# Petition for Writ of Certiorari — Power Engineering Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1041%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 538 U.S. 1012 ## Text Gerrans Court, U.S. FILED 02108 6 JAN 17 2003 opie of THE CLERK »_ > »_ fe 4 In the Supreme Court of the United States + POWER ENGINEERING COMPANY; REDOUBT, LTD.; and RICHARD J. LILIENTHAL, Petitioners, V. UNITED STATES OF AMERICA, Respondent. 4 On Petition for Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit ~¢ PETITION FOR WRIT OF CERTIORARI as M. REED HOPPER Counsel of Record ROBIN L. RIVETT Pacific Legal Foundation 10360 Old Placerville Road, Suite 100 Sacramento, California 95827 Telephone: (916) 362-2833 Facsimile: (916) 362-2932 Counsel for Petitioners . wee wweevevvulev we ve O.hvwhmC..C.LULTCTmm i QUESTION PRESENTED When a state that is authorized under the Resource Conservation and Recovery Act to “administer and enforce” a state hazardous waste program “in lieu” of a federal program prosecutes an enforcement action, may the federal Environmental Protection Agency undertake a separate enforcement action against the same defendant for the same violation? PARTIES TO THE PROCEEDINGS Petitioners are Power Engineering Company, Redoubt, Ltd., and Richard J. Lilienthal. Respondent is the United States of America. s ill TABLE OF CONTENTS Page FO i PARTIES TO THE PROCEEDINGS ...........cccccecees il pp ee 1 Vv PETITION FOR WRIT OF CERTIORARI ................. l ee a Vent bad eee d ac bateeeee ass l enh as ic 6 b-0¥ aud a 0's 004 a0 Ui s wees l STATUTORY PROVISIONS AT ISSUE .................. l each ts Gab cseskobsns debe baceneeesa 2 UPRRMINOE OO BRU CCABE oo. ccc cccsessccssesncvcecs 4 ee 4 B. Procedural Background and Statement of Facts .... 5 REASONS FOR GRANTING THE WRIT ................. 7 I. BECAUSE THE TENTH CIRCUIT DECISION BELOW AUTHORIZES THE EPA PRACTICE OF “OVERFILING” UNDER RCRA THAT WAS INVALIDATED BY THE EIGHTH CIRCUIT IN HARMON INDUSTRIES, THIS CASE PRESENTS A CONFLICT BETWEEN CIRCUITS THAT MUST BE RESOLVED BY THIS COURT ................. 8 I. THE PETITION SHOULD BE GRANTED BECAUSE THE DECISION BELOW AUTHORIZES EPA TO USURP THE ENFORCEMENT ROLE ASSIGNED TO THE STATES UNDER RCRA WHICH UNDERMINES THE FUNDAMENTAL CONCEPT OF FEDERAL AND STATE COOPERATION EMBODIED IN THE ACT AND NULLIFIES THE CLEAR CONGRESSIONAL INTENT TO RELY ON STATE ENFORCEMENT STRATEGIES ........... 15 iV TABLE OF CONTENTS—Continued Page Ill. THE PETITION SHOULD BE GRANTED BECAUSE THE IMPOSITION BY EPA OF AN INDEPENDENT AND CONFLICTING ENFORCEMENT STRATEGY IS CONTRARY TO THE GOALS OF RCRA AND THE EPAITSELF .... 18 A. EPA “Overfiling” Has Only a Limited Deterrent Effect and Is Counterproductive ..... Serer re 19 B. EPA “Overfiling” Is Unfair and Inequitable to the Regulated Community .................55. 20 C. EPA “Overfiling” Interferes with Swift Resolution of Environmental Problems .......... 21 CRIP GAME Kabob ese reesneerkwesevessheubenen seen 23 Vv TABLE OF AUTHORITIES Page Cases Gwaltney of Smithfield Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49 (1987) ............... 19-20 Harmon Industries, Inc. v. Browner, 191 F.3d 894 (8th Cir. 1999) ................. passim Harmon Industries, Inc.v. Browner, 19 F. Supp. 2d 988 (D. Mo. 1998) ................ 10 United States v. Lehigh Portland Cement Co.., 1984 U.S. Dist. LEXIS 21366, No. C 84 3030 ees OE Fe Sacks ease ave rere United States v. Power Engineering Company, 303 F.3d 1232 (10th Cir. 2002) ............ 1, 6, 13-14 United States v. Power Engineering Company, 125 F. Supp. 2d 1050 (D. Colo. 2000) ............ 1,7 United States v. Power Engineering Company, 191 F.3d 1224 (10th Cir 1999) .......... 5-6, 10, 11-13 United States v. Power Engineering Company, 10 F. Supp. 2d 1145 (D. Colo. 1998) ............... 6 United States v. SCM Corp., 615 F. Supp. 411 (D. Md. 1985) .................. 18 Statutes ae UB. § TSIM «oo ve vv aweesnshis chee ] SE UBM. § GBOUGE) oon vnc cv evcceensceveveeeeueees 4 hk TE eee ty ea! 15 ek ERTIES TE TORT ee re 1,4, 15, 17 pe ee rer ey sg 1, 4, 10, 13, 15 vi 5 PE a2 vaacesvadetccewisewekee 1, 4-5, 10, 17 S GRSLED s 0.05 ck een desetensbancineeenseeazens l S GREED 6 o Nba a Were ebesveneetnenesNeenen 1, i hogs 1) Sere ree ery 1, 11-12 Codes 49 Fed. Reg. 41036 (Nov. 2, 1984) ............. eens 5 Miscellaneous Cook, Steven, State/Federal Enforcement of the Clean Air Act and Other Federal Pollution Laws: Federal Overfiling on State Enforcement Proceedings, bth & Ree | eee rr 18-22 H.R. Rep. 1491, 94th Cong., 2nd Sess. 24, reprinted in Fre Us WE oka Us eeease ves acta 12 Hearing before the Environment and Public Works, United States Senate, 105th Cong., oem. 8 CU ran 5) shaw cede ian ees banaue 3 Humphrey, Hubert H., & Paddock, LeRoy C., The Federal and State Roles in Environmental Enforcement: A Proposal for More Effective and More Efficient Relationship, 14 Harv. Envtl L. Rev. 7 (1990) ........... 2, 7, 16, 22 Miller, Bryan S., Understanding Overfiling: The Impact of Two Recent Federal Cases on EPA Cverfiling, 1S: 3. BawG, Lb. & EAS SE CRG Oe os aces vcwcccccces 3 — OPINIONS BELOW The opinion of the court of appeals, United States v. Power Engineering Company, et al., is reported at 303 F.3d 1232 (10th Cir. 2002), and. is included at Appendix B. The opinion of the district court is reported at 125 F. Supp. 2d 1050 (D. Colo. 2000), and is included at Appendix C. 2 JURISDICTION The judgment of the Court of Appeals for the Tenth Circuit was entered on September 4, 2002. On November 14, 2002, this Court granted an extension of time to file a Petition for Writ of Certiorari to January 17, 2003 (Application No. 02A393) (Appendix A). This Court has jurisdiction under 28 U.S.C. § 1254(1). +- STATUTORY PROVISIONS AT ISSUE The pertinent provisions of the Resource Conservation and Recovery Act are found at 42 U.S.C. § 6926(b), (d), and (e); § 6928(a)(1)-(2); and § 6972(b)(1)(B), and are set out in Appendices F, G, and H. —o— 2 INTRODUCTION This is not the first case in which the Environmental Protection Agency (EPA) has invaded a state’s enforcement authority and filed an overlapping and inconsistent federal suit when the state has already initiated its own enforcement action for the same violations—a practice known as “overfiling.” It is, however, the first case creating a conflict in the circuits over the EPA’s authority to “overfile” under the Resource Conservation and Recovery Act (RCRA). In Harmon Industries, Inc. v. Browner, 191 F.3d 894 (8th Cir. 1999) (Appendix I), the Eighth Circuit held that EPA was barred from “overfiling” under RCRA. However, the Tenth Circuit in this case expressly rejected the Harmon analysis and concluded that EPA “overfiling” in a RCRA action is allowed. To resolve this conflict, this Court should grant the Petition for Writ of Certiorari. This case warrants Supreme Court review for other reasons as well; it raises an important question of national scope that implicates the reach of federal enforcement authority, the ability of the states to pursue their own enforcement strategies without the threat of federal interference, and federal- state cooperation. With increasing frequency, EPA is undermining state enforcement efforts under a number of federal environmental statutes. See Hubert H. Humphrey & LeRoy C. Paddock, The Federal and State Roles in Environmental Enforcement: A Proposal for More Effective and More Efficient Relationship, 14 Harv. Envtl. L. Rev. 7 (1990). See also Mark J. Zimmerman, RCRA Overfiling by EPA: The Start of a Trend?, 13 Envtl. Compliance & Litig. Strategy No. 1 at 5 (1997). In addition to RCRA, the states may administer and enforce their own environmental programs under the Clean Water Act (CWA) and the Clean Air Act (CAA). These state programs must be equal to, or more stringent than, the 3 corresponding federal law and the state programs must be approved by EPA. But, the Agency still overrides state permit decisions and files duplicative federal suits against polluters because EPA is dissatisfied with the conditions imposed or the penalties sought. This insidious practice wastes federal, state, and private resources, and breeds distrust between State and federal enforcers. It also generates uncertainty among the citizens in the regulated community who cannot rely on their dealings with state officials so long as EPA claims it can override state enforcement decisions. EPA maintains it has virtually unlimited authority to “overfile” under RCRA. See Bryan S. Miller, Understanding Overfiling: The Impact of Two Recent Federal Cases on EPA Overfiling, 15 J. Envtl L. & Litig. 21 (2000). But, this appears to be an “about face” for EPA: “In adopting this policy, the Agency overruled internal adjudicatory decisions that held that RCRA does not allow for the practice.” /d. Miller questions whether EPA may “overfile” at all, under any environmental statute. /d. So disruptive has “overfiling” become, or, more accurately, the threat of “overfiling,” that the Senate has held hearings to consider the matter. See Hearing before the Environment and Public Works, United States Senate, 105th Cong., Sess. 1, (1997) on the Relationship Between the Federal and State Governments in the Enforcement of Environmental Laws. The validity of EPA “overfiling” is clearly an important federal question justifying review by this Court. The resolution of this question has become a matter of necessity, however, in light of the conflict the decision below has created with the Eighth Circuit decision in Harmon Industries. ——-— meron chnistaiiiniitiaptictiniaicieniainniiciciaeii it 4 STATEMENT OF THE CASE A. Statutory Background RCRA provides for the regulation of hazardous waste through federal leadership and incentives while recognizing that the collection and disposal of hazardous waste “should continue to be primarily the function of State, regional, and local agencies... .” 42 U.S.C. § 6901(4) (Appendix D). Under RCRA, any state may seek to “administer and enforce” a hazardous waste program upon approval by the EPA. 42 U.S.C. § 6926(b). If approved, the state is authorized to carry out its hazardous waste program “‘in lieu” of a federal program and, among other things, to issue and enforce permits for the storage, treatment, or disposal of hazardous wastes. Jd. EPA approves a state program only when the Administrator has found (1) the state program is “equivalent to the Federal program,” (2) the state program is “consistent with the Federal program” and other state programs, and (3) the state program provides “adequate enforcement of compliance” with RCRA requirements. Jd. The effect of an authorized or permitted state program is that “[a]ny action taken by a state under a hazardous waste program ... shall have the same force and effect as action taken by the Administrator [of the EPA]... .” 42 U.S.C. § 6926(d) (emphasis added). The federal remedy for state noncompliance with the permitted state program is withdrawal of federal authorization: Whenever the Administrator determines after public hearing that a State is not administering and enforcing a program authorized under this section [42 U.S.C. § 6926] in accordance with requirements of this section, he shall so notify the State and, if appropriate corrective action is not taken within a reasonable time, not to exceed ninety days, the Administrator shall withdraw authorization of such ? program and establish a Federal program pursuant to this chapter. The Administrator shall not withdraw authorization of any such program unless he shall first have notified the State, and made public, in writing, the reasons for such withdrawal. 42 U.S.C. § 6926(e). B. Procedural Background and Statement of Facts For almost twenty years, the State of Colorado has administered and enforced its own hazardous waste program “‘in lieu” of a federal program. That program is EPA approved and is codified as the Colorado Hazardous Waste Management Act. 49 Fed. Reg. 41036 (Nov. 2, 1984) (Final Authorization of State Hazardous Waste Management Program). The Colorado Department of Public Health and Environment (CDPHE) carries out the state program. See United States v. Power Engineering Company, 303 F.3d 1232, 1235 (10th Cir. 2002) (Appendix B). At no time has EPA sought to withdraw authorization of the State hazardous waste program. Power Engineering Company operates a metal refinishing and chrome electroplating business in Denver, Colorado. Jd. Redoubt, Ltd., leases land and buildings to Power Engineering and Richard Lilienthal is an officer and the sole owner of both companies (collectively “PEC”). Jd. The electroplating and refinishing processes produce regulated hazardous waste. /d. In 1986, PEC notified CDPHE that it was a generator of hazardous waste. See United States v. Power Engineering Company, 191 F.3d 1224, 1230 (10th Cir. 1999). After a compliance inspection in 1993, however, CDPHE cited PEC for treating, storing, and disposing of certain hazardous wastes without a permit and charged that chromium from the Power Engineering site had contaminated the soil and the groundwater. Power Engineering, 303 F.3d at 1235. CDPHE issued an Initial Compliance Order in July, 1994, and a Final Compliance Order in June, 1996, directing PEC to clean up the contamination, 6 conduct frequent inspections, submit periodic cleanup reports, and follow all hazardous waste laws. /d. Before CDPHE issued its Final Compliance Order, EPA asked CDPHE to enforce the requirements of RCRA and the Colorado regulations and require financial assurances from PEC. /d. at 1235-36. However, CDPHE chose not to demand financial assurances. Id. at 1236. In August, 1996, EPA notified CDPHE that it had failed to take timely and appropriate action with respect to PEC by not assessing a civil penalty. When PEC did not comply with all of the requirements of the cleanup order, CDPHE ordered PEC in Deceinber, 1996, to pay civil penalties of $1.13 million and sought enforcement of its orders in State court on August 1, 1997. See id. at 1235. Relying on RCRA and the State’s regulations, the United States (on behalf of EPA) “filed its own lawsuit against PEC for the same violations” simultaneously with the State action. Jd. However, contrary to the State, EPA sought civil penalties, an injunction to stop PEC’s hazardous waste operations, and financial assurances. Among other things, the district court granted the United States a preliminary injunction requiring PEC to provide financial assurances of $3.5 million. See United States v. Power Engineering Company, 10 F. Supp. 2d 1145 (D. Colo. 1998). That preliminary injunction was upheld on appeal by the Tenth Circuit. See Power Engineering, 191 F.3d 1224. In March, 1999, the state court held the CDPHE orders were enforceable. 