25 ELR 10408 | Environmental Law Reporter | copyright © 1995 | All rights reserved

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

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.

[25 ELR 10408]

Section 7002 of the Resource Conservation and Recovery Act (RCRA)1 provides citizens with an array of enforcement tools to ensure meaningful citizen participation in the regulation of solid and hazardous waste. Under § 7002, citizens may compel enforcement of federal solid and hazardous waste laws and may also compel the Administrator of the U.S. Environmental Protection Agency (EPA) to perform nondiscretionary acts and duties.2 In 1984, Congress expanded the role of citizen enforcers under § 7002 as part of the Hazardous and Solid Waste Amendments (HSWA) to RCRA.3 Borrowing language from RCRA § 7003's imminent hazard provision, Congress gave citizens the right to seek injunctions to compel responsible persons to abate imminent and substantial endangerments associated with solid and hazardous waste.4 In HSWA, Congress clarified that citizens may bring abatement actions against a broad class of persons whose past or present activities have contributed to an endangerment.5

Section 7002 spells out the scope, limits, and boundaries of the citizen suit powers. Conspicuously missing from § 7002's elaborate enforcement scheme is citizen authority to recover damages for personal losses, such as personal injuries, property damage, cleanup costs, business interruptions, and the like.6

Despite this lack of specific statutory authority, citizens in numerous cases have sought damages under § 7002.7 In light of Congress' failure to provide an express private damages cause of action under § 7002, courts in these cases must decide whether to imply a private damages cause of action under this provision. The U.S. Court of Appeals for the Sixth Circuit and a host of federal district courts have refused to do so.8 The U.S. Court of Appeals for the Fourth Circuit suggested in dicta that doing so would be improper.9 Recently, however, an Arizona district court and the U.S. Court of Appeals for the Ninth Circuit held that citizens may recover past environmental cleanup costs under § 7002.10

[25 ELR 10409]

This Article analyzes whether Congress intended to authorize implied private damages actions under RCRA § 7002. It begins by examining the U.S. Supreme Court's implied private cause of action cases. It then focuses on two 1981 decisions in which the Court refused to imply private causes of action for damages under federal environmental statutes.11 This Article also analyzes key phrases in RCRA §§ 7002 and 7003 and relevant legislative history and reviews federal case law refusing to imply private causes of action for damages under § 7002. It then analyzes the majority and dissenting opinions in KFC Western, Inc. v. Meghrig,12 in which the Ninth Circuit held that citizens may seek restitution of past environmental cleanup costs under RCRA § 7002. The dissent in KFC Western is reviewed to flesh out potential arguments that may arise if rehearing of the case is granted or a certiorari petition is filed.

Finally, the Article critiques KFC Western in light of the Supreme Court's implied private cause of action doctrine, the provisions of § 7002, and the legislative history of §§ 7002 and 7003, and concludes that Congress did not intend to imply private causes of action for damages under § 7002. The Article suggests that careful environmental litigation planning can allow citizens to abate endangerments and recover damages for private losses without the law-stretching consequences of KFC Western.13

Implied Private Causes of Action Under Federal Statutes

The U.S. Supreme Court's Analysis

When deciding whether to imply a private cause of action under a particular statute, the Supreme Court focuses on Congress' intent in enacting the statute.14 In addition to other principles of statutory construction, the Court listed four factors in Cort v. Ash that should be used to guide courts in implying a private cause of action:

First, . . . does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? . . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? . . . And finally, is the cause of action traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?15

In Cort, the Supreme Court found no congressional intent to provide shareholders an implied cause of action for damages, but applied all four factors in deciding not to imply this cause of action.16

In subsequent decisions, however, the Court effectively narrowed the four factor test. The Court emphasized in these cases that all of the Cort factors are not entitled to equal weight,17 and that the ultimate issue is whether there is a "strong indicia of congressional intent" to create an implied cause of action under the federal statute in question.18 The Court has stressed that a cause of action should not be implied in the absence of such congressional intent, regardless of a contrary outcome suggested by the other Cort factors, such as whether implying a cause of action would further the purpose of the statute.19 The Court has criticized lower courts for continuing with an evaluation of the other Cort factors without finding the requisite congressional intent.20

The Court has stated that "[i]t is also an 'elemental canon' of statutory construction that where a statute expressly provides a remedy, courts must be especially reluctant to provide additional remedies."21 In such cases, the Court has emphasized that in the absence of a strong indication of contrary congressional intent, it must conclude that Congress provided the precise remedy that it deemed appropriate.22

[25 ELR 10410]

The Court's analysis reflects its "concern, grounded in separation of powers, that Congress rather than the courts controls the availability of remedies for violations of statutes."23 Perhaps reflecting this concern, the Court has been less than "hospitable" to requests that it imply causes of action.24

The Supreme Court's Implied Private Cause of Action Decisions in Cases Involving Federal Environmental Statutes

In both California v. Sierra Club25 and Middlesex County Sewerage Authority v. National Sea Clammers Ass'n,26 the Court refused to imply private causes of action under federal environmental statutes.

California v. Sierra Club. In Sierra Club, the Sierra Club and two private citizens (Respondents) sought to enjoin the construction and operation of water diversion facilities that were part of the California Water Project.27 The Respondents based their claims on § 10 of the Rivers and Harbors Appropriation Act of 1899 (Rivers and Harbors Act), which prohibits "[t]he creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States . . . ."28 The Rivers and Harbors Act does not specifically authorize private parties to sue to enforce § 10.

The Ninth Circuit held that "private parties who suffer special injuries because of unauthorized activities affecting the navigable capacity of our Nation's waters may sue to enforce the permit requirements of section 10."29 The court reasoned that although neither the Act nor its legislative history reflected congressional intent to afford or deny a private cause of action, finding a private cause of action for damages was both consistent with the Act's purposes and complimentary to its enforcement.30

The Supreme Court reversed the Ninth Circuit decision, and held that no private cause of action could be implied under § 10 of the Rivers and Harbors Act. The Court criticized the Ninth Circuit for not analyzing either the language or legislative history of the Act.31 The Court emphasized that the key focus in cases since Cort has been whether Congress intended to create a private cause of action,32 and that "[t]he federal judiciary will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide."33 The Court found that the language of the Act and its legislative history did "not suggest that the Act was intended to create federal rights for the especial benefit of a class of persons but rather that it was intended to benefit the public at large through a general regulatory scheme to be administered by the then Secretary of War."34 The Court concluded that it was not necessary to apply the other two Cort factors, because they are only relevant "if the first two factors give indication of congressional intent."35

Middlesex County Sewerage Authority v. National Sea Clammers Ass'n. In the same year, the Court also decided not to imply private causes of action for damages under the citizen suit provisions of the Federal Water Pollution Control Act (FWPCA)36 and the Marine Protection, Research, and [25 ELR 10411] Sanctuaries Act (MPRSA).37 In Sea Clammers, the National Sea Clammers Association and one of its members (Respondents) brought suit under the citizen suit provisions of the FWPCA and the MPRSA against various governmental entities and officials from New Jersey, New York, and the United States (Petitioners).38 The Respondents claimed that the Petitioners had dumped sewage, sewage sludge, and other waste materials into New York Harbor, the Hudson Bay, and the Atlantic Ocean and that this dumping had caused the "collapse of the fishing, clamming and lobster industries which operate in the waters of the Atlantic Ocean."39 The Respondents sought injunctive and declaratory relief, $ 250 million in compensatory damages, and $ 250 million in punitive damages.40 The district court granted summary judgment in favor of the Petitioners on all counts, dismissing Respondents' citizen suit claims under both the FWPCA and the MPRSA on the grounds that they failed to comply with 60-day notice requirements.41

Addressing the FWPCA claims, the U.S. Court of Appeals for the Third Circuit acknowledged that Congress intended in the citizen suit provisions to create a limited cause of action for "'private attorneys general' — 'non-injured member[s] of the public'" — who are suing to promote the general public good rather than seeking compensation for their own injuries.42 The Third Circuit concluded, however, that FWPCA § 505(e)'s savings clause preserves all rights to enforce the FWPCA or to seek relief against the Administrator, and allows the Respondents' FWPCA suit.43 Applying the same analysis, the Third Circuit held that the district court had erred in dismissing the Respondents' MPRSA citizen suit claims.

