Petition for Writ of Certiorari — Upjohn Co. v. North Haven Planning & Zoning Commission

Supreme Court brief1991

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90-1 £7 P|: WAR 20 W001

| OFRCE OF THE CLERK

No. 90-

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

THE UPJOHN COMPANY,

Petitioner,

NORTH HAVEN PLANNING AND ZONING COMMISSION

and ScoTT SCHATZLEIN,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

H. BARTOW FARR, III *

RICHARD G. TARANTO

ONEK, KLEIN & FARR

2550 M Street, N.W.

Washington, D.C. 20037

(202) 775-0184

S. ROBERT JELLEY

WILLIAM J. DOYLE

BRIAN J. CASEY

WIGGIN & DANA

One Certury Tower

New Haven, CT 06508-18382

(203) 498-4400

* Counsel of Record

. = ——S—

WILSON - Epgs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

a ae —

QUESTION PRESENTED

Whether, consistent with the Resource Conservation

and Reeovery Act (RCRA), 42 U.S.C. § 6901 et seq., a

local government may ban disposal of locally generated

hazardous waste within its borders, even though the fed-

eral Environmental Protection Agency has approved a

local disposal plan as safe and the local government has

not established that the plan is unsafe.

(i)

RULE 29.1 STATEMENT

Pursuant to Rule 29.1 of the Rules of this Court, peti-

tioner Upjohn Company states that it has no parent com-

pany and that its subsidiaries, other than wholly owned

subsidiaries, are Admiral Espanola, S.A.; Chugai-Upjohn,

Inc.; Cobb-Vantress, Inc.; Complejo Asgrow Semillas-

S.A.; and Saudi Urethane Chemicals Company.

TABLE OF CONTENTS

QUESTION PRESENTED ........... icaneieaes nsabueceiansesions

Ey Ls | - e

EE TIE ee

i cespaneusnecncenss RAP IAS

A. Federal Legal Framework .......... AEE Te PANS ARO OS

1. The Closure Plan ........ VD epee env Cen UO

oo. swaudbacesd vetnuseucsunebnccnns

1. District Court Proceedings ..................000........

2. The Court of Appeals Decision ......................

REASONS FOR GRANTING THE PETITION

Il.

RESPONDENTS’ BAN OF A LOCAL HAZ-

ARDOUS WASTE DISPOSAL FACILITY IS

INCONSISTENT WITH RCRA ......00000o0........

a cnnencennvanenccennncess

B. ame Bem es Teaue Here .....................................

OTHER FEDERAL COURTS, INCLUDING

THE EIGHTH CIRCUIT, HAVE RECOG-

NIZED FEDERAL PREEMPTION OF LOCAL

Se AS A ede eo

EEA Sadibisicitbiedliumaninsrscke

APPENDICES:

A. Court of Appeals Decision ........................ ak

B. District Court Decision ................. Sd I ia

ic. eememens BG Mewuimtionse ....................................

(iii)

Noa On NO — =

tet

_~ Oo O&O

—

23a

TABLE OF AUTHORITIES

Cases Page

American Mining Congress v. EPA, 824 F.2d 1177

iia: Se SITIES “sncsnciniteectnicuncecneiiansbiienacainindaesens 15

City ef Philadelphia v. New Jersey, 437 U.S. 617

PUTED : conecadadesinddusnascecgicelbantind sullitaianianiibensenacomabanas 16, 23

ENSCO, Inc. v. Dumas, 807 F.2d 748 (8th Cir

TINIE ude cennassidodagdenehecknisatdedsnidanvimetdaasastatiaiamanatiminadeie dN passim

Hillsborough County v. Automated Medical Lab-

oratories, Inc., 471 U.S. 707 (1985) -.......000000.... 20

Hines v. Davidowitz, 312 U.S. 52 (1941) 200000000... 14

International Paper Co. v. Ouellette, 479 U.S. 481

ESININIEY Dinininahccaciehcincicacinaasteacsneadiemathaislgnbigrabacadneenie 14

Nationa: Solid Wastes Management Ass’n v. Ala-

bama Dep’t of Envtl. Management, 910 F.2d 713

(11th Cir. 1990), modified in other respects,

1991 U.S. App. LEXIS 1818 .........0000000000000000...... 24

Northwest Cent. Pipeline Corp. v. State Corp.

Comm’n, 109 S. Ct. 1262 (1989) _...00 ee... 14

Ogden Envtl. Servs. v. City of San Diego, 687 F.

Supp. 1486 (S.D. Cal. 1988) ................................. passim

Rollins Envtl. Servs. (FS), Inc. v. Parish of St.

James, 775 F.2d 627 (5th Cir. 1985) .................. 24, 25

Sharon Steel Corp. v. City of Fairmont, 334 S.E.2d

616 (W.Va. 1985), appeal dismissed, 474 U.S.

ST TIED sa icraissiiniaccdedoncaniieahatbdininnneebideabcananataaabeenn 25

Upjohn Co. v. North Haven Planning & Zoning

Comm’n, Nos. CV-89-0250632-S, CV-89-0280709-

S, CV-89-0284413-S (Conn. Super. Ct., Jud.

Dist. of New Haven Feb. 2], 1991) ......0........... 8

Statutes

Toxic Substances Control Act (TOSCA), 15 U.S.C.

BN II i sckna ac scnides dc ipepsndlnd iced dioncaesinsdeiac biaoacoueniacn 18, 25

Resource Conservation and Recovery Act (RCRA),

ee a I mann 2.3

SL A Ee Ree sis ieee 3

FREE LEE ie mats 19

REE ELS een PM Te ls NE AL Ns 3,5

a passim

SOI s.ctiscishieshibssestinaipechshicecdlinsin siciiniiediananaiaata 3, 19, 24

TABLE OF AUTHORITIES—Continued

Page

SUM ccthcdnnsessitnasiess ba niaigiadaiadstandmemamnets 4,17

a passim

RRR IRS RER RGU SUR ater eenemer Er 4

Comprehensive Environmental Response, Compen-

sation, and Liability Act (CERCLA), 42 U.S.C.

§ 9601 et seq. .......... RE ECTS WE ae the WORST RDU es UEEU MOEN 15

I 15

Solid Waste Disposal Act Amendments of 1980,

Pub. L. No. 96-482, § 14, 94 Stat. 2342 0000. 18

Rule> and Regulations

I 5

ek 5 ev en ssididebdatenniae’ 3

gf RE ee aA me a a AN 3

| SEES Ee eeaers Seana Oey IR Ra 4, 6, 22

as eae 4

SNP OPER UE None 4

TT LET SCT ED 4

SE TO a ne eee 4,21

SI anne een Om ne COE. et 4

td fF eee sciicaebikadeecanetamakonenlakan 17, 20

eR EE | nnn C Le 18

45 Fed. Reg. 33,395 (1980) ...........0......... owe 17

GD TP, TR, Te CRD ecnncncecccccnscnssnececcccccnncescceesss 19

51 Fed. Reg. 16,424 (1986) ............. 21

Congressional Materials

126 Cong. Rec. 13,347 (1979) ..................................... 19

132 Cong. Rec. 28,486 (1986) ..................................... 16

H.R. Conf. Rep. No. 1444, 96th Cong., 2d Sess.

UNITE ties shcitiucchiech eciaiiebaidacacinicicacecbiaeanaeaknsdi ed decaatl asada 19

H.R. Rep. No. 198, Part I, 98th Cong., Ist Sess.

IIIT cecesectivegdssbinaniiatichalenishaniasasadiomeadaie tatiana 19

H.R. Rep. No. 1491, Part I, 94th Cong., 2d Sess.

1 RE eerste ere rae REMMI NOTE. RUT Fre 19

S. Rep. No. 11, 99th Cong., Ist Sess. (1985)........ 16

Other Authorities

Brief for Respondents William Reilly and EPA,

Hazardous Wastes Treatment Counci! v. Reilly,

No. 90-1433 (D.C. Cir., filed Feb. 19, 1991)........ 17

‘ABLE OF AUTHORITIES—Continued

Brief for the United States as Amicus Curiae,

National Solid Wastes Management Ass'n v.

Alabama Dep’t of Envtl. Management, 910 F.2d

713 (No. 90-7047, 11th Cir. 1990) —....................

Brief for the United States as Amicus Curiae,

Sharon Steel Corp. v. City of Fairmont, No. 85-

SI MIE Ts GU BUPIIIIDY css csnsccincscnsecccncassescesnnensssss

EPA, Background Document: Standards Appli-

cable to Owners and Operators of Hazardous

Waste Treatment, Storage, and Disposal Facili-

ties Under RCRA (1080) ..................c.....c.0:0000005..

Weisskopf, Carolinas’ Clash Over Toxic Waste:

Sign of a Nationwide Problem, Wash. Post,

I IL SET. «ncaa hac nnnbeenesntihanieaadapibivnaiea

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-

THE UPJOHN COMPANY,

Petitioner,

NoRTH HAVEN PLANNING AND ZONING COMMISSION

and SCOTT SCHATZLEIN,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

The Upjohn Company petitions for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Second Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-3a)

is reported at 921 F.2d 27. The opinion of the United

States District Court for the District of Connecticut (Pet.

App. 4a-22a) is reported at 753 F. Supp. 423.

JURISDICTION

The court of appeals entered judgment on December 14,

1990. Pet. App. la. On March 5, 1891, Justice Marshall

extended the time for filing a petition for a writ of cer-

tiorari to and including March 21, 1991. The jurisdiction

of this Court is invoked pursuant to 28 U.S.C. § 125411).

STATUTORY PROVISIONS INVOLVED

The principal statutory provision at issue is Section

3009 of the Resource Conservation and Recovery Act, as

amended, 42 U.S.C. § 6929, which provides, in pertinent

part: “Nothing in this chapter shal! be construed to pro-

hibit any State or political subdivision thereof from im-

posing any requirements, including those for site selec-

tion, which are more stringent than those imposed by

[federal hazardous-waste] regulations.” Other pertinent

statutory and regulatory provisions are set out in the

appendix to this petition. Pet. App. 23a-65a.

STATEMENT

This case involves one locality’s effort to shift to other

localities a waste problem created as a result of industrial

activity within its jurisdiction. Petitioner Upjohn pro-

duced a large pile of solid waste as a byproduct of chemi-

cal manufacturing in North Haven, Connecticut, before

1985. The pile contains material classified as hazardous

waste under the Resource Conservation and Recovery Act

(RCRA). 42 U.S.C. § 6901 et seg. The zoning officials of

North Haven, who are respondents here, directed Upjohn

to remove the waste pile from the Town. They took that

position even as the federal Environmental Protection

Agency (EPA), pursuant to RCRA, was in the process

of considering and eventually approving Upjohn’s pro-

posal to “close” the waste pile on the site. Without any

finding that the EPA-approved closure plan is unsafe,

the district court held that the local ban did not conflict

with the federal regulatory scheme, and the court of ap-

peals affirmed. Petitioner challenges that ruling on the

ground that federal law preempts this kind of naked ef-

fort to export a local waste problem.

A. Federal Legal Framework

In 1976, Congress enacted RCRA based on the finding

that the problem of solid waste disposal generally, and of

hazardous waste disposal specifically, had “become a mat-

ter national in scope and in concern” necessitating federal

action to fill regulatory gaps left by recently enacted laws

directed at reducing air and water pollution. 42 U.S.C.

§$ 6901 (a) (4), (b) (3). The centerpiece of RCRA is Sub-

title C, which creates a “cradle-to-grave” regulatory sys-

tem to ensure that hazardous wastes—generally to be

identified and listed by the EPA—are safely managed from

generation through transportation through final treat-

ment, storage, and disposal. 42 U.SC. § 6921 et seq.

The fundamental aim of the system is to guarantee that

hazardous waste will come to rest in disposal facilities

that have permits for operation, closure, and post-closure

monitoring (42 U.S.C. $6925) and that comply with de-

tailed regulatory standards (42 U.S.C. § 6924; 40 C.F.R.

Parts 264, 265). Those standards are designed to “mini-

mize the present and future threat to hum:.. health and

the environment.” 42 U.S.C. § 6902(b) (declaring na-

tional policy) .'

1 Section 6925 requires any operator or owner of a treatment,

storage, or disposal facility to obtain a permit, and Section 6924

provides for substantive standards that apply to such a facility.

42 U.S.C. §§ 6924, 6925(a) and (c). Recognizing that the develop-

ment of regulatory standards and the processing of permit applica-

tions would take time, Congress provided that, upon fulfillment of

certain conditions, an owner or operator would be entitled to auto-

matic issuance of an “interim status” permit while its application

for a permanent permit was under review. 42 U.S.C. § 6925(e).

EPA’s principal regulatory standards for treatment, storage, and

disposal facil’ties seeking final permits are contained in 40 C.F.R.

Part 264. The principal standards for the many facilities that are in

interim status are contained in 40 C.F.R. Part 265.

Although Congress in 1984 added detailed substantive require-

ments to Section 6924, some of which concern waste disposal on land,

those requirements are generally inapplicable to facilities, like Up-

john’s, that no longer accepted wastes after 1985. Accordingly, the

In carrying out its responsibility to ensure the exist-

ence of adequate disposal facilities, the EPA has provided

that an owner of such a facility must have a plan describ-

ing the manner and financing of its eventual ciosure and

must submit that plan for approval when the time for

closure arrives. 40 C.F.R. $§ 265.112(a) and (d),

265.140-.150. Publie notice is to be given and public com-

ments received, with a hearing to be held if necessary.

40 C.F.R. § 265.112(d) (4); see also 42 U.S.C. § 6974 (b)

(requiring notice to local government and opportunity for

public hearing before issuance of permit). The EPA may

not approve the closure plan unless it meets specific re-

quirements for particular types of facilities, such as land-

fills (40 C.F.R. $§ 265.300-.316 (subpart N)), as well as

the generally applicable condition that the closure plan

minimize the post-closure escape of hazardous substances

“to the extent necessary to protect human health and the

environment” (40 C.F.R. § 265.111(b)). Upon approvai,

the closure plan must be executed, in whole or in relevant

part, within 180 days (absent an extension). 40 C.F.R.

§ 265.113 (b).?

Congress recognized a role for States in the regulation

of hazardous wastes. RCRA provides that the EPA Ad-

ministrator may authorize a State to administer a haz-

ardous waste program “in lieu of the Federal program”

(e.g., issuing and enforcing the required permits) but

only if the state program is, inter alia, “equivalent to”

and “consistent with” the federal program. 42 U.S.C.

§ 6926(b). The statute also provides, with respect to

EPA hazardous waste regulations, that “[n]othing in

this chapter [42 U.S.C. §§ 6901-6992k] shall be con-

substantive standards relevant to this case are those established by

the EPA.

* Although the regulations cited in the text are those applicable

to facilities in interim status, the regulations applicable to facilities

with permanent permits (40 C.F.R. Part 264) are identical in all

material respects.

strued to prohibit any State or political subdivision

thereof from imposing any requirements, including those

for site selection, which are more stringent than those

imposed by such regulations.” 42 U.S.C. § 6929.

B. Factual Background

1. The Closure Plan. Petitioner Upjohn, a producer

of pharmaceuticals, agricultural products, and synthetic

organic chemicals, acquired a chemical manufacturing

plant in North Haven, Connecticut, in 1962, and operated

the plant as expressly allowed by the Town’s zoning reg-

ulations. Pet. App. 5a; Joint Appendix in Court of Ap-

peals (“JA”) 501-02. The North Haven facility has al-

ways included a svstem—modified over the years with

the involvement of the Connecticut Department of En-

vironmental Protection (DEP)—to treat wastewater

generated as a part of the manufacturing process. JA

196-200. The system, as it evolved, included lagoons and

tanks to hold the wastewater while it was biologically

treated and while solids in the water settled. JA 98-101,

107-11, 113, 224. Beginning in 1973, the settled solid

waste (sludge) was placed in a pile located on the Upjohn

site near the lagoons. JA 100-102, 502. Upjohn stopped

adding waste to the sludge pile in April 1985 and, at

about the same time, altered its treatment system to re-

duce by 90 percent the quantity of sludge produced. This

case concerns the sludge pile, which covers four acres

and is contained by sloping earthen sidewalls holding

roughly 83,900 cubic yards of material. Pet. App. 5a-6a.

The pile contains certain materials whose properties

render the sludge hazardous waste under RCRA. 42

U.S.C. §§ 6921, 6924(d) and (e); 40 C.F.R. § 261.31. In

early 1986, after ceasing all disposal of wastes in the

sludge pile, Upjohn submitted to the EPA and the Connecti-

cut DEP a plan for closing the pile on the site, having

corresponded with both agencies on the matter for the

preceding five years. JA 202-08, 211-16, 332-34." De-

veloped by an environmental engineering firm with sub-

stantial experience in preparing closure plans for hazard-

ous waste disposal facilities, Upjohn’s plan was revised

several times while under agency review, based on com-

ments submitted by respondent North Haven Planning

and Zoning Commission and others, both in writing

and at a public hearing held by the EPA and DEP. JA

390-91, 400-01, 504, 592. Under the final version of the

closure plan, a temporary “cap” consisting of an imper-

meable barrier, clay, and soil would be placed on the pile,

and groundwater would be collected and treated to min-

imize any release of chemicals; then, after the pile had

adequately settled and stabilized, a permanent cap of im-

permeable material and topsoil would be placed on the

pile, and groundwater collection, treatment, and moni-

toring would continue for 30 years (unless approval is

granted to cease earlier). JA 393-96.

The EPA and DEP jointly approved the closure plan

on September 29, 1989, thereby obligating Upjohn to

carry out the initial phase of the plan by March 29,

1990. JA 505, 655-56. In the approval decision, the EPA

and DEP found that the plan complies with applicable

regulations, including specific requirements for landfills

and the basie federal requirement that the closure plan

control, minimize, or eliminate the escape of hazardous

materials “to the extent necessary to protect human

health and the environment.” 40 C.F.R. § 265.111(b).

See J.A. 655-56.4

* The Upjohn waste site has an interim-status permit and there-

fore came under the interim-status regulatory standards. At the

time of the closure plan’s submission and eventual approval, the

Connecticut DEP had not been authorized by the EPA to administer

the RCRA regulatory scheme. Becatse Connecticut had its own

regulatory statute, however, the closure-approval process in this

case was carried out by the EPA and DEP jointly.

4The EPA/DEP letter noted that the approval “does not relieve

the facility of the obligation to obtain any other authorizations as

2. The North Haven Ban. While the federal and state

environmental authorities were examining and approving

Upjohn’s closure plan, respondents implemented their de-

termination, arrived at some years earlier, to force Up-

john simply to rid the Town of the sludze pile. On Feb-

ruary 14, 1983, the Town zoning authorities had taken

two steps to get rid of the waste disposal problem asso-

ciated with the industrial activity that the Town had

long permitted. First, the Commission enacted the pres-

ent version of Section 3.27.2.24 of the Zoning Regula-

tions, which makes explicit what, according to the Town,

was implicit in the prior zoning ordinances: that outside

storage of waste products or material is prohibited with-

out express approval of the Commission. JA 552, 688.

See Pet. App. 19a, 65a. Second, the Commission ordered

Upjohn to submit a plan for the eventual removal of the

waste pile, inciuding the requirement as a condition of

approving certain permits for improvements in other fa-

cilities on the site. JA 559-60.

The Town’s commitment to elimination of the waste

pile was made concrete in May 1986, shortly after Up-

john submitted its initial closure proposal to the EPA and

DEP. At that time, the Town Zoning Enforcement Offi-

cer, whose successor is respondent Scott Schatzlein, issued

a cease and desist order to Upjohn, forbidding it to con-

tinue maintaining the pile. JA 503 (stipulated facts).

Although the order refers to the condition imposed on

February 14, 1983 (J.A. 500, 560), it has been defended

as resting on the Town’s position that maintenance of the

pile is a zoning violation. Thus, in upholding the order,

the Connecticut Superior Court recently accepted the

Town’s argument that (a) Section 6.1 of North Haven’s

zoning regulations has long prohibited any land use in an

industrial zone that is not expressly allowed and is not

may be required by other provisions of the Connecticut General

Statutes, Regulations of Connecticut State Agencies, Code of Fed-

eral Regulations, or Federal Statutes.” JA-656.

an “accessory” use related to a permitted use, and (b)

the waste pile, although not challenged by the Town until

1983, had never been expressly allowed and was not an

accessory use. Upjohn Co. v. North Haven Planning &

Zoning Comm’n, Nos. CV-89-0250632-S, CV-89-0280709-

S, CV-89-0284413-S, slip op. at 15-21 (Conn. Super. Ct.,

Jud. Dist. of New Haven Feb. 21, 1991).°

In January 1989, respondent Commission explicitly af-

firmed the same policy, demanding that the waste pile be

removed from the Town. It did so in denying applica-

tions filed by Upjonn that sought permission to install

improvements to its wastewater treatment system or-

dered by the state DEP. JA 227-28, 626. The parties

here have stipulated that the Commission denied the ap-

plications solely because of its view that the pile is in

5 As we have noted in the text, respondents have always defended

both the cease and desist order and the 1983 condition, in the court

of appeals and district court below as well as in the state court

actions, as resting on the alleged prohibition of the waste pile by

North Haven’s zoning regulations (Section 3.27.2.24 as amended in

1983 and the pre-existing Section 6.1). See, e.g., C.A. Br. of

Plaintiffs-Appellees at 32 (“the basis for the order was Upjohn’s

violation of the zoning regulations” and “the issue raised in the

state court appeal was the same as that raised in this case’’) ;

Plaintiffs’ Post-Trial Mem. at 14-28 (D. Conn.); Preliminary Brief

for the Zoning Board of Appeals of the Town of North Haven, in

Upjohn Co. v. Zoning Bd. of Appeals, No. CV-86-0250632-S, at 21-30

(Conn. Super. Ct., Jud. Dist. of New Haven April 6, 1987) (arguing

that pre-1983 zoning regulations prohibited the waste pile). The

Connecticut Superior Court took the same view when it found it

necessary to reach and resolve the issue whether the waste pile was

a zoning violation before (and after) 1983, deciding that it was.

Upjohn Co. v. North Haven Planning & Zoning Comm’n, supra,

slip op. at 15-'8. See also id. at 23 (“commission cannot require the

applicant to meet standards not contained in the regulations’’) ; id.

at 29 (refusing to discuss another issue because it had been made

academic by remainder of court’s ruling).

Ten copies of the recent Superior Court decision have been lodged

with the Clerk of the Court,

violation of the Town’s zoning regulations. JA 505 (stip-

ulated facts) .°

Throughout this extended dispute, including the period

after federal and state approval of Upjohn’s closure plan,

the Town has thus relied upon its zoning power as the

justification for its efforts to force removal of the sludge

pile. At no point has either of the respondents made

any specific findings that the closure plan approved by

the EPA and DEP is unsafe or that only elimination of

the waste pile would adequately protect human health

and the environment, in North Haven alone or generally.

At the same time, it has remained undisputed that re-

spondents’ insistence on removal of the waste pile from

the Town would impose enormous additional costs on

Upjohn (and, perhaps, on other localities to which the

waste would be moved). The district court noted that

the EPA/DEP-approved closure plan was estimated in

1986 to cost approximately $1 million. Pet. App. 6a. By

contrast, removal was estimated in 1986 to cost between

20 and 40 times the $1 million needed for closure, de-

pending on the available means of removal. Pet. App. 6a.

The cost of removal has grown substantially, both in

absolute terms and relative to the cost of on-site closure,

since 1986.7

6 The state trial court has recently held that the CommiSsion could

not lawfully base its denial of permission to improve the w: stewater

treatment facility on an alleged violation at the waste pile located

elsewhere on Upjohn’s site. Upjohn Co. v. North Haven Planning &

Zoning Comm’n, supra, slip op. at 21-28. Although the Commission’s

implementation of its position through denial of the requested

application has been set aside, the position itself has not been

abandoned.

7If land disposal were the chosen alternative, thousands of truck-

loads would have to be shipped great distances, because neither

Connecticut nor any other nearby State currently has an adequate

land disposal site. During the excavation and move, the pile would

be exposed to rainwater and snow that would increase the leaching

of materials into groundwater. As an alternative to land disposal,

incineration would be more expensive and likely require substantial

C. Proceedings Below

1. District Court Proceedings. Three weeks after Up-

john received federal and state approval for its closure

plan, and after it had begun the initial capping of the

waste pile, respondents filed suit in Connecticut Superior

Court, claiming that Upjohn’s implementation of the

closure plan would violate North Haven’s zoning regula-

tions and asking for a preliminary and permanent in-

junction that would forbid Upjohn to implement the

closure plan and require Upjohn to remove the pile. See

JA 11. Upjohn, which is headquartered in Michigan, re-

moved the case to federal court pursuant to 28 U.S.C.

§ 1441. Upjohn contended that the zoning regulations did

not require removal and, in any event, that respondents’

direction to remove the pile was preempted by RCRA and

by the EPA approval of the closure plan. Upjohn coun-

terclaimed for an injunction against respondents’ order

to remove the pile. JA 13-24.

After trial, the district court ruled in favor of re-

spondents on the federal issue and enjoined implementa-

tion of the closure plan.* Pet. App. 4a-2la. As an initial

matter, the court abstained from deciding whether the

Town’s zoning regulations do in fact require removal of

the waste pile, instead assuming that they do. Pet. App.

lla. Proceeding on that assumption, the court then held

that the regulatory prohibition is not preempted by fed-

eral law.°®

movement of the pile anyway, for there is no incineration facility

nearby; incineration also would probably result in increased air

pollution. Chemical fixation of the material may not be possible and

might require removal in any event.

8 The trial was consolidated with the hearing on the application

for a preliminary injunction. Although respondents had applied

for a temporary restraining order, that request was denied. Pet.

App. 4a-5a. The temporary capping of the waste pile, as called for

by the initial phase of the closure plan, was completed by the time

that the district court ruled on May 31, 1990.

® The district court also abstained from deciding whether the

Town’s position was inconsistent with state law. Pet. App. 12a.

In reaching the question whether the assumed local requirement of

The court reasoned that application of the Town’s ban

on outdoor waste storage (Zoning Regulation § 3.27.2.24)

to Upjohn’s facility was authorized by the RCRA “savy-

ings” clause, which disclaims preemption of ‘any require-

ments, including those for site selection, which are more

stringent than those imposed by [EPA] regulations”

under RCRA. 42 U.S.C. § 6929. The court recognized

that both the Eighth Circuit and a federal district court

had held local bans on disposal facilities to be outside the

scope of the savings clause and inconsistent with RCRA’s

aim of ensuring adequate safe disposal capacity. See

ENSCO, Inc. v. Dumas, 807 F.2d 743 (8th Cir. 1986) ;

Ogden Envtl. Servs. v. City of San Diego, 687 F. Supp.

1436 (S.D. Cal. 1988). The district court here distin-

guished those decisions, however, on the ground that the

ban in this case was not adopted after, or in response to,

a specific federal approval of a waste-disposal project.

Pet. App. 19a-20a. The court also relied on the fact that

the Town’s ban allows for the possibility of exemptions,

although the court made no findings as to the basis for

not extending an exemption to Upjohn. Z/d. at 20a-21a.

Finally, the court observed that the EPA/DEP letter

approving Upjohn’s closure plan stated that Upjohn was

not thereby being relieved from obtaining any further

authorizations required by Connecticut General Statutes.

Id. at 21a.

2. The Court of Appeals Decision. The court of ap-

peals affirmed, agreeing that the Town’s ban was con-

removal was federally preempted, the court initially suggested that

petitioner was at least required to apply for a permit to implement

its closure plan. Jd. at 13a-14a. As respondents later explained to

the court of appeals, however, the district court’s preemption ruling

was “not dependent on whether or not Upjohn had applied for the

permits.” Plaintiffs-Appellees’ Memorandum of Law in Opposition

to Defendant-Appellant the Upjohn Company’s Motion for Stay of

Appeal at 5-6. Upjohn did subsequently apply for permits, which

the Commission denied precisely because of the alleged zoning viola-

tion. Ibid.

sistent with federal law. Pet. App. la-3a. First, the

court, like the district court, pointed to the RCRA sav-

ings clause, which allows local governments to impose

“more stringent” regulations. Next, it noted the sentence

in the EPA,/DEP approval letter that disclaimed pre-

emption of any obligation Upjohn had to obtain author-

izations “required” by “the Connecticut General Stat-

utes,” state agency regulations, or federal statutes or reg-

ulations (see note 4, supra) ; the court observed that local

zoning codes are “authorized” by the Connecticut Gen-

eral Statutes (in §§ 8-1 and 8-2). Pet. App. 2a. Then,

the court said that the EPA and DEP had “responded to

public comments and questions by stating that if the Con-

necticut courts upheld a ruling that Upjohn’s current

plan would violate zoning regulations, Upjohn would have

to submit to EPA and DEP a new plan for review and

approval.” Pet. App. 2a-3a.'° Against this background,

the court of appeals, without further analysis, rejected

the preemption argument “substantially for the reasons

stated in the Memorandum of Decision of Judge Daly

dated May 31, 1990, published at [753] F. Supp. [423]

(1990).” Pet. App. 3a.

©The court had in mind the following passage from the State

DEP’s summary of public comments and responses, issued in April

1989 (JA 603) :

Public Comment

Will DEP/EPA require Upjohn to submit, along with its pend-

ing application for a closure/post-closure plan, a plan indicating

how they would remove the sludge pile in the event the pending

North Haven Planning and Zoning court action so required?

DEP/EPA Response

No. If the final determination from the court upholds the com-

plaint filed by the Planning and Zoning Commission, Upjohn

would have to submit a waste removal closure/post-closure plan

to DEP. EPA for review and approval.

REASONS FOR GRANTING THE PETITION

The Second Circuit has held that a local veto of a plan

to dispose of hazardous waste—a veto made without any

articulated and well-supported environmental basis and

in the face of an EPA finding that the disposal plan ade-

quately protects human health and the environment—is

consistent with federal law. That view, which allows a

municipality to garner the benefits of industrial activity

without sharing the costs, is incorrect. Not surprisingly,

it is also in conflict with the view taken by other federal

courts, including the Eighth Circuit. See, e.g., ENSCO,

Inc. v. Dumas, 807 F.2d 743 (8th Cir. 1986); Ogden

Envtl. Servs. v. City ef San Diego, 687 F. Supp. 1436

(S.D. Cal. 1988).

The federal scheme embodied in RCRA establishes a

national policy aimed at solving the national problem of

providing adequate facilities for the safe disposal of

hazardous wastes. Although RCRA permits localities to

serve that policy by imposing “more stringent” require-

ments on disposal facilities (42 U.S.C. § 6929), it does

not allow a locality to wall itself off from the solution by

simply banning a disposal facility within its borders,

with the inevitable effect that some other jurisdiction will

be burdened with the problem. However attractive that

sort of exclusionary policy might appear from a purely

local peint of view, it is not “more stringent” than fed-

eral requirements, for it is no more protective of the en-

vironment, considered from the necessary national per-

spective. Indeed, Congress has recognized that the sort

of “not in my back yard” (NIMBY) syndrome that was

at work in this case, if allowed to prevail, would under-

mine the RCRA policy of ensuring safe disposal of haz-

ardous wastes. See pages 15-16, infra.

The Second Circuit was thus mistaken in concluding

that federal law allows a local community’s effort to ex-

port its hazardous-waste problem to other communities

when a local solution has already been found safe by fed-

eral authorities. Other federal courts have rejected that

approach and recognized the invalidity of such near-

sighted efforts, holding them preempted by RCRA and other

statutes. See, e.g., ENSCO, Inc. v. Dumas, supra; Og-

den Envtl. Servs. v. City of San Diego, supra. If the

Second Circuit’s decision stands, however, local communi-

ties will be encouraged to follow North Haven’s lead and

ban local hazardous-waste disposal within their borders.

The federal regulatory scheme cannot function, and the

environment will suffer, if localities are permitted to

disclaim their share of the national responsibility for

safe disposal."

I. RESPONDENTS’ BAN OF A LOCAL HAZARDOUS

WASTE DISPOSAL FACILITY IS INCONSISTENT

WITH RCRA.

A. The Federal Policy

A local ban on a hazardous-waste disposal facility,

without any finding that the facility must be removed

for environmental safety, is contrary to the federal

scheme established by RCRA. As such, it is preempted

by federal law. See, e.g., Northwest Cent. Pipeline Corp.

v. State Corp. Comm’n, 109 S. Ct. 1262, 1273 (1989) ;

International Paper Co. v. Ouellette, 479 U.S. 481, 491-92

(1987); Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

It is, to begin with, unmistakable that Congress re-

garded the problem of hazardous waste to be a national

problem, not one to be left to the initiative of state and

local governments. To bring about a national solution,

Congress sought in RCRA to ensure the safe disposal of

11 Protectionist efforts to avoid responsibility for waste disposal

have become a national problem. See Weisskopf, Carolinas’ Clash

Over Toxic Waste: Sign of a Nationwide Problem, Wash. Post,

March 18, 1991, p. A7 ‘describing “new kind of civil war’ between

“states that have incinerators and landfills to handle their wastes”

and “ ‘have not’ states that have dodged the politically sticky task

of siting hazardous waste facilities at home”).

hazardous wastes by guaranteeing the development of a

sufficient number of adequate disposal facilities. See

American Mining Congress v. EPA, 824 F.2d 1177, 1179

(D.C. Cir. 1987) (Congress’s “ ‘overriding concern’ ” was

to create “a national system to insure the safe manage-

ment of hazardous waste”) (citation omitted). That

guarantee is a logical prerequisite to the functioning of

the entire “cradle-to-grave” management system, which

depends on the existence of safe final resting places—

disposal facilities—for the hazardous waste that is an

inevitable byproduct of industrial and other human ac-

tivity. A local ban that lacks a particularized environ-

mental justification is manifestly inconsistent with that

congressional goal: there would be no disposal at all if

every jurisdiction adopted a comparable policy.

Congress, in fact, has taken specific notice of the ten-

sion between the national commitment to adequate dis-

»osal facilities embodied in RCRA and the tendency of

local communities to favor their placement elsewhere.

Thus, in a 1986 amendment to the Comprehensive Envi-

ronmental Response, Compensation, and Liability Act

(CERCLA), 42 U.S.C. § 9601 et seg., Congress resorted

to the financial leverage of Superfund money to pursue

the RCRA goal.” As the Senate Committee explained,

the RCRA goal was not being met with existing tools

because the “not in my back yard” (NIMBY) syndrome

leads to parochial protectionism; the tendency of local

governments to fall prey to the syndrome, said the Com-

mittee, undermines the national policy of RCRA:

Pressures from local citizens place the political sys-

tem in an extremely vulnerable position. Local offi-

cials have to respond to the fears of local citizens.

12 Tn Section 104(c) (9) of CERCLA, Congress declared that no

Superfund money may be spent for remedial actions in any State

that does not ensure, in its own borders or through contracts with

other States, enough disposal capacity meeting RCRA standards to

handle the hazardous waste generated in that State for the next

20 years. 42 U.S.C. § 9604(c) (9).

The broader social need for safe hazardous waste

management facilities often has not been strongly

represented in the siting process. A common result

has been that facilities have not been sited, and

there has been no significant increase in hazardous

waste capacity over the past several years.

In 1976, the Resource Conservation and Recovery

Act (RCRA) was passed, mandating the construc-

tion of needed hazardous waste facilities and placing

the responsibility for siting the facilities with the

States.

Unfortunately, when RCRA was first passed,

Congress failed to anticipate the intensity of public

opposition to new and expanded waste management

facilities. While everyone wants hazardous waste

managed safely, hardly anyone wishes it managed

near them. This is the NIMBY syndrome (not in my

backyard). Yet if the RCRA and Superfund pro-

grams are to work—if public health and the envi-

ronment are to be protected—the necessary sites

must be made available.

S. Rep. No. 11, 99th Cong., 1st Sess. 22-23 (1985). To

achieve that end, Congress used its Superfund leverage

as one device “to force States to provide safe and ade-

quate facilities for toxic and hazardous waste.” 132 Cong.

Ree. 28,436 (1986) (remarks of Sen. Chafee) .'*

13 A similar form of protectionism, based on the same NIMBY

principle, has been condemned by the United States government in

the context of supporting a Commerce Clause challenge to local

measures designed to keep hazardous waste from coming into a

State. Brief for the United States as Amicus Curiae in National

Solid Wastes Management Ass’n v. Alabama Dep’t of Envtl. Man-

agement, 910 F.2d 713 (No. 90-7047, 11th Cir. 1990), modified in

other respects, 1991 U.S. App. Lexis 1813, at 2 (“While most would

agree that adequate capacity for safe disposal of hazardous waste

is important to the nation’s health and welfare, individual states and

localities are likely to succumb to the ‘not in my backyard’ (NIMBY)

arguments of their constituents ... .”).

The United States noted in the same brief (at 15) that this

Court in City of Philadelphia v. New Jersey, 437 U.S. 617, 62%

The EPA likewise has explicitly and formally recog-

nized that the national policy of RCRA is not compatible

with efforts by one part of the country to declare itself

exempt from the solution to the hazardous-waste problem.

Thus, in its regulation discussing the circumstances in

which a state hazardous-waste program is to be regarded

as not “consistent”? with the federal program, EPA has

stated: “Any aspect of State law or of the State pro-

gram which has no basis in human health or environ-

mental protection and which acts as a prohibition on the

treatment, storage or disposal of hazardous waste in the

State may be deemed inconsistent.” 40 C.F.R. § 271.4

(b)."* The agency comment upon issuance of the regula-

tion further clarified that point: “State programs which

contain provisions that prohibit treatment, storage or dis-

posal of hazardous waste within the State, will be deemed

inconsistent if the prohibition has no basis in human

health or environmental protection.” 45 Fed. Reg. 33,395

(1980) (emphasis added)."® If a state program is not

(1978), held “that states may not place the burden of protecting

their resources or economy on other states.” That is the effect not

only of a ban on imports but also of a ban on keeping in a com-

munity hazardous waste that is already there, having been ygen-

erated by local industrial activity that has long benefited the com-

munity. In terms of RCRA policy, if not of Commerce Clause law,

such a ban is just as destructive as, and indeed more irresponsible

than, a local effort to seal itself off from waste created outside its

own jurisdiction.

4 The EPA has said that the regulation reflects its construction

not only of the state authorization provision, 42 U.S.C. § 6926, but

of the siatutory savings clause as well, 42 U.S.C. § 6929. Brief for

Respondents William Reilly and EPA in Hazardous Waste Treat-

ment Council v. Reilly, No. 90-1433 (D.C. Cir., filed Feb. 19, 1991),

at 10, 34-35.

5 The first part of the regulation reflects the same principle,

declaring that any state measure that “unreasonably restricts, im-

pedes, or operates as a ban on the free movement across the State

border of hazardous wastes from or to other States for treatment,

storage, or disposal at facilities authorized to operate under the

Federal or an approved State program shall be deemed inconsist-

ent.” 40 C.F.R. § 271.4(a).

consistent with federal policy when it operates as a ban

without environmental justification, a local government

measure with the same effect and same lack of particular-

ized environmental justification is every bit as inconsist-

ent with federal policy.'®

B. The Ban at Issue Here

The court of appeals, like the district court before it,

gave short shrift to concerns about national policy, find-

ing instead that Congress had allowed local communities

to require removal of hazardous waste pursuant to the

“savings clause” contained in 42 U.S.C. § 6929. But that

reading would turn a provision allowing more rigorous

assumption of environmental responsibilities into one al-

lowing wholesale avoidance of environmental responsi-

bilities—just the opposite of what Congress had in mind.

The plain fact is that a ban on a hazardous waste

facility, without a particularized environmental basis, is

not saved by the savings clause.'’ See ENSCO, Inc. v.

16 EPA also expressed its view of the national responsibility for

hazardous waste disposal in addressing local opposition to disposal

of polychlorinated biphenyls (PCBs), which are regulated by the

Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.:

EPA has become concerned that actions by local and State

governments to prohibit disposal of PCBs and other substances

in their jurisdictions could frustrate the national goal of prop-

erly disposing of hazardous chemical substances. While EPA

has always believed that States should have the right to set

pollution control standards more restrictive than the Fe@zrz!

standards, it would be a matter of national concern if this

principle were to become the basis for refusal by States to share

in the national responsibility for finding safe means for the

proper disposal of hazardous substances.

44 Fed. Reg. 31,528 (1979). Although the statutory contexts are

concededly different, those comments are equally applicable to haz-

ardous waste regulated by RCRA.

17 The legislative history of the savings clause itself is un-

enlightening. The clause was added to the statute in 1980. Solid

Waste Disposal Act Amendments of 1980, Pub. L. No. 96-482, § 14,

Dumas, supra; Ogden Envtl. Servs. v. City of San Diego,

supra (both discussed at pages 23-24, infra). Such a

ban is not “more stringent” in the sense used by RCRA,

for it is not more protective of human health and the

environment overall. A local ban does nothing to reduce

the nationwide risks to health and the environment that

RCRA seeks to eliminate. At best, it merely moves those

risks from one place to another. At worst, it increases

environmental harm overall by requiring resort to other

solutions that may be more damaging to the environ-

ment.'* And unlike a soundly based, stricter environmen-

tal standard, a simple ban, if adopted nationally, would

effectively prevent safe disposal in the United States.

To put the same point another way, it seems evident

from the statutory scheme as a whole that a local require-

ment cannot be regarded as “more stringent” than the

federal program—and thus free from preemption—if it

is not “consistent” with the federal program. The differ-

ence is simply that between supplemental regulation and

contradictory regulation. Here, as we have said, the very

essence of the federal program is to promote a univer-

sally shared responsibility for the development of ade-

quate disposal facilities. An environmentally unjustified

local ban is not consistent with that program, any more

94 Stat. 2342. It was added to the bill as an amendment on the

floor of the Senate, with essentially no comment on its meaning or

scope. 125 Cong. Rec. 13,247-50 (1979). No similar provision ap-

peared in the House bill, and the Conference Committee adopted the

provision without elaboration. H.R. Conf. Rep. No. 1444, 96th

Cong., 2d Sess. 41-42 (1980).

18 For example, transportation itself may be harmful, and alterna-

tives like incineration may cause other forms of pollution. Such

alternatives have been of specific concern to Congress and the EPA.

See, e.g., 42 U.S.C. §$ 6924(n), 6925(g); H.R. Rep. No. 198, Part I,

98th Cong., Ist Sess. 39 (1983); 48 Fed. Reg. 14,481-82 (1983).

More generally, Congress enacted RCRA to coordinate with, not

obstruct, other pollution laws, so as to reduce overall environmental

risks. 42 U.S.C. § 6905; H.R. Rep. No. 1491, Part I, 94th Cong.,

2d Sess. 4 (1976).

than is a state hazardous-waste program that operates

as a ban and lacks particularized environmental justifi-

cation. See 40 C.F.R. § 271.4 (reflecting EPA’s view of

the savings clause) ; page 17 & n.14, supra.’®

This is not to say that a local ban could never be a

“more stringent” regulation within the meaning of the

savings clause.” The existence of special local conditions

could conceivably make a local ban of a given waste site

more stringent in the proper environmental sense. At a

minimum, however, the regulating entity must come for-

ward with a particularized basis for holding that disposal

cannot be safely carried out within the jurisdiction, espe-

cially in the face of a particularized EPA decision that

removal of a particular waste facility is not necessary for

safety. Absent such a basis, a local ban must be deemed

preempted, given the obvious danger that improper

NIMBY motives, rather than sound safety considerations,

lie behind the local decision. There is no such environ-

mental basis for the ban in this case.”!

19 Although this Court has recognized a “presumption that state

or local regulation of matters related to health and safety is not

invalidated under the Supremacy Clause” (Hillsborough County v.

Automated Medical Laboratories, Inc., 471 U.S. 707, 715 (1985)),

that presumption drops out of the analysis when a local measure—

of the sort likely to be motivated by a protectionist, NIMBY prin-

ciple—is not found to be grounded in health or safety considera-

tions, other than perhaps a general desire to see some other com-

munity deal with the disposal of hazardous wastes.

20 Nor is it to say that a locality might not prohibit the placement

of a waste facility in particular areas within its borders—for ex-

ample, in residentia! neighborhoods. Here, of course, the waste pile

at issue is located in an industrial zone, and North Haven has

ordered its removal from the entire Town.

21 The effects of the present ban are particularly obnoxious to

federal policy because of the enormous costs imposed on an existing

facility. Congress has made clear its determination that extraordi-

nary care be taken before such costs are imposed in requiring

modification of existing facilities, even if higher costs might be

justified in regulating the construction of new facilities. See, e.g.,

The district court also sought to save the North Haven

ban on the ground that the Town’s regulations allow the

Commission to permit some waste-storage facilities. Pet.

App. 19a (describing Section 3.27.2.24). But even the

cited regulation fails to specify the circumstances in

which an exemption will be granted; without laying down

any standard for decision, it merely identifies a handful

of factors to be considered in reaching a decision, includ-

ing one consideration—“‘aesthetics”—unrelated to human

or environmertal safety. See Pet. App. 65a (quoting reg-

ulation). In any event, reliance on the facial terms of the

Town’s regulations is beside the point in the absence of

any finding that the Town based its refusal to allow

Upjohn’s facility on sound environmental concerns.” A

written provision for exemptions from the ban, even one

that identifies the factors to be considered in granting or

denying exemptions, is legally meaningless unless the

locality demonstrates that the proper factors, rather than

local parochialism, actually lay behind a particular re-

42 U.S.C. §$ 6924(a) (directing EPA to make appropriate distinc-

tions between existing and new facilities), 6924(b)-(h) (applying

new restrictions on particular disposal means only to still-open facili-

ties). Concern with costs is also a major theme of the regulatory

scheme, which requires careful financial planning for closure and

post-closure maintenance, because of the danger that high costs

might bankrupt a responsible party and, perhaps, leave a clean-up

problem to the public. See, e.g., 40 C.F.R. * 265.140-.150 (subpart

H: financial requirements); EPA, Background Document: Stand-

ards Applicable to Owners and Operators of Hazardous Waste Treat-

ment, Storage, and Disposal Facilities Under RCRA at 61, 70, 71

(1980); 51 Fed. Reg. 16,424-25 (1986) (modifying language of

proposed closure standard to reflect comments complaining that

proposed standard would require actions that “were not cost-

effective’).

22 There can be little doubt that the ban in this case is, in fact,

a ban. The Town has never suggested that Upjohn’s pile poses

problems unique to its site or that other action, short of removal

from the Town itself, would satisfy specific environmental concerns.

Indeed, when Upjohn applied for permission to close the pile on

the site, the application was summarily denied. See note 9, supra.

4 . ;

fusal to grant an exemption. An unjustified as-applied

ban is no different, for present purposes, from an un-

justified facial ban on disposal of particular wastes.

The ban at issue in this case was approved by the

courts below without any finding, or basis for finding,

that it has an environmental foundation. In particular,

there has been no finding that removal of the waste pile

is required for safety reasons or that the closure plan

approved by the EPA is, contrary to EPA’s determina-

tion, not actually protective of human health and the en-

vironment. See 40 C.F.R. § 265.111(b). The ban in

this case was upheld by the court of appeals and the dis-

trict court on the broad theory that no such basis is

required—that North Haven could ban Upjohn’s waste

pile even without any environmental reason. That prop-

osition is inconsistent with the RCRA scheme.**

“3 The court of appeals suggested in passing that the EPA—in a

sentence in the letter approving Upjohn’s closure plan and in a

response to a public comment—might have saved North Haven’s

removal requirement from preemption. But the sentence at issue in

the approval letter says only that the approval itself does not pre-

empt certain other obligations, not that otherwise-preempted obliga-

tions are thereby preserved. And the sentence conspicuously refers

only to an obligation to obtain “authorizations” that are “required”

by state statutes or state agency regulations (or federal statutes

and regulation). That category does not include any local govern-

ment rules that are merely permitted by state law, let alone rules

that prevent the execution of the closure plan rather than merely

authorize the steps needed to execute it. JA 656 (quoted at note 4,

supra). Similarly, the EPA/DEP response to a public comment

(see note 10, supra), aside from a confusing reference to a non-

existent suit brought by the Commission, says no more than that

a valid local requirement of removal of the waste pile would require

submission of a new closure plan. Nothing the EPA has said in

this proceeding alters the conclusion that North Haven’s local ban

is incompatible with the federal scheme.

Nor, contrary to the district court’s apparent belief (Pet. App.

19a-20a), does the timing of respondents’ removal decision make it

any less incompatible with RCRA.

II. OTHER FEDERAL COURTS, INCLUDING THE

EIGHTH CIRCUIT, HAVE RECOGNIZED FED-

ERAL PREEMPTION OF LOCAL BANS.

The decision below puts the Second Circuit in direct

conflict with other federal courts construing RCRA in

general and the savings clause in particular. Most par-

ticularly, it places the Second Circuit at odds with the

fighth Circuit, which has held that RCRA does preempt

a local measure that simply bans the disposal of certain

hazardous wastes within its borders, without regard to

specific safety concerns. ENSCO, Inc. v. Dumas, 807

F.2d 743 (1986). Although the Eighth Circuit recog-

nized that RCRA does not occupy the field of all hazard-

ous waste regulation—just as it does not preempt the

broader field of all solid waste regulation (City of Phila-

delphia v. New Jersey, 437 U.S. 617, 620 n.4 (1978) )—

it nonetheless found the local ban before it to be pre-

empted because it undermined “the purposes and objec-

tives of the RCRA” by walling the locality off from the

national problem of safe disposai of hazardous waste.

ENSCO, 807 F.2d at 744-45. The court explained:

“RCRA emphasizes the need for safe disposal and treat-

ment of hazardous waste,” yet the local ban “ignores that

[the particular] wastes do exist, and through its ban on

storage, treatment, and disposal in essence mandates that

these wastes in [the locality] will not be handled in the

manner deemed safest by Congress and the EPA.” J/d. at

745. The Eighth Circuit explicitly held that the local ban

was not protected by the savings clause in RCRA, which

“acknowledges only the authority of state and local gov-

ernmental entities to make good-faith adaptations of fed-

eral policy to local conditions,” not to insist that other

communities handle the hazardous-waste problem. J/bid.

The district court in Ogden Envtl. Servs. v. City of

San Diego, 687 F. Supp. 1436 (S.D. Cal. 1988), reached

a similar conclusion, expressly following the Eighth Cir-

cuit’s decision and holding that RCRA preempted a local

government’s refusal to permit a hazardous-waste dis-

posal facility (an incinerator) that had received a fed-

eral permit under RCRA, 42 U.S.C. § 6925. Acknowledg-

ing that the RCRA savings clause contemplates a role for

state and local regulation (687 F. Supp. at 1444), and

that a local government might even require land-use per-

mits in proper circumstances (id. at 1445), the court

nevertheless ruled, based on ENSCO, that the savings

clause “only provides for more stringent requirements

than those imposed by the federal government, not out-

right bans on such activity” (687 F. Supp. at 1446). The

court went on to conclude that the local refusal to per-

mit the disposal facility effectively constituted a ban, be-

cause (like the ban at issue here) it was unsupported by

any articulated, particularized environmental or health

and safety concerns (and the EPA had decided to permit

the facility as acceptably safe). Jd. at 1446-48.

