United States v. Diamond Shamrock Corp.

No. C80-1857 (N.D. Ohio May 29, 1981)

The district court holds that § 7003 of the Resource Conservation and Recovery Act (RCRA) provides a substantive cause of action applicable to acts preceding the statute's enactment that resulted in present conditions of imminent hazard. Initially, the court rules that § 7003 establishes a substantive standard of liability. Next, it rules that plaintiff's cause of action under the federal common law of nuisance is precluded by the failure to allege interstate effects of pollution. However, the complaint does state a valid claim under § 7003, notwithstanding that defendant's disposal of hazardous waste ceased four years prior to the enactment of RCRA. The court determines that the language, legislative history, and purposes of RCRA support the conclusion that § 7003 is applicable to present conditions resulting from antecedent acts. The court also rules that this does not constitute an impermissible retroactive application of RCRA.

Counsel for Plaintiff
Kathleen Ann Sutula, U.S. Attorney
Suite 500, 1404 E. 9th St., Cleveland OH 44114
(216) 522-4389

Counsel for Defendant
Dennis M. Kelly, Ronald Jenke
Jones, Day, Reavis & Pogue
1700 Union Commerce Bldg., Cleveland OH 44115
(216) 696-3939

[12 ELR 20820]

Krupansky, J.:

Memorandum and Order

This is a civil action initiated by plaintiff United States under § 7003 of the Resource Conservation and Recovery Act of 1976 as amended (RCRA), 42 U.S.C. § 6973, and the federal common law doctrine of nuisance seeking injunctive relief designed to abate an alleged imminent and substantial endangerment to health and the environment arising from the disposal of hazardous chromium wastes by defendant Diamond Shamrock Corporation (Diamond Shamrock) on property in Painesville, Ohio. Hexavalent chromium, an adduced known human carcinogen and a substance highly toxic to aquatic life, is averred to have migrated from defendant's disposal site into waters, including the Grand River, thereby endangering the aquatic life therein. Plaintiff also demands reimbursement of expenditures incurred in the investigation of defendant's adduced violations. Jurisdiction is purported to arise pursuant to 28 U.S.C. § 1345 and 42 U.S.C. § 6973. Notice of commencement of this action has been provided to the State of Ohio as required by 42 U.S.C. § 6973.

The complaint, pleaded with specificity, purports the following: between the years 1931 and 1972 approximately three-quarters of a million tons of chromate wastes were hauled from defendant's chromate plant in railroad cars and open-dumped, discharged, deposited and placed in piles on the surface of the chromate site; approximately 7,500 tons of said wastes are comprised of hexavalent chromium, a known carcinogenic; the current United States Environmental Protection Agency recommended water criterion for hexavalent chromium for the protection of aquatic life is 10 parts per billion (ppb) in ambient water as a 24-hour average; the State of ohio water quality standard, approved by the U.S. Environmental Protection Agency, for total chromium (trivalent and hexavalent) in the Grand River downstream from the chromate site is 100 ppb; the hexavalent chromium is migrating into the entering the environment and waters, including the Grand River which flows within 40 feet of the chromate site; eight individual samples taken from the Grand River adjacent to and downstream from the chromate site on July 31, 1980 ranged from 102 ppb to 392 ppb of hexavalent chromium; in two different 24-hour river sampling surveys performed by EPA on July 31-August 1, and August 13-14, 1980 hexavalent chromium was discovered in excess of EPA's proposed Water Quality Criteria of 10 ppb for aquatic life (results of the 24-hour EPA composite sampling surveys on the Grand River revealed 24-hour average concentrations of 40 ppb and 60 ppb hexavalent chromium approximately 1,300 feet downstream from the chromate site); the aquatic life, some of which are listed on the endangered species list, are endangered by the chromium leaving defendant's disposal site.

