Opposition Brief — Alabama ex rel. Siegelman v. United States Environmental Protection Agency

| FILED.

| NOV 15 weg

: JOSEPH_E. SPANIOL, UR,

No. 89-378 (5) semen a

IN THE

Supreme Court Of Che United States

October Term, 1989

STATE OF ALABAMA, ex rel. DON SIEGELMAN, ATTORNEY

GENERAL, AND DON SIEGELMAN, INDIVIDUALLY AS

A CITIZEN OF THE STATE OF ALABAMA,

Petitioners,

vs.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, AND LEE M. THOMAS, ADMINISTRATOR

OF THE ENVIRONMENTAL PROTECTION AGENCY,

AND CHEMICAL WASTE MANAGEMENT, INC.,

AND THE STATE OF TEXAS,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

RESPONDENT CHEMICAL WASTE MANAGEMENT, INC.’S

BRIEF IN OPPOSITION

FouRNIER J. GALE III

H. THomas WELLS, JR.*

ALFRED F. SMITH, JR.

Attorneys for Respondent,

Chemical Waste Management, Inc.

OF COUNSEL:

Maynard, Cooper, Frierson & Gale, P.C.

12th Floor, Watts Building

Birmingham, Alabama 35203

(205) 252-2889

Roger C. Zehntner

Chemical Waste Management, Inc.

3003 Butterfield Road

Oak Brook, Illinois 60521

(312) 218-1639

*Counsel of Record

eT Rep

te”

TABLE OF CONTENTS

Page

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oe een ee eases cae ts 2

We eo” Pere Tererer Tree eeee 8

SOP TS a ae. oe 0)” | ag Ae 9

REASONS WHY THE PETITION SHOULD

Ds SED bbe bn 05 hc ese win cine’ nna as 66050 02 10

I. THE COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT CORRECTLY

HELD THAT PETITIONER DOES NOT

HAVE STANDING UNDER THE FIFTH

AMENDMENT TO CHALLENGE A

CERCLA REMEDIAL ACTION PLAN ....... 10

A. The Petitioner Lacks Standing Because

He Has No Injury-in-Fact ................ 10

B. Petitioner’s Alleged Injuries-In-Fact

Were Not Caused by the Alleged

Constitutional Violations .................. 12

Il. THE COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT CORRECTLY

HELD THAT THE DISTRICT COURT

LACKED JURISDICTION OVER THE

PETITIONER’S STATUTORY CLAIMS ..... 13

Ill. NO OTHER OVERRIDING OR

COMPELLING REASON EXISTS FOR

THE WRIT TO BE GRANTED ............. 16

ee re rr re Cer tere eee eee ee 17

ll

TABLE OF AUTHORITIES

Cases: Page

Allen v. Wright,

Se ees Fe COD oo. Fi 6 os pane daweeevecccnen 10, 16

Chemical Waste Management, Inc. v. EPA,

673 F. Supp. 1043 (D. Kan. 1987) .................. 15

Gladstone Realtors v. Village of Bellwood,

ek, ere Teri TTT rere ce 1]

Lake Carriers’ Association v. MacMullan,

oe Peer rT ore ee Seer errr 17

Schlesinger v. Reservists Committee to Stop the War,

Se Eh o.c ok Se ccnavccsncdeeeseussaes 11

South Carolina v. Katzenbach,

et RP ererer eerie rere ere 10

South Macomb Disposal Authority v. EPA,

681 F. Supp. 1244 (E.D. Mich. 1988) ............... 15

United States v. Richardson,

Ce ee IE 9 scenic cceanenciscecUnecsewans 10

Valley Forge Christian College v. Americans United

for Separation of Church and Siate, Inc.,

et reere eyer errr ry re eee 10, 11

Warth v. Seldin,

Re Se fh Ce eee reer Te rs 10, 17

Statutes:

Code of Alabama §§ 22-30-1 et seq. (1975) ............-. 6

Comprehensive Environmental Response,

Compensation and Liability Act

eis WN MEI nc nn isso cscececccecesncnnsen 2

Resource Conservation and Recovery Act,

42 U.S.C. GE GURL 6 aig nce cen cccncecsecccvenees 6

ill

TABLE OF AUTHORITIES — (Continued)

Statutes: Page

Toxic Substance Control Act, 15 U.S.C. §§ 2601 et seg. .. 5

ee 15

EMI na ccc n cscs seccsesseses 13, 14, 15, 16

Regulations:

Alabama Administrative Code Rule 335-14-8-.07 ....... 6

NM cece cents a csccesvecs 7

DNs bets esbcesvacessensecesacs 3

EES EE 5

a7 Feo. mem. tere (Mar. 12, 1962) ................... 4

47 Pea. Reg. 51160 (july 16, 1962) .................... 4

ap fee. mew. oroee (oem. 21, 1964) ................45. 2

Other Authorities:

H.R. Rep. No. 253 (99th Cong., 2d Sess.)

reprinted in 1986 U.S. Code Cong. & Ad.

