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Justices Skeptical of Reimbursement Under 1976 Environmental Law

January 10, 1996

WASHINGTON (AP) _ The Supreme Court appeared ready Wednesday to bar people from using a 20-year-old environmental law to recover money they spent to clean up hazardous waste on their property.

Seeking to interpret the federal Resource Conservation and Recovery Act of 1976, five of the court’s nine justices voiced considerable skepticism when told the law allows such reimbursement.

The hour-long argument session in a California dispute does not necessarily foretell the court’s decision, expected by July. But precious few comments from the bench could have comforted those seeking to have the act read broadly.

The 9th U.S. Circuit Court of Appeals ruled last year that people may use the 1976 law to get repaid for cleaning up contamination they did not cause and that once posed an ``imminent and substantial endangerment″ to their property.

The appeals court said KFC Western, which found gasoline contamination on property in Los Angeles where it operates a Kentucky Fried Chicken restaurant, could sue Alan and Margaret Meghrig, a brother and sister who sold the land to KFC in 1975.

The Meghrigs owned the land for 12 years. Previous owners had operated a gasoline station on it.

KFC discovered gasoline contamination threatening ground water in 1988, and spent more than $211,000 to clean it up.

The company sued the Meghrigs in 1992, first under state law and then in federal court under the Resource Conservation and Recovery Act. Its state-court case fizzled, and a federal judge threw out the RCRA claim.

But the 9th Circuit court reinstated the federal lawsuit, ruling that KFC might be able to collect what it spent on the cleanup.

The RCRA allows private lawsuits to stop imminent threats but generally does not allow any monetary-damages awards. The appeals court, however, said an award of cleanup costs could be treated as restitution _ not the same as monetary damages.

Another federal appeals court has disallowed awards of cleanup costs in such cases, based on its conflicting interpretation of the RCRA.

John Zaimes, a Los Angeles lawyer representing the Meghrigs, seemed to find some sympathy from the high court while arguing that the RCRA’s ``plain words″ bar the payment KFC seeks.

Chief Justice William H. Rehnquist suggested that the environmental threat was no longer ``imminent″ when the lawsuit was filed in 1992.

``It seems to me that this statute requires (such) at the time you bring the lawsuit,″ Rehnquist said.

Justice Antonin Scalia agreed, and suggested that the law’s language does not provide for any monetary recovery, even restitution, for old hazards.

Justices Sandra Day O’Connor, Anthony M. Kennedy and Ruth Bader Ginsburg voiced similar doubts.

Zaimes also had an ally in Justice Department lawyer Jeffrey Minear. Arguing for the Clinton administration, Minear said, ``There must be a current endangerment″ when such private lawsuits are filed.

Daniel Romano of Santa Monica, Calif., representing KFC Western, argued that the RCRA’s language is ambiguous, and should be read to accomplish Congress’ intent to make those responsible for pollution pay the costs of cleaning up.

Another federal statute, the Comprehensive Environmental Response Compensation Act of 1980, known as the Superfund law, does provide remedies for past violations. But it specially excludes cost recovery for petroleum waste-products cleanups such as KFC’s.

The case is Meghrig vs. KFC Western, 95-83.

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