UNITED STATES v. WADE

MEMORANDUM

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 Act1 ["RCRA"] and section 106 of the Comprehensive Environmental Response, Compensation, and Liability Act of 19802 ["CERCLA"]. The government seeks to use these statutory injunctive relief provisions to impose liability upon defendant Gould and five other chemical companies for their past generation of hazardous chemical wastes which were subsequently disposed of upon a property located at 1 Flower Street, Chester, Pennsylvania ["the Wade site"].3 The government seeks to recover from Gould and other off-site generators for expenses incurred, or to be incurred, in planning and carrying out a clean-up of the Wade site. The other five generators are Apollo Metals, Inc., Congoleum Corporation, H. K. Porter Company, Inc., Sandvik Steel, Inc., and Superior Tube Company.

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 1074 of that statute, a mechanism whereby the government can recover the costs of clean-up from the off-site generators whose wastes caused the pollution problem. Astonishingly, however, the government here has chosen to ignore those provisions of the statute which give it clear authority to remedy the pollution problem at the Wade site and recover its costs from Gould and the other off-site generators, and has instead chosen to sue under two different statutory provisions. I have discovered no case in which these provisions have ever been used to confer liability on past off-site generators, parties who generated hazardous wastes which were transported to a dump site by others. Because I conclude, on the basis of the statutory language, its context, and the legislative history, that past off-site generators are not proper defendants under the statutory provisions the government relies upon, and because these provisions do not authorize the type of relief the government seeks, the defendant's motion to dismiss the amended complaint against the generators is granted.

FACTS

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 RCRA5, and that the current leaking of the chemicals into the soil and the water constitutes "disposal" which creates an "imminent...endangerment" to public health or the environment, so as to bring the site under the terms of the emergency injunctive relief provisions, section 7003 of RCRA and section 106(a) of CERCLA. The complaint does not allege that Gould is currently dumping waste on the site, that it was negligent in its past disposal, or that it has any current connection with the site.

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 or to be incurred in planning and implementing a clean-up of the Wade site. Gould responded by filing the motion which is now before the Court to dismiss the complaint against it. Gould argues that section 7003 and section 106 do not impose liability on non-negligent past generators of hazardous waste who have no present connection with the dump site.

DISCUSSION

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.6

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 growing national problem created by unsafe disposal of hazardous chemical waste.7 The section authorizes the Administrator of the EPA "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," to bring suit "to immediately restrain any person contributing to such storage, treatment, transportation or disposal...." 42 U.S.C. § 6973(a).

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,"8 and the legislative history of the 1980 amendments to RCRA.9

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 disposal practices. See H.R.Rep.No.1491, 94th Cong., 2d Sess. 69 (1976); S.Rep.No. 988, 94th Cong., 2d Sess. 16-17 (1976); Brenner, Liability for Generators of Hazardous Waste, 69 Geo.L.J. 1047, 1055 (1981). It was, in fact, the perceived inapplicability of RCRA, and particularly of section 7003, to the effects of past unsafe disposal practices that led to the 1980 CERCLA legislation that specifically addressed the problem of abandoned hazardous waste dumps.10

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.11 As the government concedes, no court has yet construed section 7003 to be applicable to past off-site generators. Plaintiff's Memorandum at 10. I believe this is because there is nothing in the statutory language or the legislative history that would authorize such a considerable extension of liability.

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 11.12 There are, however, numerous other actors in this chain of events. Were I to accept the government's logic, I might be constrained to impose liability, through section 7003, upon the original manufacturers or miners of the chemicals which Gould uses in its manufacturing processes. Because there is no logical limit, given the breadth of the statutory language, to the number and type of persons who might be construed to be "contributing to" the disposal of hazardous waste, a court must look for clear legislative guidance before reading section 7003 to confer substantive liability upon so vast a class of potential defendants as off-site generators. There is no statutory definition of "a person contributing to" hazardous waste disposal. In the absence of Congressional guidance, it is not reasonable to define the term so broadly.

