energy

v. Ohio, 503 U.S. 607 (1989).

*Section 7002 is codified at 42 U.S.C. § 6972.

3

sue for restitution under Section 7002. See KFC Western, Inc.

v. Meghrig, 49 F.3d 518, 521-24 (9th Cir. 1995). This Court

should affirm the decision for the reasons stated by the Ninth

Circuit. More fundamentally, the decision should be affirmed

under the precedents of this Court holding that where Congress

has invoked the courts’ equitable powers, courts may in their

discretion exercise the full range of those powers. The decision

below is a proper expression of the inherent equitable powers

of the federal district courts to award restitution to citizens who

have expended funds in response to conditions which may

present an imminent and substantial endangerment to health or

the environment.

The “imminent and substantial endangerment” provisions of

RCRA, Sections 7002 and 7003, empower citizens and the

federal government, respectively, to bring suit in federal court

against “any person” who “has contributed to 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.” See 42 U.S.C. §

6972(a)(1)(B); 42 U.S.C. § 6973(a).

Sections 7002 and 7003, which are essentially codifications

of the common law of public nuisance, confer upon the courts

equitable jurisdiction. Once it is determined that Congress

intends that courts have equitable jurisdiction over a matter, the

“full scope of that jurisdiction is to be recognized and applied,”

unless a statute restricts that jurisdiction. Porter, 328 U.S. at

398. Neither Section 7002 nor Section 7003 restricts the ability

of the district courts to invoke their full equitable powers;

rather, the language of both Sections gives courts wide latitude

in fashioning appropriate remedies. Because the award of

4

restitution is a remedy that has traditionally been within the

equitable powers of courts to award, both Sections 7002 and

7003 must be construed as permitting courts to award restitution

to citizens or to the federal government when either has

expended funds in responding to conditions which may present

an “imminent and substantial endangerment to health or the

environment.” Construing the statute in such a fashion is

consistent with the principles of statutory construction and

furthers the purpose that Congress intended for the Citizens Suit

provision of RCRA.

In addition, a court may award restitution under either

Section even where the condition which may present an

imminent and substantial endangerment to health of the

environment has been successfully abated prior to the

commencement of the action. Under established precedent of

this Court, where statutes confer upon courts the authority to

award both prospective (i.e., injunctive) relief and other

appropriate equitable relief, the fact that the need for an

injunction has ceased prior to the filing of the lawsuit does not

deprive the courts of their power to award other equitable

relief, such as restitution. Denying the award of restitution to

a citizen or to-the federal government where they have taken

steps to prevent harm to the public health or the environment

in advance of litigation would frustrate the intent of Congress

in enacting these provisions.

Argument

I. SECTION 7002 OF RCRA CONFERS UPON THE

COURTS FULL EQUITABLE JURISDICTION,

INCLUDING THE POWER TO AWARD

RESTITUTION.

A. Where Congress Has Conferred Equitable

Jurisdiction Over a Matter, It Is Presumed To Have

Conferred The Ability To Award All Traditional

Equitable Remedies.

It is axiomatic that “the starting point for interpreting a

statute is the language of the statute itself.” Consumer Product

Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108

(1980). Section 7002 of RCRA empowers the district courts to

“restrain any person who has contributed to or is contributing

to” activity “which may present an imminent and substantial

endangerment to health or the environment,” and to order any

person who has contributed to or is contributing to activity

which may present an imminent and substantial endangerment

to health or the environment to “take such other action as may

be necessary.” 42 U.S.C. § 6972(a). This grant of authority

unquestionably confers upon the courts equitable jurisdiction.

‘The Eighth Circuit, in Furrer v. Brown, 62 F.3d 1092 (8th Cir.

1995), ignored this plain grant of equitable jurisdiction by proceeding

to analyze Section 7002 under the test set forth by this Court in Cort

v. Ash, 422 U.S. 66 (1975). See 62 F.3d at 1094-97. The issue

before this Court is not whether Section 7002 creates an implied

private right of action for monetary damages, as the Eighth Circuit

in Furrer seemed to believe,

See Hecht Co. v. Bowles, 321 U.S. at 329 (statute which

empowers court to issue injunctions confers equitable

jurisdiction).

Once it is established that a statute confers equitable

jurisdiction upon the courts, the next question to be resolved is

whether the statutory provision in question evinces an intent on

the part of Congress to limit the equitable powers of the district

courts in awarding relief in such matters. Porter, 328 US. at

397. A grant of equitable jurisdiction is presumed to provide

the court with full equitable jurisdiction, and “since the public

interest is involved in a proceeding of this nature, those

equitable powers assume an even broader and more flexible

character than when only a private controversy is at stake.” /d.

(citation omitted).

In Porter, the Court held that the Emergency Price Control

Act, in authorizing the district court to enter “a permanent or

temporary injunction, restraining order, or other order,” grants

full equitable jurisdiction, reasoning that “the term ‘other order’

contemplates a remedy other than that of an injunction or

restraining order, a remedy entered in the exercise of the

District Court's equitable discretion.” /d. at 399; see also

Hecht. Co. v. Bowles, 321 U.S. at 328 (term “other order”

contemplates equitable relief other than injunction or restraining

order).° Subsequent decisions of this Court have remained

and as Petitioners argue. /d; see Pet. Br. at 18-41. Rather, since

Section 7002 plainly provides a means for citizens to invoke the

courts’ equitable jurisdiction, the issue is the scope of the district

courts’ equitable powers in fashioning remedies under that section.