Presently before the Court is defendant Diamond Shamrock's Motion for Summary Judgment pursuant to Rule 56, FED. R. CIV. P., which states in pertinent part:

(c) Motion and Proceedings Thereon . . . . The Judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The Sixth Circuit enunciated the standard to be applied to the determination of a Rule 56 motion:

In ruling on a motion for summary judgment, the court must construe the evidence in its most favorable light in favor of the party opposing the motion and against the movant. Further, the papers supporting the movant are closely scrutinized, whereas the opponent's are indulgently treated.

Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir. 1962), followed by: Bd. of Educ. of [the City] School Dist. of the City of Cincinnati, et al. v. HEW, 532 F.2d 1070, 1071 (6th Cir. 1976); U.S. v. Articles of Device Consisting of Three Devices . . . "Diapulse," et al., 527 F.2d 1008, 1011 (6th Cir. 1976); EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1093 (6th Cir. 1974); Bosely, et al. v. City of Euclid, et al., 496 F.2d 193 (6th Cir. 1974); Avery Products Corp. v. Morgan Adhesives Co., 496 F.2d 254, 257 (6th Cir. 1974). See also U.S. v. Diebold, 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962).

This Motion presents the threshold issue of whether plaintiff's action as founded upon the doctrine of federal common law nuisance is precluded pursuant to a failure to aver interstate effects of pollution. The instant complaintdoes not purport directly or indirectly the existence of an endangerment to an environment situated outside the State of Ohio.

It is incumbent upon this Court to initially distinguish between an action founded upon the federal common law doctrine of nuisance and an action founded upon 42 U.S.C. § 6973 which states:

Imminent Hazard

(a) Authority of Administrator. — Notwithstanding any other provision of this Act, upon receipt of evidence that the handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste may present an imminent and substantial endangerment to health or the environment, the Administrator may bring suit on behalf of the United States in the appropriate district court to immediately restrain any person contributing to such handling, storage, treatment, transportation or disposal to stop such handling, storage, treatment, transportation or disposal or to take such other action as may be necessary. The Administrator shall provide notice to the affected State of any such suit. The Administrator may also, after notice to the affected State, take other action under this section including, but not limited to, issuing such orders as may be necessary to protect public health and the environment.

(b) Violations. — Any person who willfully violates, or fails or refuses to comply with, any order of the Administrator under subsection (a) of this action may, in an action brought in the appropriate United States district court to enforce such order, be fined not more than $5,000 for each day in which such violation occurs or such failure to comply continues.

42 U.S.C. § 6973, as amended, Pub. L. 96-482, 94 Stat. 2348 (October 21, 1980).

Precedent exists in support of the proposition that § 6973 is solely jurisdiction in nature. Midwest Solvent Recovery, Inc., 484 F. Supp. 138 [10 ELR 20136] (N.D. Ind. 1980) held that the broadly encompassing "imminent hazard" provision of § 6973 could not fairly be interpreted as a source of substantive duties or liabilities:

[B]ecause § (6973) is as broadly worded as it is, if it were intended to function as a liability-creating provision, it would appear to make liable even those who contribute to the handling, storage, treatment, transportation or disposal of solid or hazardous wastes in such a way that an imminent and substantial endangerment to health or the environment is created. Any provision that could logically be read so to expand the set of persons liable under the federal solid and hazardous waste regulatory scheme would surely be identified as such in the legislative history. Finally, (RCRA) elsewhere establishes by regulations the standards of conduct that must be followed by those who generate, [12 ELR 20821] transport, or own or operate facilities that treat, store, or dispose of hazardous wastes.

Id. at 144.

This conclusion found acceptance in U.S. v. Solvents Recovery Service of New England, 496 F. Supp. 1127 [10 ELR 20796] (D. Conn. 1980) which stated:

[S]ection (6973) does not itself establish standards for determining the lawfulness of the conduct of those sued by the United States. In an appropriate case, those standards might be found elsewhere in RCRA or in the regulations promulgated pursuant to RCRA, or in the federal common law of nuisance . . . .

