24 ELR 10122 | Environmental Law Reporter | copyright © 1994 | All rights reserved

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

Adam Babich

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.

[24 ELR 10122]

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.

Those involved in disputes over responsibility for environmental problems should assess all available tools. That assessment should include Resource Conservation and Recovery Act (RCRA) § 7002(a)(1)(B)'s imminent hazard authority,⁸ in addition to private cost recovery authority under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),⁹ the Oil Pollution Act,¹⁰ state statutes,¹¹ and common law.¹² To name a few of § 7002(a)(1)(B)'s advantages: It provides specifically for recovery of attorneys fees by private parties, it does not require compliance with the national contingency plan, and it authorizes courts to issue mandatory cleanup orders.¹³ The section's most glaring disadvantages are its failure to provide specifically for restitution of past response costs,¹⁴ and its failure to provide for recovery of private damages.¹⁵

This Comment begins with a general background discussion of RCRA, including a brief analysis of the terms "solid waste" and "hazardous waste." Using a question-and-answer format, it then examines the basics of RCRA imminent hazard authority.¹⁶ It concludes that, because § 7002(a)(1)(B) allows private parties to address contamination without intervention by the EPA bureaucracy, it may be one of the least complicated and most cost-effective antipollution provisions of federal law.

Background

RCRA's Complexities

RCRA -- as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA)¹⁷ -- contains a number of disparate elements. RCRA Subtitle C regulates hazardous waste¹⁸ and used oil.¹⁹ Subtitle D covers solid waste, including municipal solid waste landfills.²⁰ Subtitle I governs the underground storage tank regulatory program,²¹ and Subtitle J provides authority for a pilot program to track medical wastes.²² RCRA has been described as [24 ELR 10124] "mind numbing" and the "most complicated" environmental statute.²³

Some degree of complexity was inherent in RCRA's requirement that EPA boil everyday -- but slippery -- concepts like "waste" down to regulations capable of general application.²⁴ Similarly, it was an unavoidably complicated task for EPA to write generic regulations that contain the myriad exemptions that Congress and the Agency decided to provide for favored waste management practices and politically powerful constituents.²⁵ But what really pushed RCRA over the top, in terms of complexity, was EPA's decision to fold a host of diverse statutory and regulatory concepts into the regulations that define solid and hazardous waste for purposes of RCRA's Subtitle C regulatory program.²⁶ As a result, within the context of RCRA Subtitle C, the term "hazardous waste" is about as comprehensible as the Internal Revenue Service's term "taxable income."²⁷

Fortunately, in the context of § 7002(a)(1)(B) imminent hazard actions, most of these complications fall away once a single (albeit counterintuitive) principle is understood: Hazardous waste is defined differently for § 7002(a)(1)(B) than for most RCRA Subtitle C regulations.

RCRA's Definitions of Solid and Hazardous Waste

[] Duel Definitions. RCRA has two sets of definitions of solid and hazardous waste: Statutory definitions and regulatory (Subtitle C) definitions. To meet the regulatory definitions, and thus qualify as Subtitle C hazardous waste, a substance must first meet the statutory definitions.²⁸ EPA²⁹ and the courts have recognized, however, that far from merely limiting the scope of the regulations, the statutory definitions apply with independent force to a variety of situations, including RCRA imminent hazard actions under § 7002(a)(1)(B). The Second Circuit, for example, noted that this phenomenon adds to "an 'Alice in Wonderland' air about" RCRA,³⁰ but nonetheless held: "'solid waste' plainly means one thing in one part of RCRA and something entirely different in another part of the statute."³¹ The court stated: "We recognize the anomaly of using different definitions for the term 'solid waste'.… Yet … dual definitions … are suggested by the structure and language of RCRA."³²

[] Intertwined Definitions. Regardless of whether the statutory or regulatory set of definitions is considered, the terms "solid" and "hazardous waste" are intertwined. By statute, a substance cannot be a hazardous waste unless it is a solid waste.³³ As defined in Subtitle C, the term "solid waste" applies only to substances that also qualify as Subtitle C hazardous wastes³⁴ (which makes one wonder why EPA created complex regulatory definitions for both terms).³⁵ Under [24 ELR 10125] § 7002(a)(1)(B), however, the difference between "solid" and "hazardous" waste hardly matters because the provision applies equally to "solid or hazardous waste."³⁶

[] Determining Which Definitions Apply. It is easy to tell when the statutory, as opposed to regulatory, RCRA waste definitions apply. In RCRA § 3001, Congress instructed EPA to (1) list hazardous wastes and (2) identify characteristics of hazardous wastes that "should be subject to the provisions of this Subchapter [III, i.e., Subtitle C]."³⁷ Throughout RCRA, when Congress wished to refer to these Subtitle C wastes, e.g., in RCRA §§ 3005(a) and 3010(a),³⁸ the statute refers to "hazardous waste identified or listed under this subchapter" or uses similar language. When RCRA simply addresses "hazardous" or "solid waste," e.g., in §§ 3004(u), 7002(a)(1)(B), and 7003,³⁹ it is the statutory definitions that apply.⁴⁰

[] The Regulatory Definitions Applicable to Subtitle C. A full explanation of EPA's Subtitle C definitions of solid and hazardous waste is beyond the scope of this Comment.⁴¹ Indeed, such an explanation could fill a book.⁴² This is largely because EPA -- instead of separately implementing its goals of (1) defining waste, (2) prescribing and proscribing certain waste management practices, and (3) exempting favored practices and constituents -- tried to do all those things in the definitions.⁴³ Thus, for example, the same chemical may be defined as hazardous waste if applied to land,⁴⁴ or if trucked to a municipal treatment plant, but not if disposed of at the same treatment plant via a sewer system that also carries domestic sewage.⁴⁵ (But industrial users [24 ELR 10126] of public treatment plants must provide regulators with notice of wastes sent to the plants that would have been hazardous wastes "if otherwise disposed of.")⁴⁶ A chemical that is defined as hazardous waste when it is a discarded commercial product may not meet the definition if produced as a byproduct of an industrial process.⁴⁷ Some substances that generally meet the definition of hazardous waste are exempt when recycled (but if the recycler fails to use 75 percent of its waste every calendar year, the hazardous waste definition may spring back into effect).⁴⁸ Materials that would otherwise qualify as hazardous waste may also be exempt if produced by certain activities of the mining, oil and gas, or agriculture industries.⁴⁹

[] The Statutory Definitions Applicable to § 7002(a)(1)(B). In contrast to the complex regulatory definitions, the statutory definitions of solid and hazardous waste are about as simple as they can be.⁵⁰ "Solid waste" is discarded material that does not fall into four relatively narrow exemptions.⁵¹ (Despite its somewhat misleading name, "solid" waste can include solid, liquid, semisolid, or contained gaseous material.)⁵² "Hazardous waste" is solid waste that is potentially harmful to people or the environment.⁵³ Because § 7002(a)(1)(B) employs these stripped-down, statutory definitions, many of those who are fortunate enough to be exempt from the Subtitle C hazardous waste regulatory program (for example, the mining industry)⁵⁴ -- or [24 ELR 10127] from CERCLA liability⁵⁵ -- will find they are not immune from RCRA imminent hazard actions.

Thus, when it comes to RCRA imminent hazard authority, RCRA's hazardous waste definition is not complicated at all, although the much more narrow Subtitle C regulatory definitions provide fertile ground for red herrings.⁵⁶

[] Comparing the Definitions. The universe of substances that may give rise to liability under § 7002(a)(1)(B) -- nonexempt, potentially dangerous, discarded material -- is probably at least as large as the universe of CERCLA hazardous substances.⁵⁷ Unlike RCRA solid and hazardous waste, of course, CERCLA hazardous substances need not qualify as "discarded." On the other hand, to be a hazardous substance under CERCLA, a material must appear on a regulatory list, or exhibit specific characteristics.⁵⁸ RCRA's statutory definitions of solid and hazardous waste have no similar limitation,⁵⁹ and also have no petroleum exclusion,⁶⁰ and no limitation with respect to releases that occur solely in workplaces.⁶¹

Although not drawn to scale, Figure 1 (below) compares the overlapping reaches of the RCRA statutory, RCRA Subtitle C, and CERCLA definitions.

Figure 1: Materials subject to § 7002(a)(1)(B) (shaded area)

[See Figure in Original]

Imminent Hazard Authority Under RCRA § 7002(a)(1)(B)

What Is § 7002(a)(1)(B)?

[] It Is a Type of Citizen Enforcement Provision. Most federal environmental laws provide for citizen enforcement by "private attorneys general."⁶² Any person, i.e., an "individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State,⁶³ municipality [defined to include, inter alia, Indian tribes⁶⁴], commission, political subdivision of a State, … interstate body, … [or] department, agency, and [or] instrumentality of the United States,"⁶⁵ may bring such a suit, "on his [or her] own behalf."⁶⁶ In general, Congress intended citizen enforcement to supplement enforcement by government agencies.⁶⁷ The idea was to (1) abate pollution, (2) encourage voluntary compliance, and (3) prod government enforcers into action.⁶⁸

Federal antipollution laws generally provide for only two kinds of citizen enforcement suits: (1) suits against persons who are in violation of statutory provisions, regulations, orders, or permits and (2) suits against EPA for failing to discharge mandatory duties, e.g., failing to promulgate regulations by statutory deadlines.⁶⁹ RCRA provides these causes of action in [24 ELR 10128] § 7002(a)(1)(A) and (a)(2), respectively.⁷⁰ RCRA is unique, however, in providing for a third type of citizen enforcement suit to abate potential imminent hazards.

RCRA § 7002(a)(1)(B), except as provided in subsection § 7002(b) or (c), authorizes suit

against any person … including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment;.…⁷¹

[] RCRA § 7002(a)(1)(B) Is a Federalization of the Common Law of Public Nuisance. RCRA imminent hazard authority is a federal statutory counterpart to the common law of public nuisance. The court in Middlesex City Board of Chosen Freeholders v. New Jersey⁷² held:

The legislative history notes that the amendment was meant … to act as a codification of "common law public nuisance remedies." See S.R. Number 96-172 at p. 5, reprinted in 1980 U.S. Code Cong. and Ad. News 5019, at page 5023.

The statute, therefore, incorporates legal theories used to assess liability for creating a public nuisance and to determine the appropriate remedies utilized in common law for such terms as "imminent" and "substantial." The statute is, however, to be read more liberally in terms of determining who is contributing to the substantial endangerment.⁷³

To be entitled to relief under § 7002(a)(1)(B), a plaintiff must prove (1) the existence of "discarded material," i.e., waste, within the meaning of § 1004(27); (2) that the defendant contributes or contributed to handling,⁷⁴ storage,⁷⁵ treatment,⁷⁶ transportation, or disposal⁷⁷ of the waste; and (3) that the situation may present an eventual, significant risk to public health or the environment.⁷⁸

The only unique aspect of RCRA's imminent hazard provision is that it provides a cause of action for private and other non-EPA parties. For years, all the major federal anti-pollution laws have allowed EPA to seek court injunctions under similarly worded, residual imminent hazard provisions in addition to regulatory provisions.⁷⁹ With its 1984 amendments to RCRA, Congress simply broadened RCRA imminent hazard authority to allow "any person" to seek injunctive relief for potential endangerments. Because the language of § 7002(a)(1)(B) adopts the same standards as EPA's imminent hazard authorities, it is generally subject to the same judicial interpretation.⁸⁰ Thus, liability under § 7002(a)(1)(B) is strict,⁸¹ joint, several,⁸² and retroactive.⁸³

[24 ELR 10129]

What Is an "Imminent and Substantial Endangerment"?

In a variety of contexts, the courts have interpreted the phrase "may present an imminent and substantial endangerment" to refer to a significant, potential risk of eventual environmental harm.⁸⁴ This interpretation has carried over to § 7002(a)(1)(B) cases.⁸⁵ The court in Lincoln Properties, Ltd. v. Higgins,⁸⁶ summarized the state of the law, holding:

First, it is significant that the word "may" precedes the standard of liability: "[t]his is 'expansive language,' which is 'intended to confer upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate any risk posed by toxic wastes.'" .…

Second, "endangerment" means a threatened or potential harm and does not require proof of actual harm.… When one is endangered, harm is threatened; no actual injury need ever occur.…

Third, a finding of "imminence" does not require a showing that actual harm will occur immediately so long as the risk of threatened harm is present … even though the harm may not be realized for years. Finally, the word "substantial" [does not require quantification of the risk if there is some cause for concern that someone may be exposed to risk].… However, injunctive relief should not be granted "where the risk of harm is remote in time, completely speculative in nature, or de minimis in degree."⁸⁷

Similarly, EPA noted in guidance governing the substantially similar language of RCRA § 7003, that:

While the risk of harm must be imminent in order for EPA to act under section 7003, the harm itself need not be. For example, EPA could act if there exists a likelihood that contaminants might be introduced into a water supply which could cause damage after a period of latency.⁸⁸

Although § 7002(a)(1)(B)'s language easily applies to emergency situations, and to ongoing harm, the provision is clearly broader, operating prospectively to prevent harm from occurring.⁸⁹

What Remedies Are Available?

