Petition for Writ of Certiorari — Mallinckrodt, Inc. v. Maine People's Alliance (No. 06-1540)
Supreme Court brief2007
Ask Donna
What actually matters in this document.
Text
No. 06-°°
ae ir)
IN THE
Supreme Court of the United States
MALLINCKRODT INC.
Petitioner.
ai
MAINE PEOPLE’S ALLIANCE AND NATURAL RESOURCES
DEFENSE COUNCIL, INC.
Respondents.
Petition for a Writ of Certiorari
to the United States Court of Appeals
for the First Circuit
PETITION FOR WRIT OF CERTIORARI
J. ANDREW SCHLICKMAN CARTER G. PHILLIPS*
JOHN M. HEYDE JOSEPH R. GUERRA
SIDLEY AUSTIN LLP NoRINA |. EDELMAN
One South Dearborn SIDLEY AUSTIN LLP
Chicago, IL 60603 1501 K Street. N.W.
(312) 853-7000 Washington, D.C. 20005
(202) 736-8000
Counsel for Petitioner
May 16. 2007 * Counsel of Record
——— ee
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002
QUESTIONS PRESENTED
1. Whether a mere non-imaginary risk that someone or
something may be exposed to harm in the future can confer
Article III standing when no federal or state agency has
deemed the risk unacceptable and where a multi-year, multi-
million dollar study must be conducted to determine whether
prior releases of a hazardous substance are “posing an
unacceptable risk to human health.”
2. Whether the Resource Conservation Recovery Act’s
(RCRA) citizen suit provision, which authorizes suit only
where a hazardous waste “may present an imminent and
substantial endangerment to the health or the environment,”
authorizes a finding of liability and imposition of judicial
relief based merely on a showing that such waste gives rise to
a non-imaginary risk that someone or something may be
exposed to harm.
li
PARTIES TO THE PROCEEDINGS
In addition to the parties named in the caption, HoltraChem
Manufacturing Company, L.L.C. was initially a defendant in
this action. HoltraChem dissolved as a corporate entity in
March 2001, and has not participated in this litigation since
that time.
Petitioner Mallinckrodt LLC is a wholly-owned subsidiary
of its parent, United States Surgical Corporation (“USSC”).
USSC is not publicly held, but its ultimate parent, Tyco
International Ltd., is publicly held.
TABLE OF CONTENTS
QUESTIONS PRESENTED..............cssccesssseseereeeeceeseeeee
PARTIES TO THE PROCEEDINGGB............0.-:cscsseseeseeees
TABLE OF AUTHORITIEG. ...............sccccsssseorserssceescseoes
CI I sc siusicassesanipcasnbaniiohen
JURISDICTION scscccessccsscsrssnssresccosasscsennsosnqnsonsnonsneonasonnes
CONSTITUTIONAL AND STATUTORY PROVIS-
PETE TN VOLVED vn cvcssescncenosonssonsennsensncnnsnonsanenasonsncsnene
STATEMENT OF THE CASE...............:.scccsecsssessseeseeees
A. The Underlying Dispute ...................:csssesseseeees
B. Proceedings And Rulings Below..................:+++
REASONS FOR GRANTING THE PETITION...........:.
I. WHETHER AND THE EXTENT TO WHICH
Il.
THE THREAT OF FUTURE HARM CAN GIVE
RISE TO STANDING IN THE ABSENCE OF
ANY INDEPENDENT AGENCY ACTION IS A
RECURRING AND VITAL QUESTION OF
CONSTITUTIONAL LAW. ..............ccccseeesersersceeres
THE PROPER INTERPRETATION OF THE
CITIZEN-SUIT PROVISION OF THE RE-
SOURCE CONSERVATION AND RECOVERY
ACT IS AN IMPORTANT QUESTION OF
FEDERAL LAW ......0-....eccsscssscoserccseresecevevessnesosenss
A. The Lower Court’s Interpretation Is Inconsis-
tent With The Statute’s Allocation Of Policy-
Making And Enforcement Authority..................
(i11)
Page
iV
TABLE OF CONTENTS—continued
B. The Decision Below Misconstrues RCRA And
Violates Fundamental Rules Of Statutory
I itis acpertisstcinictbccteteensccncncien
1. The First Circuit Failed To Give Meaning
To RCRA’s Hierarchy Of Risks And
I a icsisiasiscvsisiensiniatiiendcehaieditiovaniiccbibinishs
2. The First Circuit’s Interpretation Renders
§ 7002(a)’s Bifurcation Of Citizen Suits
RE ACERT I eT
3. The Lower Court’s Interpretation Fails To
Give The Same Words In Different Parts Of
RCRA The Same Meaning .....................c0e00
C. The Lower Court’s Error Is An Issue Of
Significant National Importance Because It
Will Have A Significant Adverse Effect On
Industrial Development And Will Interfere
With Agency Enforcement Decisions.................
aga ikaih ceinatsinnicrsacsssteshsisabteldsbubiiesideesehucsiehaiaacint
Vv
TABLE OF AUTHORTIES
CASES Page
Chevron U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984)... 15, 25
Chicago & S. Air Lines v. Waterman S.S. Corp.,
PRES Te 8 5. Maneneon tenets ete eve seseas meron e CVTOn 15
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)... 21
Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d
USEF ey Te stein sinevcosesnsitnnseasesiasipeatuisanete 11
Environmental Def. Fund v. EPA, 598 F.2d 62
CR a casks ceicnstsiniecssgspintolaciseteasieess 11
Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976)... 21
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167 (2000)............00 12, 13, 14
Friends of the Earth, Inc. v. Gaston Copper
Recycling Corp., 204 F.3d 149 (4th Cir. 2000)... 12
FTC v. Mandel Bros., Inc.., 359 U.S. 385 (1959)... 19
FTC v. Standard Oil Co., 449 U.S. 232 (1980) ...... 25
Gregory v. Ashcroft, 501 U.S. 452 (1991).............. 19
Gustafson v. Alloyd Co., 513 U.S. 561 (1995)...... 19, 21
Holmes v. Securities Investor Prot. Corp., 503
Fe A Ce ices cacvaciceictivanrsesmaicnyshaspireenishenasang’ 21
Industrial Union Dep’t v. American Petroleum
Pree A a OT CTS) vac icivnscnicecstatnsasesvennecy 11,24
International Paper Co. v. Ouellette, 479 U.S.
BE CIE iasiiiiccivsechiestdssiincecdigetinasacbtnnsnsnpnkiinirs 23
Japan Whaling Ass’n v. American Cetacean
Soe y, BIBI B. 221 GIG GB) on oicascesnnce sn csecstntrstvessns 21
Jarecki v. G.D. Searle & Co., 367 U.S. 303
ip, | RRR ie On ERNE ONC AMPLE EONS PER 20
King v. St. Vincent’s Hospital, 502 U.S. 215
CRIED is discs cetnstiseienacenscinsbiuctiiasineniaiaaianipapianign 19
Lujan v. Defenders of Wildlife, 504 U.S. 555
Oise sacistincessivesinansbiiinccotamecevasbanbpaibiabininbieaii 9
vi
TABLE OF AUTHORTIES—continued
Page
Meghrig v. KFC W., Inc., 516 U.S. 479 (1996)....... 3, 16
National Lime Ass’n v. EPA, 627 F.2d 416 (D.C.
Ee IE 2 ais ss cxtdsncscscsicheh sbcess slate chbiarhaniecdhascouneabinnodle 11
O’Melveny & Myers v. FDIC, 512 U.S. 79
EN ciaicastaclicaidavisncouasdexoeorihasaciiuninentshelnaonscveniinss 15
Reserve Mining Co. v. EPA, 514 F.2d 492 (8th
Rim Mr Fed cissiiaiiastochaniicsats eievidesiaolentebeliges teveeabenstnees 21
Sierra Club v. Morton, 405 U.S. 727 (1972) ........ 13, 14
Steel Co. v. Citizens for a Better Env't, 523 U.S.
eI ickssiccnishiieiminhatndhddehliosaiivansasanssionsksbinasaie 12
Texas Indep. Producers & Royalty Owners Ass’n
v. EPA, 410 F.3d 964 (7th Cir. 2005).................. 14
Texas Indus., Inc. v. Radcliff Materials, Inc., 451
Fai A AE Pickcis dein gioeseuticdbinisicicsvnscatnlavyerscanwmins 15
STATUTES AND CONSTITUTION
Stee Se Is Os MEE. poiincinscsnsniccsennsisncannssbenadiossinses 1
Ie Sane as ihehiti da edonciiesannticswiiatedinsenainoni 17
eI isis disliasisaiendesieancanincnbonasniedalaites 17
ihe as nce casentcinion anda 17
Se Sa Sicha dcebibdiiedediniiilecnicnschiniitnsedeondlatics 17
IU iii a Oia spci klik caiahcehcpiababanbaebtink 4,22
SN isis asiuninsisesinischanitivnkaiosshdiiagieis cae 18
NID iki disanihccadiconiesncnnasntiniiele 18
IIE ehiicnsdickssanctnctninasineciionians 1,5, 17, 20
SU alii ince dnseencics stun tianensniacanabuasaions 2,18
LEGISLATIVE HISTORY
S. Rep. No. 94-988 (1976) .....csccscccsssecscscssescsssseseeen 21
Vii
TABLE OF AUTHORTIES—continued
SCHOLARLY AUTHORITIES
Joseph F. Brodley, Antitrust Standing in Private
Merger Cases: Reconciling Private Incentives
and Public Enforcement Goals, 94 Mich. L.
WW: F FIDE, BG iasccakcs iricscesinecsiotenapreiaconeonssiivice
Frank B. Cross, Rethinking Gusenia Citizen
Suits, 8 Temp. Envtl. L. & Tech. J. 55 (1989).....
William N. Eskridge, Jr. & Philip P. Frickey,
Forward: Law as Equilibrium, 108 Harv. L.
REV, 26 (1994) ...-.cocssecconseorsrrernreesessonsonassereessorosors
1A Norman J. Singer, Sutherland Statutes and
Statutory Construction (2006) .........ssecceresecereeees
Page
PETITION FOR CERTIORARI
Petitioner Mallinckrodt LLC respectfully seeks a writ of
certiorari to the United States Court of Appeals for the First
Circuit in this case.
OPINIONS BELOW
The opinion of the First Circuit (Pet. App. la-36a) was
entered on December 22, 2006, and 1s reported at 471 F.3d
277 (ist Cir. 2006). The order denying the Petition for Panel
Rehearing and Rehearing en Banc (Pet. App. 70a-71la) was
entered on January 16, 2007, and is unreported. The opinion
of the United States District Court for the District of Maine
(Pet. App. 40a-69a) was entered on July 29, 2002, and is
reported at 211 F. Supp. 2d 237 (D. Me. 2002). The district
court’s orders entered August 10, 2005 (Pet. App. 37a-38a)
and July 29, 2005 (Pet. App. 39a) are unreported.
JURISDICTION
The First Circuit entered its judgment in this case on
December 22, 2006, and denied the Petition for Rehearing en
Banc on January 16, 2007. On April 10, 2007, Justice Souter
granted petitioner’s timely application and extended the time
for filing the petition to and including May 16, 2007. The
jurisdiction of this Court is invoked pursuant to 28 U.S.C.
§ 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
Article fit, Section 2 of the United States Constitution
provices that “The judicial Power shall extend to all Cases...
{and} Controversies.”
Section 6972(a)(1)(B) of Title 42 of the United States Code
provides, in part, that a person may commence a civil suit
2
against any person . . . including any past or present
generator, past or present transporter, or past or present
Owner or operator of a treatment, storage, or disposal
facility, who has contributed or who is contributing 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 environment.
This and other relevant laws, including 42 U.S.C. § 6973 are
reproduced in Pet. App. 72a-78a.
STATEMENT OF THE CASE
This case raises important questions about the scope of
federal judicial power and the role of private citizens to
enforce federal environmental laws. The court of appeals
concluded that federal courts have the authority—under both
Article II of the Constitution and the Resource Conservation
Recovery Act (“RCRA”)—to compel a party to undertake a
multi-year, multi-million dollar study to ascertain the very
facts necessary to determine whether plaintiffs are suffering a
cognizable injury and whether mercury release “may present
an imminent and substantial endangerment.” These
extraordinary holdings impermissibly broaden federal judicial
power and afford private citizens an enforcement authority
under RCRA that is co-equal with that of the executive
branch. Unless corrected, the First Circuit’s decision will
fundamentally alter Congress’s allocation of policy-making
authority, permitting citizens freely to second-guess EPA’s
policy and enforcement choices. Ultimately, these errors will
intrude upon the autonomy of the executive branch and will
injure the Nation’s economy.
The First Circuit held that plaintiffs established Article III
standing because previously discharged chemicals gave rise
to a non-fanciful fear of future injury. The court below found
that a sufficient injury had been established even though
3
respondents could not show that petitioner’s discharges of
hazardous wastes exceeded any governmental safety
standards; federal and state environmental officials believed
that site-specific remedial efforts were sufficient to protect the
public health; and the district court did not determine that the
discharges were causing any downstream harms or that a
downriver cleanup was necessary or feasible. This holding
incorrectly resolves a pressing issue of national importance;
namely, whether the Constitution recognizes an increased
probability of risk as a cognizable injury where no politically
accountable body has deemed that level of risk unacceptable.
In addition, the First Circuit’s flawed interpretation of the
liability standard of one of RCRA’s citizen suit provisions
permits citizens to sue for injunctive relief whenever they
deem the actions of the Environmental Protection Agency or
state regulators inadequate. As this Court has recognized,
Congress assigned “[c]hief responsibility for the implemen-
tation of RCRA [to EPA],” Meghrig v. KFC W., Inc., 516
U.S. 479, 483-84 (1996). In doing so, Congress authorized
EPA to make scientific policy judgments about when solid or
hazardous wastes pose unacceptable risks, and prescribed
different standards for citizen suits depending on whether
citizens sought to enforce an EPA policy judgment or to sue
in the absence of such a judgment. In addition, Congress
prescribed a clear hierarchy of environmental risks, and
assigned EPA different remedial powers for each type.
The decision below makes a hash of this careful scheme.
The lower court’s lenient interpretation of the standard
renders RCRA’s bifurcation of citizen suits pointless, as it
effectively permits citizens to sue to enjoin all msks EPA
deems unacceptable, and any other non-imaginary risks.
Moreover, the court’s interpretation of “imminent and
substantial endangerment” likewise gives no independent
meaning to Congress’s specification of three different—and
clearly hierarchical—risk standards, treating them instead as
inadvertent synonyms.
4
Most importantly, the lower court’s reading undermines
EPA’s primacy in policy-making and enforcement. Under the
lower court’s lenient interpretation, private citizens can serve
as unelected roving policy-makers, free to second guess the
judgments of EPA and state environmental agencies.
Because the proper interpretation of RCRA’s citizen-suit
provision determines whether responsibility for preventing
environmental risks rests primarily with the executive branch
or is shared equally by private citizens, it is a critically
important issue to every entity subject to RCRA.
A. The Underlying Dispute.
From 1967 to 1982, Mallinckrodt owned and operated a
chlor-alkali plant (“the Facility”) that operated along the
banks of the Penobscot River in Orrington, Maine. Pet. App.
2a. The Facility used mercury in the chlorine production
process and, during the operation of the plant, mercury was
released into the water and sediments of the Penobscot. /d. at
2a-3a. Mallinckrodt sold the Facility in 1982. Jd. at 2a.
In 1970, the United States sued Mallinckrodt over the
discharge of mercury into the Penobscot River from a
chemical plant Mallinckrodt owned. Pet. App. 44a. Over the
next two decades, a series of federal and state regulatory and
enforcement actions reduced mercury discharges and
remediated prior discharges. In this effort, EPA invoked its
authority under RCRA' and eventually obtained entry of a
1993 consent decree that required a site investigation and
corrective measures study. See id. at 3a. Although it no
longer owned the plant, Mallinckrodt funded part of the costs
' Under RCRA, EPA may order the owner or operator of a facility that
treats, stores or disposes of hazardous waste to abate any release of such
waste into the environment and to take such clean-up steps as it “deems
necessary to protect human health or the environment.” 42 U.S.C.
§ 6928(h)(1). EPA need not find, or prove, that the wastes so released
pose an “imminent and substantial endangerment” prior to issuing such an
administrative order.
5
of complying with the consent decree, and submitted site-
investigation reports in 1995 and 1998. See id. at 47a. It also
agreed to perform a series of interim clean-up measures at the
facility, and committed to dredge mercury-contaminated
sediments in the Southern Cove, an area of the River adjacent
to the facility. See id. at 41a. In addition, Mallinckrodt later
agreed to study downriver environmental conditions, and
provided a report to EPA and the Maine Department of
Environmental Protection (MDEP) in 2001. Joint Ex. 42,
Maine People’s Alliance v. Holtrachem Mfg. Co., 211 F.
Supp. 2d 237 (D. Me. 2002) (No. Civ. 00-69-B-C); see also
Pet. App. 47a.
By the time of trial in this case, these agencies had
proposed a set of “media protection standards,” or clean-up
levels designed to protect public health and the environment.
Tr. Vol. 2-B, at 26-28, 47-48. Among these standards was a
proposed maximum mercury concentration for downriver
sediment that did not require a downriver clean-up. /d. at 47-
48; see also Pet. App. 47a. Under this proposed standard,
only the Southern Cove would require clean-up. Tr. Vol. 2-B,
at 47-48; see also Pet. App. 47a. At trial, the EPA and MDEP
project managers for the site both testified that they believed
that the proposed standards would adequately protect human
health and the environment. Tr. Vol. 2-B, at 61; Vol. 3-B, at
76. As the First Circuit acknowledged, had these media
protection standards been adopted at the time of trial, no
remediation would have been required for the area with which
this litigation is concerned. Pet. App. 4a.
B. Proceedings And Rulings Below.
At the same time that EPA and MDEP requested the
downriver study in writing, plaintiffs commenced this suit
under RCRA, alleging that mercury discharged from the
Facility “may present an imminent and _ substantial
endangerment,” 42 U.S.C. § 6972(a)(1)(B). Acknowledging
that remediation might prove unnecessary or infeasible, the
plaintiffs requested that Mallinckrodt be ordered to fund a
6
study to determine the nature and extent of endangerment.