Id. at 1134. Accordingly, these authorities interpret § 6973 as a jurisdictional vehicle devoid of substantive standards.

The Court notes, however, that § 6973 is both jurisdictional and substantive in nature. The standard for determining the impropriety of the conduct sought to be enjoined is provided by § 6973 to be whether a "hazardous waste" presents an "imminent and substantial endangerment to health or the environment." Section 6973 provides for injunctive relief in emergency situations which the EPA Administrator discretionally determines, upon receipt of evidence, to warrant immediate abatement. The environmental endangerment must be both imminent and substantial, concepts with rich judicial and statutory histories. This standard is contrasted with the other provisions of RCRA, and regulations promulgated thereunder, which address day-to-day regulation of waste disposal and other less imminent and threatening situations.

The conclusion of this Court that § 6973 is substantive is supported by U.S. v. Vertac Chemical Corporation, 489 F. Supp. 870 [10 ELR 20709] (E.D. Ark. 1980), wherein "the parties . . . focused their attention on whether discharges from the (waste) site constitute[d] 'imminent and substantial endangerment.'" Id. at 884-85.

Last, it is noted that broadly stated substantive standards are not foreign to remedial environmental statutes. See e.g., Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. ("imminent and substantial endangerment," 33 U.S.C. § 1364); Toxic Substances Control Act, 15 U.S.C. § 2606 ("imminently hazardous chemical substance").

The foregoing establishes the distinguishability of an action founded upon the federal common law doctrine of nuisance from an action founded upon § 6973. Axiomatically, these two causes of action will be considered separately, beginning with the common law action.

Since Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 83 L. Ed. 1188 (1938) repudiated the concept of a general federal common law, specialized common laws have developed in areas presenting an overriding federal interest and a need for uniform rules of decision. The Supreme Court decision of Illinois v. City of Milwaukee, 406 U.S. 91, 92 S. Ct. 1385, 31 L. Ed. 2d 712 [2 ELR 20201] (1972), in initially applying federal common law in the interests of federalism to an action involving the pollution of Lake Michigan (bounded by four States), has been interpreted by the majority of circuits as necessitating interstate effects of pollution as a prerequisite to a federal common law nuisance action. See: Ancarrow v. City of Richmond, 600 F.2d 443 [9 ELR 20421] (4th Cir. 1979), cert. denied, 444 U.S. 922, 100 S. Ct. 523, 62 L. Ed. 2d 421 (1979) ("No federal common law action will lie . . . 'where there is no allegation of interstate effect' attending the pollution." Id. at 445, citing Committee for Consideration of Jones Falls Sewage System v. Train, 539 F.2d 1006, 1010 [6 ELR 20703] (4th Cir. 1976)); Reserve Mining Co. v. EPA, 514 F.2d 492, 520-21 [5 ELR 20596] (8thCir. 1975), modified on other grounds, 529 F.2d 181 [6 ELR 20432] (1976) ("[F]ederal nuisance law contemplates, at a minimum, interstate pollution of air or water." Id. at 520); Parsell v. Shell Oil Co., 421 F. Supp. 1275, 1281 [7 ELR 20149] (D. Conn. 1976), aff'd without opinion sub nom. East End Yacht Club v. Shell Oil Co., 573 F.2d 1289 (2nd Cir. 1977). See also, Texas v. Pankey, 441 F.2d 236 [1 ELR 20089] (10th Cir. 1971); Michie v. Great Lakes Steel Division, 495 F.2d 213, 216 n.2 [4 ELR 20324] (9th Cir.), cert. denied, 419 U.S. 997 (1974) (dictum). These authorities are persuasive. The increasing federal interest in the abatement of pollution, as evidenced by the relatively recent enactment of various remedial environmental statutes, provides insufficient justification to abandon the federal common law requirement of interstate pollution effects as implicitly established in Illinois v. City of Milwaukee, supra. On the contrary, the expansion of legislation into environmental areas creates less of a need for the fashioning of federal common law. See, e.g., City of Milwaukee v. Illinois, Case No. 79-408 [11 ELR 20406] (Apr. 28, 1981), wherein the Supreme Court concluded that the Federal Water Pollution Control Act Amendments of 1972 have occupied the filed of water pollution control, thereby making inappropriate the "application of often vague and indeterminate nuisance concepts and maxims of equity jurisprudence." Slip op. at 10. Accordingly, this Court must reject those authorities which have directly or indirectly recognized the congnizability of nuisance actions without the presentation of interstate effects of pollution. See: U.S. v Solvents Recovery Service of New England, 496 F. Supp. 1127 [10 ELR 20796] (D. Conn. 1980); Illinois v. Outboard Marine Corp., 619 F.2d 623, 630 [10 ELR 20323] (7th Cir. 1980), cert. pending, 49 U.S.L.W. 3043 (Aug. 12, 1980); In re Oswego Barge Corp., 439 F. Supp. 312, 322 (N.D.N.Y. 1977); U.S. ex rel. Scott v. U.S. Steel Corp., 356 F. Supp. 556 (N.D. Ill. 1972); U.S. v. Ira S. Bushey & Sons, Inc., 346 F. Supp. 145 [2 ELR 20557] (D. Vt. 1973), aff'd mem., 487 F.2d 1393 (2nd Cir. 1973), cert. denied, 417 U.S. 976 (1974).

No genuine issue exists as to the material fact of whether the alleged environmental endangerment encompasses territories outside the State of Ohio. Further, defendant is entitled to judgment as a matter of law with respect to plaintiff's cause of action founded upon the federal doctrine of common law nuisance pursuant to plaintiff's failure to adduce interstate effects of pollution. Accordingly, defendant's Motion for Summary Judgment on this claim must be granted.

Defendant's Motion for Summary Judgment also presents the threshold issue of whether § 6973 is applicable to situations wherein the alleged imminent and substantial endangerment to the environment is resultive from acts engaged in antecedent to the enactment of the statute. The affidavit of George R. Bargieri, former Plant Manager of defendant's Chromate Plant, establishes that all disposal of chromate wastes at the chromate site ceased when the Chromate Plant was closed in January, 1972 and that no chromate wastes have been brought onto the site thereafter. Moreover, § 6973 did not become effective until October 21, 1976.

The determination that § 6973 is applicable to present conditions resulting from antecedent acts is supported by an examination of the language of the statute, other sections of RCRA, and the legislative history thereof, each considered seriatim hereafter.

Section 6973 states in pertinent part:

(a) Authority of Administrator. Notwithstanding any other provision of this Act, upon receipt of evidence that the handling, Storage, treatment, transportation or disposal of any solid waste or hazardous waste may present an imminent and substantial endangerment to health or the environment, the Administrator may bring suit . . . . (emphasis added).

42 U.S.C. § 6973. Clearly this statute does not necessitate the demonstration of active human participation as a prerequisite to its application. Further, the improper "disposal" of solid or hazardous wastes as prohibited by this statute is defined as:

[T]he discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters. (emphasis added).

42 U.S.C. § 6903(3). A "disposal" clearly requires no active human conduct.

The "Objectives" of RCRA also indicate the applicability of § 6973 to existing waste disposal sites without regard to the date of creation of such site. 42 U.S.C. § 6902 states:

The objectives of this chapter are to promote the protection [12 ELR 20822] of health and the environment and to conserve valuable material and energy resources by —

* * *

(3) Prohibiting future open dumping on the land and requiring the conversion of existing open dumps to facilities which do not pose a danger to the environment or to health;

(4) regulating the treatment, storage, transportation, and disposal of hazardous wastes which have adverse effects on health and the environment. (emphasis added).

