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UNITED STATES v. WADE

September 7, 1982

UNITED STATES OF AMERICA
v.
MELVIN R. WADE, et al.



The opinion of the court was delivered by: NEWCOMER

 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 *fn1" ["RCRA"] and section 106 of the Comprehensive Environmental Response Compensation and Liability Act of 1980 *fn2" ["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"]. *fn3" 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 107 *fn4" 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 RCRA, *fn5" 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, paras. 35, 45) and that Gould and the others were generators of hazardous chemical wastes which were transported to the Wade site (para. 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. *fn6"

 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.

┬áBecause 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 ┬ž 106(c) ...


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