Comite Pro Rescate De La Salud v. Puerto Rico Aqueduct and Sewer Authority

Citation888 F.2d 180
Decision Date08 June 1989
Docket NumberNo. 89-1091,89-1091
Parties, 58 USLW 2267, 20 Envtl. L. Rep. 20,211 COMITE PRO RESCATE DE LA SALUD, etc., et al., Plaintiffs, Appellants, v. PUERTO RICO AQUEDUCT AND SEWER AUTHORITY, etc., et al., Defendants, Appellees. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Anthony Z. Roisman with whom Ann C. Yahner, Cohen, Milstein & Hausfeld, Washington, D.C., Michael E. Withey, Leonard W. Schroeter, Schroeter, Goldmark & Bender, Seattle, Wash., and Pedro J. Varela, Hato Rey, P.R., were on brief, for appellants.

Donald A. Carr, Acting Asst. Atty. Gen., Randolph L. Hill, Office of General Counsel, Environmental Protection Agency, Susan B. Squires and Anne S. Almy, Land & Natural Resources Div., Dept. of Justice, Washington, D.C., on brief, for U.S., amicus curiae.

Robert E. Zahler with whom Michael L. Stern, Margaret B. Bowman, Shaw, Pittman, Potts & Trowbridge, Washington, D.C., Francisco G. Bruno, Sweeting, Gonzalez & Cestero, Hato Rey, P.R., Geoffrey Stewart, Hale & Dorr, Washington, D.C., Pedro A. Morell, Brown, Newsom & Cordova, Hato Rey, P.R., Dwight C. Seeley, Edward J. Burns, John L. Greenthal, Nixon, Hargrave, Devans & Doyle, Albany, N.Y., Jose A. Cestero, Hato Rey, P.R., Andreu Garcia Law Offices, Zaidee Acevedo, Steven C. Lausell, Jimenez, Graffam & Lausell, San Juan, P.R., Enrique Alcaraz Micheli, Ferrer & Alcaraz, Laurie S. Gill, Palmer & Dodge, Boston, Mass., Encarnita Catalan Marchan, Santiago Mari Roca and Ribas, Biaggi & Mari, Irwin H. Flashman, Zadette Bajandas and O'Neill & Borges, Hato Rey, P.R., were on brief, for appellees The Perkin-Elmer Corp. and Perkin Elmer Caribbean Corp., Storage Technology Corp. and Storage Technology de Puerto Rico, Puerto Rico Indus. Development Co., Bristol Myers Co., Bristol Caribbean, Inc. and Bristol Laboratories Corp., Mayaguez Air Conditioning and Syncor Indus. Corp., Puerto Rico Aqueduct and Sewer Authority and Sea Electronics Aids, Inc., Westinghouse De Puerto Rico, Inc. and Westinghouse Electric Corp.

John C. Chambers, Jr., Richard A. Flye, Susan Kunst, Boushell, McKenna, Conner & Cuneo, Washington, D.C., and Bruce Adler, on brief for Union Carbide Corp., amicus curiae.

Gerard Lederer, General Counsel, on brief for U.S. Conference of Mayors, amicus curiae.

Before BREYER and SELYA, Circuit Judges, and CAFFREY, * Senior District Judge.

BREYER, Circuit Judge.

This appeal concerns the meaning of an exception in the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Sec. 6901 et seq., a statute that regulates the disposal of solid wastes. The Act, among other things, permits both the federal government and private citizens to ask a court for injunctive relief against any person connected with the handling, storage, treatment, or disposal of

any solid waste or hazardous waste [which] may present an imminent and substantial endangerment to health or the environment.

42 U.S.C. Sec. 6973(a) (authorizing administrator to bring suit); see 42 U.S.C. Sec. 6972(a)(1)(B) (authorizing citizens' suits to enforce "imminent and substantial endangerment" provision) (see Statutory Appendix). But, the Act specifies that these wastes do "not include solid or dissolved material in domestic sewage." 42 U.S.C. Sec. 6903(27) (emphasis added). Do the words "in domestic sewage" refer to the kinds of sewage that ordinarily emanate from houses--sewage that EPA calls "untreated sanitary wastes?" See 40 C.F.R. Sec. 261.4(a)(1)(ii). If so, the exception may include factory wastes that mix with this kind of "sanitary" sewage, say, sewage emanating from bathrooms at the workplace, and the exception is then quite broad. Or do the words "in domestic sewage" refer, as well, to the point of origin of the sewage? Do they mean that the wastes must, in fact, come from houses? If so, the exception is narrow, for it does not embrace solid industrial material mixed with sewage coming from workplace bathrooms.

