Opposition Brief — Puerto Rico Aqueduct & Sewer Authority v. Comite Pro Rescate de la Salud

2 Supreme Court, U.S,

d} ELLED

No. 89-1185 7

FES 2b 1990

In The JOSEPH Aci JR.

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 al.,

Respondents.

&

-

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The First Circuit

,

_

BRIEF IN OPPOSITION FOR RESPONDENTS

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ANTHONY Z. ROISMAN*

MICHAEL E. WitHEY

ANN C. YAHNER LEONARD W. SCHROETER

COHEN, MILSTEIN, SCHROETER, GOLDMARK

HausFe_p & Toi & BENDER

1401 New York Avenue, N.W. 540 Central Building

Suite 600 3rd & Columbia

Washington, D.C. 20005 Seattle, WA 98104

(202) 628-3500 (206) 622-8000

Pepro J. VARELA

613 Ponce de Leon

Hato Rey, Puerto Rico 00917

(809) 751-6351

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (600) 225-6964

OR CALL COLLECT (402) 342-2831

- —,

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QUESTIONS PRESENTED

Whether the Resource Conservation and Recovery

Act’s domestic sewage exclusion for “solid or dis-

solved material in domestic sewage,” 42 U.S.C.

§ 6903(27), applies only to “sanitary wastes” and,

thus, does not include sewage from industrial facili-

ties that contains a mixture of sanitary wastes (from

such employee facilities as factory restrooms) and

toxic wastes from industrial operations?

Whether the court of appeals was correct in relying

upon long-standing Environmental Protection

Agency regulations which allow mixed industrial and

sanitary wastes to qualify for the domestic sewage

exclusion only for purposes of the regulatory provi-

sions of the Resource Conservation and Recovery Act

and not for the remedial provisions of § 7003 of that

Act?

PARTIES TO THE PROCEEDING

Respondents accept petitioners’ list of the parties to

the proceeding below.

ill

TABLE OF CONTENTS —

Page

I re acc vssbuceevesceesvaves i

ee ee ee kG Sa a ols bo eee bw keh Re il

EE ee iv

er 1

aes Giaik as 6s pn Xo WA 6 HN we A le Wee r

J. THERE ARE NO CONSIDERATIONS WHICH

JUSTIFY GRANT OF THE PETITION ....... 7

Il. THE COURT OF APPEALS WAS CORRECT

IN DETERMINING THAT THE DOMESTIC

SEWAGE EXCLUSION DOES NOT PREVENT

APPLICATION OF SECTION 7003 OF THE

RESOURCE CONSERVATION AND RECOV-

ERY ACT TO INDUSTRIAL WASTE

RA A er 8

A. On Its Face, RCRA Does Not Support

Petitioners’ Contention That The Court

Oe eer 8

B. EPA’s Regulations Do Not Support Peti-

tioners’ Contention That The Court Of

a a rena 12

Il. THE COURT OF APPEALS WAS CORRECT

IN RELYING UPON THE EPA POSITION

ARTICULATED IN ITS AMICUS CURIAE

BRIEF BECAUSE IT IS LONG-STANDING

cae beavers ber swwenanas 15

CONCLUSION <a

iv

TABLE OF AUTHORITIES

Cases:

Bowen v. Georgetown University Hospital, 109 S.Ct.

acl pina ER ee ee eee Pe OO A aie

Buschmann v. Schweiker, 676 Fae 352 (9th Cir.

eg 2 Rrra ak Neate aA Man SA engi tn say Laan aca ie oped RMA ore

Federal Election Commission v. Democratic Senatorial

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

Investment Company Institute v. Camp, 401 U.S. 617

PERE ADK VE Cae Suet eee Leak Mewar ae Meera es

New England Patriots Football Club, Inc. v. Univer-

sity of Colorado, 592 F.2d 1196 (1st Cir. 1979)...

Northern Indiana Pub. Serv. Co. v. Isaac Walton

League of America, 423 U.S. 12 (1975)...........

Sony Corp. v. Universal Studios, 464 U.S. 417 (1984) ....

