Yesterday I presented my draft paper, "Reforming Our Wasteful Hazardous Waste Policy," at the NYU/NYLS conference, "Breaking the Logjam: An Environmental Law for the 21st Century." There's a brief comment on the BTL blog about my panel here.
The task I was given for my paper was to evaluate the nation's primary federal laws governing hazardous waste management and cleanup -- the Resource Conservation and Recovery Act (RCRA) and Comprehensive Emergency Response, Cleanup and Liability Act (CERCLA, aka "Superfund") -- and present recommendations for reform based upon four consensus principle about the future direction of environmental policy: 1) Cross-cutting regulatory approaches that address underlying causes; 2) Openness about trade-offs; 3) Scaling regulatory authority to the problem; and 4) Expanding the use of market incentives and information.
One problem with the existing regulatory structure is that it fundamentally misunderstands the nature of the hazardous waste problem. Hazardous waste is not, in itself, "pollution." Producing potentially dangerous residuals is not, in itself, an environmental problem. Rather, hazardous waste only becomes pollution, and an environmental problem, when it is improperly handled and mismanaged. The current regulatory scheme seeks to prevent such problems by detailing an extensive list of requirements for those who generate, transport, store, treat, or dispose of such wastes. This, in turn, requires the government to classify materials as "wastes" or non-wastes, and "hazardous" and non-hazardous wastes. In practice, however, these labels are often quite arbitrary, and their application can impede legitimate source reduction, waste recycling and reuse efforts. Worse, when contamination occurs, cleanup decisions (when made pursuant to federal law) do not take sufficient account of local conditions and preferences. The ultimate consequence is a set of programs that do not do nearly as much as they could to reduce the risks posed by the improper management and disposal of hazardous wastes.
My paper calls for a fairly radical decentralization of many aspects of hazardous waste policy. In particular, it calls for the federal government to focus its resources on efforts on those areas in which the federal government has a comparative advantage or a particular federal interest. Beyond that, I argued, the primary regulatory decisions should be made by state governments so as to ensure greater tailoring of specific management, disposal, and cleanup decisions to local conditions and preferences. I further outlined some transition rules to allow for the gradual assumption of greater authority and flexibility by state governments.
In terms of the federal role, I believe that the federal government should focus in a few areas.
- The federal government should continue -- indeed increase -- its scientific and technical research about hazardous materials, the threats they pose, their proper management, treatment and disposal, and cleanup techniques. There are substantial economies of scale of research in this sort, and greater federal research could help produce more informed and educated state-level decisions about hazardous waste policy.
- The federal government should continue to regulate the transportation of hazardous wastes, particularly across state lines. Such regulation includes federal requirements for the containment and transportation of the wastes, in addition to record-keeping and disclosure requirements. A single set of uniform requirements governing the transportation of hazardous wastes would ensure an unobstructed market in waste management services while providing a baseline level of protection for all states.
- The federal government should create a mechanism to address interstate spillovers. While improper waste management rarely extends beyond a local region, there are exceptions to this general rule. Sometimes activities conducted in one state pollute the land or water of a neighbor. In other cases, improper waste management or insufficient cleanup can contaminate a common pool resource shared by more than one state. In such circumstances, "polluted" states should have recourse against "polluting" states, and only the federal government is capable of playing this mediating rule. As I see it, the primary aim of the federal government here would be to prevent states from harming their neighbors. Absent such conditions, however, states should have a significant degree of latitude in designing and reforming their own programs.
- The one part of the federal Superfund program that appears to have been a clear success is the emergency removal program. It is not entirely clear why this has been the case, but I suspect it may be because the federal government developed some level of specialized expertise in such actions. In any event, as this part of the program appears to be working, I see no reason to try and "fix" it. If the federal government is doing something well, as it is here, I think it should continue unless there is a compelling reason to believe states could do it better.
Federal hazardous waste policy has become particularly wasteful and inefficient. Although hazardous waste problems are among the most localized of environmental concerns, federal hazardous waste laws are among the most centralized of federal environmental laws. In order to foster greater jurisdictional matching, primary responsibility for the regulation and cleanup of hazardous wastes should be returned to state governments. The federal government has an important role to play in hazardous waste policy, but this role requires more targeted and specialized efforts than the adoption and maintenance of a comprehensive cradle-to-grave regulatory system and a large scale waste site cleanup program that impose federal standards on local communities. Through technical guidance federal agencies can inform local waste management and cleanup decisions without imposing uniform federal standards that fit few jurisdictions well.With federal efforts confined to those areas in which the federal government possesses a comparative advantage, state governments will be freed to reassume leadership in hazardous waste policy and tailor state policies to local needs and concerns. This, in turn, could foster greater recognition of and accountability for the trade-offs inherent in hazardous waste policy, and a more justifiable regulatory regime for hazardous waste. Insofar as questions of hazardous waste policy turn on subjective preferences about risk and ecological value, they are particularly well suited to local control. It is time for a hazardous waste policy devolution.
Related Posts (on one page):
- Breaking the Logjam in Hazardous Waste Policy:
- Breaking the Logjam - Conference and Blog:
- Breaking the Logjam in Environmental Law:
... more specifically, when it is released into the environment.
If you produce a bunch of nasty chemicals and keep them in sealed containers in your own basement, you're not polluting. If you dump them into the river, you are polluting. Similarly, if you dump poisons into a piece of land and sell that land to someone else without letting them know what they're getting ... or if you dump them in a way that natural processes such as rain and erosion will leach them into someone else's property ... you're polluting.
Likewise, nuclear waste is not "pollution" when it's vitrified and stored safely. But the radioactives that come out of a coal-fired power plant's smokestack are pollution as soon as they hit the open air.
You're presuming that there are proper (read perfect) ways to handle / manage all kinds of hazardous waste, which seems a little optimistic to me.
1. The US is still cleaning up serious contamination created prior to the enactment of CERCLA. Thus we have really good evidence of what one possible set of consequences might occur from not having CERCLA. And it ain't pretty.
2. Under-regulation of discharges of hazardous waste to soils is easily foreseeable without a federal floor. The economic benefits to the corporate entity are immediately apparent, as are the tax revenues and jobs provided to the state and local community. The economic consequences might not be felt for a generation, or never if the polluter gets lucky.
3. Poor and politically disadvantaged communities are the ones most likely to want, and get, dischargers who want to take advantage of the absence of the federal floor. And they are the ones least capable of mounting a successful attack if, in 20-30 years from now, pollution becomes apparent.
4. There's a serious lack of evidence that states in fact have innovative plans for regulating hazardous waste discharges that are barred by CERCLA. Oddly enough, in the most recent dispute between the states and the feds -- over regulating greenhouse gas discharges -- you took the other side. It seems to me that you're much more concerned about federal floors than you are about federal ceilings.
5. Federal hazardous waste policy has become particularly wasteful and inefficient. How so? You need to demonstrate that your solutions solve your problem.
Is the problem the high cost of litigation against historic dischargers? It seems unlikely that you honestly support states passing laws that allow the victims of historic contamination to attach liability to alleged dischargers more easily and robustly than they can under CERCLA.
Is the problem compliance with the National Contingency Plan? That's just a process regulation that specifically directs EPA and local communities to use site-specific cleanup procedures and to develop the procedures in a public forum.
Or is the problem the feds are forcing polluters to make things too clean, according to your "subjective preference"? Without the pressure of negotiating against EPA, dischargers will have far more power to force local communities to accept settlements that leave a far greater residual risk on the community than EPA would accept.
Yes, hazardous materials only become pollution when improperly disposed of, but they are a hazard from the moment they are generated. Just because a particular solvent (say a degreaser or dry cleaning chemical) is useful industrial material doesn't mean that it is not a hazard.
Hazardous material (whether it's classified as waste or not) is something worth managing and, since responsibility for mismanagment must be assigned to liable parties, tracking, from the point of generation to the point of disposal, and since we are still not very good at "cradle to cradle" industrial processes, long after disposal as well for many materials.
I also take issue with your generality. When you write "In practice, however, these labels are often quite arbitrary, and their application can impede legitimate source reduction, waste recycling and reuse efforts" I really wonder what examples you're thinking of. Do you disagree with the current methods of risk assesment? Why? Do you have an epidemiological or other basis for disagreeing with risk assessment? To characterize the process of risk assessment as arbitrary demands a more specific critique. Your assertion does not make it so, and my professional experience has demonstrated quite the contrary.
