Reflections on Applying RCRA § 7003 to Inactive Hazardous Waste Sites

Durwood J. Zaelke, Jr.

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— The Editors

Mr. Zaelke is head of Sierra Club Legal Defense Fund's Alaska office. In 1979 he was an attorney for special projects in the office of James Moorman, Assistant Attorney General for Lands and Natural Resources, Department of Justice.

[13 ELR 10170]

I enjoyed your comment on RCRA § 7003 [RCRA's Imminent Hazard Provision and Inactive Hazardous Waste Dumps: A Reappraisal After United States v. Waste Industries, 13 ELR 10074]. Having helped design the Department of Justice's hazardous waste enforcement program around § 7003 and having contributed to the post-hoc legislative "history," I of course think the court in United States v. Waste Industries [13 ELR 20286] should have interpreted § 7003 to apply to inactive sites.

When we designed the enforcement program, we did recognize that a court might hesitate to apply § 7003 to inactive sites when RCRA's regulatory program only applied to active sites. In January 1979 I recommended changes in the proposed RCRA regulations to reflect that the regulatory program was initially being applies to active sites alone for reasons of administrative convenience (i.e., the difficulty in requiring permits for inactive or abandoned sites). I believe that the small group at EPA working on the regulations then was overwhelmed with the enormity of the task of regulating all the generators, transporters, and active sites, and rather casually stated in the regulations that RCRA did not authorize use of § 7003 against inactive sites, thinking only about ways of paring their workload down to manageable proportions.

I think that an analogy to common law nuisance and strict liability provides a credible basis for applying § 7003 to inactive sites. See, e.g., Merrick v. Murphy, 83 Misc. 2d 39, 371 N.Y.S.2d 97 (N.Y. Sup. Ct. 1975), where the court stated:

More recently, the Court of Appeals applied the doctrine of MacPherson v. Buick Motor Company, 217 N.Y. 382, 111 N.E. 1050, to parties committing affirmative acts of negligence which produce dangerous conditions on real property. Inman v. Binghamton Housing Authority, 3 N.Y.2d 137, 164 N.Y.S.2d 699, 143 N.E.2d 895. Under the rule set forth in Inman, a person who creates an inherently dangerous condition upon real property bears the same responsibility for any injuries or damage resulting therefrom as would the manufacturer of an inherently dangerous or defective chattel. Similarly, legal responsibility under these circumstances, as in the case of products liability, does not depend upon ownership or possession of the property either at the time the act of negligence or the injury occurs. (Emphasis added).

If the common law provides liability for situations similar to those of abandoned hazardous waste sites, then it is not too far fetched to argue that Congress intended the more limited remedy of abatement of imminent hazards to be available in cases involving threats to public health or the environment from inactive sites.