RCRA's Imminent Hazard Provision and Inactive Hazardous Waste Dumps: A Reappraisal After U.S. v. Waste Industries

Phillip D. Reed

Editors' Summary: On December 30, 1982 a federal district judge handed EPA's hazardous waste program an unexpected setback. He dismissed an EPA complaint seeking to use RCRA § 7003 to force the operator of a closed landfill and the owner of the land on which it is located to abate chemical pollution leaking from the dump into the groundwater. The decision in United States v. Waste Industries was the first to reject the Agency's application of § 7003 to an inactive waste disposal site. The court chose not to follow precedent from several district courts and one court of appeals in reaching this conclusion, and relied heavily on the Congress' passage of CERCLA as evidence that it had not intended RCRA's imminent hazard provision to apply to inactive waste sites. The Comment reviews the decisions to date on § 7003 and examines the future role of the RCRA provision now that CERCLA is on the books.

[13 ELR 10074]

At the end of 1982 a federal district judge dealt the Environmental Protection Agency's (EPA's) hazardous waste site cleanup program an unexpected setback. In dismissing the government's complaint in United States v. Waste Industries,¹ the court held for the first time that the imminent hazard provision of § 7003 of the Resource Conservation and Recovery Act (RCRA)² may not be used to force the operator of a closed waste dump or the current owner of the land on which it is located to abate pollution of the groundwater by chemicals leaching from the site. The loss, only EPA's second in eight court decisions on § 7003, suggests the need for a review of the legal status of imminent hazard enforcement under RCRA and its relationship to EPA's other hazardous waste control authority. On reflection, the setback does not appear to jeopardize EPA's program to clean up pollution leaking from old waste dumps because the Agency now has other tools for that work.

Background

RCRA

In the mid-1970s Congress began to address the environmental "time bomb" of hazardous waste. In 1976 Congress passed RCRA, requiring EPA to establish a comprehensive program to regulate hazardous waste from "cradle to grave." One objective of the statute was to control the "treatment, storage, transportation, and disposal of hazardous wastes which have adverse effects on health and the environment."³ Subtitle C directed EPA to identify and list hazardous wastes,⁴ and then to promulgate standards governing generators,⁵ transporters,⁶ and owners and operators of treatment, storage, and disposal facilities.⁷ RCRA also directed EPA to promulgate regulations requiring permits for hazardous waste treatment, storage, and disposal facilities⁸ and authorized the federal agency to delegate to states the responsibility for implementing the regulatory program.⁹

Subtitle G, titled "Miscellaneous Provisions," includes § 7003 authorizing the EPA Administrator to act quickly to force the abatement of hazardous waste pollution that presents an "imminent and substantial endangerment to health or the environment." Section 7003 mirrors imminent hazard provisions in the federal pollution control statutes enacted before it.¹⁰ It states:

Notwithstanding any other provisions of this chapter, 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, the Administrator may bring suit on behalf of the United States in the appropriate district court to immediately restrain any person contributing to such handling, storage, treatment, transportation or disposal to stop such handling, storage, treatment, transportation, or disposal or to take such other action as may be necessary.¹¹

If Congress had any special plans for the imminent hazard authority in RCRA, it did not reveal them in the 1976 legislative history,¹² but it soon became apparent that there was a major role for § 7003 to play, if it was up to the task.

The elaborate regulatory structure mandated by RCRA proved difficult to erect.¹³ All the major regulations were late and it was not until July 1982, with the promulgation of land disposal standards, that the core Subtitle C regulatory program was in place.¹⁴ Thus, years passed after [13 ELR 10075] the enactment of RCRA during which owners and operators of hazardous waste facilities were subject to limited, if any, federal regulation. A more serious gap in the regulatory framework appeared with the discovery that inactive and abandoned hazardous waste disposal sites, which EPA had concluded were not covered by Subtitle C, were numerous and often dangerous.¹⁵

Litigation Under § 7003

In searching for a solution to past disposal at existing hazardous waste sites, EPA and the newly established Hazardous Waste Section of the Department of Justice developed a legal strategy built on the foundation of § 7003.¹⁶ The government's legal theory varied from case to case, but § 7003 and federal common law nuisance played a central role.¹⁷

Litigation under § 7003 raised several basic questions concerning the section's scope and impact. What, if any, conduct was made illegal by the section? Whose unlawful conduct could be addressed? What remedies could be imposed? While the answers varied from one court to the next and no judge was called upon to fashion a comprehensive response, the courts were willing to find some basis for applying the imminent hazard provision in virtually every case.