Finally, I disagree with your assertion that "when contamination occurs, cleanup decisions (when made pursuant to federal law) do not take sufficient account of local conditions and preferences." As a consulting environmental engineer, a great deal of time is spent with risk assessment and site characterization. This is a VERY local activity - attempting to model local groundwater flow or wind patterns to design a remediation system, for example. Sure, we're trying to meet a federal cleanup criteria, but in practice, the appropriate remedial strategy is devised through a process of dialogue between the relevant regulatory authority (often the state department of environmental protection) and the responsible parties. I'm not sure what "local conditions and preferences" would make a particular substance less hazardous to people. Certainly, potential pathways to human exposure are a factor in remedial strategies - if there are no threats to people, a given impact is a lower priority for cleanup than immenant threats.
This problem "forces" industry development to pristine land in order to minimize future liability, rather than containing industry development to a smaller land footprint and overall impact to the environment.
Generally, based on your post, I hope you have written an empirical or scientific article rather than a legal article. Because the assertions made in the post, if not backed up with evidence, are merely assertions. Specifically,
"One problem with the existing regulatory structure is that it fundamentally misunderstands the nature of the hazardous waste problem. Hazardous waste is not, in itself, "pollution." Producing potentially dangerous residuals is not, in itself, an environmental problem. Rather, hazardous waste only becomes pollution, and an environmental problem, when it is improperly handled and mismanaged. The current regulatory scheme seeks to prevent such problems by detailing an extensive list of requirements for those who generate, transport, store, treat, or dispose of such wastes. This, in turn, requires the government to classify materials as "wastes" or non-wastes, and "hazardous" and non-hazardous wastes. In practice, however, these labels are often quite arbitrary, and their application can impede legitimate source reduction, waste recycling and reuse efforts."
Agree with an earlier poster: HOW does labelling chemicals hazardous or non-hazardous impede anything?
And precisely why is the current method of labelling materials 'hazardous' a bad choice? Specific empirical evidence is required here. And besides, the goal of hazardous materials regulation is to protect the public from exposure to hazardous materials: it is not to "...impede source reduction, waste recycling, and resuse efforts." Your assertion here may be correct but irrelevant (i.e. speeding laws may do little to impede the murder rate. But speeding laws aren't designed to impede the murder rate, so this is an irrelevant observation).
" Worse, when contamination occurs, cleanup decisions (when made pursuant to federal law) do not take sufficient account of local conditions and preferences."
I hope you have documented a great deal of empirical evidence to back this statement up. Several case studies of what happened at a cleanup site, and what should have happened. Without such case specific documentation, this is an empty assertion.
"The ultimate consequence is a set of programs that do not do nearly as much as they could to reduce the risks posed by the improper management and disposal of hazardous wastes."
Again, this requires an extensive empirical study, lest it be a simple bald assertion. What do they do, what could they do, and exactly how does the current legal and regulatory framework cause the first and deny the second? Specific sites? Specific examples?
"In particular, it calls for the federal government to focus its resources on efforts on those areas in which the federal government has a comparative advantage or a particular federal interest."
I can't think of an example in which the federal government DOESN'T have a comparative advantage -over a State government. To what exactly are you referring?
"Beyond that, I argued, the primary regulatory decisions should be made by state governments so as to ensure greater tailoring of specific management, disposal, and cleanup decisions to local conditions and preferences."
What in the world does this mean? CERCLA is administered by regional headquarters throughout the country: for instance, a SUPERFUND site in Texas would be administered by the SUPERFUND branch of the EPA in Dallas.
Most of the employees are from Texas or at least the region, and went to regional colleges. Are you under the impression that the State government in Texas knows more about the hydrology, or soils, or contaminant conditions than the EPA regional headquarters in Texas? Or do you believe that state engineers know some kind of 'local science' or 'local cleanup methods' that federal engineers aren't aware of?
"I further outlined some transition rules to allow for the gradual assumption of greater authority and flexibility by state governments."
By and large state governments are worse off. They are cash strapped, their employees make less for the same work, the employees are far more transient (unless there is a personal reason like location preference, any state environmental engineer would prefer to work for the federal government for the pay and benefits), and they are far more subject to local political influence.
If your article answers these questions, it will be fine.
But given that you are a lawyer, I am guessing that it doesn't answer them (frankly, to answer them adequately would require a book); instead, your assertions remain assertions, and the bulk of your article will be a legal/regulatory argument not backed up by evidence.
