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Restitution Under RCRA &7002(a)(1)(B): The Courts Finally Grant What Congress Authorized

September 1995

Citation: 25 ELR 10491

Issue: 9

Author: J. Martin Robertson

Earlier this year in KFC Western, Inc. v. Meghrig,1 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. Higgins2 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.

J. Martin Robertson is a member of Gray Cary Ware & Freidenrich in Palo Alto, California, where he concentrates in environmental litigation and compliance. Before entering private practice, he served with the U.S. Army Corps of Engineers Office of Counsel, the Ohio Attorney General, and the U.S. Department of the Navy Office of the General Counsel. Mr. Robertson has represented plaintiffs and defendants in suits brought under the citizen suit provision of the Resource Conservation and Recovery Act. He was one of the lead attorneys for the plaintiff, Lincoln Properties, in Lincoln Properties, Ltd. v. Higgins.

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