As is generally the case in citizen enforcement lawsuits under antipollution laws, RCRA authorizes awards of litigation costs, including attorneys fees and expert witness fees, to the substantially prevailing party.⁹⁰ RCRA § 7002(a) also empowers courts to issue injunctions

[24 ELR 10130]

to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), [or] to order such person to take such other action as may be necessary. …⁹¹

Moreover, because § 7002(a)(1)(B) authorizes relief when there "may" be an "endangerment" -- i.e., when there is the potential for a risk -- proof that there is a significant question about the degree of risk posed by a defendant's waste management practices may be sufficient to obtain an injunction requiring the defendant to resolve whether a significant risk actually exists.⁹²

Are Past Costs of Response Recoverable?

To date, the courts generally have not permitted recovery of response costs in § 7002(a)(1)(B) actions.⁹³ Whether this trend will continue, however, is open to question.⁹⁴ Federal courts have ruled that restitution of costs is an appropriate remedy under RCRA § 7003, EPA's imminent hazard provision.⁹⁵ In United States v. Price, the Third Circuit, noting that § 7003's language is "expansive," and intended to confer "overriding authority to respond to situations involving a substantial endangerment to health or to the environment," held: "the forms of relief which are 'appropriate' must be determined on a case by case basis in order to achieve the remedial purposes contemplated by the Act."⁹⁶ As a general rule -- absent express congressional instructions to the contrary -- statutes that invoke the equitable jurisdiction of the courts are presumed to empower the courts to exercise their full equitable powers, which include the power to order restitution in appropriate cases.⁹⁷ Given the current state of the case law, however, potential plaintiffs would be well-advised to ensure compliance with the national contingency plan, so that they may recover their past costs under CERCLA, while using RCRA § 7002(a)(1)(B) to obtain injunctive relief and litigation costs.

Is § 7002(a)(1)(B) Authority Limited to RCRA-Regulated "Media"?

RCRA itself is not limited to any particular media.⁹⁸ RCRA [24 ELR 10131] regulates emissions to air, water, and soil.⁹⁹ Moreover, because § 7002(a)(1)(B) uses the statutory definitions of solid and hazardous waste, the scope of the section's imminent hazard authority reaches well beyond RCRA's Subtitle C regulatory program.¹⁰⁰ Thus, EPA has recognized that RCRA's imminent hazard authority "has no media limitation" -- and may be used to address releases to land, water, or air.¹⁰¹ EPA states:

While some emergency power provisions of the six different statutes are media-specific, others are not. Media-specific statutes include the CAA (releases affecting air), the CWA (releases affecting water and adjoining shorelines).… In contrast, CERCLA and RCRA apply to releases to all media (i.e., "the environment" defined broadly).¹⁰²

This guidance, as the interpretation given a statute by the officers or agency charged with its administration, is entitled to substantial deference.¹⁰³ Additionally, the courts have allowed plaintiffs to use RCRA § 7002(a)(1)(B) to address releases to water and air, in addition to land and groundwater.¹⁰⁴

What If the Pollution at Issue Is Not Illegal, or Is Authorized by Permit?

RCRA's imminent hazard provision does not regulate or prohibit any particular conduct; instead, like CERCLA § 107, it is primarily a liability provision directed at endangerments that persist despite other environmental regulations.¹⁰⁵ Thus, no allegation of a statutory or regulatory violation is needed to support an imminent hazard lawsuit.¹⁰⁶ Recently, therefore, the Second Circuit affirmed an injunction to clean up lead shot without reaching the issue of whether discharge of the shot was a regulatory violation.¹⁰⁷ The First Circuit explained that it was rational for Congress to craft imminent hazard provisions that are broader than regulatory provisions since, at times, it may be appropriate to prevent case-specific situations that threaten harm without creating a complex regulatory program.¹⁰⁸

When an alleged endangerment stems from conduct that is the subject of a government-issued permit, the situation is more complicated. Unlike CERCLA, which exempts "federally permitted releases" from its scope,¹⁰⁹ RCRA § 7002(a)(1)(B) contains no general exemption for permitted activity. Congress did, however, expressly exempt discharges subject to Federal Water Pollution Control Act (FWPCA)¹¹⁰ permits from the definition of solid waste and, thus, from § 7002(a)(1)(B).¹¹¹ Under "the long-honored rule of statutory construction, expressio unius est exclusion alterius (the expression of one thing is the exclusion of others),"¹¹² it follows that permits issued under environmental laws other than the FWPCA do not bar § 7002(a)(1)(B) actions.

On the other hand, both the Sixth and Fourth Circuits have noted that it is unlikely that Congress intended § 7002(a)(1)(B) to offer an end-run around statutory provisions for appeal of permit decisions.¹¹³ In Greenpeace, Inc. v. Waste TechnologiesIndustries, the Sixth Circuit ordered an imminent hazard suit dismissed because EPA had specifically approved the conduct at issue in a RCRA permitting [24 ELR 10132] decision.¹¹⁴ The court noted that RCRA provides an exclusive mechanism for appealing permits¹¹⁵ and held that § 7002(a)(1)(B) does not allow collateral attacks on such decisions.¹¹⁶ In Greenpeace, however, apparently all of the plaintiff's arguments should properly have been presented to EPA as part of the permitting decision.¹¹⁷ EPA permitted the conduct at issue in Greenpeace under a regulatory scheme that had been crafted to guard against the risks complained of in the § 7002(a)(1)(B) suit.¹¹⁸ A different result would arguably have been appropriate if the permitting decision at issue failed to address the risks complained of under § 7002(a)(1)(B).

For example, a state decision, authorized by the Clean Air Act, to allow a facility to emit a certain amount of a criteria pollutant -- e.g., fine particulate matter (PM[10]) -- should not bar an imminent hazard lawsuit about a toxic pollutant not addressed by the state's decision, even if the toxic pollutant is emitted in the form of particulates.¹¹⁹ This is because the state's permitting decision presumably would be crafted to guard against violations of the PM[10] ambient air standard,¹²⁰ not against the toxic effects of the pollutant complained of under § 7002(a)(1)(B).¹²¹ If the courts wish to apply a judicially created "permit shield" to RCRA imminent hazard actions, the issue should be whether the permit addresses the risks complained of under § 7002(a)(1)(B), not whether it authorizes the challenged conduct. Analogously, even the Clean Air Act's permit shield insulates permittees only from lawsuits about statutory provisions specifically considered by the permitting entity.¹²²

Is § 7002(a)(1)(B) Good Policy?

Shortly after Congress created § 7002(a)(1)(B), Professor Jeffrey Miller, offered his opinion that the wisdom of "allow[ing] citizens to engage the courts in the uncertain and thorny issues of what constitutes an endangerment and what remedy may be appropriate" is "open to debate."¹²³ Certainly, from the perspective of the regulated community it is nerve-racking to be subject to a liability provision that is not bound by a defined set of regulations or definitions. On the other hand, the open-ended nature of provisions like [24 ELR 10133] § 7002(a)(1)(B) helps fuel private waste minimization efforts which, ultimately, may be a more effective check on pollution than traditional, command-and-control government regulation.¹²⁴

Over time, many members of the regulated community may find § 7002(a)(1)(B)'s disadvantages outweighed by the section's usefulness in shifting responsibility for environmental investigations and cleanups to more culpable parties. If a company owns property that an upgradient neighbor has contaminated or is contaminating with chemicals, options presented by other causes of action are limited. CERCLA is a fine vehicle for recovering past response costs or obtaining declaratory relief, but only if the plaintiff has complied substantially with a fairly detailed set of federal regulations (the national contingency plan),¹²⁵ and only if the chemicals at issue meet CERCLA's definition of hazardous substance.¹²⁶ More importantly, CERCLA fails to provide for injunctions for private parties, except in suits to enforce site-specific standards that are already in effect, e.g., EPA § 106 orders.¹²⁷ The Oil Pollution Act is useful only to address "incidents" that occurred after August 18, 1990, and only for oil pollutants that are exempt from CERCLA.¹²⁸ A common-law action may be attractive in theory but, in some jurisdictions, state judges lack the resources to give adequate consideration to the extensive motion practice that environmental lawyers typically use to narrow complex cases.¹²⁹ Moreover, as noted above, § 7002(a)(1)(B) allows plaintiffs to recover their attorneys fees, an advantage seldom enjoyed at common law and not necessarily provided by CERCLA.¹³⁰

As with CERCLA -- which supposedly will one day hit some poor soul with joint-and-several liability for dropping a copper penny into a landfill¹³¹ -- it is easy to imagine a hypothetical parade of horribles flowing from RCRA § 7002(a)(1)(B)'s open-ended liability scheme. If RCRA gives courts authority to "eliminate any risk"¹³² posed by toxic wastes, will smokers soon be subject to suit for fouling the air with second-hand smoke? How about using § 7002(a)(1)(B) against a class of defendants defined to include every automobile owner in Los Angeles?¹³³ With or without RCRA, however, a plaintiff willing to risk dismissal of his or her case -- or even sanctions¹³⁴ -- may sue anybody for anything at anytime.¹³⁵ Under § 7002(a)(1)(B), the scope of injunctive relief is subject to the equitable discretion of courts.¹³⁶ In many jurisdictions, the newly revised Federal Rule of Civil Procedure 26(a) will require plaintiffs to reveal their evidence of alleged potential endangerments relatively early in the lawsuit. And, prodded by able defense lawyers, federal courts can be creative in ridding their dockets of unmeritorious lawsuits.¹³⁷ Just as state courts do not appear to have a large backlog of frivolous common-law nuisance lawsuits, there is no particular reason to fear that federal courts will entertain frivolous litigation under § 7002(a)(1)(B).

What Are the Mechanics?

Generally, § 7002(a)(1)(B) plaintiffs must wait to file suit at least 90 days after providing notice of their intent to sue to the potential defendant, EPA, and the applicable state.¹³⁸ [24 ELR 10134] When, however, the alleged imminent hazard involves violation of RCRA's Subtitle C regulatory program, citizens may file immediately after providing notice.¹³⁹ Notice is effective upon receipt and, for some reason, EPA regulations require plaintiffs to deliver notice by hand or use registered (as opposed to certified) mail.¹⁴⁰ Arguably, by analogy to Gwaltney of Smithfield Ltd. v. Chesapeake Bay Foundation, Inc.,¹⁴¹ plaintiffs must allege a continuing endangerment.¹⁴² It is clear, however, that the suit can be based on "past or present" conduct on the part of the defendant.¹⁴³

RCRA does not allow § 7002(a)(1)(B) suits if EPA or the state is addressing the alleged endangerment by diligently prosecuting a RCRA or CERCLA imminent hazard action, actually engaging in a CERCLA removal action, or diligently proceeding with CERCLA remedial action.¹⁴⁴ Section § 7002(a)(1)(B) suits are also precluded if a responsible party is diligently conducting removal or remedial action to address the endangerment pursuant to an EPA order, or a court order issued at EPA's request.¹⁴⁵ The five-year statute of limitations of 28 U.S.C. § 2462 probably applies to citizen RCRA imminent hazard actions.¹⁴⁶ When filing RCRA imminent hazard suits, plaintiffs must serve the U.S. Attorney General and EPA.¹⁴⁷ And, as is always [24 ELR 10135] the case, plaintiffs must allege and prove their standing to sue.¹⁴⁸ Additionally, issues involving the abstention doctrines and primary jurisdiction may arise.¹⁴⁹

With respect to RCRA § 7002(a)(1)(A) citizen suits concerning violations of the Subtitle C regulatory program, there is a controversy about whether RCRA § 3006(a) -- which allows EPA-authorized states to regulate hazardous waste "in lieu of" the EPA Subtitle C program¹⁵⁰ -- precludes suits about violations of authorized state programs.¹⁵¹ That controversy should not extend to § 7002(a)(1)(B), however, because RCRA's imminent hazard authority is not part of Subtitle C.¹⁵² Indeed, § 7002(a)(1)(B) lawsuits probably can be filed directly in state court, since the provision does not appear to provide for exclusive federal jurisdiction.¹⁵³ When considering RCRA imminent hazard suits, federal courts also have authority to address state-law claims that "form part of the same case or controversy" under the supplemental jurisdiction provided by 28 U.S.C. § 1367.¹⁵⁴ Thus, it may be practical to use § 7002(a)(1)(B) in conjunction with more traditional toxic tort claims.

Conclusion

Unless you represent a government agency like EPA, the U.S. legal system provides no foolproof causes of action.¹⁵⁵ Although § 7002(a)(1)(B)'s "may present an imminent and substantial endangerment" standard may sound easy to [24 ELR 10136] meet, plaintiffs still must convince judges to use discretionary, equitable powers -- a task that usually involves extensive preparation and discovery, and expensive expert testimony. Nonetheless, RCRA's imminent hazard authority provides a workable tool to obtain settlements and orders that abate environmental endangerments before they reduce property values, become emergencies, or attract government response actions or enforcement. Moreover, as lawyers and courts become more familiar with the cause of action, outcomes will become more predictable and cases will be easier to value. The result should be increased settlements and decreased transaction costs.

The strict, joint, several, and retroactive nature of liability under § 7002(a)(1)(B) is remarkably similar to liability under CERCLA. Thus, like CERCLA, § 7002(a)(1)(B) raises the stakes for releases of potentially dangerous pollution, encouraging waste minimization efforts that go beyond bare-minimum compliance with environmental regulations.¹⁵⁶ Unlike CERCLA, however, § 7002(a)(1)(B) is not tied to a potentially wasteful government cleanup program. Indeed, because it allows the private sector to address pollution problems without the need for intervention by the EPA bureaucracy, RCRA's citizen imminent hazard authority may be one of Congress' least complicated, most cost-effective environmental protection initiatives.

