Chemical Weapons Working Group, Inc. v. United States Department of Defense

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 18 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk

CHEMICAL WEAPONS WORKING
GROUP, INC.; SIERRA CLUB;
VIETNAM VETERANS OF
AMERICA FOUNDATION,

Plaintiffs - Appellants,
No. 00-4110
v. (D.C. No. 2:96-CV-425-C)
(D. Utah)
UNITED STATES DEPARTMENT
OF DEFENSE; UNITED STATES
DEPARTMENT OF THE ARMY;
EG&G DEFENSE MATERIALS,
INC.,

Defendants - Appellees.

ORDER AND JUDGMENT *

Before HENRY , McWILLIAMS , and LUCERO , Circuit Judges.

The appellants are three non-profit public interest groups. The appellees

are two federal agencies and a corporation retained by the Department of Defense

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
to operate a chemical agent disposal facility. The appellants brought suit under

the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972, and

other environmental statutes in federal district court, seeking legal and equitable

relief based on alleged violations at the facility. After a bench trial, the district

court dismissed the action. We exercise jurisdiction under 28 U.S.C. § 1291 and,

for the reasons described below, affirm.

I. BACKGROUND

The appellees jointly operate the Tooele Chemical Agent Disposal Facility

(TOCDF) in Tooele, Utah. TOCDF destroys dangerous chemical agents, using a

variety of monitoring and alarm systems to prevent those agents from migrating to

unsafe areas within the facility and from escaping into the atmosphere in

dangerous concentrations. In denying preliminary injunctive relief, we described

in some detail the technical and historical facts relevant to this case. See

Chemical Weapons Working Group, Inc. v. United States Department of the Army,

111 F.3d 1485 (10th Cir. 1997), aff’g 935 F. Supp. 1206 (D. Utah 1996); see also

Sierra Club v. Utah Solid and Hazardous Waste Control Bd., 964 P.2d 335 (Utah

Ct. App. 1998). We therefore need not repeat those facts here.

In their initial complaint and three amended complaints, the appellants

alleged that the operations at TOCDF violated various environmental statutes.

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The appellants alleged that violations occurred from 1996 to 1999 and asserted

generally that environmental harm would continue in the future. After a bench

trial that included extensive expert testimony (most of which was offered by the

appellees), the district court issued a judgment that included fifteen pages of

findings of fact along with conclusions of law. The district court concluded that

“the evidence at trial established that no agent-related injuries have been

sustained and no agent has been released into the environment outside TOCDF.”

Aplts’ App. at A-378 (Dist. Ct. Order, filed Apr. 14, 2000). The appellants assert

that the district court erred in: (A) dismissing claims under 42 U.S.C. §

6972(a)(1)(A) as “wholly past,” (B) dismissing claims under 42 U.S.C. §

6972(a)(1)(B) as not posing an imminent or significant danger, (C) making

inadequate findings under Fed. R. Civ. P. 52, (D) failing to consider certain

“admissions” by appellees, and (E) failing to draw adverse inferences from the

appellees’ failure to submit certain evidence during trial. 1

1
We note with disappointment that–of the five issues asserted on
appeal–the appellants’ brief provided a standard of review only for the fourth of
those issues. See Fed R. App. P. 28(a)(9)(B).
We also feel compelled to point out that the appellants cited at least one
unpublished opinion in their brief. See Aplts’ Br. at 43 (citing Jordan F. Miller
Corp. v. Mid-Continent Aircraft Service Inc., 1998 WL 68879 (10th Cir. Feb. 20,
1998)). As our rules specify, citation to unpublished cases is disfavored. See
10th Cir. R. 36.3(B) (specifying two circumstances under which unpublished
opinions may be cited, neither of which apply here). Having chosen to violate
that rule, the appellants then failed to attach a copy of the unpublished opinion to
(continued...)

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 II. ANALYSIS

On appeal from a bench trial, we review de novo the district court’s

conclusions of law. Dang v. UNUM Life Ins. Co. of Am., 175 F.3d 1186, 1189

(10th Cir. 1999). But unsurprisingly, “[f]indings of fact, whether based on oral or

documentary evidence, shall not be set aside unless clearly erroneous, and due

regard shall be given to the opportunity of the trial court to judge of the

credibility of the witnesses.” Fed. R. Civ. P. 52(a). “[R]eview under the ‘clearly

erroneous’ standard is significantly deferential.” Concrete Pipe & Prods. of Cal.

v. Constr. Laborers Pension Trust, 508 U.S. 602, 623 (1993).

A. “Wholly Past” Violations

The appellants assert that the district court erroneously dismissed four of

their claims for failing to meet the standards set forth in RCRA, which authorizes

citizen suits against “any person (including (a) the United States, and (b) any

other governmental instrumentality or agency . . .) who is alleged to be in

violation of any permit, standard, regulation, condition, requirement, prohibition,

1
(...continued)
the document in which it was cited, in violation of 10th Cir. R. 36.3(C).

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or order which has become effective pursuant to this chapter.” 42 U.S.C. §

6972(a)(1)(A).

The wording of this and other environmental statutes–specifically, the

phrase “is alleged to be in violation”–creates some uncertainty as to whether the

violation must be ongoing at the time of the allegation. In Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987), the

Supreme Court addressed this issue in the context of the Clean Water Act, 33

U.S.C. § 1365(a). 484 U.S. at 56. There, the Supreme Court interpreted “alleged

to be in violation” to require that appellants allege a state of “continuous or

intermittent violation.” Id. at 57. “Wholly past violations” are not covered by the

phrase, and citizen suits for wholly past violations are therefore not authorized by

the statute. Id. at 64. The Court noted that identical language was used in RCRA.

Id. at 57.

The district court observed that the Tenth Circuit has not yet addressed the

question of whether the “wholly past” doctrine applies to RCRA; but it pointed

out that every other circuit to have addressed the issue (and every district court in

the circuits that have not addressed the issue) has held that Gwaltney applies to

RCRA. Aplts’ App. at A-394 to A-395; id. at A-395 n.13. The appellants here,

in fact, do not dispute Gwaltney’s applicability to their RCRA claims. We

therefore need not address that issue, and we assume that the legal standard

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employed by the district court now constitutes the law of the case. See, e.g.,

Coca-Cola Bottling Co. of Ogden v. Coca-Cola Co., 4 F.3d 930, 933 n.3 (10th

Cir. 1993).

The appellants argue instead that the claims rejected by the district court

were not wholly past violations. They claim that the violations could not have

been wholly past because none of them had yet occurred as of the filing date of an

earlier version of their complaint. See Aplts’ Br. at 31-35. That is, in their

second amended complaint, the appellant’s alleged in general terms that

violations were likely to occur in the future. The appellants then waited until–as

is all but inevitable in an imperfect world, and under the overlapping safety

systems in place at TOCDF–an alarm went off, at which point they filed their

third amended complaint. They now attempt to insulate themselves from

Gwaltney by noting that their second amended complaint was filed on a date

before the violation, and they justify their lack of specificity therein by noting

that they are not “psychic” and thus could not predict the exact date of the

violation. Id. at 31.

The appellants misconstrue Gwaltney, where the Court understood that a

plaintiff’s case might be frustrated by a “suddenly repentant defendant,” 484 U.S.

at 67 n.6, one who predictably begins to comply with the law only after the onset

of the litigation. Here, by contrast, the appellants argue that their predictions of

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future violations in one iteration of their complaint were borne out years later and

were then included in a later iteration of their complaint. This, the appellants

seem to suggest, prevents the specific violation from ever being deemed “wholly

past,” because it was not “past” when they predicted it in their earlier complaint.

This is an inventive argument, but it is ultimately unpersuasive. The

district court was simply correct in determining that the alleged violations are

neither continuous nor intermittent violations. All of the appellants’ specific

claims involved discrete past incidents of alleged misconduct–incidents that were,

we note, followed not only by efforts to assess whether any damage was done, but

also by improvements in the facility’s procedures to prevent even those

(thankfully) harmless violations from occurring again. These violations,

therefore, are “wholly past” in the sense that the Gwaltney court used the term:

violations that have ceased, not because of the onset of litigation but because the

defendants had already corrected what they were doing. 2

2
The appellants also reassert a separate claim that the appellees
violated relevant permit requirements by not including the private contractor
EG&G on the original permit. Appellants are correct that Gwaltney does not
apply to this claim, because the violation was ongoing when the original
complaint was filed (and the original complaint specifically alleged this
violation). In a separate proceeding, the district court dismissed this claim on the
grounds of collateral estoppel. Chemical Weapons Working Group, Inc. v. U.S.
Dept. of the Army, 990 F. Supp. 1316, 1320 (D. Utah 1997). Subsequently, the
Utah Court of Appeals held that–although the Utah Solid and Hazardous Waste
Control Board erred in concluding that EG&G did not need a permit–the Board
(continued...)

