Toxic and hazardous substances litigation.

• Author: Lysaught, Patrick

Each year the July issue of Defense Counsel Journal provides an annual survey of law in certain fields, concentrating on developments that are of interest to all defense counsel. The surveys, short and to the point, are provided by IADC committees.

This year's surveys come from the IADC Committees on Toxic and Hazardous Substances Litigation; Reinsurance; Product Liability; Advocacy, Practice and Procedure; Fidelity and Surety Law; and Legal Malpractice.

ADDRESSING a conflict between the Eighth and Ninth Circuits regarding the "imminent endangerment" requirement of the Resource Conservation Recovery Act of 1976, the U.S. Supreme Court in Meghrig v. KFC Western Inc.(1) held that the section does not authorize a private cause of action to recover the prior cost of cleaning up toxic waste that does not continue to pose an endangerment to health and environment at the time a lawsuit is filed.

In 1988 KFC discovered that its property in Los Angeles had been contaminated with petroleum. It was ordered by the Los Angeles County Department of Health Services to rectify the problem, and it spent $21,000 removing and disposing of the tainted soil. Three years later, KFC commenced an action under the citizen suit provision of RCRA, 42 U.S.C. [sections] 6972(a), to recover cleanup costs from the Meghrigs, who were the prior owners. KFC claimed, among other things, that the contamination had previously posed an "imminent and substantial endangerment to health or the environment" and that the Meghrigs were responsible for "equitable restitution" under Section 6972(a) because they had contributed to the contamination of the site.

The district court held that Section 6972(a) does not permit recovery of past cleanup costs and does not authorize a cause of action for the remediation of toxic waste not posing an "imminent and substantial endangerment" at the time the lawsuit is filed. The Ninth Circuit reversed on both issues.(2)

Reversing, the Supreme Court, in an opinion by Justice O'Connor, stated that under a "plain meaning" reading of Section 6972(a), a private party cannot recover the cost of past cleanup efforts. Under this provision, the Court continued, a party could seek a mandatory injunction ordering a party to "take action" to cleanup and dispose of the waste or a prohibitory injunction to restrain a person from continuing to violate RCRA. The Court emphasized that neither of these remedies contemplated any award of damages or equitable relief...