NEWCOMER, District Judge.
Before me is defendant Gould, Inc.'s motion to dismiss the amended complaint of plaintiff United States of America ["the government"] in this civil action brought under section 7003 of the Resource Conservation and Recovery Act
Congress has established, through CERCLA, funding and procedures for the Environmental Protection Agency ["EPA"] to use in order to clean up abandoned hazardous waste dump sites. Moreover, Congress has provided, through section 107
The Wade site has been used for disposal of hazardous chemical wastes for a period of time unspecified in the complaint. Generators of hazardous waste products, like Gould, contracted with the ABM Disposal Service (also a defendant in this suit but not involved in this motion) to have the substances drained into tank cars and drums. ABM then brought them to the Wade site and either stored the tanks or drums there, or emptied them directly onto the soil, through which they are currently draining into the Delaware River. On February 2, 1978, a fire broke out on the site which caused further damage to the several thousand drums and tank cars, which are now in a corroding, leaky and charred condition. After the fire, the Environmental Protection Agency (hereinafter "EPA"), in conjunction with the Pennsylvania Department of Environmental Resources, conducted tests on the site which demonstrated, the complaint alleges, that some fifty hazardous chemical substances are currently present in the soil. Some, like benzene, are toxic in themselves, and some, like decane, are potential fire hazards. Several small fires have in fact spontaneously ignited on the site since 1978. Water sampling conducted by the same agencies since 1978 indicates that some of the dangerous chemicals are currently migrating through the soil into the Delaware River.
The complaint alleges that Gould, among others, generated these substances and caused them to be brought to the site; that the substances are hazardous wastes under the definition in section 1004(5), (27) of RCRA
The government filed suit against Gould when it amended its complaint for the second time on November 10, 1981 to include certain off-site generators of the hazardous wastes now on the Wade site. It sought an injunction forbidding any further dumping on the site and ordering Gould, among others, to "abate" the hazard by reimbursing the government for costs incurred
Upon a motion to dismiss brought under F.R.Civ.P. 12(b)(6), the facts alleged in the complaint must be taken as true. I accept, therefore, that as a result of past disposal of hazardous chemical wastes, dangerous chemicals are present in the soil on the Wade site and are currently being discharged into the atmosphere and into the Delaware River. I also accept as true that these discharges constitute an imminent and substantial endangerment to the public health and the environment (Amended Complaint, ¶¶ 35, 45) and that Gould and the others were generators of hazardous chemical wastes which were transported to the Wade site (¶ 46).
The question before me, therefore, is whether, as a matter of law, the statutory provisions relied on by the government confer substantive liability on non-negligent off-site generators of hazardous waste for past disposal of such waste which now creates an imminent hazard.
The government argues that the "imminent hazard" authority created by section 7003 of RCRA and section 106(a) of CERCLA may be used not only to enjoin unsafe ongoing disposal of hazardous waste, but also to abate currently dangerous conditions resulting from unsafe past practices. Plaintiff's Memorandum at 13. Generation of hazardous waste, it further contends, constitutes an unsafe practice, and therefore off-site past generators like Gould are proper defendants under these emergency injunctive relief sections. Plaintiff's Memorandum at 11-12. While it is clear that Congress has provided EPA with a mechanism for cleaning up the Wade site and recouping its costs from generators such as Gould, my reading of the statutory language and the applicable legislative history compels me to conclude that non-negligent off-site generators of hazardous waste who are not currently dumping are not proper defendants under the particular provisions the government cites here.
Because I have concluded that Gould, Inc. is not a proper defendant under either section 7003 or section 106(a), I do not reach the defendant's additional argument that section 106(a) of CERCLA cannot be used against any defendant because the EPA has not yet complied with the statutory mandate to establish and publish guidelines for the use of its imminent hazard authority. See § 106(c) of CERCLA, 42 U.S.C. § 9606(c); Defendant's Memorandum at 10-11; Plaintiff's Memorandum at 33-37.
