Cleaning Up: Equitable Considerations in the RCRA Citizen Suit Provision Controversy

Indiana Law Journal

Volumn 72, Issue 3, 1997, Pages 868-884

  Moritz, Michelle Kok ^a,b  

^a INDIANA UNIVERSITY   (United States)

^b CALVIN COLLEGE   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 1842791493     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (100)

1. 42 U.S.C. §§ 6901-6992 (1994).
2. STAFF OF HOUSE SUBCOMM. ON OVERSIGHT AND INVESTIGATIONS OF THE COMM. ON INTERSTATE AND FOREIGN COMMERCE, 96TH CONG., REPORT ON HAZARDOUS WASTE DISPOSAL 31 (Comm. Print 1979) [hereinafter REPORT].
3. Clean Air Act of 1955, 42 U.S.C. §§ 7401-7671 (1994).
4. Federal Water Pollution Control Act of 1948, 33 U.S.C. §§ 1251-1376 (1994). After undergoing significant amendment in 1977, the Federal Water Pollution Control Act became what is now the Clean Water Act. Id. 5. H.R. REP. No. 94-1491, at 4 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6242.
5. Federal Water Pollution Control Act of 1948, 33 U.S.C. §§ 1251-1376 (1994). After undergoing significant amendment in 1977, the Federal Water Pollution Control Act became what is now the Clean Water Act. Id. 5. H.R. REP. No. 94-1491, at 4 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6242.
6. Federal Water Pollution Control Act of 1948, 33 U.S.C. §§ 1251-1376 (1994). After undergoing significant amendment in 1977, the Federal Water Pollution Control Act became what is now the Clean Water Act. Id. 5. H.R. REP. No. 94-1491, at 4 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6242.
7. 33 U.S.C. §§ 1251-1376.
8. 42 U.S.C. §§ 7401-7671.
9. Id.
10. 42 U.S.C. § 6972(a)(2) ("[A]ny person may commence a civil action on his own behalf . . . against the Administrator where there is alleged a failure of the administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.").
11. Id. § 6972(a)(1)(A) ("[A]ny person may commence a civil action on his own behalf. . . against any person . . . who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter . . . .").
12. Id. § 6972(a)(1)(B).
13. Id. § 6972(a)(2).
14. See Commerce Holding Co. v. Buckstone, 749 F. Supp. 441, 445 (E.D.N.Y. 1990). In Commerce, plaintiffs used the "take such other action as may be necessary" clause to argue that the equitable relief (in the form of reimbursement for costs) that they sought was necessary to remedy the result of defendants' illegal conduct, and therefore recoverable. Id.; see also Kaufman & Broad-South Bay v. Unisys Corp., 822 F. Supp. 1468 (N.D. Cal. 1993) (Plaintiffs were arguing that "such other action" included restitution of costs.).
15. See, e.g., Walls v. Waste Resource Corp., 761 F.2d 311 (6th Cir. 1985); Portsmouth Redev. & Hous. Auth. v. BMI Apartment Assocs., 847 F. Supp. 380 (E.D. Va. 1994).
16. 49 F.3d 518 (9th Cir. 1995).
17. Id. at 521.
18. 62 F.3d 1092 (8th Cir. 1995).
19. Meghrig v. KFC Western, Inc., 116 S. Ct. 1251, 1253 (1996).
20. Furrer, 62 F.3d at 1101.
21. Id. at 1092.
22. Id. at 1094.
23. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 26 (1979) (White, J., dissenting) (citations omitted).
24. See, e.g., Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1 (1981); California v. Sierra Club, 451 U.S. 287 (1981); Touche Ross & Co. v. Redington, 442 U.S. 560 (1979).
25. Furrer, 62 F.3d at 1097.
26. 422 U.S. 66 (1975).
27. Id. at 78-79.
28. Id.
29. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 23 (1979); Touche Ross, 442 U.S. at 575.
