Petition for Writ of Certiorari — American Mining Congress v. United States Environmental Protection Agency

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IN THE

Supreme Court of the GQnited States

OCTOBER TERM, 1989

AMERICAN MINING CONGRESS and SOLITE CORPORATION,

Petitioners,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Of Counsel: JOHN N. HANSON, Esq.

EDWARD M. GREEN, Esq. Counsel of Record

Chief Counsel DONALD J. PATTERSON, JR., ESQ.

RODERICK T. DWYER, Esq. AARON H. GOLDBERG, ESQ.

Senior Counsel BEVERIDGE & DIAMOND, P.C.

American Mining Congress 1350 I Street, N.W., Suite 700

1920 N Street, N.W., Suite 300 Washington, D.C. 20005

Washington, D.C. 20036 (202) 789-6000

Ses} SUE-Saee Attorneys for Petitioner

American Mining Congress

JEREMIAH J. JEWETT, III, Esq.

McGuIRE, Woops, BATTLE

& BOOTHE

One James Center

Richmond, Virginia 23219

(804) 774-1005

Attorney for Petitioner

March 27, 1990 Solite Corporation

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

——— —

— Ce Ae et aT ol Caliente

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QUESTION PRESENTED

Whether the United States Court of Appeals for

the District of Columbia Circuit erred by allowing the

Environmental Protection Agency summarily to sub-

ject wastes from three important sectors of the United

States economy to the most costly and burdensome

requirements of Subtitle C of the Resource Conser-

vation and Recovery Act without first making a for-

mal regulatory determination as mandated by

Congress that those requirements are warranted.

LIST OF PARTIES AND RULE 29.1 LIST

The parties to the case below were as follows:

American Mining Congress, Solite Corporation,

American Iron and Steel Institute, Waste Manage-

ment of North America, Inc., Chemical Waste Man-

agement, Inc., PPG Industries, Inc., Inland Steel -

Company, Edison Electric Institute,! National Rural

! Edison Electric Institute’s member companies were also listed

on Edison Electric Institute’s Petition for Review as petitioners.

Those member companies are: American Electric Power Service

Corporation, Appalachian Power Company, Atlantic City Electric

Company, Baltimore Gas & Electric Company, Boston Edison

Company, Carolina Power & Light Company, Centerior Energy

Corporation, Central Hudson Gas & Electric Corporation, Cen-

tral Illinois Light Company, Central Illinois Public Service Com-

pany, Central & South West Services, Inc., Cincinnati Gas &

Electric Company, Columbus Southern Power Company, Com-

monwealth Edison Company, Consolidated Edison Company of

New York, Inc., Dayton Power & Light Company, Delmarva

Power & Light Company, Duke Power Company, Duquesne Light

Company, Florida Power & Light Company, Houston Lighting

& Power Company, Illinois Power Company, Indiana Michigan

Power Company, Indianapolis Power & Light Company, Iowa

Power & Light Company, Iowa Public Service Company, Jersey

Central Power & Light Company, Kentucky Power Company,

Madison Gas & Electric Company, Minnesota Power & Light

Company, Monongahela Power Company, Montaup Electric Com-

pany, New England Power Company, Niagara Mohawk Power

Corporation, NIPSCO Industries, Inc., Northeast Utilities Ser-

vice Company, Ohio Power Company, Ohio Valley Electric Cor-

poration, Oklahoma Gas & Electric Company, Pacific Gas &

Electric Company, Pacificorp dba Pacific Power & Light and

Utah Power & Light, Pennsylvania Power & Light Company,

Philadelphia Electric Company, Potomac Electric Power Com-

pany, Public Service Comipany of Indiana, Inc., Public Service

Electric & Gas Company, Salt River Project Agricultural Im-

provement & Power District, Southern California Edison Com-

ili

Electric Cooperative Association, and American Pub-

lic Power Association, petitioners;

United States Environmental Protection Agency

and Lee M. Thomas, Administrator, respondents;

American Petroleum Institute and The Fertilizer

Institute, intervenors; and

Hazardous Waste Treatment Council, amicus cur-

10e.

Petitioner American Mining Congress is an industry

trade association with no publicly owned parent, sub-

sidiary or affiliate.

Petitioner Solite Corporation has no publicly owned

parent, subsidiary or affiliate.

pany, Southern Company Service, Inc., Tampa Electric Company,

Texas Utilities Electric Company, The Detroit Edison Company,

The Potomac Edison Company, Union Electric Company, Vir-

ginia Electric and Power Company, West Penn Power Company,

Wisconsin Electric Power Company, Wisconsin Power & Light

Company, and Wisconsin Public Service Corporation.

TABLE OF CONTENTS

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LIST OF PARTIES AND RULE 29.1 LIST ..............

SAE OE FO RE IENUEE eivcinsccesiciscssvevitesacstnavsinens

INTE cieidirclanentnibsiuinneiaonenndeentauntieedevesies

STATEMENT OF THE CASE ..........ccccscssscssscccecsesees

KE.

acta siidhiscnialuiaaienbondinns

WOMCMNOTY FROVUIOES ....<cccesecccccecccsecsscssses

1. Sititle C Of BORA ...ccccccccccccccsseseces

Ss enero RS

Regulatory Determinations .....................

The Rulemaking At Issue ......................

BE BR I skin siccsnreceesssccrinetiocsess

I. THE PETITION FOR CERTIORARI SHOULD

BE GRANTED BECAUSE IMPORTANT SEC-

TORS OF UNITED STATES INDUSTRY HAVE

BEEN DENIED THE SPECIAL PROCE-

DURAL AND SUBSTANTIVE PROTECTIONS

MANDATED BY CONGRESS. ..............ceeeeeeeee

The Decision Below Violates The Clear

Admonition Of This Court That Review-

ing Courts Must Give Effect To The Plain

Language Of Statutory Provisions ........

Section 3004(x) Of The 1984 RCRA

Amendments Confirms That The Court of

Appeals Has Violated The Plain Lan-

guage Of The Bevill Amendment ..........

PPR ww mH Hw KE GC.

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co)

Il. THE PETITION FOR CERTIORARI SHOULD

BE GRANTED BECAUSE THE DECISION BE-

LOW EVISCERATES THE SPECIAL REGU-

LATORY APPROACH THAT CONGRESS

ESTABLISHED AS AN ESSENTIAL SAFE-

GUARD AGAINST UNNECESSARY OR INAP-

PROPRIATE REGULATION OF IMPORTANT

SPEED, . shnervonrinercveensensuensansunindintmnetreorse

A. The Court of Appeals’ Decision Exposes

Bevill Industries To Devastating Eco-

nomic Burdens Without The Congression-

ally Required Regulatory Determination

That Those Burdens Are Warranted .....

B. The Court of Appeals’ Decision Eviscer-

ates EPA’s Regulatory Determination

That Mining Industry Extraction and Be-

neficiation Wastes Should Not Be Subject

To Corrective Action Requirements Un-

der Subtitle C of RCRA ............... eee

GRIP AAIEEG sricvecsesstappaininesesneccnecninienananedineuntizenvatsos

TABLE OF AUTHORITIES

Cases: Page

American Iron and Steel Institute v. United States

Environmental Protection Agency, 886 F.2d 390

icc nskindctcaiienendeadnnnbiindecdese passim

American Mining Congress v. United States Envi-

ronmental Protection Agency, 824 F.2d 1177

IT IIE ciishscisckacecconseepnecebteiceterseessereoers 14

Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) ............. 10,11

Environmental Defense Fund v. United States En-

vironmental Protection Agency, 852 F.2d 1309

Se I i ii cvntcnteucvesenomensudsinetsseeoeeeee passim

Environmental Defense Fund v. United States En-

vironmental Protection Agency, 852 F.2d 1316

(D.C. Cir. 1988), cert. denied, 109 S. Ct. 1120

ani aide cmatecilesddniatovernninierenyies 8

Morton v. Mancart, 417 U.S. 585 (1974) ........... a 19

Pennsylvania v. Union Gas Co., 109 S. Ct. 2273

SURG cD sa RO ee ee 10

Tull v. United States, 481 U.S. 412 (1987) ........... 10

United States v. Riverside Bayview Homes, Inc., 474

ge ERASERS EER en Oa 10

United States v. Temple, 105 U.S. 97 (1881) ......... 14

Statutes:

Re ie I osc cvcivesccectcseeccesersevecesoxes 4

Be Se Senn 5

ee ee IID orvcisececccsaccsecessoeveensevnsscnters 6,13

Be Bele ED einevicaccccnctetcccccreceresnsseesccoses 6,13

nhs eS 5

FE 7,15

rs aiceninnee 6

vii

Table of Authorities Continued

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OA I ao iciecneccccsapcenscnacoconvecasceverves

GT BI aici osen copes csesecsesnvesessvennsccovens

Legislative History:

