dissenting:
Because I believe that RCRA § 7002, 42 U.S.C. § 6972(a)(1)(B), does not contemplate actions for restitution when there is no “imminent and substantial endangerment” at the time of suit, I must dissent from the majority’s opinion.
The majority’s main argument is that because. the Eighth Circuit allowed the administrator to bring an action for restitution under § 697S, private citizens should be permitted to bring actions for restitution under § 6972(a)(1)(B) since those two sections are worded virtually identically. In United States v. Aceto Agric. Chemicals Corp., 872 F.2d 1373, 1383 (8th Cir.1989) (emphasis in original), the Eighth Circuit held that “RCRA’s ‘imminent and substantial endangerment’ language does not require the EPA to file and prosecute its RCRA action while the endangerment exists.” The court found that “in the context of a reimbursement action, this would be an ‘absurd and unnecessary’ requirement. The endangerment language is plainly intended by Congress to limit the reach of RCRA to sites where the potential for harm is great.” Id. at 1383. The court concluded that requiring an “imminent and substantial endangerment” at the time of suit would defeat RCRA’s purpose to “give broad authority to the courts to grant all relief necessary to ensure complete protection of the public health and the environment.” Id. (quotations omitted).
The Eighth Circuit’s decision assumes without deciding that RCRA § 6973 provides for reimbursement actions. Looking at the two issues presented in the instant action makes this clear. Those two issues are: (1) whether RCRA requires an “imminent and substantial endangerment” at the time of filing suit, and (2) whether § 6972 is limited to injunctive, rather than restitutionary, relief. Although the two issues are intertwined, allowing an action for restitution after a site has been cleaned up requires an affirmative answer to both questions. If the answer to either question is no, then the answer to the other question should also be no. Instead of addressing both questions under the statute, the Eighth Circuit assumed that RCRA permits reimbursement actions.
The majority adopts the Eighth Circuit’s decision in Aceto without discussing its assumption that § 6973 permits reimbursement actions. This approach undermines the plain language of § 6972(a)(1)(B). Therefore, I disagree with the majority’s unquestioning adoption of Aceto.1
*525The majority relies on the language in § 6972(a)(1)(B), allowing the district court to “restrain any person .. [or] order such person to take such other action as may be necessary, or both ...'to conclude that actions for reimbursement are contemplated by the statute. The majority finds KFC’s action for restitution permissible, because it concludes that the language, “such other action as may be necessary,” allows the district court to award-whatever’relief it deems necessary.
I disagree, however, because I believe that the language, “such other action as may be necessary,” does not contemplate actions for reimbursement. The legislative history suggests that reimbursement actions are not permitted and that an “imminent and substantial endangerment” must exist at the time of filing suit. The House Committee stated that citizens have “a limited right under Section 7002 to sue to abate an imminent and substantial endangerment.” H.R.Rep. No. 198, 98th Cong., 2d Sess. 53 (1984), reprinted in, 1984 U.S.C.C.A.N. 5576, 5612 (emphasis added). It also explains the primary goal of § 6972(a)(1)(B) as “the prompt abatement of imminent and substantial endangerments.” Id. (emphasis added). Therefore, the majority’s decision contravenes the plain language of the statute and the legislative history.
As to the “imminent and substantial endangerment requirement,” the language of the statute suggests that it must exist at the time the private, citizen files suit. Section 6972(a)(1)(B) allows suit against “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 which may present an imminent and substantial endangerment to health or the environment.” This unambiguous -language requires that the endangerment must be occurring at the time of filing suit. Only if the statute had read “may or may have presented” would it have implied that § 6972(a)(1)(B) permits reimbursement actions for an endangerment that someone had already cleaned up.
Moreover, the notice requirement undér § 6972 supports the requirement that an “imminent and- substantial endangerment” must be present at the time of filing suit. Under § 6972(b)(2)(A)®, a private citizen seeking to file suit under § 6972(a)(1)(B) must give notice'to the administrator and cannot file suit for 90 days after giving such notice. The purpose of this notice requirement is to give the administrator the opportunity to bring suit itself, since under § 6972(b)(2)(B), a private citizen cannot bring suit if the administrator has initiated its own suit. Thus, the notice requirement and the fact that the administrator has the first and exclusive opportunity to bring suit suggest that § 6972 does not permit reimbursement actions and requires, an “imminent and substantial endangerment” at the time of filing suit.