EEE EO eee 14

H. R. Rep. No. 962 (99th Cong., 2d Sess.)

reprinted in 1986 U.S. Code Cong. & Ad.

ee CCG L Asda ecbececrsocvecsscsss 15

132 Cong. Rec. H9575 (daily ed. Oct. 8, 1985) ........ 15

132 Cong. Rec. H9582 (daily ed. Occ. 8, 1986) ........ 15

132 Cong. Rec. $14898 (daily ed. Oct. 3, 1986) ........ 15

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No. 89-378.

IN THE

Supreme Court Of Che United States

October Term, 1989

STATE OF ALABAMA, ex rel. DON SIEGELMAN,

ATTORNEY GENERAL, AND DON SIEGELMAN,

INDIVIDUALLY AS A CITIZEN

OF THE STATE OF ALABAMA,

Petitioners,

VS.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, AND LEE M. THOMAS, ADMINISTRATOR

OF THE ENVIRONMENTAL PROTECTION AGENCY,

AND CHEMICAL WASTE MANAGEMENT, INC.,

AND THE STATE OF TEXAS,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

RESPONDENT CHEMICAL WASTE MANAGEMENT,

INC.’S BRIEF IN OPPOSITION

STATEMENT OF THE CASE

The respondent Chemical Waste Management, Inc.

(“CWM”), respectfully requests that this Court deny the

petition for writ of certiorari, seeking review of the Eleventh

Circuit’s opinion in this case. That opinion is reported at 871

F.2d 1548.

2

a. Respondent’s Statement Of The Facts.

Geneva Industries is an abandoned refinery in a highly

urbanized area near Houston, Texas. (Defendants’ Exhibit 3,

at 1.) Thirty-five thousand people live within one mile of the

site, and the closest residences are only fifty feet from the

boundary. (Def. Exh. 3.) EPA identified the site for attention

on the National Priorities List almost five years ago, ranking

it as a site warranting immediate remedial action under the

Comprehensive Environmental Response, Compensation

and Liability Act (“CERCLA” or “Superfund”), 42 U.S.C.

§ 9601 et seg. See 49 Fed. Reg. 37,083 (Sept. 21, 1984).

Nearly three years ago, after following all applicable policies

and procedures,’ including consultation with the State of

Texas and notification to and opportunity to comment for

the people residing near the contaminated area, EPA de-

cided that the site should be cleaned up by excavating and

removing PCB-containing soil to a secure, off-site disposal

facility. (See Def. Exh. 3.) No specific disposal facility was

selected by EPA. Rather, EPA merely decided the site should

be cleaned up by excavation and disposal at a permitted,

secure off-site landfill; it did not decide which landfill.

(Petition, Appendix, p. 51a).

The Texas Water Commission (“TWC”), not EPA, was the

lead agency on the cleanup. TWC had the responsibility to

define ihe technical scope and specifications of the cleanup.

Therefore, after EPA made the general decision to clean up

‘Under CERCLA, EPA first consults with the State within which the site is located

to determine whether EPA or the State will be the lead agency for the cleanup. In

the instant case, Texas, through the Texas Water Commission (“TWC”) became the

lead agency. The first step is then the “Remedial Investigation” (“RI”) of the site,

usually accomplished under contract with the lead agency. After the RI, a “Feasibil-

ity Study” (“FS”) is conducted for the site in order to determine what actions would

be appropriate to remedy or minimize the hazare at the site. This “RI/FS” process

sets forth the various options available, addresses their cost-effectiveness, and

identifies ones which provide protection for human health and the environment.

EPA then undertakes to evaluate the options, and releases the FS for public review.

After public comment, EPA issues a Record of Decision (“ROD”) for the site in

question indicating EPA’s determination of which option for remediation is

selected. The ROD in the instant case was issued September 18, 1986, indicating

EPA's selection of off-site disposal at a permitted landfill as the favored alternative.

(Def. Exh. 3.)

3

the site by excavation and removal, TWC prepared project

specifications and followed the time-consuming government

contracting process? that had to precede implementation of

EPA’s remedial decision and actual cleanup of the health

threat faced by Houston’s residents. CWM was the successful

bidder to conduct the cleanup, proposing to use its permitted

Emelle, Alabama facility as the site for ultimate disposal.

