Re-Exploring Contribution Under RCRA's Imminent Hazard Provisions

75 Pages Posted: 15 Jan 2009  

Kenneth Kilbert

University of Toledo College of Law

Abstract

Allocation of environmental cleanup costs among responsible parties, via contribution or otherwise, is a key feature of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The U.S. Supreme Court last year in Atlantic Research once again made clear that a responsible party may use CERCLA to force other responsible parties to share responsibility for cleanup costs at contaminated sites. The "imminent hazard" provisions of the Resource Conservation and Recovery Act (RCRA), like CERCLA, are used by the government and private parties to make those responsible for the pollution bear the costs of cleaning up contaminated sites. Yet, unlike in CERCLA cases, courts generally have ruled that defendants in RCRA imminent hazard cases have no claim under RCRA by which they can seek to force other responsible parties to share the cleanup responsibility.

This article concludes that the prevailing view is wrong and that contribution is authorized in RCRA imminent hazard cases expressly, impliedly and as a matter of federal common law. Using Atlantic Research as a prism, the article illuminates how lower courts have misconstrued Court precedents as foreclosing contribution under RCRA and fallen prey to the "one-Congress fiction" to the exclusion of other more telling indicia of statutory interpretation. The article also notes a flaw in the Court's test for implying a right of contribution and taps the roots of contribution to propose a refined approach. Urging that contribution promotes fairness, settlements and private cleanups and that the availability of contribution should not depend on whether a plaintiff chooses to sue under CERCLA rather than RCRA, the article suggests a framework for addressing key issues that RCRA contribution claims may present.

Keywords: RCRA, contribution

JEL Classification: K32

Suggested Citation

Kilbert, Kenneth, Re-Exploring Contribution Under RCRA's Imminent Hazard Provisions. Nebraska Law Review, Vol. 87, 2008; University of Toledo Legal Studies Research Paper No. 09-01. Available at SSRN: https://ssrn.com/abstract=1328053

Kenneth Kilbert (Contact Author)

University of Toledo College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States
419-530-5597 (Phone)

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