Transcript

CHIEF JUSTICE WILLIAM REHNQUIST: We'll hear argument next in No. 95-83, Alan Meghrig v. KFC Western, Inc. Mr. Zaimes, you may proceed whenever you're ready.

ARGUMENT OF JOHN P. ZAIMES ON BEHALF OF THE PETITIONERS

MR. ZAIMES: Thank you, Mr. Chief Justice, and may it please the Court:

This case, after all the briefing on a wide range of issues, remains a statutory interpretation case, and the guidance that this Court has previously given on how to resolve such cases, particularly where Congress has provided strict -- excuse me -- direct indications of its intent in several ways, we think charts a very clear path for how the case should be resolved.

Let me digress for just a moment to talk about the facts in this case that are at this stage undisputed.

They are -- this is still a pleading case, notwithstanding the many twists and turns that it has been through.

The case concerns a small commercial property located on a street corner in Los Angeles that was owned by petitioners from 1963 to 1975. The petitioners sold the property to respondent in 1975.

Respondent had been a tenant on the property for about 10 years before that, since 1965, and had operated a Kentucky Fried Chicken store on the property.

In 1988 respondent decided that it would bulldoze that Kentucky Fried Chicken store and bulldoze also the strip mall that was alongside it and put a brand new store on the property

-- it was going to be a two-story, art deco, specially designed store -- and in the course of that work discovered contamination on the property by refined petroleum product. That was in October 1988.

The respondent fully cleaned up the contamination in a matter of months, by March 1989, and gave notice to petitioners under the Resource Conservation and Recovery Act, what we call RCRA in shorthand, in May 1990.

It was not, though, until December 1991, more than 3 years after the contamination had been discovered, that respondent commenced its first action in State court alleging in toto 10 different causes of action, most of them sounding in common law, but two under State statutes.

JUSTICE ANTHONY KENNEDY: Was the cleanup done pursuant to an order of the municipality?

MR. ZAIMES: It was done pursuant to -- it was done under the supervision of the County of Los Angeles, Department of Health Services. \

I don't believe that there was an order in effect at the time that the cleanup was done, but they had general oversight --

JUSTICE KENNEDY: Had a building permit been conditioned on the cleanup?

MR. ZAIMES: I believe it had. I believe it had. The --

JUSTICE KENNEDY: So, the respondent was under really a legal duty to clean up the property, at least if the building permit were going to be granted.

MR. ZAIMES: I'm not sure if that is an allegation of the complaint, but I believe that that would have been the state of facts at the time that the cleanup was done.

After two successful demurrers by petitioners, that case went up on appeal to the State court and this action was filed in the Federal district court in {Los Angeles} alleging a single cause of action under the Resource Conservation and Recovery Act. That was in May 1992.

Now, it is Congress' intent in the citizen supervision of that statute that we are here to determine, and we believe that the congressional intent derives from several sources, including the plain words of the jurisdictional statement of the statute, other related sections of the statute, the legislative history of the statute itself --

JUSTICE SANDRA DAY O'CONNOR: Well, Mr. Zaimes, there are two potential questions that I guess we might resolve, and I'm not sure if we have to resolve them both or not.

One has to do with the statutory requirement that an imminent and substantial endangerment be alleged. MR. ZAIMES: Yes. JUSTICE O'CONNOR: And that may possibly be decisive for our purposes of this case.

The other has to do with what's recoverable, assuming there is a valid claim made, and the extent of a court's equitable authority. What does that cover? Are you going to address both those issues?

MR. ZAIMES: I am going to address both of those issues.

JUSTICE O'CONNOR: And do we need to decide both in your view?

MR. ZAIMES: I believe you do need to decide both, and the primary reason that you need to decide both is that part of the way that this case has come to this Court is that there is a conflict in the circuits.

The Ninth Circuit has fundamentally determined that as to the second issue, what type of relief is available under the statute, that a cost recovery action may be pursued. The Eighth Circuit has determined precisely the opposite.

JUSTICE O'CONNOR: That's the question on which there is a split of authority.

MR. ZAIMES: That is the question on which there is a split of authority. It is less clear that there's a split on the imminent and substantial endangerment.

JUSTICE STEPHEN BREYER: Doesn't the Ninth Circuit create the split?

MR. ZAIMES: I'm sorry, Justice Breyer?

JUSTICE BREYER: Doesn't the Ninth Circuit create the split on the question of when the endangerment had to take place?

MR. ZAIMES: My recollection of -- the Ninth Circuit says the endangerment can be in the past or in the present. JUSTICE BREYER: Right.

MR. ZAIMES: Now, I'm not sure that the Eighth Circuit reached the issue of whether it has to be past or present directly.

It relied more on the Cort v. Ash analysis of whether there was an implied right of action for damages in the case.

In addition to the words of the statute, we have legislative history --

JUSTICE RUTH BADER GINSBURG: I'm sorry. I'm just not quite clear on your -- why you answered that we must decide both because if we say that the Ninth Circuit was wrong about when the endangerment must be, if we say it is an imminent, yet-to-be-realized danger, why do we have to answer any other question? The Ninth Circuit is then reversed and your client has no responsibility.

MR. ZAIMES: Well, that resolves the situation, Justice Ginsburg, for my client I agree. I'm not sure that that resolves the remainder of the Ninth Circuit's decision. If you were to only reverse --

JUSTICE GINSBURG: We can decide this controversy only. We decide a live case or controversy.

And your controversy is over once you prevail on the point that there was at the time this action was taken, that the suit was brought, no imminent danger of any kind.

MR. ZAIMES: That would resolve this case fully. And the reason --

JUSTICE Antonin SCALIA: Or alternatively, we could attack it from the other direction and could determine that there's no cause of action for money damages. MR. ZAIMES: That is true.

JUSTICE SCALIA: And, therefore, it doesn't matter whether or not this thing was prior or not.

MR. ZAIMES: You could resolve it that way also. My answer to Justice O'Connor was that because there is the conflict -- I was keying off of --

JUSTICE SCALIA: The second way is -- the second point is the one on which there is the conflict.

MR. ZAIMES: The second point is the one on which there is the clear conflict, yes.

Now, in addition, I will say that this case has engendered a considerable amount of activity just since the Ninth Circuit came down.

This is -- and I am speaking outside the record, but as a matter of policy, if the Court wanted to resolve the issue of the

-- of what RCRA entitles a person to do, it could reach both issues for the reason that if it only resolves imminent and substantial endangerment, then the likelihood of there being recurring issues on what type of relief is available is going to be great.

But the fundamental reason is there is a conflict in the circuit but, Justice Scalia --

JUSTICE O'CONNOR: What if we had a case where there is an imminent and substantial endangerment alleged and the plaintiff says, I want an injunction and I want an order that the defendant will pay the costs of future cleanup? Is that within the court's equitable power?

MR. ZAIMES: This is before -- this is an order that the defendant would clean it up now or the order would say, plaintiff, you may clean it up and we are going to order defendant to pay that? JUSTICE O'CONNOR: Either way.

MR. ZAIMES: Either way? In the first instance, if the order were simply defendant -- plaintiff will clean it up and defendant will reimburse, I don't believe that they're

-- that the court is entitled to issue that sort of order because what the statute says is the district court may restrain or order such person to take such other action.

What is contemplated by that is that the defendant is going to undertake the cleanup, not that some money damage award is going to issue. And that's the fundamental basis of our position in the case.

JUSTICE DAVID SOUTER: What if the court makes exactly such an order and says, defendant, stop what you're doing now, clean up?

And the defendant doesn't either because the defendant can't get its hands on the money to pay for it or is just contumacious and whatnot.

Can the plaintiff at that point come in and say, all right, you've made a perfectly proper order here, but nothing is getting done?

Authorize me to, in effect, take whatever steps I can take to abate and to clean up simply to discharge the responsibility which is ultimately upon this other party.

Under those circumstances, could the plaintiff get -- and the court says, yes, all right, go ahead. Under those circumstances, could the plaintiff get restitution?

MR. ZAIMES: I'm not -- I don't believe that it could under this statute. Now, bear in mind this is one statute and this is one remedy in a broad array of remedies that are available, so while we're focusing on this statute and what it provides --

JUSTICE SOUTER: But you would still win the case if that were the rule here, wouldn't you, if we accept your position on -- MR. ZAIMES: I -- JUSTICE SOUTER: You'd still win the case if that were the rule here.

MR. ZAIMES: Justice Souter, I believe that I would win on the RCRA claim. I believe that I would lose on several other claims. I would lose on the State -- any of several State law claims.

JUSTICE SOUTER: But we're not adjudicating them.

MR. ZAIMES: I understand that.

JUSTICE SOUTER: We're talking about RCRA, and under the RCRA claim, you would win, would you not, on my assumption?

MR. ZAIMES: The way this statute is framed, I believe that I would win in that sort of situation because --

JUSTICE SOUTER: So, you want a broader rule than the rule that it would take you to win the case.

MR. ZAIMES: Well, I'm seeking in some -- and we touched on this in the context of the imminent and substantial endangerment.

The imminent and substantial endangerment issue disposes of my case, but --

JUSTICE SOUTER: But I assume you're here arguing your client's case, not bringing interesting issues to us. MR. ZAIMES: That's right. JUSTICE SOUTER: And your client would win on the position that I have suggested, wouldn't it?

MR. ZAIMES: It would.

JUSTICE SOUTER: And that would end this lawsuit. MR. ZAIMES: It would.

JUSTICE SCALIA: But you're trying to take the high ground, as I understand it. (Laughter.) You think that the more defensible principle is a principle that not only lets your client win, but let's some other people win. That's --

MR. ZAIMES: Well, I'm taking fundamentally the position that I win on either one. I win on the imminent and substantial and I also win on what the scope of relief is that a court --

JUSICE SCALIA: You not only want to win, you want to win on the basis of a correct principle, which is what you're arguing.

MR. ZAIMES: Absolutely correct, Justice Scalia.

JUSTICE BREYER: Then to go to the correct principle, how could you in fact interpret this statute to say that a plaintiff could never get monetary damages?

Suppose the gasoline station next to you is in fact right now leaking gasoline through your wall killing your chickens or whatever, and what you do is you have to put up a barrier to stop it.

And at the same time, you run into court and you say enjoin it. So, the court says, enjoin it.

You say I've spent $50,000 on the gasoline barrier to keep my chickens safe, and I'd like to be reimbursed for that.

Are you saying that that wouldn't be necessary to give you the little extra money that you needed in order to take immediate action within a few hours in order to stop all your livestock from dying or whatever?

I mean, normally in equity I think that kind of restitution would be normal. So, what's the argument on the merits that this statute wouldn't give you that, even though that's not in this case at all, a totally hypothetical?

MR. ZAIMES: With all those assumptions, the argument is that that is the way this statute is structured.

JUSTICE BREYER: The word in the statute is "necessary," and how would you say that that kind of normal equitable relief, which is the principle you want to argue for, never could be necessary?

MR. ZAIMES: Well, with all due respect, Justice Breyer, the wording of the statute is "order such person to take such other action as may be necessary" --

JUSTICE BREYER: And it may be -- why isn't it necessary in the circumstance, given the history of equity, et cetera, to make at least the monetary restitution necessary to clear up the absolute immediate emergency action that the plaintiff took in order to save the lives of his livestock?

MR. ZAIMES: Fundamentally because our argument is that that is not what Congress intended. Congress intended to --

JUSTICE BREYER: Why not?

MR. ZAIMES: Why? Because in the broader scheme of things, the citizen suit remedy in this statute, as in its predecessors, is designed to afford limited relief to plaintiffs and not to have plaintiffs coming in with all sorts of money damages claims --

JUSTICE BREYER: I agree with that. That's why I say -- you were arguing for the proposition never, and that's what's bothering me. Never.

MR. ZAIMES: I'm arguing for the proposition never under this statute.

JUSTICE SCALIA: Mr. Zaimes, your second -- I mean, we may be unfair to you in severing the two points as though they don't overlap.

As I understand it, part of your argument with regard to the damages point hinges upon your assertion that this is a statute that is only intended to prevent future harm.