United States v. Waste Industries, Inc., 734 F.2d 159

(4th Cir. 1984)

STATUTES, REGULATIONS & RULES:

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

Opn. Ser; Bo Wis TOE oo esac a decane

nck: Win, Do AIGA PIE inns eee es es

Section 504; 33 U.S.C. § 1364

Page

er

ee

21

0 + hm

ee

TABLE OF AUTHORITIES - Continued

Page

Resource Conservation and Recovery Act, 42

LIGA. Se tee MG fo na eae nate eee 3

Section 1004(5), 42 U.S.C. § 6903(5) .............5.. 3

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

Section 3002, 42 USA. § GPs... 5. saecees ae

Section 3004, 42 USC. & G924 . .. 26.5 6c ecuet a 4; 3

Sectian 3005, 42 USL. & O3850 «oi ccc vvws ccd 2. 2

Section 3010, 42 USA. § G95. .......0c005: 2,° 14, 19

Section: 7002; 42 tht. 6 G72 oy. se oe eee ya

Section 7003, 42 US.C. § G87 22.5... see caess passim

Section 7006, 42 U.S.C. & GO7O48).... = 0. cence 15

Clean Air Act, 4 USC. G6 7401 Of 604......5 0 2ku ccs 2

40 CER. BBRR. TE oc 05 aicks scons heroes 5

OO PR. © TORTIE occ iic nn cect tienes tee eee ~ ee

OD CLF Ole hss he Cn a Soe ess eee 4, 6, 16

40 CER. © 204s oi ide ki eicincscks ones 12

40 CPR. & Dar AA). ns heen laksa 9

45 Fed. Reg. 33084 (May 19, 1980)........... 13, 14, 16

LEGISLATIVE MATERIALS:

H.R. Rep. No. 198, 98th Cong., Ist Sess. reprinted

in 1984 U.S.Code Cong. & Admin. News 5576.... 20

S. Rep. No. 284, 98th Cong., Ist Sess. (1984) ee a yg

Vi

TABLE OF AUTHORITIES —- Continued

Page

MISCELLANEOUS:

EPA, Guidance for Implementing RCRA Permit-

by-Rule Requirements at POTWs (July 21, 1987) .... 10

EPA, Report to Congress on the Discharge of

Hazardous Wastes to Publicly Owned Treat-

No. 89-1185

»

—_—

In The

Supreme Court of the United States

October Term, 1989

L

—

PUERTO RICO AQUEDUCT AND

SEWER AUTHORITY, et al.,

Petitioners,

COMITE PRO RESCATE DE LA SALUD, et al.,

Respondents.

$ —

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The First Circuit

»

~

BRIEF IN OPPOSITION FOR RESPONDENTS

»

-

STATEMENT OF THE CASE

Petitioners include ten private industries (“private

petitioners”) that discharge toxic wastes from buildings

built and owned by petitioner Puerto Rico Industrial

Development Company (“PRIDCO”). The wastes are dis-

charged into a sewer system operated by petitioner

Puerto Rico Aqueduct and Sewer Authority (“PRASA”).

[he industrial operations and the sewer system in ques-

tion are located in the Guanajibo Industrial Park near

tJ

Mayaguez, Puerto Rico (“Industrial Park”). The respon-

dents are a community group and present and past

workers at the Industrial Park who were severely injured

by exposure, at their places of work, to toxic gases which

escaped as a result of the discharges of toxic wastes by

the private petitioners to a defective sewer system. The

industries at the Industrial Park were the only users of

the sewer system in question here. No private residences

were connected to this sewer system.!

Respondents filed suit in the United States District

Court for the District of Puerto Rico seeking, inter alia, to

enjoin the threat to their health caused by petitioners

conduct and for imposition of civil penalties.2 This

injunction was sought pursuant to Sections 7002 and 7003

of the Resource Conservation and Recovery Act

' In December, 1987, the sewer system at the Industrial

Park was disconnected from the PRASA-operated sewage

treatment piant, which processed only the wastes from the

Industrial Park, and was connected to a sewer system which

led to another PRASA-operated sewage treatment plant which

processes wastes from many other sources, including residen

tial sources. This change does not affect respondents’ RCRA

claims arising before December, 1987.

2 In their action before the district court, respondents also

alleged violations of the Clean Water Act, 33 U.S.C. §§ 1251 et

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

permitting and other regulatory requirements of RCRA, 42

U.S.C. §§ 6922, 6924, 6925 and 6930. Respondents also sought

damages and other relief under the common law of Common-

wealth of Puerto Rico. Those claims are not at issue here.

Respondents’ common law claims, for which pendent jurisdic-

tion was sought, were dismissed only because of the district

court’s rejection of the RCRA claims and, upon reinstatement

of those claims, the pendent Claims would be revived.