We conclude that the narrower reading of the exception--the reading that refers to

point of origin--is the correct reading. Consequently, the plaintiffs in this case may proceed in their efforts to prove that RCRA entitles them to injunctive relief. See 42 U.S.C. Sec. 6972.

I. Background

The defendants in this case own factories within (or are otherwise connected with) a large industrial park near Mayaguez, Puerto Rico (the "Park"). The Park contains 33 industrial plants. Sewer lines connect the plants to a major, privately owned sewer line; that major private line, in turn, connects with a publicly owned sewer line that runs outside the Park to a publicly owned sewage treatment plant (called, in environmental jargon, a POTW, or publicly owned treatment work). At the time the plaintiffs brought this suit, both the major, private line and the publicly owned line contained only wastes from the industrial park; they did not connect with lines running from any private houses. See Comite pro Rescate de la Salud v. PRASA, 693 F.Supp. 1324, 1330 n. 11 (D.P.R.1988). There is also a second, different sewer system within the Park, which collects rainwater and dumps it into a nearby river; we shall call this second system the "rainwater system."

The plaintiffs (a group of seven individuals and a community organization called, in English, the Committee to Rescue Health) brought this lawsuit claiming that the defendants, in disposing of their industrial wastes, violated several different environmental laws. They said, for one thing, that quite a few of the defendants violated the Clean Water Act by dumping industrial wastes into the rainwater system, thereby discharging those wastes into the river without necessary permits. 33 U.S.C. Sec. 1311. They said, for another thing, that various defendants violated the Clean Air Act by discharging certain noxious fumes, through chimneys and flues, into the outer air. 42 U.S.C. Secs. 7411, 7412, 7475. They added that various defendants violated the basic regulatory provisions of RCRA by discharging certain solid, hazardous wastes through their regular sewer system without keeping proper records or obtaining necessary permits. 42 U.S.C. Secs. 6921-6934. Finally, and particularly important in terms of this appeal, they claimed that the regular sewer lines were leaking, emitting fumes and other substances that posed an "imminent and substantial endangerment" to health and the environment, to stop which they sought an injunction under RCRA's "citizen suit" provision, Sec. 7002(a)(1)(B), 42 U.S.C. Sec. 6972(a)(1)(B).

The district court dismissed all the RCRA claims for a legal reason. In its view, the conceded fact that all the solid industrial wastes in the regular sewer system (including the sources of noxious fumes) mixed with untreated sanitary wastes, such as waste from toilets at the workplace, brought the defendants within the scope of RCRA's exception for "solid or dissolved material in domestic sewage." 42 U.S.C. Sec. 6903(27). This dismissal (along with the court's dismissal of certain related pendent state tort law claims) affected 15 of 23 defendants, and it amounted to a dismissal of all claims against 6 of those 15. Five of those 6 defendants, supported by plaintiffs, asked the district court to enter a final judgment in their favor pursuant to Fed.R.Civ.P. 54(b) (permitting court to enter a final judgment on "one or more but fewer than all the claims" in an action involving multiple claims). The court did so. The plaintiffs now appeal, challenging the lawfulness of the district court's dismissal of their RCRA injunctive action. (They have dropped their RCRA "regulatory" claims.)

II. Jurisdiction

At oral argument we asked the parties to submit briefs to help us determine whether we have jurisdiction to hear this appeal--specifically, whether Fed.R.Civ.P. 54(b)'s preconditions for entry of a "final judgment" on fewer than all claims in an action were satisfied. See Consolidated Rail Corp. v. Fore River Ry. Co., 861 F.2d 322, 325 n. 2 (1st Cir.1988) (appellate court should consider Rule 54(b) jurisdiction sua Rule 54(b) reiterates the ordinary principle that a judicial decision does not "terminate" an action--it is not normally "final" for purposes of appeal--if it "adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties." Fed.R.Civ.P. 54(b). But, the Rule contains an important exception:

sponte ); Spiegel v. Trustees of Tufts College, 843 F.2d 38, 42-43 (1st Cir.1988) (noting, in light of policy "against the scattershot disposition of litigation ... that entry of judgment under the rule should not be ... routine," and explaining preconditions). After considering the briefs and reading the record, we conclude that Rule 54(b) permits the appeal.

When more than one claim for relief is presented in an action ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties[, but] only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.

