Petition for Writ of Certiorari — Crandall v. City & County of Denver

Supreme Court, U.S.

FILED

No. .

10-84 12 2010

Jn WI! FICE OF THE CLERK

Supreme Court of the United States

* _

TERRI CRANDALL AND JOANN HUBBARD,

Petitioners,

CITY AND COUNTY OF DENVER, COLORADO,

D/B/A THE DENVER INTERNATIONAL AIRPORT,

A COLORADO POLITICAL SUBDIVISION,

Respondent.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

otis _— e¢- a

PETITION FOR WRIT OF CERTIORARI

‘elitaciaegltitacinaaegl ae ouba

JOHN D. FOGNANI, ESQ.

*FRITZ W. GANZ, ESQ.

TIFFANY L. GRANT, ESQ.

FOGNANI & FAUGHT, PLLC

1700 Lincoln Street, Suite 2222

Denver, Colorado 80203

(303) 382-6200

franz@fognanilaw.com

Attorneys for Petitioners

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO (800) 225-6954

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the Tenth Circuit Court of Appeals

erred in failing to enter a permanent injunction

against full-airecraft gate deicing at’ Denver Inter-

national Airport, making mandatory and permanent

Denver's “voluntary” abatement of conduct that may

present an “imminent and substantial endanger-

ment” as defined by the citizen suit provision of the

federal Resource Conservation and Recovery Act of

1976, as amended, 42 U.S.C. § 6972(a)(1)(B).

LIST OF PARTIES

Petitioners: Terri Crandall and JoAnn Hubbard

Respondent: City and County of Denver, Colorado,

d/b/a The Denver International Air-

port, a Colorado political subdivision

TABLE OF CONTENTS

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CONSTITUTIONAL AND STATUTORY PRO-

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STATEMENT OF THE CASE...................ececeeeseees

REASON FOR GRANTING THE PETITION .....

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LL.

DENVER’S CESSATION OF THE EN.

DANGERING PRACTICE OF FULL-

AIRCRAFT GATE DEICING WAS _ IN

DIRECT RESPONSE TO PETITIONERS’

CITIZEN SUIT AND CANNOT BE

CHARACTERIZED AS “VOLUNTARY?” .....

THE DISTRICT COURT AND TENTH

CIRCUIT COURT OF APPEALS DE-

CLINED TO MAKE MANDATORY AND

PERMANENT THE CESSATION OF THE

ENDANGERING PRACTICE ..............0......

THE QUESTION OF WHETHER A

CITIZEN SUIT DEFENDANT'S “VOL-

UNTARY” POST-LITIGATION CESSATION

OF THE ENDANGERING PRACTICE IS

SUFFICIENT TO AVOID LIABILITY UN-

DER SECTION 6972 OF RCRA IS AN

IMPORTANT QUESTION OF LAW THAT

MUST BE SETTLED BY THIS COURT........

COO Ea ee ita stan dd cnnsscennesucsecs esta ae

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TABLE OF CONTENTS ~ Continued

Page

APPENDIX

Crandall v. City and County of Denver, Colo.

Opinion, 594 F.3d 1231(10th Cir. 2010)....... ...App. l

Crandall v. City and County of Denver, Colo.

April 24, ZO0B Oral FAgingd .......0.cccrccsecesssescees App. 21

Crandall v. City and County of Denver, Colo.

April 24, 2008 Judgment .........ccccccscccscscvcsvees App. 64

April 13, 2010 Order denying Petitioner’s

EPOtAtAON FOF TIOTIORTIIT .. ooniscccccesseessscscccccaseveses App. 65

ee Rens UE PE cece vatiat as econciscudusvonsnsonsneecuneal eink App. 67

Crandall v. City and County of Denver, Colo.

Ne Se WI oa fis kss Cs airentasanerneretes App.

Crandall v. City and County of Denver, Colo.

Crandall v. City and County of Denver, Colo.

Re MN OG ois pss tasssaxveis i sunstadscinenvessetsiows App.

TABLE OF AUTHORITIES

CASES

87th Street Owners Corp. v. Carnegie Hill-87th

Street Corporation, 251 F. Supp. 2d 1215 (2d

We IT cccbssiciauis cia doe teevesuconsbeatscakenseneciberiarunnaebess

Atlantic States Legal Foundation, Inc. v. Pan

America Tanning Corp., 993 F.2d 1017 (2d

SD dad vd gens sus dureuenssdiedoudspasosuaiviagecnanweuneas

Crandall v. City and County of Denver, 594

P.Oek 1281 (1Oth Civ, BORO) cocccccccccccccosccccsccsccccsave

Friends of the Earth, Inc. v. Laidlaw Envt'l

Serus. (TOC), Inc., 528 U.S. 167, 120 S. Ct.

693, 145 L.Ed.2d 610 (2000) ......cccccceseceseeeeceseeee

Maine People’s Alliance and Natural Resources

Defense Council v. Mallinckrodt, Inc., 471

ie eo 0 RUG ADs BE osccisesacessatvascnnveccincecssanvses

Natural Resources Defense Ceuneil, Inc. v.

Texaco Refining & Marketing, Inc., 2 F.3d

Oe Ce Ns II sins i deidesnenazeinvrensenenteavanssagess

United States v. Price, 688 F.2d 204 (3d Cir.

BINNS cept sae teste cacbiiasic van oe tnsareks cae dere earre oe

Wilson v. AMOCO Corp., 989 F. Supp. 1159

RI Ns IIE ssscces ds xanvciuedeuoasdsaccessoxcssiepeacerwunnes

STATUTES

ee OES be datnctisnsanauvicesiestsrntecnieeeniens

TREE Nga REAP ENOD pO E MEUM EA pat ye SINMD TIE

NE Sek vi ncv aid tend asi oc upaieeduasateepcass sree

28 U.S.C

28 U.S.C. §

Page

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Repee 8

snely @

aan 10

IAPR 9

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TABLE OF AUTHORITIES — Continued

Page

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or a cau pavooayn acabsuddicsseuekeranens 8

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OTHER

Article III, § 2, cl. 1, of the United States

ae ea I ee a cach ieaegncheeu ket

1

PETITION FOR WRIT OF CERTIORARI

Terri Crandall and JoAnn Hubbard (“Peti-

tioners”) hereby petition this Court for a writ of

certiorari to review the opinion of the United States

Court of Appeals for the Tenth Circuit.

*

OPINIONS BELOW

On April 24, 2008, the United States District

Court for the District of Colorado presented its oral

ruling in favor of Respondent and entered judgment

against Petitioners on April 24, 2008. That oral ruling

is unpublished and is reproduced at App. 21-63. On

February 8, 2010, the Tenth Circuit Court of Appeals

affirmed the District Court decision in an opinion

published at 594 F.3d 1231 and reproduced at App.

1-20.

JURISDICTION

The District Court had jurisdiction over Peti-

tioners’ claims pursuant to 28 U.S.C. § 1331. The

Court of Appeals had jurisdiction to review the

District Court’s final judgment pursuant tc 28 U.S.C.

§ 1291. The Tenth Circuit Court of Appeals filed its

opinion on February 8, 2010 and Petitioners filed

their Petition for Rehearing En Banc on February 26,

2010, which the court of appeals denied on April 13,

2010. Thus, pursuant to Supreme Court Rule 13, this

Petition is filed timely within 90 days of the entry of

bo

final judgment. The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. § 1254(1).

*

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section 6972(a)(1)(B) of the federal Resource

Conservation and Recovery Act of 1976, as amended,

42 U.S.C. § 6901, et seq. (“RCRA”) governs citizen

actions for injunctive relief in circumstances that may

present an imminent and substantial endangerment

to human health and the environment. 42 U.S.C.

§ 6972(a)(1)(B) provides in relevant part as follows:

(a) In general ... any person may com-

mence a civil action on his own behalf —

*k kk *k

(1(B) against any person, including the

United States and any other governmental

instrumentality or agency, to the extent

permitted by the eleventh amendment to the

Constitution, and including any past or

present generator, past or present trans-

porter, 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;

3

Article III, § 2, cl. 1, of the United States Constitution

provides as follows:

The judicial power shall extend to all

Cases, in Law and Equity, arising under this

Constitution, the Laws of the United States,

and Treaties made, or which shall be made,

under their Authority; to all Cases affecting

Ambassadors, other public Ministers and

Yonsuls; to all Cases of admiralty and

maritime Jurisdiction; to Controversies to

which the United States shall be a Party; to

Controversies between two or more States;

between a State and Citizens of another

State; between Citizens of different States;

between Citizens of the same State claiming

Lands under Grants of different States, and

between a State, or the Citizens thereof, and

foreign States, Citizens or Subjects.

+

STATEMENT OF THE CASE

Petitioners filed this federal citizen suit, pur-

suant to the federal Resource Conservation and

Recovery Act of 1976, as amended, 42 U.S.C.

§ 6972(a)(1)(B) (“RCRA”) to rectify the well-known

and widely reported but consistently neglected

environmental problems at Denver International

Airport (“DIA”) and as a result sought injunctive

relief to require certain measures to be implemented

and undertaken by Denver at DIA through the

authority of a Federal District Court order to ensure

(1) that full-aircraft gate deicing did not reoccur at

DIA; (2) that certain basic abatement measures

would be implemented in the appropriate areas of

DIA; and (3) that a comprehensive environmental

investigation appropriate in breadth and scope would

be undertaken to address the problems DIA or

provide a “clean bill of health” to allay legitimate

concerns and fears of DIA workers that continue to

the present day.

Ms. Crandall and Ms. Hubbard, while employed

as Customer Service Representatives at DIA by

United Airlines Inc. (“United”), personally witnessed

serious environmental problems at DIA and per-

sonally experienced health-related impacts or effects

resulting from long-standing and continuing environ-

mental conditions at DIA. In addition, Petitioners

witnessed others, similarly employed and working

at DIA, experience similar health-related impacts

or effects. Therefore, Petitioners sought through

injunctive relief and an appropriately tailored order

in Federal District Court a comprehensive indoor air

quality investigation and vapor intrusion study to

determine what environmental problems existed at

Concourse B at DIA and to identify and implement

the proper furm of abatement or remediation in order

to protect human health and the environment. Ms.

Crandall and Ms. Hubbard sought no damages as

part of their case, seeking only the certainty for

themselves and their co-workers of being protected

from environmental and human health hazards in

their workplace at DIA.

After a five-day trial to the bench, the Federal

District Court presented its findings of fact and

conclusions of law by oral ruling on April 24, 2008.

The District Court found for Denver and declined to

issue any injunctive relief, contrary to the mandate of

RCRA, to Petitioners. Judgment was entered in favor

of Denver on April 24, 2008.

On February 8, 2010, the Court of Appeals for the

Tenth Circuit affirmed the decision below. Ms.

Crandall and Ms. Hubbard filed their Petition for

Rehearing En Banc on February 26, 2010, which the

Tenth Circuit Court of Appeals denied on April 13,

2010. This Petition followed.

on — eee

REASONS FOR GRANTING THE PETITION

RCRA authorizes the commencement of a civil

action to abate 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.” RCRA 6972(a)(1)(B). Congress drafted

RCRA “to confer upon the courts the authority to

grant affirmative eouitable relief to the extent neces

sary to eliminate any risk posed by toxic waste.”

Maine People’s Alliance and Natural Resources

Defense Council v. Mallinckrodt, Inc. 471 F.3d 277,

288 (1st Cir. 2006) (emphasis added).

6

It is undisputed that) Denver’s — so-called

“voluntary” cessation of the practice of full-aircraft

gate deicing was a direct response to Petitioners’

citizen suit. The Tenth Circuit declined to make

mandatory and permanent Denver's’ voluntary

cessation of full-aircraft gate deicing, a practice that

“may present an imminent and substantial endan

germent” as defined by RCRA. The failure of the

Federal District Court and the Tenth Circuit to make

mandatory and permanent Denver's voluntary, post

litigation abatement of the endangering practice

eviscerates the citizen suit provision and frustrates

the purpose of the statute to abate any risk o+ harm

posed by solid or hazardous waste. This Petition

should be granted to settle this important question of

law: Can citizen suit defendants avoid lability unde

RCRA both injunctive relief and liability for the

plaintiffs’ attorneys’ fees and costs by so-called

“voluntary” cessation of the endangering practice

provided in direct response to the filing and pursuit of

a citizen suit under RCRA?

3 DENVER’S CESSATION OF THE ENDAN-

GERING PRACTICE OF FULL-AIRCRAFT

GATE DEICING WAS IN DIRECT RE-

SPONSE TO PETITIONERS’ CITIZEN SUIT

AND CANNOT BE CHARACTERIZED AS

“VOLUNTARY”

[tis undisputed that, as of March 11, 2005 and in

direct response to Petitioners’ RCRA citizen suit

Denver banned full-aircraft gate deicing by United at

~]

the gates of Concourse B, but continued to allow

partial gate deicing. App. at 76-77 (“In light of the

recent filing of the RCRA lawsuit ... full aircraft

deicing of any aircraft at the concourse gate will not

be allowed as of March 11, 2005”). It also is clear that

Denver and United share a strong interest in

returning to full-aircraft gate deicing, postponing a

return to the practice pending resolution of Peti-

tioners’ citizen suit and companion state litigation.

App. at 75 and 78-80 (Denver “will do all possible

to facilitate United gate deicing ... United Legal

Department and Airport Legal Department must

resolve issues concerning employee claims/lawsuits

prior to proceeding ... ”). Therefore, the decision to

suspend Concourse B gate deicing was not truly

“voluntary” as asserted by Denver and as inappro-

priately accepted by Federal District Court and the

Tenth Circuit.

Il. THE DISTRICT COURT AND TENTH

CIRCUIT COURT OF APPEALS DECLINED

TO MAKE MANDATORY AND PERMA-

NENT THE CESSATION OF THE EN-

DANGERING PRACTICE

The Federal District Court found that, while

Denver’s cessation of full-aircraft gate deicing prac-

tices was voluntary and in response to Petitioners’

citizen suit, any return to the practice of full-aircraft

gate deicing was speculative. The Tenth Circuit left

undisturbed this factual finding, modifying it slightly

to state that “such a change would not be imminent.”

8

Crandall, 594 F.3d at 1239. Both the District Court

and the Tenth Circuit declined to make mandatory

and permanent the ban on full-aircraft gate deicing

practices at DIA because “resumption of full-plane

gate deicing at Concourse B was not imminent, but

merely speculative.” Jd. at 1240.

Ill. THE QUESTION OF WHETHER A CITIZEN

SUIT DEFENDANT’S SO-CALLED “VOL-

UNTARY,” POST-LITIGATION CESSATION

OF THE ENDANGERING PRACTICE IS

SUFFICIENT TO AVOID LIABILITY UN-

DER SECTION 6972 OF RCRA IS AN

IMPORTANT QUESTION OF LAW THAT

MUST BE SETTLED BY THIS COURT

Petitioners are not aware of other cases that

have decided the question of whether a citizen suit

defendant may avoid the reach of the RCRA citizen

suit provision and escape the RCRA mandate simply

by “voluntarily” ceasing the endangering practice, in

direct response to a citizen complaint, without any

further abatement or permanent restrictions against

resuming in the endangering practice. There is no

question federal courts possess the power and

authority to make mandatory and permanent a

defendant’s voluntary cessation of a _ challenged

practice. Friends of the Earth, Inc. v. Laidlaw Envt’l

Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693,

145 L.Ed.2d 610 (2000). At issue is whether the plain

language and legislative intent and purpose of the

S

RCRA citizen suit provision demand that such

voluntary cessation be made mandatory and perma-

nent.

Notwithstanding the well-established authority

of the federal courts to enter injunctive relief under

these circumstances, the Circuits vary as to the

proper standard for issuing an injunction pursuant to

RCRA. For example, the Second Circuit has stated

that RCRA authorized courts to order such injunctive

relief “as || necessary to correct a potential

‘imminent and substantial endangerment to health

or the environment.” 87th Street Owners Corp. v.

Carnegie Hill-87th Street Corporation, 251 F. Supp.

2d 1215, 1220 (2d Cir. 2002) (emphasis added).

Although the Tenth Circuit held that traditional

equitable factors apply to an injunction ordered under

RCRA, the Court held that “the primary focus shifts

from irreparable harm to concern for the general

public interest.” Wilson v. AMOCO Corp., 989

F. Supp. 1159, 1171 (10th Cir. 1998). The Third

Circuit in United States v. Price, 688 F.2d 204 (3d Cir.

1982), held that Congress “intended to confer upon

courts the authority to grant affirmative equitable

relief to the extent necessary to eliminate any risks

posed by toxic waste.” United States v. Price, 688 F.2d

204, 214 (3d Cir. 1982). The First Circuit has not

enumerated a set framework for determining the

propriety of an injunction under RCRA, instead

stating that, “in an environmental case, [the court]

should consider the balance of relevant harms before

granting injunctive relief.” Maine People’s Alliance

10

and Natural Resources Defense Council _ v.

Mallinckrodt, Inc., 471 F.3.d 277, 296 (1st Cir. 2006).

A defendant's voluntary cessation of a challenged

practice after the filing of suit should not deprive the

court of the ability to enter injunctive relief. This has

long been recognized in the context of citizen suits

under the Clean Water Act, where courts have

imposed civil penalties. Natural Resources Defense

Council, Inc. v. Texaco Refining & Marketing, Inc., 2

F.3d 493, 503 (3rd Cir. 1993). “Allowing a polluter to

escape all liability through post-complaint compliance

is at odds with the mandatory language of {the Clean

Water Act citizen suit provision].” Jd. The same rule

should apply in the RCRA context, since to hold

otherwise would encourage polluters to delay

litigation as long as possible, knowing that they could

escape all lability for even post-compiaint violations

by simply coming into compliance before a decision on

the merits. This approach to a defendant’s voluntary

cessation of offensive conduct is not limited to

whether a citizen suit complaint is moot, but whether

relief may — indeed must — be granted under the

statute to give meaning to the citizen suit provision

at issue. “We cannot embrace a rule that would

weaken the deterrent effect of the Act by diminishing

incentives for citizens to sue and encourage dilatory

tactics by defendants.” Jd. citing Atlantic States Legal

Foundation, Inc. v. Pan American Tanning Corp., 993

F.2d 1017, 1020-21 (2d Cir. 1993).

This question — whether the suddenly repentent

defendant can escape RCRA’s citizen suit liability and

11

enforcement by merely asserting that it has learned

its lesson and voluntarily ceased the endangering

practice — is one of great importance to these

Petitioners and all future citizen suit plaintiffs and

indeed strikes at the fundamental purpose for the

Congressional enactment of the RCRA citizen suit

statute.

CONCLUSION

Denver’s “voluntary” suspension of its offensive

conduct is nothing more than a litigation defense that

offers no guarantee that the RCRA endangerment

will not reoccur at any time in the future and makes

a mockery of the citizen suit statute. The evidence

shows Denver ordered the suspension as a direct

result of the pending litigation filed by the Peti-

tioners. The only witness to testify regarding future

deicing practices indicated that he was not in a

position to make any decisions with respect to deicing

practices and procedures at DIA and had no control

over whether full-aircraft gate deicing would resume

at Concourse B. Nevertheless, the District Court and

Tenth Circuit declined to issue injunctive relief in the

form of a mandatory ban, through an appropriately

tailored order of the court, on a return to full-aircraft

gate deicing at DIA’s Concourse B. The opinions of the

District Court and Tenth Circuit decide an important

question of law in a manner that provides citizen suit

defendants a “Get Out of Jail Free” card if they

simply stop or assert that they will stop the

12

endangering practice. This outcome eviscerates the

citizen suit provision of RCRA and undercuts its

fundamental purpose of enabling citizens to address

endangering conduct that otherwise has gone

unaddressed and thrusts directly upon citizen suit

plaintiffs the costs and burden of enforcing RCRA

contrary to the mandate of RCRA.

Respectfully submitted:

JOHN D. FOGNANI, Esq.

FRITZ W. GANZ, Esa.

TIFFANY L. GRANT, ESQ.

FOGNANI & FAUGHT, PLLC

1700 Lincoln Street, Suite 2222

Denver, Colorado 80203

Telephone: (303) 382-6200

E-mail: fganz@fognanilaw.com

Attorneys for Petitioners

Submitted July 12, 2010

App. l

094 F.3d 1231

United States Court of Appeals,

Tenth Circuit.

Terri CRANDALL; Joann Hubbard,

Plaintiffs-Appellants,

v.

CITY AND COUNTY OF DENVER, COLORADO,

d/b/a The Denver International Airport, a Colorado

political subdivision, Defendant-Appellee.

No. 08-1197.

Feb. 8, 2010.

Frederick Ganz (John D. Fognani, Perry L. Glantz,

and Fritz W. Ganz with him on the briefs), Fognani &

Faught, PLLC, Denver, CO, for Plaintiffs-Appellants.

Andrew J. Carafelli (Chris Mattison and Peter Moy-

son with him on the brief), Hall & Evans, L.L.C.,

Denver, CO, for Defendant-Appellee.

Before HARTZ, HOLLOWAY, and TYMKOVICH,

Circuit Judges.

HARTZ, Circuit Judge.

Plaintiffs Terri Crandall and JoAnn Hubbard

sued for injunctive relief against the City and County

of Denver under the citizen-suit provision of the

Resource Conservation and Recovery Act of 1976

(RCRA), 42 U.S.C. § 6972(a\(1)(B). Their concern is

that aircraft deicing fluid (ADF), which can produce

hydrogen-sulfide gas when it decomposes, endangers

human health at Concourse B of the Denver Interna-

tional Airport. The gates on Concourse B are used

App. 2

almost exclusively by United Airlines. Crandall is a

United employee, and Hubbard is a former employee

who now frequently uses Concourse B as a passenger.

Plaintiffs seek (1) to prohibit full-plane deicing at

Concourse B gates and (2) to require other precau-

tionary steps relating to ADF.

Following a five-day bench trial, the United

States District Court for the District of Colorado

denied Plaintiffs relief. It found that Denver no

longer permits full-plane deicing at the gates and

held that Plaintiffs had not shown that the current

use of ADF “may present an imminent and substan-

tial endangerment to health,” which is a prerequisite

for RCRA relief. 42 U.S.C. § 6972(a)(1)(B).' The court

also held that RCRA does not govern all the ADF by

Concourse B at the Denver Airport, but only the ADF

“that flows in storm water into [CJoncourse B and

degrades in Concourse B.” Crandall v. City and

County of Denver, Colorado, No. 05-00242 at *27

(D.Colo.2008) (in Aplt. App., Vol. 1 beginning at 40)

(Bench Ruling). The ADF that degrades outside the

concourse, it said, was governed exclr ively by per-

mits issued under the Clean Water Act (CWA).

On appeal Plaintiffs argue that the district court

misconstrued RCRA’s requirements with respect to

' This RCRA provision also governs waste that may present

an imminent and substantial endangerment to the environment,

but Plaintiffs have not pursued a claim of environmental

endangerment,

App. 3

injunctive relief. They also contend that the court

erred in holding that the CWA, rather than RCRA,

governs some of the ADF at the Denver Airport. We

affirm the district court’s denial of injunctive relief.

Plaintiffs failed to demonstrate that ADF at the

airport (whether it degrades inside or outside Con-

course B) may present an imminent and substantial

endangerment to health. Because relief under RCRA

would therefore not be available even if RCRA gov-

erns the ADF that degrades outside the concourse, we

need not address whether such ADF is governed

exclusively by the CWA.

I. BACKGROUND

A. RCRA

RCRA is a comprehensive statute designed to

reduce or eliminate the generation of hazardous

waste and “to minimize the present and future threat

to human health and the environment” created by

hazardous waste. 42 U.S.C. §6902(b); see id.

§ 6902(a). To achieve this goal, the statute “empowers

EPA to regulate hazardous wastes from cradle to

grave, in accordance with [RCRA’s] rigorous safe-

guards and waste management procedures.” City of

Chicago v. Envtl. Def. Fund, 511 U.S. 328, 331, 114

S.Ct. 1588, 128 L.Ed.2d 302 (1994). It also grants

private citizens standing to enforce some of the stat-

ute’s provisions. See 42 U.S.C. § 6972; Meghrig v.

KFC Western, Inc., 516 U.S. 479, 484, 116 S.Ct. 1251,

App. 4

134 L.Ed.2d 121 (1996). The RCRA citizen-suit provi-

sion invoked by Plaintiffs states:

[A]ny person may commence a civil action on

his own behalf —

(B) against any person, ... including any

past or present generator, past or present

transporter, or past or present owner or

operator of a treatment, storage, or disposal

facility, who has contributed or who is con-

tributing to the past or present handling,

storage, treatment, transportation, or dis-

posal of any solid or hazardous waste which

may present an imminent and substantial en-

dangerment to health or the environment {.]

42 U.S.C. § 6972(a) (emphasis added); see Burlington

N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 10138, 1020

(10th Cir.2007) (summarizing citizen-suit provision).

B. ADF and the Denver Airport

Plaintiffs do not challenge the district court’s

rendition of the historical facts. We begin by discuss-

ing some pertinent science and then summarize the

history of ADF use at the Denver Airport and the

problems that have and have not arisen.

1. The Risks of ADF

ADF is mostly propylene glycol. When propylene

glycol degrades in an anaerobic environment where

App. 5

sulfur is present, hydrogen-sulfide gas can be pro-

duced. Hydrogen sulfide has a_ characteristically

offensive odor, which often accompanies sewage or

rotten eggs. It cam be smelled at very low concentra-

tions in the air. Some people can detect it at one part

per billion, and almost all recognize it at 300 parts

per billion. Much higher levels, however, are required

before it has recognized health effects. “Eye irritation

has been noted at between 5 and 30 parts per million

— not billion”; “[mJarked eye and lung irritation

occurs at 200 parts per million”; and “(blreathing

impairment and unconsciousness results at 1,000

parts per million.” Bench Ruling at 12.

2. Conditions Through Early 2006

After ADF is used to deice an airplane, hydrogen-

sulfide gas can enter Concourse B by two means. The

ADF may degrade outside the concourse and the

resultant gas then infiltrates the concourse. Or the

ADF may mix with storm water and flow down

through cracks in the tarmac. Because the concourse

basement extends under the tarmac, this mixture can

leak into the basement where the ADF degrades,

producing hydrogen sulfide.

Until practices at the Denver Airport changed in

2005, some planes could be fully deiced with ADF

while at their gates. Beginning in 1997, employees of

United Airlines and others who worked at Concourse

B filed a number of complaints about the rotten-egy

smell and about health effects that are symptoms of

App. 6

exposure to hydrogen sulfide. Some complaints linked

the smell to degrading ADF. Maintenance logs and

reports also indicated the presence of hydrogen

sulfide in the basement, and one or two reports

attributed the gas to ADF. A 1998 water-quality study

made numerous recommendations to control the

runoff of ADF into the Denver Airport’s storm-water

system.