It is not intended to remedy for past harm. MR. ZAIMES: That is true. JUSTICE SCALIA: And in the hypothetical that Justice Breyer just posed to you, what you were doing is reimbursing the plaintiff for that past damage that he's incurred for putting up the barrier.

And there's no doubt that he would not be able to get that if we take the first point in the case. There's no doubt that he would not be able to get that.

Once -- although he's put up the barrier, once all of the oil pollution next door has been eliminated, he has no cause of action at all, neither for putting up the barrier nor for anything else.

And part of your argument is that these two halves go together. When you understand that the statute is only intended to remedy for future harm, there's no sense in allowing a court to give damages for something that happened in the past.

MR. ZAIMES: That is part of the argument and that is what the statute provides, and that's fundamentally --

JUSTICE KENNEDY: But suppose that the court ordered the previous owner to clean up under this statute with proper notice and the owner is contumacious.

He does not obey the court's order. And the plaintiff then, giving due notice again of his intent, undertakes to clean up the -- and stop the waste himself.

As an ordinary measure of contempt of court sanctions, is not the plaintiff entitled to recover the cost that he expended to avoid the harm that the defendant, in contempt of the court's order, refused to undertake on his own?

MR. ZAIMES: Well, perhaps as a matter of contempt. And I'm glad you raised that, Justice Kennedy, because I was contemplating that when Justice Souter asked a similar question earlier.

But, again, a statute -- this particular statute provides a limited array of remedies, and while in the situation you've described if the contumacious defendant does not clean up, there may be a remedy available under sanctions principles and that may get the plaintiff to the same point he would otherwise be, but --

JUSTICE O'CONNOR: Well, aren't there cases holding that courts retain equitable authority not specifically taken away by Congress?

MR. ZAIMES: There are those cases. Those cases have been cited by respondent.

JUSTICE O'CONNOR: Right, and you recognized the validity of that notion.

MR. ZAIMES: The court does retain equitable power, and the limits on that equitable power are circumscribed by the particular statute at issue.

And fundamentally where we part company with respondents in the line of cases that starts from Porter and traces its way through Franklin v. Wynnette is that we are faced with a much different statute than was at issue either in Porter or --

JUSTICE KENNEDY: But in my hypothetical case, you cannot get the power of the court to order that limited measure of damages from the phrase "take such other action as may be necessary?"

MR. ZAIMES: Well, again, since the phrase is actually "order such person to take such other action," the phrase seems to be even more limited than the part that you're quoting, Justice Kennedy, in all due respect.

And it seems to aim more at requiring somebody to undertake acts as opposed to requiring a payment of some sort.

JUSTICE SCALIA: I thought your argument was that given your position on the first point as to whether the statute is directed only to the prevention of future harm, extant threats, that the phrase "as may be necessary" must reasonably be read to mean as may be necessary to achieve the purpose of this statute, which is not to reimburse for past expenses but to prevent future harms. MR. ZAIMES: It can be read that way. JUSTICE SCALIA: Now, if you --

JUSTICE BREYER: Is that your reading?

MR. ZAIMES: Well, my reading is that the statute has a limited --

JUSTICE BREYER: But Justice Scalia just set out a position. Is -- I thought -- at one point I thought that was the way you read it. Is that the way you read it?

MR. ZAIMES: The way I read the statute -- and I was taking Justice Scalia's comments in the context of Justice Kennedy's question, but fundamentally the way I read the statute is the statute says that you can address an imminent harm. You can take steps to prevent future harms, and that is what is afforded --

JUSTICE SOUTER: And that is what circumscribes the court's power as a court of equity to make orders and provide remedies. Isn't that correct?

MR. ZAIMES: Yes, that is true.

JUSTICE SOUTER: All right. If that is the -- I didn't mean to take your question away from you. I'm sorry.

JUSTICE SCALIA: Go ahead. Take it.

JUSTICE SOUTER: If that is the case, then why shouldn't your answer to my first question be different? Because the assumption in my first question is we have in fact a situation which is presenting imminent harm here.

The court says, stop it. Stop doing what you're doing. Clean up enough so that there is no further imminence of harm. The threat will be gone. The defendant says no or simply does not do it.

All the plaintiff wants is to get to that point which the court had every authority to order the defendant to reach.

And so, the plaintiff says, let me clean up and then give me restitution for doing what you had the authority to order the defendant to do. Why doesn't a court have that authority?

JUSTICE SCALIA: Take it, Mr. Zaimes. Take it. MR. ZAIMES: I'm about to. JUSTICE SCALIA: Good.

MR. ZAIMES: I think the court does because you're starting from a point where the court exercises its jurisdiction initially consistent with the statute.

And another way to look at it is that the court is simply following up on something that initiated under the jurisdiction that was given it -- given to it originally.

JUSTICE BREYER: And once you say that, then aren't you back into a line drawing problem. The statute doesn't give a damages remedy. That's true.

But a statute may give a remedy to require a person to pay money to the plaintiff insofar as that's an equitable action related to the basic cleaning up of the spill.

I mean, I don't know exactly how to draw that line, but the line between the equitable remedy for money, which is ancillary to the injunction, and damages action would seem the right line, do you think?

MR. ZAIMES: Not necessarily because where I -- the way I get to the ability to award damages in the hypothetical posed first by Justice Souter and then by Justice Kennedy is the jurisdiction is invoked initially pursuant to the statute to remedy a future harm or an imminent endangerment.

And then damages are awarded in furtherance of that. The jurisdiction has already been exercised. So, the example you're giving, Justice Breyer, is a lot broader and does enter into some line drawing problems.

JUSTICE GINSBURG: Do you have an answer to the, I think, main criticism of your reading which is that it encourages delay on the part of the person on the spot?

It says to that person, don't clean it up because if you do, it's going to be out of your own pocket. Instead, let the contamination increase and go sue somebody else.

MR. ZAIMES: I have three very brief answers to that.

Number one, we as parties litigating and the court are limited by what Congress has provided, number one, and the scheme that Congress has provided provides a 90-day notice provision and then by implication in some situations would require a plaintiff to wait.

