Local Governments and the Environment: Part Ii, Rcra

• Publication year: 1988
• Pages: 2159
• Citation: Vol. 17 No. 11 Pg. 2159

17 Colo.Law. 2159 Colorado Lawyer 1988.

1988, November, Pg. 2159. Local Governments and the Environment: Part II, RCRA

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Vol. 17, No. 11, Pg. 2159

Local Governments and the Environment: Part II, RCRA

by Kent E. Hanson and Adam Babich

Local governments are ideally situated to address environmental problems with sensitivity to the concerns of local citizens, environmentalists and business interests and to strike a rational balance between short- and long-term environmental and economic goals. However, the fact that few local governments are taking the lead in the cleanup of hazardous wastes suggests that they have yet to understand the power and scope of their authority under state and federal environmental laws. As described in Part I of this article (published in the October issue at 1997), the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") provides affordable means for local governments to obtain environmental cleanups and to recover damages for injuries to natural resources.(fn1)

This Part II discusses enforcement options available under the federal Resource Conservation and Recovery Act ("RCRA") and state laws. Like CERCLA, RCRA and state environmental laws have been carefully designed to achieve cleanup at the cost of polluters rather than governments and their taxpayers. Thus, despite the fact that outside legal and technical expertise generally is necessary, enforcement under state and federal environmental statutes is an affordable option for local governments seeking to control their own environmental and economic destinies.

Local Governments As Plaintiffs

Contamination of the environment by toxic, carcinogenic mutagenic and teratogenic substances is a local problem as well as a national problem. Myriad chemicals (which may be defined as "hazardous substances," "hazardous waste" or "solid waste" under various environmental laws) have devastating impacts on public health and environmental quality and, indirectly, on property values and the economic health of local communities. Because of the proliferation of dangerous chemicals in commerce and in day-to-day activities, liability for contamination is widespread and may be imposed upon business interests (e.g., stockholders of corporations and financial institutions) only marginally connected with the environmental problems at issue and upon local governments themselves

If applied rigidly or irresponsibly, statutes carefully designed to provide solutions to environmental contamination may cause as many problems as they solve. When such statutes are applied by local governments, the power of statutory enforcement and liability provisions is tempered by sensitivity to local concerns. Thus, local governments are in a unique position to pursue the critical job of environmental cleanup with a maximum of fairness and a minimum of economic dislocation.

The Resource Conservation And Recovery Act

General Framework

Congress intended RCRA to close the "last remaining loophole in environmental law"---unregulated land disposal of hazardous and solid waste.(fn2) RCRA is designed to protect public health and the environment by regulating hazardous waste management "from generation to disposal."(fn3) To this end, RCRA and its implementing regulations contain specific, comprehensive and, unfortunately, complex requirements governing the management, transportation or disposal of hazardous waste. RCRA empowers local governments to enforce these requirements in court actions for substantial penalties and injunctive relief. In addition, the statute gives local governments broad authority to bring actions in federal district court for abatement of waste-related public nuisances.(fn4) Congress ensured that these enforcement options would be affordable by authorizing courts to award attorney and expert witness fees and other litigation costs to the substantially prevailing party.(fn5)

RCRA authorizes local governments to enforce "any permit, standard, regulation, condition, requirement, prohibition, or order" against current violators, including violators of the statute's pro-

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hibition of "open dumping" of solid waste.(fn6) Violations need not have caused the release of hazardous materials to be actionable. Consequently, local governments may bring enforcement actions to correct violations before they harm the public or environment or to abate conditions which already are causing harm

Violations of RCRA's statutory, regulatory or permit requirements give rise to liability regardless of negligence or fault. Violators are subject to civil penalties of up to $25,000 per day for each violation. Penalties are awarded to the U.S. Treasury. In the context of settlement, however, local governments may waive some or all penalties in exchange for the...