CHAPTER 5 THE DEFENCE OF HAZARDOUS WASTE ENFORCEMENT ACTIONS

• Jurisdiction: United States

Natural Resources Administrative Law and Procedure
(Nov 1981)
CHAPTER 5
THE DEFENCE OF HAZARDOUS WASTE ENFORCEMENT ACTIONS
Edward W. Warren
Kirkland & Ellis
Washington, D.C. ^*

TABLE OF CONTENTS

SYNOPSIS
PAGE

INTRODUCTION

I. STATUTORY BASES FOR HAZARDOUS WASTE ENFORCEMENT ACTIONS

A. Imminent Hazard Provisions of the Resource Conservation and Recovery Act ("RCRA") and Other Environmental Statutes

B. The Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("Superfund")

1. Fund-Financed Response Action

2. Privately-Financed Response Action

II. PRACTICAL CONSIDERATIONS INVOLVED IN THE DEFENSE OF HAZARDOUS WASTE ENFORCEMENT ACTIONS

A. Hypothetical Hazardous Waste Enforcement Case

B. Preliminary Investigatory Phase

1. General Guidelines

2. Internal Factual Investigation: Your Own Client

a. Involvement of Client

b. Nature of Hazard

3. Site Investigation

C. Conduct of the Case

1. General Considerations

2. Settlement Considerations

a. Joint Settlement

b. Unilateral Settlement

3. Litigation Considerations

CONCLUSION

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INTRODUCTION

My presentation this afternoon addresses some of the issues which may arise in defending agency-initated enforcement actions involving hazardous wastes. I focus particularly on "retrospective" hazardous waste enforcement activity, that is, enforcement activity designed to alleviate the present-day impact of facilities or sites created by past management or disposal practices.¹

For a number of reasons, statutes which deal with the lingering effects of old dump sites will be the source of highly significant environmental enforcement litigation over the next several years.

First, hazardous waste enforcement litigation will expand rapidly in the years to come even if the Reagan administration reduces enforcement activities under other environmental programs. Carol E. Dinkins, the Assistant Attorney General for Land and National Resources, estimated that 43% of EPA's Superfund personnel has been assigned to enforcement, a percentage substantially higher than that in other EPA

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programs.² Both Ms. Dinkins and Anne M. Gorsuch, the Administrator of EPA, have indicated their intention to enforce vigorously statutory requirements relating to hazardous wastes.³ Indeed, EPA's recent issuance of a list of 114 top-priority sites proposed for response action under Superfund brings us closer to the day when EPA enforcement activity on old dump sites will start in earnest.⁴

Second, retrospective enforcement actions will be characterized by unprecedented complexity, even relative to other types of environmental litigation. Hazardous waste enforcement actions may include counts under a number of federal and state laws which are potentially applicable to the environmental effects of hazardous wastes.⁵ The many possible enforcement routes represented by these overlapping statutory schemes undoubtedly will spawn confusion for counsel and the parties. Moreover, liability and, perhaps more importantly, the scope and nature of clean up actions will generally be determined on the basis of highly technical scientific and engineering issues not normally handled by trial counsel or the courts.

Third, hazardous waste enforcement actions typically involve a number of parties who may bear some responsibility for a dump site.

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Thus, defendants may include present and past owners of the site, persons who operated the site, and generators and transporters who contributed wastes to the site. These potential defendants can be expected to have different interests that may be reflected in divergent positions on key factual, legal and policy questions at issue in litigation.

Fourth, retrospective enforcement actions may assert immense claims for clean up costs and other damages from defendants involved with hazardous waste dump sites. For example, Ms. Dinkins noted that eleven hazardous waste enforcement actions settled to date generated privately-financed clean up activity valued at about $53 million, or nearly $5 million per incident.⁶ Even these costs are dwarfed by the total extent of expenditures which may be required to clean up unstable hazardous waste sites which now exist in this country. An EPA spokesman has estimated that the total clean up costs range between $26.2 and $44.1 billion.⁷

In my presentation today, I first outline the key statutory provisions underlying various types of hazardous waste enforcement actions. Then, using a hypothetical case for illustrative purposes, I describe some of the practical considerations raised in preparing for and litigating an enforcement action. As you will see, fifty minutes is hardly enough time to scratch the surface of the novel and exceedingly complex issues presented by these cases.

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1. STATUTORY BASES FOR HAZARDOUS WASTE ENFORCEMENT ACTIONS.

A. Imminent Hazard Provisions of the Resource Conservation and Recovery Act ("RCRA") and Other Environmental Statutes.

The hazardous waste enforcement actions brought to date have been based largely upon the "imminent hazard" provisions of RCRA⁸ and other major environmental statutes, including the Clean Air Act,⁹ the Clean Water Act,¹⁰ the Safe Drinking Water Act,¹¹ and the Toxic Substances Control Act.¹²

Section 7003 of RCRA, for example, authorizes EPA to bring injunctive actions in federal court against persons "contributing to" the "handling, storage, treatment, transportation or disposal" of hazardous waste in a manner that "may present an imminent and substantial endangerment to health or the environment."¹³ There can be little question

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that this provision authorizes injunctions requiring responsible parties to refrain from future affirmative disposal activities.¹⁴ Several courts also have held that Section 7003 of RCRA states a cause of action for injunctive relief to remedy or prevent adverse environmental effects caused or threatened by an existing hazardous waste dump site — whether or not the site is currently in operation.¹⁵

Section 7003 of RCRA thus may be broadly applicable even to inactive sites leaking hazardous wastes to the environment, on the theory that such "leaking" constitutes a continuing "disposal" within RCRA's broad definition of that term.¹⁶ As one court has stated, "disposal need not result from affirmative action by the defendants but may be the result of passive inaction."¹⁷

The analogous provisions of other statutes vary somewhat,¹⁸ but also appear to authorize EPA enforcement actions to prevent or mitigate situations where hazardous waste sites affect, or threaten to affect, public drinking water systems, navigable waters or the ambient atmosphere in a way that may create an "imminent and substantial

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endangerment" to human health.¹⁹ Counts under these statutes frequently are included in and arguably add broader remedies to enforcement actions brought under Section 7003 of RCRA.²⁰

Although courts generally agree that Section 7003 of RCRA authorizes EPA to address present-day environmental hazards caused by existing waste sites and facilities, the scope of relief available under Section 7003 and related imminent hazard provisions is far from clear. Recent cases tend to suggest that the relief available under these provisions may turn out to be more limited that one might originally have suspected.

Courts have found, for example, that Section 7003 is intended primarily to provide a jurisdictional basis for federal enforcement of substantive duties and obligations having their origin in common law and other statutory and regulatory provisions.²¹ This year, in City of Milwaukee v. Illinois²² and Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n,²³ the Supreme Court held that the federal common law of nuisance in the area of water pollution was entirely pre-empted by the passage of the comprehensive Federal Water Pollution Control Act of 1972.

The City of Millwaukee case was extended to the area of hazardous wastes in United States v. Price.²⁴ In the court's words, "[t]he comprehensive nature of the schemes established by the RCRA and the

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CERCLA [Superfund] require us to conclude that, if federal common law ever governed this type of activity, it has since been preempted by those statutes."²⁵ If this ruling is correct, it may broadly preclude the government from relying on federal common law either as an independent basis for relief or as a basis for interpreting the requirements of Section 7003 and similar provisions.²⁶

The availability of injunctive relief under Section 7003 and similar imminent hazard provisions is governed by the Federal Rules of Civil Procedure and the court's general equitable powers.²⁷ Thus, to obtain a preliminary injunction, the government must show first that a hazardous waste site poses an "imminent and substantial endangerment" to health or the environment, and, second that, in the absence of preliminary relief, the site may cause irreparable harm.²⁸

Absent a compelling factual showing, injunctive relief may be limited, or denied altogether. For example, in Price, even though the court obviously was disturbed by the potential health hazards, it refused to require defendants: (1) to fund a study of the leachate escaping from the landfill or (2) to provide an alternate water supply to owners of contaminated wells.²⁹ Further, in Vertac, the court granted preliminary relief against the defendant only after balancing "the benefits conferred and the hazards created by [the] facility."³⁰

Moreover, the scope of permanent injunctive relief available after trial under Section 7003 and other imminent hazard provisions is also an open question. In Price, for example, the court indicated that Section 7003 authorized injunctive relief preventing the continued escape of

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hazardous wastes from a landfill but did not "authorize a general clean up of dormant waste disposal sites...[and thus...