303 F.3d at 1235. After these decisions, the United States dropped all of its claims except for financial assurances and amended its complaint. In district court, the United States and PEC filed cross- motions for summary judgment. In reliance on the Eighth Circuit decision in Harmon Industries, PEC argued that RCRA and res judicata prohibited the EPA from “overfiling,” or filing a federal enforcement action when the state has already undertaken an enforcement action for the same conduct under 7 its federally-authorized hazardous waste program. Power Engineering, 303 F.3d at 1236. The district court ruled for EPA and held that PEC must provide financial assurances (later fixed at $2,119,044) and obtain liability coverage for accidental occurrences. See United States v. Power Engineering Company, 125 F. Supp. 2d 1050 (D. Colo. 2000) (Appendix C). On appeal, the Tenth Circuit rejected Harmon Industries’ interpretation of RCRA and affirmed the district court on grounds that a federally-authorized state hazardous waste program does not stand “in lieu” of the federal program for enforcement purposes. 303 F.3d at 1236-40. This created an express conflict between the Eighth and Tenth Circuits. To resolve this conflict, PEC petitions this Court for a writ of certiorari. rN REASONS FOR GRANTING THE WRIT In this case, Petitioners challenge EPA’s expanding practice of undermining state enforcement decisions by “overfiling” under RCRA. But this case has iniplications beyond its precise facts. Whether EPA may interfere in this way with state enforcement efforts under RCRA will likely define the federal-state relationship for other federal environmental laws as well. In addition to RCRA, EPA has “overfiled” under the CWA, the CAA, Superfund, and others. See Humphrey, supra. - The question for this Court is whether a state has exclusive authority to enforce its EPA-approved hazardous waste program—unless EPA withdraws its approval of the state program or the state fails to initiate an enforcement action. The Tenth Circuit in this case decided that the “in lieu” and “same force and effect” language of RCRA does not bar the federal government from filing its own enforcement action when the state has already acted to address the same violations. But, that 8 decision expressly conflicts with a decision of the Eighth Circuit in Harmon Industries. Moreover, an objective of RCRA, as with similar environmental laws, is to establish a viable federal-state partnership in the Act’s implementation. This is essential to achieving the statutory goals of a cleaner and _ safer environment. However, the EPA’s practice of supplanting state enforcement decisions generates distrust, creates uncertainty, and defeats attempts at meaningful cooperation between state and federal officials. The EPA’s practice of undermining state enforcement efforts also wastes public and private resources, conflicts with the historical role of states in dealing with local environmental problems, and is counterproductive. For these reasons, the petition should be granted. I BECAUSE THE TENTH CIRCUIT DECISION BELOW AUTHORIZES THE EPA PRACTICE OF “OVERFILING” UNDER RCRA THAT WAS INVALIDATED BY THE EIGHTH CIRCUIT IN HARMON INDUSTRIES, THIS CASE PRESENTS A CONFLICT BETWEEN CIRCUITS THAT MUST BE RESOLVED BY THIS COURT Harmon Industries involved an “overfiling” action in the State of Missouri. Like Colorado, the State of Missouri is authorized to enforce it’s own hazardous waste program “in lieu” of a federal program. Pursuant to this authority, the Missouri Department of Natural Resources (MDNR) settled with Harmon Industries, Inc., relative to contaminated property _ at Harmon’s assembly facility in Grain Valley, Missouri. At this facility, Harmon assembled circuit boards for railroad equipment. From 1973 through 1987, Harmon employees used organic solvents to clean soldering flux from the circuit boards. During that time, Harmon employees collected residual solvent in three to five gallon pails. Every few weeks, Harmon 9 maintenance workers would throw the solvent literally out the back door onto the ground. This amounted to about 30 gallons of solvent a month. Harmon management was unaware of this practice and assumed the solvent was used until depleted. Harmon management discovered this disposal practice during a safety inspection in 1987. In response to this discovery, Harmon switched to a nonhazardous cleaning material and ceased to generate hazardous waste. Harmon also conducted an investigation of the contaminated site and voluntarily reported its illegal activities to the state. Harmon investigators ultimately determined the disposal site did not pose a risk to human health or the environment due to low levels of contamination, the lack of groundwater resources, and the absence of exposure pathways. Based on these findings, Harmon proposed leaving the contaminants in the ground and submitted a closure report for the site to MDNR. MDNR approved the closure report and issued a closure permit on condition that Harmon maintain liability coverage for the site for the next thirty years. Harmon spent over $800,000 to change its assembly process, with annual costs estimated at $250,000, and $1.4 million for site investigation, with anticipated post-closure costs of about $500,000. MDNR apparently believed Harmon acted in good faith and, over objections by the EPA, never filed an enforcement action against Harmon seeking civil penalties. Instead, MDNR entered into a court-approved consent decree with Harmon specifying essentially that Harmon’s compliance with the consent decree “constitutes full satisfaction and release from all claims” arising from the incident. Notwithstanding this consent decree, however, the EPA filed an administrative complaint against Harmon for civil penalties of $2,777,324. This was reduced to $586,716 by an administrative law judge. The penalty was upheld by the Environmental Appeals Board but overturned by the United States District Court for the Western District of Missouri. 10 The district court reasoned that if state enforcement actions under RCRA are to have the “same force and effect” as actions taken by the Administrator of the EPA, the EPA cannot “modify, by piecemeal measures, any action taken by states.” Harmon Industries v. Browner, 19 F. Supp. 2d. 988, 996 (D. Mo. 1998). The court determined the language of the statute prohibited “overfiling” by the EPA and concluded that EPA was bound by the consent decree. This decision was affirmed by the Eighth Circuit on appeal. See Harmon Industries, Inc. v. Browner, 191 F.3d 894 (Appendix I). After observing that the statutory permissibility of “overfiling” was a question of first impression in the federal circuits, the Eighth Circuit first looked to the statutory language of RCRA authorizing a state to administer and enforce a hazardous waste program “‘in lieu” of a federal program. Jd. at 897-98. The court concluded: “The plain “in lieu of’ language contained in the RCRA [42 U.S.C. § 6926(b)] reveals a congressional intent for an authorized state program to supplant the federal hazardous waste program in all respects including enforcement.” 191 F.3d at 899. The court also noted the plain language of section (d) that states, ““Any action taken by a state under a hazardous waste program authorized under [RCRA] [has] the same force and effect as action taken by the [EPA] under this subchapter.” 42 U.S.C. § 6926(d). According to the Eighth Circuit: “The “same force and effect” language of section 6926(d) provides additional support for the primacy of the states’ enforcement rights under the RCRA when the EPA has authorized a state to act in lieu of it.”” Harmon, 191 F.3d at 899. The court also found congressional intent evident in RCRA’s provision allowing the EPA to withdraw authorization from a state if the state’s program “does not provide adequate enforcement of compliance with the requirements of’ RCRA. 191 F.3d at 899. See also 42 U.S.C. § 6926(e) (Withdrawal of authorization). “This language,” the court stated, “indicates Dineen a whaniap eam eR MNT Sa Aes ea ated ORAS ABE at shat ipbang heist bi Shivers 11 that Congress intended to grant states the primary role of enforcing their own hazardous waste program.” 191 F.3d at 899. This indication is not undermined, the court concluded, as EPA argued, by the language of section 6928: Id. Id. [S]ection 6928(a)(1) allows the EPA to initiate enforcement actions against suspected environmental violators, except as provided in section 6928(a)(2). Section 6928(a)(2) permits the EPA to enforce the hazardous waste laws contained in the RCRA if the agency gives written notice to the state. But, the court observed, these two sections must be interpreted in light of the entire Act. Harmonizing the section 6928(a)(1) and (2) language that allows the EPA to bring an enforcement action in certain circumstances with section [6926]’s _ provision that the EPA has the right to withdraw state authorization if the state’s enforcement is inadequate manifests a congressional intent to give the EPA a secondary enforcement right in those cases where a state has been authorized to act that is triggered only after state authorization is rescinded or if the state fails to initiate an enforcement action. According to the court, the notice requirement of section 6928(a)(2) “reinforces the primacy of a state’s enforcement rights under RCRA” by allowing a state an opportunity to initiate its own enforcement action. Jd. Only if the state fails to act may EPA initiate its own action. Jd. “Thus, the notice requirement is an indicator of the fact that Congress intended to give the states, that are authorized to act, the lead role in enforcement under RCRA.” Jd. 12 EPA countered by citing the citizen suit provision of the Act. Section 6972(b)(1)(B) states that “if the [EPA] or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State,” then a private citizen suit is not allowed. EPA argued that if Congress had intended to limit the Agency’s night to “overfile,” it would have stated its intent like it did iffthe citizen suit provision. 191 F.3d at 900. But the Eighth Circuit was not persuaded. The court observed that section 6972 is directed at private enforcement whereas section 6926 is directed at state enforcement.-/d. “The mere fact that Congress did not choose to employ the exact same language as contained in an unrelated part of the act does not detract from the plain language used in the state authorization section.” Further, the court reiterated: “Congress provided that the state’s program should operate in lieu of the federal program and that the state action should operate with the same force and effect as action taken by the EPA.” Jd. at 900- 01. In response to EPA’s argument that the language of RCRA is ambiguous, the Eighth Circuit cited several excerpts from the legislative history that support the primacy of the states’ enforcement rights. See, e.g., H.R. Rep. 1491, 94th Cong., 2nd Sess. 24, reprinted in 1976 U.S.C.C.A.N. 6262 (“It is the Committee’s intention that the States are to have primary enforcement authority and if at any time a State wishes to take over the hazardous waste program it is permitted to do so, provided that the State laws meet the federal minimum requirements for both administering and enforcing the law.’’). See also 1976 U.S.C.C.A.N. at 6269 (Although the “legislation permits the states to take the lead in the enforcement of the hazardous wastes laws... the Administrator [of the EPA] is not prohibited from acting in those cases where the state fails to act, or from withdrawing approval of the state hazardous waste plan and implementing the federal hazardous waste program pursuant to . . . this act.””) (emphasis added). np tos obec RL Ale, BN A dS i Nageh, edpcg a Brit Saal Din, i te etal, pow oe 13 Based on these excerpts, and others, the court concluded: “The House Report thus supports our interpretation of ‘the statute—that the federal government’s right to pursue an enforcement action under the RCRA attaches only when a state’s authorization is revoked or when a state fails to initiate any enforcement action.” 191 F.3d at 901. Therefore, the Eighth Circuit held that the EPA practice of “overfiling”’ is statutorily impermissible: “There is no support either in the text of the statute or the legislative history for the proposition that the EPA is allowed to duplicate a state’s enforcement authority with its own enforcement action.” Jd. But, the Tenth Circuit in this case expressly rejected this analysis and came to the opposite conclusion. In the decision below, the court correctly observed that Harmon found that “the administration and enforcement of the [hazardous waste] program are inexorably intertwined.” /d. (emphasis added). However, the Tenth Circuit disagreed with this conclusion: “This interpretation fails to account for the placement of “enforcement” and “in lieu of” in separate clauses of section 6926(b), and it does not adequately consider the structure of the statute.” Power Engineering, 303 F.3d at 1238. Therefore, the Tenth Circuit rejected Harmon’s interpretation that “in lieu” authorization of a state hazardous waste program deprives EPA of its enforcement powers. The Tenth Circuit also rejected the Harmon court’s interpretation of “the same force and effect” language. Section 6926(d) states: “Any action taken by a State under a hazardous waste program authorized under this section shall have the same force and effect as action taken by the [EPA] under this subchapter.” 42 U.S.C. § 6926(d). Whereas Harmon “found that this section applies broadly to any action authorized under this subchapter, including enforcement,” the court in this case concluded: 14 According to this interpretation, the statute substitutes state enforcement action for EPA enforcement action and therefore does not permit an EPA lawsuit when a state has initiated an enforcement suit. This interpretation reads too much into the provision. The provision must be read in the context of the language and design of the statute as a whole. 303 F.3d at 1239. Of course, that’s exactly what the Harmon court did. It construed this section so as to avoid a conflict with section 6928(a)(1) and (2) which the EPA argues gives the agency carte blanche to file a separate lawsuit when a state has already taken action. But the Tenth Circuit dismissed the notion that administration of a hazardous waste program and enforcement of a hazardous waste program are “inexorably intertwined,” as the Harmon court held. In the words of the Tenth Circuit, the Eighth Circuit’s harmonizing of RCRA [g]oes well beyond the plain language of the statute. While Harmon correctly states that section 6928(a) limits the EPA’s right to bring an enforcement action to “certain circumstances,” the only explicit limitation is that the EPA must provide prior notice to authorized states. Withdrawal of authorization for a state program is an “extreme” and “drastic” step that requires the EPA to establish a federal program to replace the cancelled state program. Nothing in the text of the statute suggests that such a step is a prerequisite to EPA enforcement or that it is the only remedy for inadequate enforcement. Id. at 1238-39 (citations omitted). The Tenth Circuit’s decision in this case, that RCRA permits “overfiling,” conflicts therefore *. ith the Eighth Circuit se Ee rey 15 decision in Harmon that RCRA prohibits “overfiling.” Accordingly, this Court should grant the petition for writ of certiorari and resolve this conflict. Il THE PETITION SHOULD BE GRANTED BECAUSE THE DECISION BELOW AUTHORIZES EPA TO USURP THE ENFORCEMENT ROLE ASSIGNED TO THE STATES UNDER RCRA WHICH UNDERMINES THE FUNDAMENTAL CONCEPT OF FEDERAL AND STATE COOPERATION EMBODIED IN THE ACT AND NULLIFIES THE CLEAR CONGRESSIONAL INTENT TO RELY ON STATE ENFORCEMENT STRATEGIES Among the objectives Congress listed for RCRA is: [E]stablishing a viable Federal-State partnership to carry out the purposes of this chapter and insuring that the Administrator will, in carrying out the provisions of subchapter III of this chapter, give a high priority to assisting and cooperating with States in obtaining full authorization of State programs under subchapter III of this chapter. 42 U.S.C. § 6902(a)(7) (Appendix E). Subchapter III of RCRA details the Hazardous Waste Management Program and delineates the process for state authorization. The Act states: “Such State is authorized to carry out such program in lieu of the Federal program.” 42 U.S.C. § 6926(b). Put another way, the effect of state authorization is that “[aJ]ny action taken by a state under a hazardous waste program [by an authorized state] shall have the same force and effect as action taken by the Administrator.” 42 U.S.C. § 6926(d). But notwithstanding the congressional directive to establish a federal-state partnership and the clearly stated 16 deference EPA is to give authorized states, EPA seems to believe its mandate for cooperation evaporates once a state is certified. This is evident from the insidious practice of EPA to usurp state enforcement decisions to seek its own enforcement goals. In their article, The Federal and State Roles in Environmental Enforcement: A Proposal for More Effective and More Efficient Relationship, 14 Harv. Envtl. L. Rev. 7, Hubert H. Humphrey and LeRoy C. Paddock recount the EPA’s history of “overfiling” under numerous environmental laws, including the CAA, the CWA, and RCRA. According to the authors, one of whom was Attorney General of the State of Minnesota, “overfiling” is disruptive to state enforcement programs in a number of ways. Primarily, “overfiling” increases the reluctance on the part of regulated entities to deal only with state enforcement officials. Obviously, if EPA can override the state, regulated entities cannot be certain that a compliance schedule or a penalty amount agreed to by the state is final. One result is that states may find it harder to reach settlements with regulated entities. Humphrey, supra, at 13-14. At best, this is counterproductive. At worst, it unnecessarily delays the resolution of a cleanup action to the ultimate injury of the people and the environment. Another result is that unilateral enforcement by EPA breeds distrust between federal and state enforcement officials. Indeed, the very act of “overfiling” is a breach of trust. Once a state is authorized to enforce the federal program, the state stands “in lieu” of EPA. This authorization is meaningless, however, if EPA can invade state enforcement authority whenever federal officials disagree with the state action. Moreover, this disagreement may not have anything to do with the state’s substantive response to the environmental problem. So it was in this case. 17 Under RCRA, the state receives federal authorization only after satisfying the EPA that (1) the state program is equivalent to the federal program; (2) the state program is consistent with other state programs; and (3) the state program provides adequate enforcement of RCRA requirements. See 42 U.S.C. § 6926(b). Colorado met these exacting standards and received state authorization from EPA. At no time during the PEC incident did EPA question the state’s ability to handle the investigation, cleanup, or resolution of the case. Nor did EPA question the state’s fitness to keep its state authorization, although EPA has the power to withdraw such authorization: Whenever the Administrator determines after public hearing that a State is not administering and enforcing a program authorized under this section in accordance with requirements of this section, he shall so notify the State and, if appropriate corrective action is not taken within a reasonable time, not to exceed ninety days, the Administrator shall withdraw authorization of such program and establish a Federal program pursuant to this chapter. 42 U.S.C. § 6926(e). Rather, EPA complained that CDPHE had not exacted its “pound of flesh” from PEC by requiring it to put up more money in the way of civil penalties and financial assurances. In effect, EPA made an end run around the authorization withdrawal process and simply overrode the state’s enforcement strategy by filing its own civil action. The inconsistent federal suit not only demonstrated EPA’s open disregard for the state’s duly authorized RCRA enforcement program, but undermined Colorado’s own enforcement goals. This practice simply cannot be reconciled with the RCRA objective of establishing a federal-state partnership and relying on state enforcement to achieve the national goals of a cleaner and safer environment. To the contrary, it subverts that 18 objective and disrupts the state enforcement program. EPA enforcement under RCRA should be limited to those cases where the state is unwilling or incapable of enforcement altogether. If EPA enforcement goals are inconsistent with state enforcement objectives, EPA should withdraw state authorization and assume full responsibility for the hazardous waste program. For these reasons the petition should be granted. Ill THE PETITION SHOULD BE GRANTED BECAUSE THE IMPOSITION BY EPA OF AN INDEPENDENT AND CONFLICTING ENFORCEMENT STRATEGY IS CONTRARY TO THE GOALS OF RCRA AND THE EPA ITSELF In his article, State/Federal Enforcement of the Clean Air Act and Other Federal Pollution Laws: Federal Overfiling on State Enforcement Proceedings, 1987 B.Y.U.L. Rev. 1085, Steven Cook examines whether the practice of “overfiling” by EPA helps the agency achieve its goals of deterrence, fair and equitable treatment of the regulated community, and rapid resolution of environmental problems. He concludes that, on balance, it does not. To illustrate EPA’s “overfiling” practices, Cook cites two cases wherein EPA filed an action for civil penalties after the parties had signed a consent decree with the state settling the cases: United States v. Lehigh Portland Cement Co.,1984 U.S. Dist. LEXIS 21366, No. C84 3030 (N.D. Iowa 1984), and United States v. SCM Corp., 615 F. Supp. 411 (D. Md. 1985). Cook notes that the negotiations between the companies and the state were extensive and comprehensive and that EPA was aware of the negotiations but did not intervene until after settlement. He concludes that when EPA did take action, it was in utter disregard for the previous work of the parties and the overall effect of “overfiling’” was to the detriment, rather than dike Sv eae Heat Fe Cn ver eet Cr eee we Ae ees LOE SLE TE SL BOR SEMA Nii 2c Mee AB Sipeecas 19 in furtherance, of EPA’s civil penalty objectives. Cook, supra, at 1088-90. A. EPA “Overfiling” Has Only a Limited Deterrent Effect and Is Counterproductive According to Cook, EPA “overfiling” policy is designed to persuade violators to take precautions against future violations and to deter others from committing violations. Jd. at 1090. While acknowledging that “overfiling” has some deterrent effect, he concludes that the EPA’s preference for exacting money damages inhibits environmental cleanup because it weakens the negotiating power of the state and diverts money from the state which can be used for local pollution control. For example, Utah once entered into a ~ consent decree with Pacific States Cast Iron Pipe Company over CAA violations. In lieu of a $50,000 fine, Pacific States agreed to install additional air pollution equipment not required by law. Cook believes this approach is superior to the EPA money damages approach in that the former deters similar violations because the violator must spend substantial sums for the equipment and the equipment cleans up the pollution— something a check to the treasury cannot do. /d. at 1092. “If EPA insists on monetary damages in a situation such as with Pacific States, it restricts a state’s ability to impose equitable, non-monetary remedies.” Jd. at 1093. In the present case, CDPHE chose to forego financial assurances from PEC, apparently confident in the knowledge that it could enforce its compliance orders and that the money that would be applied toward the assurances would best be used for the cleanup itself. This Court recognized a phenomenon similar to Pacific States in a case called Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49 (1987). In Gwaltney, this Court considered whether the citizen suit provision in the CWA authorized citizen suits for wholly past violations. This Court determined the Act did not confer such jurisdiction. Concluding that the citizen suit provision of the CWA was 20 intended to support the government’s enforcement program and not displace it, this Court suggested a hypothetical to make its point. Suppose, this Court said, the Administrator of EPA identified a violator and issued a compliance order. Jd at 60. “Suppose further that the Administrator agreed not to assess or otherwise seek civil penalties on the condition that the violator take some extreme corrective action, such as to install particularly effective but expensive machinery, that it otherwise would not be obliged to take.” Jd. at 60-61. “If citizens could file suit, months or years later, in order to seek the civil penalties that the Administrator chose to forgo, then the Administrator’s discretion to enforce the Act in the public interest would be curtailed considerably.” Jd. at 61. So it is with “overfiling.” If EPA can file a suit, after the state resolves a RCRA action, as it did in this case, in order to seek exactions the state chose to forgo, then the state’s discretion to enforce RCRA in the public interest would be curtailed considerably. B. EPA “Overfiling” Is Unfair and Inequitable to the Regulated Community With respect to whether “overfiling” achieves the goal of fair and equitable treatment of the regulated community, Cook is pointed: While overfiling may conserve EPA’s enforcement resources, it is actually a duplication of effort and wastes limited enforcement dollars. EPA’s efforts do not produce additional facts or other pertinent information necessary to bring additional actions against other pollution sources. Instead, EPA recycles the same data and creates the illusion that it is leading the way in cracking down on the nation’s polluters. As a result, while federal and state agencies are pursuing one violator, other known or suspected violators are left outside the enforcement WIRE Sh aA a NE Catach 21 umbrella due to lack of money and insufficient personnel to pursue additional cases. Any money that is collected will end up in the general fund and will not create any additional funds for enforcement purposes. Consequently, the goal of fair and equitable treatment of the regulated community is not achieved as violators are either receiving a double blow or escaping untouched. Cook, supra, at 1094-95. C. EPA “Overfiling” Interferes with Swift Resolution of Environmental Problems I. his article, Cook ascertains three reasons why EPA “overfiling” does not advance the goal of rapid resolution of environmental problems. First, the speed and effectiveness with which a state can respond to a pollution problem is hampered by “overfiling” because subsequent negotiations with EPA can delay implementation of remedial measures agreed to by the state and the violator. /d. at 1095. Second, “overfiling” discourages early settlement because incentives for a violator to negotiate early with the state are diminished by the knowledge that the EPA may have to be satisfied later. Jd. at 1096. And third, “overfiling” undermines state credibility with the regulated community because the violator cannot rely on its negotiations with the state to conclude the matter. This can handicap efforts to reach quick settlements. Jd. According to Cook: Overfiling fails to promote swift resolution in any measurable way. Federal efforts merely duplicate the state’s actions by requiring the violator to go through a second set of negotiations. This new round of negotiations usually produces no additional benefit to the environment. Id. at 1095. 22 In summary, Cook maintains that while “overfiling” has some deterrent effect, it fails to acknowledge the needs and goals of the state program, violators are treated unequally, and resolution is delayed because the state’s credibility is eroded. He suggests, moreover, that EPA’s goals can be better accomplished through increased cooperation with the states. Jd. at 1101. Humphrey and Paddock agree. They conclude that federal “overfiling” results in redundant enforcement efforts, introduces uncertainty into the state enforcement program, saps the limited enforcement resources of state and federal agencies, undermines and disrupts the federal-state working relationships, and conflicts with the historical role of the state in addressing environmental problems. Humphrey, supra, at 39. If environmental compliance programs are going to work in the long run, there must be greater reliance on state and local enforcement. EPA “overfiling,” after a violator has negotiated a good faith settlement with the state, is counterproductive and should not be allowed. As Humphrey and Paddock realized: Twenty years ago, one of the main reasons for an increased federal role in environmental protection was the inadequacy of state programs, including state enforcement. Today, allowing states and, in some cases, local governments, to reassume a greater enforcement role may be the only way to ensure an effective enforcement presence among the tens of thousands of regulated entities that now exist in each state. Strong, well-focused enforcement efforts designed to address the varying types of regulated entities in each state are necessary to obtain high levels of voluntary compliance without which the vast regulatory programs will not succeed. Id. at 36-37. 23 CONCLUSION EPA “overfiling” is contrary to the RCRA objective to establish a viable federal-state partnership. “‘Overfiling” undermines that partnership and robs the state of meaningful enforcement discretion—discretion it was given when it was authorized to stand in the stead of EPA and enforce its own hazardous waste program. Moreover, the practice of “overfiling” does not advance the EPA’s enforcement goals. To the contrary, “overfiling” results in redundant enforcement efforts, introduces uncertainty into state enforcement programs, wastes public and private resources, arid conflicts with the historical and statutory role of states in dealing with local environmental problems. Moreover, the decision of the Tenth Circuit in this case, validating the EPA’s practice of “overfiling,” is in direct conflict with the Eighth Circuit’s decision in Harmon Industries. For these reasons, this Court should grant the Petition for Writ of Certiori and overrule the decision below. DATED: January, 2003. Respectfully submitted, M. REED HOPPER Counsel of Record ROBIN L. RIVETT Pacific Legal Foundation 10360 Old Placerville Road, Suite 100 Sacramento, California 95827 Telephone: (916) 362-2833 Facsimile: (916) 362-2932 Counsel for Petitioners sch saith Pa ORCI AL AT ABCa Nasa cy NY I dip 1 TABLE OF CONTENTS ~ Extension of time to file a Petition for Writ of Certiorari to January 17, 2003 (Application No. 02A393) Decision from the United States Court of Appeals for the Tenth Circuit (September 4, 2002) Decision from the United States District Court for the District of Colorado (November 24, 2000) Title 42. The Public Health and Welfare Chapter 82. Solid Waste Disposal General Provisions (42 U.S.C.S. § 6901 (2002)) Title 42. The Public Health and Welfare Chapter 82. Solid Waste Disposal General Provisions (42 U.S.C.S. § 6902 (2002)) Title 42. The Public Health and Welfare Chapter 82. Solid Waste Disposal Hazardous Waste Management (42 U.S.C.S. § 6926 (2002)) Title 42. The Public Health and Welfare Chapter 82. Solid Waste Disposal Hazardous Waste Management (42 U.S.C.S. § 6928 (2002)) Title 42. The Public Health and Welfare Chapter 82. Solid Waste Disposal Miscellaneous Provisions (42 U.S.C.S. § 6972 (2002)) Harmon Industries, Inc. v. Browner, 191 F.3d 894 (1999). Decision from the United States Court of Appeals for the Eighth Circuit Appendix A-1 SUPREME COURT OF THE UNITED STATES OFFICE OF THE CLERK WASHINGTON, DC 20543-0001 WILLIAM K. SUTER AREA CODE 202 CLERK OF THE COURT 479-3011 November 14, 2002 Mr. M. Reed Hopper 10360 Old Placerville Road Suite 100 Sacramento, CA 95827 Re: Power Engineering Company, et al. v. United States Application No. 02A393 Dear Mr. Hopper: The application for an extension of time within which to file a petition for a writ of certiorari in the above-entitled case has been presented to Justice Breyer, who on November 14, 2002, extended the time to and including January 17, 2003. Se ae mE Pet Meee eat Ye ae tor nite Or ee sac This letter has been sent to those designated on the attached notification list. ~ Sincerely, WILLIAM K. SUTER, Clerk By /s/ Ruth Jones Ruth Jones Assistant Clerk Appendix A-2 SUPREME COURT OF THE UNITED STATES OFFICE OF THE CLERK WASHINGTON, DC 20543-0001 WILLIAM K. SUTER AREA CODE 202 CLERK OF THE COURT 479-3011 NOTIFICATION LIST Mr. M. Reed Hopper 10360 Old Placerville Road Suite 100 Sacramento, CA 95827 Hon. Theodore B. Olson Solicitor General Department of Justice Washington, DC 20530 Clerk United States Court of Appeals for the Tenth Circuit Byron White Courthouse 1823 Stout Street Denver, CO 80257 Appendix B-1 303 F.3d 1232, 2002 U.S. App. LEXIS 18263, 54 ERC (BNA) 1993 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. POWER ENGINEERING COMPANY; REDOUBT, LTD.; RICHARD J. LILIENTHAL, Defendants-Appellants, AMERICAN IRON AND STEEL INSTITUTE; AMERICAN PETROLEUM INSTITUTE; CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; ENVIRONMENTAL FEDERATION OF OKLAHOMA; MICHIGAN MANUFACTURERS ASSOCIATION; NATIONAL ASSOCIATION OF MANUFACTURERS; WESTERN STATES PETROLEUM ASSOCIATION; STATE OF MAINE; STATE OF ARKANSAS; STATE OF CALIFORNIA; STATE OF CONNECTICUT; STATE OF ILLINOIS; STATE OF MONTANA; STATE OF NEW YORK; STATE OF VERMONT; STATE OF WEST VIRGINIA, Amici Curiae. Fe en ee ee Dh ete No. 01-1217 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT 303 F.3d 1232; 2002 U.S. App. LEXIS 18263; 54 ERC (BNA) 1993 PRIOR HISTORY: Appeal from the United States District Court for the District of ' September 4, 2002, Filed § 3 q } Colorado. (D. Ct. No. 97-B-1654). DISPOSITION: Affirmed. Appendix B-2 COUNSEL: John F. McBride (Robert T. McAllister of Robert T. McAllister, P.C., Denver, Colorado, with him on the briefs), Denver, Colorado, appearing for Appellant. Robert H. Oakley, Attorney, Department of Justice, Washington, DC (John C. Cruden, Acting Assistant Attorney General, Environment & Natural Resources Division, John W. Suthers, United States Attorney, John A. Bryson and John N. Moscato, Attorneys, Department of Justice, Washington, DC; and Stephen D. Taylor, Assistant United States Attorney, and Thomas Sitz, Office of Enforcement, Compliance and Environmental Justice, Environmental Protection Agency, Denver, Colorado, with him on the brief), appearing for Appellee. G. Steven Rowe, Attorney General, and John H. Edwards, Assistant Attorney General, Natural Resources Division, State of Maine, Department of the Attorney General, Augusta, Maine; Mark Pryor, Attorney General, State of Arkansas, Little Rock, Arkansas; Bill Lockyer, Attorney General, State of California, San Diego, California; Richard Blumenthal, Attorney General, State of Connecticut, Hartford, Connecticut; James E. Ryan, Attorney General, State of Illinois, Chicago, Illinois; Mike McGrath, Attorney General, State of Montana, Helena, Montana; Eliot Spitzer, Attorney General, State of New York, New York, New York; William H. Sorrell, Attorney General, State of Vermont, Montpelier, Vermont; and Darrell V. McGraw, Jr., Attorney General, State of West Virginia, Charleston, West Virginia, filed an amicus curiae brief in support of the United States Environmental Protection Agency. Scott M. DuBoff, Wright & Talisman, P.C., Washington, DC; Thomas M. Sneeringer, Washington, DC, Counsel for American Iron and Steel Institute; G. William Frick and Ralph Te ead : : « | £ é j | os nent ate. Pat ih dicate nh wD lad Pa ia DPM! the Appendix C-27 forth in Chevron does apply to an agency interpretation contained in a regulation.”). Accordingly, Mr. Jorling’s testimony does not trump the EPA’s interpretation of 40 C.F.R. §§ 271.16(c), 271.19. I also will not disregard the EPA’s interpretation because it is “contrary to the will of Congress.” Japan Whaling Ass’n, 478 U.S. at 233. Defendants primarily rely on two separate provisions of a report published by the House of Representatives regarding a preliminary version of the RCRA: This legislation permits the states to take the lead in the enforcement of the hazardous wastes [sic] laws. . . . Although the Administrator is required to give notice of violations of this title to the states with authorized hazardous waste programs the Administrator is not prohibited from acting in those cases where the state fails to act, or from withdrawing approval of the state hazardous waste plan and implementing the federal hazardous waste program pursuant to Title III of this act. The Administrator, after giving the appropriate notice to a state that is authorized to implement the state hazardous waste program, that violations of the Act are occurring and the state failing to take action against such violations, is authorized to take appropriate action against those persons in such state not in compliance with the hazardous waste title. H. Rep. 1491, 94th Cong., 2d Sess. 31, 32 reprinted in 1976 U.S.C.C.A.N. 6238, 6269, 6270. Nevertheless, these provisions of the House Report do not explicitly prohibit Plaintiffs action here. After Plaintiff provided notice to CDPHE regarding the Appendix C-28 RCRA remedies the CDPHE’s preexisting enforcement action failed to address, Colorado “fail[ed] to act” with respect to those remedies. I also note that Congress knew how to specifically prohibit enforcement action once any action is undertaken by a state. Section 6972 prohibits citizen suits to enforce the RCRA “‘if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State to require compliance with such permit, standard, regulation, condition, requirement, prohibition, or order.” 42 U.S.C. § 6972(b)(1)(B). Similar language was not included in Section 6928. ‘“‘Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”” Brown v. Gardner, 513 U.S. 115, 120, 130 L. Ed. 2d 462, 115 S. Ct. 552 (1994) (quoting Russello v. U.S., 464 U.S. 16, 23, 78 L. Ed. 2d 17, 104 S. Ct. 296 (1983)). Defendants also cite statements by individual Senators purportedly supporting the proposition that “Congress recognized that hazardous waste regulation [is] essentially a local issue.” Defendants’ Response at 18 (citing, e.g., Senator Randolph’s statement that “This legislation recognizes that solid waste is a uniquely local problem.”). The text of the statute, however, indicates that Congress thought otherwise. See 42 U.S.C. § 6901(a)(4) (“The Congress finds with respect to solid waste . . . that while the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies, the problems of waste disposal as set forth above have become a matter national in scope and in concern”); 42 U.S.C. § 6902(b) (“The Congress hereby declares it to be the national policy of the United States that, wherever feasible, the generation of hazardous waste is to be reduced or a ee ee Appendix C-29 eliminated as expeditiously as possible. Waste that is nevertheless generated should be treated, stored, or disposed of SO as to minimize the present and future threat to human health and the environment.”’) (emphasis added). See also 42 U.S.C. § 6903(5) (emphasis added) (“The term ‘hazardous waste’ means a solid waste.”). I cannot let the statements of individual Senators trump explicit statutory text. Under these circumstances, I will not conclude that “the legislative history of the enactment shows with sufficient clarity that the agency construction is contrary to the will of Congress.” Japan Whaling Ass’n, 478 U.S. at 233. iv. Finally, the consequences of the Harmon decision support my view of Congressional intent in writing the RCRA. Consider an authorized state with an unblemished record of both complying with the RCRA and working cooperatively with the EPA that discovers significant pollution caused by a large industrial employer located within the authorized state but in close proximity to the border of at least one other state. Because the polluting entity employs a large number of the authorized state’s citizens, and provides significant tax revenues to the authorized state, the authorized state is less than inclined to take the action mandated by the RCRA that might put the polluting employer at risk. Consequently, the authorized state, even after appeals from the EPA, takes minimal enforcement action against the polluting employer that protects the citizens of neither the authorized state nor the neighboring state(s). Under Harmon’s analysis of the RCRA, EPA’s only course of action would be to de-authorize the authorized state’s entire hazardous waste program, notwithstanding the state’s otherwise perfect record of enforcing the RCRA, in order to protect the citizens of the affected states. Based on the statute and legislative history, I find no evidence that Congress intended such an outcome. Appendix C-30 For the foregoing reasons, and because Defendants do not dispute that Plaintiff provided the notice required by Section 6928(a)(2) to the CDPHE prior to commencing this action, see Plaintiffs Response, Ex. 8 (letter dated August 26, 1996 informing the CDPHE that its actions with respect to Defendant PEC had not been “timely and/or appropriate,” and that unless the CDPHE so acted, Plaintiff would seek to enforce the RCRA itself); Plaintiffs Motion for Summary Judgment, Ex. 25 (affidavit of Carol Rushin, Assistant Regional Administrator, Office of Enforcement, Compliance and Environmental Justice, EPA, that subsequent to the August 26, 1996 letter Plaintiff informed the CDPHE that its failure to seek financial assurances was inappropriate), I conclude that the RCRA does not prohibit this action. 