The Fifth Circuit, in a related though not identical

statutory context, has likewise refused to allow a local

government to frustrate federal regulation of waste dis-

posal. In Rollins Envtl. Servs. (FS), Inc. v. Parish of

St. James, 775 F.2d 627 (5th Cir. 1985), which involved

24The Eleventh Circuit in National Solid Wastes Management

Ass'n v. Alabama Dep’t of Envtl. Management, 910 F.2d 713 (1990),

modified in other respects, 1991 U.S. App. Lexis 1813, held that

RCRA preempted a State’s ban on land disposal of certain hazard-

ous wastes, even though Congress had, in 1984, adopted a broad

policy against land disposal. The court concluded that the land

disposal provisions of RCRA (42 U.S.C. § 6924(d)-(m)) were de-

signed implicitly to give EPA the sole authority to delay the appli-

cation of the ban to particular wastes in light of a national deter-

mination of the unavailability of alternative disposal facilities; and

that, where EPA had granted such an extension for certain wastes,

a State could not adopt a ban for such wastes without violating

RCRA. 910 F.2d at 724. In making clear the need for a national

determination of adequate disposal capacity, the court cited Con-

gress’s policy of resisting the NIMBY syndrome and the interaction

of the RCRA and CERCLA policies encouraging the development

of adequate disposal capacity. 910 F.2d at 716. Those policies apply

with extra force where, as here, the waste site is not even subject

on its face to the congressional bar on land disposal.

the Toxic Substances Control Act (TOSCA), 15 U.S.C.

§ 2601 et seg., the court concluded that, even beyond the

specific TOSCA preemption provision, the TOSCA pro-

gram was designed to ensure safe disposal of certain

hazardous chemicals (775 F.2d at 632-33) and that a

local measure effectively banning local disposal would im-

pair that program. The court explained: “No one wants

a toxic waste disposal facility ‘in his own back yard,’”

yet “[ilf every locality were able to dodge responsibility

for and participation in this program through artfully

designed ordinances, the national goal of safe, environ-

mentally sound toxic waste disposal would surely be frus-

trated.” 775 F.2d at 637. The same conclusion applies

in this case.

No court, to our knowledge, has upheld a local ban of

the sort at issue here. Although a ban of sorts was al-

lowed in Sharon Steel Corp. v. City of Fairmont, 334

S.E.2d 616 (W. Va. 1985), appeal dismissed, 474 USS.

1098 (1986), the ruling in that case was quite different

from the decisions below upholding the ban imposed by

North Haven. In Sharon Steel, the West Virginia Su-

preme Court narrowly construed a local ordinance that

banned hazardous waste facilities, holding that it ap-

plied only to the extent that a particular facility itself

was found unsafe. The court therefore rejected an argu-

ment that RCRA preempted the ordinance on its face.

Id. at 624. The United States, whose views were solic-

ited by this Court, expressly relied on that limiting con-

struction in recommending that this Court deny review.

Brief for the United States as Amicus Curiae, Sharon

Steel Corp v. City of Fairmont, No. 85-616, at 3, 5 (filed

Dec. 31, 1985). At the same time, however, the United

States indicated that ‘a complete prohibition on place-

ment of hazardous waste sites might in some circum-

stances conflict with the federal scheme set forth in the

Resource Conservation and Recovery Act.” Jd. at 3.

Even with the ordinance narrowly construed, three Jus-

tices dissented from the decision of the Court not to hear

the case. 474 U.S. 1098 (Justices Brennan, White, and

Blackmun dissenting).

In the present case, of course, the courts below ap-

proved a local waste-disposal ban without regard to any

need for an environmental justification as applied. This

ease thus squarely presents the question whether such a

flat prohibition is consistent with the provisions of RCRA.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

H. BARTOW Fark, III *

RICHARD G. TARANTO

ONEK, KLEIN & FARR

2550 M Street, N.W.

Washington, D.C. 20037

(202) 775-0184

S. ROBERT JELLEY

WILLIAM J. DOYLE

BRIAN J. CASEY

WIGGIN & DANA

One Century Tower

New Haven, CT 06508-1832

(203) 498-4400

Dated: March 20, 1991 * Counsel of Record

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 598 August Term, 1990

(Argued: December 10, 1990 Decided: Dec. 14, 1990)

Docket No. 90-7638

NoRTH HAVEN PLANNING AND ZONING COMMISSION,

and ScoTTt SCHATZLEIN,

Plaintiffs-A ppellees,

UPJOHN COMPANY,

Defendant-A ppellant.

Before: KEARSE, PIERCE, and MINER, Circuit Judges.

Appeal from a judgment of the United States District

Court for the District of Connecticut, T.F. Gilroy Daly,

Judge, enjoining defendant from implementing plans

with respect to waste pile until necessary permits ob-

tained from plaintiff commission. See F. Supp.

(1990).

Affirmed.

Per Curiam:

Defendant Upjohn Company (“Upjohn”) appeals from

a final judgment of the United States District Court for

the District of Connecticut, T.F. Gilroy Daly, Judge, en-

joining Upjohn from implementing its present plan for

“capping” a 4.25-acre, 40-foot-high pile of chemical waste

on its property in the Town of North Haven, Connecticut

(“Town’’), until such time as Upjohn has obtained the

necessary permits from plaintiff North Haven Planning

& Zoning Commission. The district court ruled that the

Town’s zoning regulations were not preempted by the

Federal Resource Conservation Recovery Act (“RCRA”’’),

42 U.S.C. § 6901 et seg. (1988), or by prior actions of the

United States Environmental Protection Agency (“EPA’’)

and the Connecticut Department of Environmental Pro-

tection (“DEP”) in approving Upjohn’s current plan.

On appeal, Upjohn contends principally that the districi

court erred in concluding that RCRA does not preempt

the Town’s zoning regulations and in abstaining from

deciding, inter alia, whether the Town’s regulations are

in fact violated. We have considered all of Upjohn’s

arguments on this appeal and have found them to be

without merit.

RCRA provides that “[n]Jothing in this chapter shall

be construed to prohibit any State or political subdivision

thereof from imposing any requirements, including those

for site selection, which are more stringent than those

imposed by [the] regulations [passed pursuant to this

chapter].” 42 U.S.C. § 6929. In addition, the approval

given by EPA and DEP to Upjohn’s plan to cap its sludge

pile stated that the approval did not relieve Upjohn from

its obligation “to obtain any other authorizations [that]

may be required by other provisions of the Connecticut

General Statutes”; local zoning codes are authorized by

Conn. Gen. Stat. Ann. §$§ 8-1 and 8-2. Consistent with

the view that the approval was thus not intended to pre-

empt local zoning regulations, EPA and DEP responded

to public comments and questions by stating that if the

ee i relia ics

Connecticut courts upheld a ruling that Upjohn’s current

plan would violate zoning regulations, Upjohn would have

to submit to EPA and DEP a new plan for review and

approval.

Accordingly, we see no error in the rulings of the dis-

trict court that federal law and regulatory actions have

not. preempted the Town’s zoning regulations. Nor do

we see any abuse of discretion in the court’s decision to

abstain from deciding what are essentially state-law ques-

tions. In sum, we affirm the judgment substantially for

the reasons stated in the Memorandum of Decision of

Judge Daly dated May 31, 1990, published at

F. Supp. —— (1990).

The judgment of the district court is affirmed.

———— 4a

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

Civ. No. N-89-526 (TFGD)

NORTH HAVEN PLANNING & ZONING COMMISSION

and SCOTT SCHATZLEIN,

Plaintiffs,

THE UPJOHN COMPANY,

Defendant.

MEMORANDUM OF DECISION

| Filed May 31, 1990]

The subject of this litigation is a sludge pile containing

hazardous materials located on defendant’s property in

North Haven, Connecticut. The North Haven Planning

and Zoning Commission (‘the Commission”) and Scott

Schatzlein, its present Zoning Enforcement Officer

(“plaintiffs”) originally filed this action on October 19,

1989 in Superior Court in New Haven, Connecticut,

seeking to enjoin the Upjohn Company (“defendant”,

“Upjohn”) from implementing a plan capping the sludge

pile and also requiring Upjohn to remove it. Defendant

subsequently removed this case to federal court. 28 U.S.C.

° 1441. On October 25, 1989, the Honorable José A.

Cabranes denied plaintiffs’ application for a temporary

restraining order. On November 22, 1989, Upjohn an-

swered plaintiffs’ amended complaint, and also filed a

counterclaim seeking to enjoin plaintiffs from enforcing

any local regulations which prohibit Upjohn from imple-

menting its closure plan and new wastewater treatment

system. A consolidated hearing on plaintiffs’ application

for a preliminary injunction and trial on the merits of

both parties’ claims began on December 4, 1989, and con-

cluded January 10, 1990. Both parties have submitted

proposed findings of fact and conclusions of law, and the

matter is now ripe for decision.

FINDINGS OF FACT

The Upjohn Company, headquartered in Kalamazoo,

Michigan, produces pharmaceuticals, agricultural prod-

ucts, and synthetic organic chemicals. Upjohn’s North

Haven, Connecticut facility, a medium-sized manufactur-

ing plant, makes synthetic organic chemicals. The North

Haven plant is bounded on its eastern side by the Quin-

nipiac River. Upjohn started production on this site in

1962.

1) THE PILE

A by-product of Upjohn’s chemical manufacturing is a

substantial quantity of wastewater. In 1968, Upjohn

began adding lime to its wastewater so as to neutralize

its waste, and channeling the water through a series of

lagoons to permit any solids to settle before the water

was discharged into the Quinnipiac River. Upjohn has

modified these lagoons several times to improve its water

treatment system. Upjohn also dredged the solids which

had collected in the lagoons and, starting in 1973, began

placing this waste material, known as a sludge, on a por-

tion of its property north of a certain lagoon which by

that time contained an aeration device. By 1977 the re-

sulting pile, known as the north sludge pile and the sub-

ject of this litigation, covered approximately 4.25 acres

of Upjohn’s property.

Upjohn continued to place sludge on- this pile until

April, 1985. The pile did not expand any further hori-

zontally, but did grow vertically. By 1985, the pile stood

approximately 40 feet above grade, and contained ap-

proximately 83,000 cubic yards of sludge. The pile is

surrounded on all sides by a sloping earthen embankment

and dikes. The material in the pile consists of, among

other compounds, iron, iron oxides, silica, silica oxides,

powdered activated carbon, sodium chloride, microorgan-

isms, lead, dichlorobenzidene, dichloronitroauiline, other

trace chemicals, and water. The materials in the pile are

classified as hazardous waste under the Federal Resource

Conservation Recovery Act (“RCRA”). 42 U.S.C. § 6901

et seq.

In April, 1985, as a result of adding a substantial

amount of material that had not had a sufficient period

to dry, the pile partially collapsed, damaging water treat-

ment devices. Upjohn removed approximately 27,000 tons

of material that had escaped from the pile, placed it in a

temporary storage area, and subsequently took it off site.

Some time after this accident, Upjohn implemented a

treatment system which reduced the quantity of ma-

terial being produced by approximately 90 percent. Up-

john stopped placing sludge on the north pile in April,

1985.

Upjohn hired Malcolm Pirnie, Inc. to evaluate the

remedial alternatives for addressing the environmental

problems posed by the north sludge pile. That firm re-

ported in July, 1986, that carting the sludge away would

cost $22,660,000, that incineration and carting would cost

$19,700,000, and that chemical fixation and carting would

cost $40,500,000. The firm also explained that capping

the pile and leaving it in place would cost only $900,000.

A similar report prepared in 1982 had estimated the

cost of carting the sludge away at $12,000,000, with an

additional $500,000 per year thereafter for sludge gen-

erated at the production rate at that time. There was

testimony at trial that chemical manufacturers around

the country utilize one or combinations of several options

for on-site disposal of sludge: land piling (such as uti-

lized by the defendant), land fill, land spreading or

spraying, and land farming. Other manufacturers have

inplemented recycle and reuse programs, and still others

incinerate, though this was not popular until the 1980’s

due to the oil crises of the 1970’s. Finally, some com-

panies take their waste off site.

Upjohn chose to cap their pile, provided it could gain

approval from the United States Environmental Protec-

tion Agency (“EPA”). The plan developed and modified

by Malcolm Pirnie provides for capping the pile in two

stages, which includes first adding six inches of gravel,

and then replacing this layer with 24 inches of vegetated

cover soil and a synthetic membrane. Malcolm Pirnie

recommended the phased approach in order to more closely

monitor the stability of the pile. The final cap will pro-

vide for a “higher degree of long-term integrity.” Def’s

exh. 523 at 1-6. Under the plan, the capped pile and

subsurface groundwater are to be monitored for hazard-

ous waste leachate for the next thirty years. Jd.

2) The Regulations

Since 1960, North Haven has had zoning regulations

in effect which provide for permitted uses in industrial

zones delineated within the town. The town’s regula-

tions are permissive in nature, meaning that only those

uses which are expressly allowed are permitted. Upjohn’s

North Haven facility is located in an industrial zone

designated IG-80. Upjohn’s manufacturing processes have

always been permitted in this zone. Since 1960, resi-

dents of an IG zone were also permitted to engage in

“accessory uses customarily incidental to a permitted use

on the same premises.” Furthermore, since 1960, North

Haven’s regulations have provided that any non-conform-

ing use lawfully existing at the effective date of the

regulations or any amendment may be continued.

The Commission became aware of the manner in which

Upjohn was disposing of its sludge sometime in the late

1976’s. The Commission and Upjohn had numerous com-

munications concerning the defendant’s wastewater treat-

ment and disposal system from that time through 1986.

In 1983, the Commission sent a letter advising Upjohn

that it had approved defendant’s applications for permits

concerning additions to the wastewater treatment system

subject to certain conditions, including that Upjohn sub-

mit a plan and a timetable for the removal of all existing

sludge. Pltf’s exh. 32. The Town also amended its zoning

regulations so as to provide “|[nJo storage of any type

. Shall be permitted outside of an enclosed area with-

out the expressed site plan approval of the Planning and

Zoning Commission.”

On June 3, 1985, Upjohn informed the Commission that

it was about to implement a system reducing solid waste

generation by 90 percent, and that it was investigating

possible uses for the existing sludge, including ways to

convert the sludge to non-toxic materials. Pltf’s exh. 33.

Upjohn also advised the Commission that it intended to

pursue these options primarily, but that it would dispose

of material from the pile at a rate of one truckload per

week. Jd. The Commission replied that this course of

action was unacceptable, and that unless Upjohn made

a more substantial commitment to removing the accumu-

lated sludge, the Commission would be forced to issue a

Cease and Desist Order. Pltf’s exh. 33. On May 16,

1986, the North Haven Zoning Enforcement Officer for-

mally informed Upjohn that it was in violation of the

conditions attached to zoning approvals granted in Feb-

ruary, 1983, and ordered it to cease and desist ail out-

door storage of sludge on the property. Pltf’s exh. 4. On

May 23, 1986, the Commission informed the Connecticut

Department of Environmental Protection (“DEP”) that

Upjohn was in violation of North Haven’s zoning regula-

tions. Pitf’s exh. 3. Upjohn subsequently appealed the

action of the Zoning Enforcement Officer to the Zoning

Board of Appeals. That body upheld the Officer’s actions.

Thereafter, Upjohn appealed the Board’s decision to the

Connecticut Superior Court. Upjohn Co. v. Zoning Bad.

of Appeals of the Town of North Haven, CV-86-0250632

(Conn. Super. Ci.). That appeal is still pending. Pltf’s

exh. 138A.

Since at least 1981, Upjohn contemplated closing the

sludge pile when it reached capacity, which was esti-

mated to be approximately 90,000 cubic yards. Def’s

exhs. 503, 505. In early 1986, Upjohn submitted its clos-

ure plan for the sludge pile, prepared by Malcolm Pirnie,

Ine., to the EPA and DEP. As described above, this

plan proposed capping the pile, and did not propose re-

moval of the material. After receiving comments con-

cerning this plan, Upjohn submitted revised plans in Jan-

uary, 1988, and again in July, August, and September,

1989. Counsel for plaintiffs sent a letter to the EPA and

DEP on March 28, 1988, commenting on the proposed

capping plan. Pltf’s exh. 13A at { 10. Plaintiffs also tes-

tified at a hearing held by the EPA and DEP on June

15, 1988 addressing the plan. Id. at 111. On September

29, 1989, the DEP and EPA formally approved Upjohn’s

capping plan. Def’s exh. 524.

On June 15, 1988, the DEP Commissioner issued an

Order requiring Upjohn to take all steps necessary to

install certain wastewater treatment facilities as required

to comply with the applicable state water pollution dis-

charge regulations. Def’s exh. 522 at A. The Order

further provided that noncompliance with these provi-

sions would result in monetary penalties. Jd. Upjohn

subsequently applied to the Commission for permits to

make modifications to its wastewater treatment system.

Pitf’s exh. 183A at 1715 & 16. At a January 17, 1989

meeting, the Commission denied these applications solely

on the basis of the alleged zoning violations; i.e., the

sludge pile. Jd. at 17. Plaintiffs concede that absent

these violations, Upjohn’s applications met the require-

ments of the zoning regulations. Pltf’s Post-Trial Brief

at 37-38.