1. The Geneva Industries Record of

Decision and Its Implementation.

The remedy selected for the Geneva site includes excava-

tion of PCB-containing drums and soils and their transport

to a seeure, permitted off-site landfill. This remedy was

selected only after EPA and TWC completed a thorough

review of alternative disposal options. (See Record of Deci-

sion, Def. Exh. 3.)

CERCLA’s purpose is to remediate health threats posed by

the release or potential release of hazardous substances to

the environment. EPA’s policy under CERCLA is to select

remedial action that meets applicable or relevant and ap-

propriate federal environmental and public health require-

ments. In selecting the Geneva remedy, EPA considered

whether the identified alternatives were consistent with

applicable statutes and EPA’s CERCLA regulations, which

are set forth in the National Contingency Plan (“NCP”).

(See 40 C.F.R. Part 300.)

The CERCLA process also requires public participation in

the decision making on a remedial action. The obvious focus

of this partiapation requirement is the local population,

*TWC followed federal procurement guidelines in soliciting and reviewing bids

for the Geneva site contract. An advertisement for bids was published in the local

Texas Register on January 8, 1988; a national advertisernent was circulated for three

weeks in the Commerce Business Daily of the U.S. Department of Commerce

beginning January 4, 1988. Affidavit of Robert I. Chapin. (Doc. Rec. No. 17.) TWC

selected the lowest responsive bid, which was submitted by CWM. In addition to

being the on-site contractor, CWM proposed to use its own permitted disposal

facility at Emelle, Alabama as the primary disposal site. TWC and CWM entered a

contract for the remedial action on April 18. 1988. EPA is not a party to that

agreement. Affidavit of John Meachum. (Doc. Rec. No. 17.)

4

which is threatened by the release of hazardous substances;

has a direct interest in assuring that the remedy selected will

adequately address that threat; and, unlike the population

surrounding a permitted disposal facility, has no other

forum in which to air their concerns. EPA considered all

pubiic comments as required by CERCLA and its regula-

tions.* In fact, EPA went so far as to reevaluate its decision

based upon after-the-fact comments by Alabama legislators.

While not required, EPA went out of its way to allow for

public participation, and participation by the plaintiffs

below.

EPA and TWC considered three disposal options for the

Geneva soil: off-site land disposal, on-site incineration and

off-site incineration. The agencies determined that all three

options were equally protective of human health and the

environment and, thus, chose the most cost-effective remedy

— off-site land disposal.

Off-site incineration was rejected because it offered no

greater protection; cost more than twice as much as off-site

land disposal; and may have been impracticable due to the

scarcity of facilities. Only three incinerators approved for

burning PCBs then existed and all were operating very close

to full capacity. (See Def. Exh. 3, at 23.)

Similarly, on-site incineration was ruled out because it

provided no greater environmental protection and cost

about 40 percent more than land disposal. This option also

provoked substantial public anxiety because the Geneva site

is located in an urban area. Approximately 35,000 persons

live within one mile of the site, with the nearest homes less

than 50 feet from the site’s boundaries. (Def. Exh. 3, at

22-23.)

Once EPA signed the Record of Decision, which did not

speaiffy any particular off-site disposal facility, implementa-

tion of the remedy was TWC’s responsibility. The Texas

*These regulations, which do not provide for notice and comment by States that

may ultimately receive CERCLA cleanup wastes, have themselves been the subject

of notice and public comment. See, ¢.g., 47 Fed. Reg. 10972 (March 12, 1982); 47

Fed. Reg. 31180 (July 16, 1982).

5

agency prepared detailed specifications for excavation and

disposal of the Geneva soils and solicited contract proposals.

Along with other bidders, CWM submitted a proposal for

disposal at the Emelle facility. Following a protracted gov-

érnment contracting process, TWC awarded the contract to

CWM. The contract itself speafies that while EPA grant

monies are partially funding the project, neither the United

States nor EPA is a party to the contract. Meachum Aff., Exh.

B (Doc. Rec. No. 15).

2. The Emelle Facility.

The CWM Emelle facility receives hazardous and PCB

wastes, some of these being every day. These wastes are

placed in disposal cells that EPA and the State have deter-

mined are properly engineered. In addition, as the EPA

Administrator stated in his letter to Alabama Senator

Richard Shelby, the faciltiy enjoys a unique hydrogeologic

setting that provides unparalleled natural containment for a

landfill. (Doc. Rec. No. 17.)

As the nation’s largest landfill, the Emelle facility is well

able to dispose of the Geneva soil. The Geneva cleanup will

use less than 1.2 percent of the facility’s existing federally

approved PCB disposal capacity. See Affidavit of Dr. Rodger

Henson 4 5 (“Henson Aff.”) (Doc. Rec. No. 15).

