# Reply Brief — Friends of Earth v. Laidlaw Environmental Services

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0244%3A15

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 167

## Text

Eypieme Court, US
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fypeucs Of THE CLERK
No. 98-822 an

IN THE
Supreme Court of the United States

FRIENDS OF THE EARTH, et al..
Petitioners,
Vv.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC..
Respondent.

On Writ of Certiorari
to the United States Court of Appeals
for the Fourth Circuit

REPLY BRIEF FOR PETITIONERS

Bruce J. Terris* James S. Chandler, Jr.
Carolyn Smith Pravlik SOUTH CAROLINA
Monica Wagner ENVIRONMENTAL LAW
TERRIS, PRAVLIK & PROJECT

MILLIAN, LLP P.O. Box 279
1121 12th Street, N.W. Pawleys Island, S.C. 29585

Washington, D.C. 20005 (843) 527-0078
(202) 682-2100

*Counsel of Record Counsel for Petitioners

i

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ........cccccccccccees il
ED 66 eeccndddedsceusectunneeusees l
i 3
I. PLAINTIFFS’ PENALTY CLAIM IS
PS OS cccveccecnecpeduatucssietsses 3

A. Gwaltney, Not Steel Co., Is Controllmg ... 3

B. The Penalties Imposed Benefit Plamtiffs
because They Deter Laidlaw from

WEEE ovcescéondedetoness 4
Cc. Closure of the Facility Does Not Moot
GD 6.c0nna0edsdesneeeuneseuses 6
II. PLAINTIFFS’ DECLARATORY
JUDGMENT CLAIM IS NOT MOOT .... 8
I PLAINTIFFS HAVE STANDING ........ 8
A. Citizens Have Standing
to Pursue Civil Penalties ............... 9
B Plaintiffs Have Shown
ENED 6.n onc esGesecccnneaenes 10
IV. PLAINTIFFS ARE NOT PRECLUDED
FROM BEING AWARDED
ATTORNEYS’ FEES EVEN IF THIS
CASE IS HELD TO BE MOOT........ 18
A. Farrar Did Not Overrule the
GEE «6 0-0-0-6-454600 04000000008 18

B. Whether this Lawsuit Was a

Instance by the District Court .......... 19

APPENDIX

Brief of the United States

As Amicus Curiae in Support of

MUU occ ccc cccccccccccccccece la
Affidavit of Alicia M. Clark ................... lla
Affidavit of Bruce A. Bell ..................... l4a
Affidavit of Brandon Hemel .................... l6a
Affidavit of Kevin Kosik ...................... 17a

ii
TABLE OF AUTHORITIES

Cases Page

Bae v. Shalala, 44 F.3d 489 (7th Cir. 1995) oo... 6

Carden v. Arkoma Associate, 494 U.S. 185 (1990) ........... 8

Chesapeake Bay Foundation v. Gwaltney of Smithfield,
791 F.2d 304 (4th Cir. 1986), vacated, 484 U.S. 49
(1987), on remand, 844 F.2d 170 (4th Cir.1988),
judgment remstated, 688 F. Supp. 1078 (E.D. Va.
1988), aff'd m part and rev'd m part, 890 F.2d 690

SEED SUITE ‘cinenstencenenensnenniansabatnioninienineninnatnininimiatens 14
Farrar v. Hobby, 506 U.S. 103 (1992) .............cc0000. 18, 19
Federal Election Commission v. Akins, 118 S. Ct. 1777
SETETITEEED canutenditetieiiasinieiidastincannsinidshepeniniinaadunenibeameneitinnsndiiiaidinatiaiin 18
FOE v. Gaston Copper Recycling Co., 1999 WL 351165

11-12, reh'g granted, Aug. 3, 1999 000000... cccecccceeees 13

FOE vy. Laidlaw Envtl. Services (TOC), Inc., 890 F.Supp.
470 (D.S.C. 1995), vacated as moot, 149 F.3d 303
ESR es passim

FOE vy. Laidlaw Envtl. Services (TOC), Inc., 956 F.Supp.

588 (D.S.C. 1997), vacated as moot, 149 F.3d 303

eee Seem passim
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, 484 U.S. 49 (1987) .o........ccccccccccceeseees passim
Hagans v. Lavine, 415 U.S. 528 (1974) .o....ccccccccccccseeeeeees 3
Hewitt v. Helms, 482 U.S. 755 (1987) .........ccccccccceeseeeeeees &
Illinois State Bd. of Elections v. Socialist Workers

SEA UEPEIEEED crenuccmenssinnimennmeens 3
Linda R.S. v. Richard D., 410 U.S. 614 (1973) ............ 3,4
Lujan v. Defenders of Wildlife, 504 U.S. 555

TUTTI ceicsssnessenesssesienemnaeeaienanenteieiiiaaeesnansitidinenatinilidinn 10, 11, 16
PIRG v. Powell Duffryn Terminals Inc., 913 F.2d 64

SEITE, GRIND .cnsnnetenneteienentdennpnmnmememaneunmneieimemennn l

PIRG v. Magnesium Elektron Inc., 123 F.3d 111
ee 17

IV

PIRG v. Powell Duffryn Terminals, Inc., 720 F. Supp.
1158 (D.N.J. 1989), affd m part and rev'd im part,

ES GUID cxmncnntsnenssanessntntnmeneenscsieniin 14
Pennhurst State School & Hospital v. Halderman,

Es PITTED caneeinctenienteenccnaneenenensnniensttimeiniinns 3
Planned Parenthood of Central Missouri v. Danforth,

CN ED esteccenintenesiniininhientaninitnainnaptnmmaintaceatamisiiisinin 8
Ruhrgas v. Marathon Oil Co., 119 S. Ct. 1563 (1999) ...... 8
Steel Co. v. Citizens for Better Environment, 118 S. Ct.

