Petition for Writ of Certiorari — Puerto Rico Aqueduct & Sewer Authority v. Comite Pro Rescate de la Salud

Supreme Court brief1990

Ask Donna

What actually matters in this document.

Text

89-1185":

fate 25 ae

Rik

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

PUERTO Rico AQUEDUCT AND SEWER AUTHORITY, et al.,

Petitioners,

COMITE PRO RESCATE DE LA SALUD, et a/.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

LAURIE 8S. GILL

DOUGLAS A. JOHNS

PALMER & DODGE

One Beacon Street

Boston, Massachusetts 02108

STEVEN C. LAUSELL

JIMENEZ, GRAFFAM & LAUSELL

421 Munoz Rivera Avenue

Hato Rey, Puerto Rico 00918

EDWARD J. BURNS

JOHN L. GREENTHAL

NIXON, HARGRAVE, DEVANS

& DOYLE

Lincoln First Tower

Rochester, New York 14604

SANTIAGO MARI ROCA

BIAGGI BUSQUETS & MARI ROCA

Banco Central Plaza

Calle Mendez Vigo 101

Mayaguez, Puerto Rico 00709

GEOFFREY S. STEWART *

JEFFREY J. DAVIDSON

IIALE AND DORR

Noprane vauct G&S.

JAN 24 W390

; EPH © SPANIOL, [R,

4 —— = 1 }

—— ee

1455 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

Tel.: (202) 393-0800

ROBERT E. ZAHLER

MICHAEL L. STERN

SHAW, PITTMAN, POTTS

& TROWBRIDGE

2300 N Street, N.W.

Washington, D.C. 20037

IRWIN H. FLASHMAN

ZADETTE BAJANDAS

O'NEILL & BORGES

Chase Manhattan Building

Hato Rey, Puerto Rico 00918

* Counsel of Record

WILSON - EPES PRINTING CO.,

Inc. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether the Resource Conservation and Recovery

Act’s domestic sewage exclusion for “solid or dissolved

material in domestic sewage,’ 42 U.S.C. § 6903(27), is

confined to waste emanating from houses, or whether the

exclusion also covers sewage from factories that con-

tains waste from factory restrooms, showers, cafeterias,

clinics and other employee facilities.

2. Whether an amicus curiae brief filed on behalf of

the EPA with the court of appeals is entitled to deference

as a statement of agency policy and statutory interpre-

tation.

3. Whether EPA’s construction of RCRA’s domestic

sewage exclusion is entitled to deference as a statement

of agency policy or statutory interpretation when EPA

never publicly articulated such a construction aside from

the arguments in the amicus curiae brief it filed with

the court of appeals.

(i)

PARTIES TO THE PROCEEDING

Petitioners not named in the caption are Bristol Myers

Company, Bristol Caribbean, Inc., Bristol Laboratories

Corporation, The Perkin-Elmer Corporation, Perkin-

Elmer Caribbean Corporation, Puert. Rico Industrial

Development Company, Sea Electronic Aids, Inc., Storage

Technology Corporation, Storage Technology de Puerto

Rico, Inc., Westinghouse de Puerto Rico, Inc. and West-

inghouse Electric Corporation. *

* Pursuant to Supreme Court Rule 29.1, petitioners’ parent and

subsidiary corporations are as follows:

1. Petitioner Bristol Myers Company is a publicly held corpora-

tion that is the parent corporation of petitioners Bristot Caribbean,

Inc. and Bristol Laboratories Corporation. All of the subsidiaries

of Bristol Myers Company, Bristol Caribbean, Inc. and Bristol

Laboratories Corporation are wholly owned except for the following

foreign subsidiaries of Bristol Myers Company: Bristol Myers Lion

Ltd., S.M.I. Bristol, Boryung Bristol Ltd., Bristol Myers S.A.,

Bristol Hellas A.E.B.E., P.T. Bristol Myers, 2903 Realty Corp.,

Institute Biomedico S.A. de C.V., and Servicios Biomedicos de

Compresion.

2. Petitioner The Perkin-Elmer Corporation is a publicly held

corporation that is the parent corporation of Perkin-Elmer Carib-

bean Corporation. Other than shares owned by directors for qualify-

ing purposes, all of the subsidiaries of The Perkin-Elmer Corpora-

tion and Perkin-Elmer Caribbean Corporation are wholly owned

except for the following direct and indirect foreign subsidiaries of

the Perkin-Elmer Corporation:

Bodenseewerk Geraetetechnik Beteiligungs und Verwaltungsge- om

sellschaft m.b.h., Bodenseewerk Geraetetechnik G.m.b.H., BBG

Bodenseewerk Geraetetechnik British Aerospace G.m.b.H., Ram-

Svstem G.m.b.H., Perkin-E!mer Sciex Instruments, Hitachi Perkin-

Elmer, Ltd., Perkin-Elmer Citizen Co., Ltd., Daiichi METCO, Co.,

Ltd., ULVAC-PHI, Inc., Perkin-Elmer/Cetus Instruments.

3. Petitioner Sea Electronic Aids, Inc. is a subsidiary of a

Canadian corporation, Sea Electronics Ltd. Sea Electronics Ltd.

and Sea Electronic Aids, Inc. have no subsidiary corporations that

are not wholly owned.

4. Petitioner Storage Technology Corporation is a publicly held

corporation that is the parent corporation of petitioner Storage

————————————

ili

Respondents not named in the caption are Felix

Alduen, Rebecca Aponte-Cruz, Cilaricia Arce-Acevedo,

Technology de Puerto Rico, Inc. All of the subsidiaries of Storage

Technology Corporation and Storage Technology de Puerto Rico, Inc.

are wholly owned.

5. Petitioner Westinghouse Electric Corporation is a publicly

held corporation that is the parent corporation of Westinghouse de

Puerto Rico, Inc. Other than shares owned by directors for qualify-

ing purposes, all of the subsidiaries of Westinghouse Electric Cor-

poration and Westinghouse de Puerto Rico, Inc. are wholly owned,

except for the following:

ADEPT Technologies, AEG-Beteiligunsgesellschaft MBH, AEG-

Westinghouse Transportation Systems, Inc., Airship Industries,

Ltd., CEEC Holdings Incorporated, CEEC Investments Incorporated,

Challenger Electrical Equipment Corporation. Computer Aided

Training Company, Incorporated, Eletromar Industria Eletrica

Brasileira, S.A., Eletromar Nordeste, S.A., Email Westinghouse

Pty., Limited, Enwesa Servicios, S.A., Eregli Demir ve Celik

Fabrikalori, A.S., Escorts, Ltd., Gamma Metrics, Industria IEM,

S.A. de C.¥., Infrared Fiber Systems, Inc., Innovative Technologies

Incorporated, Inova Microelectronics, Inc., Integrated Communica-

tion Systems Inc., Integrated Power Corporation, Jerry Thompson

& Associates, Inc., Mecanica Pesada, S.A., Mex Control S.A. de C.V..,

Micros Systems Inc., Mitsubishi Nuclear Fuel Co., Ltd., Powerex,

Inc., Project Funding Corporation, Serratosa & Castells, S.A., Siam

Toracato de Tella, Ltd., Silectra S.A. de C.V., Speech Plus, Texas

PFC, Inc., Theta J Corporation, Turbine Metal Technologies, Inc..

United Western Technologies Corp., Vektron S.A., W. S. Industries

(India) Ltd., Westinghouse-Airship Industries, Inc., Westinghouse

de Argentina,-S.A., New Trends Corporation, Porta Pack Corpora-

tion, Group W Radio, Inc., Metropolitan Broadcasting Corporation,

Country American Corporation, Castle Rock Entertainment, Horizon

International Television, Inc., Sutro Towers, Inc., Television Tower,

Inc., Metron, Inc., Harbinger EDI Services, Inc., Industrias Elec-

tronica, S.A. (INDELEC), Westinghouse Electro Metalurgicas, C.A.

(WEMCA), Westinghouse do Brasil, S.A. (WEBSA), Westinghouse

Electric Australia Holdings Limited, Email Westinghouse Private,

Ltd., Email Westinghouse Properties, Contadores Eléctricos, C.A.

(CONTELCA), Elektrik Techizati Imalti Tesisati, A.S., Horiba

Westinghouse, Ltd., Hyosung Heavy Industries, Ltd., Industria

Eléctrica de México, S.A., Industria et Technologie de la Machine

Intelligentie (ITMI). ISCOSA Industries and Maintenance, Ltd..

Maihak A.G., Reftrans, S.A., Societe Generale de Travaux Electri-

Milagros Barbosa-Ruiz (for herself and the marital com-

munity of herself and Fermin Rosado), Nereida Cancel-

Santana, Mo!lania Casiano-Gonzalez, Virgen Casiano-

Irizarry, Wilfredo Colon-Marrero, Nilsa Colon-Rivera

(for herself and the marital community of herself and

Pedro Padilla), Pascual Crodero-Rodriguez, Monserrate

Cruz-Chaullissant, Anastacio Custodio-Dennis, Edwin

Custodio-Roche, Paula Providencia Diaz-Vazquez, Alicia

Duran, Santos Feliciano-Rivera (for herself and the

marital community of herself and Juan Rodriguez

Rivera), Wanda Flores-Roman, Teresa Figueroa-Vega,

Providencia Fortuna-Rodriguez, Iris Garcia-Rodriguez

(for herself and the marital community of herself and

Idelfonso Velez), Raul Garcia-Rodriguez, Nery Gomez-

Almeida, Maria Antonia Guzman-Rodriguez, Juanita

Irizarry-Bonilla, Yolanda Irizarry-Gonzalez, Alma

Irizarry-Candelaria (for herself and the marital com-

munity of herself and Calixto Carrera), Adela Irizarry-

Cordero, Rosa Irizarry-Gareia, Domingo Irizarry-

Ramirez, Raul Irizarry-Vazquez, Lucia Justiniano-Valle

(for herself and the marital community of herself and

Damian Valentin), Carmen M. Lebron-Lopez, Ramonita

Lopez-Diaz, Georgina Lopez-Vega (for herself and the

marital community of herself and Angel Lopez), Efrain

Marrero-Velazquez, Cielo Martin-Zayas (for herself and

ques (SGTE), ETIC BV Rotterdam, Westinghouse Asia Controls

Corporation (WEASIA), Cemac Westinghouse Pty. Ltd., Westing-

house Electric Supply Company of Saudi Arabia (WESCOSA),

Westinghouse Plasma Systems International, N.V., Westinghouse

Saudi Arabia Ltd. (WSAL), Westinghouse Industria Electrica

Brasileira S.A., Westinghouse Motor Company, Airspace Manage-

ment Systems, BITG Corporation, Industria Eléctrica de México,

S.A., and WEXICO Systems and Services, Ltd.

6. Petitioners Puerto Rico Aqueduct and Sewer Authority and

Puerto Rico Industrial Development Company are public authorities

of the Commonwealth of Puerto Rico.

For the purposes of this listing qualifying shares of directors

have not been taken into account in determining whether a sub-

sidiary corporation is wholly owned.

the marital community of herself and Jorge Fernandez),

Alexis Martinez-Merecado, Magdalena Medina-Ramos,

Eneida Melendez-Marrero, Carmen Mercado-Lugo, Nilda

Morales, Delfina Morales-Vargas, Natividad Nadal-

Santana, Carlos Javier Nazario-Lopez, Luis Angel

Nazario-Lopez, Rosa Negron-Figueroa, Pedro J. Oliveras-

Ramos, Jr., Angel Ramon Ortiz-Diaz, Maria F. Ortiz-

Troche, Luz Maria Otero-Cruz, Carmen L. Pares (for

herselfsand her daughter Jessica Collazo Pares), Gloria

Perez-Rodriguez, Milagros Quinones-Lugo (for herself

and the marital community of herself and Carlos Juan

Galleti Santiago), Liduvina Ramirez, Ernestina Ramirez-

Belmont, Maria Ramirez-Rivera, Consuelo Ramos (for

herself and the marital community of herself and Pedro

Oliveras Velez), Jorge Ramos-Rivera, Petra Rivera-

Castillo, Pedro Rivera-Ramos, Zoila A. Rivera-Santiago,

Consuelo Robles, Blanca Rodriguez-Lugo, Carlos Rodri-

guez Silva, Ana Emilia Rodriguez-Velez, Ana J. Rojas-

Alicea (for herself and the marital community of herself

and Moises Acevedo Pagan), Luz C. Rosado Serrano -

(for herself and the marital community of herself and

German Prieto Camacho), Eneida Ruiz-Segarra (for her-

self and the marital community of herself and Antinio

Nieves Irrizarry), Myrna J. Sanabria-Garcia (for her-

self and the marital community of herself and Wilson

Ayche Valentin), Carmen N. Sanchez-Vega, Arturo Soto-

Barbosa, Juanita Soto-Rivera (for herself and the mari-

tal community of herself and Santiago Edir Rosas-Muniz),

Lillian M. Torres-Echevarria, Georgina Valentin-Molina

(for herself and the marital community of herself and

Israel Gonzalez), Angel Vazquez-Ayala, Nadia Ivette

Velazquez, Providencia Velazquez-Martinez, Maria T.

Velez-Carbo (for herself and the marital community of

herself and Abdon Fernandez Ithier), Maria T. Velez-

Troche, Gloria Vientos-Sanchez, Ana Julia Zaragoza (for

herself and the marital community of herself and Ezel

Zaragoza), and all others similarly situated.

a a “Ad

°F,

= a pe

eS ;

ae ~~

’

-_= -

ae = ical “We i

TABLE OF CONTENTS

Page

ee IE siceesth tctniencndontdinstieasbidenpbcsebseinciaiiniion 1

i cotssi ciscriidentebianahcmacesibraiescianndnllecrecpaiemmbbianie 2

STATUTORY PROVISIONS INVOLVED .................... 2

STATEMENT ............. sithch oarheiininscuemmniaasdcetitialamaeaaedanh 2

REASONS FOR GRANTING THE PETITION... .... - 12

RM te TEN He ce ee OIE cr ERE IEE 30

APPENDIE A. .................. TET NN ODN EH OSS Iee Hae Hs la

APPENDIX B ................... EEO eR RE Te WORN He REE 20a

RRR CUE ea mmIN ee ar oy rete es. Tol, 21a

STIG AIP sthsecinachssaccstcnesccdiecckelammeiadibeiaigudeieenn 44a

(vii)

Vili

TABLE OF AUTHORITIES

Cases: Page

Batterton v. Francis, 482 U.S. 416 (1977) ........... 29

Board of Governors of Federal Reserve System v.

First Lincolnwood Corp., 489 U.S. 234 (1978)... 29

Bowen v. Georgetown University Hospital, 109

Sens : GUN IIE csinicccabacisneaseusasecclebieniannnecusbdiseensmecenie 27, 29

Chemical Manufacturers Assoc. v. Natural Re-

sources Defense Council, Inc., 470 U.S. 116

NN ac a 12-13

Chevron, U.S.A., Inc. v. Natural Resources De-

fense Council, Inc., 467 U.S. 837 (1984) -............ 28

EI. du Pont de Nemours & Co. v. Train, 430 U.S.

BE INN Rhett ea SORE Pee pee ROMO MERE op Coe. 13

Federal Election Commission v. Democratic Sena-

torial Campaign Committee, 454 U.S. 27 (1981)... 29

Fishel v. Westinghouse Electric Corp., 617 F.

a | eee 15

Ford Motor Credit Co. v. Milhollin, 444 U.S. 555

ER ie IE ie ie arc ree oN PT ele Oe P RT ORS aN PE LION 28

Gwaltney of Smithfield, Inc. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49 (1987) .......0......... 21 n.21

Halistrom v. Tillamook County, 110 S.Ct. 304

ERED Naan er alone sy Aa is cedar anny eee ECL RS 21 n.21

International Paper Co. v. Ouellette, 479 U.S. 481

I a anc gta aah di a laa i oe 13

Investment Company Institute v. Camp, 401 U.S.

os Ee oie sic bard ccdicc dancin cxnc epcceane tani teeta etnagians 27-28

Natural Resources Defense Council, Inc. v. EPA,

790 F.2d 289 {8rd Cir. 1986), cert. denied, 479

I cs eceaceiisialigleaicnbien 13

Statutes, regulations & rules:

Administrative Procedure Act, 5 U.S.C. $$ 551 et

seq.:

oo Ea. oe Fen eee ree 27

Federal Insecticide, Fumgicide and Rodenticide

Act, 7 U.S.C. $§ 186 et seq.:

Section 10, 7 UGC. § 1060 q.....:.ccccsisscnn. 17 n.17

Fed. R. Civ. P. 54(b)

TABLE OF AUTHORITIES—Continued

Page

Swine Health Protection Act, 7 U.S.C. §§$ 3801

et seq.:

Section $8, 7 U.S.C. § 3802 (2) .................... uu. 17n.17

Hazardous Substances Act, 15 U.S.C. §§ 1261 et

seq.:

Section $, 15 U.S.C. § 1262 (b)................0.000000000.. 17 n.17

a ee cba Aare cites inedsacchdelvickcestnsododited 2

Clean Water Act, 33 U.S.C. §§ 1251 et seq.:

Section 201, 33 U.S.C. § 1281 ........00000...00000.......17 0.18

Section 204, 38 U.S.C. § 1284 .....00... 17n.18

Section 307, 338 U.S.C. § 1317 .............................. 4,13

Section $19, 38 U.S.C. § 1898 .............................. 15

Section 402, 33 U.S.C. § 1842 0000000... Rome eas 15

Section 604, 33 U.S.C. § 1964............................... 20

Section 505, 33 U.S.C. § 1865 _...... SERRE AN EETS PREY 21 n.21

Energy Policy and Conservation Act, 42 U.S.C.

$$ 6201 et seq.:

Section 322, 42 U.S.C. § 6292 (b) .......00..... ee. 17 n.17

Section 325, 42 U.S.C. § 6295 (i) .......... 17 n.17

Resource Conservation and Recovery Act, 42

U.S.C. §$§ 6901 et seq.:

Sections 3001-3020, 42 U.S.C. $$ 6921-31, 6933-

ed rh cs aucehceuanaedil . 9n.11

Section 1002, 42 U.S.C. § 6901 .............. eet kel 14

Section 1003, 42 U.S.C. § 6902 .....00.0.0 ee. 14

Section 1004 (5), 42 U.S.C. § 6903 (5) 000. 3&n.1

Section 1004 (27), 42 U.S.C. $ 6903 (27) —......... passim

Section 1006, 42 U.S.C. § 6905 ~.......000000000000.... 15, 20, 23

Section 1006 (a), 42 U.S.C. § 6905 (a)... 14

Section 1006 (b), 42 U.S.C. § 6905 (b) 20... 14

Section 3001 (i), 42 U.S.C. § 6921 (i) 0.00... 16

Section 3005, 42 U.S.C. § 6925 ..........0. ce. 16

Section 3007, 42 U.S.C. § 6927 ............... Sa Ae es nc 24

Section 3010(a), 42 U.S.C. § 6930 (a) 00... 24

Section 3010(a) (2), 42 U.S.C. § 6930(a) (2)... 17

Section 3018, 42 U.S.C. § 6939............0000. 23

Section 3018 (a), 42 U.S.C. $ 6939 (a) __.... 23-24 & n.24

Section 3018 (b), 42 U.S.C. §$ 6939 (b) 0... 23, 25 n.25

Section 3018(d), 42 U.S.C. § 6939 (d) -............ 24

TABLE OF AUTHORITIES—Continued

Page

Section 3019, 42 U.S.C. § 6939a......000.0000022222222-2- 24

Section 4005 (c), 42 U.S.C. § 6945 (c) —..0.... 16

Section 4010(c), 42 U.S.C. § 6949a(c) _....... 16-17 n.16

Section 7002, 42 U.S.C. § 6972 ...................222---. 9, 21

Section 7002(a) (1) (b), 42 U.S.C. § 6972(a)

