Earlier this year in KFC Western, Inc. v. Meghrig, the U.S. Court of Appeals for the Ninth Circuit ruled that private parties may obtain restitution of the costs of cleaning up contaminated property under §7002(a)(1)(B) of the Resource Conservation and Recovery Act (RCRA). The Ninth Circuit's ruling in KFC Western opened the way for private parties to use the RCRA citizen suit provision to recover their costs of investigating, studying, and cleaning up contaminated property from responsible parties. The decision confirmed that §7002(a)(1)(B) can be a powerful and remarkably effective remedy for private parties to use in shifting the burden of response to parties responsible for contaminating property.

Before the Ninth Circuit's decision in KFC Western, many practitioners thought the only relief that private parties could obtain under §7002(a)(1)(B) was injunctive relief. The 1993 decisions in Lincoln Properties, Ltd. v. Higgins allowed private parties to force responsible parties to respond to contamination—by conducting investigation, study, and cleanup—under §7002(a)(1)(B). But Lincoln Properties did not address the availability of restitution to private parties under this provision.