PED censenemnesnsetenstememetmienieneeenameenn passim
Tunstall v. Brotherhood of Locomotive Firemen &

Enginemen, 323 U.S. 210 (1944) .......ccccccccccesseceeeeeceeeees 9
U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership,

Fe ITED excintsenteniscetienntentnnnninnnneinnnmianins 7, 19

United States v. Midwest Suspension and Brake, 824 F.
Supp. 713 (E.D. Mich. 1993), affd, 49 F.3d 1197

EEE: GUEIEED. cocmsnsenennnanmneneieniientebiinmmninmemammmeneiets 5
Walling v. James V. Reuter, Inc., 321 U.S. 671 (1944) ..... 7
Webster v. Fall, 266 U.S. S07 (1925) ............ccccceeeeceeeeeeees 3
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) 5, 12
Statutes and Regulations:
a 2, 12, 17
Se > CEES cininsncitttnencdtensmnanneniniiemenieimeentinines 12
Po 6 6=—_(s cin 12
PP Es MEPUIIIIEED sensintnintceenennsiqueiiaisuninsiipgesanisdinineniiias 13
Be is: MTEEE ivtitshtniinucnesentnininninsidicninenionmmenninimaitenes 14
BP is IED . crninniicrsninininciniaietceastieidinnstcnmecimemmmnbennmnes 14
FP ts TEED eetntnininsinnneretiineiniantennmnnnibiadiiinpinainiiinn 14
its CHIE : dtniesnnintninenenecinntinnianinintinneiiiammemenninites 18
Si es GTI stirenscsrsciuieannnseninnimecnninintatnntenmmenmtaatts 18
Sr ey EIITIED Sicnitnssiercretsitennisnntenniuieieneninnennints 5, 6, 16
BP es CITED sinncnnnsinienasiinniniinnimmemene 18

a 1,2

ee

Vv
ee SI IIIEED ‘ cnctuticenncnsunintinensnipnobenmermteinen 6
TSUN cchatiniscusstuninssbinmpeniiaieieeeeieeunies 14
Legislative History:
S. Rep. No. 50, 90th Cong., Ist Sess. (1985) 000.000.0000... 2
S. Rep. No. 233, 98th Cong., Ist Sess. (1983) ................ 17
S. Rep. No. 414, 92d Cong., Ist Sess. (1971) ........ 2, 17 ,18
Miscellaneous:
Block, The Deterrent Effect of Antitrust Enforcement, 89

J. Pol. Econ. 429, 443-444 (1981) ooo. ccccccccccccccceceeeeeeneees 6

l

INTRODUCTION

Laidlaw and its amici repeatedly claim that Laidlaw was
dihgently actmg to bring itself mto compliance and that the
South Carolma Department of Health and Environmental
Control (“DHEC”) was vigorously enforcing Laidlaw’s permit
when plamtiffs, for no good reason, brought this litigation.
E.g., Resp’t Br. 3, 5, 6-7. Nothmg could te further from the
truth. In fact, as of the time of plaintiffs’ notice of mtent to sue,
Laidlaw had been violating its permit for over six years and
DHEC had failed to bring an enforcement action to enforce the
permit and penalize Laidlaw for its over 800 violations.
Laidlaw’s maximum potential penalty was im excess of
$20,000,000. PL. Pretrial Br. 29 (July 22, 1995).

After plamtiffs filed suit, Laidlaw employed the technology
that the district court found it could, and should, have employed
at least four years earlier. 956 F. Supp. at 599 (J.A. 155-156).
Laidlaw also reduced the amount of mercury fed mto its
mcinerator as a means of complying with its permit. /d. at 596
(J.A. 147). While Laidlaw had known for years that reducing
the feed would reduce the severity of its violations (see Def.
Exs. 54, 105, 144), it acted only after plaintiffs brought suit.

When Laidlaw received the notice of mtent to sue from an
organization well known for vigorous enforcement of the Act,”
Laidlaw set out to manufacture a preclusion defense. Since
state suits can bar citizen suits if filed before the citizen suit (33
U.S.C. 1365(b\(1)(B)), Laidlaw sought and was able to
convince DHEC to bring suit, before the 60-day notice period
expired and plamtiffs could bring suit, despite DHEC’s policy
not to bring suit to bar citizen suits. 890 F. Supp. at 478-479
(J.A. 93-95). Laidlaw drafted DHEC’s complamt, filed it and
even paid the filing fee. /d. at 479 (J.A. 94). At the same time

“See, e.g., PIRG and FOE v. Powell Duffryn Terminals Inc., 913 F.2d 64,
80-83 (3d Cir. 1990)imjunction and statutory maximum penalty over
$4,000,000 imposed ); PIRG and FOE v. Witco Chemical, D.N.J., Civ. No.
89-3146 (imsunction and $10,000,000 penalty through a consent judgment).

2

that it filed the complamt, Laidlaw filed a consent decree
setthng the suit. /bid.

When plaintiffs brought suit three days later, Laidlaw moved
to dismiss. Although the district court rejected plamtiffs’
allegation of collusion, it found that plamtiffs’ suit was not
barred under 33 U.S.C. 1365(b)(1)(B) because DHEC had not
diligently prosecuted Laidlaw when it acceded to Laidlaw’s
request to be sued. 890 F. Supp. at 498 (J.A. 136). In addition
to the unusual and accelerated procedures which denied
plaintiffs an opportunity to mtervene and participate m DHEC’s
suit, the district court found that DHEC’s action was not
dihgently prosecuted because the consent decree did not even
mchude an injunction requiring Laidlaw to comply with the law.
890 F. Supp. at 480, 489-490, 498 (J.A. 97, 117-120, 156).
The district court also found DHEC’s action lacking m diligent
under DHEC’s penalty policy and failed to provide an adequate
deterrent because it was too small even to remove the economic
benefit Laidlaw enjoyed as a result of its noncompliance. /d. at
479-481, 491-492 (J.A. 95-98, 121-123).

Laidlaw and its amici seek to cast plaintiffs and other citizens
as the villains rather than the victims of Laidlaw and other
polluters’ unlawful conduct. However, Congress has decided
that “no one has the right to pollute — that pollution contmues
because of technological limits, not because of any mherent
right to use the nation’s waterways for the purpose of disposing
of wastes” (S. Rep. No. 414, 92d Cong., Ist Sess. 42 (1971))
and that citizens play an mtegral part m ensuring that the Act’s
objective of “restor{ing] and maimtam{mg] the chemical,
physical, and biological mtegrity of the Nation’s waters” is
achieved (33 U.S.C. 1251(a); S. Rep. No. 50, 90th Cong., Ist
Sess. 28 (1985)).” Plaintiffs submit that it is against this

~To the extent that there have been any abuses of the citizen suit provision,
that is a matter for Congress to address. In any event, the issues m this
case have nothing to do with the abuses alleged by amici.

