Amicus Curiae Brief — Meghrig v. KFC Western, Inc.

No. 95-83

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

Alan Meghrig

and Margaret Meghrig,

Petitioners

vs.

KFC Western, Inc.,

Respondent

09500 FOR= RAED aSSUO—BRIST

#83 AMICUS CURIAE BRIEF OF

SOUTHERN CALIFORNIA SERVICE

STATION ASSOCIATION

Dimitri G. Daskalopoulos

3 Church Circle

Suite 500

Annapolis, MD. 21401

(301) 261-8480

Counsel of Record

for Amicus Curiae

BEST AVAILABLE COPY

1. Whether the citizen suit provision

of RCRA, 42 U.S.C. 6972 (a)(1)(B),

which authorizes district courts to

restrain persons who have contributed

to contamination or to ‘order such

persons to take such other action as

may be necessary", also authorizes a

private party suit for reimbursement

of clean up costs, despite the absence

in RCRA, unlike CERCLA and other

statutes of any express language

authorizing such an action.

2. Whether the citizen suit provision

of RCRA, 42 U.S.C. 6972 (a)(1)(B),

which only permits suits against

persons who have contributed to the

generation, transport or disposal of

solid or hazardous waste which may

present an imminent and substantial

endangerment to health or the

environment” authorizes a citizen suit

for contamination that vas fully

remediated at least 3 years before the

action was commenced.

TABLE OF CONTENTS

Questions Presented. I

Table of Contents... II

Table of Authorities.. III

Interest of Amicus and

Summary of Argument... 1

ARGUMENT....«.«.«-. 12

I. The 9th Circuit Decision is Based

upon Erroneous Assmptions

20000

II. The Plain Langauge of the Statute

5 18

III. Nothing In The Legislative

History Supports the Creation of This

Implied Cause of Action

5 „ 423

IV. If Such a Cause of Action Exists,

It Is Limited To Imminent and

Substantial Endangerments

YT

V. Conclusion

see 34

California v. ARC America

490 U.S. 93 (1989)... 43

Campbell v. Hussey

368 U.S. 297 (1961)....9

Cippolone v. The Liggett Group

510 U.S.» 112 S.Ct. 2608..32,33

Darling v. Mobil Oil Corp.

864 F.2d 981 (2nd Cir. 1989)...37,38

Esso Standard Oil Company v. Dept. of

Consumer Affairs

793 F.2d 431 (lst Cir. 1985)

.34,35,36,37,38

Jiminez v. BP Oil Co.;

853 F.2d 268 (4th Cir. 1988)....3,4

Lippo v. Mobil Oil Corp.

776 F.2d 706, (7th Cir. 1985)... 14

Morales v. Trans World Airlines,

510 U.S. ,112 S.Ct. 2031 (1992).. 12

Q*Melveny and Myers v. FDIC

512 US „ 129 L.Ed 2d 67 (1994)

„„ 00% ee eee, 17, 39

Shaw v. Delta Airlines

463 U.S. 85 (1985)...... 11, 12

Slatky v. Amoco Oil Co.,

830 F.2d 476(3rd Cir.in banc 1987)

966560600

Wingard v. Exxon Co. USA,

819 F.Supp 473 (D. S.C. 1993)

„0 %%% %% %%% „%%% %%% %%% %%% %% %%„%6 43

STATUTES & LEGISLATIVE HISTORY

15 usc 2802 (a)... 522 6000547

15 USC 2802 (b)......... 5

15 USC 2802 (b)(2)(a) ..-8

15 USC 2802 (b)(2)(C)....7

15 USC 2802(c) (11) „„ „ „ set

15 usc 2805 eseceecececeses

15 USC 2800hͥ 43.628,29

1978 U.S.Code Cong. & Ad. News 873

„ „„ „„ „„ „„ „„ „„ „ „„ „% „„ „„ „ „ „ „„ „ 20,27, 29, 30

Cong. Record

April 5, 1977 p- 10378,83 eeeee

25,26

Hearings on 4HR13000 before the

Subcommittee on Energy and Power of

the Committee on Interstate and

Foreign Power (94th Cong., 2d Sess.),

- 6 6 6 6 6 62425

Public Law No. 103-371(1994)

