Kfc Western, Inc. v. Alan Meghrig Margaret Meghrig

Opinion by Judge Harry PREGERSON; Dissent by Judge BRUNETTI.

KFC Western, Inc. (“KFC”) appeals the district court’s dismissal of its action under the Resource Conservation and Recovery Act (“RCRA”) to recover environmental clean-up costs from the prior owners of contaminated property sold to KFC. The district court dismissed KFC’s action under Federal Rule of Civil Procedure 12(b)(6) because it concluded that RCRA § 7002, codified at 42 U.S.C. § 6972 (a)(1)(B), does not authorize private plaintiffs to collect a restitutionary remedy. We have jurisdiction under 28 U.S.C. § 1291 . We reverse and remand.

BACKGROUND

In September 1975, Alan and Margaret Meghrig (the “Meghrigs”) sold real property to KFC, which continues to own and operate a Kentucky Fried Chicken franchise on the property. Unbeknown to KFC, underground soil at the property was contaminated with elevated levels of refined petroleum products (lead and benzene) at the time of the sale. The contamination allegedly resulted from the Meghrigs’ negligence in operating a gasoline station on the property. The Meghrigs never informed KFC about the contamination.

In October 1988, in the course of improving the property, KFC…

dissenting:

Because I believe that RCRA § 7002, 42 U.S.C. § 6972 (a)(1)(B), does not contemplate actions for restitution when there is no “imminent and substantial endangerment” at the time of suit, I must dissent from the majority’s opinion.

The majority’s main argument is that because. the Eighth Circuit allowed the administrator to bring an action for restitution under § 697S, private citizens should be permitted to bring actions for restitution under § 6972(a)(1)(B) since those two sections are worded virtually identically. In United States v. Aceto Agric. Chemicals Corp., 872 F.2d 1373 , 1383 (8th Cir.1989) (emphasis in original), the Eighth Circuit held that “RCRA’s ‘imminent and substantial endangerment’ language does not require the EPA to file and prosecute its RCRA action while the endangerment exists.” The court found that “in the context of a reimbursement action, this would be an ‘absurd and unnecessary’ requirement. The endangerment language is plainly intended by Congress to limit the reach of RCRA to sites where the potential for harm is great.” Id. at 1383. The court concluded that requiring an “imminent and substantial endangerment” at the time of suit would…

49 F.3d 518 40 ERC 1161 , 63 USLW 2553 , 25 Envtl. L. Rep. 20,638 KFC WESTERN, INC., Plaintiff-Appellant, v. Alan MEGHRIG; Margaret Meghrig, Defendants-Appellees. No. 92-56597. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 5, 1994. Decided March 1, 1995. Daniel Romano, Santa Monica, CA, for plaintiff-appellant. John P. Zaimes, McClintock, Weston, Benshoof, Rochefort, Rubalcava & MacCuish, Los Angeles, CA, for defendants-appellees. Appeal from the United States District Court for the Central District of California. Harry L. Hupp, District Judge, Presiding Opinion by Judge Harry PREGERSON; Dissent by Judge BRUNETTI. Before: BROWNING, PREGERSON, and BRUNETTI, Circuit Judges. PREGERSON, Circuit Judge: 1 KFC Western, Inc. ("KFC") appeals the district court's dismissal of its action under the Resource Conservation and Recovery Act ("RCRA") to recover environmental clean-up costs from the prior owners of contaminated property sold to KFC. The district court dismissed KFC's action under Federal Rule of Civil Procedure 12(b)(6) because it concluded that RCRA Sec. 7002, codified at 42 U.S.C. Sec. 6972 (a)(1)(B), does not authorize private plaintiffs to…