3. I find unpersuasive Defendants’ final argument that res judicata bars Plaintiffs claims here. In Drummond v. U.S., 324 U.S. 316, 89 L. Ed. 969, 65 S. Ct. 659 (1945), the Supreme Court held that as a general matter “to bind the United States when it is not formally a party, it must have a laboring oar in a controversy.” Drummond v. U.S., 324 U.S. 316, 318, 89 L. Ed. 969, 65 S. Ct. 659 (1945). The United States has a “laboring oar” when it “assume[s] control over litigation,” Montana v. U.S., 440 U.S. 147, 154, 59 L. Ed. 2d 210, 99 S. Ct. 970 (1979), by “employing counsel to represent its interest . . . or otherwise actively aid{ing] in [the] conduct” of the litigation. Drummond, 324 U.S. at 318. In Montana, such control was evident because the United States: (1) required the [] lawsuit to be filed; (2) reviewed and approved the complaint; (3) paid the attorneys’ fees and costs; TT Sea Appendix C-31 (4) directed the appeal from State District Court to the Montana Supreme Court; (5) appeared and submitted a brief as amicus in the Montana Supreme Court; (6) directed the filing of a notice of appeal to this Court; and (7) effectuated [the] abandonment of that appeal on advice of the Solicitor General. Montana, 440 U.S. at 154. In the context of federal-state relations, one leading treatise concludes that “it is clear that State and federal governments are separate parties for res judicata purposes, so that litigation by one does not bind another.” Wright, Federal Practice and Procedure, § 4458 at 503. Nevertheless, both Harmon and one other federal court has applied res judicata to a suit brought by the federal government after a state concluded a similar suit. See U.S. v. ITT Rayonier, Inc., 627 F.2d 996 (9th Cir. 1980). In my view, the Harmon decision results in an unsupported expansion of the doctrine of res judicata as it is applied to the federal government under existing Supreme Court authority. The Harmon court decided that because the RCRA “authorized the state to proceed ‘in lieu of the federal government and ‘with the same force and effect’ as the federal government... . the ‘laboring oar’ is pulled on much earlier in the process.... when the EPA grants the state permission to enforce the EPA’s interests through the state’s own hazardous waste program.” Harmon, 191 F.3d at 904. The Harmon court failed to cite any authority in which the federal government was deemed to have a “laboring oar” on the basis of a similarly attenuated connection, nor am I aware of any. Instead, the Harmon court cited generally to the Ninth Circuit’s decision in Rayonier. Appendix C-32 The Rayonier court, however, did not undertake the “laboring oar” analysis. The Ninth Circuit assessed whether the application of res judicata would “promote harmony and cooperation between courts.” Rayonier, 627 F.2d at 1001. Because it does not address whether the Federal Government pulled a “laboring oar” in the state court proceedings, I find the Rayonier decision unpersuasive. Rayonier is distinguishable for another reason. In Rayonier, the EPA authorized Washington State to issue permits under the Federal Water Pollution Control Act (FWPCA). Washington State then issued a permit to ITT Rayonier, Inc. that stated in “footnote f’ that certain standards stated in the permit “will be modified to be consistent with the applicable final effluent when promulgated by the EPA in the Federal Register, or as thereafter modified by final action consequent upon any appeal from such guidelines.” Id. at 999. In November 1975, the EPA notified Washington State that ITT Rayonier was not complying with new standards promulgated by the EPA that applied to ITT Rayonier under footnote f. Washington State issued a compliance order in December 1975 which was overturned by an intermediate state appellate court ruling that the new regulations did not apply to ITT Rayonier under footnote f. Soon thereafter, the EPA filed its own suit in federal court raising the same argument. The Rayonier court stated that “if the EPA is dissatisfied with state enforcement efforts or the lack thereof it can revoke permit-issuing authority or bring an independent action in federal court” /d. at 1002 (emphasis added). Because the “state court [] entered a final judgment on [the] identical issue” raised by the EPA in Federal court, the Ninth Circuit held that harmony and cooperation between state and federal courts would be best served if res judicata applied to the state court’s decision. See Rayonier, 627 F.2d at 1001 (“Res judicata is a rule promoting harmony and cooperation between courts.”). eee ye Appendix C-33 Here, in contrast, the issue of financial assurances was not before the Colorado court. In addition, the CDPHE supports Plaintiff's pursuit of financial assurances. Plaintiff's Motion for Partial Summary Judgment, Ex. 1 at 235 (testimony of Walter Avramenko, a CDPHE employee, at preliminary injunction hearing on May 11, 1998 that Colorado supports Plaintiff's action to obtain financial assurances); Ex. 8 at para. 24 (affidavit of Mr. Avramenko dated June 13, 2000). Applying res judicata in this instance, therefore, would not “promote harmony and cooperation between courts,” Rayonier, 627 F.2d at 1001, or between Colorado and the federal government. Instead, Plaintiff's suit here is precisely the type of “independent action” contemplated by the Ninth Circuit. Jd. at 1002 (“if the EPA is dissatisfied with state enforcement efforts or the lack thereof it can revoke permit-issuing authority or bring an independent action in federal court”) (emphasis added). Rayonier is distinguishable on its facts. Accordingly, I decline to follow either Rayonier or Harmon, and instead apply the Supreme Court’s analysis in Drummond and Montana. Because Defendants offer no evidence that Plaintiff exercised the type of control over the CDPHE’s state court action identified in Drummond and Montana, | will not conclude that Plaintiff pulled the “laboring oar,” or otherwise controlled, the CDPHE’s action in state court. See Montana, 440 U.S. at 154; Drummond, 324 U.S. at 318. For the foregoing reasons, the doctrine of res judicata does not apply to this case. In its motion for partial summary judgment, Plaintiff argues that Defendants are covered by the RCRA and that they treated, stored, and disposed of hazardous waste at their Facility in violation of the RCRA. In response, Defendants argue that: (1) financial assurances are no longer required because they are no longer actively violating the RCRA, Colorado statutes, or Appendix C-34 regulations; (2) because they “made tremendous progress in remediating contaminated soils and groundwater at or around PEC’s property, [and are] currently in compliance with the terms and conditions of the Compliance Order,” Defendants’ Response at 2, Plaintiff cannot establish an irreparable injury requiring a permanent injunction; (3) Defendant Lilienthal is not an “operator” of the Facility under Colorado regulations; and (4) the doctrine of laches bars this action. Again, I address each argument in turn. i. In their response to Plaintiff's motion for partial summary judgment, Defendants neither argue nor present any evidence that their past actions identified in detail by Plaintiff in its Motion for Partial Summary Judgment did not constitute treatment, storage, and disposal of hazardous waste at their Facility in violation of the RCRA and relevant state regulations. Defendants have also stipulated that under the RCRA and corresponding Colorado regulations the Facility is a “facility,” and Defendants PEC and Redoubt are an “operator” and “owner,” respectively, of the Facility. See Plaintiff's Motion for Partial Summary Judgment, Ex. 2 at paras. 13-16. See also 6 COLO. CODE REGS. 1007-3 §§ 260.10 (“The requirements of Sections 266.12, 266.14, and 266.16 through 266.17 applies [sic] to owners and operators of hazardous waste facilities, except as otherwise provided in this Section or in Section 264.1.”); 266.14 (“An owner or operator of each facility, on the effective date of these regulations, must establish financial assurance for closure of the facility, and if applicable, post-closure financial assurance.”). No genuine issue of material fact remains, therefore, regarding whether Defendants violated the RCRA and Colorado regulations, and Defendants PEC and Redoubt are subject to the RCRA and corresponding Colorado regulations. Consequently, summary judgment is appropriate on these questions. Appendix C-35 2. Defendants’ argument that financial assurances are no longer required because they are no longer actively violating the RCRA, Colorado statutes, or regulations is unpersuasive. At the preliminary injunction stage of this case, Defendants made the same argument. See U.S. v. Power Engineering Co., 10 F. Supp. 2d 1145, 1160-61 (D. Colo. 1998) (noting Defendants’ argument that “the United States may not obtain financial assurances for past violations of RCRA.”). As I held in my June 10, 1998 Memorandum Opinion and Order: Nothing within RCRA’s “cradle-to-grave” regulatory scheme indicates that owners and operators of hazardous waste facilities are exempt from providing financial assurance requirements before remediation and closure is accomplished. To the contrary, the clear intent of federal and state regulations is for the financial assurance requirements to attach until remediation, closure, and, if necessary, post-closure care is assured. See 40 C.F.R. § 265.1(a) (standards for Interim Status facilities “define the acceptable management of hazardous waste during the period of interim status and until certification of final closure” (emphasis added)); see also 40 C.F.R. § 265.1(b) (Interim Status standards “apply . . . until either a permit is issued . . . or until applicable closure and post-closure responsibilities are fulfilled”); 6 COLO. CODE REGS. 1007-3 §§ 265.1(a) and (b). Defendants’ failure to disclose their treatment, storage, and disposal of hazardous waste does not now exempt them from the financial assurance requirements. The evidence shows that defendants were legally obligated to but did not file a permit application, seek interim status, or cease their activities of treatment, storage, and disposal. Like many of the facilities Appendix C-36 operating before and after RCRA’s effective date, the Facility is now somewhere between the cradle and grave. The recent discovery of defendants’ previous unauthorized activities does not, at this juncture, relieve them from their legal obligation to provide financial assurances. To hold otherwise would be contrary to the expressed intent of Congress, the clear language of applicable regulations, and public policy. To reward defendants’ past evasion of RCRA would encourage similar conduct by others. Id. at 1161-62. Defendants attack, therefore, a holding that is the law of this case. “The law of the case ‘doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” U.S. v. Monsisvais, 946 F.2d 114, 115 (10th Cir. 1991) (quoting Arizona v. California, 460 U.S. 605, 618,75 L. Ed. 2d 318, 103 S. Ct. 1382 (1983)). “The doctrine is ‘based on sound public policy that litigation should come to an end and is designed to bring about a quick resolution of disputes by preventing continued re-argument of issues already decided.” Mcllravy v. Kerr-McGee Coal Corp., 204 F.3d 1031, 1035 (10th Cir. 2000) (quoting Gage v. General Motors Corp., 796 F.2d 345, 349 (10th Cir. 1986) (citations omitted)). The doctrine is, however, “only a rule of practice in the courts and not a limit on their power.” Monsisvais, 946 F.2d at 116 (citing Messenger v. Anderson, 225 U.S. 436, 444, 56 L. Ed. 1152, 32 S. Ct. 739 (1912)). The Tenth Circuit has recognized three “exceptionally narrow” grounds for departure from that rule of practice: “(1) when the evidence in a subsequent trial is substantially different; (2) when controlling authority kas subsequently made a contrary decision of the law applicable to such issues; or (3) when the decision was clearly erroneous and would work a manifest injustice.” U.S. v. Alvarez, 142 F.3d 1243, 1247 (10th Appendix C-37 Cir.), cert. denied, 525 U.S. 905, 142 L. Ed. 2d 199, 119 S. Ct. 242 (1998) (citing Monsisvais, 946 F.2d at 117). Here, Defendants have provided no reason why I should disregard my previous ruling. Accordingly, my June 10, 1998 holding that Plaintiffis permitted to obtain financial assurances for past violations of the RCRA is the law of the case. 3. The thrust of Defendants’ response to Plaintiffs motion for partial summary judgment is that they have “made tremendous progress in remediating contaminated soils and groundwater at or around PEC’s property, [and are] currently in compliance with the terms and conditions of the Compliance Order.” Defendants’ Response at 2. Based on this “tremendous progress,” Defendants argue that Plaintiff cannot establish the type of irreparable injury necessary to warrant the entry of permanent injunction at the summary judgment stage. I disagree. Under Tenth Circuit authority, When the evidence shows that the defendants are engaged in, or about to be engaged in, the act or practices prohibited by a statute which provides for injunctive relief to prevent such violations, irreparable harm to the plaintiffs need not be shown. Atchison, Topeka and Santa Fe Ry. v. Lennen, 640 F.2d 255, 259 (10th Cir. 1981) (per curiam). Further, “where an injunction is authorized by statute it is unnecessary for plaintiff to plead and prove the existence of the usual equitable grounds, irreparable injury and absence of an adequate remedy at law. It is enough if the requirements of the statute are satisfied.” Jd. at 260. J Appendix C-38 Here, “the financial assurance requirements [of the relevant statutes and regulations] attach until remediation, closure, and, if necessary, post-closure care is assured.” Power Engineering, 10 F. Supp. 2d at 1161-62. Moreover, the RCRA specifically authorizes Plaintiff to seek injunctive relief. See 42 U.S.C. § 6928(a)(1). Because Defendants do not genuinely dispute that their previous treatment, storage, and disposal of hazardous waste at their Facility requires them to provide financial assurances, or that remediation is incomplete, they are currently in violation of the financial assurance requirements of the Colorado regulations. Consequently, “Defendants are engaged in... the act or practices prohibited by a statute which provides for injunctive relief to prevent such violations, [and consequently] irreparable harm to the plaintiffs need not be shown.” Atchison, 640 F.2d at 259. I will not, therefore, deny Plaintiff's motion based on Defendants’ allegations that they have made “tremendous progress” in the remediation of the Facility. 