The Emelle facility is subject to comprehensive regulation

by EPA and the Alabama Department of Environmental

Management (“ADEM”). The facility is one of only nine

landfills in the country that are authorized to treat, store and

dispose of PCBs, and one of only a handful with sufficient

capacity for the Geneva soil. CWM’s handling of PCBs is

governed by approval letters and regulations (see 40 C.F.R.

Part 761) issued by EPA under the Toxic Substances Control

Act (“TSCA”), 15 U.S.C. §§ 2601 et seg., dating back to 1978.

The faciity’s PCB approvals rest on EPA’s finding that,

due to the site’s hydrogeologic setting, landfill design and

operating procedures, the disposal of PCB wastes such as

those at the Geneva site does not present an unreasonable

risk of injury to human health or the environment. For this

6

reason, EPA has approved the Emelle faality to dispose of

PCBs in concentrations at levels greater than those found in

the Geneva soils. See Henson Aff., Exhs. 1 & 3 (Doc. Rec. No.

15). In addition, in December 1984, EPA, CWM and the

State of Alabama entered a Consent Agreement, which

authorizes the Emelle facility to store and dispose of PCBs.

(See Def. Exh. 2.)

EPA also regulates CWM’s handling of other hazardous

waste through a final permit issued under section 3005 of the

Resource Conservation and Recovery Act (“RCRA”), 42

U.S.C. §§ 6901 et seg., on May 27, 1987 and effective on July

11, 1988. Prior to issuance of the final permit, CWM oper-

ated the facility under “interim status” in accordance with

RCRA. CWM’s hazardous waste operations are also regu-

lated by ADEM through the Alabama Hazardous Waste

Management Act. See Ala. Code §§ 22-30-1 et seg. (1975).

ADEM proposed a draft hazardous waste permit for the

facility in September, 1986 but has not yet issued a final

permit. Until that permit is issued, CWM is authorized to

operate under state “interim status” in accordance with

ADEM’s regulations at Rule 335-14-8-.07, ADEM Adminis-

trative Code.

Under both RCRA and TSCA, as well as state law, CWM is

authorized to handle a broad range of hazardous wastes and

PCBs. That authorization is general, not specific. CWM is

authorized, for example, to dispose of any soil containing

PCBs, such as the Geneva soil, regardless of its source and

without any re’ uirement for specific regulatory authoriza-

tion for particular shipments.

3. Public Participation in EPA Decisionmaking

Regarding Waste Handling at the Emelle Facility.

Petitioner and the citizens of Alabama have had numerous

opportunities for input into EPA’s decisionmaking regarding

the receipt of waste, such as the Geneva soii, at the Emelle

facility. In fact, they have been given the opportunity to

comment on whether the Emelle facility should be allowed to

landfill PCBs exactly like those to be shipped from the

7

Geneva site. In May 1978, when EPA considered the initial

application from the facility for approval under TSCA to

landfill PCBs, EPA provided notice of the application and

solicited public comment through local newspapers. See

Henson Aff., Exh. 1 (Doc. Rec. No. 15). No comments were

received from the public; indeed the State of Alabama

recommended that EPA approve the site for PCB disposal. /d.

More recently, in 1985, ADEM received notice of both

CWM's application and EPA’s TSCA approval for use of the

Emelle facility’s Trench 21 for PCBs. /d., Exhs. 2 & 3. EPA’s

action, and its underlying finding that PCB disposal at

Emelle poses no threat to human health and the environ-

ment, were reviewable in federal court under the Adminis-

trative Procedure Act. Nevertheless, neither ADEM nor any

of the plaintiffs below took any action to oppose EPA’s grant

of TSCA approval to dispose of PCBs in Trench 21, includ-

ing PCB soil such as that from the Geneva site.

In addition, since September 1986 when EPA proposed a

draft RCRA permit for the Emelle facility, issues regarding

disposal of hazardous waste have been fully and publicly

aired in the permitting proceeding. In that proceeding EPA,

jointly with ADEM, provided extensive opportunities for the

ciuzens of Alabama to review and comment on CWM’s

permit application and draft federal and state permits. The

agencies provided twice the time for public comment pre-

scribed in EPA’s RCRA regulations. (See 40 C.F.R.

§§ 124.10-124.14.) They held a public information meeting

and a 74-hour public hearing in Livingston, Alabama near

the Emelle facility. In all, EPA received 78 oral statements

and 145 written comments on the draft RCRA permit.