(ED: TETRIS AE PS AIE neo to = ne Or oF R Race 2,5

Section 7002(b) (1), 42 U.S.C. § 6972(b) (1).. 21

Section 7002 (d), 42 U.S.C. § 6972 (d)................ 9n.10

Section 7003, 42 U.S.C. § 6973 ......... 9 n.10, 10, 25 n.25

Section 8002 (d), 42 U.S.C. § 6982(d) _........ 16-17 n.16

Section 11008(a) (11) (A), 42 U.S.C. § 6992¢

a al 16-17 n.16

Clean Air Act, 42 U.S.C. §§ 7401 et seq.:

Section 172(b) (6), 42 U.S.C. § 7502 (b) (6)... 28

Section 308, 42 U.S.C. § 7608 .................c0ce--eeeneeee 20

Section 304, 42 U.S.C. § 7604....... padre chien ep OTe 21 n.21

National Energy Conservation Policy Act, 42

U.S.C. §§ 8201 et seq.:

Section 215, 42 U.S.C. § 8216(a) (4) -................. 17 n.17

Section 262, 42 U.S.C. § 8235a .......................... 17 n.17

Comprehensive Environmental Response, Compen-

sation and Liability Act, 42 U.S.C. §§ 9601 et

seq.:

Section 101 (34), 42 U.S.C. § 9601 (34)... 17 n.17

Section 106, 42 U.S.C. § 9606 ....................2-2.-2----- 20

Section 310, 42 U.S.C. § 9659.00. SA aan: 21n.21

PR FR | | Ra evn ee OnE 28

I inicio ccirenscenteindicsinttindantilibannecl 17-18 n.19

i Bt I ii ccucincsccconcodcccheshersoncsesssoonmcanecnens 17-18 n.19

Fat SG 8 |, | cee nen meee 17-18 n.19

40 C.F.R. § 141.34(c) (2) -....00...000....... il ican 17-18 n.19

ON 8 Neen 17-18 n.19

40 C.F RB. 8 167 Bi (0) .2..-.2..00c000.<20.------ sceiclgeaidesidamaaded 18

40 C.F.R. § 168.8(m).......................... ieee as 18

Coy Be 8 | Sen EEEE eee 15-16

Oe an i I OD ooicccsvcnccstccecnedtensctescrcsssnrseseve meee 15-16

ee ND scccviccercsinesccccncccrcnccmasesseurisdaitisi 15-16

PRD Ee 8, | ee 17-18 n.19

oe PO | 8 | | | Rare enr NNEC 17-18 n.19

TABLE OF AUTHORITIES—Continued

Page

A es Te I ooo scndenadevvcasubsdannadndilceds eden 15-16

40 C.F Be § BEG.101 (9) ........2222220000000.2220. ite Sine eee 17-18 n.19

RP ir ae Oe PN occ cccaccresscescesoncomeknonnenn 17-18 n.19

a eel 15-16

40 C.F.R. § 257.2 ....... pukonndasteteabensscaecsatiu nua denna 16

aa ite Be aisissdnnkinceccitinsciens Seas ccunpckobioneel 5-6 n.6, 26 n.27

A se nD RD CODD coschcesiscnsnccsccrccseoesenennne 15, 18, 29

re I oc de 18

40 C.F .R. $ 361.4(b)‘(1)...................... PRE eAs 17-18 n.19, 18

40 C.F.R. § 266.41 (b) (2) (iii) (A) oo... 17-18 n.19

En Reale rere er 17-18 n.19

A a eae 17-18 n.19

40 C.F.R. § 370.40 .............. PoP RI OREE Hee caiek cocaine 17-18 n.19

ee ekolasioemil 17-18 n.19

BD Gh als OF Pe PON ODD poccccercccecderccccccesccosvceess 17-18 n.19

A cla cenmumane 17-18 n.19

53 Fed. Reg. 47632 (Nov. 23, 1988) 0.000000. 25 n.25

45 Fed. Reg. 33084 (May 15, 1980) 6 n.7

Mass. Regs. Code tit. 314, § 7.16.................................. 19

Puerto Rico Environmental Quality Board, Regu-

lation for the Certification of Plans & Projects,

ss EE re a ee 19

Legislative Materials:

House Conference Report on the Hazardous and

Solid Waste Amendments of 1984, H.R. Rep.

No. 98-1133, 98th Cong., 2d Sess., reprinted in

1984 U.S. Code Cong. & Admin. News 5649........ 20

Miscellaneous:

EPA, Guidance for Implementing RCRA Permit-

by-Rule Requirements at POTWs (July 21,

MED oss cacassuss ncskandintnsncanlsldindnieccdigaddaiiemstabiasdaredamabiates 10 n.13

EPA, Report to Congress on the Discharge of Haz-

ardous Wastes to Publicly Owned Treatment

Se Ty I menace ccccticaceencdconmmcniaereniionandl 24-25, 29

EPA, Apparent Air Incidents at the Barrio

Guanajibo Industrial Park, Mayaguez, Puerto

Rico, Ann Tischbein, Region II Technical As-

ED TE Ee aecicsccicces ec oeece ns 9n.10_

ros

In THE

Supreme Court of the United States

OCTOBER TERM, 1989

No.

PUERTO RICO AQUEDUCT AND SEWER AUTHORITY, et al.,

Petitioners,

COMITE PRO RESCATE DE LA SALUD, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS :

FOR THE FIRST CIRCUIT

The Puerto Rico Aqueduct and Sewer Authority, Bris-

tol Myers Company, Bristol Caribbean, Inc., Bristol

Laboratories Corporation, The Perkin-Elmer Corpora-

tion, Perkin-Elmer Caribbean Corporation, Puerto Rico

Industrial Development Company, Sea Electronic Aids,

Inc., Storage Technology Corporation, Storage Technology

de Puerto Rico, Inc., Westinghouse de Puerto Rico, Inc.

and Westinghouse Electric Corporation petition for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the First Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-19a) is reported at 888 F.2d 180. The opinion of the

district court (App. C, infra, 2la-43a) is reported at

693 F. Supp. 1324.

JURISDICTION

The judgment of the court of appeals was entered on

October 26, 1989 (App. B, infra, 20a). The jurisdiction

of this Court is invoked under 28 U.S.C. § 125411).

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved are 42 U.S.C.

$$ 6903(5), 6903127), 6972(a)(1)(B) and 6905(a).

Those provisions are set forth in relevant part in Ap-

pendix D, infra, 44a-47a.

STATEMENT

This ‘case raises the question of the meaning of the

words “domestic sewage” in the domestic sewage exclu-

sion to the Resource Conservation and Recovery Act, 42

U.S.C. $$ 6901 et seg. (“RCRA”). RCRA itself does not

define this term. The district court held that “domestic

sewage’ means sanitary waste. The court of appeals

reversed, ruling that “domestic sewage” refers to sew-

age discharged from private households. RCRA’s appli-

cability to petitioners’ activities turns on the construc-

tion of these two words.

RCRA generally regulates the disposal of solid waste

and hazardous waste by industrial plants and other com-

mercial enterprises. Section 7002(a)(1)(B) of RCRA,

42 U.S.C. § 6972(a)(1)(B), authorizes citizen suits

against—and only against—persons who generate, trans-

port, treat, store or dispose of “solid or hazardous

waste.” However, RCRA defines “solid waste” to mean

any garbage, refuse, sludge from a waste treatment

plant, water supply treatment plant, or air pollu-

tion control facility and other discarded material, in-

cluding solid, liquid, semisolid, or contained gaseous

material resulting from industrial, commercial, min-

ing, and agricultural operations, and from commun-

ity activities, but does not include solid or dissolved

material in domestic sewage, or solid or dissolved

materials in irrigation return flows or industrial dis-

charges which are point Sources subject to permits

under section 1342 of title 33, or source, special nu-

clear, or byproduct material as defined by the Atomic

Energy Act of 1954, as amended (68 Stat. 923).

42 U.S.C. §$ 6903(27) (emphasis added). By definition

“hazardous waste” is a subset of “solid waste’ under

RCRA § 1004(5), 42 U.S.C. § 6903(5), so RCRA applies

to “hazardous” materials only if they fall within the

definition of “solid waste.”! Thus, if a waste stream

consists of “solid or dissolved material in domestic sew-

age,” that waste is not “solid waste” or “hazardous

waste” and RCRA does not regulate it.

Petitioners are two public authorities, the Puerto Rico

Aqueduct and Sewer Authority (‘“PRASA’”) and the

Puerto Rico Industrial Development Company, and ten

companies that own or operate factories within or adjoin-

ing the Guanajibo Industrial Park near Mayaguez,

Puerto Rico (the ‘“Park’’). Privately-owned sewer con-

nections link these factories to a major publicly owned

sanitary sewer line that, in turn, runs to a _ publicly

owned treatment works (the “POTW’) operated by

PRASA (App. A, infra, 4a). At the time the original

complaint was filed, these sewer lines and the POTW

contained only wastes from the Park, and waste from the

1RCRA § 1004(5), 42 U.S.C. § 6903(5) provides that:

The term “hazardous waste” means a solid waste, or combina-

tion of solid wastes, which because of its quantity, concentra-

tion, or physical, chemical, or infectious characteristics may—

(A) cause, or significantly contribute to an increase in

mortality or an increase in serious irreversible, or incapacitat-

ing reversible, illness, or

(B) pose a substantial present or potential hazard to human

health or the environment when improperly treated, stored,

transported, or disposed of, or otherwise managed.

(Emphasis added).

Park did not mix with waste from private houses

(ibid.).°

Petitioners’ factories—like countless other industria!

facilities across the United States—dispose some part of

their wastes into the local sanitary sewer system, in this

case the Park’s sewer system.* Before being discharged

to the sewers, those wastes must meet the pretreatment

standards of the Clean Water Act, 33 U.S.C. § 1317. The

sanitary sewers carry this waste to the Park’s POTW.

which is required to treat the wastes until they are in

compliance with the effluent limitations of the POTW’s

discharge permit. In addition to purely industrial waste,

the factories’ waste stream contains sanitary wastes from

the restrooms, cafeterias, showers, clinics and other fa-

cilities used by more than 3,000 employees in the Park.*

Respondents, a group of individuals and a community

organization, filed their Amended Complaint on March 7,

1988 against 24 defendants. Respondents alleged that pe-

titioners had violated the basic regulatory provisions of

RCRA by discharging various hazardous wastes through

the Park’s sanitary sewer system without keeping proper

records or obtaining necessary permits (App. A, infra,

4a-5a!. Respondents claimed that the Park’s sewer lines

were leaking, releasing hazardous waste fumes within

and around the Park (id., 5a). Arguing that these re-

“In December 1987, after the original complaint was filed, the

Park’s POTW was closed and waste water from the Park was car-

ried to a regional POTW operated by PRASA in which industrial

waste and residential sewage are mixed (App. A, infra, 16a-17a).

However, respondents’ Amended Complaint predicates its RCRA

claims upon petitioners’ discharge of wastes to the original POTW.

% Other wastes are captured at the factories by filters, drain tanks,

sumps or other pretreatment devices and sent to licensed disposal or

other appropriate facilities. Those wastes are not in question here.

4 The Park also contains a second, storm sewer system for collect-

ing rainwater and discharging it into a nearby river (App. A, infra,

4a). The discharges at issue here, however, all were made to the

Park’s sanitary sewer system, and not to the storm sewers.

leases posed an “imminent and substantial endanger-

ment” to health and the environment, respondents sought

an injunction against petitioners under RCRA’s citizen

suit provision, § 7002(a)(1)(B), 42 U.S.C. § 6972(a)

(1) (B) (ibid.).*

A. The district court dismissed respondents’ RCRA

claims on the grounds that the factories’ sanitary wastes

were “domestic sewage” and, therefore, that RCRA’s

domestic sewage exclusion exempted petitioners’ dis-

charges from the statute’s definition of “solid waste.”

The district court concluded that the domestic sewage

exclusion (“DSE”) applied for several reasons. First,

finding that “domestic sewage” was not defined in RCRA

itself, the court looked to the Environmental Protection

Agency’s RCRA regulations, which define ‘domestic

sewage” as “ ‘untreated sanitary wastes that pass through

a sewer system’” (App. C, infra, 26a).° The court re-

5 Respondents alleged as well that certain of the defendants had

violated the Clean Air Act and the Clean Water Act. However,

respondents have settled their Clean Air Act and Clean Water Act

claims against all petitioners except one.

Respondents also brought individual and class pendent claims

against petitioners under the laws of the Commonwealth of Puerto

Rico for nuisance, negligence, trespass and strict liability (App. C,

infra, 38a). At the time this action was brought, those pendent

claims already were the subject of a separate action in the Com-

monwealth courts in Mayaguez. The district court declined to exer-

cise jurisdiction over respondents’ pendent claims and dismissed

them (ibid.).

6 EPA’s regulation, 40 C.F.R. § 261.4, provides:

(a) Materials which are not solid wastes. The following

materials are not solid wastes for the purpose of this part:

(1)(i) Domestic sewage; and

(ii) Any mixture of domestic sewage and other wastes

that passes through a sewer system to a publicly-owned

treatment works for treatment. “Domestic sewage” means

untreated sanitary wastes that pass through a sewer

system.

(Emphasis added). This regulation sometimes is called the “regu-

latory” DSE because it exempts hazardous industrial waste mixed

jected respondents’ argument that the Park’s wastes did

not pass “through’’ a sewer system because they allegedly

leaked or evaporated into the environment before reach-

ing the POTW. Instead, the district court reasoned that

the DSE on its face excluded material ‘in’ domestic

sewage and observed that EPA’s request for comments

on its RCRA regulations stated that waste fell within

the DSE “ ‘when it first enters a sewer system’” (App.

C, infra, 27a-28a).?

Second, the district court rejected respondents’ argu-

ments that this construction of the DSE would defeat

RCRA’s remedial purposes. It found instead that the

Clean Water Act, not RCRA, was the principal statute

controlling discharges of pollutants into POTWs and

sewer systems, and that the Clean Water Act’s pretreat-

ment standards could be used to control petitioners’ dis-

charges into the sewers (App. C, infra, 29a).°

with domestic sewage from the recordkeeping and regulatory re-

quirements of Subtitle C of RCRA.

7 The preamble to the proposed regulation stated:

EPA has, therefore, decided that a waste falls within the

domestic sewage exemption when it first enters a sewer system

that will mix it with sanitary wastes prior to storage or treat-

ment by a POTW.

45 Fed. Reg. 33084, 33097 ( May 19, 1980).

’ The district court also rejected two technical arguments re-

spondents raised. First, respondents argued that the DSE applied

only when the wastes entered publicly owned sewer lines because the

definition of a POTW included the sewers and pipes leading to the

POTW and required that those facilities be owned by a city, town

or other public body. The court disagreed, reasoning that, since

EPA’s regulatory definition of the DSE (see pp. 5-6 n. 6, supra)

implicated the DSE whenever wastes passed through a “sewer sys-

tem” to a POTW, a “sewer system” was therefore a different, sepa-

rate entity from a POTW (App. C, infra, 30a-31a).

Second, the district court rejected respondents’ argument that an

internal unpublished EPA guidance document changed the result.

EPA’s guidance document indicated that industrial wastes must mix

in a municipal sewer system with untreated sanitary wastes from

Third, the district court found that application of the

DSE was consistent with congressional intent. The court

observed that Congress specifically required reevaluation

of the DSE in the 1984 RCRA amendments by directing

EPA to prepare a study (App. C, infra, 32a-33a). That

study, released in February 1986, identified the leakage

and evaporation of wastes from sewers as potential prob-

lems and recommended further study; in August 1986,

EPA issued an Advance Notice of Proposed Rulemaking

with respect to implementing the study’s recommenda-

tions and in June 1987 EPA had responded to comments

(id., 38a). Thus, “[b]oth Congress and the EPA are

aware of possible problems from leakage and evaporation,

and Congress’ preferred course of action is to study the

magnitude of the problems as well as the feasibility of

alternatives before legislating changes in the DSE. These

problems are not unforeseen aberrations that demand a

broad reading of RCRA for the sake of the public wel-

fare” (id., 33a-34a).

Finally, the district court concluded that respondents’

position would produce anomalous results. First, re-

spondents’ reading of the DSE would result in duplica-

tive and inconsistent regulation under both RCRA and

the Clean Water Act by requiring each petitioner to con-

sider its discharges as both hazardous wastes under

RCRA and pollutants under the Clean Water Act. Sec-

ond, it would impose on industrial plants the unworkable

burden of monitoring the efficiency of a sewer system

they did not operate and, if the sewer failed, subject a

factory to the double regulation under RCRA and the

Clean Water Act through events beyond their control.

Among other things, respondents’ position could impose

enormous administrative burdens on plants and factories

by requiring them to complete a manifest every time

non-industrial sources before the DSE should apply. The court

concluded, though, that RCRA and the EPA's regulations did not

support this result (App. C, infra, 3la-32a).

chemicals were discharged into the sewer, to identify

malfunctioning sewer pipes as containers, and so on

(App. C, infra, 35a-37a).

B. The First Circuit reversed, holding that the word

“domestic” in RCRA section 1004(27) meant “houses” or

“residences.”’* The court of appeals listed five reasons

for its conclusion. First, the court observed that dic-

tionaries define the word ‘domestic’ to refer to house-

holds and private residences (App. A, infra, 10a). Second,

RCRA section 1004(27) defined “ ‘solid waste’ not sim-

ply in terms of the type of material, but also in terms

of source” (ibid.) (emphasis in original). Noting that

the section refers to wastes “‘resulting from indus-

trial, commercial, mining, ... agricultural. ..and...

community’”’ operations and activities, the court inter-

preted the term ‘domestic’ to refer to the “source” of

the waste (ibid.) (emphasis in original). ‘Indeed, one

suspects the statute’s drafters would have used other

words, such as the EPA’s term ‘sanitary wastes,’ had

they had only type, not source, in mind” (ibid.).