1. Section 7003 of RCRA.
Section 7003 is the emergency injunctive relief provision of the Resource Conservation and Recovery Act. Congress passed this legislation in 1976 to address the
The parties differ chiefly on two points concerning the proper interpretation of section 7003. The first is whether the term "disposal" in the statute can be read to cover current leaking of waste from a dump site, so that the statute may be used to confer liability on those whose connection with the dump site was entirely in the past. The second is whether, even if the statute can apply to past acts, it can apply to the past acts of non-negligent off-site generators. I will address each point in turn.
The government argues first section 7003 may be applied to past acts which cause current "imminent hazards" and that ongoing or continuing dumping is not required for an action brought under the section. Plaintiff's Memorandum at 13. Several courts which have addressed this particular issue (although not in cases involving off-site generators) have agreed with the government's argument. E.g., United States v. Price, 523 F.Supp. 1055, 1071 (D.N. J.1981); United States v. Diamond Shamrock Corp., No. 80-1857, slip. op. at 7-8 (N.D.Ohio, May 29, 1981); United States v. Solvents Recovery Service, 496 F.Supp. 1127, 139-42 (D.Conn.1980). These courts have stressed the statute's broad definition of the word "disposal,"
The opposing argument — that current leaking into the environment as the result of past unsafe disposal practices is not within the ambit of section 7003 — also receives support from the statutory language and the legislative history. I note first that the section is written in the present tense and that the operative words are those which enable the administrator to bring suit "to stop" and "to immediately restrain" persons contributing to hazardous waste disposal. A straightforward reading of this language leads to the conclusion that its purpose is to allow the government readily to halt dangerous ongoing disposal practices. Moreover, even the broad definition of "disposal," relied on by those courts which have held section 7003 applicable to the results of past acts, seems to focus on the act of dumping itself as the "disposal" which may be enjoined, not the subsequent leaking of dumped waste from the dump site into the environment.
The Committee Reports also support the conclusion that the primary purpose of the statute as a whole, and section 7003 in particular, was to enable the government to identify, control and restrain current unsafe
While I am inclined to the view that current leaking of previously dumped waste does not constitute "disposal" enjoinable under the clear language of section 7003, I need not resolve this issue in light of my conclusion that section 7003 may not, in any case, be used to confer liability on non-negligent past off-site generators of hazardous waste.
The government argues that since section 7003 grants the EPA authority to restrain "any person contributing" to the disposal of hazardous waste, it must therefore encompass "generators" since "[g]enerators are the first and perhaps the most important actors in the chain of events leading to the ultimate disposal of the waste." Plaintiff's Memorandum at 11.
Furthermore, as the district court in United States v. Midwest Solvent Recovery, Inc. noted in the course of holding section 7003 to be only jurisdictional, "[a]ny 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." 484 F.Supp. 138, 144 (N.D.Ind.1980). Yet, the fragmentary legislative history does not support the government's contention that Congress intended section 7003 to impose strict liability upon generators of hazardous waste. The original House and Senate reports on RCRA yield no sign of such an
The one faint hint of a congressional intent to impose liability on former generators in the legislative history of the 1980 amendments to section 7003 is in a committee print of a House subcommittee. Subcomm. on Oversight and Investigations of House Comm. on Interstate and Foreign Commerce, 96th Cong., 1st Sess., Report on Hazardous Waste Disposal (Comm. Print 1979) ["the Eckhardt Report"]. The subcommittee suggested that "a company that generates hazardous waste would be someone `contributing to' an endangerment under § 7003, even where someone else deposited the waste in an improper disposal site (similar to strict liability under common law)."
The structure of the RCRA, and the EPA's own regulations governing the statute's implementation, support my conclusion that off-site generators are not proper defendants under section 7003. The statute clearly separates the duties imposed upon generators from those of dump site owners. A generator's responsibilities are codified in 42 U.S.C. § 6922, which imposes liability for failure to comply with the section's reporting, labeling and packaging requirements. The applicable EPA regulations relating to generators clearly follow the statutory scheme and are contained in 40 C.F.R. § 262 (1981). By way of contrast, the sole reference in these regulations to section 7003 comes in 40 C.F.R. § 264 (1981), which is entirely devoted to elaborating on the statutory provision relating to "Owners and Operators" of hazardous waste dumps, 42 U.S.C. § 6924. See 40 C.F.R. § 264.4 (1981). EPA clearly stated its view as to when section 7003 would be applicable when it first proposed the regulations in 1978: the section was to be "available only against the present owner of the land on which an inactive site is located.... Using Section 7003, EPA can sue the owner of an inactive facility which is discharging a hazardous waste into the air, land, or water...." 43 Fed.Reg. 58,984.