The Supreme Court interpreted the Third Circuit's holding as authorizing suits for damages, as well as injunctive relief, under the FWPCA and the MPRSA44 and reversed. The Court first noted that these statutes contain "unusually elaborate enforcement provisions, conferring authority to sue for this purpose both on government officials and private citizens."45 Because of these provisions, the Court determined that Congress could not have intended to authorize additional implied private rights of action under these Acts.46 The Court reasoned that when "'a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.' . . . In the absence of strong indicia of a contrary congressional intent, we are compelled to conclude that Congress provided precisely the remedies it considered appropriate."47 The Court added that the structure of the Acts and their legislative histories supported its conclusion that Congress intended that private causes of action should not be implied.48

The Court criticized the Third Circuit's savings clause analysis. Noting that the savings clauses were ambiguous as to Congress' intent to preserve remedies under the FWPCA and the MPRSA themselves, the Court doubted "that the phrase 'any statute' includes the very statute in which this statement was contained."49 Finally, the Court said that there was no reason to imply a separate cause of action for injured as opposed to noninjured plaintiffs, because the citizen suit provisions clearly apply only to persons who can claim some sort of injury.50

On its own initiative, the Court also considered whether 42 U.S.C. § 1983 expressly authorized private suits to redress violations by state officials of rights created under the FWPCA and the MPRSA.51 Noting the FWPCA's and the MPRSA's comprehensive enforcement mechanisms, the Court said that "[i]t is hard to believe that Congress intended to preserve the § 1983 right of action when it created so many specific statutory remedies, including the two citizen - suit provisions."52 Thus, the Court concluded that "the existence of these express remedies demonstrates not only that Congress intended to foreclose implied private actions but that it intended to supplant any remedy that otherwise would be available under § 1983."53

[25 ELR 10412]

Citizen Suits Unde RCRA § 7002

Section 7002 and Its Legislative History

Congress originally enacted the citizen suit provision as § 7002 of the 1976 RCRA amendments to the Solid Waste Disposal Act.54 The Senate Committee on Public Words Report indicates that Congress modeled the RCRA citizen suit provision after similar provisions in the Clean Air Act of 1970 and the 1972 amendments to the FWPCA.55 Congress intended this provision to allow citizens to participate in the enforcement of RCRA requirements and regulations.56 The Senate Committee on Public Works Report indicates that Congress modeled the RCRA citizen suit provision after similar provisions in the Clean Air Act of 1970 and the 1971 Amendments to the FWPCA55 Congress intended this provision to allow citizens to participate in the enforcement of RCRA requirements and regulations.56 The Senate Report indicated that the citizen suit provision was "carefully restricted to actions where violations of standards and regulations or a failure on the part of officials to perform mandated actions is alleged."57 In addition, the notice requirement was intended to allow the state or ePA to act o nthe alleged violation.58

In 1984, Congress amended the citizen suit provision, expanding the role of citizen enforcers to allow citizens to seek injunctions requiring resopnsible persons to abate "imminent and substantial endangerments" that solid or hazardous waste can cause.59 The House Energy and Commerce Committee Report indicated that HSWA conferred "on citizens a limited right under § 7002 to sue to abate an imminent and substantial endangerment pursuant to the standards of liability under § 7003,"60 and that "[t]his right can only be exercised if the administrator (following notice of the intended litigation) fils to file an action under [§ ]7003."61

Several House members feared that the amended § 7002 would cause citizens to flood the federal courts with pendent state-law claims, including tort claims for damages, while suing "to abate imminent hazards."62 While Congress decided [25 ELR 10413] not to prohibit pendent state - law claims, it cautioned that it expected "courts to exercise their discretion concerning pendant jurisdiction in a way that will not frustrate or delay the primary goal of this provision, namely the prompt abatement of imminent and substantial endangerments."63

As amended, § 7002 allows three types of citizen suits.64 First, § 7002(a)(1)(A) allows citizens to sue "any person65 . . . who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective" pursuant to RCRA.66 Second, § 7002(a)(1)(B) allows citizens to sue "any person . . . who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment."67 Last, § 7002(a)(2) allows citizens to sue the EPA Administrator for failure to perform a nondiscretionary duty.68 Section 7002 provides citizens several different remedies, depending on the type of citizen suit filed, but does not specifically provide for the recovery of damages for private losses.69

Section 7002(b) imposes restrictions on the filing of citizen suits. These include a requirement that citizens notify EPA, the state in which the violation occurred, and the alleged violator of the claims and wait a specified period of time before filing suit.70 Although citizens may file suit immediately after notice when the action concerns violations of RCRA subtitle C, which governs hazardous waste,71 they may not file suit when the EPA Administrator or the state "has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State to require compliance" with a RCRA requirement.72 The same restriction applies if the citizen suit is brought to abate an imminent and substantial endangerment and EPA or the state is taking specified actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

Section 7003 and Its Legislative History

In 1984, Congress used the imminent and substantial endangerment provisions and standards in RCRA § 700373 as a model for amending § 7002.74 As a result, the legislative history of § 7003 sheds light on the meaning of key terms in § 7002. RCRA § 7003 authorizes EPA to seek court orders requiring the abatement of imminent and substantial endangerments related to the handling, treatment, transportation, storage, and disposal of solid and hazardous waste.75

[25 ELR 10414]

HSWA's legislative history on the amendments to § 7003 indicates that Congress intended the term "imminent" in the phrase "imminent and substantial endangerment" to mean that the endangerment must exist at the time a § 7003 action is filed.76 The Senate Committee on Environment and Public Works indicated that the term "endangerment" meant "a risk of harm, not necessarily actual harm."77 The Senate Committee also stated that "proof that the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste may present an imminent and substantial endangerment is grounds for an action seeking equitable injunctive relief."78

Although § 7002's legislative history does not specifically discuss the meaning of the phrase "take such other actions as may be necessary," a detailed House Subcommittee Report that preceded the 1980 RCRA amendments to § 7003 specifically describes the meaning of this phrase, which § 7002 borrowed from § 7003: "The section's broad authority to 'take such other actions as may be necessary' includes both short - and long - term injunctive relief, ranging from the construction of dikes to the adoption of certain treatment technologies, upgrading of disposal facilities, and removal and incineration."79 This statement clearly indicates that Congress intended this phrase to authorize injunctions compelling a wide variety of short - and long - term remedial actions.

As with § 7002, neither the specific provisions of § 7003 nor its legislative history authorize EPA to recover cleanup costs or any other form of damages.

The Implication of Private Causes of Action Under RCRA § 7002

Decisions Finding No Implied Private Cause of Action for Damages Under RCRA § 7002

In Environmental Defense Fund v. Lamphier, the Fourth Circuit indicated in dicta that there is no implied cause of action for damages under RCRA § 7002.80 Holding that a private cause of action for injunctive relief is available under the RCRA citizen suit provision, the Fourth Circuit stated:

[25 ELR 10415]

The private plaintiffs here did not seek an award of damages but rather acted as private attorneys general in seeking the assessment of civil penalties and an injunction against Lamphier. . . Provided that plaintiffs are genuinely acting as private attorneys general rather than pursuing a private remedy, nothing in RCRA, as in the FWPCA, bars injunctive relief.81

In Walls v. Waste Resource Corp.,82 the Sixth Circuit became the first circuit court to consider directly whether to imply a private cause of action for damages under § 7002. Among the claims that homeowners asserted against defendants that allegedly caused and threatened to cause serious environmental and health problems was an implied cause of action for damages under RCRA and FWPCA citizen suit provisions.83 Relying on Lamphier and Sea Clammers, the Sixth Circuit held that neither RCRA nor FWPCA citizen suit provisions provide express or implied private causes of action for damages.84 The liberal grant of standing under these provisions is "limited by the subsequent provisions which restrict the type of relief available to injunctive and other equitable remedies."85

Several federal district courts have followed the Sixth Circuit's decision in Walls. In Commerce Holding Co. v. Buckstone,86 the U.S. District Court for the Eastern District of New York held that, "while injunctive relief is available under [§ 7002(a)(1)(B)], the statute does not provide a private action for damages," 87 and such an action should not be implied.88 The court emphasized that allowing recovery of remediation costs, even if characterized as equitable relief, would result in improperly allowing Commerce Holding Co. to be the direct beneficiary of substantive relief. Thus, regardless of how the request for relief was characterized, the court stressed that it was inconsistent with § 7002's purpose of allowing private citizens to bring suit when they are genuinely acting as private attorneys general rather than pursuing their own private remedies.89

Similarly, in Portsmouth Redevelopment & Housing Authority v. BMI Apartments Associates,90 the U.S. District Court for the Eastern District of Virginia held that the RCRA citizen suit provision does not authorize an award of money damages for remedial and response costs and costs of investigation.91 The court held that:

[T]he plain language of the statute confers limited jurisdiction on the district courts in citizens suits under RCRA and the determination of liability for, and the allocation of the costs of, the cleanup of abandoned waste sites are not among those powers. This conclusion is consistent with the fact that those responsibilities are clearly absent from the eleven objectives Congress announced when it promulgated RCRA.92

The court was not surprised that Congress did not provide district courts with this authority because "CERCLA expressly controls the allocation of the remedial and response costs involved in the cleanup of inactive sites."93

The court in Portsmouth also rejected the plaintiffs' attempt to recover damages under the guise of a claim for injunctive relief. Because the injunctive relief that the plaintiffs sought would be a mandate to pay money, the court stated that "the prayer for injunctive relief is, in actuality, a prayer for past and present money damages. 'A plaintiff cannot transform a claim for damages into an equitable claim by asking for an injunction that orders the payment of money."94 The court concluded that

even if the citizens-suit provision of RCRA was intended to reach past activity of the sort at issue in this case, the court would be empowered only to award injunctive relief to restrain statutorily prohibited conduct and to require the offender to take such other action as may be necessary, not to award damages.95

In Werlein v. United States,96 the U.S. District Court for the District of Minnesota also rejected plaintiffs' attempt to gain damages in the guise of injunctive relief under RCRA. In Werlein, residents living near two contaminated sites in Minnesota, sued the United States, several companies, and individuals for, among other things, injunctive relief apparently under the RCRA citizen suit provision.97 Plaintiffs sought to compel the defendants to pay a lump sum of money into a medical monitoring fund that persons eligible for such monitoring could use to defray medical screening examination costs.98 The court held that the medical monitoring fund remedy was not available as injunctive relief under RCRA because "[t]he proposed monitoring fund contains no provisions for anything besides an exchange of money."99

[25 ELR 10416]

KFC Western, Inc. v. Meghrig

Background Facts and Procedural History. On March 1, 1995, the Ninth Circuit, by a 2-to-1 majority, held that the RCRA citizen suit provision allows for a private right of action for restitution of environmental cleanup costs.100 The plaintiff operates a Kentucky Fried Chicken franchise on property it purchased in September 1975 from the defendants.101 In October 1988, the plaintiff discovered during renovations that its property was contaminated with elevated levels of refined petroleum products.102 The Los Angeles Department of Health Services ordered plaintiff to clean up the property at a cost of more than $ 211,000.103 The plaintiff asked the defendants for reimbursement of its costs in June 1990, which the defendants refused.104

Approximately three and one - half years after discovering the contamination, plaintiff filed a complaint in federal district court against the defendants seeking to recover cleanup costs under RCRA § 7002(a)(1)(B).105 In an amended complaint, the plaintiff alleged that the contaminated soil, at the time of the cleanup, presented an imminent and substantial endangerment to public health and the environment by threatening surrounding groundwater and potentially risking the health of people expected to use the property and the Kentucky Fried Chicken franchise.106 Plaintiff also alleged that its damages claim actually was a claim for "equitable restitution."107

Defendants moved to dismiss, arguing that there was no imminent and substantial endangerment because the plaintiff had completed the cleanup more than three years before filing suit, and that RCRA authorized citizen suits only for injunctive relief, not for damages.108 The district court granted the defendants' motion to dismiss, holding that the RCRA citizen suit provision authorized "only injunctive or other equitable relief and only in cases involving an existing, imminent danger to public health or the environment."109

The Majority Opinion. The Ninth Circuit reversed the district court, holding that RCRA § 7002 (1) allows a private party to seek restitution of past environmental cleanup costs, and (2) authorizes citizen suits for contamination that in the past posed an imminent and substantial danger, even if the danger was eliminated before a citizen suit is filed.

Addressing whether an imminent and substantial endangerment must exist at the time a RCRA citizen suit is filed, the majority acknowledged that legislative history supports the defendants' argument that the endangerment must exist when the suit is filed. Specifically, defendants cited a Senate Report defining "imminence" as applying "to the nature of the threat. . . . The section, therefore, may be used for events which took place at some time in the past but which continue to present a threat to the public health or the environment."110 The majority ignored this legislative history, and instead relied on the U.S. Court of Appeals for the Eighth Circuit's interpretation of RCRA § 7003 in United States v. Aceto Agricultural Chemicals Corp.,111 in which the Eighth Circuit allowed the United States to pursue a § 7003 action even though the government already had abated the contamination in question.112 According to the majority, the Aceto court read the imminent endangerment requirement in § 7003 as "limit[ing] the reach of RCRA to sites where the potential for harm is great" but not limiting the time for filing an action.113 In applying Aceto's § 7003 analysis to plaintiff's § 7002 citizen suit, the majority assumed without further analysis that Aceto had been decided correctly, and that Aceto's§ 7003 analysis applies to § 7002 citizen suits.114

Next, the majority concluded that § 7002 authorizes a cause of action for restitution of cleanup costs, reasoning that such authority "falls within the statutory authority for district court orders that defendants take 'such other action [25 ELR 10417] as may be necessary.'"115 Rather than rely on the legislative history of §§ 7002 or 7003 to support this interpretation, the majority relied on the Eighth Circuit's decisions in Aceto and United States v. Northeastern Pharmaceutical & Chemical Co.,116 both of which allowed EPA to proceed with § 7003 actions to recover post - abatement cleanup costs, according to the KFC Western majority.117 Although Aceto implied this result, the Northeastern Pharmaceutical court held that § 7003 imposes strict liability on past off - site generators and transporters of hazardous substances.118

The majority rejected the defendants' argument that the lack of a statute of limitations in § 7002 evidenced Congress' intent not to allow cost recovery actions under § 7002.119 Defendants argued that Congress provided a statute of limitations under CERCLA's cost recovery provisions, and the lack of a statute of limitations would result unfairly in allowing citizen suits to be filed many years after a cleanup.120 The majority saw no problem with the lack of a statute of limitations and, citing the § 7002(f) savings clause, said that instead of providing a limitations period, § 7002(f) allows citizens to retain the right "to seek any other relief available 'under any statute or common law. . . .'"121 The court then commented that the availability of equitable defenses, such as laches, remedies any unfairness the lack of a limitations provision may cause.122

The majority summarily dismissed as unpersuasive the Sixth Circuit's decision in Walls and the Fourth Circuit's decision in Lamphier.123 The majority refused to follow Walls and Lamphier because these opinions interpret § 7002 as it existed before HSWA. But the majority did not identify what about the 1984 amendments caused them to find Walls and Lamphier unpersuasive.124 The majority also rejected the reasoning two district courts used in refusing to imply private causes of action to recover damages under § 7002, including cleanup costs, without specifying what aspect of their reasoning it disapproved of.125

The majority made a lengthy policy argument in favor of allowing citizen suit claims for restitution of cleanup costs.126 The court said that there is no time for innocent citizens who purchased contaminated property to seek injunctive relief against past polluters, especially when they receive a government - issued cleanup order.127 To bar restitutionary remedies under § 7002 thus "would make the citizen suit remedy meaningless in most cases for the very citizens who most deserve the remedy, namely innocent citizens, like the plaintiff,128 who have a financial stake in the contaminated property as well as potential and actual clean - up liability."129

The majority suggested that cost recovery was somehow justified under RCRA because plaintiff had no other avenue of remedy. The plaintiff could not sue under CERCLA because of the petroleum exclusion.130 It could not seek to recover costs under the California Hazardous Substances Account Act as a result of the petroleum exclusion in that Act.131 The majority dismissed common - law tort causes of action as inadequate "because of the difficulties of proof and attendant court delays."132

Finally, the majority said that allowing cost recovery was more important for private citizens under § 7002 than for EPA under § 7003 because private citizens, unlike the government, cannot control the timing of cleanups. Private citizens, according to the majority, must perform cleanups immediately upon receiving a government cleanup order.133 Citing the Third Circuit's decision in United States v. Price,134 the majority concluded that public policy concerns favor allowing citizens to clean up property first and seek reimbursement later.

The Dissenting Opinion. A dissent criticized, often sharply, most of the majority's conclusions and reasoning.135 The dissent [25 ELR 10418] questioned the majority's unquestioning reliance on Aceto and its rejection of other circuit and district court cases that were directly on point. After reviewing § 7002 and its legislative history, the dissent concluded that Congress did not intend to authorize implied cost reimbursement actions. The dissent criticized the majority's savings clause and statute of limitations arguments, and dismissed the majority's policy arguments as speculative and as promoting a result that Congress had not seen fit to authorize.

The dissent first criticized the majority's unquestioning adoption of the Eighth Circuit's decision in Aceto as the main reason for allowing § 7002 cost recovery actions.136 The dissent emphasized that the Eighth Circuit had assumed that § 7003 permitted cost reimbursement actions without addressing the correctness of this assumption under the statute.137 The dissent also questioned the majority's reliance on Aceto, because the Eighth Circuit implied, but did not hold, that EPA could recover cleanup costs under § 7003.138

The dissent stated that the majority's adoption of Aceto undermined the plain language of § 7002(a)(1)(B).139 After analyzing relevant legislative history, including the specific legislative history that the majority had overlooked, the dissent concluded that Congress did not intend to authorize district courts to order liable parties "to take such other action as may be necessary" to also authorize cost reimbursement actions.140 The dissent concluded that § 7002's "imminent and substantial endangerment" provision requires the endangerment to exist at the time a citizen suit is filed;141 "[o]nly if the statute had read 'may or may have presented' would it have implied that [§ 7002(a)(1)(B)] permits reimbursement actions for an endangerment that someone had already cleaned up."142

The dissent said that § 7002's notice provision and its lack of a statute of limitations both weighed against allowing post - abatement cost recovery actions.143 It questioned why citizens would be required to give notice to the government of their intent to file citizen suits if the endangerment already has been abated when the notice provision was designed to give EPA the opportunity to bring suit in the event of an imminent and substantial endangerment.144

The dissent also criticized the majority's use of the savings clause in § 7002(f) to rationalize Congress' failure to provide a statute of limitations for citizen suits.145 After noting that the majority had conceded that Congress included a statute of limitations in CERCLA when it expressly authorized cost recovery actions, the dissent said that the lack of a limitations period for citizen suits suggests that Congress did not intend to authorize cost recovery actions under § 7002.146 The dissent added that § 7002's savings clause does not limit the relief available, was intended to preserve other rights to seek relief, and in no way authorizes cost reimbursement actions.147

Turning to the majority's outright rejection of the other district court decisions that refused to allow the recovery of money damages in RCRA citizen suits, the dissent noted that these cases were directly on point while the majority's authorities were not RCRA citizen suit cases.148 It also criticized the majority's rejection of the Sixth and Fourth Circuits' decisions in Walls and Lamphier, stating that the main change HSWA made to § 7002 was to clarify that citizens may now sue past contributors to cleanup sites.149

In response to the majority's policy argument, the dissent said it could find nothing in the record to indicate that the plaintiff could not have sued the defendants before cleaning up the property.150 It suggested that if the plaintiff had provided EPA with notice on discovering the contamination, perhaps EPA would have sued the defendants.151 The dissent sympathized with "the Majority's desire to hold the contaminators responsible."152 It emphasized, however, that the plaintiff lost its citizen suit remedy by cleaning up the property before filing its claim.153 The dissent agreed that it was unfortunate that neither CERCLA nor state statutory law provided the plaintiff a remedy. It commented, in closing, that "[m]aybe restitutionary actions under RCRA [are] necessary and practical, but it is not something that Congress has thus far enacted into legislation."154

Analysis

The KFC Western majority ignored well - established U.S. Supreme Court doctrine; the Supreme Court's decisions in Sierra Club, Sea Clammers, and other implied private right of action cases; the specific provisions of RCRA §§ 7002 and 7003; and the legislative history of these provisions in reaching its decision. The majority's failure to follow, discuss, or cite Supreme Court doctrine on implied private causes of action is surprising in light of the Ninth Circuit's experience in Sierra Club. In that case, the Supreme Court overruled the Ninth Circuit for misapplying its implied private right of action analysis and finding an implied private right of action under § 10 of the Rivers and Harbors Act. The Supreme Court criticized the Ninth Circuit for reaching its decision in Sierra Club without analyzing either the provisions or legislative history of the Rivers and Harbors Act.155 The majority made this same mistake with RCRA in KFC Western.