Third, the court of appeals concluded that petitioners’

interpretation of the DSE would make it difficult for

* As a threshold matter, the court of appeals determined that

Federal Rule of Civil Procedure 54(b) permitted the appeal. Al-

though the case involved multiple parties and multiple claims, the

district court’s dismissal of the RCRA claims ended the litigation ~

on the merits on at least one of plaintiffs’ claims and for at least

six of the defendants (App. A, infra, 8a). The dismissed RCRA

claims, moreover, did not simply duplicate plaintiffs’ surviving Clean

Air Act and Clean Water Act claims, since the RCRA claims rested

primarily upon the emission of noxious fumes from allegedly leaking

sanitary sewer pipes, while the Clean Water Act claims rested pri-

marily upon discharges to the Park’s storm sewer system and the

Clean Air Act claims rested on emissions from chimneys and flues

(ibid.). Finally, the court of appeals observed that many of the

remaining defendants had settled the Clean Water Act and Clean

Air Act claims against them and that there was only a small over-

lap between the remaining air and water claims and the RCRA

claims. Thus, the court reasoned it was unlikely adjudication of the

air and water claims would moot the appeal (7d., 8a-9a).

Congress to achieve its purpose in writing the injunctive

RCRA provision. The court observed that most factories

and industries have toilets for workers and mix indus-

trial and sanitary waste in pipes below the building,

“vet it is difficult to believe Congress would wish to

exempt potentially large amounts of industrial waste

from the statute’s scope simply because they mix with

some small amount of bathroom sewage” (App. A, infra,

10a-lla).

Fourth, the court of appeals found that the legislative

history of RCRA section 7003 suggested that RCRA’s

injunctive provisions should have a broad scope. The

court reasoned that it “would seem somewhat anomalous

to interpret the exception broadly and thus significantly

narrow the statute’s reach” (App. A, infra, lla) (em-

phasis in original).

Finally, “and most importantly” (App. A, infra, lla),

the court of appeals relied upon the position taken by

the EPA in its amicus curiae brief.” The EPA argued,

and the court of appeals did not question, that EPA’s

regulatory definition of the domestic sewage exemption—

which defined “domestic sewage” as “untreated sanitary

wastes that pass through a sewer system,” sce pp. 5-6

n.6, infra—was inapposite to any construction of the

DSE because the regulation implemented RCRA’s Sub-

title C;'’ thus, actions under RCRA sections 7002 and

10The EPA had not participated as amicus in proceedings before

the district court, nor independently brought suit under RCRA

§ 70038, 42 U.S.C. § 6973, against petitioners for the alleged RCRA

violations, nor exercised its statutory right to intervene in this

action under RCRA § 7002(d), 42 U.S.C. §$ 6972(d). In fact, EPA

had previously undertaken an investigation of the alleged leakage

and evaporation of hazardous wastes at the Park in 1985 and appar-

ently concluded that there was no imminent and substantial endan-

germent to the health or environment there. See EPA, Apparent

Air Incidents at the Barrio Guanajibo Industrial Park, Mavaouez,

Puerto Rico, Ann Tischbein, Region II Technical Assistance Team

(1985).

1 RCRA sections 3001-3020, 42 U.S.C. $§ 6921-31, 6933-39a, 6979a.

7003 (which are not within Subtitle C) were unaffected

by it. Brief For The United States As Amicus Curiae

at 18-15 (“EPA Brief’’).'*

Second, the EPA argued that the domestic sewage

exclusion did not apply to the facts of this case. The

EPA contended the exclusion required that industrial

waste “must be in sewage, not just associated with a

minuscule amount of sanitary waste” and the sanitary

waste “must be from a source other than an industrial

or commercial facility” for the DSE to apply. EPA Brief

at 18 (emphasis in original). The EPA claimed that

this, in fact, was what its regulatory definition of the

DSE was supposed to mean. In support, EPA cited an

unpublished, internal EPA guidance document from July

1987 which, “albeit not an EPA regulation,” EPA ar-

gued was owed “great deference” because it represented

EPA’s interpretation of its implementing regulations."

EPA Brief at 20-21."

The court of appeals relied on EPA’s brief—-most of

which was devoted to arguments concerning EPA’s

12 For the reference of the Court, a copy of the EPA’s amicus

curiae brief has been lodged with the Clerk.

18 EPA’s unpublished guidance document (which was promulgated

for internal use by EPA’s Regional Offices in implementing correc.

tive action requirements at POTWs) states:

Industrial waste which mixes with sanitary waste from on-site

sanitary facilities for the employees does not necessarily fall

under the domestic sewage exemption, [sic] the industrial

waste must also mix in the municipal sewer system with un-

treated sanitary wastes from non-industrial sources.

EPA, Guidance for Implementing RCRA Permit-by-Rule Require-

ments at POTWs 6 (July 21, 1987) (appended in part to EPA

Brief).

14 EPA’s brief acknowledged that “dual regulation of the same

waste-related activity under RCRA and the Clean Water Act was

not intended by Congress” EPA Brief at 23. Without citing any

authority, however, EPA argued that narrowing the DSE to exclude

mixed waste streams would not result in duplicative regulation. /bid.

regulatory definition of the DSE—as an official agency

interpretation of RCRA. The court found that RCRA

delegated EPA “considerable authority” to interpret lan-

guage like “domestic sewage” and to mesh the operation

of different environmental protection statutes (App. A,

infra, lla-12a). Accordingly, the court of appeals ac-

corded “ ‘considerable weight’” to EPA’s construction

(id., at 13a). The court held that “once we give that

‘weight’ to the agency’s narrow construction of the excep-

tion, the other considerations mentioned earlier are more

than sufficient to convince us to follow that construction”

(ibid.).

The court of appeals found no anomaly in allowing

EPA to impose two inconsistent definitions of a single

term within the same statute.’® Citing no authority from

the language, legislative history or case law of RCRA,

the court stated that the reason for its deference was its

“belief that Congress, in effect, delegated to the agency

a degree of interpretive power,” and thus “it does not

seem odd to find the agency interpreting the same words

somewhat differently as they apply to different parts of

the statute in order better to permit that statute to ful-

fill its basie congressionally determined purposes” (App.

A, infra, 15a) (emphasis in original). The court of ap-

peals was not troubled that this broad delegation was

nowhere found in RCRA. The court reasoned that “[h]ad

the statute expressly delegated the authority to the EPA

to decide the precise scope of the various parts of the

statutory definition, see 42 U.S.C. $ 6903127), under dif-

ferent parts of the statute, it would not seem at all odd to

find the EPA tailoring its scope to fit the needs and ob-

jectives of the statute’s different parts” (App. A, infra,

15a-16a) (emphasis in original). Consequently, “{w)hy

15 Instead, the court asked rhetorically, “why, given the general

broad language of the entire definitional section, could not EPA

define the exception’s scope somewhat differently for purposes of

different parts of the RCRA statute?” (App. A, infra, lda).

should the EPA not have somewhat similar authority, at

least to create minor differences, where the delegation is

implicit . . .?” (id., 16a) ‘emphasis in original). The

court of appeals remanded the case to the district court

for further proceedings consistent with its opinion.

REASONS FOR GRANTING THE PETITION

The court of appeals’ decision contains serious errors

of environmental and administrative law. The court of

appeals misunderstood the nature and demarcation of the

carefully-drawn boundary between RCRA and the Clean

Water Act. The court of appeals committed an equally

serious error in elevating EPA’s amicus curiae brief to

the level of a formal agency regulation or interpretive

statement and in giving deference to a statutory inter-

pretation that EPA had never previously offered in a

public document.

The court of appeals’ decision will have a serious effect

on thousands of factories and industrial plants across the

United States, as well as the local agencies owing and op-

erating sewer systems, that have relied for years on the

domestic sewage exclusion as the regulatory boundary be-

tween RCRA and the Clean Water Act. Because the de-

cision below will expose factories and POTWs to injunc-

tive restraints for matters wholly beyond their control, it

will require them to take the prophylactic step of regu-

lating themselves under both RCRA and the Clean Water

Act. This anomalous result will subject industrial facili-

ties and POTWs alike to the costly and duplicative regu-

lation RCRA expressly enjoins.

I. THE DOMESTIC SEWAGE EXCLUSION IS THE

BOUNDARY BETWEEN THE CLEAN WATER ACT

AND RCRA

The Clean Water Act. The Clean Water Act is “the

basic federal legislation dealing with water pollution.”

Chemical Manufacturers Assn. v. Natural Resources De-

fense Council, Inc., 470 U.S. 116, 118 (1985). The 1972

amendments to the Act established a comprehensive sys-

tem, the National Pollutant Discharge Elimination Sys-

tem (“NPDES”), to regulate the disposal of polluting

effluents to navigable waters, including wastes discharged

to sewers and POTWs. The Act requires “point sources,”

that is, those who are direct dischargers of waste, to

obtain an NPDES permit from the Environmental Pro-

tection Agency or a qualified state regulator before they

can discharge that waste. See, e.g., International Paper

Co. v. Ouellette, 479 U.S. 481, 489 (1987). An NPDES

permit contains detailed effluent limitations for the point

source and, if applicable, a compliance schedule for at-

taining these limitations. See also E.I. du Pont de

Nemours & Co. v. Train, 430 U.S. 112, 116-121 (1977).

Clean Water Act section 307, 33 U.S.C. $ 1317(b),

imposes “pretreatment standards” upon companies who

are indirect dischargers of waste, that is, “those whose

waste water passes through publicly owned treatment

plants.” Chemical Manufacturers Assn. v. Natural Re-

sources Defense Council, Inc., supra, 470 U.S. at 119.

The pretreatment standards address so-called “pass

through” pollutants, 7.e., pollutants that are not suscep-

tible to treatment by the POTW. The Act requires fac-

tories to treat and remove “pass through” pollutants be-

fore the factory’s waste is discharged to the sewer sys-

tem serving the POTW “so as to achieve, together with

the [POTW| that treated the waste before final discharge

into navigable waters, the same level of toxics removal

as was required of a direct discharger.” Natural Re-

sources Defense Council, Inc. v. EPA, 790 F.2d 289, 292

(3rd Cir. 1986), cert. denied, 479 U.S. 1084 (1987).

The Resource Conservation And Recovery Act. Con-

gress enacted RCRA in 1976 “to promote the protection

of health and the environment and to conserve valuable

materials and energy resources” by encouraging the con-

heat 14

servation and responsible disposal of solid wastes and by

imposing comprehensive regulation of the generation, stor-

age, transport and disposal of solid and hazardous wastes.

See RCRA sections 1002, 1003, 42 U.S.C. $$ 6901, 6902.

RCRA restricts the disposal of solid waste, prohibits open

dumping of solid waste, encourages solid waste recycling

and recovery, and establishes programs of federal assist-

ance to local governments. RCRA also closely regulates

hazardous wastes. Those who generate, store, transport,

treat or dispose of hazardous wastes are required to no-

tify EPA (‘or the equivalent state regulator) of their

activities, comply with RCRA’s “cradle to grave” regu-

latory system, obtain permits to treat or store hazardous

wastes, and submit to EPA or state inspections.

Congress was mindful, however, of the potential for

duplicative and burdensome regulation in those areas

where RCRA overlapped with other environmental laws.

Thus, Congress expressly limited RCRA’s scope to avoid

that duplication. In RCRA section 1006(a), 42 U.S.C.

$ 6905(a), Congress exempted from RCRA’s scope “any

activity or substance’’ which was subject to the Clean

Water Act and certain other environmental laws ‘except

to the extent that such application (or regulation) is not

inconsistent with the requirements of such Acts.” Sim-

ilarly, Congress enjoined the Administrator of EPA in

RCRA section 1006(b) to “avoid duplication to the maxi-

mum extent practicable” with the appropriate provisions

of the Clean Water Act and other environmenta! laws in

administering RCRA. 42 U.S.C. §6905(b) (emphasis

added).

RCRA’s domestic sewage exclusion implements this pol-

icy by serving as the statutory demarcation of the bound-

ary between RCRA and the Clean Water Act. The DSE

exempts from the definitions of “solid waste” and “haz-

ardous waste’—and thus from RCRA generally-—“solid

or dissolved material in domestic sewage” because those

waste streams are already regulated by the Clean Water

——

Act’s pretreatment and NPDES discharge permit- stand-

ards. In fact, the domestic sewage exclusion is but one

of several such exemptions in section 1004(27). Besides

domestic sewage, Congress chose to exclude from RCRA

“solid or dissolved materials in irrigation return flows”

(already regulated under the Clean Water Act’s non-

point source requirements, § 319, 33 U.S.C. § 1329), “in-

dustrial discharges which are point sources’ subject to

NPDES permits under the Clean Water Act, and “source,

special nuclear, or byproduct material” already regulated

by the Atomic Energy Act. 42 U.S.C. § 6903(27). See,

e.g., Fishel v. Westinghouse Electric Corp., 617 F. Supp.

1531, 1538 (M.D. Pa. 1985) (cleaning industrial equip-

ment over storm drains not a RCRA violation because

RCRA’s definition of “solid waste” excludes point sources

subject to permits under 33 U.S.C. § 1342). RCRA’s

domestic sewage exclusion, consequently, is one of a series

of exclusions that define where RCRA leaves off and

other environmental statutes begin and serve RCRA’s

policies against regulatory duplication. See RCRA § 1006,

42 U.S.C. § 6905.

The EPA’s regulations have repeatedly observed this

fact. As discussed at great length in the opinions below

and in the EPA’s amicus curiae brief itself, EPA prom-

ulgated a regulatory definition of the DSE in 1980 that

exempted mixtures of sanitary sewage and other wastes

passing to a POTW for treatment from the requirements

of RCRA’s Subtitle C. See 40 C.F.R. § 261.4(a) (1) (ii)

& pp. 5-6 n. 6, infra. Likewise, in five different places

in its regulations implementing the carry-over provisions

of the 1965 Solid Waste Disposal Act (which EPA en-

forces under authority of RCRA), EPA excluded from

the definition of “solid waste” “solids or dissolved ma-

terial in domestic sewage or other significant pollutants

in water resources, such as silt, dissolved or suspended

solids in industrial wastewater effluents, dissolved ma-

terials in irrigation return flows or other common water

poliutants.” 40 C.F.R. §§ 240.101(y), 241.101(v),

243.101(y), 246.101(b) and 247.101(i). See also 40

C.F.R. § 257.2 (EPA’s definition of the DSE for purposes

of solid waste disposal}. Thus—at least until it filed

its amicus curiae brief below—the EPA itself recognized

the boundary-setting function of the DSE and never ques-

tioned the placement of this line.

Il. THE COURT OF APPEALS ERRED IN DEFIN-

ING “DOMESTIC SEWAGE” AS “HOUSEHOLD” OR

“RESIDENTIAL” SEWAGE

A. The Language Of RCRA

The court of appeals misconstrued the boundary be-

tween RCRA and the Clean Water Act by wrongly inter-

preting the term ‘‘domestic” to mean “household” or “res-

idential” instead of “sanitary” or “human” (App. A,

infra, 4a, 10a). There is abundant evidence that Con-

gress is capable of using, and does use, the terms ‘“‘house-

hold” or “residence’’ when it means to. ‘Household’ has

been used frequently by Congress and the EPA through-

out the environmental laws and regulations to describe

private residences. For example, under RCRA section

4005(c), 42 U.S.C. § 6945'¢e), a solid waste management

facility that receives only “household” waste is exempt

from the permit provisions found in RCRA section 3005,

42 U.S.C. $6925 ‘emphasis added). Likewise, RCRA sec-

tion 3001/i), 42 U.S.C. § 6921(i), directs upon the Ad-

ministrator to clarify a RCRA exemption for facilities

burning only “household waste” that the section refers to

as the “Household Waste Exclusion.” In fact, the term

“household” is used in three other sections of RCRA,"*

16 See RCRA § 4010(c), 42 U.S.C. § 6949a(c) (directing the Ad-

ministrator to promulgate revisions of criteria for facilities that

may receive “hazardous household wastes’), § 8002(d), 42 U.S.C.

§ 6982(d) (directing the Administrator to study, among other

things, “household resource recovery and resource recovery sys-

tems”), and 42 U.S.C. § 6992g(a)(11)(A) (EPA report to Congress

on medical waste will include the “effect of excluding households”

from regulations).

six times in other environmental laws,'? and in countless

other statutes. RCRA also uses the term “residence”

to refer to a private dwelling. See RCRA § 3010

(a) (2), 42 U.S.C. $ 6930(a) (2) (excluding an owner of

a “single or two-family residence’ from preliminary

notification requirements). If, as the court of appeals

held, Congress intended to exempt only “household” or

“yesidential” waste from RCRA, Congress undoubtedly

would have said so."*

Notwithstanding its recent amicus position before the

court of appeals, EPA itself has consistently used the

terms “household” or “residence”—and not “‘domestic’—

to describe private homes in its RCRA regulations. Six

sections of EPA’s RCRA regulations employ the words

“household” or “residence” to refer to waste from private

homes.'” In fact, one of these—appearing on the same

17 See 7 U.S.C. §136q (Federal Insecticide, Fungicide and

Rodenticide Act) (Administrator may exempt from pesticide con-

trol products “intended solely for household use”); 7 U.S.C.

$ 3802(2) (Swine Health Protection Act) (the term “garbage”

shall not include “waste from ordinary households’); 15 U.S.C.

§ 1262(b) (Hazardous Substances Act) (labeling requirements for

a hazardous substance intended “for use in household”); 42 U.S.C.

$$ 6292(b), 6295(i) (Energy Policy and Conservation Act) (en-

ergy conservation standards using “average household energy use”,

“aggregate household energy use’); 42 U.S.C. §§ 8216(a) (4),

8235a (National Energy Conservation Policy Act) (suggestion

for energy conservation techniques include “modifications of house-

hold activities’); and 42 U.S.C. $ 9601(34) (Comprehensive En-

vironmental Response, Compensation and Liability Act) (term

“alternative water supply” includes “household water supplies’’).

1’ Conversely, although the term “sanitary waste” is used in two

sections of the Clean Water Act to refer to human waste (see 33

U.S.C. $$ 1281, 1284), Congress nowhere used that term in RCRA.

Congress’ decision to use the term “domestic sewage” to refer to

waste from bathrooms, cafeterias and other personnel facilities in

factories thus created no anomalies within RCRA’s statutory

terminology.

See 40 C.F.R. § 243.101(u) (RCRA subtitle D) ( ‘Rubbish’

means a general term for solid waste ... taken from residences’),

page of EPA’s regulations as EPA’s regulatory definition

of ‘domestic sewage’—defines “household waste.” 40

C.F.R. § 261.4(b) (1). Moreover, the sole regulatory

definition of the term “domestic sewage” is EPA’s regu-

lation defining ‘‘domestic sewage” as ‘“‘untreated sanitary

wastes that pass through a sewer system.” 40 C.F.R.

$ 261.4(a) (1) (ii) .*°

40 C.F.R. § 245.101(j) (RCRA, subtitle D) (“residential solid

waste” defined as ‘“‘the garbage, rubbish, trash, and other solid

waste resulting from the normal activities of households”); 40

C.F.R. § 246.101(y) (RCRA, subtitle D) (“residential solid waste”

defined as ‘‘the wastes generated by the normal activities of house-

holds”) ; 40 C.F.R. § 246.201-5(a) (RCRA, subtitle D) (separated

materials may be collected from each “household”); 40 C.F.R.

§ 261.4(b)(1) (RCRA, subtitle C) (definition of “household waste’’) ;

and 40 C.F.R. § 266.41(b) (2) (iii) (A) (RCRA, subtitle E) (heater

burning used oil “received from do-it-yourself oil changers who

generate used oil as household waste’’).

Other sections of EPA’s regulations also follow this-use. See

40 C.F.R. §$ 60.451 (Clean Air Act) (“large appliance product”

defined as organic metal coated appliance manufactured “for house-

hold” use); 40 C.F.R. $122.2 (Clean Water Act, NPDES Permit

System) (“sewage” defined as “any wastes, including wastes from

humans, households .. .”) 40 C.F.R. § 141.32(e)(2) (Clean Water

Act) (drinking water standard set for carbon tetrachloride, ‘‘once

a popular household cleaning fluid’); 40 C.F.R. § 141.34(c)(2)

(Ciean Water Act) (public notice requirements pertaining to lead

in “household water”); 40 C.F.R. §§ 152.3(u), 157.21(e), 163.3(m)

(Federal Insecticide, Fungicide and Rodenticide Act) (“residential

use” of pesticide defined as application to “area associated with the

household”); 40 C.F.R. §$ 355.20, 370.2, 370.40, 370.41, (Super-

fund Amendment and Reauthorization Act, title III) (“hazardous

chemical” does not include any substance “to the extent it is used

for personal, family, or household purposes”); 40 C.F.R. § 721.1750

(b) (1) (Toxic Substances Control Act) (“consumer product” de-

fined as substance for use “in or around a permanent or temporary

household”); and 40 C.F.R. § 761.3 (Toxie Substances Control

Act) (“municipal solid waste” includes discarded material from

“household activities” ).

““The court of appeals erred in relying on the structure of

RCRA section 1004(27) to support its holding. The court read

the section to define waste by “source” as well as “type” (App. A,

B. The Court Of Appeals Misconstrued The Policies

Underlying RCRA

The court of appeals also erred in concluding that the

policies underlying RCRA supported its narrow con-

struction of the domestic sewage exclusion. First, the

court of appeals was mistaken in finding that RCRA’s

injunctive provisions would be defeated if “domestic sew-

age’ were given anything besides a narrow reading. The

court hypothesized that, since most factories contain

toilets, petitioners’ reading of the DSE could “exempt

potentially large amounts of industrial waste from the

statute’s scope simply because they mix with seme small

amount of bathroom sewage” (App. A, infra, 10a-1la).

But the court of appeals erred on both practical and legal

grounds. As a threshold matter, domestic sewage typi-

cally is a substantial portion of all waste produced by a

factory. Various state building codes, in fact, estimate

that a factory with a cafeteria produces substantial do-

mestic waste flows. See, e.g., Puerto Rico Environmental

Quality Board, Regulation for the Certification of Plans

& Projects, Pt. II, Table 4-1 (35 gallons per employee per

shift); Mass. Regs. Code tit. 314, § 7.15 (20 gallons per

infra, 10a). As true as this may be, it offers no evidence one way

or the other of Congress’ intentions, since the section sometimes

defines wastes by type and sometimes by source, depending upon

the context and materials involved. ‘Solid waste” is defined in

section 1004(27) as

any garbage [typel, refuse [type!, sludge from a waste treat-

ment plant. water supply treatment plant. or air pollution

control facility [fupe and source) and other discarded ma-

terial [type|, including solid, liquid, semisolid. or contained

gaseous material resulting from industrial-commercial, min-

ing, and agricultural operations, and from community activi-

ties [tupe and sovrec), but does not include solid or dissolved

material in domestic sewage [fype!), or solid or dissolved ma-

terials in irrigation return flows [type and source’ or indus-

trial discharges which are point sources subject to permits

under section 1342 of title 33 [tupe and source’ or source,

special nuclear, or byproduct material as defined by the Atomic

Energy Act of 1954... | fype!.

42 U.S.C. § 6903(27).

employee per day). The Guanajibo Industrial Park, in

which approximately 3,000 employees work, hardly is one

with a negligible domestic waste stream.

The court of appeals equally misunderstood the balanc-

ing of the policies underlying RCRA. In stressing the

broad scope of RCRA’s injunctive provisions (App. A,

infra, lla’, the court ignored the more fundamenta!

policies against duplicative regulation that appear on

RCRA’s face. See RCRA § 1006, 42 U.S.C. § 6905 (di-

recting the EPA Administrator to “avoid duplication to

the maximum extent practicable” between RCRA and

other environmental laws). See also House Conference

teport on the Hazardous and Solid Waste Amendments

of 1984, H.R. Rep. No. 98-1133, 98th Cong., 2d Sess. 115,

reprinted in 1984 U.S. Code Cong. & Admin. News 5649,

5686 (discussing section 246, which directed the EPA to

conduct a study of the DSE) (‘|t|he Conference substi-

tu‘e is the same as the House bill, with the clarification

that EPA may use pretreatment standards under section

307 of the Clean Water Act to control hazardous waste

mixed with domestic sewage.”’).

The court of appeals’ emphasis on RCRA’s injunctive

provisions also ignores the fact that the other environ-

mental statutes that complement RCRA contain injune-

tive provisions allowing the EPA to bring suit to abate

violations such as those alleged here. Under the Clean

Water Act. for example, the EPA is authorized to seek

injunctive relief where a pollution source presents “an

imminent and substantial endangerment to health.” 33

U.S.C. § 1364. Similarly, the Comprehensive Environ-

menta! Response, Compensation and Liability Act em-

powers itPA to seek injunctive relief when an actual or

threatened release of a hazardous substance ‘may pose

an imminent and substantial endangerment to the public

health or the environment.” 42 U.S.C. £ 9606. The Clean

Air Act also gives EPA authority under 42 U.S.C. § 7602

to seek injunctive relief to address pollution from a point

source which presents “fan imminent and substantial en-

dangerment to the health of persons.’”’ Thus, giving the

domestic sewage exclusion its clear meaning will not

exempt factories from the environmental laws or deprive

the EPA of its remedies.*'

Finally, strong policies suport maintaining the boun-

dary between RCRA and the Clean Water Act where

Congress drew it. As explained above, the domestic sew-

age exclusion places regulation of covered industrial dis-

charges under the Clean Water Act, which in turn dis-

tributes compliance burdens between industries and

POTWs. Factories are required to comply with the Act’s

pretreatment standards in the wastes they discharge and

21 These provisions, to be sure, confer this power only upon the

EPA, and not upon private citizens. But there is no evidence

within RCRA or in the legislative history of the 1984 RCRA

amendments adding the citizen suit provisions of section 7002 to

support—and much to rebut—the proposition that the citizen suit

provisions were so central to Congress’ purpose that they require

all other provisions of RCRA to be read narrowly. In Hallstrom

v. Tillamook County, 110 S.Ct. 304 (1989), for example, the Court

rejected arguments that the policies underlying RCRA citizens

suits outweighed section 7002(b)(1)’s requirement that plaintiffs

provide 60 days advance notice of suit. “Although we do not

underestimate the potential damage to the environment that could

ensue during the 60-day waiting period, this problem arises as a

result of the balance struck by Congress in developing the citizen

suit provisions.” 110 S.Ct. at 311. See also id., at 310 (“ ‘citizen

suit is meant to supplement rather than to supplant governmental

action.’ (quoting Gwaltney of Smithfield, Inc. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49, 60 (1987) )).

Moreover, the citizen suit provisions of other environmental

statutes confer important rights on private citizens to bring suit

for a wide range of environmental viclations. The Clean Air Act,

for example, gives a private right of action against any person

who violates an emission standard, limitation or order under the

Act, or who proposes to construct a “major emitting facility’ with-

out a permit. 42 U.S.C. $7604. The Clean Water Act permits

citizen suits for violation of an effluent standard, limitation or

order. 33 U.S.C. $1365. CERCLA authorizes citizen suits for

any violation of a CERCLA standard, regulation, requirement or

order. 42 U.S.C. $ 9659.

to pay substantial users’ fees to the POTWs for final

waste treatment. POTWs are required to treat the

wastes they receive to comply with the effluent limita-

tions of their permits under the Act.”

The court of appeals profoundly disturbed this balance.

Under the First Cireuit’s rule, factories and POTWs

are subject to RCRA injunctions even if both are in

compliance with all applicable Clean Water Act require-

ments. Factories discharging waste through a sewer sys-

tem may be closed under RCRA whenever the sewer sys-

tem or its POTW fails. Local agencies owning or operat-

ing a POTW and sewer system likewise are exposed to

a RCRA injunction for whatever the factories discharge

into the sewer system. This rule would apply even

though a factory is not in a position to direct the opera-

tions of a POTW or sewer system and a sewer authority

cannot be responsible for the daily operations of a

factory.

To avoid the specter of injunctive actions against them

for matters they cannot control, both factories and

POTWs will be required by the decision below to regulate

themselves under RCRA as well as the Clean Water Act.

Thus, a factory no longer could limit its wastes to those

meeting the Clean Water Act’s pretreatment standards,

and a POTW could not accept such discharges, if there

were any prospect that those discharges could be consid-

ered ‘solid wastes” or “hazardous wastes” under RCRA.

The factory and the POTW would be forced to completely

remove its “solid’ and “hazardous” wastes from dis-

charges to the sewer system, eliminating an important,

and congressionally approved, method of waste disposal

used in thousands of factories and industrial facilities

across the country. This result is precisely the costly and

duplicative regulation that Congress feared when it

enacted RCRA and the result Congress attempted to

“2 Respondents have not argued that the factories in the Park

have violated Clean Water Act pretreatment standards, nor that the

Park’s POTW is in violation of its NPDES permit.

forestall in RCRA section 1006’s prohibition of duplica-

tive regulation.

C. The Court Of Appeals Ignored Congress’ Clear In-

tent That The Domestic Sewage Exclusion Should

Not Be Changed Except After Further Study And

As A Result Of Specific Legislation

In its zeal to close what it thought was a loophole in

RCRA, the court of appeals overlooked Congress’ clear

directions that the domestic sewage exclusion should be

changed only by specific legislation and, even then, only

after further study.** In fact, Congress has expressly rec-

ognized that the DSE may permit some hazardous wastes

to go unregulated under RCRA. In its 1984 amendments

to RCRA, Congress enacted a new section to RCRA,

3018, 42 U.S.C. § 6939, specifically addressing the subject

of the domestic sewage exclusion. Section 3018/a) re-

quired the Administrator to “submit a report in 14

months concerning those [hazardous wastes] which are

not regulated under this subtitle by reason of the exclu-

sion for mixtures of domestic sewage and other wastes

that pass through a sewer system to a publicly owned

treatment works.’ *' Section 3018(b) directed the Ad-

23 Nor, even if the DSE could be called a loophole, is it a loop-

hole that the court of appeals’ decision effectively closes. Under

the court of appeals’ formulation, RCRA would not apply to these

wastes because of what they contain, but rather because of the

sewer line to which they are discharged. Thus, factories discharg-

ing mixed wastes to a municipal sanitary sewer and POTW would

continue to fall under the domestic sewage exclusion—whatever the

content of their wastewater—while factories discharging identical

wastes to an industrial park’s sanitary sewer and POTW would be

regulated under RCRA.

24 Section 3018(a) goes on to state:

Such report shall include the types, size and number of gen-

erators which dispose of such substances in this manner, the

types and quantities disposed of in this manner, and the

identification of significant generators, wastes, and waste con-

stituents not regulated under existing Federal law or regulated

ministrator to revise existing regulations and promulgate

additional ones under RCRA or the Clean Water Act

“necessary to assure that | hazardous wastes| which pass

through a sewer system to a publicly owned treatment

works are adequately controlled to protect human health

and the environment.” Finally, section 3018(d) extended

two important areas of RCRA regulation to hazardous

wastes otherwise protected by the DSE. First, it re-

quired generators, transporters or disposers of otherwise

excluded hazardous waste to comply with RCRA section

3010(a), 42 U.S.C. §$ 6930(a), by filing a notification

with the Administrator identifying and describing their

activities. Second, section 3018(d) subjected persons who

generated, stored, treated, transported, disposed or

handled otherwise excluded hazardous wastes subject to

inspections by the EPA or state regulators under RCRA

section 3007, 42 U.S.C. $6927. Thus, Congress’ 1984

RCRA amendments confirm that Congress chose to study

and review any possible shortcomings in the DSE before

acting on them, and did not see the DSE as a loophole for

the courts to close.

The court of appeals’ decision is all the more startling

in view of the fact that EPA’s Domestic Sewage Study,

which resulted from the 1984 RCRA amendments, rec-

ommended that the DSE be retained, not repealed.

EPA’s study concluded that “{[t]he DSE provides con-

tinuity between the regulatory controls imposed by

RCRA and the CWA. RCRA rules do not apply to haz-

ardous wastes upon ‘first entry’ to the sewer system.

Once hazardous waste enters the sewer system, CWA’s

pretreatment program becomes the sole applicable control

program.” EPA, Report to Congress on the Discharge of

Hazardous Wastes to Publicly Owned Treatment Works,

7-8 (Feb. 1986). The Report went on to state:

in a manner sufficiént to protect human health and the environ-

ment.

42 U.S.C. § 6939(a).

‘ 25

The proximity of municipal control authorities to dis-

charging industries, along with the wide range of

compliance tools available in Federally approved lo-

cal programs [citations omitted], affords a unique

opportunity for direct, site-specific control of hazard-

ous discharges. Conceptually, this seems to be a very

logical way of ensuring effective treatment of haz-

ardous wastes.

Id., at 6-82. The EPA concluded that controls of hazard-

ous waste discharges should be addressed by improving

pretreatment standards and programs under the Clean

Water Act and other environmental statutes. /d., E-6,

7-10 to 7-12.

Ill. THE COURT OF APPEALS ERRED IN TREATING

THE EPA’S AMICUS CURIAE BRIEF AS AN IN-

TERPRETIVE REGULATION OF THE DOMESTIC

SEWAGE EXCLUSION

A. The Court Of Appeals Erred In Giving Deference

To EPA’s Construction Of RCRA That Was Found

Nowhere Other Than EPA’s Amicus Curiae Brief

Finally, and “most importantly” for purposes of its

analysis, the court of appeals deferred to the EPA’s con-

struction of the statutory domestic sewage exclusion

(App. A, infra, 1la-13a). But that construction was not

one found in EPA’s regulations, interpretive rules or

policy statements, because none exist and none were cited

25 Section 3018(b) of the 1984 RCRA amendments directed EPA

to revise existing regulations to assure that hazardous wastes that

pass through a sewer system to a POTW are “adequately controlled

to protect human health and the environment.” In its proposed

rule, EPA specifically considered the environmental dangers plain-

tiffs allege here from “toxic gas and vapors” released from the

sewer system. 53 Fed. Reg. 47632, 47635 (Nov. 23, 1988). Al-

though EPA was given broad latitude by RCRA § 3018(b) to rem-

edy this and any other problem it found, EPA decided to address

this concern by amending the pretreatment requirements of the

Clean Water Act.. Jd. The proposed rule did not discuss § 7003, or

any other section of RCRA, as the appropriate solution.

anywhere in the court’s decision. Instead, the court of

appeals deferred to the construction of the statutory DSE

found in no public EPA pronouncement except EPA’s

amicus curiae brief.** Notably missing in the court of ap-

peals’ analysis was any citation—of any sort—to a regu-

lation, rule, policy statement, speech or even newspaper

article enunciating any such construction of RCRA’s

statutory domestic sewage exclusion by the EPA. In-

stead, the “weight” the court ascribed to the EPA’s in-

terpretation was based entirely on the conclusory argu-

ments that the EPA had made in fewer than three pages

of text in its brief. See EPA Brief at 17-19.”

It is axiomatic that, before an agency’s construction of

a statute can receive deference from a court, the agency

must offer an interpretation that is the product. of agency

action to begin with. The EPA’s amicus curiae brief

clearly does not fall within that scope of agency actions

26 The court of appeals repeatedly stressed the weight it ascribed

to the EPA’s position. For example, the court wrote that RCRA

delegated EPA “considerable authority ... to interpret language

like ‘domestic sewage’ and thereby fix, at the boundaries, the

precise scope of the exception” (App. A, infra, 1la). Later, the

court observed (id., 12a) that “the language in question consti-

tutes a small part of a comprehensive regulatory scheme that Con-

gress entrusted the EPA to administer, sensibly and in conjunction

with other, related environmental regulatory schemes designed to

secure clean water, clean air, and a safe environment.” The court

of appeals also wrote (ibid.) that “[t]he agency either has, or

will develop, the type of experience that will permit it properly to

mesh these related statutes, both to avoid senseless or overly harsh

results, and better to fulfill their overall environmental objectives.”

“And, that being so, a court can appropriately infer an ‘implicit’

congressional delegation of interpretitive authority to an agency”

(id., 12a-13a). The court of appeals then proceeded (id., 13a) to

conclude “once we give that ‘weight’ to the agency’s narrow con-

struction of the exception, the other considerations mentioned

earlier are more than sufficient to convince us to follow that con-

struction.”

27 The balance of the amicus brief dealt with EPA’s arguments

concerning the meaning of EPA’s regulatory definition of “domestic

sewage” in 40 C.F.R. § 261.4.

or documents to which deference is due. EPA’s brief,

and the construction it offers, was not subject to notice

and comment under the Administrative Procedure Act,

5 U.S.C. § 553, never appeared in the Federal Register

or EPA’s regulations, was not the product of any agency

adjudicatory proceeding or licensing decision, and did not

result from a published opinion of agency staff.

An agency position that is advocacy and nothing more

is not entitled to deference from courts in their construc-

tion of a statute. In Bowen v. Georgetown University

Hospital, 109 S. Ct. 468, 473 (1988), the Court refused

to defer to the Department of Health and Human Serv-

ices’ interpretation of the Medicare Act where the De-

partment could point to no authority for its construction

other than its brief.

[T]he Secretary {of HHS] contends that it is en-

titled to deference under Young v. Community Nu-

trition Institution, . .. Chemical Manufacturers As-

sociation v. Natural Resources Defense Council, Inc.,

.. and Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc. .... We have never applied

the principle of those cases to agency litigating posi-

tions that are wholly unsupported by regulations,

rulings, or administrative practice. To the contrary,

we have declined to give deference to an agency

counsel’s interpretation of a statute where the agency

itself has articulated no position on the question, on

the ground that ‘Congress has delegated to the ad-

ministrative official and not to appellate counsel] the

responsibility for elaborating and enforcing statu-

tory commands.’

(Citations omitted). The Court concluded that “[d]efer-

ence to what appears to be nothing more than an agen-

cy’s convenient litigating position would be entirely in-

appropriate.” 109 S.Ct. at 474.

Likewise, in /nvestment Company Institute v. Camp,

401 U.S. 617, 626-28 (1971), the Court refused to defer

to a construction of the Glass-Steagall Act that the

Comptroller of the Currency offered for the first time on

appeal. The Court found that deference was not appro-

priate because the Comptroller had adopted ‘‘no expressly

articulated position at the administrative level’ as to the

meaning and impact of the statutes. .

To be sure, counsel! for the Comptroller in the course .

of this litigation and specifically in his briefs and

oral argument in this Court, has rationalized the

basis of Regulation 9 with great professional com-

petence. But this is hardly tantamount to an admin-

istrative interpretation of $$ 16 and 21.

