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

J. Martin Robertson

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

[25 ELR 10491]

Earlier this year in KFC Western, Inc. v. Meghrig,¹ the U.S. Court of Appeals for the Ninth Circuit ruled that private parties may obtain restitution of the costs of cleaning up contaminated property under § 7002(a)(1)(B) of the Resource Conservation and Recovery Act (RCRA). The Ninth Circuit's ruling in KFC Western opened the way for private parties to use the RCRA citizen suit provision to recover their costs of investigating, studying, and cleaning up contaminated property from responsible parties. The decision confirmed that § 7002(a)(1)(B) can be a powerful and remarkably effective remedy for private parties to use in shifting the burden of response to parties responsible for contaminating property.

Before the Ninth Circuit's decision in KFC Western, many practitioners thought the only relief that private parties could obtain under § 7002(a)(1)(B) was injunctive relief. The 1993 decisions in Lincoln Properties, Ltd. v. Higgins² allowed private parties to force responsible parties to respond to contamination — by conducting investigation, study, and cleanup — under § 7002(a)(1)(B). But Lincoln Properties did not address the availability of restitution to private parties under this provision.

The implications of the Ninth Circuit ruling in KFC Western are significant. Private parties now can obtain more complete relief under § 7002(a)(1)(B) than they can obtain under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).³

This Dialogue examines the restitutionary remedy that § 7002(a)(1)(B) provides private parties after KFC Western, analyzes the grounds for the decision, and explains why § 7002(a)(1)(B) may now provide private parties with a more effective remedy for recovering their costs of responding to contamination than CERCLA provides.

Congress' Broad Grant of Equitable Jurisdiction

RCRA § 7002(a) authorizes any person to seek, on his or her own behalf, necessary relief against "any [other] 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."⁴ " Persons" include individuals, corporations, partnerships, and associations as well as states, political subdivisions of states, and municipalities.⁵

In 1984, Congress amended § 7002(a) to allow private parties to sue responsible parties over situations in which solid or hazardous wastes may present an imminent and substantial endangerment to the environment or health.⁶ Congress also added language authorizing district courts "to take such other action as may be necessary" when private-party plaintiffs establish the liability of other parties for conditions that may present an endangerment to the environment or health.⁷ Section 7002(a) contains the same language concerning the scope of equitable relief available to a private-party plaintiff as RCRA § 7003, which authorizes the government to bring an action against responsible parties when solid or hazardous waste may present imminent and substantial endangerment.

For some years, courts have recognized that the government is entitled to restitution of the costs it incurs responding to contamination. In 1989, the U.S. Court of Appeals for the Eighth Circuit ruled that the government may obtain restitution of its costs of cleaning up contaminated property pursuant to § 7003 in United States v. Aceto Agricultural Chemicals Corp.⁸ In 1982, the U.S. Court of Appeals for the Third Circuit ruled that the government may obtain reimbursement of response costs in United States v. Price.⁹ Until KFC Western, however, no court had ordered restitution of [25 ELR 10492] cleanup costs to a private party in an action brought under § 7002(a)(1)(B).¹⁰

The KFC Western Decision

The Ninth Circuit's Decision

In 1975, KFC Western, Inc. purchased property from two individuals. Thirteen years later, KFC Western discovered that the property was contaminated with refined petroleum products, lead and benzene, which it had to clean up before it could complete construction on the property.¹¹ After cleaning up the contamination in response to a local government order, KFC Western asked the previous owners to reimburse it for its cleanup costs. The previous owners refused. To recover its cleanup costs, KFC Western brought refused. To recover its cleanup costs, KFC Western brought an action for restitution against the previous owners under § 7002(a)(1)(B). The district court dismissed the complaint for failure to state a claim on which relief could be granted.¹²

The Ninth Circuit reversed the district court, holding that KFC Western was entitled to restitution of its cleanup costs under § 7002(a)(1)(B). Significantly, the Ninth Circuit concluded that the language of § 7002(a)(1)(B) does not require a private party to file and prosecute an action for restitution of cleanup costs while an endangerment to the environment or human health exists. A private party may respond to the contamination and obtain restitution of its response costs from responsible parties later.