10a

Upjohn’s capping plan includes activities such as re-

grading and excavation which also require permits and

approvals under the town’s zoning regulations. Upjohn

has not applied for, nor received these permits or ap-

provals. Nevertheless, Upjohn recently began to imple-

ment the first stage of its capping plan. Shortly after

the conclusion of trial, Upjohn announced its intention to

close its North Haven manufacturing facility.

CONCLUSIONS OF LAW

Plaintiffs’ argument is essentially that: (1) Upjohn

has begun certain work pursuant to the closure plan

which requires permits and approvals from the Commis-

sion, which Upjohn has neither applied for nor received;

and, (2) the presence of the sludge pile on the defend-

ant’s property is in violation of town zoning regulations

and the Zoning Enforcement Officer’s Cease and Desist

Order. Plaintiff seeks an order enjoining the implemen-

tation of the closure plan, and requiring Upjohn to bring

the property intc compliance with the zoning regulations.

Defendant claims: (1) the provisions of RCRA and

the EPA/DEP Approval preempt the plaintiffs’ order re-

quiring removal of the pile; 2) the provisions of RCRA

and the DEP/EPA Approval preempt the plaintiffs from

enforcing the zoning regulations so as to prevent imple-

mentation of the closure plan, or from denying the neces-

sary permits on the basis of the existence of the pile on

the premises; (3) the June 15, 1988 DEP Order pre-

empts the Commission from denying the applications con-

cerning the wastewater treatment system; and, (4) the

sludge pile is not a zoning violation. Upjohn seeks an

order enjoining the plaintiffs from enforcing the Cease

and Desist Order, from enforcing the town zoning reg-

ulations so as to prevent it from implementing the in-

terim phase of the closure plan, and to prevent the plain-

tiffs from denying applications for wastewater treatment

system additions.

lla

At the outset, the Court observes that despite the many

issues the parties have presented for resolution, the Court

shall only examine whether Upjohn need apply for cer-

tain permits, and the effects of its failure to so apply.

There are several reasons why the Court limits its

evaluation to these areas. First, Upjohn has appealed

the decision of the North Haven Zoning Board of Ap-

peals upholding the Commission’s finding that the pile

constitutes a zoning violation, and that case is still pend-

ing in Connecticut Superior Court. See supra. Local land

use decisions have repeatedly been held to be issues of

local concern. Northeast Mines, Inc. v. Smithtown, 584

F, Supp. 112, 114-15 (E.D.N.Y. 1984) (citing Louisiana

Power & Light Co. v. Thibidoux, 360 U.S. 25 (1959) ).

Accordingly, resolution of Upjohn’s contention that it has

not committed a zoning violation is not properly before

this Court. Jd. For purposes of this dispute, the Court

must consider that, as matters currently stand, the pres-

ence of the pile on the Upjohn property constitutes a

zoning violation.

Second, the Court shall not resolve the defendant’s con-

tention that the Order issued on June 15, 1988 by the

DEP pursuant to the Connecticut Water Pollution Con-

trol Act, Connecticut General Statutes § 22a-416 et seq.,

preempts the Commission from denying Upjohn’s appli-

cations to make wastewater treatment system improve-

ments. The Commission has conceded that the applica-

tions were satisfactory in all respects, but that the per-

mits could not be issued until Upjohn remedied the ex-

isting zoning violation.

The present record casts serious doubt on the merits of

Upjohn’s suggestion that unless it is allowed to make the

needed improvements it cannot avoid violation of Con-

necticut law. There is nothing to prevent Upjohn from

ceasing operations which produce illegal discharge. Fur-

thermore, the terms of the Order require Upjohn to “take

such action as is necessary” to install the required equip-

12a

ment. Def’s exh. 522 at A. Remedying the existing zon-

ing violation would enable Upjohn to obtain the needed

permits. See pltf’s exh. 138A at {17 (applications denied

solely on basis of alleged illegal existence of pile). More

significantly, however, the Court notes that defendant

presented this exact question—whether the DEP Order

preempts local regulations—to the Connecticut Superior

Court in a motion to strike the complaint in Carothers

v. Upjohn Co., Inc., No. CV 89-0363075 S (Conn. Super.

Ct. July 18, 1989). As there is thus an ongoing state

judicial proceeding considering this issue and as these

questions concern important state interests, and are of

peculiarly local concern, resolution of how local zoning

regulations should be construed in light of state law is

best left to the state judiciary, given the circumstances

of this case. See Middlesex County Ethics Committee v.

Garden State Bar Association, 457 U.S. 423 (1982);

Younger v. Harris, 401 U.S. 37 (1971); and Burford v.

Sun Oil Co., 319 U.S. 315 (1943). Accordingly, the

Court abstains from considering the merits of defend-

ant’s claim in this regard.

Nothing precludes the Court from resolving the ques-

tion of federal preemption, however, nor any of the other

issues which the parties have not raised elsewhere. Ac-

cordingly, the Court now turns to these questions.

The capping plan calls for the addition of gravel and

top soil to the sludge pile, as well as excavation and re-

grading, and the placement of collection and test wells,

among other things. The North Haven Zoning Regula-

tions require residents who intend to perform such ac-

tivities to apply for and obtain permits. Pltf’s exh. 3 at

§ 8.1 et seg. Upjohn has begun construction pursuant to

its plan. It has neither applied for nor obtained such

permits. Plaintiffs’ amended complaint asserts that im-

plementation of the capping plan will constitute new zon-

ing violations and increase the size and scope of the

already existing zoning violations.

13a

Connecticut General Statutes § 8-12 provides that a

town’s zoning enforcement officer may institute an ac-

tion to prevent the violation of zoning regulations. This

section also provides for the issuance of an injunction to

remedy a violation of local zoning regulations. Accord-

ingly, as a plaintiff in such an action, the zoning en-

forcement officer need not show irreparable harm or the

lack of an adequate remedy at law to obtain an injunc-

tion preventing the violation. Johnson v. Murzyn, 1 Conn.

App. 176, 179-81, cert. denied, 192 Conn. 802 (1984)

(enactment of statute assumes that no adequate alterna-

tive remedy exists and that injury is irreparable); see

also United States v. Diapulse Corp. of America, 457

F.2d 25 (2d Cir. 1972) (same).

Upjohn argues that it need not obtain any permits

from plaintiffs to implement its capping plan since the

Commission cannot issue approvals due to its determina-

tion that there is an existing zoning violation on the site.

The defendant also argues that the EPA/DEP approval

compels it to implement its closure plan, but that the

zoning regulations and the Commission’s actions prohibit

Upjohn from beginning work. Defendant claims that

since compliance with both federal and local law is im-

possible, local law is preempted.

The only support defendant cites in support of its first

argument—that since the Commission will deny the per-

mits it need not apply—is Kosinski v. Lawlor, 177 Conn.

420, 425 (1979). In that case the plaintiff sought a writ

of mandamus directing the local planning and zoning

commission to approve a proposed site plan. Jd. at 122.

On appeal, the Connecticut Supreme Court rejected de-

fendants’ argument that in ordgr to obtain such relier the

plaintiff needed to first apply for and be denied building

permits. Jd. at 425-27. As this defendant correctly note-,

the Court wrote that it would not require the exhaustion

of an administrative remedy when that remedy is either

inadequate or futile. 7d. at 425. Contrary to defendant’s

l4a

implication, however, this decision and the indicated lan-

guage in no way sanction a party to ignore any zoning

regulations and proceed without necessary authorization

simply because an application would be denied. Rather,

the case suggests that courts may review the merits of

an application if administrative denial is sufficentiy def-

inite. Jd. Adopting defendant’s suggestion would per-

mit any resident to engage in a land use without au-

thorization so long as he or she could be certain that the

use would not be permitted, an untenable result. De-

fendant’s contention that it need not have applied for

the appropriate permits and approval on this ground is,

therefore, without merit.

The defendant has also claimed, however, that federal

law preempts the local requirements, and has filed a

counterclaim seeking to restrain the plaintiffs from en-

forcing the regulations so as to prevent Upjohn from im-

plementing the plan, or from enforcing the Cease and De-

sist Order. Thus, the Court needs to resolve whether

RCRA and the EPA/DEP Approval preempt the local

zoning regulations and the Commission in these respects.

Under the Supremacy Clause of the Constitution, fed-

eral law may preempt state and municipal law in several

different ways. See generally Hillsborough County v. Au-

tomated Medical Laboratories, Inc., 471 U.S. 707, 712-13

(1985); Pacific Gas and Elec. Co. v. State Energy Re-

sources Conservation & Dev. Comm’n, 461 U.S. 190, 203-

04 (1984); Environmental Encapsulating Corp. v. New

York City, 855 F.2d 48, 53 (2d Cir. 1988). Congress may

preempt state or local law by so stating in explicit terms

on the face of a statute. Adams Fruit Co., Inc. v. Bar-

rett, 58 U.S.L.W. 4367, 4368 (March 21, 1990) (citing

Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)).

Absent such express language, preemption will be implied

where federal legislation is so comprehensive in a given

area as to leave no room for supplemental state or local

legislation. International Paper Co. v. Ouelette, 479 U.S.

l5a

481, 491 (1987). Finally, even if Congress has not dis-

placed state or local action in an area, state or local

law is displaced to the extent that it actually conflicts

with federal law, or with congressional purposes and

goals. Florida Lime and Avocado Growers, Inc. v. Paul,

373 U.S. 132, 142-43 (1963). A local regulation that

frustrates a federal scheme is preempted. Metropolitan

Life Ins. Co. v. Massachusetts, 471 U.S. 724, 747 (1985).

As to the third type of preemption—actual conflict, or

frustration of congressional purposes—there is no rigid

formula to determine whether a local regulation conflicts

with federal law. Hines v. Davidowitz, 312 U.S. 52, 67

(1941) (Court has used variety of expressions in con-

sidering validity of state laws in light of federal law,

including “irreconcilable” and “repugnant”, as well as

“different” and “inconsistent”’).

In amending RCRA in 1984, Congress expressly de-

clared “the national policy of the United States [to be]

that wherever feasible, the generation of hazardous waste

is to be reduced or eliminated as expeditiously as possi-

ble... [w]aste that is nevertheless generated should be

treated, stored, or disposed of so as to minimize the pres-

ent and future threat to human health and the environ-

ment.” 42 U.S.C. § 6902(b). Congress, however, neither

expressly preempted nor impliedly occupied the entire

field of hazardous waste regulation through RCRA.

Ogden Environmental Services v. San Diego, 687 F. Supp.

1436, 1444 (S.D. Cal. 1988). In fact, one of RCRA’s

express objectives is to establish a cooperative effort

among the federal, state, and local governments and

private enterprise to carry out the purposes of the Act.

42 U.S.C. § 6902(a) (7).

RCRA has a “savings” clause to promulgate this co-

operation which provides ‘‘{n]othing in this chapter shall

be construed to prohibit any State or political subdivision

thereof from imposing any requirements, including those

for site selection, which are more stringent than those

16a

imposed by such (RCRA and EPA) regulations.” 42

U.S.C. § 6929.

Although courts within this circuit have not addressed

the question of federal preemption posed in this case,

courts from other circuits have considered the effect of

RCRA regulations and EPA approvals pursuant to RCRA

authorization upon local regulations. The Eighth Cir-

cuit considered the effect of the RCRA savings clause in a

county’s defense of an ordinance in the face of a pre-

emption claim. ENSCO, Inc. v. Dumas, 807 F.2d 743

(1986). In that case, after the EPA passed regulations

governing the incineration and disposal of certain haz-

ardous wastes pursuant to RCRA authorization, ENSCO

announced that it would seek EPA certification to incin-

erate the wastes governed by such regulations at its

Union County, Arkansas facility. Id. at 744. The County

subsequently passed an ordinance which provided, among

other things, that the hazardous wastes covered by the

regulations could not be “stored, treated, or disposed of

within the County.” Jd. ENSCO brought suit challeng-

ing the validity of the ordinance. Id. The district court

found for ENSCO. Id.

On appeal, the Eighth Circuit affirmed the district

covrt’s decision, holding that RCRA preempted enforce-

ment of the ordinance. Id. at 745. While acknowledging

that the language in the RCRA savings clause indicated

that Congress had not preempted all local regulations,

the Eighth Circuit held that the ordinance stood in con-

flict with the purposes and objectives of RCRA. 7d. at

744-45. The county’s ban on the materials altogether ig-

nored that these particular hazardous wastes exist. Jd.

at 745. In essence, the County’s ban mandated that the

wastes would not be handled in the manner deemed saf-

est by RCRA and the EPA. /d. As to the savings clause,

the Eighth Circuit wrote “[a] county cannot, by attach-

ing the label ‘more stringent requirements’ or ‘site selec-

tion’ to an ordinance ... , arrogate to itself the power

ete eal

17a

to enact a measure that as a practical matter cannot

function other than to subvert federal policies... .” Id.

The Southern District of California also considered a

situation akin to the one presented here in Ogden. 687

F, Supp. at 1436. Pursuant to RCRA regulations, Ogden

applied to the EPA for permission to conduct hazardous

waste incineration testing in San Diego. Jd. at 1438.

After extensive consideration of the proposal, the EPA

approved the project. Jd. Subsequently, the City Coun-

cil passed an ordinance requiring a conditional use per-

mit for any facility, activity, or use of property “which

is required by federal law to obtain a... permit from

the EPA... pursuant to [RCRA].” Id. at 1440. Ogden

applied for such a permit. Jd. Ultimately, after exien-

sive discussion which included testimony from EPA rep-

resentatives, the City Council voted to deny Ogden’s ap-

plication. Jd. at 1441. Ogden subsequently brought suit,

claiming RCRA and the EPA approval preempted the

City’s action. Jd.

The Court upheld the plaintiff’s claim, finding that

RCRA and the EPA approval preempted the Council

from denying the permit on the basis of generalized

safety concerns, where the EPA had already found safety

risks to be acceptable. Jd. at 1447-1450. The Court found

that while the RCRA savings clause provided for local

adoption of more stringent environmental standards, and

expressly provided for local governments to play a role in

site selection, the city’s action in this case stood as an

obstacle to clear congressional purposes. Jd. In evalu-

ating the effect of the savings clause, the Court noted

that the ENSCO decision stood for the principle that lo-

cal governments cannot directly subvert RCRA and EPA

decisions through outright bans on activities federal au-

thorities consider safe. Jd. at 1446. The Court then ob-

served that requiring the application for a use permit,

rather than an outright ban, created the potential for

subterfuge, permitting a local government “to do indi-

18a

rectly what the ENSCO court found the City cannot do

directly.” Id. Nevertheless, the Court also wrote that to

construe every permit denial as creating a de facto con-

flict with congressional objectives would substantially

eviscerate the role of local governments in choosing one

site over another, a role presumably envisoned by the

savings clause. /d. Ultimately, the Court ruled that, on

the record in that case, the stated reasons for the city’s

denial of the permit were insufficient. Jd. at 1449.

The Court now turns to the federal and local law al-

legedly in conflict in this case. To accomplish the fed-

eral goal of sound hazardous waste management, RCRA

requires a producer of hazardous waste to develop and

submit for EPA approval a plan for closure of the haz-

ardous waste site. See 40 C.F.R. § 265.112. Specifically,

any owner or operator of a hazardous waste site must

close the facility in a manner which minimizes the need

for maintenance of the site and controls or eliminates,

to the extent necessary to protect human health and the

environment, post-closure escape of the types of waste

addressed by RCRA. Id. at § 265.111. It is clear from

the text of the Act that closure can be accomplished

through any means approved by the EPA, including the

removal of hazardous materials. See 40 C.F.R. § 265.

113 (a).

The EPA/DEP Approval cited by the defendant pro-

vides that Upjohn’s proposed plan complies with RCRA

and Connecticut hazardous waste site closure require-

ments. Def’s exh. 524.

The North Haven Zoning Regulations at issue, as de-

scribed above, do not specifically address hazardous waste

storage or disposal. One set of regulations at issue con-

cerns the necessity of permits and approval for excava-

tion and construction. Pltf’s exh. 3 at 3.26, 3.27. More

generally, the regulations require site plan approval for

any change in use of a property. Jd. at 3.27(a). The

regulations also provide a procedure through which ap-

19a

plications for such approvals are made. Id. at 3.27.2 et

seq. The regulations further provide that the Commission

shall not approve a site plan unless all of the town regu-

lations are met. 7d. at 3.27.1. RCRA does not specifically

address any of these issues. Nor does the Court find that

simply requiring such approval and permits frustrates

congressional purposes. See Ogden, 687 F. Supp. at 1445

(requirement of use permit is not per se preempted) ;

cf. Pacific Gas & Electric, 461 U.S. at 190 (Congress’

inclusion of savings clause indicated intent for states to

retain traditional responsibilities in field).

~ Ae oh 8 rable

The town regulations, as interpreted by the Commis-

sion and the Zoning Enforcement Officer, do not provide

for the storage of this type of waste on property such as

defendant’s, absent express permission from the Com-

mission. See Pltf’s exh. 13A at {8 (Cease and Desist

Order issued and upheld). Recently, the town has

amended the regulations to explicitly provide that plots

within the town shall not be used to store waste prod-

ucts unless enclosed within a building absent the ex-

pressed site plan approval of the Commission. Pltf’s exh.

