Lead Opinion
J. Richard Furrer and Margaret L. Furrer appeal from an order of the District Court
I.
The Furrers own the Gravois Avenue property. The Browns and Fagases were owners of the site at times before the Fur-rers acquired the property, and Shell Oil Company at one time was lessee of the property and operated a service station there. The Furrers became aware in 1991 that the property was contaminated by petroleum, and they “were ordered to remediate the contamination by the Missouri Department of Natural Resources” (MoDNR). Complaint at ¶ 16, Furrer v. Brown, No. 4:93-CV-2276 (E.D.Mo. filed Oct. 22, 1993).
The Furrers sought to recover their remediation costs from the Browns, the Fa-gases, and Shell Oil, appellees here, alleging federal jurisdiction pursuant to 42 U.S.C. § 6972 (1988). Besides a RCRA count, the Furrers asserted three state common law theories of recovery. The District Court granted the appellees’ motions to dismiss, holding that the court did not have subject matter jurisdiction over the federal claim, and declining to exercise supplemental jurisdiction over the state law claims. The Fur-rers appeal. Because the dismissal for lack of subject matter jurisdiction was granted without reference to matters outside the pleadings, the appeal presents a question of law that we review de novo.
II.
The statute under which the Furrers invoked federal court jurisdiction is RCRA’s citizen suit provision, and reads in pertinent part as follows:
Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf—
(B) against any person ... including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment;
... The district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce [permits and other such requirements], to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste ..., to order such person to take such other action as may be necessary, or both....
42 U.S.C. §■ 6972(a)(1)(B) (1988) (emphasis added).
Section 6972 gives the federal courts subject matter jurisdiction to hear citizen suits where specific equitable remedies are sought: prohibitory or mandatory injunctive relief “to enforce,” “to restrain,” and “to order ... other action ... necessary.” The statute does not give the district courts express authority in citizen suits to award money judgments for costs incurred in cleaning up contaminated sites. Thus, if such a remedy is to be available, we must find either that Congress, by authorizing the district court “to order ... such other action as may be necessary,” id., implicitly created such a remedy, or that the “cause of action ... may have become a part of the federal common law through the exercise of judicial power to fashion appropriate remedies for unlawful conduct.” Northwest Airlines, Inc. v. Transport Workers Union of Am., AFL-CIO,
When considering the possibility that it was Congress’s intent to authorize a monetary remedy for private citizens when it enacted § 6972, or, more precisely, when it amended the statute in 1984,
A.
As discussed above, § 6972 on its face does not provide for the recovery of remediation costs by way of a citizen suit.
The Furrers argue that Congress, by giving the federal courts seemingly broad jurisdiction “to order [parties who have contributed to the contamination] to take such other action as may be necessary,” intended a person who has incurred remediation costs to have a cause of action under § 6972 to recover those costs from the responsible parties. The Furrers characterize this recovery as “equitable restitution” and ask that we find it to be a remedy within the scope of the statute.
We think the Furrers read too much into the phrase “to take such other action as may be necessary.” Giving the language a natural, unstrained reading, it appears to autho
As the Supreme Court repeatedly has said, we are to begin with “the statutory language, particularly ... the provisions made therein for enforcement and relief’ when determining “whether Congress intended to create a private right of action under a federal statute without saying so explicitly.” Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n,
Congress demonstrated its faculty for writing a statute to include a cause of action for recovery of cleanup costs when it drafted RCRA. Within that legislation, Congress provided that the administrator of the Environmental Protection Agency (EPA) or a state could recover from the owner or operator of an underground storage tank the costs incurred “for undertaking corrective action or enforcement action with respect to the release of petroleum from” such a tank. 42 U.S.C. § 6991b(h)(6)(A) (1988). Notably, Congress authorized no such recovery for present owners and operators against previous owners and operators who are responsible for petroleum leaks from underground storage tanks.
Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675 (1988 & Supp. V 1993), a later-enacted major federal environmental act, Congress provided that “[a]ny person may seek contribution from any other person who is liable or potentially liable” for response costs. 42 U.S.C. § 9613(f)(1) (1988). This cause of action for contribution is in addition to CERCLA’s citizen suit statute, which, much like the RCRA citizen suit statute, provides that any person may bring a civil action in federal court and gives the district court authority to enforce CERCLA regulations and “to order such action as may be necessary to correct the violation” of a CERCLA standard or requirement. Id. § 9659(c) (1988). Congress, knowing its CERCLA citizen suit provision did not extend the available remedies to include a cause of action for monetary recovery from other responsible parties, despite the broad “other action” language (which is also
Section 6972 is specific about the relief available under the statute. By its language, the statute authorizes injunctive relief, whether prohibitory (to stop generating hazardous waste) or mandatory (to comply with permits or regulations or to clean up hazardous waste). In other federal environmental legislation, Congress authorized suit for similar injunctive relief, but then specifically gave federal courts authority to hear claims for monetary recovery as well. “The comprehensive character of the remedial scheme expressly fashioned by Congress strongly evidences an intent not to authorize additional remedies.” Northwest Airlines,
B.
Although we are tempted to regard our discussion under Part IIA, supra, as disposi-tive of this case, fidelity to Cort requires that we next look at the legislative history of the 1984 amendment to § 6972 (clarifying the remedies available in citizen suits, see supra note 4) to see if we can discern any congressional intent regarding the remedy the Fur-rers seek. “Even settled rules of statutory construction could yield, of course, to persuasive evidence of a contrary legislative intent.” Transamerica Mortgage Advisors,
C.
Finding no congressional intent to create a private cause of action for the recovery of cleanup costs manifest in either § 6972 or its legislative history, we might, and probably should, end the inquiry here. See California v. Sierra Club,
RCRA itself states that the objectives of the Act “are to promote the protection of health and the environment and to conserve valuable material and energy resources,” and then sets forth eleven routes to that goal, none of which relate specifically to the citizen suit provision. 42 U.S.C. § 6902(a) (1988). The “national policy” statement accompanying the Act addresses only the reduction or elimination of “the generation of hazardous waste ... as expeditiously as possible,” and the appropriate treatment, storage, or disposal of “[wjaste that is nevertheless generated,” but does not speak specifically to already contaminated property or its remediation. Id. § 6902(b). The citizen suit provision itself “permits individuals to commence an action in district court to enforce waste disposal regulations promulgated under” RCRA. Hallstrom v. Tillamook County,
Looking at § 6972, we see that, notwithstanding the inclusion of this citizen suit provision in RCRA, the statute has provisions whose obvious goal it is to forestall citizen suits so that they become available only as a last resort. The § 6972 plaintiff must give sixty days notice to the EPA, the state, and the alleged violator before bringing suit. 42 U.S.C. § 6972(b)(1)(A) (1988). The purpose of the notice requirement is to “allow[] Government agencies to take responsibility for enforcing environmental regulations, thus obviating the need for citizen suits,” and to give the reputed violator the opportunity to correct his behavior so that it conforms with RCRA. Hallstrom,
The legislative history of the 1984 amendment to § 6972 supports our conclusion that Congress intended the section to further the enforcement of RCRA regulations, that is, the regulation of hazardous waste, and did not intend to give citizens a cause of action for recovery of costs incurred for the cleanup of hazardous waste sites when regulation has failed. “[T]he legislative history indicates an intent to strike a balance between encouraging citizen enforcement of environmental regulations and avoiding burdening the federal courts with excessive numbers of citizen suits.” Hallstrom,
According to the House Report, the 1984 amendment “confers on citizens a limited right under [§ 6972] to sue to abate an imminent and substantial endangerment.” H.R.Rep. No. 198, 98th Cong., 2d Sess., pt. 1, at 53 (1984), reprinted in 1984 U.S.C.C.A.N. 5576, 5612 (emphasis added). This language makes it clear that we should not be inclined to add to the list of remedies found in the statute.
The comprehensive structure of federal environmental legislation in general, as discussed supra, at 1095-96, also cautions against inferring a monetary remedy under § 6972. Numerous statutes that specifically authorize actions with such a remedy are already in place, further evidencing that the purpose of § 6972 was something else altogether.
The Furrers contend that allowing a cause of action to recover cleanup costs from those who have contributed or are contributing to contamination effectuates the purpose of RCRA and is an appropriate remedy within the rubric of § 6972’s “other action ... necessary.” As the argument goes, citizens like the Furrers will be encouraged to abate contamination voluntarily, because they then can sue under § 6972 to recover remediation costs for which they are not equitably responsible.
We cannot deny that the Furrers’ argument has a considerable surface appeal. We are mindful, however, that abatement of a hazardous waste spill can be ordered in diverse circumstances by a variety of federal and state authorities, and that liability for the remediation of contaminated property attaches, without regard to fault, to the then
In conclusion, we cannot say that the purposes of environmental law and of § 6972 would be served by providing for a monetary remedy in a citizen suit under § 6972. Thus the third Cort factor provides no assistance to the Furrers.
D.
We come now to the fourth Cort factor, which focuses on the relationship between federal law and state law and asks whether “the cause of action [is] one traditionally relegated to state law, in an area basically the concern of the States.” Cort,
Section 6972 has a savings clause, which preserves a person’s rights “under any statute or common law ... to seek any other relief.” 42 U.S.C. § 6972(f) (1988). The legislative history of the 1984 amendment to § 6972 reflects a debate in the House about the extent to which federal courts should assume jurisdiction over preserved supplemental state law claims. The majority committee report evidences an expectation that, the savings clause notwithstanding, courts will “exercise their discretion concerning pendent jurisdiction in a way that will not frustrate or delay the primary goal of this provision, namely the prompt abatement of imminent and substantial endangerments.” H.R.Rep. No. 198, 98th Cong., 2d Sess., pt. 1, at 53 (1984), reprinted in 1984 U.S.C.C.A.N. 5576, 5612. The committee minority wished to strip federal courts of jurisdiction to hear any supplemental state law claims brought with RCRA citizen suits. The minority was concerned that allowing adjudication of state claims with § 6972 suits would unduly burden the federal courts and slow down the primary goal of the statute: the abatement of imminent hazards. “Instead of ending the imminent hazard, federal judges will be trying to decide cumbersome questions of state law nuisance, trespass, and personal and property damage compensation.” Id. at 119, reprinted in 1984 U.S.C.C.A.N. at 5635. Clearly all committee members had concerns (although to different degrees) about federal courts losing focus and concentrating on peripheral issues related to state claims — such as apportioning fault so as to award contribution — instead of acting quickly to abate imminent hazards. Given the specific reservation of state remedies in § 6972(f), and given congressional concern that citizen suits not become bogged down in the quest for private state law remedies (such as the recovery of
E.
In sum, none of the four Cort factors tips the scales in favor of implying in § 6972 a cause of action to recover cleanup costs. In any event, as we intimated above, the Cort analysis no longer involves a balancing of the four factors; they now serve only as “guides to discerning” congressional intent.
III.
The Furrers commend to us the Ninth Circuit’s opinion in KFC Western, Inc. v. Meghrig,
In § 6973, entitled “Imminent hazard,” Congress has given the EPA administrator this authority:
Notwithstanding any other provision of this chapter, upon receipt of evidence that the past or present handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste may present an imminent and substantial endangerment to health or the environment, the Administrator may bring suit on behalf of the United States in the appropriate district court against any person ... who has contributed or who is contributing to such handling, storage, treatment, transportation or disposal to restrain such person from such handling, storage, treatment, transportation or disposal, to order such person to take such other action as may be necessary, or both.
42 U.S.C. § 6973(a) (1988). The RFC Western court summarily states that, “[bjecause Congress intended that citizen suits be governed by the same standards of liability as governmental actions, and because it worded the provisions almost identically, we choose to interpret similarly the relief available under the two provisions.” KFC Western,
The language in the legislative history upon which the Ninth Circuit (and the Fur-rers) rely is this: “[The 1984 amendment to § 6972] confers on citizens a limited right under [§ 6972] to sue to abate an imminent and substantial endangerment pursuant to the standards of liability established under [§ 6973].” H.R.Rep. No. 198, 98th Cong., 2d Sess., pt. 1, at 53 (1984), reprinted in, 1984 U.S.C.C.A.N. 5576, 5612. First of all, this language indicates that the right to sue is conferred on private citizens pursuant to the standards of liability developed under
In United States v. Northeastern Pharmaceutical & Chemical Co. (NEPACCO),
In United States v. Aceto Agricultural Chemicals Corp.,
Thus in both NEPACCO and Aceto, because the defendants did not raise the issue of subject matter jurisdiction and neither the district courts nor this Court addressed it sua sponte, the decisions reflect no consideration of the jurisdictional issue; instead, they simply assume subject matter jurisdiction sub silentio and deal with the merits of the EPA’s claims to recover cleanup costs. Now that the jurisdictional question is squarely before us, the opinions in NEPACCO and Aceto are not stare decisis on the issue, because the panels in those cases simply assumed, without deciding, that the federal courts are empowered by § 6973 to award the EPA the recovery of cleanup costs. Moreover, except for the KFC Western case, the Furrers have identified for us, and we have found, no cases specifically addressing the availability of a monetary remedy in § 6972 citizen suits since the 1984 amendment (or before 1984 for that matter) that have concluded that § 6972 provides such a remedy. There are several cases from federal district courts, however, that have decided as we do today. See, e.g., Portsmouth Redev. & Housing Auth. v. BMI Apartments Assocs.,
rv.
