Barg Coffin Lewis & Trapp, LLP Articles

April 1, 1996

U.S. Supreme Court Reverses Ninth Circuit on Cost Recovery under RCRA

by Richard C. Coffin

The citizen-suit provisions of the Resource Conservation and Recovery Act were not intended to provide a remedy for past cleanup costs, the U.S. Supreme Court ruled in a decision that at least partially blocks cost-recovery suits under RCRA.

In reversing the U.S. Court of Appeals for the Ninth Circuit, the Court in a California case concluded that a citizen-suit plaintiff may seek injunctive relief that orders a responsible party to clean up contamination or bars further RCRA violations, but may not recover past costs to clean up a site.

The decision puts recovery of past cleanup costs squarely back under the standards of the Comprehensive Environmental Response, Compensation, and Liability Act, limiting RCRA citizen suits to sites where the plaintiff obtains an injunction to compel the defendant to clean up solid or hazardous waste. By contrast, the Ninth Circuit's 1995 decision was widely viewed as opening the floodgates of RCRA cost-recovery because RCRA is much less demanding in its requirements for recovery than CERCLA, and because RCRA allows for recovery of attorneys' fees (see the April 3, 1995, issue of California Environmental Compliance Monitor, p. 154).

The Court reserved the issue of whether a citizen-suit plaintiff under RCRA might be able to obtain an injunction requiring another party to pay cleanup costs incurred by the plaintiff after the RCRA suit is properly filed.

The Supreme Court's decision resolves a conflict between the Ninth Circuit and the Eighth Circuit by rejecting the Ninth Circuit's interpretation of the "imminent endangerment" requirement of RCRA.

Recovery of Past Cleanup Costs Sought

The case pitted KFC Western, Inc., a fast-food franchise operator, against Alan and Margaret Meghrig, the former owners of a parcel of land in Los Angeles where the fast-food restaurant was located. In 1988, KFC discovered during the course of a construction project that the site was contaminated by petroleum. The Los Angeles County Department of Health Services ordered KFC to attend to the problem, and KFC spent $211,000 removing and disposing of oil-tainted soil. Three years later, KFC brought a citizen suit under Section 6972(a) of RCRA against the Meghrigs to recover its cleanup costs.

Section 6872(a) provides in part that "any person may commence a civil action on his own behalf . . . against any person . . . who has contributed or who is contributing to the past or present storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or to the environment." The section also provides that a U.S. district court may issue an injunction against anyone who has contributed to, or is contributing to, past or present handling of solid or hazardous waste, and to order that person to take appropriate actions as directed by the court.

The trial court dismissed KFC's suit on the ground that a private citizen bringing suit under RCRA may only seek injunctive relief, not money damages, and then only in cases involving existing, imminent danger to public health or the environment. The Ninth Circuit reversed, holding that the RCRA provision authorizing courts to order "such other action as may be necessary . . ." allowed the restitution of cleanup costs as well as injunctive relief. KFC Western, Inc. v. Meghrig, 49 F.3d 518 at 521 (9th Cir. 1995). The Ninth Circuit also held that the requirement in Section 6972(a) of "imminent and substantial endangerment" to health or the environment did not have to be met at the time of the lawsuit, but could be a past condition. 49 F.3d at 521.

Citizen Suits Limited to Prospective, Injunctive Relief

In reversing the Ninth Circuit, the Supreme Court reviewed the purposes of RCRA and contrasted them with the purposes of CERCLA. In contrast to CERCLA, the Court concluded that RCRA is not principally designed to effectuate the cleanup of toxic waste sites or to compensate those who have attended to the remediation. RCRA's primary purpose, instead, is to reduce the generation of hazardous waste and ensure the proper treatment, storage, and disposal of waste which is generated.

Under a plain reading of Section 6972(a), the Court concluded that a citizen-suit plaintiff may seek a mandatory injunction that orders a responsible party to clean up contamination, or a prohibitory injunction that restrains a responsible party from further violating RCRA. However, the Court concluded that RCRA's citizen-suit provision was not intended to provide a remedy for past cleanup costs.

Similarly, the Court concluded that Section 6972(a)'s language requiring "imminent and substantial endangerment" was designed to provide a remedy that ameliorates present harms or the risk of future imminent harms, not a remedy that compensates for past cleanup efforts. The statute permits a private party to bring suit only upon an allegation that the contaminated site presently poses an imminent and substantial endangerment, not that it posed such a risk at some time in the past, the Court said.

Meghrig v. KFC Western, Inc., No. 95-83, 1996 LEXIS 1995; 1996 WL 117012 (U.S. S.Ct. March 19, 1996).

These materials are provided for information purposes only and are not intended as and cannot be considered legal advice. Before taking action based upon this information, you should consult your legal counsel.

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