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

AMICUS CURIAE BRIEF OF

SOUTHERN CALIFORNIA SERVICE

STATION ASSOCIATION

IN SUPPORT OF PETITIONERS

Dimitri G. Daskalopoulos

3 Church Circle

Suite 500

Annapolis, MD. 21401

(301) 261-8480

Counsel of Record

for Amicus Curiae

QUESTIONS PRESENTED

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 was fully

remediated at least 3 years before the

action was commenced.

a a ee ee cad I

TABLE OF CONTENTS ..n nce ccc ccc cces II

TABLE OF AUTHORITIES......... meediueekae III

STATEMENT OF THE CASE... ... 0... cc ccc ccces 1

INTRODUCTION AND INTEREST OF AMICUS ..... 1

A ee es 11

I. THE 9th CIRCUIT DECISION IS BASED *

UPON ERRONEOUS ASSUMPTIONS ..............

II. THE PLAIN LANGUAGE OF THE STATUTE DOES

NOT AUTHORIZE THE CAUSE OF ACTION CREATED

a a atened 15

III. THE LEGISLATIVE HISTORY DOES NOT SUPPORT

sae Oe

IV. IF SUCH A CAUSE OF ACTION EXISTS

IT IS LIMITED TO CASES PRESENTING

- II -

TABLE OF AUTHORITIES

CASES

bette 11975) AGL AEE TEES ESS ee 11, 17

ay ieee eth Cir. 1995) ........ 15, 17

Foundation,

nse occvecce 29

Satie eo. | SSSR 3

ee BS Sak 15

Middlesex County Sewerage Authority v.

National Sea Clammers Association,

453 U.S. l (19S Adcccccccecs ee ee | rf 24, 25

Milwaukee v. Illinois (II)

Ge ee 25

Wilshire Westwood Associates v. Atlantic

Richfield Co.

881 F.2d 601 (9th Cir. 1991)....... 5

Yommer _v. McKenzie

255 Md. 220, 257 A.2d 138 (Md. 1969)... ‘5

STATUTES

42 U.S.C. 6972 (a)(1)(B)............ 15,27,28

42 uU.S.C. 6991lb se efeeweeneeeeeee#sees © © @ =

- 333 =

C2 DeB.C GPDID 66100). ccccccccccece 13,15

42 U.S.C. 6991b (h)(2)......ccceceee 18

en ORS I ee eo Sr ee 9

on eee ME Mee eee 5,7

42 U.S.C. 9607 (a)(2)(B).......... 23

af ' Sf ee Se epee e Rear 23

California Health & Safety Code

SY MEGS CULEEG be déeececcecec 18

25299.10..... eevcce eece 10

ME MOEN ob cbccbeccccces 10

|| § | — Fee 10

LEGISLATIVE HISTORY

Senate Report 94-988,

94th Cong. Second Session, (1976)... 20

House Report # 98-198 (Part 3)

(Judiciary Committee)

98th Cong. 2d Session, (1984) ...... 25

House Report 98-1133,

98th Cong., 2nd Sess. Sens 6beeeeos 7, 22

House Report # 99-962,

(99th Cong. 2d BOSGEGR) oc acccccccce cooe 9

Congressional Record...

116 Cong. Record 33104 ........... 29

Oct. 5, 1984 pp. S13812, 13813...... 27

S. 2513 (Sen. Durenberger)........ 6

- IV -

BR 2560 (Rep. Florio)..ccccccccccccce 7

REGULATORY MATERIALS

40 CFP 280 ceoeoeveeeeeeeeeeeeeeeseeeeees 4

subpart > Gade COnGanews é0e chee 9, 12

60 Federal Register 46692 ........... 2

Se eesveececce &

SUE ncccescesces §

GeGee secsecceces F

,3

’

STATEMENT OF THE CASE

Amicus hereby adopts the statement of the

case as shall be set forth in Petitioner's

brief on the merits.

INTR“DUCTION 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 the Resource

Conservation and Recovery Act (RCRA) since

1984 Amendments thereto became effective.

The interpretation of RCRA, particularly

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

2

ao ew —

a a ee

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

in Kelley, et.al. _v. EPA, 15 F.3rd .1100

(D.C.Cir. 1994).

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

3

provision for private rights of action

contained under RCRA Subtitle I. " 60 Fed.

Regis. at 46699.

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 puc 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

eccurred 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 Canob 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 remediate 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. 9601

(14). 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 — 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

substantially increase.

On the other hand, regulation of tanks

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 still

could not call EPA and request a federal

response to a tank leak.

The next Congress saw proposals to

partially lift the CERCLA petroleum exclusion,

42 U.S.C. 9601(14), by defining releases from

petroleum underground tanks as hazardous

substances. See, e.g., Section 101 of HR 2560

(99th Cong. lst Session) (authored by Chairman

Florio).