The Ninth Circuit articulated the grounds for its decision fairly clearly. First, the court concluded that § 7002(a)(1)(B) entitles private parties to seek restitution of their response costs. The court recognized that the language governing the scope of relief available to a private-party plaintiff under § 7002(a)(1)(B) is the same as the language governing the scope of relief available to the government under § 7003, and that Congress intended that § 7002(a)(1)(B) confer the same rights on private parties that § 7003 confers on the government. The court astutely concluded that:

The legislative history of the 1984 RCRA Amendments suggests that when Congress added the endangerment provision it did not intend to grant a narrower right of action to citizens than to the Administrator [of the U.S. Environmental Protection Agency], who is authorized (according to persuasive out-of-circuit case law, . . .) to bring reimbursement actions. Nothing indicates that Congress intended citizen suits to serve a purpose different from that served by governmental actions. The House Committee on Energy and Commerce explained in its report that citizens have a limited right to sue in endangerment cases "pursuant to the standards of liability established under Section 7003 [42 U.S.C. § 6973, Administrator's right of action]" and only if the Administrator, after receiving notice, fails to file an action.

$=I

Because Congress intended that citizen suits brought under § 7002(a)(1)(B) confer the same rights as governmental actions brought under § 7003, the court chose "to interpret similarly the relief available under the two provisions."¹⁴ The court followed the interpretations of the language in § 7003 by the Eighth Circuit in Aceto and the Third Circuit in Price in interpreting the language of § 7002(a)(1)(B).¹⁵

In KFC Western, the Ninth Circuit carefully distinguished case law that denied private parties' requests for restitution. The court concluded that Walls v. Waste Resource Corp.¹⁶ and Environmental Defense Fund v. Lamphier¹⁷ were "inapposite" to the issue before it, because those decisions addressed claims for damages under statutory language now codified under § 7002(a)(1)(A), rather than claims for restitution under § 7002(a)(1)(B).¹⁸ The court pointedly disapproved of the district courts' reliance on the Walls decision in Kaufman & Broad — South Bay, Inc. v. Unisys Corp.¹⁹ and Commerce Holding Co. v. Buckstone²⁰ to dismiss private parties' claims for restitution of response costs under § 7002(a)(1)(B).²¹

After concluding that § 7002(a)(1)(B) authorizes a restitutionary remedy as a matter of law, the Ninth Circuit indicated that "it would be unfair and poor public policy [25 ELR 10493] to interpret [RCRA § 7002(a)(1)(B)] as barring restitution actions."²² The court went on to point out that "by doing so, we would make the citizen suit remedy meaningless in most cases for the very citizens who most deserve the remedy, namely innocent citizens, like KFC, who have a financial stake in the contaminated property as well as potential and actual clean-up liability."²³ The court concluded that when private parties lack adequate remedies under CERCLA and state law, it is particularly important for them to have a restitutionary remedy under RCRA. As the circuit court noted, "[a] private citizen often cannot control the timing of clean-up actions but, rather, must clean the contaminated property whenever the government obtains an appropriate order."²⁴ Accordingly, "even the innocent private party, like KFC, who purchases already contaminated property, often must clean the property immediately and recover secondarily from the actual polluter."²⁵ Finally, the Ninth Circuit stated that "public policy concerns might favor allowing a plaintiff to clean contaminated property first and seek reimbursement later."²⁶

Analysis of the Decision

Analysis of the KFC Western decision and the grounds for its decision indicates that the Ninth Circuit correctly decided the case and, moreover, that the reasoning supporting its decision was sound.²⁷ The court squarely grounded its decision on the broad language in § 7002(a)(1)(B), which authorizes district courts "to take such action as may be necessary" in cases in which private-party plaintiffs establish the liability of other parties. By adding this language to § 7002(a), Congress unquestionably intended courts to have the same equitable authority in actions private parties bring under § 7002(a)(1)(B) that courts have in actions the government brings under § 7003.

