Furrer v. Brown

• Citation: 62 F.3d 1092
• Decision Date: 30 October 1995
• Docket Number: No. 94-3281,94-3281
• Parties: , 64 USLW 2122, 25 Envtl. L. Rep. 21,450 J. Richard FURRER; Margaret L. Furrer, Appellants, v. Donald F. BROWN; Dorothy J. Brown; Louis W. Fagas; Geraldine J. Fagas; Shell Oil Company, Appellees. Unknown Does, 1-100, Defendant. State of Missouri; Bi-State Development Agency; United States of America, Amicus Curiae.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1092

62 F.3d 1092

41 ERC 1033, 64 USLW 2122, 25 Envtl.

L. Rep. 21,450

J. Richard FURRER; Margaret L. Furrer, Appellants, v. Donald F. BROWN; Dorothy J. Brown; Louis W. Fagas Geraldine J. Fagas; Shell Oil Company, Appellees Unknown Does, 1-100, Defendant State of Missouri; Bi-State Development Agency; United States of America, Amicus Curiae.

No. 94-3281.

United States Court of Appeals Eighth Circuit.

Submitted April 12, 1995.

Decided Aug. 15, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Oct.

30, 1995. ^*

Eugene Schmittgens, Jr., St. Louis, MO, argued, for appellant.

John S. Metzger, St. Louis, MO, argued (Thomas M. Blumenthal, St. Louis, MO, on the brief of appellees Donald & Dorothy Brown; Thomas B. Weaver and Carol A. Platt, St. Louis, MO, with John S. Metzger on the brief of appellee Shell Oil Co.; and John T. Yarbrough and Tim A. McGuire, St. Louis, Missouri, on the brief of appellees Louis W. and Geraldine J. Fagas), for appellees.

Before FAGG and BOWMAN, Circuit Judges, and BENNETT, ^* District Judge.

BOWMAN, Circuit Judge.

J. Richard Furrer and Margaret L. Furrer appeal from an order of the District Court ¹ granting the separate motions to dismiss filed by Donald F. Brown, Dorothy J. Brown, Louis W. Fagas, and Geraldine Fagas, and by Shell Oil Company, on the Furrers' claim brought under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. Secs. 6901-6987 (1988 & Supp. V 1993), to recover costs incurred in cleaning up soil contamination caused by leaking underground gasoline storage tanks located at the property known as 4701 Gravois Avenue, St. Louis, Missouri. We affirm.

I.

The Furrers own the Gravois Avenue property. The Browns and Fagases were owners of the site at times before the Furrers 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 p 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 Fagases, and Shell Oil, appellees here, alleging federal jurisdiction pursuant to 42 U.S.C. Sec. 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 Furrers 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. ² See Christopher Lake Dev. Co. v. St. Louis County, 35 F.3d 1269, 1273 (8th Cir.1994).

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. Sec. 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, 451 U.S. 77, 90, 101 S.Ct. 1571, 1579, 67 L.Ed.2d 750 (1981). Federal common law is not an issue in this case, ³ and as explained in the discussion that follows we reject Sec. 6972 as a source of federal jurisdiction for the Furrers' cause of action.

When considering the possibility that it was Congress's intent to authorize a monetary remedy for private citizens when it enacted Sec. 6972, or, more precisely, when it amended the statute in 1984, ⁴ we are guided by the teachings of the Supreme Court. The "familiar test" of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), which places "the burden ... on [the Furrers] to demonstrate that Congress intended to make a private remedy available" such as the one the Furrers seek, ⁵ Suter v. Artist M., 503 U.S. 347, 363, 112 S.Ct. 1360, 1369, 118 L.Ed.2d 1 (1992), sets out four factors relevant to the search for an implied cause of action. First, we look at the statute to determine if the Furrers are in the class for whose benefit the statute was enacted, and then at the legislative history to see if it explicitly or implicitly shows an intent to create or deny the cause of action. Cort, 422 U.S. at 78, 95 S.Ct. at 2087. Third, we examine the proposed remedy in the context of the purpose of the statutory scheme, and finally we consider whether the cause of action is one traditionally a matter of state law, so that inferring a federal remedy would be inappropriate. Id.

A.

As discussed above, Sec. 6972 on its face does not provide for the recovery of remediation costs by way of a citizen suit. ⁶ Nevertheless, Congress's failure to include express authority for the district court to award monetary relief, "although significant, is not dispositive if, among other things, the language of the statutes indicates that they were enacted for the special benefit of a class of which [the plaintiff] is a member." Northwest Airlines, 451 U.S. at 91-92, 101 S.Ct. at 1580 (footnote omitted). Clearly, the Furrers as "citizens" are among the "any persons" who are authorized to bring suit for enforcement of RCRA's permits and regulations. The "benefit" of RCRA, however, inures to all citizens of the United States, and Sec. 6972 confers upon each of those beneficiaries the right to bring suit in the federal courts to compel enforcement of RCRA's provisions. Neither RCRA generally nor Sec. 6972 specifically was enacted for the "special benefit" of those owners of property who pay to remediate soil contamination that has resulted from leaking underground gasoline storage tanks and for which they claim no responsibility. In fact, a persuasive argument can be made that the Furrers are in a class of persons that RCRA and Sec. 6972 are directed against--the owners of a storage facility where hazardous waste has presented an imminent and substantial endangerment. See id. at 92, 101 S.Ct. at 1580 (declining to infer cause of action for employer to seek contribution from union under the Equal Pay Act and Title VII where "both statutes are expressly directed against employers"). We conclude that the language of Sec. 6972--benefiting the citizenry of the United States generally and endowing the federal courts with subject matter jurisdiction for a suit brought by "any person"--demonstrates that it was not enacted for the "special benefit" of those in the Furrers' circumstances.

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 Sec. 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 authorize federal courts to grant mandatory injunctive relief, that is, to order the responsible party to take action: to investigate a site, to remediate a site, and so forth. We do not think that "such other action as may be necessary" contemplates the payment of money to a party who already has cleaned up a contaminated site. Similarly, jurisdiction "to enforce" or "to restrain" does not encompass the authority to award monetary relief. "[W]hen legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies." Universities Research Ass'n, Inc. v. Coutu, 450 U.S. 754, 773 n. 24, 101 S.Ct. 1451, 1462 n. 24, 67 L.Ed.2d 662 (1981) (quoting National R.R. Passenger Corp. v. National Ass'n of R.R. Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974)); accord Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19, 100...