3

background that this Court should decide the issues in this case.
ARGUMENT
L PLAINTIFFS’ PENALTY CLAIM IS NOT MOOT
A. Gwaltney, Not Steel Co., Is Controlling

Laidlaw argues that the court of appeals properly dismissed
this case on mootness grounds because plaintiffs were only
pursuing civil penalty relief nm which they had no personal stake.
Resp’t Br. 10. Laidlaw has no answer to the significance of this
Court’s decision in Gwaltney of Smithfield, Ltd. v. Chesapeake
Bay Foundation, 484 U.S. 49 (1987). Like the court of
appeals, Laidlaw assumes that the decision m Steel Co. v.
Citizens for Better Environment, 118 S. Ct. 1003 (1998),
decided the issue presented m this case. Resp’t Br. 10-13.
Laidlaw fails, like the court of appeals, to reconcile the court of
appeals’ decision with the decision in Gwaltney.» Presumably,
Laidlaw has not done so because it is impossible *

» Amicus Hercules argues (p. 17) that Gwaltney is not controlling on the
issue of mootness because this Court has previously held that it is not
bound by questions of jurisdiction that have been passed on m prior
decisions sub silentio. All four of the decisions cited are easily
distinguished. Three, Webster v. Fall, 266 U.S. 507, 511 (1925), Hagans
v. Lavine, 415 U.S. 528, 533 n. 5 (1974), and Pennhurst State School &
Hosp. v. Halderman, 465 U.S. 89, 119 (1984), mvolved situations where
the issue was not raised or briefed m the case asserted as precedent. That
is not the case im Gwaltney. Both standing and mootness were raised im the
briefing (see Pet. App. 37a-43a) and addressed by this Court. Since
mootness was addressed by the Court and the case was remanded for
further action by the court of appeals, this Court necessarily determmed
that Gwaltney was not moot. In the fourth case, /Ilinois State Bd. of
Elections v. Socialist Workers Party, 440 U.S. 173, 180-181, 182 (1979),
stating that “summary affirmances have considerably less precedential
value than an opmion on the merits,” this Court rejected use of a summary
affirmance as precedent for anything other than the “precise issue[]
presented * * *.” Since Gwaltney was an opinion on the merits, it has full
precedential value.

“Laidlaw points to the statement in Linda R.S. v. Richard D., 410 U.S.

4

B. The Penalties Imposed Benefit Plaintiffs because
They Deter Laidlaw from Violating the Act

Laidlaw argues that plaintiffs have no personal stake im civil
penalties because they are paid to the Treasury, not to plamtifis.
Resp’t Br. 10. Laidlaw maintains that plaintiffs lack a personal
stake because civil penalties cannot be “equated” with an
injunction that “bars” the conduct that harms plaintiffs. Id. pp.
11, 21. However, the issue is not whether civil penalties are
equal to an injunction or bar the defendant’s conduct. Instead,
the question is whether the relief requested serves to redress the
' Laidlow adenits that penalties deter fevere violations. Resp’t
Br. 21. Laidlaw fails to explain why a civil penalty that serves
to deter future misconduct is insufficient to provide plaintiffs
with a personal stake. Where plaintiffs have made and proven
an allegation of continuing violation,* both injunctive relief and
civil penalties protect the plaintiff from future misconduct by the
defendant.

eer ee sent ee enenn Are ammeter
lacks a judicially cognizable interest m the prosecuhon nonprosecution
af caster” an togpes tor ie position that chinene have no intarest in he
exaction of penalties payable to the Treasury. Resp’t Br. 19-20. This
statement has no relevance here. Linda R.S. mvolved the standing of a
woman seeking an order requiring the district attorney to prosecute the
father of her illegitimate child for failure to provide child support. 410
U.S. at 615-616. The Court held that “given the special status of criminal
prosecutions im our system,” the plaintiff lacked standing. Id at 619.
Although not technically a separation of powers issue involving branches
of the federal government, the case raised analogous concems about
citizens using the judicial branch to force the executive branch to exercise
its prosecutorial discretion. Such concems are not at issue here.

2 mul ig violation is a term of art in construmg citizen
nS en eaciageetien ua oa
It means an ongoing violation at the tme of the complamt. Gwaltney, 484
U.S. at 64-66. It is not restricted, as amici have suggested, to a state of
violation at the time the district court awards relief.

5

This Court has stated that civil penalties are an alternative to
injunctive relief im ensuring compliance with the Act.
Weinberger v. Romero-Barcelo, 456 U.S. 305, 314 (1982). See
also United States v. Midwest Suspension and Brake, 824 F.
Supp. 713, 738 (E.D. Mich. 1993), aff'd, 49 F.3d 1197 (6th
Cir. 1995)(citing Weinberger, court explained that it denied an
injunction because the penalty imposed was designed to deter
future violations). Laidlaw admits that mjunctive relief deters
violations and therefore provides redressability. Resp’t Br. 10,
11, 15, 21. In fact, civil penalties are an even better deterrent to
future permit violations than imjunctive relief because the
negative financial mpact on the violator is more immediate from
civil penalties. For example, if there are two violators with the
same types of violations and one is enjoined and another is
assessed a civil penalty, the violator assessed a penalty is more
likely to be deterred from future violations because he has
suffered an economic loss designed to remove the economic
advantage he has gained from his noncompliance. Three factors
work to deter his future violations: (1) the sting of paying the
civil penalty, (2) the realization that he cannot benefit
economically from noncompliance, and (3) the fear that any
penalty for further violation is likely to be more significant (see
33 U.S.C. 1319(d\history of violation to be considered in
assessing a penalty)).

In comparison, the violator who has been enjoined has not
suffered an economic loss for his noncompliance. He has
actually enjoyed an economic benefit. During the life of the
imjunction, his compliance is secured through the threat of a
monetary payment m the form of a contempt sanction.
However, civil contempt allows the court only to threaten the
violator with a future penalty if he violates the permit again *
Thus, the violator who paid the penalty suffered a more

* Criminal contempt is rarely imposed. Plaintiffs know of no violation of
an iyunction under the Clean Water Act ever being punished through

6

immediate and significant financial impact and is more likely to
be deterred from further violations. Presumably, that is why
Congress decided that the statute should be enforced through
civil penalties of up to $27,500 per violation. 33 U.S.C.
1319(d); 40 C.F.R. §19.4 (1999).

In a twist of logic, Laidlaw argues that civil penalties serve
to deter only when there is the threat that they will be imposed
and that the specific deterrent effect is lost once the penalties
are exacted. Resp’t Br. 20-21. However, “specific or special
deterrence aims to change a particular individual’s behavior
through negative reimforcement.” Bae v. Shalala, 44 F.3d 489,
494 (7th Cir. 1995). Negative remforcement occurs through
the payment of the penalty, not the fact that the statute
threatens a civil penalty for violation. See Block, The Deterrent
Effect of Antitrust Enforcement, 89 J. Pol. Econ. 429, 443-444
(1981). A penalty that is on the books, but never enforced,
obviously provides no deterrent at all.”

