Ecology Law Quarterly
Volume 9 | Issue 3
Article 7
March 1981
Using RCRA:s Imminent Hazard Provision in
Hazardous Waste Emergencies
Kathryn Saenz Duke
Follow this and additional works at: http://scholarship.law.berkeley.edu/elq
Recommended Citation
Kathryn Saenz Duke, Using RCRA:s Imminent Hazard Provision in Hazardous Waste Emergencies, 9 Ecology L.Q. (1981).
Available at: http://scholarship.law.berkeley.edu/elq/vol9/iss3/7
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http://dx.doi.org/doi:10.15779/Z388G1H
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Using RCRA's Imminent Hazard
Provision in Hazardous Waste
Emergencies
The growing menace of improper hazardous waste' disposal is receiving increased public attention as Love Canal and similar events
command national media coverage 2 and increasing numbers of hazardCopyright @1981 by ECOLOGY LAW QUARTERLY.
1. "Hazardous waste" is defined in the Resource Conservation and Recovery Act of
1976 (RCRA) as:
solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics, may(A) cause, or significantly contribute to an increase in mortality or an
increase in serious irreversible, or incapaciting irreversible, illness; or
(B) pose a substantial present or potential hazard to human health or the
environment when improperly treated, stored, transported, or disposed of, or
otherwise managed.
42 U.S.C. § 6903(5) (1976). (Although chapter 82 of 42 U.S.C. §§ 6901-9007 (1976) may be
cited as the Solid Waste Disposal Act, id. § 6901 note, this Development will refer to this
chapter as RCRA, after the Resource Conservation and Recovery Act of 1976, Pub. L. No.
94-580, 90 Stat. 2795, which substantially amended the Solid Waste Disposal Act.) Solid
waste is defined in § 1004(27) of RCRA, 42 U.S.C. § 6903(27) (1976), and does not include
material in domestic sewage, irrigation return flows, industrial discharges covered by the
Federal Water Pollution Control Act's point source permits, 33 U.S.C. § 1342 (1976), or
material covered by the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2282 (1976).
The Environmental Protection Agency (EPA) promulgated regulations several years
after the enactment of RCRA that set out three alternative methods by which a solid waste
may be identified as hazardous. 40 C.F.R. § 261.10-.33 (1980). The first method classifies a
waste as hazardous if it is corrosive, ignitable, reactive, or potentially explosive as defined in
the regulations, or if it exhibits "Extraction Procedure" toxicity under prescribed tests. Id.
§ 261.20-.24. The second method is to consult the list developed by EPA. This list divides
hazardous waste into three types: waste from nonspecific sources (e.g., wastewater treatment
sludges from electroplating operations); waste from specific sources (e.g., wastewater treatment sludges from the production of certain pesticides); and discarded commercial chemical
products (e.g., Dow General Weed Killer). Id. § 261.30-.33. Finally, a mixture of solid
waste and one or more of the hazardous wastes identified in the above lists will be considered hazardous. Id. § 261.3(a)(2)(ii). The wastes that the Act excludes from its scope continue to be exempted from coverage. For a more thorough description of kinds of hazardous
waste, see OFFICE OF SOLID WASTE MANAGEMENT PROGRAMS, U.S. ENVIRONMENTAL PROTECTION AGENCY, REPORT TO CONGRESS:
2.
DISPOSAL OF HAZARDOUS WASTES (1974).
The Love Canal disposal site in Niagara Falls, New York has been the most dra-
matic and visible hazardous waste emergency to date. The short history of Love Canal that
follows is drawn from Senate discussion of the Superfund legislation (see note 5 Jafra), including a Senate report that based its discussion on one article of over 100 pages about Love
Canal written by a New York Times Magazine reporter. This history evidences the unfortunate lack of attention, until recently, directed to the serious problems such sites present.
In 1894, a would-be entrepreneur named William Love began digging a canal to connect Lake Ontario with the Niagara River, but the work was never completed. S. REP. No.
848, 96th Cong., 2d Sess. 9 (1980). The site was used as an industrial dumpsite in the 1930's
until Hooker Electrochemical Corporation purchased the site in 1947. 126 CONG. REC.
599
ECOLOGY LAW QUARTERLY
[Vol. 9:599
ous waste dumpsites are being discovered.3 Serious legislative attention to the hazardous waste problem began with the Resource
Conservation and Recovery Act of 1976 (RCRA), 4 and has continued
with the recently enacted "Superfund" legislation. 5 Section 7003 of
RCRA allows the Environmental Protection Agency (EPA) to respond
to imminent hazards. This Development discusses the danger that
must exist before the EPA Administrator may act, the actions authorized by section 7003, and the scope of liability that may be imposed on
hazardous waste producers and handlers under that provision. Section
7003 of RCRA 6 provides that the Administrator,
upon receipt of evidence that the handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste may present an imminent and substantial endangerment to health or the
environment,. . . may bring suit ...
in the appropriate district court
to immediately restrain any person [from] contributing to [these activities]. The Administrator may also.
. .
take any other action
. . .
in-
S 14,969 (daily ed. Nov. 24, 1980) (remarks of Sen. Moynihan). Hooker disposed of more
than 80 deadly chemicals in the canal. Id. at S14,974. In 1953, Hooker sold the site, filled
and covered, for $1.00 to the Niagara County Board of Education. Id. at S 14,969. The city
and private citizens bought parcels of the land from the Board and built an elementary
school and homes on the property. Id.
In the early 1970's, residents began to notice chemical odors, prompting the City of
Niagara Falls to drill monitoring wells and analyze samples. Id. In 1978, the New York
State Department of Health began investigations of the many health problems reported,
including birth defects, miscarriages, epilepsy, and liver abnormalities. S. REP. No. 848,
96th Cong., 2d Sess. 9 (1980). Later that year, the State Health Commissioner declared a
state of emergency and recommended the evacuation of children under two years old and
pregnant women in homes within two streets of the canal site. 126 CONG. REC. S14,969
(daily ed. Nov. 24, 1980) (remarks of Sen. Moynihan). In August 1978, President Carter
declared a state of emergency, and New York Governor Carey announced that the State
would evacuate 236 families. Id. at S14,970. In June 1980, Governor Carey signed a bill
providing $5 million in state appropriations and called for $20 million in federal loans to
relocate families permanently and clean up the site. Id. at S14,970-71.
For a discussion of Love Canal and other hazardous waste disposal sites engendering
public concern, see TIME, Sept. 22, 1980, at 58-69. An ABC News-Harris poll conducted
after the news blitz on Love Canal found that 76% of those surveyed considered toxic chemical dumping "a very serious problem," and 93.6% wanted "federal standards prohibiting
such dumping made much more strict than they are now." Id. at 63.
3. Since it began its search in mid-1979, and as of January 31, 1981, EPA had discovered 8,842 "potential hazardous waste sites." EPA is now uncovering such sites at the rate of
approximately 400 per month. Telephone conversation with Margie Russell, Program Assistant, Office of Hazardous Waste Enforcement, EPA (Feb. 23, 1981).
4. 42 U.S.C. §§ 6901-6987 (1976), as amended by the Solid Waste Disposal Act
Amendments of 1980 (SWDAA 1980), Pub. L. No. 96-482, 94 Stat. 2334.
5. Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(Superfund), Pub. L. No. 96-510, 94 Stat. 2767. For a discussion of Superfund, see Developments, Hazardous Substances in the Environment, 9 ECOLOGY L. Q. 524 (1981).
6. 42 U.S.C. § 6973 (1976), as amended by SWDAA 1980, Pub. L. No. 96-482, § 25, 94
Stat. 2348.
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SUBSTANCES DEVELOPMENTS
HAZARDOUS
8]
cluding, but not limited to, issuing such orders as may be necessary to
7
protect public health and the environment.
EPA has made frequent use of this section. Since it filed its first case in
February 1979,8 the Agency has filed fifty-six cases relying at least in
part on section 7003. 9
7. Id. There is some confusion over the exact wording of the original provision. The
Statutes at Large and the United States Code use the following language: "restrain any
person for contributing to the alleged disposal." 90 Stat. 2826 (1976); 42 U.S.C. § 6973
(1976). The U.S. Code Service, however, uses "restrain any person for [from] contributing,"
noting that "[t]he bracketed word '[from]' is inserted as probably the word intended by Congress." 42 U.S.C.S. § 6973 (1977). Among the decisions concerning § 7003, United States v.
Midwest Solvent Recovery, Inc., 484 F. Supp. 138, 143 (N.D. Ind. 1980), quotes the official
version, while United States v. Solvents Recovery Serv., 496 F. Supp. 1127, 1131 (D. Conn.
1980), and United States v. Ottati and Goss, Inc., No. C80-225-L at 3 (D.N.H., Oct. 20,
1980), simply omit the troublesome preposition: "restrain any person contributing to the
alleged disposal." The Solid Waste Disposal Act Amendments of 1980 (SWDAA 1980),
Pub. L. No. 96-482, 94 Stat. 2334, do not resolve these questions of wording because they
never quote this part of the original § 7003, nor do they set out the full text of the amended
provision.
There is also a "Violations" subsection, added as part of SWDAA 1980, which provides:
Any person who willfully violates, or fails or refuses to comply with, any order of
the Administrator under subsection (a) may, in an action brought in the appropriate United States district court to enforce such order, be fined not more than $5000
for each day in which such violation occurs or such failure to comply continues.
Id. § 25(b), 94 Stat. 2334 (amending 42 U.S.C. § 6973 (1976)). For a general discussion of
RCRA and its imminent hazard provision, see Anderson, The Resource Conservation and
Recovery Act'of 1976. Closing the Gap, 1978 Wis. L. REV. 633; Weiland, Enforcement Under
the Resource Conservation and Recovery Act of 1976, 8 ENVT'L AFF. 641 (1980).
8. United States v. Kin-Buc, Inc., No. 79-514 (D.N.J., filed Feb. 7, 1979).
9. United States v. Energy Sys. Co., No. 81-1006 (W.D. Ark., filed Jan. 28, 1981);
United States v. Ronald S. West, No. C80-1342H (W.D. Wash., filed Dec. 31, 1980); United
States v. Charles Price, No. C80-4104 (D.N.J., filed Dec. 22, 1980); United States v. Fike
Chem., Inc., No. C80-2429 (S.D.W.Va., filed Dec. 5, 1980); United States v. County of Waukesha, No. 80-C-1070 (E.D. Wis., filed Dec. 1, 1980); United States v. Gulf Coast Lead Co.,
No. 80-1127 (M.D. Fla., filed Oct. 9, 1980); United States v. County of Hillsborough, No. 801128 (M.D. Fla., filed Oct. 9, 1980); United States v. New Castle County, No. 80-489 (D.
Del., filed Oct. 8, 1980); United States v. Fischer and Porter Co., No. 80-3900 (E.D. Pa., filed
Oct. 8, 1980); United States v. Diamond Shamrock Corp., No. C80-1853 (N.D. Ohio, filed
Oct. 7, 1980); United States v. Chem. Recovery Sys., Inc., No. C-80-1858 (N.D. Ohio, filed
Oct. 7, 1980); United States v. Robert J. Burns, No. 80-1424 (W.D. Pa., filed Oct. 3, 1980);
United States v. Chemcentral-Detroit Corp., No. 80-7370 (E.D. Mich., filed Oct. 3, 1980);
United States v. Bridgeport Rental and Oil Serv., Inc., No. 80-3267 (D.N.J., filed Oct. 2,
1980); United States v. BASF Wyandotte Corp., No. 80-73699 (E.D. Mich., filed Sept. 30,
1980); United States v. Conservation Chem. Co., No. 80-0883 (W.D. Mich., filed Sept. 29,
1980); United States v. KOR Corp., No. H-80-473 (N.D. Ind., filed Sept. 12, 1980); United
States v. Royal N. Hardage, No. 80-10-31 (W.D. Okla., filed Sept. 8, 1980); United States v.
Reilly Tar and Chem. Corp., No. 4-80-CV-469 (D. Minn., filed Sept. 4, 1980); United States
v. A & F Materials Co., No. 80-4395 (S.D. Ill., filed Sept. 3, 1980); United States v. Stanley
Kessler Co., No. 80-3438 (E.D. Pa., filed Sept. 2, 1980); United States v. Steve Martell, No.
H-80-473 (N.D. Ind., filed Aug. 26, 1980); United States v. Lloyd L. Hodges, No. H-80-472
(N.D. Ind., filed Aug. 25, 1980); United States v. Ken Indus., Inc., No. H80-420 (N.D. Ind.,
filed Aug. 1, 1980); United States v. Automated Indus. Disposal and Salvage Co., No. 2-80139 (E.D. Tenn., filed Aug. 1, 1980); United States v. North Eastern Pharm. and Chem. Co.,
No. 80-5066 (W.D. Mo., filed Aug. 1, 1980); United States v. Petro Processors of La., Inc.,
No. 80358B (M.D. La., filed July 15, 1980); United States v. S. C. Recycling and Disposal,
ECOLOGY LAW QUARTERLY
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Section 7003 is an important part of the federal statutory scheme
regulating hazardous waste. First, this provision allows the Federal
Government to take emergency action where a state cannot or will not
take such action. '0 Although RCRA encourages states to develop their
own hazardous waste disposal programs,"I many states do not have ador statutory authority to deal with hazequate resources, information,
2
emergencies.'
waste
ardous
Second, there is every reason to assume that hazardous waste
emergencies will continue to occur. Although the recently enacted
RCRA regulations' 3 add detailed standards to RCRA's regulatory
Inc., No. 80-1274-6 (D. S.C., filed June 7, 1980); United States v. Fisher-Calo Chem. and
Solvents Corp., No. S80-204 (N.D. Ind., filed June 30, 1980); United States v. CISZAR, No.
80C3385 (N.D. In., filed June 30, 1980); United States v. Am. Ecological Recycle Research
Corp., No. 80-A-811 (D. Colo., filed June 24, 1980); United States v. Acme Ref. Co., No.
80C3213 (N.D. Ill., filed June 20, 1980); United States v. Spectron, Inc., No. HM 80-15-52
(D. Md., filed June 17, 1980); United States v. Waynesboro, No. 80-1017 (M.D. Tenn., filed
May 30, 1980); United States v. Ottati and Goss, Inc., No. C80-225-L (D.N.H., filed May 15,
1980); United States v. Seymour Recycling Corp., No. IP 80-457-C (S.D. Ind., filed May 9,
1980); United States v. Franklin J. Dusek, No. B80-1 10 (S.D. Tex., filed May 5, 1980);
United States v. Union Corp., No. 80-1589 (E.D. Pa., filed Apr. 23, 1980); United States v.
W.P. Grace & Co., No. 80-748-C (D. Mass., filed Apr. 17, 1980); United States v. Robert
Richter, No. 80-135-C (S.D. Iowa, filed March 21, 1980); United States v. Li Pan Landfill,
No. 80-791 (D.N.J., filed March 21, 1980); United States v. 2001, Inc., No. 80-0771 (E.D.
La., filed March 5, 1980); United States v. Vertac Chem. Corp., No. LR-C-80-109 (E.D.
Ark., filed March 4, 1980); United States v. Waste Indus., Inc., No. 80-4-CIV-7 (E.D.N.C.,
filed Jan. 11, 1980); United States v. Hooker Chem. and Plastics Corp., No. 79-989
(W.D.N.Y., filed Dec. 20, 1979); United States v. Hooker Chem. and Plastics Corp., No. 70990 (W.D.N.Y., filed Dec. 20, 1979); United States v. Hooker Chem. and Plastics Corp., No.
79-988 (W.D.N.Y., filed Dec. 20, 1979); United States v. Hooker Chem. and Plastics Corp.,
No. 79-987 (W.D.N.Y., filed Dec. 20, 1979); United States v. Chem-Dyne Corp., No. C-179-703 (S.D. Ohio, filed Dec. 19, 1979); United States v. Occidental Chem. Corp., No. 70989 (E.D. Cal., filed Dec. 18, 1979); United States v. Solvents Recovery Serv. of New Eng.,
Inc., No. H79-704 (D. Conn., filed Dec. 17, 1979); United States v. Midwest Solvent Recovery, Inc., 484 F. Supp. 138 (N.D. Ind., 1980); United States v. Chem. and Minerals Reclamation, Inc., No. C-79-1356 (N.D. Ohio, filed July 10, 1979); United States v. Laskin
Greenhouse and Waste Oil Co., No. C79-75 (N.D. Ohio, filed Apr. 24, 1979); United States
v. Wade Landfill, No. 79-1426 (E.D. Pa., filed Apr. 20, 1979); United States v. Kin-Buc, Inc.,
No. 79-514 (D.N.J., filed Feb. 7, 1979).
10. See Developments, HazardousSubstances in the Environment, 9 ECOLOGY L.Q. 579
(1981), for a discussion of tenth amendment issues presented by federal-state relations
under RCRA generally. Lee concludes that a tenth amendment challenge to RCRA probably would be unsuccessful. Id. Section 7003 presents even less of a constitutional problem
than other RCRA provisions, because the Administrator's actions under this provision are
less likely to intrude on integral state governmental functions than are the ongoing regulatory activities authorized by other RCRA provisions.
11. 42 U.S.C. § 6926 (1976).
12. In a survey of all 50 States, 29 had environmental emergency contingency plans, 15
had contingency funds, 10 had adequate equipment, and 12 had authority for cleanup and
cost recovery.
ARTHUR D. LITTLE, INC., ENVIRONMENTAL EMERGENCY RESPONSE-SUR-
VEY OF STATE RESPONSE CAPABILITIES, A REPORT TO EPA (1978), cited in TOXIC SUBSTANCES STRATEGY COMM., TOXIC CHEMICALS AND PUBLIC PROTECTION:
THE PRESIDENT 88 (1980).
13. 40 C.F.R. §§ 260-265 (1980).
A REPORT TO
1981]
HAZARDOUS SUBSTANCES DEVELOPMENTS
framework and thus will help to control hazardous waste problems
arising in the future,1 4 many disposal sites with waste accumulated
15
before the regulations took effect pose continuing hazards.
Third, the Federal Government's fiscal policies will prevent the
emergency response provisions of the Superfund' 6 from supplanting
RCRA's emergency provision. The high costs of cleanup and monitoring of hazardous waste sites 17 dictate that Superfund's $1.6 billion contingency fund be used sparingly. Although EPA has not yet made
public its strategy for deciding when to use Superfund, the agency must
8
establish priorities if the fund is not to be depleted.'
The legislative history of RCRA sheds little light on the intended
scope of the imminent hazard provision. Probably because a large portion of the statute was drafted, negotiated, and passed by Congress
within a short period near the end of a legislative session, 19 the official
legislative history of the Act's imminent hazard provision is, in the
words of one judge, "quite sketchy."' 20 No discussion of section 7003
14. These regulations set forth standards effective November 19, 1980 for hazardous
waste generators, transporters, and owners and operators of treatment, storage, and disposal
facilities. See id.
15. For example, a congressional report describes 58 sites located in 20 states in which
improper hazardous waste disposal practices have created hazards. H.R. REP. No. 1491,
94th Cong., 2d Sess. 17-24 (1976), reprintedin [19761 U.S. CODE CONG. & AD. NEWS 6238,
6254-61 [hereinafter cited as RCRA HOUSE REPORT]. At some sites, improper waste disposal has occurred over many years. For example, waste chemicals were disposed over a 50year period at a New Jersey site, causing widespread groundwater contamination. Id. at 18,
reprintedin [19761 U.S. CODE CONG. & AD. NEws at 6255.
16. Pub. L. No. 96-510, §§ 104-106, 94 Stat. 2767 (1980).
17. EPA has sued for $45 million in damages in the Love Canal case, United States v.
Hooker Chem. and Plastics Corp. (Love Canal Landfill), No. 79-990 (W.D.N.Y., filed Dec.
20, 1979). Hazardous Waste Enforcement Task Force, EPA Press Release (March 20, 1980).
The highest settlement EPA has obtained so far was $16.5 million in a consent decree in
United States v. Hooker Chem. and Plastics Corp. (Hyde Park Landfill), No. 79-989
(W.D.N.Y. Jan. 19, 1981). Telephone conversation with Daniel Rothschild, Environmental
Protection Specialist, Office of Hazardous Waste Enforcement, EPA (Jan. 13, 1981).
18. A study by Fred C. Hart Associates estimates that the total cost of cleaning up
approximately 1,200 improperly managed hazardous waste sites will be $13.1-22.1 billion,
far exceeding Superfund's $1.6 billion fund. [1979] 9 ENVIR. REP. (BNA) 2085. Barbara
Blum, Deputy Administrator, EPA, estimated that the cost will total $26-42 billion. Id.
19. Kovacs & Klucsik, The New FederalRole in Solid Waste Management- The Resource Conservation and Recovery Act of 1976, 3 COLUM. J. ENVT'L L. 205, 219 (1977).
Sponsors of the bill wanted to push it through both houses before Congress adjourned on
October 1, 1976, but House debate was scheduled for September 27. Id. This left little time
for the normally lengthy process of winning House approval, working out a compromise bill
with the Senate, and obtaining both houses' approval of the compromise version. Id. Consequently, staff members from both houses negotiated a compromise bill over the weekend
of September 25. Id. Both houses overwhelmingly approved the final compromise version
with little if any time to read it, and RCRA was signed into law three weeks later. Id. For
an excellent, more expanded discussion of RCRA's legislative history, see id. at 216-20.
20. United States v. Midwest Solvent Recovery, Inc., 484 F. Supp. 138, 143 (N.D. Ind.
1980).
ECOLOGY LAW QUARTERLY
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appears in the only congressional report on the Act. 21
I
WHEN THE ADMINISTRATOR MAY EXERCISE
EMERGENCY POWERS
American industry is manufacturing and disposing of many types
and increasing amounts of chemically complex substances whose longterm effects are often unknown. 22 Courts interpreting RCRA's emergency powers provisions must grapple with a problem common in environmental and public health: how to make legal decisions in the face
of scientific uncertainty about the nature and extent of the risk in question.23 This Part discusses the probability and magnitude of harm that
must be found before the Administrator may act.
When Congress amended RCRA in October 1980,24 it expanded
the authority of the Administrator to act under the imminent hazard
21. RCRA HOUSE REPORT, supra note 15, at 69, reprintedin [1976] U.S. CODE CONG.
& AD. NEWS at 6308. The report is dated September 9, 1976, indicating that it deals with
H.R. 14496 as it existed before the House-Senate compromise was reached on September 27,
1976. The House report mentions the provision only in its section-by-section analysis, where
it paraphrases the provision without comment. Id. Also, the report's paraphrase omits crucial language:
This section provides that notwithstanding any other provision of this act, upon
receipt of evidence that the handling, storage, treatment, (language omitted here]
an imminent and substantial endangerment to health and the environment then the
Administrator may bring suit in the United States District Court, for appropriate
relief.
Id. Even when the report lists many hazardous waste disposal sites "illustrative of the problem" and describes past and continuing damages that could present an imminent hazard, it
does not mention using the Act's imminent hazard provision to deal with the sites. Id. at 1723.
There are several possible reasons why § 7003 received so little attention before its enactment. Similar provisions in the Safe Drinking Water Act, 42 U.S.C. § 300i(a) (1976),
Clean Water Act, 33 U.S.C. § 1364 (1976), and Clean Air Act, 42 U.S.C. § 7603(a) (Supp. III
1979), had been little used, so there was no reason to expect that RCRA's provision would
be used extensively. As of 1976 when RCRA was enacted, the Administrator had brought
only two actions under emergency powers provisions. State Water Control Bd. v. Washington Suburban Sanitary Comm'n, No. 1813-73 (D.D.C., July 29, 1974) (consent decree), appealdocketed, Nos. 78-1671, 78-1672 (D.C. Cir., July 18, 1978); United States v. U.S. Steel
Corp., No. 71-1041 (S.D. Ala., Nov. 18, 1971) (temporary restraining order).
22. Comment, Imminent IrreparableInJury, 45 S. CAL. L. REV. 1025, 1027 (1972).
23. See generally Gelpe & Tarlock, The Uses of ScientijcInformation in Environmental
Decisionmaking,48 S. CAL. L. REV. 371 (1975); Krier, EnvironmentalLitigationand the Burden ofProof in LAW AND THE ENVIRONMENT 105 (M. Baldwin & J. Page eds. 1970); Silver,
An Agency Dilemma" Regulation to Protect the Public in Light of Scienft~c Uncertainty, in
LEGAL ASPECTS OF HEALTH POLICY (G. McKray & R. Roemer eds. 1980); Note, Reserve
Mining-The Standardof ProofRequired to Enjoin an Environmental Hazardto the Public
Health, 59 MINN. L. REV. 893 (1975); Comment, Imminent IrreparableInjury, 45 S. CAL. L.
REV. 1025 (1972).
24. SWDAA 1980, Pub. L. No. 96-482, 94 Stat. 2334 (amending 42 U.S.C. § 6901-6963
(1976)). The primary purpose of the 1980 amendments was to appropriate funds for RCRA
through 1982. See CONG. REC. H10,334 (daily ed. Oct. 2, 1980) (remarks of Rep. Florio).
1981]
HAZARDOUS SUBSTANCES DEVELOPMENTS
provision. 25 The Administrator's authority to act when hazardous
waste activity "is presenting" an imminent and substantial endangerment was expanded to cover instances where it "may prevent" such
endangerment. 26 This new language makes clear that the Administrator need not wait until harm has occurred before taking action. The
possibility of harm is sufficient grounds for EPA action, 2 7 assuming the
other statutory prerequisites have been met. 28 Also, the Administrator
may now act to enjoin not only "the alleged disposal" but also the
"handling, storage, treatment, [and] transportation" of hazardous
waste. 29
Section 7003 requires that the harm that "may [be] present[ed]" by
hazardous waste activity be "an imminent and substantial endangerment."' 30 This phrase may be better understood by examining legislative and judicial interpretation of the same language as found in three
other environmental statutes. 3 ' The House committee report accompanying the Safe Drinking Water Act (SDWA) 32 discusses at length the
probability and magnitude of harm that must exist before the Administrator may act under the emergency powers provisions of SDWA. 33 Be-
cause the SDWA House report is the only legislative history of a federal
25. SWDAA 1980, Pub. L. No. 96-482, § 25, 94 Stat. 2348 (amending 42 U.S.C. § 6973
(1976)).
26. Id.
27. See text accompanying notes 30-51 infra.
28. The Administrator may act under § 7003 if there is evidence that health or the
environment may be endangered and that the endangerment is caused by the handling, storage, treatment, transportation, or disposal of a hazardous waste. SWDAA 1980, Pub. L. No.
96482, § 25, 94 Stat. 2334 (amending 42 U.S.C. § 6973 (1976)).
29. SWDAA 1980, Pub. L. No. 96482, § 25, 94 Stat. 2348 (amending 42 U.S.C. § 6973
(1976)).
30. 42 U.S.C. § 6973 (1976), as amended by SWDAA 1980, Pub. L. No. 96482, 94 Stat.
2334.
31. Clean Water Act, § 504, 33 U.S.C. § 1364 (1976); Safe Drinking Water Act
(SDWA), § 1431, 42 U.S.C. § 300i(a) (1976); Clean Air Act, § 303(a), 42 U.S.C. § 7603(a)
(Supp. III 1979).
32. 42 U.S.C. §§ 300f-300j (1976).
33. H.R. REP. No. 1185, 93d Cong., 2d Sess. 35-36 (1974), reprinted in [1974] U.S.
CODE CONG. & AD. NEWS 6454, 6487-88 [hereinafter cited as SDWA HOUSE REPORT]. Section 1431 of SDWA, 42 U.S.C. § 300i(a) (1976), provides:
(a) [Tihe Administrator, upon receipt of information that a contaminant
which is present in or is likely to enter a public water system may present an imminent and substantial endangerment to the health of persons ... may take such
actions as he may deem necessary in order to protect the health of such persons
.... The action which the Administrator may take may include (but shall not be
limited to) (1) issuing such orders as may be necessary to protect the health of
persons who are or may be users of such system. . . and (2) commencing a civil
action for appropriate relief, including a restraining order or permanent or temporary injunction.
(b) Any person who willfully violates or fails or refuses to comply with any
order issued by the Administrator under subsection (a)(1) of this section may, in an
action brought in the appropriate United States district court to enforce such order,
be fined not more than $5,000 for each day in which such violation occurs or failure to comply continues.
ECOLOGY LAW QUARTERLY
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statute using the phrase "imminent and substantial endangerment" to
discuss the meaning of that language, the report is a key to understanding that phrase in section 7003 of RCRA.
The SDWA House report's discussion of the SDWA emergency
powers provision first considers the meaning of "imminent." According to the report, the Administrator may act when the risk of harm is
imminent and need not wait until the harm itself is imminent. 34 Because early action is necessary "to prevent the potential hazard from
materializing, ' 35 the imminence of the endangerment "must be considered in light of the time it may take to prepare administrative orders or
moving papers, to commence and complete litigation, and to permit
issuance, notification, implementation, and enforcement of administrative or court orders to protect the public health. ' 36 Allowing these procedural factors to enter into the determination of imminence gives the
Administrator considerable latitude in deciding when to act. The report cautions, however, that emergency authority cannot be used when
'37
"the risk of harm is remote in time."
This report also discusses the requirement that threatened harm be
"substantial," commenting that the emergency provision does not au38
thorize agency action when "the risk of harm is de minimis in degree."
The report suggests that the term "substantial," like the term "imminent," refers to the probability that harm will occur as well as to the
degree of the harm threatened. 39 Thus, "substantial" endangerment
exists where there is "a substantial likelihood.., of adverse health
disease will result
effects . . .; a substantial statisticalprobability that
40
harm."
serious
or
substantial
of
threat
. . .or the
Similarly, courts interpreting "endangerment" in environmental
legislation have held that the Administrator may act to prevent
threatened harm instead of waiting for that harm to materialize., In
Reserve Mining Co. v. EPA ,41 the court considered whether the discharge of taconite tailings into Lake Superior was "endangering the
health and welfare of persons" within the meaning of a provision of the
34.
SDWA HOUSE REPORT, supra note 33, at 35-36, reprintedin [1974] U.S. CODE
CONG. & AD. NEWS at 6487-88. For example, the report states that the Administrator could
exercise emergency powers where there is an "imminent likelihood" of dangerous contaminants entering a drinking water system. Id. at 36, reprintedin [1974] U.S. CODE CONG. &
AD. NEWS at 6488 (emphasis added).
35. Id.
36.
37.
38.
39.
40.
added).
41.
Id.
Id.
Id.
Id. at 35, reprintedin [1974].U.S. CODE CONG. & AD. NEWS at 6488.
Id. at 36, reprinted in [1974] U.S. CODE CONG. & AD. NEWS at 6488 (emphasis
514 F.2d 492 (8th Cir. 1975) (en banc).
1981]
HAZ,4RDOUS SUBSTANCES DEVELOPMENTS
Federal Water Pollution Control Act (FWPCA).42 The court concluded: "[W]e believe that Congress used the term 'endangering' in a
precautionary or preventive sense, and, therefore, evidence of potential
43
harm as well as actual harm comes within the purview of that term."
The court quoted with approval Judge Wright's interpretation of "endanger" in the Clean Air Act:44 "Caselaw and dictionary definition
agree that endanger means something less than actual harm. When
one is endangered, harm is threatened; no actual injury need ever occur."' 45 Judge Wright concluded that "[d]anger is a risk, and so can
' '4 6
only be decided by assessment of risks.
Judge Wright's interpretation of the term "endanger" in the context of the Clean Air Act was also relied on in a recent discussion of the
"imminent and substantial endangerment" provisions of RCRA and
47
the Clean Water Act in United States v. Vertac Chemical Corp.
Vertac is one of the earliest published decisions involving RCRA's imminent hazard provision.4 8 The Federal District Court issued a preliminary injunction requiring containment and continued monitoring of
toxic materials that had been entering a creek and the air. The court
quoted extensively from Reserve Mining to support its finding of "im42. Pub. L. No. 845, § 2(d)(l), 62 Stat. 1156 (1948). This section enabled the Administrator to request that the Attorney General bring suit for abatement in the case of water
pollution that "endangers the health or welfare of persons in a State other than that in which
the discharge originates." Id. The current Clean Water Act contains an emergency powers
provision providing that:
[T]he Administrator upon receipt of evidence that a pollution source or combination of sources is presenting an imminent and substantialendangerment to the
health of persons or to the welfare of persons. . . may bring suit on behalf of the
United States in the appropriate district court to immediately restrain any person
causing or contributing to the alleged pollution to stop the discharge of pollutants
causing or contributing to such pollution or to take such other action as may be
necessary.
33 U.S.C. § 1364 (1976) (emphasis added).
43. Reserve Mining Co. v. EPA, 514 F.2d 492, 528 (8th Cir. 1975) (en banc).
44. The Clean Air Act provision (current version at 42 U.S.C. § 7545(c)(l)(A) (Supp.
III 1979)) allows the Administrator to control or prohibit the manufacture or use of any
motor vehicle fuel or fuel additive "if in the judgment of the Administrator any emission
product of such fuel or fuel additive causes, or contributes, to air pollution which may reasonably be anticipated to endanger the public health or welfare." Id.
45. Reserve Mining Co. v. EPA, 514 F.2d 492, 529 (8th Cir. 1975) (en banc) (quoting
Ethyl Corp. v. EPA, No. 73-2205 at 11, 31-33 (D.C. Cir. Jan. 28, 1975) (dissenting opinion)).
Although the language quoted is from Judge Wright's dissenting opinion in Ethyl, on
rehearing en banc Judge Wright delivered the majority opinion.
46. Id.
47. 489 F. Supp. 870, 885 (E.D. Ark. 1980).
48. There have been three published decisions and one order involving § 7003: United
States v. Midwest Solvent Recovery, Inc. (Midco), 484 F. Supp. 138 (N.D. Ind. 1980);
United States v. Ottati and Goss, Inc., No. C80-225-L (D.N.H., Oct. 20, 1980) (order on
motion to dismiss); United States v. Solvents Recovery Serv., 496 F. Supp. 1127 (D. Conn.
1980); United States v. Vertac Chem. Corp., 489 F. Supp. 870 (E.D. Ark. 1980). In Midco
and Vertac, the courts issued preliminary injunctions. In Solvents and Ottati and Goss, the
courts denied motions to dismiss.
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[Vol. 9:599
minent and substantial endangerment. ' 49 Using language from Reserve
Mining, the court balanced the "imminence" against the "substantiality" of the endangerment in question on the theory that even a slight
probability of harm was a sufficient endangerment if very serious harm
could result: "While there may be a low probability of harm from dioxin as defendants contend, there is a serious and dire risk from exposure to dioxin should the hypothesis advanced by the plaintiffs prove to
be valid." 50 The court also emphasized that findings of imminent and
substantial harm can rest legitimately on uncertain data: "[A risk may
be assessed] from suspected, but not completely substantiated, relationships between facts, from trends among facts, from theoretical projections from imperfect data, or from probative preliminary data not yet
certifiable as 'fact.'
'51
In view of the SDWA legislative history and the judicial interpretation of language in other acts similar to that found in section 7003, it
is likely that courts will allow the Administrator to act when there is a
substantial likelihood of endangerment, and that when a greater harm
is threatened, less likelihood of harm need be demonstrated before the
Administrator can act.
II
ACTIONS AUTHORIZED BY SECTION 7003
The 1980 amendments to RCRA 52 clarified and expanded the Administrator's power to take action to alleviate harm in hazardous waste
emergencies. As originally enacted, section 7003 allowed the Administrator to bring suit or to "take such other action as may be necessary"
to stop the disposal of hazardous waste where it presented an "imminent and substantial endangerment. '5 3 While this authority ostensibly
was broad, the 1980 amendments more specifically provide that the
Administrator may issue "such orders as may be necessary to protect
public health and the environment ' 54 and impose a fine of $5000 per
day for willful violations of such orders. 5" The amendments increase
49. 489 F. Supp. at 885. The Vertac court's heavy reliance on Reserve Mining is curious in view of the Reserve Mining court's observation that the term "endangering" connoted
a lesser risk than the phrase "imminent and substantial endangerment," which superseded
"endangering" in the 1972 amendments to the Clean Water Act, Pub. L. No. 92-500, § 2, 86
Stat. 888 (codified in 33 U.S.C. § 1364 (1976)). Reserve Mining Co. v. EPA, 514 F.2d 492,
528 (8th Cir. 1975) (en banc).
50. United States v. Vertac Chem. Corp., 489 F. Supp. at 885.
51. 1d.
52. SWDAA 1980, Pub. L. No. 96-482, 94 Stat. 2334 (amending 42 U.S.C. §§ 69016987 (1976)).
53. 42 U.S.C. § 6973 (1976).
54. SWDAA 1980, Pub. L. No. 96-482, § 25, 94 Stat. 2334 (amending 42 U.S.C. § 6973
(1976)).
55. Id. This fine increases the efficacy of § 7003 not only by increasing the deterrent
1981]
HAZARDOUS SUBSTANCES DEVELOPMENTS
the resemblance among the emergency powers provisions of RCRA,
SDWA, 56 and the Clean Air Act. 57 Because judicial interpretation of
language in one emergency statute is often used to interpret emergency
provisions in other statutes, 58 a more unified approach to environmenadministratal pollution emergencies could contribute to more effective
59
tive and judicial resolution of emergency situations.
Court orders and consent decrees under section 7003 have provided for broad remedial and preventive relief. For example, the court
in Vertac issued an injunction requiring the defendants to repair the
clay covering on a waste burial site, construct waste-containment walls,
and submit to EPA monthly samples from monitoring wells and a detailed plan for a wastewater treatment system with timetables for its
installation. 60 Settlement decrees in other actions have included similar provisions for short- and long-term cleanup, containment, and mon61
itoring.
The type of relief the Administrator may order under section 7003
is still uncertain. While Superfund details the activities for which contingency funds can be spent and the costs for which defendants can be
held liable, 62 RCRA's section 7003 leaves to the Administrator the task
of determining on a case-by-case basis what actions are "necessary" to
protect the environment and public health. 63 More troublesome is that
the 1980 amendments fail to clarify whether and how the cost of
cleanup and the waste handler's ability to pay should be considered in
structuring relief. An answer to this question was indicated when the
force of the provision, but also by providing the Administrator with leverage in settlement
negotiations. In an interview with Anthony Z. Roisman, Chief, Hazardous Waste Section,
U.S. Department of Justice, Mr. Roisman reported:
Before [RCRA was amended to include a $5000 per day fine], when we got into a
discussion about settlement all we could offer the defendant was: "If you settle
with us when the suit is filed, we won't say nasty things about you. We'll say
you've been very responsible." But some companies would say: "Yeah, that and
55 cents and I can ride the subway during rush hour." It didn't count for a lot.
Now we can say that if you don't settle with us, we will sue you not only to do the
work, but from the day you haven't done it we will get a $5,000 a day fine.
Exposure, Jan. 1981, at 4, col. 3 (Environmental Action Foundation).
56. 42 U.S.C. § 300i(a) (1976).
57. Id. § 7603(a) (Supp. III 1979). For an overview of similarities and differences
among these and other emergency powers provisions, see Skaff, Emergency Powers in the
EnvironmentalProtectionStatutes." A Suggestionfor a UnofedEmergency Provision,3 HARV.
ENVT'L L. REV. 298 (1979).
58. See text accompanying notes 44-47 supra.
59. Skaff, supra note 57, at 324-25.
60. United States v. Vertac Chem. Corp., 489 F. Supp. at 888-89.
61. See, e.g., United States v. Waukesha County, Inc., No. 80-C-1070 (E.D. Wis. Dec.
1, 1980); United States v. W.R. Grace and Co., No. 80-748-C (D. Mass. Oct. 21, 1980) (final
decree); United States v. Kin-Buc, Inc., No. 79-514 (D.N.J. Jan. 30, 1980).
62. Pub. L. No. 96-510, §§ 104-108, 94 Stat. 2767 (1980).
63. SWDAA 1980, Pub. L. No. 96-482, § 25, 94 Stat. 2348 (amending 42 U.S.C. § 6973
(1976)).
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[Vol. 9:599
Vertac court expressed concern about the economic impact of the requested relief on the defendant and the community: "Vertac must be
given a reasonable opportunity and a reasonable time to accomplish an
abatement of its pollution and the health risk created thereby. In this
way, hardship to employees'and great economic loss incident to an immediate plant closing may be avoided." 64 Thus, the high cost of effective relief 65 may influence the courts in deciding what relief may be
ordered under section 7003.
III
LIABILITY
A.
Effect of Section 7003 on Substantive Standardsof Liability
United States v. Midwest Solvent Recovery, Inc. (Midco )66 was the
first published decision involving section 7003. The court carefully
considered whether the section imposes substantive liability and concluded that it does nothing more than set forth "evidentiary tests which,
if satisfied, permit the Administrator to petition in some situations for
immediate injunctive relief."67 The court based its conclusion on the
language and organization of RCRA. First, the court noted that section 7003 is found among RCRA's miscellaneous provisions rather
than in the subchapter that imposes liability for failure to fulfill prescribed duties. 68 Second, the court observed that section 7003 is found
in the Act following a private attorney general provision allowing any
person, not including the Administrator in an official capacity, to sue to
enforce the Act. 69 The proximity of section 7003 to the citizen suit provision supports the view that the section's main purpose is to allow the
Administrator to bring suit in federal court. 70 Because section 7003 authorizes the Administrator to take action against all those who contribute to the disposal of hazardous wastes, without regard to the nature or
extent of their waste handling activities, it is unlikely that Congress
7
intended this section to serve as a substantive standard of liability. '
Finally, the court noted that other provisions of the Act establish stan72
dards of conduct for handling wastes.
Because section 7003 does no more than provide jurisdiction in the
64.
United States v. Vertac Chem. Corp., 489 F. Supp. at 888.
65.
66.
See note 17 supra.
484 F. Supp. 138 (N.D. Ind. 1980).
67. Id at 144.
68. Id. at 143.
69. Id. at 143-44.
70.
71.
72.
Id. at 144.
Id.
Id The provisions referred to by the court, 42 U.S.C. §§ 6922-6924 (1976), author-
ize the Administrator of EPA to establish standards governing monitoring and reporting
practices.
HA ZA RDOUS SUBSTANCES DEVELOPMENTS
1981]
federal district courts once the "evidentiary test" of "imminent and
substantial endangerment to health or the environment" is satisfied,
Midco held that courts must apply common law principles and the
Federal Rules of Civil Procedure to determine whether preliminary injunctive relief should be granted. 73 The government argued that the
requirement in Rule 65 of the Federal Rules of Civil Procedure that
injunctive relief can be granted only if irreparable harm is threatened
was superseded by section 7003's test of "imminent and substantial endangerment to health or the environment. ' 74 The court rejected this
contention and squarely held that section 7003 was not intended to supplant the requirement of the Federal Rules of Civil Procedure, though
it acknowledged that there would be little practical difference between
75
the two standards in most hazardous waste emergency cases.
B.
Section 7003 andthe FederalCommon Law of Nuisance
Midco 's holding that section 7003 creates an evidentiary test rather
than standards for substantive liability raises the question of what substantive law to apply in suits filed under that section. Because Midco
involved a preliminary injunction, it focused on the relevant requirements of the Federal Rules of Civil Procedure and referred only briefly
to common law principles. 76 United States v. Solvents Recovery Service,77 however, addressed the issue of78substantive liability and applied
the federal common law of nuisance.
A federal common law of nuisance exception to the doctrine of
Erie Railroad Co. v. Tompkins 79 was first recognized in 1972 when the
Supreme Court held in Illinois v. City of Milwaukee 80 that a federal
court could hear a common law nuisance claim in an action to enjoin
73. Id. at 143.
74. Id.
75. The court stated:
In the great majority of controversies that the Court can envision that involve the
disposal, storage, and treatment or handling of solid or hazardous wastes, if an
endangerment of the sort described in § 7003 can be made out, the common law
prerequisite to the issuance of preliminary injunctive relief will also be existent.
But in those actions in which plaintiff shows a § 7003 endangerment but fails to
demonstrate that in the absence of preliminary injunctive relief irreparable harm
will result, a preliminary injunction cannot issue.
Id. at 144.
76. Id. at 143.
77. 496 F. Supp. 1127 (D. Conn. 1980).
78. Id. at 1134-35.
79. 304 U.S. 64 (1938). This landmark decision, overruling a Supreme Court case that
had been followed for almost one hundred years, held that state and not federal law supplies
the substantive standards to be applied in diversity cases in federal courts. The Court declared: "There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State. . . .And no clause in the Constitution
purports to confer such a power upon the federal courts." Id. at 78.
80. 406 U.S. 91 (1972), modpied, 49 U.S.L.W. 4445 (1981).
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interstate water pollution. Although the remedy sought by the state
was not provided by the Federal Water Pollution Control Act, the
Court found that "[tihe application of federal common law to abate a
public nuisance in interstate or navigable waters is not inconsistent
with the. . .Act.""' The Court stated that federal law can be applied
"where there is an overriding federal interest in the need for a uniform
'82
rule of decision.
Decisions after City of Milwaukee have attempted to determine
what federal interests are sufficiently important to justify application of
the federal common law of nuisance. One line of cases, 83 of which
Committeefor Jones Falls Sewage System v. Train8 4 is representative,
reasoned that a federal forum should adjudicate cases in which a public
nuisance arises in one state and causes harmful effects in another.8 5
These cases require a showing of interstate controversies or effects in
86
order to apply the federal common law of nuisance.
Illinois v. OutboardMarine Corp.87 represents a more liberal approach8 8 in its holding that interstate pollution is not the sole means of
89
establishing a sufficient federal interest to apply federal common law.
According to this case, federal pollution laws manifest a federal interest
in abating intrastate water pollution sufficient to meet the City of Milwaukee test of overriding federal interest. 90 Solvents, the only decision
applying federal common law to suits brought under section 7003, followed this line of reasoning.
The Solvents court reasoned that a federal nuisance cause of action may be grounded in the "strong federal interest in controlling cer81. Illinois v. City of Milwaukee, 406 U.S. at 103-04 n.6.
82. Id. at 105.
83. See National Sea Clammers Ass'n v. City of New York, 616 F.2d 1222 (3d Cir.
1980), rev'dsub nom Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n,
49 U.S.L.W. 4783 (1981); Committee for Jones Falls Sewage Sys. v. Train, 539 F.2d 1006
(4th Cir. 1976); Reserve Mining Co. v. EPA, 514 F.2d 492 (8th Cir. 1975) (en banc).
84. 539 F.2d 1006 (4th Cir. 1976).
85. Id. at 1008.
86. Id. at 1010. See also National Sea Clammers Ass'n v. City of New York, 616 F.2d
1222, 1233 (3d Cir. 1980), rev'dsub nom. Middlesex County Sewerage Auth. v. National Sea
Clammers Ass'n, 49 U.S.L.W. 4783 (1981); (showing of interstate effects is typical, but perhaps not only, method of demonstrating federal interest in uniformity); Reserve Mining Co.
v. EPA, 514 F.2d 492, 520 (8th Cir. 1975) (en banc) (requiring "at a minimum, interstate
pollution").
87. 619 F.2d 623 (7th Cir. 1980),pefitionfor cert.filed, 49 U.S.L.W. 3043 (July 28, 1980)
(No. 80-126).
88. See also United States v. Ira S. Bushey & Sons, Inc., 346 F. Supp. 145, 149 (D. Vt.
1972), aI'dmen., 487 F.2d 1393 (2d Cir. 1973), cert. denied, 417 U.S. 976 (1974) (no interstate effects required in case of lake pollution because national interest in air and water
quality "has been manifested in executive statements, Congressional legislation, and administrative agency regulation").
