Journal of Natural Resources & Environmental Law

Volume 11
Issue 1 Journal of Natural Resources & Article 7
Environmental Law, Volume 11, Issue 1

January 1995

The RCRA Citizen Suit Provision and the Private Remedy of

Restitution After KFC Western, Inc. v. Meghrig and Furrer v. Brown:
Reasonable Minds May Differ
J. Thomas Blaine Lewis
University of Kentucky

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Recommended Citation
Lewis, J. Thomas Blaine (1995) "The RCRA Citizen Suit Provision and the Private Remedy of Restitution
After KFC Western, Inc. v. Meghrig and Furrer v. Brown: Reasonable Minds May Differ," Journal of Natural
Resources & Environmental Law: Vol. 11: Iss. 1, Article 7.
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 The RCRA Citizen Suit Provision and
the Private Remedy of Restitution After
KFC Western, Inc. v. Meghrig and
Furrer v. Brown: Reasonable Minds May
Differ*
J. THOMAS BLAINE LEWiS*"

According to a congressional House Report, the citizen suit

provision of the Resource Conservation and Recovery Act' "confers
on citizens a limited right under section 7002 to sue to abate an
imminent and substantial endangerment pursuant to the standards of
liability established under section 7003.'' Exactly what limited
"right" this provision "confers," however, remains subject to inter-
pretation as disagreement in the courts concerning the available
statutory remedies persists.3 The courts are divided4 over whether a
plaintiff suing under the citizen suit provision may seek only declar-
atory or injunctive relief, or whether under certain circumstances a
plaintiff may bring suit to recover damages.)

. The United States Supreme Court recently settled the issue addressed in this
Comment in Meghrig v. KFC Western, Inc., 64 U.S.L.W. 4135 (Mar. 19, 1996) (To be
reported at 116 S.Ct. 1251). The Court rendered this opinion a short time before this
Comment was scheduled to go to print. The addendum to this Comment contains an
analysis of the Court's opinion.
1"Staff member, JOURNAL OF NATURAL RESOURCES & ENVIRONMENTAL LAW; J.D.,
Class of 1997, University of Kentucky; B.A., History, May 1993, Indiana University.
Solid Waste Disposal Act, as amended, Resource Conservation and Recovery
Act, 42 U.S.C. §§ 6901-6992K (1984) [hereinafter RCRA].
' H.R. REP. No. 198, 98th Cong., 2d Sess., pt. 1, at 53 (1984), reprinted in 1984
U.S.C.C.A.N. 5576, 5612. Section 7003 is the provision conferring enforcement authority
on the EPA Administrator.
For a summary of cases involving disputes over standing, the meaning of
"citizen," etc., see William B. Johnson, Annotation, Right to Maintain Citizen Suit under
§ 7002 of Resource Conservation and Recovery Act, 91 A.L.R. Fed. 436 (1994).
4 KFC Western v. Meghrig, 49 F.3d 518 (9th Cir. 1995) (allowing restitution as a
remedy); Furrer v. Brown, 62 F.3d 1092 (8th Cir. 1995) (disallowing an action for res-
titution).
' For purposes of this Comment, the terms restitution and damages will be used
 J. NAT. RESOURCES & ENVTL. L. [VOL. 1 1: 1

The citizen suit provision does not expressly provide for a

damages remedy.6 Thus, in light of congressional silence, the courts
have turned to an analysis of legislative history, statutory purpose,
and other factors in an attempt to extrapolate congressional intent.7
Under the RCRA citizen suit provision, section 6972(a)(1)(B),
a plaintiff may bring an action against anyone:
including any past or present generator, past or present transporter,
or 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 an substantial endangerment to health or the environ-
ment.'
This language, concerned with contributors to a situation that poses
an "imminent and substantial endangerment," appears to focus on
rectifying a currently dangerous situation. This interpretation seems
to be corroborated by the statute's remedial language vesting in the
federal courts the power to "restrain" any such contributors. Yet
litigants and some courts have posed a question of interpretation that
may be summarized as follows: should a plaintiff be permitted to
bring a citizen suit only when a current "imminent and substantial
endangerment" exists; or, should a plaintiff be permitted to bring a
contribution action after remediating a past "imminent and substan-
tial endangerment?"
Many court opinions, either directly or indirectly, refer to this
statutory directive to abate an "imminent and substantial endanger-
ment" to support the notion that the sole statutory purpose is to
allow private citizens to act as "private attorneys general,"9 and not

interchangeably to indicate a payment of money as a remedy. This is distinguished from

injunctions and enjoinment actions that focus more on prohibiting dangerous conduct.
6 Furrer, 62 F.3d at 1094 (stating that "The statute does not give the district
courts express authority in citizen suits to award money judgments for costs incurred in
cleaning up contaminated sites.").
The Furrer court employed the analysis proffered by the United States Supreme
Court in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080 (1975). The four-part analysis in-
cludes: 1) determining if the plaintiff is in the class of persons to be protected; 2)
interpreting the legislative history to determine legislative intent; 3) determining if the
statutory purpose would be furthered by allowing such a remedy; and, 4) deciding
whether the issue would be better dealt with by the state courts. The Furrer court, after
determining that the plaintiff had failed the first three factors, virtually dismissed the
fourth factor as moot. Id. See infra, text accompanying notes 71 - 88.
RCRA, 42 U.S.C. § 6972(a)(l)(b) (1984).
Portsmouth Redevelopment and Housing Authority v. BMI Apartments Associ-
1995-96] RCRA CITIZEN SUIT

to provide an avenue for compensation." At least one circuit, how-

ever, recently held otherwise and allowed a RCRA citizen suit for
damages."
Most of the cases in this area involve contribution actions with
a similar fact pattern. 2 Purchaser acquires a parcel of land from a
seller. Prior to this transaction, either a previous owner, a previous
lessee, or the seller operated a gasoline filling station on the pre-
mises." After the property ceased to be used as a filling station,
the underground storage tanks, with some contents still inside, were
not removed. The tanks deteriorated and began to leak petroleum.
Purchaser, unaware and uninformed by seller, becomes the owner of
a contaminated site which must be either cleaned up voluntarily or
at the behest of a state or federal environmental agency. After incur-
ring several thousand dollars"4 in cleanup costs, Purchaser sues the
alleged responsible party for contribution using the RCRA citizen
suit provision. 5

ates, 847 F. Supp. 380 (E.D. Va 1994).