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B. Imminent or Significant Danger

The Act also authorizes citizen suits “against any person, including the

United States . . . who has contributed . . . to the past or present handling, storage,

treatment, transportation, or disposal of any solid or hazardous waste which may

present an imminent and substantial endangerment to health or the environment.”

42 U.S.C. § 6972(a)(1)(B). The appellants assert that the district court erred in

requiring them to prove that the appellees’ actions “present an imminent and

substantial endangerment to health or the environment” because this phrase

in RCRA is prefaced by the word “may.” According to the appellants, the word

“may” in this sentence allows for allegations of potential or future harm, such that

a showing of actual harm is not required. See Aplts’ Br. at 19-21; Dague v. City

of Burlington, 935 F.2d 1343, 1355 (2d Cir. 1991) (stating that “may” is

“expansive language”).

That the district court omitted the word “may” in its order does not,

however, demonstrate that it applied a test requiring actual current harm, as the

2
(...continued)
was not unreasonable in declining to punish EG&G for the violation. See Sierra
Club, 964 P.2d at 346. Therefore, the appellants are estopped from relitigating
the issue in search of a different remedy. See Harline v. Barker, 912 P.2d 433,
442 (Utah 1996) (“Issue preclusion prevents the relitigation of issues that have
once been adjudicated even though the claims for relief in the separate actions
may be different.”)

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appellants claim. Rather, the district court’s language suggests that it was

thinking not only about harm that had occurred, but about the possibility that

harm would occur in the future. In its discussion of the § 6972(a)(1)(B) claims,

for example, the district court discussed safety measures implemented “to prevent

similar incidents from occurring.” Aplts’ App. at A-396.

Moreover, although such a reading of the statute implies future orientation,

that orientation cannot be very far into the future. “Imminent” harm by definition

will occur almost immediately if action is not taken to prevent it. See Meghrig v.

KFC Western, Inc., 516 U.S. 479, 485 (1996). A vague possibility of future harm

cannot satisfy the statute, which applies to dangers that are both “imminent and

substantial.” 42 U.S.C. § 6972(a)(1)(B). For example, the appellants assert in

their third amended complaint that “it is expected that such incidents will

continue to occur,” Aplts’ App. at A-361, an open-ended allegation that simply

does not satisfy the standards in RCRA. Finally, although the appellants cite

caselaw from other circuits, they do not cite the more recent Meghrig decision,

where the Supreme Court held that “[a]n endangerment can only be imminent if it

threaten[s] to occur immediately[, which] implies that there must be a threat

which is present now, although the impact of the threat may not be felt until

later.” Id. at 485-86 (quotations omitted).

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 The appellants’ argument, if adopted, would threaten to convert RCRA into

a strict liability statute. However, Congress expressly limited citizen suits to

cases of “imminent and substantial endangerment to health or the environment.”

42 U.S.C. § 6972(a)(1)(B). We agree with the district court that the appellants

did not show imminent danger and that their claims therefore lacked merit.

C. Adequacy of Findings

The appellants assert that the district court failed to rule on and/or did not

make adequate findings with respect to various claims, in violation of Fed. R.

Civ. P. 52(a). That rule does not, however, require “elaborate and detailed

findings and conclusions.” Woods Constr. Co. v. Pool Constr. Co., 314 F.2d 405,

406 (10th Cir. 1963). In a case as complex as this one, made more difficult by the

length of the various complaints, the district court should not be required to

respond to every specific factual allegation made by the appellants. 3 Some issues

are sufficiently disposed of in general terms. See, e.g., Anthony v. Texaco, Inc.,

803 F.2d 593, 600 (10th Cir. 1986) (approving lack of specific findings were “the

3
We do not, of course, intend to condemn the appropriate use of the
procedure to amend complaints. See Fed. R. Civ. P. 15(a) (leave to amend “shall
be freely given when justice so requires”). Nor do we suggest that lengthy
complaints are never necessary. We do, however, find the various iterations of
the appellants’ complaint here to be needlessly confusing and
overlapping–especially given the appellants’ attempt to rely on different versions
of their complaint to support their legal argument.

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record on appeal supports the court’s order and indicates the court heard evidence

on each element”). We hold that the findings and conclusions of the district court

were “sufficiently detailed and exact to permit an intelligent review.” Med. Dev.

Co. v. Ind. Molding Corp., 479 F.2d 345, 349 (10th Cir. 1973).