C. Closure of the Facility Does Not Moot this Case

Laidlaw contends that this case is moot because the facility
is shut down. Resp’t Br. 24. Plamtiffs have shown that
Laidlaw has deliberately retained its NPDES permit and
therefore has the legal right to resume discharging at any time
it chooses to do so. Pet’r Resp. to Sugg. of Mootness, pp. 6-7.
Moreover, Laidlaw has recently violated its permit. Under its
permit, Laidlaw continues to be responsible for filing monitoring

“EPA has recognized the effect of civil penalties in removing the incentive

for dischargers to violate the law (Pl. Ex. 108, p. 3):
The first goal of penalty assessment is to deter people from violating
the law. Specifically, the penalty should persuade the violator to
take precautions against falling into noncomphance again (specific
deterrence) and dissuade others from violating the law (general
deterrence). Successful deterrence is mmportant because it provides
the best protection for the environment. In addition, it reduces the
resources necessary to administer the laws by addressing
noncomphance before it occurs.

7

reports. Laidlaw has failed to file one of the required reports

App. ‘12a-13a. In June 1999, the State issued a notice of
violation for the delinquent report. App. 12a. At the very least

this violation establishes that plaintiffs’ claim based on
monitoring and reporting violations is not moot.

Even if Laidlaw never resumes discharging at the facility,
Laidlaw and its Corporate affiliates own at least four other
facilities which have recently violated their NPDES permits
App. 14a-15a. Plaintiffs have members whose interests in the
involved waterways have been harmed by these unlawful
discharges. App. 12a, 16a-17a. The penalty imposed by the
district court will therefore serve as a specific deterrent to this
violator from committing such violations in the future ©

dissolution], the judgment of the Circuit Court of Appeals, which is not

could be had. See also U.S. Banco
' a. rp Mortgage Co. v. B
Partnership, 513 U.S. 18, 24-25 (1994). aidlaw and its amici refer to the fact that the district court found that
plaintiffs’ selection of the value range of |-10 from EPA’s civil penalty
policy constituted an acknowledgment by plaimtiffs that there was no nsk
of environmental harm. Resp’t Br. 36 n. 28. See 956 F. Supp. at 601-602
(J.A. 161). Plaimtiffs recommended to the district court that it rely on
EPA's penalty policy to guide its assessment of the seriousness of Laidlaw’s
discharge violations. /bid Plaintiffs proposed that, from EPA's “value
range” of 1-10 for violations of water quality based discharge limitations,
a value of 10 be assigned to each of Laidlaw’s violations. Pl. Pretrial Br.
41 (July 22, 1995). Plaintiffs proposed that the district court use the value
range for violations of water quality based discharge limitations because it
was the only range from the policy having any relationship to this case.
See PL. Ex. 129, p. 9. The other ranges are for mterference with drinking
water supplies, risks to subsistence fishing, fish kills, beach closmgs and
a general range of other impacts on the aquatic environment. /bid.
Plaintiffs recommended that the district court use |0, the highest value

17

The district court found that there was “no demonstrated
adverse affect on the environment” from Laidlaw’s discharges
(emphasis added). 956 F. Supp. at 603 (J.A. 164). This does
not mean that there was no adverse effect on the environment.
Congress has determined that all pollutant discharges are
harmful and affect our ability to “restore and maintain the
chemical, physical and biological integrity of the Nation’s
waters.” 33 U.S.C. 1251(a). The district court’s finding merely
means that none of the evidence available proved specific
adverse effects“ The difficulty, indeed often the impossibility,
of making such a demonstration was what lead Congress totally
to revamp the regulation of water pollution in 1972 by shifting
the focus of regulation from the water body to the end of the
discharge pipe. Congress made this shift because of the
uncertaimty of the relationship between water bodies and
pollutant loadings and the difficulty of being able to prove that
a particular source was responsible for particular conditions in
the waterway. See S. Rep. No. 414, supra, pp. 7-8, 42; S. Rep.
No. 233, 98th Cong., I st Sess. 2-3 (1983). To require a citizen
seeking to mvoke federal court jurisdiction to prove as a
prelimmary matter that the receiving waters were significantly

from the range, based on the fact that Laidlaw’s excessive discharges were
numerous, consistent and caused the water quality standard to be exceeded.
Pl. Pretrial Br. 41-44. The district court held that plaintiffs’ selection of the
value range of | -10 constituted an acknowledgment that there was no risk
of environmental harm. 956 F. Supp. at 601-602 (J.A. 161). However, a
value range of |-10, although lower than the range EPA selected for other
types of harm, assumes environmental harm and a value of |(0 obviously
1 ences eis See PL. Ex. 129,
p. 9.

‘©The district court’s finding that there was a lack of proof showing an
adverse affect is entirely different than the finding m PIRG v. Magnesium
Elektron Inc., 123 F.34 111, 122-123 (34 Cir. 1997), that the evidence
affirmatively showed no harm from the discharge. In this case, there has
been no overall study of the mmpact of the discharge. Instead, there are
only limited tests, none of which demonstrated an adverse affect.

18

harmed by a particular discharger would mean that citizens
could not sue to protect and maintam waters, particularly those
that are still relatively clean

IV. PLAINTIFFS ARE NOT PRECLUDED FROM
BEING AWARDED ATTORNEYS’ FEES EVEN IF
THIS CASE IS HELD TO BE MOOT

A. Farrar Did Not Overrule the Catalyst Rule

This Court has recognized the catalyst rule -- i.e., the rule
that a plaintiff has prevailed for purposes of obtaming attorneys’
fees when a lawsuit has been a catalyst for a voluntary change
in a defendant's conduct. See Pet’r Br. 44-46. Laidlaw argues
that Farrar v. Hobby, 506 U.S. 103 (1992), "necessarily

\’ Ptaintiffs also have standing to pursue the monitoring and reporting
violations for which the district court found Laidlaw liable. The NPDES
system, which regulates discharges until technology is sophisticated
enough to eluminate all discharges, 1s predicated on self-monitoring. S.
Rep. No. 414, supra, pp. 42, 62. Each NPDES permit requires the
permitholder to monitor its discharges in a specified manner and to report
the results of such monitoring to the regulatory authorities. 33 U.S.C.
1318, 1342(a)4b). Those authorities, in turn, are required to make the
monitoring information available to the public. 33 U.S.C. 1318(b).
Laidlaw’s failure to comply with the monitormg and reportmg
requirements of its permut denied plamnffs and their members mformanon
about the levels of pollutants beimg discharged ito the river m their
community. Plaimtiffs’ members have asserted that they are mterested
obtaining correct information about the pollutants discharged mto the nver
so that they can make decisions regarding their use of the niver and its
environs. See, e.g., Lee Aff. 98; Patterson Aff. 411. This Court has
recognized that an individual who is denied mformation to which he has
a statutory right has suffered an mjury-in-fact and has standing to sue.
Federal Election Comm'n v. Akins, 118 S. Ct. 1777, 1784 (1998).