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 intent. See H.R.Rep.No.1491, 94th Cong., 2nd Sess. 69 (1976); S.Rep.No.988, 94th Cong., 2nd Sess. 16-17 (1976).13

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)."14 The Eckhardt Report at 31. However, the full Senate Committee Report, which accompanied the bill to the Senate floor, discarded the strict liability approach and suggested instead that a negligence standard would apply to past generators.15 Because the complaint alleges no actual knowledge or negligence on Gould's part, even were I to accept the cryptic reference in the report of the full Senate Committee as conclusive evidence of Congressional intent to impose liability on negligent generators, section 7003 would still not be applicable to a non-negligent off-site generator such as Gould. More fundamentally, a court may not base a decision to impose liability on such a potentially vast group of defendants as off-site generators of hazardous waste on the basis of the conflicting and fragmentary legislative history of section 7003. See United States v. Midwest Solvent Recovery, Inc., 484 F.Supp. 138, 143-44 (N.D.Ind.1980).

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. 58,984.16

The inapplicability of section 7003 to the present case is also demonstrated by the type of relief for which the government prays. Since the complaint does not allege that any of the generators is currently disposing of waste on the Wade site or that there is any threat that they will resume their past practice of doing so, I cannot sensibly grant the government's prayer that they be permanently restrained from doing so. The government's essential request, therefore, is contained in paragraphs three and four of the prayer for relief, in which the Court is asked to "enjoin" the defendant among others, to pay the cost of drawing up and implementing a plan to clean up the Wade site. I am also asked to require the defendant to reimburse the government for expenses already incurred toward this end. Since Gould is no longer dumping on the site and is not the owner of the property, it cannot comply with any such injunction except by paying money. The government's prayer for relief, though phrased in injunctive terms, is transparently a prayer for money damages. The Third Circuit recently ruled, however, that "[a] plaintiff cannot transform a claim for damages into an equitable action by asking for an injunction that orders the payment of money." Jaffee v. United States, 592 F.2d 712, 715 (3rd Cir. 1979), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979). In U.S. v. Price, the court faced a similar question, in that the government sought a preliminary injunction under section 7003 which would order the defendant to pay for a study which would determine the ultimate cost of cleaning up the site. "We entirely agree that a thorough study of the problem is essential and should be done immediately," the court commented. "Nonetheless, an order compelling defendants to fund such a study would not be an appropriate form of preliminary injunctive relief." U.S. v. Price, 523 F.Supp. 1055, 1067 (D.N.J. 1981) (Brotman, J.).

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.17 United States v. Vertac Chemical Corp., 489 F.Supp. 870 (E.D.Ark.1980); United States v. Midwest Solvents Recovery Services, Inc., 484 F.Supp. 138 (N.D.Ind.1981).

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,18 the government urges that I analogize section 106, the emergency injunctive relief section of CERCLA, to section 7003. Plaintiff's Memorandum at 22-26. Given my analysis of section 7003, supra, such an analogy would not avail the government.

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 (1980), U.S.Code Cong. & Admin.News 1980, p. 6119.19 The method chosen by Congress was the creation of a revolving "Superfund," which was to be funded by a tax on generators of hazardous waste products. The heart of the statute is contained in section 104, "Response Authorities," which gives the EPA the authority to undertake emergency clean-up measures when it determines that an abandoned site presents, or may present "an imminent and substantial danger to public health." 42 U.S.C. § 9604. Congress intended section 104 to work in tandem with section 107, the liability section. H.R.Rep.No.1016, Part 1, 96th Cong., 2d Sess. 33. By the terms of section 107, the government is authorized to sue designated classes of persons to reimburse the Superfund for emergency clean-up, removal and containment actions which it undertook under section 104.20 Section 107 clearly includes generators of hazardous waste among those potentially liable to be sued for clean-up costs incurred under section 104. Moreover, the provision which applies to generators is written in the past tense and clearly applies to past generators and transporters.21 Had the government, therefore, undertaken to clean up the site under section 104, and then proceeded against Gould under section 107, the statutory authority to support such actions would have been clear.

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."22 42 U.S.C. § 9606. The government argues that because Congress intended past off-site generators to be liable under the statutory scheme established by sections 104 and 107, it must also have intended that they be liable under the emergency injunctive relief authority of section 106. Plaintiff's Memorandum at 32. In the absence of any evidence that Congress intended section 106 to be used in this way, and in face of the clear and carefully detailed legislative provision of another route to the same result, I cannot agree with the government's contention.

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"23 and where such discharge could be stopped by an injunction. Such a reading of section 106 as applicable to current emergencies where responsible parties may be ordered to comply with an injunction renders the section a complement to section 104 and 107 which are so clearly addressed to the present health problems caused by abandoned sites.

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.24