3 at 3.27.2.24. The Commission may grant approval of

such activity, after having considered the activity’s im-

pact upon public safety, health, sanitation and aesthetics.

Id. Although RCRA obviously addresses these matters,

it expressly provides for the establishment of more strin-

gent local standards, and for local participacion in site

selection. 42 U.S.C. § 6929. Thus, since the provisions of

RCRA and the town regulations are not themselves in

conflict, to determine whether RCRA and the EPA/DEP

Approval preempt the local regulations, the Court must

examine whether the local activity in this field frustrates

Congress’ goals and purposes. See Florida Lime and

Avocado Growers, 373 U.S. at 132, 141.

The Court first notes that this situation is dissimilar

from the one presented in ENSCO. The town has not

passed any ban in response to federal approval of cer-

ill

20a

tain activity. In other words, this case does not present

a direct challenge to a federal determination.

Moreover, this case is unlike the situation presented in

Ogden. First, concerning the capping plan, the defendant

has not even applied to the town to use its property in

the manner approved by the EPA and DEP. The exact

holding of Ogden, that the city council failed to provide

adequate reasons for denying the permit, is therefore

inapplicable. Even assuming Upjohn applied, the town

has offered a reason for denying the permit—the pre-

existing zoning violation. Second, in Ogden the city de-

nied the permit after the federal agency approved Og-

den’s plan. Here, after extensive interaction, the Com-

mission found Upjohn in violation of the regulations be-

fore the defendant sought federal approval of its plan.

The Commission’s actions in no way indicate even an in-

direct challenge to federal authority.

Finally, although the Commission requires the defend-

ant to remove the materials, rather than conduct the fed-

erally approved activities on its own property, the town

has not banned this type of activity within the town.

Quite to the contrary, the recent amendment of the regu-

lations explicitly -provides for residents to apply to the

Commission to operate and close hazardous waste sites

within the town, and provides for the Commission to

evaluate the applications considering certain factors.

Pitf’s exh. 3 at 3.27.2.24. Rather than conflicting with

RCRA, this would seem to be the exact sort of site selec-

tion process, or application of more stringent standards,

envisioned by the savings clause. 42 U.S.C. § 6929. In

sum, for all of the foregoing reasons, the Court finds that

the local regulations are not preempted by RCRA.

Upjohn’s argument that the Approval constitutes an

EPA determination that Upjohn’s plan represents the

most sound environmental action, and therefore any ob-

stacle to its implementation is an obstacle to congres-

sional goals is also not persuasive. There are many

2la

methods in which a hazardous waste site might be closed

in accordance with RCRA, including removal. See 40

C.F.R. § 265.113(a). The language of the Approval con-

tains no indication that the EPA or DEP has determined

that this method of closure is the most environmentally

protective. See Def’s exh. 524. Furthermore, the conclu-

sion that the EPA and DEP simply determined that fed-

/ eral and state standards were satisfied by the plan is

supported by the fact that these agencies issued an Ap-

proval, rather than an order. Indeed, in a different con-

text the defendant points out that the EPA had the

power to issue an order requiring Upjohn to remove the

material. Def’s Post-Trial Brief at 18. The Court re-

fuses to draw a conclusion from the fact that the agencies

issued the Approval with knowledge that the Commission

considered the presence of the unclosed pile a zoning vio-

lation. The Court also notes that the language of the

Approval itself includes that it does not relieve Upjohn

from obtaining any further authorizations required by

the Connecticut General Statutes, which provide for the

enactment of local zoning regulations. CONN. GEN.

STAT. §§ 8-1, 8-2. For all of the foregoing reasons, and

in light of the RCRA savings clause providing for a role

for local government, the Court finds that the Approval

does not preempt the Commission’s actions or the local

zoning requirements.

CONCLUSION

For all of the foregoing reasons, the Court finds that

the zoning regulations of the town of North Haven are

not preempted by federal law or federal action. Accord-

ingly, the relief plaintiff seeks is hereby GRANTED in

part, such that Upjohn is hereby ENJOINED from im-

plementing its temporary or final closure plan of the

north sludge pile until such time as it has obtained the

necessary permits from the Commission. Furthermore,

for all of the foregoing reasons, the relief sought by de-

Jit

22a

fendan: in its counterclaim is hereby DENIED. Finally,

the Court hereby abstains from considering the remain-

der of the relief sought by plaintiffs or defendant.

SO ORDERED.

Dated au Bridgeport, Connecticut this 3lst day of May,

1990.

/s/ T. F. Gilroy Daly

T. F. GILROY DALY

U.S.D.J.

23a

APPENDIX C

STATUTES AND REGULATIONS

The Resource Conservation and Recovery Act (RCRA),

as amended, 42 U.S.C. § 6901 et seg.—which is part of

the Solid Waste Disposal Act (SWDA)—provides in per-

tinent part:

SUBCHAPTER I—GENERAL PROVISIONS

42 U.S.C. § 6901. Congressional findings [RCRA/

SWDA § 1002]

(a) Solid waste

The Congress finds with respect to solid waste—

(1) that the continuing technological progress

and improvement in methods of manufacture,

packaging, and marketing of consumer products

has resulted in an ever-mounting increase, and

in a change in the characteristics, of the mass

material discarded by the purchaser of such

products;

(2) that the economic and population growth

of our Nation, and the improvements in the

standard of living enjoyed by our population,

have required increased industrial production to

meet our needs, and have made necessary the

demolition of old buildings, the construction of

new buildings, and the provision of highways

and other avenues of transportation, which, to-

gether with related industrial, commercial, and

agricultural operations, have resulted in a rising

tide of scrap, discarded, and waste materials;

(3) that the continuing concentration of our

population in expanding metropolitan and other

urban areas has presented these communities

with serious financial, management, intergovern-

24a

mental, and technical problems in the disposal

of solid wastes resulting from the industrial,

commercial, domestic, and other activities car-

ried on in such areas;

(4) that while the collection and disposal of

solid wastes should continue to be primarily the

function of State, regional, and local agencies,

the problems of waste disposal as set forth above

have become a matter national in scope and in

concern and necessitate Federal action through

financial and technical assistance and leadership

in the development, demonstration, and applica-

tion of new and improved methods and processes

* to reduce the amount of waste and unsalvage-

able materials and to provide for proper and

economical solid waste and disposal practices.

(b) Environment and health

The Congress finds with respect to the environ-

ment and health, that—

(1) although land is too valuable a national

resource to be needlessly polluted by discarded

materials, most solid waste is disposed of on

land in open dumps and sanitary landfills;

(2) disposal of solid waste and hazardous

waste in or on the land without careful planning

and management can present a danger to human

health and the environment;

(3) as a result of the Clean Air Act |42

U.S.C.A. § 7401 et seq.|, the Water Pollution

Control Act [33 U.S.C.A. § 1251 et seq.|, and

other Federal and State laws respecting public

_health and the environment, greater amounts of

solid waste (in the form of sludge and other

pollution treatment residues) have been created.

Similarly, inadequate and environmentally un-

25a

sound practices for the disposal or use of solid

waste have created greater amounts of air and

water pollution and other problems for the en-

vironment and for health;

(4) open dumping is particularly harmful to

health, contaminates drinking water from undex-

ground and surface supplies, and pollutes the

air and the land;

(5) the placement of inadequate controls on

hazardous waste management will result in sub-

stantial risks to human health and the environ-

ment;

(6) if hazardous waste management is im-

properly performed in the first instance, cor-

rective action is likely to be expensive, complex,

and time consuming;

(7) certain classes of land disposal facilities

are not capable of assuring long-term contain-

ment of certain hazardous wastes, and to avoid

substantial risk to human health and the en-

vironment, reliance on land disposal should be

minimized or eliminated, and land disposal, par-

ticularly landfill and surface impoundment,

should be the least favored method for managing

hazardous wastes; and

(8) alternatives to existing methods of land

disposal must be developed since many of the

cities in the United States will be running out

of suitable solid waste disposal sites within five

years unless immediate action is taken.

The Congress finds with respect to materials,

that—

26a

(1) millions of tons of recoverable material

which could be used are needlessly buried each

year;

(2) methods are available to separate usable

materials from solid waste; and

(3) the recovery and conservation of such

materials can reduce the dependence of the

United States on foreign resources and reduce

the deficit in its balance of payments.

(d) Energy

The Congress finds with respect to energy, that—

(1) solid waste represents a potential source

of solid fuel, oil, or gas that can be converted

into energy;

(2) the need exists to develop alternative en-

ergy sources for public and private consumption

in order to reduce our dependence on such

sources as petroleum products, natural gas, nu-

clear and hydroelectric generation; and

(3) technology exists to produce usable en-

ergy from solid waste.

* > -

42 U.S.C. § 6902. Objectives and _ national _ policy

[RCRA/SWDA § 1003]

(a) Objectives

The objectives of this chapter are to promote the

protection of health and the environment and to con-

serve valuable material and energy resources by—

(1) previding technical and financial assist-

ance to State and local governments and inter-

state agencies for the development of solid waste

management plans (including resource recovery

27a

and resource conservation systems) which will

promote improved solid waste management tech-

niques (including more effective organizational

arrangements), new and improved methods of

collection, separation, and recovery of solid

waste, and the environmentally safe disposal of

nonrecoverable residues;

(2) providing training grants in occupations

involving the design, operation, and maintenance

of solid waste disposal systems;

(3) prohibiting future open dumping on the

land and requiring the conversion of existing

open dumps to facilities which do not pose a

danger to the environment or to health;

(4) assuring that hazardous waste manage-

ment practices are conducted in a manner which

protects human health and the environment;

(5) requiring that hazardous waste be prop-

erly managed in the first instance thereby re-

ducing the need for corrective action at a future

date;

(6) minimizing the generation of hazardous

waste and the land disposal of hazardous waste

by encouraging process substitution, materials

recovery, properly conducted recycling and re-

use, and treatment;

(7) establishing a viable Federal-State part-

nership to carry out the purposes of this chapter

and insuring that the Administrator will, in

carrying out the provisions of subchapter III of

this chapter give a high priority to assisting

and cooperating with States in obtaining full au-

thorization of State programs under subchapter

III of this chapter;

(8) providing for the promulgation of guide-

lines for solid waste collection, transport, separa-

28a

tion, recovery, and disposal practices and sys-

tems;

(9) promoting a national research and devel-

opment program for improved solid waste man-

agement and resource conservation techniques,

more effective organizational arrangements, and

new and improved methods of collection, separa-

tion, and recovery, and recycling of solid wastes

and environmentally safe disposal of nonrecov-

erable residues;

(10) promoting the demonstration, construc-

tion, and application of solid waste management,

resource recovery, and resource conservation sys-

tems which preserve and enhance the quality of

air, water, and land resources; and

(11) establishing a cooperative effort among

the Federal, State, and local governments and

private enterprise in order to recover valuable

materials and energy from solid waste.

(b) National policy

The Congress hereby declares it to be the national

policy of the United States that, wherever feasible,

the generation of hazardous waste is to be reduced

or eliminated as expeditiously as possible. Waste

that is nevertheless generated should be treated,

stored, or disposed of so as to minimize the present

and future threat to human health and the environ-

ment.

42 U.S.C. § 6903. Definitions [RCRA/SWDA § 1004)

As used in this chapter:

(1) The term “Administrator” means the

Administrator of the Environmental! Protection

Agency.

29a

(2) The term “construction,” with respect to

any project of construction under this chapter,

means (A) the erection or building of new struc-

tures and acquisition of lands or interests

therein, or the acquisition, replacement, expan-

sion, remodeling, alteration, modernization, or

extension of existing structures, and (B) the

acquisition and installation of initial equipment

of, or required in connection with, new or newly

acquired structures or the expanded, remodeled,

altered, modernized or extended part of existing

structures (including trucks and other motor

vehicles, and tractors, cranes, and other ma-

chinery) necessary for the proper utilization

and operation of the facility after completion

of the project; and includes preliminary plan-

ning to determine the economic and engineering

feasibility and the public health and safety as-

pects of the project, the engineering, architec-

tural, legal, fiscal, and economic investigations

and studies, and any surveys, designs, plans,

working drawings, specifications, and other ac-

tion necessary for the carrying out of the proj-

ect, and (C) the inspection and supervision of

the process of carrying out the project to com-

pletion.

(2A) The term “demonstration” means the

initial exhibition of a new technology process or

practice or a significantly new combination or

use of technologies, processes or practices, subse-

quent to the development stage, for the purpose

of proving technological feasibility and cost ef-

fectiveness.

(3) The term “disposal” means the discharge,

deposit, injection, dumping, spilling, leaking, or

placing of any solid waste or hazardous waste

into or on any land or water so that such solid

30a

waste or hazardous waste or any constituent

thereof may enter the environment or be emitted

into the air or discharged into any waters, in-

cluding ground waters.

(4) The term “Federal agency” means any

department, agency, or other instrumentality

of the Federal Government, any independent

agency or establishment of the Federal Govern-

ment including any Government corporation,

and the Government Printing Office.

(5) The term “hazardous waste’ means a

solid waste, or combination of solid wastes,

which because of its quantity, concentration, or

physical, chemical, or infectious characteristics

may—

(A) cause, or significantly contribute to

an increase in mortality or an increase in

serious irreversible, or incapacitating re-

versible, illness; or

(B) pose a substantial present or poten-

tial hazard to human health or the environ-

ment when improperly treated, stored,

transported, or disposed of, or otherwise

managed.

(6) The term “hazardous waste generation”

means the act or process of producing hazardous

waste.

(7) The term “hazardous waste manage-

ment” means the systematic control of the col-

lection, source separation, storage, transporta-

tion, processing, treatment, recovery, and dis-

posal of hazardous wastes.

(8) For purposes of Federal financial assist-

ance (other than rural communities assistance),

the term “implementation” does not include the

3la

acquisition, leasing, construction, or modification

of facilities or equipment or the acquisition,

leasing, or improvement of land.

(9) The term “intermunicipal agency” means

an agency established by two or more munici-

palities with responsibility for planning or ad-

ministration of solid waste.

(10) The term “interstate agency” means an

agency of two or more municipalities in differ-

ent States, or an agency established by two or

more States, with authority to provide for the

management of solid wastes and serving two or

more municipalities located in different States.

(11) The term “long-term contract” means,

when used in relation to solid waste supply, a

contract of sufficient duration to assure the via-

bility of a resource recovery facility (to the ex-

tent that such viability depends upon solid waste

supply).

(12) The term “manifest” means the form

used for identifying the quantity, composition,

and the origin, routing, and destination of haz-

ardous waste during its transportation from the

point of generation to the point of disposal,

treatment, or storage.

(13) The term “municipality” (A) means a

city, town, borough, county, parish, district, or

other public body created by or pursuant to

State law, with responsibility for the planning

or administration of solid waste management,

or an Indian tribe or authorized tribal organi-

zation or Alaska Native village or organization,

and (B) includes any rural community or unin-

corporated town or village or any other public

entity for which an application for assistance is

made by a State or political subdivision thereof.

32a

(14) The term “open dump” means any fa-

cility or site where solid waste is disposed of

which is not a sanitary landfill which meets the

criteria promulgated under section 6944 of this

title and which is not a facility for disposal of

hazardous waste.

(15) The term “person” means an individual,

trust, firm, joint stock company, corporation (in-

cluding a government corporation), partnership,

association, State, municipality, commission, po-

litical subdivision of a State, or any interstate

body.

(16) The term “procurement item” means

any device, good, substance, material, product,

or other item whether real or personal property

which is the subject of any purchase, barter, or

other exchange made to procure such item.

(17) The term “procuring agency” means

any Federal agency, or any State agency or

agency of a political subdivision of a State

which is using appropriated Federal funds for

such procurement, or any person contracting

with any such agency with respect to work per-

formed under such contract.

(18) The term “recoverable” refers to the

capability and likelihood of being recovered from

solid waste for a commercial or industrial use.

(19) The term “recovered material” means

waste material and byproducts which have been

recovered or diverted from solid waste, but such

term does not include those materials and by-

products generated from, and commonly reused

within, an original manufacturing process.

(20) The term “recovered resources” means

material or energy recovered from solid waste.

(21) The term “resource conservation” means

reduction of the amounts of solid waste that are

33a

generated, reduction of overall resource con-

sumption, and utilization of recovered resources.

(22) The term “resource recovery” means the

recovery of material or energy from solid waste.

(23) The term “resource recovery system”’

means a solid waste management system which

provides for collection, separation, recycling, and

recovery of solid wastes, including disposal of

nonrecoverable waste residues.

(24) The term “resource recovery facility”

means any facility at which solid waste is

processed for the purpose of extracting, convert-

ing to energy, or otherwise separating and pre-

paring solid waste for reuse.

(25) The term “regional authority” means

the authority established or designated under

section 6946 of this title.

(26) The term “sanitary landfill” means a

facility for the disposal of solid waste which

meets the criteria published under section 6944

of this title.

(26A) The term “sludge” means any solid,

semi-solid or liquid waste generated from a mu-

nicipal, commercial, or industrial wastewater

treatment plant, water supply treatment plant,

or air pollution control facility or any other

such waste having similar characteristics and

effects.