The question of where the substantive standards for application of § 7003 are to be found and what they are came up repeatedly in the cases. In United States v. Midwest Solvent Recovery, Inc.¹⁸ the federal district court for the Northern District of Indiana concluded that § 7003 is merely jurisdictional.¹⁹ Courts holding that § 7003 is jurisdictional ruled that the substantive standards governing its application are to be found in the remainder of the statute and EPA's implementing regulations or in the federal common law.²⁰ Other courts have held that the imminent and substantial endangerment language of § 7003 provides a substantive standard.²¹

A recurring issue in the § 7003 cases is whether the section applies to health threats from wastes disposed of in the past and now leaking into the groundwater, or whether it is limited to threats from current activities. The remedy specified is restraint of ongoing acts ("handling," "storage," "treatment," "transportation," and "disposal"), of which only "disposal" even arguably applies to pollution from wastes after they have been left in the dump. Waste "disposal" is defined in RCRA to include "leaking."²² In United States v. Wade²³ the court stated that in this context, "leaking" means leaking from drums or other containers, not leaking from the disposal site. However, the Wade court based its decision on another issue and did not rule on whether § 7003 applies to current migration of chemicals from closed dumps. Other courts have held that § 7003 can be used with "dormant" sites,²⁴ even those where the facility stopped receiving wastes prior to enacment of RCRA.²⁵ These courts' rationale was, in large part, that the focus of the statute is on current threats to the public health and environment, not on current disposal practices.²⁶ They also rejected the argument that applying § 7003 to pre-RCRA dumping is an improper retroactive application of the statute.²⁷

Section 7003 also does not specify whom the government can force to abate an imminent hazard. The language of the section is very broad, encompassing anyone "contributing to" unsafe handling or disposal. How far back into the historical chain of ownership of the site can the government reach? How far into the life history of the waste can the government reach? Where the government sued the current owner and operator of a hazardous [13 ELR 10076] waste disposal facility, the questions of the liability of generators or past owners and operators did not arise, but for some disposal sites no solvent owner or operator can be found.

The courts generally have applied § 7003 beyond the inner circle of those who actually owned and operated the disposal site. The current owner of the land on which hazardous wastes were disposed in the past may be liable even if it was not responsible for establishing or operating the facility.²⁸ Several courts have extended liability to past owners and operators who since severed their ties with the facility.²⁹

While past site owners and current owners not responsible for the dumping have been held liable under § 7003, liability has not been extended to waste generators not connected with the disposal facility. In United States v. Wade³⁰ the court refused to extend liability for a dangerous site to a generator who had not been negligent in arranging disposal of its wastes, who no longer shipped wastes to the site, and who did not own the facility.

Another point of contention in the application of § 7003 has been its remedies. The statute specifies one remedy — injunctions "to restrain" persons contributing to dangerous handling or disposal of hazardous wastes. It also authorizes a court to "take such other action as may be necessary." Some courts have read this language to authorize broad remedial action to abate the imminent hazards from waste dumps. The Third Circuit recently affirmed a district court decision not to use § 7003 to order the defendant to perform a study of groundwater contamination near a waste dump, but rejected the lower court's ruling that § 7003 does not allow the government to order a dump operator to finance such a study.³¹ Another court ordered the site owner to build waste containment structures and modify treatment systems to prevent continuing migration of wastes off the facility.³²

Until recently, as a group the decisions interpreting § 7003 stood in vindication of the government's broad interpretation; only Wade limited § 7003 significantly. By 1980 § 7003 seemed established as an effective weapon to combat dangerous pollution from certain existing waste disposal facilities. The lack of precedent countering Wade's bar against holding off-site generators liable and the need to litigate before cleanup could begin limited § 7003's effectiveness, but it had begun to play a useful role in the war on hazardous waste.