Pet. App. 4a.
The plaintiff organizations based their standing on four
members, who testified that they had stopped eating fish or
shellfish from the Penobscot and had refrained from fishing,
swimming, or boating on the Penobscot due to their concerns
about mercury levels. Pet. App. 64a-65a. These witnesses
did not claim that they had suffered any adverse health effects
as a result of such mercury. JAQ113? (Galland); JA0Q129
(Reymore); JA0150 (Woods); JA0066 (Judd). All four,
moreover, were aware that Maine had issued a fish
consumption advisory that counsels sport fishers to limit or
avoid entirely eating fish caught in any water of Maine
statewide; they testified that they do not eat any fish from
waters covered by that advisory. JA0114 (Galland); JA0130
(Reymore); JA0151 (Woods); JA0065 (Judd).
Although the plaintiffs submitted evidence that mercury
downriver from the Facility is entering biota and magnifying,
plaintiffs’ own expert conceded that he did not know “if there
is a problem.” He admitted “[w]le don’t know what the
problem is .... [T]he only way to do remediation is to do a
proper study, find out if there is a problem, if there is, what it
is, and remediate it.” JA0250-51.
The district court did not find that a clean-up of the estuary
was necessary. Instead, it concluded that the conditions in the
Penobscot raised a “reasonable medical concern” and a
“reasonable scientific concern,” Pet. App. 62a, and that this is
sufficient to establish liability under § 7002(a)(1)(B). The
court concluded that solid or hazardous wastes “may present
an imminent and substantial endangerment” within the
meaning of RCRA if there is “‘some reasonable cause for
concern that someone or something may be exposed to risk or
? Citations to the “JA” refer to materials included in the Joint Appendix
filed in the First Circuit in Holtrachem Manufacturing Co. v. Maine
People’s Alliance, 471 F.3d 277 (ist Cir. 2006) (No. 05-2331).
7
harm.’” Jd. at 54a. Under this interpretation, any risk of
harm that is not “‘remote in time, completely speculative in
nature, or de minimis in degree’” is sufficient to establish
liability. Jd. Based on this vague and extremely lenient
standard, the district court found petitioner liable to fund an
“independent study to determine if remediation of the
conditions existing in the area south of the [Facility] is
required and/or feasible and, if so, the precise content of the
appropriate remediation plan.” Jd. at 69a.
In an accompanying order, the district court required the
parties to propose plans for a study to determine the effects of
mercury on the Penobscot River and Bay south of the plant
site. Pet. App. 69a. After the parties submitted proposed
plans, the court issued an order creating a three-person study
panel. JA0273-81. The November 25, 2003 order set out a
series of questions for the study panel to answer, including:
(C) Is any mercury in the Penobscot River/Bay system
having significantly adverse effects on populations of
organisms in the lower Penobscot River/Bay system?
(D) Is any mercury in the Penobscot River/Bay system
posing an unacceptable risk to human health?
(E) Do the scientific data lead to the conclusion that a
mercury remediation program is necessary and feasible
to effectively remediate the effects of any such harm
caused by mercury contamination in the Penobscot
River/Bay system?
JA0274-75.
On August 10, 2005, the district court entered an order
approving the study plan and ordering the study panel to
begin implementing the study. Pet. App. 37a-38a. The study
plan “is designed to determine the extent of contamination
downriver from the [Facility] and whether such
contamination endangers human health or the environment.”
JA0287 (emphasis added).
8
Petitioner appealed the order authorizing the study plan.
Relying on decisions from other circuits, the First Circuit
concluded that plaintiffs had Article III standing and that
RCRA permits citizen suits so long as there is a “reasonable
prospect of future harm . . . so long as the threat is near-term
and involves potentially serious harm.” Pet. App. 31a.
As to standing, the court held that “probabilistic harms are
legally cognizable” if there is “a substantial probability that
harm will occur.” Pet. App. 9a, 1la. Based on this standard,
the appellate court upheld the district court’s finding that
petitioner created a substantial probability of increased harm
to the environment and that this increased risk rendered the
plaintiffs’ fears reasonable. Jd. at 12a. The First Circuit
dismissed petitioner’s argument that when courts base
standing on an increased risk of harm that no politically
accountable body has deemed unacceptable, courts are
improperly relying on what are essentially legislative or
political judgments as the predicate for an exercise of judicial
power. /d. at 12a-13a. The lower court believed that
Congress had made the choice to “create a cause of action for
affected citizens notwithstanding the absence of any EPA-
sponsored activity,” and that Article III’s requirements had
been met /d. at 13a-14a.
The First Circuit also upheld the district court’s
interpretation of RCRA, finding that the district court “read
the statute’s adjectival elements in line with the breadth of the
authority granted.” Pet. App. 18a. Turning first to case law
construing the liability standard of § 7002 expansively, the
Court stated that prior courts had “emphasized the
preeminence of the word ‘may’ in defining the degree of risk
needed to support RCRA § 7002(a)(1)(B)’s liability
standard.” Pet. App. at 17a. Imminence had generally been
read to require only that the harm poses a near-term threat;
“there is no corollary requirement that the harm necessarily
will occur or that the actual damage will manifest itself
immediately.” Jd.
9
The Court dismissed the textual and structural problems
petitioner identified in this expansive reading. Petitioner
argued that, under RCRA’s hierarchy of risks and remedies,
“an imminent and substantial endangerment” was the most
stringent risk standard, yet the lower court’s lenient
interpretation made it impossible to give RCRA’s less
stringent risk standards any non-absurd independent meaning.
Although the panel admitted that this hierarchy was “not
easily disproved,” it dismissed Congress’s handiwork in
devising these differing standards as “more a product of
fortuity than a product of purposeful legislative initiative.”
Pet. App. 23a.
The panel also relied on differences in enactment dates to
dismiss similarities in statutory terms. When Congress gave
EPA authority in § 7003 to sue to enjoin an “imminent and
substantial endangerment,” this phrase had already been
construed, in other environmental laws, to denote a
heightened risk standard. But the panel concluded that the
meaning the phrase had when it was added to RCRA was
irrelevant. In its view, “the relevant question is how that term
was understood in 1984 (when section 7002(a)({1)(B) was
enacted).” Pet. App. 20a.
REASONS FOR GRANTING THE PETITION
The First Circuit’s construction of Article III represents an
unwarranted extension of standing doctrine, one that is
unsupported by prior decisions of this Court. In reaching its
conclusion that the plaintiffs’ fear of future harm was a
cognizable injury-in-fact, where suit was brought against a
private party that had not violated a regulatory standard and
where the possibility of future harm was uncertain, the First
Circuit disregarded a core principle of Article III, to “‘identify
those disputes which are appropriately resolved through the
judicial process,” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992) (quoting Whitmore v. Arkansas, 495 U.S.
149, 155 (1990)). The decision below will result in
10
overextending the reach of the federal judiciary in a large
class of cases, improperly requiring courts to make
fundamentally political determinations.
In addition, the court’s broad interpretation of RCRA is a
fundamental misconstruction of the statute’s text and
structure. The breadth of the liability standard enunciated by
the First Circuit confers on private citizens an enforcement
power co-equal with that of the executive branch, contrary to
Congress’s identification of the EPA as the primary enforcer
of RCRA. It also renders meaningless Congress’s careful
bifurcation of citizen suits and its specification of a hierarchy
of three distinct risks, and associated remedies, treating
virtually all of these statutory distinctions as the product of
congressional sloppiness or inadvertence.
Accordingly, the Court should grant the petition and
reverse the decision below in order to delineate the proper
limits of federal judicial power and to protect the enforcement
power entrusted primarily to the executive by Congress.
I. WHETHER AND THE EXTENT TO WHICH THE
THREAT OF FUTURE HARM CAN GIVE RISE
TO STANDING IN THE ABSENCE OF ANY
INDEPENDENT AGENCY ACTION IS A
RECURRING AND VITAL QUESTION OF
CONSTITUTIONAL LAW.
This case presents a question that has not yet been resolved
by this Court: whether any non-de minimis risk of future harm
can suffice as a cognizable injury-in-fact when no politically
accountable entity has deemed the risk unacceptable and
when plaintiffs are not suing under a statute that gives them
the right to judicial review of an agency’s refusal to address a
risk of harm.
Plaintiffs’ members claim that they are injured by a loss of
enjoyment of the Penobscot due to their concerns over
mercury levels in the river. It is undisputed that virtually all
bodies of water in Maine have some level of mercury and that
il
there are numerous other sources of mercury in the Penobscot
in addition to discharges from the Facility. Thus, plaintiffs’
injury-in-fact consists of their allegedly reasonable medical
concern that the discharges from the Facility expose them to
an increased probability of harm. This is not a cognizable
Article III injury.
At the outset, it is essential to recognize that, because
“<cafe’ is not the equivalent of ‘risk-free,’” Industrial Union
Dep’t v. American Petroleum Inst., 448 U.S. 607, 642 (1980)
(plurality), some risk levels are societally acceptable. Indeed,
in the environmental area, EPA often issues safety regulations
that accept some level of societal harm. See, e.2.,
Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517, 1524
(9th Cir. 1995) (noting that EPA regulation accepted risk that
23 out of one million people will develop cancer due to
hazardous substances found in fish). Determining what nsks
are societally acceptable is essentially a legislative, or
political, task for which courts lack meaningful standards.
Industrial Union, 448 U.S. at 662-63 (Burger, C_J.,
concurring) (statute authorizing agency to adopt standards
“‘reasonably necessary or appropriate to provide safe or
healthful employment” required agency to “make a policy
judgment as to whether a specific risk of health impairment is
significant”); Environmental Def. Fund v. EPA, 598 F.2d 62,
83-84 (D.C. Cir. 1978) (courts cannot “formulate policy with
respect to what [environmental] risks are acceptable”);
National Lime Ass’n v. EPA, 627 F.2d 416, 431 n.48 (D.C.
Cir. 1980) (statute directing EPA to assess “a pollutant’s
danger to public health or welfare” requires the agency to
“make essentially legislative policy judgments”) (internal
quotation marks and citation omitted). Such judgments are to
be made by Congress or an agency to which it delegates such
authority.
In environmental cases in which the injury-in-fact is based
on a risk of harm, this Court has thus far limited standing to
two specific circumstances. First, this Court has recognized
12
Article III injury in cases involving violations of regulatory
requirements. See, e.g., Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 184-85 (2000)
(finding standing where it was “undisputed that Laidlaw’s
unlawful conduct—discharging pollutants in excess of permit
limits—was occurring at the time the complaint was filed”).
Second, the Court has found standing when a litigant brings
an action against a governmental agency charged with
protecting the public from harms, and Congress has
authorized judicial review of that agency’s decisions, thus
creating a procedural right. See, e.g., Massachusetts v. EPA,
127 S. Ct. 1438, 1453 (2007). The First Circuit went a large
and significant step beyond these classes of cases, an
extension that is unsupported by this Court’s holdings and is
contrary to the principles underlying Article III.
Establishing the reasonableness of a fear of future harm by
pointing to the violation of a federal requirement is fully
consistent with the “separation and equilibration of powers”
principles essential to Article III. See Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 101 (1998) In such a
circumstance, a court is not basing the exercise of judicial
power on its own assessment that a particular risk of an
environmental harm is unacceptably high. Instead, it is
relying on such an assessment by the expert agency that
Congress has entrusted with making such judgments. See,
e.g., Friends of the Earth, Inc. v. Gaston Copper Recycling
Corp., 204 F.3d 149, 157 (4th Cir. 2000) (“{b]ecause
[effluent] discharge restrictions are set at the level necessary
to protect the designated uses of the receiving waterways,”
violations of these restrictions are presumptively harmful).
However, where a court finds—notwithstanding the absence
of a determination by any politically accountable body—that
a fear based on some chance of future harm is reasonable, it
makes what is fundamentally a political decision, thus
purporting to exercise power to which it is not constitution-
ally entitled and for which it lacks institutional competence.
| )
hp CECE TMA SATE EADY ARE SDP ES EAI
13
Similarly, where Congress has authorized review of
governmental actions, courts have found standing based on
their assessment that a risk of harm is substantially probable.
As this Court has recognized, the congressional creation of a
broad statutory procedural right permits a finding of standing
“without meeting all the normal standards for redressability
and immediacy.” Massachusetts v. EPA, 127 S. Ct. at 1453.
In such cases, an agency’s judgment that risks permitted by
its own decision are societally acceptable cannot be
dispositive of standing (otherwise, the review mechanism
would be meaningless). At the same time, however, the
government’s decision is subject to a highly deferential
standard of review—arbitrary and capricious or in excess of
statutory authority. These standards safeguard the province
of the executive and prevent the judiciary from thrusting itself
into a policy-making role.
This Court’s recent decision in Massachusetts v. EPA, 127
S. Ct. 1438, further emphasizes the importance of prior
agency action in analyzing Article III’s core requirements. In
that case, a politically accountable body—the state—sued the
federal government to protect the rights of its citizens.
Congress had provided an explicit right to challenge the
relevant EPA actions. See id. at 1454-55. Standing was thus
based on two factors, both absent here. First, the state, which
has a special status for the purpose of invoking federal
jurisdiction, had standing to sue based on the state’s own
“stake in protecting its quasi-sovereign interests.” Id.
Second, the suit was brought to challenge EPA action under
the APA. /d. at 1453. The APA’s grant of procedural rights
permits a finding of standing without meeting all the normal
standards for redressability and immediacy. Id.
In the decision below, the First Circuit failed to recognize
the limit of this Court’s environmental standing cases. The
lower court cited Laidlaw, 528 U.S. at 183, and Sierra Club v.
Morton, 405 U.S. 727, 735 (1972), neither of which supports
a lenient injury standard whereby the judiciary must
4
determine on its own whether an environmental risk is
unacceptably high. See et. App. 10a. In Laidlaw, this Court
based the reasonableness of the plaintiffs’ fear of future harm
on the fact that the defendant was illegally discharging
pollutants in excess of permit limits established by an agency.
See Laidlaw, 528 U.S. at 184. In Sierra Club, standing was
denied even though the case was brought under the APA to
challenge agency action. See Sierra Club, 405 U.S. at 734-
35.
Also unhelpful to the First Circuit’s conclusion are the
cases it cited that were brought under the Clean Water Act
(“CWA”). These cases involve violations of. effluent
discharge limits that the EPA had established based upon
what it determined to be unacceptable risks of harm to health
or the environment. Accordingly, in such circumstances, the
economic, aesthetic and health concerns and fears of those
with recreational or other interests in the body of water are,
by definition, legally “reasonable”; the plaintiffs fear harms
from discharges of pollutants in amounts that an expert and
politically accountable agency charged with protecting human
health and the environment has concluded are harmful or pose
unacceptable risks of harm. See Texas Indep. Producers &
Royalty Owners Ass’n v. EPA, 410 F.3d 964, 974 (7th Cir.
2005) (explaining that Laidlaw, Gaston and other cases
involved “alleged aesthetic and recreational injuries caused
by violations of a permit,” and noting that the plaintiffs
“‘fear[ed] . . . pollution from [the defendants’] permit
exceedances”).
In this case, no politically accountable body has ever
determined that the levels of mercury in the Penobscot River
create a reasonable threat of future harm. Plaintiffs allege no
violation of any federally prescribed discharge limits. Nor are
they bringing suit against a governmental body challenging
agency action under the APA. They are thus entitled to no
presumption that the discharges are harmful or that the
increased risk they face is unacceptable. Instead, they are
&>
15
asking the courts to make the inherently legislative or
political judgment that their medical concerns should be
deemed reasonable notwithstanding the absence of any
agency or governmental action. In other words, they are
asking the courts to rule, in the absence of any finding by the
expert agency primarily responsible for enforcing the nation’s
environmental laws, that the medical and_ scientific
uncertainties created by mercury in the Penobscot create an
unacceptable increased risk of harm.
The First Circuit’s finding of injury-in-fact in these
circumstances, therefore, is a significant and unwarranted
extension that compels courts to make judgments for which
they lack institutional competence and _ constitutional
authority.? Indeed, this case illustrates why courts should not
make such legislative decisions. The courts below made their
own policy judgments about unacceptable risks, then used
those judgments to exercise judicial power to compel the type
of investigation that EPA would conduct before, not afier,
deciding whether a risk is unacceptable. See infra.
Thus, while plaintiffs’ expert conceded that “we don’t
know if there is a problem,” JA0250, the district court
nonetheless decided that plaintiffs’ concerns over mercury in
3 O'Melveny & Myers v. FDIC, 512 U.S. 79, 89 (1994) (weighing and
appraising policy considerations is a task “for those who write the laws,
rather than for those who interpret them”) (internal quotation marks
omitted); Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 866 (1984) (“[t]he responsibilities for assessing the wisdom of .. .
[environmental] policy choices . . . are not judicial ones”); Texas Indus.,
Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 647 (1981) (policy choices
must be resolved “within the legislative process after the kind of
investigation, examination, and study that legislative bodies can provide
and courts cannot”) (internal quotation marks omitted); cf. Chicago & S.
Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948) (complex
decisions that affect the safety or security of the nation “should be
undertaken only by those directly responsible to the people whose welfare
they advance or imperil. They are decisions of a kind for which the
Judiciary has neither aptitude, facilities nor responsibility”).
16
the Penobscot were “reasonable” and, based on this policy
decision, has now ordered an expensive study to determine
whether there is any reality to the injury plaintiffs fear. But it
should have been plaintiffs’ burden to show that they have
properly invoked the jurisdiction of the federal court. The
district court’s order merely confirms that they did not
discharge that burden.
Review of the decision below is thus necessary to ensure
that federal courts respect the limits established by Article III.
For this reason, the petition should be granted and the
decision below vacated.
II. THE PROPER INTERPRETATION OF THE
CITIZEN-SUIT PROVISION OF THE RESOURCE
CONSERVATION AND RECOVERY ACT IS AN
IMPORTANT QUESTION OF FEDERAL LAW.