126 Comm. Rec. 18,2464 (1079) ....00.0ccrcesessosesosecssesses

BE I, I BE CIID eevee ce cevecnevecsecssccascesesesss

Regulations:

40 C.P.R. Parts 260-272 (1969) .......cccescoscovccscsceseses

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BE. FO. Be: Be COD cvctccvcccceccesescvsseseussecuesess

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Be Fe Be Ge ID acc cvecsccncsccseecccesesovncserses

Oe Fe Bs Be CID cc ccencecscessscecevssesecersnenerss

Be Fe ND ces esinccsenveccscerssevesssessereses

BG FOG, FRR Gee COD veccccvccverscsseccnscecsoneseesexes

GB FOG. BIO. BEEe (IGG D) qn crsevcccccvesesesscescccerssevssseers

Miscellaneous:

1A Sutherland, Statutory Construction § 23.09 (4th

RE iain deat cic aaiiiabaasiaacabmaligh eluesdinainns

Options Paper: Development of a Regulatory Pro-

gram for Corrective Action Under Section

3004(u), attached to Memorandum from J. Win-

ston Porter, Assistant Administrator, Office of

Solid Waste and Emergency Response (Jan. 8,

TU <sissssiiiehaavelanitasiadiiendciahsiiimadicidaeslaaliaphsanhaniiciiee

EPA Report to Congress: Wastes from the Com-

bustion of Coal by Electric Utility Power

Plants, Exec. Commun. No. 31138, 1384 Cong.

Rec. H827 (February 1988) .............cccccseseeeeeees

U.S. EPA, Outline of RCRA Subtitle D Mining

Waste Strawman (May 31, 1988 draft) ..........

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1989 |

No. 89-

AMERICAN MINING CONGRESS and SOLITE CORPORATION,

Petitioners,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners American Mining Congress and Solite

Corporation respectfully pray that a writ of certiorari

issue to review the judgment and opinion of the

United States Court of Appeals for the District of

Columbia Circuit entered on September 22, 1989.

OPINION BELOW

The opinion of the United States Court of Appeals

for the District of Columbia Circuit (‘‘Court of

Appeals’’) is reported in American Iron and Steel In-

stitute v. Umited States Environmental Protection

Agency, 886 F.2d 390 (D.C. Cir. 1989) (“AJSI v.

EPA”’), and is reprinted in the Appendix at la. The

orders of the Court of Appeals denying rehearing and

denying rehearing en banc are not reported. These

orders are reprinted in the Appendix at 27a and 28a,

respectively.

JURISDICTIONAL STATEMENT

Petitioners filed petitions for review in the Court

of Appeals pursuant to section 7006(a) of the Re-

source Conservation and Recovery Act (“RCRA’’), 42

U.S.C. § 6976(a). The judgment in this case was en-

tered on September 22, 1989. Petitioners’ motion for

panel rehearing and suggestion for rehearing en banc

were denied by the Court of Appeals on November

27, 1989. On February 15, 1990, Chief Justice Rehn-

quist of this Court granted the motion of Edison Elec-

tric Institute, et al., American Mining Congress, Solite

Corporation, and American Petroleum Institute for an

extension of time in which to file a petition for writ

of certiorari to March 27, 1990. This petition for a

writ of certiorari has therefore been timely filed. This

Court’s jurisdiction to review the judgment and opin-

ion of the Court of Appeals is invoked pursuant to

28 U.S.C. § 1254(1).

STATUTORY AND REGULATORY PROVISIONS

This case concerns a United States Environmental

Protection Agency (““EPA” or “the Agency’’) rule-

making pursuant to RCRA, 42 U.S.C. § 6901-6992k.

The statutory provisions at issue in this case are

RCRA sections 3001(a), (b), 42 U.S.C. §§ 6921(a), (b);

3004(u), (x), 42 U.S.C. §§ 6924(u), (x); and 8002(f), (n),

(o), (p), 42 U.S.C. §§ 6982(f), (n), (0), (p). These pro-

visions are reprinted in the Appendix at 30a-38a. The

EPA rulemaking at issue in this case was published

at 52 Fed. Reg. 45,788 (1987). The relevant portion

of this notice is reprinted in the Appendix at 58a.

STATEMENT OF THE CASE

A. Introduction

By this Petition, this Court is asked to review a

decision by the Court of Appeals upholding a rule

promulgated by EPA that summarily imposes ex-

tremely burdensome RCRA Subtitle C ‘‘corrective ac-

tion’’ (1.e., cleanup) requirements on wastes generated

by petitioners, even though the plain language of

RCRA specifically prohibits EPA from imposing those

requirements without first performing a special study

of the wastes and making a formal Regulatory De-

termination that such Subtitle C controls are war-

ranted.

In 1980, Congress. enacted the so-called ‘“‘Bevill

Amendment” to RCRA that precluded EPA from im-

posing Subtitle C regulatory controls on three im-

portant sectors of the United States economy until

the Agency followed a special set of procedural and

substantive requirements to determine whether Sub-

title C regulatory controls for those wastes are war-

ranted. Congress mandated these Bevill Amendment

special review requirements for wastes from the min-

ing, utility, and cement kiln industries because those

wastes generally pose a lower environmental risk and

are produced in significantly greater volumes than the

typical industrial and manufacturing wastes covered

by Subtitle C.

The Court of Appeals’ decision upholds EPA’s im-

position of Subtitle C corrective action requirements

-on Bevill wastes generated by petitioners, even though

EPA has not followed the Bevill Amendment process

and determined that those requirements are war-

ranted. The Court of Appeals’ decision conflicts with

the plain language of RCRA and unlawfully exposes

Bevill wastes to the most costly of Subtitle C regu-

latory controls.

B. Statutory Provisions

1. Subtitle C of RCRA

Subtitle C of RCRA,! which was enacted by Con-

gress in 1976 and amended in 1980 and 1984, estab-

lishes a detailed regulatory system that governs the

management of hazardous wastes from ‘“‘cradle to

grave.” The Subtitle C regulatory program regulates

the generation, transportation, treatment, storage,

and disposal of hazardous wastes.’ It imposes costly

and detailed administrative and technical performance

standards on facilities managing hazardous wastes.

Included among these requirements are the ‘“‘correc-

tive action’’ (1.e., cleanup) requirements under section

3004(u) of Subtitle C.

Section 3004(u) was enacted as part of the Haz-

ardous and Solid Waste Amendments of 1984

(“HSWA’’). Section 3004(u) dramatically expanded the

pre-existing cleanup authority of Subtitle C, requiring

any facility seeking a hazardous waste permit to un-

dertake corrective action for releases of hazardous

142 U.S.C. §§ 6921-6939b.

240 C.F.R. Parts 260-272 (1989).

3 See Environmental Defense Fund v. United States Environ-

mental Protection Agency, 852 F.2d 1309, 1310 (D.C. Cir. 1988)

(“EDF v. EPA I’).

wastes or hazardous constituents.‘ The section 3004(u)

corrective action requirement is by far the most eco-

nomically burdensome provision of Subtitle C. EPA

estimates annual corrective action compliance costs in

the billions.

2. The Bevill Amendment and Section 3004(x)

Congress recognized early that the Subtitle C pro-

gram, which had been enacted ‘‘to address the haz-

ards of industrial and manufacturing wastes,’’> might

not be appropriate for wastes generated by the min-

ing, utility, and cement kiln industries. Wastes from

these industries are generated in volumes that are

orders of magnitude greater than those generated by

all Subtitle C hazardous waste facilities combined, and

do not pose the same degree of environmental risk

as wastes from typical industrial and manufacturing

operations.* For example, mining industry waste man-

agement facilities generally are located distant from

population centers and drinking water sources, and

pose reduced threats to groundwater because they are

located in drier climates.” Accordingly, to relieve those

three industries ‘“‘of the onerous economic burden of

stringent Subtitle C controls if at all possible,’’* Con-

gress adopted the Bevill Amendment to RCRA in

1980.9

442 U.S.C. § 6924(u).

5 EDF v. EPA I, 852 F.2d at 1310.

6 See, e.g., 51 Fed. Reg. 24,496, 24,499 (1986); App. at 48a.

7 Id. at 24,499-500; App. at 50a-53a.

8 EDF v. EPA I, 852 F.2d at 1315.

° A related amendment known as the “Bentsen Amendment”

was designed to provide similar relief for the oil and gas in-

dustry. 42 U.S.C. §§ 6921(bX2) and 6982(m).