Perhaps the most significant episode occurred

in 2001, when many people complained of a foul

odor and burning eyes in the Red Carpet Club in

Concourse B. Air testing detected concentrations of

hydrogen sulfide above one part per million. The Tri-

County Health Department found that the gas flowed

from the basement level up to the Red Carpet Club

through the elevator shafts. A report by URS Corpo-

ration, a consultant retained by Denver, concluded

that the hydrogen sulfide came from degrading ADF.

As a result, the elevator shafts next to the club were

sealed and measures were taken to prevent ADF from

leaking into the basement of Concourse B. Denver

began a program (which was still in effect at the time

of trial) to seal cracks in the tarmac around the

concourse, thus preventing ADF from entering the

ground.

Despite these measures, in September 2005

maintenance logs reported toxic levels of hydrogen

sulfide in a mechanical room in the basement of

Concourse B and stated that employees were advised

not to enter the room without proper safety equip-

ment. Beginning about that time (the record does not

App. 7

provide a precise date), Denver limited the amount of

deicing that could be conducted at the gates. Planes

were directed to deicing pads away from the gates

and the concourse basement. Gate deicing was re-

stricted to a few portions of the plane in certain

circumstances. (The district court found the evidence

insufficient to determine Denver’s motives for moving

deicing from the gates — whether it was a response

to this lawsuit or more a matter of efficiency and

economics.) In addition, in 2006 Denver installed ven

tilation fans in two of the twelve basement sump

rooms and, as of trial, it anticipated installing fans in

the remaining sump rooms.

3. Conditions After Early 2006

Even after full-plane deicing at the gates ceased

at the Denver Airport, there were some reports of the

odor of hydrogen sulfide in the basement of Con

course B. But the complaints were much fewer and

not supported by objective evidence. The Center for

Toxicology and Environmental Health, an indepen-

dent engineering firm, conducted five air-quality tests

between November 2005 and March 2008 at many

sites in the concourse, but no hydrogen sulfide was

detected. The district court concluded that currently

“the evidence does not establish levels of either pro

pylene glycol or hydrogen sulfide that are dangerous

to human health” in the basement of Concourse B. /d

at 34.

App. &

A United Airlines official testified in April 2008

that United had no intent to request full-plane gate

deicing after this litigation ends. He said that there

had been discussions two years earlier about testing

the use of glycol-recovery vehicles at the gates, appar-

ently to determine whether they could reduce the flow

of ADF into the environment after full-plane deicing.

But United then decided not to spend the money

necessary to acquire the vehicles. An airport official

testified that Denver had no plans to allow United to

return to full-plane deicing at the gates. He explained

that the airport had added deicing pads and that pate

deicing could create traffic congestion as inbound

aircraft waited for gates where deicing was taking

place. He also said that gate deicing would require

new infrastructure to collect overspray and runoff,

C. District-Court Proceedings

Plaintilfs filed their RCRA suit on February 7,

2005. They sought orders requiring Denver to take

various steps to protect people from hydrogen sulfide

produced by degradation of ADF, including a prohibi-

tion on full-plane deicing at Concourse B gates.

After a five-day bench trial in April 2008, the

district court entered judgment for Denver, ruling

that Plaintiffs had failed to demonstrate that ADF

may present an imminent and substantial endanger-

ment at Concourse Bk. The court found that the evi

dence at trial was insufficient to establish that under

current conditions at Concourse B the amounts of

App. 9

ADF were significant or that hydrogen sulfide was

present at levels dangerous to human health. The

court also determined that the evidence was too

speculative to show a significant risk that Denver

would resume full-plane deicing at the gates. Al-

though there was some evidence that Plaintiffs’

lawsuit contributed to ending full-plane gate deicing,

the court noted that the decision was likely influ-

enced by the following “economic factors”:

the construction of new deicing pads away

from Concourse B, greater capability in us-

ing the pads to deice, the impact of pad de-

icing on the speed and number of planes to

be serviced, and a requirement of precedent

testing, presumably environmental testing,

as to the effect of deicing fluid, which United

has been unwilling to perform.

Id. at 42.

In addition, the district court said that Plaintiffs

had not shown that resuming full-plane deicing at the

gates would pose a health risk. Denver was continu-

ing a program to seal the tarmac around Concourse

B, had installed fans in two of the twelve mechanical

rooms in the basement in 2007, and had said that it

planned to install fans in the remaining mechanical

rooms in the concourse. The court noted that it was

App. 10

“without evidence to balance the effect of future full-

gate deicing against the effect of future fans.” Id.’

Il. DISCUSSION

“A party requesting a permanent injunction

bears the burden of showing: (1) actual success on the

merits; (2) irreparable harm unless the injunction is

issued; (3) the threatened injury outweighs the harm

that the injunction may cause the opposing party;

and (4) the injunction, if issued, will not adversely

affect the public interest.” Fisher v. Okla. Health Care

Auth., 335 F.3d 1175, 1180 (10th Cir.2003). “[WJe re-

view the district court’s grant or denial of a permanent

injunction for abuse of discretion,” SEC v. Pros Int'l,

Inc., 994 F.2d 767, 769 (10th Cir.1993), reviewing

underlying questions of law de novo, see Att’y Gen.

of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776

(10th Cir.2009). The dispositive issue in this case is

whether Plaintiffs have established the merits of

* The parties’ briefs in this court dispute whether the dis-

trict court erred in deciding that the CWA, and not RCRA,

governs deicing chemicals that degrade outside Concourse B into

hydrogen sulfide that enters Concourse B (leaving RCRA to

govern only deicing chemicals that enter the basement of Con-

course B as liquids). But we need not resolve this dispute. The

district court made no findings regarding how much hydrogen

sulfide was covered by RCRA and how much was left to the

CWA, but found that even considering all sources of hydrogen

sulfide, Plaintiffs had failed to demonstrate that the gas may

present an imminent and substantial endangerment to health or

the environment. Thus, the court’s fact findings and judgment

were independent of its view of the CWA.

App. 11

their claim, the first requirement for a permanent

injunction. See Prairie Band Potawatomi Nation v.

Wagnon, 476 F.3d 818, 822 (10th Cir.2007).

To prevail under RCRA’s citizen-suit provision, a

plaintiff must prove that a solid waste “may present

an imminent and substantial endangerment to health

or the environment.” 42 U.S.C. § 6972(a\(1)\(B). Plain-

tiffs contend that they proved their health-endanger-

ment claims but that the district court “erred in its

interpretation of the meaning of ‘imminent and

substantial.’” Aplt. Br. at 17. Although they do not

dispute that “the cessation of full aircraft gate de-

icing{ ] resulted in at least a partial abatement of the

conditions giving rise to the risk of harm associated

with the degradation of [ADF]”, Reply Br. at 9, they

argue that the possibility of resumption of such

deicing presents an imminent and substantial endan-

germent. They maintain that Denver halted full-

plane deicing at the gates because of this lawsuit, and

they suggest that the practice likely will resume after

the lawsuit if no injunction is issued. According to

Plaintiffs, the district court also erred in assuming

that Denver would install fans in the ten mechanical

rooms. In Plaintiffs’ view, the court should have

ensured rather than assumed that Denver would not

return to full-plane deicing at the gates and that it

would install the remaining fans."

* Plaintiffs further argue that the balance of harms weighs

in their favor, reasoning that Denver “will endure little harm or

(Continued on following page)

App. 12

We are not persuaded. Our review of governing

precedent persuades us that the facts here do not

show that the ADF at the Denver Airport “may

present an imminent and substantial endangerment

to health.” 42 U.S.C. § 6972(a)(1)(B). The leading case

on the subject is the Supreme Court decision in

Meghrig. The issue in Meghrig was’ whether

§ 6972(a)(1)(B) provides a remedy to recover for past

cleanup costs. See 516 U.S. at 482, 116 S.Ct. 1251.

After KFC Western, Inc. paid to clean up petroleum

contamination on property previously owned by Alan

and Margaret Meghrig, it sought restitution from the

Meghrigs. See id. The Court held that RCRA’s citizen-

suit provision does not provide a remedy for. past

contamination that no longer poses a danger. See id.

at 485-86, 116 S.Ct. 1251. It reasoned that “lan

endangerment can only be imminent if it threatens to

occur immediately.” Jd. at 485, 116 S.Ct. 1251 (inter-

nal quotation marks omitted). The language may

present, it explained, “implies that there must be a

threat which is present now, although the impact of

the threat may not be felt until later.” Jd. at 486, 116

S.Ct. 1251 (internal quotation marks omitted).

We followed Meghrig in Burlington Northern.

Burlington Northern alleged that the defendant’s

hardship in complying with an injunction” prohibiting a return

to full-plane deicing at the gates because the injunction would

maintain the status quo. Aplt. Br. at 23. But because Plaintiffs

have not succeeded on the merits, we need not address this

factor in assessing the propriety of injunctive relief.

App. 13

earth-moving construction on his property had caused

tar-like material (TLM) to migrate onto Burlington

Northern’s property. See 505 F.3d at 1018. Burlington

Northern removed the TLM from its property and

constructed a berm on the property line to prevent

future migration. See id. The district court granted

summary judgment against Burlington Northern,

ruling that it “had failed to present a genuine issue of

material fact on the ‘imminent and substantial en-

dangerment’ element of its RCRA claim.” Jd. (quoting

§ 6972(a)(1)(B)). The court concluded that

imminency had not been established because

(1) [Burlington Northern] failed to point to

any person who had been injured by TLM or

to any study establishing the material

threatened to ‘immediately’ cause harm to a

person or the environment, (2) neither the

[Oklahoma Department of Environmental

Quality] or the Environmental Protection

Agency ... had ever ordered the TLM re-

moved, and (3) (Burlington Northern] moni-

tored the alleged migration of the TLM onto

its property for years without acting.

Id. at 1021.

We disagreed with the district court’s analysis,

stating that it was “irrelevant when the TLM was

deposited on the property and equally irrelevant how

long [Burlington Northern] monitored the TLM before

acting.” Jd. We also stated that the focus should have

been on the risk that harm would occur in the future,

not on whether harm had occurred or was imminent.

App. 14

See id. We explained the meanings of the statutory

terms: “[A] finding of ‘imminency,’” we said, “does not

require a showing that actual harm will occur imme-

diately as long as the risk of threatened harm is

present.” Jd. at 1020. And we stated that “the term

‘endangerment’... mean[s] a threatened or potential

harm,” id., and that an endangerment is substantial

when “there is reasonable cause for concern that

someone or something may be exposed to risk of harm

by release, or threatened release, of hazardous sub-

stances in the event remedial! action is not taken,” id.

at 1021. Thus, the statutory requirement could be

satisfied even if the actual harm might not be likely

to occur for a long time, so long as the defendant's

current or past actions create a present risk that the

harm will eventually come to pass. See id. at 1020-21.

We emphasized “that the operative word in

§ 6972(a)(1)(B) is ‘may’”; a plaintiff need show only

that the waste may present a threat of serious poten-

tial harm. /d. at 1020. Noting the evidence in the

record that TLM contained carcinogens at levels

exceeding EPA recommendations and that it threat-

ened storm-water runoff and other waters, we re-

versed and remanded for further proceedings. See id.

at 1022.

Most recently, in 7yson Foods we considered the

same statutory language in reviewing whether the

Oklahoma Attorney General was entitled to a pre-

liminary injunction against Tyson’s use of “‘poultry

litter’” (which includes poultry bedding materials and

feces) as fertilizer in the Illinois River Watershed

App. 15

(IRW). See 565 F.3d at 773-74. The state contended

that bacteria in the poultry litter was contaminating

the watershed. /d. at 774. Tyson responded that the

bacteria in the IRW came from other sources and that

the processing of poultry litter kills the bacteria

before the litter is spread on land. Jd. We agreed with

the state that “under RCRA a plaintiff need not ‘show

proof of actual harm to health or the environment’ to

establish endangerment, but rather injunctive relief

is appropriate where there simply may be a risk of

harm.” Jd. at 777 (quoting Burlington Northern, 505

F.3d at 1020). Nevertheless, we concluded that “Okla-

homa’s inability to link land-applied poultry litter to

the bacteria in the IRW preclude[d] a finding that

such litter may present an imminent and substantial

en dangerment....” Jd. at 778. Consequently, the

state had failed to show that the litter “may be a risk

of harm in the IRW waterways.” Id. at 777.

The above cases did not have occasion to explore

every context in which a solid waste “may present an

imminent and substantial endangerment to health or

the environment.” But they do provide guidance. In

particular, they illustrate that there is a limit to how

far the tentativeness of the word may can carry a

plaintiff. Meghrig tells us that an endangerment

cannot be merely possible, but must “threaten[] to

occur immediately.” 516 U.S. at 485, 116 S.Ct. 1251

(internal quotation marks omitted). And although

Burlington Northern recognizes that the harm

may not occur for a long time, see 505 F.3d at

1020-21, Tyson Foods emphasizes that there is no

App. 16

endangerment unless the present or imminent situa-

tion can be shown to present a risk of (later) harm,

see 565 F.3d at 777.

One essential point that Piaintiffs appear to

overlook is that although the harm may be well in the

future, the endangerment must be imminent. See

Meghrig, 516 U.S. at 486, 116 S.Ct. 1251 (“[T)here

must be a threat which is present now, although the

impact of the threat may not be felt until later.”