Indeed, the first oral statement at that hearing was that of

the petitioner, Alabama Attorney General Siegelman. The

Emelle facility’s extensive role in the national effort under

CERCLA to clean up abandoned hazardous waste sites was

freely discussed in this process.

Upon issuance of that permit in May 1987, the State and

some Alabama citizens petitioned the EPA Administrator for

review of the permit decision. In May 1988, the Adminis-

trator granted partial review and, at his direction, EPA

8

Region IV subsequently modified several permit conditions.

As to the remaining issues, the State and citizens groups have ©

filed petitions for review, which are now pending before the

Eleventh Circuit. (Dkt. Nos. 88-7523 & 88-7528.)

b. The Proceedings Below.

On September 28, 1988, petitioner the State of Alabama ex

rel. Don Siegelman, Attorney General, along with individuals

Guy Hunt (the Governor of Alabama), Don Siegelman (the

Attorney Geveral), and Leigh Pegues (the Director of the

Alabama Department of Environmental Management) filed

an action in the United States District Court for the Middle

District of Alabama against the U.S. Environmental Protec-

tion Agency and its then Administrator, Lee Thomas, seek-

ing an injunction to halt the ongoing cleanup of the Geneva

site, and thereby to stop the interstate shipment of some

47,000 tons of soil contaminated with PCBs from the Geneva

site to the disposal facility at Emelle, Alabama operated by

CWM which has been permitted by EPA, upon the State of

Alabama’s recommendation, as safe for disposal of PCBs.

On October 3, 1988, the plaintiffs below filed a motion for

a temporary restraining order to halt the cleanup in Texas

and to stop the interstate transportation of the PCB-

contaminated soil to Alabama. On October 4, 1988, CWM

filed a motion for leave to intervene as a defendant; on

October 12, 1988, the State of Texas also filed a motion to

intervene as a defendant. These motions were granted by the

district court on October 20, 1988.

On October 21, 1988, the district court issued a temporary

restraining order, accompanied by a written memorandum

opinion. (Petition, Appendix, p. la.) On October 31, 1988,

the district court, after requiring the plaintiffs to post a bond

in the amount of $564,970.00, entered a preliminary injunc-

tion based, in part, on the judge’s own belief that the

definition of hazardous waste was sufficient to demonstrate

environmental harm, even though the plaintiffs did not

allege any. The judge thereby prohibited the continuation of

9

any cleanup activity at the Geneva site or the expenditure of

any federal funds in furtherance of the cleanup.

On November 1, 1988, the State of Texas and CWM filed

a joint notice of appeal, and, on November 2, filed with the

Court of Appeals for the Eleventh Circuit a joint motion to

expedite the appeal. Defendants EPA and Lee Thomas filed

a separate notice of appeal on November 3, 1988, and also

filed a motion to expedite the appeal. The motions to

expedite were granted. On November 4, 1988, the plaintiffs

filed a cross appeal on the issue of the requirement of a

bond.

Prior to the Eleventh Circuit’s consideration of the appeal,

the district court granted partial summary judgment to the

plainuffs, ordered EPA to reopen its Record of Decision for

the Geneva site, and dismissed the remainder of the case.

On April 18, 1989, the Eleventh Circuit reversed the

district court’s grant of preliminary injunction and partial

summary judgment, dissolved the permanent injunction,

and dismissed the case for lack of subject matter jurisdiction.

The court also dismissed as moot the plaintiffs’ challenge to

the requirement of a bond which had been imposed by the

district judge. (Petition, Appendix, p. 91a.)

On June 7, 1989, the Eleventh Circuit denied the

appellees/cross-appellants’ (petitioners herein) petition for

rehearing. This petition followed.

SUMMARY OF ARGUMENT

The petition for writ of certiorari should be denied by

this Court because the Court of Appeals for the Eleventh

Circuit correctly ruled that the petitioner lacked standing to

raise the constitutional claims. In addition, the Court of

Appeals was correct in finding that the district court lacked

jurisdiction over the petitioner’s statutory claim. Finally, no

other overriding reason exists for this Court to grant the

writ.

10

REASONS WHY THE PETITION SHOULD BE DENIED

I. THE COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT CORRECTLY HELD THAT PETITIONER

DOES NOT HAVE STANDING UNDER THE FIFTH

AMENDMENT TO CHALLENGE A CERCLA REME-

DIAL ACTION PLAN. \

A. The Petitioner Lacks Standing Because He Has No Injury-in-

Fact.

_ The Court of Appeals for the Eleventh Circuit held that

petitioner lacks standing to pursue his constitutional claims.

(871 F.2d at 1554-56; Petition, Appendix, pp. 58a-68a.)