The Bevill Amendment was designed ‘‘to break with

the previous [Subtitle C] approach to regulation of

hazardous industrial wastes” by focusing on the “‘ac-

tual dangers,” if any, posed by wastes from the min-

ing, utility, and cement kiln industries, and on the

“‘cost{s] and the economic impact’’ on these industries

of subjecting such wastes to Subtitle C controls.’° The

Bevill Amendment did three things. It proscribed the

imposition of any Subtitle C controls on solid waste

from the specified industries.' It further directed

EPA to conduct a detailed and comprehensive study

of the wastes from those industries: a study that ad-

dresses specified factors, such as whether disposal of

the wastes has any adverse effects on human health

or the environment, whether Subtitle C controls would

have an adverse impact on the nation’s use of natural

resources, and the cost of various regulatory alter-

natives.’ Finally, the Bevill Amendment directed

EPA, after completing the required study and re-

porting the results to Congress, to decide, by means

of a Regulatory Determination, whether Subtitle C

regulation of Bevill wastes was warranted."

10 EDF v. EPA I, 852 F.2d at 1314-15.

11 42 U.S.C. § 6921(bX3XA).

12 42 U.S.C. §§ 6982(n), (0), and (p). Congress had previously

directed EPA to conduct a similar study for mining industry

wastes which had not been completed by 1980. 42 U.S.C.

§ 6982(f); EDF v. EPA I, 852 F.2d at 1310.

18 42 U.S.C. § 6921(bX3\XC). This Regulatory Determination was

to made after public hearing and comment, and not later than

six months after EPA submitted the study of the respective

wastes to Congress. Jd. The Regulatory Determination was to

be based on the same factors evaluated in the study and Report

to Congress. EDF v. EPA I, 852 F.2d at 1310-11.

When enacting HSWA in 1984, Congress recog-

nized the severe impact its new RCRA Subtitle C

statutory requirements, including those in section

3004(u), could have on the industries covered by the

Bevill Amendment. Accordingly, Congress en .cted

section 3004(x). If EPA makes a Regulatory Deter-

mination that Subtitle C regulation of wastes covered

by the Bevill Amendment is warranted, section

3004(x) authorizes EPA to modify certain Subtitle C

requirements, including section 3004(u), to take into

account the “‘special characteristics’ of those wastes,

“the practical difficulties associated with implemen-

tation of such requirements,” as well as other fac-

tors.'4

C. Regulatory Determinations

EPA initially implemented the Bevill Amendment

as envisioned by Congress. For example, after com-

plying with the requirements of the Bevill Amend-

ment, EPA in 1986 determined that two classes of

mining wastes—extraction and beneficiation wastes—

should not be subject to Subtitle C regulation.° EPA

reasoned that the vast quantities of mining extraction

and beneficiation wastes generated annually, and the

unique characteristics of those wastes, made Subtitle

C regulation technically infeasible, economically im-

practical, and environmentally unnecessary.'* The

Agency found, for example, that ‘[t]he mining in-

dustry alone generates over one billion metric tons

of [extraction and beneficiation] waste per year com-

pared to 260 million metric tons generated annually

442 U.S.C. § 6924(x).

1651 Fed. Reg. at 24,496; App. at 48a.

16 Jd. at 24,500; App. at 53a-55a.

by all other hazardous waste industries.’”'7 EPA’s

Regulatory Determination for mining industry ex-

traction and beneficiation wastes has been upheld by

the Court of Appeals.'® EPA is to complete the Bevill

Amendment process for the one remaining class of

Bevill mining wastes—processing wastes—by January

31, 1991."

D. The Rulemaking At Issue

In 1987, EPA issued a final rule interpreting the

1984 amendments to RCRA, including section 3004(u).

In that rule, EPA summarily announced that “‘ ‘Bevill

wastes’... are [currently] subject to the corrective

action requirements of Section 3004(u) [of Subtitle C]

when they are found in solid waste management units

at facilities that need permits to manage hazardous

wastes.’’° Although section 3004(u) is located in Sub-

title C of RCRA, the Agency reached this conclusion

without first complying with the special procedural

and substantive requirements prescribed by Congress

in the Bevill Amendment. Moreover, EPA completely

ignored its prior 1986 Regulatory Determination,

which had been made in accordance with the Bevill

Amendment, that extraction and beneficiation wastes

17 Td. at 24,499; App. at 51a.

‘8 RDF v. EPA I, 852 F.2d at 1313-16.

1° Environmental Defense Fund v. United States Environmen-

tal Protection Agency, 852 F.2d 1316, 1531 (D.C. Cir. 1988),

cert. denied, 109 S. Ct. 1120 (1989) (“EDF v. EPA IT’), schedule

modified by Order entered March 14, 1989 in No. 86-1584 and

consolidated cases (D.C. Cir.). See also 53 Fed. Reg. 35,412

(1988); 54 Fed. Reg. 15,316 (1989); 54 Fed. Reg. 36,592 (1989);

55 Fed. Reg. 2322 (1990).

2052 Fed. Reg. 45,788, 45,790 (1987); App. at 58a.

from the mining industry should not be subject to

Subtitle C regulation, including its corrective action

requirements. As a result, mining industry extraction,

beneficiation, and processing wastes are now subject

to section 3004(u) corrective action requirements.

E. The Decision Below

The American Mining Congress and Solite Corpo-

ration petitioned the Court of Appeals to review

EPA’s summary decision to subject Bevill wastes to

regulation under section 3004(u) of Subtitle C without

complying with the Bevill Amendment.” On Septem-

ber 22, 1989, the Court of Appeals denied the petition

for review.”

The Court of Appeals acknowledged that ‘“‘the lin-

guistic case for exemption [of Bevill wastes] from cor-

rective action [under section 3004(u)] is quite

powerful” because the Bevill Amendment exempts

such wastes from regulation under Subtitle C and

section 3004(u) is ‘indisputably located within Subtitle

C.’”3 Nevertheless, the Court of Appeals concluded

that the Bevill Amendment does not apply to section

3004(u). According to the Court of Appeals, the Bevill

Amendment gives mining wastes ‘“‘an exemption only

from regulation as hazardous waste,’’“ and does not

affect section 3004(u) because that section requires

corrective action for “solid waste’’ management units.

21 A petition for review was also filed by the Edison Electric

Institute, et al.

22 AISI v. EPA, 886 F.2d at 404; App at 25a-26a.

23 Id. at 395; App. at 6a.

4 Id. at 396; App. at 8a.

REASONS FOR GRANTING THE WRIT

I. THE PETITION FOR CERTIORARI SHOULD BE

GRANTED BECAUSE IMPORTANT SECTORS OF

UNITED STATES INDUSTRY HAVE BEEN DENIED

THE SPECIAL PROCEDURAL AND SUBSTANTIVE

PROTECTIONS MANDATED BY CONGRESS

This case raises important issues of statutory con-

struction associated with the administration of RCRA,

and involves the denial of significant rights created

by RCRA.* In the rulemaking at issue in this case,

EPA summarily imposed corrective action require-

ments under section 3004(u) of Subtitle C of RCRA

on the three important United States industries sin-

gled out by Congress for special review under the

Bevill Amendment, without even pretending to com-

ply with its responsibilities under that Amendment.

Because of EPA’s failure to comply with its Bevill

Amendment statutory obligations, these three indus-

tries will now be forced to comply with the most

2 This Court has recently granted certiorari in other federal

environmental cases involving fundamental questions of statu-

tory and regulatory interpretation. See, e.g., Pennsylvania v.

Union Gas Co., 109 S. Ct. 2273, 2276 (1988) (certiorari granted

to determine whether private parties may sue states in federal

court to recover cleanup costs under the Superfund law); Tull

v. United States, 481 U.S. 412, 417 (1987) (certiorari granted

to determine whether a jury trial is required to determine lia-

bility and assess penalties for violation of section 404 of the

Clean Water Act); United States v. Riverside Bayview Homes,

Inc., 474 U.S. 121, 126 (1985) (certiorari granted to review va-

lidity of U.S. Army Corps of Engineers’ regulations defining

“adjacent wetlands’ as ‘waters of the United States” under

the Clean Water Act); Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842 (1984) (certiorari granted

to review validity of EPA’s “bubble” concept under the Clean

Air Act).

eS a bran:

costly and burdensome aspect of the RCRA Subtitle

C regulatory program, without EPA ever having made

the Regulatory Determination mandated by Congress

that such burdens are warranted.”

A. The Decision Below Violates The Clear Admonition Of

This Court That Reviewing Courts Must Give Effect To

The Plain Language Of Statutory Provisions

This Court has held that, in deciding whether

agency action is contrary to law, a reviewing court

must first consider whether Congress ‘“‘has directly

spoken to the precise question at issue.’’ Chevron

U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 887, 842 (1984) (“‘Chevron’’). “If the

intent of Congress is clear, that is the end of the

matter, for the court, as well as the agency, must

give effect to the unambiguously expressed intent of

Congress.” Id. at 842-43.