(internal quotation marks omitted)). Two examples

may clarify the difference between harm and endan-

germent in the context of future harm. First, it may

take a long time for a toxic substance from the solid

waste to reach the object to be harmed. For instance,

buried solid waste may present an endangerment if

toxic chemicals from the waste will eventually seep

into the water table and be consumed by humans. No

harm will result for years, but the endangerment

already exists because that harm can result if “re-

medial action is not taken” in the interim. Burlington

Northern, 505 F.3d at 1021; see Cox v. City of Dallas,

Tex., 256 F.3d 281, 301 (5th Cir.2001) (“As the old

waste decomposes, the cover soil can settle, ground

and surface water can become contaminated with

leachate, and dangerous gases can form and migrate

underground. This meets the ‘may present an immi-

nent and _ substantial endangerment’ standard.”)

(footnote omitted) (quoting § 6972(a)(1)(B)); Dague v.

City of Burlington, 935 F.2d 1348, 1356 (2d Cir.1991)

(similar), rev’d in part on attorney-fee issue, 505 U.S.

557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). Second,

App. 17

there may be a long period between the time that a

toxic substance from the solid waste reaches the

object to be harmed and the time that the harm

manifests itself, as when the toxic substance even-

tually causes cancer. See Maine People’s Alliance &

Natural Res. Def. Council v. Mallinckrodt, Inc., 471

F.3d 277, 279 n. 1 (Ist Cir.2006) (“[I]f there is a rea-

sonable prospect that a carcinogen released into the

environment today may cause cancer twenty years

hence, the threat is near-term even though the per-

ceived harm will only occur in the distant future.”).

The essential point is that the solid waste presents an

endangerment if harm may result absent further

remedial measures.

It is here that the Plaintiffs’ case fails. The risk

presented by ADF is that human health can be in-

jured if (1) sufficient. quantities of ADF (2) degrade

into sufficient quantities of hydrogen-sulfide gas, (3)

which enter an area where humans are present. This

risk, this endangerment, must be imminent for there

to be a claim under RCRA. See § 6972(a)(1)(B). At the

time of trial, however, there was no detectable hydro-

gen-sulfide gas in Concourse B, and no prospect of

there being such gas: the gas could be a problem only

if full-plane deicing were to be renewed at the con-

course gates and the measures instituted by Denver

were then to prove ineffective in protecting people

from the gas. Thus, not only was there no imminent

harm, but there was also no imminent endangerment.

Nothing going on at the airport at the time of trial,

or expected in the immediate future, would, even

App. 18

without remedial measures, present a prospect of

harm to human health. If nothing changed, there was

simply no possibility of sufficient hydrogen sulfide in

Concourse B to injure human health. It is not enough

under RCRA that in the future someone may do

something with solid waste that, absent protective

measures, can injure human health. See Meghrig, 516

U.S. at 485-86, 116 S.Ct. 1251.

Plaintiffs’ appellate briefs argue that the district

court applied the wrong legal standard, requiring the

imminence of actual harm, not merely imminent

endangerment. They note that the court stated that

its “‘working definition of “imminence” is that there

must be a current risk that harm will result in the

near future.’” Aplt. Br. at 16. (quoting Bench Ruling

at 41). We agree with Plaintiffs that the district court

misspoke on this occasion during the hour and a half

that it delivered its oral decision from the bench. But

the error is immaterial in light of the court’s factual

findings. The court did not rely on the absence of

imminent harm. Rather, the basis of its ruling was

that there was no evidence that under current condi-

tions at the Denver Airport there would be measur-

able (much less harmful) levels of hydrogen sulfide in

Concourse B. See Bench Ruling at 34 (finding that the

evidence of current conditions did not establish the

presence of dangerous levels of hydrogen sulfide or

ADF); id. at 42-43 (noting that even assuming that

significantly more ADF degraded in the basement of

Concourse B, “there is insufficient evidence to demon-

strate how much hydrogen sulfide would be produced”

App. 19

and whether it would “rise to the level of creating a

health hazard.”).

Plaintiffs also argue that Denver ceased full-

plane deicing at the gates only as a result of the

present lawsuit and that it is free to renew the prac-

tice if they are denied relief. But the district court

found that such a change would not be imminent. It

said that the prospect of resumption was only specu-

lative and that the evidence did not establish that

Denver would resume full-plane deicing upon ter-

mination of this litigation. Moreover, the court found

that the evidence did not show that even such a

resumption would present a substantial health risk.

Finally, Plaintiffs rely on mootness doctrine to

support their claim of imminence. They point out that

Denver’s cessation of full-plane deicing at the gate

does not make this case moot, because such deicing

may resume. See Friends of the Earth, Inc. v. Laidlaw

Envtl Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct.

693, 145 L.Ed.2d 610 (2000) (“It is well settled that a

defendant’s voluntary cessation of a_ challenged

practice does not deprive a federal court of its power

to determine the legality of the practice. If it did, the

courts would be compelled to leave the defendant free

to return to his old ways.... The heavy burden of

persuading the court that the challenged conduct

cannot reasonably be expected to start up again lies

with the party asserting mootness.” (brackets, ellip-

sis, citations, and internal quotation marks omitted)).

But mootness doctrine is irrelevant to the RCRA

requirements at issue in this case. The district court

App. 20

did not dismiss the suit on jurisdictional grounds

(mootness), but because of Plaintiffs’ failure to prove

their claim. A RCRA suit cannot be brought because

someone may sometime begin disposing of solid waste

in a manner that presents an endangerment. The

endangering practice — here, the resumption of gate

deicing — must be imminent. See 42 U.S.C.

§ 6972(a)(1)(B). Plaintiffs’ suit was properly dismissed

because the evidence showed that resumption of full-

plane gate deicing at Concourse B was not imminent,

but merely speculative. If the district court had been

persuaded by the evidence that Denver would likely

resume full-plane deicing at the gates upon conclu-

sion of this litigation and that such a practice may

present an imminent and substantial endangerment

to health, we presume that it could properly issue an

injunction under RCRA. That, however, is not the

case we have before us.

HI. CONCLUSION

We AFFIRM the judgment of the district court.

App. 21

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 05-cv-00242-MSK-MEH

TERRI CRANDALL and JOANN HUBBARD,

Plaintiffs,

VS.

THE CITY AND COUNTY OF DENVER,

COLORADO, d/b/a/ The Denver International!

Airport, a Colorado political subdivision,

Defendant.

REPORTER’S TRANSCRIPT

(Trial to Court: Bench Ruling)

Proceedings before the HONORABLE MARCIA

S. KRIEGER, Judge, United States District Court for

the District of Colorado, commencing at 9:02:37 a.m.,

on the 24th day of April, 2008, in Courtroom A901,

United States Courthouse, Denver, Colorado.

Proceeding Recorded by Mechanical Stenography,

Transcription Produced via Computer by

Paul Zuckerman, 901 19th Street, Room A259,

Denver, Colorado, 80294, (303) 629-9285

(2) APPEARANCES

PERRY |. GLANTZ, BRIAN D. GONZALES,

FRITS W. GANZ, and JOHN D. FOGNANI, Attorneys

at Law, Fognani & Faught PLLC, 1700 Lincoln

Street, Suite 2222, Denver, Colorado, 402038, appear

ing for the Plaintiffs

ANDREW J CARAFELLI, CHRISTEN A

MATTISON, and PETER J. MOYSON, Attorneys at

Law, Hall & Evans, 1125 17th Street, Suite 600,

Denver, Colorado, 80202-5817, appearing for the

Defendant

PROCEEDINGS

(In open court at 9:02 a.m.)

CHk COURT: Please be seated

We're convened this morning in Case No. 05-242,

which is enecaptioned Terri Crandall and JoAnn

Hubbard vs. the City and County of Denver. This

matter is set down for an oral ruling following a five

day bench trial

Could | have entries of appearance please

MR. GLANTZ: Good morning, your Honor

Perry Glantz. With me is Mr. John Fopnani, Fritz

Ganz, Brian Gonzales. We're all of the law firm of

Kognani & Faught. And Terr) Crandall and JoAnn

Hubbard are here this morning as well

THE COURT: Good morning

MR MATTISON: Good morniny, your

Honor. For the City, Chris Mattison, Andy Carafelli

and Peter Moyson of Hall [3] & Evans. Toyvether with

me is Helen Raabe with the City Attorney's Office

App. 23

THE COURT: Good morning.

THE COURTROOM DEPUTY: Judge, we

do have someone available by phone.

THE COURT: All right. Who do we have on

the phone?

MR. NEWMAN: It’s Dan Newman, your

Honor.

THE COURT: Mr. Newman, in what

capacity are you appearing?

MR. NEWMAN: Im an attorney with Excel

Environmental. We’re the environmental insurance

carrier for the City of Denver.

THE COURT: Oh. All right. Thank you. I’m

not used to have having anyone other than parties

appear by phone or their counsel, so you catch me

sort of by surprise.

MR. NEWMAN: I was in attendance for the

five-day trial but, Pm in Philadelphia and could not

make it out there for today.

THE COURT: Well, we’re glad that you can

connect by phone. And should you be unable to here

at some point, please let me know.

MR. NEWMAN: Thank you.

THE COURT: All right. The Court is

Irepared today, after considering the evidence and

prep y, g

the argument presented at a five-day trial, to issue an

App. 24

oral ruling in this case. There [4] will be no written

opinion, and I anticipate that this oral ruling will

take sometime to deliver. So I want to make sure that

all of you are (1) comfortable and (2) understand that

since it will take some time to deliver this ruling,

should you become uncomfortable and you need to

walk around or you need to visit the facilities, please

feel free to come and go as you choose.

Now, before I begin with the ruling, I want to

express the Court’s gratitude to Counsel in this case.

You’ve demonstrated a sincere and committed dedica-

tion to your clients’ cause. You have demonstrated

professional collegiality and courtesy in the court-

room, you were extensively prepared for trial, and

you efficiently presented evidence at trial in a

streamlined fashion, thereby minimizing the costs to

your clients.

Parties: You've been well-represented in this

case. And I want to tell you both that I have listened

carefully to the evidence that’s been presented, and

I’ve considered the arguments of your counsel both in

writing and orally.

As to the plaintiffs, Ms. Crandall and Ms.

Hubbard, I understand that your purpose in bringing

this lawsuit is to ensure a healthy environment on

Concourse B at DIA. I appreciate the frustration that

you felt in making complaints about what you believe

to be a noxious odor over a number of years and the

fact that for an extensive period of time it [5] appears

that your complaints were ignored or rebuffed. I

App. 25

understand that you believe that the City and County

of Denver has not done enough to address your

concerns.

As to the City and County of Denver, 1 under-

stand and appreciate that it, too, is committed to a

safe environment on Concourse B at DIA and that it

has engaged numerous experts and studies and

implemented recommendations to meet that objec-

tive. I appreciate that it, too, is frustrated that the

plaintiffs are not satisfied.

Unfortunately, this litigation process by its

nature does nothing to build upon the parties’ com-

mon interests, their interest in a safe environment on

‘Concourse B. Instead of bringing the parties together

in a common purpose, litigation by its nature divides

you. It pits you against each other as opponents, each

side trying to win, each side trying to prove that that

side is right and the other side is wrong.

And by the nature of the litigation process, the

Court’s decision is two steps removed from the com-

mon purpose that you share. The Court is called upon

to evaluate the evidence in the courtroom, that which

has been presented during the trial, according to the

law. That doesn’t involve deciding who is a good guy

or a bad guy, it doesn’t involve deciding who is right

and who is wrong, and it certainly does not serve a

common purpose of maintaining good air quality in

Concourse B at DIA. What it does is in accordance

with the law involve a [6] dispassionate, impartial,

rational assessment of the evidence and comparing

App. 26

that evidence to the legal standards that are appli-

cable under RCRA; and unfortunately, in doing that,

it neither affects the air in Concourse B, nor does it

decide that one side is right and the other side is

wrong. Essentially, there will be no winner in this

case.

With regard to the ruling here, as I said, I have

considered all of the evidence that’s been presented

and the very persuasive arguments made by Counsel.

The Court exercises jurisdiction in this case pur-

suant to 28 U.S.C. Section 1331 because this action

involves a single claim brought pursuant to the

citizen suit provision of the Resource Conservation

and Recovery Act, which is commonly referred to as

RCRA. It’s found at 42 U.S. Code Section 6972, and

the applicable subsection is found at subsection

(a)(1)(B). It reads:

“Any person may commence a civil action on his

own behalf against any person who has contributed

or who is contributing to the past or present hand-

ling, storage, treatment, transportation, or disposal of

any solid or hazardous waste which may present an

imminent and substantial endangerment to health or

the environment.”

Under this statute, the Court is authorized, if a

claim is proved, to provide equitable relief. Here the

plaintiffs request:

[7] That the Court order an independent risk

assessment for air contamination at Concourse B at

App. 27

DIA in accordance with EPA specifications referred to

as RAGS A, particularly addressing vapor intrusion

|

into Concourse B;

Secondly, installation of air monitors in the base-

ment of Concourse E /sic/, particularly in the mech-

anical sump rooms;

Third, removal of drywall in the basement of

ee, .

Concourse B;

Fourth, installation of a system engineered to

prevent the generation or dissemination of off-gasses

in the basement of Concourse B.

And finally, a ban of full-plane deicing at the

gates of Concourse B.

