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Advice for Owners of Contaminated Land After Meghrig v. KFC Western, Inc.

November 1996

Citation: 26 ELR 10582

Issue: 11

Author: Jerome M. Organ

In the past few years, owners of contaminated land, seeking to supplement possible causes of action under the Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA) and under state common law and state statutes, increasingly have looked to §7002(a)(1)(B) of the Resource Conservation and Recovery Act (RCRA) to shift responsibility for remediation costs to former owners or operators. Although some owners of contaminated land have used §7002(a)(1)(B) to request injunctive relief, many have asked courts to decide whether §7002(a)(1)(B) authorizes courts to award restitution of past costs to a private party. In March of this year, the U.S. Supreme Court decided, in Meghrig v. KFC Western, Inc., that §7002(a)(1)(B) does not entitle a private party to recover past cleanup costs. As a result of the Court's decision, owners of contaminated land seeking to force former owners or operators to remediate the contamination are limited to pursuing either injunctive relief under §7002(a)(1)(B) or cost recovery under CERCLA, state common law, or a state statute.

This Dialogue explores the practical consequences of the Meghrig decision in three contexts. First, the Dialogue discusses what parties can and should do to avoid purchasing contaminated land. Second, for those unfortunate enough to have purchased contaminated land, the Dialogue evaluates the causes of action that remain available to force a former owner either to perform or to pay for remediation. Third, the Dialogue discusses how owners of contaminated land should decide on an appropriate course of action. To lay the foundation for these discussions, however, this Dialogue begins with a critical analysis of the Court's decision in Meghrig.

Jerome M. Organ received his J.D. from the Vanderbilt University School of Law in 1985. He spent several years practicing environmental law with Foley & Lardner in Milwaukee, Wisconsin, before joining the faculty of the University of Missouri-Columbia School of Law, where he presently is an Associate Professor, teaching courses in property, land use controls, environmental law, and regulation of hazardous substances.

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