[25 ELR 10419]

The majority's analysis of § 7002 consisted of little more than quoting of some of § 7002 and italicizing some of the key phrases in dispute. The majority even admitted that portions of § 7002's legislative history that it did quote contradicted its holding and supported the defendants' arguments.156 It then expressly disregarded this contradictory legislative history, abandoned its analysis of § 7002's language and legislative history, and turned to the Eighth Circuit's Aceto decision for help. And it did so without finding any specific congressional intent to authorize an implied private cost recovery claim under § 7002.157

This analysis clearly contradicts the Supreme Court's implied private right of action doctrine. If the majority could not find congressional intent to authorize an implied private cost recovery claim after reviewing § 7002 and its legislative history, it should have stopped there and affirmed the district court's dismissal of the plaintiff's cost recovery claims. Instead, its analysis continued, examining cases involving § 7003 and policy reasons for allowing private cost recovery claims under § 7002. As the Supreme Court emphasized in overruling the Ninth Circuit in Sierra Club, these other issues are irrelevant in the absence of a finding of congressional intent to create an implied remedy.158

The KFC Western majority relied on the phrase "to order such person to take such other action as may be necessary" as authority for allowing a private cost recovery action under § 7002. It did so without citing any legislative history as authority for this interpretation.159 In light of the majority's reliance on Price as support for its policy argument,160 the majority's interpretation of this phrase is surprising. The Third Circuit in Price quoted legislative history that specifically contradicted the majority's interpretation of this phrase. This legislative history indicates that the phrase "take such other action as may be necessary" was intended to authorize both short - and long - term injunctive relief needed to compel responsible parties to assess and remediate problems associated with solid and hazardous waste.161 The majority opinion's smorgasbord - style use of the Price decision — picking and choosing the portions of Price that supported its holding while leaving behind the contradictory parts — seriously undermines its credibility.

If the Ninth Circuit had applied the Supreme Court's implied private right analysis, it would have discovered that the Eighth Circuit's decision in Aceto was wrong, and that Congress did not intend to authorize implied cost recovery claims under RCRA §§ 7002 or 7003. To date, Congress has not included in §§ 7002 or 7003 a specific cause of action to recover cleanup costs or any other form of damages. This is so despite the fact that Congress amended § 7002 in 1978 and 1984, and § 7003 in 1978, 1980, and 1984.

Moreover, the legislative history to HSWA suggests that Congress intended to preclude implied damages claims under § 7002. In 1984, Congress was concerned that citizens would frustrate the abatement purpose of § 7002 by clogging the federal courts with pendent state - law damages claims. Several members of Congress sought a clarifying amendment to prohibit district courts from considering pendent state - law claims in abatement actions under § 7002. Although Congress chose not to preclude pendent state - law claims, it cautioned that the district courts should exercise discretion concerning pendent jurisdiction so as not to frustrate § 7002's abatement goal.162 It is hard to believe that Congress would caution courts about considering state - law damages claims and then authorize implied damages claims under the statute.

Congress repeatedly stated in enacting and amending §§ 7002 and 7003 that these provisions were designed to ensure compliance with RCRA and to provide for the swift abatement of imminent and substantial endangerments associated with solid and hazardous waste.163 Moreover, in discussing the meaning of "imminent and substantial endangerment," Congress indicated that an imminent endangerment must exist at the time a suit is filed under §§ 7002 or 7003, even if past conduct or activities caused the endangerment. Congress further indicated that the provision "to take such other action as may be necessary" authorizes courts to order short - and long - term injunctive relief aimed at abating endangerments. Despite repeatedly discussing the purposes of these provisions, Congress has not indicated that the recovery of costs or other damages are among those purposes.

Congress' prohibition of citizen suits under the circumstances specified in § 7002(b) is completely inconsistent with the Ninth Circuit's decision to allow recovery of damages under § 7002. Section 7002(b) prohibits the filing of citizen suits when the United States, a state, or responsible parties are taking certain actions to abate the endangerment in question.164 If Congress had intended to allow for the recovery of damages, it would not have prohibited such recovery simply because an endangerment is being abated by someone else. This is so because the abatement of an endangerment, no matter how beneficial it may be to the public at large, may not always compensate citizens for private damages they have suffered. The citizen suit prohibitions, on the other hand, are completely consistent with Congress' goals of harmonizing the abatement and RCRA enforcement activities of the United States, the states, and citizens, and preventing duplicative lawsuits and the confusion that would result without such coordination.

Furthermore, Congress had the cost recovery provisions of CERCLA available as a model when it amended §§ 7002 and 7003 in 1984. Since the 1984 amendments to RCRA. Congress has enacted the Oil Pollution Act of 1990, which contains detailed provisions concerning the recovery of [25 ELR 10420] removal costs and damages by private citizens.165 Congress' failure to amend § 7002 to allow for the recovery of cleanup costs or other damages, its decisions to add such claims under other statutes, and its concern in 1984 over the possibility of state - law damages claims frustrating the abatement purpose of § 7002, indicate that it did not intend to authorize implied private claims for the recovery of cleanup costs or other damages under RCRA.

In light of RCRA's detailed enforcement scheme and elaborate citizen suit provision, it is wrong to assume that Congress intended to authorize implied damages claims under § 7002. Congress modeled the original version of § 7002 after the FWPCA citizen suit provision. In 1984, HSWA made RCRA § 7002's enforcement provisions significantly more elaborate than those found in the FWPCA.166 The elaborate enforcement provisions of the FWPCA and the MPRSA were the key factors in the Supreme Court's decision not to imply private damages claims under those statutes in Sea Clammers.167 The significantly more complex RCRA citizen suit provision suggests that Congress intended that private causes of action to recover cleanup costs and other damages should not be implied under § 7002.

As the Supreme Court emphasized in Sea Clammers, it is "'an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.'"168 This "elemental canon" should apply with equal force as courts construe RCRA § 7002.

Conclusion

Today, it seems that everyone is suing everyone to spread the burden of environmental cleanup costs. No one is immune from this liability virus — not the corner gas station, the neighborhood toy store, or the local pizza parlor. As a result, the public is crying foul and Congress is calling for the reform of hazardous waste liability schemes. In such times, the judicial activism the KFC Western majority demonstrated is particularly disturbing, in addition to being completely unwarranted.

CERCLA's cost recovery provisions, the injunctive relief provisions of RCRA § 7002, the citizen suit provisions of other environmental statutes, and well - established common - law remedies provide citizens with ample means to abate environmental problems and to recover damages for private losses. As with all causes of action, however, citizens must carefully follow the rules of the road when initiating environmental litigation.

In addition to following the usual legal requirements, such as statutes of limitation, environmental litigants must plan carefully before acting. For example, when deciding whether to clean up environmental contamination, citizens must determine whether cleanup costs can be recovered. Cost recovery may be difficult, if not impossible, in certain circumstances. This is particularly true in situations involving contamination by gasoline and other petroleum products, due to CERCLA's petroleum exclusion and similar exclusions under state superfund statutes. In such situations, citizens probably should seek injunctive relief against responsible parties under § 7002 or other citizen suit provisions, on an emergency basis if necessary, before incurring significant cleanup costs. With injunctive relief in hand, citizens have a powerful bargaining chip in cleanup negotiations with responsible parties.

The plaintiff's actions in KFC Western highlight the need for such environmental litigation planning and the law-stretching consequences that can occur in its absence.

1. 42 U.S.C. § 6972, ELR STAT. RCRA § 7002.

2. See infra notes 54-72 and accompanying text for a discussion of § 7002 and its legislative history.

3. Hazardous and Solid Waste Amendments, Pub. L. No. 98-616, 98 Stat. 3221 (1984); see infra notes 59-63.

4. 42 U.S.C. § 6973, ELR STAT. RCRA § 7003; see infra notes 73-79 accompanying text for a discussion of § 7003 and its legislative history.

5. See infra notes 54-72 and accompanying text for a discussion of § 7002 and its legislative history.

6. See 42 U.S.C. § 6972(a), ELR STAT. RCRA § 7002(a); see infra notes 54-72 and accompanying text for a discussion of § 7002 and its legislative history.

7. See infra notes 80-99 and accompanying text for a discussion of federal circuit and district court cases that considered whether to imply a cause of action for damages under RCRA § 7002.

8. See infra notes 80-99 and accompanying text for a discussion of federal circuit and district court cases that considered whether to imply a cause of action for damages under RCRA § 7002.

9. Environmental Defense Fund v. Lamphier, 714 F.2d 331, 337, 13 ELR 21094, 21096 (4th Cir. 1983).

10. Bayless Investment & Trading Co. v. Chevron U.S.A., Inc., No. 93-0740, 39 Env't Rep. Cas. (BNA) 1428 (D. Ariz. May 26, 1994); KFC Western, Inc. v. Meghrig, 49 F.3d 518, 25 ELR 20638 (9th Cir. 1995).

11. California v. Sierra Club, 451 U.S. 287, 293, 11 ELR 20357, 20358 (1981); Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 11 ELR 20684 (1981).