This broad equitable jurisdiction includes the authority to grant restitution and injunctive relief to private parties faced with contamination that may present an endangerment to the environment or human health. Unless specifically limited, Congress' grant of equitable jurisdiction to the courts is not restricted; in fact, the courts' equitable powers are presumed to include all of the traditional equitable powers that courts have had historically.²⁸ The U.S. Supreme Court has stated that:

Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. "The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction."

Section 7002(a)(1)(B) does not restrict courts' jurisdiction — by words or inference — in any way. Instead, the statute confers on courts the authority to grant equitable relief to the extent necessary.³⁰

In KFC Western, the Ninth Circuit explicitly recognized that the pre-1984 version of RCRA § 7002(a), which the Sixth and Fourth Circuits reviewed in Walls and Lamphier, did not contain the language authorizing district courts "to take such other action as may be necessary" that § 7002(a)(1)(B) now contains.³¹ Because of this, the Ninth Circuit declined to follow Walls and Lamphier and specifically criticized the district court decisions in Kaufman & Broad — South Bay and Commerce Holding for doing so.³² Rather, the court followed the Eighth Circuit's interpretation of § 7003,³³ which authorizes suits by the U.S. Environmental Protection Agency (EPA) and which is worded "almost identically" to § 7002(a)(1)(B), and ruled that "RCRA authorizes a restitutionary remedy under [the] circumstances" present in KFC Western.³⁴

Because neither § 7003 nor § 7002(a)(1)(B) restricts Congress' grant of equitable jurisdiction in any way, the Eighth Circuit's interpretation of § 7003 in Aceto and the Ninth Circuit's interpretation of § 7002(a)(1)(B) in KFC Western are correct. Both sections authorize a restitutionary remedy: § 7003 authorizes a restitutionary remedy for EPA and § 7002(a)(1)(B) authorizes a restitutionary remedy for private parties.³⁵ Thus, restitution of reasonable investigative, study, and cleanup costs generally should be available to private parties under § 7002(a)(1)(B).³⁶

[25 ELR 10494]

The Ninth Circuit buttressed the critical — and essential — legal ground for its decision in KFC Western with equitable and public policy reasons.³⁷ The court broadly concluded that private parties "who have a financial stake in contaminated property as well as potential and actual clean-up liability"³⁸ do not have adequate remedies under CERCLA or state law³⁹ against the polluters of such property, and that as a matter of equity, such parties are entitled to restitutionary relief under § 7002(a)(1)(B).⁴⁰

Finally, the court stated that it is important, for public policy reasons, for private parties to have a restitutionary remedy under RCRA § 7002(a)(1)(B).⁴¹ The court acknowledged that private parties must sometimes respond to contamination first and seek recovery of their response costs later and that private parties do not have "time to sue for 'other equitable relief' in the form of a mandatory clean-up injunction against past polluters who may or may not still be on the scene."⁴² Public policy concerns, in the court's view, favor allowing a plaintiff to clean up contaminated property — and eliminate any risk attributable to the contamination — and then seek reimbursement of response costs from responsible parties later.⁴³ The availability of restitution under § 7002(a)(1)(B) may promote the cleanup of contamination by private parties who, without such incentive, might not engage in cleanup. Prompt, private cleanup was an objective Congress intended to promote when it amended § 7002(a) in 1984.⁴⁴ The Ninth Circuit was right to recognize the importance of this objective.

Implications of the Decision

The implications of the KFC Western decision are so remarkable that in the future, many private parties may seek restitution of their costs of responding to contamination under RCRA § 7002(a)(1)(B) rather than under CERCLA.

