WASHINGTON – Should a company be allowed to abandon its hazardous waste simply because it doesn’t plan on transporting it?
No, says Alexandria Real Estate Acquisitions Inc., which is asking the Supreme Court to review a Maryland Court of Special Appeals ruling that hazardous waste regulations don’t apply when the company doesn’t intend to take its waste elsewhere.
The Supreme Court is scheduled to decide today whether to take the case.
The ARE Acquisitions petition, which raises the specter of the hazardous waste sites at the Love Canal and the Valley of the Drums, concerns Intracel Corp., a vaccine developer that abandoned radioactive and chemical waste on a Rockville property it rented from ARE after it was evicted for nonpayment.
The landlord’s lawyer, David Mandelbaum, describes the appeals court decision as “potentially troubling.” His petition says the lower court ruled “in effect . . . wastes may be held indefinitely without any regulatory obligation to put them in a safe package in a safe place with a label that identifies them and how long they have been stored.”
The petition says the lower court’s decision endorses a “cavalier attitude” toward the management of dangerous materials.
“If the regulators happened upon a warehouse of unlabelled, leaking, unidentified chemicals, they could take no action, under the Court of Special Appeals’ reading of the law, because those chemicals had not been offered for transportation.”
But the tenant’s lawyer described the petition to the Supreme Court as a last-ditch effort that seeks to hold Intracel’s officers and directors personally responsible after lower courts threw out earlier claims.
“The only thing left was this attempt to turn it into a federal environment case, which it is not,” said Minton, a lawyer with the Baltimore firm of Goldman & Minton.
Rather than focusing on the right to sue officers and directors for corporate wrongdoing, the court would be dealing with environmental issues beyond its jurisdiction.
“The environmental statutes — to the extent they are related here at all — are really peripheral,” said Minton.
But a University of Maryland School of Law Associate professor characterizes the state appeals court ruling as a “misreading of the law.”
“To the extent they are suggesting there is no federal or state law that requires a generator of hazardous waste to manage its waste unless they are transporting it off site, it is just plain wrong,” said Jane Barrett, the director of the university’s environmental law clinic.
“Both the federal (Resource Conservation and Recovery Act) and the state law regulate the generation of hazardous waste from its point of generation to its point of ultimate disposal,” said Barrett.
The ruling developed from an incident where Intracel, a vaccine developer during the technology boom, left chemical waste in rented laboratories and offices when evicted in April 2001.
As a regulated generator of hazardous waste, Intracel was required to store and dispose of materials according to relevant laws.
The company attempted to clean up the site after it left, returning with a truck and workers, Minton said. However, ARE Acquisitions barred the truck from its property and called for a professional contractor to assess the situation.
ARE Acquisitions found radioactivity outside permitted areas, raising concerns that hazardous materials were located throughout the building, said Mandelbaum. ARE Acquisitions spent more than $500,000 and several months cleaning the site.
Intracel filed for bankruptcy in September 2001 with $70 million in debt, including many secured creditors given higher priority for payment than the former landlord.
The property remained unrentable into 2002, according to Mandelbaum, by which time market conditions had worsened.
ARE Acquisitions sued company officers for cleanup costs, lost rent and millions in damages. Several negligence and other counts were thrown out in lower courts before the Court of Special Appeals’ decision last August.
Mandelbaum said the decision is a “fundamentally basic mistake.”
“It’s the thing you don’t find court decisions on because it’s impossible to get wrong. And yet here we are.”