Laidlaw focuses on the district court's finding regarding the senousness
of the monitoring and reporting violations and argues that since there was
not “some material nondisclosure or environmental consequence traceable
to the failure to report,” standing does not exist. Resp’t Br. 37. The
district court’s findings regarding the seriousness of these violations for
purposes of determining the appropriate penalty for the violations 1s
irrelevant to Article III standing.

ee

19

supersedes” the line of decisions recognizing the catalyst rule
because Farrar spoke in terms of a "judgment or settlement.”
Resp’t Br. 43. Laidlaw fails to explain why the Court would
have overruled the catalyst rule in a case where that rule was
not at issue or without making it clear that it was doing so. See
Pet’r Br. 46-47. Laidlaw also fails to address the decisions of
ten Circuits finding that Farrar did not overrule the catalyst
rule. See id. at 48-49 ©

Laidlaw argues that the catalyst rule may require a "satellite
litigation.” Resp’t Br. 44. However, the Circuits that apply the
catalyst rule have made the straightforward factual
determmation required by the catalyst rule -- i.e., whether a
change in a defendant's behavior was brought about by a lawsuit
or some other factor -- and have expressed no concerns about
domg so.

B. Whether this Lawsuit Was a Catalyst Should Be
Decided in the First Instance by the District Court

Laidlaw contends that, even if the catalyst rule is intact, this
lawsuit was not a catalyst for it to comply with its permit.
Resp’t Br. 44-46. That factual determination should be made
im the first mstance by the district court. Plaintiffs simply seek

‘Laidlaw argues that, if this Court remands to the court of appeals for a
determination of whether there was standing at the outset of the litigation,
it should not rule on the fees issue at this time. Resp’t Br. 42. However,
if the Court affirms the court of appeals’ decision on mootmess, a ruling on
standing will be necessary only as an antecedent to a ruling on fees. See
ibid. It would be a waste of judicial resources for this Court to remand for
a rulmg on standing since the court of appeals will rule against plaintiffs
as to fees regardless of its determmation on standing based an its earlier
decision that citizens are not entitled to fees when a case becomes moot.
Instead, if the Court decides agaist plaintiffs as to mootness, plaintiffs
submit that the Court should consider the fees issue and remand for a
ruling on standing only if it rules for plaintiffs on the fees issue. Cf U.S.
Bancorp, 513 U.S. at 21-22 (a federal appellate court may rule on ancillary
matters even when it has determined that Article II] jurisdiction is
lacking).

20

a rulmg reversmg the decision of the court of appeals that
plamtiffs are precluded from any recovery of attorneys’ fees if
their claims are moot.

Laidlaw suggests that the district court has already
determmed that this lawsuit was not a catalyst for Laidlaw's
compliance. Resp’t Br. 45-46. Since the district court has not
ruled on plamtiffs’ entitlement to attorneys’ fees (see Resp’t Br.
7), it could not possibly have made that determmation.

Laidlaw quotes a portion of the district court's relief decision
Stating that enforcement efforts made by DHEC led to
Laidlaw’s "ultimate comphance with its permit over an extended
period of time." Resp’t Br. 46 (quotmg J.A. 163). That
quotation has been taken out of context. The district court was
addressmg the seriousness of Laxilaw’s reportmg and
monitoring violations and, m that context, found that those
violations did not mterfere with DHEC's enforcement efforts.
See 956 F. Supp. at 602 (J.A. 161-163). The court was not
addressmg the issue of whether this lawsuit was a catalyst for
Laidlaw’s compliance. Jd. at 602-603 (J.A. 162-163).

Moreover, as we have shown above (pp. 1-2), the district
court has found that DHEC's enforcement efforts were
madequate.

CONCLUSION

It is respectfully submitted that the decision of the court of
appeals should be reversed and the case remanded for
consideration of the issues presented im the parties’ appeals to
that court.

Respectfully submitted,
Bruce J. Terris
Carolyn Smith Pravlik
Monica Wagner

James S. Chandler, Jr.

Counsel for Petitioners

APPENDIX

IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 98-1938

Friends of the Earth, Inc. and Citizens Local
Environmental Action Network, Inc.

Plaintiffs/Appellants,
v.

Gaston Copper Recycling Corp., et al.
Defendant/ Appellant.

ON APPEAL FROM THE UNITED STATES COURT FOR
THE DISTRICT OF SOUTH CAROLINA

BRIEF OF THE UNITED STATES AS AMICUS CURIAE
IN SUPPORT OF REHEARING EN BANC

LOIS J. SCHIFFER

GREER S. GOLDMAN
DAVID SHILTON
R. JUSTIN SMITH

Washington, D.C. 20044-4390
(202) 514-9369

2a

(Tables of contents and authorities omitted]
INTEREST OF THE UNITED STATES

Pursuant to Fed. R. App. P. 29(a), the United States files this
amicus cunae brief because this case presents an issue of
substantial importance to the United States The United States,
in cooperation with the individual States, has primary
responsibility for implementing and enforcing the Clean Water
Act (CWA), 33 U.S.C. § 1251 et seq. The United States is also
a potential defendant in citizen enforcement actions agamst
federal facilities See CWA § 309, 33 USC. § 1319. The
present case concerns the ability of citizens to establish standing
to sue under the Act. The standard set forth m the panel's
opinion would significantly restrict citizens’ ability to enforce
the environmental laws. Thus, the resolution of this case will
have a direct and substantial effect on enforcement of the Act.

SUMMARY OF ARGUMENT

Congress intended to grant citizens standing to sue under the
Clean Water Act to the full extent permitted by the
Constitution. By imposing unduly strigent evidentiary burdens
on the citizen-plaintiffs, the panel's analysis thwarts this
Congressional intent and mreconcilably conflicts with decisions
in other circuits. .

As to mjury im fact, the panel effectively required direct
evidence of injury, disregarding the circumstantial evidence of
injury proffered by the plaintiffs. In dog so, it ignored the rule
that a plaintiff may ordinarily rely on circumstantial evidence to
make a showing required by law, and disregarded applicable
authority from the Supreme Court and other circuits. .

As to traceability, the panel improperly msisted that plaintiffs
provide scientific evidence as to the transport of pollutants. It
declined to credit the plaintiffs’ evidence, which relied on
reasonable inferences and circumstantial proof. This holding
conflicts with precedent from other circuits.

The effect of the panel opinion is to require plamtiffs to

owes ate

a ee re

3a

present substantial amounts of scientific evidence unrelated to
their case im order to establish standing. This will lead to
“expensive, lengthy sideshows to the straightforward issue
under the Clean Water Act - namely, whether a defendant is
violating its discharge permit.” Slip op. at 9 (dissenting opmion
of Chief Judge Wilkinson).