1. Private-party cost recovery and contribution litigation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9607(a), 9613(f), ELR STAT. CERCLA §§ 107(a), 113(f) has soared in recent years, as has litigation between insurers and insurance companies. See, e.g., Louisiana-Pacific Corp. v. ASARCO, Inc., 6F.3d1332, amended, 1994 WL 7125 (9th Cir. Jan. 13, 1994), 23 ELR 21504 (9th Cir. 1993) (private cost recovery); Environmental Transp. Servs., Inc. v. ENSCO, Inc., 969 F.2d 503, 506-09, 22 ELR 21361, 21362-63 (7th Cir. 1992) (and cases cited therein) (contribution); City & County of Denver v. Coors, 829 F. Supp. 340, 24 ELR 20112 (D. Colo. 1993) (same); Aetna Casualty & Sur. Co. v. General Dynamics Corp., 968 F.2d 707, 23 ELR 20055 (8th Cir. 1992) (insurance); Maryland Casualty Co. v. Wausau Chem. Co., 809 F. Supp. 680, 23 ELR 21395 (W.D. Wis. 1992) (same).

2. See FRANK FRIEDMAN, PRACTICAL GUIDE TO ENVIRONMENTAL MANAGEMENT 21 (5th ed. 1993) (noting that "… the way some laws and regulations are structured, … we cannot be confident that we have achieved compliance before going beyond compliance").

3. See Adam Babich, Understanding the New Era in Environmental Law, 41 S.C. L. REV. 733, 759-60 & n.118 (1990) (arguing that responsible parties who achieve a cleanup before EPA focuses on a site may save millions of dollars). Once EPA begins a remedial investigation and feasibility study under CERCLA, however, voluntary response action by responsible parties requires EPA authorization. 42 U.S.C. § 9622(e)(6), ELR STAT. CERCLA § 122(e)(6).

4. There are, of course, limits to a party's ability to maintain conflicting positions -- especially conflicting factual positions. "[P]rejudice to the administration of justice and hence to society … would result if a litigant were allowed to obtain an advantage for himself, or attempt to do so, by willfully swearing one thing one time, and obtain another advantage, or attempt to do so, by willfully swearing precisely the opposite another time, with no explanation of the inconsistency and with the possibility of prevailing in both instances." Melton v. Anderson, 222 S.W.2d 666, 669 (Tenn. App. 1948); see also Stevens Technical Servs., Inc. v. SS Brooklyn, 885 F.2d 584, 588 (9th Cir. 1989) (holding that allowing parties to swear at their whim to inconsistent statements would destroy the integrity of the judicial system). This requirement of honesty is reflected in the common law doctrine of "judicial estoppel," also known as "estoppel by pleading." See Otte v. Pierce, 142 P.2d 280, 282 (Colo. 1943); Amfac Mechanical Supply Co. v. Federer, 645 P.2d 73, 79 (Wyo. 1982) ("The courts willnot allow parties to blow hot and cold in the same breath and in separate judicial proceedings, a party will not be allowed to maintain inconsistent positions."); In re Kessel, 108 B.R. 281, 283 (Bankr. D. Colo. 1989) (interpreting Colorado law to dispense with the common-law requirement for a showing of prejudice); Bendix-Westinghouse Automotive Air Brake Co. v Latrobe Die Casting Co., 427 F. Supp. 34, 38 (D. Colo. 1976) (party may be bound by former pleadings even against a stranger to the initial suit).

5. Cf. KARL VON CLAUSEWITZ, VOM KRIEGE 888 (memorial ed. 1952).

6. The term "cleanup" can be misleading in this context. Given current technologies, many -- perhaps most -- sites involving contaminated groundwater cannot be restored to pristine condition. See, e.g., J. A. Cherry et al., Developing Rational Goals for In Situ Remedial Technologies, Abstract at 3 (Board on Radioactive Waste Management, Workshop on Critical Issues in Environmental Restoration, Woods Hold Study Center, Woods Hole, MA, July 20-24, 1992) ("Remediation directed at the goal of full aquifer restoration should be identified clearly as experimentation rather than actual remediation"); Randy M. Mott, Aquifer Restoration Under CERCLA: New Realities and Old Myths, 23 Env't Rep. (BNA) 1301 (Aug. 28, 1992).

Cleanup, as used inthis Comment, means "remediate, control, or otherwise address."

7. See infra notes 91-92 and accompanying text.

8. 42 U.S.C. § 6972(a)(1)(B), ELR STAT. RCRA § 7002(a)(1)(B).

9. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

10. 33 U.S.C. §§ 2701-2761, ELR STAT. OPA §§ 1001-7001.

11. See, e.g., City of Toledo v. Beazer Materials & Servs., Inc., 833 F. Supp. 646, 658 (N.D. Ohio 1993); Pantry, Inc. v. Stop-N-Go Foods, Inc., 796 F. Supp. 1171, 1178-79, 23 ELR 20250, 20253-54 (S.D. Ind. 1992).

12. See, e.g., Mangini v. Aerojet-General Corp., 281 Cal. Rptr. 827, 21 ELR 21429 (Cal. App. 1991) (landowners may maintain jan action for continuing trespass and nuisance against parties who allegedly contaminated property). Possessors of property (owners and operators) have long had a common-law duty to abate "artificial conditions" that cause ongoing nuisances regardless of fault. RESTATEMENT (SECOND) OF TORTS § 839 (1979). Similarly -- even before CERCLA -- generators and transporters risked strictliability for activities that common-law courts might deem "abnormally dangerous." Id. § 519-20.

13. See infra notes 91-92 and accompanying text.

14. See infra notes 93-97 and accompanying text.

15. Compare 42 U.S.C. § 6972(a), (e), ELR STAT. RCRA § 7002 (a), (e) (courts may issue injunctions and award litigation costs and attorneys fees) with 33 U.S.C. § 2702(b)(2)(B), (E), ELR STAT. OPA § 1002(b)(2)(B), (E) (authorizing awards of, inter alia, "[d]amages for injury to … real or personal property, which shall be recoverable by a claimant who owns or leases that property" and "[d]amages equal to the loss of profits … due to the injury … of real property, personal property, or natural resources, which shall be recoverable by any claimant." See KEVIN M. WARD & JOHN W. DUFFIELD, NATURAL RESOURCE DAMAGES: LAW AND ECONOMICS 120-21 (1992).

16. RCRA imminent hazard law is evolving quickly. In 1993, ELR published many more § 7002(a)(1)(B) cases than in 1992. In 1992, ELR published more such cases than in 1991.

17. Pub. L. No. 98-616, 98 Stat. 3221 (1984).

18. 42 U.S.C. §§ 6921-6939e, ELR STAT. RCRA §§ 3001-3023. See E. Donald Elliott & E. Michael Thomas, Chemicals, in SUSTAINABLE ENVTL. L. 1309-20 (Celia Campbell-Mohn et al. eds. 1993) (providing a succinct description of RCRA Subtitle C). See also RIDGWAY M. HALL JR. ET AL., RCRA HAZARDOUS WASTES HANDBOOK (9th ed. 1991) (describing Subtitle C).

19. 42 U.S.C. § 6935, ELR STAT. RCRA § 3014.

20. Id. §§ 6941-6949a, ELR STAT. RCRA §§ 4001-4010. Although municipal solid waste landfills (MSWLFs) are much less stringently regulated than most hazardous waste facilities, "data available to [EPA] … do not provide strong support for distinguishing the health and environmental threats posed by MSWLFs and Subtitle C facilities." Solid Waste Disposal Criteria, 56 Fed. Reg. 50978, 50982 (Oct. 9, 1991).

21. Id. §§ 6991-6991i, ELR STAT. RCRA §§ 9001-9010. See Laura J. Nagle, RCRA Subtitle I: The Federal Underground Storage Tank Program, 24 ELR 10057 (Feb. 1994).

22. 42 U.S.C. §§ 6992-6992k, ELR STAT. RCRA §§ 11001-11012.

23. See Randolph L. Hill, An Overview of RCRA: The "Mind-Numbing" Provisions of the Most Complicated Environmental Statute, 21 ELR 10254 (May 1991). See also Greenpeace, Inc. v. Waste Technologies Indus., 9 F.3d 1174, 1179, 24 ELR 20103, 20106 (6th Cir. 1993), quoting 4 WILLIAM H. RODGERS JR., ENVTL. L. § 7.13, 113 (1992) ("[t]he EPA's graphic on the RCRA permitting process looks something like the organizational chart of the Prussian army, with no less than twenty-six notable loci of decision").

24. See 42 U.S.C. § 6921(b), ELR STAT. RCRA § 3001(b) (mandating that EPA define hazardous waste). In 1987, the D.C. Circuit concluded that RCRA's definition of waste was really quite simple, hinging on the "ordinary, everyday sense" of the term "discarded." American Mining Congress v. U.S. Environmental Protection Agency, 824 F.2d 1177, 1190, 17 ELR 21064, 21071 (D.C. Cir. 1987) (AMC I). The court, however, noted that used oil that is collected and recycled by a reclaimer is "discarded" solid waste under this "everyday reading" of the term, leading one to wonder exactly what the court meant by "everyday." AMC I, 824 F.2d at 1187 n.14, 17 ELR at 21069 n.14. By 1990, the D.C. Circuit had pulled back, describing AMC I as a case that "concerned only materials that are 'destined for immediate reuse in another phase of the industry's ongoing production process." American Mining Congress v. U.S. Environmental Protection Agency, 907 F.2d 1179, 1186, 20 ELR 21415, 21417-18 (D.C. Cir. 1990) (AMC II) (emphasis added); accord Sierra Club v. U.S. Dep't of Energy (DOE), 734 F. Supp. 946, 949, 20 ELR 21044, 21046 (D. Colo 1990). The courts appear to have adopted a more workable -- but also more slippery -- test for determining whether a substance is solid waste: Is it "part of the waste disposal problem" that Congress intended to address in RCRA? AMC II, 907 F.2d at 1186, 20 ELR at 21418; Sierra Club v. DOE, 734 F. Supp. at 949, 20 ELR at 21046; Connecticut Coastal Fishermen's Ass'n v. Remington Arms Co., 989 F.2d 1305, 1316, 23 ELR 20699, 20705 (2d Cir. 1993); see also United States v. ILCO, Inc., 996 F.2d 1126, 1132, 23 ELR 21437, 21439-40 (11th Cir. 1993) (holding that lead parts reclaimed from spent vehicle batteries are Subtitle C hazardous waste); Shell Oil v. U.S. Environmental Protection Agency, 950 F.2d 741, 756, 22 ELR 20305, 20312 (D.C. Cir. 1991) ("EPA acted reasonably in incorporating resource recovery within the regulatory definition of treatment"); Zands v. Nelson, 779 F. Supp. 1254, 1262, 22 ELR 20757, 20760 (S.D. Cal. 1991) (once gasoline, a useful product, leaks from a tank and contaminates soil, it becomes solid waste).

25. See, e.g., 42 U.S.C. § 6903(27), ELR STAT. RCRA § 1004(27) (exempting, inter alia, "solid or dissolved materials in irrigation return flows" and "source, special nuclear, or byproduct material," i.e., radioactive waste); 40 C.F.R. § 261.4(a), (b) (1993) (exempting certain mining wastes, pulping liquors, spent sulfuric acid, spent wood preserving solutions, household waste, waste from coal combustion, wastes associated with oil exploration, development, or production, cement kiln dust waste, etc.)

26. The regulations are codified at 40 C.F.R. pt. 261 (1993). Examples of the diverse concepts that EPA folded into its definitions of hazardous and solid waste are discussed below. See infra notes 44-49 and accompanying text.

27. See Internal Revenue Service, Form 1040, line 37 (1993).

28. AMC II, 907 F.2d at 1185, 20 ELR at 21417.

29. See infra notes 39-40.

30. Connecticut Coastal Fishermen's Ass'n v. Remington Arms Co., 989 F.2d 1305, 1308, 23 ELR 20699, 20700 (2d Cir. 1993). Inspired by RCRA to create literature, rather than mere law, the court went on to quote Humpty Dumpty: "When I use a word … it means just what I choose it to mean.…" Id. (emphasis in original).

31. Id.

32. Id. at 1315, 23 ELR at 20704. Another court noted: "RCRA has statutory and regulatory definitions of 'hazardous waste.' The broad statutory definition, 42 U.S.C. § 6903(5), primarily governs actions to abate imminent and substantial risks to the public and environment. See, e.g., 42 U.S.C. § 6973." Sierra Club v. DOE, 734 F. Supp. 946, 948, 20 ELR 21044, 21045 (D. Colo. 1990).

33. See infra note 53.

34. 40 C.F.R. § 261.1(b)(1) (1993).