Petitioner challenges the court’s finding, claiming the

Eleventh Circuit “misapprehended the nature of the con-

stitutional claims advanced on behalf of the individual plain-

tiffs.” (Petition, p. 17.) Petitioner insists, “This is not a

taxpayers’ suit,” (Petition, p. 18) but rather a case attacking

“governmental action which deprives [petitioner] of his

property and liberty without due process of law.” (Petition, p.

18.)*

The law requires that in order to have standing to assert

his constitutional claims a plaintiff must present at a

minimum a “case or controversy” as mandated under Article

III. This Court has held that requirement to mean that the

plaintiff himself must suffer actual or threatened injury

which directly results from the challenged activities and

which is capable of redress by judicial action. Warth v. Seldin,

422 U.S. 490, 499 (1975). In addition, the plaintiffs injury

must be personal, and not some generalized grievance con-

cerning actions or conduct taken by government. United

States v. Richardson, 418 U.S. 166, 174-75 (1974). Generalized

grievances concerning government's conduct are left for

consideration by the representative branches of government.

Allen v. Wright, 468 U.S. 737, 751 (1984); Valley Forge

‘It is axiomatic that States are not “persons” within the meaning of the Due

Process Clause. South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966). Petitioner

therefore does not assert the constitutional claims, as he did below, on behalf of the

State.

11

Christian College v. Americans United for Separation of Church

and State, Inc., 454 U.S. 464, 483 (1982).

In the present case, the individual petitioner asserts that

he, along with the other individual plainuffs below who

chose not to pursue this action further, possess a property

interest in the use and enjoyment of the State’s resources and

that the defendants have deprived them of that use and

enjoyment without due process of law. (Petition, pp. 18-19.)

The petitioner asserts two specific injuries. First, petitioner

claims that additional State expenditures and resources will

be required to ensure safety along the State’s highways due

to trucks carrying waste from the Geneva site to the Emelle

facility. (Petition, pp. 19-20.) Even assuming the alleged

injury is real, the petitioner’s claims arise from his status as a

taxpayer, and not from a personal injury or threat of injury

he suffered.

Clearly, the petitioner’s taxpayer status is an insufficient

basis to infer injury-in-fact as contemplated by Article III.

Therefore, federal jurisdiction does not attach to the

petitioner's claims and petitioner is without standing. See

Valley Forge Christian College v. Americans for Separation of

Church and State, Inc., 454 U.S. 464, 483 (1982); Gladstone

Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979);

Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208,

218-19 (1974). The Court of Appeals ruling on this point is

correct. (871 F.2d at 1554-56; Petition, Appendix, pp. 58a-

68a.)

The other supposed injury petitioner contends allows him

standing sufficent to confer federal jurisdiction is that the

challenged action “would not only deprive the petitioner of

landfill capacity within his own state, but will also divert the

time and energy of the Alabama Department of Environ-

mental Management.” (Petition, p. 20.) Related to this

specific statement of injury, which again for the individual

petitioner is based on his taxpayer status and generalized

grievance, is the implication by petitioner that he will be

injured by the overall effect waste from the Geneva site will

have on the environmental quality within the State of Ala-

bama. (Petition, p. 20.) In this way, petitioner seeks to take

12

advantage of cases construing various citizen-suit provisions

in environmental statutes to find a basis fur standing in this

case. (See Petition, p. 21.) However, once again the peti-

tioner’s claimed injury-in-fact is not the type contemplated or

required for conferring federal jurisdiction over the

petitioner’s claims. As discussed in Section B below, even

assuming petitioner’s generalized grievance concerning

overall environmental quality amounts to a cognizable

injury-in-fact, the constitutional violations petitioner alleges

are not the cause of any environmental injury. Therefore,

the Court of Appeals correctly ruled the petitioner lacked

standing to assert his claims.

B. Petitioner's Alleged Injuries-In-Fact Were Not Caused by the

Alleged Constitutional Violations.

The petitioner now asserts injury based on the adverse

impact shipment of the Geneva waste allegedly will have on

the State of Alabama’s overall environmental quality and

landfill capacity. (Petition, p. 20.) Although the initial

pleadings are devoid of any such allegation, the Eleventh

Circuit addressed the issue and dismissed the petitioner’s

claim because the court found no causal connection what-

soever between injury to the State’s environment and the lack

of notice and opportunity to participate in the selection of

the remediai action plan for the Geneva site. (871 F.2d

1554-56; Petition, Appendix, pp. 67a-68a.)

The CWM Emelle facility receives waste daily similar to the

waste from the Geneva site, and is fully authorized by law to

do so. Petitioner’s complaint does not challenge the facility’s

federal and state permit status, nor its disposal operations.