ARGUMENT

I. CONGRESS INTENDED THAT CITIZENS HAVE
STANDING TO SUE UNDER THE CLEAN WATER ACT
TO THE FULL EXTENT PERMITTED BY THE
CONSTITUTION

The text of the Clean Water Act permits suit by “any citizen,”
which is defined to mean “a person or persons having an mterest
which is or may be adversely affected.” 33 U.S.C. § 1365(a),
(g). The language of this provision was drawn from the
Supreme Court’s decision in Sierra Club v. Morton, 405 US.
727, 740 (1972), which required that a plaintiff “allege facts
showing that he is himself adversely affected” by the challenged
decision. See H.R. Conf. Rep. No. 92-1465 at 146 (1972)
(statmg that Congress had based the language of section
| 365(g) on Sierra Club v. Morton). Thus, in drafting the Clean
Water Act’s citizen suit provision, i appears that Congress
intended to extend the citizen suit remedy as far as the
Constitution permitted.” The Supreme Court reviewed the
foregoing legislative history in Middlesex County Sewerage
Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 16-17
(1981), concluding that the language of section 1365 was
intended to allow suit by a “broad category of potential
plaintiffs.” See also Lujan v. Defenders of Wildlife, 504 US.

Y Although the Court's decision in Sierra Club vy. Morton involved an
mterpretation of the text of the Admunistrative Procedure Act. the Court
made clear that it was informed by constitutional considerations. Sec id
at 740 & n.16.

4a

555, 580 (1992) (Kennedy, J., concurring) (“In my view,
Congress has the power to define mjunes and articulate chams
of cau:ation that will give rise to a case or controversy where
none existed before.”).

Extending citizen standing under the Act to the limits
permitted by the Constitution is also necessary to effectuate the
Act’s other purposes. As appellants explam m detail m ther
petition for rehearing en banc, an important reason for the Clean
Water Act’s shift from water quality standards to end-of-pipe
standards was to elimmate the need to address questions of
causation and injury in enforcement proceedings. See Petition
for Rehearmg En Banc at 6-9.

Il. THE PANEL IMPROPERLY REQUIRED PLAINTIFFS
TO PROFFER DIRECT EVIDENCE IN ORDER TO
ESTABLISH INJURY IN FACT

As to mgury m fact, the panel demanded that plamtiffs either
provide scient studies of the waters used by plaintiffs, see op.
at 6 (noting tk sence of “toxicity tests, or test or studies of
any kind,” of those waters), or show an “observable negative
impact” on those waters or the surrounding ecosystem. Op. at
6. This requirement, which effectively barred the plamtiffs from
proving injury in fact through circumstantial evidence, lacks any
basis m applicable law.

It is permissible for a plamtiff to base a showing of myury m
fact (or some other element of standing) on reasonable
probabilities or mferences. Plamtiffs need not necessarily
adduce direct evidence, and may mstead rely on circumstantial
evidence im establishing standmg, as they may m making any
other legally required showing. See United States Postal

Service v. Aikens, 460 U.S. 711, 714 n.3 (1983) (in rejecting a
requirement of direct evidence in an employment discrimination

case, stating that plamtiff could elect to rely on circumstantial
evidence alone, “[a]s m any lawsuit.”). In crimmal cases, the
government may rely on circumstantial evidence to show guilt

Sa

beyond a reasonable doubt. See 2 Charlies A. Wright, Federal
Practice and Procedure § 411 at 479-86 (1982). Circumstantial
evidence thus must necessarily be admissible in making the
substantially lesser showing required for standing.

For example, in Duke Power Co. v. Carolina Env. Study
Group, 438 U.S. 59 (1978), the Supreme Court found that
plaintiffs who lived near a nuclear power plant could establish
myury m fact without requiring any direct proof of injury. The
Court found that that plant's emissions of waste heat into lake
waters created mjury, and that “the emission of non-natural
radiation mto appellees’ environment woukd also seem a direct
and present mjury, given our generalized concern about
exposure to radiation and the apprehension flowing from the
uncertamty about the health and genetic consequences of even
small emissions like those concededly emitted by nuclear power
plants.” Id. at 74. Notably, the Court did not require plaintiffs
to show that the air and water they used actually contained
radiation; it sufficed that radiation had been emitted in their
vicmity and caused reasonable concern about health effects.

Likewise, in Sierra Club v. Cedar Point Oil Co., 73 F.3d 546
(Sth Cir. 1996), citizen-plaimtiffs asserted that defendant's
discharge of oil-contammated water to Galveston Bay was
likely to cause harm to the Bay, and showed that they actually
used the Bay, but produced no direct scientific or visual
evidence of harm to the waters they used. The Fifth Circuit
nevertheless found that citizen-plaintiffs had standing to sue.
See id, at 557-58 #

eliance on circumstantial evidence is especially appropriate
m lght of the general rule that “the threshold for the injury

» One of citizen-plaintiffs’ standing witnesses stated that he had
observed “discolored water and foul odors.” Id at 557. However, the Fifth
Circuit did not rely on the testimony of this witness because he did not
“express[] an mterest m the part of Galveston Bay where Cedar Point's
discharge is located.” Id at 558 n.24.

6a

requirement is fairly low.” See id. at 557 n.23 (stating that
“CWA cases from other circul corroborate” this observation).
Indeed. as the Third Circuit has said, in order to establish
an injury “need not be large[;] an identifiable trifle will

were subject to threatened myury. The evidence im this case
focuses on the downstream transport of pollutants from
defendant’s facility. Many of the factors that may influence the
rate of this transport, such as weather, are subject to natural
variation. Standing law does not require that a plamtiff wait
until actual injury occurs im order to sue. Instead, a plaintiff can
sue on the basis of threatened harm, so long as the threat is “real
and immediate, not conjectural or hypothetical.” See generally
Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983), see also
Village of Elk Grove Village v. Evans, 997 F.2d 328, 329 (7th
Cir. 1993) (finding standing because “[t}he Village is in the path
of a potential flood” and “even a small probability of myury 1s
sufficient to create a case or controversy”).