" Milbut v. Hi Score Plant Food Co., 1992 WL 396774 (E.D. Pa. 1992); Agric.
Excess and Surplus Ins. Co. v. A.B.D. Tank & Pump Co., 878 F. Supp. 669 (N.D. Ill.
1995); 325-343 E. 56th Street Corp. v. Mobil Oil Corp., 906 F. Supp. 669 (D.D.C.
1995); Triffler v. Hopf, 1994 WL 643237 (N.D. 11. 1994); Connecticut Coastal
Fisherman's Ass'n v. Remington Arms Co., Inc., 989 F.2d 1305 (2d Cir. 1993); City of
Toledo v. Beazer Materials and Services, Inc., 833 F. Supp. 646 (N.D. Ohio 1993);
Murray v. Bath Iron Works, 867 F. Supp. 33 (D. Me. 1994); Commerce Holding Co.
Inc. v. Buckstone, 749 F. Supp. 441 (E.D.N.Y. 1990).
" KFC Western v. Meghrig, 49 F.3d 518 (9th Cir. 1995).
12 See, e.g., Zands v. Nelson, 779 F. Supp. 1254 (S.D. Cal. 1991); Circuit City
Stores, Inc. v. Citgo Petroleum Corp., 1994 WL 483463 (E.D. Pa. 1994); Triffler v.
Hopf, 1994 WL 643237 (N.D. Ill. 1994); Craig Lyle Ltd. Partnership v. Land O'Lakes,
Inc., 877 F. Supp. 476 (D. Minn. 1995); Painewebber Income Properties Three Ltd.
Partnership v. Mobil Oil Corp., 902 F. Supp. 1514 (M.D. Fla. 1995); E. 56th
Street Corp. v. Mobil Oil Corp., 906 F. Supp. 669 (D.C. 1995); KFC Western, 49 F.3d
518; Furrer v. Brown, 69 F.3d 1092 (8th Cir. 1995).
3 Comprehensive Environmental Response, Compensation, and Liability Act of
1980 § 9601 does not include petroleum products. Thus, the plaintiffs must resort to
RCRA or state law for a remedy. 42 U.S.C. § 9601 (1988).
" In KFC Western, 49 F.3d 518, the costs exceeded $200,000.
In Craig Lyle Ltd. Partnership, 877 F. Supp. 476 (D. Minn. 1995), the court
dealt with the question of whether leaked petroleum constituted a "hazardous" or "solid
waste" as defined by RCRA. The court began by referring to RCRA § 6903(27) which
defines "solid waste" as "any garbage, refuse ... discarded material, including solid,
liquid . . . material resulting from industrial, commercial . . . and .community activities"
Id. at 480. The court then noted that RCRA regulations define solid waste as "any dis-
carded material," and discarded material is material that is "abandoned." 40 C.F.R. §
261.2(a) (1995). Abandoned materials are those that have been "disposed of." 40 C.F.R.
§ 261.2(b) (1995). The court further noted that § 261.1(b)(1) states that its definition of
solid waste only applies to wastes that are also hazardous for purposes of subtitle C of
RCRA. The court then simply concluded that other courts "interpreting this provision
 J. NAT. RESOURCES & ENVTL. L. [VOL. 1 1: 1

In KFC Western, Inc. v. Meghrig, the Ninth Circuit, largely

relying on Eighth Circuit precedent, held that the RCRA citizen suit
provision affords the remedy of restitution.' 6 Subsequently, in
Furrerv. Brown, the Eighth Circuit held that the citizen suit provi-
sion of RCRA does not confer upon citizens the right to sue indi-
viduals for restitution of cleanup costs.'" Though employing an
analysis similar to that of the Ninth Circuit's in KFC Western, the
Furrer court came to a contrary conclusion, 8 despite the fact that
the 1984 Amendment to RCRA was intended to "clarify the breadth
of section 703 as to the persons, conditions and acts it covers."' 9
The purpose of this Comment is to provide an analysis of the
KFC Western and Furrerdecisions. Part I of this comment analyzes
RCRA section 6972, focusing on judicial interpretation of the "im-
minent and substantial endangerment" requirement of section
6972(a)(1)(B) and the statute's broad grant of remedial powers. Part
II analyzes KFC Western v. Meghrig, the Ninth Circuit case preced-
ing the Eighth Circuit's decision in Furrer.Here the paper will ana-
lyze both Eighth Circuit precedent relied on by the KFC Western
court as well as the KFC Western decision itself. A treatment of the
Furrer decision comprises Part III, where the Comment contrasts
the Furrer court's strict, no nonsense statutory construction with
that Circuit's own interpretively liberal precedent. Finally, an adden-
dum analyzes the Supreme Court's recent decision in Meghrig v.
KFC Western, Inc.

have concluded that it applies to citizen suits brought under section 6972(a)(1)(B)." Id. at
481. Nonetheless, the court clarified by citing Congress' intent to include within the
definition of discarded material those products that no longer were wanted or served
their intended purpose. Id. at 481 (citing Connecticut Coastal Fisherman's Ass'n v.
Remington Arms, 989 F.2d 1305, 1314 (2d. Cir. 1993) (quoting H.R. REP. No. 1491,
94th Cong., 2d Sess. 4 (1976), reprinted in 1976 USCCAN 6238, 6241)). Relying on
this definition, the court logically concluded that gasoline that has leaked from its
storage tank into the ground is no longer useful for its intended purpose. See Zands v.
Nelson, 779 F. Supp. 1254 (S.D.Cal.1992). See also Connecticut Coastal, 989 F.2d 1305.
6 KFC Western, 49 F.3d 518.
'7 Furrer v. Brown, 62 F.3d 1092 (8th Cir. 1995).
Id.
I
9 H.R. REP. No. 616, 98th Cong., 2nd Sess., reprinted in 1984 U.S.C.C.A.N.
5576, 5606.
1995-96] RCRA CITIZEN SUIT

I. THE CITIZEN SUIT PROVISION2"

A. Requirement of an "Imminent and Substantial Endangerment"

Under the citizen suit provision, no actual harm must be prov-

en-only the potential for actual harm.2 However, as previously
noted, vital to maintaining an action under the RCRA citizen suit

o RCRA, 42 U.S.C. § 6972. Section 6972 in pertinent part reads:

(a) In General
Except as provided in subsection (b) or (c) of this section, any person
may commence a civil action on his own behalf-
(I)(A) against any person (including (a) the United States, and (b)
any other governmental instrumentality or agency, to the extent
permitted by the eleventh amendment to the Constitution) 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; or
(B) against any person, including the United States and any other
governmental instrumentality or agency, to the extent permitted by
the eleventh amendment to the Constitution, and including any past
or present transporter, or 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; or
(2) 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.
Any action under paragraph (a)(1) of this subsection shall be brought in
the district court for the district in which the alleged violation occurred or
the alleged endangerment may occur. Any action brought under paragraph
(a)(2) of this subsection may be brought in the district court for the
district in which the alleged violation occurred or in the District Court of
the District of Columbia. The district court shall have jurisdiction, without
regard to the amount in controversy or the citizenship of the parties, to
enforce the permit, standard, regulation, condition, requirement, prohibition,
or order, referred to in paragraph (1)(A), to restrain any person who has
contributed or who is contributing to the past or present handling , storage,
treatment, transportation, or disposal of any solid or hazardous waste
referred to in paragraph (I)(B), to order such person to take such other
action as may be necessary, or both, or to order the Administrator to
perform the act or duty referred to in paragraph (2), as the case may be,
and to apply any appropriate civil penalties under section 6928 (a) and (g)
of this title.

Dague v. City of Burlington, 732 F. Supp. 458 (D. Vt. 1989). Murray v. Bath
Iron Works Corp., 867 F. Supp. 33, 41 (D. Me. 1994) and City of Toledo v. Beazer
Materials and Services, Inc., 833 F. Supp. 646 (N.D. Ohio 1993) imply that if this bur-
den is not met the plaintiff will be out of court.
 J. NAT. RESOURCES & ENVTL. L. [VOL. 1 1: 1

provision is the plaintiff's showing that the hazard "may present an

imminent and substantial endangerment." 2 The question remains:
when must the imminent and substantial endangerment exist in
order to bring an action? Must it exist at the time the action is filed,
or will any prior "imminent and substantial endangerment" suf-
fice?23
The grounds upon which a citizen suit is brought appear to be
closely connected to the remedy that the court will afford.24 By
strictly interpreting this requirement to allow suits dnly in situations
currently presenting an imminent and substantial endangerment, a
court ensures a situation easily-though not necessarily exclusive-
ly-remedied by the grant of an injunction.25 In contrast, reading
the requirement to include post-cleanup contribution actions for
wholly past events that at one time presented, but no longer present,
an imminent and substantial endangerment, generates situations
where injunctive relief would be illusory, and the only apparent
suitable remedy would be either restitution or the payment of dam-
ages.26

B. "Other Action As May Be Necessary"

The RCRA citizen suit provision's remedial clause empowers

courts to order parties to "take other action as may be necessary."
The language in pertinent part reads:
The district court shall have jurisdiction, without regard to the
amount in controversy or the citizenship of the parties .... to
restrain any person who has contributed or who is contributing to
the past or present handling, storage, treatment, transportation, or
disposal of any solid or hazardous waste referred to in paragraph
(1)(B), to order such person to take such other action as may be
necessary, or both.'

2 United States v. Aceto Agric. Chemical Corp., 872 F.2d 1373 (8th Cir. 1989);
Craig Lyle Ltd. Partnership v. Land O'Lakes, Inc., 877 F. Supp 476 (D. Minn. 1995);
Murray v. Bath Iron Works Corporation, 867 F. Supp. 33, 41 (D. Me. 1994); City of
Toledo v. Beazer Materials and Services, Inc., 833 F. Supp. 646 (N.D. Ohio 1993).
2. KFC Western v. Meghrig, 49 F.3d 518 (9th Cir. 1995).
, Commerce Holding Co. v. Buckstone, 749 F. Supp. 441, 445 (E.D. N.Y. 1990),
stated in reference to § 6972(a)(I)(B), "While this grant of standing is apparently quite
broad, its breadth is tempered by the type of relief available."
' Id. (holding that injunctive relief is available under § 6972(a)).
26 KFC Western, 49 F.3d 518.
2 RCRA, 42 U.S.C. § 6972(a)(I)(B) (emphasis added).
1995-96] RCRA CITIZEN SUIT

Presumably, in addition to reading the word imminent in the "im-

minent and substantial endangerment" requirement to mean anytime,
this remedial language could be read as vesting in a court the power
to fashion any remedy it feels necessary, including
29
damages." The
KFC Western decision is the first to do so.

C. Case Law

The courts that have interpreted the imminent and substantial

endangerment language of section 6972(a)(1)(b) have generally
applied a strict reading. With a few exceptions, courts have held that
in order to bring an action under section section 6972(a)(1)(B), the
endangerment must exist at the time the action is filed.30
In Murray v. Bath Iron Works Corp., citizens sued under
RCRA section 6972(a)(1)(B) to force the cleanup of a landfill site
that allegedly contaminated their water supply.3" The plaintiffs al-
leged that the site continued to pose an imminent and substantial
endangerment.3 2 True to the language of the statute, the court held:
although RCRA as a whole is basically prospective in approach,
designed to prevent improper disposal of waste in the future, a
citizen suit under section 6972(a)(2)(B) does reach past conduct
involving the disposal of solid waste, but only to the extent that
such past conduct continues to produce a present endanger-
ment."33
In City of Toledo v. Beazer Materials and Services, Inc., the city
brought a section 6972(a)(1)(B) action against the owners of a coke
oven.34 The court held that, "under the imminent hazard citizen
suit, the endangerment must be ongoing, but the conduct that creat-

" H.R. REP. No. 98-198, 98th Cong. 1st Sess. 1983, reprinted in 1984
U.S.C.C.A.N. 5576.
"' KFC Western, 49 F.3d 518. The court relied on this language to conclude that
the statute allowed any relief the district court deemed necessary.
" Murray v. Bath Iron Works Corporation, 867 F. Supp. 33, 41 (D. Me 1994);
City of Toledo v. Beazer Materials and Services, Inc., 833 F. Supp. 646 (N.D. Ohio
1993).
" Murray, 867 F. Supp. at 41.
32 id.