“As this Court subsequently noted with regard to the Porter decision.

the Court in that case found broad equity powers conferred under the

5

faithful to the principles set forth in Porter, and have

consistently applied a broad interpretation to statutes that grant

to courts equitable jurisdiction “[u}nless a statute in so many

words, or by a necessary and inescapable inference, restricts the

court's jurisdiction in equity...” Porter, 325 U.S. at 398; see,

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

(1990)(§ 16 of the Clayton Act permits courts to order

divestiture; applying Porter), Transamerica Mortgage Advisors,

Inc. v. Lewis, 444 U.S. 11, 19 (1979)(§ 215 of the Investment

Advisers Act of 1940 granted to courts equitable jurisdiction

and therefore power to award restitution), Mitchell v. Robert De

Mario Jewelry, 361 U.S. 288, 296 (1960)(courts have equitable

jurisdiction under § | 5(a)(3) of the Fair Labor Standards Act to

order an employer to reimburse employees for wages lost due

to an unlawful discharge).

_ Emergency Price Control Act, “not only because of the ‘other order’

language, but because of the ‘traditional equity powers of a court.””

Renegotiation Board v. Bannercraft Co. 415 US. 1, 19

(1974\ quoting Porter, 328 U.S. at 400).

B. Section 7002 Confers Upon the Courts Full

Equitable Jurisdiction, Including the Power to

Award Restitution.

1. The Power Granted to Courts Under Section

7002 is Identical to the Power Granted to Courts

Under Section 7003.

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

6901-6992, (1988), contains two parallel provisions that address

the power of courts to respond to conditions which may present

an “imminent and substantial endangerment to health or the

environment.” See § 7002, 42 U.S.C. § 6972(a)(1)(B)(author-

izing relief when “any person” alleges conditions of threatened

or actual imminent and substantial endangerment); § 7003, 42

U.S.C. § 6973 (providing for relief where federal government

brings action).

These provisions contain identical language regarding the

type and scope of relief available to plaintiffs. In addition to

giving courts the power to “restrain” a defendant who has

allegedly created a hazardous condition, the statute confers the

power to the courts “ fo order such person to take such other

action as may be necessary. . .” See 42 U.S.C. § 6972(\(1 (B):

42 U.S.C. § 6973 (emphasis supplied).°

As is noted by the United States in its brief as amicus curiae, the

provisions differ in that Section 7003 also authorizes the federal

government to “take other action under this section.” See U.S. Br.

at 21, n. 23. The United States is incorrect when it suggests that

Section 7003's express authorization for the executive to take action

restricts Section 7002's broad invocation of the judiciary 's equitable

powers. /d. (arguing that courts have greater latitude in awarding

restitution to the United States). Moreover, the United States’

9

The Ninth Circuit relied upon this phrase for its finding that

parties suing under the Citizens’ Suit provision in Section

7002(a)(1)(B) are not limited to actions seeking injunctive

relief. See KFC Western, 49 F.3d at 521. The Ninth Circuit

based its construction of that provision primarily upon other

courts’ interpretations of Section 7003 of RCRA, which

addresses the federal government's right to sue to abate

conditions which may present imminent and substantial

endangerments to health or the environment. /d. at 522.’ The

position that Section 7003's grant of authority to the Environmental

Protection Agency to take action under the section places it on

different footing from a private citizen who takes action is misplaced.

Id. As previously noted, states are “persons” under Section 7002,

and obviously are entitled to take appropriate action to protect their

citizens; indeed, individual citizens possess the right and the ability

to take steps to protect themselves and others from endangerment,

independent of any grant from Congress. The United States’ effort

to construe the express authorization of executive action under

Section 7003 as reflecting Congressional intent to limit the scope of

the judiciary’s equitable authority under Section 7002 is obscure, at

best, and is not the type of “clear and valid legislative command”

necessary to restrict the courts’ equitable jurisdiction. See Porter,

328 U.S. at 398.

"The Ninth Circuit relied on two Eighth Circuit decisions, United

States v. Aceto Agric. Chemicals Corp., 872 F.2d 1373 (8th Cir.

1989), and United States v. Northeastern Pharmaceutical & Chem.

Co., $10 F.2d 726 (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987),

and one Third Circuit case, United States v. Price, 688 F.2d 204 (3d

Cir. 1982). While the Ninth Circuit's reliance on the Eighth Circuit's

cases has been thrown into doubt by that Court’s decision in Furrer

v. Brown, 62 F.3d 1092 (8th Cir. 1995)(stating that the issue of

availability of restitution under Section 7003 was never directly ruled

upon in prior cases and holding that restitution unavailable under

10

Ninth Circuit's analysis fully supports the decision.