Secondly, the -- by giving notice, there is some likelihood that particularly with a serious endangerment, that the EPA or the State or the alleged contaminator are going to come in and do some action.

So, the argument advanced by respondents that we are going to have hazardous waste sites that are continuing to damage the environment and damage human health isn't necessarily so.

nd thirdly, within the statute itself -- and the statute is contained in the appendix to respondent's brief -- there is a provision and it's within the notice provision.

The notice says 90 days to the EPA, to the State, and to the contaminator. There is a provision that says, except where there is an allegation of a violation of subchapter 3 of the statute, and subchapter 3 is the portion of the statute that deals with hazardous waste.

So, presumably in a situation where you have hazardous waste, the plaintiff need not wait the 90 days if it is going in to remedy a hazardous waste situation. So, those are my three responses to that argument.

Mr. Chief Justice, may I reserve time on the remainder?

CHIEF JUSTICE REHNQUIST: Yes, you may, Mr. Zaimes. Mr. Minear, we'll hear from you.

ORAL ARGUMENT OF JEFFREY P. MINEAR ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE, SUPPORTING PETITIONERS

MR. MINEAR: Thank you, Mr. Chief Justice, and may it please the Court:

The initial and controlling issue in this case is whether a citizen plaintiff may seek relief under section 7002(a)(1)(B) of RCRA if there is no current endangerment at the time of suit. We think the answer is clearly no.

Section 7002(a)(1)(B) provides that for judicial relief in response to specific activities, namely, the treatment, storage, and disposal of waste, that, quote, may present an imminent and substantial endangerment, end quote.

The statute's use of the term "may present" indicates there must be a current endangerment at the time the suit is filed.

That construction is born out by section 7002(b)(2)(A), the so-called notice provision, which requires the plaintiff to provide notice to the defendant and also to the other government agencies of the endangerment before filing suit.

Respondent attempts to avoid that construction by arguing that the limiting clause requiring endangerment actually refers to a description of the hazardous waste and not to the antecedent activities.

The statute, however, will not afford that construction.

Section 7002(b)(2)(B), which appears at the bottom of appendix page 3 of respondent's red brief, states that a citizen suit is precluded if the EPA is taking action in response to, quote, activities that may present the alleged endangerment. For that reason, it is clear that Congress was referring to the activities and not the waste when using the term "endangerment."

CHIEF JUSTICE REHNQUIST: What again is your reference there, Mr. Minear?

MR. MINEAR: That is at appendix page 3 of the red brief.

CHIEF JUSTICE REHNQUIT:And what section?

MR. MINEAR: It is 7002(b)(2)(B). CHIEF JUSTICE REHNQUIST: Thank you. MR. MINEAR: This -- the construction that we urge here is not only consistent with the statutory terms, but it is also consistent with the overall design of the statute which is structured to abate existing hazards.

For example, the statute makes reference to prospective remedies. It also provides a notice provision, as I discussed before, which provides for the elimination of the hazard and the avoidance of the suit.

It also contains no statute of limitations respecting any damage claims that would thereby prevent any stale damage claims.

In addition, the legislative history supports the construction that we urge. For example, House Report 198 describes the section 7002(a)(1)(B) remedy as a limited abatement remedy.

If you agree with us that the -- a citizen must show a imminent and substantial endangerment at the time of suit, then the Court need go no further in this case.

The respondent did not show a current endangerment, and the court of appeals decision should be reversed on that basis alone.

JUSTICE SCALIA: Well, we didn't take this case to get rid of the case. We took the case principally I think -- at least I did -- to resolve the circuit conflict, which doesn't exist on this point but rather exists on the second point.

Why isn't it perfectly valid to attack the second point as to whether money damages are recoverable?

And in the course of -- I -- at least I think that in order to decide that second point correctly, you have to incidentally reach the first point.

MR. MINEAR: Well, I think there are two answers to that.

First, I think it's important for this Court to recognize that the preconditions for suit must be satisfied before we get to the issues of remedy.

Now, obviously, they are related, but I think it is -- it puts the Court in a difficult position to address the question of remedies where no such remedy could be afforded in this particular case.

Second, if you do resolve the case on the first issue, I think that might well cause the court of appeals to reconsider its reasoning with regard to the second issue, and it may well be that the circuit conflict that currently exists will dissipate as a result of your ruling on the first issue. In any event, I think that it is important for the Court --

JUSTICE O'CONNOR: The opinion doesn't read that way, Mr. Minear. I think that's quite unlikely. I think maybe we ought to wade into it and find out what it is that the court can do in the way of damages.

Do you argue that the statute authorizes the court to award past cleanup costs as a remedy or that it just doesn't prohibit it?

MR. MINEAR: It doesn't expressly address the issue, but it does provide -- allow the court to allow relief that is necessary.

JUSTICE O'CONNOR: Well, do you say that actual money damages for past cleanup costs fits within that statutory description?

MR. MINEAR: We think in certain circumstances a monetary remedy can be necessary to fulfill the purposes of the statute.

The purpose of the statute here is to allow the courts to compel a responsible party that has created a current endangerment to abate that endangerment, and it will be in some circumstances necessary to apply a restitutionary type remedy to ensure that that purpose is fulfilled.

For example, suppose that the -- a plaintiff brings a suit and during the notice period asks the defendant to clean up the site.

The defendant will have a powerful incentive not to take any action to clean up the site and to try to force the endangered community to assume those costs if it knows that the court will be unable to award any damages in those circumstances. I do not believe that's what Congress had intended in this situation.

Moreover, the position that we take is consistent with the general view this Court has expressed with regard to a court's equitable powers.

This Court has noted in various circumstances that a court may include a restitutionary remedy together with other equitable relief.

CHIEF JUSTICE REHNQUIST: But this isn't a broad grant of equitable jurisdiction. It's a much more circumscribed grant of part of a court of equity's powers.

MR. MINEAR: Well, we think that the primary circumspection or limitation on the court's power is really the requirement of the current endangerment.