12. 49 F.3d at 518, 25 ELR at 20638.

13. A recent article reported that the KFC Western decision has spawned a wave of new lawsuits and amendments to others. Court Ruling of Cost Recovery Under RCRA Spawns Raft of New Lawsuits, INSIDE EPA,at 1 (May 12, 1995). This article identifies EPA sources saying that as a result of KFC Western, they would increase their use of RCRA § 7003 orders instead of Superfund authorities to compel the cleanup of contaminated sites. RCRA § 7003 has at least two advantages over enforcement under Superfund: "there is no 'petroleum exclusion' as there is under Superfund, and in the wake of the KFC decision, the agency can recover attorneys' fees for litigation." Id. at 2. Sources also said that Congress must reform RCRA as well as Superfund if members want to achieve Congress' and the Clinton Administration's stated goal of reducing the litigation and transaction costs of cleaning up contaminated sites. Id.

14. Suter v. Artist M, 118 L. Ed. 2d 1, 16 (1992); Karaholios v. National Fed'n of Federal Employees, 489 U.S. 527, 532 (1989); Thompson v. Thompson, 484 U.S. 174, 179 (1988); Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 535-36 (1984); Sea Clammers, 453 U.S. at 13-21, 11 ELR at 20686-89; Sierra Club, 451 U.S. at 293, 11 ELR at 20358; Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76 (1979); see also Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1102 (1991) (refusing to expand the scope of a previously implied cause of action under § 14(a) of the Security Exchange Act); cf. Key Tronic Corp. v. United States, 114 S. Ct. 1960, 24 ELR 20955 (1994) (refusing to allow attorneys fees recovery by PRPs associated with a cost recovery action under theComprehensive Environmental Response, Compensation, and Liability Act (CERCLA) stating, among other things, that Congress had included two express fee award provisions in the Superfund Amendments and Reauthorization Act without including similar provisions in favor of private parties under either CERCLA §§ 107 or 113).

15. Sierra Club, 451 U.S. at 293, 11 ELR at 20358 (quoting Cort, 422 U.S. at 66, 78 (1975)).

16. 422 U.S. at 80-84.

17. E.g., Touche Ross, 442 U.S. at 568, 575-76 (holding that there was no implied private cause of action for damages under § 17(a) of the Security Exchange Act of 1934 (1934 Act). The U.S. Court of Appeals for the Second Circuit in Touche Ross relied on other Cort factors to imply a private cause of action under § 17(a) — whether an implied remedy would effectuate the purpose of the section, and whether the cause of action is one traditionally relegated to state law. In response, the Supreme Court emphasized that each of these factors are not entitled to equal weight. Id. at 575. "The central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action." Id. The Court stressed that the inquiry is not "whether this Court thinks that it can improve upon the statutory scheme that Congress enacted into law." Id. at 578.

18. Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 15, 11 ELR 20684, 20687 (1981); see also Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 147 (1985); Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 93 (1981).

19. E.g., Sierra Club, 451 U.S. at 298, 11 ELR at 20359; Touche Ross, 442 U.S. at 578.

20. Sierra Club, 451 U.S. at 298, 11 ELR at 20359; Touche Ross, 442 U.S. at 578.

21. Karaholios v. National Fed'n of Federal Employees, 489 U.S. 527, 553 (1989) (citing Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979)).

22. Sea Clammers, 453 U.S. at 15, 11 ELR at 20687; see also Massachusetts Mutual Life, 473 U.S. at 147; Northwest Airlines, 451 U.S. at 93.

23. Wilder v. Virginia Hosp. Ass's, 496 U.S. 498, 509 n.9 (1990) (citing Thompson, 484 U.S. at 191-92 (Scalia, J., concurring in judgment)); see Cannon v. University of Chicago, 441 U.S. 677, 742-49 (1979) (Powell, J., dissenting). Dissenting in Cannon, Justice Powell stated:

Under art. III, Congress alone has the responsibility for determining the jurisdiction of the lower federal courts. As the Legislative Branch, Congress also should determine when private parties are to be given causes of action under legislation it adopts. As countless statutes demonstrate, including Titles of the Civil Rights Act of 1964, Congress recognizes that the creation of private actions is a legislative function and frequently exercises it. When Congress chooses not to provide a private civil remedy, federal courts should not assume the legislative role of creating such a remedy and thereby enlarge their jurisdiction.

441 U.S. at 730-31 (Powell, J., dissenting). Justice Powell further warned, in criticizing Cort, that "the Cort analysis too easily may be used to deflect inquiry away from the intent of Congress, and to permit a court instead to substitute its own views as to the desireability of private enforcement." Id. at 740 (Powell, J., dissenting). Justice Powell noted that "[i]n the four years since we decided Cort, no less than 20 decisions by the Courts of Appeals have implied private actions from federal statutes." Id. at 741 (Powell, J., dissenting). In emphasizing the need to reexamine the Cort analysis, he stated that "[i]t defies reason to believe that in each of these statutes Congress absentmindedly forgot to mention an intended private action." Id. at 742 (Powell, J., dissenting).

24. In his concurring opinion in Thompson v. Thompson, Justice Scalia described the Court's and his own inhospitable attitude toward implied rights of action.

Contrary to what the language of today's opinion suggests, this Court has long since abandoned its hospitableattitude toward implied rights of action. In the 23 years since Justice Clark's opinion for the court in J.I. Case Co. v. Borak, we have twice narrowed the test for implying a private right, first in Cort v. Ash itself, and then again in Touche Ross & Co. v. Redington and Transamerica Mortgage Advisers, Inc. v. Lewis . . . . The recent history of our holdings is one of repeated rejection of claims of an implied right. This has been true in 9 of 11 recent private right of action cases heard by this Court, including the instant case.

484 U.S. at 190-91 (Scalia, J., concurring) (emphasis in original) (citations omitted). Justice Scalia then expressed his opinion "that, if the current state of the law were to be changed, it should be moved in precisely the opposite direction — away from our current congressional intent test to the categorical position that federal private rights of action will not be implied." Id. at 191 (Scalia, J., concurring). In Virginia Bankshares, Inc. v. Sandberg, the Court stated that the breadth of an implied right of action "once recognized should not, as a general matter grow beyond the scope congressionally intended." 501 U.S. 1083, 1102 (1991) (citing Mills v. Electric Auto - Lite Co., 396 U.S. 375, 385 (1970)).

25. 451 U.S. 287, 11 ELR 20357 (1981).

26. 453 U.S. 1, 11 ELR 20684 (1981).

27. 451 U.S. at 289-90, 11 ELR at 20357.

28. Id. at 289, 11 ELR at 20357 (citing Rivers & Harbors Act, 33 U.S.C. § 403).

29. Sierra Club v. Andrus, 610 F.2d 581, 592, 9 ELR 20772, 20776 (9th Cir. 1979).

30. Id. at 587, 9 ELR at 20774. The Ninth Circuit, applying the fourth Cort factor, also concluded that this was not the type of action traditionally relegated to state law. Id. at 591, 9 ELR at 20776.

31. Sierra Club, 451 U.S. at 293, 11 ELR at 20358.

32. Id. at 294, 11 ELR at 20358 (stating "The question is not simply who would benefit from the Act, but whether Congress intended to confer federal rights upon those beneficiaries.").

33. Id. at 297, 11 ELR at 20359.

34. Id. at 297-98, 11 ELR at 20359.

35. Id. at 298, 11 ELR at 20359.

36. The FWPCA citizen suit provision is set forth in § 505 and served as a model for the original RCRA citizen suit provision. It authorizes private parties to file suit in federal district court to enforce an effluent standard or limitation or to force the EPA Administrator to perform any nondiscretionary duty. 33 U.S.C. § 1365, ELR STAT. FWPCA § 505.

37. The citizen suit provision in the MPRSA provides, in pertinent part:

Except as provided in paragraph (2) of this subsection any person may commence a civil suit on his own behalf to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any prohibition, limitation, criterion, or permit established or issued by or under this subchapter. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such prohibition, limitation, criterion, or permit, as the case may be.

Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 7 n.11, 11 ELR at 20684, 20685 n.11 (1981) (quoting 33 U.S.C. § 1415(g)(1)).

38. Sea Clammers, 453 U.S. at 4, 11 ELR at 20684.

39. Id. at 5, 11 ELR at 20684-85 (quoting Respondents' Complaint, para. 39, App. 26a).

40. Sea Clammers, 453 U.S. at 5, 11 ELR at 20685.

41. Id. at 6-7, 11 ELR at 20685.

42. Id. at 15, 11 ELR at 20687 (quoting National Sea Clammers Ass'n v. City of New York, 616 F.2d 1222, 1227, 10 ELR 20155, 20157 (3d Cir. 1980)).

43. Sea Clammers, 453 U.S. at 15, 11 ELR at 20687.

44. Id. at 9, 11 ELR at 20686.

45. Id. at 13, 11 ELR at 20687. Using the FWPCA as an example, the Court noted that the EPA Administrator had the authority to enforce the Act with compliance orders and criminal and civil suits, and to seek civil and criminal penalties. The Court mentioned the FWPCA provisions concerning the delegation to states of authority to administer and enforce their own permit programs. The Court discussed the authority of persons to challenge in U.S. appellate courts certain actions by the Administrator, including the establishment of effluent standards and the issuance of discharge permits. The Court indicated that most of these enforcement mechanisms have counterparts in the MPRSA, and that both statutes are supplemented by express citizen suit provisions that authorize injunctive relief. Id. at 13-14, 11 ELR at 20687.

46. 453 U.S. at 14, 11 ELR at 20687.