The Court of Appeals’ review in this case started,

and under Chevron should have ended, with an anal-

ysis of the plain language of RCRA. The Court of

Appeals in its opinion conceded that “the linguistic

case for exemption [of Bevill wastes] from corrective

action [under section 3004(u)] is quite powerful.’’?’ In

particular, the Court of Appeals acknowledged that

26 Under the Bevill Amendment, Subtitle C requirements, in-

cluding those under section 3004(u), can be imposed on Bevill

wastes, but only after the special review requirements of that

Amendment are met. Bevill wastes remain subject to all other

applicable federal and state regulatory requirements. What

petitioners seek here is EPA’s compliance with its obligations

under the Bevill Amendment by not imposing Subtitle C cor-

rective action requirements on Bevill wastes until the Agency

determines whether those requirements and the costs associated

with them are warranted.

27 AISI v. EPA, 886 F.2d at 395; App. at 6a.

the Bevill Amendment exempts Bevill wastes from

regulation under Subtitle C, and that section 3004(u)

is “indisputably located within Subtitle C.’’

Nevertheless, the Court of Appeals ignored the ad-

monitions of Chevron, and ruled that EPA had not

erred by failing to comply with the special review

mandated under the Bevill Amendment before the

Agency imposed Subtitle C section 3004(u) require-

ments on Bevill wastes. According to the Court of

Appeals, the Bevill Amendment grants Bevill wastes

‘“‘an exemption only from [Subtitle C] regulation as

hazardous wastes.’’® The Court of Appeals thus ruled

that EPA did not have to comply with the special

review requirements of the Bevill Amendment be-

cause section 3004(u) requires corrective action not

only for hazardous, but also for non-hazardous, solid

wastes.

The Court of Appeals’ decision is wrong, because

the Bevill Amendment is devoid of language restrict-

ing its scope to only some Subtitle C regulations. The ©

Bevill Amendment covers all regulations in Subtitle

C, and section 3004(u) is ‘‘indisputedly located within

Subtitle C.’’ Section 3001(bX3XA) of the Bevill

Amendment directs that Bevill wastes shall ‘‘be sub-

ject only to regulation under other applicable provi-

sions of Federal or State law in lieu of this subchapter

[v.e., Subtitle C]’”’ until completion of the Congres-

sionally mandated study and regulatory determina-

8 Id.

79 Id. at 396; App. at 8a.

3° Td. at 395; App. at 6a.

tion.** Similarly, section 3001(bX3XC) mandates that

: EPA shall, “‘after public hearings and opportunity for

comment, either determine to promulgate regulations

under this subchapter [Subtitle C] for each [Bevill]

waste ...or determine that such [Subtitle C] regu-

lations are unwarranted.’’*? If Congress had intended

to limit the scope of the Bevill Amendment, as the

Court of Appeals suggests, it would have done so

explicitly.

The statutory language of the Bevill Amendment

is clear: before EPA may impose any of the require-

ments of Subtitle C, which includes the section 3004(u)

corrective action rules, on Bevill wastes, the Agency

must comply with the special review requirements es-

tablished by the Bevill Amendment. The Court of

Appeals was concerned that petitioners’ view of the

relationship between the Bevill Amendment and sec-

tion 3004(u) would “‘elevate’”’ Bevill wastes “‘to a priv-

ileged position above all other nonhazardous solid

wastes.’ The explicit goal of the Bevill Amendment

is to place Bevill wastes in a special position vis-a-

vis other solid wastes, 1.e., the Amendment plainly

states that the solid wastes it covers shall not be

regulated under Subtitle C unless such regulation is

found to be warranted, after specified factors have

been considered in a special study.™

31 42 U.S.C. § 6921(bX3\A) (emphasis added).

82 42 U.S.C. § 6921(bX3XC) (emphasis added).

33 AISI v. EPA, 886 F.2d at 395-96; App. at 8a.

* The Court of Appeals also stated that the Bevill process

would be “‘logically irrelevant” to the decision on imposition of

corrective action requirements. AISI v. EPA, 886 F.2d at 395;

App. at 7a. The appellate court is wrong. An analysis of the

eet

The Chevron decision applies with particular force

in cases involving RCRA, which as the Court of

Appeals has observed, is a statute characterized by

“definitional specificity of the first order.’’* A court

may not, under the guise of statutory interpretation,

usurp Congress’ legislative powers and insert words

or phrases into statutory language that alter the stat-

ute’s meaning. Here, the Court of Appeals has leg-

islated in just such a manner, and in so doing has

deprived petitioners of their right to a formal Reg-

ulatory Determination whether the most onerous of

Subtitle C requirements are warranted for their

wastes.

B. Section 3004(x) Of The 1984 RCRA Amendments Con-

firms That The Court Of Appeals Has Violated The

Plain Language Of The Bevill Amendment

Section 3004(x) of RCRA, which was enacted in

1984 along with section 3004(u), confirms that the

Bevill Amendment extends to Subtitle C in its en-

tirety. It also demonstrates that the Court of Appeals’

decision makes no sense.

Section 3004(x) provides that “‘i]f [a Bevill waste]

is subject to regulation under this subchapter’’ (i.e.,

Subtitle C), EPA may then modify certain Subtitle C

requirements, including section 3004(u), to take into

account the ‘‘special characteristics” of those wastes,

the ‘practical difficulties associated with implemen-

enormous costs of corrective action for the large volumes of

Bevill wastes goes to the very heart of the Bevill Amendment.

35 American Mining Congress v. United States Environmental

Protection Agency, 824 F.2d 1177, 1189 (D.C. Cir. 1987).

% United States v. Temple, 105 U.S. 97, 98 (1881).

tation of such requirements,” as well as other fac-

tors.*"

If the Court of Appeals is correct that the Bevill

Amendment does not encompass section 3004(u), there

would have been no reason for the conditional lan-

guage at the beginning of section 3004(x), because

section 3004(u) would have applied automatically to

Bevill wastes. Congress included the introductory

clause of section 3004(x), which delays the trigger

date of section 3004(x) until some future time, be-

cause it recognized that a Bevill study and Regulatory

Determination still needed to be completed before

these wastes could be subject to any of the new

HSWA requirements mentioned in section 3004(x), in-

cluding section 3004(u).

The Court of Appeals recognized the difficulty of

reconciling its interpretation of the Bevill Amendment

with the plain language in section 3004(x). Therefore,

in an effort to “‘make[ ] sense’’®* of section 3004(x),

the Court of Appeals put forth, swa sponte, a novel

and erroneous interpretation of section 3004(x) that

fails to give effect to the plain language of that pro-

vision. Specifically, the Court of Appeals stated that

“to the extent that EPA imposes special § 3004(u)

controls on hazardous wastes and classifies Bevill

wastes as such, § 3004(x) allows the Agency to adjust

the regulations to the special features of Bevill

37 42 U.S.C. § 6924(x). As the Court of Appeals recently noted,

Congress made section 3004(x) relief available only ‘‘in the event

that the Agency chose to regulate [Bevill wastes] under Subtitle

C.” EDF v. EPA I, 852 F.2d at 1815 (emphasis in original).

88 AISI v. EPA, 886 F.2d at 396; App. at 8a.

wastes.’ Section 3004(x), however, does not limit

EPA’s modification authority to any ‘‘special’’ section

3004(u) controls that might be imposed on Bevill

wastes. Instead, section 3004(x) authorizes EPA to

modify the requirements of section 3004(u)—without

limitation—if Bevill wastes become subject to regu-

lation under Subtitle C. Once again, the Court of

Appeals failed to give effect to the plain language of

the statute.*

The plain language of the Bevill Amendment and

section 3004(x) requires that before Bevill wastes can

be regulated under any provision of Subtitle C, those

wastes must be studied, and EPA must make a Reg-

ulatory Determination whether such controls, and the

costs associated with them, are warranted. In the

event that EPA then chooses to regulate Bevill wastes

3° Jd. (emphasis in original). EPA did not advance or embrace

this interpretation in the proceeding below; and the Agency has

not adopted it since the Court of Appeals’ decision.

* Moreover, the Court of Appeals failed to proffer any support

for its hypothesis that Congress intended that EPA develop two

separate tiers of corrective action requirements under section

3004(u). This is not surprising, because nothing in the statute

or its legislative history suggests that Congress envisioned sep-

arate tiers of section 3004(u) corrective action requirements for

hazardous and non-hazardous solid wastes.

EPA apparently believes that there is no basis for establishing

different levels of section 3004(u) corrective action requirements.

The Agency has stated that ‘‘[flrom a legal standpoint, neither

the language of § 3004(u) nor the legislative history to the stat-

ute indicate that non-hazardous wastes should be handled in a

different manner than hazardous wastes.’’ Options Paper: De-

velopment of a Regulatory Program for Corrective Action Under

Section 3004(u), attached to Memorandum from J. Winston Por-

ter, Assistant Administrator, Office of Solid Waste and Emer-

gency Response (Jan. 8, 1987); App. at 65a.