Sk
I disagree with the suggestion that the Federal program should be limited to interstate issues. I completely agree with Francis that there should be a Federal floor.
As an environmental consultant that manages hazardous waste and hazardous waste facilities facilities, audits hazardous waste facilities, and assists industrial clients with compliance, I cannot imagine trying to operate a multi-state company with 50 totally different state programs, all of them evolving and having varying degrees of protectiveness and enforcement.
Although I consider many of the Federal waste rules nonsensical, they are, for the most part understandable and do-able. I'm by no means a tree hugger, but do you really want a disparity on the ground?
Certain states (most notably, California) go off in different and sometimes strange directions compared to the federal floor. But most state programs currently parrot the Federal program except for various nuances. Lots of bad stuff gets managed safely today. While I would not expect states to roll back their programs just because there's no Federal standard, don't forget that the states are essentially implementing the federal program today, and the feds are essentially hands off. It's state laws cases that authorize this - essentially authorizing state agencies to run programs at least as stringent as the Federal program to keep the Fed's hands off. What would be the benefit of messing with this system and hoping everything is done safely unless and until waste gets loaded onto a truck?
Of course, anything that makes life more complex for multi-state industrial entities is probably very good for the environmental consulting business. So I'll shut up now.
A long post which is premised on the notion that not reading an article gives one grounds to comment on what the article doesn't contain.
I'll try to briefly address each of your points in order. Many of them are addressed more completely in the body of my paper itself.
1. Yes, we are still cleaning up many sites (including many federal sites) contaminated in the past. Yes, the existence of these sites shows what can happen when there are no meaningful controls -- whether industry BMPs, government regulaitons, or clear liability rules -- on the handling of potentially dangerous substances. But no one is proposing eliminating all regulation and liability -- certainly not me. The vast majority of states have extensive hazardous waste regulation and site cleanup programs, and many of them outperform the feds. No matter what the federal government does, these programs are not going to simply disappear. Even where the states are implementing the federal program, as is the case with RCRA in most states, the state rules would remain in place until states take affirmative steps to change their laws, and given the inertia in the system this is unlikely.
2. What you are suggesting is a variant of the "race to the bottom" theory: interstate competition for economic activity will cause states to compete by lowering protections. Set aside the devastating critiques of the "race to the bottom theory" by Revesz and others, there is actually a decent amount of empirical work on this question now (some of which is summarized in my paper). It shows no such effect. To the contrary, in the hazardous waste and groundwater protection context, there is evidence for a "diffusion" or positive "contagion" effect, as states tend to increase the protectiveness of their programs in response to similar moves by their neighbors. There is no empirical work showing that this has been occurring in reverse to lower the protectiveness of state programs. There are also theoretical reasons (which I lay out in this paper) to believe the maintenance of a federal "floor" actually results in less protective state standards than we might have otherwise, largely due to the effects on the incentives faced by policymakers.
3. In addition to the reasons I outline above, I think history suggests otherwise. Historically, local control has been far more protective of poor, politically disenfranchised communities than centralized political controls. State siting commissions, for instance, thrust waste disposal facilties on poor (often minority) communities because these commissions were beholden to the politlcal powers-that-be.
4. First, CERCLA regulates cleanup, not discharges. Second, RCRA doesn't regulate "discharges" either. It regulates the generation, transportation, storage, treatment and disposal of substances that are classified as hazardous wastes. That said, there is substantial evidence that state governments can innovate in these areas, and that they would innovate if there were fewer obstacles to doing so (some of which is summarized in my paper). This, in large part, was what the brownfields reforms enacted a few years ago were about, and there is more to be done.
[As for the regulation of GHGs, I think states should be allowed to do so. But I also believe that a) as a matter of law, the Clean Air Act does not provide them with as much flexibility as I would like; and b) as a matter of policy, if states can experiment with regulating products sold in interstate markets to address a global problem, then states should be allowed more freedom to experiment with more locallized concerns as well.]
5. There is a general consensus in the relevant literature that RCRA is a sprawling, confusing mess of overly prescriptive and poorly tailored rules and that the federal Superfund program is exceedingly cost-ineffective. I summarize much of this literature in the paper.
You ask "Is the problem the high cost of litigation against historic dischargers?". Some might say "yes," but I don't. Those who mishandled or mismanaged polluting substances should be held liable, and I have no particular problems with the broad liability scheme we now see for waste site remediation under both state and federal law. My problem is that sometimes the liable parties are forced to pay for things that don't address the problem in a cost-effective way -- perhaps due to poor remedy selection at a site or excessive litigation -- not that corporations are on the hook.