Now, in order to implement these requests, the

plaintiffs have asked that this Court exercise con-

tinuing jurisdiction over DIA and particularly Con-

course B through the appointment of a special master

to ensure conformance with the Court’s orders.

This matter has been tried to the Court over five

days. The Court has considered all of the arguments,

the legal authority, and the evidence; and this ruling

will contain factual findings, legal conclusions, and

an explanation of my reasoning.

Because RCRA is a specific statute with a narrow

[8] purpose, the Court’s factual findings appear in two

contexts: first some general facts; and then as part of

the analysis in this opinion due to the unique nature

of this statute and the carefully tailored presentation

App. 28

of parties, the Court does not intend its factual find-

ings to have preclusive effect under the doctrines of

res judicata or collateral estoppel.

Mr. Newman, Mr. Zuckerman tells me it’s a little

hard for him to hear in the courtroom because there

are sounds coming from your office. Can you put your

phone on mute?

MR. NEWMAN: Yes.

THE COURT: Okay. And that way, we

won't hear the background noise in your office. Thank

you.

This controversy focuses upon odors emanating

from the basement of Concourse B at Denver Inter-

national Airport. And with regard to that, ’m going to

make some general factual findings:

First the odors are described as offensive, smel-

ling like sewage, rotting nightshade, or rotten eggs.

The plaintiffs contend that they originate from

degrading propylene glycol, which is the substance

used to deice planes at DIA. Sometimes the parties

referred to this as “propylene glycol,” sometimes they

referred to it as “ADF,” “aircraft deicing fluid”; and I

will be referring to it by both terms as well.

The plaintiffs contend that the odors in Con-

course B are caused by the degradation of propylene

glycol in an [9] anaerobic environment. They contend

that either the odors are generated when the

propylene glycol degrades in the soil and the gasses

App. 29

that come from the degradation process then infil-

trate the basement at Concourse B, or that the

propylene glycol becomes dissolved in storm water

that flows down through the cracks of the tarmac into

the soil and then into the basement at Concourse B.

The plaintiffs contend that when the propylene

glycol degrades in the presence of sulfur or sulfates, it

produces hydrogen sulfide gas, produces the gas first

in the fluid and then it off-gasses into the air. It is

this odor that is characteristically foul-smelling,

smelling of sewage or rotten eggs.

The plaintiffs contend that the production of

hydrogen sulfide gas can be episodic, depending upon

the weather, particularly when there — there is sig-

nificant precipitation from either rain or snow.

Now, Concourse B is one of several concouses at

DIA. DIA is a hub used by United Airlines, and

Concourse B is used almost exclusively by United

Airlines. United Airlines has approximately 300

flights per day from the concourse. It employs up to

500 customer service agents. On Concourse B are

located numerous restaurants, shops, cleaning per-

sonnel, security people, and other folks who work

there. In addition, there are uncountable travelers

that pass through Concourse B.

[10] Concourse B has a number of levels. The

lowest level that we are dealing with in this lawsuit

is the basement level. It exceeds the footprint of the

building, extending out under the tarmac where the

App. 30

gates are located along the concourse. In the base-

ment level, there are 12 mechanical or sump rooms.

The sump — there are two sump systems, sanitary

sumps and industrial sumps. The sanitary sumps

receive waste from bathrooms and kitchens and

drains in the basement floor. The floor drains have

traps which prevent sewer gas from coming back out

of the drains.

In addition, there is a closed sump system, or at

least some of the sumps are included in a closed sump

system which is ventilated outside of the concourse.

Above the basement is the apron level. That’s the

level on which the planes park outside the gates. And

above the apron level is the main concourse level.

That’s the level where the gates and restaurants and

shops are located. And above the main concourse level

is the mezzanine level. There are shops and lounges

and offices and meeting rooms located on the mez-

zanine level.

We turn next to the chemical breakdown of

propylene glycol. Four experts, Dr. Hernandez, Dr.

Strauss, Dr. Hewitt, and Dr. Millner, testified

concerning the chemical process and products gen-

erated when propylene glycol degrades. They’re all in

agreement. Propylene glycol degrades in two different

ways. [11] If it degrades in the presence of oxygen,

aerobically, the degradation process produces carbon

dioxide and other products. But if the degradation is

anaerobic, takes place outside the presence of oxygen,

it produces aldehydes, propionic acid, and if sulfate or

App. 31

sulfur is present, hydrogen sulfide. That is produced

first in the fluid and then by operation of physics laws

becomes airborne as it particulates into the air.

Although the aldehydes and propionic acid may

have potential health effects, the bulk of the evidence

presented in this case concerned the effect of hydro-

gen sulfide; and it is therefore hydrogen sulfide as an

off-gassing product from propylene glycol with which

the Court is concerned.

The Court notes that the off-gassing of hydrogen

sulfide is not unique to propylene glycol. It results

from similar anaerobic breakdown of other organic

materials as well, such as jet fuel or antifreeze, which

is composed primarily of ethylene glycol.

Everyone agrees that hydrogen sulfide has a

characteristic smell like sewage, sewer gas, or rotten

eggs. Dr. Strauss and Dr. Hewitt agree that hydrogen

sulfide has what is as a, quote, “huge threshold

range,” unquote. It can be detected by smell at very

low concentrations in the air, much lower than those

which cause health effects. For example, some people

with sensitive noses can detect hydrogen sulfide in

the air at 1 part per billion. It is recognized as [12] a

distinct odor by almost all people at 300 parts per

billion, or 300 times that amount.

Health effects, however, require much higher

concentrations. Eye irritation has been noted at

between 5 and 30 parts per million — not billion.

Marked eye and lung irritation occurs at 200 parts

App. 32

per million. Breathing impairment and unconscious-

ness results at 1,000 parts per million. In other

words, there must be more than 10 times the amount

of hydrogen sulfide in the air once everyone can smell

it before there is any adverse effect on anyone’s

health.

The recognized health impacts are burning eyes

and lung irritation and, at very high concentrations,

breathing impairment and unconsciousness. Some

people who smell the rotten-egg smell at Concourse B

complained of sore throats, sinus congestion and

infection, pneumonia, and nausea. Some believed that

their symptoms were related to the odor, but no

medical evidence was presented that correlated any

symptom suffered by any complaining person to the

presence of hydrogen sulfide.

Now, this lawsuit has been pending since 2005;

and in considering the evidence and the standards

required by the law, it’s helpful to look at the evidence

in two different time periods. The first time period

reaches into early 2006, and the second time period

follows thereafter.

We look at these two time periods because the

[13] conditions and the evidence as to the two time

periods is distinctly different. Prior to 2006, there

were numerous complaints of sewer gas and rotten-

egg odors.

In formulating her qualitative assessment, Dr.

Harlee Strauss reviewed 30 depositions, mostly of

United Airline customer service agents working on

App. 33

Concourse B. There were particularly malodorous

locations and particularly malodorous incidents. For

example, there were numerous complaints that came

from the Red Carpet Room located adjacent to

elevator shafts in 2001. Other odor complaints came

from ramp personnel and airport employees. Almost

all the complaints referred to the rotten-egg smell.

Some complaints also linked the smell to degrading

deicing fluid.

There are complaints in 1997. And one witness

testified that the numerous complaints resulted in a

collective grievance that was filed prior to the initi-

ation of this lawsuit. That grievance reflected only a

portion of the complaints that had been made by

United Airlines’ employees and those who worked on

Concourse B.

Karen Rewolinski testified as to foul-smelling

odors on Concourse B. She said she was seriously sick

in 2005 but has not been sick since then.

And the plaintiff Terri Crandall testified that the

odors were particularly pungent i 2002 through 2005.

She has not lodged a complaint since 2006.

[14] In addition to these numerous complaints,

there is objective evidence of the presence of

propylene glycol in Concourse B and of the presence

of hydrogen sulfide in Concourse B.

In rendering her qualitative assessment, Dr.

Harlee Strauss reviewed a number of documents: a

report issued in 1996 referred to as the “Aguirre

App. 34

Report,” which found a water leakage problem into

the basement of Concourse B; a 1998 CDM report

which included its water quality study and recom-

mended a number of actions to contro! the runoff of

ADF into DIA’s storm water system.

In the late 1990’s, Dr. Hernandez participated in

a study that searched for fugitive emissions of ADF.

This was conducted by Camp Dresser & McKee, but

there were no local calculations pertinent solely to

Concourse B.

In 2001, there was an incident in the Red Carpet

Room on Concourse B in which numerous people com-

plained of odor and burning eyes. Air testing found

concentrations of hydrogen sulfide above 1 part per

million.

A report prepared by U.S. Corporation concluded

that the foul odors initiating the complaints were the

result of off-gassing of degrading deicing fluid but

that the concentrations of the hydrogen sulfide at ]

part per million were below occupational exposure

limits.

There is also a report prepared by ‘Tri-County

Health [15] Department in August 2001 regarding

tracer gas which tracer gas coming into the Red

Carpet Room through elevator shafts.

In an email in 2004, Janell Barrilleaux, the

Director of Environmental Programs at DIA,

acknowledged that water at the east end of Concourse

B had an odor and had breakdown or what we call

App. 35

“daughter” products from the breakdown of propylene

glycol.

An investigation into Concourse B odor by CDM

in 2005 was conducted. Air samples were retrieved,

but hydrogen sulfide gas was not detected. The study

revealed small amounts of aldehydes associated with

glycol degradation and incomplete combustion of

other substances.

In April of 2006, Dr. Hernandez inspected the

basement of Concourse B. He observed water stains

on walls, floors, degraded drywall, corroded metal

from past exposure to chemical fumes and liquids. He

observed bubbling in some of the sumps, and he

detected fumes coming from the sumps. He sampled

the water. He did not find propylene glycol; however,

he did find some ethylene glycol, but he took no air

samples.

And in September, 2005, Exhibit 160, there are

log entries and work orders regarding hydrogen

sulfide detected in a mechanical room in the base-

ment below Concourse B.

That's our first time period.

In 2001, DIA began a sealing program of the

tarmac located around Concourse B. That sealing

program has continued [16] to date. It’s subsequent to

the Red Carpet incident. It sealed off the elevator

shafts adjacent to the Red Carpet Room.

In 2005, full-gate deicing ceased. It’s now limited

to gear deicing and what ts called “frosty” deicing at

App 36

the gates. In 2006, ventilation fans were installed in

two of 12 basement sump rooms, and the City

anticipates installing the fans in the remaining: sump

rooms

That then takes us to the conditions since 2006

In contrast to the earlier period, there are signi

ficantly fewer odor complaints and no objective evi

dence of hydrogen sulfide in the air in Concourse B

As I said, Karen Rewolinski testified to foul sme!

ling odors at various times and places on Concourse

B. Most recently, she said she smelled it in early

2008; but the last time she got seriously sick was in

2005

Terri Crandall also testified that she smelled a

variety of odors in Concourse LB: stale, moldy, musty

sewape, passy, rotlten-eyy smell. It’s worse after a

heavy snowstorm or in the spring or summer rainfall

She reports it only when it’s substantial. The last

severe instance she reported was in the Mildred

Harris training room. That occurred in 2005 or early

2006

Dr. Hernandez has visited DIA three times in

conjunction with this matter. Most recently he visited

in March of 2008. He previously in his visit in 2006

saw the [17] conditions in the basement which

reflected water coming into the basement, stains on

the floor, bubbling in the sumps. He testified that

hased on his visit in March of 200%, conditions were

: imitlar LO what he had previou ly SCOT He melled ia

App. 37

rotten-egg smell and what he characterized as rotting

nightshades, and after his inspection he felt ill. He

sought medical treatment, but he did not obtain a

diagnosis correlating his illness with his exposure at

DIA. And what is most persuasive to this court is,

given his expertise in sanitary engineering, he

expressly stated that he could not correlate his illness

to the sumps.

In March of 2008, a number of other folks

inspected the mechanical rooms where there were

vent fans; and the testimony was there was a mild

human waste smell associated with the sanitary

sump.

Mr. Larson also testified with regard to the

conditions in the basement. Don Larson testified that

there is continuing water leakage into the basement

especially when there is heavy rain and snow. He

smelled degrading glycol in the basement. He said it’s

worse when it rains, and there is an occasional sewer

smell. He recognized the degrading glycol smell from

his many years working on the ramps of airports, and

he testified as to a leak in a pipe that transports

deicing fluid outside of gate B17 — I’m sorry — B16.

Now, contrary to our earlier time period, there is

no [18] objective indicia of the presence of hydrogen

sulfide gas in the air in Concourse B.

CTEH was retained by the City in 2005 to con-

duct air testing throughout the concourse. It con-

ducted testing in November, 2005, Apml, 2006;

November, 2006; February, 2008, and March, 2008. It

App. 38

conducted three types of sampling: stationary samp]-

ing, personnel sampling, and real-time sampling.

Stationary sampling involves setting up monitors in

the mechanical sump rooms. Personnel sampling

included following personnel around on their duties

and testing the air that they encountered. And real-

time sampling included going to various places in the

concourse and obtaining samples.

There were 60 or more locations sampled, and no

hydrogen sulfide gas was detected in any sample.

Low levels of aldehydes were detected, methane was

detected; but these were consistent with the back-

ground outside Concourse B, and they were not in

excess of occupational standards.