Sections 7002 and 7003 are parallel provisions, so that the

availability of any remedy under one section strongly implies

that the remedy is also available under the other. As the Senate

Report on the 1984 amendments to RCRA, which added

Section 7002(a)(1)(B), states, "[t]hese amendments are intended

to allow citizens exactly the same broad substantive and

procedural claim which is already available to the United States

under Section 7003 .. ." S. Rep. No. 284, 98th Cong., Ist

Sess. at 56-57 (1983). That report further noted that to the

extent these Sections differed, these differences "are not

intended to reflect a difference in such claims, but merely to

clarify that citizens will have the same claim presently available

to the United States." /d. Thus, it is pertinent that the United

States may sue for restitution under Section 7003. See United

States v. Price, 688 F.2d 204, 214 (3d Cir. 1982)(authority

granted to the courts under section 7003 was “intended to

confer upon the courts the authority to grant affirmative

equitable relief to the extent necessary to eliminate any risks

posed by toxic wastes”). Other courts have recognized the

broad grant of equitable jurisdiction contained in Section 7003.

See, e.g., United States v. Valentine, 856 F Supp. 627, 633 (D.

Wyo. 1994)(contribution is available remedy; “like restitution,

contribution is an equitable remedy to prevent unjust

enrichment”); United States v. Conservation Chem. Co., 619

F.Supp. 162, 199 (D.C. Mo. 1985)(“[t}he Court has broad

authority under Section 7003 to grant the equitable relief

Section 7002), the Third Circuit's decision in Price still stands for the

proposition that restitution is available under Section 7003. See

Price, 688 F.2d at 214.

necessary to eliminate the endangerment’).

The provisions of Section 7002 that address the power of

the courts to enforce that section are basically identical to those

in Section 7003. Compare 42 U.S.C. § 6972 with 42 U.S.C. §

6973(a). Accordingly, as one court has stated, the imminent

and substantial endangerment provision in Section 7002 “is

designed to provide a private means of obtaining the same relief

that the EPA Administrator has previously been authorized to

seek under RCRA by 7003.” Middlesex County Bd. of Chosen

Freeholders v. New Jersey, 645 F.Supp. 715, 721 (D.N.J.

1986); see also Oscar Mayer & Co. v. Evans, 441 U.S. 750,

756 (1979)(where statutory language in one act is in haec verba

with the language of another act, it is appropriate to conclude

that Congress intended an identical construction of each

term).

This Court’s decision in Porter is particularly instructive

here, given the similarity of the language of Section 205(a) of

the Emergency Price Control Act, construed in Porter, and the

language of Sections 7002 and 7003. The critical language in

Porter empowers the district courts to effect the purposes of the

act through the issuance of “other order[s].” 328 U.S. at 400.

Section 7002 of RCRA contains a similarly broad provision,

that the court can “order such person to take such other action

as may be necessary.” 42 U.S.C. § 6972. This provision

plainly contemplates that the court can issue orders providing

for other than injunctive relief. Hecht Co., 321 U.S. at 328.

As in Porter, the award of restitution under Section 7002 of

RCRA can be viewed as an “equitable adjunct to an injunction

12

decree,” or as “an order appropriate and necessary to enforce

compliance with the Act.” Porter, 328 U.S. at 395.

2. An Order Awarding Restitution is Proper as an

“Equitable Adjunct to An Injunction Decree”.

The award of restitution to a RCRA citizens suit plaintiff is

a: appropriate “equitable adjunct to a claim for injunctive

relief.” /d. Im such a situation, “where . . . the equitable

jurisdiction of the court has properly been invoked for

injunctive purposes, the court has the power to .. . award

complete relief even though the decree includes that which

might be conferred by a court of law.” /d. Where the court

has jurisdiction to “restrain,” or enjoin, the person who caused

the condition which may present an endangerment to health or

the environment, it is fully within that court’s equitable

jurisdiction to order such a person to pay restitution to a party

who has expended funds in responding to the potential

endangerment. /d. To hold otherwise “would permit the result,

extraordinary in our jurisprudence, of a wrongdoer shifting

responsibility for his negligence onto his victim.” Wyandotte

Trans. Co. v. United States, 389 U.S. 191, 204 (1967).

3. An Order Awarding Restitution is an “Order

Proper and Necessary To Enforce Compliance”

With RCRA .

An award of restitution is also warranted under Porter

because the availability of such relief will foster compliance

with the goals of RCRA and, specifically, with Congress’ goal

to quickly abate conditions which produce or threaten to

produce imminent and substantial endangerments to health or

13

the environment. Congress has stated that “the primary goal”

of Section 7002(a)(1)(B) is “the prompt abatement of imminent

and substantial endangerments.” H.R. Rep. No. 198, 98th

Cong., 2d Sess., pt. 1, 53 (1983), reprinted in 1984

U.S.C.C.A.N. 5612. Allowing a party to be reimbursed for the

costs expended in abating the complained-of condition furthers

this purpose. This is particularly so given the fact that an

action brought pursuant to Section 7002(a)(1)(B) cannot be

commenced in certain cases until 90 days after notice has been

given to the defendant, the Administrator of the EPA, and the

State in which the alleged endangerment may occur. 42 U.S.C.

§ 6972(b)(2)(A). Allowing restitution for costs expended

before or during that 90-day notice period furthers the purpose

of the Citizens’ Suit Provision in securing- the prompt

abatement of imminent and substantial endangerments.* See

KFC Western, 49 F.3d at 524 (award of restitution serves

purpose of providing prompt response to endangerment); see

also Price, 688 F.2d at 214 (permitting restitution furthers

purpose of RCRA).