. . 13,15, 20

VA. CODE ANN. 59.1-21.14..... 23

VA. CODE ANN. 59-1.21.15......24

MISCELLANEOUS

1994 National Petroleum News Factbook.

„ „„ „ „„ „„ „% „„ „ „„ „ „„ „„ „ „ „6 („„ 2

Judicial Interpretation of the

Petroleun Marketing Practices:

Conflict and Diversity." 32 Emory

L. J. 273 (19833 1

L. Tribe,

2nd Bd 19986ꝶù9ʒe2e2e22 . ẽ 31, 32

STATEMENT OF THE CASE

Amici hereby adopt the statement

of the case as shall be set forth in

Petitioner's brief on the merits.

INTRODUCTION AND INTEREST OF AMICUS

Amicus, the Southern California

Service Station Dealers Association,

represents the interests of gasoline

retailers throughout the region, a

region which is the largest single

petroleum market in the world.

The activities of the gasoline

retailers represented by the

Association have been extensively

regulated by RCRA since 1984

Amendments became effective.

The interpretation of RCRA,

especially with respect to underground

storage tanks , is of tremendous

concern to the Association.

If the interpretation of the 9th

Circuit is upheld, the practical

impact on our members would go far

beyond the legal implications.

In particular, if upheld, the

ruling would hurt our members ability

to obtain investment capital, and

would substantially drive up our costs

of dealing with the RCRA regulated

substances that are at the heart of

the daily operation of a modern

service station.

Moreover, if upheld, the ruling

would effectively repeal EPA's newly

promulgated underground tank lender

liability rule. 60 Fed. Regis. 46692

(Sept. 7, 1995).

EPA explained the need for the

rule:

" Until now, EPA believes that

concerns over environmental liability

have made a significant number of

lenders reluctant to make loans to

otherwise credit-worthy owners and

operators of UST's. The free flow of

credit to UST owners (many of whom are

small entities and that may rely on

secured financing mechanisms for

capital){such as our members},

is expected to assist UST owners and

operators in meeting their obligations

to upgrade, maintain, or otherwise

comply with RCRA Subtitle I and other

environmental requirements.

Conversely, the lack of such

capital may adversely affect the

ability of an UST owner to meet its

obligations under subtitle I with

concomitant adverse environmental

impacts from UST's and UST systems,

that are out of compliance due to the

lack of financing to make the

necessary improvements. 60 Fed. Regis.

at 46692, 46693.

It is extremely important that

the Court be aware that the major

reason EPA believes the tank lender

liability rule will withstand scrutiny

is the absence of a private damage

action under RCRA subtitle I; whereas

a similar rule under CERCLA was struck

down by the D.C. Circuit in Kelley,

et.al. v. EPA, No. 93-1312, 23 F.3rd

132.

EPA explains:

The Court held that "EPA lacked

statutory authority to restrict by

regulation private rights of action

under the statute....

Whereas CERCLA contains a provision

regarding private rights of action,

there is no explicit provision for

private rights of action contained

under RCRA Subtitle 1.

This ruling reverses that well

settled principal, a principal that

has been relied upon by both

regulators and the regulated

community.

The importance of the rule to our

members, a rule put in jeopardy by the

9th Circuit ruling, compels us to seek

reversal.

A review of the history of

regulation of underground’ storage

tanks, shows why creation of this new

federal cause of action by the 9th

Circuit is particularly inappropriate.

Prior to 1983, gasoline

underground storage tanks were largely

out of sight and out of mind.

Those instances where leakage had

occurred were dealt with under state

law, under a variety of theories,

ranging from strict liability, See,

e.g., Yommer v. McKenzie, 255 Md. 220,

257 A.2d 138 (Md. 1969), to trespass

and nuisance.

