In the February 1996, edition of Metal Finishing, I wrote an article entitled "A Good Side of RCRA." On March 19, 1996, the Supreme Court of the United States published an opinion on RCRA cleanups that could change the way companies and their attorneys approach RCRA cleanups. This article will briefly outline the Supreme Court's decision and the potential changes that it will have on RCRA cleanups.
The case heard by the Supreme Court was Meghrig, et al., v. KFC Western, Inc., Case No. 95-83. The facts that caused the lawsuit involved the purchase of real estate by KFC Western, Inc. (KFC), on which KFC desired to construct and operate a restaurant. KFC discovered during construction that the property was contaminated with RCRA regulated wastes. The County of Los Angeles Department of Health Services ordered KFC to attend to the problem, and KFC spent $211,000 removing and disposing of the RCRA wastes. KFC brought suit under the citizen suit provision of RCRA, 42 U. S. C. § 6972(a), seeking to recover these cleanup costs from those responsible for placing the RCRA regulated wastes on the property, the Meghrigs.
In its complaint against the Meghrigs, KFC claimed that the contaminated soil was a "solid waste" covered by RCRA pursuant to 42 U. S. C. § 6903(27), that it had previously posed an imminent and substantial endangerment to health or the environment, pursuant to 42 U.S.C. § 6972(a)(1)(B), and that the Meghrigs were responsible for equitable restitution of KFC's cleanup costs under 42 U.S.C. § 6972(a) because, as prior owners of the property, they had contributed to the waste's past or present handling, storage, treatment, transportation, or disposal.
The District Court held that 42 U.S.C. § 6972(a) does not permit recovery of past cleanup costs and that 42 U.S.C. § 6972(a)(1)(B) does not authorize a cause of action for the remediation of toxic waste that does not pose an "imminent and substantial endangerment to health or the environment" at the time suit is filed, and dismissed KFC's complaint. The Court of Appeals for the Ninth Circuit reversed, over a dissent, 49 F. 3d 518, 524-528 (1995) and found that a district court had authority under 42 U.S.C. § 6972(a) to award restitution of past cleanup costs, and that a private party can proceed with a suit under 42 U.S.C. § 6972(a)(1)(B) upon an allegation that the waste at issue presented an "imminent and substantial endangerment" at the time it was cleaned up. The Supreme Court of the United States agreed to hear the case, and reversed the ninth circuit's decision, thus making it impossible for KFC to recover its clean up costs under RCRA. The Supreme Court considered the following in reaching its decision.
First, the Supreme Court noted that RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste. Unlike the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U. S. C. § 9601 et seq., RCRA is not principally designed to effectuate the cleanup of toxic waste sites or to compensate those who have attended to the remediation of environmental hazards. The Supreme Court noted that the two main purposes of CERCLA are prompt cleanup of hazardous waste sites and imposition of all cleanup costs on the responsible party. The Supreme Court contrasted CERCLA's two main purposes with what it considered RCRA's primary purpose to be. According to the Supreme Court, the main purpose of RCRA is "to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, so as to minimize the present and future threat to human health and the environment." 42 U. S. C. § 6902(b).
The Supreme Court noted that chief responsibility for the implementation and enforcement of RCRA rests with the Administrator of the Environmental Protection Agency (EPA). However, the Supreme Court noted that like other environmental laws, RCRA contains a citizen suit provision that permits private citizens to enforce its provisions in some circumstances.
Unfortunately for KFC, the Supreme Court found that two requirements of RCRA's citizen suit provision defeated KFC's suit against the Meghrigs. The first concerned the necessary timing of a citizen suit brought under 42 U.S.C. § 6972(a)(1)(B). That section permits a private party to bring suit against certain responsible persons, including former owners, "who ha[ve] contributed or who [are] 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." The second requirement that defeated KFC's claim under RCRA against the Meghrigs concerned the remedies a district court can award in a suit brought under 42 U.S.C. § 6972(a)(1)(B). According to the Supreme Court, 42 U.S.C. § 6972(a) authorizes district courts "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 . . . , to order such person to take such other action as may be necessary, or both."
From the two remedies described in 42 U.S.C. § 6972(a), the Supreme Court ruled that RCRA's citizen suit provision is not directed at providing compensation for past cleanup efforts. According to the Supreme Court, a private citizen suing under 42 U.S.C. § 6972(a)(1)(B) could seek a mandatory injunction, i. e., one that orders a responsible party to take action by attending to the cleanup and proper disposal of toxic waste, or a prohibitory injunction, i. e., one that restrains a responsible party from further violating RCRA, but, a private citizen suing under 42 U.S.C. § 6972(a)(1)(B) could not recover its past response costs, nor could the private citizen recover its cost of remediation at the site, even if the remediation would have otherwise been required to be performed at the site by the responsible parties.
To rationalize its holding, the Supreme Court compared the relief available under RCRA's citizen suit provision and that which Congress has provided in the analogous, but not parallel, provisions of CERCLA. Under the Supreme Court's analysis of available remedies, the court noted that CERCLA's citizen suit provision mimics RCRA's citizen suit provision in providing district courts with the authority to order such action as may be necessary to correct the violation of any CERCLA standard or regulation. 42 U. S. C. § 9659(c). However, the Supreme Court noted that CERCLA expressly permits the recovery of "all costs of removal or remedial action," 42 U.S.C. § 9607(a)(4)(A), and it expressly permits the recovery of any "necessary costs of response, incurred by any . . . person consistent with the national contingency plan," 42 U.S.C. § 9607(a)(4)(B). Since CERCLA also provides that "[a]ny person may seek contribution from any other person who is liable or potentially liable" for these response costs, 42 U.S.C. § 9613(f)(1), the Supreme Court ruled that Congress, by passing the cost recovery provision of CERCLA, demonstrated in CERCLA that it knew how to provide for the recovery of cleanup costs, and that the language used to define the remedies under RCRA does not provide that remedy.
The Supreme Court further held that waste which has been removed before filing a lawsuit cannot present an imminent and substantial endangerment to health or the environment. According to the Supreme Court, RCRA's citizen suit provision was intended only to provide a remedy for solid or hazardous waste which either currently or in the future "may present an imminent and substantial endangerment to health or the environment," 42 U.S.C. § 6972(a)(1)(B). Therefore, the Supreme Court ruled that 42 U.S.C. § 6972(a) did not provide a remedy that compensates private citizens for past cleanup efforts. As a result, since KFC took the initiative, acted responsibly, and cleaned up the hazardous wastes, KFC could not recover its cleanup costs pursuant to RCRA's citizen suit provisions.
Because of its holding, the Supreme Court has created a no win result for people and businesses facing a clean up of RCRA wastes. In this case, the County of Los Angeles Department of Health Services ordered KFC to clean up the site. Had KFC not performed the clean up, it faced potential enforcement action from the regulators, but by performing the clean up, it lost the opportunity to sue under RCRA to recover its clean up costs. My advice to clients is not to perform the clean up if a RCRA citizen suit is being contemplated. However, one must evaluate this recommendation in light of other considerations. For example, the potential for immediate harm to others that could occur as a result of leaving the hazardous wastes in place might require an immediate response, and the possibility and consequences of an enforcement action certainly must be considered. If the hazardous wastes cannot be left in place, then a party should attempt to clean up the site pursuant to the National Contingency Plan as required by CERCLA. At least under CERCLA, a cost recovery action for the clean up can be pursued after the clean up is complete. However, unlike RCRA, CERCLA does not allow for the recovery of attorneys' fees, which unfortunately can be substantial. See "A Good Side of RCRA," Metal Finishing, February, 1996, for a discussion of the recoverability of legal fees under RCRA.