Fed.R.Civ.P. 54(b). The exception helps avoid hardship, particularly in complex, multiparty litigation; it permits a winning party to force a losing party to appeal quickly in respect to certain claims or litigants, thereby disentangling the winning party from lengthy, time consuming litigation. See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 432, 76 S.Ct. 895, 897, 100 L.Ed. 1297 (1956); Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511-12, 70 S.Ct. 322, 324, 94 L.Ed. 299 (1950). Yet, because it is an exception that threatens potentially unnecessary, piecemeal appeals, the courts must administer it with care, reserving it for instances in which the relevant hardships, or administrative needs, are clear. See Consolidated Rail, 861 F.2d at 325; Spiegel, 843 F.2d at 42; Cullen v. Margiotta, 811 F.2d 698, 710 (2d Cir.), cert....

To continue reading

Request your trial
56 cases
  • Connecticut Coastal Fishermen's Ass'n v. Remington Arms Co., Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 29, 1993
    ...... The DEP did not then have authority to issue RCRA permits. . ... Comite Pro Rescate de la Salud v. Puerto Rico Aqueduct nd Sewer Auth., 888 F.2d 180, 187 (1st Cir.1989), cert. ......
  • Acme Printing Ink Co. v. Menard, Inc.
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • December 5, 1994
    ...except that § 6973 permits the EPA to seek abatement of imminent and substantial hazards. See Comite Pro Rescate De La Salud v. Sewer Authority, 888 F.2d 180, 187 (1st Cir.1989) (Sections 6973 and 6972(a)(1)(B) "nearly identical"). 4 Acme further alleges that Menard is a responsible person ......
  • Delta Traffic Service, Inc. v. Transtop, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • November 7, 1989
    ...an executive department's construction of a statutory scheme it is entrusted to administer"); Comite Pro Rescate De La Salud v. Puerto Rico Aqueduct & Sewer Auth., 888 F.2d 180, 185 (1st Cir.1989) (use of highly general words in statute typically reflects Congressional intention to give age......
  • U.S v. Union Corp.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • January 21, 2003
    ...case of Section 7003, the statutory elements are established. 40 C.F.R. § 261.1(b)(2); see Comite Pro Rescate De La Salud v. Puerto Rico Aqueduct and Sewer Auth., 888 F.2d 180, 186-87 (1st Cir.1989) ("[T]he definitional regulation applies `only to wastes that also are hazardous for purposes......
  • Request a trial to view additional results
4 books & journal articles
  • The CWA in relation to other laws
    • United States
    • Introduction to environmental law: cases and materials on water pollution control - 2d Edition
    • July 23, 2017
    ...Chemical Waste Management, Inc. v. EPA , 976 F.2d at 2 and Comite Pro Rescate de la Salud v. Puerto Rico Aqueduct & Sewer Auth ., 888 F.2d 180, 20 ELR 20211 (1st Cir. 1989), concern the potential overlap between the CWA and RCRA in diferent circumstances and the efectiveness of Congress’ at......
  • Table of authorities
    • United States
    • Introduction to environmental law: cases and materials on water pollution control - 2d Edition
    • July 23, 2017
    ...155 Comite Pro Rescate de la Salud v. Puerto Rico Aqueduct & Sewer Auth., 888 F.2d 180, 20 ELR 20211 (1st Cir. 1989) .................................................................... 1089 Committee to Save Mokelumne River. v. East Bay Mun. Util. Dist., 13 F.3d 305 (9th Cir. 1993) .............
  • RCRA's Universe: Solid and Hazardous Wastes
    • United States
    • RCRA permitting deskbook
    • May 10, 2011
    ...the domestic sewage statutory exclusion. See, e.g. , Comite Pro Rescate de la Salud v. Puerto Rico Aqueduct & Sewer Authority, 888 F.2d 180, 20 ELR 20211 (1st Cir. 1989), cert. denied , 494 U.S. 1029 (1990) (domestic sewage exclusion under statute referred to sewage coming from residences a......
  • Rethinking recycling.
    • United States
    • Environmental Law Vol. 38 No. 4, September 2008
    • September 22, 2008
    ...v. Remington Arms Co., 989 F.2d 1305, 1316 (2d Cir. 1993); Comite Pro Rescate de la Salud v. Puerto Rico Aqueduct and Sewer Authority, 888 F.2d 180, 187 (1st Cir. (74) Hazardous Waste Management System: Identification and Listing of Hazardous Waste, 45 Fed. Reg. 33,084, 33,119 (May 19, 1980......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT