Kfc Western, Inc. v. Alan Meghrig Margaret Meghrig

49 F.3d 518, 95 Daily Journal DAR 2704, 95 Cal. Daily Op. Serv. 1522, 40 ERC (BNA) 1161, 1995 U.S. App. LEXIS 3920, 1995 WL 81766

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 1, 1995
• Docket: 92-56597
• Status: Published

Opinions

Opinion by Judge Harry PREGERSON; Dissent by Judge BRUNETTI.

Before: BROWNING, PREGERSON, and BRUNETTI, Circuit Judges.

PREGERSON, Circuit Judge:

KFC Western, Inc. (“KFC”) appeals the district court’s dismissal of its action under the Resource Conservation and Recovery Act (“RCRA”) to recover environmental clean-up costs from the prior owners of contaminated property sold to KFC. The district court dismissed KFC’s action under Federal Rule of Civil Procedure 12(b)(6) because it concluded that RCRA § 7002, codified at 42 U.S.C. § 6972(a)(1)(B), does not authorize private plaintiffs to collect a restitutionary remedy. We have jurisdiction under 28 U.S.C. § 1291. We reverse and remand.

BACKGROUND

In September 1975, Alan and Margaret Meghrig (the “Meghrigs”) sold real property to KFC, which continues to own and operate a Kentucky Fried Chicken franchise on the property. Unbeknown to KFC, underground soil at the property was contaminated with elevated levels of refined petroleum products (lead and benzene) at the time of the sale. The contamination allegedly resulted from the Meghrigs’ negligence in operating a gasoline station on the property. The Meghrigs never informed KFC about the contamination.

In October 1988, in the course of improving the property, KFC discovered the contaminated soil. The City of Los Angeles Department of Building and Safety issued a corrective notice ordering KFC to stop all construction on the property pending analysis of the soil and clearance from the County of Los Angeles Department of Health Services (the “DHS”). Analysts confirmed the presence of elevated levels of refined petroleum in the soil. Although KFC neither caused the contamination nor owned the property when the contamination occurred, the DHS ordered KFC to clean up .the property. KFC spent over $211,000.00 to assess and remove the contaminated soil for off-site disposal. KFC completed the clean-up in 1989 and, in June 1990, asked the Meghrigs to reimburse the costs. The Meghrigs refused.

On May 29,1992, KFC filed a complaint in district court against the Meghrigs under RCRA § 7002, codified at 42 U.S.C. § 6972(a)(1)(B), for restitution of the expended clean-up costs. The Meghrigs filed a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss the complaint, offering two reasons why KFC’s action did not come within'the RCRA citizen suit provision: (1) there was no “imminent and substantial endangerment” because KFC had completed the clean-up three years before filing, and (2) RCRA authorized suits for injunctive relief only, not for damages. The district court granted the Meghrigs’ motion and granted KFC leave to amend its complaint.

KFC filed an amended complaint which alleged that the contaminated soil, at the time of clean-up, 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 KFC franchise. RCRA § 7002, codified at U.S.C. § 6972(a)(1)(B). Aso, KFC stated that its damages claim was actually a claim for “equitable restitution.” Upon the Meghrigs’ renewed motion, the district court dismissed the amended complaint. In its dismissal .order, the district court stated that 42. U.S.C. § 6972(a)(1)(B) authorizes only injunctive or other equitable relief and only in cases involving an existing, imminent danger to public health or the environment. KFC appeals.

ANALYSIS

We review de novo a dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Oscar v. University Students Co-op. Ass’n, 965 F.2d 783, 785 (9th Cir.) (en banc), cert. denied, — U.S. —, —, 113 S.Ct. 655, 656, 121 L.Ed.2d 581 (1992). In reviewing such a dismissal, our review is limited to the contents of the complaint, Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir.), cert. denied, — U.S. —, 113 S.Ct. 599, 121 L.Ed.2d 536 (1992), and we must take as true all allegations of material fact and construe them in the light most favorable to the plaintiff, Oscar, 965 F.2d at 785.

This appeal presents us with a question of first impression — whether the RCRA citizen suit provision authorizes a private plaintiff to collect restitution of clean-up costs. The RCRA citizen suit provision provides:

[A]ny person may commence a civil action on his own behalf ... against any person ... 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 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[.]

The district court shall have jurisdiction ... to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, of disposal or any solid or hazardous waste referred to in [§ 6972(a)(1)(B) (the endangerment provision) ] [and] to order such person to take such other action as may be necessary, or both....

RCRA § 7002, codified at 42 U.S.C.A. § 6972(a)(1)(B) and § 6972(a) (West 1984 & Supp.1993) (emphasis added).