This Court should also review the First Circuit’s erroneous
construction of the liability standard of RCRA’s citizen-suit
provision. While petitioner acknowledges that there is no
split of Circuit Court authority on this issue, the lenient
liability standard the First Circuit and others have adopted
compels courts to make questionable policy decisions about
whether particular risks are unacceptable, and undermines
EPA’s policy-making primacy under RCRA. The petition
should be granted to address these critically important issues
and to restore the balance of authority Congress mandated.
A. The Lower Court’s Interpretation Is Inconsistent
With The Statute’s Allocation Of Policy-Making
And Enforcement Authority.
Because the task of determining whether a particular risk of
environmental harm is societally unacceptable is an
inherently political task calling for normative judgments,
Congress assigned “[cjhief responsibility for the
implementation of RCRA [to EPA],” Meghrig, 516 U.S. at
483-84. Throughout RCRA, Congress vested EPA with
broad authority to issue permits, regulations and orders based
17
on EPA’s policy determinations of what risks to health and
the environment are unacceptable. See, e.g., 42 U.S.C.
§§ 6922(a), 6923(a), 6924(a), (b), (d), (e), 6925. RCRA’s
citizen-suit provisions serve as adjuncts to EPA’s over-
arching enforcement role. One such provision authorizes
citizens to sue to enforce the policy judgments embodied in
EPA permits, rules, regulations or orders without any
showing of harm. Jd. § 6972(a)(1)(A), (a)(2). In the absence
of such judgments, however, citizens can sue only where they
establish that wastes may present an “imminent and
substantial endangerment.” Jd. § 6972(a)(1)(B). Interpreting
this endangerment standard to require a showing that a grave
risk of harm is more likely than not to occur is consistent with
Congress’s allocation of responsibility: it ensures that primary
policy-making and enforcement authority rests with EPA, that
citizens cannot freely second-guess EPA’s policy decisions,
and that courts make policy choices only in limited situations,
where a risk of grave harm is likely.
The First Circuit’s interpretation, however, implausibly
treats the phrase “imminent and substantial endangerment” in
§ 7002(a)(1)(B) as a grant of co-equal policy-making
responsibility to judges and private citizens. Citizens can sue,
and courts may issue injunctions, based on any increased risk
of harm that cannot be deemed de minimis or irrational.
Indeed, in this case, plaintiffs and the district court used this
provision to second-guess EPA’s actions. EPA ordered the
clean-up of the plant and nearby cove, compelled a downriver
study and proposed media protection standards that it thought
sufficient to protect health and the environment. Tr. Vol. 2-B,
at 26-28, 47-48, 61. Plaintiffs deemed this inadequate, and
are using § 7002(a)(1)(B) so that they and the district court
can decide whether and what more should be done. RCRA’s
overall structure and allocation of responsibilities to EPA
make clear that Congress did not intend any such result.
18
B. The Decision Below Misconstrues RCRA And
Violates Fundamental Rules Of Statutory
Interpretation.
1. The First Circuit Failed To Give Meaning To
RCRA’s Hierarchy Of Risks And Remedies.
Neither the First Circuit nor any other court of appeals that
has adopted the lenient interpretation of § 7002(a)(1)(B)’s
liability standard has reconciled that standard with RCRA’s —
hierarchy of risks and remedies. Under § 3019(b), if EPA
finds that a landfill “poses a substantial potential risk to
human health,” it may ask another federal entity to conduct a
“health assessment.” 42 U.S.C. § 6939a(b)(2) (emphasis
added). Under § 3013, if EPA determines that the release of
hazardous waste “may present a substantial hazard to human
health or the environment,” it may order “monitoring, testing,
analysis, or reporting.” Jd. § 6934(a), (d) (emphasis added).
And, under § 7003, if EPA determines that hazardous waste
“may present an imminent and substantial endangerment to
health or the environment,” it may seek injunctive relief. Jd.
§ 6973(a) (emphasis added).
These provisions describe three distinct risk levels—“a
substantial potential risk,” “a substantial hazard,” and “an
imminent and substantial. endangerment”—and prescribe
three distinct remedial responses—a government-funded risk
analysis; a government-compelled analysis; and immediate
injunctive relief. This graduated scale of risks and responses
makes clear that “an imminent and substantial endangerment”
is the most significant potential risk, one so grave and likely
that it warrants immediate preventive action. Interpreting this
highest of risk standards to mean “any risk” that gives rise to
a “reasonable medical concern,” however, leads to the absurd
conclusion that Congress used the lesser risk standards of
“substantial potential risk” and “substantial hazard” to
authorize actions based on unreasonable medical concerns.
19
Unable to disprove this hierarchy, the First Circuit simply
brushed it off by stating that its interpretation of § 7002
“sives full effect to the ‘imminent and substantial
endangerment’ language; it merely eschews the mechanical
cross-referencing, not mandated by Congress.” Pet. App.
22a. But, as just noted, that interpretation” of § 7002 does not
give any non-absurd meaning to RCRA’s other risk standards.
And, giving independent meaning to all three risk standards is
not an exercise in “mechanical cross-referencing”; it is the
fulfillment of the court’s duty to interpret RCRA as a
“symmetrical,” “coherent” and “harmonious whole.”
Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995); FTC v.
Mandel Bros., Inc., 359 U.S. 385, 389 (1959).
Citing King v. St. Vincent's Hospital, 502 U.S. 215, 222
(1991), the First Circuit stated that, “[i]f Congress actually
wants a delineated hierarchy of risks and remedies, it will
have to say so more distinctly.” Pet. App. 23a-24a. Clear
statement rules, however, apply in areas of constitutional
concer.’ Congress has no duty to speak “distinctly” when
exercising its core constitutional power to create
environmental risk standards, and King does not suggest
otherwise.
Indeed, it is the judiciary that has the duty to harmonize all
parts of the statute. That duty, moreover, applies even when
provisions are adopted at different times. See 1A Norman J.
Singer, Sutherland Statutes and Statutory Construction
§§ 22:34, 22:35 (2006) (provisions introduced by amendment
“should be read together with . . . the original section . . . as if
[both] had been originally enacted as one section. Effect 1s to
be given to each part, and they are to be interpreted so that
* See Gregory v. Ashcroft, 501 U.S. 452, 461 (1991) (clear statement
rules apply “““[iJn traditionally sensitive areas, such as legislation
affecting the federal balance”’”). See generally William N. Eskridge, Jr.
& Philip P. Frickey, Forward: Law as Equilibrium, 108 Harv. L. Rev. 26,
81-82 (1994).
20
they do not conflict.” (footnotes omitted)). To conclude that
three separate risk standards are merely inadvertent synonyms
adopted by different Congresses, Pet. App. 23a-24a, is a
complete abdication of that duty. Here, harmonization is
entirely possible: construing “imminent and _ substantial
endangerment” to mean a risk of grave harm that is more
likely than not to occur gives independent meaning to all of
RCRA’s risks standards. Courts simply cannot reject a
coherent interpretation that harmonizes all statutory
provisions in favor of a reading that fails to give independent
meaning to distinct provisions, then attribute the incongruity
to congressional sloppiness. Instead, in such circumstances,
they must choose the coherent, harmonious reading.
2. The First Circuit’s Interpretation Renders
§ 7002(a)’s Bifurcation Of Citizen Suits
Superfluous.
In addition, the First Circuit’s interpretation renders
RCRA’s careful bifurcation of citizen suits meaningless. As
noted above, Congress authorized citizens to enforce the
policy judgments in EPA permits, rules, or regulations
without any showing of risk of harm in one provision, 42
U.S.C. § 6972(a)(1)(A), (a)(2), but required citizens to show
that wastes “may present an imminent and _ substantial
endangerment” when they sue in the absence of such EPA
judgments, id. § 6972(a)(1)(B). Under the First Circuit’s
interpretation, however, citizens can sue to enjoin (1) all risks
EPA deems unacceptable and (2) all other non-de minimis
risks. See, e.g., Jarecki v. G.D. Searle & Co., 367 U.S. 303,
307 (1961) (“‘[i]f there is a big hole in the fence for the big
cat, need there be a small hole for the small one?’”).
Once again, the First Circuit’s reason for dismissing this
problem cannot be squared with cardinal rules of interpre-
tation. Because Congress adopted the second category of
citizen suits eight years after providing for permit-violation
suits, the court below thought it “‘obvious’” that, when
Congress
ce
cut a second hole in the fence, . . . [it] wanted to
21
increase the ease with which cats of all sizes could come
through the fence.” Pet. App. 27a. The problem is that
Congress did not repeal the first category of suits and replace
it with a broad catch-all citizen suit provision. Instead, it
simply added a provision, and courts must, if possible, give
meaning to both provisions. This is not possible, however,
under the First Circuit’s interpretation. That impossibility
renders the interpretation invalid; it cannot be brushed aside
as mere inadvertence by a later Congress.
3. The Lower Court’s Interpretation Fails To
Give The Same Words In Different Parts Of
RCRA The Same Meaning.
In pre-RCRA environmental statutes, the phrase “‘will
endanger” was construed to require a “‘significant risk of
harm,” Ethyl Corp. v. EPA, 541 F.2d 1, 20 n.36 (D.C. Cir.
1976) (en banc), and the modifier “‘imminent and
substantial’”” was “used . . . to mandate more certain
endangerment.” Jd.; see also Reserve Mining Co. v. EPA, 5 14
F.2d 492, 528 (8th Cir. 1975) (en banc) (the phrase “‘[is]
endangering” “connotes a lesser risk of harm than the phrase
‘imminent and substantial endangerment”). Thus, when
Congress used the words “imminent and substantial
endangerment” in § 7003 of RCRA, it presumably “intended
them to have the same [stringent] meaning that courts had
already given them” in earlier environmental laws. Holmes v.
Securities Investor Prot. Corp., 503 U.S. 258, 268 (1992).
That presumption is confirmed by the legislative history,
which described EPA’s right to sue under § 7003 as an
“emergency authority.” S. Rep. No. 94-988, at 16-17 (1976).
Because “‘identical words used in different parts of the
same act are intended to have the same meaning,’” Gustafson,
513 U.S. at 570, the phrase “imminent and substantial
endangerment” in § 7002(a)(1)(B) must have the same
stringent meaning Congress intended it to have in § 7003.
Indeed, “{t]he interrelationship and close proximity of these
provisions . . . presents a classic case for application of” this
eee
22
presumption, Desert Palace, Inc. v. Costa, 539 U.S. 90, 101
(2003) (internal quotation marks omitted), which, in such
circumstances, can be overcome only by “strong evidence” of
a contrary intent. Japan Whaling Ass’n v. American
Cetacean Soc’y, 478 U.S. 221, 238-39 (1986). The panel’s
interpretation of § 7002(a)(1)(B) is flatly inconsistent with
these principles.
The First Circuit concluded that, although the 1984
Congress that added § 7002(a)(1)(B) to RCRA intended it to
operate the same as § 7003, the 1984 Congress understood
§ 7003 differently than “how Congress viewed 7003 at the
time of its original passage,” and the 1984 Congress’s
understanding of § 7003 controls the meaning of
§ 7002(a)(1)(B). Pet. App. 28a; see also id. at 20a. This is
not evidence that Congress intended the same words to have
different meanings in adjoining provisions. Rather, it is a
ruling that the 1984 Congress misunderstood the liability
standard an earlier Congress had enacted in § 7003. Because
the 1976 Congress’s intent controls the meaning of
“substantial and imminent endangerment” in § 7003, the
panel’s interpretation leads to the untenable conclusion that
identical words in different parts of the same law have
different meanings due to congressional inadvertence.
Indeed, the untenable nature of the First Circuit’s
interpretation is underscored by § 3008(e) of RCRA. This
provision, entitled “Knowing Endangerment,” makes it a
crime to handle or dispose of hazardous waste in violation of —
various permitting or related requirements if the person
“knows at that time that he thereby places another person in
imminent danger of death or serious bodily injury.” 42
U.S.C. § 6928(e). Because “endangerment” in this provision
means a “danger of death or serious bodily injury,” an
“imminent and substantial endangerment” cannot mean
simply any “reasonable medical concern.” The appellate
court below suggested that the “divergent concerns” of
criminal provisions made this discrepancy unsurprising. Pet.
23
App. 22a. But criminal laws diverge from civil provisions in
their concern with moral culpability, and that concern is
addressed by § 3008(e)’s mens rea requirement. Section
3008(e)’s criminal nature, therefore, does not explain the
incongruous discrepancy in meaning between the same word
in two provisions of the same law.
C. The Lower Court’s Error Is An Issue Of
Significant National Importance Because It Will
Have A Significant Adverse Effect On Industrial
Development And Will Interfere With Agency
Enforcement Decisions.
The First Circuit’s erroneous and expansive reading of
RCRA’s citizen-suit provision threatens to undermine the
balance between environmental protection and industrial
development. Cf. International Paper Co. v. Ouellette, 479
U.S. 481, 494 (1987) (recognizing that certain application of
state law against a private party would “upset[] the balance of
public and private interests so carefully addressed by the
[Clean Water] Act”). Congress has expressly granted the
EPA the right to determine safe levels of discharge and has
granted citizens the right to bring suit in only two instances:
to enforce agency standards or to abate serious risks of grave
injury. By allowing citizens to sue for all non-de minimis
risks, the First Circuit’s interpretation plainly and
impermissibly upsets the legislative choice that EPA should
determine appropriate levels of risk, not courts or private
parties. Upsetting this balance will skew incentives toward
over-deterrence and under-development, thwarting the will of
Congress and affecting the Nation’s economy.
The expansive reading the lower courts have given RCRA’s
citizen-suit provision exposes any business that discharges at
all to the risk of a suit whenever citizens are disappointed
with the pace of State or EPA progress or whenever there is
any concern about a potential future harm. The high risk of
litigation in this broad class of cases alters the manner in
which businesses evaluate the cost of industrial development
24
and inhibits beneficial production throughout the United
States. Businesses must consider a significant risk of facing
litigation by private parties, who can sue, even in the absence
of any violation of any objective standard. This absence of
standards makes it difficult for businesses to discern how to
comply with the law; compliance is a roving target, leaving
industry to guess at what level of protection is enough. To
protect against the possibility of litigation, businesses must
over-invest in environmental safeguards. And even that over-
investment may not be sufficient. Both protection of the
environment and the development of industry are public
goods. The expansive interpretation adopted by the lower
courts alters the balance between them, inhibiting production.
Allowing citizens to sue under such a lenient standard also
risks irrational enforcement of RCRA. Citizens are not
constrained by the kind of considerations that regulators take
into account. Individual citizens generally have one concern:
their own protection. Cf. Joseph F. Brodley, Antitrust
Standing in Private Merger Cases: Reconciling Private
Incentives and Public Enforcement Goals, 94 Mich. L. Rev.
1, 15 (Oct. 1995) (“[P]rivate enforcers, driven by their own
self-interest, may deviate from antitrust goals ....”). Single-
focused citizens do not consider the costs of that protection,
and whether such costs are warranted. Citizens instead
generally desire complete safety—something that
environmental regulations cannot ensure. Cf. Industrial
Union Dept., 448 U.S. at 664 (Burger, C.J., concurring)
(“Perfect safety is a chimera... .”). The lack of a balanced
consideration of appropriate levels of safety (as opposed to
complete safety) will result in irrational enforcement of the
Statute, and companies will be forced to over-invest in
protection, stymieing beneficial development. Cf. id.
(“[R]egulation must not strangle human activity in the search
for the impossible.”’).
Finally, as this case proves, the judicial intrusion required
under the broad statutory reading interferes with federal and
25
state regulation. Such intrusion hinders “the proper
functioning of the agency” and “denies the agency an
opportunity to correct its own mistakes and apply its
expertise.” Cf. FTC v. Standard Oil Co., 449 U.S. 232, 242
(1980). This case amounts to a complaint about what the
federal and state regulators should have done. Allowing such
a collateral challenge of agency action necessarily interjects
judges into the sphere of executive and legislative power. See
Chevron U.S.A, Inc. v. Natural Res. Defense Council, Inc.,
467 U.S. 837, 865 (1984) (“Judges are not experts in the field,
and are not part of either political branch of the Government.
Courts must, in some cases, reconcile competing political
interests, but not on the basis of the judges’ personal policy
preferences.”). Searching judicial review of administrative
action is contrary to clearly established legal principles. See
id. at 843-45. The increased number of citizen suits and
increased judicial involvement ultimately “may have the
effect of misdirecting the EPA’s own enforcement efforts.”
See Frank B. Cross, Rethinking Environmental Citizen Suits,
8 Temp. Envtl. L. & Tech. J. 55, 68 (1989).
The First Circuit’s broad interpretation of RCRA’s citizen
suit provision will have significant and far-reaching affects,
stymieing industry and interfering with agency action.
* * %*« *
In short, the proper interpretation of RCRA’s “imminent
and substantial endangerment” standard is a profoundly
important question of federal law. The lower court's
erroneous interpretation undermines EPA’s enforcement and
policy-making primacy under RCRA, and forces courts to
make essentially legislative decisions about whether
environmental risks are societally acceptable. Courts have
neither the institutional aptitude nor constitutional
responsibility to make such judgments, and the text and
structure of RCRA make unmistakably clear that Congress
did not confer such authority on them. The Court should
grant the petition to address these critically important issues.
26
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
J. ANDREW SCHLICKMAN CARTER G. PHILLIPS*
JOHN M. HEYDE JOSEPH R. GUERRA
SIDLEY AUSTIN LLP NORINA I. EDELMAN
One South Dearborn SIDLEY AUSTIN LLP
Chicago, IL 60603 | 1501 K Street, N.W.
(312) 853-7000 Washington, D.C. 20005
(202) 736-8000
Counsel for Petitioner
May 16, 2007 * Counsel of Record
APPENDIX
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FIRST CIRCUIT
No. 05-2331
MAINE PEOPLE’S ALLIANCE and
NATURAL RESOURCES DEFENSE COUNCIL,
Plaintiffs, Appellees,
Vv.
MALLINCKRODT, INC.,
Defendant, Appellant.
Heard Oct. 5, 2006
Decided Dec. 22, 2006
Before’ SELYA and HOWARD, Circuit Judges, and
SMITH,” District Judge.