A finding that section 7003's imminent hazard authority is inapplicable to non-negligent past generators accords with a straightforward reading of the statutory language, the legislative history and the EPA's own regulations. Not surprisingly, no court, as far as I am aware, has construed section 7003 to be applicable to generators. They have limited the section's applicability to owners of sites with power to comply with an injunction.
2. Section 106(a) of CERCLA.
The government's second statutory claim, under section 106 of CERCLA, or "Superfund," must also fail. Because CERCLA is so new and has not as yet been construed by any court,
CERCLA was specifically designed to plug gaps in the government's then existing anti-pollution program. In particular, it was designed to deal squarely with the problem of abandoned or "orphan" hazardous waste dumps, a problem which RCRA had not adequately addressed. H.R.Rep. No.1016, 96th Cong., 2d Sess. 25 (1980); S.R.Rep.No.848, 96th Cong., 2d Sess. 11
The government has, however, ignored sections 104 and 107 and chosen instead to proceed under section 106(a) of CERCLA, which confers upon the EPA the authority to seek emergency injunctive relief when presented with evidence of an "imminent and substantial endangerment to the public health."
The language of section 106 gives no hint of an intent to confer liability on past generators. Like section 7003 of RCRA, and, significantly, unlike section 107, it is written in the present tense. It authorizes the government to seek immediate injunctive relief because of "an actual or threatened release of a hazardous substance from a facility...." It authorizes the EPA to supplement any action undertaken by a local government to meet this imminent hazard, and "to secure such relief as may be necessary to abate such danger or threat...." 42 U.S.C. § 9606(a). A straightforward reading of this language requires that I conclude that Congress intended section 106(a) to be used in emergency situations where hazardous waste was currently being discharged or threatened to be discharged "from a facility"
The government argues, however, that a "harmonious" reading of the statute requires a conclusion that section 106 provides an alternative route through which the EPA may, at its option, address the problem of abandoned sites. Plaintiff's Memorandum at 28. The "harmonious" reading for which the government contends will be better achieved, this Court believes, by acknowledging that Congress intended each provision to serve a specific purpose in this extensively debated legislative program. Where Congress after extensive debate, has clearly designated its choice of a method for obtaining money damages from past off-site generators whose waste products have contributed to the critical problem posed by abandoned chemical dumps, it is the role of EPA and this Court to carry out the unambiguous legislative intent. See U.S. v. Burns, 512 F.Supp. 916 (W.D.Pa.1981) (where Congress designated the Clean Water Act as the government's exclusive means of recovering clean-up costs for certain hazardous wastes, the government could not seek an alternative statutory means of reimbursement).
An appropriate order will be entered.
The original Senate Superfund bill (S.1480 § 5) provided for a $4.085 billion fund, while the original House Committee bill (H.R. 7020) would have provided $600,000 (later increased to $1.2 billion on the House floor). S.Rep.No. 848, 96th Cong., 2d Sess. 69 (1980); H.R.Rep. No.1016, part 2, 96th Cong., 2d Sess. 62 (1980); 126 Cong.Rec. H9443,9473,9475 (daily ed. Sept. 23, 1980). As enacted, the Superfund was a compromise bill, closer to the House version ($1.6 billion) and clearly inadequate to remedy the problem as the EPA testimony described it. See Brenner, Liability for Generators of Hazardous Waste, 69 Geo.L.J. 1047, 1057 (1981). See generally Grad, A Legislative History of CERCLA of 1980, 8 Colum.J.Envtl.L. 1 (1982). While this Court is aware of the dimension and seriousness of the problem which CERCLA addresses, Congress, and not this Court must legislate a remedy adequate to the scope of the problem.