‘The Eighth Circuit in Furrer relied in part upon the 90 day notice

provisions in finding that only injunctive relief is available under

Section 7002. 62 F.3d at 1098. That court failed to note that the

notice and delay provisions of the act do not explicitly limit the right

of a citizen suing under the act the right to recover costs expended

during that period, should the reputed violator fail to take steps to

abate the complained of condition. /d.

14

In its report on the 1980° amendments to RCRA, the Senate

noted that:

[S]Jection 7003 is essentially a codification of

common law public nuisance remedies . . . [and]

therefore, incorporates the legal theories used for

centuries to assess liability for creating a public

nuisance . . . and to determine appropriate

remedies...

S. Rep. No. 172, 96th Cong., Ist Sess., at 5 (1979), reprinted

in U.S.C.C.A.N. 5019, 5023 (1980); see also United States v.

Price, 688 F.2d 204, 213 (3d Cir. 1982). Both Section 7002

and Section 7003 were intended by Congress to constitute

codifications of the common law of public nuisance, and to

enable plaintiffs to receive the same types of relief that were

available to plaintiffs in public nuisance suits. As shown

below, this relief has traditionally included restitution.

It has long been recognized that restitution is an available

remedy in public nuisance cases under the common law. See

Restatement of Restitution, § 115 (1937); U.S. Br. at 22-28. In

the comment to Section 115, it is noted that the “abatement of

a Serious public nuisance . . . is another situation calling for the

{award of restitution].” Comment b, Restatement of

*When the Resource Conservation and Recovery Act was passed into

law as an amendment to the Solid Waste Disposal Act in 1976, the

legislative history of the act contained “no specific mention of section

7003 and no mention of the reasons for its insertion.” United States

v. Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726, 738

(8th Cir. 1986). “Consequently, courts have typically relied upon the

legislative history of the 1980 and 1984 amendments to RCRA...

in interpreting section 7003.” Valentine, 856 F Supp. at 633, n.5.

15

Restitution, § 115 (1937). Like a claim for restitution for the

costs of abating a public nuisance under the common law, a

claim for recovery of costs incurred in responding to an actual

or threatened endangerment is without question equitable in

nature. In such a case, the plaintiff does not seek compensatory

damages; rather the plaintiff simply seeks to restore the status

quo ante. See Porter, 328 U.S. at 402; see, e.g., Hatco Corp.

v. WR. Grace & Co., 59 F.3d 400, 411-12 (3d Cir. 1995)

(recovery of response costs under Comprehensive

Environmental Response Compensation and Liability Act

("CERCLA") are restitutionary); Maryland Casualty Co. v.

Armco, Inc., 822 F.2d 1348, 1352 (4th Cir. 1987)(same);

United States v. Northeastern Pharmaceutical and Chemical

Co., 810 F.2d 726, 749 (8th Cir. 1986), cert. denied, 484 U.S.

848 (1987) (same). Accordingly, recovery of cleanup costs

under Section 7002 is a claim in equity for restitution, and may

be awarded by courts in appropriate circumstances. "°

This Court has recognized the ability of courts to award

restitution where the plaintiff has acted to abate a dangerous

condition, even where the statute under which the action was

brought does not explicitly state that restitution is available.

See Wyandotte, 389 U.S. at 204 (approving restitution of

government’s expenses in removing a sunken vessel, even

"This Court has repeatedly held that the fact that an order calls for

monetary relief in the form of restitution does not transform the claim

into one for compensatory damages. See Chauffeurs, Teamsters &

Helpers, Local No. 391 v. Terry, 494 U.S. 558 (1990,as

distinguished from damages, orders awarding restitution in the form

of monetary payments are generally granted to prevent unjust

enrichment)”.

16

though statute did not explicitly provide for restitution). Other

courts have likewise ordered restitution of the costs of abating

a public nuisance. See, e.g., State v. Schenectady Chem., Inc.,

103 A.D.2d 33, 479 N.Y.S.2d 1010 (N.Y.App. 1984) (state

could receive restitution of costs for abating public nuisance

caused by chemical wastes); Brandon Township v. Jerome

Builders, Inc., 80 Mich.App. 180, 263 N.W.2d 326 (1977)

(town could recover costs of repairing dam as restitution for

abating public nuisance).

Because Congress intended that Sections 7002 and 7003

were to constitute codifications of the common law of nuisance,

and because restitution is an available remedy under such a

cause of action, awarding restitution in appropriate

circumstances is “proper and necessary” to enforce compliance

with RCRA. Porter, 328 U.S. at 400. Furthermore, Congress

has expressly provided that restitution is an appropriate means

of making whole citizens who have voluntarily undertaken

cleanups in a variety of other contexts, as shown above.

Il. Section 7002 Empowers Courts To

AWARD RESTITUTION TO CITIZENS WHO,

PRIOR TO FILING Sutt, INCUR EXPENSES IN

ABATING A CONDITION WHICH MAy

PRESENT AN IMMINENT AND SUBSTANTIAL

ENDANGERMENT TO HEALTH OR THE

ENVIRONMENT.

Petitioners and the United States incorrectly assert that

restitution under Section 7002 is unavailable where the

complained-of condition no longer presents an imminent and

substantial endangerment to health or the environment at the

commencement of suit under Section 7002. See Brief of

17

Petitioners (“Pet. Br.”) at 13-18, Brief of Amicus Curiae, the

‘United States of America (“U.S. Br.”) at 11-21. Such a

limitation is inconsistent with the prior decisions of this Court

dealing with the award of restitution under statutes conferring

equitable jurisdiction, as well as with the purposes of the RCRA

Citizens’ Suit Provision.