Although it has been aptly noted that the legislative history of § 6973 is "quite sketchy," Midwest Solvent Recovery, Inc., supra, at 143, guidance is provided by HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE REPORT, 96th Cong., 1st Sess. (1979), Committee Print 96-IFC 31 (Eckhardt Report), wherein § 6973 is referred to as "the only tool that it (RCRA) has to remedy the effects of past disposal practices which were not sound . . . ." Id. at 31. This supportive authority further refers to § 6973 "imminent" as relating to the

nature of the threat rather than identification of the time when the endangerment initially arose. The section, therefore, may be used for events which took place at sometime in the past but which continue to present a threat to the public health or the environment.

Id. at 32. This secondary authority is entitled to "careful consideration." Parker v. Califano, 561 F.2d 320, 339 (D.C. Cir. 1977). See also Bobsee Corp. v. U.S., 411 F.2d 231, 237 n.18 (5th Cir. 1969); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 379-81, 89 S. Ct. 1794, 23 L. Ed. 2d 371 (1968); Sioux Tribe of Indians v. U.S., 316 U.S. 317, 329, 62 S. Ct. 1095, 86 L. Ed. 2d 1501 (1942).

The legislative history of the 1980 Solid Waste Disposal Act Amendments further provides:

The Committee intends that the Administrator use this authority where the risk of serious harm is present . . . . The Administrator's authority under Section (6973) to act in situations presenting an imminent hazard should be used for abandoned sites as well as active ones.

H.R. REPORT NO. 96-191, 96th Cong., 1st Sess. 5 (1979).

Last, the only known reported federal decision to address the instant issue has concluded:

Section (6973) is designed to abate and remedy conditions which constitute imminent hazards to health or the environment. Its focus is on the prevention and amelioration of conditions, rather than the cessation of any particular affirmative human conduct.

* * *

Section (6973) does not on its face discriminate between cases of a present harm caused by past disposal practices and cases of a present harm caused by ongoing practices.

Solvents Recovery Service of New England, supra, at 1139-40.

Accordingly, this Court concludes that § 6973 is applicable to situations wherein the alleged imminent and substantial endangerment to the environment is resultive from acts engaged in antecedent to the enactment of the statute.

The tangent[i]al issue of whether § 6973, as applied to antecedent acts, creates an impermissible retroactive application must be answered negatively. Section 6973 provides for injunctive relief, as opposed to compensatory or punitive relief, of conditions presently existing. To hold that remedial environmental statutes could or should not apply to conduct engaged in antecedent to the enactment of such statutes, when the effects of such conduct create a present environmental threat, would constitute an irrational judicial foreclosure of legislative attempts to rectify pre-existing and currently existing environmental abuses. The Sixth Circuit has stated, in a decision involving the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq., that despite the general rule providing for strict and narrow construction of penal statutes, water pollution legislation is to be afforded a generous construction. U.S. v. Hamel, 551 F.2d 107, 112 [7 ELR 20253] (6th Cir. 1977). See also: U.S. v. Standard Oil Co., 384 U.S. 224, 86 S. Ct. 1427, 16 L. Ed. 2d 492 (1966); U.S. v. Republic Steel Corp., 362 U.S. 482, 80 S. Ct. 884, 4 L. Ed. 2d 903 (1960); U.S. v. Ashland Oil Transportation Co., 504 F.2d 1317 [4 ELR 20784] (6th Cir. 1974). This principle appears to be appropriately applicable to other remedial environmental statutes such as § 6973.

The foregoing establishes that § 6973 provides a viable substantivecause of action as applied to the instant facts. There currently exists a genuine issue relating to the material fact of whether defendant's waste disposal site is presently creating an imminent and substantial endangerment to the environment. Accordingly, Summary Judgment is inappropriate.

In accordance with the foregoing, defendant's Motion for Summary Judgment with respect to plaintiff's cause of action founded upon the federal common law doctrine of nuisance is hereby granted pursuant to plaintiff's failure to aver interstate effects of pollution. Contrawise, defendant's Motion for Summary Judgment relating to the cause of action predicated upon § 6973 is hereby denied.

IT IS SO ORDERED.