As a remedy for private parties to recover response costs, CERCLA is becoming increasingly flawed. Several courts recently have limited private parties' abilitiesto recover response costs under CERCLA. The U.S. Courts of Appeals for the First, Seventh, and Tenth Circuits have ruled that only private parties who are "innocent" — that is, who are not liable under CERCLA — may bring cost recovery actions under CERCLA § 107(a).⁴⁵ Under these decisions and a ruling by the U.S. District Court for the Northern District of California,⁴⁶ liable private parties who cannot recover their response costs can do no more than seek contribution from other liable parties under CERCLA § 113(f)(1). In addition, in 1994, the U.S. Supreme Court severely restricted the recoverability of attorneys fees by private parties under CERCLA § 107.⁴⁷

The Ninth Circuit's ruling in KFC Western makes restitution available to any private party who responds, or who has responded, to contamination that poses, or that posed, an imminent and substantial endangerment to the environment or human health at the time of the response.⁴⁸ Clearly, restitution is available to private parties under RCRA § 7002(a)(1)(B) even if they have alternative remedies under CERCLA or state law. CERCLA no more provides an "adequate remedy at law" precluding restitution under RCRA § 7002(a)(1)(B) than it provides an "adequate remedy at law" precluding injunctive relief under § 7002(a)(1)(B).⁴⁹ In the wake of the recent CERCLA [25 ELR 10495] decisions, an action for restitution under § 7002(a)(1)(B) offers several distinct advantages over a CERCLA § 107(a) cost recovery action or a CERCLA § 113(f)(1) contribution action.

[] A Broad Scope of Contamination Is Covered. RCRA § 7002(a)(1)(B) applies to a broader range of contamination than CERCLA. Section 7002(a)(1)(B) can be used to obtain restitution of private parties' costs of responding to solid and hazardous wastes as broadly defined in RCRA §§ 1004(5) and 1004(27), whereas CERCLA can only be used to recover private parties' costs of responding to hazardous substances as defined in CERCLA.⁵⁰ Under § 7002(a)(1)(B), unlike under CERCLA, any party that has contributed or is contributing to the handling, storage, treatment, transportation, or disposal of hazardous wastes or solid wastes can be held liable for restitution of response costs.

[] Proof of Consistency of Response Costs With the National Contingency Plan (NCP) Is Not Required. To be recoverable under § 7002(a)(1)(B), private parties' response costs need only be incurred in response to conditions that may present or may have presented an imminent and substantial endangerment to the environment or health, and must be reasonable. In contrast, CERCLA allows private parties to recover only costs of investigation, study, and cleanup that are necessary and consistent with the NCP.⁵¹ Proving consistency with the NCP can be difficult and burdensome because of the evidence that must be offered, even though some courts only require private-party plaintiffs to demonstrate substantial compliance with the NCP.⁵²

[] Joint and Several Liability May Be Imposed. Under § 7002(a)(1)(B), private parties may impose joint and several liability for restitution of all response costs on the parties who contributed to the handling, storage, treatment, transportation, or disposal of solid or hazardous waste.⁵³ In turn, parties who are held liable by a private party under § 7002(a)(1)(B) can seek contribution against other parties held liable under this provision. In United States v. Valentine,⁵⁴ a district court concluded that courts have the authority under Congress' broad grant of equitable jurisdiction under § 7003 to recognize a right of contribution under this provision.⁵⁵ Courts can be expected, in time, to recognize a right of contribution under § 7002(a)(1)(B) also, and to conclude that defendants in RCRA citizen suits can bring contribution actions against other parties liable under § 7002(a)(1)(B).

[] Litigation Costs May Be Recovered. RCRA § 7002(e) specifically provides that courts may award litigation costs, including reasonable attorneys fees, expert witness fees, and other litigation expenses, to private parties who prevail or substantially prevail in an action under § 7002(a)(1)(B).⁵⁶ By contrast, private parties generally may not recover attorneys fees associated with prosecuting cost recovery actions under CERCLA.⁵⁷

Conclusion

RCRA § 7002(a)(1)(B) may provide private parties with the most effective remedy available to recover their costs of responding to contamination. It is clear from the KFC Western decision that § 7002(a)(1)(B) provides private parties with restitutionary, as well as injunctive, remedies. As a result, private parties can be expected to seek restitution of the costs they incur investigating, studying, and cleaning up contamination under RCRA and, in some instances, to seek orders granting both mandatory injunctive relief and restitution of the response costs incurred before filing suit.