401 U.S. at 627-28.

The authority relied upon by the court of appeals does

not support the deference it gave to the EPA’s amicus

position. In Ford Motor Credit Co. v. Milhollin, 444 U.S.

555, 565 (1980), the Court deferred to the Federal Re-

serve Board’s construction of the Truth In Lending Act.

The Board’s interpretations were in the form of written

staff interpretations. upon which Congress had conferred

special status. See id., 444 U.S. at 566 & n.9. In Chev-

ron, U.S.A., Ine. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 844 (1984), the Court gave “consid-

erable weight” to EPA’s construction of section 172(b)

(6) of the Clean Air Act, 42 U.S.C. § 7502/b) (6). How-

ever, the EPA’s interpretation of the section was found

in a regulation, 40 C.F.R. § 51.18(j) (1), that the EPA

had formally adopted. In this case, by contrast, the posi-

tions of the EPA’s amicus brief to which the court of

appeals gave “considerable weight” (App. A, infra, 13a)

were not the product of agency rulemaking, nowhere

appeared in EPA’s public documents and cannot be said

to result from the agency’s administrative practice.

B. The Court Of Appeals Erred In Deferring To An

Agency Interpretation That Was Inconsistent With

EPA’s Administrative Practice And Published

Regulations

The court of appeals’ deference to the construction of-

fered in EPA’s amicus brief was all the more inappro-

priate because that construction was clearly inconsistent

with the EPA’s regulations and administrative practice.

;

EPA’s regulatory definition of “domestic sewage,” prom-

ulgated in 1980, unequivocally defined “domestic sewage”

to mean “untreated sanitary wastes that pass through a

sewer system.” 40 C.F.R. § 261.4(a)(1) (ii). In its

Domestic Sewage Study, EPA referred to this regulation

as synonymous with the statutory DSE itself. See Domes-

tic Sewage Study 7-8 to 7-9 & p. 24, supra. Yet not until

the filing of EPA’s amicus brief did EPA announce to

anyone outside the agency, nor was it widely understood,

that the EPA’s construction of the statutory exclusion

was significantly narrower than its published regulation.

In these circumstances, it was error to give “consider-

able weight” (App. A, infra, 13a), to an EPA interpreta-

tion that was at odds with its published regulation and

inconsistent with its past position. See, e.g., Bowen v.

Georgetown University Hospital, supra, 109 S. Ct. at 474

(Court refuses to give deference to agency position that

is at odds with its past administrative practice) ; Federa!

Election Commission v. Democratic Senatorial Campaign

Committee, 454 U.S. 27, 37 (1981): Board of Governors

of Federal Reserve System v. First Lincolnwood Corp.,

439 U.S. 234, 248 (1978) (Court defers to agency’s long-

standing interpretation of statutory mandate where Con-

gress has not altered the administrative interpretation) ;

Batterton v. Francis, 432 U.S. 416, 425 n. 9 (1977)

(“Varying degrees of deference are accorded to admin-

istrative interpretations, based on such factors as the

timing and consistency of the agency’s position, and the

nature of its expertise.”). EPA’s regulations and con-

sistent administrative practice have construed RCRA’s

domestic sewage exclusion to exempt mixed waste streams

such as that in question here, and the court of appeals

erred in giving deference to a construction that flew in

the face of the agency’s longstanding interpretation.**

** Although fhe EPA claimed in its amicus brief that its regula-

tion was confined in scope to Subtitle C of RCRA (EPA Brief at

13-15), that position, too, was a novel one that EPA had not

publitly taken before. Thus, it was owed no more deference than

any of EPA’s other constructions.

The court of appeals erred in treating the EPA’s

amicus curiae brief as an official agency interpretation

when, in fact, it was nothing more than advocacy of a

newly-announced enforcement position. Indeed, the court

of appeals’ deference to the EPA’s amicus position and

readiness to ignore EPA’s published regulatory definition

create a strange anomaly of administrative law and

statutory construction: where there is no public docu-

ment supporting an agency’s construction of a statute,

the agency’s views nevertheless will be given “consider-

able weight” if it goes to the trouble of filing an amicus

curiae brief; yet longstanding published regulations will

be freely ignored if they conflict with the position the

amicus brief advances. The court of appeals has created

a rule that permits an agency to command deference at

its whim.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

~ GEOFFREY S. STEWART *

JEFFREY J. DAVIDSON

HALE AND DORR

1455 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

Tel.: (202) 393-0800

LAURIE S. GILL

DOUGLAS A. JOHNS

PALMER & DODGE

One Beacon Street

Boston, Massachusetts 02108

STEVEN C. LAUSELL

JIMENEZ, GRAFFAM & LAUSELL

421 Munoz Rivera Avenue

Hato Rey, Puerto Rico 00918

EDWARD J. BURNS

JOHN L. GREENTHAL

NIXON, HARGRAVE, DEVANS

& DOYLE

Lincoln First Tower

Rochester, New York 14604

SANTIAGO MARI ROCA

BIAGGI BUSQUETS & MARI ROCA

Banco Central Plaza

Calle Mendez Vigo 101

Mayaguez, Puerto Rico 00709

JANUARY 24, 1990

ROBERT E. ZAHLER

MICHAEL L. STERN

SHAW, PITTMAN, POTTS

& TROWBRIDGE

2300 N Street, N.W.

Washington, D.C. 20037

IRWIN H. FLASHMAN

ZADETTE BAJANDAS

O'NEILL & BORGES

Chase Manhattan Building

Hato Rey, Puerto Rico 00918

* Counsel of Record

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 89-1091

COMITE PRO RESCATE DE LA SALUD, ETC., et al.,

Plaintiffs, Appellants,

PUERTO RICO AQUEDUCT AND SEWER AUTHORITY,

ETC., et al.,

Defendants, Appellees.

Appeal from the United States District Court

for the District of Puerto Rico

{Hon. Jaime Pieras, Jr., U.S. District Judge}

Before

Breyer and Selya, Circuit Judges,

and Caffrey,* Senior District Judge.

Anthony Z. Roisman with whom Ann C. Yahner,

Cohen, Milstein & Hausfeld, Michael E. Withey, Leonard

W. Schroeter, Schroeter, Goldmark & Bender and Pedro

J. Varela were on brief for appellants.

* Of the District of Massachusetts, sitting by designation.

Donald A. Carr, Acting Asssistant Attorney General,

Randolph L. Hill, Office of General Counsel, Environ-

mental Protection Agency, Susan B. Squires and Anne S.

Almy, Land & Natural Resources Division, Department

of Justice, on brief for the United States, Amicus Curiae.

Robert E. Zahler with whom Michael L. Stern, Marga-

ret B. Bowman, Shaw, Pittman, Potts & Trowbridge,

Francisco G. Bruno, Sweeting, Gonzalez & Cestero, Geof-

frey Stewart, Hale & Dorr, Pedro A. Morell, Brown,

Newsom & Cordova, Dwight C. Seeley, Edward J. Burns,

John L. Greenthal, Nixon, Hargrave, Devans & Doyle,

Jose A. Cestero, Andreu Garcia Law Offices, Zaidee

Acevedo, Steven C. Lausell, Jiminez, Graffam & Lausell,

Enrique Alcaraz Micheli, Ferrer & Alcaraz, Laurie S.

Gill, Palmer & Dodge, Encarnita Catalan Marchan, San-

tiago Mari Roca and Ribas, Biaggi & Mari, Irwin H.

Flashman, Zadetie Bajandas and O’Neill & Borges were

on brief for appellees The Perkin-Elmer Corporation and

Perkin Elmer Caribbean Corporation, Storage Technology

Corporation and Storage Technology de Puerto Rico,

Puerto Rico Industrial Development Company, Bristol

Myers Company, Bristol Caribbean, Inc. and Bristol

Laboratories Corporation, Mayaguez Air Conditioning

and Syncor Industrial Corp., Puerto Rico Aqueduct and

Sewer Authority and Sea Electronics Aids, Inc., Westing-

house De Puerto Rico, Inc. and Westinghouse Electric

Corporation.

John C. Chambers, Jr., Richard A. Flye, Susan Kunst

Boushell, McKenna, Conner & Cuneo and Bruce Adler on

brief for Union Carbide Corporation, Amicus Curiae.

Gerard Lederer, General Counsel, on brief for United

States Conference of Mayors, Amicus Curiae.

October 26, 1989

BREYER, Circuit Judge. This appeal concerns the

meaning of an exception in the Resource Conservation

and Recovery Act (“RCRA’’), 42 U.S.C. § 6901 et seq.,

a statute that regulates the disposal of solid wastes. The

Act, among other things, permits both the federal govern-

ment and private citizens to ask a court for injunctive

relief against any person connected with the handling,

storage, treatment, or disposal of

any solid waste or hazardous waste [which] may

present an imminent and substantial endangerment

to health or the environment.

42 U.S.C. $ 6973(a) (authorizing administrator to bring

suit); see 42 U.S.C. § 6972(a) (1) (B) (authorizing citi-

zens’ suits to enforce “imminent and substantial en-

dangerment” provision) (see Statutory Appendix). But,

the Act specifies that these wastes do “not include solid

or dissolved material in domestic sewage.” 42 U.S.C.

S$ 6903(27) (emphasis added). Do the words “in domes-

tic sewage” refer to the kinds of sewage that ordinarily

emanate from houses—sewage that EPA calls “‘untreated

sanitary wastes?” See 40 C.F.R. § 261.4(a) (1) (ii). If

so, the exception may include factory wastes that mix

with this kind of “‘sanitary” sewage, say, sewage emanat-

ing from bathrooms at the workplace, and the exception

is then quite broad. Or do the words “in domestic sew-

age” refer, as well, to the point of origin of the sewage?

Do they mean that the wastes must, in fact, come from

houses? If so, the exception is narrow, for it does not

embrace solid industrial material mixed with sewage

coming from workplace bathrooms.

We conclude that the narrower reading of the excep-

tion—the reading that refers to point of origin—is the

correct reading. Consequently, the plaintiffs in this case

may proceed in their efforts to prove that RCRA entitles

them to injunctive relief. See 42 U.S.C. § 6972.

a |

Background

The defendants in this case own factories within (or

are otherwise connected with) a large industrial park

near Mayaguez, Puerto Rico (the “Park’’). The Park

contains 33 industrial plants. Sewer lines connect the

plants to a major privately owned sewer line; that major

private line, in turn, connects with a publicly owned

sewer line that runs outside the Park to a publicly owned

sewage treatment plant (called, in environmental jargon,

a POTW, or publicly owned treatment work). At the

time the plaintiffs brought this suit, both the major,

private line and the publicly owned line contained only

wastes from the industrial park; they did not cormnect

with lines running from any private houses. See Comite

pro Rescate de le Salud v. PRASA, 693 F. Supp. 1324,

1330 n.11 (D.P.R. 1988). There is also a second, dif-

ferent sewer system within the Park, which collects rain-

water and dumps it into a nearby river; we shall call

this second system the “‘rainwater system.”

The plaintiffs (a group of seven individuals and a

community organization called, in English, the Committee

to Rescue Health) brought this lawsuit claiming that the

defendants, in disposing of their industrial wastes, vio-

lated several different environmental laws. They said,

for one thing, that quite a few of the defendants violated

the Clean Water Act by dumping industrial wastes into

the rainwater system, thereby discharging those wastes

into the river without necessary permits. 33 U.S.C.

$1311. They said, for another thing, that various defend-

ants violated the Clean Air Act by discharging certain

noxious fumes, through chimneys and flues, into the outer

air. 42 U.S.C. $$ 7411, 7412, 7475. They added that

various defendants violated the basic regulatory provi-

sions of RCRA by discharging certain solid, hazardous

wastes through their regular sewer system without keep-

Se a

ing proper records or obtaining necessary permits. 42

U.S.C. $$ 6921-6934. Finally, and particularly important

in terms of this appeal, they claimed that the regular

sewer lines were leaking, emitting fumes and other sub-

stances that posed an “imminent and substantial en-

dangerment” to health and the environment, to stop which

they sought an injunction under RCRA’s “citizen suit”

provision, § 7002(a)(1)(B), 42 U.S.C. § 6972(a) (1) (B).

The district court dismissed all the RCRA ciaims for

a legal reason. In its view, the conceded fact that all the

solid industrial wastes in the regular sewer system (in-

cluding the sources of noxious fumes) mixed with un-

treated sanitary wastes, such as waste from toilets at

the workplace, brought the defendants within the scope

of RCRA’s exception for “solid or dissolved material in

domestic sewage.” 42 U.S.C. § 6903(27!. This dismissal

(along with the court’s dismissal of certain related pend-

ent state tort law claims) affected 15 of 23 defendants,

and it amounted to a dismissal of all claims against 6

of those 15. Five of those 6 defendants, supported by

plaintiffs, asked the district court to enter a final judg-

ment in their favor pursuant to Fed. R. Civ. P. 54(b)

(permitting court to enter a final judgment on “one or

more but fewer than all the claims” in an action involv-

ing multiple claims). The court did so. The plaintiffs

now appeal, challenging the lawfulness of the district

court’s dismissal of their RCRA injunctive action. (They

have dropped their RCRA “regulatory” claims. )

II.

Jurisdiction

At oral argument we asked the parties to submit briefs

to help us determine whether we have jurisdiction to

hear this appeal—specifically, whether Fed. R. Civ. P.

54(b)’s preconditions for entry of a “finai judgment”

on fewer than all claims in an action were satisfied. See

Consolidated Rail Corp. v. Fore River Ry. Co., 861 F.2d

322, 325 n.2 (1st Cir. 1988) (appellate court should

consider Rule 54(b) jurisdiction sua sponte); Spiegel Vv.

Trustces of Tufts College, 843 F.2d 38, 42-43 (1st Cir.

1988) (noting, in light of policy “against the scattershot

disposition of litigation... that entry of judgment under

the rule should not be... routine,” and explaining pre-

conditions). After considering the briefs and reading the

record, we conclude that Rule 54‘(b) permits the appeal.

Rule 54(b) reiterates the ordinary principle that a

judicial decision does not “terminate” an action—it is not —

normally “final” for purposes of appeal—if it “adjudi-

cates fewer than all the claims or the rights and liabilities

of fewer than all the parties.” Fed. R. Civ. P. 54(b).

But, the Rule contains an important exception:

When more than one claim for relief is presented

in an action... or when multiple parties are in-

volved, the court may direct the entry of a final judg-

ment as to one or more but fewer than all of the

claims or parties[, but] only upon an express deter-

mination that there is no just reason for delay and

upon an express direction for the entry of judgment.

Fed. R. Civ. P. 54‘b). The exception helps avoid hard-

ship, particularly in complex, multiparty litigation; it

permits a winning party to force a losing party to appeal

quickly in respect to certain.claims or litigants, thereby

disentangling the winning party from lengthy, time con-

suming litigation. See Sears, Roebuck & Co. v. Mackey,

351 U.S. 427, 432 (1956); Dickinson v. Petroleum Con-

version Corp., 338 U.S. 507, 511-12 (1950). Yet, because

it is an exception that threatens potentially unnecessary,

piecemeal appeals, the courts must administer it with

care, reserving it for instances in which the relevant

hardships, or administrative needs, are clear. See Con-

solidated Rail, 861 F.2d at 325; Spiegel, 843 F.2d at 42;

Cullen v. Margiotta, 811 F.2d 698, 710 (2d Cir.), cert.

denied sub nom. Nassau County Republican Comm. Vv.

Cullen, 483 U.S. 1021 (1987). —

In our view, this appeal satisfies the exception’s pre-

conditions. The case involves both multiple parties and

multiple claims. The district court entered a judgment

that, as concerns the RCRA claims, is “final,” for in re-

spect to 6 of the defendants, it “ends the litigation on

the merits and leaves nothing for the court to do but

execute the judgment.” Catlin v. United States, 324 U.S.

229, 233 (1945). See Curtiss-Wright Corp. v. General

Electric Corp., 446 U.S. 1, 7 (1980); Sears, Roebuck &

Co., 351 U.S. at 436 (judgment that “ultimate[ly]” dis-

poses of at least one claim in a multiple-claim action is

“final” for Rule 54(b) purposes). The district court

gave an “express direction for the entry of judgment.”

See Fed. R. Civ. P. 54(b). And, the court made “an

express determination that there is no just reason for

delay.” See Fed. R. Civ. P. 54(b).

The district court did not “make specific findings set-

ting forth’ its reasons, see Spiegel, 843 F.2d at 43;

Cullen, 811 F.2d at 711 (“certification must be accom-

panied by a reasoned, even if brief, explanation”), but

we are prepared to overlook that fact here in light of a

record that makes those reasons clear enough. Compare

Consolidated Rail, 861 F.2d at 326 and Spiegel, 843 F.2d

at 44 4in the absence of a statement of reasons, the appel-

late court, while foregoing “deference,”’ may nonetheless

allow appeal) with National Bank of Washington v.

Dolgov, 853 F.2d 57, 58 (2d Cir. 1988) (per curiam)

and Knafel v. Pepsi Cola Bottlers of Akron, Inc., 850

F.2d 1155, 1159-60 (6th Cir. 1988) (refusing to permit

appeal because district court failed to analyze Rule 54(b)

factors).

Several facts distinguish the present case from Con-

solidated Rail and Spiegel, in which we found entry of a

Rule 54(b) judgment improper. Consolidated Rail and

Spiegel both involved a single plaintiff presenting mul-

tiple claims against a single defendant; hence the action

remained pending as to all of the parties despite the par-

tial judgment entered. See Consolidated Rail, 861 F.2d

at 326 (one railroad company sued another to recover

fees allegedly collected on its behalf; district court

granted summary judgment for plaintiff on three counts;

defendant sought to appeal while a fourth count request-

ing identical relief was still pending); Spiegel, 843 F.2d

at 44 (teacher claimed defendant denying her tenure

violated several different laws; district court found some

of the laws were not violated; teacher sought to appeal

while similar claims under other laws were still pending

against defendant).

In contrast, the plaintiffs in the present case originally

sued 23 defendants; the RCRA judgment completely ter-

minates the plaintiffs’ case against 6 of them. Although

all of the plaintiffs’ claims arise out of waste disposal at

the Park, their RCRA claims do not simply repeat their

Clean Water Act or Clean Air Act claims. The RCRA

claims rest primarily upon the emission of noxious fumes,

coming from industrial waste matter in the regular sewer

pipes that run through the industrial park. The Clean

Water Act claims rest primarily upon the discharge of

waste from the rainwater system into the river. The

Clean Air Act claims rest primarily upon the emission

of fumes, not from the sewer pipe, but from chimneys

and flues. The RCRA regulatory requirements differ

from those of the Clean Water and Clean Air acts; and

neither of the latter acts permits the type of citizens’

injunctive action—to stop waste management activities

that threaten “imminent and substantial endangerment”

—now before us.