So we turn, then, to the legal standard that

applies here. The plaintiffs assert a claim, as I’ve

identified, under 42 U.S.C. Section 6972(a)(1)(B). The

plaintiffs contend that DIA has contributed or is

contributing to the past or present handling, storage,

treatment, transportation, or disposal of a solid or

hazardous waste which may present an imminent or

substantial danger to health or the environment.

Unlike other environmental statutes, RCRA is

not [19] principally concerned with ensuring the

cleanup of environmental hazards or the compen-

sation of those who have been forced to undertake

cleanup. Rather, RCRA’s primary purpose is to, quote,

“insure the proper treatment, storage, and disposal of

waste so as to minimize the present and future threat

to human health and the environment,” unquote.

App. 39

That quotation comes from the United States

Supreme Court decision in Meghrig vs. KFC Western,

found at 516 U.S. 479. Indeed, under RCRA, the

equitable relief that can be granted is limited to that

which is necessary to prevent imminent and sub-

stantial harm.

The statute specifies three elements that must be

proven to establish a claim: that the defendant is a

person who is a generator or transporter of solid

waste or one on is or was an owner of a solid waste

treatment waste, storage, or disposal facility; (2) that

the defendant contributed to, or is contributing to, the

handling, storage, treatment, transportation, or

disposal of solid waste, and (3) that the waste may

present an imminent and substantial endangerment

to health or the environment.

Now, the leading case in the Tenth Circuit —

Colorado is in the Tenth Cireuit — zs Burlington

Northern and Santa Fe Ratlroad Company vs. Grant.

It’s found at 505 F.3d 1013. It’s a Tenth Circuit, 2007

case. And I will be referring to it in a number of

different capacities as I work through these [20]

elements. It cites to Cox vs. City of Dallas, 256 F.3d

281, a Fifth Circuit, 2001 decision, for the three

elements that must be proved.

We start with the first element, a person gen-

erating or transporting solid waste. It does not

appear that the parties dispute that the defendant

City and County of Denver is a person for purposes of

RCRA; however, the definition of “solid waste” is

App. 40

something that the Court must explore. It is statu-

torily defined as “any garbage, refuse, or other

discarded material, including solid, liquid, semisolid,

or contained gaseous material resulting from indus-

trial and commercial operations.” That definition is

found in 42 U.S.C. Section 6903(27). The parties have

identified the solid waste in this matter as propylene

glycol or ADF; and although it sounds oxymoronic,

the statute expressly contemplates that liquids such

as propylene glycol qualify as solid wastes.

Now, although the solid waste in this case is

propylene glycol and the parties agree to that, there

is a dispute as to whether propylene giycol as a solid

waste is subject to RCRA, and that is because there is

another body of law that applies to liquids that flow

into navigable waters. In brief, RCRA regulates the

improper disposal of solid waste, a term which

admittedly includes deicing fluid. However, RCRA’s

definition of “solid waste” excludes industrial dis-

charges which are point sources subject to permits

under the [21] Clean Water Act.

The Clean Water Act, found at 33 U.S.C. Section

1251, and other sections provides a system by which

certain regulatory bodies may issue permits gov-

erning a facility’s permissible discharge of pollutants

into navigable waters. The focus of regulation under

the Clean Water Act is on point sources of con-

tamination. Generally speaking, a point source

encompasses any artificial system for moving water,

waste, or other materials from a location where

App. 41

pollutants originate to their eventual disposal into

navigable waters.

The defendant explains that Concourse B has a

complex system designed to catch fluid containing

storm water that flows or seeps into the building,

channeling that storm water into the airport’s general

storm water collection system, where it is ultimately

discharged into navigable waters. Thus, the defen-

dant contends that the entirety of the process is

within the design of the storm water collection

system and therefore any off-gassing from propylene

glycol that gets into the basement that goes into the

sumps is subject to a permit issued by the State of

Colorado under the Clean Water Act’s permitting

process. As such, it would be exempt from RCRA.

The plaintiffs do not appear to disagree with the

general premise that the spilled fluid actually enters

into a collection system and that would constitute a

point source regulated under the Clean water Act

instead of RCRA, but the [22] plaintiffs contend that

to the extent the fluid breaks down and releases

harmful vapors as to moves through the collection

system, those vapors escape the collection system and

are subject to RCRA. Once escaped, the vapors are no

longer subject to regulation under the Clean Water

Act; instead, they’re regulated by RCRA.

Thus, the legal question is whether the point

source exclusion under RCRA applies to solid wastes

App. 42

that enter a collection system that is — that ulti-

mately discharges in a point source but escape the

system prior to discharge.

This issue was raised prior to trial, but the Court

reserved ruling pending the presentation of evidence.

That is because the cases cited by the parties and the

Court’s own research led to the conclusion that the

Court had to consider evidence as to what the per-

mitting authority intended to cover in the permits.

The Court was most persuaded in its analysis by

a Fourth Circuit decision, Piney Run Preservation

Association vs. County Commissioners of Carroll

County, found at 268 F.3d 255. In this decision, the

Fourth Circuit considered whether the Clean Water

Act’s permit shield ~ that is, protection against

pollution suits enjoyed by the holder of the permit

issued under the Act’s regulatory scheme — extended

to the discharge of pollutants that were not expressly

contemplated by the permit. In that case, a permit

holder was entitled to [23] discharge effluents into a

stream, but the plaintiffs alleged that the discharge

of heated effluents or hot fluid exceeded the scope of

the permit. In considering the question, the court

explained the rationale of the permit process as

follows:

“The applicant discloses the nature of its effluent

discharges to the permitting authority. The permit-

ting authority analyzes the environmental risk posed

by the discharge and places limits on those pollutants

that, in the words of the Second Circuit and EPA it,

App. 43

‘reasonably anticipates’ could damage the environ-

mental integrity of the affected waterway. Thus, as

long as the permit holder complies with the Clean

Water Act’s reporting and disclosure requirements, it

may discharge pollutants not expressly mentioned in

the permit. The only other limitation on the permit

holder’s ability to discharge such pollutants is that

the discharges must be reasonably anticipated by or

within the reasonable contemplation of the permit-

ting authority. Because the permitting scheme is

dependent on the permitting authority being able to

judge whether the discharge of a particular pollutant

constitutes a significant threat to the environment,

discharges not within the reasonable contemplation

of the permitting authority during the permit appli-

cation process, whether spills or otherwise, do not

come within the protection of the permit shield.”

This reasoning is applicable here, because the

City [24] contends that the permits govern the entire

degradation process and the hydrogen sulfide that

results from the degradation of the propylene glycol.

What the Court reserved determination on is whether

the permitting authority reasonably anticipated that

it would be covering off-gassing hydrogen sulfide of

the degradation of propylene glycol in Concourse B.

At trial, two permits are presented: DIA’s

industrial storm water permit issued by the Colorado

Department of Public Health at Exhibit 163 and the

Metro Wastewater Reclamation District permit at

Exhibit 164, issued to the City and County of Denver

and monitored by the Metro District. Both permits

App. 44

regulate discharge of aircraft deicing fluid into storm

water and the sanitary system from DIA. Both

appear to appear to address off-gassing from glycol

degradation. Indeed, odors associated with off-gassing

outside DIA buildings have been the subject of

investigation and monitoring by the permitting auth-

orities. There is no dispute that some water that

seeps into Concourse B ends up in sanitary sumps

which empty into the sewer system subject to the

jurisdiction of Metro Wastewater.

Propylene glyco] leaks, storage, and cleanup

outside of Concourse B are arguably subject to the

permits; however, the question is whether off-gassing

from fluids inside Concourse B are subject to the

permits.

The Court concludes that where the propylene

glycol leaks, storage, cleanup, and out-gassing occur

outside of the [25] DIA buildings, they are not subject

to RCRA. This means that any vapors that are

created in the soil outside of DIA are not subject to

RCRA, even though they may enter into DIA through

cracks in the basement.

In reaching in conclusion, the Court turns to a

number of different references in the permits and the

storm water management plan. Metro Wastewater’s

requirements include at requirement No. 11 — and for

the record this is Exhibit 164 with Bates stamp DIA

043406 — “any wastes that contain a corrosive,

noxious, or malodorous material or substance which

App. 45

either singly or by reaction with other wastes is

capable of causing damage to the system or to any

part thereof, creating a public nuisance or hazard or

of preventing entry into the sewers for maintenance

and repair.”

In the storm water management plan found at

165, Section 2, with a page number of DIA Bates

stamp 059321, the permit is quoted as saying, “The

plan shall identify potential sources of pollution that

may reasonably be expected to affect the quality of

storm water discharges associated with industrial

activity from the facility. In addition, the plan shall

describe and ensure the implementation of practices

which are to be used to reduce the pollutants in storm

water discharges associated with industrial activity

at the facility and to assure compliance with the

terms and conditions of the permit.”

[26] And among the critical tasks that are

identified in conjunction with the storm water plan

found at Exhibit 165, pages marked DIA Bates stamp

059464 and ‘465, are an obligation at C4 that the

airport “capture storm water containing spent ADF

generated within deicing areas when aircraft deicing

occurs” and to collect storm water from non-deicing

areas, fugitive areas, when spent ADF is likely to be

present.

Now, the context of these permits is such that the

permitting authorities are concerned with propylene

glycol or other substances getting into the storm

water system, and presumably propylene glycol

App. 46

which leaks down among cracks in the tarmac into

the soil could go a variety of different directions. It

could wash into the storm system; or it could, as the

plaintiffs contend, vaporize as part of a degradation

process and the fumes could come into the basement,

or it could be washed into the basement with storm

water that comes in through the ceiling or the walls.

The Court has heard the testimony of Janet /sic/

Barrilleaux, who is DIA’s representative with regard

to environmental matters generally and_ these

permits specifically. She testified that she has no

responsibility for monitoring what happens inside the

concourse and that is handled by the DIA Risk

Management and Health and Safety Office and they

have no responsibility to ensure compliance with

these permits. The permitting authorities have

known about the indoor air [27] complaints in

Concourse B but have not attempted to exercise any

control over fugitive of ADF in order to address them.

And there was no testimony presented by any

representative of the permitting authorities as to

their perception or understanding of the scope of the

permits.

Therefore, the Court concludes that fugitive

propylene glycol or ADF that remains outside of Con-

course B is subject to the permits, and that includes

off-gassing that occurs outside of Concourse B, but

that propylene glycol that flows in storm water into

concourse B and degrades in Concourse B is not

subject to the permits and instead is subject to RCRA.

App. 47

Now, put in very simplistic terms, what this

means is that leaks from pipes outside the building

and vapor that is created outside the building would

be subject to the permits; off-gassing that occurs from

propylene glycol inside the building is subject to

RCRA.

The next term is “contributing to.” A person

“contributes to” the handling, storage, treatment,

transportation, or disposal of solid waste when that

person “has a part or share in producing an effect.

“Disposal” of wastes includes, “dumping, spilling,

leaking, or placing of any solid waste into or on any

land or water. And a person who has the ability to

instruct or control the actions of another person who

is disposing of waste can be found to be “contributing

to” any improper handling of such waste. There |28]

does not appear to be any dispute between the parties

that the City contributes to the handling, storage,

treatment, transportation, etc. of deicing fluid or

ADF.

This then takes us to the third element that must

be proved. The language is “may present an immi-

nent and substantial endangerment.” This is the most

complex element of the claim. It has several discrete

requirements. And some parsing of the phrase is

necessary to understand it. And used in the statute,

the subject of this phrase is “waste.” The predicate

verb is “present,” and the direct object is “endan-

germent.” In other words, the waste must present

endangerment.

App. 48

In addition, the word “may” is an adverb which

modifies the word “present,” and “imminent” and

“substantial” are adjectives that modify the noun

“endangerment.” And [I’m only yzlad that someone

taught me grammar a long time ago so that I knew

the parts of speech so I could understand what the

statute was saying.

Understanding how each of these parts of speech

fit together is essential to understanding the meaning

of this legal provision. We start with the verb and the

adverb, “may present.” The Tenth Circuit has recog-

nized that this verb clause is expansive language.

They describe it as such in Burlington Northern and

Santa Fe Railroad Company vs. Grant, 505 F.3d

1013, Tenth Circuit, 2007 decision. By affording [29]

relief not only where waste actually presents suffi-

cient endangerment but also where it may do so,

RCRA confers upon the court, quote, “the authority to

eliminate a risk to human health or to the environ-

ment posed by the waste.”

Here the plaintiffs have not alleged that the ADF

or the propylene glycol poses any particular hazard to

the environment in its liquid form. They focus upon

what happens when it degrades in the anaerobic

environment in the presence of sulfur because that

causes the off-gassing of hydrogen sulfide gas. Accord-

ingly, the Court limits its analysis to the hydrogen

sulfide gas and the propylene glycol that produces it

and based upon the Court’s reasoning with regard to

the permits limits its analysis to the propylene glycol

App. 49

that flows into the basement und the yvus that is

produced therefrom.

We turn to the next term, “endangerment.”

Because the terms “imminent” and “substantial” are

adjectives modifying the word “endangerment,” the

Court must ascertain the meaning of the word

“endangerment.” In Grant, the court explained that

““‘endangerment’ has been interpreted by the courts to

mean a threatened or potential harm,” here to human

health. In other words, proof of an actual present

harm is not necessary. Endangerment is a risk of

harm. Endangerment exists whenever a solid waste

poses, quote, “any risk,” unquote, to human health

That’s in accordance with Maine People’s Alliance vs

Mallinckrodt, M-A-L-L-I-N-C-K-R-O-D-T, Ine. 47)

I 3d 277, a [30] 2006 decision.

