United States v. Hardage

No. CIV-80-1031-W (W.D. Okla. September 29, 1982)

In a suit by the federal government against an owner-operator of a hazardous waste disposal site, the court holds that § 7003(a) of the Resource Conservation and Recovery Act (RCRA) confers strict liability and that § 104(a)(1)(A) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) authorizes federal action without the presence of an imminent and substantial danger to health. The court finds that, based on the plain meaning of § 7003(a) of RCRA and the hazardous nature of the activities specified in that section, the statute confers liability without regard to fault where the activity may present an imminent and substantial danger to health or the environment. The court also holds that under § 104(a)(1) of CERCLA an imminent or substantial danger need not be present prior to federal action in the case of the release or threatened release of hazardous substances. The imminent and substantial danger requirement in § 104(a)(1)(B) only applies to the release or threatened release of nonhazardous pollutants or contaminants.

Counsel for Plaintiff
William S. Price, U.S. Attorney; David Lee
4434 U.S. Cthse., Oklahoma City OK 73102
(405) 687-2543

Mary E. Bielefeld
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-3086

Counsel for Defendant
Clyde A. Muchmore
Crowe & Dunlevy
1800 Mid-America Twr., Oklahoma City OK 73102
(405) 235-7700

[13 ELR 20188]

West, J.:

Order

The parties have asked the Court to determine prior to trial several issues of law based upon undisputed facts. Two of the contested legal issues concern what the government will be required to prove at the liability stage of the proceeding.

Because the Court has bifurcated these proceedings, the Court will defer ruling on whether the Court may order the use of "escrow account" funds for remedial work at the site and whether the defendant is liable for future response and future remedial costs expended at the site until liability has been determined.

The defendant contends that he is not strictly liable under section 7003 of RCRA and that he is only liable under this section if the government proves him negligent. The defendant does not contend that section 7003 does not confer substantive liability, but contends that the statute does not express a clear intent of Congress to establish strict liability.

The defendant has cited no cases where a negligence standard has been applied to the owner-operator of a hazardous waste disposal site under section 7003(a).

Section 7003(a) of RCRA provides in pertinent part:

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 to 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 or to take such other action as may be necessary.

42 U.S.C. 6973(a).

The Court finds that the plain meaning of the statute is to confer liability upon any person contributing to the handling, storage, tretment, transportation, or disposal of a solid or hazardous waste where such activity may present an imminent and substantial endangerment to the health or to the environment [13 ELR 20189] without regard to fault. It would be improper to read a negligence standard into the statute, not only because of the plain language of the statute but because of the hazardous nature of the activity involved.

Another issue of statutory interpretation is raised in the defendant's trial brief. The defendant contends that the release or threat of release of a hazardous substance must present an imminent and substantial endangerment as a condition precedent to federal response action under section 104 of CERCLA.

CERCLA, section 104(a), 42 U.S.C. § 9604(a), provides in part as follows:

Sec. 104(a)(1) Whenever (A) any hazardous substance is released, or there is a substantial threat of such a release into the environment, or (B) there is a release or substantial threat of a release into the environment of any pollutant or contaminant which may present an imminent and substantial danger to the public health or welfare, the President is authorized to act . . . .

The Court finds that the government is correct that the use of the word "or" between subsections 104(a)(1)(A) and 104(a)(1)(B) is clearly disjunctive. Under section 104(a)(1)(A), Federal response activity is authorized whenever there is a release or threatened release into the environment of any "hazardous substance," as defined in section 101(14) of CERCLA, without regard to "imminent and substantial danger." Substances not within the statutory definition of "hazardous substance" would trigger the imminent and substantial danger requirement.

Accordingly, the Court finds as a matter of law that if the defendant is found to be a person contributing to the handling, storage, treatment, transportation or disposal of a solid or hazardous waste where such activity may present an imminent and substantial endangerment to the health or to the environment, he may be held liable without regard to fault. Additionally, the Court finds as a matter of law that Federal response activity is authorized whenever there is a release or threatened release into the environment of any "hazardous substance," as defined in section 101(14) of CERCLA, without regard to "imminent and substantial" danger.