Once again, these proposals to repeal or

modify the petroleum exclusion, and thus

subject gasoline UST cases to CERCLA,

authority did not survive.

It is instructive to note that had any of

these proposals passed, then a federal cause

of action for cost eesevery in petroleum UST

cases would exist under CERCLA.

The fact that they did not pass shows

that the 9th Circuit ruling lacks merit.

Congress chose a different path.

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. 699lb.

Although a Superfund bill was used as the

vehicle, the fund was created under RCRA,

primarily because of the desire to keep

underground gasoline storage tanks out of the

ineffective quagmire 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

under 42 U.S.C. 699lc.

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 48)

require UST owners and operators to maintain

an annual aggregate of “financial assurance”

of 1 million to 2 million dollars.

———————— Oe

TF a ie eee

|

The method of demonstrating financial

assurance most relied upon nationwide is the

42 state tank trust funds.

California has a tank fund set up on the

authority of the Section 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 of clean up

costs and other costs to eligible claimants.

It was also designed so that California

could obtain its “tank franchise” from EPA,

and was enacted to further:

" the interest of the people of the state in

order to avoid direct federal requlation, of

persons already subject to state law...Cal.

Health & Safety Code 25299.10 (b)(10).

Congress did not create an implied

federal cause of action for cost recovery in

UST cases; it left the issue to state law.

10

ARGUMENT

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

that creates an unmistakable implication that

Congress intended to create such a cause of

action.

If this threshold inguiry is not met,

then federal courts should not be required to

engage in the analysis under the other three

factors enunciated in Cort.

As demonstrated, infra, this test cannot

ll

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.

As noted, supra, due to the requirements

of RCRA that underground tank owners and

operators be able to demonstrate financial

responsibility, See, 40 CFR Pa t 280 Subpart

H, and the unavailability of underground tank

insurance for small businesses such as those

operated by our members, California and 41

12

other states have created underground tank

clean up funds.

These funds are designed to reimburse

petroleum tank clean up costs such as those at

issue in this case. |

In the cases of orphan tank leaks, where

no responsible owner or operator can be found,

States and EPA may turn to the federal leaking

underground storage tank (LUST) trust fund.

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, as the plain

- language of the statute limits cost recovery

to “costs incurred by the Administrator or by

a State” . 42 U.S.C. 699lb (6)(a).

The reimbursement issue has quite

properly been handled by the states, and

claims for reimbursement have been, and

13

continue to be made to state tank funds in

California and 41 other states.

In addition, the full range of legal

remedies under state iaw will continue to be

available to our members, who buy more

contaminated property than 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

a4

remedies available to the EPA Administrator

should also be available in a citizen suit.

KFC Western v. Meghrig, 49 F.3rd 516, at 521-

522.(9th Cir. 1995).

In Furrer v. Brown, 62 F.3rd 1092 (8th

Cir. 1995), the 8th Circuit aptly described

this argument as a non seguitur. Id. at 1100.

As we have seen, cost recovery from the

federal LUST trust fund is limited to costs

incurred by “the Administrator or by a State”

42 U.S.C. 699lb (6)(a). The available remedies

to the Administrator and a private party are

not the same, thus, the 9th Circuit's

assumption is contradicted by the plain

language of the statute.

II. THE PLAIN LANGUAGE OF THE STATUTE DOES NOT

AUTHORIZE THE CAUSE OF ACTION CREATED

BY THE 9th CIRCUIT

In pertinent part, 42 U.S.C.

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

15

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

which may present an 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...

as_may be necessary, or both...”

The 9th Circuit majority attempted to

support its holding by relying on the term

ns suc

as may be necessary “ with respect to

regulated substances that pose an imminent and

substantial endangerment to health or the

environment.

We believe the key is the term

"necessary".

16

SCSSA fails to see how it is “necessary”

to award cost recovery or 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 the

statute is directed against - owners of a

storage facility where petroleum products or

hazardous waste presents an imminent and

substantial endangerment. 62 F.3rd at 1092.

The key point is that 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; rather

it is the “stick” of “corrective action”

17

mandated by 42 U.S.C. 699lb(h)(2) et. seq.

The “stick” is provided 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 corrective 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

“carrots” are relevant at all, those carrots

exist in the form of the ability of owners and

operators who have complied with applicable

UST regu)ations to seek reimbursement under

state funds.

The fact that a private party has no

right to tap into the federal UST Trust Fund

is telling evidence of two facts:

18

(1) that the federal cause of action implied

by the 9th Circuit was expressly rejected by

Congress 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 that parties undertake the abatement of

imminent and substantial hazards to human

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.

Congress refused to repeal or modify the

CERCLA petroleum exclusion, and also did not

allow private parties to tap into the federal

underground tank trust fund.