The parties dispute initially whether, for purposes of § 6972(a)(1)(B), “imminent and substantial endangerment” must exist at the time the plaintiff files a complaint or may exist at the time of clean-up. The Meghrigs urge us to adopt the district court’s reasoning that § 6972(a)(1)(B) authorizes citizen suits only if contamination poses an imminent and substantial endangerment at the time the plaintiff files the complaint. Because KFC completed the clean-up of the property three years before commencing this lawsuit, the Meghrigs argue that KFC has no remedy under RCRA. The result urged by the Meghrigs is supported by certain comments in the legislative history that explain the meaning of the term “imminence.” “Imminence in this section applies 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.” Staff of House Subcommittee on Oversight and Investigation, Committee on Interstate and Foreign Commerce, 96th Cong., 1st Sess., Hazardous Waste Disposal 32 (Comm. Print 96-IFC 31, 1979) (“Eckhardt Report”) (emphasis added). See Dague v. City of Burlington, 935 F.2d 1343, 1356 (2d Cir.1991) (finding an “imminent hazard” requires proof that a risk of harm is present), rev’d in part on other grounds, — U.S. —, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992); United States v. Price, 688 F.2d 204, 214 (3d Cir.1982) (noting that Imminent danger existed at the time of the district court’s hearing).¹

Nonetheless, we agree with KFC that RCRA authorizes citizen suits with respect to contamination that in the past posed imminent and substantial danger. We choose to follow the Eighth Circuit’s interpretation of RCRA § 7003, codified at 42 U.S.C. § 6973, which authorizes suits by the Administrator of the Environmental Protection Agency (“EPA”), and which is worded virtually identically to § 6972(a)(1)(B).² The Eighth Circuit reads the imminent endangerment requirement as “limiting] the reach of RCRA to sites where the potential for harm is great” but not as limiting the time for filing an action. United States v. Aceto Agric. Chemicals Corp., 872 F.2d 1373, 1383 (8th Cir.1989).

In Aceto Agric. Chemicals Corp., the Eighth Circuit, when it reversed a Federal Rule of Civil Procedure 12(b)(6) dismissal order, addressed and rejected the same arguments that the Meghrigs make here. The defendants in the Eighth Circuit case argued that because the plaintiff (EPA) cleaned up the site before bringing shit, the required “imminent and substantial endangerment” did not exist. The court concluded that the language of RCRA “does not require the EPA to file and prosecute its RCRA action while the endangerment exists.” Id. The court explained that RCRA’s purpose “is to ‘give broad authority to the courts to grant all relief necessary to ensure complete protection of the public health and the environment. The limitation urged by defendants would defeat this purpose,’ ” would be an “absurd and unnecessary” requirement. Id. (citations to quoted material omitted).

We also agree with KFC that RCRA authorizes a restitutionary remedy under these circumstances. KFC’s action to collect restitution of clean-up costs falls within the statutory allowance for district court orders that defendants take “such other action as may be necessary-” 42 U.S.C. § 6972(a) (“The, district court shall have jurisdiction ... to restrain any person who has contributed or who is contributing to [an imminent and substantial endangerment], to order such person to take such other action as may be necessary, or both-”) (Emphasis added). We reject the Meghrigs’ contention that the statute entitles citizens to obtain only an injunction or other equitable relief that is not the equivalent of compensatory money damages.

Because Congress intended that citizen suits be governed by the same standards of liability as governmental actions,³ and because it worded the provisions almost identically, we choose to interpret similarly the relief available under the two provisions. The Eighth Circuit has recognized the Administrator’s right to sue under § 6973 for restitution of costs incurred. See, e.g., Aceto Agric. Chemicals Corp., 872 F.2d at 1383 (Administrator may collect reimbursement after government cleaned up contaminated property); United States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726 (8th Cir.1986) (Administrator may collect an equitable award of abatement costs from persons who non-negligently contributed to endangerment), cert. denied, 484 U.S. 848, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987), The Third Circuit also has stated that “[r]eimbursement could ... be directed against those parties ultimately found to be liable” after the EPA itself funded a diagnostic study of contaminated property. Price, 688 F.2d at 214 (holding that district court could have granted the Administrator a preliminary injunction to obtain funding for diagnostic study).

We are not persuaded by the Meghrigs’ contention that material differences exist between the substantially identical citizen" suit provisions in § 6972(a)(1)(B) and § 6973, so as to justify affording restitutionary relief only to the Administrator. The Meghrigs focus first on the different notice requirements for filing actions.⁴ The Administrator may bring an action “upon receipt of evidence” of the requisite endangerment, and the statute does not preclude actions filed by the Administrator without notice. See 42 U.S.C. § 6973(a). On the other hand, a private plaintiff cannot commence an action without giving ninety days’ notice to the Administrator, the State, and to any alleged contributor to the endangerment. See 42 U.S.C. § 6972(b)(2)(A); Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1159 (9th Cir.1989). Notice by a private plaintiff might encourage certain polluters to abate harmful conduct to obviate an expensive lawsuit. Still, there is no inconsistency between a notice requirement and the recovery of clean-up costs from past polluters.⁵ Requiring notice of a citizen suit restitution action still serves certain interests of the EPA and the states by notifying them that endangerment was corrected and that the polluters are being held accountable. Furthermore, even the Administrator must provide- immediate notice of hazardous waste endangerment to the appropriate local governmental agencies, see 42 U.S.C. § 6973(c), and no courts have treated this notice requirement as a basis for refusing to allow governmental restitution actions.