Instead, the petitioner claims that he personally, along with

other citizens of the State, was entitled to notice and an

opportunity to be heard with regard to EPA’s ROD for the

Geneva site. Indeed, under the petitioner’s theory, the

citizenry of every state in which a treatment, storage and

disposal facility is located is entitled to notice and hearing for

every EPA Superfund remedial action plan.

13

However, as the Court of Appeals correctly held, the

petitioner’s supposed injury does not result from the con-

stitutional violations alleged. The petitioner does not directly

challenge the shipment of waste from the Geneva site to

CWM’s Emelle facility. Instead, petitioner alleges constitu-

tional defects in the notice and hearing scheduled by EPA for

the Geneva ROD. The petitioner’s alleged injuries simply do

not result from the challenged conduct. The petitioner has

failed to show the required causal connection between the

violations alleged and the injury claimed, and that the injury

is likely to be redressed by the requested relief. Allen v.

Wright, 468 U.S. at 751. Therefore, the petitioner lacks

standing to raise the constitutional claims.

Ii. THE COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT CORRECTLY HELD THAT THE DIS-

TRICT COURT LACKED JURISDICTION OVER

THE PETITIONER’S STATUTORY CLAIMS.

The Court of Appeals held that Section 113(h) of

CERCLA, 42 U.S.C. § 9613(h), does not confer federal court

jurisdiction to review challenges to a remedial action until

after the action has been taken. (871 F.2d at 1557-59;

Petition, Appendix, pp. 72a-87a.) The petitioner challenges

the court’s reading of the statute by claiming that its action is

not a “challenge to the remedial action selected by EPA,” but

rather an “effort to restore to the petitioners their statutory

and constitutional rights to a notice and an opportunity to be

heard.” (Petition, pp. 29-30.) The petitioner’s argument

belies the plain language of the statute itself and its legislative

history.°

5Section 113(h}, 42 U.S.C. § 9613(h), states as follows:

(h) Timing of Review.

No Federal court shall have jurisdiction under Federal law other than

under Section 1332 of Title 28 (relating to diversity of citizenship

jurisdiction) or under State law which is applicable or relevant and

appropriate under Section 9621 of this title (relating to clean-up stan-

dards) to review any challenges to removal or remedial action [sic} seiected

14

Section 113(h), 42 U.S.C. § 9613(h), clearly precludes

federal courts from reviewing any challenge to a CERCLA

removal or remedial action, unless the challenge fails into

one of five enumerated exceptions. In the present case, the

petitioner contends his. suit falls within the exception con-

tained in Section 113(h)(4), 42 U.S.C. § 9613(h)(4). (Petition,

pp. 28-29.)

Judicial review is available under Section 113(h)(4) for

citizen suits challenging “removal or remedial action taken

under Section 104 or secured under Section 106.” (Emphasis

added.) Congress’ use of the past tense in this section reflects

an unquestionable intent to bar review of ongoing cleanup

actions. As explained by the House Judiciary Committee,

from which this provision originated: “This provision is not

intended to allow review of the selection of a response action

prior to completion of the action: the provision allows for

review only of an ‘action taken’ . . .”® The Conference Report

affirms that Section 113(h)(4) hare review of ongoing re-

sponse actions:

[A]n action under Section 310 would lie following

completion of each distinct and separable phase of

the cleanup. For example, a surface cleanup could

be challenged as violating the standards or re-

quirements of the Act once all of the activities set

forth in the Record of Decision for the surface

cleanup phase have been compleied. . . . Similarly,

under Section 9604 of this title, or to review any order issued under

Section 9606(a) of this title, in any action except one of the following:

(4) An action under Section 9659 of this title (relating to citizen suits)

alleging that the removal or remedial action taken under Section 9604 of

this title or secured under Section 9606 of this title was in violation of any

requirement of this chapter. Such an action may not be brought with

regard to a removal where a remedial action is to be undertaken at the site.

*H. R. Rep. No. 253, 99th Cong., 2d Sess. 23, reprinted in 1986 U.S. Code Cong. &

Ad. News 3038, 3046 (emphasis added). The Report explains that this amendment

was adopted to preclude litigation that could delay prompt cleanup of CERCLA

sites. Jd. The instant litigation is precisely the kind of delay of a CERCLA cleanup

that was to be precluded by this Amendment.

15

...a challenge could lie to a completed excavation or

incineration response in one area... .’