SELYA, Circuit Judge.
In the teeth of two decades of contrary precedent from four
circuits, defendant-appellant Mallinckrodt, Inc. asks us to
restrict the role of private citizens in the abatement of
imminent and substantial threats to the environment and
public health. In support of this entreaty, Mallinckrodt pre-
sents a gallimaufry of new, hitherto unconsidered arguments.
After careful consideration of this asseverational array, we
conclude that our sister circuits have adroitly distilled the
meaning of section 7002(a)(1)(B) of the Resource Conserva-
tion and Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1)(B)—
the so-called citizen suit provision. Correctly interpreted, this
provision allows citizen suits when there is a reasonable
* Of the District of Rhode Island, sitting by designation.
2a
prospect that a serious, near-term threat to human health or
the environment exists.’ In such situations, the provision
permits remedies consistent with the scope of a district
court’s equitable discretion.
The district court read the statute in this manner and
faithfully applied the law to the facts. Its supportable liability
finding, coupled with a choice of remedy that comes within
the encincture of its discretion, leads us to reject Mal-
linckrodt’s appeal.
I. BACKGROUND
We rehearse here only those facts that are directly relevant
to the issues on appeal, referring readers who hunger for more
information to the district court’s initial opinion. See Me.
People’s Alliance v. HoltraChem Mfg. Co., 211 F.Supp.2d
237 (D.Me.2002). This narrative credits the factual findings
of the district court to the extent that those findings are not
clearly erroneous. See Fed. Refinance Co. v. Klock, 352 F.3d
16, 27 (1st Cir.2003).
From 1967 to 1982, Mallinckrodt, then called International
Minerals and Chemicals Corporation, owned and operated a
chlor-alkali plant (the Plant) situated on the banks of the
Penobscot River in Orrington, Maine. Thereafter, the Plant
continued operations under other owners, namely, Hanlin
Group, Inc. and HoltraChem Manufacturing Co.,” until it
closed in 2000. During the period of its operation, the Plant
' We use the phrase “near-term threat” advisedly. It is the threat that
must be close at hand, even if the perceived harm is not. For example, if
there is a reasonable prospect that a carcinogen released into the envir-
onment today may cause cancer twenty years hence, the threat is near-
term even though the perceived harm will only occur in the distant future.
? Hanlin Group declared bankruptcy in 1991 and was never named as a
defendant in this action. HoltraChem dissolved in 2001 and, although
originally a party, did not participate in the critical district court
proceedings.
3a
deposited tons of mercury-laden waste into the Penobscot
River. See Me. People’s Alliance, 211 F.Supp.2d at 253.
While there have been a number of other significant con-
tributors to mercury in the Penobscot, “Mallinckrodt has been
a dominant source.” Jd. at 255.
In 1986, the Plant’s continuous release of mercury led the
Environmental Protection Agency (EPA) to file an admin-
istrative RCRA action against Hanlin (the Plant’s quondam
owner). That action resulted in an agreement for corrective _
measures. Deeming turnabout fair play, Hanlin sued Mal-
linckrodt for contribution. In a 1991 settlement, Mallinckrodt
agreed to pay a portion of the compliance costs imposed by
the agreement.
A subsequent enforcement action led to a 1993 consent
decree that superseded the earlier agreement. Although not a
party to this consent decree, Mallinckrodt, consistent with the
Hanlin settlement, paid its share of the compliance costs and
participated in ongoing negotiations with government regu-
lators.” That included working with both EPA and Maine’s
Department of Environmental Protection (MDEP).
The 1993 consent decree contemplated a wipartite process
comprising site investigation, evaluation of possible correc-
tive measures, and remediation. In line with the first phase of
this process, Mallinckrodt compiled and submitted a site
investigation report. In March of 1997, EPA and MDEP,
acting in concert, issued a draft notice of disapproval. Mal-
linckrodt countered with a supplemental site investigation
report but, in 2000, EPA and MDEP again disapproved.
Among other things, the regulators instructed Mallinckrodt to
study the effects of mercury downriver from the Plant.
3 HoltraChem was inveived with Mallinckrodt in much of the pretrial
activity. For ease of exposition, however, we henceforth will refer to the
Plant owners collectively as “Mallinckrodt.” This rhetorical device has no
bearing on the outcome of this appeal.
4a
Within a matter of months, Mallinckrodt commissioned a
study aimed at examining downriver mercury contamination.
It conducted a second downriver study during the summer of
2001. Notwithstanding the submission of these studies, how-
ever, the district court supportably found that Mallinckrodt
made only minimal efforts to pursue the designated line of
inquiry and that the decision to forgo more vigorous efforts
was deliberate. Jd. at 244 & n. 9.
In the midst of this sparring, two environmental groups—
the National Resources Defense Council and the Maine
People’s Alliance—joined forces to commence a citizen suit
under RCRA § 7002(a)(1)(B). The plaintiffs alleged that
mercury contamination downriver from the Plant “may
present an imminent and substantial endangerment to health
or the environment.” Acknowledging the possibility that
remediation might eventually prove to be either unnecessary
or infeasible, their principal prayer for relief was that
Mallinckrodt be ordered to fund an “independent, compre-
hensive, scientific study to determine the precise nature and
extent of the endangerment.”
Mallinckrodt tried on several occasions to derail the suit on
the ground that EPA, not the courts, had primary jurisdiction.
The district court demurred, holding that the suit would not
present any conflict with agency action due to EPA’s ap-
parent lack of interest in the lower Penobscot.
The case was reached for trial in March of 2002. By that
time, EPA and MDEP had made public, but had not adopted,
preliminary media protection standards, potentially applicable
to the lower Penobscot. Had those standards gone into effect,
no remediation would have been required for the region with
which this litigation is concerned.
iii
5a
During a nine-day bench trial,’ one of the plaintiffs’
principal experts was Dr. Robert Livingston. The district
court found Livingston, an aquatic biologist, to be “partic-
ularly credible and persuasive.” Jd. at 251. Drawing on three
main sources—the data gathered under the EPA-ordered
site studies, some limited field work, and the scientific lit-
erature concerning mercury in aquatic systems—Livingston
opined that there might be a serious endangerment to both
human health and the environment resulting from mercury
contamination in the lower Penobscot. Although believing it
“highly likely” that these harms would prove to be both real
and severe, he cautioned that he had not yet “done the right
research to determine that.” Due to the absence of sufficient
research, no one could know with certitude “if there is a
problem” or “what the problem is.” When all was said
and done, however, he thought it “highly likely” that
localized and targeted remediation would be both necessary
and desirable.
The plaintiffs also adduced testimony from other experts,
from individuals within their respective memberships, and
from EPA and MDEP representatives. A number of defense
experts testified as well. After both sides had rested and
submitted briefs, the district court issued a thoughtful rescript.
The court found that mercury in aquatic systems is
susceptible to being transformed by microscopic organisms
into its organic form (known as methylmercury). Jd. at 244.
“ We need not recount the trial testimony in endless detail. The critical
facts are laid out in the district court’s rescript. Even though many of the
facts are undisputed, the parties have woven them into widely dissimilar
tapestries. On the plaintiffs’ telling, Mallinckrodt is an unrepentant
polluter, which consistently flouted governmental enforcement efforts and
finally wore down the regulators. On Mallinckrodt’s telling, the plaintiffs
are overzealous environmentalists attempting an end run around the
reasoned policymaking of an Executive Branch agency. These pejorative
portrayals do little to aid the resolution of the issues before us.
er ee en ne ee
6a
Methylmercury is a highly toxic substance which, even in low
dosages, is inimical to human health; for example, it “attacks
the nervous system, the kidneys, the immune system, and the
reproductive system” and is especially damaging to a de-
veloping fetus. Jd. at 245. Methylmercury is especially
pernicious because it is the most bioavailable form of
mercury and therefore, is readily accumulated in humans and
animals alike. Jd. at 244.
Next, the court found that mercury concentration in
sediments extracted from the lower Penobscot runs five times
higher than in the Kennebec River (which Mallinckrodt’s
expert identified as an appropriate comparator). Jd. at 248.
Despite this high concentration, the court wisely recognized
that “the mere presence of mercury contaminated sediments is
alone not enough to constitute an imminent and substantial
endangerment,” id., so it proceeded to examine the available
data concerning mercury contamination in various species in
the lower Penobscot, including benthos, killfish (minnows),
lobsters, blue mussels, cormorants, osprey, and eagles. This
examination led the court to conclude that “mercury is
methylating downriver” and that “methylmercury is bioavail-
able, entering biota, and biomagnifying throughout the food
web.” Id. at 251.
The court expressed heightened concern about a region
known as Frankfort Flats, which displayed extraordinarily
high mercury readings in both sediments and biota. Jd. at
252. Frankfort Flats receives drainage from a marsh system,
and marshes are considered to be hotbeds of methylation.
See id.
When the district court turned to the legal standard for
citizen suits under RCRA § 7002(a)(1)(B), it characterized
that standard as “lenient.” 211 F.Supp.2d at 246. It cited
with approval case law emphasizing that RCRA allows such a
suit when the putative polluter “may” have caused an im-
minent and substantial endangerment. Jd. at 246-47 (collect-
7a
ing cases). On this basis, the court concluded that the
statute’s “imminent and substantial endangerment” standard
would be satisfied by a “reasonable medical concern for
public health and a reasonable scientific concern for the
environment.” Jd. at 252.
Applying this interpretation of the statute to the facts as
found, the court determined that Mallinckrodt’s disposal
activities may have created an imminent and substantial
danger and that, therefore, the plaintiffs had carried their
burden of proof anent liability. Jd. at 251-52. Then, having
found liability, the court directed the parties to make a good-
faith effort to agree on a study plan. Jd. at 256. The parties
complied and, on August 10, 2005, the court approved a plan
which, if carried out, probably will require Mallinckrodt to
spend around $4,000,000 for laboratory analyses, indepen-
dent of all other costs. The purpose of the study is to learn
whether, in actuality, mercury contamination in the lower
Penobscot adversely affects either human health or the envir-
onment, and if so, to devise a feasible remedial approach.
Mallinckrodt now appeals, asserting that the plaintiffs
lacked standing to sue in the first place; that the lower court
set the bar too low for RCRA citizen suits; and that, in all
events, the court abused its discretion in fashioning relief.
We address these assertions one by one.
Il. STANDING
As a threshold matter, Mallinckrodt alleges that the
plaintiffs lack standing to sue because they have not suffered
an injury in fact.? The existence vel non of standing is a legal
5 Mallinckrodt also makes a weak argument that the claimed injury —
cannot be redressed by the relief requested. This argument focuses on the
uncertainty attendant to the study’s outcome (for example, the study may
find that there is no endangerment or, if endangerment exists, that it
cannot be rectified). But even in the absence of a demonstrated need for
remediation, the information that the study will provide is adequate
8a
question and, therefore, engenders de novo review. See N.H.
Right to Life Political Action Comm. v. Gardner, 99 F.3d 8,
12 (ist Cir.1996). When, however, the trial court’s standing
determination rests on findings of fact, we must honor those
factual findings unless they are clearly erroneous. See Rivera
v. Wyeth-Ayerst Labs., 283 F.3d 315, 319 (Sth Cir.2002).
We start our inquiry into standing with the undisputed fact
that both of the plaintiffs are associations. In order to ground
a claim of associational standing (that is, standing to bring
suit on behalf of its membership), an association must show
three things: (i) that individual members would have stand-
ing to sue in their own right; (ii) that the interests at Stake are
related to the organization’s core purposes; and (iii) that both
the asserted claim and the requested relief can be adjudicated
without the participation of individual members as named
plaintiffs. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d
610 (2000). The plaintiffs in this case plainly have made the
latter two showings. Hence, the inquiry reduces to whether
the organizations’ individual members would have had stand-
ing to proceed in their own right.
Because there is nothing in RCRA’s text or history that
suggests a congressional intent to erect statutory standing
barriers beyond those imposed by Article III of the Con-
stitution and because Mallinckrodt has not identified any
prudential standing concerns, we focus on what is essential to
establish Article III standing. Those requirements are
expressed in a familiar three-part algorithm: a would-be
plaintiff must demonstrate a concrete and particularized
injury in fact, a causal connection that permits tracing the
claimed injury to the defendant’s actions, and a likelihood
redress because it will allow the plaintiffs to tailor their behavior to the
actual condition of the lower Penobscot. Consequently, Mallinckrodt’s
redressability argument is untenable.
9a
that prevailing in the action will afford some redress for the
injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61,
112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Pagan v. Calderon,
448 F.3d 16, 27 (ist Cir.2006). These requisites must be
proved “with the manner and degree of evidence required at
the successive stages of the litigation.” Lujan, 504 U.S. at
561, 112 S.Ct. 2130. When, as now, standing is reviewed
after trial, the facts establishing standing “must be supported
adequately by the evidence adduced at trial.” Jd. (internal
quotation marks omitted). The ultimate quotient of proof is a
preponderance of the evidence. See Perry v. Vill. of Arling-
ton Heights, 186 F.3d 826, 829 (7th Cir.1999).
We first dispose of an argument that verges on the spec-
ious. Mallinckrodt protests that the plaintiffs cannot have
established a cognizable injury since the district court thought
it appropriate to order a remedy—the study—that would
determine whether mercury in the Penobscot is “having
significant adverse effects” on the environment or “posing an
unacceptable risk to human health.” This protestation con-
flates the district court’s finding of liability with its choice of
remedy. As we shortly shall explain, probabilistic harms are
legally cognizable, and the district court made a support-
able finding that a sufficient probability of harm exists to
satisfy the Article III standing inquiry. See Me. People’s
Alliance, 211 F.Supp.2d at 253. The fact that the court chose
a remedy that aspires to furnish a degree of determinacy
before fashioning further relief speaks only to the court’s
cautious use of discretion in selecting remedies; it does not
speak to the plaintiffs’ standing as of the present time.
Having dispatched this attempted sleight of hand, we
proceed to more serious matters. Mallinckrodt concentrates
its standing attack on the plaintiffs’ ostensible failure to prove
the injury-in-fact component. At trial, the plaintiffs called
four witnesses from within their respective memberships, all
of whom reside on or near the banks of the Penobscot River.
10a
All four vouchsafed that they have modified their behavior
due to fear of mercury contamination. Although eager to do
so, none of them will eat fish or shellfish from the river nor
recreate on or near it. One witness added that, but for the
mercury contamination, she would harvest mussels and sell
them to supplement her income. The district court credited
this testimony. Jd.
Plaintiffs in environmental suits may predicate claims of
injury on aesthetic or recreational harms. See Laidlaw, 528
USS. at 183, 120 S.Ct. 693; Sierra Club v. Morton, 405 U.S.
727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Save Our
Heritage, Inc. v. FAA, 269 F.3d 49, 55 (1st Cir.2001). Still,
neither a bald assertion of such a harm nor a purely subjective
fear that an environmental hazard may have been created is
enough to ground standing. Rather, an individual’s decision
to deny herself aesthetic or recreational pleasures based on
concern about pollution will constitute a cognizable injury
only when the concern is premised upon a realistic threat.
See Laidlaw, 528 U.S. at 184, 120 S.Ct. 693; see also City of
Los Angeles v. Lyons, 461 U.S. 95, 107 n. 8, 103 S.Ct. 1660,
75 L.Ed.2d 675 (1983) (explaining that “the reality of the
threat . . . , not the plaintiff's subjective apprehensions,” con-
stitutes the cognizable injury).
In this instance, Mallinckrodt exhorts us to find that the
witnesses’ stated fears are unreasonable. It points out—and
the record confirms—that waterways throughout Maine suffer
to some extent from mercury pollution and that, therefore, it
is responsible at most for a probabilistic increase in a risk that
the witnesses would in any event have had to run.
There is some confusion as to the thrust of Mallinckrodt’s
argument. The plaintiffs read its brief, not implausibly, as
arguing that these facts necessarily limit cognizable injuries
to identifiable medical concerns. See Appellees’ Br. at 54.
Mallinckrodt’s reply brief, however, acknowledges that the
plaintiffs’ principal claim of injury is for diminished enjoy-
lla
ment of their environment and joins issue on the sufficiency
of the proof in that regard. See Appellant’s Reply Br. at 25.
At bottom, this argument suggests that the plaintiffs must
show that Mallinckrodt’s activities created a significantly
increased risk of h&rm to health or the environment so as to
make it objectively reasonable for the plaintiffs’ members to
deny themselves aesthetic and recreational use of the river.
To establish an injury in fact based on a probabilistic harm,
a plaintiff must show that there is a substantial probability
that harm will occur. See Warth v. Seldin, 422 U.S. 490, 504,
95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); see also Adams v.
Watson, 10 F.3d 915, 923 (1st Cir.1993). Mallinckrodt sug-
gests that the instant plaintiffs have not demonstrated a
sufficiently probable increase in harm because of (i) Dr.
Livingston’s admitted uncertainty about whether any problem
exists and (ii) the notion that politically accountable branches
of government, not courts, are the appropriate entities to
make judgments as to what risks are acceptable in modern
society. Neither suggestion is convincing.
Mallinckrodt’s first suggestion relies ultimately on a single
snippet of Dr. Livingston’s testimony, wrested from its
contextual moorings. But a trial court, confronted with a
complex and highly ramified factual situation, is fully entitled
to consider the import of a witness’s testimony as a whole.
This case is a good example: Dr. Livingston testified, in
effect, that the presence of a great deal of smoke justified
looking for a fire. Mallinckrodt excerpts only his isolated
statement that he had not actually seen a fire yet. This
plucking of the record overlooks the obvious fact that the
district court, drawing on the whole of Dr. Livingston’s tes-
timony as well as a plethora of other evidence, supportably
concluded that “mercury is methylating downriver, and that
such methylmercury is bioavailable, entering biota, and
biomagnifying throughout the food web” in sufficient quan-
tity that it may well present an imminent and substantial
12a
danger to the environment. Me. People’s Alliance, 211
F.Supp.2d at 251 (citation omitted). Relatedly, the court
found that “the effects resulting from methylmercury ex-
posure . . . clearly endanger reproduction, development, and
overall health of the public and the environment,” id. at 252,
and that “Mallinckrodt has been a dominant source of
mercury in the Penobscot River,” id. at 255.