35. In an action involving application of RCRA's mixture rule, 40 C.F.R. § 261.3(a)(2) (iii), (iv) (1993) (a solid waste, mixed with a listed Subtitle C hazardous waste, generally is a Subtitle C hazardous waste), the author once found it necessary to rebut the following creative, albeit circular, argument: A waste cannot qualify as "solid waste" unless it is hazardous waste and, thus, the mixture rule applies only to hazardous waste mixed with other hazardous wastes. See The Hazardous Materials and Waste Management Division's Reply Memorandum in Support of Its Second Motion for Partial Summary Judgment, In re Compliance Order No. 86-12-5-1, (No. HE 87-01) (Colo. Dept. of Health, filed Mar. 11, 1987). All EPA was trying to say in § 261.1(b)(1), of course, is that the Subtitle C's definition of solid waste has no relevance apart from its application to the Subtitle C's hazardous waste regulatory program. But RCRA is full of such twists, which can be a significant source of confusion for courts and juries. In the context of civil government enforcement, such confusion can be easily resolved by deference to the reasonable interpretations of government regulators, who are presumed to understand their own regulations. See, e.g., Comite Pro Rescate De La Salud v. Puerto Rico Aqueduct & Sewer Auth., 888 F.2d 180, 186, 20 ELR 20211, 20215 (1st Cir. 1989), cert. denied, 494 U.S. 1029 (1990) (and cases cited therein). In civil suits by nongovernmental parties and in the context of criminal enforcement, however, such presumptions may be unavailable.

36. 42 U.S.C. § 6972(a)(1)(B); ELR STAT. RCRA § 7002(a)(1)(B) (emphasis added). If a particular solid waste posed no danger to the public or environment (and thus failed to meet the statutory definition of hazardous waste) it could probably never be actionable under § 7002, because it would have no potential to endanger the public or environment. Section 7002's applicability to hazardous "or" solid waste, however, helps keep courts from getting sidetracked by the exemptions and other complexities of the Subtitle C definition of hazardous waste. See, e.g., Dominick's Finer Foods, Inc. v. Amoco Oil Co., No. 93 C 4210, 1993 WL 524808 (N.D. Ill. Dec. 15, 1993) ("Defendants argue that petroleum is not a hazardous waste. That, however, is irrelevant to whether plaintiff may proceed with the present [RCRA § 7002(a)(1)(B)] action. The RCRA permits citizen suits concerning disposal of 'any solid or hazardous waste.'").

37. 42 U.S.C. § 6921(a), ELR STAT. RCRA § 3001(a). EPA complied with the former instruction in 40 C.F.R. pt. 261, subpt. D (1993), and the latter in 40 C.F.R. pt. 261, subpt. C (1993).

38. 42 U.S.C. §§ 6925(a), 6930(a), ELR STAT. RCRA §§ 3005(a), 3010(a).

39. Id. §§ 6924(u), 6972(a)(1)(B), 6973, ELR STAT. RCRA §§ 3004(u), 7002(a)(1)(B), 7003. In proposing corrective action regulations, EPA noted:

The Agency believes that use of the term "hazardous waste" denotes "hazardous waste" as defined in section 1004(5) of RCRA [42 U.S.C. § 6903(5)].… The term "hazardous waste" is distinguished from the phrase "hazardous waste listed and identified" which is used elsewhere in the statute to denote that subset of hazardous wastes specifically listed and identified by the Agency pursuant to section 3001 of RCRA.

Proposed Rule: Corrective Action for Solid Waste Management Units (SWMUs) at Hazardous Waste Management Facilities, 55 Fed. Reg. 30798, 30809 (July 27, 1990).

40. 55 Fed. Reg. at 33090 ("Congress did not confine the operations of sections 3007 and 7003 to 'hazardous wastes identified or listed under this subtitle'"); see also Connecticut Coastal Fishermen's Ass'n v. Remington Arms Co., 989 F.2d 1305, 1315, 23 ELR 20699, 20704 (2d Cir. 1993); Comite Pro Rescate De La Salud v. Puerto Rico Aqueduct & Sewer Auth., 888 F.2d 180, 187, 20 ELR 20211, 20215 (1st Cir. 1989), cert. denied, 494 U.S. 1029 (1990) (holding that same definitions apply to both §§ 7002(a)(1)(B) and 7003).

When promulgating its regulatory definitions of "hazardous" and "solid" wastes (at 40 C.F.R. pt. 261), EPA explained:

Although this section [purpose, scope, and applicability of the definitions] is largely self-explanatory, two points regarding the function of EPA's Section 3001 [42 U.S.C. § 6921, ELR STAT. RCRA § 3001] regulation, which were apparently a source of misunderstanding during the comment period, are deserving of special attention.

First, the purpose of this regulation is to identify those wastes which, because of the hazards they may pose … should be subject to appropriate management requirements under Subtitle C.…

Second, although this regulation limits what may be regulated as a "hazardous waste" under Sections 3002 through 3005 and 3010 of RCRA [42 U.S.C. §§ 6922-6925, 6930, ELR STAT. RCRA §§ 3002-3005, 3010], it does not limit those materials which may be considered "hazardous wastes" under other sections of the statute, particularly Section 3007 [42 U.S.C. § 6927, ELR STAT. RCRA § 3007] (which authorizes EPA to obtain information on "hazardous waste" in order to develop regulations or enforce RCRA) and Section 7003 [42 U.S.C. § 6973, ELR STAT. RCRA § 7003] (which authorizes the Agency to institute civil actions to abate imminent and substantial hazards caused by "hazardous wastes"). Unlike Sections 3002 though 3004 and Section 3010, Congress did not confine the operations of sections 3007 and 7003 to "hazardous wastes identified or listed under this subtitle" (emphasis added). To avoid future confusion on this point, EPA has stated it explicitly in § 261.1(b).

Hazardous Waste Management System: Identification and Listing of Hazardous Wastes, 45 Fed. Reg. 33084, 33090 (May 19, 1980) (emphasis in original).

The Subtitle C regulations state:

This part [261, which defines Subtitle C solid and hazardous waste] identifies only some of the materials which are solid wastes and hazardous wastes under sections 3007, 3013, and 7003 of RCRA. A material which is not defined as a solid waste in this part, or is not a hazardous waste identified or listed in this part, is still a solid and a hazardous waste for purposes of these sections if:

(ii) In the case of section 7003, the statutory elements are established.

40 C.F.R. § 261(b)(2) (1993).

41. The following discussion is intended to illustrate the complexities of the Subtitle C's definition.

42. See TRAVIS P. WAGNER, HAZARDOUS WASTE IDENTIFICATION AND CLASSIFICATION MANUAL (1990).

43. Of course, in addition to the important exemptions in EPA's definitions of solid and hazardous waste, exemptions, prescriptions, and proscriptions are found in other RCRA regulations. See, e.g., 40 C.F.R. § 270.1(c)(2), (3) (1993) (listing a number of exclusions); Id. § 262.70 (farmers disposing of pesticide residues on their own farms); Id. § 261.5 (conditionally exempt small quantity generators; Id. §§ 265.1(c)(9), 264.1(g)(5) (exempting owners and operators of totally enclosed treatment facilities, as defined by the regulations); Id. pts. 262 (standards applicable to generators), 263 (transporters), 264 (permitted treatment, storage, and disposal (TSD) facilities), 265 (interim status TSD facilities), 266 (recycled/reused materials), 268 (land disposal restrictions), 270 (permit program).

44. Id. § 261.2(c)(1)(i)(A).

45. Id. § 261.4(a)(1)(ii). When promulgating regulations under 42 U.S.C. § 6939(b), ELR STAT. RCRA § 3018(b), to improve control of toxic wastes introduced into publicly owned treatment works (POTWs), EPA asserted that an "exclusion established by Congress in Section 1004(27) of [RCRA] provides that solid or dissolved material in domestic sewage is not solid waste.… A corollary is that such material cannot be considered a hazardous waste.…" Further:

The exclusion … covers industrial wastes discharged to POTW sewers containing domestic sewage, even if these wastes would be considered hazardous if disposed of by other means.

One effect of the exclusion is that industrial facilities which generate hazardous wastes and discharge such wastes to sewers containing domestic sewage are not subject to RCRA manifest requirements.…

Another effect of the Domestic Sewage Exclusion is that POTWs receiving mixtures of hazardous waste and domestic sewage through the sewer system are not deemed to have received hazardous wastes. Therefore, such POTWs are not required to meet the RCRA requirements … for treating, storing, and disposing of these wastes. However, hazardous wastes delivered directly to a POTW by truck, rail, or dedicated pipe are not covered by the Domestic Sewage Exclusion. … POTWs receiving these wastes are subject to regulation under the RCRA permit-by-rule (see 40 CFR 270.60(c)).

EPA Administered Permit Programs; the National Pollutant Discharge Elimination System; General Pretreatment Regulations for Existing and New Sources; Regulations To Enhance Control of Toxic Pollutant and Hazardous Waste Discharges to Publicly Owned Treatment Works, 54 Fed. Reg. 30082-83 (July 24, 1990).

Thus, the very same waste, disposed of at the very same facility, may meet the definition of hazardous waste or not, depending on whether it travels by truck, in a sewer that also carries domestic sewage, or in a sewer that does not also carry domestic sewage. To the best of the author's knowledge, these distinctions do not relate in any particular way to the degree of risk the waste poses to the public or the environment.

EPA was incorrect to credit Congress with mandating the exclusion's broad scope. Id. at 30082. Congress' definition of solid waste excludes "solid or dissolved materials in domestic sewage." See infra note 51. EPA chose to broaden the exclusion to "[d]omestic sewage" and "[a]ny mixture of domestic sewage and other wastes that passes through a sewer system.…" 40 C.F.R. § 261.4(a)(1)(i), (ii) (1993). See Comite Pro Rescate de la Salud v. Puerto Rico Aqueduct & Sewer Auth., 888 F.2d 180, 188, 20 ELR 20211, 20215 (1st Cir. 1989), cert. denied, 494 U.S. 1029 (1990) (noting that the phrase "in domestic sewage" allows considerable room for interpretation).

46. 40 C.F.R. § 403.12(p)(1) (1993) ("The Industrial User shall notify the POTW, … EPA …, and State … in writing of any discharge into the POTW of a substance, which, if otherwise disposed of, would be hazardous waste.…").

47. 40 C.F.R. § 261.33(d) (1993) (comment). See RICHARD C. FORTUNA & DAVID J. LENNETT, HAZARDOUS WASTE REGULATION: THE NEW ERA 32-35 (1986).

48. 40 C.F.R. § 261.2(e)(1) (1993) (recycling exemption); id. §§ 261.1(c)(8), 261.2(e)(2)(iii) (1993) (speculative accumulation); id. § 260.31(a) (providing for a variance from the 75 percent rule). See United States v. Self, 2 F.3d 1071, 23 ELR 21301 (10th Cir. 1993) (reversing the conviction of a defendant for instructing an employee to state falsely on a hazardous waste manifest that an interim status treatment facility had received the waste at issue -- natural gas condensate, which under a 1985 EPA policy was not waste if burned for energy recovery at the time of the conduct at issue -- because by causing the waste to be blended with gasoline, and sold to the public as automotive fuel, the defendant took the waste out of the definition of hazardous waste).

49. 40 C.F.R. § 261.4(b)(2), (3), (5), (7) (1993).

50. The exception is when there is a genuine dispute about whether the substance at issue qualifies as "discarded material." Under recent case law, the room for such genuine disputes is dwindling. See supra note 24.

51. "Solid waste" is

any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include [1] solid or dissolved material in domestic sewage, or [2] solid or dissolved materials in irrigation return flows or [3] industrial discharges which are point sources subject to permits under section 1342 of title 33, or [4] source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923) (42 U.S.C. 2011 et seq.).

42 U.S.C. § 6903(27), ELR STAT. RCRA § 1004(27) (emphasis added). The phrase "including … contained gaseous material.…" does not necessarily limit the definition. See, e.g., American Sur. Co. v. Marotta, 287 U.S. 513, 517 (1933) ("In definitive provisions of statutes and other writings, 'include' is frequently, if not generally, used as a word of extension or enlargement rather than as one of limitation or enumeration.").

52. 42 U.S.C. § 6903(27), ELR STAT. RCRA § 1004(27).

53. RCRA defines hazardous waste as:

[A] solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may--

(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or

(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed.

Id. § 6903(5), ELR STAT. RCRA § 1004(5) (emphasis added). In other words, "hazardous waste" is "solid waste" that is potentially dangerous.

54. Thus, when a district court (in United States v. Iron Mountain Mines, Inc., 812 F. Supp. 1528, 23 ELR 20651 (E.D. Cal. 1992), vacated, 812 F. Supp. 1554, 23 ELR 20661 (E.D. Cal. 1993)) held that mining wastes were exempt from CERCLA, EPA simply issued a RCRA imminent hazard order to address the wastes under 42 U.S.C. § 6973, ELR STAT. RCRA § 7003. See Iron Mountain Cleanup Ordered Under RCRA After Court Decides Mining Wastes Exempt, 24 Env't Rep. (BNA) 184 (May 28, 1993). (Later, following the ruling in Louisiana-Pacific Corp. v. ASARCO, Inc., 6 F.3d 1332, 23 ELR 21504 (9th Cir. 1993), the district court vacated its earlier order and held that mining wastes excluded from RCRA Subtitle C regulation are not excluded from CERCLA.)

55. See, e.g., Dominick's Finer Foods, Inc. v. Amoco Oil Co., No. 93 C 4210, 1993 WL 524808 (N.D. Ill. Dec. 15, 1993) (holding that "[d]efendants' reliance on any petroleum exclusion is … misplaced … [because] [t]he petroleum exclusion is part of [CERCLA], not RCRA."); see also infra note 60.