"3 Id. (citing Connecticut Coastal Fishermen's Ass'n. v. Remington Arms Co., 989
F.2d 1305, 1316 (2d Cir. 1993) (emphasis added). See also Price v. United States Navy,
818 F. Supp. 1323, 1325 (S.D. Cal. 1992); United States v. Ottati & Goss, Inc., 630 F.
Supp. 1361, 1400 (D. N.H. 1985).
3, 833 F. Supp. 646 (N.D. Ohio 1993).
 J. NAT. RESOURCES & ENVTL. L. [VOL. 11:1

ed the endangerment need not be."35

Other than KFC Western, cases involving section 6972(a)(1)(B)
unanimously hold that restitution is not an available remedy.36 For
example, in Portsmouth Redevelopment and Housing Authority v.
BMI Apartments, the plaintiff sued several previous owners and
operators of a gas producing plant under section 6972(a)(l)(B)
Plaintiff sought an injunction to order defendants to pay costs asso-
ciated with clean-ups and monitoring of the site.38 After concluding
that the prayer for injunctive relief was truly a prayer for damages,
the court analyzed the case accordingly, 39 stating:
[Tihe plain language of the statute confers limited jurisdiction on
the district courts in citizen suits under RCRA and the determina-
tion of liability for, and the allocation of the costs of, the cleanup
of abandoned waste sites are not among those powers.
[C]onsidering that CERCLA expressly controls the allocation of
the remedial and response costs involved in the cleanup of inac-
tive sites, it is not surprising that Congress did not provide for the
discharge of those responsibilities by the district courts when it
amended RCRA in 1984 to confer injunctive powers on the dis-
trict courts in dealing with past conduct. BMI is asking for relief

3 Id. at 654 (quoting Connecticut Coastal, 989 F.2d at 1316).

36 Portsmouth Redev. and Hous. Auth. v. BMI Apartment Assoc., 847 F. Supp.

380 (E.D. Va. 1994); Murry v. Bath Iron Works Corp., 867 F. Supp. 33 (D. Me. 1994);
Circuit City Stores, Inc. v. Citgo Petroleum Corp., 1994 WL 483463 (E.D. Pa. 1994);
Triffler v. Hopf, 1994 WL 643237 (N.D. ill. 1994); Furrer v. Brown, 69 F.3d 1092 (8th
Cir. 1995); Craig Lyle Ltd. Partnership v. Land O'Lakes, Inc., 877 F. Supp. 476 (D.
Minn 1995); PaineWebber Income Properties Three Ltd. Partnership v. Mobil Oil Corp.,
902 F. Supp. 1514 (M.D. Fla. 1995); E. 56th Street Corp. v. Mobil Oil Corp., 906 F.
Supp. 669 (D.C. 1995).
31 Portsmouth, 847 F. Supp. at 380. In a footnote, the court acknowledged Gache
v. Town of Harrison, 813 F. Supp. 1037 (S.D. N.Y. 1993), stating that "the continued
presence of hazardous substances which present a threat of harm, even though the act
which created the hazard has passed, constitutes a continuing violatiun of RCRA."
Portsmouth, 847 F. Supp. at 384. In Gache, the plaintiff brought an action under RCRA
§§ 6972(a)(l)(A) and 6972(a)(l)(B), alleging the city's past operation of a landfill
resulted in a site that presented a continued violation of RCRA. While the Gache court
used language similar to that which the Portsmouth court cited, that language appeared
in the discussion of § 6972(a)(l)(A) claims, an analysis that courts have consistently
acknowledged as distinguishable from a §6972(a)(l)(B) analysis. Under a § 6972
(a)(l)(A) analysis, the Gache court, consistent with Dague v. City of Burlington, 731 F.
Supp. 458 (D. Vt. 1989), held only that the harm threatened need not be an "actual
harm," but only a potential for harm.
3' Portsmouth, 847 F. Supp at 384.
3' Id. The court relied on Jaffee v. United States, 592 F.2d 712, 715 (3rd Cir.
1984) ("A plaintiff cannot transform a claim for damages into an equitable action by
asking for an injunction that orders the payment of money.").
1995-96] RCRA CITIZEN SUIT

that is beyond the powers of the district court to grant under the
citizens-suit provision of RCRA, which only allows claims by
parties 'acting as private attorneys-general rather than [those]
pursuing a private remedy. ... "
The court went on to hold that a suit for money damages was out-
side the court's jurisdiction.4'
In Commerce Holding Company v. Buckstone, the EPA and
Commerce entered into a consent agreement in which Commerce
would conduct response and remediation activities. 2 Commerce
sought repayment under RCRA section 6972(a)(1)(B). The court
stated that, "[w]hile injunctive relief is available under
§6972(a)(1)(B), the statute does not provide a private action for
damages. 43 In response to Commerce's claim that its requests
were for equitable relief, the court stated:
If awarded this relief, Commerce would be the direct beneficiary
of the substantive relief. Thus, regardless of how the request is
denominated, it does not comport with the statute's purpose of
allowing private parties to bring suit if "genuinely acting as pri-
vate attorneys general rather than pursuing a private remedy."''
Accordingly, the court disallowed Commerce's claim for restitution.

II. KFC WESTERN V. MEGHRIG

A. Facts

In 1975, KFC Western, Inc. purchased from Alan and Margaret

Portsmouth Redev. and Hous. Auth. v. BMI Apartment Assoc., 847 F. Supp.
380, 385 (E.D. Va. 1994) (quoting Environmental Defense Fund, Inc. v. Lamphier, 714
F.2d 331 (4th Cir. 1983)). The Portsmouth court further stated, "The amendment of the
citizen-suit provision has not affected this interpretation of RCRA to not allow the
claimant to be the direct beneficiary of the relief." Id.
4' Id. See Gache v. Town of Harrison, New York, 813 F. Supp. 1037 (S.D. N.Y.

1993) (holding that, "RCRA does not authorize a plaintiff in a citizen suit to recover
remediation costs.").
4' 749 F. Supp. 441 (E.D. N.Y. 1990).

4 Id. at 445.
" Id. (quoting Lamphier, 714 F.2d at 337). Though not followed, a noteworthy
case is the ninth circuit's own Kaufman and Broad-South Bay v. Unisys Corp., 822 F.
Supp. 1468 (N.D. Cal. 1993). In that case the district court implemented the Commerce
Holding court's analysis, similarly concluding that § 6972(a)(l)(B) reserves no implied
private right of restitution. Most notable is the district court's refusal to grant the
plaintiffs wish that the court follow cases interpreting RCRA § 6973, a reading the
Ninth Circuit eventually adopted in KFC Western.
 J. NAT. RESOURCES & ENVTL. L. [VOL. ItI: I

Meghrig a parcel of property on which KFC planned to establish

and operate a Kentucky Fried Chicken Restaurant.45 The Meghrigs
failed to inform KFC that the property contained petroleum product
contamination,6 allegedly caused by the Meghrig's negligent opera-
tion of a filling station. 7 In 1988, while conducting improvements
on the property, KFC discovered the contamination.' The City of
Los Angeles Department of Building and Safety ordered construc-
tion halted until a soil analysis was completed and the Los Angeles
Department of Health Services (DHS) issued clearance. 9 Contami-
nation was confirmed and the DHS mandated a clean-up, which cost
KFC $211,000 to complete.5 1 Upon the Meghrig's refusal to reim-
burse the costs, KFC sued in district court under RCRA section
6972(a)(1)(B) seeking restitution."

B. Analysis

1. Interpretation of Imminent and Substantial Endangerment Re-

quirement: Reliance on United States v. Aceto Agricultural Chemi-
52
cal

Before the Ninth Circuit reached the remedy issue, the court

,' KFC Western v. Meghrig, 49 F.3d 518 (9th Cir. 1995).

, Id. The contaminants were benzene and lead.
47 id.
0' Id.
49 Id.
so Id.
51 Id.
52 872 F.2d 1373 (8th Cir. 1989). Aceto similarly involved a past cleanup for
which recovery was sought; however, that case involved an action brought by the Iowa
state government under § 7003, as amended, RCRA § 6973, a nearly identical provision
that allows the Administrator to bring a suit. The Aceto court quoted that provision in
pertinent part:

upon receipt of evidence that the past or present handling, storage, [and
other activities], of any solid waste or hazardous waste may present an
imminent and substantial endangerment. . . the Administrator may bring
suit . . . to restrain [any] person [including past or present generator, past
or present transporter, past or present owner or operator of a treatment,
storage, or disposal facility] who has contributed or who is contributing to
such handling, storage ...

Id. at 1382. The court then simply stated that, based on the language, section 7003
"specifically applies to past generators and transporters." While this statement is correct,
it supplies no answer to the question of whether the "imminent and substantial endan-
germent" must exist at the time of the suit.
1995-96] RCRA CITIZEN SUIT

grappled with the Meghrigs' contention that, because the site had
already been cleaned up, KFC had not shown there to be an "immi-
nent and substantial endangerment" as required by section
6972(a)(l)(B)." Noting that some of the legislative history support-
ed the Meghrigs' contention, the court held that RCRA authorizes
citizen suits for contamination that at some point in the past posed
an imminent and substantial danger.54 The KFC Western court
based its opinion largely on reasoning proffered in United States v.
Aceto Agricultural Chemicals Corp., where the Eighth Circuit held
in a similar action brought by the EPA under RCRA section 6973"
that the imminent and substantial endangerment requirement limits
RCRA's coverage to cases where the potential for harm is great, but
does not in any way limit the temporal relationship between the
existence of the imminent and substantial endangerment and the
filing of the action. 6
In Aceto, the defendant claimed that because the site already
had been cleaned up by the time the action was filed, the EPA
could not meet the "imminent and substantial endangerment" re-

" KFC v. Meghrig, 49 F.3d 518 (9th Cir. 1995). Interestingly, the Meghrigs did
not challenge the retroactivity of §6972(a)(1)(B) (the sale occurred in 1975, one year
before the passage of RCRA), an issue that has yet to be resolved. Portsmouth Redev.
and Hous. Auth. v. BMI Apartments Assoc., 847 F. Supp. 380 (E.D. Va. 1994) (holding
that the court did not have jurisdiction over a damage suit under RCRA), stated:
"Whether RCRA applies to inactive disposal sites would not determine the issue pre-
sented in this action because it still would be necessary to determine whether it applies
to owners who sold the property before RCRA's enactment. It is not necessary, though,
to reach that thorny issue .. " Id. at 384.
KFC Western, 49 F.3d at 520. Finding a cause of action, the court referred to
the legislative history and its interpretation of the word imminence. The court stated:
"Imminence in this section applies to the nature of the threat .... The section, there-
fore, 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." Id. (quoting 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")). The court then cited Dague v. City of
Burlington, 935 F.2d 1343, 1356 (2d. Cir. 1991) (imminent hazard requires proof that a
risk of harm is present); 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). Despite
precedent that points to a contrary conclusion, the 9th Circuit ultimately relied upon the
Eighth Circuit's holding in United States v. Aceto Agric. Chemicals Corp., 872 F.2d
1373, 1383 (8th Cir. 1989). That case involved a nearly identical provision that provides
the Administrator with a cause of action. There the court read the imminent endanger-
ment 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.
' KFC Western, 49 F.3d at 521.
United States v. Aceto Agric. Chemicals Corp., 872 F.2d 1373, 1383 (8th. Cir.
1989).
 J. NAT. RESOURCES & ENVTL. L. [VOL. 11: 1

quirement.57 In response, the court stated:

We agree with the district court, however, that RCRA's 'imminent
and substantial endangerment' language does not require the EPA
to file and prosecute its RCRA action while the endangerment
exists. As the district court aptly noted, in the context of a reim-
bursement action, this would be an 'absurd and unnecessary'
requirement."
The Aceto court assumed a reimbursement action to be a proper
remedy, then reasoned backward that to allow a reimbursement ac-
tion and simultaneously require an "imminent and substantial endan-
germent" be present would be nonsensical.59 Given that section
6973, like section 6972, expressly requires an "imminent and sub-
stantial endangerment," and a reimbursement remedy exists, if at all,
only by inference, the court appears to have assumed away the issue
of whether reimbursement is proper."° This analysis begs the ques-
tion of how relevant a section 6973 analysis is in the context of a
section 6972 discussion.
The KFC Western court ultimately applied the section 6973
analysis by analogy to a section 6972(a)(1)(B) case, reversing
Kaufman Broad-South Bay v. Unisys Corp., an intra-circuit district
court case that declined to apply a section 6973 analysis to a section
6972(a)(1)(B) case.6'

2. Restitution Granted: Reliance on RCRA section 6973(a)

Relying on the statutory language granting the court the power

to order "any other action as may be necessary," the KFC Western
court concluded restitution was the proper remedy. 6 The court stat-
ed, "Because Congress intended that citizen suits be governed by
the same standards of liability as governmental actions, and because
it worded the provisions almost identically, we choose to interpret