In other words—to return to our metaphor—the lower
court discerned telltale signs that a fire might already be
smoldering. In light of its warrantable findings, the court had
ample reason to conclude that Mallinckrodt has created a
substantial probability of increased harm to the environment.
That increased risk, in turn, rendered reasonable the actions
of the plaintiffs’ members in abstaining from their desired
enjoyment of the Penobscot.
Mallinckrodt’s second suggestion is nothing less than a no-
holds-barred assault on the federal courts’ institutional com-
petency. It emphasizes that the plaintiffs allege no violation
of any federally prescribed discharge limits, and then treats
this omission as dispositive. See Appellant’s Br. at 27
(asserting that “in the absence of any finding by [EPA],”
courts are not equipped to determine whether “the medical
and scientific uncertainties created by mercury in the Penob-
scot create an unacceptable increased risk of harm” (em-
phasis in original)).
This postulate proceeds from a two-part premise. First, in
terms of environmental regulation—where important policy
tradeoffs must be made between protection and progress—the
only injuries that satisfy the criteria for Article III standing
are those injuries that are “unacceptable”; and second, the
political branches alone, not courts, have the expertise and
accountability to determine which injuries society must be
prepared to tolerate. In Mallinckrodt’s view, this need to
restrict cognizable injuries to “unacceptable” injuries is
13a
especially acute where, as in this case, the asserted harms
are probabilistic.
Mallinckrodt provides scant authority for an argument that
has such breathtaking ramifications for the scope of judicial
power. Its notion of acceptability is apparently derived from
a single, quarter-century-old opinion, in which a respected
court cautioned that judges cannot “formulate policy with
respect to what [environmental] risks are acceptable.” Envil.
Def. Fund v. EPA, 598 F.2d 62, 83-84 (D.C.Cir.1978). That
court, however, was reviewing a challenge to an EPA regu-
lation based on an alleged lack of substantial evidence. There
is no discussion either of standing or of Article III’s limits on
judicial power. The opinion, therefore, affords no solid
foundation for the proposition that Mallinckrodt asserts.°
In a related vein, Mallinckrodt argues that a grant of stand-
ing in this case would be tantamount to judicial usurpation of
regulatory authority because it would permit “private parties
to attack EPA risk assessments collaterally, using the very
risks EPA deemed acceptable to establish standing and lia-
bility, with no deference afforded to EPA’s policy judgment.”
Appellant’s Reply Br. at 27-28. But the ingredients that
comprise what Mallinckrodt sees as a recipe for disaster—the
relatively broad scope of citizens’ rights to sue polluters, the
existence of liability in such suits, and the. less-than-total
deference afforded to agency inaction—all turn on legislative
choices. Congress has elected to create a cause of action for
affected citizens notwithstanding the absence of any EPA-
sponsored standard. While we share Mallinckrodt’s belief
that it would be a usurpation of legislative prerogative for a
court to assume policymaking control over environmental
6 Mallinckrodt’s other citations—National Lime Ass’n v. EPA, 627
F.2d 416, 433 n. 48 (D.C.Cir.1980), and Industrial Union Department v.
American Petroleum Institute, 448 U.S. 607, 662-63, 100 S.Ct. 2844, 65
L.Ed.2d 1010 (1980) (Burger, C.J., concurring)—likewise concern judi-
cial review of agency regulations. They too are inapposite.
l4a
regulation, it would be no less offensive a usurpation for a
court to refuse to undertake a task validly entrusted to it by
Congress. In the last analysis, Article III requires a cog-
nizable injury; it does not speak to the wisdom of the
legislature’s actions in providing redress for that injury.
We add an eschatocol of sorts. In rejecting Mallinckrodt’s
arguments as to standing, we remain confident that Congress
has not asked federal courts to perform tasks that are beyond
their institutional competency. In our view, courts are cap-
able of assessing probabilistic injuries. Moreover, nuisance
principles contribute heavily to the doctrinal template that
underbraces statutes like RCRA, see, e.g., Cox v. City of
Dallas, 256 F.3d 281, 289 (Sth Cir.2001), and the tasks
involved in adjudicating environmental cases are well within
the federal courts’ accustomed domain. While courts can
(and do) benefit from available agency expertise, it is an
insupportable leap of logic to maintain that, in the absence of
such input, claims of injury are not cognizable at all.
That ends this aspect of the matter. For the reasons
discussed above, we hold that the plaintiffs have standing to
sue under RCRA § 7002(a)(1)(B). We turn, then, to the meat
of the appeal.
Ill. THE MERITS
This case revolves around the meaning and purport of
RCRA § 7002(a)(1)(B), a statute that, as described above,
allows citizens to sue persons or firms whose handling of
solid or hazardous waste “may present an imminent and
substantial endangerment to health or the environment.” /d.
The district court read this language as meaning that such
suits could be brought to alleviate reasonable medical or
scientific concerns. Me. People’s Alliance, 211 F.Supp.2d at
252. Mallinckrodt urges a more circumscribed interpretation.
To the extent that this interpretive controversy presents a
15a
question of statutory construction, we afford de novo review.’
See Lattab yv. Ashcroft, 384 F.3d 8,21 (1st Cir.2004).
An historical perspective illustrates the strength of the
current against which Mallinckrodt is swimming. Congress
enacted RCRA in 1976, Pub.L. No. 94-580, 90 Stat. 2795,
with the avowed intention of closing “the last remaining
loophole in environmental law, that of unregulated land dis-
posal of discarded materials and hazardous waste.” H.R.Rep.
No. 94-1491, pt. 1, at 4, reprinted in 1976 U.S.C.C.A.N.
6238, 6241. In its original iteration, RCRA § 7002 (now
codified in pertinent part at 42 U.S.C. § 6972(a)(1)(A))
offered citizens the opportunity to bring suit against a polluter
only when the polluter was alleged to be in violation of a
permit, standard, regulation, condition, requirement, or order
issued by EPA. At the same time, RCRA created a cause of
action, available exclusively to the EPA Administrator, for
cases in which the “disposal of any solid waste or hazardous
waste is presenting an imminent and substantial endanger-
ment to health or the environment.” RCRA § 7003 (codified
as amended at 42 U.S.C. § 6973(a)). In suits brought under
this latter provision, federal district courts were granted broad
remedial authority to “restrain” polluters and take “such other
action as may be necessary.” Jd.
Pertinently we think, Congress later loosened the standard
for liability under section 7003. This transpired four years
later when Congress passed the Solid Waste Disposal Act
Amendments of 1980. That legislation amended section 7003
by substituting the words “may present” for the words “is
presenting.” Pub.L. No. 96-482, § 25, 94 Stat. 2334, 2348.
7 Mallinckrodt has pitched this aspect of its appeal exclusively in terms
of statutory construction. Had it challenged the district court’s application
of the law to the facts, our review would have been more deferential. See,
e.g., Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 399 F.3d 248, 254 (3d
Cir.2005) (advocating “clear error” review).
l6a
In United States v. Price, 688 F.2d 204 (3d Cir.1982), a
samira’ RORA § ANS case, 2 district’ court’ found’ that a
landfill leaking toxic substances posed an imminent and
substantial danger to Atlantic City’s water supply but refused
to order a study of this hazard at the preliminary injunction
stage. Id. at 209. The Third Circuit reversed, ruling that the
use of the word “may” in RCRA § 7003 was intended to
make the provision “expansive.” Jd. at 213. In its view,
“Congress, by enacting section 7003, intended to confer upon
courts the authority to grant affirmative equitable relief to the —
extent necessary to eliminate any risks posed by toxic waste.”
Id. at 214.
Soon thereafter, Congress passed the Hazardous and Solid
Waste Amendments of 1984 (1984 amendments), Pub.L. No.
98-616, 98 Stat. 3221. The 1984 amendments introduced
a new provision, RCRA § 7002(a)(1)(B), into the statutory
scheme. Using language that tracked the post-1980 text of
RCRA § 7003, this new provision extended to citizens the
right to sue a polluter who may be causing an imminent and
substantial endangerment to public health or the environment.
Id. § 401, 98 Stat. at 3268-69. The Senate Report that
accompanied the 1984 amendments approvingly cited and
quoted Price on several occasions, specifically endorsing that
court’s conclusion that section 7003 is intended to give courts
the tools to “eliminate any risks posed by toxic waste.”
S.Rep. No. 98-284, at 59 (1983).
Around this same time, the Fourth Circuit decided another
RCRA § 7003 case, in which it flatly rejected the proposition
that “section 7003 was designed to control pollution only in
emergency situations.” United States v. Waste Indus., Inc.,
734 F.2d 159, 165 (4th Cir.1984). The court emphasized the
Statute’s use of the word “may” and cited Price w»provingly.
Price and Waste Industries have become guideposts for
courts endeavoring to interpret the counterpart language con-
tained in RCRA § 7002(a)(1)(B). To date, at least four of our
17a
sister circuits have construed that provision expansively. See
Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 399 F.3d 248,
258-59 (3d Cir.2005); Parker v. Scrap Metal Processors,
Inc., 386 F.3d 993, 1015 (11th Cir.2004); Cox, 256 F.3d at
299; Dague v. City of Burlington, 935 F.2d 1343, 1355 (2d
Cir.1991), rev'd in part on other grounds, 505 U.S. 557, 112
S.Ct. 2638, 120 L.Ed.2d 449 (1992). In taking this position,
all four courts have emphasized the preeminence of the word
“may” in defining the degree of risk needed to support RCRA
§ 7002(a)(1)(B)’s liability standard.
This expansiveness in construing the requisite degree of
risk has largely been matched in the courts’ assessment of the
gravity and immediacy of the threatened harm. With one
possible exception, the courts have agreed that the word
“substantial” implies serious harm.® See, e.g., Parker, 386
F.3d at 1015. There has, however, been some reluctance to
quantify the needed level of harm more precisely. See, e.g.,
Honeywell, 399 F.3d at 259. Imminence generally has been
read to require only that the harm is of a kind that poses a
near-term threat; there is no corollary requirement that the
harm necessarily will occur or that the actual damage will
manifest itself immediately. See Cox, 256 F.3d at 299-300.
Mallinckrodt argues that this long line of cases has con-
sistently misread Price (which, Mallinckrodt says, only con-
cerned remedial power, not scope of liability) and, in the
bargain, has disregarded the strictures imposed by the adjec-
tives “imminent” and “substantial.” We have not had occa-
sion to construe the reach of the citizen suit provision
contained in RCRA § 7002(a)(1)(B), and we are obligated to
offer our independent judgment on an issue of first impres-
sion here (which, as we shortly shall explain, coincides with
® The possible exception is the Second Circuit, which, to date, has not
committed to read into the statute a requirement of seriousness. See
Dague, 935 F.2d at 1355-56.
18a
the result reached by the other courts of appeals that have
confronted the question). Accordingly, we proceed to test
the mettle of the conventional construction of RCRA
§ 7002(a)(1)(B) against Mallinckrodt’s challenge.
The district court, following the interpretive trail blazed by
the four above-mentioned courts of appeals, employed the
conventional construction. It began by noting that the word
“endangerment” does not imply actual harm but, rather,
implies only potential harm. Me. People’s Alliance, 211
F.Supp.2d at 246. The court then noted that the statutory
standard is further relaxed because of Congress’s use of the
word “may.” Jd. As a result, the court found RCRA
§ 7002(a)(1)(B) to be a “sweeping provision indicat[ing]
Congress’s intent ‘to confer upon the courts the authority to
grant affirmative equitable relief to the extent necessary to
eliminate any risk posed by toxic waste.’” Jd. at 246-47
(quoting Dague, 935 F.2d at 1355 (quoting Price, 688 F.2d at
214) (emphasis supplied in Dague )).
The court read the statute’s adjectival elements in line with
the breadth of the authority granted. It found that the word
“imminent” connotes only that the “factors giving rise to [the
harm] are present, even though the harm may not be realized
for some time.” Jd. at 247. Relatedly, the court found that
the word “substantial” connotes no more than “reasonable
cause for concern that someone or something may be ex-
posed” to harm. Jd. (quoting Raymond K. Hoxsie Real Estate
Trust v. Exxon Educ. Found., 81 F.Supp.2d 359, 366
(D.R.1.2000) (internal quotation marks omitted)). A “reason-
able medical concern” would, the court said, be sufficient to
ground liability under the statute. Jd. at 252. The court’s
only explicit limitation on the availability of relief was when
“the risk of harm is remote in time, completely speculative in
nature, or de minimis in degree.” Jd. at 247 (quoting United
States v. Reilly Tar & Chem. Corp., 546 F.Supp. 1100, 1109
(D.Minn.1982)). Mallinckrodt balks at this interpretation of
19a
RCRA § 7002(a)(1)(B) for a host of reasons. It argues that
this construction ignores the plain meaning of the phrase
“imminent and substantial endangerment,” does violence to
the internal coherence of RCRA by overlooking the hierarchy
of standards contained within that statute, tampers with
Congress’s wise delegation of policymaking to an expert
agency, and frustrates congressional intent. We address each
of these criticisms in turn.
Mallinckrodt’s textual argument rests on the premise that
the courts that heretofore have explicated section 7002(a)
(1)(B)’s liability standard have been blinded by the glare of
the word “may” and have lost sight of the plain meaning of
the words “imminent and substantial.” In Mallinckrodt’s
view, the phrase “may present an imminent and substantial
endangerment,” when read as a whole, requires a risk of
grave harm that is more likely than not to occur. Mal-
linckrodt deduces this construction from a Rosetta Stone that
is part case law and part lexicography.
The word “endangerment,” Mallinckrodt says somewhat
tautologically, is “the state of being placed in danger.”
Webster’s Third New International Dictionary 748 (1993). In
that connection, it defines danger as “exposed to harm” or
“peril.” Jd. at 573 (excess capitalization omitted). To
elucidate the meaning of “may,” Mallinckrodt points to a
sixty-year old Supreme Court decision that defines “may,” as
used in section 2(a) of the Clayton Act, as “probably.” Corn
Prods. Refining Co. v. FTC, 324 U.S. 726, 738, 65 S.Ct. 961,
89 L.Ed. 1320 (1945). Finally, to give content to the phrase
“imminent and substantial,” Mallinckrodt invokes case law
suggesting that, in other environmental contexts, the un-
adorned word “endanger” implies a lower standard than that
denoted by the phrase “imminent and substantial endanger-
ment.” See Ethyl Corp. v. EPA, 541 F.2d 1, 20 n. 36
(D.C.Cir.1976) (en banc); Reserve Mining Co. v. EPA, 514
F.2d 492, 528 (8th Cir.1975) (en banc).
20a
Mallinckrodt’s textual argument makes sense—but only to
a point. While the decisions in Ethyl Corp. and Reserve
Mining are some evidence that, as of 1976, the phrase “im-
minent and substantial endangerment” was thought to denote
a heightened standard,” the relevant question is how that term
was understood in 1984 (when section 7002(a)(1)(B) was
enacted). The Senate Report on the 1984 amendments
defines the word “endangerment” separately from the phrase
“imminent and substantial.” See S.Rep. No. 98-284, supra, at
59. Mallinckrodt’s criticism fails to account either for that
circumstance or for Congress’s insertion, in 1980, of the word
“may” into section 7003 and its subsequent use in section
7002. That word does not appear at all in the statute
considered in Reserve Mining, 514 F.2d at 528 & n. 70 (citing
33 U.S.C. § 1364). In Ethyl Corp., one of the referenced
statutes does use the word “may,” but that court did not parse
the entire sentence and looked only to the words “imminent
and substantial.” See Ethyl Corp., 541 F.2d at 20 n. 36 (citing
42 U.S.C. § 300i). We also note that statutes referenced in
Ethyl Corp. and Reserve Mining bore the subtitle “Emergency
Powers”; in contrast, neither section 7002 nor section 7003
carry such a label.
The sockdolager, we think, is that “words are like chame-
leons; they frequently have different shades of meaning
depending upon the circumstances.” United States v. Ro-
main, 393 F.3d 63, 74 (ist Cir.2004). The terrain of the
Clayton Act and provisions specifically classified as con-
ferring emergency powers are sufficiently distinct in subject
? Mallinckrodt is correct in noting that the district court, which cited
both Ethyl Corp. and Reserve Mining, see Me. People’s Alliance, 211
F.Supp.2d at 246, failed to acknowledge that those cases were defining
the term “endangerment” in contrast with “imminent and substantial
endangerment.” This observation may weaken the persuasive power of
the district court’s reasoning, but it hardly answers the definitional
question. :
2la
matter from RCRA’s terrain. Thus, we are unprepared to say
that the nuances attached to the phrase “may present an
imminent and substantial endangerment” by judicial decisions
in those other contexts should be transplanted root and branch
into the differently textured soil of RCRA § 7002(a)(1)(B)—a
statute enacted by a different Congress at a different time
for a different purpose. We conclude, therefore, that Mal-
linckrodt’s textual argument does not carry the day: the
interpretive question before us cannot be resolved favorably
to Mallinckrodt on the basis of plain meaning alone.
Mallinckrodt next argues that the conventional interpre-
tation of section 7002(a)(1)(B) drains the phrase “imminent
and substantial” of any meaning because RCRA already
defines “hazardous waste” as material that will cause an
increase in mortality or serious illness or “pose a substantial
present or potential hazard to human health or the environ-
ment.” 42 U.S.C. § 6903(5). Thus, any release of hazardous
waste would satisfy the conventional construction of RCRA
§ 7002(a)(1)(B), and the requirement that such a release
create an “imminent and substantial endangerment” would
be superfluous.
This argument is easily dispatched. In terms, section
7002(a)(1)(B) applies to both solid waste and hazardous
waste. RCRA’s definition of “solid waste” does not share the
same characteristics as its definition of “hazardous waste,” so
to that extent the phrase “imminent and substantial” retains an
independent meaning.
Relatedly, Mallinckrodt asserts that the conventional inter-
pretation of “imminent and substantial endangerment” over-
looks RCRA’s commitment to a hierarchy of risks in which
“imminent and substantial endangerment” ranks at or near the
top. This argument builds on the idea that Congress em-
ployed relatively lenient risk standards elsewhere in RCRA.