A. Section 7002 Is Not Limited To Prospective Relief.

Section 7002(a)(1)(B) covers situations where past or

present conduct has created a condition “which may present an

imminent and substantial endangerment to health or the

environment.” 42 U.S.C. § 6972(a)(1)(B). Petitioners and

amicus curiae, the United States, seize upon this language as

evidence that the section is addressed only to prospective relief

where the endangerment remains imminent and substantial at

the moment suit is filed. Pet. Br. at 13-18; U.S. Br. at 11-21.

In fact, the endangerment provision is not intended to provide

a temporal limitation,'' but to limit the application of Sections

7002 and 7003 to cases where there is great potential for harm

if action is not taken. See United States v. Reilly Tar &

Chemical Corp., 546 F.Supp. 1100, 1109-10 (D.Minn. 1982);

'' As the Fourth Circuit has stated:

Such grammatical niceties as tense may be useful in

arriving at a narrowly sculpted meaning, but they are

of little help in interpreting remedial statutes in

which actions such as "may be necessary" are

contemplated in order to abate gross dangers to a

community.

United States v. Waste Industries, 734 F.2d 159 (4th Cir. 1984).

18

én

see also United States v. Aceto Agr. Chemicals Corp., 872 F.2d

1373, 1383 (8th Cir. 1989) (“RCRA’s ‘imminent and

substantial endangerment’ language does not require EPA to

file and prosecute its RCRA action while the endangerment

exists”) (emphasis in the original).'?

Petitioners and the United States rely principally on this

Court’s decision in Gwaltney of Smithfield v. Chesapeake Bay

Foundation, 484 U.S. 49 (1987), to support their argument that

the court lacks the power to award restitution under Section

7002 where the plaintiff has removed the potential hazard to

health or the environment prior to suit. See Pet. Br. at 13-22;

U.S. Br. at 11, 14. That argument pays insufficient regard to

the substantial differences between the Citizens Suit provision

of the Clean Water Act addressed in Gwaltney and the

imminent and substantial endangerment section of the RCRA

Citizens Suit provision.

The citizens suit provision at issue in Gwaltney is typical of

the citizens suit provisions in many other environmental

statutes. These provisions only authorize suit against a

defendant alleged to be “in violation” of the law. See, e.g.,

Toxic Substances Control Act, 15 U.S.C. § 2619; Safe Drinking

Water Act, 42 U.S.C. § 300j-8; CERCLA, 42 U.S.C. § 9659.

Indeed, the citizen suit provision contained in Section

7002(a)(1)(A) of RCRA--not at issue in this case--is very

"While the Eighth Circuit stated in Furrer that the subject of the

availability of restitution under Section 7003 was not decided in

Aceto, it did not repudiate that portion of its opinion stating that the

abatement of the condition prior to filing did not serve to divest the

courts of jurisdiction over the matter. See Furrer, 62 F.3d at 1101.

19

similar to the provision construed in Gwaltney, as it addresses

only ongoing violations of law. See 42 USC. §

6972(a)(1)(A).

Moreover, typical citizens suit provisions do not contain

broad language explicitly authorizing the courts to issue “other

orders,” or to order defendants to “take such other action as

may be necessary” to achieve the aims of the act. See, e.g,

Porter, 328 U.S. at 399. Typical provisions, then, arguably

limit the equitable jurisdiction of the courts, and empower them

only to order injunctive relief or to assess penalties.

In contrast, Section 7002(a)(1)(B) of RCRA provides unique

authority for citizens to sue in cases of actual or threatened

endangerment. The section plainly addresses wholly past

conduct, as it permits actions against “any person” including

“any past” “generator,” “transporter,” or “owner or operator” of

a “treatment, storage or disposal facility,” who “has contributed

to” the past “handling, storage, treatment, transportation, or

disposal” of waste. 42 U.S.C. § 6972(a)(1)(B). This unique

citizens suit provision also broadly authorizes the court to order

“such other action as may be necessary” to redress the harm.

42 U.S.C. § 6972. The differences between Section

7002(a)(1)(B) and typical citizens suit provisions reflects the

very different purposes of that Section, as it represents the

codification of the common law of public nuisance, while

typical citizens suit provisions create a purely statutory cause of

action addressed only towards enforcing compliance with a

specific statute. See supra, p. 19.

In light of the different objectives of Section 7002(a)( 1B)

and typical citizens suit provisions, the analysis in Gwaltney is

inapplicable. The question is not whether an action properly

lies under Section 7002 where the conduct of the defendant is

20

wholly in the past, as it was in Gwaltney, it plainly does. 42

U.S.C. § 6972. Rather, the question is whether an action lies

under Section 7002 where the effects of that conduct have been

abated by the plaintiff prior to the filing of suit, reducing or

eliminating the need for an injunction. Such an action plainly

lies. See United States v. Moore, 340 U.S. 616, 620 (1951).

