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Express Car Wash Corp. v. Irinaga Bros.

ELR Citation: 27 ELR 21394
Nos. 96-696-JO, 967 F. Supp.1188/45 ERC 1602/(D. Or., 06/04/1997)

The court holds that a landowner who voluntarily began remediation of petroleum contaminated land cannot seek remediation costs from prior owners under the Resource Conservation and Recovery Act (RCRA) when remediation activities are in place or substantially in place at the time of the suit. The court first notes that in Meghrig v. KFC Western Inc., 26 ELR 20820 (U.S. 1996), the U.S. Supreme Court held that RCRA's citizen suit provision is not directed at providing compensation for past cleanup efforts. A person can bring a RCRA citizen suit only upon a showing that the solid or hazardous waste at issue may present an imminent and substantial endangerment to health or the environment. As a result, the citizen suit provision was designed to provide a remedy that ameliorates present or obviates the risk of future imminent harms, not a remedy that compensates for past cleanup. The court next notes that Meghrig did not consider whether a private party could seek to obtain an injunction requiring another party to pay cleanup costs that arise after a RCRA citizen suit has been properly commenced. The court then holds that plaintiff's claim fails under the principles of Meghrig because plaintiff seeks recovery of its cleanup costs for remediation that was well under way by the time it filed its RCRA citizen suit. Plaintiff has admitted that it has no RCRA claim for the remediation costs it incurred prior to filing suit, and payment of remediation costs since plaintiff filed suit does not fit in RCRA's citizen suit provisions. RCRA citizen suits provide no damages remedy. Plaintiff has not identified anything else that the defendant can do for the documented contamination. Plaintiff, at this juncture, seeks only to recover its present and future costs for an established remediation, and plaintiff can seek such damages under state law. The court then dismisses plaintiff's state-law claims for lack of jurisdiction. With the elimination of plaintiff's RCRA claims, no basis for federal jurisdiction remains in the case. Plaintiff's remaining claims are based strictly in Oregon law, and the Oregon courts have not yet addressed the Meghrig decision in the context of Oregon's statutes. Therefore, it would be more appropriate for the Oregon courts to determine how Meghrig will influence their interpretation of defendants' liability under Oregon statutes.

Counsel for Plaintiff
Johnathan R. Gilbert
Brownstein, Rask, Arenz, Sweeney, Kerr & Grim
1200 SW Main Bldg., Portland OR 97205
(503) 221-1772

Counsel for Defendants
Lawrence B. Burke
Davis, Wright & Tremaine
2300 First Interstate Tower
1300 SW 5th Ave., Portland OR 97201
(503) 241-2300