1. THE PANEL IMPROPERLY DECLINED TO
CONSIDER A COMMON-SENSE ANALYSIS OF
TRACEABILITY, INSISTING INSTEAD ON SCIENTIFIC
EVIDENCE

The panel found that plamtiffs had not shown that the
pollutants im defendant's wastewater could travel four miles to

The traceability prong of the standing analysis requires only

7a

that plaintiff show that its myury “fairly can be traced to the
426 U.S. 26, 41 (1976). This demands that plaintiffs show a
“substantial likelihood that defendant’s conduct caused
plaintiff s harm”; this “is not equivalent to a requirement of tort
causation.” Powell Duffryn, 913 F.2d at 72. “In a Clean Water
Act case, this likelihood may be established by showing that a
defendant has |) discharged some pollutant in concentrations
greater than allowed by its permit 2) into a waterway m which
the plaimtiffs have an imterest that is or may be adversely
affected by the pollutant and that 3) this pollutant causes or
contributes to the kinds of injuries alleged by the plaintiffs.” Id.
The panel cited this standard, but found that its second element
was not met because plamtiffs had not shown that Gaston
Copper’s discharges had reached Shealy’s lake. Shp op. at 7.
The panel emphasized that the lake is four miles downstream of
Gaston Copper’s facility, and said that “even though water
flows downstream, the distances between the source of the
alleged pollution (Gaston Copper) and the waterways used by
[plaintiff's standing witnesses are] simply too great to mfer

The panel cited no authority for the proposition that four
miles downstream is too far to mfer traceability for the
discharge by this defendant’s facility. In fact, authority from
other circuits strongly supports a finding of traceability. In
several cases, including one im this Circuit, courts have found
that citizens’ group had standing to sue on the basis of a
member’s claim that he or she used a body of water m the
general area of the discharge, but without requiring any showmg
that the member used the precise spot at which the discharge
occurred. See Sierra Club v. Simkins Industries, Inc,, 847 F.2d

~~

F.2d 54, 56 (8th Cir. 1989) (Mississippi River);

8a

Earth v. Consolidated Rail Corp., 768 F.2d 57, 61 (2d Cr.
1985) (Hudson River); see also Friends of the Earth, Inc. v.

Chevron Chemical Co., 900 F. Supp. 67, 75 (E.D. Tex. 1995)
(specifically finding that plaintiffs could sue on the basis of

discharges two to four miles upstream from them). Many of
these cases involved quite large bodies of water; nevertheless,
these courts drew the reasonable inference that waterborne
pollutants migrate, without demanding scientific proof that they
had done so. Without distinguishing these cases, the panel m
this case effectively demanded scientific proof of traceability *

Moreover, the panel ignored plaintiffs’ evidence of
traceability beyond simple proximity to Gaston Copper’s
facility. The waters of Shealy’s lake have been tested, and
found to contain the contaminants discharged by Gaston’s
facility. Although the tests mvolved were conducted before
Gaston assumed ownership of the facility, they mdicate that

¥ The panel cited the “thirty-one mtervening ponds” between Gaston
Copper’s facility and Shealy’s lake. Slip op. at 7. However, since these
ponds taken together fit within a four-mile span, many of them are
presumably quite insubstantial. In any case, the mtervening ponds and
creeks taken together are likely trivial in comparison to, for example, the
Mississippi or Hudson River. Nor would the “three other tributanes” the
panel cited as flowing into Shealy’s lake necessarily do more than dilute
Gaston Copper’s pollutants.

It is true that, as the Fifth Circuit has said, “some waterways covered by
the [Clean Water Act] may be so large that plaintiffs should nghtfully
demonstrate a more specific geographic or other causative nexus” m order
to show standing. Cedar Point Oil Co., 73 F.3d at 558 n.24; cf. Lujan v_
National Wildlife Federation, 497 U.S. 871, 889 (1990). The Fifth Circuit
has found, for example, that a plaintiff could not assert standing solely on
the basis of use of “a body of water located three tributaries and 18 miles
downstream” from defendant’s refinery, where plamtiff had offered no
other evidence of injury. See Friends of the Earth v. Crown Central
Petroleum, 95 F.3d 358, 361 (Sth Cir. 1996). Here, by contrast, plaintiff
is much closer to the source of the emissions, and has offered abundant
additional evidence of myury.

Re ee Tae ll ee ree oe

9a

pollutants discharged by Gaston’s facility migrate to Shealy’s
lake. Since there is no evidence that the facility’s operations
have changed substantially, see slip op. at 11, it is reasonable to
conclude that pollutants from Gaston Copper’s facility have
contmued to reach Shealy’s lake. Plaintiffs also presented a
state official’s statement that Gaston Copper’s discharges travel
to a water body 16.5 miles downstream, and evidence that
Gaston Copper’ s discharges have polluted the lake adjacent to
its facility *

The panel opinion’s msistence on direct evidence of injury
and rigorous proof of causation is contrary to well established
law on standing. As the Third Circuit said in Powell Duffryn,
“({a] plamtiff need not prove causation with absolute scientific
ngor.” 913 F.2d at 72. This circuit has endorsed that

proposition. See Natural Resources Defense Council, Inc. v.
Watkins, 954 F.2d 974, 980 n.7 (4th Cir. 1992). In the words

“ Plaintiffs also presented evidence that Gastan Copper has repeatedly
violated the terms of its permit and that Gaston Copper’s discharges have
many times been found m scientific tests to be toxic to small aquatic
animals. Slip op. at 10. Together with the evidence that Gaston Copper’s
discharges were capable of traveling downstream to Shealy’s lake, this
amounts to significant circumstantial proof of myury im fact. Because
eames ffen.2y Retin Png Raver
Elektron, Inc., 123 F.3d 111 Gd Cir. 1997), oem ediadente Gooundie
opinion in this case. In Magnesium Elektron, the court found that the
defendant had shown that releases from its facility did not injure, and may
indeed have benefited, the environment. See id. at 123. Here, by contrast,

Because plaintiffs have adequately shown that Shealy’s lake was
threatened by Gaston Copper’s discharges, it also follows that plaintiffs
may pursue their monitoring and reporting claims. See slip op. at 8 n.9;
Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109 (4th Cir. 1988).
(Such a threat is not necessarily the only basis on which a citizen may have
standing to pursue monitoring and reporting claims, but it is one valid
basis.)

10a

of the dissent, “the exhaustive exposition and proof” required
by the panel “will create expensive, lengthy sideshows to the
straightforward issue under the Clean Water Act - namely,
whether a defendant is violating its discharge permit.” Slip op.
at 9. These proceedings would burden the courts and, contrary
to Congressional intent, dimmish the ability and mcentives of
citizens to bring enforcement actions.
CONCLUSION

For the foregoing reasons, the United States urges this
Circuit to rehear the panel’s decision in this case en banc. In the
event that rehearing en banc is granted, the United States
requests an opportunity to submit a more detailed amicus curiae
brief addressing the issues im this case.