Moreover. many of the other defendants have settled;

the remaining claims against the remaining defendants

may take considerable time to try; and, given the rather

small overlap in claims, it seems unlikely that a deter-

mination of the remaining claims would moot (or lead to

erent

settlement of) the issues on this appeal. Cf. Consolidated

Rail, 861 F.2d at 326 ‘finding that a favorable decision

on the claim remaining in the district court would moot

the issue on appeal): Speigel, 843 F.2d at 45-46 (finding

that no significant, special hardship would be caused by

delay). For these reasons, this case is sufficiently dif-

ferent from Consolidated Rail and Spiegel to warrant a

different result. We therefore turn to the merits.

II.

The Domestic Sewage Exception

We now turn to the meaning of the “domestic sewage”’

exception. The particular RCRA provisions at issue,

$$ 7002 and 7003, permit private citizens and the govern-

ment to bring injunctive actions to stop the dangerous

handling or disposal of “any solid waste or hazardous

waste.” 42 U.S.C. §§ 6972, 6973. RCRA defines “haz-

ardous waste” as a special kind of “solid waste,” 42

U.S.C. §$ 690315): hence the scope of the words “hazard-

ous waste” is limited by RCRA’s definition of the words

“solid waste.”” RCRA’s definitional section says that

“solid waste”

means any garbage, refuse, sludge from a waste

treatment plant, water supply treatment plant, or

air pollution control facility and other discarded

material, including solid, liquid, semisolid, or con-

tained gaseous material resulting from industrial,

commercial, mining, and agricultural operations, and

from community activities, but does not include solid

or dissolved material in domestic sewage... .

42 U.S.C. $ 6903127) ‘emphasis added). If the term

“domestic sewage” means sewage that, in fact, comes

from residences, the district court should not have dis-

missed the plaintiffs’ case, for their complaint indicates

that the relevant industrial waste was mixed with “un-

treated sanitary waste’—the kind of waste one might

— ——————————

10a

find in homes—but that this waste originated at the work-

place, not in residences. We agree with the plaintiffs,

and the amicus Environmental Protection Agency, that

this is just what the language means.

First, the word “domestic” (coming from the Latin

“domus” or “house’’) in ordinary English means “relat-

ing to the household or the family . . . connected with the

supply, service, and activities of households and private

residences.” Webster’s Third New International Diction-

ary 671 (1976). Following the Supreme Court, “ ‘we

assume that the legislative purpose is expressed by the

ordinary meaning of the words used.’” United States v.

James, 478 U.S. 597, 604 (1986) (quoting American

Tobacco Co. y. Patterson, 456 U.S. 63, 68 (1982)). Aec-

cord Allende v. Shultz, 845 F.2d 1111, 1116-17 (1st Cir.

1988).

Second, the statutory provision defines ‘solid waste,”

not simply in terms of type of material, but also in terms

of source. Thus, it speaks of material “resulting from in-

dustrial, commercial, mining, ... agricultural ... and

. community” operations and activities and then con-

trasts “domestic” sewage. 42 U.S.C. § 6903(27). In con-

text, exempt “domestic sewage” therefore seems to refer,

not simply to type, but also to source. Indeed, one sus-

pects the statute’s drafters would have used other words,

such as the EPA’s term “sanitary wastes,” had they had

only type, not source, in mind.

Third, to interpret the word as the defendants sug-

gest, as referrring only to type, might make it difficult

for Congress to achieve its purpose in writing the in-

junctive RCRA provision. After all, most factories and

industries have toilets for workers; industrial and sani-

tary wastes may therefore often mix in the pipes below

the building; yet it is difficult to believe Congress would

wish to exempt potentially large amounts of industrial

- lla

waste from the statute’s scope simply because they mix

with some small amount of bathroom sewage.

Fourth, the legislative history suggests in various

ways that Congress intended that the injunctive provi-

sion have a rather broad scope. See, e.g., H.R. Rep. No.

198, 98th Cong., 2d Sess., pt. 1, at 48, reprinted in 1984

U.S. Code Cong. & Admin. News 5576, 5607 (amend-

ments “clearly provide that anyone who has contributed

or is contributing to the creation, existence, or mainte-

ance of an imminent and substantial endangerment is

subject to the equitable authority of Section 7003, with-

out regard to fault or negligence”); S. Rep. No. 284,

98th Cong., 1st Sess. at 59 (“An endangerment means a

risk of a harm, not necessarily actual harm, and proof

that the past or present handling, storage, treatment,

transportation or disposal of any solid or hazardous waste

may present an imminent and substantial endangerment

is grounds for an action seeking equitable relief.”) (cita-

tions omitted), See also United States v. Waste Indus-

tries, Inc., 734 F.2d 159, 164 (4th Cir. 1984) (Congress

“designed {§ 7003] to deal with situations in which the

regulatory schemes break down or have been circum-

vented... [Section 7003 is] a broadly applicable section

dealing with the concerns addressed by the statute as a

whole.”). In this legislative context, it would seem some-

what anomalous to interpret the exception broadly and

thus significantly narrow the statute’s reach.

Finally, and most importantly, we interpret the stat-

ute as reflecting a congressional intent to give EPA con-

siderable authority itself to interpret language like ‘‘do-

mestic sewage’ and thereby fix, at the boundaries, the

precise scope of the exception. The definitional section

uses highly general terms, which are neither perfectly

“clear,” nor clearly express an “unambiguous” congres-

sional intent as to scope or precise boundaries. Cf. NS

v. Cardoza-Fonseca, 480 U.S. 421, 445-48 (1987) (“‘sub-

stantial deference” to agency interpretation is inappropri-

12a

ate when court can ascertain congressional intent on the

precise question at issue); Chevron, U.S.A., Inc. v. NRDC,

467 U.S. 837, 842-43 (1984) (‘courts will not “defer” to

agency’s construction of a statute when the statute rep-

resents the “unambiguously expressed intent of Con-

gress”). The language in question constitutes a small

part of a comprehensive regulatory scheme that Congress

entrusted the EPA to administer, sensibly and in con-

junction with other, related environmental regulatory

schemes designed to secure clean water. clean air. and a

safe environment. See, e.g., 7 U.S.C. § 136 et seq. (Fed-

eral Insecticide, Fungicide, and Rodenticide Act); 15

U.S.C. § 2601 et seg. (Toxie Substances Control Act); 33

U.S.C. § 1251 et seq. (Clean Water Act) ; 42 U.S.C. § 300f

et seq. (Safe Drinking Water Act); 42 U.S.C. § 7401

et seq. (Clean Air Act); 42 U.S.C. $ 9601 et seg. (Com-

prehensive Environmental Response, Compensation, and

Liability Act). See also 42 U.S.C. $6905 (instructing

EPA to “integrate all [RCRA provisions! for purposes

of administration and enforcement and... avoid dupli-

cation, to the maximum extent practicable, with the

appropriate provisions of |other environmental protection

acts]”); H.R. Rep. No. 899, 89th Cong., 1st Sess., re-

printed in 1965 U.S. Code Cong. & Admin. News 3608,

3628 (“The term ‘solid waste disposal’ is defined to ex-

clude organic solids in untreated domestic sewage, which

are already subject to the Federal Water Pollution Con-

trol Act.”). The agency either has, or will develop, the

type of experience that will permit it properly to mesh

these related statutes, both to avoid senseless or overly

harsh results, and better to fulfill their overall environ-

mental objectives. Thus the proper application of the

definitional exception raises the very sort of interstitial

legal question, related to proper administration of a com-

plex statutory scheme, to which an agency is often in a

better position than a court to offer a proper answer.

And, that being so, a court can appropriately infer an

“implicit” congressional delegation of interpretive au-

13a

thority to the agency. All this is to say that this is just

the kind of case in respect to which the Supreme Court

has instructed us, in Chevron, to accord “considerable

weight” to “an executive department’s construction” of

the statute. Chevron, 467 U.S. at 844; see Ford Motor

Credit Co. v. Mi'hollin, 444 U.S. 555, 565 (1980) (where

Congress has left “interstitial silences within a statute,”

judges should be “attentive[] to the views of the ad-

ministrative entity appointed to apply and enforce” the

statute); Mayberg v. Secretary of Health and Human

Services, 740 F.2d 100, 106 (1st Cir. 1984) (contrasting

“interstitial” questions of law, related to the proper ad-

ministration of the statute, with more general, more im-

portant legal questions that Congress is unlikely to have

wished the agency primarily to answer). And, once we

give that “weight” to the agency’s narrow construction

of the exception, the other considerations mentioned ear-

lier are more than sufficient to convince us to follow that

construction.

The defendants reply to these arguments by pointing

to a specific EPA regulation, written in respect to other

parts of the RCRA statute, which says

(a) Materials which are not solid wastes. The fol-

lowing materials are not solid wastes for purposes

of this part :(1) (i) Domestic sewage; and (ii) Any

mixture of domestic sewage and other wastes that

passes through a sewer system to a publicly-owned

treatment works for treatment. “‘Domestic sewage”

means untreated sanitary wastes that pass through

a sewer system.

40 C.F.R. § 261.4 (emphasis added). The defendants note

that the last sentence of this regulation defines ‘‘domestic

sewage” by referring only to the type of waste, not to its

source; they infer that the definition includes as ‘“domes-

tic sewage” sanitary wastes originating at the workplace;

and they argue that EPA is bound by this definition.

EES

l4a

We do not accept this argument for two reasons. First,

EPA denies that this definition includes sanitary wastes

originating in factories; it says that the definition simply

refers to the kind of residential waste at issue; the regu-

lation’s silence about source does not mean that source is

irrelevant. EPA’s reading of its regulation is not totally

unreasonable; and, in light of an agency’s considerable

legal authority to interpret its own regulations, this argu-

ment is dispositive.. See Ford Motor Credit Co., 444 U.S.

at 565 (courts should defer to agency’s interpretation of

its own regulation “uniess demonstrably irrational’) ;

United States vy. Larionoff, 431 U.S. 864, 872 (1977)

(agency interpretation of its own regulations is “ ‘of con-

trolling weight unless it is plainly erroneous or inconsist-

ent with the regulation’”) (quoting Bowles v. Seminole

Rock & Sand Co., 325 U.S. 410, 414 (1945)); Udall v.

Tallman, 380 U.S. 1, 16-17 (1965) (same): Donovan v.

A. Amorello & Sons, Inc., 761 F.2d 61, 63 (1st Cir. 1985)

(“Courts must allow agencies to interpret their own

rules, at least where those interpretations are reason-

able.”).

Second, as we just mentioned, the definitional regula-

tion applies “only to wastes that also are hazardous for

purposes of the regulations implementing Subtitle C of

RCRA.” 40 C.F.R. § 261.1(b!(1) (emphasis added).

Sections 7002 and 7003 are not part of Subtitle C. In-

deed, the regulation goes on to say

A material which is not defined as a solid waste in

this part, or is not a hazardous waste identified or

listed in this part, is still a solid waste...if...

in the case of section 7003 the statutory elements are

established.

40 C.F.R. § 261.1(b) (2) (emphasis added). Since Con-

gress had not yet enacted § 7002(a)(1)(B) when EPA

wrote this regulation, we take § 7003 to stand for the

nearly identical § 7002(a)(1)(B) as well.) Defining

“solid waste” more narrowly for purposes of Subtitle C

15a

than for purposes of $$ 7002 and 7003 may make sense.

Subtitle C contains highly detailed recordkeeping, notifi-

cation, and permit requirements; to ease administrative

burdens, EPA may want to include those factory pipes

that contain only a little sanitary waste, but exclude those

that contain little else. Sections 7002 and 7003, on the

other hand, are invoked only to respond to imminent and

substantial endangerments to health or the environment;

in such a context, involving a present threat to public

welfare and no ongoing administrative duties, EPA may

want to include even those factory pipes that contain a

relatively small proportion of industrial wastes.

In any event, why given the general broad language

of the entire definitional section, could not EPA define the

exception’s scope somewhat differently for purposes of

different parts of the RCRA statute? We concede that

a court might find it difficult to uphold even minor vari-

ations in an agency’s interpretation and application of

the same statutory words if the reason for the court’s

deference to administrative interpretations,” Chevron,

467 U.S. at 844, were the court’s belief that historical

or administrative circumstances mean that the agency

likely knew better what Congress had in mind, see May-

burg, 740 F.2d 100 at 165-06. The court might ask how

Congress, using a single set of words in a single statu-

tory sentence, could have meant several different things.

However, where the reason for the court’s “deference”

reflects its belief that Congress, in effect, delegated to the

agency a degree of interpretive power, it does not seem

odd to find the agency interpreting the same words some-

what differently as they apply to different parts of the

statute in order better to permit that statute to fulfill

its basic congressionally determined purposes. Had the

statute expressly delegated the authority to the EPA to

decide the precise scope of the various parts of the statu-

tory definition, see 42 U.S.C. § 6903(27), under different

parts of the statute, it would not seem at all odd to find

the EPA tailoring its scope to fit the needs and objectives

16a

of the statute’s different parts. Why should the EPA not

have somewhat similar authority, at least to create minor

differences, where the delegation is implicit, where the

courts infer a congressional delegatory intent from the

nature of the overall regulatory scheme, its heavy de-

pendence upon sensible administration for its success, and

the rather interstitial nature of the particular legal ques-

tion—where such are the reasons for what the Supreme

Court in Chevren calls “deference?” See Chevron, 467

U.S. at 844 (court may not substitute its own construc-

tion for a reasonable agency interpretation when Con-

gress implicitly delegated authority to the agency to eluci-

date a specific statutory provision); Mayburg, 740 F.2d

at 106 (“{I!f Congress is silent, courts may still infer

from the particular statutory circumstances an implicit

congressiona! instruction about the degree of respect or

deference they owe the agency on a question of law.’’)

(emphasis in original).

We mention this last point particularly because the

record suggests there may have been a significant factual

change since the plaintiffs filed the original complaint in

this case. As we said at the outset, the Park’s sewer pipe

runs from the lark to a public sewer line. Before De-

cember 1987, that public line ran to a publicly owned

sewage treatment work (POTW) which did not receive

sewage from residences. Since December 1987, however,

the Park’s sewage has been treated at another POTW

which also receives sewage from residences outside the

Park. Thus defendants’ sewage now appears to mix with

“domestic sewage’ in the public line. Consequently, the

district court, in working with the words “in domestic

sewage,” may have to define the scope of the word “in.”

And, the scope of that word may vary, depending upon,

for example, 1) whether a householder has poured down

the cellar sink a caustic waste that will mix with “sani-

tary waste” after a mere thirty foot pipeline voyage on

its own, or 2) whether a plant pours down an industrial

sink a caustic waste that will eventually mix, in a city

17a

sewer system, with residential “sanitary waste” after a

three hundred foot pipeline voyage on its own. We be-

lieve that EPA’s views are helpful to courts asked to

resolve such statutory questions. We note that the House

Report, responding to the expressed fear that creation

of “private citizen” actions could lead to different, po-

tentially conflicting, legal interpretations, stated:

It is expected that EPA and the Department of

Justice will carefully monitor litigation under this

provision and file, where appropriate, amicus curiae

briefs with the court in order to assure orderly and

consistent development of caselaw in this area.

H.R. Rep. No. 198, 98th Cong., 1st Sess. 53, reprinted in

1984 U.S. Code Cong. & Admin. News 5576, 5612. And

we add that, in our view, it will be helpful if EPA con-

tinues to participate in this case, indicating its views,

where appropriate, to the district court, as it continues

to work with this highly complex statute.

For these reasons, the judgment of the district court is

Vacated and the case is remanded for further proceed-

ings consistent with this opinion.

18a

Statutory Appendix

42 U.S.C. § 6903(5) (1982):

The term “hazardous waste” means a solid waste, or

combination of solid wastes, which because of its

quantity, concentration, or physical, chemical, or in-

fectious characteristics may (A) cause, or signifi-

cantly contribute to an increase in mortality or an

increase in serious, irreversible, or incapacitating

reversible, iliness, or (B) pose a substantial present

or potential hazard to human health or the environ-

ment when improperly treated, stored, transported,

or disposed of, or otherwise managed.

42 U.S.C. § 6903(27) (1982):

The term ‘solid waste’ means any garbage, refuse,

sludge from a waste treatment plan, or air pollution

control facility and other discarded material, includ-

ing solid, liquid, semisolid, or contained gaseous ma-

terial resulting from industrial, commercial, mining

and agricultural operations, and from community

activities, but does not include solid or dissolved ma-

terial in domestic sewage, or solid or dissolved ma-

terials-in irrigation return flows or industrial dis-

charges which are point sources subject to permits

under section 1342 of Title 33, or source, special

nuclear, or byproduct material as defined by the

Atomic Energy Act of 1954, as amended (68 Stat.

923).

42 U.S.C. § 6972(a) (1) (B) (Supp. 1987):

[Except as provided in subsection (b) and (¢) of

this section, any person may commence a civil ac-

[tjion on|] his own behalf (1)... (B)] against

any person, including the United States and any

other governmental instrumentality or agency, to the

extent permitted by the eleventh amendment to the

Constitution, and including any past or present gen-

erator, past or present transporter, or past or pres-

19a

ent owner or operator of a treatment, storage or dis-

posal facility, who has contributed or who is contrib-

uting to the past or present handling, storage,

treatment, transportation, or disposal of any solid

or hazardous waste which may present an imminent

and substantial endangerment to health or the en-

vironment....

42 U.S.C. § 69731a) (Supp. 1987):

Notwithstanding any other provision of this chap-

ter, upon receipt of evidence that the past or present

handling, storage, treatment, transportation or dis-

posal of any solid waste or hazardous waste may

present an imminent and substantial endangerment

to health or the environment, the Administrator

may bring suit on behalf of the United States in

the appropriate district court against any person

(including any past or present generator, past or

present transporter, or past or present owner or op-

erator of a treatment, storage, or disposal facility)

who has contributed or who is contributing to such

handling, storage, treatment, transportation, or dis-

posal to restrain such person from such handling,

storage, treatment, transportation, or disposal, to

order such person to take such ether action as may

be necessary, or both....

20a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 89-1091

COMITE PRO RESCATE DE LA SALUD, ETC.., et al...

Plaintiffs, Appellants,

Puerto Rico AQUEDUCT AND SEWER AUTHORITY,

ETC., et al.,

Defendants, Appellees.

JUDGMENT

Entered: October 26, 1989

This cause came on to be heard on appeal from the

United States District Court for the District of Puerto

Rico, and was argued by counsel.

Upon consideration whereof, It is now here ordered,

adjudged and decreed as follows: The judgment of the

district court is vacated and the cause is remanded to the

district court for further proceedings consisted with the

opinion issued this date.

Costs to appellants.

By the Court:

FRANCIS P. SCIGLIANO

Clerk

By s [Illegible}

Chief Deputy Clerk

lec: Messrs. Roisman, Carr, Zahler, Chambers and

Lederer |

2la

APPENDIX C

UNITED STATES DISTRICT COURT

D. PUERTO RICO

Civ. No. 87-1643 (JP)

COMITE Pro RESCATE DE LA SALUD, et al.,

Plaintifis,

PvERTO Rico AQUEDUCT AND SEWER AUTHORITY, et al.,

Defendants.

July 10, 1988

Anthony Z. Roismar, Cohen, Milstein & Hausfeld,

Washington, D.C., Leonard W. Schroeter, Michael FE.

