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The Defense of Hazardous Waste Enforcement Actions

Edward W. Warren, Natural Resources Administrative Law and Procedure (1981)

My presentation this afternoon addresses some of the issues which may arise in defending agency-initated enforcement actions involving hazardous wastes. I focus particularly on “retrospective” hazardous waste enforcement activity, that is, enforcement activity designed to alleviate the present-day impact of facilities or sites created by past management or disposal practices.1

For a number of reasons, statutes which deal with the lingering effects of old dump sites will be the source of highly significant environmental enforcement litigation over the next several years.

First, hazardous waste enforcement litigation will expand rapidly in the years to come even if the Reagan administration reduces enforcement activities under other environmental programs. Carol E. Dinkins, the Assistant Attorney General for Land and National Resources, estimated that 43% of EPA's Superfund personnel has been assigned to enforcement, a percentage substantially higher than that in other EPA programs.2 Both Ms. Dinkins and Anne M. Gorsuch, the Administrator of EPA, have indicated their intention to enforce vigorously statutory requirements relating to hazardous wastes.3 Indeed, EPA's recent issuance of a list of 114 top-priority sites proposed for response action under Superfund brings us closer to the day when EPA enforcement activity on old dump sites will start in earnest.4