In Moore, this Court was once again called upon to

determine, as it had in Porter, the equitable jurisdiction of the

district courts in enforcing the provisions of the Emergency

Price Control Act, 50 U.S.C. App. § 925(a). The defendant

argued that because the rent restrictions imposed by the Act had

been lifted prior to the filing of suit, removing the authority

(and the need) of the district courts to issue injunctions

requiring landlords to charge the statutory rents, the courts

likewise lacked jurisdiction to award restitution of overcharges.

340 U.S. at 618.

In rejecting this argument, this Court again focused on that

portion of the Act which empowered the district courts to issue

such “other orders” as are necessary to enforce compliance with

the Act. /d. at 618-19. In holding that the district court

properly awarded restitution despite the fact that there was no

longer any jurisdiction to issue an injunction, the Court noted

that if Congress had intended to limit the Act to purely

prospective relief, “it would have been unnecessary to authorize

orders for other than injunctive relief since the latter remedy is

wholly adequate to secure prospective compliance.” /d. at 620.

Similarly, had Congress intended to limit the district courts

to purely prospective relief under Section 7002, it would not

have provided the courts with the authority to order defendants

“to take such other action as may be necessary.” 42 U.S.C. §

6972. As shown above, this provision plainly empowers the

21

district courts to award restitution in appropriate circumstances.

Supra, pp. 8-17; see also U.S. Br. at 22-29. Had Congress

intended only to provide relief where the nuisance existed at the

time of suit, it would not have provided the courts the power to

order “other action” under Section 7002(a)(1)(B). Moore, 340

U.S. at 620.

B. Denying Courts the Ability to Award Restitution

Where a Citizen Has Acted To Abate the Potential

Hazard Prior To Filing Suit Would Frustrate

Congressional Intent.

Further, if the argument of Petitioners and the United States

were accepted, the result would contravene the purposes of

Section 7002. Because Sections 7002 and 7003 are intended to

secure the prompt abatement of conditions which may pose a

public health or environmental hazard, and because Congress

intended that these sections were to serve as the codification of

the common law of public nuisance, denying relief to a plaintiff

who has responded to and abated the nuisance would frustrate

Congressional intent.

In 1984, Congress amended Section 7003 to clarify that the

section “applies to any act, whether past or present, which has

resulted in or may result in an imminent and substantial

endangerment to health or the environment.” See H.R. Rep.

No. 198, 98th Cong., 2d Sess., pt. I, 53 (1983) reprinted in

1984 U.S.C.A.A.N. 5607. In doing so, Congress also explicitly

approved the Third Circuit’s holding in Price, by stating that

“Section 7003 is ‘intended to confer upon the courts the

authority to grant affirmative equitable relief to the extent

necessary to eliminate any risks posed by toxic wastes.’” /d.

22

(quoting Price, 688 F.2d at 213-14). Among the types of

equitable relief recognized by the Price court was the power to

award restitution. 688 F.2d at 214.

When Congress amended Section 7003 to clarify that it

covered past conduct, it also enacted into law Section

7002(a1)(B). See H.R. Rep. No. 198, 98th Cong., 2d Sess.,

pt. I, 53 (1983) reprinted in 1984 US.C.AA.N. 5612.

Congress stated that “this expansion of the citizens suit

provision will complement, rather than conflict with, the [EPA]

Administrator's efforts to eliminate threats as to the public

health and the environment, particularly where the Government

is unable to take action because of inadequate resources.” /d.

It is certainly true that a citizen's rights to relief under

Section 7002 are limited, and that those limitations evince the

intent of Congress to place primary responsibility for

supervising the response to dangerous environmental conditions

on state and federal government. Thus, Section 7002 requires

ninety days notice to EPA, the State, and the defendant before

suit can be filed, limits the right to bring the action where

government is responding to the hazard, and provides that the

action cannot be brought to challenge the siting of a facility.

See, eg, 42 USC. §§ 6972(b)(2)A); 6972(b)(2)(B);

6972(b)\(2)(C); 6972(b\(2)(D). However, these limitations do

not extend so far as to limit the power of the courts to award

restitution for the costs of a successful cleanup. Plainly, none

of these provisions constitutes the type of “clear and valid

legislative command” that is necessary to limit a court's

equitable jurisdiction. See Porter, 328 U.S. at 399.

Petitioners and the United States argue that these

limitations, and particularly the ninety day notice requirement,

reflect Congressional intent to disallow recovery where a

23

plaintiff successfully abates the threatened or actual

endangerment prior to filing the lawsuit. See Pet. Br. at 19-21;

U.S. Br. at 21 & n.22. According to this view, the notice

requirement serves to prohibit a prospective plaintiff from

recovering costs expended to eliminate the hazard until 90 days

have elapsed from the time notice is given and the lawsuit is

filed. Such a result is at odds with the obvious Congressional

intent of encouraging prompt abatement of imminent hazards.

Indeed, Section 7002 does not require notice where the

complaint alleges an endangerment respecting a violation of

Subchapter III of RCRA, which contains the statute’s hazardous

waste provisions. See 42 U.S.C. § 6972(b)(2)B). This

exception reflects Congress’ determination that in certain

circumstances “the dangers of delay and the potential for

greater damage to the public health or the environment

outweigh the justification for the pre-suit delay periods.”

Dague v. City of Burlington, 935 F.2d 1343, 1351 (2d Cir.

1991).