« cet le Dwr tall

under Subtitle C, the Agency may modify certain Sub-

title C requirements pursuant to section 3004(x). Un-

fortunately, the Court of Appeals ignored the plain

language of the statute and decided that EPA need

not comply with the clear Bevill Amendment require-

ments set forth by Congress. This Court should grant

this Petition to ensure that the Agency complies with

those requirements so that the mining, utility, and

cement kiln industries will not be subject to the enor-

mous costs of section 3004(u) of Subtitle C unless

EPA determines that doing so is warranted.

II. THE PETITION FOR CERTIORARI SHOULD BE

GRANTED BECAUSE THE DECISION BELOW EVIS-

CERATES THE SPECIAL REGULATORY APPROACH

THAT CONGRESS ESTABLISHED AS AN ESSENTIAL

SAFEGUARD AGAINST UNNECESSARY OR INAPPRO-

PRIATE REGULATION OF IMPORTANT INDUSTRIES

A. The Court Of Appeals’ Decision Exposes Bevill

Industries To Devastating Economic Burdens

Without The Congressionally Required Regula-

tory Determination That Those Burdens Are War-

ranted

Congress’ goal in enacting the Bevill Amendment

was “‘to relieve the mining [utility, and cement kiln]

industries of the onerous economic burden of strin-

gent Subtitle C controls if at all possible.’’*! The leg-

islative history is replete with testimonials regarding

the importance to the United States economy of the

industries covered by the Bevill Amendment and

expressions of concern over “‘the potential for dis-

ruptive economic impacts’’ if the wastes from those

industries are subject to regulation under Subtitle C.*

“ EDF v. EPA I, 852 F.2d at 1315.

“52 Fed. Reg. at 45,790, App. at 60a; 125 Cong. Rec. 13,244-

Accordingly, the Bevill Amendment was carefully

crafted so that EPA could not impose any Subtitle

C requirements on Bevill wastes without studying the

wastes, reporting the results to Congress, holding

public hearings, evaluating public comments, and

making a formal Regulatory Determination that such

regulation is warranted. Throughout this special proc-

ess, EPA was directed to consider a variety of fac-

tors, including economics, which ordinarily play no

role in EPA’s Subtitle C regulatory program.*

The decision below, however, circumvents the

Congressionally mandated Bevill process and auto-

matically subjects Bevill wastes to section 3004(u) cor-

rective action requirements, the single most costly

component of the Subtitle C regulatory program.

Those requirements will have a much greater eco-

nomic impact on the mining, utility, and cement kiln

industries than all other Subtitle C requirements com-

bined. EPA has estimated that the Subtitle C cor-

rective action requirements could cost as much as $1.8

billion annually at industrial and manufacturing waste

sites, compared to $3(0 million annually for a total

of 11 other key HSWA regulatory requirements under

Subtitle C.“ EPA acknowledges that the cost of com-

plying with Subtitle C corrective action is potentially

“very high.”” For example, in the utility industry, EPA

estimates that the cost of compliance can, under some

circumstances, reach $2 billion per power plant.** Un-

45 (1979) (remarks of Sen. Huddleston), App. at 39a; 126 Cong.

Rec. 3361-65 (1980) (remarks of Reps. Bevill, Findley, Rahall,

Williams, and Staggers), App. at 4la.

* See EDF v. EPA I, 852 F.2d at 1315.

“50 Fed. Reg. 28,702, 28,742 (1985); App. at 47a.

* See EPA Report to Congress: Wastes from the Combustion

der the Court of Appeals’ ruling, these devastating

economic burdens will be imposed on the mining, util-

ity, and cement kiln industries without a prior de-

termination that they are warranted, as required by

the Bevill Amendment.“

B. The Court Of Appeals’ Decision Eviscerates EPA’s Reg-

ulatory Determination That Mining Industry Extraction

And Beneficiation Wastes Should Not Be Subject To

Corrective Action Requirements Under Subtitle C Of

RCRA

The decision of the Court of Appeals has an es-

pecially perverse effect on extraction and beneficia-

tion wastes from the mining industry. On July 3,

1986, after completing the Bevill Amendment process,

EPA determined that extraction and beneficiation

wastes, which total between 1.3 and 2 billion metric

of Coal by Electric Utility Power Plants, 6-19 to 6-20, 6-44

(1988), Exec. Commun. No. 3113, 134 Cong. Rec. H827 (daily

ed. Mar. 10, 1988); App. at 62a.

“ The Court of Appeals asserted that “‘[sjection 3004(u)... in

no way implicates the concern that gave rise to [the Bevill

Amendment]: the disruption that would follow if the wastes were

improvidently classified as hazardous.’’ AJSJ v. EPA, 886 F.2d

at 395; App. at 6a. That assertion makes no sense. It would be

inconsistent for Congress to have been concerned about the dis-

ruptive effects of ‘“improvidently’’ classifying Bevill wastes as

hazardous wastes and also be insensitive to the disruption that

would follow if Bevill wastes were regulated under section

3004(u). Because the potential costs of compliance with section

3004(u) for Bevill wastes dwarf the costs of compliance with al!

other Subtitle C requirements, the Court’s holding that section

3004(u) requirements can apply immediately to Bevill wastes

essentially repeals the Bevill Amendment by implication. Any

such implied repeal of previously enacted statutory provisions is

strongly disfavored. See Morton v. Mancari, 417 U.S. 535, 549-

50 (1974); 1A Sutherland, Statutory Construction § 23.09, at 331

(4th ed. 1985).

‘—

tons each year,*? should not be subject to Subtitle C

regulation, including corrective action requirements

under section 3004(u).% EPA intends instead to de-

velop a separate, tailored regulatory program for ex-

traction and beneficiation wastes under Subtitle D of

RCRA.* EPA, in fact, has already begun developing

a regulatory program under Subtitle D for extraction

and beneficiation wastes, which includes corrective ac-

tion requirements that are more flexible than under

Subtitle C.° The Subtitle D program is currently

scheduled to be formally proposed in April 1991."

‘751 Fed. Reg. at 24,497; App. at 49a. EPA estimates the

accumulated volume of extraction and beneficiation wastes to be

approximately 50 billion metric tons. Jd. Some individual mining

operations generate more wastes than other entire industries.

Id. at 24,498; App. at 49a.

#51 Fed. Reg. at 24,496; App. at 48a. EPA’s Regulatory

Determination for extraction and beneficiation wastes explicitly

addressed the issue of corrective action under section 3004(u).

For example, the Agency determined that, if extraction and

beneficiation wastes were subjected to Subtitle C regulation,

approximately 60 percent of the costs of such regulation could

be attributed to “‘waste[s] accumulated from past production,”

id. at 24,498, App. at 50a, which are beyond the reach of any

Subtitle C requirements other than section 3004(u) corrective

action. EPA also considered but decided against modifying the

section 3004(u) corrective action requirements for ‘continuing

releases at permitted facilities.’’ Jd. at 24,500; App. at 54a-55a.

* 51 Fed. Reg. at 24,501; App. at 56a.

%® See e.g., U.S. EPA, Outline of RCRA Subtitle D Mining

Waste Strawman (May 31, 1988 draft), attached to Letter from

Jeffrey D. Denit, Deputy Director, Office of Solid Waste, to

Roderick T. Dwyer, Senior Counsel, American Mining Congress

(June 1, 1988); App. at 66a.

5154 Fed. Reg. 45,272, 45,313-14 (1989).

The decision of the Court of Appeals, however, ev-

iscerates EPA’s 1986 Regulatory Determination and

subjects extraction and beneficiation wastes to the

most costly component of the Subtitle C program even

though EPA has already decided that Subtitle C con-

trols and costs are not warranted for those wastes.

In this way, the Court of Appeals once again violated

the plain language and purpose of the Bevill Amend-

ment.

CONCLUSION

Because the decision of the Court of Appeals vio-

lates the plain language of RCRA and eviscerates the

special regulatory approach that Congress viewed as

an essential safeguard against unwarranted regulation

of the mining, utility, and cement kiln industries, this

Petition for Certiorari should be granted.

Of Counsel:

EDWARD M. GREEN, ESQ.

Chief Counsel

RODERICK T. DWYER, Esq.

Senior Counsel

AMERICAN MINING CONGRESS

1920 N Street, N.W., Suite 300

Washington, D.C. 20036

(202) 861-2800

March 27, 1990

Respectfully submitted,

JOHN N. HANSON, Esq.

Counsel of Record

DONALD J. PATTERSON, JR., ESQ.

AARON H. GOLDBERG, ESQ.

BEVERIDGE & DIAMOND, P.C.

1350 I Street, N.W., Suite 700

Washington, D.C. 20005

(202) 789-6000

Attorneys for Petitioner

American Mining Congress

JEREMIAH J. JEWETT, III, Esq.

