ELR Citation: ELR 20286
No(s). 80-04-CIV-7 (E.D.N.C. Dec 30, 1982)

The court holds that the imminent hazard provisions of §7003 of the Resource Conservation and Recovery Act (RCRA) do not apply to inactive or abandoned hazardous waste disposal sites. The court first rules that the plain language of §7003 and the overall purpose of the statute indicate that §7003 authorizes a response to hazards arising during disposal of wastes, not to dangers arising after disposal. Congress' use of the present tense in authorizing the restraint of persons "contributing to" dangerous waste disposal reveals its desire to create a prospective, regulatory program. That it changed the standard of potential harm in 1980 from "is presenting" to "may present" a hazard does not require a different reading of §7003, since the tense of "contributing to" was not changed. The court also rules that Congress' placing §7003 with the miscellaneous instead of substantive provisions of the statute supports this reading. That §7003 is not applicable to abandoned waste sites is also consistent with the overall regulatory purpose of RCRA. The court concludes that Congress intended §7003 to provide emergency protection prior to promulgation of the Act's comprehensive regulatory system. The court finds no support in the legislative history for extending §7003 to abandoned sites. The contemporaneous history is silent on the scope of §7003. However, the subsequent legislative history of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) indicates that no existing legislation addressed abandoned sites.

The court next rules that §7003 is solely jurisdictional. This ruling further undercuts the argument that §7003 applies to abandoned sites, because the only source of substantive standards would be the federal common law of nuisance concerning hazardous waste, which, the court finds, was preempted by RCRA. Finally, the court notes that it analysis is further supported by the enactment of CERCLA and by the fact that application of §7003 to abandoned sites would constitute an inequitable retroactive application of the Act.

Counsel for Plaintiff
David O. Ledbetter
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3483

Abraham Penn Jones, Ass't U.S. Attorney
P.O. Box 26897, Raleigh NC 27611
(919) 755-4530

Counsel for Defendants
A. Dumay Gorham Jr.
Marshall, Williams, Gorham & Brawley
P.O. Box 2088, Wilmington NC 28402
(919) 763-9891

Fred B. Davenport Jr., County Attorney
16 N. 5th Ave., Wilmington NC 28401
(919) 763-2426