The NCP, in theory, takes into account local conditions, but it does not do so very well and, in the end, the EPA can completely disregard local preferences when making remedy selections. That is a problem. Among other things, it is a problem because the ultimate remedies selected do not take into account local preferences. Sometimes this means the cleanup is too "stringent" (i.e. money is wasted for no health or environmental gain), and sometimes it is too "lax" (i.e. it fails to address local harms and preferences that were not accounted for by the EPA). I want greater match between the local communities and the ultimate remedy decisions, even though that will mean more "stringent" (or, in some cases, just different) cleanup decisions than are made under current law. I also want this because there is substantial evidence that, for all but the most complex sites, states will actually cleanup the sites far more rapidly, meaning that threats are removed from communities sooner.
Thanks for the substantive comments.
JHA
1) The manner in which labeling of wastes is mandated can be problematic when dealing with things such as solvent reclamation or any other reprocessing tasks. Because you are only able to keep anything designated "waste" for a certain period, and because it must be stored in proscribed manners and locations only, the logistics for solvent reclamation at a facility not designed for that expressed and sole purpose, are nightmarish at best. We recently contracted to sell one of our high-purity wastes to another company as a low-grade solvent for their use, and it was not easy from a regulatory standpoint, because all parties are rather unsure when, if at all, it is "waste." We do this because there is economic incentive, but unfortunately, because the level of waste production of that type changes from quarter to quarter, we can't be quite sure how much we will sell and how much we will pay to have removed. If we could store this material as "not waste," we would need to further characterize it and then put it in inventory, and probably even have to pay personal property taxes on it. Not exactly a good incentive (from a regulatory standpoint) to further develop our "green" initiatives.
Now, I'm not saying that it's a good idea to let this material be handled willy-nilly because the company decides it's not waste, but the current regulations ARE a logjam to furthering environmental friendliness in my industry. Keep in mind I've only given one small example here, there are many others I have neither the time nor the expertise to expound on. I do not know if Mr. Adler has the solution, but I do know a solution needs to be found; perhaps federalism is not a bad way for this solution to be discovered through experimentation?
2) While I agree that there are inherently hazardous substances out there (don't even get me started, as my employment background is in acid chemistry, pyrophorics, and high toxics), many of the labels are arbitrary. For just one quick example, Dichloromethane is a "combustible." You'd have great trouble getting it to burn, but that has nothing to do with the labeling. You see, they use flash point testing (basically a boiling point test to skip around jargon) to determine if something is flammable or combustible (or neither), not the actual physical property of being able to be burned under normal transport conditions. So many things that cannot burn (again, under normal transport conditions) are labeled in a manner which suggests the opposite.
Now, many of the labels make sense, but without one of the handy little DOT orange books (for emergency response personnel) or a background in chemistry, you'd really have no idea what you were dealing with by looking at the diamonds on the side of a truck. It would be difficult to reconcile local control over labeling (so that local response units would know what they were getting into) with federal control over interstate (or other non-local) labeling requirements. I'm not sure you could do this without simply adding another level of mandates on the local level and leaving the federal regulations in place as well. Talk about a mess...
For the record, most of our chemical wastes are incinerated. I mean, pretty much everything WILL "burn" (oxidize) at some point, but things that aren't all that inclined to must be fed in at lower concentrations, meaning that the more easily something burns, the cheaper it is for us to get rid of. There are many things that are controlled locally for us, such as air and sewer discharge limits, even though they may be shaped based off federal baseline rules.
In closing, I will reiterate that I am not advocating Mr. Adler's fixes are the correct ones; my experience is in production, not regulatory compliance (though I do receive all the yearly training, it only ever amounts to an overview; I am not an expert). I do agree, however, with his assertations that things can (and should) be done to make "waste" handling more adaptable to ecologically friendly solutions to disposal and transportation problems.
First, I'd recommend that you read the paper. It addresses some of your concerns in more detail. If you think my discussion is confusing, however, you should look at the actual laws I'm discussing. Everyone who has reviewed RCRA, for instance (including the EPA itself) has acknowledged that it is byzantine and confusing, and sometimes even encourages the precise opposite of its stated goals.
