ELR Citation: ELR 20638
No(s). 92-56597 (9th Cir. Mar 1, 1995)

The court holds that a company that cleaned up contamination on its property may sue those who contaminated the property for restitution under §7002(a)(1)(B) of the Resource Conservation and Recovery Act (RCRA), even though the site did not present an imminent and substantial endangerment when the company filed suit. The court first holds that RCRA authorizes citizen suits with respect to contamination that posed imminent and substantial danger in the past. The court follows the Eighth Circuit's interpretation of RCRA §7003, which authorizes suits by the U.S. Environmental Protection Agency (EPA) and is worded virtually identically to §7002, as not limiting the time for filing an action. The court next holds that RCRA authorizes a restitutionary remedy in this case. The company's action to collect restitution of its cleanup costs falls within §7002's allowance for district court orders that require defendants to take "such other action as may be necessary." The court holds that RCRA does not entitle citizens to obtain only an injunction or other equitable relief that is not the equivalent of compensatory money damages. The court interprets the relief available under §§7002 and 7003 similarly, and notes that the Eighth Circuit has recognized EPA's right to sue under §7003 for restitution of costs incurred. The court is not persuaded that material differences exist between these substantially identical provisions that would justify affording restitutionary relief only to EPA. Nor is the lack of a limitations period for RCRA citizen suits evidence that reimbursement actions under RCRA are unavailable. By applying equitable defenses such as laches, courts can alleviate any unfairness that the lack of a limitations period might create. The court notes that it would be unfair and poor public policy to interpret §7002(a)(1)(B) as barring restitution suits, because the Comprehensive Environmental Response, Compensation, and Liability Act and state law do not provide an adequate substitute source of relief for innocent citizens such as the company in this action, and an interpretation of §7002(a)(1)(B) that afforded only injunctive relief, not compensation, would foreclose a RCRA remedy for innocent buyers who clean up contaminated property.

A dissenting judge would hold that §7002(a)(1)(B) does not contemplate actions for restitution when there is no imminent and substantial endangerment at the time of suit.

Counsel for Plaintiff
Daniel Romano
100 Wilshire Blvd., Ste. 1300, Santa Monica CA 90401
(310) 451-4959

Counsel for Defendants
John P. Zaimes
McClintock, Weston, Benshoof, Rochefort,
Rubalcava & MacCuish
444 S. Flower St., 43d Fl., Los Angeles CA 90071
(213) 623-2322

Before Browning, Pregerson, and Brunetti, JJ.: