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Highest Court Considers Cost Recovery in RCRA Citizen Suit Actions

Spring 1996

The U.S. Supreme Court has recently issued a decision involving the type of relief which is available in citizen suit actions brought pursuant to the Resource Conservation and Recovery Act ("RCRA"). At issue in the case was whether private parties may bring post-cleanup claims to recover cleanup costs from the parties that actually caused the contamination or whether injunctive relief is the only available remedy. Follow-ing its review of a Ninth Circuit Court of Appeals decision on this issue, the Supreme Court concluded that private parties may not bring a suit under RCRA’s citizen suit provisions to recover past cleanup costs for contamination which does not, at the time of the suit, endanger human health or the environment. The decision is particularly important to the owners of property contaminated with petroleum products since RCRA’s citizen suit provision may represent the only federal statutory avenue available for recovering cleanup costs from the parties who actually caused the contamination.

Prior to the Supreme Court’s review of this issue, the Courts of Appeal were split over this issue. In particular, in March 1995, the Ninth Circuit Court of Appeals ruled that private parties may bring a post-cleanup RCRA citizen suit action to recover cleanup costs incurred in connection with the remediation of petroleum contamination. (See Godfrey & Kahn: Environmental Law Alert Vol. 7, No.2 (Summer 1995)). Subsequently, the Eight Circuit Court of Appeals ruled Congress had not intended to allow private parties to bring a post-cleanup action to recover damages under RCRA’s citizen suit provision. Rather, the Court ruled that citizen suits under RCRA allow only for injunctive relief--that is, requiring the responsible party to actually investigate and remediate the contaminated property. (See Godfrey & Kahn: Environmental Law Alert Vol.7, No.3 (Fall 1995)).

The U.S. Supreme Court’s decision on this issue impacts on the extent to which the current owner of petroleum-contaminated property is able to recover from parties who actually caused the contamination. Specifically, the Supreme Court’s decision makes it clear that property owners cannot conduct a complete cleanup (such that a present endangerment no longer exists) and then bring a RCRA citizen suit action. Rather, to maintain an action under RCRA’s citizen suit provision, there must be a present endangerment to human health or the environment at the time of the suit. The Supreme court’s ruling stands as a warning to owners of contaminated property: evaluate potential claims against third parties and take all measures necessary to ensure their participation at the outset of the investigative/remedial process. Failure to do so may mean the current owner is left "holding the bag" with respect petroleum-related cleanup costs.

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If you have a media request or need an attorney with particular knowledge for comment, please contact Susan Steberl, Director of Marketing, at 414.287.9556 or ssteberl@gklaw.com.

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