Once there is a current endangerment, then it becomes -- it behooves the court to take those steps that are necessary to abate the endangerment and also to assure that the responsible --

CHIEF JUSTICE REHNQUIST: Well, do you think that the language to "restrain any person," et cetera and then to "order such person to take such a" is the sum and substance of the -- what would be granted if the courts -- if the statute said the court shall have equitable jurisdiction?

MR. MINEAR: Yes, we think it is. We think that it gives the same general grant of power with regard to any order that may be necessary.

Equity -- equitable principles are circumscribed by the requirement of necessity, that the court's power must -- the court must step in to prevent an injustice in a particular case. And we do think that the --

JUSTICE SCALIA: Well, it seems to me not just an injustice, but an injustice that is related to eliminating a -- an extant threat to the environment.

MR. MINEAR: That is correct. Yes, I would agree with that.

JUSTICE SCALIA: As I hear you now and as I heard Mr. Zaimes' concession in oral argument, I don't think you're disagreeing with Mr. Zaimes on this point anymore, as you seemed to be originally.

That is, he seemed to be taking the position in the briefs that you couldn't get money, period.

Now I think he's acknowledged that you can get money so long as it is in connection with an order for somebody to remedy a threat to the environment.

MR. MINEAR: If Mr. Zaimes has made that concession, then we are in substantial agreement on that point.

JUSTICE GINSBURG: But I thought you went somewhat further, and let's take this case exactly, what the dates were. The contamination was discovered in October.

Suppose the plaintiff had immediately given notice to the defendant, but during the 90-day period itself under pressure, say, from town authorities, plaintiff starts cleaning up and then has to wait those 90 days to bring the suit. So, by the time we get to -- what would it be? February? From October to February.

The plaintiff has already incurred a substantial sum. Then from the time the suit begins in February until March when the cleanup is done, plaintiff incurs further expenses.

Is it your position that all of the expenses during the 90-day period plus after suit commences are reimbursable or only after the suit commences?

MR. MINEAR: It's our view that all of them may be reimbursable, but there are several other conditions that we would recognize.

First of all, they have to be expenses that were reasonably necessary to abate the danger that was presented by the hazard that was proposed.

There also had to be notice to the defendant with regard to these expenses and a decision by the defendant not to take -- undertake them.

And the reason why these expenses are assessable is because they are necessary to ensure that the statute works the way that Congress intended, namely, that it would encourage the responsible party to clean up the site and eliminate the need for a suit.

If the party refuses to do so, then it faces the additional costs that will be associated with reimbursing the plaintiff, in addition to the equitable order that might require the defendant to complete the cleanup of --

JUSTICE SCALIA: I don't see how that's necessary to achieve the purpose of the statute. The money -- the cleanup that has been done with money already spent?

Those are some costs. That cleanup has been done. You don't achieve anything by paying the person for that.

MR. MINEAR: Well, Congress does not simply see -- wishing to see that the sites be cleaned up. They're also interested in seeing that the responsible parties would bear those expenses.

JUSTICE SCALIA: Not in this statute. Not in this statute because you acknowledge that so long as the entire cleanup has been done before suit is lodged, you get none of your money back.

Or at least before the 90-day notice is given. You draw the line at the 90-day notice.

You acknowledged that if I do somebody else's cleanup and complete it entirely so that there's no more harm to the environment, I cannot get anything under this statute.

MR. MINEAR: May I answer that question?

CHIEF JUSTICE REHNQUIST: Yes.

MR. MINEAR: We draw a different distinction with regard to that line that Congress drew, and that is that it was concerned with directing the court's resources to imminent hazards, those that required immediate abatement. And once you cross that threshold, the court has its full equitable power. Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Minear. Mr. Romano, we'll hear from you.

ORAL ARGUMENT OF DANIEL ROMANO ON BEHALF OF THE RESPONDENT

MR. ROMANO: Thank you, Your Honor. Mr. Chief Justice Rehnquist, may it please the Court:

I think that in light of the concessions that were made by counsel for the petitioner, I believe that about one-half of my argument is no longer necessary.

As I understand the petitioners' viewpoint now, assuming that we've complied with the statute, then we are entitled to seek equitable restitution under the statute if the reimbursement cost and the cleanup action that we took was, quote, necessary under the statute. We don't disagree with that.

JUSTICE SCALIA: No, I don't think that was the concession. I think the concession was that the court could issue an order which tells you to clean it up and requires the other party to pay you for your cleanup.

That's not here. No, he hasn't conceded that he owes you any money.

MR. ROMANO: The court --

JUSTICE SCALIA: What he conceded is that a court could issue an order allowing the party now in possession of the property to clean up the hazard, the extant hazard, and saying, when you clean it up, you will be paid for -- it will be paid for by the other party. But that's not this case.

MR. ROMANO: In other words, availability of restitutionary remedies is present in the statute, and this is about one-half of our argument. Now, how do we go about --

JUSTICE KENNEDY: Well, I'm not sure. He can tell us later, because he's reserved time, what he conceded and what he didn't.

I think you should address the argument of whether or not the statute permits the award of what in essence are monetary damages.

The Government cites rent control cases where there was restitution, the Moore case and I think the Porter case. MR. ROMANO: That's correct. JUSTICE KENNEDY: Those were decided well before our opinion in Cort v. Ash.

MR. ROMANO: That's correct, Your Honor. I believe that the opinion in Cort v. Ash really does not address the issue over here.

The opinion in Cort v. Ash dealt with whether or not the court should imply a private cause of action from a statute.

What we have over here, we have a cause of action which was presumed to exist under the statute in light of the Porter decisions and Franklin decision which Congress is presumed to have known about at the time that it enacted the statute.

The language of the statute in Porter and the Franklin cases and in this case are virtually identical. They grant the court to -- authority to issue such other order as may be necessary.

This language has been held by this Court in the precedent that we cited to include all available equitable relief.

CHIEF JUSTICE REHNQUIST: Well, there's nothing implied about the cause of action here, is there?

MR. ROMANO: No. It's explicit.

CHIEF JUSTICE REHNQUIST: Any person may commence a civil action on his own behalf. It's just a question of what he -- when he can do it and what he can get as a result of that.

