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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1995
- **Citation:** 515 U.S. 1192

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0633%3A12. Public record. Not legal advice.