D. Failure to Consider Appellees’ “Admissions”

The appellants further claim that the district court failed to consider certain

“admissions” by the appellees. We note initially that some of the supposed

“admissions” involve possible harm to workers at the facility. The appellants

lack standing to make these claims because no TOCDF worker is a named

plaintiff and appellants have demonstrated no direct injury to themselves. See

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), 528 U.S. 167, 181–82

(2000). Other “admissions” involve instances when trace amounts of agent

migrated into different areas of TOCDF, the implications of which are certainly

open to plausible alternative interpretations. The appellants point to nothing in

the record that would indicate that the district court’s interpretation of these

“admissions” was implausible–especially given that the migrations were within

the plant and thus do not unequivocally evidence a danger to the public.

Accordingly, the district court did not clearly err in concluding that these

“admissions” did not involve substantial harm to health or the environment.

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E. Failure to Draw Adverse Inferences

Finally, the appellants argue that the district court erred in not drawing an

adverse inference from the appellees’ failure to offer into evidence at trial the

results of laboratory tests of certain air monitoring devices in the facility. The

appellants assert that the report was listed as an exhibit in the pre-trial order but

was “not offered at trial after Plaintiffs’ counsel . . . elicited admissions from

Defendants’ employees that . . . the chain of custody was intentionally not

maintained when it could have been.” Aplts’ Br. at 42. The appellants argue that

the district court “should have drawn an adverse inference to the effect that . . .

the results would have confirmed that a [violation occurred].” Id. at 43.

The appellants’ cited authority on this point is inapposite. They first cite

Ready Mixed Concrete v. National Labor Relations Board, 81 F.3d 1546 (10th

Cir. 1996), where we simply approved of the NLRB’s use of the adverse inference

rule and noted in passing that the rule had also been applied in other civil

contexts. Id. at 1552. Moreover, in that opinion we cited with approval a case

from a sister circuit for the proposition that the “decision whether to draw the

adverse inference lies with the factfinder.” Ready Mixed Concrete, 81 F.3d at

1552 (citing United Auto Workers Int’l Union v. National Labor Relations Board,

459 F.2d 1329, 1339 (D.C. Cir. 1972)). The factfinder here was, of course, the

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court itself, which makes the appellants’ citation to another of our cases still more

confusing. In Gilbert v. Cosco, Inc., 989 F.2d 399 (10th Cir. 1993), we reviewed

a trial court’s decision not to instruct a jury on the adverse inference rule. We

noted that the adverse inference rule merely permits a jury to draw adverse

inferences, id. at 405, and we approved the judge’s decision not to accept the

plaintiffs’ proposed jury instruction on adverse inferences. Id. at 406. Most

importantly, we stated that the adverse inference rule should only be invoked

when, among other requirements, “the evidence is available to the suppressing

party, but not to the party seeking production [and] it appears that there has been

actual suppression or withholding of evidence.” Id. 4

We thus find no error in the district court’s determination that the

appellees’ failure to present certain evidence did not mandate a verdict for the

appellants. The appellants possessed and could have offered into evidence the

appellee’s documentation of that analysis. Their decision not to do so cannot

constitute error on the part of the district court.

4
Even the unpublished case to which the appellants refer, Jordan F.
Miller Corp. v. Mid-Continent Aircraft Service Inc., 1998 WL 68879 (10th Cir.
Feb. 20, 1998), notes that “an adverse inference instruction would not have been
appropriate [where] there was no evidence of bad faith.” Id. at **7.

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 ***

We are cognizant of the serious nature of the appellants’ allegations in this

case. It is understandable that people living near TOCDF would be worried about

the possibility of poisonous gases escaping into their immediate environment.

Therefore, it is entirely appropriate to scrutinize carefully the activities at TOCDF

and similar facilities , and to deal with violations properly. The issues that the

appellants raise on this appeal, and the laws and precedents under which we must

evaluate those issues, however, clearly require us to affirm the district court’s

ruling. 5

III. CONCLUSION

For the reasons discussed above, we AFFIRM the district court’s judgment

for the appellees and its dismissal of the cause of action.

ENTERED FOR THE COURT

Robert Henry
Circuit Judge

5
We note also that a complaint relying on a more appropriate
environmental statute might have better served the appellants’ apparent purposes.
“Unlike the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), RCRA is not principally designed to effectuate
the cleanup of toxic waste sites or to compensate those who have attended to the
remediation of environmental hazards.” Meghrig, 516 U.S. at 483 (citation
omitted).

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