MR. ROMANO: Precisely, Your Honor. That's why we say we're dealing here with an explicit grant of jurisdiction and authorization for any person, citizen, to commence an action on his own behalf against all of the named defendants under the conditions stated in the statute.

So, we don't have to deal with Cort v. Ash, and this is where the Eighth Circuit was wrong.

Now, we say that under the words of the statute, the court can do a number of things. They can issue a prohibitory injunction.

It can issue an mandatory injunction ordering in fact the cleanup of the property by the defendant, and this point is considered by the defendants.

We say it is a very small step from there to allow the court to say under the circumstances of the case, if appropriate and if necessary, you, plaintiff, go out, clean the property, and then you will obtain reimbursement from this defendant.

JUSTICE SCALIA: Yes, after the case is pending. But that -- you know, after the case is pending and there is still cleanup to be done, the court could order that. I tend to agree with you.

But that's not what happened here. The cleanup was done years ago before the suit was filed.

MR. ROMANO: Justice Scalia, let me respond to some comments you made which bear on this point. Earlier you stated I believe that it was your view of the statute that it applies to prevent future contamination.

But if -- in fact if you look at the statutory objectives stated in RCRA itself, section -- 42 U.S.C. 6902(b), the Congress said it is the intent -- the national policy of the United States

-- and I'm skipping ahead over here -- to minimize the present and the future threat to human health and the environment. This is what we did in this case. So, the only issue is --

JUSTICE SCALIA: But not to remedy -- not to shift money around with respect to past threats. Present and future, but not past.

MR. ROMANO: The issue is that is presented before this Court is what should a property owner do upon the discovery of contamination on his property. Now, he can do one of two things.

And we have to assume, in the context of this decision, that that contamination presents an imminent hazard condition. Now, what does that mean?

It means he has a -- drums of toxic waste leaking to the groundwater. It means that there is a condition whereby there is a discharge into the soil where children are playing.

It may be that there is a potential explosive conditions that need to be abated.

Would you rather have a plaintiff take care of those conditions and then seek his response later, or would you like him to go to court? The answer to this -- provides --

JUSTICE SCALIA: I might have enacted a different statute. Is that what you're asking? Would I have enacted this one or a different one?

MR. ROMANO: No, Your Honor. I believe that this is precisely what Congress has enacted by --

JUSTICE GINSBURG: Then why didn't they use the same words, encompassing words, that were used in CERCLA?

I think you're asking us to interpret this provision of RCRA with the same breadth as the CERCLA provision.

MR. ROMANO: Justice Ginsburg, this is a very different statute from CERCLA, and in fact it is unique.

No other statute is found in the environmental laws of the United States which allows a citizen to proceed and file and deal with an imminent hazard condition. CERCLA doesn't have that. A citizen --

JUSTICE GINSBURG: I'm talking about what you can recover. The provision for reimbursement for cleanup costs is broad in CERCLA, is it not? MR. ROMANO: Yes. JUSTICE GINSBURG: And here there is no similar provision that says for what you've done to clean it up, you can recover.

MR. ROMANO: We believe that Congress -- Congress could have put the imminent hazard/endangerment provision in CERCLA. It did not.

It put it in RCRA so that the broadest possible remedies will be available to deal with conditions of imminent and hazard endangerments.

Now, if Congress put that statute in CERCLA, it would only apply, Justice Ginsburg, to substances covered by CERCLA which is hazardous substances.

Congress well understood that environmental contamination which may lead to imminent and hazardous conditions may arise not only from hazardous substances, but also from solid waste and hazardous waste, substances which are not covered by CERCLA.

Moreover, Congress has understood that petroleum contamination is not covered by CERCLA, yet may present an imminent hazard condition.

We believe that's why Congress put that statute in RCRA not in CERCLA. There was a reason for why Congress did that.

CHIEF JUSTICE REHNQUIST: Well, what's your position, Mr. Romano, with respect to a situation where a property owner discovers the hazard, goes ahead and cleans it up so that there's no longer any imminent or substantial endangerment, and then goes to court? What can he recover in the way of a monetary award?

MR. ROMANO: Well, I believe that under the proper circumstances this particular individual may recover his

-- may obtain equitable restitution of his environmental cleanup costs, those costs that were necessary, in the words of the statute --

CHIEF JUSTICE REHNQUIST: So, you say then he doesn't have to present an imminent and substantial endangerment to health.

MR. ROMANO: We don't believe that the condition of imminent and substantial endangerment has to be present at the time of the filing of the lawsuit. Now, we believe that the statute supports us on this issue.

When Congress wanted to put a limitation on the timing of the filing of the lawsuit in this statute, it imposed them in section B of the statute.

Congress said no action may be commenced until several things have happened. One, you could provide notice to the State, to the EPA, and to all the responsible parties, and then if within a period of 90 days the EPA or the State does not commence any remedial activities, then you may go to court and file a lawsuit.

CHIEF JUSTICE REHNQUIST: It's -- but in 2, which is what says what the court can do, it refers to the endangerment. Surely that's referring back to an imminent and substantial endangerment.

MR. ROMANO: Which? That -- the limitation of the endangerment is not temporal. For sure an endangerment has to exist at the time of the cleanup, otherwise we will not be here.

But assuming that an endangerment exists at some point in time, then should the person at that time file legal proceedings, send notice? In many cases there are literally hundreds of defendants that are --

CHIEF JUSTICE REHNQUIST: Well, but that may be a good argument, as one of my colleagues said, for a different statute, but it seems to me that this statute does require an imminent and substantial endangerment at the time you bring the lawsuit.

MR. ROMANO: Your Honor, the only words that even hint on that is the language "may present" which, granted, is in the present tense. We think that --

JUSTICE SCALIA: Wait a minute. Now, what about subsection 1 which you say sets forth the conditions? What about 1(B)?

It seems to me 1(B) makes no sense except on the assumption that this is a statute which deals with pending threats.

That is, it says, no action may be commenced under section (a)(1)(A): A, prior to 60 days, or B, no action may be commenced if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States to require compliance with such permit, standard, regulation, condition, requirement, prohibition -- MR. ROMANO: Your Honor --

JUSTICE SCALIA: Why would you eliminate somebody's cause of action for past damages so long as a State is pursuing a remedy to enjoin any future violation? It makes no sense.