WwW

(“RCRA”), 42 U.S.C. §§ 6972 and 6973, which allow pri-

vate citizens to sue to seek to abate an imminent and

substantial endangerment created by the handling or dis-

posal of solid or hazardous wastes.>

When Congress enacted RCRA, 42 U.S.C. §§ 6901 et

seq., it broadly defined “solid waste” to include:

any garbage, refuse, sludge from a waste

treatment plant, water supply treatment. plant,

or air pollution control facility and other dis-

carded material, including solid, liquid, semi-

solid, or contained gaseous material resulting

from industrial, commercial, mining, and agri-

cultural operations, and from community

activities,

42 USC. § 6903(27).4 Congress also specified certain

narrow exceptions to this broad definition. One of those

exceptions, known as the Domestic Sewage Exclusion

(“DSE”), excludes “solid or dissolved material in domes-

tic sewage” from the definition of “solid waste.” Id. This

case turns on the interpretation of that phrase.

> Section 7002 of RCRA, 42 U.S.C. § 6972, authorizes citi-

zens to bring suit to abate an imminent and substantial endan-

germent where suit could be brought by the Environmental

Protection Agency under section 7003 of RCRA, 42 U.S.C.

§ 6973, and based on the same legal standards. S. Rep. No. 284,

98th Cong., Ist Sess. (1984) at 56-57. The court of appeals

properly treated these sections as identical for all purposes

relevant to this case. Pet. App. I4a-15a. In this brief, respon-

dents refer to section 7003 only for simplicity of citation.

4 “Hazardous wastes” are a subset of “solid wastes.” 42

U.S.C. § 6903(5). If the substances disposed of by private

petitioners and of concern to respondents are solid wastes,

there is no controversy here that they are also hazardous

wastes.

The court of appeals reversed the district court’s

grant of petitioners’ motion for dismissal. Appendix A to

Petitioners’ Brief (“Pet. App.”). The court of appeals held

that the DSE, as set forth in RCRA, did not apply to a

mixture of industrial and sanitary wastes discharged by

industrial facilities to sewage treatment plants which

received only wastes from those industrial sources. It

further held that the Environmental Protection Agency

(“EPA”), using the broad discretionary authority granted

to it by Congress in RCRA, could choose to allow mix-

tures of sanitary and industrial wastes to qualify for the

DSE for purposes of exempting such facilities from the

regulatory provisions of RCRA, while refusing to ailow

such mixed wastes to be exempt from the section 7003

imminent and substantial endangerment provisions of

RCRA.

The court also found that the highly general terms of

the statute supported giving weight to the agency’s inter-

pretation of the terms of the statute. “[WJe interpret the

statute as reflecting a congressional intent to give EPA

considerable authority itself to interpret language like

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

precise scope of the exception.” Pet. App. at 11A.

The court specifically rejected the petitioners’ argu-

ment that 40 C.F.R. § 261.45, binds EPA and the court, in

> 40 C.F.R. § 261.4 states:

(a) Materials which are not solid wastes. The follow-

ing materials are not solid wastes for purposes of

this part: (1)(i) Domestic sewage; and (ii) Any mix-

ture of domestic sewage and other wastes that

(Continued on following, page)

interpreting all provisions of RCRA, to a definition of

“domestic sewage” that includes mixtures of industrial

and sanitary wastes where both originate from industrial

facilities. The court cited two reasons for rejecting peti-

tioners’ argument. First, the regulation explicitly does not

apply to section 7003, but applies only to Subtitle C, the

regulatory portion, of RCRA.® The court pointed out that

a distinction between Subtitle C definitions and those for

section 7003 made sense because of the distinctions

between those two portions of RCRA. /d. at 15a

Subtitle C contains highly detailed recordkeep-

ing, notification, and permit requirements; to

ease administmtive burdens, EPA may want to

include those factory pipes that contain only a

little sanitary waste, but exclude those that con-

tain 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

(Continued from previous page)

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.FR. § 261.1(b)(1) provides that the regulation

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)(2) further states that “la] 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.”

6

want to include even those factory pipes that

contain a relatively small proportion of indus-

trial wastes.

Id. The court found nothing incongruous with EPA defin-

ing the domestic sewage exclusion in different ways in

different contexts, particularly since Congress appears in

this case to have implicitly delegated to EPA the author-

ity to interpret the statute. /d. at 15a-16a.

In rejecting petitioners’ argument concerning 40

C.F.R. § 261.4, the court also relied upon EPA’s statement

that the “definition simply refers to the kind of residential

waste at issue.” Id. at 14a. The fact that nothing is said

about the source does not mean that it is irrelevant. /d.

In holding that mixtures of sanitary and industrial

wastes are not exempted under the DSE from the reme-

dial reach of Section 7003 of RCRA, the court of appeals

also agreed with respondents and amicus EPA that the

term “domestic sewage” should be read to mean sewage

that comes from residences. The court found ample sup-

port for this conclusion. First, the court looked to the

dictionary meaning of “domestic” which is “ ‘relating to

the household or the family . . . connected with the

supply, service and activities of households and private

” Pet. App. at 10a quoting Webster’s Third

International Dictionary 671 (1976).

residences.’