The evidence in this case is that the hazard to

human health is the hydrogen sulfide gas, which is a

daughter product from the anaerobic breakdown of

propylene glycol. The evidence presented as to the

health effects here, | have already summarized

The difficulty in evaluating the hydrogen sulfide

here is twofold: First of all, hydrogen sulfide gas can

be produced by the breakdown of any organic com-

pound, including many used at DIA: fuel; antifreeze,

which includes ethylene glycol, and others. And there

fore, the smell of hydrogen sulfide gas does not does

not establish the presence of propylene glycol.

Secondly, as the experts all recognize, there is a

huge odor threshold range for hydrogen sulfide gas. It

App. 50

presents as an offensive odor in extremely small con

centrations: but it does not endanpver health unless it

is concentrated in significantly higher amounts. As a

consequence, subjective recognition of the charac

teristic rotten-egy odor identifies the presence of

hydroven sulfide gas, but it does not establish that

there is any danger to human health. Put really

simply, we all can smell it before it can hurt u:

This 1s where the difference between the two

time periods becomes important. Up through early

2006, there were numerous odor complaints, but

there was also objective indicra [31] of both propylene

glycol and hydrogen sulfide inside of Concourse B

sut after ameliorative steps were taken by the City

beginning with the sealing of the cracks in 2001, and

continuing through the installation of fans in 2006

the conditions changed. There were a few subjective

complaints of odor but not the numbers of complaint

as in the prior time period. And there was no objec

tive evidence of either propylene glycol or hydrogen

sulfide being present Concourse B. C'THH’s testimony

I’m sorry - testing of the air quality on numerous

occasions and locations failed to record sufficient hy

drogen sulfide to constitute any health hazard. Thu

the evidence of current conditions shows neither the

presence of propylene glycol nor the presence of hy

drogen sulfide in suffiaent amounts to endanger

human health. The risk ts largely theoretical

The Court ts Lempted to end its analysis here: but

because RCRA ts intended to address “any risk.” we

App. 51

will proceed to consider whether the theoretical risk

might nevertheless be substantial and imminent.

So we turn to the word “substantial.” It is not

enough for a RCRA plaintiff to simply show that a

particular solid waste poses some endangerment to

the health or the environment — to health or the envi-

ronment. The statute requires that the endangerment

be substantial.

Courts have equated the term “substantial” with

[32] “serious”; that is, a plaintiff must show that the

risk to health is a serious one. It is not necessary that

the plaintiffs specifically quantify the nature of the

endangerment; in other words, by establishing, quote,

“a certain number of persons will be exposed or that a

water supply will be contaminated to a _ specific

degree,” unquote. And that quotation comes from U.S.

vs. Union Corporation 259 F.Supp.2d 356, a decision

rendered from ‘ye Eastern District of Pennsylvania

in 2003, quoting /nterfaith Community Organization

us. Honeywell at 399 F.3d 248, a Third Circuit

decision. This is also the underlying thread in Grant

found at 505 F.2d 102i, where quantification of the

level of endangerment is not necessary.

At the same time, the Court does not read cases

like Grant or Interfaith Community Organization for

the proposition that relief is warranted to ameliorate

any conceivable risk posed by the waste. The defin-

ition of “endangerment” already encompasses “any

risk” of harm; and if Congress used an adjective such

as “substantial” to modify “endangerment,” the Court

‘

App. 52

understands that it must be something more than

just an endangerment; it must be a serious endan-

germent. fo interpret the statute otherwise would be

to read “substantial” right out of the statutory lan-

guage.

In this case, all the experts acknowledge that

propylene glycol can produce hydrogen sulfide as a

byproduct of [33] an anaerobic degradation if there is

sulfur present. It is also undisputed that excess pro-

pylene glycol washes into the soils and that storm

water from snow or rain flushes through the soil,

carrying substances in it into the basement at Con-

course B. However, the evidence as to current con-

ditions, those since 2006, do not show any significant

amounts of propylene glycol in the basement of Con-

course B, and similarly they do not show any sig-

nificant amounts of hydrogen sulfide gas.

In testing the sumps in 2006, Dr. Hernandez did

not find any evidence of propylene glycol; he did, how-

ever, detect ethylene glycol or antifreeze. His 2006

pictures demonstrate water in the basement, cor-

rosion, and salt deposits. They evidence degradation

of something but not necessarily degradation of pro-

pylene glycol.

Moreover and more importantly, his testimony as

to the condition of the basement when he saw it in

2008 was the same as what he saw in 2006, no better

but no worse.

App. 53

Thus, there is insufficient evidence to establish

propylene glycol in any significant amount in Con-

course B under the current conditions.

We turn then to hydrogen sulfide gas. All the

experts agree that it can result from the degradation

of propylene glycol or other substances and that in

sufficient concentrations thousands of times greater

than when the nose [34] can detect it it can be harm-

ful to health. But the only current evidence as to the

presence of hydrogen sulfide are subjective com-

plaints: Ms. Crandall, Ms. Rewolinski, Mr. Larson,

and Dr. Hernandez.

The Court does not deprecate those opinions or

perceptions at all. The Court recognizes pursuant to

the scientific testimony that hydrogen sulfide can be

smelled at very low levels before it causes any health

hazard.

As I noted earlier, Dr. Hernandez’s testimony was

particularly persuasive to the Court because he’s an

expert in wastewater treatment. And although he felt

ill this year after visiting the mechanical rooms in the

basement of Concourse B, he could not correlate his

illness to the water that he smelled or the smell that

he experienced in those basement rooms.

Thus, the evidence does not establish levels of

either propylene glycol or hydrogen sulfide that are

dangerous to human health; and therefore, the Court

cannot find that there is a substantial endangerment

to human health.

App. 54

We turn next to the question of imminence. The

final requirement is that the plaintiffs show that the

endangerment is imminent. Courts have offered a

wide variety of definitions for “imminent,” and I must

admit that this court has struggled with that defini-

tion. Like all other definitions that I’ve applied thus

far, I started with Grant because it’s the only pub-

lished Tenth Circuit decision that discusses “immi-

nent” as [35] an element in any detail. Unfortunately,

its discussion is limited to four sentences, three which

of are quotations from other decisions. It refers to

Meghrig, United States Supreme Court decision in

1996, for the proposition that, quote, “an endan-

germent can only be imminent if it threatens to occur

immediately,” unquote. It refers to Meghrig for the

proposition that imminence does not require a show-

ing of actual harm that will occur immediately so long

as there is a risk of threatened harm.

It refers to Davis vs. Sun Oil Company, found at

148 F.3d 606, a Sixth Circuit, 1998 decision, which in

turn quotes a Second Circuit decision from 1991,

Dague vs. City of Burlington, found at 935 F.3d 13438,

for the proposition that, quote, “an imminent hazard

may be declared at any point in a chain of events

which may ultimately result in harm to the public,”

unquote.

And it refers to Price vs. United States Navy, 39

F.3d 1011, a Ninth Circuit, 1994 decision, for the

proposition that “imminence refers to the nature of

the threat rather than the identification of the time

when the endangerment actually arose.”

App. 55

A review of the provenance of each of these quo-

tations reveals them to be dicta in the cases to which

the court cites and in some contexts properly under-

stood only in the factual context of the original case.

[36] In Meghrig, the Supreme Court considered

the question of whether RCRA permitted as a remedy

an award of damages for past cleanup costs. The

court’s quotations concerning the imminent element

arise only as part of the court’s rationale for con-

cluding that RCRA is not a remedial scheme; it is

strictly forward-looking. It explained that requiring

proof of an imminent hazard shows that RCRA “was

designed to provide a remedy that ameliorates pre-

sent or obviates the risk of future harms.” And there-

fore it’s not really helpful here.

The “chain of events” quotation that traces its

origins back to Dague is even more problematic. In

Dague, the property owners brought a RCRA action

against the operator of an adjacent landfill. After a

bench trial, the trial court found that the landfill may

have presented an imminent and substantial endan-

germent to health or the environment and the landfill

owner appealed. In discussing RCRA generally, the

Second Circuit explained that it’s not specifically

limited to emergency-type situations and therefore

imminence doesn’t pertain to an emergency. A finding

of imminence does not require a showing that actual

harm will occur immediately, so long as the risk of

harm is present. The court added that “an imminent

hazard may be declared at any point in a chain of

App. 56

events which may ultimately result in harm to the

public,” and then it cited to a number of decisions.

For this last proposition it cited to United States

[37] us. Ottati & Goss Inc, found at 6380 F.Supp. 1361,

a New Hampshire decision in 1985. There, the court

had drawn the definition of RCRA’s imminent ele-

ment from Environmental Defense Fund Inc. vs.

“nvuironmental Protection Agency, 465 F.2d 528, a

D.C. Circuit decision in 1972. And what’s important

about this is it was a non-RCRA case. So the language

of “chain of events” which is applied here in RCRA

originated in a non-RCRA case. Indeed, that case con-

cerned a petition for the EPA to cancel any registered

uses of certain insecticides that allegedly posed an

imminent hazard to the public. And what is even

more confusing is that the “chain of events” language

was not something that came out of a statute or legis-

lative history or other case law but rather it was an

assertion contained in the EPA’s statement of reasons

for its suspension of the pesticide’s registration. So

the “chain of events” language has little correlation to

RCRA.

Finally, the statement in Grant that “imminent”

refers to the nature of the threat rather than the

identification of the time when the endangerment

actually arose comes from U.S. Navy, but that case in

turn refers to U.S. vs. Price, 688 F.2d 204, a Third

Circuit, 1982 decision. In Price, the defendant pur-

chased a landfill that was permitted to receive only

nonchemical wastes but over a number of years had

accepted large amounts of hazardous’ chemical

App. 57

wastes. Water samples drawn from around the land-

fill shortly after the purchase [38] revealed contam-

inants in quantities that were likely to create hazards

to human health. Evidence further revealed that the

contaminants were forming a plume that was head-

ing toward an aquifer that supplied drinking water to

a number of public and private wells. And on a pre-

liminary injunction request, the trial court found that

the plaintiff had adequately shown the existence of

an imminent and substantial endangerment; but it

refused to grant certain relief sought by the plaintiff;

namely, extensive testing of the potential hazard and

the requirement that the plaintiff /sic/ secure alter-

native water supplies for the potentially affected par-

ties. The plaintiff appealed.

In discussing the availability of relief under

RCRA, the Third Circuit prefaced its analysis by

briefly quoting the expansive language of RCRA and

that it was intended to confer overriding authority to

respond to situations involving a substantial endan-

germent to health or the environment. The Court

quoted a portion of a congressional report accom-

panying the passage of RCRA which stated in part,

quote, “‘imminence’ in this section applies to the

nature of the threat rather than identification of the

time when the endangerment initially arose. The

section, therefore, may be used for events which took

place at some time in the past but which continue to

present a threat to the public health or the environ-

ment,” unquote.

App. 58

{39] The Third Circuit went on to note that the

statute permits the court to authorize clean up of the

cite, even a dormant one, if that action is necessary to

abate a present threat to the public health or the

environment.

Viewed in the factual context in which the Third

Circuit adopted the “imminence applies the nature of

the threat” lar suage from the congressional report,

it’s clear that ‘1e “nature of the threat” language is

intended to convey the point that RCRA may be used

to abate a threat of harm even though the conduct

that created that threat occurred long ago and has

long since ceased.

None of these definitions are helpful to deter-

mining imminence in this case; and therefore, the

Court turns to case law other than Grant.

In particular, the Court turns to an unpublished

decision in the Tenth Circuit, Chemical Weapons

Working Group Inc. vs. United States Department of

Defense. It’s found at 61 Fed.Appx. 556. It’s a Tenth

Circuit, 2003 decision. Because it’s an unpublished

decision, it has no precedential effect. That means it

doesn’t bind this court. But its reasoning is instruc-

tive in understanding what “imminence” means. In

Chemical Weapons, the Tenth Circuit affirmed a trial

court’s ruling following a bench trial. The trial court

found that no RCRA claim had been proven by the

plaintiffs, who failed to show that commencement of

operations of a weapons disposal site [40] posed an

imminent risk of harm to the public. The facility had

App. 59

conducted two trial burns of dummy weapons so as to

assess the possibilities of toxic emissions and had

been satisfied that no such emissions occurred and

thereafter had begun test burns involving live

weapons. The trial court found that the plaintiffs had

failed to show an imminent hazard under RCRA

because no agent-related injuries had been sustained

and no agent had been released into the € 1vironment.

The plaintiffs appealed, arguing in part that the trial

court had unduly focused on past events and had not

adequately considered whether there was an immi-

nent danger likely to exist in the future.

The Tenth Circuit rejected the argument that the

trial court’s language suggested that it had not

considered the possibility of future events. Then it

turned to the “imminent” element. It observed that,

quote, “Although the statute implies future orien-

tation, that orientation cannot be very far into the

future,” unquote. It cited Meghrig for the proposition

that, quote, “Imminent harm by definition will occur

almost immediately if action is not taken to prevent

it,” unquote. It explained that, quote, “A vague possi-

bility of future harm cannot satisfy the statute,”

unquote, and that a, quote, “open-ended allegation,”

unquote, by the plaintiffs that they, quote, “expected

that such incidents will continue to occur,” unquote,

simply does not satisfy the standards of RCRA.

[41] Again relying on Meghrig, the court pointed

out that, quote, “An endangerment can only be immi-

nent if it threatens to occur immediately, which

implies that there must be a threat which is present

App. 60

now, although the impact of that threat may not be

felt until later,” unquote.