Withey, Schroeter, Goldmark & Bender, Seattle, Wash.,

Pedro J. Varela, Hato Rey, P.R., for plaintiffs.

Irwin Flashman, O’Neill & Borges, Hato Rey, P.R., for

Westinghouse.

Steven C. Lausell, Jimenez, Graffam & Lausell, San

Juan, P.R., for Bristol.

Jose A. Cestero, Andreu Garcia & Andreu Garcia, Hato

Rey, P.R., John L. Greenthal, Nixon, Hargrave, Devans

& Doyle, Albany, N.Y., for Pridco.

Francisco G. Bruno, Sweeting, Gonzalez & Cestero, San

Juan, P.R., Robert Zahler, Shaw, Pittman, Potts &

Trowbridge, Washington, D.C., for Perkin Eimer.

22a

Geoffrey Stewart, Hale and Dorr, Washington, D.C.,

Pedro A. Morell, Brown, Newsom & Cordova, Hato Rey,

P.R., for Storage Tek.

enrique Alearaz Micheli, Bufete Ferrer & Alcaraz,

Mayaguez, P.R., for Syneor and Mayaguez Air Cond.

Alberto Rodriguez-Ramos, Martinez, Odell, Calabria &

Sierra, Angel R. De Corral Julia, De Corral & De Mier,

Hato Rey, P.R., for Aratex.

Encarnita Catalan Marchan, Puerto Rico Aqueduct &

Sewer Authority, Santurce, P.R., Laurie S. Gill, Douglas

A. Johns, Palmer & Dodge, Boston, Mass., for Prasa.

Ernesto F. Rodriguez Suris, Hato Rey, P.R., Edilberto

serrios Perez, San Juan, P.R., for Washables and Penn-

tex.

Santiago Mari Roca, Ribas, Biaggi & Mari, Mayaguez,

P.R., for Sea Electronics and Stieffel.

Osvaldo Perez-Marrero, Hato Rey, P.R., for Equa In-

dustries.

Jose A. Rivera Mercado, Jose A. Rivera Cordero, Hato

Rey, P.R.. for Equa and Propper.

Goldman & Antonetti, Santurece, P.R., for Propper.

Charles A. Cordero, Cordero, Miranda & Pinto, Old

San Juan, P.R., for Matouk.

Jose M. Biaggi Junquera, Mayaguez, P.R., for Ariela.

Eduardo Estrella, Fiddler, GonzAlez & Rodriguez, San

Juan, P.R., for Cerveceria India.

OPINION AND ORDER

PIERAS, District Judge.

This case concerns alleged violations of federal en-

vironmental laws in the Barrio Guanajibo Industrial

23a

Park, Mayaguez, Puerto Rico, which have adversely af-

fected the health and environment of the named plain-

tiffs. Most of the defendants have moved to dismiss the

complaint for failure to state a claim, Fed.R.Civ.P. 12

(bi (6), or for lack of subject matter jurisdiction, Fed.

R.Civ.P. 12(b) (1). The motions to dismiss raise the

following significant issues: 1) Whether the plaintiffs

have stated a claim under the Resource Conservation and

Recovery Act (RCRA), 42 U.S.C. § 6901, et seg.;' 2)

whether the plaintiffs have supplied adequate notice of in-

of the Clean Water Act ‘CWA), 33 U.S.C. $1151, et

seq., and the Clean Air Act (CAA), 42 U.S.C. § 7401,

et seq., sO as to grant subject matter jurisdiction; 3)

whether the plaintiffs have supplied adequate notice of in-

tent to sue under RCRA, CWA, and CAA so as to grant

subject matter jurisdiction; 4) whether the plaintiffs have

statel a claim against the corporate-parent defendants;

and 5) whether the Court should exercise pendent juris-

diction over the nuisance, negligence, trespass, and strict

liability claims. Of these five issues, the interpretation

of RCRA is clearly paramount.

I. THE RESOURCE CONSERVATION AND

RECOVERY ACT (RCRA)

The plaintiffs allege that the corporate defendants * are

violating RCRA sections 3010(a), 3005(a), and 7003(a)

1 Defendant Westinghouse contends that its RCRA-based motion

to dismiss is based on Fed.R.Civ.P. 12(b) (1), so the plaintiffs have

the burden of proving jurisdiction. The Court finds that there is

subject matter jurisdiction over this case because the plaintiffs’

request for relicf under federal law is not frivolous, and in fact, it

could be sustained if we give RCRA plaintiff’s construction. See

Wheeldin v. Wheeler, 372 U.S. 647, 649, 83 S.Ct. 1441, 1444, 10

L.Ed.2d 605 (1963); Baker rv. Carr, 369 U.S. 186, 82 S.Ct. 691,

7 L.Ed.2d 662% (1962).

2 Bristol Meyers Company, Bristol Laboratories, Corp., Bristol

Caribbean (referred to jointly as “Bristol’”); Ara Services, Inc.,

Aratex, Inc., (referred to jointly as “ARA”): Ariela, Inc.; Cerve-

24a

by discharging hazardous materials into sewer systems of

Barrio Guanajibo Industrial Park. In relevant part, sec-

tion 3010(a), 42 U.S.C. §$ 6930, requires a generator of

hazardous wastes to file a notification of its activity with

the Environmental Protection Agency (EPA). Section

3005(a), 42 U.S.C. $6925(a), requires owners or op-

erators of hazardous waste storage and disposal facilities

to obtain permits from the EPA. Section 7003, 42 U.S.C.

$ 6973, prohibits hazardous waste activities that may

present an imminent and substantial endangerment to

health or the environment. In addition, § 7002, 42 U.S.C.

$ 6972, grants private citizens the right to enforcement

of the above provisions indgistrict court.

The plaintiffs make similar allegations against the pub-

lic corporations.* Instead of alleging violations arising

from hazardous waste generation, however, the plaintiffs

claim that PRASA and PRIDCO store and transport

hazardous wastes without proper notification and permits,

to the imminent and substantial danger to health and the

environment.

The defendants argue that the conduct alleged by the

plaintiffs—-disposal of hazardous wastes in the industrial

park’s sewer system—is specifically exempted from reg-

ceria India, Inc. (“India”); Equa Industries, Inc. (“Equa”); Ma-

touk Industries, Inc. (“Matouk”); Mayaguez Air Conditioning

(“Mayaguez A’/C”); Perkin-Elmer Corporation, Perkin-Elmer Ca-

ribbean (referred to jointly as “PEC’’); Propper International,

Inc. (“Propper”); Sea Electronics Aids, Inc. (“Sea Electronics’) ;

Sportscaribe, Inc.; Stiefel Laboratories, Inc. (both a Florida cor-

poration and a Puerto Rico corporation, referred to jointly as

“Stiefel”); Storage Technology de Puerto Rico, Storage Tech-

nology Corporation (referred to jointly as “Storage Tech”) ; Syncor

Industries Corporation (“Syncor’”); Westinghouse Electric Corpo-

ration, Westinghouse de Puerto Rico, Inc. (referred to jointly as

“Westinghouse” ).

Puerto Rico Aqueduct and Sewer Authority (PRASA) and

Puerto Rico Industrial Development Company (PRIDCO).

25a

ulation by RCRA. Therefore, the complaint fails to state

a claim upon which relief can be granted.

A. Background

Federal regulation of hazardous waste is accomplished

as a part of solid waste regulation under RCRA, and

RCRA applies to hazardous materials only if they fall

within the definition of “solid waste.”* The defendants’

discharges are therefore only to be considered “hazardous

wastes” if they first fit the definition of “solid waste.” *

The parties in this case agree that the defendants are

commercial operations within the meaning of § 6903(27).

Therefore, the materials that the defendants discharge

should be categorized solid wastes, subject to RCRA, un-

less one of the exclusions in § 6903(27) applies {see fn

5). The defendants argue that the phrase “does not in-

4 The term “hazardous waste” means a solid waste, or com-

bination of solid wastes, which because of its quantity, concen-

tration, or physical chemical, or infectious characteristics may—

(A) cause, or significantly contribute to an increase in

mortality or an increase in serious irreversible, or incapacitat-

ing reversible, illness; or

(B) pose a substantial present or potential hazard to human

health or the environment when improperly treated, stored,

transported, or disposed of, or otherwise managed.

42 U.S.C. § 6903 (5).

* The term “solid waste’ means any garbage, refuse, sludge from

a waste treatment plant, water supply treatment plant, or air

pollution control facility and other discarded material, in-

cluding solid, liquid, semisolid, or contained gaseous material

resulting from industrial-commercial, mining, and agricultural

operations, and from community activities, but does not include

solid or dissolved material in domestic sewage, or solid or dis-

solved materials in irrigation return flows or industrial dis-

charges which are point sources subject to permits under sec-

tion 1342 of title 33, or source, special nuclear, or byproduct

material as defined by the Atomic Energy Act of 1954, as

amended (68 Stat. 923).

42 U.S.C. $6903(27) (underscoring added).

26a

clude solid or dissolved material in domestic sewage,”

known as the Domestic Sewage Exclusion (or “DSE”),

exempts their activities from RCRA coverage. The plain-

tiffs contend that the DSE does not encompass the de-

fendants’ activities.

In the RCRA regulations, the EPA describes the Do-

mestic Sewage Exclusion as follows:

(a) Materials which are not solid wastes. The fol-

lowing materials are not solid wastes for the purpose

of this part: (1) (i) Domestic sewage; and (ii) Any

mixture of domestic sewage and other wastes that

passes through a sewer system to a publicly-owned

treatment works for treatment. “‘Domestic sewage”

means untreated sanitary wastes that pass through

a sewer system.

40 C.F.R. § 261.4 (1987). The defendants allege, and the

plaintiffs do not contradict the allegations, that whatever

materials they discard are dumped into a stream of

sanitary wastes that passes through a treatment plant

owned by PRASA. In the defendants’ view, this situation

fits the Domestic Sewage Exclusion perfectly, so the

chemical discharges are not regulated in any way by

RCRA. The defendants claim that their discharges are

instead considered to be subject to the pretreatment

standards of the Clean Water Act, 33 U.S.C. § 1251 et seq.

The plaintiffs argue that the alleged discharges are

included in RCRA’s coverage because they do not fit the

requirement of passing “through a sewer system to a

publicly owned treatment works for treatment.” 40

C.F.R. § 261.4(a) (1) (ii) (emphasis added.) The plain-

tiffs contend that they have not sued to stop discharges

that are treated at a treatment plant; rather they have

sued to stop the discharge of wastes that fail to pass

through the sewers and remain stuck in the system, dam-

aging health and the environment through leakage or

evaporation.

27a

The question before the Court at this time is one of

statutory interpretation: assuming plaintiffs’ factual al-

legations to be true, does the Domestic Sewage Exclusion —

apply to wastes discharged into a sewer system so de-

fective that the wastes never reach a treatment plant?

-A number of defendants have supplemented their mo-

tions to dismiss with affidavits, exhibits, and stipulations

of fact, which ordinarily has the effect of converting the

motions to ones for summary judgment. Fed.R.Civ.P.

12(b). On the narrow issue of interpreting the Domestic

Sewage Exclusion, however, the facts added by this evi-

dence are immaterial; so the Court considers the motions

as ones to dismiss the complaint under 12(b) (6).

B. Discussion

The Court’s analysis begins with the language of RCRA,

which seems to indicate that the Domestic Sewage Ex-

clusion exempts the defendants’ alleged disposal practices

from RCRA regulation. Section 6903(27) excludes ma-

terial “in domestic sewage.” Domestic sewage is defined

as untreated sanitary waste that passes through a sewer

system. 40 C.F.R. 261.4(a) (1) (ii).” A straightforward

reading of this language makes a producer or handler

of hazardous waste (as otherwise defined) subject to

RCRA if its discarded materials are, for example, buried,

placed in caves or mines, placed in landfills, injected into

wells, or burned, but not if those materials are dumped

into a sewer leading to a publicly owned treatment plant

(POTW). This construction of the statute is supported

by the introduction section of EPA’s request for com-

ments on 40 C.F.R. § 261.4(a):

“EPA has, therefore, decided that a waste falls

within the domestic sewage exemption when it first

® The term “Domestic Sewage” is not defined in RCRA itself, only

in the regulations.

28a

enters a sewer system that will mix it with sanitary

wastes prior to storage or treatment by a POTW.”

45 Fed. Reg. 33084, 33097 (1980).

The plaintiffs argue that this interpretation of the

DSE leaves a huge loophole that could not have been in-

tended by Congress. The plaintiffs urge a broader read-

ing of RCRA, noting that Congress intended “cradle-to-

grave” regulation of hazardous wastes as a means of pro-

tecting health and the environment. Indicators of such a

Congressional intent appear on the face of RCRA: 42

U.S.C. § 6902 establishes the objective of promoting “the

protection of health and the environment;’ § 6902(a) (4)

sets a goal of assurance that “hazardous waste manage-

ment practices are conducted in a manner which pro-

tects human health and the environment;” and § 6902(b)

formulates a national policy “that wherever feasible, the

generation of hazardous waste is to be reduced ov elimi-

nated as expeditiously as possible. Waste that is never-

theless generated should be treated, stored, or disposed of

so as to minimize the present and future threat to human

health and the environment.”

The parties agree that Congress enacted the DSE with

the intention that the excluded wastes would be regulated

by the Clean Water Act. The plaintiffs argue, however,

that broad application of the Exclusion to this case not

only defeats RCRA’s purpose of protecting health and

the environment, it is also inconsistent with the purposes

of the Clean Water Act.

The Clean Water Act is a broad remedial statute in-

tended to control discharges of pollutants into the nation’s

navigable waters. See e.g., U.S. v. Velsicol Corp., 438

F.Supp. 945 (W.D.Tenn.1976). To this end, the Act pro-

vides for establishment of effluent standards for treat-

ment plants as well as pretreatment standards for dis-

charges into sewers that lead to treatment plants. The

rationale for pretreatment standards is two-fold: first,

29a

some substances are incompatible with the design of the

treatment plant and interfere with the plant’s treatment

of other wastes; and second, some substances are not af-

fected by the treatment plant and pass directly through

it into tributaries or navigable waters. 33 U.S.C. § 1317

(b) (1).?

The pretreatment standards represent the portion of

the CWA that can be used to control the defendants’ dis-

charges into the sanitary sewers. But plaintiffs argue

that because the Clean Water Act only aims to prevent

interference and pass-through, it does not protect the pub-

lic from sewer systems that leak, from traps that fail,

and from other health dangers arising before the sewage

reaches the treatment plant. The plaintiffs contend that

because the CWA pretreatment standards have a limited

purpose, the dimensions of RCRA’s Domestic Sewage Ex-

clusion should be drawn according to that purpose. That

is, the DSE should be construed to exempt wastes only

to the extent that they are actually controlled by the

CWA pretreatment standards.

The plaintiffs claim that this interpretation of § 6903

(27) is consistent with EPA’s interpretations. Plaintiffs

read the phrase “passes through” in 40 C.F.R. 261.4 as

limiting the exclusion to the portions of the discharges

that pass all the way through the sewer system and ac-

tually reach the treatment plant. The preamble to the

regulation, cited on page 6 above, states that wastes are

excluded when they first enter the sewer system—and

plaintiffs read it to apply only to wastes that actually

reach the treatment plant for storage or treatment. See

45 Fed.Reg. 33097. In other words, wastes that reach

POTW are excluded from RCRA from the moment they

are discharged; but wastes that never reach the POTW

are never excluded from RCRA.

7These problems are referred to as “interference” and “pass-

through.”

30a

The plaintiffs argue that there is therefore nothing in

RCRA or the regulations that is inconsistent with their

construction of the Domestic Sewage Exclusion. More-

over, as remedial public health legislation, RCRA ought

to be construed liberally, with a narrow reading of any

exceptions to its application. See United States v. An

Article of Drug, Etc., 394 U.S. 784, 800 (1969); South-

ern Ry. Co. v. Occupational Saf. EH. Review Comm., 539

F.2d 335, 338 (4th Cir. 1976).

The plaintiffs raise two other arguments that are vari-

ations on their primary theory of the inapplicability of

the Domestic Sewage Exclusion. The plaintiffs argue that

the DSE applies only at the time the waste enters prop-

erty owned by PRASA, pursuant to 40 C.F.R. § 260.10 °

and 33 U.S.C. §$ 1862(4).° Because PRIDCO or the pri-

vate defendants allegedly owned some of the sewer mecha-

nisms, and some of the wastes allegedly escape before

reaching the lines owned by PRASA, the plaintiffs claim

that some wastes are escaping before the DSE begins to

8 Section 260.10 is the “Definitions” section of the hazardous

waste regulations. The following is among the definitions:

“Publicly owned treatment works” or “POTW” means any de-

vice or system used in the treatment (including recycling and

reclamation) of municipal sewaye or industrial wastes of a

liquid nature which is owned by a “State” or “municipality”

(as defined by section 502(4) of the CWA). This definition

includes sewers, pipes, or other conveyances only if they convey

wastewater to a POTW providing treatment.

40 C.F.R. § 260.10 (1987).

® The term “municipality” means a city, town, borough, county,

parish, district, association, or other public body created by or

pursuant to State law and having jurisdiction over disposal of

sewage, industrial wastes, or other wastes. or an Indian tribe

or an authorized Indian tribal organization, or a designated

and approved management agency under section 1288 of this

title.

33 U.S.C. § 1362(4).

sla

operate. In essence, the plaintiff is offering a third op-

tion for delimiting the DSE. The defendants claim the

Exclusion applies at the point of discharge; plaintiffs

earlier argued essentially that the Exclusion applies at

the point of treatment; and in the alternative, the plain-

tiffs claim that the Exclusion applies at the point of pub-

lic ownership. This alternative interpretation finds no

support in the regulations. The plaintiffs contend that

§ 260.10 defines ‘‘sewer system” as “that system owned

by the POTW.” However, no definition for “sewer sys-

tem” appears in the regulations. The language most simi-

lar to that claimed by the plaintiffs is the POTW defini-

tion quoted in footnote 8, above. The language of § 261.4

(6) (1) (ii) clearly contradicts the plaintiff’s construction.

That section implicates the DSE whenever hazardous

waste passes through a sewer system to a POTW. A

sewer system is obviously thought to differ from a POTW,

and plaintiffs’ attempt to define the system as a sub-part

of the POTW is incorrect.

Finally, plaintiffs argue that the Domestic Sewage

Exclusion applies only to wastes that are mixed, at some

point, with domestic sewage as opposed to industrial sew-

age, citing an April 15, 1988, Guidance Document by the

EPA." The plaintiffs allege that the treatment plant at

the industrial park treats or treated only industrial sew-

age, so any discharges destined for that plant were cov-

ered by RCRA."! However, there is nothing in the statute

10 “Tndustrial waste which mixes with sanitary waste from on-

site sanitary facilities for the employees does not necessarily

fall under the domestic sewage exemption, the industrial waste

must also mix in the municipal sewer system with untreated

sanitary wastes from non-industrial sources.”

EPA Document, Guidance for Implementing Permit-By-Rule Re-

quirements at POTWs, p. 6. (April 15, 1988).