Respectfully Submitted,
LOIS J. SCHIFFER

Assistant Attorney General 4
Environment and Natural Resources Division

R. JUSTIN SMITH

Attomey

Environment & Natural Resources Division
U.S. Department of Justice

P.O. Box 4390

Ben Franklin Station

Washington, DC 20044-4390

(202) 514-9369 phone

(202) 514-4231 fax

[Certificate of compliance with Fed. R.App. P. 32(a)(7) and
certificate of service omitted]

lla

IN THE SUPREME COURT
OF THE UNITED STATES

No. 98-822

FRIENDS OF THE EARTH, INC..
Petitioners

Vv.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC..
Respondent

AFFIDAVIT OF ALICIA M. CLARK

Pursuant to 28 U.S.C. 1746 and under penalty of perjury, I
state the following:

1. I am a paralegal with the law firm of Terris, Pravlik &

2. Terms, Pravlik & Millian are counsel for petitioners in the
above-captioned action.

3. 1 was asked to identify facilities owned by Laidlaw
Environmental Services, Inc. and its subsidiaries which have
been issued NPDES permits. First, I conducted a search of the
EPA Permit Compliance System (PCS) database for NPDES
permits issued to facilities containing “Safety-Kleen” in their
name. I searched the name Safety-Kleen because Laidlaw
Environmental Services is currently doing business as Safety-
Kleen Corp. The search produced a list of facilities and
provided an address for each.

4. I compared the names of the facilities generated by the
PCS search with the names of Laidlaw Environmental Services,
Inc. subsidiaries listed in Laidlaw’s August 1998 10-K, filed
with the Securities and Exchange Commission. For facilities

12a

that I could not match to any of the subsidiaries listed m the 1 0-
K, I used the addresses provided by the PCS search and
compared those addresses to the facilities listed on the Safety-
Kleen Corp. web-site.

5. Based on the research described in paragraph 4, I made a
list of facilities I had determimed were both owned by Laidlaw
Environmental Services, Inc. or one of its subsidiaries and held
an NPDES permit. I requested that Carpenter Environmental
Associates, Inc. conduct a full search of the PCS database to
determine if any of the facilities on the list I provided had recent
NPDES permit violations.

6. Once Carpenter Environmental Associates, Inc. provided
me with a list of facilities with NPDES permit violations, |
called Brandon Hemel, the membership and database
coordinator for Friends of the Earth, to request that he search
the Friends of the Earth membership database and determine if
there are members residing in the areas surrounding the Laidlaw
facilities with violations. I also asked the Sierra Club to search
its membership database and determine if there are members
residing in the areas surrounding the Laidlaw facilities with
violations.

7. Using the list of members provided, I contacted as many
members as possible to see if they have an mterest m the
waterways affected by the discharges from the Laidlaw facilities
with violations. Members of both organizations have mterests
in the waterways affected by the discharges from the Laidlaw
facilities with violations.

8. Carpenter Environmental Associates’ review of the PCS
database showed a reporting violation by Laidlaw’s Roebuck
facility. On August 4, 1999, I contacted Sandra Hercey of the
South Carolina Department of Health and Environmental
Control. Ms. Hercey informed me that m June she had issued
a Notice of Violation to the Safety-Kleen (Roebuck), Inc.

facility, located in Roebuck, South Carolina. The facility failed
to submit its April 1999 seven-day toxicity test report, as

te ee ed Bn

. We ee

CLP >

enone

A EE EPR” wr OR et on

13a

required by the NPDES permit issued to the facility. The April

report was due at the end of May and, as of our phone

conversation Ms. Hercey had still not received the report.
Pursuant to 28 U.S.C. 1746, I declare under penalty of

perjury that the foregoing is true and correct. Executed this
13th day of August, 1999.

/s) ALICIA M. CLARK

14a

IN THE SUPREME COURT
OF THE UNITED STATES

No. 98-822

FRIENDS OF THE EARTH, INC..
Petitioners

Vv.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC..,
Respondent

AFFIDAVIT OF BRUCE A. BELL

Pursuant to 28 U.S.C. 1746 and under penalty of perjury,
I state the followmg:

1. I am currently president of Carpenter Environmental
Associates, Inc. of Ramsey, New Jersey, an environmental

2. Ihave appeared as an expert witness for the petitioners m
the above-captioned action.

3. My firm was contacted by Alicia Clark , a paralegal for the
law firm of Terris, Pravlik & Millian, LLP, who requested that
Carpenter Environmental Associates, Inc. conduct a search of
the EPA Permit Compliance System database to determine if
any of the facilities owned by Laidlaw Environmental Services,
Inc. or its subsidiaries had recent NPDES permit violations.

4. Carpenter Environmental Associates, Inc., using the
facilities NPDES permit numbers, conducted a search of the
EPA Permit Compliance System database. The following four
facilities had recent NPDES permit violations: Safety-Kleen
Corp., Little Rock, Arkansas; Safety-Kleen Corp., Lexington,
Kentucky; Safety-Kleen (Baton Rouge), Inc., Baton Rouge,

Se

1Sa

Louisiana; Safety-Kleen (Deer Park), Inc., Deer Park, Texas.
Pursuant to 28 U.S.C. 1746, I declare under penalty of

perjury that the foregoing is true and correct. Executed this
10th day of August, 1999.

/s) BRUCE A. BELL

16a

IN THE SUPREME COURT
OF THE UNITED STATES

No. 98-822

FRIENDS OF THE EARTH, INC.,
Petitioners

v.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.,

Respondent

AFFIDAVIT OF BRANDON HEMEL

Pursuant to 28 U.S.C. 1746 and under penalty of perjury,
I state the followmg:

|. lamthe membership and database coordimator for Fnends
of the Earth.

2. I was contacted by Alicia Clark, a paralegal for the law
firm of Terris, Pravlik & Millian, LLP, who requested that I
determine whether Friends of the Earth had members livmg m
the vicinity of facilities owned by Laidlaw Environmental
Services, Inc. or its subsidiaries.

3. 1 conducted a search of the Friends of the Earth
raembership database and determmed that there are a significant
number of Friends of the Earth members living m the areas

Pursuant to 28 U.S.C. 1746, I declare under penalty of
perjury that the foregoing is true and correct. Executed this 6th
day of August, 1999.

/s) BRANDON HEMEL

17a

IN THE SUPREME COURT
OF THE UNITED STATES

No. 98-822

FRIENDS OF THE EARTH, INC.,
Petitioners

Vv.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.,
Respondent

AFFIDAVIT OF KEVIN KOSIK

Pursuant to 28 U.S.C. 1746 and under penalty of perjury, I
state the followmg:

1. I am the Director of Member Services and Development
Operations for Sierra Club.

2. Sierra Club was contacted by Alicia Clark, a paralegal for
the law firm of Terris, Pravlik & Millian, LLP, who requested
that Sierra Club determine whether it had members livmg m
the vicmity of facilities owned by Laidlaw Environmental
Services, Inc. or its subsidiaries.

3. I conducted a search of the Sierra Club membership
database and there are many Sierra Club members living m the

Pursuant to 28 U.S.C. 1746, I declare under penalty of
perjury that the foregomg is true and correct. Executed this 6th
day of August, 1999.

/s/ KEVIN KOSIK

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0244%3A15. Public record. Not legal advice.