MR. ROMANO: If I understand Your Honor's question, it deals with violation of standards or permit conditions or so forth. This is not what we're dealing in this lawsuit.

The RCRA citizen supervision is divided into two parts. Part (a)(1)(A) which deals with lawsuits commenced by citizens to enjoin violations which are alleged to -- against defendants which are alleged to be in violation.

This is a lawsuit which is similar to many other statutes found throughout the environmental laws, and they are aimed into enforcement of the regulatory aspect of the statute.

The statute we're dealing with today is a very different species of citizen supervision. It is unique and it is a liability statute.

And it says now under -- it allows a party to initiate proceedings when the conditions of imminent and substantial endangerment exist.

So, the question is, does the "may" language, "may present" language -- is it a language which is temporal in it or is it really something else? We believe it's something else.

It is necessary to limit the whole universe of solid and hazardous waste, about the broadest universe of substances you can imagine, to those ones which may present an imminent and substantial endangerment.

JUSTICE SCALIA: But that's just bad English. We do not assume that Congress uses bad English. I mean, to convey the thought you've just expressed, they would have said may exist or may have existed.

What you're saying may exist means -- simply there's a possibility. There is or was a possibility.

But that's not how we say that in English. The way we say that in English is may exist or may have existed. MR. ROMANO: Your Honor --JUSTICE SCALIA: When we say may exist, we mean -- what we mean is may exist, now.

MR. ROMANO: I understand that there is for sure -- for sure there is an ambiguity in the way the statute is written, and we believe that our reading of the statute --

JUSTICE SCALIA: You missed my point. My point is there is no ambiguity, not if you're speaking English.

May exist or may have existed is the meaning you say may exist conveys. It does not convey that meaning.

MR. ROMANO: Your Honor, we believe that when Congress wanted to put limitations on when such lawsuits should be filed, it put them under the actions prohibited section. That language is not found over there.

What the petitioners are arguing is take some language which we believe is out of context.

It's a descriptive language defining the type of waste that presents the hazard conditions and reading that into the jurisdictional section of the statute which comes later on.

CHIEF JUSTICE REHNQUIST: Well, would you say the same thing about (a)(1)(B)'s list of potential defendants like a present generator or something, that those are just kind of illustrative and you could bring an action against lots of other people too?

MR. ROMANO: You can bring an action under the terms of the statute against all past and present owners

-- not owners, transporters, basically all the group of defendants which are alleged to have contributed in some fashion to the contamination of the property.

And Congress has clearly stated that under the statute it is the desire of Congress to have all of these defendants share equitably in the cleanup of the contamination.

If I may, Your Honor, any other reading of the statute, the reading urged by the petitioners in this case, will lead to what we believe will be perverse results because the bottom line is you have a property owner which is -- has discovered a condition of imminent and substantial endangerment of his property.

What you want him to do to preserve his legal rights, he will not really have absolutely no incentive to do any cleanup activities whatsoever on the property.

JUSTICE O'CONNOR: Well, I thought your client made the cleanup because ordered to do so by the City of Los Angeles. I didn't think this was some voluntary thing.

MR. ROMANO: Your Honor, there was actually never an order. What the city --

JUSTICE O'CONNOR: But the city said you had to do it.

MR. ROMANO: The city said if you want to build your restaurant on this property, you better take care of that problem.

And what my client did is voluntarily go out and investigate the nature of the problem, only to find out that the extent of -- that, A, the problem was petroleum contamination, but to make matters worse, it -- the bottom pile of petroleum actually hit the groundwater beneath the property.

That's what we believe contributed to the conditions of imminent and substantial endangerment.

At that time the court has to ask ourself, what should -- that is the critical point in time here.

JUSTICE O'CONNOR: Well, you still have some State causes of action here presumably.

MR. ROMANO: Your Honor, our experience in this case is that we actually do not.

We are now pending for the second time in the court of appeals before the State of California, and we don't think the State remedies are -- have much meaning.

But even if they did, the statute does not specifically state that a citizen may proceed an action under this section without regard to any other available remedies. There's a savings clause.

The legislative history specifically says you do not -- plaintiff does not need to exhaust all other remedies before it commences a lawsuit under this section.

JUSTICE BREYER: That's -- isn't that make sense? That is to say, I take it the reason you lost in State court is because the State court found that the Meghrigs never undertook any acts which caused gasoline contamination on the property.

And so, if you want a damages action, perhaps you should have to go against the people who caused the problem.

But if you want a cleanup action, perhaps it's a better idea to get a broader category of people --

MR. ROMANO: That's correct, Your Honor.

JUSTICE BREYER: -- which would argue then against using this statute simply to try to get damages for something that's over and done with in the past.

MR. ROMANO: That's correct, Your Honor. We agree with that.

JUSTICE BREYER: But then how would you win? Because you're trying to sue against something that happened in the past.

So, I mean, maybe I don't understand it, but you're trying to get -- you're trying to go against some people whom the State found didn't cause the contamination but, nonetheless, they did handle the gasoline in the past and it all was a problem in the past. But you want to get damages from them now, don't you?

MR. ROMANO: No, we do not. We do not want damages.

JUSTICE BREYER: What you're calling restitution, but I mean, you want to be reimbursed from them who didn't cause the problem for your expenditure.

And it sounds to me as if it would make sense to let you get the reimbursement from a person who did cause the problem, which is what the State court would allow, but not necessarily to get reimbursement for a past event from people who are basically innocent, which is what you want to interpret the Federal statute to allow.

MR. ROMANO: Your Honor, the issue as to whether or not in fact we are relying -- we are entitled to obtain restitution from the Meghrigs is really not before the Court today.

If the Court in fact agrees with us and the case is remanded to the district court, the district court may, using equitable principles, decide whether or not we're entitled to restitution.

JUSTICE GINSBURG: May I ask another question that you could answer that's not strictly before us? Why was there no effort to sue anybody until after the cleanup was done? That's one question.