McGUIRE, Woops, BATTLE

& BOOTHE

One James Center

Richmond, Virginia 23219

(804) 774-1005

Attorney for Petitioner

Solite Corporation

APPENDIX

INDEX TO APPENDICES

Page

APPENDIX A: THE CASE BELOW

1. American Iron and Steel Institute v. United

States Environmental Protection Agency, 886

Fe Se is Ge ID sukeweicesnenecscsnnseasees la

2. Order Denying Rehearing. ......................0006 27a

3. Order Denying Rehearing En Banc ............ 28a

APPENDIX B: THE RESOURCE CONSERVATION

AND RECOVERY ACT

1. Section 3001(a), (b); 42 U.S.C. § 6921(a), (b) . 30a

2. Section 3004(u), (x); 42 U.S.C. § 6924(u), (x) . 32a

3. Section 8002(f), (n), (0), (p); 42 U.S.C.

I I I inca iccaiendinmnnqnomeniens 33a

APPENDIX C: LEGISLATIVE HISTORY

1. 125 Cong. Rec. 13,244 (1979) ..................... 39a

2. 126 Cong. Rec. 3361 (1980) .....................6+. 4la

APPENDIX D: FEDERAL REGISTER NOTICES

1. 50 Fed. Reg. 28,702 (1985) ....................000+. 46a

2. 51 Fed. Reg. 24,496 (1986) ................cccssseee 48a

3. 52 Fed. Reg. 45,788 (1987) ...................cse0. 58a

APPENDIX E: MISCELLANEOUS

1. EPA Report To Congress: Wastes From The

Combustion Of Coal By Electric Utility Power

IE DEED - Sevsnnncccceresveensbseentanveserss 6la

2. Options Paper: Development Of A Regulatory Pro-

gram For Corrective Action Under § 3004(u) .... 63a

3. U.S. EPA, Outline Of RCRA Subtitle D Mining

Waste Strawman (May 31, 1988 Draft) ........... 66a

UNITED STATES COURT OF APPEALS,

DISTRICT OF COLUMBIA CIRCUIT.

Nos. 88-1155, 88-1156, 88-1158, 88-1165,

88-1168 and 88-1169.

| AMERICAN IRON AND STEEL INSTITUTE,

| Petitioner,

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent,

American Petroleum Institute, Edison

Electric Institute, et al.,

Intervenors.

Argued May 16, 1989.

Decided Sept. 22, 1989.

Before MIKVA and WILLIAMS, Circuit Judges, and

WILL,”* District Judge for the Northern District of Illinois.

Opinion for the court filed by Circuit Judge WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

The Resource Conservation and Recovery Act (‘““RCRA”’),

Pub.L. No. 94-580, 90 Stat. 2795 (1976), created in its

Subtitle C a system for control over the treatment, storage

and disposal of hazardous wastes. RCRA §§ 3001-13, 42

. U.S.C. §§ 6921-34 (1982) (current version at 42 U.S.C.

§§ 6921-39a (1982 & Supp. IV 1986); see also RCRA

§ 1004(5), 42 U.S.C. § 6903(5) (1982) (defining ‘hazardous

ND os St a

* Sitting by designation pursuant to 28 U.S.C. § 294(d).

waste’’). While invariably described as a “‘cradle-to-grave”’

system, it in fact reaches (as we shall see) well beyond

the grave. It required owners and operators of hazardous

waste treatment, storage and disposal facilities, here gen-

erally referred to simply as facilities or treatment facilities,

to secure operating permits from the Environmental Pro-

tection Agency, RCRA §§ 3004-05; 42 U.S.C. §§ 6924-25

(1982), or from a state holding EPA authorization to issue

permits, RCRA § 3006(b), 42 U.S.C. § 6926(b) (1982). In

addition, RCRA Subtitle D established a regulatory pro-

gram for nonhazardous solid wastes, with primary enforce-

ment by the states. RCRA § 4001-09; 42 U.S.C. §§ 6941-

49 (current version at RCRA §§ 4001-10, 42 U.S.C. § 6941-

49a (1982 & Supp. IV 1986)'). See generally United Tech-

nologies Corp. v. EPA, $21 F.2d 714 (D.C.Cir.1987); En-

vironmental Defense Fund v. EPA, 852 F.2d 1309, 1310-

11 (D.C.Cir.1988).

As originally enacted, RCRA ‘‘did not require permittees

to take significant remedial action to correct past mis-

management of hazardous waste.” United Technologies, 821

F.2d at 717. In 1984 Congress decisively changed that

focus with the Hazardous and Solid Waste Amendments

(““HSWA’’), Pub.L. No. 98-616, 98 Stat. 3224 (1984). This

greatly increased EPA’s authority to require corrective

action, even for releases that occurred before the HSWA

was enacted.

In 1985 EPA adopted a somewhat skeletal set of reg-

ulations, implementing the HSWA in terms that largely

tracked the statutory language. First Codification Rule,

50 Fed.Reg. 28,702 (July 15, 1985). Under attack here is

its 1987 Final Second Codification Rule, 52 Fed.Red.

45,788 (Dec. 1, 1987), which adds critical detail to the

earlier work, and, in the judgment of petitioners and in-

RCRA has been heavily amended since 1980. Henceforth we omit

citations to later amendments when the context makes it clear that we

are discussing the original statute.

a at eS ee

tervenors, goes well beyond EPA’s statutory authority.

Our jurisdiction to review the EPA’s regulations flows

from RCRA § 7006(a), 42 U.S.C. § 6976(a) (1982). We will

not try to summarize our holding here, as it is almost

impossible to state the issues intelligibly without more de-

tail than a summary could reasonably bear.

I. BEVILL-BENTSEN WASTES

Many petitioners attack the regulations for their inclu-

sion of so-called Bevill-Bentsen wastes among those subject

to corrective action. We reject the claim. We read the

Bevill-Bentsen provisions as intended merely to protect

such wastes from undue burdens that might flow from

their being overhastily classified as hazardous wastes;

petitioners’ reading of the statute would immunize them

from burdens concededly imposed by Congress on non-

hazardous wastes.

Congress in October 1980 adopted the Bevill and Bent-

sen amendments as part of the Solid Waste Disposal Act

Amendments of 1980, Pub.L. No. 96-482, 94 Stat. 2334

(1980). The Bevill amendment, RCRA § 3001(b\X3), 42

U.S.C. § 6921(bX3) (1982), exempted particular mining in-

dustry wastes—now known as Bevill wastes—from the haz-

ardous waste controls in RCRA Subtitle C, pending further

study by EPA as to their environmental and health effects

and a possible determination by EPA as to whether to

apply Subtitle C or not. The exemption takes the form of

providing that

Notwithstanding [provisions authorizing the EPA to

identify hazardous wastes to be subject to subtitle C

regulation], each [Bevill] waste listed below shall ...

be subject only to regulation under other applicable

provisions of Federal or State law in lieu of this sub-

chapter. ...

42 U.S.C. § 6921(bX3\ A). The Bentsen amendment, RCRA

§§ 3001(bK2\K A), (C), 8002(m), 42 U.S.C. §§ 6921(b\2\A),

(C), 6982(m) (1982), gave a similar exemption to oil, gas

and geothermal production wastes—Bentsen wastes—ex-

cept that if EPA determined that Subtitle C regulations

were warranted, it was only to transmit them to Congress

for possible adoption. RCRA § 3001(b\K2XC), 42 U.S.C.

§ 6921(bK2\C) (1982). See generally Environmental Defense

Fund v. EPA, 852 F.2d at 1314-15; Environmental Defense

Fund v. EPA, 852 F.2d 1316, 1318-20 (D.C. Cir.1988).

When the EPA conducted the regulatory determinations

required by the two amendments, it decided (with an ex-

ception) that both types of wastes should be regulated only

as Subtitle D nonhazardous solid wastes. See 53 Fed.Reg.

25,446 (July 6, 1988) (Bentsen waste determination); cf.

Alaska Center for the Environment v. Reilly, No. 88-1715,

Order (D.C.Cir. Apr. 27, 1989) (dismissing challenge to

Bentsen determination) pet. for reh’g filed June 12, 1989;

Environmental Defense Fund v. EPA, 852 F.2d 1309

(D.C.Cir.1988) (upholding EPA decision regarding extrac-

tion and beneficiation mining wastes); Environmental De-

fense Fund v. EPA, 852 F.2d 1316 (D.C.Cir.1988) (ordering

EPA to come to decision on mining processing wastes);

American Mining Congress v. EPA, No. 88-1835, et al.

(D.C.Cir. filed Nov. 29, 1988) (challenge to later EPA de-

cision to list certain processing wastes as hazardous

wastes).

