In Subtitle C of the Resource Conservation and Recovery Act of 1976 (RCRA)¹, Congress created what it expected would be a comprehensive regulatory scheme for the management and disposal of hazardous waste. Over the last three years, the truly alarming nature of the threat to public health and the environment presented by the thousands of hazardous disposal sites throughout the nation has become more fully apparent, however. Congress' original underestimation of the scope and seriousness of the hazardous waste problem is reflected in RCRA itself. In the view of the Environmental Protection Agency (EPA), the agency charged with interpreting and implementing the Act in the first instance, the statute embraces only active waste disposal sites within its regulatory mandate.² According to EPA, the only section of the Act applicable to inactive or abandoned sites, which appear to present the most serious and immediate threat, is the imminent hazard provision in §7003.³ This measure authorizes the Agency to bring suit to enjoin storage or disposal of any hazardous waste that "is presenting an imminent and substantial endangerment to health or the environment."⁴

EPA has yet to issue final regulations to implement the Act. In an attempt to address problems at existing waste disposal sites during this regulatory hiatus and to control inactive sites as well, EPA and the Department of Justice, which has established a new Hazardous Waste Section for this purpose, have begun filing a series of lawsuits based upon a number of legal theories, including §7003.⁵ The government's innovative claims for relief in these cases raise a number of interesting and important legal issues. Ironically, the success of this litigation effort may hinge to a large degree on application of venerable nuisance law principles rather than the newer statutory imminent hazard provisions.