I know I know, but hear me out.
I think we can all agree that if I were to allow (or cause through negligence or mallace) known hazardous materials to enter into your property, I would be at fault. This is a standard bit of property rights--if I were to allow a vicious dog to enter your property, or accidently light your property on fire, or something similar, I would be at fault, and the fact that we are dealing with HAZMAT makes little difference. MY property is affecting YOUR property in objectively dangerous ways, and therefore I am doing something wrong.
The problem is, HAZMAT is unique. It's not just because the stuff can kill you--though it takes far more training than most realize to handle it properly--but it interacts with the world around it in non-intuitive ways. If someone spilled polychlorinated biphenals you have to know where to look for them in order to remove them (they stick to clay minerals). If someone spills vinyl chloride, you need to know how to remove it without killing people (it volatilizes very easily). And so on. It's obvious that me allowing hazardous material to enter your property without your permission is a bad thing; I think it's equally obvious that folks charged with prosecuting, evaluating, and ensuring that such crimes are properly addressed should be knowledgeable about the unique nature of the materials in question.
The way I envision it, the EPA would function similarly to a combination fire department and police force--a group of people able to respond to emergencies involving these unique hazards, and able to address the nuances of objective and rational cleanup of known hazardous materials. It would be firmly within the police force and under the authority of the court system, serving as a core of experts to address issues associated with these dangerous materials, including directing emergency responses, evaluating clean-up processes and results, and the like.
To be clear, I firmly reject the precautionary principle, and find most of what the EPA does to be pretty reprehensible. It's just that I'm also aware (after spending some time involved in the field) of the nuances involved in actually getting rid of hazardous materials, and they're non-trivial. I don't see anything in the above description that violates anyone's rights--this group would be pretty narrowly limited to cases where someone's rights had been violated.
There are two things I'm not so clear about.
Some HAZMAT poses, by its nature, real risks to folks well outside the property. A 100,000 gallon tank of vinyl chloride is a pretty substantial risk. However, they are also necessary for industrial processes. Under such conditions, would it be proper for pre-emptive evaluations of containment? What I mean is, would it be just to demand that folks who house sufficient quantities of HAZMAT to demonstrate that they are taking all reasonable safety precautions?
Second, there's a difference between negligence and just plain bad luck. If I allow my tank of carcinogenic chemicals to rust and infiltrate your groundwater, I'm negligent and obviously at fault. However, if a meteor strikes my tank, or a particularly strong storm damages it in some way, or any of a number of other issues occur the tank can be damaged, resulting in carcinogenic chemicals infiltrating your groundwater. For you, the difference is null; you're being poisoned either way. However, there's a moral difference for me--in one I'm at fault, where as in the other I'm as much a victim as you. How should such cases be resolved in a free society?
asked Aug 11 '15 at 14:24
Answer in Brief
The EPA--as it is currently constituted--would not exist in a free society. However, despite the way your questions title is phrased, I get the impression from the elaboration you provide that what you are really interested in asking is whether some agency specializing in HAZMAT related rights violations would exist in a free society.
Assuming this to be the actual question, I would answer that there is no objectivist principle that would prohibit having such an agency (although whether or not a free society would have such an agency would depend on the facts on the ground in the hypothetical free society--just because it is not prohibited to have such an agency does not mean it is wise to have such an agency). In particular, there is nothing that would prohibit there being some sort of government agency (or agencies) that is (are) focused on HAZMAT type issues . Lets call this hypothetical agency the "HAZMAT Agency" for simplicity.
Note that the HAZMAT Agency would NOT perform those function now performed by the EPA that are improper, and since so much of what the EPA now does is improper, the HAZMAT Agency would bear little resemblance to the EPA.
A proper government's sole responsibility is to protect individual rights, and a proper government certainly cannot violate individual rights. Much of what the EPA does violates individuals' rights (e.g., regulating land use to protect snail-darters), and more still of what the EPA does may not directly violate rights but is certainly not part of the proper role of government, which is protecting rights (e.g., conducting environmental studies). These functions are not proper government functions, and thus the hypothetical HAZMAT Agency would not perform them.
However, as you correctly point out, there are many ways in which people might violate one another’s rights using HAZMAT (or even via more mundane pollution). It is obviously proper for the government to take action to protect individuals' rights in these contexts--whether it is a robber threatening you with a gun or an negligent neighbor spilling dangerous chemicals on your property, your rights are being violated and that makes it the proper province for government action.