In those cases that do not fall within this exception to the

notice requirement, providing notice prior to filing a claim to

recover costs expended to eliminate the endangerment

nonetheless satisfies the purposes of giving notice. This Court

has held that one purpose for the notice requirement in the

typical citizens suit provision of environmental statutes is to

zive the prospective defendant an opportunity to take action

(such as ceasing illegal discharges) which obviates the need for

litigation. See Gwaltney, 484 U.S. at 60. However, this is not

the sole purpose of giving notice, nor the dominant one. Notice

also provides the government with the opportunity to bring an

action, to intervene, or simply to monitor the litigation “to

assure orderly and consistent development of caselaw in this

24

area.” See H.R. Rep. No. 198, 98th Cong., 2d Sess., pt. I, 53

(1983) reprinted in 1984 U.S.C.A.A.N. 5612. Providing notice

before filing suit for restitution also satisfies the policy aims of

encouraging nonjudicial resolution of disputes and of apprising

the government about the claim.”

Read as a whole, the types of limitations placed upon a

citizen’s right to bring an action pursuant to Section

7002(a){1)(B) illustrate that Congress wanted the federal

government or state government to have the opportunity to

respond to conditions which may present an imminent and

substantial endangerment to health or the environment.

However, none of the express limitations set forth in Section

7002 state that a citizen must sit idly by and wait for either the

EPA, the state, or the defendant to take action. See 42 U.S.C.

§§ 6972(b)(2)(A); 6972(b)(2)(B); 6972(b)(2V(C). In fact, in

enacting Section 7002(a)(1)(B), Congress expressly recognized

the very real possibility that the government may be unable to

take action due to “inadequate resources.” See H.R. Rep. No.

198, 98th Cong., Ist Sess., pt. I, 53 (1983) reprinted in 1984

U.S.C.C.A.N. 5612.

The Petitioners’ and the United States’ curious interpretation

of Section 7002(a)(1)(B) does not further the intent of Congress

in enacting Section 7002(a)(1)(B), and would in fact impede

"Indeed, in many cases the potential RCRA citizens’ suit plaintiff

will not know the identity of the polluter for months or even years

after the contamination is discovered. Under the views espoused by

the Petitioners and the United States, a potential plaintiff should wait

indefinitely to perform a cleanup or should hire detectives to fiad the

source of the pollution so that notice can be given to the defendant

before the cleanup is actually performed. See Pet. Br. at 19-21, U.S.

Br. at 21 & n.22.

25

that purpose. If, as the United States argues, restitution could

only be awarded if the condition which may present an

imminent and substantial endangerment still existed at the

moment suit was filed, it would discourage, or at least delay,

voluntary cleanups of such conditions. Rather than securing the

“prompt abatement of imminent and _ substantial

endangerments,” as Congress intended, citizens would be forced

to wait at least ninety days (and much longer where the

responsible party or parties are unknown) before taking action,

or would have to take such incomplete action that the hazardous

condition still existed at the time of filing. /d.'* Indeed, under

the view espoused by the Petitioners and the United States, a

plaintiff who promptly and successfully undertakes to abate an

imminent and substantial endangerment prior to filing suit

would be denied compensation, whereas a plaintiff who delays

responding to the hazard until after filing would be fully

compensated. It strains reason to argue that this was the intent

of Congress in passing Section 7002(a)(1)(B).

Allowing a citizen to take appropriate steps to abate the

imminent and substantial endangerment and to later sue for

restitution in no way frustrates Congressional intent, as would

the Petitioners and the United States’ interpretation of the

'*At least one court has recognized a right of contribution under

Section 7003, holding that permitting a right to contribution serves

the dual purpose of promoting the prompt cleanup of the site while

eliminating the inequity that would result if liable parties who did not

participate in the cleanup were able to avoid contributing to the costs

of the cleanup. See Valentine, 856 F.Supp. at 635. The same

purposes would be served if a citizen who abates the potentially

hazardous condition is awarded restitution of the costs expended in

doing so.

26

provision. The citizen must comply with all of the

jurisdictional prerequisites set forth in Section 7002 before

bringing an action, prerequisites that are clearly directed

towards encouraging government action to respond to the

hazardous condition. See 42 U.S.C. §§ 6972(b)(2)(A);

6972(b)(2)(B); 6972(b)(2)(C). | Moreover, courts would

obviously have wide discretion in determining whether

restitution should be awarded in a given circumstance, an

entirely different inquiry than whether the court has the power

to award restitution.

The United States suggests that plaintiffs who successfully

abate conditions that produce or threaten to produce imminent

and substantial endangerments to health or the environment will

still have available to them state law remedies. U.S. Br. at 18-

21. To the extent that this argument has any relevance to the

inquiry before this Court, its fallacy is apparent upon

examination.

First, several states do not possess environmental laws

which cover all of the types of contamination which are

covered under Section 7002(a)(1)(B). For example, it is

beyond dispute that this provision applies to spilt or leaked

petroleum products. See KFC Western, 49 F.3d at 523, n.6

(provision applies to gasoline); Craig Lyle Lid. Partnership v.