57 id.
s Id.
58 Id.
5 See generally, Furrer v. Brown, 62 F.3d 1092 (8th Cir. 1995).
'o Acero, 872 F.2d 1373. In United States v. Price, 688 F.2d 204 (3d Cir. 1982),
the court held that the government is allowed a cause of action for reimbursement under
section 6973.
6 KFC Western v. Meghrig, 49 F.3d 518 (9th Cir. 1995) (reversing Kaufman and
Broad-South Bay v. Unisys Corp., 822 F. Supp. 1468 (N.D. Cal. 1993)).
61 Id. The court stated, "KFC's action to collect restitution of clean-up falls within
the statutory allowance for district court orders that defendants take 'such other action as
may be necessary . ld. at 521.
I..'
1995-96] RCRA CITIZEN SUIT

similarly the relief available under the two provisions."6' 3 The court
bolstered its position with the observation that Congress granted the
right to sue pursuant to the standards of liability established under
section 6973.' However, the court acknowledged that Congress
intended that citizens be given only a "'Limited' right to sue pursu-
ant to . . . § 6973,"65and conceded that, "the legislative history cuts
both ways."66

11. FURRER V. BROWN: CLARIFICATION OR CONTRADICTION

A. Facts

The Furrers purchased a parcel of property leased by the previ-

ous owners to Shell Oil Company, whereupon Shell operated a
service station.67 In 1991, the Furrers discovered contamination
from leaking underground gasoline storage tanks.' Shortly thereaf-
ter, the Missouri Department of Natural Resouces (DNR) ordered
the contamination remediated. 9 The Furrers sought restitution pur-
suant to RCRA section 6972(a)(1)(B).

B. Analysis

After concluding "[t]he statute does not give the district courts
express authority ... to award money judgments,"7 the Furrer
court turned to the Supreme Court's decision in Cort v. Ash for
guidance in its determination of the presence of an implied cause of
action. 7' The Cort decision enunciated four factors to analyze when
searching for an implied cause of action: (1) Whether the plaintiff is
in the statutory class of those to be protected; (2) the statute's legis-
lative history; (3) the sought after remedy in the context of the
statutory purpose; and (4) whether the action is traditionally within

63 Id. at 521-22. The KFC Western court, in a footnote, analyzed the legislative
history stating, "The legislative history for the 1984 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. Id. at 522 n. 3.
Id. at 522 note 3.
6 Id.
6 Id.
67 Furrer v. Brown, 62 F.3d 1092, 1093 (8th Cir. 1995).
6 Id.
" Id.
70 Id. at 1094.
" Id. (citing Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975)).
 J. NAT. RESOURCES & ENVTL. L. [VOL. 1 1: 1

the province of state law to the extent that inferring a federal reme-
dy would be inappropriate.72
The court first sought to determine if the plaintiffs were among
the class of persons to be protected. In a succinct analysis, the
Furrercourt noted, "Clearly, the Furrers as 'citizens' are among the
'any persons' who are authorized to bring suit ....[T]he 'benefit' of
RCRA, however, inures to all citizens of the United States.... ",73
The court then concluded that the Furrers sought a "special benefit,"
and held that RCRA was not enacted to confer such a benefit on
those in the Furrer's situation.74
As may be expected, the Furrers invoked the section
6972(a)(1)(B) language vesting in courts the power to take "other
action as may be necessary" to argue that restitution is a proper
remedy. 75 The court, after asserting that this was an overstatement,
postulated that the language may authorize the court to order a party
to investigate and/or remediate a site.76 The court then stated, "ju-
risdiction 'to enforce' or 'to restrain' does not encompass the au-
thority to award monetary relief. '[W]hen legislation expressly pro-
vides a particular remedy or remedies, courts should 77not expand the
coverage of the statute to subsume other remedies."',
Next, the court turned to an analysis of a CERCLA citizen suit
provision with similar "to order such action as may be necessary"
language.78 Realizing that the CERCLA citizen suit lacked a cause
of action for monetary recovery, Congress enacted section
9613(f)(1) to expressly allow a contribution action. The court
observed, "In other federal environmental legislation, Congress
authorized suits for similar injunctive relief, but then specifically
gave federal courts authority to hear claims for monetary recovery
as well."80 Implicit here is that if Congress intended to allow a
cause of action for monetary recovery, it would have expressly done
81
SO.
In its discussion of the legislative history of RCRA section

72 Furrer v. Brown, 62 F.3d 1092, 1095 (8th Cir. 1995).

IId. at 1095.
7, id.
75 Id.
Id. at 1095-96.
76

"' Id. at 1096 (quoting National R.R. Passenger Corp. v. National Ass'n of R.R.
Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974)).
7' CERCLA, 42 U.S.C. § 9659 (1988).
79 Furrer v. Brown, 62 F.3d 1092, 1096 (8th Cir. 1995).
'o Id. at 1097.
8 Id.
1995-961 RCRA CITIZEN SUIT

6972(a)(1)(B) and its 1984 Amendments, the Furrercourt remarked

that "as is to be expected, because the statute did not 'expressly
create or deny' the remedy the Furrers seek, the legislative history is
'equally silent or ambiguous on the question.' '' 2 Conceding that
the legislative history does not specifically deny a monetary recov-
ery action, the court observed that there is no indication that Con-
gress intended to allow such an action either.83 The court conclud-
ed by warning that "implying a private right of action on the basis
of congressional silence is a hazardous enterprise, at best." 4
Although inclined to cease there, the Furrer court determined
whether the remedy sought was "necessary to effectuate the statuto-
ry purpose."" The court looked to RCRA's stated objective to
"promote the protection of health and the environment and to con-
serve valuable material and energy resources," and the fact that
section 6902(a) sets forth eleven objectives of RCRA, none of
which pertain to the citizen suit provision, much less sanction pri-
vate suits for monetary recovery, to conclude that RCRA's purpose
is prevention rather than restitution.86 However, to allow private
monetary actions creates a greater possibility of liability, arguably a
heightened incentive to not contribute in any way to the contamina-
tion of a property. Thus, allowing a private action for restitution is
not inconsistent with the goal of prevention.
Finally, having found the Furrers to have failed the first three
factors, the court merely noted that its disallowance of a cause of
action in no way affected the Furrers' state law remedies. 7

C. Criticism of KFC Western

In an arguably superfluous section, the Furrer court criticized

the KFC Western decision for "summarily stat[ing] that, '[b]ecause
Congress intended that citizen suits be governed by the same stan-
dards of liability as governmental actions, and because it worded the
provisions almost identically, we choose to interpret similarly the

" Id. at 1097 (quoting Cannon v. University of Chicago, 441 U.S. 677, 694, 99
S.Ct. 1946, 1955, 69 L.Ed.2d 560 (1979)).
" Furrer, 62 F.3d at 1097 (8th Cir. 1995).
14 Id. (quoting Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct.

