# Petition for Writ of Certiorari — Puerto Rico Aqueduct & Sewer Authority v. Comite Pro Rescate de la Salud > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0982%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 494 U.S. 1029 ## Text 89-1185": fate 25 ae Rik i 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 } D, —— 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) il 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- iv 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. v 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 * - 6 eS ; ae ~~ i ’ -_= - 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. $$ 551 et seq.: oo Ea. oe Fen eee ree 27 Federal Insecticide, Fumgicide and Rodenticide Act, 7 U.S.C. $§ 186 et seq.: Section 10, 7 UGC. § 1060 q.....:.ccccsisscnn. 17 n.17 Fed. R. Civ. P. 54(b) ix TABLE OF AUTHORITIES—Continued Page Swine Health Protection Act, 7 U.S.C. §§$ 3801 et seq.: Section $8, 7 U.S.C. § 3802 (2) .................... uu. 17n.17 Hazardous Substances Act, 15 U.S.C. §§ 1261 et seq.: Section $, 15 U.S.C. § 1262 (b)................0.000000000.. 17 n.17 a ee cba Aare cites inedsacchdelvickcestnsododited 2 Clean Water Act, 33 U.S.C. §§ 1251 et seq.: Section 201, 33 U.S.C. § 1281 ........00000...00000.......17 0.18 Section 204, 38 U.S.C. § 1284 .....00... 17n.18 Section 307, 338 U.S.C. § 1317 .............................. 4,13 Section $19, 38 U.S.C. § 1898 .............................. 15 Section 402, 33 U.S.C. § 1842 0000000... Rome eas 15 Section 604, 33 U.S.C. § 1964............................... 20 Section 505, 33 U.S.C. § 1865 _...... SERRE AN EETS PREY 21 n.21 Energy Policy and Conservation Act, 42 U.S.C. $$ 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 x 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 xi 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, v. 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. 2 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 3 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). 4 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. - oO 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 6 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 7 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). 8 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). EE 9 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. 10 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. 1] 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). 12 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- 15 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 —— 15 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 16 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). 17 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’), 18 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, 19 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). 20 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- 21 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. 22 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. EE 23 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 24 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). a i 3 ‘ 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. 26 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. 27 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 28 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. SE ; , : | : : 29 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. 30 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 la 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, V. 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. 2a 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 8a 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. 4a 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 5a 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 6a 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. Ta 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- 8a 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 9a 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, V. 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, We 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0982%3A1. Public record. Not legal advice.