See, e.g., RCRA § 4004(a), codified at 42 U.S.C. § 6944(a)
(providing that sanitary landfills must have “no reasonable
22a
probability of adverse effects on health or the environment”).
Correspondingly, the word “endangerment” is used in other
contexts in connection with “imminent danger of death or
serious bodily injury.” See, e.g., RCRA § 3008(e), codified at
42 U.S.C. § 6928(e) (defining the crime of “knowing endan-
germent”). Thus, the decision to require an “imminent and
substantial endangerment” must signify a special, harder-to-
achieve benchmark.
This argument has some superficial appeal. After all, it is a
cardinal rule that courts should strive to interpret statutes as a
whole and to give effect to every word and phrase. King v.
St. Vincent Hosp., 502 U.S. 215, 221, 112 S.Ct. 570, 116
L.Ed.2d 578 (1991); United States v. Ven-Fuel, Inc., 758 F.2d
741, 751-52 (ist Cir.1985). But the conventional interpre-
tation of section 7002(a)(1)(B) gives full effect to the “im-
minent and substantial endangerment” language; it merely
eschews the mechanical cross-referencing, not mandated by
Congress, that Mallinckrodt advocates. That, in itself, should
not raise eyebrows: where the various parts of a complicated
and multifaceted statutory scheme discuss significantly dif-
ferent topics and function within different paradigms, me-
chanical cross-referencing, not mandated by Congress, can
lead to confusion rather than clarity.
This is such a case. There is no meaningful parallelism
between section 7002(a)(1)(B) and the provisions that Mal-
linckrodt seeks to use as comparators. For example, RCRA
§ 3008(e) is a criminal provision. Given the divergent
concerns that drive criminal statutes as opposed to civil
remedial statutes, it should not be surprising that the same
word may vary in meaning as the context shifts. Indeed, if
“endangerment” as defined in section 3008(e) were to mean
precisely what it means in section 7002(a)(1)(B), the word
“imminent” would be rendered utterly redundant—the statute
would, in effect, require an imminent imminence—thus trans-
23a
gressing the very canon of construction that Mallinckrodt
labors to invoke.
Mallinckrodt offers a more sophisticated version of the
argument that RCRA creates a hierarchy of risks when it
posits that the statute’s most expansive remedies are reserved
for the greatest risks. In this regard, it points out that under
RCRA § 3019(b), EPA can commission a health assessment
whenever it believes that a landfill “poses a substantial
potential risk to human health,” 42 U.S.C. § 6939a(b); under
RCRA § 3013, EPA can order the owner or operator of a
facility to conduct monitoring, testing, and analysis as long as
the facility “may present a substantial hazard to human health
or the environment,” id. § 6934(a); and under RCRA § 7003,
which has a risk standard identical to RCRA § 7002(a)(1)(B),
EPA can act to protect the public health, see id. § 6973(a).
From this statutory melange, Mallinckrodt concludes that
only the immediate threat of grave harm is sufficient to
trigger such far-reaching remedies.
The notion that a hierarchy of risks and remedies exists
within RCRA is not easily disproved. What is fairly clear,
however, is that any such hierarchy is well-disguised; if one
exists, it seems more a product of fortuity than a product of a
purposeful legislative initiative. We explain briefly.
Section 3019(b) was first enacted in 1984, Pub.L. No.
98-616, § 247, 98 Stat. 3221, 3265; section 3013 in 1980,
Pub.L. No. 96-482, § 17(a), 94 Stat. 2334, 2344; and section
7003 (previously cited) in 1976 (though that provision was
amended both in 1980 and 1984). Given that the changes
were made to different subtitles of the statute at different
times, such incrementalism weakens (perhaps to the van-
ishing point) any inference that Congress specifically in-
tended a strict hierarchy of harms. If Congress actually wants
a delineated hierarchy of risks and remedies, it will have to
say so more distinctly. Cf King, 502 U.S. at 222, 112 S.Ct.
24a
570 (construing that “differences do not necessarily make
hierarchies”).
This brings us to Mallinckrodt’s separation-of-powers
argument. It asseverates that RCRA’s allocation of policy-
making authority to EPA is such that the citizen suit provision
must be viewed as an “interstitial, emergency-type remedy.”
Appellant’s Br. at 45. Mallinckrodt asserts that this policy-
aking authority necessarily includes responsibility for setting
pollution standards and that, in setting such standards, EPA,
consistent with the tradeoffs inherent in setting virtually any
standard, does not aspire to eliminate all risks.
This assertion is founded on an indisputable verity:
the principal responsibility for implementing and enforcing
RCRA resides with EPA, not with citizens acting as private
attorneys general. See Meghrig v. KFC Western, Inc., 516
U.S. 479, 483-84, 116 S.Ct. 1251, 134 L-Ed.2d 121 (1996).
We disagree, however, with Mallinckrodt’s contention that
the conventional interpretation of section 7002(a)(1)(B)—the
interpretation espoused by our sister circuits and by the court
below—is inconsistent with this scheme because it allows
courts to second-guess EPA’s judgments too freely and af-
fords relief based upon harms that EPA has found acceptable.
Mallinckrodt attempts to bolster this argument by citing a
plethora of cases for the proposition that environmental
standards should be set by EPA, not the courts. See, e.g.,
Amoco Oil Co. v. EPA, 501 F.2d 722, 735 (D.C.Cir.1974).
This proposition is unremarkable, and we take no issue with
it. We agree, moreover, that courts must show appropriate
respect for EPA’s judgments. See Envtl. Def. Fund, 598 F.2d
at 83-84. But allowing citizen suits to proceed is not the
functional equivalent of allowing courts to hijack EPA’s
regulatory authority and weave safety standards out of
whole cloth.
25a
The case at hand illustrates this point. Although EPA
(acting in concert with MDEP) was leaning toward the
adoption of media protection standards that would not have
required downriver remediation, no standards had been
adopted at the time the district court acted (nor, for that
matter, does the record suggest that any have been adopted up
to the present time). Furthermore, EPA has never taken the
position—or even so much as hinted—that correction of the
Plant’s effects on downriver pollution is bad policy. Thus,
this is not a situation in which a court has presumed to grant
relief that flies in the face of an express EPA authorization of
certain conduct.
We add, moreover, that the district court has been sensitive
to separation-of-powers concerns. On three different occa-
sions, it considered and thoughtfully rejected primary juris-
diction challenges.'® And the court sensibly left open the
possibility that “primary jurisdiction concerns could arise in
the future.” Me. People’s Alliance, 211 F.Supp.2d at 255.
That presumably would cover the contingency of changed
circumstances that would eventuate should EPA, some day,
actually engage in an enforcement action pertinent to the
condition of the lower Penobscot.
The fact that courts retain some latitude in this area is not
in any sense incompatible with the statutory scheme. There
are four different ways that EPA can preempt a citizen
suit—and all four require that EPA itself take diligent
steps to remedy looming environmental harm. See RCRA
§ 7002(b)(2)(B) (codified at 42 U.S.C. § 6972(b)(2)(B)).
That same provision narrowly circumscribes EPA’s preemp-
tive power; it states that, when preemption is premised on an
EPA order, citizen suits are “prohibited only as to the scope
and duration of the administrative order.” The short of it is
'0 Mallinckrodt has opted not to revisit the district court’s rejection of
these challenges in this appeal.
26a
that Congress has told the federal courts that they are not
required to steer clear of an area simply because that area
might be a focus of future EPA activity.''
Mallinckrodt tries to embellish its separation-of-powers
argument in another way as well; it maintains that section
7002(a) embodies a strong preference for permit-violation
Suits as opposed to imminent and substantial endanger-
ment suits. This attempted embellishment does not with-
stand scrutiny.
When not premised on the title related to hazardous waste,
a permit-violation suit may be brought after a 60-day waiting
period while an imminent and substantial endangerment suit
requires observance of a 90-day waiting period. Compare
RCRA § 7002(b)(1) (codified at 42 U.S.C. § 6972(b)(1)),
with RCRA § 7002(b)(2) (codified at § 6972(b)(2)). This is
the only substantive difference between permit-violation suits
and suits alleging imminent and substantial endangerment.
Given the relatively minor nature of that lone disparity, we
conclude, without serious question, that the structure of the
statutory scheme does not offer any persuasive evidence that
Congress sought to disfavor suits alleging imminent and
substantial endangerment.
Mallinckrodt’s emphasis on statutory structure includes an
assertion that giving section 7002(a)(1)(B) a broad reading
will render nugatory the right to bring permit-violation ac-
tions and the like under RCRA § 7002(a)(1)(A). See Appel-
lant’s Reply Br. at 15-16 (querying whether, if “there is a big
hole in a fence for the big cat, need there be a small one
for the small one?”) (citation and internal quotation marks
omitted). The flaw in this argument, as it pertains to this
'' This is not meant to suggest that a private party can interfere with an
EPA prosecution or disturb the finality of a negotiated settlement. The
opposite is true. See Supporters to Oppose Pollution, Inc. v. Heritage
Group, 973 F.2d 1320, 1323-25 (7th Cir.1992).
27a
case, is that the two holes were drilled at different times.
Congress placed the “imminent and substantial endanger-
ment” gloss on RCRA’s citizen suit provision eight years
after making provision for permit-violation suits. Thus, the
more appropriate question is: “If Congress deliberately cut a
second hole in the fence, is there any reason not to accept the
obvious premise that Congress wanted to increase the ease
with which cats of all sizes could come through the fence?”
Insofar as Mallinckrodt theorizes that courts lack the
competence to function under the conventional interpretation
of RCRA § 7002(a)(1)(B), we reject its thesis. To be sure,
Mallinckrodt cites case after case for the proposition that
forging policy is a task that non-expert, non-accountable
judges should not undertake. See, e.g., Chevron U.S.A., Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 866, 104
S.Ct. 2778, 81 L.Ed.2d 694 (1984); United States v. Gilman,
347 U.S. 507, 511-13, 74 S.Ct. 695, 98 L.Ed. 898 (1954).
Some of these cases suggest that judicial policymaking in the
environmental sphere is especially inappropriate because
judges lack special competence to interpret complex scien-
tific, technical, and medical data. See, e.g., Safe Food &
Fertil. v. EPA, 365 F.3d 46, 49 (D.C.Cir.2004).
This view sells the federal judiciary short: federal courts
have proven, over time, that they are equipped to adjudicate
individual cases, regardless of the complexity of the issues
involved. Federal courts are often called upon to make eval-
uative judgments in highly technical areas (patent litigation is
an excellent example).'” Performing that quintessentially
judicial function in the environmental sphere is not tanta-
mount to rewriting environmental policy. To the contrary,
what the lower court did here—listening to the testimony of
12 Indeed, even on Mallinckrodt’s crabbed interpretation of section
7002(a)(1)(B), courts would have to engage in exactly the type of evi-
dence-weighing that Mallinckrodt says is beyond their competence.
28a
expert witnesses, assessing their credibility, and determining
whether or not a litigant has carried the devoir of persua-
sion—is very much within the core competency of a federal
district court.
As a last-ditch measure, Mallinckrodt strives to convince
us that Congress’s revealed intent, as reflected in the leg-
islative history, counsels in favor of a narrow reading of
section 7002(a)(1)(B). We are not persuaded.
The argument shapes up along the following lines. Citing
S.Rep. No. 98-284, supra, at 56, Mallinckrodt reads this
archival information as confirming that section 7002(a)(1)(B)
was intended to operate “exactly the same” as section 7003.
Building on that foundation, Mallinckrodt notes that section
7003, when enacted in 1976, was envisioned as a means
of providing “emergency authority.” S.Rep. No. 94-988,
at 16 (1976). This gloss, though artful, mixes plums and
pomegranates.
What is relevant to a congressional statement, in 1984, that
section 7002(a)(1)(B) is intended to operate in the same way
as section 7003, is not how Congress viewed section 7003 at
the time of its original passage but, rather, how Congress
understood section 7003 in 1984. This is especially sig-
nificant because section 7003 was not worded the same in
1984 as it was in 1976. We think it is clear that the 1980
amendment to the provision, substituting “may present” for
“is presenting,” fundamentally altered how this provision was
understood.
The proof of the pudding is in the legislative archives. We
refer particularly to the way in which the provision was
discussed during testimony taken in anticipation of the 1984
amendments.
At that time, the House of Representatives was told
authoritatively that section 7003 contained “very broad and
general statutory language” and that the government, “over
29a
the last several years,” had been advocating “as broad an
interpretation [of it] as possible.” Solid Waste Disposal Act
Amendments of 1983: Hearing on S. 757 Before the Sub-
comm. on Envtl. Pollution of the S. Comm. on Env’t and
Public Works, 98th Cong. 17, 29 (1983) (statement of Carol
Dinkins, Asst. Atty. Gen., Land and Nat. Res. Div., Dep’t of
Justice). It also learned that the Department of Justice viewed
section 7003 as “loosely worded,” so that it conveyed “extra-
ordinary, broad law enforcement powers.” /d. at 110, 120.
The Senate’s discussion of section 7003 in the course of
considering the 1984 amendments likewise suggests an ex-
pansive view of the provision. The Senate Report enthus-
iastically quotes Price for the proposition that section 7003 is
“intended to confer upon the courts the authority to grant
affirmative equitable relief to the extent necessary to
eliminate any risks posed by toxic wastes.”!? S.Rep. No. 98-
284, supra, at 59 (quoting Price, 688 F.2d at 214). It went on
to observe that the “primary intent of the provision is to
protect human health and the environment.” Jd. Thus, there is
good reason to believe that Congress, intending to create a
provision modeled along the lines of section 7003, under-
stood that section as offering much more than emergency
authority.
The legislative history is also at odds with Mallinckrodt’s
argument that the conventional interpretation of section
7002(a)(1)(B) usurps EPA’s policymaking role. In parsing
this legislative history, it is important to recognize that
Congress, in 1984, was acting against a background finding
that there were “serious gaps” in RCRA, that EPA’s enforce-
ment actions were characterized by “inadequate effort,” and
'3 Mallinckrodt’s major criticism of the courts that have relied upon
Price when construing section 7002(a)(1)(B) is that liability was not
contested in Price and that, therefore, the quoted language must have
referred to remedial authority. This criticism is undercut by the fact that
the Senate Report quotes Price when discussing the liability standard.
30a
that EPA “ha[d] not been diligent in vigorously pursuing a
tough enforcement program.” H.R.Rep. No. 98-198, pt. 1, at
20 (1983), reprinted in 1984 U.S.C.C.A.N. 5576, 5578-79.
Congress had heard, and apparently credited, testimony from
a former Assistant Attorney General about “an astonishing
two years of mismanagement at EPA in which the en-
forcement of the hazardous waste disposal laws suffered
greatly.” Jd., pt. 3, at 6, reprinted in 1984 U.S.C.C.A.N.
5636, 5641. Given this mise-en-scéne, it seems counter-
intuitive to suggest that Congress intended to erect an en-
forcement structure built on exaggerated deference to EPA.
To be sure, the legislative history reflects the anticipation
that “courts will accord some deference to [EPA’s] technical
findings concerning the nature and extent of endangerment.”
S.Rep. No. 98-284, supra, at 56. But we do not think that
“some deference” means either total obeisance or blind alle-
giance. Congress desired a “tough enforcement program”
and found that EPA had not been “diligent in vigorously
pursuing” one. Citizen suits were meant to fill the resultant
void.
We are unimpressed by Mallinckrodt’s citation to language
in the House Report to the effect that section 7002(a)(1)(B)
was designed to create a “limited right” for citizens to sue.
H.R.Rep. No. 98-198, supra, pt. 1, at 53, 1984 U.S.C.C.A.N.
at 5612. The very next sentence in that report explains the
nature of the limitation, namely, that this “right can only be
exercised if the Administrator (following notice of the in-
tended litigation) fails to file an action under 7003.” Jd. The
To the extent that Congress, within this new regime, intended to
allow EPA to defend its own policymaking prerogatives, it appears to
have placed the onus on EPA, rather than the courts, to stand as the sentry
at the gates. See S.Rep. No. 98-284, supra, at 56 (explaining that “if the
Administrator believes a citizen suit . . . is not being prosecuted in the
public interest, he may exercise the right to intervene . . . and seek from
the court restrictions or conditions upon the citizen suit”).
3la
conventional interpretation of the statute does not in any way
offend this directive.
Finally, Mallinckrodt spotlights a comment from the floor
debate on section 7002, in which the bill’s sponsor char-
acterized the provision as giving citizens the power “to abate
the most serious kinds of hazardous waste situations: Those
that may present an imminent and substantial endanger-
ment.” 130 Cong. Rec.2081, 2815 (1984) (statement of Sen.
Mitchell). This one remark cannot outweigh the substantial
countervailing evidence that the citizen suit provision was
intended to empower private citizens by granting them
relatively broad authority to litigate when EPA had not acted
in the face of a reasonable prospect of serious, near-term
harm. See Weinberger v. Rossi, 456 U.S. 25, 35, 102 S.Ct.
1510, 71 L.Ed.2d 715 (1982).
Legislative history is often a mixed bag. Parties frequently
are able to mine nuggets from it selectively, picking and
choosing isolated statements that serve particular (sometimes
conflicting) ends. Here, the legislative history is less than
pellucid. On the whole, however, it tends to support an
expansive reading of the “imminent and substantial endanger-
ment” standard for liability under RCRA § 7002(a)(1)(B).
To sum up, the combination of the word “may” with the
word “endanger,” both of which are probabilistic, leads us to
conclude that a reasonable prospect of future harm is ade-
quate to engage the gears of RCRA § 7002(a)(1)(B) so long
as the threat is near-term and involves potentially serious
harm. The language, structure, purpose, and legislative his-
tory of the provision will not comfortably accommodate the
more restricted reading that Mallinckrodt espouses. While
there may be good and wise reasons to adopt a regime in
which EPA determinations of environmental liability are
exclusive, it is Congress’s place, not ours, to construct such a
regime. To this date, Congress has not done so.