2479, 2485, 61 L.Ed.2d 82 (1979)).

"5 Id. (quoting J.1. Case Co. v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 1560, 12
L.Ed.2d 423 (1964)).
86 Id. at 1097-98.
Furrer, 62 F.3d at 1099.
 J. NAT. RESOURCES & ENVTL. L. [VOL. 11: 1

relief available under the two provisions."'' 8 The Furrer court then
turned to the KFC Western court's support for their statement that,
"[n]othing (in the legislative history) indicates that Congress intend-
ed citizen suits to serve a purpose different from that served by
governmental actions." 9 The Furrer court remarked, "it is a non
sequitur that the remedies available to the respective plaintiffs must
be the same."'

D. Inconsistency with Aceto

Quite notably, the Eighth Circuit holding in Furreraddressed

the "imminent and substantial endangerment" requirement by simply
stating, "[w]e do not decide that issue."' In dicta, however, the
court noted that because the defendant in Aceto never raised the
issue of subject matter jurisdiction, and the fact that both the district
and circuit court in that case assumed subject matter jurisdiction sub
silentio, the case is not stare decisis on the issue.92
The Furrer court's reasoning is highly inconsistent with the
pervasive language of Aceto to the effect that, "The purpose of the
statute is to give broad authority to the courts to grant all relief
necessary to ensure complete protection of the public health and the
environment."93 The Aceto court continued, "The relevant legisla-
tive history supports a broad, rather than narrow construction....
RCRA is a remedial statute, which should be liberally construed."9' 4
The Furrer court's narrower interpretation implies that the court
would not apply the same reasoning again, at least not to a section
6972(a)(1)(B) case.

Id. at 1100 (quoting KFC Western v. Meghrig, 49 F.3d 518, 521-22).

" Furrer, 62 F.3d at 1100 (citing KFC Western, 49 F.3d at 521 n. 3).
9E Id.
"' Id. at 1095 n. 6.
92 Id. at 1101.
9' United States v. Aceto Agric. Chemicals Corp., 872 F.2d 1373, 1383 (8th Cir.
1989) (citations omitted).
94 Id.
1995-96] RCRA CITIZEN SUIT

COMMENT ADDENDUM

The United States Supreme court recently settled this issue in

Meghrig v. KFC Western, Inc.," holding that section 6972(a)
(1)(B) does not contemplate the award of past cleanup costs upon
the allegation that a site posed an imminent and substantial endan-
germent at some point in the past.96 After labeling the Ninth
Circuit's decision in KFC Western, Inc. v. Meghrig a "novel appli-
cation of federal statutory law,"97
'
the Court, not unlike the Furrer
v. Brown court, focused its inquiry on the statutory language and
remedial scheme to reach its conclusion.98 The Court bolstered its
position with an analysis of RCRA's statutory purpose as evidenced
by its posture within the federal environmental statutory framework,
especially relative to CERCLA.9
The Court began by identifying that while RCRA is a
comprehensive statute designed to regulate the treatment, storage,
and disposal of solid and hazardous waste, RCRA is not "principally
designed to effectuate the cleanup of toxic waste sites or to com-
pensate those who have attended to the remediation of environmen-
tal hazards."'' RCRA's purpose, according to the Court, is to ex
ante reduce hazardous waste and to guarantee appropriate treatment,
storage and disposal of waste that is generated despite reduction
efforts."0 '
The Court then read the statutory language as revealing two
textual aspects of RCRA section 6972(a)(2)(B) that support the
conclusion that no implied damages right exists. °2 The first is the
requirement that the hazardous waste "... may present an imminent
and substantial endangerment.... "'0 3 The Court maintained that
"the meaning of this timing restriction is plain: An endangerment
can only be 'imminent' if it 'threaten[s] to occur immediately,'and
the reference to waste which 'may present' imminent harm quite 10 4
clearly excludes waste that no longer presents such a danger.

9' 64 U.S.L.W. 4135 (Mar. 19, 1996) (To be reported at 116 S.Ct. 1251).
' The Court rendered this opinion a short time before this Comment was sched-
uled to go to print. Consequently, this addendum was prepared after the rest of the
paper was completed.
Meghrig v. KFC Western, 64 U.S.L.W. 4135, 4136 (Mar. 19, 1996).
98 Supra, notes 72-77 and accompaying text.
Meghrig v. KFC Western, Inc., 64 U.S.L.W. at 4136.
10D id.

,0' Meghrig v. KFC Western, Inc., 64 U.S.L.W. 4135, 4136 (Mar. 19, 1996).
02 Id. See supra notes 28-44 and accompanying text.
'03 Meghrig v. KFC Western, Inc., 64 U.S.L.W. at 4136.
" Id. at 4137 (quoting Webster's New International Dictionary of English Language
 J. NAT. RESOURCES & ENVTL. L. [VOL. 11: 1

Although persuasive, the Court seems to have engaged in the typical

analysis: imminence means imminence. 5
The second limitation of section 6972(a)(1)(B) that the court
believed precludes an implied damages action is the remedies sec-
tion itself. That section, as previously mentioned,"°6 confers on the
district courts the authority "to restrain any person ... to order such
person to take such other action as may be necessary, or both.' 0 7
The Court read the statutory language in the remedies section to
confer on the district court the authority to grant either a mandatory
injunction, ordering a party to "take action" in the form of cleaning
up a site and/or disposing of waste, or a prohibitory injunction, to
"restrain" a party from activity violative of RCRA.'0 The Court
stands on strong textual ground here when it states that "neither
remedy, however, is susceptible of the interpretation adopted by the
Ninth Circuit, as neither contemplates the award of past cleanup
costs.... .,'0
The Court next compared and contrasted RCRA with CERCLA
to provide some insight into congressional intent."0 Because
RCRA and CERCLA address many of the same waste issues,"'
the Court found persuasive the fact that similar CERCLA provisions
expressly provide for contribution actions."' Also important were
two other aspects of the statutes. The first is that the cost-recovery
provisions in CERCLA have a statute of limitations and require a
showing that one is seeking reasonable response costs; RCRA has
neither." 3 The Court characterized the absence of such provisions
from RCRA as "striking," if this statute were intended to operate as

1245 (2d ed. 1934)).