89. Illinois v. Outboard Marine Corp., 619 F.2d at 625-30.
90. Id. at 630.
19811
HAZARDOUS SUBSTANCES DEVELOPMENTS
tain types of pollution . . . manifested in several federal statutes
concerning the preservation of clean waters." 91 RCRA's legislative history indicates a strong federal interest in preventing and abating
groundwater pollution caused by hazardous waste disposal. 92 The
court observed that, because groundwater pollution rarely crosses state
lines, 93 "conditioning a § 7003 claim on the allegation of. . .interstate
effects would be fundamentally inconsistent with the character of the
pollution which is the target of [RCRA] and incompatible with the nature and extent of the federal concern embodied in RCRA. '94 RCRA,
therefore, appears to establish the existence of a sufficient federal interest to apply federal nuisance law in section 7003 cases.
Another factor contributing to the Solvents court's rejection of an
interstate-effects requirement in federal nuisance actions was the language of section 7003. The requirement that the Administrator give
notice to the affected "State," rather than "states," 95 of any section
intent to authorize section 7003
7003 suit demonstrates congressional
96
state.
one
only
actions involving
The Supreme Court's recent second decision in City of Milwaukee
(Milwaukee 11)9 7 raises another issue concerning the availaIllinois
v.
bility of a federal common law remedy in suits brought under section
7003. After the Court's initial decision establishing a federal common
law remedy to abate health and environmental hazards resulting from
interstate water pollution, 98 Congress amended the Federal Water Pollution Control Act 99 to establish a broad new system of regulation governing discharge of pollutants into the Nation's waters. 100 In its second
decision,' 0 ' the Court held that there was no longer any "'interstice'
here to be filled by federal common law."' 0 2 While prior to the amend91.
United States v. Solvents Recovery Serv., 496 F. Supp. at 1134.
92. Id. at 1136.
93.
94.
95.
94 Stat.
96.
Id. at 1138.
Id. at 1139.
42 U.S.C. § 6973 (1976), as amendedby SWDAA of 1980, Pub. L. No. 96-482, § 25,
2334 (emphasis added).
United States v. Solvents Recovery Serv., 496 F. Supp. 1127, 1138-39 (D. Conn.
1980).
97. 49 U.S.L.W. 4445 (1981).
98. Illinois v. City of Milwaukee, 406 U.S. 91 (1972).
99. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86
Stat. 816 (current version codified in 33 U.S.C. §§ 1251-1376 (1976 & Supp. III 1979)).
100. City of Milwaukee v. Illinois, 49 U.S.L.W. at 4447.
101. The plaintiffs initially filed suit in the Supreme Court seeking to invoke its original
jurisdiction over suits between two states. Illinois v. City of Milwaukee, 406 U.S. at 93-94.
Although the Court held that a federal common law remedy was available in that case, it
declined to exercise its original jurisdiction, holding instead that the common law remedy
could be afforded by the federal district courts. Id. at 108. The second Supreme Court
decision in the case was on certiorari, with the defendants seeking review of the lower court's
decision. City of Milwaukee v. Illinois, 49 U.S.L.W. at 4446.
102. City of Milwaukee v. Illinois, 49 U.S.L.W. at 4450.
ECOLOGY LAW QUARTERLY
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ments the available federal statutory remedies had been "inadequate to
supplant federal common law," in the Court's view the amendments
procedures for states to seek redress from
had created ample statutory
03
interstate water pollution.
Milwaukee II raises the question whether RCRA leaves room for
application of federal common law remedies in section 7003 suits, or
whether the substantive standards to be applied in cases brought under
that provision must be derived solely from the statute itself. An interpretation of the substantive standards of RCRA as entirely supplanting
federal common law remedies in dealing with hazardous waste emergencies would be inconsistent with Congress's decision to create the
special remedy afforded by section 7003. The decision to include such
a provision specifically addressed to emergency situations indicates that
Congress did not believe the general regulatory framework of the statute was sufficient to prevent or abate all hazardous substance emergencies. Because RCRA's general regulatory scheme is directed to the
address
ongoing activities of hazardous waste handlers and does not
1°4 federal
the continuing hazards created by past disposal activities,
common law remedies made available through the statutory procedural
device of section 7003 would seem particularly appropriate to fill this
gap.
C
Liabiliyfor Past and Omissive Acts Under Section 7003
Parties currently and directly contributing to the "handling, storage, treatment, transportation or disposal" of hazardous waste that may
present an imminent hazard are clearly subject to section 7003 if the
Administrator can show that the acts may endanger health or the environment. 0 5 The full range of activities covered by RCRA's emergency
provision is unclear, however. The Administrator's authority to obtain
relief for present harm resulting from past acts, including those occurring prior to RCRA's enactment, and for omissive or nonvolitional
acts, such as ownership of property containing waste presenting a hazard, has not yet been determined by Congress or the courts.
Solvents held that a party can be held liable in a section 7003 suit
for present effects of its past acts. °6 The defendant in Solvents was
subject to suit under RCRA for its storage and disposal of toxic chemicals ending in 1979 and 1967, respectively, 0 7 because those activities
103. Id. at 4449.
104. See 42 U.S.C. §§ 6922-6924 (1976). See also notes 10-15 & 72 supra and accompanying text.
105.
42 U.S.C. § 6973 (1976).
106.
107.
United States v. Solvents Recovery Serv., 496 F. Supp. at 1140-41.
Id. at 1130.
1981]
HAZARDOUS SUBSTANCES DEVELOPMENTS
were the cause of existing groundwater pollution. 0 8 The court gave
several reasons for its rejection of a "continuing acts" limitation in section 7003 actions. First, the authority of the Administrator to go be-
yond seeking a restraining order by "tak[ing] such other action as may
be necessary" implicitly refers to situations in which more than a restraining order is needed because the defendants have already ceased
the disposal activity causing the hazard. 0 9 Second, Solvents held that
the federal common law of nuisance provides the substantive standard
of liability for groundwater suits brought under section 7003;'10 because the common law doctrine of nuisance is not limited to ongoing
acts, it would be inconsistent to imply such a limitation in section
7003.111 Finally, the court read a 1979 congressional committee report
as support for holding that section 7003 could be used to "remedy the
2
effects of past disposal practices.""1
The same factors that prompted the Solvents court to refuse to
limit the application of section 7003 to "ongoing acts" probably influenced its decision to apply the section to acts that occurred before
RCRA's enactment in 1976.113 A retroactive statute is one that "creates
a new obligation, imposes a new duty or attaches a new disability, in
respect to transactions already past.""14 Because the court held that
section 7003 is a jurisdictional provision incorporating federal common
law rather than imposing new substantive liabilities,' '5 it found no retroactivity in the application of the provision to pre-RCRA activities
"[iln the absence of any indication that this federal body of nuisance
law is likely to exceed significantly in scope or severity the state law of
108.
Id. at 1129.
109.
110.
Id. at 1140.
Id.
111.
112.
Id.
Id. at 1140-41. The court cited
SUBCOMM. ON OVERSIGHT AND INVESTIGATIONS
OF THE HOUSE COMM. ON INTERSTATE AND FOREIGN COMMERCE, 96th Cong., 1st Sess. 31,
HAZARDOUS WASTE DISPOSAL (Comm. Print 1979). Although the court noted that this re-
port, which was issued after RCRA's enactment, "lacks the probative value as to legislative
intent that contemporaneous statements of Congress' purpose would have," it stated nevertheless that the report was "entitled to considerable weight as a kind of 'expert opinion'
concerning the meaning and proper interpretation of the statute, especially in view of Congress' contemporaneous silence on the question at issue here." United States v. Solvents
Recovery Serv., 496 F. Supp. at 1140 n.18.
113. In Solvents, EPA sued Solvents Recovery Service to abate the hazards resulting
from its dumping of toxic chemicals into unlined lagoons, a practice it had discontinued in
1967 (nine years before enactment of RCRA), and its storage of other chemicals in drums on
its property, which it had continued until 1979. United States v. Solvents Recovery Serv.,
496 F. Supp. at 1130. The court noted that the defendants' argument that § 7003 was being
applied retroactively was "based on a faulty premise" since EPA had alleged that the hazard
resulted from conduct occurring after, as well as before, RCRA's enactment. Id. at 1141.