1. 49 F.3d 518, 25 ELR 20638 (9th Cir. 1995).

2. In Lincoln Properties, the U.S. District Court for the Eastern District of California ruled that a landowner was entitled to an injunction requiring responsible parties to participate in the investigation, monitoring, and testing of pollution under RCRA § 7002(a)(1)(B). See Lincoln Properties, Ltd. v. Higgins, 23 ELR 20665 (E.D. Cal. Jan. 18, 1993). In a second decision, the court issued a mandatory, permanent injunction requiring the polluting parties to conduct a remedial investigation and feasibility study and to develop a proposed remedial action plan consistent with the National Oil and Hazardous Substances Pollution Contingency Plan. See Lincoln Properties, Ltd. v. Higgins, 24 ELR 21068, 21069 (E.D. Cal. Aug. 16, 1993).

3. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

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

5. Id. § 6903(15), ELR STAT. RCRA § 1004(15).

6. H.R. REP. No. 189, 98th Cong., 2d Sess., pt. 1 (1984).

7. Id.

8. 872 F.2d 1373, 1384, 19 ELR 21038, 21044 (8th Cir. 1989); see also United States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987).

9. 688 F.2d 204. 213-14. 12 ELR 21020. 21024-25 (3d Cir. 1982).

10. Courts had denied private parties' requests for restitution in at least three cases. Commerce Holding Co. v. Buckstone, 749 F. Supp. 441, 444-45 (E.D.N.Y. 1990); Kaufman & Broad — South Bay, Inc. v. Unisys Corp., 822 F. Supp. 1468, 1476-77, 23 ELR 21366, 21369-70 (N.D. Cal. 1993); Gache v. Town of Harrison, 813 F. Supp. 1037, 1045, 24 ELR 21023, 21026 (S.D.N.Y. 1993).

In a decision entered on May 26, 1994, the U.S. District Court for the District of Arizona indicated that restitution is obtainable pursuant to § 7002(a)(1)(B), although the court did not order restitution in that case. Bayless Inv. & Trading Co. v. Chevron U.S.A., Inc., 39 Env't Rep. Cas. (BNA) 1428, 1432 (May 26, 1994).

11. KFC Western, 49 F.3d 518, 519, 25 ELR 20638, 20639 (9th Cir. 1995).

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

13. Id. at 521 n.3, 25 ELR at 20640 n.3. The House of Representatives stated that § 7002(a)(1)(B) confers on private parties the right to bring actions "pursuant to the standards of liability established under Section 7003." H.R. REP. NO. 198, 98th Cong., 2d Sess., pt. 1, at 53 (1984), reprinted in 1984 U.S.C.C.A.N. 5576, 5612. Similarly, the Senate stated:

These amendments [adding § 7002(a)(1)(B)] are intended to allow citizens the same broad substantive and procedural claim for relief which is already available to the United States under Section 7003. Any differences in language between these amendments and 7003 are not intended to reflect a difference in such claims, but merely clarify that citizens have the same claim presently available to the United States.

S. REP. No. 284, 98th Cong., 1st Sess., at 56-57 (1983); see J. Martin Robertson, The Lincoln Properties Case: Shifting the Burden of Response, 8 Tox. L. Rep. (BNA) 1395, 1403-04 (May 11, 1994).

14. KFC Western, 49 F.3d at 521-22, 25 ELR at 20640. Even the dissent in KFC Western agreed that § 7002(a)(1)(B) and § 7003 "are worded identically" and "should be interpreted the same." Id. at 524 n.1, 25 ELR at 20642 n.1 (Brunetti, J., dissenting).

15. Id. at 521-22, 25 ELR at 20640.

16. 761 F.2d 311, 15 ELR 20438 (6th Cir. 1985).

17. 714 F.2d 331, 13 ELR 21094 (4th Cir. 1983).