Superfund

As EPA and Justice mounted their legal assault on pollution from past waste dumping, Congress began to consider the need for additional statutory authority to clean up existing hazardous waste sites leaking dangerous chemicals into the environment. In December 1980, after long and intense debate, Congress provided a response.

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund)³³ enabled the federal government to respond in several ways to "releases" of hazardous substances to the environment from dumps and other sources. Section 102³⁴ requires the government to designate hazardous substances, § 103³⁵ mandates reporting to EPA of releases from vessels or facilities, § 104³⁶ gives the federal government broad authority to respond to hazardous waste pollution by cleaning up its sources and mitigating its effects, and § 107³⁷ makes those responsible for the hazardous waste releases, including generators of the wastes, liable for government response costs and natural resource damages. Section 106³⁸ is an imminent hazard provision worded somewhat differently from that in RCRA and its predecessors. The imminent hazard provision of CERCLA provides:

(a) In addition to any other action taken by a State or local government, when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility, he may require the Attorney General of the United States to secure such relief as may be necessary to abate such danger or threat, and the district court of the United States in the district in which the threat occurs shall have jurisdiction to grant such relief as the public interest and the equities of the case may require.³⁹

The CERCLA provision avoids much of § 7003's uncertainty as to its applicability to inactive sites and remote contributors. It clearly focuses on releases of hazardous wastes from dump sites. Section 106 contains no language that might exclude past dump operators or waste generators from its coverage.⁴⁰ Nevertheless, § 7003 may be broader than § 106(a) in one respect. EPA has interpreted the RCRA provision as applicable to all materials meeting the statutory definition of hazardous waste, not just those materials identified by EPA as hazardous pursuant [13 ELR 10077] to § 3001.⁴¹ CERCLA § 106(a) applies to "hazardous substances," which are defined as substances identified by EPA under one of several statutes.⁴² Thus, it is possible that § 7003 might be applicable to releases of some health-threatening substances that could not be addressed under CERCLA § 106(a). It has taken EPA some time,⁴³ but the Agency is using CERCLA to clean up problem sites and to persuade waste generators to clean up others.⁴⁴ The arrival on the scene of the "comprehensive" program for remedying problems at previously unregulated hazardous waste dumps diminishes the importance of § 7003 and heavily influenced the most recent district court decision on its scope and application.

Waste Industries

From 1972 to 1979 Waste Industries operated the Flemington site, a landfill on leased property in New Hanover County, North Carolina. The landfill was permitted by the county and approved by the State Board of Health. Nevertheless, hazardous wastes leached from the landfill into the groundwater, contaminating wells and threatening to pollute surface waters. EPA filed suit under § 7003 for injunctive relief to abate the pollution. The federal district court concluded that § 7003 did not apply because there was no current waste disposal activity.

In the court's lengthy explication of the reasons why § 7003 does not apply to inactive sites, the fact that Congress had directly addressed the problem in Superfund loomed large. The court looked at five factors in analyzing the scope of § 7003: (1) the language of the section, (2) the structure and purpose of RCRA, (3) the legislative history of RCRA, (4) Superfund and other las concerning hazardous waste control, and (5) the propriety of retroactive application of RCRA. The court concluded that § 7003 did not authorize EPA to require Waste Industries to go back to the site years after it ceased operations to stop the migration of dangerous chemicals through the underlying groundwater. The court's reasoning is persuasive in many respects, but understates some important arguments in EPA's favor.