56. See supra note 36.

57. 42 U.S.C. § 9601(14), ELR STAT. CERCLA § 101(14). See United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1378, 19 ELR 21038, 21040 (8th Cir. 1989) ("CERCLA's sweep, while broad, is more limited than RCRA's in terms of the substances it covers.").

58. 40 C.F.R. § 302.4 (1993).

59. See supra notes 51 and 53 and accompanying text.

60. Zands v. Nelson, 779 F. Supp. 1254, 1263 & n.6, 22 ELR 20757, 20760-61 & n.6 (S.D. Cal. 1991) (§ 7002(a)(1)(B) claims may be based on leakage of petroleum); see 42 U.S.C. § 9601(14), ELR STAT. CERCLA § 101(14) (containing CERCLA's exclusion for "petroleum, including crude oil or any fraction thereof.…").

61. Id. § 9601(22)(A), ELR STAT. CERCLA § 101(22)(A) (excluding from CERCLA's definition of "release" "any release which results in exposure to persons solely within a workplace.…").

62. See, e.g., Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 14 n.23, 11 ELR 20684, 20687 n.23 (1981) (describing plaintiffs in environmental citizen suits as "private attorneys general"); cf. Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 478 U.S. 546, 560, 16 ELR 20801, 20805 (1986) (noting that Congress "urged the courts to 'recognize that in bringing legitimate actions under the [Clean Air Act citizen enforcement provision] citizens would be performing a public service").

63. See United States v. Colorado, 990 F.2d 1565, 1578, 23 ELR 20800, 20805 (10th Cir. 1993), cert. denied, 62 U.S.L.W. 3378 (Jan. 24, 1994) (noting that states may enforce RCRA in federal court by relying on RCRA's citizen enforcement provision); Utah State Dep't of Health v. Ng, 649 F. Supp. 1102, 1107, 17 ELR 20496, 20498 (D. Utah 1986) (allowing Utah's Department of Health to bring a citizen suit under § 7002).

64. 42 U.S.C. § 6903(13), ELR STAT. RCRA § 1004(13); see Blue Legs v. U.S. Bureau of Indian Affairs, 867 F.2d 1094, 1097, 19 ELR 20717, 20718 (8th Cir. 1989).

65. 42 U.S.C. § 6903(15), ELR STAT. RCRA § 1004(15).

66. Id. § 6972(a), ELR STAT. RCRA § 7002(a). The suit need not be inspired by environmentally pure motives. Acme Printing Ink Co. v. Menard, Inc., 812 F. Supp. 1498, 1510, 23 ELR 21061, 21065 (E.D. Wis. 1992).

67. See Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 478 U.S. 546, 560, 16 ELR 20801, 20805 (1986); Gwaltney of Smithfield Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60, 18 ELR 20142, 20145 (1987).

68. See Greenpeace, Inc. v. Waste Technologies Indus., 9 F.3d 1174, 1179 n.2, 24 ELR 20103, 20105 n.2 (6th Cir. 1993), citing H.R. REP. NO. 198, 98th Cong., 2d Sess., pt. 1, at 53 (1984), reprinted in 1984 U.S.C.C.A.N. 5576, 5612. ("Congress believed that by giving citizens themselves the power to enforce these provisions by suing violators directly, they could speed compliance with environmental laws, as well as put pressure upon a government that was unable or unwilling to enforce such laws itself"); Baughman v. Bradford Coal Co., 592 F.2d 215, 218, 9 ELR 20147, 20148 (3d Cir.), cert. denied, 441 U.S. 961 (1979); see generally Adam Babich & Kent E. Hanson, Opportunities for Environmental Enforcement and Cost Recovery by Local Governments and Citizen Organizations, 18 ELR 10165 (May 1988).

69. See, e.g., 33 U.S.C. § 1365(a); ELR STAT. FWPCA § 505(a); 42 U.S.C. § 7604(a), ELR STAT. CAA § 304(a); 42 U.S.C. § 11046, ELR STAT. EPCRA § 326; 42 U.S.C. § 9659, ELR STAT. CERCLA § 310; 42 U.S.C. § 300j-8, ELR STAT. SDWA § 1449.

70. 42 U.S.C. § 6972(a)(1)(A), (a)(2), ELR STAT. RCRA § 7002(a)(1)(A), (a)(2).

71. 42 U.S.C. § 6972(a)(1)(B), ELR STAT. RCRA § 7002(a)(1)(B) (emphasis added).

72. 645 F. Supp. 715, 721-22, 17 ELR 20475, 20477-78 (D.N.J. 1986).

73. Id.; see also Ringbolt Farms Homeowners Ass'n v. Town of Hull, 714 F. Supp. 1246, 1260-1261 (D. Mass. 1989) (reviewing the legislative history of § 7002(a)(1)(B) (emphasis added); cf. United States v. Conservation Chem. Co., 619 F. Supp. 162, 199, 16 ELR 20193, 20207 (W.D. Mo. 1985) ("Congress intended Section 7003 [42 U.S.C. § 6973, ELR STAT. RCRA § 7003] to be both a codification and expansion of the common law of public nuisance."). One commentator noted: "Rather than authorizing the enforcement of requirements established by Congress or already subjected or potentially subjected to judicial review, the amendments allow citizens to engage the courts in the uncertain and thorny issues of what constitutes an endangerment and what remedy may be appropriate. In essence the amendment allows private citizens to bring public nuisance cases under the guise of RCRA." JEFFREY G. MILLER, ENVTL. L. INST., Citizen Suits: Private Enforcement of Federal Pollution Control Laws 9 (1987). Indeed, "[Provision for c]itizen suits to enjoin endangerments is no radical innovation, being firmly established already in the common law.…" Id. at 9 n.32.

74. RCRA does not define the term "handling." Presumably, Congress included the term in § 7002(a)(1)(B) to ensure coverage of any conduct that might fall between the cracks of "storage, treatment, transportation, and disposal." See Zands v. Nelson, 797 F. Supp. 805, 810, 23 ELR 20340, 20342 (S.D. Cal. 1992) ("the Court must find a nexus between the defendant and the solid waste").

75. 42 U.S.C. § 6903(33), ELR STAT. RCRA § 1004(33).

76. Id. § 6903(34), ELR STAT. RCRA § 1004(34).

77. Id. § 6903(3), ELR STAT. RCRA § 1004(3).

78. Id. § 6972(a)(1)(B), ELR STAT. RCRA § 7002(a)(1)(B); Lincoln Properties, Ltd. v. Higgins, 23 ELR 20665, 20671 (E.D. Cal. 1993); Vermont v. Staco, Inc., 684 F. Supp. 822, 835, 18 ELR 20589, 20594 (D. Vt. 1988), vacated in part on other grounds, 31 Env't Rep. Cas. (BNA) 1814 (D. Vt. 1989); cf. United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1382-83 n.9, 19 ELR 21038, 21043 n.9 (8th Cir. 1989); United States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726, 745, 17 ELR 20603, 20610 (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987); United States v. Bliss, 667 F. Supp. 1298, 1313, 18 ELR 20055, 20061 (E.D. Mo. 1987) (construing 42 U.S.C. § 6973, ELR STAT. RCRA § 7003).

79. See 42 U.S.C. § 6973, ELR STAT. RCRA § 7003 (RCRA's grant of imminent hazard authority to EPA); id. § 7603, ELR STAT. CAA § 303 (Clean Air Act imminent hazard authority); Id. § 300i, ELR STAT. SDWA § 1431 (Safe Drinking Water Act imminent hazard authority); 33 U.S.C. § 1364, ELR STAT. FWPCA § 504 (Clean Water Act imminent hazard authority); see generally Clean Air Act; Enforcement Authority Guidance [hereinafter EPA Enforcement Guidance], 56 Fed. Reg. 24393, 24396 (May 30, 1991) (discussing EPA's imminent hazard authority under the various environmental statutes).

80. Connecticut Coastal Fishermen's Ass'n v. Remington Arms Co., Inc., 989 F.2d 1305, 1315, 23 ELR 20699, 20704 (2d Cir. 1993); Comite Pro Rescate De La Salud v. Puerto Rico Aqueduct & Sewer Auth., 888 F.2d 180, 187, 20 ELR 20211, 20215, cert. denied, 494 U.S. 1029 (1990) (1st Cir. 1989); H. REP. NO. 198, 98th Cong. 2d Sess., pt. 1, at 53 (1984), reprinted in 1984 U.S.C.C.A.N. 5576, 5612 (Congress explicitly recognized that § 7002(a)(1)(B) confers upon citizens the right to sue "pursuant to the standards of liability established under Section 7003.").

81. Comite Pro Rescate De La Salud, 888 F.2d at 185, 20 ELR at 20214, citing H.R. REP. No. 198, 98th Cong., 2d Sess., pt. 1, at 48 (1984), reprinted in 1984 U.S.C.C.A.N. 5576, 5606 ("anyone who has contributed or is contributing to the creation, existence, or maintenance of an imminent and substantial endangerment is subject to the equitable authority of [§ 7002], without regard to fault or negligence."); Staco, 684 F. Supp. at 835, 18 ELR at 20594; cf. Aceto Agric. Chem. Corp., 872 F.2d at 1377, 19 ELR at 21040 (8th Cir. 1989); Northeastern Pharmaceutical & Chem. Co., 810 F.2d at 741, 17 ELR at 20610 (and cases cited therein); United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 1400-01 [digested at 16 ELR 20763] (D.N.H. 1985) (construing 42 U.S.C. § 6973, ELR STAT. RCRA § 7003).

82. See 42 U.S.C. § 6972(a); ELR STAT. RCRA § 7002(a) (authorizing the court to order "any person who has contributed" to a potential endangerment to take such action as may be necessary; cf. United States v. Conservation Chem. Co., 619 F. Supp. 162, 199, 16 ELR 20193, 20207 (W.D. Mo. 1985) (construing the substantially identical language of RCRA § 7003: "Since Congress intended Section 7003 to be both a codification and expansion of the common law of public nuisance, Congress must also have intended for joint and several liability to be applied where the injury is indivisible … joint and several liability is the evolving, modern rule applied in environmental cases where the injury is indivisible."); Ottati & Goss, Inc., 630 F. Supp. at 1401.

83. See infra note 143.

84. An endangerment (i.e., threat) can be "imminent" even if the harm may not occur for many years. See Conservation Chem. Co., 619 F. Supp. at 194, 16 ELR at 20204 (and cases cited therein) ("[A]n endangerment need not be an emergency … [and] need not be immediate" to be actionable. "[A]n endangerment is 'imminent' and actionable when it is shown that it presents a threat to human health or the environment, even if it may not eventuate or be fully manifest for a period of many years -- as may be the case with drinking water contamination, cancer, and many other effects."). The situation need not present an emergency for RCRA's imminent endangerment to apply. See United States v. Waste Indus., Inc., 734 F.2d 159, 166, 14 ELR 20461, 20463-64 (4th Cir. 1984) (RCRA § 7003 "authority to abate waste hazards is expansive"); Ottati & Goss, Inc., 630 F. Supp. at 1394 ("Endangerment means a threatened or potential harm and does not require proof of actual harm"); United States v. Reilly Tar & Chem. Corp., 546 F. Supp. 1100, 1109-10, 12 ELR 20954, 20956-57 (D. Minn. 1982), quoting H.R. REP. NO. 1185, 93d Cong., 2d Sess. 35-36, reprinted in 1974 U.S.C.C.A.N. 6454, 6487-88 (substantial endangerments include: "a substantial likelihood that contaminants capable of causing adverse health effects will be ingested by consumers … or … the threat of substantial or serious harm"); Environmental Defense Fund v. U.S. Environmental Protection Agency, 465 F.2d 528, 535, 2 ELR 20228, 20232 (D.C. Cir. 1972), quoting EPA criteria for finding an imminent hazard under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136-136y, ELR STAT. FIFRA §§ 2-31 (An "'imminent hazard' may be declared at any point in a chain of events which may ultimately result in harm to the public"); United States v. Price, 688 F.2d 204, 213, 12 ELR 21020, 21024 (3d Cir. 1982), quoting H.R. Committee Print No. 96-IFC 31, 96th Cong., 1st Sess., 32 (Comm. Print 1979) (imminence refers "to the nature of the threat rather than identification of the time when the endangerment initially arose"); cf. United States v. Midway Heights County Water Dist., 695 F. Supp. 1072, 1076, 19 ELR 20142, 20142 (E.D. Cal. 1988) (holding under the Safe Drinking Water Act that the court need not wait until actual harm occurs before acting under the "may present an imminent and substantial endangerment" standard). The Price court noted that § 7003 has

enhanced the courts' traditional equitable powers by authorizing the issuance of injunctions when there is but a risk of harm, a more lenient standard than the traditional requirement of threatened irreparable harm.

Price, 688 F.2d at 211, 12 ELR at 21023. See also United States v. Vertac Chem. Corp., 489 F. Supp. 870, 885 (E.D. Ark. 1980).