"O The Court missed its opportunity to clarify this pesky language. The term "i-
mminent" itself adds little to the question of when the imminence must occur, and,
therefore, requires some modifier for clarification. The Court intimates that the modifying
phrase "may present" adds a temporal element, but that too seems ambiguous. Is that
phrase intended to dinstinguish present situations from past ones, or is it intended to
distinguish situations in which there is only a probability of a threat from ones that
definitely "present" a threat? The Court does not address these ambiguities, but merely
concludes that the threat must exist at the time of suit.
'06 See supra note 27 and accompanying text.
1"7 Meghrig v. KFC Western, Inc., 64 U.S.L.W. 4135, 4136 (Mar. 19, 1996). See
supra note 20.
"o Meghrig v. KFC Western, Inc., 64 U.S.L.W. at 4136-37.
,09 Id. at 4137.
110 Id.

. Meghrig v. KFC Western, Inc., 64 U.S.L.W. 4135, 4137 (Mar. 19, 1996).
12 Id. See CERCLA, 42 U.S.C. § 9613(0(1).
IId. See CERCLA, 42 U.S.C. §§ 9613(g)(2) and 9607(a)(4)(A) and (B).
1995-961 RCRA CITIZEN SUIT

a cost-recovery mechanism." 4
Second, and perhaps most persuasive, is the Court's recognition
that sections 6972(b)(2)(B) and (C) preclude a citizen from com-
mencing a citizen suit under section 6972(a) when either the EPA or
the State has begun, and is prosecuting, a separate enforcement ac-
tion." 5 In light of this preclusion, application of the citizen suit
provision as a cost-recovery mechanism yields an illogical result
because less problematic sites that neither the EPA nor the state
"feel compelled to address" will remain open to contribution ac-
tions, while sites with more serious problems, upon which either the
EPA or the state is likely to act, leave parties without a means to
recover response CoStS."16 Consequently, a party's chances of seek-
ing contribution via section 6972(a)(1)(B) are only as good as the
chance that neither EPA nor the state choose to bring an enforce-
ment action." 7
Finally, the Court dealt with the argument proffered by the
Government as amicus curiae that a party could seek damages using
section 6972(a)(1)(B), so long as the suit were brought concurrently
with the existence of an imminent and substantial endangerment." 8
The Government hypothesized a plaintiff who, while a site persists
posing an imminent and substantial endangerment, sues a responsi-
ble party for restitution. This argument cuts through the conditions
precedent issue"9right to the damages question. The Court re-
sponded:
the limited remedies described in § 6972(a), along with the stark
differences between the language of that section and the cost
recovery provisions of CERCLA, amply demonstrate that Con-
gress did not intend for a private citizen to be able to undertake a

"' Id.
W' Meghrig v. KFC Western, Inc., 64 U.S.L.W. 4135, 4137 (Mar. 19, 1996).
116 Meghrig v. KFC Western, Inc., 64 U.S.L.W. 4135, 4137 (Mar. 19, 1996).
'" Id. The Court in Heckler v. Chaney, 470 U.S. 821 (1985), established a pre-
sumption of unreviewability of agency decisions not to undertake enforcement actions.
The presumption is rebuttable by a showing that the agency is not following enforcement
guidlines outlined in the agency enabling statute. This policy of unreviewability translates
into substantial deference to agency decisions not to enforce. Thus, as far as the EPA is
concerned, whether a plaintiff is barred or allowed and action under § 6972(b)(2)(A) be-
comes an issue committed to agency discretion.
"' Meghrig v. KFC Western, Inc., 64 U.S.L.W. at 4137.
"' Many of the decisions on this issue turn to the fact that there no longer exists
an "imminent and substantial endangerment" to disallow an action for previously ex-
pended response costs. The bulk of the Unanimous Court's opinion makes the same easy
escape.
 J. NAT. RESOURCES & ENVTL. L. [VOL. 1 1: 1

20
clean up and then proceed to recover its costs under RCRA.1

The Court continued: "where Congress has provided 'elaborate

enforcement provisions' . . . 'it cannot be assumed that Congress
intended to authorize by implication additional judicial reme-
dies .... ,,,2 "[W]here a statute expressly provides a particular
remedy or remedies, a court must be chary of reading others into
it., ' ,1 22 However, one can only speculate what is left to read in to
such a vague statute. It seems plausible that, unsure of how this
issue would unfold, and what would be the proper remedies, Con-
gress left the resolution to the courts to superimpose their expertise.
Perhaps this case is less concerned with what should not be read in
to the statute than it is concerned with what the Court is willing to
read out.

CONCLUSION

The unanimous decision in Meghrig v. KFC Western under-

scores the Court's no-nonsense interpretation of the imminent and
substantial endangerment requirement. Despite attempts to illuminate
ambiguous drafting, a plain reading of this requirement and the
statutory injunctive remedies reveals that Congress unambiguously
intended that an imminent and substantial endangerment must exist
when a section 6972(a)(1)(B) suit is brought. Thus, suits for damag-
es arising from wholly past endangerments are barred because the
plaintiff cannot meet this condition precedent -- the danger is no
longer imminent and substantial. Less clear, however, is whether a
damages suit may be brought simultaneously with an imminently
and substantially dangerous situation. The Supreme Court specifi-
cally avoided the issue of whether, after a section 6972(a)(1)(B) suit
is properly brought,'23 a party could obtain injunctive relief order-
ing a party to pay response costs.

"' Meghrig v. KFC Western, Inc., 64 U.S.L.W. 4135, 4137 (Mar. 19, 1996).
121 Id.

1' Id. (quoting Middlesex County Sewerage Authority v. National Sea Clammers
Assn., 453 U.S. 1, 14 (1981)). See Furrer v. Brown, 62 F.3d 1092, 1097 (8th Cir.
1995).
"2 One must assume the Court is referring to a suit brought concurrently with the
existence of some imminent and substantial endangerment.