4. I also find unpersuasive Defendant Lilienthal’s argument that there are genuine issues of material fact as to whether he is an operator of the Facility. At all times relevant to this action, Defendant Redoubt owned the lands and buildings at the Facility, and leased both to Defendant PEC. Plaintiff's Motion for Partial Summary Judgment, Ex. 2 at para.6-7. At the time Plaintiff filed the initial complaint in this action, Defendant Lilienthal was the president of Defendants PEC and Redoubt, and owned 51% of the outstanding stock in both. /d., Ex. 2 at para. 8. The Lilienthal Family Trust owned the remainder of the stock in both Defendant PEC and Redoubt. See id. Ex. 1 at 23. Plaintiff contends, and Defendants do not dispute, that Defendant Lilienthal now owns 100% of the outstanding stock in Defendant PEC. Jd. at 13. Moreover, Defendants admit that Defendant “Lilienthal generally was involved in making ee a ee ee Appendix C-39 management decisions for [Defendants PEC and Redoubt], including decisions regarding environmental compliance matters.” Amended Answer at para. 8. Defendants’ admission is supported by testimony from Defendant Lilienthal and others at Defendants PEC and Redoubt. In Defendant Lilienthal’s deposition, the following exchange occurred: Q: Mr. Lilienthal, are you committed to clean up the Power Engineering property? A: I am still here. I haven’t fled to Belize. | worked for my father since I was 17 years old. Iknow no other place, no other business. The property is a good property. My company is a good company I have people that have worked for me for over 40 years there. I have been trying to clean up my property for at least five years or more. I can get no direction. I can get no help. I can get no answers. I have paid multi-thousands of dollars out in lawyer fees. Yeah, I’ve done things wrong, probably filled out paperwork that was wrong. I didn’t get the things done on time that I was supposed to. I stored some waste for a long time that I shouldn’t have stored it. We hoped to reuse it and put it back in the tanks, which we could have done, but we had to ship it out. All I want to do is I want to clean the property up. Plaintiff's Motion for Partial Summary J udgment, Ex. 1, at 445. In addition, Defendant PEC’s comptroller, Daniel Frieson, testified as follows: ee _ ey Pee ey ae ae a — oa = Appendix C-40 Q: I’m going to jump around a little bit again. With regard to environmental decisions at Power Engineering, those are decisions concerning what remediation to do, how fast to do it, when to do it. Do you make those decisions? A: No. Q: Who makes those decisions? A: Dick Lilienthal. Q: That would include decisions-to your knowledge, has Mr. Lilienthal involved himself in decisions regarding disposal of hazardous waste? A: On a day to day basis? Q: Yes sir. A: I talk to Dick about getting set up with the facility. This facility actually talked to our health and safety manager, gave him a price. I looked at the price and said, Dick, this is what we came up with. Is this okay? Do you approve it? Well, he said, yes. So we don’t ask him every shipment, does he approve that shipment? It’s something—it’s just part of our operation that’s ongoing. Q: For instance, if you were looking at facility cleanup, does Mr. Lilienthal have the ultimate authority to make a determination on how to clean up and how much money to spend? A: Yes. Appendix C-41 Q: And, in fact, does he exercise that authority? A: Yes. Q: PEC is a public corporation, is it not? A: No, it’s privately held. Q: It’s privately held. Essentially, is Mr. Lilienthal the person who holds controlling interest in PEC? A: That’s correct. Q: Asa person who holds controlling interest, he would have ultimate authority over its business decisions? A: That’s correct. Q: Over its environmental decisions? A: That’s correct. Q: Over the direction and tenor of its relationships with the Environmental Protection Agency or the State of Colorado Department of Health? A: He is directly involved in it. Id., Ex. 11 at 87-89. Under Colorado regulations, “‘operator’ means the person operating a hazardous waste management facility or site either by contract or permit.” 6 COLO. CODE REGS. § 260.10. Appendix C-42 Courts have devised two tests to determine operator liability under the RCRA and_ state’ regulations. The “authority-to-control” test imposes operator liability “as long as one [entity] had the capability to control [another entity], even if it was never utilized.” Lansford-Coaldale Joint Water Auth. v. Tonolli Corp., 4 F.3d 1209, 1221 (3d Cir. 1993); see also FMC Corp. v. Aero Indus., 998 F.2d 842, 846 (10th Cir. 1993) (citing cases) (noting that some courts treat those with authority to control a facility as operators regardless of whether they actually exercise that control). The “actual control” test, in contrast, considers whether a corporation exercised “substantial control” over the activities of another corporation which commits an environmental violation. Lansford-Coaldale, 4 F.3d at 1221; see also FMC, 998 F.2d at 846 (“Actual control and personal participation in the wrongful conduct clearly makes one an operator under CERCLA.”); U.S. v. Kayser-Roth Corp., 910 F.2d 24, 27 (1st Cir. 1990) (holding that to be an operator, a parent corporation must, at a minimum, be actively involved in its subsidiary’s activities); Mathews v. Dow Chem. Co., 947 F. Supp. 1517, 1526 (D. Colo. 1996) (citing cases) (recognizing that most courts impose operator liability upon one corporation for the acts of another corporation where the first corporation exercises “substantial control” over the second). Although these tests have been devised to determine whether an individual or entity is an “operator” under the Comprehensive Environmental Response Compensation and Liability Act, there is no reason not to apply them to the “operator” inquiry under the RCRA given the similarity of the definitions in both statutes. See 42 U.S.C.A. § 9601(20)(A) (“The term ‘owner or operator’ means... any person . . . operating such facility”). - The Tenth Circuit has not chosen between the two tests, see FMC, 998 F.2d at 846 (identifying both approaches but holding that “we need not decide which approach is best because” the Defendant was liable under both), and neither do I. Under either test, Defendant Lilienthal is an “operator” of the Appendix C-43 facility. Consequently, there is no genuine issue of material fact as to whether Defendant Lilienthal is an operator of the F acility. 5. Finally, I reject Defendants’ argument that there are “factual disputes as to whether laches bars Plaintiffs claims.” Plaintiff's Response at 24. The Supreme Court has held that “laches or neglect of duty on the part of officers of the government is no defense to a suit by it to enforce a public right or protect a public interest.” . Utah Power & Light Co. v. U.S., 243 U.S. 389, 409, 61 L. Ed. 791, 37 S. Ct. 387 (1917). See Albrechtsen v. Andrus, 570 F.2d 906, 910 (10th Cir.), cert. denied, 439 U.S. 818, 58 L. Ed. 2d 109, 99 S. Ct. 79 (1978) (citing Utah Power & Light and holding that “the Government is too vast, its operations too varied and intricate, to put it to the risk of losing that which it holds for the nation as a whole because of the oversight of subordinate officials.”). Defendants state that no public interest is involved because “the interest sought to be protected by the Plaintiff in this case is the government’s economic interest in having PEC pay for remedia! activities.’ Defendants’ Opposition at 20. If Defendants do not pay for remediation of the Facility, however, it is likely that the Government, and thus the public, will. I conclude, therefore, that Plaintiffs suit is “to . .. protect a public interest.” Utah Power & Light Co., 243 U.S. at 409. Summary judgment is appropriate against Defendants’ claim that the doctrine of laches applies to this case. Accordingly, IT IS ORDERED THAT (1) PlaintifPs Motion for Partial Summary Judgment is GRANTED; (2) Defendants’ Motion for Summary Judgment is DENIED; Appendix C-44 (3) Defendants are required to provide financial assurances for closure and postclosure care of the Facility and to post third-party assurances in a manner consistent with 6 COLO. CODE REGS. 1007-3 §§ 266 and ail applicable subparts; and (4) Plaintiff is AWARDED ITS COSTS. Dated: November 24, 2000 in Denver, Colorado. BY THE COURT: LEWIS T. BABCOCK, CHIEF JUDGE 3 + aq 4 any eb : | = v4 “a ei i oF ES # BS a 7] BY oJ 4 AT a) x 4 Appendix D-1 TITLE 42. THE PUBLIC HEALTH AND WELFARE CHAPTER 82. SOLID WASTE DISPOSAL GENERAL PROVISIONS 42 USCS § 6901 (2002) § 6901. Congressional findings (a) Solid waste. The Congress finds with respect to solid waste— (1) that the continuing technological progress and improvement in methods of manufacture, packaging, and marketing of consumer products has resulted in an ever-mounting increase, and in a change in the characteristics, of the mass material discarded by the purchaser of such products; (2) that the economic and population growth of our Nation, and the improvements in the standard of living enjoyed by our population, have required increased industrial production to meet our needs, and have made necessary the demolition of old buildings, the construction of new buildings, and the provision of highways and other avenues of transportation, which, together with related industrial, commercial, and agricultural operations, have resulted in a rising tide of scrap, discarded, and waste materials; (3) that the continuing concentration of our population in expanding metropolitan and other urban areas has presented these communities with serious financial, management, intergovernmental, and technical problems in the disposal of solid wastes resulting from the industrial, commercial, domestic, and other activities carried on in such areas; Appendix D-2 (4) that while the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies, the problems of waste disposal as set forth above have become a matter national in scope and in concern and necessitate federal action through financial and technical assistance and leadership in the development, demonstration, and application of new and improved methods and processes to reduce the amount of waste and unsalvageable materials and to provide for proper and economical solid waste disposal practices. (b) Environment and health. The Congress finds with respect to the environment and health, that— (1) although land is too valuable a national resource to be needlessly polluted by discarded materials, most solid waste is disposed of on land in open dumps and sanitary landfills; (2) disposal of solid waste and hazardous waste in or on the land without careful planning and management can present a danger to human health and the environment; (3) as aresult of the Clean Air Act [42 USCS §§ 7401 et seq.], the Water Pollution Control Act [33 USCS §§ 1251 et seq], and other Federal and State laws respecting public health and the environment, greater amounts of solid waste (in the form of sludge and other pollution treatment residues) have been created. Similarly, inadequate and environmentally unsound practices for the disposal or use of solid waste have created greater amounts of air and water pollution and other problems for the environment and for health; (4) open dumping is particularly harmful to health, contaminates drinking water from underground and surface supplies, and pollutes the air and the land; Appendix D-3 (5) the placement of inadequate controls on hazardous waste management will result in substantial risks to human health and the environment; (6) if hazardous waste management is improperly per- formed in the first instance, corrective action is likely to be expensive, complex, and time consuming; (7) certain classes of iand disposal facilities are not capable of assuring long-term containment of certain hazardous wastes, and to avoid substantial risk to human health and the environment, reliance on land disposal should be minimized or eliminated, and land disposal, particularly landfill and surface impoundment, should be the least favored method for managing hazardous wastes; and (8) alternatives to existing methods of land disposal must be developed since many of the cities in the United States will be running out of suitable solid waste disposal sites within five years unless immediate action is taken. (c) Materials. The Congress finds with respect to materials, that— (1) millions of tons of recoverable material which could be used are needlessly buried each year; (2) methods are available to separate usable materials from solid waste; and (3) the recovery and conservation of such materials can reduce the dependence of the United States on foreign resources and reduce the deficit in its balance of payments. Appendix D-4 (d) Energy. The Congress finds with respect to energy, that— (1) solid waste represents a potential source of solid fuel, oil, or gas that can be converted into energy, (2) the need exists to develop alternative energy sources for public and private consumption in order to reduce our dependence on such sources as petroleum products, natural gas, nuclear and hydroelectric generation; and (3) technology exists to produce usable energy from solid ~waste. * * * * Appendix E-1 TITLE 42. THE PUBLIC HEALTH AND WELFARE CHAPTER 82. SOLID WASTE DISPOSAL GENERAL PROVISIONS 42 USCS § 6902 (2002) § 6902. Objectives and national policy (a) Objectives. The objectives of this Act [42 USCS §§ 6901 et seq.] are to promote the protection of health and the environment and to conserve valuable material and energy resources by— (1) providing technical and financial assistance to State and local governments and interstate agencies for the development of solid waste management plans (including resource recovery and resource conservation systems) which will promote improved solid waste management techniques (including more effective organizational arrangements), new and improved methods of collection, separation, and recovery of solid waste, and the environmentally safe disposal of nonrecoverable residues; (2) providing training grants in occupations involving the design, operation, and maintenance of solid waste disposal systems; (3) prohibiting future open dumping on the land and requiring the conversion of existing open dumps to facilities which do not pose a danger to the environment or to health; (4) assuring that hazardous waste management practices are conducted in a manner which protects human health and the environment; Appendix E-2 (5) requiring that hazardous waste be properly managed in the first instance thereby reducing the need for corrective action at a future date; (6) minimizing the generation of hazardous waste and the land disposal of hazardous waste by encouraging process substitution, materials recovery, properly conducted recycling and reuse, and treatment; (7) establishing a viable Federal-State partnership to carry out the purposes of this Act [42 USCS §§ 6901 et seq.] and insuring that the Administrator will, in carrying out the provisions of subtitle C of this Act [42 USCS §§ 6921 et seq.], give a high priority to assisting and cooperating with States in obtaining full authorization of State programs under subtitle C [42 USCS §§ 6921 et seq.]; (8) providing for the promulgation of guidelines for solid waste collection, transport, separation, recovery, and disposal practices and systems; (9) promoting a national research and development program for improved solid waste management and resource conservation techniques, more effective organizational arrangements, and new and improved methods of collection, separation, and recovery, and recycling of solid wastes and environmentally safe disposal of nonrecoverable residues; (10) promoting the demonstration, construction, and application of solid waste management, resource recovery, and resource conservation systems