30. Touche Ross, 442 U.S. at 575.
31. Furrer v. Brown, 62 F.3d 1092, 1100 (8th Cir. 1995).
32. The Eighth Circuit decided that the fourth Cort factor - whether the cause of action is one typically left to the states - was "at best a neutral factor and does nothing to advance the case for finding an implied federal cause of action for the recovery of cleanup costs." Id. 32. KFC Western, Inc. v. Meghrig, 49 F.3d 518, 519 (9th Cir. 1995), rev'd, 116 S. Ct. 1251 (1996).
33. Id.
34. Id.
35. Id.
36. Id.
37. Id. at 520.
38. 872 F.2d 1373 (8th Cir. 1989).
39. KFC Western, 49 F.3d at 522.
40. Aceto, 872 F.2d at 1383.
41. Id.
42. KFC Western, 49 F.2d at 521.
43. Id.
44. Id.
45. Id. at 523.
46. Meghrig v. KFC Western, Inc., 116 S. Ct. 1251, 1253 (1996).
47. Id. at 1254.
48. Id. (emphasis in original).
49. Id. at 1255 (citation omitted).
50. Id.
51. A mandatory injunction "orders a responsible party to 'take action' by attending to the cleanup and proper disposal of toxic waste." Id. at 1254. A prohibitory injunction "'restrains' a responsible party from further violating RCRA." Id.
52. Id. at 1254.
53. Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601-9675 (1994). CERCLA, which was amended in 1986 by the Superfund Amendments and Reauthorization Act of 1986, permits the EPA to clean up hazardous waste sites and creates a "Superfund" to support the EPA's activities. See 26 U.S.C. § 9507 (1994); 42 U.S.C. §§ 9604-05. The Superfund is financed through industry taxes, appropriations, and legal judgments recovered from those responsible for the contamination. See 26 U.S.C. § 9507(b). CERCLA places ultimate responsibility for hazardous site clean up on "those responsible for problems caused by the disposal of chemical poisons." Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074,1081 (1st Cir. 1986) (quoting United States v. Reilly Tar & Chem. Corp., 546 F. Supp. 1100, 1112 (D. Minn. 1982)).
54. 42 U.S.C. § 9659(c).
55. 42 U.S.C. § 9613(f)(1).
56. Meghrig, 116 S. Ct. at 1254.
57. Id. at 1255.
58. Id. at 1256.
59. Id. at 1255.
60. Id.
61. Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 n.9 (1990).
62. See, e.g., Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 15 (1981).
63. REPORT, supra note 2, at 31.
64. 42 U.S.C. § 6902(b) (1994).
65. See supra text accompanying notes 48-49.
66. One environmental lawyer has suggested that citizens should first determine whether cleanup costs can be recovered before cleaning up that contamination. He adds that citizens should file suit against responsible parties before incurring significant cleanup costs. John E. Sullivan, Implied Private Causes of Action and the Recoverability of Damages Under the RCRA Citizen Suit Provision, 25 ENVTL. L. REP. (Envtl. L. Inst.) 10,408, 104,20 (1995).
67. Joseph E. Lees, An Alternative for Private Cost Recovery?, 12 ENVTL. COMPLIANCE & LITIG. STRATEGY NO. 1, June 1996, at 4.
68. Meghrig v. KFC Western, Inc., 116 S. Ct. 1251, 1255 (1996).
69. Ironically, the Eighth Circuit previously has stated that requiring parties to file and prosecute a RCRA action while endangerment exists would be an "'absurd and unnecessary' requirement." United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1383 (8th Cir. 1989). In Aceto, the EPA and the State of Iowa spent ten million dollars to clean up a highly contaminated pesticide formulation facility. The EPA then attempted to recover its costs under RCRA and CERCLA. The Eighth Circuit remanded the case for further review, but indicated that the EPA could claim its remediation costs in the district court.
70. A property owner faced with an EPA remediation order must comply within a certain time frame or risk monetary penalties. See 42 U.S.C. § 6928(a)(1), (3) (1994) ("[T]he Administrator may issue an order assessing a civil penalty for any past or current violation [of RCRA], requiring compliance immediately or within a specified time period . . . . Any penalty assessed in the order shall not exceed $25,000 per day of noncompliance for each violation of a requirement of this subtitle . . . ."); 42 U.S.C. § 6928(c) (1994) ("If a violator fails to take corrective action within the time specified in a compliance order, the Administrator may assess a civil penalty of not more than $25,000 for each day of continued noncompliance with the order . . . .").