Following this guidance, which the Court finds

instructive in the context of the facts here, the Court

believes that the working definition of “imminence” is

that there must be a current risk that harm will

result in the near future. Here the risk that pro-

pylene glycol will produce hydrogen sulfide sufficient

to cause a health hazard is a theoretical risk. Evi-

dence of current conditions do not demonstrate either

a substantial concentration of propylene glycol or a

substantial concentration of hydrogen sulfide.

But the plaintiffs argue that the risk exists now

and it may cause a future harm if United Airlines

resumes full-gate deicing at Concourse B rather than

using deicing pads located away from the concourse.

It points to correspondence that suggests that this

lawsuit was the triggering event that caused full-gate

deicing to cease; and therefore, the plaintiffs reason

that United will resume full-gate deicing once this

lawsuit is over and that that will cause an increased

health risk.

The Court finds the evidence with regard to this

too speculative to support the conclusion. First,

although the [42] plaintiffs focus on the effect of this

litigation on the decision to stop full-gate deicing,

other evidence presented suggests that there were

economic factors in play as well. These include the

construction of new deicing pads away from Con-

course B, greater capability in using the pads to

App. 61

deice, the impact of pad deicing on the speed and

number of planes to be serviced, and a requirement of

precedent testing, presumably environmental testing,

as to the effect of deicing fluid, which United has

been unwilling to perform.

In addition, resumption of full-gate deicing does

not ipso facto increase the likelihood of a substantial

health risk. As noted throughout this opinion, the

evidence establishing that propylene glycol is the only

or major source of hydrogen sulfide gas in Concourse

B is weak. The hydrogen sulfide gas may be caused

by the degradation of a number of organic com-

pounds, including propylene glycol. And in addition,

we have another impending event in the future, and

that is the installation of fans in the remaining

mechanical rooms located in the basement of

Concourse B.

The Court is without evidence to balance the

effect of future full-gate deicing against the effect of

future fans. And therefore, the Court cannot conclude

that the evidence is substantial enough to stand on

its own. Instead, it requires the Court to speculate as

to what might happen in the future.

In addition, assuming that there is an increase in

[43] significantly more propylene glyco! released at

the gates, not cleaned up, flowing into the basement,

degrading in the basement, there is insufficient

evidence to demonstrate how much hydrogen sulfide

App. 62

would be produced. And without a significant concen-

tration, it might be foul smelling, but it might not rise

to the level of creating a health hazard.

Thus, as to the question of whether the alleged

endangerment is imminent, the Court concludes the

evidence is inadequate to reach such conclusion with-

out impermissible speculation.

In summary, the Court finds that a potential

endangerment exists but that it is neither substantial

nor imminent. And as a consequence, the request of

the plaintiffs for injunctive relief must be denied.

Judgment is entered in favor of the defendant, the

City and County of Denver in this action. The clerk

will be directed to close this case.

Let me inquire of Counsel whether you have any

need for clarification or further explanation?

MR. GLANTZ: No, your Honor.

MR. MATTISON: No, your Honor.

THE COURT: Then thank you again for

your presentation in this matter. That will conclude

this case. We'll stand in recess.

(Recess at 10:35 a.m.)

App >.

14) REPORTER’S CERTIFICATE

| certify that the foregoing is a correct transcript

from the re cord of proceedings

In the above entitled

matter. Dated at

Denver. Colorado. this 29th day of

April, 2008

Paul A. Zuckerman

Paul A. Zuckerman

App 64

IN THk UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Honorable Marcia S. Krieper

Civil Action No. 05-ev-00242-MSK- MIH

TERRI CRANDALL and

JOANN HUBBARD,

Plaintiffs,

\

THE CITY AND COUNTY OF DENVER

COLORADO, d/b/a The Denver International Airport

a Colorado politi al subdis IS1O;tl,

Defendant

JUDGMENT

(liled Apr. 24, 2008)

PURSUANT TO the Court's oral findings of fact

and conclusions of law, rendered on April 24, 2008,

and the proceedings to date, judgment is” hereby

entered in favor of Defendant, City and County of

Denver, and against the Plaintiffs, Terri Crandall and

Joann Ilubbard, on the claims in this ease, with cost:

pursuant to Fed. R. Civ. P. 54(d)01)

Dated this 24th day of April, 2008

BY THE COURT:

‘s/ Marcas, Kriever

Marca S. Krieger

United States Distmet Judge

App. 65

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TERRI CRANDALL, et al.,

Plaintiffs — Appellants,

.f

CITY AND COUNTY OF DENVER, | No. 08-1197

Colorado, d/b/a The Denver Inter-

national Airport, a Colorado political |

subdivision,

Defendant — Appellee.

ORDER

(Filed Apr. 13, 2010)

Before HARTZ, HOLLOWAY, and TYMKOVICH,

Circuit Judges.

Appellants’ petition for rehearing is denied.

The petition for rehearing en banc was trans-

mitted to all of the judges of the court who are in

regular active service. As no member of the panel and

no judge in regular active service on the court

requested that the court be polled, that petition is

also denied.

App. 66

Entered for the Court,

SS’ Elizabeth A. Shumaker

ELISABETH A. SHUMAKER,

Clerk

App. 67

42 U.S.C.A. § 6972. Citizen suits

(a)

In general

Except as provided in subsection (b) or (c) of this sec-

tion, 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 permit-

ted by the eleventh amendment to the Consti-

tution) who is alleged to be in violation of any

permit, standard, regulation, condition, require-

ment, prohibition, or order which has become

effective pursuant to this chapter; or

(B) against any person, including the United

States and any other governmental instrumen-

tality 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 faci-

lity, who has contributed or who is contributing

to the past or present handling, storage, treat-

ment, transportation, or disposal of any solid or

hazardous waste which may present an immi-

nent 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 chapter which is not

discretionary with the Administrator.

App. 68

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 Dis-

trict of Columbia. The district court shall have juris-

diction, without regard to the amount in controversy

or the citizenship of the parties, to enforce the permit,

standard, regulation, condition, requirement, prohi-

bition, 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 6928(a) and (g) of this title.

(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

App. 69

(iii) 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 respect-

ing a violation of subchapter III of this

chapter; or

(B) if the Administrator or State has com-

menced 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) of this sec-

tion in a court of the United States, any person may

intervene as a matter of right.

(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 endan-

germent to —

(i) the Administrator;

(ii) the State in which the alleged endan-

germent may occur;

(iii) any person alleged to have contributed or

to be contributing to the past or present han-

dling, storage, treatment, transportation, or

disposal of any solid or hazardous waste referred

to in subsection (a)(1)(B) of this section,

App. 70

except that such action may be brought immediately

after such notification in the case of an action under

this section respecting a violation of subchapter III] of

this chapter.

(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 —

(i) has commenced and is diligently prosecuting

an action under section 6973 of this title or under

section 106 of the Comprehensive Environmental

Response, Compensation and Liability Act of

1980 [42 U.S.C.A. $ 9606], [FN]

(ii) is actually engaging in a removal action

under section 104 of the Comprehensive Envi-

ronmental Response, Compensation and Liability

Act of 1980 [42 U.S.C.A. $ 9604);

(411) has incurred costs to initiate a Remedial

Investigation and Feasibility Study under section

104 of the Comprehensive Environmental Re-

sponse, Compensation and Liability Act of 1980

[42 U.S.C.A. $ 9604] and is diligently proceeding

with a remedia! ection under that Act [42

U.S.C_A. $ 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 [FN2| [42 U.S.C.A. $ 9606] or

section 6973 of this title pursuant to which a

App. 71

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) of this

section 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

(aX 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 —

(D)

(i) has commenced and is diligently prosecuting

an action under subsection (a)(1)(B) of this

section;

(ii) is actually engaging in a removal action

under section 104 of the Comprehensive

Environmental Response, Compensation and

Liability Act of 1980 [42 U.S.C.A. $ 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 U.S.C.A. $9604] and is diligently

proceeding with a remedial action under that Act

[42 U.S.C.A. § 9601 et seq.).

No action may be commenced under subsection

(aX 1\(B) of this section by any person (other than a

App. 72

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) of this

section in a court of the United States, any person

may intervene as a matter of right when the appli-

cant 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 Admin-

istrator or the State shows that the avplicant’s

interest is adequately represented by existing parties.

(F) Whenever any action is’ brought under

subsection (a)(1)(B) of this section 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.

(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 subchapter III of this chapter. Notice

under this subsection shall be given in such manner

as the Administrator shall prescribe by regulation.

Any action respecting a violation under this chapter

App. 73

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 6976 of

this title, 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 Adminis-

trator or a State agency).

(zg) 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

App. 74

(a)(1)(B) of this section 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 car-

riage by common carrier by rail and such transporter

has exercised due care in the past or present

handling, storage, treatment, transportation and dis-

posal of such waste.

App. 75

Crandall v. Denver

Case No. 05-cv-00242-MSK-MEH

TRIAL EXHIBIT

53

Barrilleaux, Janell —- DIA

From: West, Turner — DIA

Sent: Thursday, January 15, 2004 3:11 PM

To: ‘bob.sturez@ual.com’; ‘tom.lisi@ual.com’;

‘russ.richardson@ual.com’;

‘Dallas.Belt@ual.com’

Ce: Braunagal, Vicki — DIA; Barrilleaux, Janell -

DIA; Dykstra, Arlene V. - DIA; West, Turner

—~DIA

Subject: UAL Gate Deicing Program

Based on our meeting Wednesday 1/14/04, the Airport

Environmental and Engineering Groups will do all

possible to facilitate UAL gate deicing. As I indicated

in our meeting, the UAL Legal Department and Air-

port Legal Department must resolve issues concern-

ing employee claims/lawsuits prior to proceeding with

a test or permanent gate deice program.

Please advise if we can be of assistance.

Note: Airport Legal Contact: Arlene Dykstra, tele-

phone 303-342-2542.

App. 76

Crandall v. Denver

Case No. 05-cv-00242-MSK-MEH

TRIAL EXHIBIT

62

[LOGO]

City & County of Denver

| LOGO)

DENVER

INTERNATIONAL

AIRPORT

Department of Aviation

Airport Office Building

8500 Pena Boulevard

Denver, Colorado 80249

303.342.2200

www.FlyDenver.com

February 25, 2005

Mr. Jim Kyte

United Airlines

8900 Pena Boulevard

Denver, CO 80249-6363

Subject: Full Gate Deicing

Denver International Airport

Dear Mr. Kyte:

On October 14, 2002, DIA provided Mr. Ken Bostock

of United Air Lines (UAL) with approval to conduct

full aircraft deicing of certain aircraft with inoperable

APU’s at concourse gates. This approval was granted

with specific notification and clean-up requirements.

App V4

However, in light of the recent filing of the RCRA

lawsuit in the United States District Court against

the City and County of Denver (Denver International

Airport), full aircraft deicing of any aircraft at a

concourse gate will not be allowed as of March 11]

2005. UAL is to make any necessary arrangements to

allow for all inoperable APU aircraft to be deiced at

the dedicated deicing pad:

sincerely,

/s/ ‘Turner West

Turner West

Co-Manager of Aviation

cc: Mark Lovin, DIA Operation

Janell Barrilleaux, DIA Environmental Service

Nick Pijoan, Assistant City Attorney

<<

Ypp i

Crandall vo. Denver

(Clase No. 05-cv-00242-MSK-MEH]

TRIAL EXHIBIT

70

Doron, Judith

Krom: Rocek, Hanna DIA

Sent: Tuesday. August 0%. 2005 10:04 AM

‘To: Smith, Donald DITA

Ce: Barnilleaux, Janell —~ DIA

Subject: MW: GRV issuc/UAT

Don: How much funding do we have |

;

pond atter the apron and dramace

rom: Barrniileaux, Janell — DIA

Sent: Monday, August OL, 2005 5:01 PM

To: West, Turner DIA

Ce: Koce]} liann DIA: Barnrilleaus lanetl

DIA

Subject: GRV issue/UAI

Tburnet.

\ | mentioned thi PPRQOOT Tid}, received an odd (91

mal! from Inland Pechnolomi (re yale contractor) on

Kriday. The me ager poke of an email from Wash

mnvlon (Group rPequeé Lin peciication Orn a ‘ycol

App. 79

recovery vehicle (GRV). The email apparently said

that Washington was making this request on behalf

of the City (on contract with the City).

1 asked Mark Lovin if he knew anything about this

and he does not. I have a call into Inland requesting

the email or any information they can give me on

requestor.

Pursuant to your request, | am putting a copy of the

most recent letter to UAL stating that full aircraft

deicing will not be allowed due to the litigation, etc.

Hana, I am sending one to you as well FYI.

With respect to your other request on UAL issues in

general, the main issues I can think of at this time

are as follows:

1. I imagine UAL would like nothing better to

be able to full aircraft deice on Concourse B.

In hght of the litigation that is scheduled for

court in April 2007, the attorneys would

most likely have a problem with allowing

this to happen.

2. UAL wants the airport to pursue a single

provider for deicing services at DIA.

3. The UAL hangar project is moving forward

and the last I heard is that they really want

a pond. Don Smith’s project includes (Phase

Il) a pond for UAL. UAL’s own people and

contractors have said that a pond is not

warranted; however, UAL stands firm. This

might be a negotiating point but Don Smith

App. 80

is the man most familiar with the current

status.

Let me know if you need anything else from me.