Re-exploring Contribution Under Rcra's Imminent Hazard Provisions

• Publication year: 2021

87 Nebraska L. Rev. 420. Re-Exploring Contribution Under RCRA's Imminent Hazard Provisions

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Re-Exploring Contribution Under RCRA's Imminent Hazard Provisions

Kenneth K. Kilbert(fn*)

TABLE OF CONTENTS I. Introduction ........................................ 421 R

II. RCRA's Imminent Hazard Provisions.................... 425 R
A. Section 7003 Governmental Actions................. 426 R
1. Elements....................................... 427 R
a. Imminent and Substantial Endangerment ...... 427 R
b. Handling, Storage, Treatment,
Transportation or Disposal of Solid or
Hazardous Waste............................. 428 R
c. Contributed or Contributing to ............. 429 R
2. Relief ........................................ 430 R
3. Overlap with CERCLA............................ 431 R
B. Section 7002(a)(1)(B) Citizen Suits............... 433 R
1. Elements....................................... 435 R
2. Relief ........................................ 436 R
3. Overlap with CERCLA............................ 440 R
III. Multiple Responsible Parties ....................... 442 R
A. Joint and Several Liability ..................... 443 R
B. Contribution Under Common Law and CERCLA ........ 445 R
IV. Contribution Cases Under RCRA....................... 449 R
A. Early Cases Split Regarding Contribution......... 449 R
B. Later Cases Deny Contribution.................... 453 R

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V. Courts Should Recognize Contribution Claims Under
RCRA's Imminent Hazard Provisions................... 457 R
A. Section 7003 .................................... 458 R
1. Implied Right of Contribution................. 459 R
a. Statutory Language and Legislative History .. 460 R
b. Structure and Purpose ....................... 461 R
c. State Law ................................. 462 R
2. Federal Common Law ........................... 462 R
3. Northwest Airlines and Texas Industries:
Distinguishable and Flawed.................... 464 R
4. CERCLA Supports Contribution Under RCRA ...... 470 R
B. Section 7002(a)(1)(B)........................... 474 R
1. Statute Expressly Provides for Citizen Suit in
Nature of Contribution ....................... 475 R
2. Meghrig Is Not a Bar to Contribution,
Particularly When Viewed Through the Prism of
Atlantic Research............................. 478 R
3. Section 7002(b)(2) Requirements .............. 482 R
VI. Framework for Addressing Issues Likely to Arise
During Contribution Claims in RCRA Imminent Hazard
Cases............................................... 484 R
A. Allocation Principles............................ 485 R
B. Orphan Share..................................... 486 R
C. Timing/Statute of Limitations ................... 488 R
D. Reasonableness of Costs/What Is Covered.......... 490 R
E. Contribution Protection.......................... 491 R
VII. Conclusion.......................................... 492 R

I. INTRODUCTION

Allocation of environmental cleanup costs among responsible parties is a key component of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund.(fn1) Indeed, the United States Supreme Court has expressly acknowledged its importance(fn2) and twice within the past three terms has grappled with how responsible parties(fn3) may bring CERCLA

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claims, for contribution or otherwise, to force other responsible parties to share responsibility for cleanup costs at contaminated sites.(fn4) While some questions remain to be answered around the edges, it is once again fairly clear that a responsible party who is subject to joint and several liability for cleanup costs has a statutory claim under CERCLA by which he can require other responsible parties to bear their equitable shares of the cleanup burden.(fn5) Thus, because a CERCLA defendant can bring actions for contribution or cost recovery, he may not have to shoulder the entire cleanup burden himself, while other responsible parties avoid liability entirely, just because he had the misfortune of being the one responsible party sued. In addition to providing a whiff of fairness in the Superfund program, the availability of contribution and cost recovery claims by responsible parties is widely credited with promoting settlements and encouraging cleanups of contaminated sites by private parties while preserving governmental resources.(fn6)

The "imminent hazard" provisions of the Resource Conservation and Recovery Act (RCRA),(fn7) like CERCLA, are used to force responsible parties to bear the costs of cleaning up contaminated sites. Sections 7003 and 7002(a)(1)(B) authorize the United States and citizens, respectively, to require responsible parties to clean up wastes which may present an "imminent and substantial endangerment" to health or the environment.(fn8) Defendants in RCRA imminent hazard cases, like CERCLA defendants, generally are subject to strict, retroactive and joint and several liability.(fn9) But unlike in CERCLA cases, virtually without exception courts have ruled that defendants in RCRA imminent hazard cases do not have a claim under RCRA, for contribution or otherwise, by which they can seek to force other responsible parties to share the cleanup responsibility.(fn10)

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By way of illustration, assume a site is contaminated with solvents and presents a threat to health and the environment. The United States, pursuant to CERCLA section 107,(fn11) sues Millie, one of many persons who contributed to the solvent contamination at the site, to obtain a judgment making Millie responsible for the costs of cleaning up the site contamination. Millie, pursuant to CERCLA, may file a third-party complaint against other persons responsible for the solvent contamination at the site (e.g., the former site operator, others who generated and disposed of solvents there), and obtain contribution from those other responsible parties for their fair shares of the site cleanup costs.(fn12) Secure in the knowledge that she will be able to recoup at least a portion of her costs from other responsible parties via her CERCLA contribution claim, Millie settles with the government and proceeds to perform the necessary cleanup work.

Now assume that the United States chooses to proceed against Millie under RCRA section 7003 instead of CERCLA. The government files suit, seeking to require her to clean up the contamination at the site. According to the prevailing view,(fn13) Millie is not allowed to seek contribution under RCRA from other persons who contributed to the contamination, even though they too would be liable to the government under RCRA section 7003. Millie might be able to shift some of her costs to other responsible parties by asserting a claim under CERCLA section 107, though the U.S. Supreme Court has not answered this question yet.(fn14) But if we assume that the site is contaminated with gasoline or fuel oil instead of solvents, clearly no CERCLA claim would be available due to CERCLA's petroleum exclusion.(fn15) So Millie is left facing the prospect of shouldering the entire cleanup burden

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alone. Bereft of better legal options, Millie vigorously defends against the United States' RCRA section 7003 claim, because otherwise she is assured of bearing the entire cost of cleanup herself. The United States incurs more litigation expense, and cleanup of the site is delayed, unless the government dips further into the treasury and undertakes the cleanup itself.

Why have courts taken a different path in RCRA imminent hazard cases than in CERCLA cases when determining whether to allow a defendant to assert a contribution claim against other parties responsible for the site contamination? In general, courts have cited two reasons. One, RCRA, unlike CERCLA, does not expressly provide for contribution, and courts have invoked U.S. Supreme Court precedents that disallowed implied contribution claims under certain other federal statutes to disallow an implied contribution claim under RCRA. Two, courts have construed the Supreme Court's 1996 decision in Meghrig v. KFC Western, Inc.,(fn16) which prohibited a private party from recovering past cleanup costs under RCRA section 7002(a)(1)(B), as foreclosing a defendant from asserting a claim in the nature of contribution against other responsible parties under RCRA section 7002(a)(1)(B).(fn17)

In light of the Supreme Court's decision last year in United States v. Atlantic Research Corp.(fn18) that once again makes cost allocation claims among responsible parties broadly available under CERCLA, this Article re-examines the prevailing view that contribution claims should not be available to defendants in RCRA imminent hazard cases. In short, this Article concludes that the refusal to recognize contribution claims in RCRA imminent hazard cases is both bad law and bad policy. Part II highlights RCRA's imminent hazard provisions, including their similarities to CERCLA. Because multiple parties can be subject to liability for the same contaminated site under RCRA's imminent hazard provisions, Part III explores joint and several liability and how the common law and CERCLA generally permit defendants to assert contribution claims against other responsible parties. Part IV shows that, by contrast, courts generally have refused to recognize a claim for contribution by defendants in RCRA imminent hazard cases.

Part V ultimately concludes that RCRA section 7003 authorizes a claim for contribution in governmental imminent hazard suits, impliedly and as a matter of federal common law, and that RCRA section 7002(a)(1)(B) expressly provides a remedy in the nature of contribution in RCRA imminent hazard citizen suits. En route, this Article not only finds Congressional intent to allow contribution for defend

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ants in RCRA section 7003 cases, but also detects a flaw in the Supreme Court's test for implying...