32a
Given our conclusion that the conventional interpretation
of RCRA § 7002(a)(1)(B) is correct, the remainder of the
liability inquiry falls neatly into place. None of Mal-
linckrodt’s arguments persuade us that the district court either
misconstrued this standard or misapplied it to the facts of this
case. While an imminent and substantial endangerment
requires a reasonable prospect of a near-term threat of serious
potential harm, the court below made supportable findings
that suffice to bring this case within the compass of that
standard. See, e.g., Me. People’s Alliance, 211 F.Supp.2d at
245 (concluding that methylmercury is a “highly toxic sub-
stance”); id. at 251 (concluding that, in an aquatic system,
“methylation is a continuous process that can go on for
decades”). Based on these and other well-founded findings,
the plaintiffs established that the potential risk from mercury
is serious and likely to be present here and now. In tum,
these findings support a conclusion that, as the district court
held, there may be an imminent and substantial endangerment
to the lower Penobscot River. No more is exigible.
IV. THE REMEDY
Our environmental odyssey is not yet finished. Mal-
linckrodt contends that the district court committed an abuse
of discretion in ordering it to fund a study of the lower
Penobscot.
This contention is rooted in the notion that a court must
balance the relevant harms before granting injunctive relief
under an environmental statute—even if the statute spe-
cifically authorizes that type of relief. See United States v.
Bethlehem Steel Corp., 38 F.3d 862, 867 (7th Cir.1994).
Mallinckrodt would have us achieve this balance by applying
the familiar four-part framework for determining the appro-
priateness of wnjunctive relief. Under that framework, the
injunction-seeker “must demonstrate: (1) that it has suffered
an irreparable injury; (2) that remedies available at law, such
as monetary damages, are inadequate to compensate for that
33a
injury; (3) that, considering the balance of hardships between
the [parties], a remedy in equity is warranted; and (4) that the
public interest would not be disserved by a permanent
injunction.” eBay Inc. v. MercExchange, L.L.C., __ US.
__»___, 126 S.Ct. 1837, 1839, 164 L.Ed.2d 641 (2006).
Conceptually, we agree with Mallinckrodt that a trial court,
in an environny ntal case, should consider the balance of
relevant harms before granting injunctive relief, even though
the statute itself authorizes such relief. The familiar four-part
framework for injunctive relief is a suitable guide in such
situations. We caution, however, that the operation of that
framework is inevitably colored by the nature of the case
and the purposes of the underlying environmental statute
(here, RCRA).
Against this backdrop, Mallinckrodt insists that the district
court mishandled the third of the four enumerated elements
by failing adequately to account for the onerous hardships
that the study would impose and contrast those hardships with
the meager benefits that the study might generate. In a
nutshell, Mallinckrodt’s position is that the study will saddle
it with a staggering economic burden—a burden so open-
ended that the overall cost cannot be predicted with any
assurance—yet will yield supposed benefits to the plaintiffs’
members that are at best speculative and at worst ephemeral.
In this regard, Mallinckrodt stresses that it is an open question
whether the lower Penobscot is actually in need of any
remediation.'°
'S Mallinckrodt suggests that because Dr. Livingston acknowledged a
dearth of information conceming the current condition of the lower
Penobscot, the district court did not have sufficient facts before it to make
an informed weighing. It also suggests that the court neglected to accord
due respect to EPA’s tentative view that the proposed media protection
standards would adequately ensure the river’s safety. Whatever force
these suggestions may have—and we do not imply that they have any—
they go mainly to liability, not remedy.
34a
One difficulty with Mallinckrodt’s position is that it treats
this injunction like a garden-variety injunction and, in the
bargain, undervalues the extent of the equitable discretion
possessed by a district court after a finding of liability under
RCRA § 7002(a)(1)(B). While Mallinckredt’s hardships are
relevant to the acceptability of a RCRA remedy, the argument
that hardship must always be outweighed by deliverable
benefits offends the logic of Price. Even on Mallinckrodt’s
restrictive reading of that decision, Price holds that “Con-
gress sought to invoke the broad and flexible equity powers
of the federal courts in instances where hazardous wastes
- threaten [ ] human health.” 688 F.2d at 211.
Ironically, Mallinckrodt dresses this argument in the
raiment of a defense of judicial prerogatives. It cites Wein-
berger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct.
1798, 72 L.Ed.2d 91 (1982), for the proposition that judges
should not lightly assume that Congress has stripped courts of
their equitable discretion. But that is a red herring: while it is
true that a district court is not commanded, regardless of
the circumstances, to issue an injunction after a finding of
liability, the court below was under no misapprehension on
this score. In reality, Mallinckrodt wishes to restrict, not
preserve, the equitable discretion of the district courts, and
the case law that it cites is therefore beside the point.
In reviewing a district courts exercise of its equitable
discretion under such circumstances, we think it fully appro-
priate to acknowledge the statutory scheme under which
liability was found. Given the strong statement in Price,
embraced by the Senate Report, advocating the exercise of
equitable remediation of environmental hazards, we perceive
a congressional thumb on the scale in favor of remediation.
With this backdrop in place, we are unwilling to say that the
district court abused its discretion either by starting with the
proposition that its primary concern ought to be how best to
remedy a potentially serious near-term environmental hazard
35a
or by granting relief notwithstanding the absence of a show-
ing that the remedy’s demonstrable benefits exceeded its
probable costs.
This is not to say that the costs associated with injunctive
relief are immaterial; we can imagine circumstances in which
the expense entailed in carrying out a particular remedial plan
might dwarf the potential benefits to the environment or to
human health. Here, however, the anodyne chosen by the
district court does not seem so vastly disproportionate to the
threatened harm as to warrant, from the vantage point of a
cold appellate record, a recalibration of the balance.
This conclusion is reinforced by the fact that Mallinckrodt
has not identified any less burdensome, more cost-effective
remedy that the court could have imposed to address the
perceived environmental harm.'° Where, as here, a polluter
has failed to articulate a “nice adjustment and reconciliation
between the public interest and private needs,” Hecht Co.
v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 88 L.Ed. 754
(1944), a burdensomeness argument rarely will gain much
traction.
Taking a slightly different tack, Mallinckrodt characterizes
the study-plan order as unfair. It should not be forced to pay
'© Mallinckrodt does mention, albeit in passing, that the district court
committed an abuse of discretion in not “requiring an estimate of [the
study’s] overall costs.” Appellant’s Br. at 62. Although it certainly would
be preferable for a court to establish with some exactitude the extent of
the financial burden imposed by a particular remedy, that degree of
precision is sometimes infeasible or impractical. The court below was
cognizant of this shortcoming and took pains to note in the order
approving the study plan, entered on August 10, 2005, that “if necessary
and at the appropriate time, the Court will require the preparation by the
Study Panel of a budget formulation for any remedial plan or effort which
may result from the first phase” of the study. Given the complex nature of
the situation and the existence of this safety valve, we find the absence of
more definitive cost parameters tolerable.
36a
the entire cost of the study, it complains, because it is not the
only entity to have contributed to the pollution of the lower
Penobscot. That plaint rings hollow. While Mallinckrodt
was not the sole source of mercury contamination, it was a
dominant one, so in that sense its claim of inequitable treat-
ment comprises more cry than wool.
At any rate, RCRA liability, generally speaking, is joint
and several. See Cox, 256 F.3d at 301 n. 37. The joint and
several nature of environmental liability makes it fitting to
hold a single polluter responsible for the totality of the
damage where, as here, the harm is indivisible. See id.
We have said enough on this score. Once liability has been
found, equitable relief in RCRA citizen suits 1s largely in the
informed discretion of the trial court. For aught that appears,
the court below did not abuse this discretion in its choice of a
condign remedy.
V. CONCLUSION
We need go no further. Despite an impressive array of
arguments, skillfully presented by extraordinarily able coun-
sel, Mallinckrodt has not persuaded us that the plaintiffs lack
standing to sue, that its cramped interpretation of RCRA
§ 7002(a)(1)(B) is what Congress had in mind, or that the
district court acted outside the realm of its discretion in
fashioning a remedy for the threatened harm. Consequently,
we uphold the district court’s rulings in all respects.
Affirmed.
37a
APPENDIX B
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
Civil No. 00-69-B-C
MAINE PEOPLES ALLIANCE, and
NATURAL RESOURCES DEFENSE COUNCIL, INC.,
Plaintiffs,
Vv.
HOLTRACHEM MANUFACTURING COMPANY, LLC, and
MALLINCKRODT, INC.,
Defendants.
ORDER APPROVING STUDY PLAN
The Study Panel has submitted its “Study Plan for Eval-
uation of the Mercury Contamination of the Penobscot River/
Estuary, Maine” dated July 2005 (hereafter “Study Plan”) to
the Court and the parties have now submitted their comments
and objections thereto. After reviewing the Study Plan and
giving full consideration to the issues raised by the parties in
their comments and objections to the Study Plan, the Court is
satisfied, based on the expertise and the thorough scientific
efforts and analyses of the Study Panel and its recom-
mendations, that the Study Plan provides appropriate proce-
dures and mechanisms to determine: (1) the extent of the
harm resulting from mercury contamination to the Penobscot
River/ Bay system south of the Holtrachem plant site at
Orrington, Maine; (2) the need for and feasibility of a
remediation plan to effectively address the present effects of
such existing harm, if any; and (3) the elements of and
timetable for the execution of the appropriate remediation
plan to address the harm existing as a result of mercury
38a
contamination. However, if necessary and at the appropriate
time, the Court will require the preparation by the Study
Panel of a budget formulation for any remedial plan or effort
which may result from the first phase of the Study Plan for
submission to the Court and the parties before commence-
ment of such remedial plan or effort.
Accordingly, the Court APPROVES the Study Plan and
ORDERS that the Study Panel proceed forthwith with its
selection of a Project Manager and the work outlined in the
Study Plan.
/s/ Gene Carter
GENE CARTER
Senior United States District Judge
Dated at Portland, Maine this 10th day of August, 2005.
39a
APPENDIX C
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
No. 00-69-B-C
MAINE PEOPLES ALLIANCE and
NATURAL RESOURCES DEFENSE COUNCIL, INC.,
Plaintiffs.
v.
HOLTRACHEM MANUFACTURING COMPANY, LLC, and
MALLINCKRODT, INC.,
Defendants.
Gene Carter, Senior District Judge.
ORDER FOR ADDITIONAL FUNDS FOR THE
STUDY OF THE PENOBSCOT RIVER
The Court ORDERS that Defendant Mallinckrodt, Inc.
deposit into the registry of this Court, on or before August 15,
2005, a check made payable to “Clerk, U.S. District Court” in
the amount of Two Hundred Thousand Dollars ($200,000.00)
to be deposited into a separate account designated “The
Penobscot River Study Panel Fund” and to be utilized for the
funding of the Study Panel for the Penobscot River. Once
deposited, such funds are to be drawn only on written order of
the Court.
/s/Gene Carter
GENE CARTER
Senior District Court Judge
Dated at Portland, Maine this 29th day of July, 2005S.
40a
APPENDIX D
UNITED STATES DISTRICT COURT
D. MAINE
No. CIV. 00-69-B-C.
MAINE PEOPLE’S ALLIANCE and
NATURAL RESOURCES DEFENSE COUNCIL, INC.,
Plaintiffs,
Vv.
HOLTRACHEM MANUFACTURING COMPANY, LLC and
MALLINCKRODT INC.,
Defendants.
July 29, 2002
MEMORANDUM OF DECISION AND ORDER
GENE CARTER, District Judge.
“When dealing with any non-linear system, especially a
complex one, you can’t just think in terms of parts or aspects
and just add things up and say that the behavior of this and
the behavior of that, added together, makes the whole thing.
With a complex non-linear system you have to break it up
into pieces and then study each aspect, and then study the
very strong interaction between them all. Only [in] this way
can you describe the whole system.”
—Murray Gell-Mann, Nobel Laureate, quoted in T.L.
Friedman, THE LEXUS AND THE OLIVE TREE,
Anchor Books (2000).
The Maine People’s Alliance (“MPA”) and the Natural
Resources Defense Council, Inc. (““NRDC”) have brought this
citizen suit under 42 U.S.C. § 6972(a)(1)(B) of the Resource
Conservation and Recovery Act (“RCRA”). Responsibility
4la
for the implementation and enforcement of RCRA rests
principally with the Administrator of the Environmental
Protection Agency (“EPA”), 42 U.S.C. §§ 6903(1), 6928,
6973, but the statute also contains a citizen suit provision,
which permits private citizens to enforce its provisions in
some circumstances. See 42 U.S.C. § 6972. In this case, the
remaining Defendant Mallinckrodt Inc., formerly owned and
operated a chemical manufacturing facility in Orrington,
Maine (“the facility” or “the plant”). The parties have
stipulated that the plant, under the ownership of Mallinckrodt
and subsequently of others, discharged mercury directly into
the Penobscot River and released mercury-tainted air emis-
sions. Mallinckrodt is involved in an ongoing regulatory
process with the EPA and the Maine Department of Envir-
onmental Protection (“MDEP”) that is aimed at addressing |
mercury contamination stemming from the plant site.
Though it is anticipated in some quarters that this process will
generate a remediation plan for the plant site and an area of
the Penobscot River adjacent to the plant known as “the
southern cove,” as of trial no “media protection standards”
were finalized from that undertaking. Mallinckrodt has
agreed, however, to take certain steps to remediate the plant
site as well as the southern cove. The remediation plan being
considered does not address the Penobscot River south of the
plant. Tr. 2A at 17.
At trial, the evidence focused on the status of the
Penobscot River south of the plant and the upper Penobscot
Bay (“downriver”). Plaintiffs assert that mercury-containing
water discharge and air emissions from the plant, under Mal-
linckrodt’s ownership, have contaminated the lower Penob-
scot River, creating an imminent and substantial endanger-
ment to the health and environment. Plaintiffs seek injunctive
relief, in the form of an order requiring that Mallinckrodt
undertake an independent scientific study of mercury con-
tamination in that portion of the Penobscot downriver of the
plant and to develop and implement a remediation plan. See
42a
42 U.S.C. § 6972(a) (authorizing district courts “to restrain
any person who has contributed or who is contributing to the
past or present handling, storage, treatment, transportation, or
disposal of any solid or hazardous waste . . . , to order such
person to take such other action as may be necessary, or
both.”); see also Meghrig v. KFC Western, Inc., 516 U.S.
479, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996).
I. FACTS
The following facts are either stipulated by the parties or
found by the Court based on the evidence presented at trial.
A. The Ownership History of the Plant
- The chlor-alkali plant in Orrington, Maine that is the
subject of this action was built in 1967. See Joint Ex. 65 { 1.
From December 9, 1967 to April 30, 1982, Mallinckrodt Inc.,
or one of its affiliates (collectively “Mallinckrodt”) owned
and operated the plant and the 240-acre site on which it is
located on the banks of the Penobscot River. See Joint Ex. 65
q 1. Mallinckrodt Inc., then known as International Minerals
and Chemical Corporation (“IMC”), was the first entity to
own the plant.' See Joint Ex. 65 J 1. From 1982 to 1994, the
plant was owned and operated by Hanlin Group, Inc.
(“Hanlin”) (d/b/a LCP Chemicals and Plastics, Inc.). See
Joint Ex. 65 J 3. In 1991, Hanlin and its related companies
filed a voluntary bankruptcy petition pursuant to Chapter 11
of the Bankruptcy Code.” See Joint Ex. 65 4 3. Defendant
HoltraChem Manufacturing Company, LLC. (“HoltraChem”)
owned and operated the plant from 1994 until the plant
ceased operation in September 2000.° See Joint Ex. 65 §j 4.
' Sobin Chlor-Alkali was an affiliate of IMC. IMC changed its name to
IMCERA Group Inc. in 1990 to Mallinckrodt Group Inc. in 1994, and to
Mallinckrodt Inc. in 1996. See Joint Ex. 65 4 1.
? Hanlin is not a Defendant in this action. See Joint Ex. 65 ¥ 3.
3 HoltraChem continues to own the plant, but dissolved as a corporate
entity in March 2001. See Joint Ex. 65 | 4. Since that time, HoltraChem
43a
B. Mercury Releases During Mallinckrodt’s
Ownership of the Plant
The plant began operation on December 9, 1967. See Joint
Ex. 64 { 1. Peter DeAngelis was responsible for operation of
the plant from its start up through April 30, 1982, the full
-period of Mallinckrodt’s ownership and operation of the
plant. See Joint Ex. 64 § 1. The facility production proc-
ess utilized mercury; there were approximately 82 tons of
mercury on site at any one time. See Joint Ex. 64 § 2.
Mercury losses from the facility from December 1967 into
June 1970 were a major economic concern for the plant. See
Joint Ex. 64 4 3. Mr. DeAngelis directed A.L. MacMillan, a
plant employee, to estimate mercury iosses from the facility.
See Joint Ex. 64 4 3. Mr. MacMillan prepared a memorandum
dated March 18, 1970, estimating average daily mercury
production losses at 107 pounds, including 19 pounds of
mercury daily lost through brine sludge, an unknown quantity
of which was recycled back into the system.‘ See Joint Ex.
64 4 3.
The plant sent mercury-contaminated brine sludge into its
sewer, then through the facility’s outfall directly into the
Penobscot River, every day, continuously, from December 9,
1967, into June 1970. See Joint Ex. 64 7 4. The plant did not
attempt to estimate mercury concentration in brine sludge
from 1967 to 1982, and, although Mr. DeAngelis is unaware
has neither defended itself in this action nor participated in ongoing
corrective action activities under the 1993 Consent Decree. See Joint Ex.
65 4 4; Joint Ex. 8. The Clerk of this Court has entered a default order
against HoltraChem in this action on February 5, 2002. See Docket No.
69; Joint Ex. 65 4] 4. On February 18, 2002, the Court reserved ruling on
Plaintiffs’ Motion for Default Judgment Against HoltraChem Manufac-
turing. See Endorsement Docket No. 44.
* Mr. DeAngelis does not have a basis for a more accurate estimate
than the one set forth in the MacMillan memorandum, but disputes that
the total amount was lost from the facility. See Joint Ex. 64 4 3.