A series of highly publicized

leaks, in particular, one at Canoe

Park, Rhode Island, that ended up on

the TV show "60 Minutes”, spurred

calls for Congressional action.

Members of Congress were told by

the EPA that it lacked authority under

existing statutes to reembodied

leaking underground storage tanks

("LUSTS").

In particular, Superfund (CERCLA)

could not be used, because gasoline

falls within the “petroleum exclusion”

found at 42 U.S.C. 9614. See

generally, Wilshire Westwood

Associates v. Atlantic Richfield Co.,

881 F.2d 801 (9th Cir. 1991).

As a result, two bills amending

CERCLA were introduced in that 98th

Congress, H.R. 4761 by Rep. Ritter,

and S. 2513 by Sen. Durenberger, that

shared two common objectives:

(1) to repeal the petroleum exclusion

and allow Superfund authority to be

used in leaking tank cases and (2) to

authorize EPA to establish regulations

for UST's.

Amicus, represented by Counsel of

Record, and our national organization,

the Service Station Dealers of

America, were key players in the

ensuing legislative debate.

The industry viewed repeal of the

petroleum exclusion as a costly

disaster in the making. If gas

stations were hung with the "Superfund

Site” label, investment capital and

liability insurance would disappear,

and the cost of handling our products

would skyrocket.

On the other hand, regulation was

viewed as a sensible step.

As a result, a consensus was

reached which enabled a _ regulatory

program to be established under

Subtitle I of RCRA created by the 1984

Amendments. See generally, House

Report 98-1133, 98th Cong., 2nd Sess.

(1984).

Nevertheless, a Congressman or

Senator with a tank leak in his or her

district could not call EPA and

request a federal response to a tank

leak.

The next Congress saw proposals

to partially lift the petroleum

exclusion, 42 USC 9614, by defining

releases from petroleum underground

tanks as hazardous substances. See,

Section 101 of HR 2560 (99th Cong. Ist

Session) (by Rep. Florio).

r BO EEE EE

As with the proposals to repeal

the petroleum exclusion in its

entirety, the Florio proposal was

killed in subcommittee, despite the

fact that Rep. Florio vas the

Chairman.

It is instructive to note that

had any of these proposals —

then a federal cause of action for

cost recovery would exist.

The fact that they did not pass

shows that the 9th Circuit ruling

lacks merit.

The 99th Congress again decided

not to subject this critical industry

to the Superfund Stigma a

Under Section 205 of the 1986

Superfund Amendments and

Reauthorization Act (SARA) a

comprehensive financial responsibility

scheme was established, along with

creation of the federal leaking

underground storage tank trust fund.

See, 42 U.S.C. 6991b.

Although a Superfund bill was

used as the vehicle, the fund was

created under RCRA, primarily because

of the desire to keep tanks out of the

mess that Superfund had turned into.

See generally, House Report # 99-962,

(99th Cong. 2d Session) (The

conference report on SARA.)

The net result of the legislative

debate was to create a comprehensive

regulatory scheme, See 60 Fed. Regis.

46693- 46694, and 40 CFR 280, 281,

that EPA was authorized to, and in

fact has, “franchised” to the states

10

under 42 USC 69910.

For purposes of this case, the

key provisions are those dealing with

corrective action, financial

responsibility, and the federal and

state funds.

EPA's financial responsibility

regulations (40 CFR part 280 subpart

H) require UST owners and operators to

maintain an annual aggregate of

financial assurance of 1 million or 2

million, depending on the number of

UST's owned.

The method of demonstrating

financial assurance most relied upon

nationwide is the 41 state tank trust

funds.

California has a tank fund set up

on the authority of the Section

11

25299.10 of the Health and Safety

Code.

That fund, like others, was set

up because of the unavailability of

insurance, see, Cal. Health & Safety

Code 25299.10 (b)(4) and provides

reimbursement for eligible claimants.