The Language of § 7003

Initially, the court examined the language of § 7003. It concluded that "disposal," like "handling," "storage," "treatment," and "transportation," addresses active conduct with a definite conclusion. The inclusion of "leaking" in the statutory definition of "disposal" did not affect the result. Through somewhat strained logic the court found that "leaking," like the other, "more specific" terms in the definition, must apply to the active conduct that got the wastes into the drump, not to their subsequent percolation from the site into the environment.⁴⁵ The court also found in the repeated use of the present tense in § 7003 a congressional intent to deal only with current disposal. It added that this reading makes § 7003 consistent with the rest of RCRA, which sets out a prospective regulatory program. The 1980 amendments to RCRA, which changed the triggering language of § 7003 from "is presenting" an endangerment to "may present" did not alter the term "contributing to" from present tense to past tense, in spite of some legislative history to the contrary.⁴⁶ In addition, the court reasoned that since the remedial language of § 7003 refers to restraining persons involved in unsafe handling or disposal of hazardous wastes, the section must apply only to active conduct. In a footnote, it dispatched the argument that the "to take other action" language in § 7003 expands the scope of its remedial provision.⁴⁷ It found this simply too small a hook on which to hang a major expansion of RCRA's scope.

This portion of the court's analysis is unconvincing. It limits a provision the stated purpose of which is to protect the public health from imminent dangers to a small subset of the situations in which that danger might arise. And in the painstaking analysis of the wording of § 7003 that led to this conclusion, the court ignored the language setting out the provision's purpose — the immediate cessation of imminent and substantial endangerments.

RCRA's Structure and Purpose

The court next turned its attention to the structure and purpose of RCRA. It noted that the statute established a comprehensive scheme to regulate affirmative conduct in the handling and disposal of wastes and that it "was not designed to remedy past acts."⁴⁸ Since § 7003 is found not with the substantive provisions of the Act, but under "Miscellaneous Provisions" and follows the citizen suit provision that only establishes standing, the court concluded that § 7003 is jurisdictional. It noted that the similar imminent hazard provisions in other environmental statutes clearly were intended to fill gaps in the laws' basic regulatory programs, not to be "substitute procedures for chronic or generally recurring pollution problem."⁴⁹

[13 ELR 10078]

When it raised the focus of its analysis from the language of § 7003 to the statute as a whole, the court's reasoning became more persuasive. There can be no doubt that Congress did not intend to establish a broad solution to the problem of abandoned and inactive hazardous waste dumps in RCRA. The argument should not stop here, however, because there is evidence that Congress later sanctioned EPA's § 7003 litigation.

Legislative History

The Waste Industries court noted that the presence of contrary precedent arguably demonstrated that § 7003 is ambiguous and therefore turned to the legislative history. It found no discussion of § 7003 in the legislative record leading up to RCRA's enactment and concluded that "Congress likely included the emergency provision as a matter of course."⁵⁰ Turning to subsequent legislative discussion of § 7003, the court rejected the argument that EPA's use of the provision was sanctioned by a House Subcommittee Report on hazardous wastes.⁵¹ It declined to rely on the report's reference to possible use of § 7003 to remedy past disposal practices, because the reference was not clearly intended to explain Congress' intent in enacting § 7003.⁵² The court did not discuss the legislative history of the 1980 amendment to § 7003 in this section of its opinion. It did, however, discuss the legislative history of CERCLA, which sealed its decision that § 7003 does not apply to inactive or abandoned sites. The CERCLA history indicated that (1) Congress' awareness of abandoned dumps arose after enactment of RCRA and (2) Congress thought nothing in RCRA addressed the problem.⁵³ Looking at the sketchy overall legislative history, the court reasoned that Congress would not have authorized a broad assault on the problem of abandoned and inactive sites through a peripheral piece of RCRA without providing clearer authorization in the legislative history. It found it far more logical that Congress intended § 7003 to give EPA interim authority to control improper disposal actions before the RCRA regulations were promulgated.⁵⁴

The court's analysis of the flimsy legislative background of § 7003 is convincing, but has several troubling flaws. The limited post hoc legislative pronouncements in favor of the broader interpretation of § 7003 seem minimal support for an extreme expansion of RCRA to inactive sites. The legislative history and passage of CERCLA indicate that Congress did not really focus on the problem of inactive and abandoned sites until after RCRA was on the books. However, in Waste Industries the court was not faced with so extreme an expansion of RCRA's scope. The parties in Waste Industries included the current owner of the land, who had leased it to Waste Industries, and the company that had run the dump until three years after passage of RCRA and after the RCRA land disposal rules were to have been promulgated, though, as the court noted, EPA had not pleaded unlawful dumping after 1976. Moreover, the section of the opinion analyzing the legislative history seems incomplete because it omits mention of the history of the 1980 amendment to § 7003.⁵⁵ In addition, the court seemed to overstate the negative evidence in the Superfund legislative history. That Congress became aware that old dump sites were a grave nationwide problem after passing RCRA does not mean that it was completely unaware of the problem before RCRA. That Congress found RCRA inadequate to deal with this massive problem does not mean that it concluded that no provision in RCRA could be used to remedy problems emanating from inactive sites.