11]t appears that the parties agree that the treatment plant lo-

cated in Barrio Guanajibo ceased operating in late 1987 and that

EE ————————

32a

or rerulations that requires sanitary wastes to derive

solely from industrial sources. See 40 C.F.R. 261.4(a)

(1) (ii). The natural reading of these provisions triggers

the DSE whenever hazardous wastes are mixed with do-

mestic wastes, regardless of the source of the domestic

wastes. Thus the application of the DSE in this case is

the same for both of PRASA’s treatment plants.

In support of their interpretation of the Domestic

Sewage Exclusion, the defendants rely first on the plain

language of the statute and second on the unworkable

results of following plaintiff's argument to its conclusion.

As noted above, the language of RCRA § 6903(27) and

40 CFR 261.4 seem to indicate that the DSE was in-

tended to exempt producers and handlers of hazardous

materials whenever the materials are dumped into a

sewer that leads toa POTW.

The DSE has been subject to continuing congressional

and administrative attention since its enactment in 1980.

RCRA was amended in 1984, and Congress specifically

required re-evaluation of the DSE. 42 U.S.C. § 6939."

the industrial park’s wastes are now treated in a regional POTW.

This fact is nevertheless immaterial because the change in plants

is not relevant to the issue of RCRA coverage.

The Court notes that “continuing violation” is not a requisite to

a RCRA claim under 42 U.S.C. § 6972(a)(1)(B). This section

expressly allows citizens suits to enjoin an imminent and substan-

tial endangerment to health or environment by past and present

generators, transporters, or operators of facilities. This is obvi-

ously different from the situation in Gwa/tney v. Chesapeake Bay

Foundation, U.S. , 98 L.Ed.2d 306 (1987) because of the

long-term effects of hazardous waste disposal.

12 The statute reads, in relevant part:

§ 6939. Domestic sewage

(a) Report

The Administrator shall, not later than 15 months after No-

vember 8, 1984, submit a report to the Congress concerning

those substances identified or listed under section 6921 of this

title which are not regulated under this subchapter by reason

33a

See Cong.Ree. H9149-9153 (daily ed. Nov. 3, 19838).

This section mandates a study of the DSE to determine

“the extent to which the exclusion is justified and should

be modified or eliminated, and the adequacy of pretreat-

ment as a means of dealing with the problem.” Cong.Rec.

H9150 (Nov. 3, 1988, remarks of Rep. Molinari). The

result was a document entitled “The Domestic Sewage

Study,” presented in February, 1986. Among its find-

ings, the Study identified leakage and evaporation from

sewers as potential problems, and it recommended further

study. In August, 1986, the EPA issued an Advance No-

tice of Proposed Rulemaking with respect to implement-

ing the recommendations of the study. 51 Fed.Reg. 30174

(August 22, 1986). And most recently, EPA responded

to the comments it received on its proposal. 52 Fed.Reg.

23477, et seq. (June 22, 1987). The defendants argue

that this entire process—from the original legislation

through the continuing consideration of the DSE— indi-

cates that Congress affirmatively intended to exclude haz-

ardous waste from the point of sewer discharge. Both

of the exclusion for mixtures of domestic sewage and other

wastes that pass through a sewer system to a publicly owned

treatment works. Such report shall include the types, size and

number of generators which dispose of such substances in

this manner, the types and quantities disposed of in this man-

ner, and the identification of significant generators, wastes,

and waste constituents not regulated under existing Federal

law or regulated in a manner sufficient to protect human health

and the environment. 2

(b) Revisions of regulations

Within eighteen months after submitting the report specified

in subsection (a) of this section, the Administrator shall revise

existing regulations and promulgate such additional regulations

pursuant to this subchapter (or any other authority of the

Administrator, including section 1317 of Title 33) as are neces-

sary to assure that substances identified or listed under section

6921 of this title which pass through a sewer system to a pub-

licly owned treatment works are adequately controlled to pro-

tect human health and the environment.

42 U.S.C. § 6939.

dda

Congress and the EPA are aware of possible problems

from leakage and evaporation, and Congress’ preferred

course of action is to study the magnitude of the problems

as well as the feasibility of alternatives before legislating

cha[n]ges in the DSE. These problems are not unfore-

seen aberrations that demand a broad reading of RCRA

for the sake of the public welfare. The DSE should there-

fore be interpreted to include the defendant's practices,

even if the plaintiffs’ allegations of seepage and vaporiza-

tion are true.

In consideration of all of the above arguments, the

Court finds that the defendants’ discharges of hazardous

materials into the sewer system are not regulated by

RCRA due to the Domestic Sewage Exclusion. Notwith-

standing general goal of preventing health and environ-

mental hazards, the Court believes that Congress chose

to implement the policies of RCRA according to specific

requirements that would guide industry and the public.

The RCRA interpretation that excludes wastes upon first

entry into a sewer system is a more logical and facile

construction. This reading of the statute allows the in-

dustrial corporations in Barrio Guanajibo to govern their

pollution-control practices in accordance with the method

used to dispose of their hazardous chemicals. Each com-

pany that discharves chemicals into the sanitary sewer

is obligated to comply with the Clean Water Act (CWA).

This construction also permits PRASA and PRIDCO to

conduct their operations with certainty of procedures.

Under the plaintiffs’ proposal, each defendant would be

forced to consider its sewer discharges to be both hazard-

ous waste under RCRA and a pollutant under CWA. The

facilities would then be required to comply with both

regulatory schemes either partially or totally. To make

this system worse, each corporate defendant would pre-

sumedly be obligated to monitor continually the efficiency

of the sewer system. Whenever a functioning system

breaks down, the defendant would be brought into the

35a

double regulation of RCRA and the CWA—through

events beyond its control.

It seems clear that Congress intended the simpler sys-

tem advocated by the defendants. The Court reaches this

conclusion not only because such a system avoids double

regulation but also because the system provides industry,

government, and the public with more efficient and pre-

dictable bases for making important waste-disposal deci-

sions.

In addition, the DSE would have a tortuous effect on

the RCRA scheme if it were to apply only wastes actually

treated, and not to all those discharged. Sections 6922

and 6924 of Title 42, for example, establish the standards

to be used by EPA in its regulation of hazardous waste."

'* Section 6922(a) reads, in relevant part:

Such standards shall establish requirements respecting—

(1) recordkeeping practices that accurately identify the quan-

tities of such hazardous waste generated, the constituents

thereof which are significant in quantity or in potential harm

to human health or the environment, and the disposition of

such wastes;

(2) labeling practices for any containers used for the storage,

transport, or disposal of such hazardous waste such as will

identify accurately such waste;

(3) use of appropriate containers for such hazardous waste;

(4) furnishing of information on the general chemical compo-

sition of such hazardous waste to persons transporting, treat-

ing, storing, or disposing of such wastes;

(5) use of a manifest system and any other reasonable means

necessary to assure that all such hazardous waste generated

is designated for treatment, storage, or disposal in, and arrives

at, treatment, storage, or disposal facilities (other than facili-

ties on the premixes where the waste is generated) for which

a permit has been issued as provided in this subchapter, or

pursuant to title | of the Marine Protection, Research, and

Sanctuaries Act (86 Stat. 1052); and

(6) submission of reports to the Administrator (or the State

agency in any case in which such agency carries out a permit

36a

Several of these requirements appear to be nonsensical

when applied to the defendants here. Section 6922(a) (5)

and 40 C.F.R. Part 262 would require the facilities at

program pursuant to this subchapter) at least once every two

years, setting out—

(A) the quantities and nature of hazardous waste identified

or listed under this subchapter that he has generated during

the year; .-:.

(B) the disposition of all hazardous waste reported under sub-

paragraph (A); :

volume and toxicity of waste generated; and

(D) the changes in volume and toxicity of waste actually

achieved during the year in question in comparison with pre-

vious years, to the extent such information is available for

years prior to November 8, 1984.

Section 6924(a), referring to standards for owners and operators

of hazardous waste treatment, storage, and disposal facilities, reads

in part:

Such standards shall include, but need not be limited to, re-

quirements respecting —

(1) maintaining records of all hazardous wastes identified or

listed under this chapter which is treated, stored, or disposed

of, as the case may be, and the manner in which such wastes

were treated, stored, or disposed of;

(2) satisfactory reporting, monitoring, and inspection and com-

pliance with the manifest system referred to in section 6922(5)

of this title;

(3) treatment, storage, or disposal of all such waste received

by the facility pursuant to such operating methods, techniques,

and practices as may be satisfactory to the Administrator:

(4) the location, design, and construction of such hazardous

waste treatment, disposal, or storage facilities:

(5) contingency plans for effective action to minimize unan-

ticipated damage from any treatment, storage, or disposal of

any such hazardous waste;

(6) the maintenance of operation of such facilities and requir-

ing such additional qualifications as to ownership, continuity

of operation, training for personnel, and financial responsibility

(ineluding financial responsibility for corrective action) as may

be necessary or desirable; and...

37a

Barrio Guanajibo to complete a manifest each time they

discharged hazardous chemicals into the sewer,’* desig-

nating PRASA and PRIDCO as transporters and treat-

ment facilities, and perhaps identifying malfunctioning

sewers as containers. In addition, § 6922(b) would re-

quire the facilities to certify that a broken sewer is the

“practicable method currently available to the generator

which minimizes the present and future threat to human

health and the environment.” 42 U.S.C. § 6922(b). The

requirements for PRASA and PRIDCO, as transporteis

and treatment facilities would be no more logical. See

$6924(a) above. Moreover, §6927(e) would require

EPA to “thoroughly inspect every facility for the treat-

ment, storage, or disposal of hazardous waste... no less

often than every two years as to its compliance with this

chapter.” This provision makes little sense when it re-

quires inspection of facilities that are included in the

regulations only by virtue of their malfunctioning sewer

systems.

The entire regulatory scheme seems obviously intended

to govern the most common or acceptable hazardous

“waste disposal practices. It does not appear to be appli-

cable to disposal through sewer systems, nor to unin-

tended discharges from faulty sewers. The proper inter-

pretation of RCRA therefore excludes from coverage all

hazardous materia!s dumped into sanitary sewers destined

for POTW, from the first entry of the chemicals into the

sewer system. Congress did not consider the problems of

leakage or vaporization from sanitary sewers significant

enough to force an additional remedial structure into the

RCRA program. Although there is evidence of continu-

ing congressional and administrative concern over these

problems, Congress has chosen not yet to address them

under RCRA. This Court cannot use the apparent health

and environmental problems as a license to redraft RCRA

The form of the manifest appears in 40 CFR Part 262,

Appendix.

38a

and the DSE. Rewriting RCRA is the sole prerogative

of Congress, and this Court must apply the law as it

exists at present, not as we think it should read.

This interpretation of RCRA appiies equally fo all of

plaintiffs’ RCRA claims, including the allegation of im-

minent and substantial endangerment under RCRA

$ 7003. Congress chose to exclude the defendants’ prac-

tices by definition from all RCRA coverage. 42 U.S.C.

$ 6903(27). Mixtures of hazardous chemicals with do-

mestic waste are not solid waste and therefore not

hazardous waste. Although plaintiffs have alleged im-

minent and substantial danger, they have not alleged that

the danger was caused by hazardous waste, within the

RCRA definition.

Therefore, because plaintiffs have only alleged conduct

that should be protected by the DSE, all RCRA claims are

DISMISSED for failure to state a claim upon which

relief can be granted.

Il. PENDENT CLAIMS

The plaintiffs allege the right to recover, under the

laws of Puerto Rico, for nuisance, negligence, trespass,

and strict liability. The amended complaint indicates

that some of the defendants and all of the plaintiffs are

citizens of Puerto Rico. Therefore, there is no diversity

jurisdiction, and jurisdiction over the tort claims must be

based on pendent jurisdiction. The exercise of pendent

jurisdiction is a matter of court discretion, taking into

consideration judicial economy, convenience, and fairness

to the litigants. United Mine Workers v. Gibbs, 383 U.S.

715 (1966). Because the RCRA claims predominate, the

Court’s dismissal above provides “a powerful reason to

choose not to continue to exercise jurisdiction” over the

state-law claims. Carnegie-Mellon Univ. v. Cohill,

U.S. , 98 L.Ed.2d 720, 730. (1988). All pendent

claims are therefore DISMISSED.

39a

Ill. CLEAN AIR ACT AND CLEAN WATER ACT

The amended complaint alleges continuous violations of

the Clean Air Act (CAA) and Clean Water Act (CWA)

against several of the defendants: CAA violations against |

PRASA, ARA, Ariela, India, Equa, Matouk, Mayaguez

A/C, PEC, Propper, Sea Electronics, Sportsearibe, Stor-

age Tech, and Syncor; CWA violations against ARA,

Ariela, Equa, PEC, Propper, Sportscaribe, and Stiefel,

The defendants variously raise three arguments in sup-

port of their motions to dismiss/motions for summary

judgment.

First, the defendants claim that the notice given them

pursuant to CAA § 304(b)” and CWA § 505(b)** was

deficient according to the requirements of 40 CFR §$ 54.3

and 135.3. As in National Wildlife Federation v. Con-

sumers Power Co., 657 F.Supp. 989 (W.D.Mich.1987).

the plaintiffs implicitly acknowledge that they may not

have complied fully with the regulations, but they argue

that they have fully complied with the statutory require-

ments—that defendant had actual notice of the matters

at issue—and that the Court should excuse their tech-

nical non-compliance. See National Wildlife Federation,

657 F.Supp. at 998. The notice letters sent by plaintiffs

in this case effectively notify the defendants of the ac-

tivity alleged to constitute a violation (the release of

specified toxic pollutants to the ambient air or Rio

Hondo); the standards violated (that these pollutants

were released without permits); the person or persons

responsible for the violations (the defendants) ; the loca-

tion of the alleged violations (the defendants’ facilities in

Barrio Guanajibo Industrial Park); and the full name

and address of the persons giving notice. Although the

notice letters may have been incomplete, this Court fol-

lows National Wildlife Federation and finds that the

18 42 U.S.C. § 7604(b).

16 33 U.S.C. § 1365(b).

40a

plaintiffs have “sufficiently alleged and established the ac-

tual notice that the statute and the regulations require

... 657 F. Supp. at 998.

Second, the defendants argue that plaintiffs have failed

adequately to allege continuing violations of the CWA and

CAA within the meaning of Gwaltney v. Chesapeake Bay

Foundation, US. , 98 L.Ed.2d 306 (1987).

In precis, the amended complaint alleges continuing

intermittent violations of the Acts in the past and a

continuation of the conditions that led to these viola-

tions. The Court holds that such allegations satisfy the

good-faith standard of Gwaltney and are sufficient tu

establish jurisdiction. See also Pawtuxent Cove Marina,

Inc. v. Ciba-Geigy Corp., 807 F.2d 1089 (1st Cir.1986).

Once jurisdiction has been established, defendants can

prevail on a moctness theory if they show that remedial

measures have been taken, that the measures are effica-

cious, and that risk of further violations has been eradi-

cated. See Chesapeake Bay Foundation v. Gwaltney, 844

F.2d 170 (4th Cir.1988). The record in this case contains

only defendants’ conclusive assertions that they have

ceased violations of the Acts, and as such the issue of

mootness does not arise. _

Third, some defendants challenge the substance of the

CWA and CAA claims. Plaintiffs and defendants have

submitted documents outside the pleadings that tend to

support the existence or nonexistence of prima facie vio-

lations of the Acts. The Court finds that there exists

material facts in dispute with respect to the discharge of

pollutants without proper permits, and summary judg-

ment would therefore be improper.

Because the Court finds that the plaintiffs’ notice let-

ters to be adequate under CWA and CAA, that the plain-

tiff[}s have properly alleged continuing violations of CWA

and CAA, and that there are material facts in dispute

with relation to CWA and CAA, the motions to dismiss

4la

the complaint and for summary judgment under these

Acts are hereby DENIED.

IV. LIABILITY OF CORPORATE PARENTS

Several defendants, including ARA, PEC, and Storage

Tech, have moved for dismissal of the complaints against

the American corporate parents. The parent corporations

can be held liable for their subsidiaries’ conduct if the

parents’ acts or omissions themselves constitute a tort

under the laws of Puerto Rico. Mujiz v. National Can

Corp., 737 F.2d 145 (1st Cir.1984). A prerequisite to

such liability is the assumption of a duty by the parent

corporation. Mujiz, 737 F.2d at 148. The Court finds

that a question of material fact exists as to the extent

the parents assumed responsibility for the environmental

issues at their subsidiaries’ plants in Barrio Guanajibo.

Summary judgment in favor of the parent corporations

is therefore premature.

The defendants also argue that the parents cannot be

held liable for the federal causes of action against their

subsidiaries unless the parent and subsidiary are shown

to be in fact one corporation. The Court finds that there

exists questions of fact as to the separateness of the

parents from their subsidiaries. Therefore, summary

judgment on this issue would be inappropriate at this

time.

Dismissal for lack of personal jurisdiction would also

be premature. Even if summary judgment were ulti-

mately granted against the plaintiff on the tort issues,

above, Puerto Rico’s long-arm statute would still permit

exercise of jurisdiction over persons who have transacted

business in Puerto Rico. P.R. Laws Ann. Tit. 32, App.

III, R. 4.7. This rule has been found to grant jurisdic-

tion to the full extent of constitutional authority. Man-

gual v. General Battery Corp., 710 F.2d 15, 19 (1st Cir.

1983). The jurisdictional tests are set out in Escude

Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 904

42a

(1st Cir.1980) and A.H. Thomas Co. v. Superior Court,

98 P.R.R. 864 (1970). As noted in Escude Cruz, “[con-

siderations of ‘fair play and substantial justice’ require

in each case a careful scrutiny of the defendant’s activi-

ties,” citing International Shoe Co. v. Washington, 326

U.S. 310, 316 (1945). The Court finds that the record

has not sufficiently been developed on the issue of the

parents’ contacts with the forum, Puerto Rico. The

Court therefore DENIES the motions to dismiss for lack

of personal jurisdiction.

Finally, with respect to the American corporate par-

ents, PEC notes that it has never properly been served

and asks for dismissal with prejudice. The plaintiffs

served PEC by mail, and they argue that such service is

permitted by Fed.R.Civ.P. 4(c) (2) (C) (ii). This District

Court has held, however, that service by mail is proper

only if accomplished within Puerto Rico, unless a federal

or state statute specifically provides for service by mail.

San Miguel & Compajia, Inc. v. International Harvester

Export Co., 98 F.R.D. 572 (D.P.R. 1983). There appears

to be no federal or Puerto Rico law specifically providing

for service by mail. Therefore, plaintiffs are obligated to

serve the non-resident corporate defendants by publica-

tion or personal service pursuant to P. R. Laws Ann. Tit.

32, App. III, R. 4.5. Dismissal of the complaint clearly

constitutes an overly harsh remedy when there are no

allegations of prejudice to the affected defendant. There-

fore, the Court ORDERS service by mail upon non-

resident corporate defendants to be QUASHED. The

plaintiffs are granted leave to serve the corporate parents

named in the amended complaint in a manner authorized

by the Puerto Rico Rules of Civil Procedure.

V. CLASS CERTIFICATION

The pl

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.