It was also designed so that

California could obtain its “tank

franchise” from EPA, and enacted to

further

" the interest of the people of the

state in order to avoid

direct federal

regulation, of persons already subject

to state law...Cal. Health & Safety

Code 25299.10 (b)(10).

The 9th Circuit was wrong to find

an implied federal cause of action in

this area, which has always been a

matter of state law.

12

As a threshold matter, SCSSA

believes the time has come for the

Court to refine the analysis under

Cort v. Ash 422 U.S. 66 (1975), as to

when an implied cause of action is

available under a federal statute.

Specifically, we believe that

where the statute does not expressly

provide for the cause of action or

relief sought, there must exist a

clearly articulated and affirmatively

expressed intent in the legislative

history to affirmatively create such a

cause of action.

If this threshold inquiry is not

met, then federal courts should not be

required to engage in the analysis

under the other three factors

enunciated in Cort.

13

As demonstrated, infra, this test

cannot be met, therefore then decision

below should be reversed on this basis

alone.

I. The 9th Circuit Decision is Based

Upon Erroneous Assumptions

The basis of the 9th Circuit

decision is an assumption that to rule

against an implied right of action for

contribution under RCRA would leave

the plaintiffs without a remedy, and

thus would be "bad public policy”.

The fact is that state law has

always provided the remedies for our

members, who have more experience with

petroleum contaminated properties than

anyone else.

More importantly, due to the

requirements of RCRA that underground

tank owners and operators be able to

14

demonstrate financial responsibility ,

(See, 40 CFR Part 280 Subpart H), and

the unavailability of underground tank

insurance for small businesses such as

those operated by our members ( See,

Federal Register of Dec. 23, 1991,

delaying starting date of financial

responsibility regulations),

California and 41 other states have

created underground tank clean up

funds.

They are designed to reimburse

petroleum tank clean up costs such as

those at issue in this case.

The 99th Congress used the

Superfund reauthorization process to

create a leaking underground storage

tank (LUST) trust fund in RCRA, by

amending Subtitle I.

15

The statute expressly limits the

right of cost recovery from the

federal fund to EPA or the states.

Neither service station dealers,

who pay the tax that finances the

fund, nor any other private party are

allowed to tap into the federal fund

for reimbursement, rather cost

recovery is limited to EPA and the

states. 42 U.S.C. 6911b(6) (a).

The reimbursement issue has quite

properly been handled by the states,

and claims for reimbursement have

been, and continue to be made to state

tank funds in California and 41 other

states, and the full range of legal

remedies under state law will continue

to be available to our members, who

buy more contaminated property than

16

anyone else, as well as to others.

What the 9th Circuit majority

saw as bad public policy, was in fact

a carefully crafted legislative

response, that has created an award

winning program and a model federal -

state partnership.

In this case, the bad public

policy would come about through

legislating from the bench, based upon

the erroneous assumption that the

Respondent, or similarly situated

persons would be left without a

remedy.

The second erroneous assumption

made by the 9th Circuit majority is

that the same remedies available to

the EPA Administrator should also be

available in a citizens suit. 49 F.3rd

17

@ 521-522.

In Furrer v. Brown, 62 F.3rd

1092, 1100, the 8th Circuit aptly

described this argument as a non

sequitur.

As previously noted, the 1986

Superfund Amendments created the

federal Underground Storage Tank Trust

Fund, but limited cost recovery to

costs incurred by the Administrator

or by a State” . 42 USC 6991b (6) (a).

Neither the general language of

RCRA, nor the specific language of the

Underground Tank Program created by

Subtitle I thereof; authorize the

relief sought by the Respondent.

Il. THE PLAIN LANGUAGE OF THE STATUTE

In pertinent part, 42 U.S.C.

18

6972(a)(1)(B) allows any person to

maintain a civil suit :

on his own behalf against any past

or present generator, transporter or

past or present operator of a

treatment, storage or disposal

facility who has contributed or is

contributing to the past or present to

the past or present handling, storage,

treatment or disposal of any solid or

hazardous waste

imminent and substantial endangerment

to health or the environment...