Now as for your specific concerns. Yes, hazardous substances are hazardous the moment they are generated, but they are not regulated as such the moment they are generated. First they must be discarded, and second they must be classified as hazardous. Anyone with any experience with RCRA knows that whether a substance is actually classified as hazardous is somewhat arbitrary. Most wastes classified as hazardous are so because they were "listed," not because they were tested, and many substances that are quite hazardous are not treated as hazardous waste when disposed of because of who did the generation and disposal. You seem to think that risk assessment has something to do with the "hazardous waste" designation. Yet for most such wastes, this is simply not the case. Delisting a waste based upon risk assessment is possible, of course, but very difficult and exceedingly rare.
I agree with you on tracking. Although there is no empirical evidence that the existing tracking and manifest system has prevented illegal dumping (a finding several have made that surprised me), I think that the current manifest and tracking system should stay in place. This is part of the regulation of the transport of hazardous waste that I believe should remain exclusively in federal hands. Federal exclusivity here ensures uniformity - which is important for stuff crossing state lines - and can make sure that importing states know what they are getting. So I don't think we have nay disagreement here.
The fact that RCRA's rules often encourage land disposal and discourages reclamation and recycling of hazardous materials is well documented, and it has nothing to do with risk assessment. Once a material is classified as a "hazardous waste," many regulatory requirements attach. This increases the costs of doing stuff with this waste -- including recovering valuable materials for recycling or reuse -- particularly when it takes along time to generate enough of a residual to make it economical to recover and reprocess.
You are correct that site remediation plans attempt to take into account local physical conditions. They do not do nearly as well at taking into account local preferences. Risk is not a dichotomous characteristic. Cleanup decisions involve figuring out whether it is worth devoting additional resources, on the margin, for reducing certain types of risk , on the margin. Taking account of local concerns and preferences doesn't make something less hazardous, but it does take into account the likely future uses of a site and preferneces about what sorts of remediation steps actually make sense in a given place. These are value-based policy decisions -- informed by science, to be sure -- but value-based nonetheless. As a consequence, I think the values of those who bear the costs and reap the benefits of a site's eventual condition should control more than the policy prefences of those at the federal EPA.
Thanks for the substantive comments.
JHA
A long post which is premised on the notion that not reading an article gives one grounds to comment on what the article doesn't contain."
Presenting the public with a blog post and offering it up for comment is, to most of us, a dramatically different act than offering an article for publication. And the research obligations behind commenting on a blog are similarly different from the research obligations required of that published article.
Perhaps if you are someday able to distinguish the difference between a blog post asking for anonymous comment, and an article offered for professional publication, and the reasonable expectations of research for each, your irony meter will return to its normal, flaccid state.
Sk
2) You didn't comment on the blog post. You commented on the article. You "guessed" that it didn't provide evidence and then attacked it for not doing so.
We can generally adduce that nobody who commented bothered to read the article. For instance,
"Engineer Ben --
First, I'd recommend that you read the paper."
Francis clearly didn't read the article: he responded to the blog post. For instance:
"5. Federal hazardous waste policy has become particularly wasteful and inefficient. How so? You need to demonstrate that your solutions solve your problem."
Note that he gave the same advice that I did (or, since he wrote first, I repeated his advice). Empirical arguments require empirical evidence.
The remainder of the posts are short enough that we don't know whether the writer read the article, but can reasonably infer that they didn't.
Thus, its probable that nobody had read the article. I'm merely the only one that stated so explicitly.
"2) You didn't comment on the blog post. You commented on the article. You "guessed" that it didn't provide evidence and then attacked it for not doing so."
Reread my post.
My advice (which can be summarized as 'empirical arguements require empirical evidence) applies, regardless of the actual contents of the article.
Most importantly, from my post:
"If your article answers these questions, it will be fine."
Perhaps your irony meter exploded before you got to that sentence.
Sk
This isn't so exceptional. If I drive a car, I am required to maintain that car in safe condition, regardless of whether it was safe or unsafe when I bought it. If I own a restaurant that can't be safely evacuated in case of fire, the fire marshals will close me down regardless of whether the hazard is my fault or the previous owner's.
People are responsible for their own property. If I bought the restaurant from a previous owner who falsely assured me that it was in compliance with the fire safety regulations, then I could have a claim against him. However, until the restaurant is made safe, it is closed down and not making any money.