Petitioner is challenging an ongoing phase of the remedial

plan for the Geneva site: the off-site disposal of contami-

nated soil. Since that phase has not yet been completed, the

district court lacked jurisdiction to review claims brought by

the plaintiffs below. That plaintiffs couch some of their

claims in constitutional terms makes no difference. See South

Macomb Disposal Authority v. EPA, 681 F. Supp. 1244, 1251

(E.D. Mich. 1988) (Section 113(h) precludes constitutional

challenges to CERCLA before completion of cleanup).®

The Court of Appeals correctly held that Section 113(h)

precludes any review to the selection of a removal or reme-

dial action. Section 113(h) then excepts from this bar, in

subsection (4), certain citizen suits “alleging that the removal

or remedial action taken” violated any requirement of

CERCLA. The final sentence, however, states that even a

citizen suit making such allegations cannot be brought re-

garding a removal where a remedial action is going to be

accomplished at the site. This provision does not in any way

confer jurisdiction over petitioner’s claims.

It is important to note that the terms “removal” and

“remedial action” are defined terms in CERCLA. 42 U.S.C.

§ 9601(23) and (24). A “removal” is the immediate action

"H. R. Rep. No. 962, 99th Cong., 2d Sess. 224 (Conference Report), reprinted in

1986 U.S. Code Cong. & Ad. News 3276, 3317 (emphasis added). Although the

Conference Report is unambiguous, the floor debates contain some contradictory

remarks. See 132 Cong. Rec. $14898 (daily ed. Oct. 3, 1986) (remarks of Sen.

Stafford); 132 Cong. Rec. H9575 (daily ed. Oct. 8, 1986) (remarks of Rep. Florio).

However, these remarks were strongly contested by Representative Glickman, who

served on the House Judicary Committee and was responsible for section 113 in the

Conference. See 132 Cong. Rec. H9582 (daily ed. Oct. 8, 1986). He affirmed that

section 113(h)(4) bars any suit challenging an ongoing cleanup. Jd. In face of the

unambiguous language of section 113(h)(4), the Conference Report, and the

remarks of Rep. Glickman, this Court should give no weight to any contrary views of

individual members of Congress.

*Respondent is aware of only one case decided under CERCLA since the 1986

Amendments in which a court has held section 113(h) inapplicable. See Chemical

Waste Management, Inc. v. EPA, 673 F. Supp. 1043, 1054-55 (D. Kan. 1987). In that

case, however, the plaintiffs were not challenging selection of a remedy for a

particular site and the requested relief would not have delayed any cleanup.

16

taken when hazardous substances have been released in

order to minimize or mitigate damage. It includes such

actions as fencing the area, providing alternative water

supplies, or, if necessary, evacuation. A “remedial action”

means those later actions taken at a site to permanently

remedy the situation. Examples of remedial action include

onsite incineration or excavation and transportation to an

offsite landfill, such as has been done in the instant case.

Thus, the last sentence of Section 113(h)(4), 42 U.S.C.

§ 9613(h)(4), which states that a citizen suit “may not be

brought with regard to a removal where a remedial action is to

be undertaken at a site” means that even a completed

emergency “removal” (such as an evacuation) cannot be

challenged when there is to be a later remedial action (such

as excavation of contaminated soil and shipment to an offsite

disposal facility). When read properly, it is evident this

sentence has no application to the present case, which is a

challenge to a “remedial action” not yet completed.

Section 113(h)(4) in no way allows petitioners to escape the

general jurisdiction bar cf Section 113(h), 42 U.S.C.

§ 9613(h). Therefore, the Court of Appeals was correct in

ruling that the district court lacked jurisdiction to hear the

petitioner’s statutory claims.

Ill. NO OTHER OVERRIDING OR COMPELLING

REASON EXISTS FOR THE WRIT TO BE

GRANTED. .

A review on writ of certiorari is not a matter of right, but of

judicial discretion, and should be granted only when special

and important reasons exist. No such special or overriding

reason is present in this case. The decision of the Court of

Appeals is not in conflict with the decision of any other

federal court of appeals; the case does not involve a federal

question decided in an way that conflicts with any state court

of last resort; and, the case presents no unsettled constitu-

tional questions that would warrant granting the writ. There-

fore, the petition for writ of certiorari should be denied.

17

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari to the United States Court of Appeals for the

Eleventh Circuit should be denied.

Respectfully submitted,

FouRNIER J. Gaie III

H. THOMAS WELLS, JR.*

ALFRED F. SMITH, JR.

Attorneys for Respondent

Chemical Waste Management, Inc.

OF COUNSEL:

MAYNARD, COOPER, FRIERSON & GALE, P.C.

12th Floor, Watts Building

Birmingham, Alabama 35203

(205) 252-2889

Roger C. Zehntner

Chemical Waste Management, Inc.

3003 Buttertield Road

Oak Brook, Illinois 60521

(312) 218-1639

*Counsel of Record