The district court shall have

jurisdiction to ... enforce permits

and other requirements, to restrain

any person who is contributing to the

past or present handling, storage,

treatment, transportation or disposal

of any solid or hazardous waste...

The 9th Circuit majority

attempted to support its holding by

relying on the term “order such

person to take such other action as

may be necessary “ with respect to

solid or hazardous waste that is

19

posing an imminent and substantial

endangerment to health or the

environment.

We believe the key is the term

“necessary”.

SCSSA fails to see how it is

“necessary” to award damages under

federal law in order to have a

potentially responsible party abate an

imminent and substantial endangerment.

In its analysis of the Cort v.

Ash factors in Furrer, the 8th Circuit

noted that a persuasive argument can

be made that the Furrers, (as well as

respondent KFC Western herein), are in

a class of persons that 42 USC 6972 is

‘directed against - owners of a storage

facility where hazardous waste has

presented an imminent and substantial

20

endangerment. 62 F.3rd @ 1092.

The key point is the carrot of a

potential damage award under RCRA is

not what would motivate a service

station operator or owner of a leaking

tank to take action; it is the stick

of “corrective action” mandated by 42

U.S.C. 6991b(h)(2) et. seg.; which is

backed up by the threat of heavy fines

and even criminal prosecution in some

cases under state (See, e.g. Cal.

Health and Safety Code Sec. 25299) or

federal law if the action is not

taken.

Thus, to characterize potential

damage awards made by federal courts

‘under RCRA as “action necessary”

defies logic and common sense.

Additionally, to the extent that

21

“carrots” are relevant at all, those

carrots exist in the form of the

ability of owners and operators who

have complied with the applicable usr

regulations to seek reimbursement

under state funds.

We would also note that the 9th

Circuit fails to take account of the

fact that there are thousands of

orphan tank sites where a responsible

party either cannot be found, or those

that can be found lack the ability to

pay.

In these cases the citizen suit/

damage carrot is illusory, and

Congress did not delude itself into

thinking that citizen suits seeking

damages from non-existent or

incapacitated parties are “necessary”

22

to fulfill the statutory objective.

Instead, Congress created the

"LUST Trust Fund“, in large part to

deal with such orphan sites.

The fact that a private party has

no right to tap into the federal Trust

Fund is telling evidence of two facts:

(1) that the federal cause of action

implied by the 9th Circuit does not

exist and (2) that an implied federal

cost recovery cause of action can not

be justified on the basis that it is

“action necessary" to ensure the

abatement of imminent and substantial

hazards to health or the environment.

Simply put, if Congress had

intended to allow the relief sought,

it would have done so in the plain

language of the statute.

23

The failure of efforts to do so

such as the effort to repeal the

CERCLA petroleum exclusion failed.

Significantly, in the same

legislation that created the federal

tank fund, the 1986 Superfund

Amendment and Reauthorization Act,

(SARA), Congress expressly provided

that private parties such as

Respondents could seek cost recovery

for necessary costs of response |

incurred by any other person

consistent with the National

Contingency Plan. 1 42 U. 8. C.

6907 (a) (2) (8).

As discussed in detail, supra,

during that debate, Congress rejected

proposals that would have partially

lifted the petroleum exclusion „ 42

24

—ů — ine 2

USC 9614, to Superfund by defining

releases from petroleum underground

tanks as hazardous substances. See,

Section 101 of HR 2560 (99th Cong. lst

Session) (by Rep. Florio).

Had the petroleum exclusion to

Superfund been fully or partially

removed, then CERCLA would provide the

cause of action sought by Respondents,

and implied by the 9th Circuit.

This fact lends further support

to view taken by the 8th Circuit in

Furrer; and Clearly demonstrates that

the opinion below must be reversed.

III. NOTHING IN THE LEGISLATIVE

HISTORY SUPPORTS THE CREATION OF

RCRA has contained a citizen suit

provision dating back to its original

enactment in 1976.

