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United States v. Wade

Citation: 12 ELR 21051
No. No. 79-1426, 546 F. Supp. 785/17 ERC 2138/(E.D. Pa., 09/07/1982) Motion to dismiss granted

The court holds that neither § 7003 of the Resource Conservation and Recovery Act (RCRA) nor § 106(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) confers liability on non-negligent past off-site generators off-site generators are persons "contributing to" the disposal of hazardous waste within the meaning of § 7003 of RCRA and concludes that it would be unreasonable, in the absence of clear congressional guidance, to interpret § 7003 as conferring liability upon so vast a class of potential defendants. The court finds additional support for excluding off-site generators in the structure of RCRA and applicable regulations, which separate the duties imposed upon generators from those imposed upon dump site owners. Furthermore, the court notes that it cannot grant plaintiff's request for an injunction against defendant and the other off-site generators, since defendant is not currently disposing of waste at the site and is not the owner of the property. In addition, it cannot order defendant to pay the cleanup costs since the requested relief constitutes money damages not injunctive relief. Turning to plaintiff's claim under § 106(a) of CERCLA, the court rules that the emergency injunctive relief authority of § 106(a) is inapplicable to past off-site generators. The language of § 106(a) and the legislative history of CERCLA indicate a congressional intent to limit the scope of that sectin to emergency situations where hazardous waste was currently being discharged or threatened to be discharged from a facility and where such discharge could be abated through injunctive relief. The court concludes that § 106(a) is a complement to the statutory scheme established by §§ 104 and 107, which give the government clear authority to recover its cost from off-site generators, and not, as plaintiff contended, an alternate route for dealing with the problems posed by abandoned sites.

[The pleadings in this case are summarized at ELR PEND. LIT. 65754 — Ed.]

Counsel for Plaintiff
Carol E. Dinkins, Ass't Attorney General; George Ray, E. Robert Wright
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5471

Peter Vaira Jr., U.S. Attorney; Gary Tilles
601 Market St., Philadelphia PA 19106
(215) 597-1087

Counsel for Defendant
Calvin Sawyier, Edward J. Wendrow, Sidney Margolis
Winston & Strawn
One First Nat'l Plaza, Chicago IL 60603
(312) 558-5600

James Wilder
La Brum & Doak
1700 Market St., Philadelphia PA 19103
(215) 561-4400