Hazardous Waste: EPA, Justice Invoke Emergency Authority, Common Law in Litigation Campaign Against Dump Sites

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.

If the government's claims win judicial acceptance, they could flesh out the emergency provisions in RCRA and several other environmental statutes and open a new horizon for the federal common law of pollution control. More important from EPA's viewpoint is that successful outcomes in these suits would provide both tangible environmental benefits and a firm legal foundation for implementation and enforcement of the entire RCRA program. The showpiece in this nationwide litigation campaign, in terms of public visibility, variety of legal claims raised, and range of relief requested, is a set of four cases concerning the Hooker Chemical Corporation's disposal of chemical wastes at Love Canal and three other inactive sites in the City of Niagara Falls, New York.⁶

[10 ELR 10035]

Love Canal

Background

The factual circumstances underlying the Niagara Falls cases are similar in many respects to those presented at other inactive hazardous waste disposal sites around the nation. Hooker Chemical Corporation owns a plant in Niagara Falls that manufactures plastics and agricultural and industrial chemicals. From 1942 until 1975, Hooker disposed of thousands of tons of toxic chemical wastes at four sites in the city. For the first nine of these years, the company dumped more than 21,000 tons of such wastes in Love Canal, an incomplete component of an ill-starred hydropower project dating from the turn of the century. The waste chemicals were generally deposited at the 16-acre site in metal or fiber drums, but significant quantities of both liquid and solid waste were also allegedly dumped directly into earthen trenches.

After it ceased using the canal as a disposal site, Hooker covered the buried wastes and conveyed the land to the City Board of Education. The deed recited that the canal had been filled with waste products from the manufacture of chemicals but contained a provision relieving Hooker of liability for personal injury or property damage resulting from the presence of these wastes. The Board constructed an elementary school and playground in the middle of the site and conveyed outlying portions to the city and a private developer. A total of 239 houses now surround the canal property, most having been built after 1953. In addition, three municipal storm sewers, which empty directly or through tributaries into the Niagara River, underlie the canal landfill.

From 1947 to 1975, Hooker used similar methods to dispose of more than 70,000 tons of similar substances on a four-acre portion of its plant property. This site, known as the "S" area, is 200 yards from a municipal drinking water treatment plant. Hooker and the Olin Corporation deposited 89,000 tons of such wastes in much the same manner from 1942 until 1972 at a 17-acre site known as the 102nd Street landfill, which borders several public parks and the Niagara River, from which it was originally reclaimed. The companies ceased dumping and constructed a bulkhead against the river in response to an order by the Army Corps of Engineers under the Rivers and Harbors Act.⁷ The fourth site at which Hooker disposed of its wastes is the 15-acre Hyde Park landfill, where it dumped 80,000 tons of chemicals between 1953 and 1975.

According to the complaint filed by the Justice Department, Hooker received notice of chemical burns to school children at the Love Canal site and to persons walking across the 102nd Street site but allegedly failed to notify the public or those living near the areas that contact with the buried chemicals could cause injury. In 1976, however, unusually heavy rainfall resulted in underground and surface migration of wastes from all four sites, especially Love Canal. Chemicals from the canal appeared in puddles on the ground and seeped into the basements of surrounding houses. Residents began to notice strong chemical odors both indoors and outside their homes and to experience abnormally high rates of miscarriages and birth defects, as well as other health disorders. Subsequent epidemiological studies and medical tests confirmed these adverse health effects, while monitoring verified the presence of significant levels of toxic, carcinogenic, and teratogenic substances in the air inside these houses and in soil and surface water surrounding them.⁸

On August 2, 1978, the Commissioner of the New York State Department of Health declared that Love Canal presented a public health emergency. Shortly thereafter the Governor announced that the state would purchase the 239 uninhabitable houses immediately adjacent to the canal. On August 7, 1978, President Carter formally designated the situation a national emergency,⁹ thereby enabling federal disaster funds to be used in the relief efforts.