The issue is whether these wastes are reached by

§ 3004(u) of RCRA, the source of EPA’s authority to re-

quire corrective action:

Standards promulgated under this section [RCRA

§ 3004, 42 U.S.C. § 6924] shall require, and a permit

issued after November 8, 1984, by the Administrator

or a State shall require, corrective action for all re-

leases of hazardous waste or constituents from any

solid waste management unit at a treatment, storage,

or disposal facility seeking a permit under this sub-

ee ee ern ee Eee ee el ee ot ee

chapter, regardless of the time at which waste was

placed in such unit....

RCRA § 3004(u), 42 U.S.C. § 6924(u) (Supp. IV 1986) (em-

phasis added).

The Final Second Codification Rule allows the agency

to require sampling and study to determine the risk of

release of hazardous wastes or constituents, see 52

Fed.Reg. 45,788, 45,799, codified at 40 CFR § 270.14(d),

and to require appropriate corrective action, see id. at

§ 264.101. As § 3004(u) states, any solid waste manage-

ment unit (“SWMU’’) at a facility seeking a permit is

susceptible to these requirements, and the preamble to the

Final Second Codification Rule specifies that such units

are not exempt merely because Bevill-Bentsen wastes are

the only possible source of hazardous constituents. The

preamble states explicitly that EPA intends to exercise its

§ 3004(u) authority ‘‘on a case-by-case basis, writing permit

conditions to require monitoring (or modeling) for any me-

dia [sic] where it finds that a SWMU is likely to release

hazardous constituents that pose a threat to human health

and the environment.” 52 Fed.Reg. at 45,789/2. In con-

firming that this coverage encompasses Bevill-Bentsen

wastes, the EPA stressed that § 3004(u) called for clean-

up not only of hazardous ‘‘wastes’’ but also of hazardous

“constituents.” Id. at 45,790/1. It noted that the com-

menter asserting exemption of Bevill-Bentsen wastes had

conceded that the section covered nonhazardous solid

wastes, id.; counsel confirmed the concession at oral ar-

gument. Thus the issue boils down to whether the ex-

empting language is powerful enough to afford Bevill-

Bentsen wastes a uniquely privileged position, free from

corrective action requirements imposed on all other non-

hazardous solid wastes generally regulated exclusively un-

der Subtitle D.

It is quite true that the Bevill-Bentsen amendments al-

low regulation of the affected wastes only ‘‘in lieu of”

Subtitle C. See RCRA §3001(bX3XA), 42 U.S.C.

§ 6921(bX3KA) (1982) (Bevill); RCRA § 3001(bX2,A), 42

U.S.C. § 6921(bX2\A) (1982) (Bentsen). As § 3004(u) is the

sole basis for EPA’s corrective action requirement, and is

indisputably located within Subtitle C, the linguistic case

for exemption from corrective action is quite powerful.

We must at the outset reject one device by which the

EPA proposes to defeat this claim. It suggests that be-

cause the HSWA added § 3000(u) only in 1984, that section

logically falls outside the Bevill-Bentsen amendments’ cross-

references to Subtitle C. The argument seems palpably

defective. If Congress exempts wastes from Subtitle C

regulation, and then adds to Subtitle C, the normal un-

derstanding would be that the exemption covers the ad-

ditions.

We note, however, that the language of § 3004(u), re-

quiring “‘corrective action for all releases of hazardous

waste or constituents from any solid waste management

unit at a... facility seeking a permit,” sweeps far more

broadly than the rest of Subtitle C, with its focus on

hazardous waste. Moreover, the House Report explaining

§ 3004(u) not only focuses entirely on release of hazardous

constituents, see H.R. Rep. 98-198, 98th Cong., 2d Sess.,

Pt. I, at 60, reprinted in 1984 U.S. Code Cong. & Ad-

min.News 5576, 5619, but explains that the section calls

on the Administrator ‘‘to examine all units at the facility

from which hazardous constituents might migrate, irre-

spective of whether the units were intended for the man-

agement of solid and/or hazardous wastes,’’ id. Section

3004(u)’s focus on possible release of hazardous constitu-

ents, regardless of the absence of hazardous waste, sug-

gests to us that it in no way implicates the concern that

gave rise to Bevill-Bentsen: the disruption that would fol-

low if the wastes were improvidently classified as hazard-

ous.

ee ee ee ee ee

Both the structure of the regulatory scheme and the

legislative history of the Bevill-Bentsen amendments in-

dicate that it was regulation of those wastes as hazardous

wastes that Congress sought to restrict. The amendments

establish a special process by which the EPA is to ascer-

tain, for sure, whether the wastes are truly hazardous. As

all nonhazardous wastes are subject to corrective action

requirements under § 3004(u), the study seems logically

irrelevant to their imposition on Bevill-Bentsen wastes.

Moreover, the EPA and the joint petitioners agree that

the amendments arose out of the apparent imminence of

the wastes’ being regulated as subtitle C hazardous wastes

in EPA’s May 1980 Phase I Interim Status Standards, 45

Fed.Reg. 33,084. See Joint Brief of Petitioners and In-

tervenors at 26 n. 21; Brief for Respondent at 10; see also

45 Fed.Reg. at 33,089 (EPA statement that 40 CFR

§ 261.4(b) will temporarily exclude Bevill-Bentsen wastes

pending congressional action). Naturally enough, the floor

discussion of the amendments stressed concern over their

regulation has hazardous wastes. Representative Bevill, for

example, explained that he knew of no evidence that the

wastes “ever presented a ‘substantial-hazard to human

health or the environment,’ the statutory standard for reg-

ulation as a hazardous waste.’ 126 Cong.Rec. 3361 (1980).

See also 125 Cong.Rec. 13,242/1 (1979) (remarks of Sen.

Randolph); id. at 13,244/2 (remarks of Sen. Bentsen); id.

at 33,849/2-3 (remarks of Rep. Frost). Although petitioners

call our attention to occasions on which sponsors spoke of

the amendments as generally deferring ‘‘regulation”’ of the

wastes, see 126 Cong.Rec. 3361/1, 3362/1 (1980) (remarks

of Rep. Bevill), these appear amid more precise articula-

tions of the goal as seeking to defer their regulation as

hazardous wastes.

Petitioners’ proposed interpretation of the amendments

and § 3004(u) would lead to bizarre results. Not only would

it make the imposition of corrective action requirements

depend upon the outcome of a logically irrelevant inquiry,

but it would elevate Bevill-Bentsen wastes to a privileged

position above all other nonhazardous solid wastes. Yet

petitioners neither suggest a reason for such an elevation,

nor point to any given by the amendments’ sponsors. We

read the amendments as giving Bevill-Bentsen wastes an

exemption only from regulation as hazardous waste.

Petitioners also point, at least as far as Bevill wastes

are concerned, to RCRA § 3004(x):

If ([Bevill waste] ... is subject to regulation under

this subchapter [Subtitle C], the Administrator is au-

thorized to modify the requirements of subsections (c),

(d), (e), (f), (g), (0), and (u) of this section and section

6925(j) of this title, in the case of landfills or surface

impoundments receiving such solid waste, to take into

account the special characteristics of such wastes, the

practical difficulties associated with implementation of

such requirements, and site-specific characteristics, in-

cluding but not limited to the climate, geology, hy-

drology and soil chemistry at the site, so long as such

modified requirements assure protection of human

health and the environment.

RCRA §3004(x), 42 U.S.C. §6924(x) (Supp. IV 1986).

Petitioners argue that the inclusion of subsection (u) among

the provisions as to which Bevill wastes should receive

special consideration, if they should be subjected to Sub-

title C regulation generally, must reflect an assumption

they will be exempt from § 3004(u) unless EPA makes the

affirmative decisions required under the amendment. But

§ 3004(x)also makes sense under our reading of § 3004(u):

to the extent that EPA imposes special § 3004(u) controls

on hazardous wastes and classifies Bevill wastes as such,

§ 3004(x) allows the agency to adjust the regulations to

the special features of Bevill wastes.

Accordingly, we reject petitioners’ claim that the Bevill-

Bentsen amendments exempt those wastes from the cor-

rective action requirements that § 3004(u) authorizes for

nonhazardous wastes.

II. INCLUSION OF OWNER/OPERATORS SEEKING “‘POST-

CLOSURE” PERMITS OR “PERMITS-BY-RULE”’

Section 3004(u), it will be recalled, authorized corrective

action requirements for units at a ‘‘treatment, storage or

disposal facility seeking a permit under [subchapter C].’”

The next two claims contest the EPA’s interpretation of

what behavior constitutes “seeking a permit’ giving rise

to a duty to take corrective action.

First, petitioner American Iron and Steel Institute and

intervenor American Petroleum Institute challenge the

EPA’s view, expressed in the Final Second Codification

Rule, 52 Fed.Reg. at 45,794/2-95/1, that the corrective

action requirement covers facilities seeking ‘‘post-closure”’

permits as well as those seeking operating permits.