Land O'Lakes, Inc., 877 F.Supp. 476, 483 (D. Minn. 1995)

(spilt or leaked petroleum is a “solid waste” under RCRA);

Paper Recycling, Inc. v. Amoco Oil Co., 856 F.Supp. 671, 675

(N.D. Ga. 1993)(same); Zands v. Nelson, 779 F.Supp. 1254,

1262 (S.D. Cal. 1991)(same). As the Ninth Circuit recognized

in KFC Western, California’s environmental statutes do not

provide relief to a private party who has expended funds in

responding to a hazardous condition where the cause of the

27

condition is petroleum contamination. KFC Western, 49 F.3d

at 523, n.6. In addition, the environmental laws of the States

of Alabama, Louisiana, New Mexico, North Dakota, South

Dakota, Vermont, Virginia and Wisconsin are not broad enough

to provide compensation in most circumstances where a private

citizen has responded to a release of petroleum which has

created a hazardous condition.

Moreover, as the United States (one of the major polluters

in this country) is undoubtedly aware, state law offers no

recourse against the United States, and liability under the

Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 ef seq.,

depends upon proof of wrongful conduct. See Laird v. Nelms,

406 U.S. 797 (1972); Dalehite v. United States, 346 U.S. 15

(1953). It is due in part to the deficiencies of common law

remedies that Congress intended Sections 7002 and 7003 to be

“more liberal” than their “common law counterparts.” S. Rep.

No. 96-172, 96th Cong., Ist Sess., at 5 (1979), reprinted in

1980 U.S.C.C.A.N. 5019, 5023 (1980) (explaining purpose of

Section 7003).

The deficiencies of state law as a means of recovering the

costs of abating an imminent and substantial endangerment

where the federal government is the defendant are illustrated in

a case pending against the United States Department of

Agriculture in the United States District Court for the District

of Massachusetts. See Complaint, Commonwealth of

Massachusetts v. United States Department of Agriculture, C.A.

No. 95-11668 REK (D. Mass., filed July 27, 1995).

In that case, the Commonwealth responded to an emergency

situation in 1986 in which public drinking water supplies were

found to be contaminated with various carcinogenic chemicals,

including benzene. Jd. The Commonwealth took certain steps

28

to abate the endangerment, including providing alternate

drinking water supplies to its citizens and performing an

evaluation of the extent of the environmental harm. /d.

Some years later the Commonwealth discovered that the

United States Department of Agriculture (“USDA”) was a

probable cause of the contamination. /d.

Were a private defendant involved, Massachusetts could

have proceeded under its own State “Superfund” law, Mass.

Gen. Laws c. 21E. See Mass. Gen. Laws Ann. c. 21E, § 5

(1983 & 1995 Supp.)(creating liability for parties who release

oil into the environment). However, because the contamination

was caused by a release of petroleum, due to the sovereign

immunity of the federal government, Chapter 21E could not be

used to hold the USDA liable. See 42 U.S.C. § 9601(14)

(excluding petroleum from regulation under CERCLA); New

York v. United States, 620 F.Supp. 374, 386 (E.D.N.Y. 1985)

(no cause of action lies against federal government under

CERCLA where contamination is limited to uncontaminated

petroleum products). The availability of a tort suit under the

Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 ef seq.

would entail the daunting task of proving a waiver of sovereign

immunity in the face of the discretionary function exception,

and would further require a showing of negligent or

intentionally wrongful conduct on the part of the United States.

See supra, p. 28. Due to the unavailability of other options,

Massachusetts chose to proceed under Section 7002(a)(1)(B).

Contrary to the assertions of the United States, a ruling

which limits the powers of the federal district courts to award

restitution in such actions only where the endangerment

continues to exist will lead to numerous situations where a

plaintiff, in many cases an innocent party who has undertaken

29

a cleanup of a hazardous condition, will be left without a

remedy. This will be particularly likely where the polluter is

the federal government and the contamination consists of leaked

or spilt petroleum.

Conclusion -

For the foregoing reasons, the amici states urge this

Court to affirm the decision of the Ninth Circuit Court of

Appeals and to rule that Section 7002 enables citizens to

recover the costs they have expended in responding to

environmental hazards. Such a ruling is consistent with the

established precedents of this Court and promotes the intent of

Congress in enacting this legislation.

Respectfully submitted,

ScoTT HARSHBARGER JEREMIAH W. NIXON

Attorney General Attorney General

of Massachusetts State of Missouri

WILLIAM L. PARDEE* JAMES LAYTON

JOHN BELING JOSEPH P. BINDBEUTEL

KAREN MCGUIRE DOUGLAS E. NELSON

Assistant Attorneys Assistant Attorneys

General : General

200 Portland Street

Boston, MA 02114

(617) 727-2200

*Counsel of Record

December 8, 1995

30

BRUCE M. BOTELHO

Attorney General

State of Alaska

CALVIN E. HOLLOWAY

Attorney General

Territory of Guam

CHRIS GORMAN

Attorney General

Commonwealth of

Kentucky

FRANKIE SUE DEL PAPA

Attorney General

State of Nevada

TOM UDALL

Attorney General

State of New Mexico

DARRELL V. MCGRAW, JR.

Attorney General

State of West Virginia

ROBERT A. BUTTERWORTH

Attorney General

State of Florida

CARLA STOLLA

Attorney General

State of Kansas

RICHARD P. IEYOUB

Attorney General

State of Louisiana

DEBORAH T. PORITZ

Attorney General

State of New Jersey

DENNIS C. VACCO

Attorney General

State of New York

JAMES E. DOYLE

Attorney General

State of Wisconsin