(27) The term “solid waste” means any gar-

bage, refuse, sludge from a waste treatment

plant, water supply treatment plant, or air pol-

lution control facility and other discarded ma-

terial, including solid, liquid, semisolid, or con-

tained gaseous material resulting from indus-

trial, commercial, mining, and agricultural op-

34a

erations, and from community activities, but

does not include solid or dissolved material in

domestic sewage, or solid or dissolved materials

in irrigation return flows or industrial dis-

charges which are point sources subject to per-

mits under section 1342 of title 33, or source,

special nuclear, or byproduct material as de-

fined by the Atomic Energy Act of 1954, as

amended (68 Stat. 923) [42 U.S.C.A. § 2011

et seq.].

(28) The term “solid waste management”

means the systematic administration of activi-

ties which provide for the collection, source

separation, storage, transportation, transfer,

processing, treatment, and disposal of solid

waste.

(29) The term “solid waste management fa-

cility” includes—

(A) any resource recovery system or

component thereof,

(B) any system, program, or facility for

resource conservation, and

separation, storage, transportation, trans-

fer, processing, treatment or disposal of

solid wastes, including hazardous wastes,

whether such facility is associated with fa-

cilities generating such wastes or otherwise.

(30) The terms “solid waste planning”, “solid

waste management”, and “comprehensive plan-

ning” include planning or management respect-

ing resource recovery and resource conservation.

(31) The term “State” means any of the sev-

eral States, the District of Columbia, the Com-

monwealth of Puerto Rico, the Virgin Islands,

35a

Guam, American Samoa, and the Commonwealth

of the Northern Mariana Islands.

(32) The term “State authority” means the

agency established or designated under section

6947 of this title.

(33) The term “storage”, when used in con-

nection with hazardous waste, means the con-

tainment of hazardous waste, either on a tempo-

rary basis or for a period of years, in such a

manner as not to constitute disposal of such

hazardous waste.

(34) The term “treatment”, when used in

connection with hazardous waste, means any

method, technique, or process, including neu-

tralization, designed to change the physical,

chemical, or biological character or composition

of any hazardous waste so as to neutralize such

waste or so as to render such waste nonhazard-

ous, safer for transport, amenable for recovery,

amenable for storage, or reduced in volume.

Such term includes any activity or processing

designed to change the physical form or chemi-

cal composition of hazardous waste so as to ren-

der it nonhazardous.

(35) The term “virgin material” means a

raw material, including previously unused cop-

per, aluminum, lead, zine, iron, or other metal

or metal ore, any undeveloped resource that is,

or with new technology will become, a source of

raw materials.

(36) The term “used oil” means any oil which

has been—

(A) refined from crude oil,

(B) used, and

36a

by physical or chemical impurities.

(37) The term “recycled oil” means any used

oil which is reused, following its original use,

for any purpose (including the purpose for

which the oil was originally used). Such term

includes oil which is re-refined, reclaimed,

burned, or reprocessed.

(38) The term “lubricating oil” means the

fraction of crude oil which is sold for purposes

of reducing friction in any industrial or me-

chanical device. Such term includes re-refined

oil.

(39) The term “re-refined oil’ means used

oil from which the physical and chemical con-

taminants acquired through previous use have

been removed through a refining process.

(40) Except as otherwise provided in this

paragraph, the term “medical waste” means any

solid waste which is generated in the diagnosis,

treatment, or immunization of human beings or

animals, in research pertaining thereto, or in

the production or testing of biologicals. Such

term does not include any hazardous waste iden-

tified or listed under subchapter III of this chap-

ter or any household waste as defined in regula-

tions under subchapter III of this chapter.

* + * *

42 U.S.C. § 6905. Application of chapter and integra-

tion with other Acts [RCRA/

SWDA § 1006]

* * * *

(b) Integration with other Acts

(1) The Administrator shall integrate all provi-

sions of this chapter for purposes of administration

37a

and enforcement and shall avoid duplication, to the

maximum extent practicable; with the appropriate

provisions of the Clean Air Act [42 U.S.C. § 7401

et seq.], the Federal Water Pollution Control Act [33

U.S.C. § 1251 et seq.], the Federal Insecticide,

Fungicide, and Rodenticide Act [7 U.S.C. § 136 et

seq.], the Safe Drinking Water Act [42 U.S.C.

§ 300f et seq.], the Marine Protection, Research

and Sanctuaries Act of 1972 [33 U.S.C. § 1401 et

seq.], and such other Acts of Congress as grant

regulatory ai‘hority to the Administrator. Such

integration shall be effected only to the extent that

it can be done in a manner consistent with the goals

and policies expressed in this chapter and in the

other acts referred to in this subsection.

* * * *

SUBCHAPTER III—HAZARDOUS WASTE

MANAGEMENT

42 U.S.C. § 6921. Identification and listing of haz-

ardous waste [RCRA/SWDA

§ 3001]

(a) Criteria for identification or listing

Not later than eighteen months after October 21,

1976, the Administrator shall, after notice and op-

portunity for public hearing, and after consultation

with appropriate Federal and State agencies, develop

and promulgate criteria for identifying the char-

acteristics of hazardous waste, and for listing haz-

ardous waste, which should be subject to the provi-

sions of this subchapter, taking into account toxicity,

persistence, and degradability in nature, potential

for accumulation in tissue, and other related factors

such as flammability, corrosiveness, and other haz-

ardous characteristics. Such criteria shall be revised

from time to time as may be appropriate.

38a

(b) Identification and listing

(1) Not later than eighteen months after October

21, 1976, and after notice and opportunity for public

hearing, the Administrator shall promulgate regula-

tions identifying the characteristics of hazardous

waste, and listing particular hazardous wastes

(within the meaning of section 6903(5) of this title),

which shall be subject to the provisions of this

subchapter. Such regulations shall be based on the

criteria promulgated under subsection (a) of this

section and shall be revised from time to time there-

after as may be appropriate. The Administrator,

in cooperation with the Agency for Toxic Substances

and Disease Registry and the National Toxicology

Program, shall also identify or list those hazardous

wastes which shall be subject to the provisions of

this subchapter solely because of the presence in such

wastes of certain constituents (such as_ identified

carcinogens, mutagens, or teratagens) at levels in

excess of levels which endanger human health.

* - * *

42 U.S.C. § 6922. Standards applicable to generators

of hazardous waste [{RCRA/

SWDA § 3002]

(a) In general

Not later than eighteen months after October 21,

1976, and after notice and opportunity for public

hearings and after consultation with appropriate

Federal and State agencies, the Administrator shall

promulgate regulations establishing such standards,

applicable to generators of hazardous waste identi-

fied or listed under this subchapter, as may be

necessary to protect human health and the environ-

ment. Such standards shall establish requirements

respecting—

39a

(1) recordkeeping practices that accurately

identify the quantities of such hazardous waste

generated, the constituents thereof which are

significant in quantity or in potential harm to

human health or the environment, and the dis-

position of such wastes;

(2) labeling practices for any containers used

for the storage, transport, or disposal of such

hazardous waste such as will identify accurately

such waste;

(3) use of appropriate containers for such

hazardous waste;

(4) furnishing of information on the general

chemical composition of such hazardous waste

to persons transporting, treating, storing, or dis-

posing of such wastes;

(5) use of a manifest system and any other

reasonable means necessary to assure that all

such hazardous waste generated is designated

for treatment, storage, or disposal in, and ar-

rives at, treatment, storage, or disposal facilities

(other than facilities on the premises where the

waste is generated) for which a permit has been

issued as provided in this subchapter, or pursu-

ant to title I of the Marine Protection, Research,

and Sanctuaries Act (86 Stat. 1052) [33

U.S.C. § 1411 et seq.] ; and

(6) submission of reports to the Adminis-

trator (or the State agency in any case in which

such agency carries out a permit program pur-

suant to this subchapter) at least once every

two years, setting cut—

(A) the quantities and nature of haz-

ardous waste identified or listed under this

subchapter that he has generated during

the year; .

40a

(B) the disposition of all hazardous

waste reported under subparagraph (A) ;

year to reduce the volume and toxicity of

waste generated; and

(D) the changes in volume and toxicity

of waste actually achieved during the year

in question in comparison with previous

years, to the extent such information is

available for years prior to November 8,

1984.

(b) Waste minimization

Effective September 1, 1985, the manifest re-

quired by subsection (a) (5) of this section shall con-

tain a certification by the generator that—

(1) the generator of the hazardous waste has

a program in place to reduce the volume or

quantity and toxicity of such waste to the de-

gree determined by the generator to be eco-

nomically practicable; and

(2) the proposed method of treatment, stor-

age, or disposal is that practicable method cur-

rently available to the generator which mini-

mizes the present and future threat to human

health and the environment.

* . . *

42 U.S.C. § 6923. Standards applicable to transport-

ers of hazardous waste {RCRA/

SWDA §& 3003]

(a) Standards

Not later than eighteen months after October 21,

1976, and after opportunity for public hearings, the

Administrator, after consultation with the Secretary

4la

of Transportation and the States, shall promulgate

regulations establishing such standards, applicable

to transporters of hazardous waste identified or

listed under this subchapter, as may be necessary to

protect human health and the environment. Such

standards shall include but need not be limited to

requirements respecting—

(b)

(1) recordkeeping concerning such hazardous

waste transported, and their source and delivery

points;

(2) transportation of such waste only if prop-

erly labeled;

(3) compliance with the manifest system re-

ferred to in section 6922(5) of this title; and

(4) transportation of all such hazardous

waste only to the hazardous waste treatment,

storage, or disposal facilities which the shipper

designates on the manifest form to be a facility

holding a permit issued under this subchapter,

or pursuant to title I of the Marine Protection,

Research, and Sanctuaries Act (86 Stat. 1052)

[33 U.S.C. § 1411 et seq.].

Coordination with regulations of Secretary of

Transportation

In case of any hazardous waste identified or listed

under this subchapter which is subject to the Hazardous

Materials Transportation Act (88 Stat. 2156; 49 U.S.C.

1801 et seq.), the regulations promulgated by the Admin-

istrator

under this section shall be consistent with the

requirements of such Act and the regulations thereunder.

The Administrator is authorized to make recommenda-

tions to the Secretary of Transportation respecting the

regulations of such hazardous waste under the Hazard-

ous Materials Transportation Act and for addition of ma-

terials to be covered by such Act.

42a

Not later than two years after November 8, 1984,

and after opportunity for public hearing, the Admin-

istrator shall promulgate regulations establishing

standards, applicable to transporters of fuel pro-

duced (1) from any hazardous waste identified or

listed under section 6921 of this title, or (2) from

any hazardous waste identified or listed under sec-

tion 6921 of this title and any other material, as may

be necessary to protect human health and the en-

vironment. Such standards may include any of the

requirements set forth in paragraphs (1) through

(4) of subsection (a) of this section as may be

appropriate.

42 U.S.C. § 6924. Standards applicable to owners

and operators of hazardous waste

treatment, storage, and disposal

facilities [RCRA,SWDA § 3004]

(a) In general

Not later than eighteen months after October 21,

1976, and after opportunity for public hearings and

after consultation with appropriate Federal and

State agencies, the Administrator shall promulgate

regulations establishing such performance stand-

ards, applicable to owners and operators of facili-

ties for the treatment, storage, or disposal of haz-

ardous waste identified or listed under this subchap-

ter, as may be necessary to protect human health

and the environment. In establishing such stand-

ards the Administrator shall, where appropriate,

distinguish in such standards between requirements

appropriate for new facilities and for facilities in

existence on the date of promulgation of such regu-

lations. Such standards shall include, but need not

be limited to, requirements respecting—

43a

(1) maintaining records of all hazardous

wastes identified or listed under this chapter

which is treated, stored, or disposed of, as the

case may be, and the manner in which such

wastes were treated, stored, or disposed of;

(2) satisfactory reporting, monitoring, and

inspection and compliance with the manifest

system referred to in section 6922(5) of this

title;

(3) treatment, storage, or disposal of all such

waste received by the facility pursuant to such

operating methods, techniques, and practices as

may be satisfactory to the Administrator;

(4) the location, design, and construction of

such hazardous waste treatment, disposal, or

storage facilities;

(5) contingency plans for effective action to

minimize unanticipated damage from any treat-

ment, storage, or disposal of any such hazardous

waste;

(6) the maintenance of operation of such fa-

cilities and requiring such additional qualifica-

tions as to ownership, continuity of operation,

training for personnel, and financial responsi-

bility (including financial responsibility for cor-

rective action) as may be necessary or desirable;

and

(7) compilance with the requirements of sec-

tion 6925 of this title respecting permits for

treatment, storage, or disposal.

No private entity shall be precluded by reason of

criteria established under paragraph (6) from the

ownership or operation of facilities providing haz-

ardous waste treatment, storage, or disposal services

where such entity can provide assurances of finan-

44a

cial responsibility and continuity of operation con-

sistent with the degree and duration of risks asso-

ciated with the treatment, storage, or disposal of

specified hazardous waste.

- * * -

42 U.S.C. § 6925. Permits for treatment, storage, or

disposal of hazardous’ waste

[RCRA/SWDA § 3005)

(a) Permit requirements

Not later than eighteen months after October 21,

1976, the Administrator shall promulgate regula-

tions requiring each person owning or operating an

existing facility or planning to construct a new

facility for the treatment, storage, or disposal of

hazardous waste identified or listed under this sub-

chapter to have a permit issued pursuant to this

section. Such regulations zhall take effect on the

date provided in section 6930 of this title and upon

and after such date the treatment, storage, or dis-

posal of any such hazardous waste and the con-

struction of any new facility for the treatment,

storage, or disposal of any such hazardous waste is

prohibited except in accordance with such a permit.

No permit shall be required under this section in

order to construct a facility if such facility is con-

structed pursuant to an approval issued by the Ad-

ministrator under section 2605(e) of Title 15 for

the incineration of polycholorinated [sic| biphenyls

and any person owning or operating such a facility

may, at any time after operation or construction of

such facility has begun, file an application for a per-

mit pursuant to this section authorizing such facility

to incinerate hazardous waste identified or listed un-

der this subchapter’.

45a

(b) Requirements of permit application

Each application for a permit under this section

shall contain such information as may be required

under regulations promulgated by the Administra-

tor, including information respecting—

(1) estimates with respect to the composition,

quantities, and concentrations of any hazardous

waste identified or listed under this subchapter,

or combinations of any such hazardous waste

and any other solid waste, proposed to be dis-

posed of, treated, transported, or stored, and the

time, frequency, or rate of which such waste is

proposed to be disposed of, treated, transported,

or stored; and

(2) the site at which such hazardous waste or

the products of treatment of such hazardous

waste will be disposed of, treated, transported

to, or stored.

(1) Upon a determination by the Administrator

(or a State, if applicable), of compliance by a facil-

ity for which a permit is applied for under this sec-

tion with the requirements of this section and section

6924 of this title, the Administrator (or the State)

shall issue a permit for such facilities. In the event

permit applicants propose modification of their facil-

ities, or in the event the Administrator (or the

State) determines that modifications are necessary

to conform to the requirements under this section

and section 6924 of this title, the permit shall specify

the time allowed to complete the modifications.

(2)(A)(i) Not later than the date four years

after November 8, 1984, in the case of each applica-

tion under this subsection for a permit for a land

disposal facility which was submitted before such

46a

date, the Administrator shall issue a final permit

pursuant to such application or issue a final denial

of such application.

(ii) Not later than the date five years after No-

vember 8, 1984, in the case of each application for a

permit under this subsection for an incinerator facil-

ity which was submitted before such date, the Ad-

ministrator shall issue a final permit pursuant to

such application or issue a final denial of such

application.

(B) Not later than the date eight years after

November 8, 1984, in the case of each application

for a permit under this subsection for any facility

(other than a facility referred to in subparagraph

(A)) which was submitted before such date, the

Administrator shall issue a final permit pursuant to

such application or issue a final denial of such ap-

plication.

shall also apply in the case of any State which is

administering an authorized hazardous waste pro-

gram under section 6926 of this title. Interim sta-

tus under subsection (e) of this section shall termt-

nate for each facility referred to in subparagraph

(A) (ii) or (B) on the expiration of the five- or

eight-year period referred to in subparagraph (A)

or (B), whichever is applicable, unless the owner or

operator of the facility applies for a fina] determina-

tion regarding the issuance of a permit under this

subsection within—

(i) two years after November 8, 1984 (in

the case of a facility referred to in subpara-

graph (A) (ii)), or

(ii) four years after November 8, 1984 (in

the case of a facility referred to in subpara-

graph (B)).

47a

(3) Any permit under this section shall be for a

fixed term, not to exceed 10 years in the case of any

land disposal facility, storage facility, or incinerator

or other treatment facility. Each permit for a land

disposal facility shall be reviewed five years after

date of issuance or reissuance and shall be modified

as necessary to assure that the facility continues to

comply with the currently applicable requirements

of this section and section 6924 of this title. Noth-

ing in this subsection shall preclude the Administra-

tor from reviewing and modifying a permit at any

time during its term. Review of any application for

a permit renewal shall consider improvements in the

state of control and measurement technology as well

as changes in applicable regulations. Each permit

issued under this section shall contain such terms

and conditions as the Administrator (or the State)

determines necessary to protect human health and

the environment.