Superfund and Other Law

After completing its analysis of RCRA, the court turned to the impact of other areas of law on the scope of § 7003. It reiterated that the imminent hazard provision is solely jurisdictional and ruled that RCRA preempts the federal common law of nuisance. The court did not dwell on the implications of RCRA's preemption of federal common law, but they seem to undercut the decision. If § 7003 is jurisdictional and federal common law of nuisance is pre-empted by RCRA, there would be no standards by which a court could apply § 7003 until EPA promulgated RCRA regulations. But the court had also argued that § 7003's primary purpose was to protect against hazardous waste pollution in the period prior to promulgation of such standards.

The court next discussed the passage of CERCLA and concluded that the new legislation demonstrated conclusively that § 7003 does not apply to old hazardous waste sites:

[T]his discussion of the Superfund legislation underscores three realizations which are at the heart of this court's decision. First, Congress recognized that, despite its comprehensive approach, a gap existed in the regulatory scheme fashioned through the RCRA. That gap involved the problems caused by inactive waste disposal sites. Second, the Superfund legislation was designed to fill that void. Third, and perhaps most importantly, the passage of Superfund without and instead of an amendment [13 ELR 10079] to section 7003 demonstrates the inapplicability of that provision to situations like the Flemington landfill.⁵⁶

Congress' ability to deal explicitly and comprehensively with the problem of inactive and abandoned sites in CERCLA convinced the court that it was error to read an intention to address such sites into a word or two in the definition of a term in a routine jurisdictional provision stuck at the end of a statute clearly aimed at another target. This reasoning has some appeal, but it should also be noted that the court could point to nothing in RCRA that directly expressed Congress' intent that CERCLA snuff out EPA's use of § 7003 against inactive or abandoned waste sites.

Retroactivity

The court concluded its opinion by noting that its decision is equitable because it prevents retroactive extension of liability, a result that would have been particularly unfair with regard to the owners of the land who had nothing to do with the waste disposal there. It acknowledged that Congress could properly apply a remedial environmental statute retroactively, but indicated that the risk of inequity argued against stretching ambiguous provisions to achieve that result.

The Significance of Waste Industries

Waste Industries was the second decision to reject the application of § 7003 of RCRA to the environmental and health threat posed by the leakage of chemicals from an existing hazardous waste dump, and it was a more significant rejection than that in Wade. The court in Wade refused to hold liable a waste generator only remotely connected with the current pollution problem. The court in Waste Industries faced a very different fact situation. The government had sued the owner and operator of a closed waste dump. The court declined to follow the decisions of several other courts, including one court of appeals, that had applied § 7003 in similar situations.

The main reason for the court's departure from the prevailing precedent was the enactment of CERCLA, an alternative weapon against pollution from old dumps. Some of the first courts to analyze § 7003 did not have this piece of the puzzle to work with. The enactment of CERCLA weakens the arguments supporting EPA's aggressive use of § 7003 by providing an imminent hazard remedy that does not have to be stretched in order to apply to inactive waste sites or to waste generators.

Whether other courts will find Waste Industries' rationale persuasive remains to be seen. The court that decided Reilly Tar held that both § 7003 of RCRA and § 106 of CERCLA are applicable to inactive sites.⁵⁷ In considering in Price II whether § 7003 applies to inactive sites, the Third Circuit argued that it unquestionably does, but apparently was not called upon to assess the issue in light of the enactment of CERCLA. Additional court of appeals interpretation of § 7003 now seems necessary to clear up the new uncertainty about the application of § 7003 to inactive sites. Such interpretation may not resolve the issue. EPA has not yet filed an appeal on Waste Industries. Such an appeal would go to the Fourth Circuit, which has a tendency to take a narrower view of the powers granted EPA by Congress than does the Third Circuit (which decided Price II and will hear EPA's appeal of Wade). If the Fourth Circuit upholds Waste Industries there will be a sharp split between it and the Third Circuit on the scope of RCRA § 7003 and a definitive interpretation would have to await Supreme Court action.

Beyond its effect on future court decisions, Waste Industries raises the question of whether EPA really needs § 7003 for inactive dumps now that it has CERCLA. The latter's powers are broader and more potent and are not subject to the uncertainty that clouds the application of § 7003. CERCLA authorizes EPA cleanup of leaking dumps and recovery of the costs from the generators of the waste and others, or EPA action to force generators and others to clean up the sites, and has its own imminent hazard authority in reserve. On the other hand, the RCRA imminent hazard provision may apply in certain situations where CERCLA does not,⁵⁸ and with a problem as complex and poorly understood as hazardous waste pollution, it may be useful to have as many remedies available as possible, even if they overlap significantly.

1. 13 ELR 20286 (E.D.N.C. Dec. 30, 1982).

2. 42 U.S.C. §§ 6901-6987, ELR STAT. 41901.

3. RCRA § 1003(4), 42 U.S.C. § 6902(4), ELR STAT. 41902.

4. RCRA § 3001, 42 U.S.C. § 6921, ELR STAT. 41908.

5. RCRA § 3002, 42 U.S.C. § 6922, ELR STAT. 41908.

6. RCRA § 3003, 42 U.S.C. § 6923, ELR STAT. 41909.

7. RCRA § 3004, 42 U.S.C. § 6924, ELR STAT. 41909.

8. RCRA § 3005, 42 U.S.C. § 6925, ELR STAT. 41909.

9. RCRA § 3006, 42 U.S.C. § 6926, ELR STAT. 41910.

10. See United States v. Waste Industires, 13 ELR at 20291.

11. RCRA § 7003, 42 U.S.C. § 6973, ELR STAT. 41922.

12. See H.R. REP. NO. 94-1491 at 69, reprinted in 1976 U.S. CODE CONG. & AD. NEWS at 6308.

13. The federal standards and permit program were to have been published in the Federal Register in April 1978. The first major component of the regulations did not appear until February 26, 1980, followed by a second set of rules three months later. See Comment, EPA Issues RCRA's 'Cradle-to-Grave' Hazardous Waste Rules, 10 ELR 10130 (1980).

14. See Bromm, EPA's New Land Disposal Standards, 12 ELR 15027 (1982).

15. HOUSE COMM. ON INTERSTATE AND FOREIGN COMMERCE, SUBCOMM. ON OVERSIGHT AND INVESTIGATIONS, HAZARDOUS WASTE DISPOSAI at 1, 47 (Comm. Print 96-IFC 31) (hereinafter cited as ECKHARDT REPORT).

16. See Comment, Hazardous Waste: EPA, Justice Invoke Emergency Authority, Common Law in Litigation Campaign Against Dump Sites, 10 ELR 10034 (1980).

17. See, e.g., summaries of complaints in ELR PEND. LIT. 65664-66 [[U.S. v. Hooker Chem. & Plastics Corp.] [[U.S. v. Hooker Chem. & Plastics Corp. (102nd St.)] [[U.S. v. Hooker Chem. & Plastics Corp. ("S" Area)] [[U.S. v. Hooker Chem. & Plastics Corp. (Hyde Park)] [[U.S. v. Solvents Recovery Service] [[U.S. v. Chem-Dyne Corp.] [[U.S. v. Occidental Chem. Corp.] [[U.S. v. St. Martins Estuary Retreats, Inc.].

18. 484 F. Supp. 138, 10 ELR 20316 (N.D. Ind. 1980).

19. Id., 10 ELR at 20318, accord, United States v. Solvents Recovery Service of New England, 496 F. Supp. 1127, 10 ELR 20796 (D. Conn. 1980).

20. See Midwest Solvent, 484 F. Supp. 138, 10 ELR 20136; Solvents Recovery Service, 496 F. Supp. 1127, 10 ELR 20796. These courts also were faced with the question of whether § 7003 was limited to interstate pollution as a result of its dependence on the federal common law of nuisance. They ruled that to so limit § 7003 was inappropriate because groundwater pollution is far more localized than air or surface water pollution, the problems at issue in earlier common law nuisance cases. See also United States v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 12 ELR 20954 (D. Minn. 1982), in which the court did not address the question of whether § 7003 is solely jurisdictional, but ruled that it is not limited to interstate pollution.

21. United States v. Diamond Shamrock Corp., 12 ELR 20819 (N.D. Ohio 1981); United States v. Price (Price I), 523 F. Supp. 1055, 11 ELR 21047 (D.N.J. 1981) (applying the imminent and substantial endangerment language as the substantive standard for § 7003).

22. See RCRA § 1004(3), 42 U.S.C. § 6903, ELR STAT. 41903:

The term "disposal" means 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.

23. 546 F. Supp. 785, 12 ELR 21051 (E.D. Pa. 1982).

24. See United States v. Price (Price II), 12 ELR 21020, 21024 (3d Cir. 1982):

There is no doubt, however, that [§ 7003] authorizes the cleanup of a site, even a dormant one, if that action is necessary to abate a present threat to the public health or the environment.

25. Diamond Shamrock, 12 ELR at 20821; Price I, 523 F. Supp. at 1071, 11 ELR at 21054; Reilly Tar, 546 F. Supp. at 1108, 12 ELR at 20956.

26. See also Solvents Recovery Service, 496 F. Supp. at 1139, 10 ELR at 20802, where the court held that even if "disposal" did not mean "leaking" from the site, § 7003 applies to current endangerment regardless of when the wastes were dumped.

27. See, e.g., Diamond Shamrock, 12 ELR at 20822:

The tangent[i]al issue of whether § 6793, as applied to antecedent acts, creates an impermissible retroactive application must be answered negatively.Section 6973 provides for injunctive relief, as opposed to compensatory or punitive relief, of conditions presently existing. To hold that remedial environmental statutes could or should not apply to conduct engaged in antecedent to the enactment of such statutes, when the effects of such conduct create a present environmental threat, would constitute an irrational judicial foreclosure of legislative attempts to rectify pre-existing and currently existing environmental abuses.

See also Price I, 523 F. Supp. at 1072, 11 ELR at 21054:

Because the gravamen of a § 7003 action is the current existence of a hazardous condition, not the past commission of any acts, we see no retroactivity problem with the statute.

28. United States v. Vertac Chemical Corp., 489 F. Supp. 870, 10 ELR 20709 (E.D. Ark. 1980). The court ordered the current owner of a disposal site to stop the flow of dioxin contaminated wastes from the site, even though a prior owner was responsible for dumping the wastes containing dioxin.

29. Price I, 523 F. Supp. 1055, 11 ELR 21047. In Reilly Tar, 546 F. Supp. at 1108, 12 ELR at 20956, the court expressed concern over application of liability to a past owner, but in light of the precedent of Price, declined to hold that past owners are outside the reach of § 7003 as a matter of law.

30. 546 F. Supp. 785, 12 ELR 21051 (E.D. Pa. 1982).

31. Price II, 12 ELR 21020 (3d Cir. 1982). The lower court had held that § 7003 authorized EPA to stop leaking from dormant sites, but not to clean up contaminated groundwater. Price I, 523 F. Supp. at 1071, 11 ELR at 21054.

32. Vertac Chemical, 10 ELR 20709. Settlements in some § 7003 cases have provided for elaborate remedial measures. See, e.g., Trilling, Painstaking Negotiation Leads to Landmark Court Order Approving Settlement Agreement in Hyde Park Hazardous Waste Cleanup Litigation, 12 ELR 15013 (1982).

33. 42 U.S.C. § 9601-9657, ELR STAT. 41941. For a description of the statute and its passage see Comment, Superfund at Square One: Promising Statutory Framework Requires Forceful Implementation, 11 ELR 10101 (1981). For a detailed legislative history of CERCLA, see SUPERFUND: A LEGISLATIVE HISTORY (Needham, Menefee eds. Envtl. Law Inst. 1982).