which preserve and enhance the quality of air, water, and land resources; and (11) establishing a cooperative effort among the Federal, State, and local governments and private enterprise in order to recover valuable materials and energy from solid waste. , = Appendix E-3 (b) National policy. The Congress hereby declares it to be the national policy of the United States that, wherever feasible, the generation of hazardous waste is to be reduced or eliminated as expeditiously as possible. Waste that is nevertheless generated should be treated, stored, or disposed of so as to minimize the present and future threat to human health and the environment. * * * * Appendix F-1 TITLE 42. THE PUBLIC HEALTH AND WELFARE CHAPTER 82. SOLID WASTE DISPOSAL HAZARDOUS WASTE MANAGEMENT 42 USCS § 6926 (2002) § 6926. Authorized State hazardous waste programs (a) Federal guidelines. Not later than eighteen months after the date of enactment of this Act [Oct. 21, 1976], the Administrator, after consultation with State authorities, shall promulgate guidelines to assist States in the development of State hazardous waste programs. (b) Authorization of State program. Any State which seeks to administer and enforce a hazardous waste (and to enforce permits deemed to have been issued under section 3012(d){1) [42 USCS § 6933(d)(1)]) program pursuant to this subtitle [42 USCS §§ 6921 et seq.] may develop and, after notice and opportunity for public hearing, submit to the Administrator an application, in such form as he shall require, for authorization of such program. Within ninety days following submission of an application under this subsection, the Administrator shall issue a notice as to whether or not he expects such program to be authorized, and within ninety days following such notice (and after opportunity for public hearing) he shall publish his findings as to whether or not the conditions listed in items (1), (2), and (3) below have been met. Such State is authorized to carry out such program in lieu of the Federal program under this subtitle [42 USCS §§ 6921 et seq.] in such State and to issue and enforce permits for the storage, treatment, or disposal of hazardous waste and to enforce permits deemed to have been issued under section 3012(d)(1) [42 USCS § 6933(d)(1)] unless, within ninety days Appendix F-2 following submission of the application the Administrator notifies such State that such program may not be authorized and, within ninety days following such notice and after opportunity for public hearing, he finds that (1) such State program is not equivalent to the Federal program under this subtitle [42 USCS §§ 6921 et seq.], (2) such program is not consistent with the Federal or State programs applicable in other States, or (3) such program does not provide adequate enforcement of compliance with the requirements of this subtitle [42 USCS §§ 6921 et seq.]. In authorizing a State program, the Administrator may base his findings on the Federal program in effect one year prior to submission of a State's application or in effect on January 26, 1983, whichever is later. (c) Interim authorization. (1) — Any State which has in existence a hazardous waste program pursuant to State law before the date ninety days after the date of promulgation of regulations under sections 3002, 3003, 3004, and 3005 [42 USCS §§ 6922, 6923, 6924, and 6925], may submit to the Administrator evidence of such existing program and may request a temporary authorization to carry out such program under this subtitle [42 USCS §§ 6921 et seq.]. The Administrator shall, if the evidence submitted shows the existing State program to be substantially equivalent to the Federal program under this subtitle, grant an interim authorization to the State to carry out such program in lieu of the Federal program pursuant to this subtitle [42 USCS §§ 6921 et seq.] for a period ending no later than January 31, 1986. (2) The Administrator shall, by rule, establish a date for the expiration of interim authorization under this subsection. (3) Pending interim or final authorization of a State program for any State which reflects the amendments made by the Hazardous and Solid Waste Amendments of 1984 [Nov. 8, Appendix F-3 1984], the State may enter into an agreement with the Administrator under which the State may assist in the administration of the requirements and prohibitions which take effect pursuant to such Amendments. (4) In the case of a State permit program for any State which is authorized under subsection (b) or under this subsection, until such program is amended to reflect the amendments made by the Hazardous and Solid Waste Amendments of 1984 and such program amendments receive interim or final authorization, the Administrator shall have the authority in such State to issue or deny permits or those portions of permits affected by the requirements and prohibitions established by the Hazardous and Solid Waste Amendments of 1984. The Administrator shall coordinate with States the procedures for issuing such permits. (d) Effect of State permit. Any action taken by a State under a hazardous waste program authorized under this section shall have the same force and effect as action taken by the Administrator under this subtitle [42 USCS §§ 6921 et seq.]. (e) Withdrawal of authorization. Whenever the Administrator determines after public hearing that a State is not administering and enforcing a program authorized under this section in accordance with requirements of this section, he shall so notify the State and, if appropriate ccrreciive action is not taken within a reasonable time, not to exceed ninety days, the Administrator shall withdraw authorization of such program and establish a Federal program pursuant to this subtitle [42 USCS §§ 6921 et seq.]. The Administrator shall not withdraw authorization of any such program unless he shall first have notified the State, and made public, in writing, the reasons for such withdrawal. _— Appendix F-4 (f) Availability of information. No State program may be authorized by the Administrator under this section unless—— (1) such program provides for the public availability of information obtained by the State regarding facilities and sites for the treatment, storage, and disposal of hazardous waste; and (2) such information is available to the public in substantially the same manner, and to the same degree, as would be the case if the Administrator was carrying out the provisions of this subtitle [42 USCS §§ 6921 et seq.] in such State. (g) Amendments made by 1984 Act. (1) Any requirement or prohibition which is applicable to the generation, transportation, treatment, storage, or disposal of hazardous waste and which is imposed under this subtitle [42 USCS §§ 6921 et seq.] pursuant to the amendments made by the Hazardous and Solid Waste Amendments of 1984 shall take effect in each State having an interim or finally authorized State program on the same date as such requirement takes effect in other States. The Administrator shall carry out such requirement directly in each such State unless the State program is finally authorized (or is granted interim authorization as provided in paragraph (2)) with respect to such requirement. (2) Any State which, before the date of the enactment of the Hazardous and Solid Waste Amendments of 1984 [Nov. 8, 1984] has an existing hazardous waste program which has been granted interim or final authorization under this section may submit to the Administrator evidence that such existing program contains (or has been amended to include) any requirement which is substantially equivalent to a requirement Appendix F-5 referred to in paragraph (1) and may request interim authorization to carry out that requirement under this subtitle [42 USCS §§ 6921 et seq.]. The Administrator shall, if the evidence submitted shows the State requirement to be substantially equivalent to the requirement referred to in paragraph (1), grant an interim authorization to the State to carry out such requirement in lieu of direct administration in the State by the Administrator of such requirement. (h) State programs for used oil. In the case of used oil which is not listed or identified under this subtitle [42 USCS §§ 6921 et seq.] as a hazardous waste but which is regulated under section 3014 [42 USCS § 6935], the provisions of this section regarding State programs shall apply in the same manner and to the same extent as such provisions apply to hazardous waste identified or listed under this subtitle [42 USCS §§ 6921 et seq.]. ** * * Appendix G-1 TITLE 42. THE PUBLIC HEALTH AND WELFARE CHAPTER 82. SOLID WASTE DISPOSAL HAZARDOUS WASTE MANAGEMENT 42 USCS § 6928 (2002) § 6928. Federal enforcement (a) Compliance orders. (1) Except as provided in paragraph (2), whenever on the basis of any information the Administrator determines that any person has violated or is in violation of any requirement of this subtitle [42 USCS-§§ 6921 et seq.], the Administrator may issue an order assessing a civil penalty for any past or current violation, requiring compliance immediately or within a specified time period, or both, or the Administrator may commence a civil action in the United States district court in the district in which the violation occurred for appropriate relief, including a temporary or permanent injunction. (2) In the case of a violation of any requirement of this subtitle [42 USCS §§ 6921 et seq.] where such violation occurs in a State which is authorized to carry out a hazardous waste program under section 3006 [42 USCS § 6926], the Administrator shall give notice to the State in which such violation has occurred prior to issuing an order or commencing a civil action under this section. (3) | Anyorder issued pursuant to this subsection may include a suspension or revocation of any permit issued by the Administrator or a State under this subtitle [42 USCS §§ 6921 et seq.] and shall state with reasonable specificity the nature of the violation. Any penalty assessed in the order shall not exceed $25,000 per day of noncompliance for each violation of a requirement of this subtitle [42 USCS §§ 6921 et seq.]. In Appendix G-2 assessing such a penalty, the Administrator shall take into account the seriousness of the violation and any good faith efforts to comply with applicable requirements. (b) Public hearing. Any order issued under this section shall become final unless, no later than thirty days after the order is served, the person or persons named therein request a public hearing. Upon such request the Administrator shall promptly conduct a public hearing. In connection with any proceeding under this section the Administrator may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and may promulgate rules for discovery procedures. (c) Violation of compliance orders. If a violator fails to take corrective action within the time specified in a compliance order, the Administrator may assess a civil penalty of not more than $25,000 for each day of continued noncompliance with the order and the Administrator may suspend or revoke any permit issued to the violator (whether issued by the Administrator or the State). (d) Criminal penalties. Any person who— (1) knowingly transports or causes to be transported any hazardous waste identified or listed under this subtitle [42 USCS §§ 6921 et seq.] to a facility which does not have a permit under this subtitle [42 USCS §§ 6921 et seq.], or pursuant to title | of the Marine Protection, Research, and Sanctuaries Act (86 Stat. 1052) [33 USCS §§ 1411 et seq.], (2) knowingly treats, stores, or disposes of any hazardous waste identified or listed under this subtitle [42 USCS §§ 6921 et seq. ]— aE eee Appendix G-3 (A) without a permit under this subtitle [42 USCS §§ 6921 et seq.] or pursuant to title I of the Marine Protection, Research, and Sanctuaries Act (86 Stat. 1052) [33 USCS §§1411 et seq.]; or (B) in knowing violation of any material condition or requirement of such permit; or (C) in knowing violation of any material condition or requirement of any applicable interim status regulations or standards; (3) knowingly omits material information or makes any false material statement or representation in any application, label, manifest, record, report, permit, or other document filed, maintained, or used for purposes of compliance with regulations promulgated by the Administrator (or by a State in the case of an authorized State program) under this subtitle [42 USCS §§ 6921 et seq.]; (4) knowingly generates, stores, treats, transports, disposes of, exports, or otherwise handles any hazardous waste or any used oil not identified or listed as a hazardous waste under this subtitle [42 USCS §§ 6921 et seq.] (whether such activity took place before or takes place after the date of the enactment of this paragraph [Oct. 21, 1980]) and who knowingly destroys, alters, conceals, or fails to file any record, application, manifest, report, or other document required to be maintained or filed for purposes of compliance with regulations promulgated by the Administrator (or by a State in the case of an authorized State program) under this subtitle [42 USCS §§ 6921 et seq.]; (5) knowingly transports without a manifest, or causes to be transported without a manifest, any hazardous waste or any used oil not identified or listed as a hazardous waste under this subtitle [42 USCS §§ 6921 et seq.] required by regulations Appendix G-4 promulgated under this subtitle [42 USCS §§ 6921 et seq.] (or by a State in the case of a State program authorized under this subtitle [42 USCS §§ 6921 et seq.]) to be accompanied by a manifest; (6) knowingly exports a hazardous waste identified or listed under this subtitle [42 USCS §§ 6921 et seq.] (A) without the consent of the receiving country or, (B) where there exists an international agreement between the United States and the government of the receiving country establishing notice, export, and enforcement procedures for the transportation, treatment, storage, and disposal of hazardous wastes, in a manner which is not in conformance with such agreement[.]; or (7) knowingly stores, treats, transports, or causes to be transported, disposes of, or otherwise handles any used oil not identified or listed as a hazardous waste under subtitle C of the Solid Waste Disposal Act [42 USCS §§ 6921 et seq.]