The court went on to address the retroactivity question nevertheless, and held the application of § 7003 valid with respect both to defendant's pre-RCRA and post-RCRA acts. Id. at
1141-42 & n.26.
114. Id. at 1141 (quoting Sturges v. Carter, 114 U.S. 511, 519 (1885)).
115. Id. at 1142. See also notes 66-78 supra and accompanying text.
ECOLOGY LAW QUARTEAL Y
[Vol. 9:599
subject when they ennuisance to which the defendants were already
'" 6
practices."
disposal
gaged in their pre-RCRA
This holding leaves open a possible finding of retroactivity if the
rapidly developing federal common law of nuisance is found to afford
relief beyond that provided under the nuisance law prevailing in the
state whose law would have applied prior to the enactment of RCRA.
It remains unclear what differences in scope between pre-RCRA state
common law and current federal common law would be sufficient for a
court to find the federal law extended "significantly" beyond state law.
Courts have interpreted section 7003 to encompass not only affirmative acts, such as disposal of waste in unlined lagoons, but also failures
to act." 7 In United States v. Ottati and Goss, Inc. ,I1 the New Hampshire District Court, applying the grant of authority in section 7003 to
the Administrator to sue "any person. . . contributing to the harmful
activity,"' '19 held that a defendant lessor of land to a waste disposal
company had contributed to its lessee's harmful disposal of hazardous
wastes by failing to prevent it. 120
Because the federal common law of nuisance supplies the substantive law in section 7003 suits, the court in Ottad and Goss used public
nuisance principles to define the duty owed by the landowner parties in
that case 121 and held that liability could be imposed for a "failure to
act, when that person was under a duty to act to prevent or abate the
to
nuisance."' 2 2 The court then found that the landowners had a duty
'' 23
"exercise reasonable care to prevent the nuisance from arising.1
Ottati and Goss was a suit brought by the government under the
original version of section 7003, which by its terms applied only to parties contributing to the "disposal" of hazardous waste.' 24 After the
1980 amendments to RCRA, parties contributing to the "handling,
storage, treatment, [or] transportation" of hazardous waste are also
subject to section 7003.125 Thus, Ottati and Goss does not make clear
116.
117.
United States v. Solvents Recovery Serv., 496 F. Supp. at 1142.
Solvents avoided deciding this issue by defining "disposal" to include only affirma-
tive acts, not continuing leaking or migration of waste, which the defendants failed to correct. Id. at 1139. RCRA defines "disposal" as
the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid
waste or hazardous waste into or on any land or water so that such solid waste or
hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.
42 U.S.C. § 6903(3) (1976).
118. No. C80-225-L (D.N.H. Oct. 20, 1980) (order on motion to dismiss).
119. Id. at 2.
120. Id. at 5-6.
121. Id. at 4.
122. Id.
123.
Id. at 5-6.
124.
125.
42 U.S.C. § 6973 (1976).
Id., as amendedby SWDAA 1980, Pub. L. No. 96-482, § 25, 94 Stat. 2334.
HA ZARDOUS SUBSTANCES DEVELOPMENTS
1981]
whether parties contributing to activities listed in the Amendments
other than disposal, who may often be less directly responsible for imminent hazards, are subject to the same duty of reasonable care held
applicable to those contributing to "disposal" as used in the original
version of section 7003.
The Senate report accompanying the 1980 amendments to section
7003126 suggests that such parties contributing to handling, storage,
treatment, or transportation would be "contributing to" an endangerment by breaching a duty of care defined under negligence or nuisance
law: 127
[A] company that generated hazardous waste might be someone 'contributing to' an endangerment under section 7003 even where someone
else deposited the waste in an improper disposal site . . . where the
generator had knowledge of the illicit disposal or failed to exercise due
care in selecting or instructing the entity actually conducting the disposal. 128
In the same paragraph, this report also states that "some terms and
concepts of section 7003, such as "contributing to," should be construed
"more liberal[ly] than their common law counterparts."'' 29 The report
suggests that principles "similar to strict liability under common law"
may be applied. 30 This suggested departure from the courts' consensus that section 7003 incorporates only common law liabilities 13 1
presents some new questions. If the amendments authorize application
of a body of law allowing more liberal recovery by injured plaintiffs
than would the common law, the Solvents opinion suggests that section
7003 cannot be applied to situations involving activities that occurred
before RCRA was enacted in 1976 without being impermissibly retroactive.' 3 2 However the standard-of-care issue is finally decided, it
seems clear that Congress intended the 1980 amendments to expand the
kinds of activities covered by section 7003.
Fertac133 raised the question of whether liability could be imposed
in a section 7003 suit under a continuing nuisance theory on a party
that improperly disposed of hazardous waste on its property and then
sold and moved off the property. 1 34 The Vertac court was able to
avoid deciding whether the sale of property insulates a party from lia126.
S. REP. No. 172, 96th Cong., 1st Sess., reprintedin [1980] U.S. CODE CONG. & AD.
8665.
127. Id. at 5, reprintedin [1980] U.S.
NEWS
128.
CODE CONG. & AD. NEWS 8669.
Id.
129. Id.
130. Id.
131. See notes 73, 114, & 115 supra and accompanying text.
132. See notes 106-09 supra and accompanying text.
133. United States v. Vertac Chem. Corp., 489 F. Supp. 870 (E.D. Ark. 1980) (discussed
in text accompanying notes 47-51, 60 & 64 supra).
134. Id. at 888.
ECOLOGY LAW QUARTERL Y
[Vol. 9:599
bility, because the former owner in that case voluntarily agreed to pay
its share of the cleanup costs. 13 5 Although no court has determined
whether nuisance law imposes liability on former landowners in section
7003 suits, pending cases will no doubt force the courts to confront the
question. 136
CONCLUSION
EPA's reliance on section 7003 of RCRA in fifty-six lawsuits it has
filed since 1979137 demonstrates the important role this provision can
play in abating hazardous waste emergencies. The sparse case law on
section 7003138 has interpreted it liberally, and the 1980 amendments
further widen its scope. 139 The Administrator need not wait until harm
has materialized, but may act when a risk of harm to health or the
environment exists.' 40 The relief the government may obtain is not
limited to seeking injunctions; the Administrator may issue orders necessary to protect health or the environment.' 4 ' Although section 7003
does not create new substantive liability, it does incorporate the rapidly
developing federal common law of nuisance, which has been held to
apply in even those section 7003 suits that do not involve interstate
waters or activities. 142 The courts have imposed liability under section
7003 on landowners whose harmful activities were remote in time from
the resulting hazard 143 and parties that did not act affirmatively to
cause the hazard but did fail to prevent it.'44 Although the paucity of
legislative history 4 5 and decisional law on section 7003 leave unresolved significant issues concerning its scope, the section is a highly
visible and important component of RCRA's "cradle-to-grave" hazardous waste disposal regulatory system.
Kathryn Saenz Duke
135.
Id.
136. For example, the highly publicized Love Canal (see note 2 supra) case, United
States v. Hooker Chem. and Plastics Corp. (Love Canal Landfill), No. 79-990 (W.D.N.Y.,
filed Dec. 20, 1979), presents the question of whether a landowner that sold and left its
property in 1953 can be liable for a present danger. S. REP. No. 848, 96th Cong., 2d Sess. 8
(1980).
137. See note 9 supra and accompanying text.
138.
139.
140.
141.
See note 48 supra.
See notes 24-29 supra and accompanying text.
Reserve Mining Co. v. EPA, 514 F.2d 492, 528 (8th Cir. 1975) (en banc).
SWDAA 1980, Pub. L. No. 96-482, § 25, 94 Stat. 2348 (amending 42 U.S.C. § 6973
(1976)).
142. United States v. Solvents Recovery Serv., 496 F. Supp. 1127, 1139 (D. Conn. 1980).
143.
144.
Id. at 1140-41.
United States v. Ottati and Goss, Inc., No. C80-225-L at 4 (D.N.H. Oct. 20, 1980)
(order on motion to dismiss).
145.
See notes 19-21 supra and accompanying text.