25

According to the discussion of

the original citizens suit provision

found in Senate Report 94-988, 94th

Cong. Second Session e p.18:

The Committee drew on the

similar provisions of the Clean Air

Act of 1970 and the Federal Water

Pollution Control Act Amendments of

1972.

The bill provides for citizen

participation in the enforcement of

requirements and regulations

established under this Act.

restricted to actions where violations

of standards or regulations or a

failure on the part of officials to

perform mandated action is 41 leged.

Time is provided between notice

and filing of the action to give the

State or the Administrator an

opportunity to act on the alleged

violation.”

We believe two points are

critical here.

First, from its inception, the

RCRA citizen suit provision has been

“carefully restricted".

26

Those “careful restrictions” have

never been removed by Congress,

despite efforts to do so.

Even a cursory review of the

Conference Report to the 1984

Amendments reveals that :

The Senate Amendment contains

a similar provision limiting

citizens’ right of action ...

- The Conference

Substitute adopts the Senate Amendment

with additional limitations on

citizens’ right of action

House Report # 98-1133 (98th Cong. 2d

Session, 1984).

If Congress has removed these

" careful restrictions and

" additional limitations ", then the

source of that removal is absent from

the legislative history.

Given the detailed list of

restrictions spelled out in the

Conference Report, (and the statute

27

—

itself), it stands to reason that such

restrictions would appear in the

important areas of what costs are

recoverable, end the statute of

limitations.

The 9th Circuit opinion gives us

no guidance as to what costs would be

recoverable, rather it would require

an ad hoc determination of whether the

costs incurred are, or were,

"necessary action".

By contrast, under CERCLA, where

the right to seek reimbursement for

clean up costs incurred, is expressly

provided for in the statute, the only

costs recoverable are those that are

“consistent with the National

Contingency Plan” . 42 U.S.C. 9607(a).

A second area where the 9th

Circuit would throw “careful

28

—— —

restrictions“ out the window is with

respect to the statute of limitations.

CERCLA provides a remarkably

detailed statute of limitations for

cost recovery actions.

RCRA's silence on this point,

both in the statute, as well as in the

legislative history, is deafening.

If Congress intended to create a

private damage action under "carefully

restricted" citizen suit provision

under RCRA, it would have spelled out,

as it did in CERCLA, what costs are

recoverable, and when an action to

recover such costs must be filed.

At a minimum, we should be able

to find legislative history that

clearly articulates and affirmatively

expresses what costs are recoverable,

29

what standard is used in conducting

judicial review of such cost recovery

actions; and what statute of

limitations is to be applied.

Such history is conspicuous by

its absence, thus it is entirely

inappropriate to "“unlimit" the

carefully restricted RCRA citizen suit

provision.

The second point made clear by

the legislative history is that the

result in this case is virtually

dictated by the decision in Middlesex

County Sewerage Authority v. National

Sea Clammers Association, 453 U.S. 1,

17 (1981).

As discussed, supra, the history

makes clear that the RCRA citizen suit

provision is based upon the comparable

30

provisions of the Clean Air Act.

In Sea Clammers, 453 U.S. 1,

(1981), the Court noted that the Clean

Air Act of 1970 " makes no provision

for damages to the individual” 453

U.S. at 17, citing 116 Cong. Record

33104 (19700 (Statement of Senator

Hart).

It should be noted that the

legislative history does reveal an

effort in the House to undercut the

holding of Sea Clammers and also that

of Milwaukee v. Illinois (II), 451

U.S. 304 (1981), with respect to the

issue of whether the issue of whether

actions may be brought under RCRA

pursuant to supplementary authority to

the express language of the statute

inferred by “federal common law”.

31

See, House Report 98-198, Part 3, at

p.20 (Judiciary Committee).

The provision was dropped in

Conference, as evidenced by the

following:

" I note with satisfaction the

decision of the Conference Committee

to reject the House Amendment entitled

„Preservation of Other Rights " ;

This innocuous sounding

amendment was intended to convey the

message to the federal judiciary that

there is a federal common law "

applicable to hazardous waste.