47. Id. at 14-15, 11 ELR at 20687 (quoting Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979)).

48. Id. at 18, 11 ELR at 20688.

49. Id. at 16, 11 ELR at 20687. The Court quoted from the Senate Report concerning the FWPCA savings clause, which stated that "this section would specifically preserve any rights or remedies under any other law. Thus, if damages could be shown, other remedies would remain available." Id. at 16 n.26, 11 ELR at 20687 n.26 (quoting S. REP. No. 414, 92d Cong., 1st Sess. 81 (1971)).

50. Sea Clammers, 453 U.S. at 16, 11 ELR at 20687.

51. Id. at 19, 11 ELR at 20688. The Court noted that in its previous term, it had construed 42 U.S.C. § 1983 as authorizing suits to redress violations by state officials of rights created by federal statutes. Id. (citing Maine v. Thiboutot, 448 U.S. 1 (1980)). The Court commented that it was appropriate to consider this issue because a decision in favor of allowing a suit under § 1983 would eliminate the need for deciding the implied cause of action issue. Id.

52. Sea Clammers, 453 U.S. at 20, 11 ELR at 20688.

53. Id. at 21, 11 ELR at 20689.

54. The original citizen suit provision provided, in pertinent part:

(a) In General — except as provided in subsection (b) or (c) of this sectin, any person may commence a civil action on his own behalf —

(1) against any person (including (a) the United States, and (b) any othe governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any permit, standard, regulation, condition, requirement, or order which has become effective pursuant to this Act; or

(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this Act which is not discretionary with the Administrator.

The district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such regulation or order, or to order the Administrator to perform such act or duty as the case may be.

Resource Conservation and Recovery Act of 1976, Pub. L. No. 94-580, 90 Stat. 2795, 2825 (codified as amended at 42 U.S.C. § 6972, ELR Stat. RCRA § 7002).

55. SENATE COMMITTEE ON PUBLIC WORKS, SOLID WASTE UTILIZATION ACT OF 1976, S. REP. NO. 988, 94th Cong. 2d Sess. 17-18 (1976). The House Report on RCRA did little more than summarize the citizen suit provisions. See H.R. REP. NO. 1491, Part I, 94th Cong., 2d Sess. 8 & 69, reprinted in 1976 U.S.C.C.A.N. 6245, 6307.

56. S. REP. NO.988, supra note 55, at 18.

57. Id.

58. Id. In 1978, Congress amended RCRA, making minor word changes to §§ 7002 and 7003 that do not relate to the recoverability of damages under § 7002. See Quiet Communities Act of 1978, Pub. L. No. 95-609, 92 Stt. 3083 (1978).

59. The citizen suit provision, as amended in 1984, provides in pertinent part:

(a) In general — except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf —

(1)(A) against any person (including (a) the United States and (b) any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this Act; or (B) against any person, including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Cnostitution, and including any past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handing, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment; or

(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this Act which is not discretionary with the administrator.

The district court shall have jurisdiction, without regard to the amount in controversy or citizenship of the parties, toe nforce the permit, standard, regulation, condition, requirement, prohibition, or order, referred to in paragraph (1)(A), to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), to order such person to take such other action as may be necessary, or both, or to order the Administrator to perform the act or duty referred to in paragraph (2), as the case may be, and to apply any appropriate civil penalties under section 3008(a) and (g).

42 U.S.C. § 6972(a), ELR STAT. RCRA § 7002(a).

60. H.R. REP. NO. 198, Part I, 98th Cong., 2d Sess. 53, reprinted in 1984 U.S.C.C.A.N. 5576, 5612 (emphasis added).

61. Id. at 5611-12.

62. Id. at 5635 (emphasis added). Theminority of representatives asked the House Committee to adopt a clarifying amendment that would have forbid the district courts from hearing pendent state-law claims to imminent and substantial endangerment actions brought under § 7002. In resonse to the Committee's refusal to adopt this amendment, the Representatives prepared an objection to the citizen suite amendments. The minority views report stated:

Unfortunately, we believe the citizen suit provision goes much further than was intended because, under a legal doctrine called pendant jurisdiction, citizens will have the opportunity to try to bring all related state claims they may have into the federal court system, when they sue to abate imminent hazards. In our opinion, this is an extremely troubling result for a numbe rof reasons. First, there would be a potentially crushing new burden on the federal court system. This court system is a fraction of the size of the state court system and is not equipped to resolve complicated state law questions. Federal court judges would at times have to turn to state courts for guidance during the course of the suit. This could slow down the proceeding which, as we understand it, is intended to be an emergency type action to abate imminent hazards. Instead of ending the imminent hazard, federal judges will be trying to decide cumbersome questions of state law nuisance, trespass, and personal and property damage compensation.

We believe these types of state law claims should continue to be within the exclusive province of the state courts which have the background and experienced necessary forproper decision-making. It is in state courts that citizens will get the most expeditious and well-founded decision for their state claims. Unfortunately, however, the full Committee refused to adopt the amendme which would have clarified this result.

Id. (emphasis added).

63. H.R. REP. No. 198, supra note 60, at 53, reprinted in 1984 U.S.C.C.A.N. at 5612 (emphasis added). The Report of the Senate Committee on Environment and Public Works on the Solid Waste Disposal Act Amendments of 1983 echoed the House Committee's comments on pendent jurisdiction. S. REP. No. 284, 98th Cong., 1st Sess. 57 (1983).

64. See SUSAN M. COOKE, THE LAW OF HAZARDOUS WASTE, MANAGEMENT, CLEANUP, LIABILITY AND LITIGATION § 16.03[3][b], 16-121-22 (1992 & Supp. 1995).

65. Section 7002(a) defines the term "any person" broadly to include the United States, any other governmental instrumentality or agency, individuals, and business entities. 42 U.S.C. § 6972(a), ELR STAT. RCRA § 7002(a). The term "person" also is defined broadly in § 1004(15). Id. § 6903(15), ELR STAT. RCRA§ 1004(15). Id. § 6903(15), ELR STAT. RCRA § 1004(15).

66. 42 U.S.C. § 6972(a)(1)(A), ELR STAT. RCRA § 7002(a)(1)(A); see COOKE, supra note 64, § 16.03[3][b].

67. 42 U.S.C. § 6972(a)(1)(B), ELR STAT. RCRA § 7002(a)(1)(B).

68. Id. § 6972(a)(2), ELR STAT. RCRA § 7002(a)(2).

69. Section 7002(a) provides federal district courts with jurisdiction to:

(1) Enforce the RCRA requirements that allegedly have been violated;

(2) Restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous wastes ("responsible person") which "may present an imminent and substantial endangerment to health or the environment";

(3) Order responsible persons "to take such other action as may be necessary, or both"; or

(4) Order the Administrator to perform any nondiscretionary act or duty.

Id. § 6972(a), ELR STAT. RCRA § 7002(a); see COOKE, supra note 64, § 16.03[3][f].

70. 42 U.S.C. § 6972(b), ELR STAT. RCRA § 7002(b). A citizen filing a § 7002(a)(1)(A) suit to enforce RCRA must wait 60 days. Id. § 6972(b)(1)(A), ELR STAT. RCRA § 7002(b)(1)(A). A citizen filing a § 7002(a)(1)(B) suit to abate an imminent and substantial endangerment must wait 90 days. Id. § 6972(b)(2)(A), ELR STAT. RCRA § 7002(b)(2)(A).

71. 42 U.S.C. § 6972(b), ELR STAT. RCRA § 7002(b).

72. Id. § 6972(b), ELR STAT. RCRA § 7002(b). Section 7002(b)(2)(B) forbids citizens from suing to abate "imminent and substantial endangerments" when the Administrator has:

(1) Commenced and is diligently prosecuting an action under section 7003 of RCRA or section 106 of CERCLA;

(2) Is actually engaging in a removal action under section 104 of CERCLA;

(3) Incurred costs to initiate a Remedial Investigation and Feasibility Study ("RIFS") under section 104 of CERCLA and is diligently proceeding with a remedial action under CERCLA; or

(4) Obtained a court order (including a consent decree) or issued an administrative order under section 106 of CERCLA or section 7003 of RCRA under which a responsbile party is diligently conducting a removal action, an RIFS, or proceeding with a remedial action.

Id. § 6972(b)(2)(B), ELR STAT. RCRA § 7002(b)(2)(B). "In the case of an administrative order referred to in cluase (iv), actions under subsection (a)(1)(B) are prohibited only as to the scope and duration of the administrative order refered to in clause (iv)." Id. Similarly, § 7002 prohibits citizens from filing actions to abate endangerments when the state has filed a citizen suit under § 7002, is engaging in a removal action under CERCLA § 104, or has incurred costs to initiate an RIFS under CERCLA § 104 and is diligently proceeding with the remedial action under CERCLA. Id. § 6972(b)(2)(C), ELR STAT. RCRA § 7002(b)(2)(C).

73. 42 U.S.C. § 6973, ELR STAT. RCRA § 7003.

74. See supra notes 59-61 and accompanying text.

75. In the 1980 amendments to § 7003, the Senate Environment and Public Works Committee Report indicated that § 7003 — like other imminent and substantial endangerment provisions in FWPCA § 504, Clean Air Act § 303, and Safe Drinking Water Act § 1431 — was "essentially a codification of common law public nuisance remedies." S. REP. No. 172, 96th Cong., 2d Sess. 5, reprinted in 1980 U.S.C.C.A.N. 5023. The Report stated:

The Congress made this intent clear as early as 1948 when, in section 2(d) of the Water Pollution Control Act (the forerunner of present - day imminent hazard provisions), it expressly declared that "(t)he pollution of interstate waters . . . which endangers the health or welfare of persons . . . is hereby declared to be a public nuisance and subject to abatement as herein provided" and authorized the appropriate federal official to request the Attorney General to bring suit on behalf of the United States "to secure abatement of the pollution."