Most of the adjacent residents have now been relocated, the area has been fenced and capped with an impermeable clay cover, an extensive sampling and monitoring program has been undertaken, and a leachate collection system has been constructed. The total cost of these governmental relocation and remedial measures is likely to approach $25 million, the federal share of which has thus far been approximately $7 million.¹⁰

Legal Bases for Relief

The government is advancing a number of different claims in its legal blitzkrieg on hazardous waste dumps. The central claim in the Hooker cases, as in all the recently initiated lawsuits, is based on § 7003 of the Resource Conservation and Recovery Act. This imminent hazard provision authorizes the EPA Administrator to bring suit for injunctive relief against any person "contributing to" the "storage" or "disposal" of hazardous waste that "is presenting an imminent and substantial endangerment to health or the environment."¹¹

In addition to this cause of action under RCRA, the [10 ELR 10036] government has raised claims based upon nearly identical imminent hazard provisions in the Clean Water Act and the Safe Drinking Water Act (SDWA). Section 504(a) of the Clean Water Act allows the Administrator to obtain injunctive relief against any person causing or contributing to a discharge from a "pollution source" that "is presenting an imminent and substantial endangerment" to health and welfare.¹² EPA possesses somewhat broader emergency powers under § 1431 of the SDWA, which authorizes it to issue administrative orders or initiate civil actions for injunctive relief based upon information that a contaminant present in or likely to enter a public water system "may present an imminent and substantial endangerment" to health.¹³ A prerequisite to use of the SDWA powers is that state and local officials have failed to act to correct the situation.

Unlike RCRA and the SDWA, § 504(b) of the Clean Water Act¹⁴ authorizes establishment of a $10 million contingency fund upon which EPA may draw to provide emergency assistance and to study the environmental and health effects of particular pollution incidents. Assistance so provided is recoverable from the discharger under § 309¹⁵ if the pollutants were discharged without a permit in violation of §§ 301 and 402.¹⁶ The complaint in the Love Canal case thus includes a claim under § 309 for the reimbursement by Hooker of federal abatement expenses, with the total amount to be determined at trial. In a separate claim under § 309, the government seeks civil penalties of up to $10,000 per day on the theory that the outfalls of the storm sewers underlying the canal are "point sources" from which hazardous chemicals deposited in the landfill are now being discharged into navigable waters without the permit required by §§ 301 and 402.

Another central component of these cases is a common law cause of action in public nuisance. The government charges that Hooker's disposal activities and failure to secure the site against leakage after ceasing to deposit waste there have resulted in the contamination of the Niagara River, a navigable water under the sovereign power of the United States. The complaint alleges that Hooker's dumping and subsequent inaction have also harmed the health of United States citizens and interfered with interstate travel.

Although the complaint characterizes this as a single nuisance claim, it includes allegations that seem directed at invoking the traditionally distinct tort doctrines of negligence and strict liability for ultrahazardous activity.¹⁷ Inclusion of assertions that Hooker's disposal activities were by nature ultrahazardous and were also negligently conducted would seem to provide the court with additional bases upon which to conclude that defendant's conduct is judicially redressable.

The government's final claim in the Love Canal case rests upon § 13 of the Rivers and Harbors Act.¹⁸ The complaint contends that Hooker violated this provision by dumping chemical wastes where they would migrate into navigable waters without first obtaining a permit from the Army Corps of Engineers.

Relief Requested

The prayer for relief in the Love Canal litigation encompasses a wide variety of items. Initially, the government asks for a judicial declaration that Hooker's disposal of wastes presents an imminent and substantial endangerment to health and the environment. This, of course, would establish the right to injunctive relief under the relevant statutory imminent hazard provisions. The complaint also requests a mandatory permanent injunction requiring Hooker either to perform or pay for the performance of the remainder of EPA's remedial plan for the site. Specifically, the government asks that the court order Hooker to vent and treat escaping gases, construct a containing wall down to the bedrock around the area contaminated, install a perpetual monitoring system for ground water, air, soil, and surface streams, cap the site with clay, and remove contaminated soil from contact with surrounding homes. Further, the complaint seeks to require Hooker to pay for relocation of residents of affected areas and for lifetime health monitoring of past and present residents and their children. The final component of the requested injunctive relief is the cessation of discharges of hazardous chemicals and pollutants into, and the removal of these substances from, the Niagara River, its tributary streams, and the sewers underlying the canal. The complaint requests, moreover, that Hooker be required to maintain the site and the various cover, drainage, monitoring, and control structures in perpetuity once closure of the site in accordance with these specifications has been accomplished.

As to monetary relief, the government seeks reimbursement from Hooker for all funds spent for remedial and investigatory purposes, including the $7 million in federal disaster and EPA assistance funding already disbursed. It also asks that the court impose a civil penalty of $10,000 per day for Hooker's violations of the Clean Water Act but does not specify when these violations are alleged to have begun. To ensure that monies are available to finance the requested cleanup measures, the complaint asks that Hooker be ordered either to establish a $45 million trust account or to obtain a bond against insolvency.

Issues Raised by the Litigation

A crucial threshold question in the Love Canal case, and for the federal hazardous waste site litigation campaign as a whole, is whether a waste generator and disposer that divests itself of the disposal site can be held legally accountable under either statutory or common law nuisance principles for pollution now emanating from the property. Hooker acknowledges a continuing obligation to undertake remedial measures at the closed "S" area, 102nd Street, and Hyde Park landfill sites because they are still its property.¹⁹ It denies legal responsibility, [10 ELR 10037] however, for developments that transpired after it conveyed the Love Canal site to the city school board more than 25 years ago.

Beyond the possible difficulty in reaching the original waste generator or site operator where ownership of an inactive site has changed hands, the most pressing problem regarding application of the imminent hazard provisions of RCRA and the other statutes as interim cleanup devices is the interpretation to be given the phrase "imminent and substantial endangerment," which is the trigger for judicial intervention. The legislative history of RCRA provides no guidance on this point, but that of the analogous Safe Drinking Water Act provision indicates that these measures are designed to prevent injury from occurring and are brought into play by the risk of harm rather than harm itself.²⁰ The few cases in which the courts have construed the term "endanger" as used in other environmental laws corroborate this view that it establishes a precautionary standard that is met by a showing of potential harm as opposed to actual injury. The United States Court of Appeals for the District of Columbia Circuit, for example, undertook a particularly thorough exploration of the term's meaning in Ethyl Corp. v. Environmental Protection Agency.²¹ Although construing an unrelated provision in the Clean Air Act,²² the court concluded that "endanger" refers to threatened rather than actual harm and thus authorizes regulatory action that is anticipatory rather than ameliorative.²³ The United States Court of Appeals for the Eighth Circuit in Reserve Mining Co. v. Environmental Protection Agency,²⁴ likewise ruled that evidence of potential harm as well as actual harm could be used to show that a toxic discharge was "endangering" public health as the term was used in the predecessor²⁵ to the current Clean Water Act emergency powers provision.²⁶

The adjective "imminent" speaks to the seriousness of the threatened harm and does not necessarily require that it will materialize in the immediate future.²⁷ The addition of "substantial" to the formula, at least as explained by the legislative history of the analogous SDWA provision, was intended simply to assure that the emergency provision not be used where the risk is de minimis or can be adequately addressed through routine regulatory measures.²⁸

The net result is that the government will most probably be able to invoke these emergency provisions even where there is no direct evidence of actual harm to humans or the surrounding environment. In circumstances similar to the Love Canal case, where the "body counts" have already begun, the use of these powers will be even less difficult in evidentiary terms. Gathering the evidence necessary to make the required showing of risk will nonetheless never be easy or inexpensive and will serve as a practical limitation on the number of actions the government can bring under these statutory provisions.

The government's claim for recoupment ofits $7 million in remedial expenditures at Love Canal under § 504(b) of the Clean Water Act depends upon the validity of its assertion that the seepage of buried wastes into the underlying storm sewers and through them into the Niagara River constitutes the unpermitted discharge of pollutants from a point source in violation of §§ 301 and 402.²⁹ The statute defines the term "point source" as "any … discrete conveyance, including … any pipe, ditch, channel, tunnel … from which pollutants are or may be discharged."³⁰ An attempt by EPA to exclude storm sewers from this definition was judicially invalidated in 1975.³¹ The Agency subsequently promulgated regulations providing for the issuance of general permits for storm sewer discharges.³² But this authorization does not run to storm sewers discharging water contaminated by industrial wastes which are thus subject to the individual permit requirements of § 402.³³ Assuming that it can document the discharge of chemical wastes from the landfill through the storm sewer outfalls, this provision and the generally expansive judicial interpretation of the "point source" definition would seem to give the government a good chance of succeeding on this claim as well.

The essence of the federal common law claim, which is central to many of the government lawsuits, is public nuisance theory. The evidentiary prerequisite to success on such a cause of action is a showing that the defendant's activity interferes with or threatens public rights.³⁴ Once such a showing has been made, the trier of fact undertakes a balancing process in which the utility of the activity is weighed against the harm it causes or threatens. Where the threat presented by the activity is to public health, however, the balancing mandated by nuisance doctrine tends to be pro forma and is more likely to be struck in the public's favor.³⁵ Findings that the defendant's disposal activity was conducted negligently and was ultrahazardous by nature may similarly provide a basis for determining that the balance tilts in the government's favor.³⁶

[10 ELR 10038]

The remedies granted in nuisance cases are tailored to reflect the nature of the threatened harm and a number of other factors, including the defendant's financial status and the technological availability of mitigation measures.³⁷ A permanent injunction will ordinarily lie if the activity presents a serious and imminent threat to public health or if it unavoidably causes substantial damage that is not health-related.³⁸ In any event, even where the health risks are little more than inferential, remedies requiring improvements in control technology and practices are nonetheless appropriate.³⁹

The government's heavy reliance on nuisance theory is based on what it sees as a lesser burden of proof than that entailed in making a case under the imminent endangerment provisions of RCRA, the Clean Water Act, and the Safe Drinking Water Act. In addition, the flexibility and familiarity of common law balancing in varying fact situations and the wide range of available remedies make the nuisance approach an attractive one in these cases.

The final claim falls under § 13 of the Rivers and Harbors Act,⁴⁰ a tried and true device for the cessation of unpermitted pollutant discharges into navigable waters. This statutory provision encompasses a wide variety of pollution incidents, including both surface runoff and subsurface seepage, and imposes essentially strict liability for violation of its strictures.⁴¹ In addition to criminal penalties, it also implicitly authorizes injunctive remedies.⁴²

It bears noting that because of varying factual settings the government is not asserting all of these claims in all cases. The RCRA claim is omnipresent, but in some instances the nuisance, Safe Drinking Water Act, Clean Water Act, and Rivers and Harbors Act claims are not raised where there is as yet no apparent migration of wastes or contamination of drinking water sources, waters of the United States, or navigable waters, respectively.

Conclusion

The Environmental Protection Agency and the Department of Justice are still in the initial stages of their litigation program against hazardous waste disposal sites. The agencies hope to file approximately 50 lawsuits in the first year of this campaign, a figure which will necessitate a prodigious effort by the Department's newly formed Hazardous Wastes Section. Though the prospect of 50 suits is impressive, it must be measured against reliable estimates that there are more than 32,000 waste disposal sites nationwide of which at least 1,200 currently present serious health and environmental hazards.⁴³ While these litigation efforts may seem merely to scratch the surface of the problem presented by leaking inactive sites, they should give pause to those who continue to dispose of these materials improperly.

Although existing inactive sites will not be covered by the soon to be established RCRA regulatory program, Congress is currently moving to correct this and other difficulties. Committees in both houses are now considering measures⁴⁴ to establish a "superfund" to pay for the cleanup of abandoned or inactive disposal sites for which no responsible party can be identified or held financially accountable. In addition, a House committee has favorably reported a bill⁴⁵ that would amend RCRA by broadening the language of § 7003 to encompass all situations that "may present" an imminent and substantial endangerment to health or the environment. Such a move would pave the way for a more effective remedial litigation effort by lowering the evidentiary threshold for relief.

The current wave of hazardous waste litigation provides an opportunity for considered judicial interpretation of the largely unexplored imminent hazard provisions of RCRA, the Clean Water Act, and the Safe Drinking Water Act. It also may result in rulings that build upon and give added momentum to recent case law developments⁴⁶ expanding the role of the federal common law in the area of public nuisance.

An important final question concerns the government's underlying tactical aims. Specifically, will it be disposed to agree to settlement or push for final judicial victories? The immediate goal of all these lawsuits is to remedy currently dangerous situations at hazardous waste sites as quickly as possible. Early settlements are certainly the fastest way to get the defendant to agree to undertake necessary remedial measures. Ideally, however, the Justice Department and EPA would doubtless prefer to receive strong decisions vindicating their legal theories in the first few cases, which could then be used as prods for favorable settlements in succeeding suits. But the agencies might be hard put to reject a settlement offer including remedial measures and litigate the case, possibly for years with attendant heavy expenses, while the site continues to fester. Similarly, industrial defendants [10 ELR 10039] may in many instances feel pressed to avoid continuing adverse publicity and to mitigate their growing financial liability by settling.

Of particular interest in this regard is a recent partial settlement In United States v. Kin-Buc.⁴⁷ There the parties agreed only to interim remedial measures and left for trial questions relating to the defendant's liability for penalties, reimbursement of federal and state cleanup expenses, and permanent injunctive relief. The partial settlement device may provide a middle ground in that the defendant can begin a program of mitigation measures while the court considers the legal issues relating to liability.

1. RCRA §§ 3001-3011, 42 U.S.C. §§ 6921-6931, ELR STAT. & REG. 41906. See generally Comment, The Hazardous Waste Crisis: EPA Struggles to Implement RCRA; Amendments Needed, 9 ELR 10060 (1979).

2. 43 Fed. Reg. 58984 (Dec. 18, 1978).

3. 42 U.S.C. § 6973, ELR STAT. & REG. 41913.

4. Id.

5. See, e.g., United States v. Kin-Buc, Inc., No. 79-514, ELR PEND. LIT. 65601 (D.N.J., filed Feb. 9, 1979, partial settlement reached Jan. 30, 1980); United States v. Wade, No. 79-1426 (E.D. Pa., filed Apr. 20, 1979); United States v. Chemicals and Minerals Reclamation, Inc., No. 79-1356 (N.D. Ohio, filed July 10, 1979); United States v. Solvents Recovery Service, No. 79-704 (D. Conn., filed Dec. 17, 1979); United States v. Occidental Petroleum Corp., No. S-79-989 (E.D. Cal., filed Dec. 18, 1979); United States v. Chem-Dyne Corp., No. 79-703 (S.D. Ohio, filed Dec. 19, 1979). Moving papers in the latter three cases are briefly summarized and made available at ELR PEND. LIT. 65665 [U.S. v. Solvents Recovery Service] [U.S. v. Occidental Chem. Corp.] [U.S. v. Chem-Dyne Corp.].

6. United States v. Hooker Chemicals and Plastics Corp., No. 79-987 (W.D.N.Y., filed Dec. 20, 1979) (102nd Street site); United States v. Hooker Chemicals and Plastics Corp., No. 79-988 (W.D.N.Y., filed Dec. 20, 1979) ("S" area landfill); United States v. Hooker Chemicals and Plastics Corp., No. 79-989 (W.D.N.Y., filed Dec. 20, 1979) (Hyde Park landfill); United States v. Hooker Chemicals and Plastics Corp., No. 79-990 (W.D.N.Y., filed Dec. 20, 1979) (Love Canal). Moving papers in these four cases are briefly summarized and made available at ELR PEND. LIT. 65664.

7. 33 U.S.C. § 407, ELR STAT. & REG. 41143.

8. See generally, Joint Hearings on Hazardous Toxic Waste Disposal Before the Subcommittees on Environmental Pollution and Resource Protection of the Senate Committee on Environment and Public Works (pt. 2), 96th Cong., 1st Sess. (1979) (cited hereinafter as Joint Hearings).

9. 14 WEEKLY COMP. OF PRES. DOC. 1405 (Aug. 14, 1978).

10. COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY — 1979: TENTH ANNUAL REPORT 177 (Dec. 1979).

11. Section 7003 provides in full:

Notwithstanding any other provision of this chapter, upon receipt of evidence that the handling, storage, treatment, transportation or disposal or any solid waste or hazardous waste is presenting an imminent and substantial endangerment to health or the environment, the Administrator may bring suit on behalf of the United States in the appropriate district court to immediately restrain any person contributing to the alleged disposal to stop such handling, storage, treatment, transportation, or disposal or to take such other action as may be necessary. The Administrator shall provide notice to the affected State of any such suit.

42 U.S.C. § 6973, ELR STAT. & REG. 41913.

12. 33 U.S.C. § 1364(a), ELR STAT. & REG. 42147.

13. 42 U.S.C. § 300i, ELR STAT. & REG. 41110.

14. 33 U.S.C. § 1364(b), ELR STAT. & REG. 42147.

15. 33 U.S.C. § 1319, ELR STAT. & REG. 42130.

16. 33 U.S.C. §§ 1311, 1342, ELR STAT. & REG. 42123, 42141.

17. The latter doctrine had its genesis in the well known case of Rylands v. Fletcher, 1 Ex. 265 (1986), aff'd, 3 H.L. 330 (1868).

18. 33 U.S.C. § 407, ELR STAT. & REG. 41142.

19. Statement of Bruce D. Davis, President, Industrial Chemicals Group, Hooker Chemical Corp., in Joint Hearings, supra note 8, at 13-14.

20. H.R. REP. NO. 1185, 93d Cong., 2d Sess. 35-36 (1974).

21. 541 F.2d 1, 6 ELR 20267 (D.C. Cir.) (en banc), cert. denied, 426 U.S. 941 (1976).

22. Section 211, 42 U.S.C. § 1857(f)-6(c) (1970), amended and recodified at 42 U.S.C. § 7545, ELR STAT. & REG. 42249.

23. 541 F.2d at 13, 6 ELR at 20272. See also Note, The Emergency Powers in the Environmental Protection Statutes: A Suggestion for a Unified Emergency Provision, 3 HARV. ENVT'L L. REV. 298 (1979).

24. 514 F.2d 492, 5 ELR 20596 (8th Cir. 1975) (en banc).

25. 33 U.S.C. § 1160(g) (1970).

26. 33 U.S.C. § 1364 (Supp. 1977), ELR STAT. & REG. 42147.

27. See EDF v. Ruckelshaus, 439 F.2d 584, 597, 1 ELR 20059, 20064 (D.C. Cir. 1971) (hazard may be "imminent" even if its impact will not be apparent for many years); see also Note, supra note 23, at 312-315.

28. H.R. REP. NO. 1185, 93d Cong., 2d Sess. 36 (1974).

29. Section 504(b)(9), 33 U.S.C. § 1364(b)(9), ELR STAT. & REG. 42147.

30. Section 502(14), 33 U.S.C. § 1362(14), ELR STAT. & REG. 42146.

31. NRDC v. Train, 396 F. Supp. 1393, 5 ELR 20401 (D.D.C. 1975), aff'd 568 F.2d 1369, 8 ELR 20028 (D.C. Cir. 1978).

32. 40 C.F.R. §§ 124.83(c), 125.52(c).

33. 40 C.F.R. §§ 124.83(a)(2), 125.52(a)(2).

34. W. RODGERS, ENVIRONMENTAL LAW § 2.2 at 102 (1977).

35. Harrison v. Indiana Auto Shredders Co., 528 F.2d 1107, 1121-23, 6 ELR 20179, 20185-86 (7th Cir. 1975).

36. W. RODGERS, ENVIRONMENTAL LAW § 2.3 at 108 (1977).

37. Id. § 2.11 at 143-150 (1977).

38. Harrison v. Indiana Auto Shredders Co., 528 F.2d 1107, 1123, 6 ELR 20179, 20186 (7th Cir. 1975). But see Spur Industries, Inc. v. Del. E. Webb Development Co., 494 P.2d 700 (Ariz. 1972); Boomer v. Atlantic Cement Co., 257 N.E.2d 870 (N.Y. 1970).

39. W. RODGERS, ENVIRONMENTAL LAW § 2.11 at 148-150 (1977).

40. 33 U.S.C. § 407, ELR STAT. & REG. 41143.

41. See, e.g., United States v. White Fuel Corp., 498 F.2d 619, 4 ELR 20531 (1st Cir. 1974).

42. See Wyandotte Transportation Co. v. United States, 389 U.S. 191 (1967); United States v. Republic Steel Corp., 362 U.S. 482 (1960); United States v. Consolidation Coal Co., 354 F. Supp. 173, 3 ELR 20425 (N.D.W. Va. 1973).

43. COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY — 1979: TENTH ANNUAL REPORT 174 (Dec. 1979).

44. Markup on S. 1480, 96th Cong., 1st Sess. (1979), is currently underway in the Subcommittees on Environmental Pollution and Resource Protection of the Senate Committee on Environment and Public Works. The Subcommittee on Transportation and Commerce of the House Committee on Interstate and Foreign Commerce has begun to markup H.R. 5790, 96th Cong., 1st Sess. (1979).

45. H.R. 3994, 96th Cong., 2d Sess. (1980).

46. See City of Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008, 9 ELR 20679 (7th Cir. 1979), cert. denied, 48 U.S.L.W. 3436 (U.S. 1980); Comment, Seventh Circuit Interprets Federal Common Law of Nuisance to Authorize Municipalities to Sue for Damages, 9 ELR 10168 (1979). See also Illinois v. City of Milwaukee, 599 F.2d 151, 9 ELR 20347 (7th Cir. 1979); Comment, Illinois v. City of Milwaukee Revisited: Seventh Circuit Charts Important Role for Federal Common Law of Nuisance, 9 ELR 10087 (1979).

47. No. 79-514, ELR PEND. LIT. 65601 (D.N.J., partial settlement reached Jan. 30, 1980).