Second, the court looked to the language in the defi-

nition of “solid waste” and found that it referenced not

only the type of waste but its source. Pet. App. at 10a.

Therefore, looking to the context of the definition,

“domestic” would appear to refer to the source of the

waste.

N

Third, the court found that if one read the definition

as referring only to the type of waste, rather than its

source, then the Congressional purpose behind section

7093 of RCRA, to provide broad relief whenever an immi-

nent and substantial endangerment was created, would

become more difficult to achieve. Id. Since most indus-

tries have toilets for their workers, were the definition

read to refer solely to the type of waste, potentially large

amounts of waste might be exempted from the statute’s

scope, even though those wastes created an imminent

and substantia] endangerment. Id. at 10a-11a.

Fourth, the court read the legislative history of sec-

tion 7003 as supporting the argument that the provision

was to have a broad scope. Thus, “it would seem some-

what anomalous to interpret the exception broadly and

thus significantly narrow the statute’s broad reach.” Id. at

Ila.

The court of appeals reversed and remanded to the

district court.

&

a

ARGUMENT

I. THERE ARE NO CONSIDERATIONS WHICH JUS-

TIFY GRANT OF THE PETITION.

The decision of the First Circuit is correct and does

not conflict with the decision of any other federal court of

appeals on the same matter. Nor do the petitioners argue

that such a conflict exists.

The petition for certiorari provides no cogent justifica-

tion for issuance of a writ. The petition, therefore, should

be denied.

Il. THE COURT OF APPEALS WAS CORRECT IN

DETERMINING THAT THE DOMESTIC SEWAGE

EXCLUSION DOES NOT PREVENT APPLICA-

TION OF SECTION 7003 OF THE RESOURCE

CONSERVATION AND RECOVERY ACT TO

INDUSTRIAL WASTE STREAMS.

A. On Its Face, RCRA Does Not Support Peti-

tioners’ Contention That The Court Of Appeals

Erred.

Petitioners offer as the core of their argument the

proposition that the DSE is the boundary between regula-

tion of the conduct of generators and disposers of hazard-

ous wastes under the Clean Water Act and regulation of

such conduct under RCRA. However, the provision of

RCRA at issue in this case, Section 7003, is not the permit-

ting section. Section 7003, does “not regulate conduct but

regulates and mitigates endangerments.” United States v.

Waste Industries, Inc., 734 F.2d 159, 164 (4th Cir. 1984).

Thus, petitioners’ argument misses the mark.

Petitioners’ argument ignores the critical language of

the statute itself. Significantly, at no point in their brief do

petitioners attempt to demonstrate how the DSE, as

stated in the statute, applies to their mixture of industrial

and sanitary wastes. The RCRA definition of “solid

waste,” of which “hazardous waste” is a subset, 42 U.S.C.

~ § 6903(27), provides:

The term “solid waste” means any garbage,

refuse, sludge from a waste treatment plant,

water supply treatment plant, or air pollution

control facility and other discarded material,

including solid, liquid, semisolid, or contained

gaseous material resulting from industrial, com-

mercial, mining, and agricultural operations,

and from community activities, but does not

include solid or dissolved material in domestic sew-

age, or solid or dissolved materials in irrigation

return flows or industrial discharges 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. § 6903(27) (emphasis added).

This definition excludes from “solid waste” “solid or

dissolved material in domestic sewage.” It is clear on its

face that the exception as stated by Congress refers only

to domestic sewage. It does not refer to industrial dis-

charges. The court of appeals so held. Pet. App. at

10a-13a. Since 1980, when EPA promulgated the imple-

menting regulations of RCRA, EPA has defined domestic

sewage as “sanitary wastes,” 40 C.F.R. § 261.4(a)(1)(ii)

(1987), a definition which petitioners accept. Industrial

discharges such as those of petitioners are not “sanitary

wastes.” That they are not is clear from the fact that

industrial discharges are subject to a further separate

exception in the same statutory definition, which

excludes from RCRA coverage “industrial discharges

which are point sources subject to permits under section

1342 of Title 33... ,” that is, section 402 of the Clean

Water Act, 33 U.S.C. §§ 1251 et seq. 42 U.S.C. § 6903(27).”

7 Domestic wastes can also be subject to section 402 of the

Clean Water Act but, significantly, Congress did not include

(Continued on following page)

10

Petitioners ignore this central argument concerning

the language of the statute itself and focus instead on the

portion of the court of appeals opinion which equates

“domestic wastes” with its preferred dictionary defini-

tion, “household wastes.” Petitioners argue that because

other sections of RCRA and other environmental statutes

use the phrase “household wastes” and 42 U.S.C.