Id. (emphasis added). Black's Law Dictionary defines the term "abatement of a nuisance" as "[t]he removal, stoppage, prostration, or destruction of that which causes a nuisance, whether by breaking or pulling it down, or otherwise, removing, destroying, or effacing it." BLACK'S LAW DICTIONARY 962 (5th ed. 1979).

The House Energy and Commerce Committee Report on HSWA indicated that the amendments to § 7003 were intended to clarify the scope of EPA's power to seek court orders requiring responsible parties to abate imminent and substantial endangerments pertaining to the handling and disposal of solid and hazardous waste. H.R. REP. No. 198, supra note 60, at 47, reprinted in 1984 U.S.C.C.A.N. at 5606-08. The House Report repeatedly stated that § 7003 was intended, both originally and as amended, to bestow equitable authority on the EPA "to seek court orders directing those persons whose past or present acts have contributed to or are contributing to the existence of an imminent and substantial endangerment to abate such conditions. These amendments ratify this practice and confirm that the abatement authority vested in EPA and the courts extends to both past and present acts contributing to an imminent and substantial endangerment." Id. at 5607 (emphasis added).

The House Report further described the abatement purpose of § 7003 and the amendments as follows:

Moreover, because Section 7003 focuses on the abatement of conditions threatening health and the environment and not a particular human activity, it has always reached those persons who have contributed in the past or are presently contributing to the endangerment, including but not limited to generators, regardless of fault or negligence. . . . Thus, for example, non-negligent generators whose wastes are no longer being deposited or dumped at a particular site may be ordered to abate the hazard to health or the environment posed by the leaking of wastes they once deposited or caused to be deposited on the site. The amendment reflects the long - standing view that generators and other persons involved in the handling, storage, treatment, transportation, or disposal of hazardous wastes must share in the responsibility for the abatement of the hazards arising from their activities.

Id. (emphasis added). The House Report also emphasized that the amendments to § 7003 were made in response to court decisions that restricted its application. Id. (citing United States v. Wade, 546 F. Supp. 785, 12 ELR 21051 (E.D. Pa. 1982) (nonnegligent past off - site generators of hazardous waste not liable under § 7003); United States v. Waste Indus., Inc., 556 F. Supp. 1301, 13 ELR 20286 (E.D.N.C. 1982)(§ 7003 not intended to apply to past conduct that had terminated before enforcement was sought), rev'd, 734 F.2d 159, 14 ELR 20461 (4th Cir. 1984)).

76. In considering HSWA, the Senate Committee on Environment and Public Works indicated that "[a]n endangerment is 'imminent' and actionable when it is shown that it presents a threat to human health or the environment, even if it may not eventuate or be fully manifest for a period of many years — as may be the case with drinking water contamination, cancer, and many other effects." S. REP. No. 284, supra note 63, at 59.

A House Subcommittee Report that preceded the 1980 RCRA amendments indicates that Congress intended § 7003 to assist EPA in compelling abatement of existing endangerments. In discussing the meaning of "imminent" in § 7003, this Report stated:

Imminence in this section [7003] applies to the nature of the threat rather than identification of the time when the endangerment initially arose. The section, therefore, may be used for events which took place at some time in the past but which continue to present a threat to the public health or the environment.

United States v. Waste Indus., Inc., 734 F.2d 159, 166, 14 ELR 20461, 20463 (4th Cir. 1984) (quoting H.R. REP. No. 31, 96th Cong., 1st Sess. 32 (Comm. Print 1979)(Eckhardt Report)(emphasis added)).

77. S. REP. No. 284, supra note 63, at 59.

78. Id. (emphasis added).

79. United States v. Price, 688 F.2d 204, 213, 12 ELR 21020, 21024 (3d Cir. 1982) (quoting H.R. REP. No. 31, 96th Cong., 1st Sess. 32 (Comm. Print 1979) (Eckhardt Report)). The Eckhardt Report summarized 13 days of testimony on the problem of hazardous waste disposal in the United States, reviewed EPA's proposed RCRA regulations, and made recommendations about the regulations and RCRA. Some of the discussion in the Eckhardt Report focused on the inadequacy of RCRA. In discussing the limitations of § 7003, the Eckhardt Report stated as follows:

This authority is of limited utility for several reasons. First, it is not preventative. It requires that an actual hazard exists. Second, EPA can only exercise this authority where the owner or responsible party is identifiable and financially and otherwise able to remedy it. Third, even where these conditions obtain, the "imminent and substantial" test carries a high burden of proof in court. Fourth, any remedial efforts can only begin after successful judicial action, which can take a long time.

In addition if the perpertrator is unknown; if the perpetrator cannot be located, cannot afford to clean up, or declares bankruptcy and walks away from the site; or if the responsible company was dissolved long ago, section 7003 is not an effective tool.

H.R. REP. No. 31, 96th Cong., 1st Sess. 32 (Comm. Print 1979) (emphasis added). The Eckhardt Report also discussed the need for legislation that would provide for the cleanup of abandoned waste disposal sites with money from a large federal fund. Id. at 57-61. This discussion ultimately lead to the passage of CERCLA in 1980. It did not, however, lead Congress to amend §§ 7002 or 7003 to provide for the recovery of cleanup costs or other damages.

80. 714 F.2d 331, 337, 13 ELR 21094, 21096 (4th Cir. 1983).

81. Id.

82. 761 F.2d 311, 15 ELR 20438 (6th Cir. 1985).

83. Id. at 313-14, 15 ELR at 20438.

84. Id. at 316, 15 ELR at 20439.

85. Id. at 315, 15 ELR at 20439 (citing Middlesex County Sewarage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 11 ELR 20684 (1981)).

86. 749 F. Supp. 441 (E.D.N.Y. 1990).

87. Id. at 445.

88. Id.

89. Id.; see also Agricultural Excess & Surplus Ins. Co. v. A.B.D. Tank & Pump Co., 878 F. Supp. 1091 (N.D. Ill. 1995) (refusing to allow recovery of past remediation expenses); Gache v. Town of Harrison, 813 F. Supp. 1037, 1045, 24 ELR 21023, 21026 (S.D.N.Y. 1993) (citing Commerce Holding and Lamphier, refusing plaintiff recovery of remediation costs under RCRA § 7002); Milbur v. Hi-Score Plant Food Co., No. 91-2008, 1992 U.S. Dist. LEXIS 20186 (E.D. Pa. Dec. 28, 1992) (plaintiff may not assert damages claim under RCRA § 7002).

90. 847 F. Supp. 380, 24 ELR 21577 (E.D. Va. 1994).

91. [MISSING FOOTNOTE]

92. Id. at 385, 24 ELR at 21579 (citing 42 U.S.C. § 6902, ELR STAT. RCRA § 1003, which lists the 11 objectives Congress announced when enacting RCRA).

93. 847 F. Supp. at 385, 24 ELR at 21579.

94. Id. (quoting Jaffee v. United States, 592 F.2d 712, 715 (3d Cir. 1979); Penn Terra Ltd. v. Department of Envtl. Resources, 733 F.2d 267, 14 ELR 20475 (3d Cir. 1984)).

95. 847 F. Supp. at 385, 24 ELR at 21579; see also Kaufman & Broad-South Bay v. Unisys Corp., 822 F. Supp. 1468, 1476-77, 23 ELR 21366, 21369-70 (N.D. Cal. 1993) (following the Walls decision, granting motion to dismiss portion of complaint seeking restitution under RCRA § 7002).

96. 746 F. Supp. 887, 21 ELR 20277 (D. Minn. 1990).

97. The court did not indicate which RCRA provision was involved. Yet the facts that the claim was part of a citizen suit for injunctive relief and that the court cited the RCRA citizen suit provision in discussing the residents' citizen suit claims under CERCLA, suggests that the residents' injunctive relief claim was brought under RCRA § 7002. Id. at 892 n.4, 21 ELR at 20279 n.4.

98. Id. at 895, 21 ELR at 20281.

99. Id.

100. KFC Western, Inc. v. Meghrig, 49 F.3d 518, 25 ELR 20638 (9th Cir. 1995); see also Bayless Investment & Trading Co. v. Chevron U.S.A., Inc., No. 93-0704, 39 Env't Rep. Cas. (BNA) 1428, 1432 (D. Ariz. May 26, 1994) (allowing reimbursement of cleanup costs under § 7002 under an analysis similar to that used by the majority in KFC Western).

101. The defendants, Alan and Margaret Meghrig, are brother and sister. Their father purchased the property in 1963, and deeded it to them while they were still in high school. Telephone Interview with John P. Zaimes, McClintock, Weston, Banshoof, Rochefort, Rubalcava, & MacCuish, Los Angeles, CA (June 8, 1995). The Meghrig family did not operate a service station on the property. Alan and Margaret Meghrig have only vague recollections of the property's uses before its sale to plaintiff in September 1975, and will testify that they had no knowledge that the property was contaminated when they sold it. Id.

A title search of the property indicated that service stations were operated there for approximately 45 years beginning in 1917. Id. The last underground storage tanks were installed on the property in 1951and removed in 1964. Id.

102. 49 F.3d at 519, 25 ELR at 20639.