(d) Permit revocation

Upon a determination by the Administrator (or by

a State, in the case of a State having an authorized

hazardous waste program under section 6926 of this

title) of noncompliance by a facility having a permit

under this chapter with the requirements of this

section or section 6924 of this title, the Administra-

tor (or State, in the case of a State having an

authorized hazardous waste program under section

6926 of this title) shall revoke such permit.

(e) Interim status

(1) Any person who—

‘A) owns or operates a facility required to

have a permit under this section which facility—

(i) was in existence on November 19,

1980, or

48a

(ii) is in existence on the effective date

of statutory or regulatory changes under

this chapter that render the facility subject

to the requirement to have a permit under

this section,

(B) has complied with the requirements of

section 6930(a) of this title, and

under this section

shall be treated as having been issued such permit

until such time as final administrative disposition of

such application is made, unless the Administrator

or other plaintiff proves that final administrative

disposition of such application has not been made

because of the failure of the applicant to furnish

information reasonably required or requested in or-

der to process the application. This paragraph shall

not apply to any facility which has been previously

denied a permit under this section or if authority to

operate the facility under this section has been pre-

viously terminated.

(2) In the case of each land disposal facility

which has been granted interim status under this

subsection before November 8, 1984, interim status

shall terminate on the date twelve months after

November 8, 1984, unless the owner or operator of

such facility—

(A) applies for a final determination regard-

ing the issuance of a permit under subsection

date twelve months after November 8, 1984; and

(B) certifies that such facility is in compli-

ance with all applicable groundwater monitoring

and financial responsibility requirements.

49a

(3) In the case of each land disposal facility

which is in existence on November 8, 1984 that

render the facility subject to the requirement to

have a permit under this section and which is

granted interim status under this subsection, interim

status shall terminate on the date twelve months

after the date on which the facility first becomes

subject to such permit requirement unless the owner

or operator of such facility-—

(A) applies for a final determination regard-

ing the issuance of a permit unde subsection

date twelve months after the date on which the

facility first becomes subject to such permit re-

quirement; and

(B) certifies that such facility is in compli-

ance with all applicable groundwater monitoring

and financial responsibility requirements.

* * * %

(i) Interim status facilities receiving wastes after

July 26, 1982

The standards concerning ground water monitor-

ing, unsaturated zone monitoring, and corrective

action, which are applicable under section 6924 of

this title to new landfills, surface impoundments,

land treatment units, and waste-pile units required

to be permitted under subsection (c) of this section

shall also apply to any landfill, surface impound-

ment, land treatment unit, or waste-pile unit quali-

fying for the authorization to operate under subsec-

tion (e) of this section which receives hazardous

waste after July 26, 1982.

* * * *

50a

42 U.S.C. § 6926. Authorized State hazardous waste

programs [RCRA/SWDA § 3006]

(a) Federal guidelines

Not later than eighteen months after October 21,

1976, the Administrator, after consultation with

’ State authorities, shall promulgate guidelines to as-

sist States in the development of State hazardous

waste programs.

(b) Authorization of State program

Any State which seeks to administer and enforce

a hazardous waste program pursuant to this sub-

chapter may develop and, after notice and opportu-

nity for public hearing, submit to the Administrator

an application, in such form as he shall require, for

authorization of such program. Within ninety days

following submission of an application under this

subsection, the Administrator shall issue a notice as

to whether or not he expects such program to be

authorized, and within ninety days following such

notice (and after opportunity for public hearing) he

shall publish his findings as to whether or not the

conditions listed in items (1), (2) and (3) below

have been met. Such State is authorized to carry out

such program in lieu of the Federal program under

this subchapter in such State and to issue and en-

force permits for the storage, treatment, or disposal

of hazardous waste (and to enforce permits deemed

to have been issued under section 6935(d)(1) of

this title) unless, within ninety days following sub-

mission of the application the Administrator noti-

fies such State that such program may not be au-

thorized and, within ninety days following such

notice and after opportunity for public hearing, he

finds that (1) such State program is not equivalent

to the Federal program under this subchapter, (2)

such program is not consistent with the Federal or

5la

State programs applicable in other States, or (3)

such program does not provide adequate enforce-

ment of compliance with the requirements of this

subchapter. In authorizing a State program, the Ad-

ministrator may base his findings on the Federal

program in effect one year prior to submission of a

State’s application or in effect on January 26, 1983,

. whichever is later.

(1) Any State which has in existence a hazardous

waste program pursuant to State law before the date

ninety days after the date of promulgation of regu-

lations under sections 6922, 6923, 6924, and 6925

of this title, may submit to the Administrator evi-

dence of such existing program and may request

a temporary authorization to carry out such pro-

gram under this subchapter. The Administrator

shall, if the evidence submitted shows the existing

State program to be substantially equivalent to the

Federal program under this subchapter, grant an

interim authorization to the State to carry out such

program in lieu of the Federal program pursuant to

this subchapter for a period ending no later than

January 31, 1986.

(2) The Administrator shall, by rule, establish a

date for the expiration of interim authorization un-

der this subsection.

(3) Pending interim or final authorization of a

State program for any State which reflects the

amendments made by the Hazardous and Solid

Waste Amendments of 1984, the State may enter

into an agreement with the Administrator under

which the State may assist in the administration of

the requirements and prohibitions which take effect,

pursuant to such Amendments.

52a

(4) In the case of a State permit program for any

State which is authorized under subsection (b) of

this section or under this subsection, until such pro-

gram is amended to reflect the amendments made

by the Hazardous and Solid Waste Amendments of

1984 and such program amendments receive interim

or final authorization, the Administrator shall have

the authority in such State to issue or deny permits

or those portions of permits affected by the require-

ments and prohibitions established by the Hazardous

and Solid Waste Amendments of 1984. The Admin-

istrator shall coordinate with States the procedures

for issuing such permits.

(d) Effect of State permit

Any action taken by a State under a hazardous

waste program authorized under this section shall

have the same force and effect as action taken by

the Administrator under this subchapter.

(e) Withdrawal of authorization

Whenever the Administrator determines after pub-

lic hearing that a State is not administering and

enforcing a program authorized under this section

in accordance with requirements of this section, he

shall so notify the State and, if appropriate correc-

tive action is not taken within a reasonable time, not

to exceed ninety days, the Administrator shall with-

draw authorization of such program and establish a

Federal program pursuant to this subchapter. The

Administrator shall not withdraw authorization of

any such program unless he shall first have notified

the State, and made public, in writing, the reasons

for such withdrawal.

(f) Availability of information ‘

No State program may be authorized by the Ad-

ministrator under this section unless—

53a

(1) such program provides for the public

availability of information obtained by the State

regarding facilities and sites for the treatment,

storage, and disposal of hazardous waste; and

(2) such information is available to the pub-

lic in substaatially the same manner, and to the

same degree, as would be the case if the Admin-

istrator was carrying out the provisions of this

subchapter in such State.

(g) Amendments made by 1984 act

(1) Any requirement or prohibition which is ap-

plicable to the generation, transportation, treatment,

storage, or disposal of hazardous waste and which

is imposed under this subchapter pursuant to the

amendments made by the Hazardous and Solid

Waste Amendments of 1984 shall take effect in each

State having an interim or finally authorized State

program on the same date as such requirement takes

effect in other States. The administrator shall carry

out such requirement directly in each such State

unless the State program is finally authorized (or

is granted interim authorization as provided in para-

graph (2)) with respect to such requirement.

(2) Any State which, before November 8, 1984,

has an existing hazardous waste program which has

been granted interim or final authorization under

this section may submit to the Administrator evi-

dence that such existing program contains (or has

been amended to include) any requirement which is

substantially equivalent to a requirement referred

to in paragraph (1) and may request interim au-

thorization to carry out that requirement under this

subchapter. The Administrator shall, if the evidence

submitted shows the State requirement to be sub-

stantially equivalent to the requirement referred to

in paragraph (1), grant an interim authorization

to the State to carry out such requirement in lieu of

54a

direct administration in the State by the Administra-

tor of such requirement.

(h) State programs for used oil

In the case of used oil which is not listed or iden-

tified under this subtitle as a hazardous waste but

which is regulated under section 6935 of this title,

the provisions of this section regarding State pro-

grams shall apply in the same manner and to the

same extent as such provisions apply to hazardous

waste identified or listed under this subtitle.

* * * *

42 U.S.C. § 6929. Retention of State authority

[RCRA/SWDA § 3009]

Upon the effective date of regulations under this

subchapter no State or political subdivision may im-

pose any requirements less stringent than those au-

thorized under this subchapter respecting the same

matter as governed by such regulations, except that

if application of a regulation with respect to any

matter under this subchapter is postponed or en-

joined by the action of any court, no State or politi-

cal subdivision shall be prohibited from acting with

respect to the same aspect of such matter until

such time as such regulation takes effect. Nothing

in this chapter shall be construed to prohibit any

State or political subdivision thereof from imposing

any requirements, including those for site selection,

which are more stringent than those imposed by

such regulations. Nothing in this chapter (or in any

regulation adopted under this chapter) shall be con-

strued to prohibit any State from requiring that the

State be provided with a copy of each manifest used

in connection with hazardous waste which is gener-

ated within that State or transported to a treatment,

storage, or disposal facility within that State.

55a

Section 104(c)(9) of the Comprehensive Environ-

mental Response, Compensation, and Liability Act of

1980 (CERCLA), 42 U.S.C. § 9604(c¢) (9), provides:

(9) Siting

Effective 3 years after October 17, 1986, the

President shall not provide any remedial actions

pursuant to this section unless the State in which

the release occurs first enters into a contract or

cooperative agreement with the President providing

assurances deemed adequate by the President that

the State will assure the availability of hazardous

waste treatment or disposal facilities which—

(A) have adequate capacity for the destruc-

tion, treatment, or secure disposition of all haz-

ardous wastes that are reasonably expectéd to

be generated within the State during the 20-

year period following the date of. such contract

or cooperative agreement and to be disposed of,

treated, or destroyed,

(B) are within the State or outside the State

in accordance with an interstate agreement or

regional agreement or authority,

(D) are in compliance with the requirements

of stbtitle C of the Solid Waste Disposal Act

[42 U.S.C.A. § 6921 et seq.]

The interim status closure regulations applicable to

hazardous waste disposal facilities, promulgated by the

Environmental Protection Agency, 40 C.F.R. Part 265,

subpart G, provide in pertinent part:

§ 265.111 Closure performance standard.

The owner or operator must close the facility in a

manner that;

56a

(a) Minimizes the need for further maintenance,

and

(b) Controls, minimizes or eliminates, to the ex-

tent necessary to protect human health and the en-

vironment, post-closure escape of hazardous waste,

hazardous constituents, leachate, contaminated run-

off, or hazardous waste decomposition products to

the ground or surface waters or to the atmosphere,

and

this subpart including, but not limited to, the re-

quirements of §§ 265.197, 265.228, 265.258, 265.280,

265.310, 265.351, 265.381 and 265.404.

§ 265.112 Closure plan; amendment of plan.

(a) Written plan. By May 19, 1981, the owner

or operator of a hazardous waste management facil-

ity must have a written closure plan. Until final

closure is completed and certified in accordance with

§ 265.115, a copy of the most current plan must be

furnished to the Regional Administrator upon re-

quest, including request by mail. In addition, for

facilities without approved plans, it must also be

provided during site inspections, on the day of in-

spection, to any officer, employee or representative

of the Agency who is duly designated by the Admin-

istrator.

(b) Content of plan. The plan must identify steps

necessary to perform partial and/or final closure of

the facility at any point during its active life. The

closure plan must include, at least:

(1) A description of how each hazardous waste

management unit at the facility will be closed in ae-

cordance with § 265.111; and

(2) A description of how final closure of the fa-

cility will be conducted in accordance with § 265.111.

57a

The description must identify the maximum extent

of the operation which will be unclosed during the

active life of the facility; and

(3) An estimate of the maximum inventory of

hazardous wastes ever onsite over the active life of

the facility and a detailed description of the methods

to be used during partial and final closure, including,

but not limited to methods for removing, transport-

ing, treating, storing or disposing of all hazardous

waste, identification of and the type(s) of off-site

hazardous waste management unit‘s) to be used, if

applicable; and

(4) A detailed description of the steps needed to

remove or decontaminate all hazardous waste resi-

dues and contaminated containment system compon-

ents, equipment, structures, and soils during partial

and final closure including, but not limited to, pro-

cedures for cleaning equipment and removing con-

taminated s ils, methods for sampling and testing

surrounding soils, and criteria for determining the

extent of decontamination necessary to satisfy the

closure performance standard; and

(5) A detailed description of other activities

necessary during the partial and final closure period

to ensure-that all partial closures and final closure

satisfy the closure performance standards, includ-

ing, but not limited to, ground-water monitoring,

leachate collection, and run-on and run-off control;

and

(6) A schedule for closure of each hazardous

waste management unit and for final closure of the

facility. The schedule must include, at a minimum,

the total time required to close each hazardous waste

management unit and the time required for inter-

vening closure activities which will allow tracking of

the progress of partial and final closure. (For ex-

58a

ample, in the case of a landfill unit, estimates of the

time required to treat or dispose of all hazardous

waste inventory and of the time required to place

a final cover must be included.) ; and

(7) An estimate of the expected year of final

closure for facilities that use trust funds to dem-

onstrate financial assurance under § 265.143 or

§ 265.145 and whose remaining operating life is less

than twenty years, and for facilities without ap-

proved closure plans.

(ec) Amendment of plan. The owner or operator

may amend the closure plan at any time prior to the

notification of partial or final closure of the facility.

An owner or operator with an approved closure plan

must submit a written request to the Regional Ad-

ministrator to authorize a change to the approved

closure plan. The written request must include a

copy of the amended closure plan for approval by

the Regional Administrator.

(1) The owner or operator must amend the clo-

sure plan whenever:

(i) Changes in operating plans or facility design

affect the closure plan, or

(ii) There is a change in the expected year of

closure, if applicable, or

(iii) In conducting partial or final closure activi-

ties, unexpected events require a modification of the

closure plan.

(2) The owner or operator must amend the clo-

sure plan at least 60 days prior to the proposed

change in facility design or operation, or no. later

than 60 days after an unexpected event has occurred

which has affected the closure plan. If an unex-

pected event occurs during the partial or final closure

period, the owner or operator must amend the clo-

59a

sure plan no later than 30 days after the unexpected

event. These provisions also apply to owners or op-

erators of surface impoundments and waste piles

who intended to remove all hazardous wastes at

closure, but are required to close as landfills in ac-

cordance with § 265.310.

(3) An owner or operator with an approved clo-

sure plan must submit the modified plan to the Re-

gional Administrator at least 60 days prior to the

proposed change in facility design or operation, or no

more than 60 days after an unexpected event has oc-

curred which has affected the closure plan. If an

unexpected event has occurred during the partial or

final closure period, the owner or operator must sub-

mit the modified plan no more than 30 days after the

unexpected event. These provisions also apply to own-

ers or operators of surface impoundments and waste

piles who intended to remove all hazardous wastes at

closure but are required to close as landfills in ac-

cordance with § 265.310. If the amendment to the

plan is a Class 2 or 3 modification according to the

criteria in § 270.42, the modification to the plan will

be approved according to the procedures in § 265.112

(d) (4).

(4) The Regional Administrator may request

modifications to the plan under the conditions de-

scribed in paragraph (c)(1) of this section. An

owner or vperator with an approved closure plan

must submit the modified plan within 60 days of

the request from the Regional Administrator, or

within 30 days if the unexpected event occurs dur-

ing partial or final closure. If the amendment is con-

sidered a Class 2 or 3 medification according to the

criteria in § 270.42, the modification to the plan

will be approved in accordance with the procedures

in § 265.112(d) (4).

60a

(d) Notification of partial closure and final clo-

sure. (1) The owner or operator must submit the

closure plan to the Regional Administrator at least

180 days prior to the date on which he expects to

begin closure of the first surface impoundment,

waste pile, land treatment, or landfill unit, or final

closure if it involves such a unit, whichever is

earlier. The owner or operator must submit the

closure plan to the Regional Administrator at least

45 days prior to the date on w'iich he expects to

begin final closure of a facility with only tanks, con-

tainer storage, or incinerator units. Owners or op-

erators with approved closure plans must notify the

Regional Administrator in writing at least 60 days

prior to the date on which he expects to begin closure

of a surface impoundment, waste pile, landfill, or

land treatment unit, or final closure of a facility

involving such a unit. Owners and operators with

approved closure plans must notify the Regional Ad-

ministrator in writing at least 45 days prior to the

date on which he expects to begin final closure of a

facility with only tanks, container storage, or incin-

erator units.

(2) The date when he “expects to begin closure”

must be either:

(i) Within 30 days after the date on which any

hazardous waste management unit receives the

known final volume of hazardous wastes or, if there

is a reasonable possibility that the hazardous waste

management unit will receive additional hazardous

wastes, no later than one year after the date un

which the unit received the most recent volume of

hazardous wastes. If the owner or operator of a

hazardous waste management unit can demonstrate

to the Regional Administrato

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