71. See supra notes 53-54 and accompanying text.
72. 42 U.S.C. § 9613(f)(1) (1994). In addition to this cost recovery provision, CERCLA provides a citizen suit provision which mirrors that in § 6972. 42 U.S.C. § 9659(c) (1994).
73. 42 U.S.C. § 9601(14) (1994) ("The term [hazardous substance] does not include petroleum . . . .").
74. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 13, at 84 (5th ed. 1984). Also, both the majority and dissent in KFC Western, Inc. v. Meghrig, 49 F.3d 518 (9th Cir. 1995), mention the difficulties in recovering under state law claims. The majority states, "tort remedies are generally inadequate because of the difficulties in proof and attendant court delays." Id. at 513 n.6. In his dissent, Judge Brunetti agrees that restitution actions may be necessary due to the landowner's inability to recover under CERCLA or state schemes. However, Brunetti is unwilling to advance this position when the legislature has not decreed it. Id. at 528 (Brunetti, J., dissenting).
75. Ironically, RCRA's legislative history indicates that Congress intended RCRA to "incorporate[] the legal theories used for centuries to assess liability for creating a public nuisance . . . [and to] determine[] appropriate remedies." REPORT, supra note 2, at 31. If RCRA is such an interpretation, landowners should not have to pursue a state nuisance claim to recover cleanup costs; this cause of action should be part of the federal scheme. Although the legislative history appears contradictory, innocent landowners should not bear the burden of this confusion. Federal causes of action must come equipped with complete and fair federal remedies.
76. 42 U.S.C. § 6973(a) provides in part: [T]he Administrator may bring suit on behalf of the United States in the appropriate district court against any person . . . who has contributed or who is contributing to such handling, storage, treatment, transportation or disposal to restrain such person . . . to order such person to take such other action as may be necessary, or both. 42 U.S.C. § 6973(a) (1994) (emphasis added).
77. S. REP. No. 98-284, at 56 (1983); see also H.R. REP. No. 98-198, at 53 (1983) (stating that RCRA confers on citizens a right under § 6972 to sue pursuant to the standards of liability established under § 6973).
78. S. REP. No. 98-284, at 56 (1983); see also H.R. REP. No. 98-198, at 53 (1983) (stating that RCRA confers on citizens a right under § 6972 to sue pursuant to the standards of liability established under § 6973).
79. 688 F.2d 204 (3rd Cir. 1982).
80. Id. at 208-09.
81. Id. at 209.
82. Id. at 207-08.
83. Id. at 214.
84. Id. at 214 (emphasis added).
85. Id.
86. 810 F.2d 726 (8th Cir. 1985).
87. Id. at 750 (8th Cir. 1985); see also United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373 (8th Cir. 1988) (remanding the case to district court, thereby allowing the EPA to seek recovery of their remediation costs).
88. Price, 688 F.2d at 214.
89. Incentives for Self Policing: Discovery, Disclosure, Correction and Prevention of Violations, 60 Fed. Reg. 66,706, 66,710 (1995).
90. Robert W. Parnacott, Compliance Through Cooperation, 65 J. KAN. B. ASS'N, June-July 1996, at 22, 23.
91. John M. Scagnelli, Environmental Issues and Liability Considerations 607, 617 (PLI Corp. Law & Practice Course Handbook Series No. 946, 1990).
92. Id.
93. Meghrig v. KFC Western, Inc., 116 S. Ct. 1251, 1256 (1996).
94. One example of Congress hurriedly passing legislation is the quick drafting of CERCLA in December of 1980 after the "Love Canal" investigation. A hazardous waste site was discovered in the Love Canal neighborhood of Niagara Falls, New York. In the ensuing months, health officials discovered numerous other hazardous waste sites around the country. It quickly became apparent that local governments did not have the capability to respond to problems created by unsafe hazardous waste disposal, and that existing federal environmental laws were unsatisfactory. In response, Congress quickly drafted CERCLA. See Albert Bates Jr. IV & Timothy C. Wolfson, An Overview of the Integration of RCRA's Imminent Hazard Citizen Suit Provision with CERCLA's Cost Recovery Provisions After KFC Western v. Meghrig, 25 Env't Rep. (BNA) No. 51, at 2550 (Apr. 28, 1995); Gerald B. Silverman, Love Canal: A Retrospective, 20 Env't Rep. (BNA) No. 20, at 835 (Sept. 15, 1989).
