RCRA Liability: Not Strict in Application

Vol. 28 No. 3

Ms. Guffey is an associate with Schiff Hardin LLP, in Chicago.

Environmental enforcement actions bear a potential for enormous risk. One statute imparts liability on persons for the conduct associated with solid and hazardous waste. The Resource Conservation and Recovery Act of 1976 (RCRA) provides that any person “who has contributed or who is contributing to” the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment” is liable. Multiple circuits and the legislative history have stated that RCRA provides for strict liability. Yet, in practice, courts are not so strict. In the attempt to define the “has contributed” or “is contributing” element, courts examine persons’ affirmative actions and/or control exercised with respect to the relevant waste, and as a result, fundamentally change the strict application of RCRA to a framework that considers intent.

RCRA also does not specify a standard of liability, and its legislative history is inconsistent. 42 U.S.C. § 6901, et. seq. Principles of strict statutory interpretation state that if a standard is not specified, one can assume strict liability applies. Under RCRA, a plaintiff has to establish three elements: (i) a site may present an imminent and substantial endangerment to the health or environment; (ii) the endangerment arises from handling, storage, treatment, transportation, or disposal of any solid or hazardous waste, and (iii) the defendant is contributing or has contributed to such handling, storage, treatment, transportation, or disposal. 42 U.S.C. § 6972(a)(1)(B). Considering only the first element, the evidentiary standard appears to be low. Plaintiffs do not have to establish that an endangerment actually exists, just that there is a present threat of endangerment. The third element—contribution—presents a more complex question.

RCRA was adopted in 1976, and the legislative history surrounding its two subsequent amendments is conflicting. The history accompanying the 1980 amendment alone contains at least two different interpretations of “contributing to.” In its “Report on Hazardous Waste Disposal,” a subcommittee of the U.S. House of Representatives Committee on Interstate and Foreign Commerce stated that “a company that generates hazardous waste would be someone ‘contributing to’ an endangerment under [RCRA], even where someone else deposited the waste in an improper disposal site similar to strict liability under common law.” H.R. Comm. Print No. IFC 31, 96th Cong., 1st Sess. 31 (1979) (the Eckhardt Report). But a U.S. Senate Report from the same period contradicted the House subcommittee’s report:

[A] company that generate[s] hazardous waste might be someone “contributing to” an endangerment under [RCRA] even where someone else deposited the waste in an improper disposal site (similar to strict liability under common law), where the generator had knowledge of the illicit disposal or failed to exercise due care in selecting or instructing the entity actually conducting the disposal.

S. Rep. No. 172, 96th Cong., 2d Sess. 5, reprinted in 1980 U.S. Code Cong. & Ad. News 5019, 4023 (emphasis added).

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