18. KFC Western, 49 F.3d at 523, 25 ELR at 20641 (citing Walls, 761 F.2d at 316, 15 ELR at 20439; Lamphier, 714 F.2d at 337, 13 ELR at 21096-97). The court stated in particular that:

These decisions are inapposite because they do not address private actions like KFC's action, brought under [§ 7002(a)(1)(B)]. Rather, they concern actions brought under the predecessor to [§ 7002(a)(1)(A)], formerly [§ 7002(a)], which authorized actions to "enforce" a requirement against any person alleged to be currently in violation of the requirement. Cf. [§ 7002(a)(1)(B)] (allowing actions against any contributor, past or present, to an imminent and substantial endangerment).

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

19. 822 F. Supp. 1468, 23 ELR 21366 (N.D. Cal. 1993).

20. 749 F. Supp. 441 (E.D.N.Y. 1990).

21. KFC Western, 49 F.3d at 523, 25 ELR at 20641 (citing Kaufman & Broad — South Bay, 822 F. Supp. at 1468, 23 ELR at 21366; Commerce Holding, 749 F. Supp. at 441).

22. KFC Western, 49 F.3d at 523, 25 ELR at 20641 (emphasis added).

23. Id. at 523, 25 ELR at 20641.

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

25. Id.

26. Id.

27. A judicial decision providing a private party with restitution under § 7002(a)(1)(B) was forecast some time before KFC Western. See Robertson, supra note 13, at 1403-04. Shortly after the Robertson article was published, a district court indicated that restitution was "obtainable" under § 7002(a)(1)(B). Bayless Inv. & Trading Co. v. Chevron U.S.A., Inc., 39 Env't Rep. Cas. (BNA) 1428, 1432 (May 26, 1994).

28. In a 1994 article, another commentator pointed out that "as a general rule — absent express congressional instructions to the contrary — statutes that invoke the equitable jurisdiction of the courts are presumed to empower the courts to exercise their full equitable powers, which include the power to order restitution in appropriate cases." Adam Babich, RCRA Imminent Hazard Authority: A Powerful Tool for Businesses, Governments, and Citizen Enforcers, 24 ELR 10122, 10130 (Mar. 19941 (citation omitted).

29. Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946) (quoting Brown v. Swann, 35 U.S. 497 (1836)); accord California v. American Stores Co., 495 U.S. 271, 295 (1990).

30. It necessarily follows that if courts have the authority to grant restitution to private parties, private parties have the right to seek restitutionary remedies from the courts. See supra note 13 and accompanying text.

31. KFC Western, 49 F.3d at 521, 25 ELR at 20640.

32. As indicated above, in Walls and Lamphier, the Sixth and Fourth Circuits, respectively, denied private parties' claims for damages under statutory language now codified in § 7002(a)(1)(A). In Kaufman & Broad — South Bay and Commerce Holding, two district courts, in turn, relied — erroneously — on Walls and Lamphier to deny private parties' claims for restitution under § 7002(a)(1)(B). See supra notes 16-21 and accompanying text.

33. United States v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 19 ELR 21038 (8th Cir. 1989).

34. KFC Western, 49 F.3d at 521, 25 ELR at 20640.

35. In KFC Western, the dissent stated that "the language, 'such other action as may be necessary,' does not contemplate actions for reimbursement." Id. at 525, 25 ELR at 20642 (Brunetti, J., dissenting). In so stating, however, the dissent ignored the general rule that the full scope of a court's equitable jurisdiction must be recognized and applied unless a statute restricts the court's equitable jurisdiction. See supra note 29 and accompanying text. Neither § 7003 nor § 7002(a)(1)(B) restricts the courts' equitable jurisdiction.

36. Some contend that reimbursement of private parties for their costs of investigating, studying, and cleaning up contamination must be characterized as damages. That is not so. Reimbursement of the costs a private party expends to clean up contamination simply restores the party to the position it occupied before conducting the cleanup. The remedy by which the courts restore a party to its pre-cleanup position is restitution, not damages. The Fourth Circuit distinguished restitution from damages by staling that:

"[A] person obtains restitution when he is restored to the position he formerly occupied either by the return of something which he formerly had or by the receipt of its equivalent in money." Damages on the other hand, are determined by reference to the loss sustained by a victim as a result of wrongful conduct on the part of another.