— (A) in knowing violation of any material condition or requirement of a permit under this subtitle C [42 USCS §§ 6921 et seq.]; or (B) in knowing violation of any material condition or requirement of any applicable regulations or standards under this Act [42 USCS §§ 6901 et seq.]; shall, upon conviction, be subject to a fine of not more than $50,000 for each day of violation, or imprisonment not to exceed two years (five years in the case of a violation of paragraph (1) or (2)), or both. Ifthe conviction is for a violation committed after a first conviction of such person under this paragraph, the maximum punishment under the respective paragraph shall be doubled with respect to both fine and imprisonment. Appendix G-5 (e) Knowing endangerment. Any person who knowingly transports, treats, stores, disposes of, or exports any hazardous waste identified or listed under this subtitle or used oil not identified or listed as a hazardous waste under this subtitle [42 USCS §§ 6921 et seq.] in violation of paragraph (1), (2), (3), (4), (5), (6), or (7) of subsection (d) of this section who knows at that time that he thereby places another person in imminent danger of death or serious bodily injury, shall, upon conviction, be subject to a fine of not more than $250,000 or imprisonment for not more than © fifteen years, or both. A defendant that is an organization shall, upon conviction of violating this subsection, be subject to a fine of not more than $1,000,000. (f) Special rules. For the purposes of subsection (e)— (1) A person’s state of mind is knowing with respect to— (A) his conduct, if he is aware of the nature of his conduct; (B) anexisting circumstance, ifhe is aware or believes that the circumstance exists; or (C) aresult of his conduct, if he is aware or believes that his conduct is substantially certain to cause danger of death or serious bodily injury. (2) In determining whether a defendant who is a natural person knew that his conduct placed another person in imminent danger of death or serious bodily injury— (A) the person is responsible only for actual awareness or actual belief that he possessed; and Appendix G-6 (B) knowledge possessed by a person other than the defendant but not by the defendant himself may not be attributed to the defendant; Provided, That in proving the defendant’s possession of actual knowledge, circumstantial evidence may be used, including evidence that the defendant took affirmative steps to shield himself from relevant information. (3) It is an affirmative defense to a prosecution that the conduct charged was consented to by the person endangered and that the danger and conduct charged were reasonably foreseeable hazards of— (A) an occupation, a business, or a profession; or (B) medical treatment or medical or scientific experimentation conducted by professionally approved methods and such other person had been made aware of the risks involved prior to giving consent. The defendant may establish an affirmative defense under this subsection by a preponderance of the evidence. (4) All general defenses, affirmative defenses, and bars to prosecution that may apply with respect to other Federal criminal offenses may apply under subsection (e) and shall be determined by the courts of the United States according to the principles of common law as they may be interpreted in the light of reason and experience. Concepts of justification and excuse applicable under this section may be developed in the light of reason and experience. ~~ (5) The term “organization” means a legal entity, other than a government, established or organized for any purpose, and such term includes a corporation, company, association, Appendix G-7 firm, partnership, joint stock company, foundation, institution, trust, society, union, or any other association of persons. (6) The term “serious bodily injury” means— (A) bodily injury which involves a substantial risk of death; (B) unconsciousness; (C) extreme physical pain; (D) protracted and obvious disfigurement; or (E) protracted loss or impairment of the function of a bodily member, organ, oz mental faculty. (g) Civil penalty. Any person who violates any requirement of this subtitle [42 USCS §§ 6921 et seq.] shall be liable to the United States for a civil penalty in an amount not to exceed $25,000 for each such violation. Each day of such violation shall, for purposes of this subsection, constitute a separate violation. (h) Interim status corrective action orders. (1) Whenever on the basis of any information the Administrator determines that there is or has been a release of hazardous waste into the environment from a facility authorized to operate under section 3005(e) of this subtitle [42 USCS § 6925(e)], the Administrator may issue an order requiring corrective action or such other response measure as he deems necessary to protect human health or the environment or the Administrator may commence a civil action in the United States district court in the district in which the facility is located for Appendix G-8 appropriate relief, including a temporary or permanent injunction. (2) Any order issued under this subsection may include a suspension or revocation of authorization to operate under section 3005(e) of this subtitle [42 USCS § 6925(e)], shall state with reasonable specificity the nature of the required corrective action or other response measure, and shall specify a time for compliance. If any person named in an order fails to comply with the order, the Administrator may assess, and such person shall be liable to the United States for, a civil penalty in an amount not to exceed $25,000 for each day of noncompliance with the order. * * * * Appendix H-1 TITLE 42. THE PUBLIC HEALTH AND WELFARE CHAPTER 82. SOLID WASTE DISPOSAL MISCELLANEOUS PROVISIONS 42 USCS § 6972 (2002) § 6972. Citizen suits (a) In general. Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf— (1) (A) against any person (including (a) the United States, and (b) any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to -the Constitution) who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this Act [42 USCS §§ 6901 et seq.]; or (B) against any person, including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution, and including any past or present 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; or (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this Act [42 USCS §§ 6901 et seq.] which is not discretionary with the Administrator. Appendix H-2 Any action under paragraph (a)(1) of this subsection shall be brought in the district court for the district in which the alleged violation occurred or the alleged endangerment may occur. Any action brought under paragraph (a)(2) of this subsection may be brought in the district court for the district in which the alleged violation occurred or in the District Court of the District of Columbia. The district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce the permit, standard, regulation, condition, requirement, prohibition, or order, referred to in paragraph (1)(A), 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 referred to in paragraph (1)(B), to order such person to take such other action as may be necessary, or both, or to order the Administrator to perform the act or duty referred to in paragraph (2), as the case may be, and to apply any appropriate civil penalties under section 3008(a) and (g) [42 USCS § 6928(a) and (g)]. (b) Actions prohibited. (1) No action may be commenced under subsection (a)(1)(A) of this section— (A) prior to 60 days after the plaintiff has given notice of the violation to— (i) the Administrator; (ii) the State in which the alleged violation occurs; and (ili) to any alleged violator of such permit, standard, regulation, condition, requirement, prohibition, or order, except that such action may be brought immediately after such notification in the case of an action under this section respecting Appendix H-3 a violation of subtitle C of this Act [42 USCS §§ 6921 et seq. ]; or (B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State to require compliance with such permit, standard, regulation, condition, requirement, prohibition, or order. In any action under subsection (a)(1)(A) in a court of the United States, any person may intervene as a matter of ri ght. (2) (A) No action may be commenced under subsection (a)(1)(B) of this section prior to ninety days after the plaintiff has given notice of the endangerment to— (i) the Administrator; (ii) the State in which the alleged endangerment may occur; (iii) any person alleged to have contributed or to be contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in subsection (a)(1)(B), except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of subtitle C of this Act [42 USCS §§ 6921 et seq.]. (B) No action may be commenced under subsection (a)(1)(B) of this section if the Administrator, in order to restrain or abate acts or conditions which may have contributed or are contributing to the activities which may present the alleged endangerment— LL rc iii Appendix H-4 (i) has commenced and is diligently prosecuting an action under section 7003 of this Act [42 USCS § 6973] or under section 106 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 USCS § 9606],[;] (ii) is actually engaging in a removal action under section 104 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 USCS § 9604]; (iii) has incurred costs to initiate a Remedial Investigation and Feasibility Study under section 104 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 USCS § 9604] and is diligently proceeding with a remedial action under that Act [42 USCS §§ 9601 et seq.]; or (iv) has obtained a court order (including a consent decree) or issued an administrative order under section 106 of the Comprehensive Environmental Response, Compensation and Liability Act of 980 [1980] [42 USCS § 9606], or section 7003 of this Act [42 USCS § 6973] pursuant to which a responsible party is diligently conducting a removal action, Remedial Investigation and Feasibility Study (RIFS), or proceeding with a remedial action. In the case of an administrative order referred to in clause (iv), actions under subsection (a)(1)(B) are prohibited only as to the scope and duration of the administrative order referred to in clause (iv). (C) No action may be commenced under subsection (a)(1)(B) of this section if the State, in order to restrain or abate acts or conditions which may have contributed or are contributing to the activities which may present the alleged endangerment— a Ceenmmmnnn nner ee Appendix H-5 (i) has commenced and is diligently prosecuting an action under subsection (a)(1)(B); (ii) is actually engaging in a removal action under section 104 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 USCS § 9604]; or (iii) has incurred costs to initiate a Remedial Investigation and Feasibility Study under section 104 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 [42 USCS § 9604] and is diligently proceeding with a remedial action under that Act [42 USCS §§ 9601 et seq.]. (D) No action may be commenced under subsection (a)(1)(B) by any person (other than a State or local government) with respect to the siting of a hazardous waste treatment, storage, or a disposal facility, nor to restrain or enjoin the issuance of a permit for such facility. (E) In any action under subsection (a)(1 )(B) in a court of the United States, any person may intervene as a matter of right when the applicant claims an interest relating to the subject of the action and he is so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest, unless the Administrator or the State shows that the applicant’s interest is adequately represented by existing parties. (F) Whenever any action is brought under subsection (a)(1)(B) in a court of the United States, the plaintiff shall serve a copy of the complaint on the Attorney General of the United States and with the Administrator. Appendix H-6 (c) Notice. No action may be commenced under paragraph (a)(2) of this section prior to sixty days after the plaintiff has given notice to the Administrator that he will commence such action, except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of subtitle C of this Act [42 USCS §§ 6921 et seq.]. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation. Any action respecting a violation under this Act [42 USCS §§ 6901 et seq. ] may be brought under this section only in the judicial district in which such alleged violation occurs. (d) Intervention. In any action under this section the Administrator, if not a party, may intervene as a matter of right. (e) Costs. The court, in issuing any final order in any action brought pursuant to this section or section 7006 [42 USCS § 6976], may award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or substantially prevailing party, whenever the court determines such an award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure. (f) Other rights preserved. Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any standard or requirement relating to the management of solid waste or hazardous waste, or to seek any other relief (including relief against the Administrator or a State agency). Appendix H-7 (g) Transporters. A transporter shall not be deemed to have contributed or to be contributing to the handling, storage, treatment, or disposal, referred to in subsection (a)(1)(B) taking place after such solid waste or hazardous waste has left the possession or control of such transporter, if the transportation of such waste was under a sole contractual arrangement arising from a published tariff and acceptance for carriage by common carrier by rail and such -transporter has exercised due care in the past or present handling, storage, treatment, transportation and disposal of such waste. **e* * Appendix I-1 191 F.3d 894, 1999 U.S. App. LEXIS 22405, 49 ERC (BNA) 1129; 29 ELR 21412 HARMON INDUSTRIES, INC., APPELLEE, v. CAROL M. BROWNER IN HER OFFICIAL CAPACITY AS ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; UNITED STATES OF AMERICA; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Appellants. PACIFIC LEGAL FOUNDATION; MICHIGAN MANUFACTURERS ASSOCIATION; MISSISSIPPI MANUFACTURERS ASSOCIATION; ILLINOIS MANUFACTURERS ASSOCIATION; SOUTH CAROLINA CHAMBERS OF COMMERCE; ENVIRONMENTAL FEDERATION OF OKLAHOMA; ARKANSAS STATE CHAMBER OF COMMERCE; ASSOCIATED INDUSTRIES OF ARKANSAS, INC.; WISCONSIN MANUFACTURERS AND COMMERCE; THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION; AMERICAN FOREST & PAPER ASSOCIATION; AMERICAN IRON & STEEL INSTITUTE; AMERICAN PETROLEUM INSTITUTE; CHAMBER OF COMMERCE OF THE UNITED STATES; CHEMICAL MANUFACTURERS ASSOCIATION; CORPORATE ENVIRONMENTAL ENFORCEMENT COUNCIL; COMMERCIAL [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1041%3A1. Public record. Not legal advice.