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RCRA Imminent Hazard Authority: A Powerful Tool for Businesses, Governments, and Citizen Enforcers

March 1994

Citation: ELR 10122

Author: Adam Babich

Years ago, environmental law was considered a specialized branch of administrative law. Environmental law-suits generally involved either enforcement (government regulators or environmentalists suing businesses) or regulatory appeals (businesses or environmentalists suing the government). In contrast, environmental litigation today is a free-for-all: Everybody feels free to sue everyone else.1 In this context, sophisticated lawyers advise their clients to go beyond bare-minimum compliance with environmental regulations, and minimize the potential liabilities (and bad publicity) associated with any release of pollutants, no matter how lawful.2

Despite the best of advice, however, even the most careful businesses can face substantial liabilities due to past conduct, human error, bad luck, and the acts and omissions of third parties. In such situations, it is only natural to seek to shift, share, and otherwise minimize those liabilities, ideally before enforcement by the U.S. Environmental Protection Agency (EPA) or a state, and before government investment of removal and remedial action dollars.3 Thus, a company that only yesterday argued that joint, several, and retroactive liability is [24 ELR 10123] immoral, unconstitutional, and un-American, may today find itself asserting such liability against its peers.4 This is not fratricide; it is business by other means.5 For businesses -- and for governments and environmentalists -- such litigation can result in settlements and orders that require investigation and cleanup6 of hazardous waste problems.7 For lawyers, it is a pretty good way to make a living.

Adam Babich, J.D., Yale Law School, has been Editor-in-Chief of ELR -- The Environmental Law Reporter since 1993. Before that, his private law practice in Denver, Colorado, emphasized environmental litigation on behalf of citizen enforcers and the regulated community. In 1991-1992, he served as adjunct attorney for the Environmental Defense Fund and from 1984-1987, he was an assistant attorney general with the Colorado Attorney General's CERCLA Litigation Section.

Although recognizing the inadequacy of the tribute, the author dedicates this Comment to the memory of the Rev. Wade Blank (who never would have read it) and to the many people still struggling to realize Wade's dream of a more just society.

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