85. Comite Pro Rescate De La Salud, 888 F.2d at 185, 20 ELR at 20214, citing S. REP. NO. 284, 98th Cong., 1st Sess. 59 ("An endangerment means a risk of a harm, not necessarily actual harm.…") and quoting Waste Indus., Inc., 734 F.2d at 164, 14 ELR at 20462 (Congress "designed [§ 7003] to deal with situations in which the regulatory schemes break down or have been circumvented.… [Section 7003 is] a broadly applicable section dealing with the concerns addressed by the statute as a whole"); Dague v. City of Burlington, 935 F.2d 1343, 1355, 21 ELR 21133, 21139 (2d Cir. 1991), rev'd on other grounds, 112 S. Ct. 964, 22 ELR 21099 (1992); Kaufman & Broad-South Bay v. Unisys Corp., 822 F. Supp. 1468, 1476, 23 ELR 21366, 21369 (N.D. Cal. 1993) (allegation that cleanup requires ongoing monitoring to prevent potential endangerment is sufficient); Zands v. Nelson, 797 F. Supp. 805, 809, 23 ELR 20340, 20341 (S.D. Cal 1992) (leakage of gasoline from underground tanks presents an imminent and substantial endangerment); Price v. U.S. Navy, 818 F. Supp. 1323, 1325 (S.D. Cal. 1992) ("there must be a threat which is present now, although the impact of the threat may not be felt until later … the endangerment must be substantial or serious and … there must be some necessity for the action") (emphasis in original); Greenpeace, Inc. v. Waste Technologies Indus., No. 93-CV-0083, 1993 WL 134861 (N.D. Ohio Mar. 5, 1993), rev'd on other grounds, 9 F.3d 1174, 24 ELR 20103 (6th Cir. 1993) (a likelihood of four additional cancer deaths per 100,000 residents "clearly may cause imminent and substantial endangerment to health and the environment…"); PMC, Inc. v. Sherwin-Williams Co., No. 93-C-1379, 1993 WL 259442 (N.D. Ill. July 7, 1993) (allegations that specific toxic substances found on the premises due to defendant's conduct adequate to survive motion to dismiss); Gache v. Town of Harrison, 813 F. Supp. 1037, 1044 (S.D.N.Y.) ("The operative word in § 6972(a)(1)(B) is 'may.'").

86. 23 ELR 20665, 20671 (E.D. Cal. 1993).

87. Id. (emphasis in original, citations omitted).

88. EPA Enforcement Guidance, supra note 79, at 24396 (emphasis added).

89. Cf. Ethyl Corp. v. U.S. Environmental Protection Agency, 541 F.2d 1, 13, 6 ELR 20267, 20272-73 (D.C. Cir. 1976), cert. denied, 426 U.S. 941 (1976) ("the very existence of … precautionary legislation would seem to demand that regulatory action precede, and optimally, prevent, the perceived threat") (emphasis in original).

90. 42 U.S.C. § 6972(e), ELR STAT. RCRA § 7002(e); see, e.g., Dague v. City of Burlington, 976 F.2d 801, 22 ELR 21497 (2d Cir. 1992) (a fee award is appropriate); Orchard Lane Rd. Ass'n v. Pete Lien & Sons, Inc., No. 93-1245 (10th Cir. Jan. 24, 1994) (when plaintiffs are unsuccessful or just partially successful, district court may deny fees to defendant to avoid chilling § 7002(a)(1)(B) lawsuits). But see Fallowfield Dev. Corp. v. Strunk, Nos. 89-8644, 90-4431, 1993 WL 157723 (E.D. Pa. May 11, 1993) (declining to award fees because the plaintiff "brought this action in an attempt to cleanup a private tract of land for the purpose of its own residential development" and "[a]s such … was not acting as a 'private attorney general'" and the "case represents litigation between two private parties the outcome of which bears only incidentally on the overall community's well being."). The fact that property to be cleaned up is "a private tract," however, clearly does not mean that the public interest was not served. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 604 (1982), quoting Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907) ("[T]he State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain."). Congress clearly intended RCRA to prevent contamination of, and abate endangerments to environmental resources on public and private land. Regardless of their motivations, private parties that conduct litigation that causes such cleanups will, in most cases, be advancing Congress' goals. To deny statutory attorneys fees to parties with less than pure, politically correct motives would tend to interfere with Congress' purpose of encouraging legitimate § 7002(a)(1)(B) actions to abate potential endangerments.

91. 42 U.S.C. § 6972(a), ELR STAT. RCRA § 7002(a) (emphasis added).

92. The Lincoln Properties court issued "[a]n injunction [that] will determine the existence and extent of the endangerment through further investigation, monitoring and testing." 23 ELR at 20673.

93. Commerce Holding Co., Inc. v. Buckstone, 749 F. Supp. 441, 445 (E.D.N.Y. 1990); Walls v. Waste Resource Corp., 761 F.2d 311, 316, 15 ELR 20438, 20439 (6th Cir. 1985) (no cause of action for damages); Kaufman & Broad-South Bay v. Unisys Corp., 822 F. Supp. 1468, 1477, 23 ELR 21366, 21370 (N.D. Cal. 1993) (no restitution); Dominick's Finer Foods, Inc. v. Amoco Oil Co., No. 93-C-4210, 1993 WL 524808 & n.5 (N.D. Ill. Dec. 15, 1993) ("Unlike RCRA, which only permits citizens to obtain equitable-type relief … CERCLA also allows a private party to recover compensation for clean up expenses"); Fallowfield Dev. Corp., 1993 WL 157723 ("[R]egardless of how the request [for restitution] is denominated, it does not comport with the statute's purpose of allowing private parties to bring suit if genuinely acting as private attorneys general rather than pursuing a private remedy (quotation omitted); Gache v. Town of Harrison, 813 F. Supp. 1037, 1045 (S.D.N.Y. 1993) ("RCRA does not authorize a plaintiff in a citizen suit to recover remediation costs.").

94. The rulings appear to conflict with U.S. Supreme Court precedent. See infra note 97. See also Pine v. Shell Oil Co, No. 92-0346B, 1993 WL 389396 (D.R.I. Aug. 23, 1993) (report and recommendation of magistrate judge) ("Courts have permitted suits seeking recovery of clean-up costs under § 6972.").

95. United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1382-83, 19 ELR 21038, 21043 (8th Cir. 1989); United States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726, 749, 17 ELR 20603, 20614 (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987); United States v. Price, 688 F.2d 204, 212-14, 12 ELR 21020, 21024-25 (3d Cir. 1982); United States v. Conservation Chem. Co., 619 F. Supp. 162, 201, 16 ELR 20193, 20208-09 (W.D. Mo. 1985). As noted above, see supra note 80, Congress intended § 7003 standards to apply to § 7002.

96. Price, 688 F.2d at 213-14, 12 ELR at 21024.

97. See Porter v. Warner Holding Co., 328 U.S. 395 (1946) (reversing an appellate court's holding that there was no jurisdiction to order restitution under a statute that authorized an agency to sue "for an order enforcing compliance with such provision, and upon a showing by the Administrator that such person has engaged or is about to engage in any such acts or practices a permanentor temporary injunction, restraining order, or other order shall be granted without bond"). The Court held:

Unless otherwise provided by statute, all the inherent equitable powers of the District Court are available for the proper and complete exercise of that jurisdiction. And since the public interest is involved in a proceeding of this nature, those equitable powers assume an even broader and more flexible character than when only a private controversy is at stake.… Power is thereby resident in the District Court, in exercising this jurisdiction, "to do equity and to mould each decree to the necessities of the particular case." … It may act so as to adjust and reconcile competing claims and so as to accord full justice to all the real parties in interest; if necessary, persons not originally connected with the litigation may be brought before the court so that their rights in the subject matter may be determined and enforced. In addition, the court may go beyond the matters immediately underlying its equitable jurisdiction and decide whatever other issues and give whatever other relief may be necessary under the circumstances. Only in that way can equity do complete rather than truncated justice.…

Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. "The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction."

It is readily apparent from the foregoing that a decree compelling one to disgorge profits, rents or property acquired in violation of the [applicable law] may properly be entered by a District Court once its equity jurisdiction has been invoked.…

Id. at 398-99 (emphasis added, citations omitted); accord California v. American Stores Co., 495 U.S. 271, 295 (1990).

98. In this context, the term "media" refers to environmental media, i.e., land, water, or air.

99. EPA routinely regulates air emissions as hazardous waste under RCRA. See 40 C.F.R. pt. 264. subpts. AA and BB (1993) (containing RCRA regulations for "Air Emission Standards for Process Vents" and "Air Emission Standards for Equipment Leaks"). Similarly, EPA's RCRA standards for boilers and industrial furnaces specify "standards to control organic [air] emissions," "standards to control particulate matter [air emissions]," "standards to control metals [air] emissions," and "standards to control hydrogen chloride and chlorine gas emissions." 40 C.F.R. §§ 266.104-.107 (1993).

100. Cf. Dominick's Finer Foods, Inc. v. Amoco Oil Co, No. 93 C 4210, 1993 WL 524808 & n.8 (N.D. Ill. Dec. 15, 1993) (RCRA Subtitle I is not the exclusive means of addressing leaking underground storage tanks; § 7002(a)(1)(B) also applies); Comite Pro Rescate de la Salud, 888 F.2d at 187, 20 ELR at 20215 (1st Cir. 1989), cert. denied, 494 U.S. 1029 (1990).

101. EPA Enforcement Guidance, supra note 79 at 24395.

102. Id. at 24398 (emphasis added).

103. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 14 ELR 20507, 20508-09 (1984); New Mexico v. Watkins, 969 F.2d 1122, 1132, 22 ELR 21262, 21266 (D.C. Cir. 1992).

104. Connecticut Coastal Fishermen's Ass'n v. Remington Arms Co., 989 F.2d 1305, 23 ELR 20699 (2d Cir. 1993) (lead shot to water); Comite Pro Rescate de la Salud v. Puerto Rico Aqueduct & Sewer Auth., 888 F.2d 180, 182, 20 ELR 20211, 20212 (1st Cir. 1989), cert. denied, 494 U.S. 1029 (1990) (fumes from sewer lines); Orchard Lane Rd. Ass'n v. Pete Lien & Sons, Inc., 34 Env't Rep. Cas. (BNA) 1749 (D. Colo. 1992) (silica dust to air).

105. See Comite Pro Rescate De La Salud, 888 F.2d at 185, 20 ELR at 20214, quoting United States v. Waste Indus., Inc., 734 F.2d 159, 164, 14 ELR 20461, 20462 (4th Cir. 1984) (Congress "designed [§ 7003] to deal with situations in which the regulatory schemes break down or have been circumvented"); Fishel v. Westinghouse Elec. Corp., 640 F. Supp. 442, 446, 16 ELR 20634, 20635 (M.D. Pa. 1986) ("We do not believe that … compliance with the government's order [is] determinative of whether an imminent and substantial endangerment currently exists.").

106. RCRA § 7002 authorizes suit "[e]xcept as provided in subsection (b) or (c) of this section." 42 U.S.C. § 6972(a), ELR STAT. RCRA § 7002(a) (emphasis added). Moreover, if the potential endangerment stems from a violation of Subtitle C regulations, citizens may file suit immediately after notice to EPA, the state, and the violator. Id. § 6972(b)(2)(A), ELR STAT. RCRA § 7002(b)(2)(A). If, however, there is no allegation of an underlying Subtitle C violation, plaintiffs must wait at least 90 days after giving notice before filing suit. Id. Clearly, then, alleging a violation of Subtitle C cannot be a prerequisite to suit. Cf. Waste Indus., Inc., 734 F.2d at 164, 14 ELR at 20462 (4th Cir. 1984) (section 7003 provides a remedy for environmental endangerments "whether or not those engaging in the endangering acts are subject to any other provision of the Act") (emphasis added).

107. Connecticut Coastal Fishermen's Ass'n, 989 F.2d at 1309, 1316, 23 ELR at 20700, 20705.

108. Comite Pro Rescate de la Salud, 888 F.2d at 187, 20 ELR at 20215 (EPA may want to act to prevent imminent hazards without assuming the ongoing administrative duties of Subtitle C regulation). Moreover, the fact that a § 7002(a)(1)(B) lawsuit may lie even when the conduct at issue is not illegal is consistent with the public nuisance-like character of the provision. It may not be a coincidence that Congress enacted § 7002(a)(1)(B) during the mid-1980s, when it was turning its attention to imposing retroactive liability for cleanup of CERCLA and RCRA corrective action sites, many of which were contaminated as a result of conduct that was not necessarily illegal.

109. 42 U.S.C. §§ 9601(10), 9607(j), ELR STAT. CERCLA §§ 101(10), 107(j).

110. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

111. 42 U.S.C. § 6903(27), ELR Stat. RCRA § 1004(27).

112. See United States v. Cardenas, 864 F.2d 1528, 1534 (10th Cir. 1989), cert. denied, 491 U.S. 909 (1989).

113. Greenpeace, Inc. v. Waste Technologies Indus., 9 F.3d 1174, 1178, 24 ELR 20103, 20105 (6th Cir. 1993); Palumbo v. Waste Technologies Indus., 989 F.2d 156, 161, 23 ELR 20876, 20878-79 (4th Cir. 1993); see 42 U.S.C. § 6976(b), ELR STAT. RCRA § 7006(b) ("Action of the Administrator with respect to which review could have been obtained under this subsection shall not be subject to judicial review in civil or criminal proceedings for enforcement.")