34. 42 U.S.C. § 9602, ELR STAT. 41944.

35. 42 U.S.C. § 9603, ELR STAT. 41944.

36. 42 U.S.C. § 9604, ELR STAT. 41945.

37. 42 U.S.C. § 9607, ELR STAT. 41947.

38. 42 U.S.C. § 9606, ELR STAT. 41947.

39. Id.

40. See, e.g., Reilly Tar, 12 ELR at 20958:

Section 106(a) is broader in scope than section 7003 of RCRA and whatever concerns the court has regarding the applicability of section 7003 to prior owners of inactive sites do not apply to section 106(a).

41. 42 U.S.C. § 6921, ELR STAT. 41908.

42. See CERCLA § 101(14), 42 U.S.C. § 9601(14), ELR STAT. 41943.

43. See Comment, EPA Proposes Court-Ordered Contingency Plan Revisions Under "Superfund"; Stresses "Flexible" Cleanup Standards, 12 ELR 10040 (1982).

44. See Rogers, The Generators' Dilemma in Superfund Cases, 12 ELR 15049 (1982).

45. 13 ELR at 20288-89. The court argued, for example, that the terms "deposit," "inject," "dump," and "place," other terms in the definition of "disposal," are more specific than "leak" and therefore control the meaning of "leak" under the interpretive principle of ejusdem generis. In fact, "leak" differs from the former terms primarily in that it connotes a passive event, not an affirmative action.

46. As the Waste Industries court noted:

The Senate Report states:

Some terms and concepts, such as persons "contributing to" disposal resulting in a substantial endangerment are meant to be more liberal than their common law counter-parts. For example, 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.

S. REP. NO. 2, 96th Cong., 2d Sess. 5, reprinted in 1980 U.S. CODE CONG. & AD. NEWS 5019, 5013.

13 ELR at 20289 n.14

47. 13 ELR at 20289 n.15

48. 13 ELR at 20290 (citing Comment, The Hazardous Waste Crisis: EPA Struggles to Implement RCRA; Amendments Needed, 9 ELR 10060, 10066 (1979), in support).

49. 13 ELR at 20290 (quoting the legislative history of the 1967 Clean Air Act).

50. 13 ELR at 20291.

51. ECKHARDT REPORT, supra note 15.

52. ECKHARDT REPORT, supra note 15, referred to § 7003 as the "only tool that it [EPA] has to remedy the effects of past disposal practices which were not sound." The court found that the report may have been trying to demonstrate the need for new legislation, not to sanction EPA's use of § 7003 in cases involving abandoned sites. 13 ELR at 20291. It dismissed a statement in the report that § 7003 applied to "events which took place sometime in the past" as indicating merely that the subcommittee thought it could be used with regard to past dumping at currently active sites. Id.

53. 13 ELR at 20291.

54. 13 ELR at 20292. The court noted that its interpretation of the logical use of § 7003 was consistent with EPA's own interpretation of the effect of the RCRA regulations. In the preamble to the regulations, the Agency noted that they do not affect disposal prior to their effective date. This creates the regulatory hiatus during which, the court reasons, § 7003 was intended to operate. In a footnote, the court observed that EPA's interpretation is due deference. It did not discuss whether the same deference was due EPA's interpretation of § 7003 at issue in the lawsuit.

55. See supra note 46. The Senate report implies that § 7003 extends to past dumping. While the court offered a refutation of that argument earlier in the opinion, it did not mention it when discussing the legislative history relevant to § 7003. As a result, its analysis of the failure of the post hoc legislative "history" to support EPA's use of § 7003 addresses only the ECKHARDT REPORT. Other courts and at least one commentator relied on the Senate report in reaching the opposite conclusion. See Price II, 12 ELR at 21024; J. QUARLES, FEDERAL REGULATION OF HAZARDOUS WASTES at 166 (1982).

56. 13 ELR at 20293.

57. 546 F. Supp. at 1110, 12 ELR at 20957.

58. See supra note 42, and accompanying text.