Moreover, if the cause of action created

by the 9th Circuit had in fact been created by

Congress, either expressly or implicitly, in

the 1984 RCRA Amendments at issue here, then

19

there would have been no — to attempt to

repeal or modify the petroleum exclusion, or

to open up the federal UST fund to private

party cost recovery during the 1986 Superfund

Amendments debate.

This fact lends further support to view

taken by the 86th Circuit in Furrer; and

clearly de..onstrates that the opinion below

must be reversed.

III. THE LEGISLATIVE HISTORY DOES NOT SUPPORT

CREATION OF AN IMPLIED CAUSE OF ACTION

RCRA has contained a citizen suit

provision dating back to its original

enactment in 1976.

According to the discussion of the

original citizen suit provision found in

Senate Report 94-988, 94th Cong. Second

Session at p.18:

“ The Committee drew on the similar

provisions of the Clean Air Act of 1970 and

the Federal Water Pollution Control Act

20

Amendments of 1972.

The bill provides for citizen

participation in the enforcement of

requirements and regulations established under

this Act.

to

actions where violations of standards or

regulations or a failure on the part of

officials to perform mandated action is

alleged.

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”.

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

Seer Ceres, limiting citizens’ right of

CONFERENCE SUBSTITUTE.- The Conference

Substitute adopts the Senate Amendment with

21

es

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 Confere. -e Report, (and the

statute itself), it stands to reason that such

restrictions would appear in the important

areas of what costs are recoverable, and 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 onthe incurred

are, or were, “action necessary”.

By contrast, under CERCLA, where the

right of private parties to seek reimbursement

22

for clean up costs incurred is expressly

provided for in the statute, the only costs

recoverable are those that are :

“necessary costs of response incurred by any

other person consistent with the National

Contingency Plan.” 42 U.S.C. 9607(a)(2)(B)-

A second area where the 9th Circuit would

throw “careful restrictions” out the window is

with respect to the statute of limitations.

CERCLA provides a remarkably detailed

statute of limitations for cost recovery

actions. 42 U.S.C. 9613 (g)(2).

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

right of action for cost recovery or damages

under “carefully restricted" citizen suit

provision of RCRA, it would have spelled out

what costs are recoverable, and when an action

23

to recover such costs must be filed.

At a minimun, in should be able to find

legislative history that clearly articulates

and affirmatively expresses what costs are

recoverable, 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

24

clear that the RCRA citizen suit provision is

based upon the comparable provision of the

Clean Air Act.

In Sea Clammers, 453 U.S. 1, (1981), the

Court noted that the citizen suit provision of

Clean Air Act of 1970:

“ makes no provision for damages to the

individual” 453 U.S. at 17, citing 116 Cong.

Record 33104 (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 (11), 451 U.S.

304 (1981), with respect to 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". See, House Report 98-

198, Part 3, at p.20 (Judiciary Committee).

The provision was dropped in Conference,

25

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

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 Act......--

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. $13812, 13813;

(remarks of Sen. Simpson).

Whether it is viewed as an implied cause

of action, or an attempt to revive the notion

that “federal common law" can create this

cause of action, the fact is that Congress

affirmatively ejected attempts on several

fronts to create the ad hoc remedy conjured up

by the 9th Circuit majority.

The ruling sought by the Respondents

26

would 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 relied upon by the

Respondent, therefore the opinion below must

be reversed.

IV. IF SUCH A CAUSE OF ACTION EXISTS

IT IS LIMITED TO CASES PRESENTING AN

“IMMINENT AND SUBSTANTIAL ENDANGERMENT"

The plain language of the citizen suit

provision allows a person to bring an action:

“" on his own behalf against any past or

present generator, transporter or past or

present operator of a treatment, storage or

dicposal facility who has contributed or is

contributing 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...

42 U.S.C. 6972(a)(1)(B).

27

The key is the plain meaning of the term

“imminent”.

There is simply no imminent endangerment

where the site has question has been cleaned

up three years prior to the action being

brought.

Thus, even if a cause of action for cost

recovery or 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.

The opinion in effect rewrites the

statute by adding the term “may have” to the

existing law, which addresses only situations

: which may present an imminent and

substantial endangerment to health or the

environment. 42 U.S.C. 6972(a)(1)(B).-

Congress could just as easily added the

28

term “may have” and thus applied RCRA to past

endangerments, as it defined potentially

responsible parties as those of the “past or

present" whose actions may be causing an

imminent endangerment.

The plain language of the statute is

clearly dispositive on this point.

In _Gw ithfi Vv.

Bay Foundation, 484 U.S. 49 (1987), the 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. Gwaltney further 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 cost recovery or

damages under RCRA generally, or under the

29

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 rejected efforts to

expressly provide the cause of action that the

9th Circuit has implied.

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,

Dei fe Dale ciale —

Dimitri G. D opoulos

3 Church Circle

Suite 500

Annapolis, Md. 21401

(301) 261-8880

30