114. The court held that "Congress did not intend for [§ 7002(a)(1)(B)] to authorize citizen suits against persons operating hazardous waste facilities within the limits of valid RCRA permits." Greenpeace, 9 F.3d at 1178, 24 ELR at 20105. The permit at issue, however, stated: "Compliance with the terms of this permit does not constitute a defense to any action brought under Section 7003 of RCRA, Section 106(a) of [CERCLA], or any other law governing protection of public health or the environment [from] any imminent and substantial endangerment to human health or the environment." Greenpeace, Inc. v. Waste Technologies Indus., No. 93-CV-0083, 1993 WL 134861 (N.D. Ohio Mar. 5, 1993), rev'd, 9 F.3d 1174.

115. The Greenpeace court held:

[T]he only method Congress provided in the RCRA to challenge permitted activity is a challenge to the permit itself through § 6976(b). See Jeffrey G. Miller, Environmental Law Institute, Citizen Suits: Private Enforcement of Federal Pollution Control Laws 32-33 (1987) (Citizen Suit provisions "are not substitutes for the judicial review sections of the various statutes"). A hazardous waste operator's compliance with the terms of its RCRA permit precludes district court jurisdiction under § 6972(a)(1)(B) to challenge properly permitted activity.

Greenpeace, 9 F.3d at 1181-82, 24 ELR at 20107.

116. Id., 9 F.3d at 1178, 24 ELR at 20106, citing Environmental Defense Fund v. the U.S. Environmental Protection Agency, 485 F.2d 780, 783, 3 ELR 20488, 20489 (D.C. Cir. 1973). ("Congress established such exclusive jurisdiction to insure speedy resolution of the validity of EPA determinations.'") The court also noted:

[§ 7002(b)(2)(D)] provides that "[n]o action may be commenced under subsection (a)(1)(B) of this section by any person (other than a State or local government) with respect to the siting of hazardous waste treatment, storage, or a disposal facility, nor to restrain or enjoin the issuance of a permit for such facility." 42 U.S.C. § 6972(b)(2)(D). Significantly, the House Report explained this limitation by noting that "[t]he Committee believes that other legal authority is available to challenge deficiencies in the permitting process". H.R. Rep. No. 198, 98th Cong., 2d Sess., pt. 1, at 53 (1984), reprinted in 1984 U.S.C.C.A.N. 5576, 5612.

Id., 9 F.3d at 1181, 24 ELR at 20106.

117. Id., 9 F.3d at 1176, 24 ELR at 20104 ("The history of this permitting process shows that plaintiffs failed to take advantage of numerous opportunities to raise the claims that they belatedly make here."); see also Palumbo, 989 F.2d at 160-61, 23 ELR at 20878 (plaintiffs failed to participate in permitting process).

118. The Greenpeace court noted:

Under 42 U.S.C. § 6976(b), provision is made for a delayed appeal to this court if, after the ninety-day appeal period has elapsed, facts come to light that would have changed the agency's permitting decision about substantial and imminent endangerment. In addition, the EPA can modify or terminate a previously issued permit at any time if it determines that a facility presents an imminent and substantial endangerment to health or the environment. 42 U.S.C. § 6973(a), 40 C.F.R. §§ 270.41, 270.43(a)(3) (1993).

Greenpeace, 9 F.3d at 1182, 24 ELR at 20107.

119. See Orchard Lane Rd. Ass'n v. Pete Lien & Sons, Inc., 34 Env't Rep. Cas. (BNA) 1749 (D. Colo. 1992).

120. Indeed, some state laws require regulators to issue permits if the specific standards at issue in the permitting proceeding are met.

121. Under such circumstances a § 7002(a)(1)(B) lawsuit could not accurately be labeled a mere collateral attack. In contrast, if the pollutant were subject to a permit consistent with the Clean Air Act's revised hazardous air pollutant program, the argument would be stronger that § 7002(a)(1)(B) lawsuits should not lie for risks addressed by the permit. Cf. 42 U.S.C. §§ 7661-7661f, ELR STAT. CAA §§ 501-07; but see supra note 112 and accompanying text.

122. 42 U.S.C. § 7661c(f), ELR STAT. CAA § 504(f) (compliance with permit is deemed compliance with Clean Air Act § 501 (which requires a permit) and with "other applicable provisions of this [Clean Air] Act that relate to the permittee if -- (1) the permit includes the applicable requirements of such provisions, or (2) the permitting authority … makes a determination … that such other provisions … are not applicable.…" (emphasis added)). Clearly, when Congress so desired, it knew how to provide that a permitting process would preclude other causes of action directed at the permitted conduct. Cf. Gwaltney of Smithfield Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 57, 18 ELR 20142, 20144 (1987) (declining to stretch statutory language to include a situation that Congress had demonstrated an ability to address in plain language). EPA's position is that RCRA permits "narrow" but do not necessarily preclude opportunities for citizen suits and do not shield permittees from EPA imminent hazard suits. Shell Oil v. U.S. Environmental Protection Agency, 950 F.2d 741, 763-65, 22 ELR 20305, 20316-17 (D.C. Cir. 1991).

123. Professor Miller stated:

It is clear that governmental action against perceived threats to public health from past hazardous waste practices has fallen short of public and congressional demand and expectation.…

On the other hand if a remedy is already available at common law, it is difficult to understand the necessity of a new federal statutory remedy.… [P]oorly financed and prepared private litigants may establish precedents that will make the section of considerably less utility to public and private plaintiffs alike.

MILLER, ENVTL. L. INST., supra note 73, at 9-10 n.32.

124. See infra note 156.

125. 40 C.F.R. pt. 300 (1993).

126. See supra note 58 and accompanying text.

127. See 42 U.S.C. §§ 9607(a), 9613(h)(4), 9659, ELR STAT. CERCLA §§ 107(a), 113(h)(4), 310. Cf. Colorado v. Idarado Mining Co., 916 F.2d 1486, 21 ELR 20270 (10th Cir. 1990) (CERCLA does not authorize courts to award injunctive relief for states to enforce state-selected remedial action).

128. 33 U.S.C. § 2717(e), ELR STAT. OPA § 1017(e) (the Oil Pollution Act is not retroactive); Id. § 2701(23), ELR STAT. OPA § 1001(23) (defining oil to exclude CERCLA hazardous substances); see generally Russell V. Randle, The Oil Pollution Act of 1990: Its Provisions, Intent, and Effects, in ENVTL. L. REP., OIL POLLUTION DESKBOOK (1991).

129. In the author's experience, settlements in environmental cases become much easier to achieve once courts have narrowed the issues (e.g., liability issues) on summary judgment. Several state judges, however, have commented to the author that they employ an informal, but irrebuttable, presumption that any summary judgment motion over 10 pages in length raises genuine issues of material fact and, thus, need not be read.

130. See Kenneth A. Freeling, Recovery of Attorneys Fees in CERCLA Private-Party Cost Recovery Action: Striking a Balance, 23 ELR 10477 (Aug. 1993).

131. United States v. Conservation Chem. Co., 619 F. Supp. 152, 196, 261, 16 ELR 20193, 20206, 20239 (W.D. Mo. 1986). But see B.F. Goodrich Co. v. Murtha, No. N-87-52 (PCD) (D. Conn. Dec. 20, 1993) (that municipalities' waste contained items that incorporated elements that constituted hazardous substances is insufficient to prove disposal of hazardous substances).

132. See supra note 87 and accompanying text.

133. Car owners in Europe, however, apparently would not be subject to such a suit, even if their cars were manufactured in the United States. See Amlon Metals, Inc. v. FMC Corp., 775 F. Supp. 668, 676, 22 ELR 20235, 20238 (S.D.N.Y. 1991) (declining to apply RCRA § 7002(a)(1)(B) extraterritorially).

134. See Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 478 U.S. 546, 562 n.6, 16 ELR 20801, 20805 n.6 (1986).

135. But see Ringbolt Farms Homeowners Ass'n v. Town of Hull, 714 F. Supp. 1246, 1261-62 (D. Mass. 1989) (holding that § 7002(a)(1)(B) suits do not lie against state regulatory agencies for failing to take enforcement action).

136. See, e.g., Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 17 ELR 20574 (1987).

137. See, e.g., Renaud v. Martin Marietta Corp., 749 F. Supp. 1545, 21 ELR 20605 (D. Colo. 1990), aff'd, 972 F.2d 304 (10th Cir. 1992) (dismissing plaintiff's common-law case because no reasonable juror could find that plaintiff's evidence was enough to prove exposure); Knight v. Armstrong Rubber Co., No. 89-0028(B), 1991 WL 532493 (S.D. Miss. Apr. 18, 1991) (dismissing RCRA claim when "no chemical which presents a health hazard has been found at the subject sites" and holding that "[p]laintiffs must produce more than a 'metaphysical doubt' as to the material facts"); Price v. U.S. Navy, 818 F. Supp. 1323, 1325 (S.D. Cal. 1992) (granting defendants summary judgment when plaintiffs offered insufficient evidence of an endangerment); Vernon Village v. Gottier, 755 F. Supp. 1142, 1155, 21 ELR 21186, 21193 (D. Conn. 1990) (where plaintiff presented no evidence of imminent and substantial danger, defense summary judgment granted on RCRA count); Brewer v. Ravan, 680 F. Supp. 1176, 1182, 18 ELR 20799, 20801 (M.D. Tenn. 1988) (dismissing allegation that did not identify any particular hazardous waste or when or under what circumstances the defendants were alleged to have dumped it); but see Seville Indus. Mach. Corp. v. Southmost Mach. Corp., 742 F.2d 786, 790 (3d Cir. 1984), cert. denied, 469 U.S. 786 (1984) ("Under the modern federal rules [of civil procedure], it is enough that a complaint put the defendant on notice of the claims against him. It is the function of discovery to fill in the details, and of trial to establish fully each element of the cause of action.").

138. 42 U.S.C. § 6972(b)(2)(A), ELR STAT. RCRA § 7002(b)(2)(A). If a violation of Subtitle C is alleged, the action may be filed immediately after notification. Id. The holding of Hallstrom v. Tillamook County, 493 U.S. 20, 20 ELR 20193 (1989), that notice of § 7002(a)(1)(A) suits is mandatory, appears to apply also to § 7002(a)(1)(B), unless violations of Subtitle III are alleged. See Zands v. Nelson, 779 F. Supp. 1254, 1258-61, 22 ELR 20757, 20758-59 (S.D. Cal. 1991) (other claims may be pending during waiting period after notice); Dominick's Finer Foods, Inc. v. Amoco Oil Co., No. 93 C 4210, 1993 WL 524808 & n.8 (N.D. Ill. Dec. 15, 1993) (there is no requirement that the plaintiff give notice to liable parties who are not sued); EVCO Ass'n v. C.J. Saporito Plating Co., No. 93 C 2038 (N.D. Ill. Sept. 7, 1993) (dismissing a plaintiff's § 7002(a)(1)(B) count without prejudice for failing to provide notice); Bradley Indus. Park v. Xerox Corp., No. 88 Civ. 7574, 1991 WL 20008 (S.D.N.Y. Feb. 4, 1991) (a plaintiff's "conclusory allegation that these entities received 'notice in fact' more than 90 days before the date of the complaint is not legally sufficient"); McGregor v. Indus. Excess Landfill, Inc., 856 F.2d 39, 44, 19 ELR 20189, 20191 (6th Cir. 1988) (dismissing action with prejudice when plaintiffs were on notice of failure to allege compliance with RCRA's notice requirement and made no effort to amend during a period of over one year when motions to dismiss were pending); Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160, 19 ELR 20374, 20380 (9th Cir. 1989) (upholding dismissal with prejudice when plaintiff failed to allege notice); but see United States v. Environmental Waste Control, Inc., 710 F. Supp. 1172, 1188-91, 20 ELR 20035, 20041-43, aff'd, 917 F.2d 327, 21 ELR 20007 (7th Cir. 1990), cert. denied, 111 S. Ct. 1621 (1991) (notice not mandatory when a Subtitle C violation is alleged); Dague v. City of Burlington, 935 F.2d 1343, 1352-53, 21 ELR 21133, 21136-37 (2d Cir. 1991), rev'd on other grounds, 112 S. Ct. 964, 22 ELR 21099 (1992) (same).

139. 42 U.S.C. § 6972(b)(2)(A), ELR STAT. RCRA § 7002(b)(2)(A).

140. 40 C.F.R. pt. 254 (1993). EPA promulgated inconsistent regulations under the citizen enforcement provisions of various antipollution laws governing notice. Compare 40 C.F.R. pt. 254 (notice under RCRA is effective when received, use registered mail) with 40 C.F.R. pt. 135 (1993) (notice under the FWPCA is effective when mailed, use certified mail).

141. 484 U.S. 49, 18 ELR 20142 (1987) (holding that federal courts have no jurisdiction over FWPCA citizen enforcement lawsuits for "wholly past" violations).

142. Hinsdale v. Suburban Lawn, Inc., No. 92 C 6814, 1992 WL 396295 (N.D. Ill. Dec. 22, 1992) (dismissing claim for failure to allege the existence of [a continuing] imminent and substantial endangerment at the time the complaint was filed); cf. Chartrand v. Chrysler Corp., 785 F. Supp. 666, 670, 22 ELR 20998, 21000 (E.D. Mich. 1992) (RCRA § 7002(a)(1)(A) does not allow suit for wholly past violations); City of Toledo v. Beazer Materials & Servs., Inc., 833 F. Supp. 646, 654 (N.D. Ohio 1993) ("under an imminent hazard citizen suit, the endangerment must be ongoing, but the conduct that created the endangerment need not be"); but see United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1383, 19 ELR 21038, 21043 (8th Cir. 1989) (allowing EPA to maintain § 7003 suit for a past endangerment).