103. Id.

104. Id.

105. Id.

106. Id.

107. Id.

108. Id.

109. Id. at 519-20, 25 ELR at 20639.

110. Id. at 520, 25 ELR at 20639 (quoting H.R. REP. NO. 31, supra note 79, at 32) (emphasis added). The Ninth Circuit also cited cases that support the defendants' interpretation of the term "imminent." Dague v. City of Burlington, 935 F.2d 1343, 1356, 21 ELR 21133, 21139 (2d Cir. 1991) (finding an "imminent hazard" requires proof that a risk of harm is present); United States v. Price, 688 F.2d 204, 214, 12 ELR 21020, 21025 (3d Cir. 1982) (noting that an imminent danger existed at the time of the district court hearing).

111. 872 F.2d 1373, 1383, 19 ELR 21038, 21043 (8th Cir. 1989).

112. 49 F.3d at 521, 25 ELR at 20640.

113. Although Congress amended RCRA § 7003 on three occasions — in 1978, 1980, and 1984 — it has not provided a cause of action for the recovery of cleanup costs following abatement of an imminent and substantial endangerment. This is particularly significant when considering that Congress had the CERCLA cost recovery model to borrow from during the drafting and enactment of the HSWA amendments in 1984. The Eighth Circuit in Aceto cited no legislative history as support for its decision to allow a government - prosecuted cost recovery claim to be filed and to proceed under § 7003 after the abatement activities had occurred. Indeed, the legislative history of § 7003 provides no support for post - abatement recovery actions. See supra notes 73-79 for a discussion of § 7003's legislative history.

114. 49 F.3d at 521, 25 ELR at 20640. Section 7003 and some portions of § 7002 are worded similarly and Congress did intend to confer "on citizens a limited right under Section 7002 to sue to abate an imminent and substantial endangerment pursuant to the standards of liability established under section 7003." H.R. REP. NO. 198, supra note 61, at 53, reprinted in 1984 U.S.C.C.A.N. at 5612. Nevertheless, the Eighth Circuit ignored the specific provisions of § 7003 and its legislative history in reaching its decision. See supra notes 73-79 and accompanying text for a discussion of the legislative history to § 7002.

115. 49 F.3d at 521, 25 ELR at 20640 (quoting 42 U.S.C. § 6972(a), ELR STAT. RCRA § 7002(a)). The legislative history of § 7002 does not specifically discuss the meaning of the phrase "take such other actions as may be necessary." The 1979 House Report on Hazardous Waste Disposal by the Subcommittee on Oversight and Investigations of the Committee on Interstate and Foreign Commerce specifically stated that this phrase referred to both short - and long - term injunctive relief needed for the assessment and remediation of problems associated with solid and hazardous waste. United States v. Price, 688 F.2d 204, 213, 12 ELR 21020 (3d Cir. 1982) (quoting H.R. REP. NO. 31, supra note 79, at 32); see supra note 79 and accompanying text for a discussion of this legislative history.

116. 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987).

117. 49 F.3d at 521-22, 25 ELR at 20640.

118. 810 F.2d at 749, 17 ELR at 20614.

119. 49 F.3d at 522, 25 ELR at 20641.

120. Id.

121. Id.

122. Id.

123. See supra notes 80-85 and accompanying text for a discussion of the Walls and Lamphier cases.

124. 49 F.3d at 523, 25 ELR at 20641.

125. Id. (citing Kaufman & Broad - South Bay v. Unisys Corp., 822 F. Supp. 1468, 23 ELR 21366 (N.D. Cal. 1993); Commerce Holding Co. v. Buckstone, 740 F. Supp. 441 (E.D.N.Y. 1990)).

126. Id.

127. Id.

128. The majority's policy argument, and the tenor of the entire opinion, suggests that the majority assumed that the defendants were guilty of causing the contamination. This assumption was wrong. The defendants were teenagers when their father deeded them the property, and they had nothing to do with operating service stations or spilling or leaking gasoline on the property. The true responsible parties were the persons or entities who owned or operated the service stations on the property. Although the identity of these parties should have been known to the plaintiff, it failed to sue them. Between innocent parties, why should the current owner of the property, who is profiting from its use and appreciation and stands to be enriched at its remediation, be favored at the expense of individuals who no longer have the ability to earn a dime from the property? The majority's policy argument and unbalanced treatment of the parties are far from equitable.

129. 49 F.3d at 523, 25 ELR at 20641.

130. 42 U.S.C. § 9601(14), ELR STAT. CERCLA § 101(14).

131. CAL. HEALTH & SAFETY CODE § 25317 (West).

132. 49 F.3d at 523 n.6, 25 ELR at 20641 n.6. The court's comment about court delays is ironic when considering that the date of its opinion, March 21, 1995, is almost three years after the plaintiff had filed its cost recovery lawsuit. As of that date, plaintiff's lawsuit apparently had not advanced beyond a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. This comment, when compared to the court's statement that the availability of a laches defense to defendants remedied the unfairness caused by the lack of a statute of limitations (defendants were sued 17 years after selling the property and more than 3 years after plaintiff discovered the contamination), evidences the outcome determinative nature of the majority's analysis.

133. Id. at 524, 25 ELR at 20641.

134. Id. (citing United States v. Price, 688 F.2d 204, 12 ELR 21020 (3d Cir. 1982)).

135. 49 F.3d at 524, 25 ELR at 20641, (Brunetti, J., dissenting).

136. Id. at 524, 25 ELR at 20642 (Brunetti, J., dissenting).

137. Id. (Brunetti, J., dissenting).

138. Id. (Brunetti, J., dissenting). Judge Brunetti noted that the Eighth Circuit in Aceto actually held only that "'RCRA's imminent and substantial endangerment language' does not require the EPA to file and prosecute its RCRA action while the endangerment exists." Id. (citing Aceto, 872 F.2d 1383, 19 ELR 21038 (8th Cir. 1989)) (Brunetti, J., dissenting).

139. 49 F.3d at 525, 25 ELR at 20642 (Brunetti, J., dissenting).

140. Id. (Brunetti, J., dissenting).

141. Id. (Brunetti, J., dissenting).

142. Id. (Brunetti, J., dissenting).

143. Id. (Brunetti, J., dissenting).

144. Id. at 525-26, 25 ELR at 20642 (Brunetti, J., dissenting).

145. Id. at 526, 25 ELR at 20642-43 (Brunetti, J., dissenting).

146. Id. at 526, 25 ELR at 20643 (Brunetti, J., dissenting).

147. Id. (Brunetti, J., dissenting).

148. Id. at 526-27, 25 ELR at 20643 (Brunetti, J., dissenting).

149. Id. (Brunetti, J., dissenting).

150. Id. at 527-28, 25 ELR at 20644 (Brunetti, J., dissenting).

151. Id. at 528, 25 ELR at 20644 (Brunetti, J., dissenting).

152. Id. (Brunetti, J., dissenting).

153. Id. (Brunetti, J., dissenting).

154. Id. (Brunetti, J., dissenting).

155. California v. Sierra Club, 451 U.S. 287, 293, 11 ELR 20357, 20358 (1981); see supra notes 26-34 and accompanying text, for a discussion of the Sierra Club case.

156. 49 F.3d at 521 n.3, 25 ELR at 20640 n.3. The majority also quoted legislative history concerning the relationship between the endangerment provisions of §§ 7002 and 7003 apparently under the mistaken belief that this relationship supported its decision to follow blindly the Eighth Circuit's decision in Aceto. The provisions and legislative history of § 7003 indicate that Congress intended to give EPA authority to seek injunctions compelling responsible persons to abate imminent and substantial endangerment, not to recover costs. See supra notes 73-79 for a discussion of § 7003 and its legislative history.

157. See 49 F.3d at 522, 25 ELR at 20641.

158. See supra notes 27-35 for a discussion of the Sierra Club case.

159. 49 F.3d at 521, 25 ELR at 20640.

160. Id. at 522, 524, 25 ELR at 20640, 20641.

161. 688 F.2d 204, 213, 12 ELR 21020, 21024 (3d Cir. 1982) (quoting H.R. REP. NO. 31, supra note 79, at 32).

162. See supra notes 62-63 and accompanying text for a discussion of this legislative history.

163. See supra notes 54-79 and accompanying text for a discussion of §§ 7002 and 7003 and their legislative histories.

164. See supra notes 70-72 and accompanying text for a discussion of § 7002(b) of RCRA.

165. Section 1002 of the Oil Pollution Act provides for the recovery of removal costs and damages pertaining to the spills or threatened spills of oil into or upon navigable waters or adjoining shorelines. 33 U.S.C. § 2702, ELR STAT. OPA § 1002; see 33 U.S.C. § 2701(30), ELR STAT. OPA § 1001(30) (defining "remove" or "removal"); 33 U.S.C. § 2701(31), ELR STAT. OPA§ 1001(31) (defining "removal costs"); 33 U.S.C. § 2702, ELR STAT. OPA § 1002 (defining the types of damages private persons may recover).

166. Compare 42 U.S.C. § 6972, ELR STAT. RCRA § 7002 with 33 U.S.C. § 1365, ELR STAT. FWPCA § 505. Both the FWPCA and RCRA citizen suit provision allow suits to enforce the provisions of the respective Acts and to compel the EPA Administrator to perform nondelegable acts and duties. Unlike § 7002, however, the FWPCA citizen suit provision does not provide for suits to abate imminent and substantial endangerments. The citizen suit prohibitions in § 7002 also are more detailed than those in the FWPCA citizen suit provision. In many other respects, these provisions are similar.

167. Sea Clammers, 453 U.S. 1, 13, 11 ELR 20684, 20687 (1981); see supra notes 36-53 and accompanying text.

168. 453 U.S. at 14-15, 11 ELR at 20687.

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