§ 6903(27) does not use that phrase, “domestic sewage”

must not be synonymous with “household wastes.”

(Continued from previous page)

them within the section 402 exception. Clearly, Congress

intended to exclude all domestic wastes from the definition of

“solid waste” but intended to exclude industrial wastes only

under certain limited exceptions. If, as petitioners argue,

domestic wastes include industrial wastes, then there would

have been no need to include the section 402 exception.

® Petitioners also claim that EPA announced for the first

time in its amicus brief that it believed that “domestic” wastes

meant only “household” wastes. In fact, several years ago, EPA

promulgated and issued Guidance For Implementing RCRA Per

mit-By-Rule Requirements At POTWs (July 21, 1987) in which it

concluded that:

Industrial waste which mixes with sanitary

waste from on-site sanitary facilities for the

employees does not necessarily fall under the

domestic sewage exemption. In order to qualify for

the domestic sewage exemption, the industrial waste

must also mix in the municipal sewer system with

untreated sanitary wastes from non-industrial

sources.

Id. at 6. Although this guidance document is not a regulation,

as its preamble indicates, it does nonetheless represent an EPA

interpretation of its own regulations which substantially pre-

dates the filing of its amicus brief here. Contrary to petitioners’

(Continued on following page)

11

Whether domestic sewage includes both sanitary wastes

from households and sanitary wastes from industrial

operations is not controlling here because the wastes of

concern in this case are the industrial wastes which were

also discharged from the private petitioners’ facilities.

The unassailed and unassailable fact is that, on its face,

the statutory definition of the DSE only excludes sanitary

and not industrial wastes or mixtures of industrial and

sanitary wastes from the definition of solid waste.

Respondents here are complaining about the industrial

wastes discharged into the sewer system and not the

sanitary wastes.

Petitioners argue that the reason the DSE exists is

because the Clean Water Act already regulates “solid and

dissolved material in domestic sewage” by providing for

pretreatment of all wastes discharged to sewer lines. Peti-

tioners make a fatal error in this argument because the

(Continued from previous page)

assertion, the document was “published” in that it was avail-

able to the general public and was distributed to all EPA

regional offices and state personnel.

Such interpretations by an agency of its own regulations

are entitled to substantial deference by reviewing courts. See

Northern Indiana Pub. Serv. Co. v. Isaac Walton League of America,

423 U.S. 12, 15 (1975) (per curiam); Buschmann v. Schweiker, 676

F.2d 352, 355 (9th Cir. 1982).

In its amicus brief EPA also cited several additional regula-

tions and pre-existing agency policies in which EPA had

treated sanitary wastes from industrial sources differently than

sanitary wastes from households. Brief for United States As

Amicus Curiae at 20-22. These additional regulatory positions

give added weight to the EPA’s administrative interpretation of

the DSE contained in the above-noted guidance document.

12

pretreatment provisions of the Clean Water Act only

apply if wastes are being discharged to a publicly owned

treatment works (“POTW’”). 33 U.S.C. § 1317(b). There is

no requirement in the statutory DSE that the wastes be

discharged to a POTW. Thus, if the DSE is read to include

industrial wastes, it would exclude from RCRA both pre-

treated and non-pretreated industrial wastes. Such a mas-

sive loophole was never intended by Congress and

petitioners could not and do not urge its existence.

The statutory language alone, therefore, cannot sup-

port petitioners’ conclusion that the court of appeals

erred in concluding that the discharges of hazardous

waste at issue here are not covered under section 7003.

B. EPA’s Regulations Do Not Support Petitioners’

Contention That The Court Of Appeals Erred.

Petitioners attempt to escape the clarity of the statu-

tory languaze by relying on a regulation promulgated by

EPA in 1980 and consistently applied by EPA since that

time. The regulatory provision, found in 40 C.FR.

S 261.4(a)(1) (1987), defines “solid wastes” to exclude

domestic sewage and “any mixture of domestic sewage

and other wastes that passes through a sewer system to a

publicly-owned treatment works for treatment.” It is this

regulatory language, and only this language, which could

provide a basis for the exclusion of a mixture of domestic

and industrial wastes from the definition of solid waste in

RCRA.? However, this mixed waste extension of the DSE,

* In the expianation accompanying these regulations, EPA

makes clear that the “other wastes” which must mix with

Pa (Continued on following page)

13

and the regulatory definition of “solid waste” of which it

is a part, explicitly do not apply to Section 7003.