44a
of information about mercury concentration in the facility’s
brine from 1967 to 1982, mercury discharges declined over
time. See Joint Ex. 64 4 4.
The State of Maine did not know from December 1967 into
June of 1970 that the facility was discharging mercury to the
Penobscot River. See Joint Ex. 64 | 5. The facility did not
state on its application for a waste discharge license that it
was discharging mercury, because the facility first became
aware of laboratory results showing mercury in its effluent in
April 1970. See Joint Ex. 64 4 5. Mallinckrodt constructed
Mac’s Pond, the first landfill on the site, around June 15,
1970. Mac’s Pond was located on a downgrade between the
facility and the Penobscot River. See Joint Ex. 64 4 7. Until
the creation of Hickel’s Pond in July 1970, the facility put
brine sludge in Mac’s Pond, which was open and unlined.
See Joint Ex. 64 7. Mr. DeAngelis believes that the plant’s
own estimate of 1.5 to 2.5 pounds of mercury per day in the
effluent discharged through the facility’s outfall is fairly
accurate for the period from the plant’s startup to the con-
struction of Mac’s Pond, based on the April 1970 laboratory
results. See Joint Ex. 64 J 6. However, this estimate does not
include mercury discharged through air emissions or
groundwater and Mallinckrodt admits that more mercury was
discharged from the through air emissions than through the
facility outfall. See Joint Ex. 64 { 6.
On July 27, 1970, the United States brought an action
against Mallinckrodt.* See Joint Ex. 64 4 8. The complaint
alleged that effluent waste daily and continuously discharged
to the Penobscot River “contain[ed] significant quantities of
mercury or mercury compounds suspended in solution.”° See
5 The complaint was amended on August 21, 1970, See Joint Ex. 64
q 8.
® Mr. DeAngelis had no information with which to dispute those alle-
gations. See Joint Ex. 644 8.
45a
Joint Ex. 64 ¢ 8. In response to the federal suit, in July 1970
the facility constructed Hickel’s Pond to divert process waste.
See Joint Ex. 64 § 9. Hickel’s Pond, which was later lined,
was located close to the Penobscot River, on a down slope
from the plant buildings. See Joint Ex. 64 { 9. Starting in late
August 1970, the United States and the facility both took
samples of sediment from the Penobscot River near the plant
outfall, including one set that Mr. DeAngelis took himself.
See Joint Ex. 64 § 10. These were the first sediment samples
that the plant took in the Penobscot River.’ See Joint Ex. 64
q 10.
Following an EPA request that the facility remove mercury
deposits from the Penobscot River near the site, T.W. Beak,
one of Mallinckrodt’s consultants, issued a report dated
March 21, 1972, recommending no sediment removal, but
proposing an environmental mercury survey for the summer
of 1972. See Joint Ex. 64 4 11. In a May 23, 1972, letter
from Mr. DeAngelis to T.W. Beak, Mr. DeAngelis wrote that
the facility would take periodic river, fish, and sediment
samples and would keep the results on file. See Joint Ex. 64
{| 12. To his knowledge, the facility did not do any further
such sampling.® See Joint Ex. 64 { 12.
C. Federal Enforcement During Hanlin’s
Ownership of the Plant
EPA filed a RCRA administrative action against Hanlin in
1986 that resulted in a consent agreement that same year
(“1986 Agreement”). See Joint Ex. 65 4 6. In 1989, Hanlin
brought an action against Mallinckrodt in this Court, alleging
” Sometime during 1970, Mr. DeAngelis became aware of fish analysis
results from the Saint Clair River downstream from a chlor-alkali plant
that showed extremely high levels of mercury in the fish there. See Joint
Ex. 64 4 13.
* Mr. DeAngelis would have been aware of such sampling, and he was
unaware of any sample results on file. See Joint Ex. 64 § 12.
46a
that Mallinckrodt was responsible for the environmental
hazards at the site that were the subject of EPA’s 1986 action
and seeking recovery for expenses related to compliance with
the 1986 Agreement. See Joint Ex. 65 § 7. The lawsuit by
Hanlin resulted in a settlement on April 3, 1991 (“1991
Settlement”), pursuant to which Mallinckrodt assumed
responsibility for a portion of the costs of completing the
study under the 1986 Agreement. See Joint Ex. 65 4 8; Joint
Ex. 4. The 1991 Settlement did not resolve how the costs of
corrective action would be shared. See Joint Ex. 65 § 8; Joint
Ex. 4. On July 29, 1991, EPA brought a RCRA action against
Hanlin in this Court for failing to comply with the 1986
Agreement. See Joint Ex. 6599. In 1993, this Court entered
a Consent Decree between EPA and Hanlin that superseded
the 1986 Agreement and required Hanlin to conduct a site
investigation and corrective measures study at the site under
the corrective action provisions of RCRA (“1993 Consent
Decree”). See Joint Ex. 65 ¥ 10; Joint Ex. 8.
In 1994, when HoltraChem bought the plant, it assumed
Hanlin’s obligations under the 1993 Consent Decree and the
1991 Settlement. See Joint Ex. 65 4 11. In 1995, following
the bankruptcy of Hanlin and HoltraChem’s acquisition of the
plant, the 1993 Consent Decree was modified to reflect that
certain obligations under the 1993 Consent Decree were
assumed by HoltraChem. See Joint Ex. 65 J 12; Defendant’s
Exs. 84, 85. Among other things, HoltraChem assumed
Hanlin’s obligations to complete the RCRA corrective action
process. See Joint Ex. 65 12; Defendant’s Exs. 84, 85. The
1993 Consent Decree contemplates a three-phase process:
site investigation, a study of possible corrective measures,
and remediation. See Joint Ex. 65 4 13. The RCRA correc-
tive action process for the plant site is nearing the end of the
first phase. See Joint Ex. 65 4 13. Although the State of
Maine is not a signatory to the 1993 Consent Decree, the
MDEP has worked closely with the EPA in commenting on
and overseeing work performed under the decree. See Joint
47a
Ex. 65 | 14. A 1997 Memorandum of Agreement between
EPA and MDEP provides that EPA will continue to ad-
minister the 1993 Consent Decree, with “considerable” State
input, until the corrective measures study phase is complete.
See Joint Ex. 65 ¥ 14; Plaintiffs’ Ex. 186.
Pursuant to the 1993 Consent Decree, Mallinckrodt and
HoltraChem submitted a multi-volume Site Investigation
Report in December 1995 prepared by environmental con-
sultant Camp, Dresser & McKee (“CDM”). See Joint Ex. 65
4] 15; Joint Ex. 13. In March 1997, EPA and MDEP issued a
draft notice of disapproval and comments on the 1995 Site
Investigation Report. See Joint Ex. 65 § 16; Defendant’s Ex.
104. In December 1998, Mallinckrodt and HoltraChem again
submitted a multi-volume Supplemental Site Investigation
Report prepared by CDM. See Joint Ex. 65 9 17; Joint Ex.
24. On April 10, 2000, EPA and MDEP provided a notice of
disapproval along with comments on the 1998 Supplemental
Site Investigation Report and Proposed Media Protection
Standards. See Joint Ex. 65 4 18; Joint Ex. 29. Throughout
the site investigation process, MDEA and EPA asked for and
recommended that Mallinckrodt collect data from downriver
areas to determine whether mercury was methylating and
whether such methylation was having an adverse impact on
the river south of the plant. See Tr. 2A at 81-82; Tr. 2B at 9-
11; Tr. 3A at 53-54; Tr. 3C at 24; Tr. SA at 34; Joint Ex. 29 at
3; Joint Ex. 89 at 9; Joint Exs. 35 and 36 at 1 and attachment
at 1. Despite these requests, Mallinckrodt took very few steps
to collect data bearing on the effects of mercury downriver of
the plant.” The limited data collected related to determining
the effects downriver included sampling killifish, commonly
known as minnows, and two wildlife surveys. The testimony
at trial clearly established that the ongoing RCRA corrective
action does not contemplate any remediation for the lower
* Mallinckrodt’s failure to undertake sampling at all trophic levels ap-
pears to have been by design. See Plaintiffs’ Ex. 48.
48a
river. The 1993 Consent Decree continues to govern the
corrective action activities at the site. See Joint Ex. 65 { 19.
D. Mercury in Aquatic Systems
Mercury fiom natural and man-made sources is released
into the air; soil, and water. Over time, the ultimate depos-
itory for mercury is in the sediments of the earth’s oceans,
lakes, and rivers. See Def. Ex. 310 at 17. There, microor-
ganisms convert the inorganic mercury to its organic form
known as methylmercury. See Def. Ex. 310 at 17. When
mercury is methylated through ingestion by microorganisms,
a carbon atom is added onto the mercury atom. This addi-
tional atom is what converts mercury into methylmercury,
allowing it to be readily accumulated in both animals and
human beings. See Def. Ex. 533 at 4. Methylmercury is
the element’s most bioavailable, and most toxic, form of
mercury. Tr. 1A at 33.
Once released from microorganisms, methylmercury rap-
idly diffuses, binding to proteins in aquatic biota. From there
it marches up the food chain, amplifying in concentration,
through a process known as biomagnification. See Def. Ex.
533 at 4. Smaller fish absorb the methylmercury from water
as it passes over their gills and as they feed on methyl-
mercury-tainted plankton. In turn, these fish are eaten by
bigger fish, which is why the highest concentrations of
methylmercury are found in fish at the top of the aquatic food
chain. Also, the older the fish, the more time methylmercury
has in which to accumulate. Large, predatory species like
cormorants, osprey, and eagles contain more methylmercury
in their tissues than smaller, nonpredatory fish species. It not
only accumulates in the aquatic food chain but tends to
concentrate strongly as it passes upward in the food chain.
Thus, methylmercury concentrations in predator fish can be
millions of times higher than those of the surrounding water.
See Def. Ex 533 at 4. Mercury is the only metal known to
biomagnify, and the health and environmental concerns about
49a
its effects center on this unique property. See Tr. 1A at 32;
Tr. 9 at 5-6; Tr. 7B at 20-21.
E. Effects of Mercury on Human Beings and Animals
Methylmercury is a highly toxic substance with a number
of adverse health effects associated with its exposure in
humans and animals. Methylmercury’s effects are largely
sublethal: Methylmercury may not kill an animal, but it will
impair the animal’s ability to reproduce. Tr. 1A at 24-25, 33;
Tr. 9 at 5. Even at very low doses, mercury attacks the
nervous system, the kidneys, the immune system, and the
reproductive system. Tr. 1A at 24, 33. Methylmercury is
classified as a developmental neurotoxicant, which causes
harm to the human central nervous system and is “extremely
toxic to the developing brain.” See Joint Ex. 28 at 4; Tr. 4A
at 9-10, 13-14. Low-dose prenatal methylmercury exposure
from maternal consumption of fish or other seafood has been
associated with neurotoxicity in children. The public is ex-
posed to methylmercury principally through the consumption
of contaminated fish. Once ingested, methylmercury is
absorbed into the bloodstream and distributes to all tissues
including the brain and developing fetus. See Joint Ex. 40 at
2-2; Tr. 4A at 10. In an adult, this mercury can take months
to excrete; however, in the fetal brain, the mercury cannot be
excreted. Tr. 4A at 11-12.
Credible testimony was given by Dr. Philippe Grandjean,
Plaintiffs’ expert, on the risk of adverse effects of methyl-
mercury exposure. See Joint Ex. 28 at 8. Dr. Grandjean
studied the effects of mercury exposure in women and child-
ren living in the Faroes Islands. The Faroes study determined
that, even at low levels of exposure, methylmercury effects
the development of the central nervous system including: (1)
motor function deficits; (2) neuropsychological impairment to
attention, language, visuospatial performance, and verbal and
visuospatial memory; and (3) developmental delays corre-
sponding to one to two months in development for each
¢
50a
doubling of exposure. See Tr. 4A at 14-15, 17-18; Joint Ex.
59. Methylmercury also causes damage to the cardiovascular
system, including difficulty regulating heartbeat and blood
pressure in children, see Joint Ex. 60, and heart disease and
stroke in adults. See Joint Exs. 58, 63. Although the effects
from exposure to methylmercury are significantly more
pronounced in small children and developing fetuses, the
damage from exposure to methylmercury is permanent in all
populations. See Tr. 4A at 29-31.
The EPA has set the Reference Dose (“RfD”) for consump-
tion of methylmercury at 0.1 g/kg body weight/day. Tr. 4A
at 48-49. The RfD is EPA’s estimate, within an order of
magnitude, of a dose above which human health risks are
presented. Tr. 4A at 50. The State of Maine bases fish
consumption advisories on the EPA RfD and Dr. Grandjean’s
Faroes Island study. See Plaintiffs’ Ex. 228 at 16-17. The
health risks depend on the total consumption of methyl-
mercury from all sources, including freshwater and ocean
fish. See Tr. 4B at 10-12. The consumption of Penobscot
fish like the eels sampled near the plant site in 1995 would
expose an individual to a level of methylmercury above the
R£D.'° See Tr. 4B at 11-19; Joint Ex. 13 at Table 9-4 (VolL.II).
A pregnant woman could not eat a single Penobscot fish in
the measured range without endangering fetal health. See Tr.
4B at 18-19.
'© Indeed, Dr. Grandjean believed that the degree of endangerment is
even greater because the RfD “err[s] on the side of fish consumption . . .
not on the side of safety.” See Tr. 4A at 54-55.
’ }
S5la
Il. DISCUSSION
A. Resource Conservation and Recovery Act (“RCRA”)
To successfully prosecute a RCRA claim under 42 U.S.C.
§ 6972(a)(1)(B), Plaintiffs must demonstrate that Mal-
linckrodt is a “person” who satisfies the following provision:
any past or present generator, past or present transporter,
or past or present owner or operator of a treatment,
storage, or disposal facility, who has contributed or who
is contributing 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 environment.
42 U.S.C. § 6972(a)(1)(B). Mallinckrodt does not dispute
that it is a “person” who released “solid waste” into the
Penobscot River.'’ There is also no genuine dispute in the
record that some mercury originating from the plant during
Mallinckrodt’s ownership has migrated downriver; that
mercury is available for methylation downriver, Tr. SA at 22-
23; Tr. 9 at 6; that some mercury is methylating in sediments
downriver, Tr. 7B at 95; that methyimercury once in the food
web biomagnifies, Joint Ex. 533; or of the harmful effects
of mercury on human beings or animals, Joint Ex. 28.
The discrete issue, raised in this case, is whether mercury
methylation is occurring downriver of the plant to such a
degree that it may present a risk of imminent and substantial
harm to health or the environment.
'! Mallinckrodt stipulated that it is a “person” against whom an action
may be brought as defined in RCRA § 6903(15). See Joint Ex. 65 at 2.
Mallinckrodt also stipulated that the mercury-bearing releases originating
at the plant, during the time that Mallinckrodt owned the plant, are “solid
waste” as defined in RCRA §§ 6903(5) and (27). See Joint Ex. 65 4 5.
52a
1. Imminent and Substantial Endangerment
Under § 6972(a) of RCRA, it is not necessary that Plain-
tiffs show that the contamination is harming, or will harm,
health or the environment. A finding that an activity may
present an imminent and substantial endangerment does not
require a showing of actual harm. The term “endangerment”
has been interpreted by courts to mean a threatened or po-
tential harm. See Dague v. City of Burlington, 935 F.2d 1343,
1355-56 (2nd Cir.1991), rev’d on other grounds, 505 U.S.
557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992); United States
v. Price, 688 F.2d 204, 211 (3rd Cir.1982); United States v.
Waste Industries, Inc., 734 F.2d 159 (4th Cir.1984); Ethyl
Corp. v. Environmental Protection Agency, 541 F.2d 1
(D.C.Cir.) (en banc), cert. denied, 426 U.S. 941, 96 S.Ct.
2662, 49 L.Ed.2d 394 (1976)(construing the term “will en-
danger” as used in the Clean Air Act); Reserve Mining
Company v. Environmental Protection Agency, 514 F.2d 492,
528 (8th Cir.1975) (en banc) (construing the word “endan-
gering” as used in the emergency powers provision of the
Clean Water Act prior to 1970); United States v. Vertac
Chemical Corp., 489 F.Supp. 870, 885 (E.D.Ark.1980). The
standard under § 6972(a) is in fact even more lenient than
that, because injunctive relief is authorized when there may
be a risk of harm, not just when there is a risk of harm. This
sweeping provision indicates Congress’s intent “to confer
upon the courts the authority to grant affirmative equitable
relief to the extent necessary to eliminate any risk posed
by toxic wastes.” Dague, 935 F.2d at 1355 (quoting
United States v. Price, 688 F.2d at 213-14) (emphasis added
in Dague).
An endangerment need not be an immediate one in order
for it to be “imminent.” An endangerment is “imminent” if
factors giving rise to it are present, even though the hart. aay
not be realized for some time. “A finding of ‘imminency’
does not require a showing that actual harm will occur
53a
immediately so long as the risk of threatened harm is
present.” Dague, 935 F.2d at 1356; see also Meghrig, 516
US. at 486, 116 S.Ct. 1251, 134 L.Ed.2d 121 (quoting Price
v. United States Navy, 39 F.3d 1011, 1019 (9th Cir.1994)). In
Meghrig, the Supreme Court stated that “[a]n endangerment
can only be ‘imminent’ if it ‘threaten[s] to occur imme-
diately,’ . . . and the reference to waste which ‘may present’
imminent harm quite clearly excludes waste that no longer
presents a danger.” Jd. at 485-86, 116 S.Ct. at 1255. The
Court went on to state that although “there must be a threat
which is present now, . . . the impact of the threat may not be
felt until later.” Jd. at 486, 116 S.Ct. at 1255 (quoting Price
v. United States Navy, 39 F.3d 1011, 1019 (9th Cir.1994)).
In terms of substantiality, Plaintiffs need not quantify the
risk of harm in order to establish an endangerment. Courts
asked to decide whether RCRA has been violated often
employ nondefinitive data in assessing the risk posed by the
waste. That is because the evaluation of a risk of harm
involves medical and scientific conclusions that “clearly lie
on the frontiers of scientific knowledge”, such that “proof
with certainty is imp
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.