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Implied Private Causes of Action and the Recoverability of Damages Under the RCRA Citizen Suit Provision

August 1995

Citation: 25 ELR 10408

Issue: 8

Author: John E. Sullivan

Editors' Summary: Property owners often respond to solid and hazardous waste contamination of their properties by cleaning up the contamination and then seeking reimbursement of cleanup costs from responsible parties under federal and state hazardous waste laws. RCRA is one such law; however, RCRA § 7002 does not explicitly provide for recovery of damages. A court faced with a RCRA § 7002 citizen suit to recover cleanup costs must imply a private cause of action for damages. This Article addresses the availability of a private cause of action for damages under RCRA § 7002. The Article first reviews U.S. Supreme Court doctrine on implying private causes of action. It analyzes RCRA's citizen suit provision and its legislative history and reviews case law refusing to imply a private cause of action for damages under § 7002. Next, the Article critiques a Ninth Circuit opinion, KFC Western, Inc. v. Meghrig, that does so imply a cause of action. The Article concludes that Congress did not intend to authorize a private cause of action for damages under RCRA, and that good environmental litigation planning can keep a property owner out of the difficult position of seeking cost recovery under a statute that does not provide such relief.

John E. Sullivan is a partner in the Cleveland, Ohio, office of Baker & Hostetler and a member of the firm's Environmental Group. He received a J.D. in 1984 from the Vanderbilt University School of Law, where he was an editor of the Vanderbilt Law Review. He received a B.A., cum laude, in 1981 from Denison University, where he was elected to Phi Beta Kappa.

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