This mixed waste extension of the DSE upon which

petitioners have relied appears in 40 C.ER. Part 261. Part

261, however, includes the following statement in the

“Purpose and scope” section:

This part identifies only some of the mate-

rials which are solid wastes and hazardous

wastes under sections 3007, 3013, and 7003 of

RCRA. 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 and a hazardous waste for purposes

of these sections if:

+ * *

(ii) In the case of section 7003, the statu-

tory elements are established.

40 C.ER. § 261.1(b)(2) (1987).

(Continued from previous page)

domestic sewage to qualify for the DSE include discharges from

industrial facilities. EPA Regulations, Hazardous Waste Manage-

ment System, Identification and Listing of Hazardous Waste, 45

Fed. Reg. 33084, 33097 (May 19, 1980) (“Regulations”). Of course, if

such discharges were already covered by the statutory DSE, there

would have been no need for EPA to provide this expanded

definition or to go to such lengths to justify the extension of the

DSE to mixed waste streams. EPA was obviously aware of the fact,

cited by petitioners, that industrial dischargers always include

some non-industrial wastes from their plant bathrooms in their

sewer discharges. Nonetheless, EPA felt compelled to write a

specific regulation to cover discharges from industrial operations

which mix with domestic wastes in a sewer system, obviously

referring to wastes coming from places other than the industrial

facilities themselves.

14

When it adopted this language, EPA made clear its

intent, based upon its analysis of Congress’ intent, that

section 7003 operate unrestricted by the regulatory limita-

tions on the definition of hazardous and solid wastes

contained in Part 261.

Second, although this regulation limits what

may be regulated as a “hazardous waste” under

Sections 3002 through 3005 and 3010 of

RCRA,[?°] it does not limit those materials which

may be considered “hazardous wastes” under

other sections of the statute, particularly Section

3007 (which authorizes EPA to obtain informa-

tion on “hazardous waste” in order to develop

regulations or enforce RCRA) and Section 7003

(which authorizes the Agency to institute civil

actions to abate imminent and substantial haz-

ards caused by “hazardous wastes”). Unlike

Sections 3002 through 3004 and Section 3010,

Congress did not confine the operations of Sec-

tions 3007 and 7003 to “hazardous wastes identi-

fied or listed under this subtitle’ (emphasis

added). To avoid future confusion on this point,

EPA has stated it explicitly in § 261.1(b).

Regulations, 45 Fed. Reg. 33084, 33090 (May 19, 1980)

(first emphasis added; second emphasis in original). The

court of appeals specifically cited this portion of the

regulations in rejecting petitioners’ arguments. Pet. App.

at 1da-15a."!

1 Sections 3002-3005 and section 3010 of RCRA, 42 U.S.C.

S§ 6922-25 and 6930, refer to permitting and notification

requirements under RCRA.

' Petitioners argue that the First Circuit inappropriately

allowed the EPA’s long-standing mixed waste extension of the

DSE to draw a distinction between the DSE as it applies to

(Continued on following page)

15

In short, the industrial wastes discharged to the

sewer system in the Industrial Park are solid and hazard-

ous wastes for purposes of section 7003 if they meet the

statutory definitions of solid and hazardous wastes. The

industrial discharges are not subject to any regulatory

extension of the DSE. Since the definition of solid waste

contained in RCRA includes “solid, liquid, semisolid, or

contained gaseous material resulting from indus-

trial... operations,” only excluding industrial discharges

if they are regulated point sources under the Clean Water

Act, and since petitioners’ discharges meet this definition

of “solid wastes,” section 7003 is applicable to those

discharges. 4

Ill. THE COURT OF APPEALS WAS CORRECT IN

RELYING UPON THE EPA POSITION ARTICU-

LATED IN ITS AMICUS CURIAE BRIEF BECAUSE

IT IS LONG-STANDING AGENCY POLICY.

Petitioners argue that EPA announced for the first

time in its amicus brief below its position on the definition

of the DSE and its applicability to section 7003. Brief of

Petitioners at 29 n.28. Petitioners assert that it is inap-

propriate for the court to rely on such allegedly newly-

articulated views as agency policy. However, the long-

standing regulatory history of the mixed waste extension

(Continued from previous page)

wastes subject to regulation under 42 U.S.C. §§ 6922-6925, 6930

(the regulatory provisions) and wastes subject to the remedial

authority of 42 U.S.C. § 6973. If petitioners thought that dis-

tinction was untenable, the time to challenge it was in 1980,

when the regulation was promulgated. RCRA specifically for-

bids challenging the validity of a regulation in an action, such

as this one, to enforce the provisions of the act against regu-

~

lated companies. 42 U.S.C. § 6976(a).