Many courts have held that even RCRA § 7002(a)(1)(A) claims may be brought against one who is not a present owner or operator, because, e.g., "the disposal of wastes can constitute a continuing violation as long as no proper disposal procedures are put into effect or as long as the waste has not been cleaned up and the environmental effects remain remediable." Beazer Materials & Servs., Inc., 833 F. Supp. at 656; accord Gache v. Town of Harrison, 813 F. Supp. 1037, 1041 (S.D.N.Y. 1993) ("Under the plain meaning of the statute, the continued presence of illegally dumped waste could constitute being 'in violation' of a RCRA regulation or standard.… [I]mproperly discharged wastes which continue to exist unremediated represent a continuing violation of RCRA"); Fallowfield Dev. Corp. v. Strunk, No. 89-8644, 1990 WL 52745 (E.D. Pa. 1990) (violations "continue to occur simply by allowing the improperly disposed of hazardous waste to remain on the property"); Acme Printing Ink Co. v. Menard, Inc., 812 F. Supp. 1498, 1512, 23 ELR 21061, 21066 (E.D. Wis. 1992) (RCRA's definition of "disposal" includes continuous leaking of hazardous substances which may be a continuous or intermittent violation of RCRA); cf. North Carolina Wildlife Fed'n v. Woodbury, 19 ELR 21308, 21309 (E.D.N.C. 1989) (failure to remove material improperly discharged to a wetland is a continuing FWPCA violation).

143. Beazer Materials & Servs., Inc., 833 F. Supp. at 654 (N.D. Ohio 1993) ("It is clear that section 7002(a)(1)(B) citizen suits for imminent and substantial endangerment need not meet the present violation hurdle.").

144. 42 U.S.C. § 6972(b)(2)(B), (C), ELR STAT. RCRA § 7002(b)(2)(B), (C). CERCLA's imminent hazard authority is found at 42 U.S.C. § 9606, ELR STAT. CERCLA § 106. See infra note 145.

145. 42 U.S.C. § 6972(b)(2)(B), (C), ELR STAT. RCRA § 7002(b)(2)(B), (C). See, e.g., Acme Printing Ink Co., 812 F. Supp. at 1498, 23 ELR at 21061 (holding that because EPA is not diligently proceeding with remedial action beyond conduct of a remedial investigation and feasibility study, a consent order issued under CERCLA § 122 does not bar a RCRA imminent hazard suit about the same site); Arkansas Peace Ctr. v. Arkansas Dep't of Pollution Control & Ecology, 999 F.2d 1212, 1218, 23 ELR 21280, 21282 (8th Cir. 1993) (holding a § 7002(a)(1)(B) challenge to incineration that was part of CERCLA removal action barred); Shinozaki v. Anzon, Inc., Nos. 87-3441 et al., 1989 WL 129634 (E.D. Pa. Oct. 27, 1989) ("according to the legislative history, the bar "applies only while removal activities are in progress," or when the remedial "activities at a site occur in a continuous, uninterrupted sequence"); Lee v. Charles-Thomas, Inc., No. H-84-4798, 1987 WL 5670 (S.D. Tex. Jan. 12, 1987) ("Plaintiffs should not be required, at the pleading stage, to prove EPA's methodology or EPA's lack of diligence in EPA's cleanup efforts"); Merry v. Westinghouse Elec. Corp., 697 F. Supp. 180, 182, 27 ERC 1580, 18 ELR 21215 (M.D. Pa. 1988) (evidence tends to show that EPA was not diligently proceeding with removal or remedial action when it allowed submission of late work plans by the defendant); Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1574, 18 ELR 21348, 21350 (5th Cir. 1988) (diligence is a question of fact that complainants cannot be expected to prove at the pleading stage); see also Coalition for Health Concern v. LWD, Inc., 834 F. Supp. 957 (RCRA § 3008(h) orders do not preclude citizen suits brought under § 7002(a)(1)(B)); Greenpeace, Inc. v. Waste Technologies Indus., No. 93-CV-0083, 1993 WL 134861 (N.D. Ohio Mar. 5, 1993), rev'd on other grounds, 9 F.3d 1174 (6th Cir. 1993) ("citizens of one state should not be barred from bringing a citizens suit against a facility in their own state when that state has not acted, simply because another state is pressing claims on behalf of that other state's own citizens").

Additionally, CERCLA § 113(h)'s preenforcement review bar may interfere with the ability to bring RCRA § 7002(a)(1)(B) actions. See Reynolds v. Lujan, 785 F. Supp. 152, 153, 22 ELR 20540, 22 ELR 21061 (D.N.M. 1992); United States v. Colorado, 990 F.2d 1565, 23 ELR 20800 (10th Cir. 1993), cert. denied, 62 U.S.L.W. 3378 (Jan. 24, 1994).

146. See, e.g., Bodne v. George A. Rheman Co., 811 F. Supp. 218, 221 (D.S.C. 1993); cf. Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1521, 18 ELR 20237, 20239 (9th Cir. 1987). Presumably the statute is only significant in those jurisdictions that allow suits for restitution of costs incurred responding to past endangerments.

147. 42 U.S.C. § 6972(b)(2)(F), ELR STAT. RCRA § 7002(b)(2)(F); see Acme Printing Ink Co., 812 F. Supp. at 1510, 23 ELR at 21067 (service of the attorney general need not be recorded in the complaint); Dominick's Finer Foods, Inc. v. Amoco Oil Co., No. 93 C 4210, 1993 WL 524808 (N.D. Ill. Dec. 15, 1993) (service on the attorney general that occurs after filing of the complaint is not a basis for dismissing the RCRA's claim).

148. The doctrine of standing requires plaintiffs to allege a "personal stake" in the outcome of each case sufficient to ensure that "the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution." Sierra Club v. Morton, 405 U.S. 727, 732, 2 ELR 20192 (1972), quoting Flast v. Cohen, 392 U.S. 83 (1968). To demonstrate standing under federal citizen suit provisions, a plaintiff must prove it has suffered or will suffer at least some injury that may be redressed by judicial action. Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979); Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 8 ELR 20545 (1978). In the case of a citizen organization, the requirement means that the organization must show that at least one of its members has been injured or is threatened with injury. See, e.g., Sierra Club v. Aluminum Co. of America, 585 F. Supp. 842, 14 ELR 20663 (N.D.N.Y. 1984); United Automobile Workers v. Brock, 477 U.S. 274, 281-84 (1986). See also Morton, 405 U.S. at 739, 2 ELR at 20195 ("It is clear that an organization whose members are injured may represent those members in a proceeding for judicial review."). Despite the U.S. Supreme Court's alleged "slash and burn expedition through the law of environmental standing," Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2160, 22 ELR 20913, 20927 (U.S. 1992) (Blackmun, J., dissenting), the injury plaintiffs must suffer or be threatened with need not be physical or economic; injury to aesthetic, conservational or recreational interests is sufficient. Morton, 405 U.S. at 735, 738, 2 ELR at 20194-95; see also, e.g., Public Interest Research Group of New Jersey v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 71, 20 ELR 21216, 21218 (3d Cir. 1990), cert. denied, 498 U.S. 1109 (1991) (upholding standing based on injury to aesthetic and recreational interests).

149. In Coalition for Health Concern v. LWD, Inc., 834 F. Supp. 953, 955-56 (W.D. Ky. 1993), for example, the court noted:

Congress chose to preclude jurisdiction over citizen suits for RCRA violations (i.e., suits brought pursuant to § 6972(a)(1)(A)) only when the plaintiff has failed to properly notify the EPA Administrator, the appropriate State, and the alleged violator, or when the Administrator or State has commenced and is diligently prosecuting a court action. 42 U.S.C. § 6972(b)(1). To hold that pending administrative proceedings constitute an additional circumstance precluding jurisdiction would be to blatantly defy the "undisputed constitutional principle that Congress, and not the judiciary, defines the scope of federal jurisdiction within the constitutionally permissible bounds." New Orleans [Public Serv. v. Council of New Orleans, 491 U.S. 350] at 359 [(1989)].… Sierra Club v. U.S. Dept. of Energy, 734 F. Supp. 946, 951 (D. Colo. 1990) (delaying RCRA citizen suit pending outcome of state administrative negotiations would defeat Congress' intent to allow citizen enforcement whenever there is no diligent prosecution in court); U.S. Environmental Protection Agency (EPA) v. Environmental Waste Control, Inc., 710 F. Supp. 1172, 1194 (N.D. Ind. 1989), aff'd, 917 F.2d 327 (7th Cir.), cert. denied, 449 U.S. 975, 111 S. Ct. 1621, 113 L. Ed. 2d 719 (1991) (use of primary jurisdiction doctrine to bar federal citizen suit would thwart legislative intent behind RCRA and CERCLA); Middlesex City Bd. of Chosen Freeholders v. New Jersey, 645 F. Supp. 715, 720 (D.N.J. 1986) (RCRA's legislative scheme contemplated simultaneous state administrative and federal citizen suit proceedings relating to a waste disposal facility); See Student Pub. Interest Research Group v. P.D. Oil & Chem. Storage, Inc., 627 F. Supp. 1074 (D.N.J. 1986) (abstention doctrine did not apply where Congress did not intend for state governmental action to preclude citizen suits under [the] Federal Water Pollution Control Act['s] scheme).

Id. at 961-62, but see Palumbo v. Waste Technologies Indus., 989 F.2d 156, 159, 23 ELR 20876, 20878 (4th Cir. 1993) (denying jurisdiction on, inter alia, Burford abstention grounds over a collateral attack on a state-issued hazardous waste permit).

150. 42 U.S.C. § 6926(a), ELR STAT. RCRA § 3006(a).

151. See Coalition for Health Concern v. LWD, Inc., 834 F. Supp. at 958-59 (W.D. Ky. 1993); City of Heath, Ohio v. Ashland Oil, Inc., 834 F. Supp. 971 (S.D. Ohio 1993); see generally Adam Babich, Is RCRA Enforceable by Citizen Suit in States With Authorized Hazardous Waste Programs?, 23 ELR 10536 (Sept. 1993).

152. Dague v. City of Burlington, 935 F.2d 1343, 1352-53, 21 ELR 21133, 21137 (2d Cir. 1991), rev'd on other grounds, 112 S. Ct. 964, 22 ELR 21099 (1992); cf. United States v. Waste Indus., 734 F.2d 159, 164, 14 ELR 20461, 20462 (4th Cir. 1984) (§ 7003 is part of Subtitle G, not Subtitle C).

153. See Tafflin v. Levitt, 493 U.S. 455, 465-66 (1990) (holding that states have concurrent jurisdiction over civil claims under the Racketeer Influenced and Corrupt Organizations Act); but see Middlesex City Bd. of Chosen Freeholders v. New Jersey, 645 F. Supp. 715, 719, 17 ELR 20475, 20476 (D.N.J. 1986).

154. See, e.g., City of Toledo v. Beazer Materials & Servs, Inc., 833 F. Supp. 646, 658 (N.D. Ohio 1993). See also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966).

155. The combination of CERCLA §§ 104(a), 106(a), 107(a), 107(c)(3), 113(h) & 113(j) come about as close as imaginable to providing the raw material for unlosable lawsuits by government enforcers. 42 U.S.C. §§ 9604(a), 9606(a), 9607(a), (c)(3), 9613(h), (j), ELR STAT. CERCLA §§ 104(a), 106(a), 107(a), (c)(3), 113(h), (j). Under these provisions, EPA may:

(1) issue orders that require potentially liable parities to conduct removal or remedial action (§ 106(a)), which orders are insulated from judicial review pending Agency enforcement (§ 113(h));

(2) perform a government-financed cleanup (§ 104(a)) and threaten responsible parties with liability for treble damages (§ 107(c)(3)), plus response costs (§ 107(a)), unless they carry out those unreviewable orders; and then

(3) upon enforcement of the orders, claim the right to have courts employ a deferential "arbitrary and capricious" standard of review (§ 113(j)). See generally United States v. Ottati & Goss, Inc., 900 F.2d 429, 433, 20 ELR 20856, 20857-58 (1st Cir. 1990). There are no panaceas, however. In the Ottati & Goss case, EPA and the U.S. Justice Department -- despite the powerful tools at their disposal -- turned in a performance that led the court to wonder

Why … has this case taken ten years to litigate?… Why has the government not found a way to express its technical problems in English.… Has the government itself caused a significant amount of contamination through negligent cleanup efforts? Has the government, in fact, spent enormous administrative (and judicial) resources in an effort to force improvement from "quite clean" … to "extremely clean," at three to four times the "quite clean" costs?

Id. at 444, 20 ELR 20864.

156. See generally Babich, supra note 3, at 755-64 & n. 120 (arguing that regardless of EPA's lack of success in conducting efficient cleanups under CERCLA, the liability provisions of CERCLA and RCRA provide responsible parties with powerful incentives to conduct their own, presumably more efficient, cleanups).

24 ELR 10122 | Environmental Law Reporter | copyright © 1994 | All rights reserved