As a result of the decisions in

the City of Milwaukee and National Sea

Clammers cases, it is clear beyond

dispute that there cannot be any

“federal common law" in an area

covered by a comprehensive Federal

statute such as the Solid Waste

Disposal At.

The ironic thing is that there is

hardly any area in which the ad hoc

creation of remedies by individual

judges is less necessary.”

(Cong. Rec. Oct. 5, 1984 pp. 813812,

13813; (remarks of Sen. Simpson).

Whether it is viewed as an

implied cause of action, or an attempt

32

to revive the notion that federal

common law " can create causes of

action, the fact is that Congress

affirmatively rejected attempts on

several fronts to create the cause of

action conjured up by the 9th Circuit

majority.

The legislative history does not

clearly articulate and affirmatively

express an unmistakable implication

that Congress intended to create the

cause of action relied upon, therefore

we believe no further inquiry should

be required.

Congress rejected numerous

efforts to create the federal private

cause of action damage, such as by

repealing the petroleum exclusion to

CERCLA.

33

The ruling sought by the

Respondents would have the same

practical effect, and revolutionize

the rules of the game that those of us

who making our living in the petroleum

marketing industry have lived with for

over a decade.

In conclusion, the legislative

history is utterly devoid of the a

clearly articulated and affirmatively

expressed intent to create the cause

of action sought by petitioners,

therefore the opinion below must be

reversed.

Iv. IF SUCH A CAUSE OF ACTION EXISTS

IT IS LIMITED TO IMMINENT AND

SUBSTANTIAL ENDANGERMENTS

The plain language of the citizen

suit provision allows a person to

bring an action:

" on his own behalf against any past

34

or present generator, transporter or

past or present operator of a

treatment, storage or disposal

facility who has contributed or is

contributing to the past or present to

the past or present handling, storage,

treatment or disposal of any solid or

hazardous waste which may present an

imminent and substantial endangerment

to health or the environment...

The key is the tern imminent”.

There is simply no imminent

endangerment where the site has

question had been cleaned up three

years prior to the action being

brought.

Thus, even if a cause of action

for damages can be implied, it cannot

be applied under the facts of this

case.

The endangerment in this case is

neither “imminent” nor is it ongoing,

rather damages are sought for actions

of the past.

35

Application of the principles

enunciated in _Gwaltney of Smithfield

v. Chesapeake Bay Foundation, 484 U.S.

49 (1987), where this Court held that

under the Federal Water Pollution Act,

no action should lie where a citizens

suit is based upon violations that

occurred entirely in the past, shows

that no cause of action should lie in

the case at bar.

CONCLUSION

Congress never intended to create

a private right of action for damages

under RCRA generally, or under the

underground tank program created by

Subtitle I of RCRA specifically.

The practical effect of the 9th

Circuit's ruling is enormous. Congress

was aware of those effects and thus

36

did not provide the cause of action

implied by the 9th Circuit.

The opinion under review amounts

to judicial repeal of a carefully

crafted legislative framework that has

worked well.

SCSSA therefore must urge the

Court to reverse the decision of the

9th Circuit.

Respectfully submitted,

Da D Dec

Dimitri G. Daskalopoulos

3 Church Circle

Suite 500

Annapolis, Md. 21401

(301) 261-8880

37

CERTIFICATE OF SERVICE

I hereby certify that on this 8th

day of November, 1995, I served, via

facsimile, and by air courier copies

of this Motion for Leave to File and

Brief Amicus Curiae in Support of

Petitioners upon:

John P. Zaimes

444 So. Flower St.

Los Angeles, Cal. 900710

Counsel for Petitioners

and to

Dan Romano

100 Wilshire Bldg.

Suite 1300

Santa Monica, Cal. 90401

Counsel for Respondent

Anal J). 92

—

Dimitri 6. baskalopOUuõο

38