Our holding leaves the Furrers without a remedy under § 6972 for the recovery of the costs they have incurred in cleaning up their property. We are not unsympathetic to the Furrers’ case, but we cannot justify inferring a remedy under § 6972 for the recovery of
For the reasons stated, the judgment of the District Court is affirmed.
Notes
. The Honorable Carol E. Jackson, United States District Judge for the Eastern District of Missouri.
. We ordered taken with the case, and now grant, appellees' motions to strike the Furrers’ "Supplemental Appendix,” which was filed appended to their reply brief.
.In what was evidently intended as a preemptive strike, Shell raises in its brief to this Court (and then proceeds to argue against) the possibility that federal common law is an issue in this case. Shell contends that, because there is no statutory cause of action, federal common law is the only possible source of federal jurisdiction, but then argues there is no authority for a federal common law cause of action. In reply the Furrers, insisting that the remedy they seek is statutory, apparently agree with Shell: "There is no issue of general common law jurisdiction presented by” § 6972. Reply Brief of Appellants at 9. The Furrers have pinned their hopes on the statute, and they do not assert any theory of recovery based on federal common law, so we need not and do not discuss that source of authority.
. In 1984 Congress changed the language detailing the relief that the district court was empowered to grant from "to enforce such regulation or order, or to order the Administrator to perform such act or duty as the case may be,” 42 U.S.C. § 6972(a) (1982), to the present language, quoted above. Clearly the 1984 amendment expanded the available remedies; the question is the degree to which it did so.
. The Furrers' brief demonstrates their fundamental misunderstanding of this analysis. They contend that the lack of a federal common law issue in this case, see supra note 3, obviates the need for a review of the factors from Cort v. Ash,
. We resolve this appeal on the question of whether the cause of action for recovery of cleanup costs is available under § 6972(a)(1)(B) and pretermit other issues raised by the parties. The District Court concluded, and the appellees urge, that the Furrers did not allege the required “imminent and substantial endangerment to health or the environment” required by § 6972, since the site already has been cleaned up. We do not decide that issue. In its appellee's brief, Shell argues that petroleum leaks from underground storage tanks are not hazardous wastes within the meaning of § 6972; the United States as amicus curiae takes the opposite position. It is also unnecessary for us to resolve this question. Other amici, the State of Missouri and the Bi-State Development Agency of the Missouri-Uli-nois Metropolitan District, in their briefs take the Furrers' position on the issue on which we do resolve the case.
. We do not intend by this discussion to imply any views on the question whether petroleum leaking from underground storage tanks is hazardous waste within the meaning of § 6972. See supra note 6.
. Presumably the Furrers did not bring this suit for contribution under CERCLA because CERC-LA's definition of "hazardous substance” excludes "petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance.” 42 U.S.C. § 9601(14) (1988).
. The minority views on the bill reflect a similar understanding of a RCRA citizen suit: that it is "intended to be an emergency type action to abate imminent hazards.” H.R.Rep. No. 198, 98th Cong., 2d Sess., pt. 1, at 119 (1984), reprinted in 1984 U.S.C.C.A.N. 5576, 5635.
. Justices O’Connor and Scalia would require "an actual congressional intent to create a private right of action,” and believe the Cort analysis has been "effectively overruled" by subsequent Supreme Court opinions. Thompson v. Thompson,
Concurrence Opinion
concurring.
Judicial fathoming of Congressional intent is often a treacherous voyage. That is not so here. I wholeheartedly agree with Judge Bowman’s well-reasoned and carefully crafted opinion holding that Congress did not intend to create in § 6972 an implied private right of action for the recovery of cleanup costs. I join this opinion unreservedly for I find Judge Bowman’s application of the factors identified in Cort v. Ash,
The Ninth Circuit Court of Appeals in KFC Western, Inc. v. Meghrig,
Dissenting Opinion
dissenting.
For the reasons stated by the Ninth Circuit in KFC Western, Inc. v. Meghrig,