RCRA Eases Reimbursement Process

Citizen suits under the Resource Con-servation and Recovery Act (RCRA) have an added punch, thanks to a March ruling by a federal appeals court (KFC Western Inc. v. Meghrig, No. 92-56597, 9th Cir., March 1, 1995).

In 1975, Alan and Margaret Meghrig sold a piece of Los Angeles property to KFC for the company to build a restaurant. Thirteen years later, petroleum pollution was discovered on-site. Although the contamination occurred while the Meghrigs owned and operated a gasoline filling station on the site, KFC nevertheless cleaned up the property at a cost of more than $200,000.

When the Meghrigs refused to reimburse KFC for its expenses, KFC filed a RCRA citizen suit in federal district court. KFC lost its case in the lower court because the judge believed that RCRA:

* Required a current threat to public health or the environment; and

* Permitted only injunctive relief in citizen suits and not damages.

On appeal, the U.S. Court of Ap-peals for the Ninth Circuit said that private parties who bring citizen suits under Section 7002 of RCRA are not limited to asking for an in-junction. They can sue to recover cleanup costs as well, the court ruled, even if "imminent and substantial endangerment" to public health and the environment does not exist when the suit is filed.

As a result, RCRA may offer a better remedy than the Superfund law for property owners and other victims of illegally dumped contaminants - at least in the far Western states where Ninth Circuit rulings hold sway.

In comparison, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) makes cost reimbursement more difficult for plaintiffs. For example, CERCLA demands that parties who seek reimbursement must comply with federal hazardous waste cleanup standards. In addition, CERCLA does not apply to petroleum spill cleanups. Moreover, CERCLA makes no room for recovery of attorneys' fees. RCRA, on the other hand, has none of these impediments.

"If the court had held the other way, plaintiffs would have gotten the following advice: If the federal government says, 'Go clean up property because of an imminent and substantial endangerment to the environment,' don't do it. Go to federal court and file suit to get someone else to do it," said KFC's lawyer.

The appellate court said that the endangerment does not have to exist when a RCRA suit is filed, citing a ruling by another federal appeals court. Nor is the court limited to granting an injunction, the Ninth Circuit added. Otherwise, innocent victims of contamination, who may be ordered by environmental agencies to clean up the mess, could not later seek restitution from responsible parties, said a majority of the appellate panel.

One member of the three-judge panel took issue with the majority in a strongly worded dissenting opinion. He noted that Section 7002 does not mention reimbursement and that the law seemed to require an actual threat of harm when the injured party goes to court.

An Unreliable Waste Referendum. A referendum on a proposed solid waste disposal facility discriminated against interstate commerce, ac-cording to a ruling by a federal ap-peals court. In the referendum, South Dakota voters rejected the project.

The U.S. Court of Appeals for the Eighth Circuit held that the measure had a discriminatory purpose and effect because it "so predominantly affects only out-of-staters." Furthermore, the court found that the referendum did not further the state's legitimate concerns with safety and environmental protection and that non-discriminatory alternatives were available to advance the state's interests.

The referendum had no real connection with environmental protection, according to the appeals court. The Lonetree facility had passed scrutiny by state environmental officials and had been approved by state legislature. Instead, the voters were "bombarded with protectionist propaganda." The opinion cited legislative history "brimming with protectionist rhetoric," noting that the state-sponsored pamphlet accompanying the referendum contained a statement that exhorted citizens to vote against the "out-of-state dump" because "South Dakota is not the nation's dumping grounds." According to the pamphlet, a "no" vote would "prevent Lonetree from operating and keep its imported garbage out of South Dakota." Such language, the court said, was meant to encourage voters to reject the facility.

The referendum allowed voters to simply mark "yes or no without any criteria and with severely limited information to guide them in evaluating the effects of the Lonetree facility," the judges said. "Thus, ... the defeat of the referred measure cannot be seen as improving environmental protection." In short, such a referendum was "unreliable as an environmental review," the court said.