The majority argues that “there is no inconsistency between a notice requirement and recovery of clean-up costs from past polluters.” See Opinion at 522. It finds that notice in a reimbursement action “still serves certain interests of the EPA and the states by notifying them that endangerment was corrected and that the polluters are being held accountable.” Id. However, the majority stretches the effects of the notice requirement too far, since all notice according to the majority’s policy rationales really accomplishes is informing the EPA that certain alleged polluters are being sued by a private citizen. In addition, the majority states that “the Administrator must provide immediate notice of hazardous waste endangerment to the appropriate local governmental agencies, see 42 U.S.C. § 6973(c), and no courts have treated this notice requirement as a basis for refusing to allow governmental restitution actions.” See Opinion at 522. However, this rationale is inapposite, since the purpose of the notice requirement in § 6972(a)(1)(B) is to -allow the administrator to bring suit instead of the private citizen. See H.R.Rep. No. 198, 98th Cong., 2d Sess. 53 (1984), re*526printed in 1984 U.S.C.C.A.N. 5576, 5612 (The private citizens’ right to sue “can only be exercised if the Administrator (following notice of the intended litigation) fails to file an action under 7003.”). In contrast, the purpose of the notice requirement in § 6973(c) is not to have the local government agencies bring suit before the administrator. Thus, I believe that the majority uses faulty reasoning to obfuscate the fact that the notice requirement for private citizens shows that § 6792(a)(1)(B) does not permit reimbursement actions and requires an “imminent and substantial endangerment” at the time of filing suit.
The majority also dismisses without support the fact that RCRA lacks any statute of limitations for actions under § 6972(a)(1)(B). Because no statute of limitations exists under § 6972(a)(1)(B), if reimbursement actions are allowed, private citizens, like the KFC owners in this case, can bring suit against past contributors many years after cleaning up the contamination. This case is a prime example. The KFC owners brought the property from the Meghrigs in 1975. KFC did not discover the contamination until October 1988. KFC cleaned up the property in 1989. Then in June 1990, it asked the Meghrigs to reimburse its costs. Not until 1992 did KFC bring suit under RCRA. This course of events illustrates the problem that if reimbursement actions are permitted, private citizens will be able to sue past contributors many years after the contamination and clean-up. Thus, the lack of a statute of limitations supports the fact that § 6972(a)(1)(B) does not contemplate reimbursement actions when there is no “imminent and substantial endangerment.”
The majority recognizes the lack of limitations period and attempts to reconstruct Congressional intent to conclude that Congress did not intend for RCRA to have a statute of limitations. It notes that “Congress provided a limitations period in other statutes such as [CERCLA] when it expressly authorized actions to recover response costs.... ” See Opinion at 522. It uses this fact to conclude that “[i]nstead, in RCRA Congress provided that private plaintiffs retain the right ‘to seek any other relief available ‘under any statute or common law” [under § 6972(f) ].” This conclusion is illogical — this' is not an “instead” and does not indicate that Congress chose a statute of limitations period for CERCLA but not for RCRA. As the majority concedes, CERCLA included a statute -of limitations “when it expressly authorized actions to recover response costs.” Id. (emphasis added). This does not imply that because Congress included no statute of limitations in § 6972(a)(1)(B), it provided for reimbursement actions brought by private citizens at any time, unless barred by laches. Id. In fact, the lack of limitations period in RCRA in contrast to the limitations period in CERCLA and the express authorization for recovery .of response costs suggests that Congress did not contemplate reimbursement actions in RCRA.
Furthermore, the majority finds support in § 6972(f), which provides that
[n]othing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any standard or requirement relating to the management of solid waste or hazardous waste, or to seek any other relief (including relief against the Administrator or a state agency).
§ 6972(f) (emphasis added). This section does not limit the type of relief available; however, it in no way suggests that a private citizen has a cause of action under RCRA for reimbursement of clean-up costs from a prior “imminent and substantial endangerment.” It simply gives a person the right to bring any claim allowable under state or federal law.
The majority then states that it has “found no principled reason to distinguish between the relief available to the Administrator and that available to private plaintiffs under the virtually identical statutory provisions.” See Opinion at 523. However, other than the Eighth’s Circuit’s decision in Aceto, which assumes reimbursement actions are permissible, the majority has offered no support for its conclusion that an “imminent and substantial endangerment” need not exist at the time of filing suit.
*527The majority’s citation to United States v. Price, 688 F.2d 204 (3d Cir.1982) is wholly unpersuasive. In Price, the court did state that in the case before it “[pjrompt preventive action was the most important consideration. Reimbursement could thereafter be directed against those parties ultimately found to be liable.” Id. at 214. However, the court did not state that reimbursement would be available under RCRA § 6973. In addition, the court also stated that RCRA “authorizes the clean-up of a site, even a dormant one, if that action is necessary to abate a present threat to the public health or the environment.” Id. (emphasis added). It also cited the Eckhardt Report which describes § 6973:
The section’s broad authority to “take such other actions as may be necessary” includes both short- and long-term injunc-tive relief, ranging from the construction of dikes to the adoption of certain treatment technologies, upgrading of disposal facilities, and removal and incineration. Imminence in this section applies to the nature of the threat rather than identification of the time when the endangerment initially arose. The section, therefore', may be used for events which took place at some time in the past but which continue to present a threat to the public health or the environment.
Id. at 213. Therefore, Price does not support suits under § 6973 for reimbursement when no “imminent and substantial endangerment” exists at the time of filing.
The majority also summarily rejects district court cases which have dismissed cases for reimbursement under § 6972(a)(1)(B). See Kaufman and Broad-South Bay v. Unisys Corp., 822 F.Supp. 1468, 1477 (N.D.Cal.1993) (“While injunctive relief is available under § 6972(a)(1)(B), the statute does not provide a private action for damages. Nor should one be implied.... [Although the Eighth Circuit allowed a reimbursement action under § 6973, other] cases persuasively argue against implying a private remedy for damages or restitution.”); Commerce Holding Co. v. Buckstone, 749 F.Supp. 441 (E.D.N.Y.1990) (injunctive relief available under § 6972(a)(1)(B) not damages and court will not imply right to private action for damages). Although these case are more directly on point because they interpret § 6972(a)(1)(B), the statute at issue in this case, the majority dismisses them and chooses to follow Aceto from the Eighth Circuit which involved § 6973.
The majority also finds Walls v. Waste Resource Corp., 761 F.2d 311 (6th Cir.1985), and Environmental Defense Fund, Inc. v. Lamphier, 714 F.2d 331 (4th Cir.1983), unpersuasive because they addressed actions brought under the predecessor to § 6972(a)(1)(A), “which authorized actions to ‘enforce’ a requirement against any person alleged to be currently ‘in violation’ of the requirement.” See Opinion at 523. While the majority is correct that these cases did interpret another subsequently amended statute, it fails to recognize that the main difference between the prior statute and § 6972(a)(1)(B), the statute at issue in this case, is that under § 6972(a)(1)(B), private citizens can sue past contributors. This allows private citizens to require past contributors to clean-up sites, even if those past contributors are no longer contributing to the “imminent and substantial endangerment.” It does not, however, imply that private citizens can sue past contributors for reimbursement. Thus, while Walls and Environmental Defense Fund do not directly support the fact that § 6972(a)(1)(B) does not contemplate reimbursement actions, the fact that courts under § 6972(a) (now amended and § 6972(a)(1)(A)) would not imply private rights of action for damages indirectly could lend credence to the theory that those actions should not be permitted under either § 6972(a)(1)(B) or § 6973.
The majority’s final arguments in favor of reimbursement actions- under § 6972(a)(1)(B) are based on public policy. It recognizes that private citizens may not have time to bring actions for a mandatory clean-up injunction against past polluters before cleaning up as ordered by the government. This may be true, but we should not make a legislative determination that because some private citizens will not have time to bring suit before cleaning up as ordered, reimbursement actions should be implied under *528§ 6972(a)(1)(B). In addition, there is nothmg in the record in this case that indicates that KFC could not bring suit against the Me-ghrigs before clean-up at the time they discovered the contamination. The majority speculates — theoretically, one could say just as easily that had KFC provided the EPA with notice at the time it discovered the contamination, the EPA would have brought suit against the Meghrigs and ordered them to clean-up. Finally, the majority’s policy considerations do not apply at all to § 6973. While normally policy considerations need not support another statutory provision, in this case, in which the majority heavily relies on the Eighth Circuit’s decision to allow the administrator to sue for reimbursement under § 6973, it seems that some of the majority’s policy concerns should apply to § 6973 as well, especially since the Eighth Circuit simply assumes that reimbursement actions are permitted under § 6973.
In conclusion, I understand the majority’s desire to hold contaminators accountable. In this case, however, in which KFC failed to bring suit before clean-up, RCRA does not offer them a remedy. It is unfortunate in a case such as this that neither CERCLA nor state statutory schemes provide relief for KFC because the substance found at the site was petroleum. But, this is an issue that Congress should address. Maybe restitu-tionary actions under RCRA are necessary and practical, but it is not something that Congress has thus far enacted into legislation.
I would affirm the district court’s dismissal of the amended complaint.