16

of the DSE, 40 C.F.R. § 261.4 (1987), confirms that it was

intended to apply only to the regulatory provisions of

Subtitle C of RCRA and not to section 7003.

In enacting the mixed waste stream extension of the

DSE in 1980, EPA focused on the fact that industrial

wastes that enter the sewer system and then mix with

domestic wastes will qualify for the DSE only if they are

regulated under the Clean Water Act through its regula-

tion of sewage treatment plant operations and through its

imposition of pretreatment requirements on POTWS. Reg-

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

lation under the Clean Water Act provided EPA with the

confidence that the wastes would “be properly treated”

and that the “administrative clarity [created by not seek-

ing te use RCRA to regulate industrial waste streams

before they mix with domestic wastes] in this otherwise

complicated regulatory program warrants such an

approach.” Id.

This articulation of EPA policy occurred ten years

ago and EPA has never deviated from it. The concern

about administrative clarity and desire to draw a clear

line between the Clean Water Act and RCRA only makes

sense in the context of, and was only intended to cover,

the regulatory provisions of RCRA contained in Subtitle

C and not the remedial provisions of section 7003 con-

tained in Subtitle G of RCRA. Section 7003 applies only

after the discharge has occurred and only if an imminent

and substantial endangerment is created.!? It is for this

12 In order to ensure that, regardless of compliance with

any other provision of RCRA, no hazardous wastes would

(Continued on following page)

reason that Section 7003 is viewed as remedial and not

regulatory. As the Fourth Circuit has stated: “section 7003

appears in subtitle G, and it is designed to deal with

situations in which the regulatory schemes break down or

have been circumvented.” United States v. Waste Indus-

tries, Inc., 734 F.2d at 164. It is also for this reason that the

policy favoring a mixed waste extension of the DSE is

inapplicable to section 7003. It is only when the regula-

tory reach of the Clean Water Act that justified the mixed

waste extension has failed to protect the public health

and safety by failing to “properly” treat the wastes that

Section 7003 applies or weuld be needed.

(Continued from previous page)

endanger human health or the environment, Congress enacted

section 7003 of RCRA, 42 U.S.C. § 6973, which provides that

“[nlotwithstanding any other provision” of RCRA in any situa-

tion where the handling, treatment, storage, or disposal of

hazardous wastes might create an “imminent and substantial

endangerment to health or the environment,” action can be

taken to abate the endangerment. This provision has been

found by courts to be “a broadly applicable section dealing

with the concerns addressed by the statute as a whole,” United

States v. Waste Industries, Inc., 734 F.2d 159, 164 (4th Cir. 1984),

and one which “does not regulate conduct but regulates and

mitigates endangerments.” Id. Congress has declared that the

“primary intent of the provision [section 7003] is to protect

human health and the environment.” S.Rep.No. 284, 98th

Cong., Ist Sess. at 59 (Oct. 28, 1984).

'S Petitioners’ anxiety about the implications of confirm-

ing that section 7003 of RCRA can apply to discharges to sewer

systems is unwarranted. Because this section is designed to

address conditions created by discharges of hazardous wastes,

(Continued on following page)

18

Further confirmation of the long-standing EPA posi-

tion that the provisions of sections 7003 are available to

address problems created even where the DSE applies is

found in the report issued by EPA in response to the

Congressional direction to EPA to study the effect of the

DSE and recommend any legislative changes it believed

were required. Report to Congress on the Discharge of

Hazardous Wastes to Publicly Owned Treatment Works

(The Domestic Sewage Study), February 1986. This EPA

report generally supported the continued use of the DSE,

although it noted that discharges of hazardous wastes to

sewer systems could and had produced releases of toxic

gases which could be harmful to the public. Domestic

Sewage Study at 1-11, 4-8, 4-9. One significant basis for

EPA’s willingness to continue the DSE, while studying

(Continued from previous page)

“notwithstanding” compliance with all regulatory provisions,

Congress has already decreed that those who generate or dis-

pose of hazardous wastes may be liable if the consequence of

their lawful conduct is to endanger human lives. Petitioners

are no more at risk than any other hazardous waste generator

or disposer. Congress has properly concluded that the human

health risk is more important to abate than the convenience of

those causing that risk. In addition, petitioners argue that their

discharges are subject to the Clean Water Act imminent and

substantial endangerment provision which, if a correct inter-

pretation of the Clean Water Act, would mean that petitioners

would be subjected to the same inconvenience of being forced

to abate an imminent and substantial endangerment even

though they were in full compliance with all regulatory

requirements. The imminent and substantial endangerment

provisions of the Clean Water Act and RCRA provide identical

remedies. Section 504 of the Clean Water Act, 33 U.S.C. § 1364,

and Section 7003 of RCRA, 42 U.S.C § 6973.