And the other is, are you telling us that unlike State law, the Meghrigs, even if they had nothing to do with the contamination, are responsible under the Federal statute?

MR. ROMANO: Your Honor, in response to the second question, we believe that the Meghrigs are responsible under State law, and in fact that's why we took an appeal from that order that was attached to -- as an exhibit -- an appendix to the petitioner's brief.

JUSTICE GINSBURG: What about under the Federal statute that says, has contributed or who is contributing? These are people who say -- let's assume for the moment that what they say is correct

-- we didn't -- during our period of ownership, we didn't have a clue that there was any petroleum involved.

MR. ROMANO: That in fact we believe is incorrect. Now, we're talking about facts, Your Honor, which are outside of the record and based on discovery that we obtained in the State court proceedings -- and I'm happy to talk about those. They're not in this --

JUSTICE GINSBURG: But just let's assume I said that they're correct, that the gas station long preceded their ownership of this property, that they did not contribute to the contamination.

They were not operating a gas station. It was a vacant lot while they were owners. Are they nonetheless contributors?

MR. ROMANO: Under State law?

JUSTICE GINSBURG: No, under this statute.

MR. ROMANO: They may well be deemed to have contributed under the Federal statute if they had discovered the presence of contamination on the property and did absolutely nothing about it, which the facts -- that's what the fact show.

JUSTICE GINSBURG: I thought there was -- discovery wasn't made until -- that your client wanted to do this building.

MR. ROMANO: Discovery by my client wasn't made, but we had found that there was -- we believe that certainly the Meghrigs' agents, their father and the contractor that was managing the property on their behalf, they are the entities that removed the underground tanks. And we have photographs which showed what that soil looked like. The soil clearly looked very heavily contaminated.

So, we believe that the Meghrigs knew or certainly should have known about the fact of contamination on the property. They just never --

JUSTICE GINSBURG: Then if you can go to my other question. What impeded you faced with this statute that says "may present" from beginning suit at the earliest possible time?

MR. ROMANO: We were faced with a situation where the issue was either go to Federal court and litigate this for opinion order, at the very minimum 90 days but more likely several months or years down the line, maybe all the way up to this Court before we could do anything about the property. Meanwhile my client --

JUSTICE GINSBURG: Well, not according to the Government's interpretation. The Government said as long as you did your cleanup within the 90-day period, as the Government reads the statute, you would be entitled to reimbursement. So, my question is why timely suit wasn't commenced and cleanup commenced instead of saying, we'll do the whole thing and then we'll attempt to sue for past --

MR. ROMANO: I think that the short answer to that one, Your Honor, is that at the time that my client found out about the contamination, he was more concerned about taking care of the problem as opposed to suing people for recovery of his cleanup costs.

JUSTICE SCALIA: That's a good answer.

MR. ROMANO: And -- thank you. (Laughter.)

CHIEF JUSTICE REHNQUIST: It may not win your case. (Laughter.)

MR. ROMANO: Well, the Government makes -- the Government's position is an interesting position because -- we don't agree with that, obviously, and the reason for that is, is that the Government says, okay, if you find contamination, what you do is you have to start providing notices to people, assuming you can locate all of those people, before you do any cleanup activities. Only you -- only after you provided notice to all of the defendants can you then follow with the filing of a lawsuit.

We believe that such a reading of the statute will really contravene the congressional purpose in enacting the statute which is if you have a condition which is by definition the worst type of environmental contamination, what you would want to do is clean it up and then work out the details as to who is responsible.

And I would say that principles of equity which govern the statute provide all of the necessary restrictions on enlarging this kind of action.

A district court on remand can decide and hold that we acted as an officious inter-meddlers. A district court can decide that the costs that we've incurred were not necessary, and the district court may decide that we set on our rights and laches is available.

Certainly I don't think people will be bringing those kind of lawsuits without -- if they didn't have any merit to them when they're facing with an attorney's fees and cost penalty in the event if they lose the lawsuit.

So, we believe that it is entirely appropriate for the Court to hold that a plaintiff may, in the limited circumstances where the contamination presents an imminent and substantial endangerment to health and the environment, do whatever is necessary to abate those conditions, and then sue under this statute to recover his costs. Thank you very much.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Romano. Mr. Zaimes, you have 2 minutes remaining.

REBUTTAL ARGUMENT OF JOHN P. ZAIMES ON BEHALF OF THE PETITIONERS

MR. ZAIMES: Thank you, Mr. Chief Justice. I'll cover only three points in that 2-minute time, if I may.

First, I had begun to discuss the cases, the line of cases, cited by respondent beginning with Porter v. Warner Holding and ending up more recently in Franklin v. Wynnette County.

Those cases are cited for the proposition that there was a broad equitable power in Federal courts that can be called on in this situation.

And if we look at Porter as the beginning of that line, Porter was a case in which the words of the statute were much different from those here.

Porter had a statute that allowed the court to issue an injunction or other order, significantly broader than what we have here.

And the court in that case looked at the legislative history and determined that the legislative history of that statute, the Emergency Price Control Act, was consistent with a reading that allowed the court, the lower court, to order the apartment owner to reimburse monies collected over the limit set by the Emergency Price Act.

In the Franklin case, there was no congressional guidance on the limitations of remedies under that statute.

Franklin arose under title 9 and the right of action had been found to be an implied right of action under Cannon v. City -- University of Chicago.

So, what the court determined was that there were four remedies available where Congress has not spoken as to the nature of the remedies.

Since Congress hadn't even expressly indicated the right of action, they hadn't indicated the remedies either.

Here we have an abundance of guidance. We have the language of the statute. We have legislative history of this and predecessor statutes and even of the CERCLA amendments in 1986, all of which point to a very limited reading -- limited availability of remedies under this citizen supervision.

And we have a comparable statute, RCRA, which, as Justice Ginsburg notes, has a full discussion of the kinds of limitations that are placed on plaintiffs seeking to recover their costs.

The second point I want to make with respect to the contumacious plaintiff example, we must remember that State law covers those contumacious plaintiffs in abundance, as does CERCLA in all but petroleum contamination cases.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Zaimes. The case is submitted.