95. One example of Congress hurriedly passing legislation is the quick drafting of CERCLA in December of 1980 after the "Love Canal" investigation. A hazardous waste site was discovered in the Love Canal neighborhood of Niagara Falls, New York. In the ensuing months, health officials discovered numerous other hazardous waste sites around the country. It quickly became apparent that local governments did not have the capability to respond to problems created by unsafe hazardous waste disposal, and that existing federal environmental laws were unsatisfactory. In response, Congress quickly drafted CERCLA. See Albert Bates Jr. IV & Timothy C. Wolfson, An Overview of the Integration of RCRA's Imminent Hazard Citizen Suit Provision with CERCLA's Cost Recovery Provisions After KFC Western v. Meghrig, 25 Env't Rep. (BNA) No. 51, at 2550 (Apr. 28, 1995); Gerald B. Silverman, Love Canal: A Retrospective, 20 Env't Rep. (BNA) No. 20, at 835 (Sept. 15, 1989).
96. For example, Superfund reform recently has been a topic of hot debate. In the years since Superfund's enactment, dissatisfaction with the statute has grown. For discussion of the Superfund reform debate, see generally Superfund: Senate Reform Bill Could Lower Barriers to Brownfields Redevelopment, GAO Says, 27 Env't Rep. (BNA) No. 10, at 542 (July 5, 1996); Superfund: Bills Would Give States Brownfield Cleanup Grants, Reinstate Expired Federal Superfund Tax Until 2001, 27 Env't Rep. (BNA) No. 15, at 837 (Aug. 9, 1996); Superfund: Oxley Reform Bill Does Not Go Far Enough for Small Businesses, House Committee Told, 26 Env't Rep. (BNA)No. 25, at 1131-35 (Oct. 27, 1995) [hereinafter Oxley Reform Bill].
97. For example, Superfund reform recently has been a topic of hot debate. In the years since Superfund's enactment, dissatisfaction with the statute has grown. For discussion of the Superfund reform debate, see generally Superfund: Senate Reform Bill Could Lower Barriers to Brownfields Redevelopment, GAO Says, 27 Env't Rep. (BNA) No. 10, at 542 (July 5, 1996); Superfund: Bills Would Give States Brownfield Cleanup Grants, Reinstate Expired Federal Superfund Tax Until 2001, 27 Env't Rep. (BNA) No. 15, at 837 (Aug. 9, 1996); Superfund: Oxley Reform Bill Does Not Go Far Enough for Small Businesses, House Committee Told, 26 Env't Rep. (BNA)No. 25, at 1131-35 (Oct. 27, 1995) [hereinafter Oxley Reform Bill].
98. For example, Superfund reform recently has been a topic of hot debate. In the years since Superfund's enactment, dissatisfaction with the statute has grown. For discussion of the Superfund reform debate, see generally Superfund: Senate Reform Bill Could Lower Barriers to Brownfields Redevelopment, GAO Says, 27 Env't Rep. (BNA) No. 10, at 542 (July 5, 1996); Superfund: Bills Would Give States Brownfield Cleanup Grants, Reinstate Expired Federal Superfund Tax Until 2001, 27 Env't Rep. (BNA) No. 15, at 837 (Aug. 9, 1996); Superfund: Oxley Reform Bill Does Not Go Far Enough for Small Businesses, House Committee Told, 26 Env't Rep. (BNA)No. 25, at 1131-35 (Oct. 27, 1995) [hereinafter Oxley Reform Bill].
99. Federal Facilities: Superfund, RCRA Reforms in Congress Called Key Factor in Meeting Cleanup Goals, 26 Env't Rep. (BNA) No. 24, at 1085-86 (Oct. 20, 1995).
100. Oxley Reform Bill, supra note 94, at 1132.