The Meghrigs also argue that the lack of a limitations period for RCRA citizen suits is evidence of the¹ unavailability of reimbursement actions under RCRÁ. They argue that it would be problematic for us to conclude that private citizens can file suit many years after they complete clean-up of once-imminent endangerment. Congress provided a limitations period in other statutes, such as the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), when it expressly authorized actions to recover response costs, 42 U.S.C. § 9612(d)(1) (West 1986 & Supp.1993) (claim to recover clean-up costs must be made within six years after the completion of all response action). Instead, in RCRA, Congress provided that private plaintiffs retain the right “to seek any other relief’ available “under any statute or common law_” See 42 U.S.C. § 6972(f). We do not see this as a problem. By applying equitable defenses such as laches, courts can alleviate any unfairness that might be created by the lack of a limitations period for RCRA citizen suits.

We have found no principled reason to distinguish between the relief available to the Administrator and that available to private plaintiffs under the virtually identical statutory provisions. Nor are we persuaded by the ease law cited by the Meghrigs. Some circuit courts have held that citizens cannot bring reimbursement actions because RCRA authorizes only preventive; rather than compensatory relief. See Walls v. Waste Resource Corp., 761 F.2d 311, 316 (6th Cir.1985) (refusing to imply a private right of action for damages); Environmental Defense Fund, Inc. v. Lamphier, 714 F.2d 331, 337 (4th Cir.1983) (affirming award of injunctive relief because plaintiffs were “acting as private attorneys general rather than pursuing a private remedy [for damages]”). These decisions are inapposite because they do not address private actions like KFC’s action, brought under § 6972(a)(1)(B). Rather, they concern actions brought under the predecessor to § 6972(a)(1)(A), formerly 42 U.S.C. § 6972(a), which authorized actions to “enforce” a requirement against any person alleged to be currently “in violation” of the requirement. Cf. § 6972(a)(1)(B) (allowing actions against any contributor, past or present, to an imminent and substantial endangerment).

Furthermore, we disapprove of the reasoning used by district courts that have dismissed complaints brought under § 6972(a)(1)(B) to the extent the plaintiffs sought reimbursement of clean-up costs. See Kaufman and Broad-South Bay v. Unisys Corp., 822 F.Supp. 1468 (N.D.Cal.1993) (refusing to follow cases interpreting § 6973 to afford a restitution remedy to the Administrator, and relying on Walls, and Commerce Holding Co. v. Buckstone, 749 F.Supp. 441 (E.D.N.Y.1990)); Commerce Holding Co., 749 F.Supp. at 445 (Although plaintiff characterized complaint as a request for “equitable relief in the form of [clean-up cost] reimbursement,” court construed it as one for damages, stating that the complaint failed even if treated as a request for equitable relief because the plaintiff “would be the direct beneficiary of the substantive relief.”). Because we choose to follow the Eighth Circuit’s rule that the Administrator may sue for equitable restitution of costs, we now allow such suits by private, plaintiffs under § 6972(a)(1)(B).

It would be unfair and poor public policy to interpret § 6972(a)(1)(B) as barring restitution actions. 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. As in this case, the government often orders innocent parties, so-called “responsible parties” under the statute, to remedy discovered contamination on their property even though they did not cause the contamination or have any ties to the property when the contamination occurred. When the government orders cleanup, the innocent citizen must respond expeditiously to the order. There is no 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.

CERCLA and state law do not provide an adequate substitute source of relief for these innocent citizens.⁶ In practice, an interpretation of § 6972(a)(1)(B) that afforded only injunctive relief, not compensation, would make the remedy available only to concerned outsiders, who can never be held responsible for environmental clean-up. We would foreclose a RCRA remedy for the innocent buyers who clean up contaminated property.

In fact, it is even more important for private citizens, as compared to the EPA Administrator, to have a restitutionary remedy under RCRA. 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. 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. The Administrator, on the other hand, can control the timing of clean-up actions and impose the clean-up burden on the polluters or other “responsible parties” in the first instance. The right to reimbursement becomes important to the Administrator only when contamination requires prompt attention, which is always the case for private citizens who are ordered to remedy contamination. As the Third Circuit has recognized, public policy concerns might favor allowing a plaintiff to clean contaminated property first and seek reimbursement later. See Price, 688 F.2d at 214 (“Prompt preventive action [is] the most important consideration.”). We therefore hold that § 6972(a)(1)(B) entitles KFC to bring a restitution action. REVERSED AND REMANDED.

