ELR Citation: ELR 21450
No(s). 94-3281 (8th Cir. Aug 15, 1995)

The court holds that Resource Conservation and Recovery Act (RCRA) §7002 does not authorize citzen suits to recover remediation costs. Applying the factors set forth in Cort v. Ash, 422 U.S. 66 (1975), for determining the availability of private remedies, the court holds that there is no basis for imputing to Congress the intent to create in §7002 an implied private cause of action to recover such costs. Section 7002 on its face does not provide for the recovery of such costs and neither RCRA generally nor §7002 specifically was enacted for the special benefit of property owners, such as plaintiffs, who pay to remediate soil contamination that has resulted from leaking underground gasoline storage tanks for which they claim no responsibility. The court next holds that §7002's language granting courts authority to order parties to take "such other action as may be necessary" does not contemplate the payment of money to a party who already has cleaned up a contaminated site. Similarly, jurisdiction "to enforce" or "to restrain" does not encompass the authority to award monetary relief. Congress could have written §7002 to include the remedy plaintiffs seek, but deliberately did not do so. The court finds no evidence in the legislative history that Congress intended to create a remedy to recover cleanup costs under §7002 and holds that such a remedy is not necessary to effectuate §7002's purpose. RCRA's goal is to prevent the creation of hazardous waste sites, rather than to promote the cleanup of existing sites. The comprehensive structure of federal environmental legislation cautions against inferring a monetary remedy under §7002, because numerous statutes that specifically authorize actions for a monetary remedy are already in place. The court rejects plaintiffs' argument that allowing recovery of remediation costs under §7002 would encourage voluntary abatement of contamination. It is the threat of criminal or civil sanctions, not a belief that remediation costs can be recovered under RCRA from previous owners or users of the property, that hastens a cleanup such as the one plaintiffs undertook. The court further holds that the final Cort factor—whether the cause of action is one traditionally relegated to state law—affords no basis for finding in §7002 an implied cause of action for the recovery of cleanup costs. Section 7002(f) specifically reserves state remedies, and Congress expressed concern that citizen suits not become bogged down in the quest for private state-law remedies. Finally, the court rejects the Ninth Circuit's conclusion in KFC Western, Inc. v. Meghrig, 25 ELR 20638 (1995), that §7002(a)(1)(B) gives the district court jurisdiction over private actions to recover cleanup costs. The Ninth Circuit began with the questionable proposition that §§7002 and 7003 grant authority to award identical remedies to private parties and to governmental plaintiffs. The Ninth Circuit then mistakenly reached its result in reliance on Eighth Circuit cases that reflect no consideration of the jurisdictional issue.

[Briefs in this litigation are digested at ELR PEND. LIT. 66408.]

Counsel for Appellants
Barry J. Klinckhardt
Guilfoil, Petzall & Shoemake
100 N. Broadway, Ste. 2000, St Louis MO 63102
(314) 241-6890

Counsel for Appellees
John Metzger
Armstrong & Teasdale
One Metropolitan Sq., Ste. 2600, St. Louis MO 63102
(314) 621-5070

* The HONORABLE MARK W. BENNETT, United States District Judge for the Northern District of Iowa, sitting by designation.

Before Fagg and Bennett,^* JJ.