United States v. Long, 537 F.2d 1151, 1153-54 (4th Cit. 1975) (quoting RESTATEMENT OF RESTITUTION § 1 cmt. a, at 12 (1937)), cert. denied, 429 U.S. 871 (1976).

37. Although important, neither the equitable nor the public policy rationale was essential to the Ninth Circuit's decision that § 7002(a)(1)(B) authorizes a restitutionary remedy for private parties.

38. KFC Western, 49 F.3d at 523, 25 ELR at 20641.

39. The plaintiff in KFC Western did not have a statutory remedy under CERCLA or state hazardous waste law, because the property was contaminated with petroleum products which are not covered substances under those statutes. Id. at 523 n.6, 25 ELR at 20641 n.6. The court also noted that "even though [state common-law] causes of action for nuisance, trespass, and potential negligence are available to plaintiffs such as KFC, tort remedies are generally inadequate because of the difficulties of proof and attendant court delays." Id.

40. The Lincoln Properties decisions confirmed the availability of mandatory injunctive relief to private parties under § 7002(a)(1)(B). In KFC Western, however, such injunctive relief would not have provided the property owner with any — let alone adequate — relief because the property owner had cleaned up the contamination on its property before seeking reimbursement from responsible parties.

41. KFC Western, 49 F.3d at 524, 25 ELR at 20641.

42. Id. at 523-24, 25 ELR at 20641.

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

44. Addressing Congress' intent in Bayless Investment & Trading Co. v. Chevron U.S.A., Inc., the district court noted that:

If this court were to adopt a rule that would allow a plaintiff to obtain an injunction to require responsible parties to clean up the contamination but would not allow that same plaintiff to recover the costs that he has spent in initiating prompt [cleanup], the court would provide future plaintiffs with an incentive to wait until the conclusion of a lawsuit before spending money to commence remediation. Such a ruling would frustrate clearly delineated congressional objectives and be contrary to the purposes of RCRA.

39 Env't Rep. Cas. (BNA) 1428, 1432 (May 26, 1994).

Other courts have recognized that Cong*ss mended the RCRA citizen suit provision in 1984 to "invigorate citizen litigation" and to "provide a private means of obtaining the same relief that the EPA has previously been anthorized to see under RCRA." Lincoln Properlies, Ltd. v. Haggins, 23 ELR 20665, 20669-70 CE.D. Cal. Jan. 18, 1993) (citing Ascon Properties, Inc. v. Mobil Off Co., 866 F.2d 1149, 1158, 19 ELR 20374, 20378-79 (9th Cir. 1989); Middiesex County Bd. of Chosen Freeholders v. New Jersey, 645 F. Supp. 715, 721, 17 ELR 20475, 20477 (D.N.J. 1986)).

45. See United Technologies Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96, 24 ELR 21356 (1st Cir. 1994), cert. denied, 115 S. Ct. 1176 (1995); Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 24 ELR 21254 (7th Cir.), reh'g en banc denied, 1994 U.S. App. LEXIS 20726 (7th Cir. 1994); United States v. Colorado & E.R.R., 50 F.3d 1530, 25 ELR 20309 (10th Cir. 1995).

46. See Kaufman & Broad — South Bay, Inc. v. Unisys Corp., 868 F. Supp. 1212, 23 ELR 21366 (N.D. Cal. 1994).

47. Key Tronic Corp. v. United States, 114 S. Ct. 1960, 24 ELR 20955 (1994).

48. 49 F.3d 518, 520, 25 ELR 20638, 20639 (9th Cir. 1995). RCRA § 7002(a)(1)(B) only requires that contamination may present an imminent and substantial endangerment to the environment or health. 42 U.S.C. § 6972(a)(1)(B), ELR STAT. RCRA § 7002(a)(1)(B).

49. CERCLA does not provide private parties with a remedy at law. Courts have characterized CERCLA cost recovery claims as equitable claims for restitution, rather than claims for damages in tort. See United States v. Reilly Tar & Chem. Corp., 13 ELR 20897, 20898-99 (D. Minn. 1983); United States v. Wade, 653 F. Supp. 11, 13 (E.D. Pa. 1984); United States v. Georgeoff, 22 Env't Rep. Cas. (BNA) 1601, 1602 (Aug. 2, 1984).