1 . The Meghrigs also cite Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) (Clean Water Act case) and McClellan Ecological Seepage Situation v. Weinberger, 707 F.Supp. 1182, 1187 (E.D.Cal.1988) (dismissing for mootness a RCRA action under § 6972(a)(1)(A)), which are inappo-site. Both cases explain only that citizen suit provisions not at issue here do not apply retroactively to allow an action against a defendant who violated a statutory obligation in the past, if the defendant no longer allegedly is “in violation.” In contrast, § 6972(a)(1)(B) applies both prospectively and retrospectively, to persons who contributed in the past to current endangerment. See Ascon Properties, Inc. v. Mobil Oil Co., 866 (9th Cir.1989) (citing Gwaltney, 484 U.S. at 57 & 58 n. 2, 108 S.Ct. at 381 & 382 n. 2, wherein the Supreme Court described the section as one where “Congress has demonstrated ... that it knows how to avoid [limiting a statute to prospective application] by using language that expressly targets past violations”).

2 . Specifically, § 6973 provides:

[U]pon receipt of evidence that the past or present handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste may present an imminent and substantial endangerment to health or the environment, the Administrator may bring suit ... against any person ... who has contributed or who is contributing to such handling, storage, treatment, transportation or disposal to restrain such person from [such activity], to order such person to take such other action as may be necessary, or both....

42 U.S.C.A. § 6973 (West 1984 & Supp.1993) (emphasis added).

3 . H.R.Rep. No. 198, 98th Cong., 2d Sess., pt. I, 53 (1983), reprinted in 1984 U.S.C.C.A.N. 5576, 5612. The legislative history for 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, who is authorized (according to persuasive out-of-circuit case law, discussed infra) 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. Id. “The Committee believes [the] expansion of the citizen suit provision will complement ... the Administrator's efforts to eliminate threats as to public health and the environment, particularly where the Government is unable to take action because of inadequate resources.” Id.

Still, the legislative history cuts both ways because other language supports the Meghrigs’ contention that Congress intended to allow citizens to sue only for injunctions when it added the endangerment provision. The House Committee stated that citizens have a "limited right ... to sue to abate an imminent and substantial endangerment.” Id. (emphasis added).

4 . Compliance with the citizen suit notice requirement, infra, is not an issue on appeal.

5 . Section 6972(a)(1)(B) permits private actions against persons who in the past contributed to current endangerment, even though they no longer engage in conduct that requires abatement. Because § 6972(a)(1)(B) applies retroactively in some cases, we do not import into our analysis the Supreme Court's discussion in Gwaltney on the significance of a notice requirement, 484 U.S. at 60-61, 108 S.Ct. at 383 (rejecting a statutory interpretation that would render notice gratuitous because one purpose of notice is to give an alleged violator an opportunity to bring itself into compliance with federal requirements and thereby render unnecessary a citizen suit). As explained supra in note 1, the Gwaltney case concerned a different statute which only applies to persons alleged to be currently in violation of federal obligations.

6 . KFC has no remedy under CERCLA because CERCLA's petroleum exclusion covers refined petroleum products such as gasoline and therefore bars a lawsuit to recover response costs occasioned by its release. See Cose v. Getty Oil Co., 4 F.3d 700, 704 (9th Cir.1993) (CERCLA excludes refined petroleum from its definition of “hazardous substance”); Wilshire Westwood Assocs. v. Atlantic Richfield Corp., 881 F.2d 801, 810 (9th Cir.1989) (same). Due to a similar petroleum exclusion in California's Hazardous Substance Account Act, KFC also has no statutory state law remedy. KFC Western, Inc. v. Meghrig, 23 Cal.App.4th 1167, 28 Cal.Rptr.2d 676, 682 (1994). KFC might be able to state common law claims for private continuing nuisance and continuing trespass based on the Meghrigs’ allegedly tortious contamination of the soil. See id., 28 Cal.Rptr.2d at 685 (reversing dismissal and remanding to allow KFC to amend its complaint). Even though 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.

1 . I agree with the majority that § 6973 and § 6972(a)(1)(B), which are worded. identically, should be interpreted the same. The legislative history supports this conclusion. See H.R.Rep. No. 198, 98th Cong., 2d Sess. 53 (1984), reprinted in; 1984 U.S.C.C.A.N. 5576, 5612, (citizens have right to sue "pursuant to the standards of liability established under Section 7003 [42 U.S.C. § 6973]”). However, because Aceto does not address the issue of reimbursement, I do not believe that the majority should rely on it to include actions for restitution within the scope of § 6972(a)(1)(B).