Given that it is proper for the government to protect individuals' rights with regard to HAZMAT related violations, the question becomes how the government should protect individuals' rights with respect to HAZMAT/pollution. For example, should the HAZMAT types rights violations be treated as criminal violations, or should they be treated as civil matters? Should they merely be handled by the generic police force, or should there be a specialized agency that handles these matters? Should there be a national agency, state agencies, local agencies, or a mixture of these? Finding the best answers to these questions would depend on the facts on the ground in this hypothetical "free society".
However, it should be noted that any of the aforementioned options for how to protect individual's rights with regard to HAZMAT could be a legitimate choice under the appropriate circumstances---you cannot rule any of them out a priori based on high-level Objectivist principles. For example, it is WRONG to argue that a free society could not properly have a federal HAZMAT agency and must instead have state (or local) HAZMAT agencies--you might be able to make the case that is better from a practical perspective to have one or the other option, but there is no Objectivist principle that rules out the possibility of having federal agencies per se.
While we cannot say definitively which form of implementing rights protections with regard to HAZMAT is the best, since we do not know all of the specific facts that would obtain in the hypothetical free society, we can speculate a little about the best form of protection. In particular, since we do know that HAZMAT type rights violations are such a specialized and unique type of harm, this would seem to support having a specialized agency to address the issue, as opposed to merely having the generic police force try to deal with the issues---I am not very confident that Officer Friendly would be able to competently address HAZMAT issues.
With regard to your further questions about whether specific functions would be proper (such as requiring owners of HAZMAT to provide proof that appropriate precautions have been taken), I encourage you to ask separate questions for each of these. Just addressing whether a HAZMAT agency would be proper at all is a large enough issue without having to delve into these additional specific questions you raise, which deserve their own substantial treatment. In particular, I would love the opportunity to address your fire analogy---while I do not think that HAZMAT cleanup is a proper government function, there is a strong case to be made that HAZMAT containment could be proper, and I think you may have given up on the analogy too quickly when pressed on it.
Regardless, however, of whether or not the specific functions you allude to are proper (please ask a separate question for each), the point of this answer is that there clearly are at least some functions related to HAZMAT that it is proper for the government to perform.
 For some types of rights violations, the government actively investigates potential violations and, when there is sufficient evidence of a violation, the government initiates court proceedings (arrests and charges the perpetrator) and prosecutes the case---these types of rights violations are criminal violations. On the other hand, for other types of rights violations the government does not take an active role in investigating the violation or instituting/prosecuting the case, and instead it is left to the initiative of aggrieved parties to prosecute a lawsuit to vindicate their rights--these types of rights violations are the subject of civil lawsuits (of course, the government does have a role as the arbitrator of the case). It is not always clear why some things are made criminal violations while others are made civil violations—basically the more serious the violation is considered to be, the more likely it is to be made criminal. This raises the question of what standard is being used to decide the “seriousness” of the violations; some theorize that intent is the key distinction, with intentional rights violations being criminal and merely negligent type violations being civil. However, this is not necessarily a true description of our current legal system, and I am not sure whether it is the best rule for a hypothetical legal system either.
 For example, police forces commonly have specialized “units” or “divisions” or “departments” to handle rights violations of a unique nature, such as a sex-crimes division, a fraud division, etc. Thus, one possible approach would be to have a “HAZMAT crimes division” in local police forces, or a “HAZMAT crimes division” of a national police force (I guess the FBI is the closest thing to a national police force in the US). On the other hand, I would also have no problem with having a separate agency that is not explicitly tied to the police. While I have had some self-styled objectivists argue to me that if a proposed government function is a proper government function, then it must be performed by the police and by no one else, and therefore there cannot be a separate “agency” or “department” to perform the function, this argument seems silly to me. The important question is whether the function is proper for a government agent to perform—how that government agent is labeled is a minor issue.
It probably would exist. Many of them, in fact. Probably not called "Environmental Protection Agency," however, maybe something like "Environmental Cleanup Services," or something similar. They wouldn't be agencies of government. They would have no governmental powers or authority. They would not be funded by the government or run by government. Neither would fire departments. Fire departments would be entirely private enterprises, also.
After an excellent opening paragraph concerning fault and liability, the question states:
The problem is, HAZMAT is unique.
The question apparently uses "HAZMAT" as just a shorthand notation for "hazardous materials." The question tries to make the case that such materials are different from other hazards in a way that calls for government run and government funded expertise. As I see it, however, the differences are only in degree and do not necessitate making hazard related services into a function of government.