Other courts have concluded that CERCLA does not provide an adequat* remedy at law precluding injunctive relief under RCRA § 7002(a)(1)(B). E.g., Lincoln Properties, Ltd. v. Higgins, 23 ELR 20665, 20673 CE.D. Cal. Jan. 18, 1993) (citing United States v. Waste Indus., Inc., 734 F.2d 159, 168, 14 ELR 20461, 20464 (4th Cir. 1984)).

50. 42 U.S.C. § 6903(5), ELR STAT. RCRA § 1004(5) (defining "hazardous waste"); id. § 6903(27), ELR STAT. RCRA § 1004(27) (defining "solid waste"); id. § 9601(14), ELR STAT. CERCLA § 101(14) (defining "hazardous substances"); for succinct explanations and a comparison of the substances covered by these terms, see Robertson, supra note 13, at 1401-02; Babich, supra note 28, at 10124-27.

51. 42 U.S.C. § 9607(a)(4)(B), ELR STAT. CERCLA § 107(a)(4)(B).

52. See, e.g., Wickland Oil Terminals v. ASARCO, Inc., 792 F.2d 887, 891-92, 16 ELR 20754, 20756 (9th Cir. 1986); NL Indus. v. Kaplan, 792 F.2d 896, 898-99, 16 ELR 20749, 20750 (9th Cir. 1986) (holding that a private-party plaintiff need not show strict compliance with the NCP to establish consistency with its provisions); see also 40 C.F.R. § 300.700(c)(3)(i); 55 Fed. Reg. 8666, 8858 (Mar. 8, 1990) (providing that a private-party plaintiff need only show substantial compliance with the NCP to establish consistency with its provisions).

53. See Lincoln Properties, Ltd. v. Higgins, 23 ELR 20665, 20672 (E.D. Cal. Jan. 18, 1993) (concluding that the defendants' liability under RCRA § 7002(a)(1)(B) was joint and several). The defendants held liable in Lincoln Properties were subsequently ordered to carry out necessary response jointly and severally.

54. 856 F. Supp. 627, 632, 24 ELR 21555, 21557 (D. Wyo. 1994).

55. In Valentine, the court implied a right of contribution from the broad equitable jurisdiction granted to the courts under § 7003. The court noted that "contribution [like restitution] is an equitable remedy designed to prevent unjust enrichment," and, following the Eighth Circuit's decision in Aceto and the Third Circuit's decision in Price, concluded that "it is plain, therefore, that § 7003 empowers the Court to grant the full range of equitable remedies . . . so long as such relief serves to protect the public health and environment." Id. at 633, 24 ELR at 21557-58.

Citing the U.S. Supreme Court's 1993 decision in Musick et al. v. Employers Insurance of Wausau, the district court noted that courts may "infer a right to contribution where doing so would be consistent with express contribution rights granted under analogous laws and would not frustrate the purpose of the statute in question." Id. at 631, 24 ELR at 21557 (citing Musick, Peeler & Garrett v. Employers Ins. of Wausau, 113 S. Ct. 2085, 2089-90 (1993)). Contribution rights have existed under CERCLA (initially under federal common law and later by statute) and nuisance law (under common law) for some time and may promote prompt cleanup by encouraging settlement. Valentine, 856 F. Supp. at 633-35, 24 ELR at 21557-58. Thus, the court ruled that "a right to contribution . . . must be recognized as a matter of federal common law." Id. at 632, 24 ELR at 21557.

56. 42 U.S.C. § 6972(e), ELR STAT. RCRA § 7002(e); for a discussion of the standards under which courts award attorneys fees in such actions, see Janet S. Kole, Attorneys Fees Awards Under RCRA § 7002(e): The Corporate "Prevailing Party," 25 ELR 10256 (May 1995).

57. See supra note 47 and accompanying text.