19

the problem further, was a determination that, without

statutory changes, existing controls provided a mecha-

nism to address the problems caused by a release of toxic

gases from a sewer system. Domestic Sewage Study, E-5

to E-6. In particular, the report concluded that section

7003 of RCRA was available to address problems created

by the release of toxic gases from a sewer system where

the DSE applies:

In addition, in appropriate cases, the Agency

may address air emission problems using § 7003

lof RCRA] where those problems may present

an imminent and substantial endangerment of

human heaith or the environment.

Domestic Sewage Study, at 6-46.'4

In this context, it was entirely appropriate for the

court of appeals to rely upon the amicus brief of the EPA.

The purpose of amicus briefs is to provide courts with aid

in analyzing legal questions. Sony Corp. v. Universal Stu-

dios, 464 U.S. 417, 434 n.16 (1984). Rather than being

partisan, amicus briefs are intended to provide the court

with information on matters of law abou. which there

couid be doubt or mistake. New England Patriots Football

4 Petitioners cite the Domestic Sewage Study to support

the proposition that EPA did not believe there was any reason

to change the DSE in 1986. From this correct summary of the

findings of the study, petitioners then leap to the conclusion

that therefore the decision of the court of appeals is erroneous

because, they assert, it effected a change in the DSE. As the

previous discussion demonstrates, the DSE does not and never

has been intended to prevent the application of section 7003 to

mixed industrial and sanitary wastes. Petitioners’ assertion

that such a determination represents a change in the DSE

ignores the regulatory history of the DSE and is baseless.

20

Club, Inc. v. University of Colorado, 592 F.2d 1196, 1198 n.3

(Ist Cir. 1979). As the court of appeals in this case pointed

out, Pet. App. at 17a, that is precisely the role which

Congress explicitly anticipated for the EPA in the context

of citizen suits:

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.

Whether agency interpretations are logically consis-

tent with statutory language is one factor in determining

whether weight should be given to agency interpreta-

tions. Federal Election Commission v. Democratic Senatorial

Campaign Committee, 454 U.S. 27, 41 (1981). As shown

above, the amicus position is not inconsistent with either

prior agency positions or the statute.

Petitioners also argue that an agency position that

involves advocacy and nothing more is not entitled to

deference when courts are construing a statute. Peti-

tioners rely upon Bowen v. Georgetown University Hospital,

109 S. Ct. 468 (1988), for the proposition that the court

will not rely on the litigating position of agency counsel,

where the agency has not previously articulated an

administrative position on the questions at issue. 109

S.Ct. at 473. The circumstances in Bowen, however, are

significantly different than those in this case. In the first

place, EPA is not attempting here a “post hoc” rationali-

zation of its own actions. Second, EPA is not in the

21

position of defending a challenge to its own actions.

Further, the present interpretation offered in its amicus

brief is not contrary to prior EPA positions. There appears

here to be no conflict with Congressional intent as was

found in Bowen. Finally, unlike in Bowen, the position

offered by EPA is a reasoned and consistent interpreta-

tion of the DSE and section 7003. The Bowen rationale,

therefore, does not apply.

Similarly, Investment Company Institute v. Camp, 401

U.S. 617 (1971), also cited by petitioners, is inapposite. In

that case, the Comptroller of the Currency had neither

expressed a position nor provided any rationale for the

questioned regulation until the regulation was chal-

lenged. The Court found the Comptroller’s arguments in

the litigation to be “post hoc rationalizations” which

could not substitute for reasoned justifications offered in

the course of adopting a regulation. The Court concluded

that the regulation was invalid and a violation of the

banking laws. There is here no issue of whether an EPA

regulation is invalid or violative of the environmental

laws. EPA is not in the position of offering “post hoc

rationalizations” for its actions.

Since EPA’s position is consistent both with its prior

positions and with RCRA, the court of appeals was justi-

fied in giving the amicus brief deference.

,’

7

22

CONCLUSION

For the reasons stated above, the petition for writ of

certiorari should be denied.

Respectfully submitted,

ANTHONY Z. ROISMAN*

ANN C. YAHNER

COHEN, MILSTEIN, HAUSFELD

& Tour

1401 New York Avenue, NW

Suite 600

Washington, DC 20005

MicHaet E. Witney

LEONARD W. SCHROETER

SCHROETER, GOLDMARK

& BENDER

540 Central Building

3rd & Columbia

Seattle, WA 98104

~ Pepro J. VARELA

Pepro J. VARELA

613 Ponce de Leon

Hato Rey, Puerto Rico 00917

*Counsel of Record

February 21, 1990

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