The way I envision it, the EPA would function similarly to a combination fire department and police force--a group of people able to respond to emergencies involving these unique hazards, and able to address the nuances of objective and rational cleanup of known hazardous materials. It would be firmly within the police force and under the authority of the court system....
It makes sense for fire departments to include units for dealing with hazardous materials, but fire and related services do not qualify, by Objectivist criteria, for inclusion in the functions of government. The purpose of government is explained by Ayn Rand in her article, "The Nature of Government," in VOS Chap. 14 (and CUI, Appendix). The key excerpts can be found in The Ayn Rand Lexicon under the topic of "Government." In essence:
A government is the means of placing the retaliatory use of physical force under objective control -- i.e., under objectively defined laws.
Fighting fires and other hazards does not, in itself, involve the use of physical force and thus does not belong within the scope of government.
The analogy of hazardous materials to fires is very appropriate, however, and both could be handled in essentially the same way, namely, through privately run and privately funded organizations. Such services should be open to the same freedom of choice by citizens that they have in any other activity that does not involve the use of physical force, and citizens should not be forced to pay for services they may prefer to obtain from other sources of their own choosing. Note, of course, that the freedom of choice in fire and hazard mitigation services does not nullify liability for negligence, recklessness, failure to understand and follow reasonable safeguards, willful misrepresentation, etc., which the courts are perfectly capable of dealing with when the need arises. This can even include court-adjudicated prior restraint (intervention prior to an actual fire or spill), in cases of sufficiently extreme and objectively proved danger to others (such as running a major explosives manufacturing factory in a densely populated residential area, for instance). Refer, also, to the topic of "Pollution" in the Lexicon.
It is also a huge mistake to assume that any special expertise needed for toxic waste containment and cleanup is best provided by a government operated agency. It was the EPA that was in charge of the cleanup operation recently that got out of control and allowed 3 million gallons of toxic waste water to spill into two rivers in New Mexico and Colorado. The investigation of exactly how it happened has barely begun, but there is no ambiguity in the news reports so far that it happened under the EPA's jurisdiction and direction.
Update: Emergencies and Collective Dangers
The question of emergencies has been raised in the comments. Objectivism doesn't necessarily prescribe all the same ethical and political principles, unmodified, for emergencies as well as for normal conditions. The main discussion of emergencies appears in VOS Chap. 3, "The Ethics of Emergencies." The article emphasizes the need for precise definitions of what does and does not constitute an emergency, and what does and does not constitute "normal conditions" -- and the article offers such definitions. The article goes on to indicate how ethical principles might need to change in an emergency due to the difference in context. (All valid principles are contextual, not dogmatic absolutes independent of context.) The article also emphasizes that it is not valid to claim that all living is a continuous "emergency" justifying government control of everything.
Although that VOS discussion deals mainly with ethics in relation to emergencies, the kinds of situations mentioned in the comments probably would also qualify (in my understanding) under the topic of defining a proper response to an emergency (while the emergency is actually present). Various types of emergencies (such as very large wildfires, for instance) might lead, over time, to identification of general policies, possibly governmental as well as private, applicable to those kinds of emergencies. The tradition of common law (court cases) has already done that to a considerable degree in our present legal system. It is specifically any attempt to extend the emergency context to normal conditions of living that Objectivism most strongly disputes and opposes. One particularly egregious violation of rights that would not change in the emergency of war is the military draft; Objectivism completely opposes it, even in wartime. (See "Draft" in the Lexicon.)
Similarly, Objectivism allows for special rules to be identified for situations where a danger of harm is collective, as in an overcrowded city. Refer to the topic of "Pollution" in The Ayn Rand Lexicon. (But note that Objectivist observers challenge the claims that man-caused carbon dioxide emissions cause catastrophic "climate change." Such claims require objective proof, which Objectivist observers see as badly lacking in regard to "climate change.")
I also see it as virtually certain that Objectivism would classify today's EPA in the same category as other government (regulatory) agencies such as the FTC, FCC, and so on, as examples of governmental functions that neither the government nor anyone else should be doing. Ayn Rand gave an indication of this in VOR Chap. 7, "The Question of Scholarships" (subsection on government jobs):
... it is proper to take the kind of work which is not wrong per se, except that the government should not be doing it, such as medical services; it is improper to take the kind of work that nobody should be doing, such as is done by the F.T.C., the F.C.C., etc.