Second, petitioner Inland Steel Company contests the

EPA’s decision that the corrective action requirement ex-

tends to owner/operators of underground injection wells

who receive one type of what are called “‘permits-by-rule’’—

in this case, permits issued under the underground injec-

tion control (‘“‘UIC’’) program of the Safe Drinking Water

Act, 42 U.S.C. §§ 300f-300j-11 (1982 & Supp. IV 1986).

The EPA deems such a permit to be a RCRA permit if

the owner-operator has complied with RCRA regulatory

requirements for wells injecting hazardous waste. See 52

Fed. Reg. at 45,791-92; see also 40 CFR § 270.60(b) (1988).

The EPA’s three-part reply to both these challenges is

(1) that they have already been adjudicated by this court

in United Technologies v. EPA, 821 F.2d 714, 724-25

* Thus units with Bevill-Bentsen wastes are subject to corrective ac-

tion under part I of this decision only if they are at a facility that

requires a subchapter C permit. See First Codification Rule, 50 Fed.Reg.

at 28,712/2.

10a

(D.C.Cir.1987), (2) that this court lacks jurisdiction because

the claims are out of time, and (3) that petitioners are

substantively mistaken. We find the first procedural ob-

jection correct as to the first claim (post-closure permits)

and the second correct as to both. Accordingly we do not

reach the merits.

Issue Preclusion

Petitioners acknowledge that in United Technologies the

American Iron and Steel Institute and the American Pe-

troleum Institute raised both these issues. Moreover, as

the number of pages in their briefs testifies, the claims

were scarcely an incidental part of their challenge to the

First Codification Rule. See Joint Brief of Industry

Petitioners and Intervenors at 37-44 and Joint Reply Brief

of Industry Petitioners and Intervenors at 16-19, United

Technologies v. EPA, 821 F.2d 714 (D.C. Cir.1987) (Nos.

85-1654 et al.). Inland Steel Company, however, was not

a party to that suit. Thus, the doctrine of issue preclusion

plainly cannot bar its claim here—the permit-by-rule con-

tention.

Our opinion in United Technologies makes only two ref-

erences that could relate to either issue, but the outcome

of the decision makes clear the court rejected both con-

tentions. One possible reference came at the start of the

opinion, where we stated that

[b]ased on our careful review of the Final Rule, and

the arguments advanced by the parties, we conclude

that the regulations promulgated by the EPA are, for

the most part, reasonable and consistent with the 1984

Amendments. There is one aspect of the Final Rule,

however, that is inconsistent with the plain meaning

of the 1984 Amendments.

821 F.2d at 716 (italics in original). The ‘‘one aspect’’

concerned a matter unrelated to the two issues here. See

821 F.2d at 723-24.

lla

The second, and unambiguous, reference to the permit

issues came when we summarized our opinion as follows:

“The various petitioners have raised a host of objections

to the EPA’s Final Rule. For the most part, we find these

objections to be without merit.”” Jd. at 725. While the

comment was brief, the outcome of the case—denial of all

relief except as to a clearly unrelated issue—necessarily

constituted a rejection of the claims as to both post-closure

permits and permits by rule. See Restatement (Second) of

Judgments § 27 (1982) (“fwJhen an issue of ... law is

actually litigated and determined ... and the determina-

tion is essential to the judgment, the determination is con-

clusive in a subsequent action between the parties’). Even

in the absence of any opinion a judgment bars relitigation

of an issue necessary to the judgment, see National Clas-

sification Committee v. United States, 765 F.2d 164, 171

(D.C.Cir.1985), so it is plain that the adjudicator’s silence

on the issue is relevant only insofar as it may tend to

obscure whether the issue was truly litigated. Thus the

American Iron and Steel Institute and the American Pe-

troleum Institute have had their day in court on both

issues.

Subject Matter Jurisdiction

Our decision in United Technologies does not preclude

Inland Steel’s petition regarding permits by rule, however,

as Inland was not a party to the earlier proceeding nor

in privity with any party. But Inland, and indeed the other

claimants here, encounter a further obstacle, RCRA

§ 7006(aX1)’s requirement that petitions for review of the

EPA’s regulations be filed within 90 days. 42 U.S.C.

§ 6976(aX1) (1982).

The EPA first set out its understanding of the correc-

tive action authority in its First Codification Rule, 50

Fed.Reg. 28,702, 28,711/3-12/1 (post-closure permits),

28,715/2 (permits by rule) (July 15, 1985). Thus the time

bar would normally be understood to have closed off any

12a

challenge by October 1985. Petitioners, however, rely on

Ohio v. EPA, 838 F.2d 1325, 1328-29 (D.C.Cir.1988), under

which the time for seeking review starts fresh at repro-

mulgation if an agency reopens the issue by holding out

the unchanged section as a proposed regulation, offering

an explanation for its language, soliciting comments on its

substance, and responding to the comments in promulgat-

ing the regulation in its final form. Jd. at 1328; see also

Colorado Interstate Gas Co. v. FERC, 850 F.2d 769, 772

(D.C.Cir.1988) (formal reconsideration by agency); Associ-

ation of American Railroads v. ICC, 846 F.2d 1465, 1473

(D.C.Cir.1988) (agency announcement that it sought to har-

monize inconsistent regulations).

Here the EPA mentioned its treatment of post-closure

permits and permits by rule in the preamble of its Pro-

posed Second Codification Rule, 51 Fed.Reg. at 10,715/3-

16/1 (post-closure permits), 10,714/1-3 (UIC wells). But no-

where in these pages does the EPA reopen the question

of whether permits by rule or post-closure permits should

be treated as RCRA permits. Instead, the EPA asked for

comments on the specific conditions that it proposed at-

taching to RCRA permits by rule, notably information-

gathering that the agency sought to compel permittees to

conduct, see id. at 10,741/3, and addressed refinements

within the coverage of post-closure permits, see id. at

10,715/3-16/1. The EPA discussion lacked any sustained

attempt to reiterate the reasons it had offered less than

two years earlier. In the Final Second Codification Rule

the EPA noted briefly that it had received comments sug-

gesting that permits for § 3004(u); it responded by stating

that it “‘reaffirmied]’’ its previous position and at most

briefly reiterated its prior reasoning. See 52 Fed. Reg. at

45,792/3-93/1. As to post-closure permits, EPA’s response

focused on other issues. See id. at 45,794/2.

The ‘‘reopening’’ rule of Ohio v. EPA is not a license

for bootstrap procedures by which petitioners can comment

on matters other than those actually at issue, goad an

13a

agency into a reply, and then sue on the grounds that the

agency had re-opened the issue. To so read Ohio v. EPA

would undermine congressional efforts to secure prompt

and final review of agency decisions. We conclude there-

fore that we are without jurisdiction to hear either claim.

II]. THE NATURE OF ‘“‘CLOSURE”’

From 1983 until adoption of the Final Second Codifi-

cation Rule, the EPA’s formal statement of the scope of

the RCRA permit requirement read as follows:

Scope of the RCRA Permit Requirement. RCRA re-

quires a permit for the ‘treatment,’ “‘storage,’’ or

“disposal” of any “hazardous waste’’ as identified or

listed in 40 CFR Part 261.... Owners and operators

of hazardous waste management units must have per-

mits during the active life (including the closure pe-

riod) of the unit, and for any unit which closes after

January 26, 1983, during any post-closure care period

required under § 264.117 [regulations for post-closure

care and use of property, including 30 years of mon-

itoring] and during any compliance period specified

under § 264.96 [‘‘the number of years equal to the

active life of the waste management area (including

any waste management activity prior to permitting,

and the closure period.)’’], including any extension of

the compliance period under § 264.96(c).

40 CFR § 270.1(c) (1986) (emphasis added), 48 Fed.Reg.

14,228, 14,229 (Apr. 1, 1983), amended, 48 Fed.Reg.

30,113, 30,113 (June 30, 1983). Though the rule makes

closure pivotal, it plainly does not define the term nor

reveal when an owner/operator can be said to have ac-

complished it.

In the Final Second Codification Rule the EPA replaced

the above with language carrying a broader reach:

l4a

Scope of the RCRA Permit Requirement. RCRA re-

quires a permit for the “treatment,” “storage,” and

‘disposal’ of any “hazardous waste’’ as identified or

listed in 40 CFR Part 261.... Owners and operators

of hazardous waste management units must have per-

mits during the active life (including the closure pe-

riod) of the unit. Owners or operators of surface

impoundments, landfills, land treatment units, and

waste pile units that received wastes after July 26,

1982, or [1] that certified closure (according to

§ 265.115) after January 26, 1983, must have post-

closure permits, [2] unless they demonstrate closure by

removal as provided under § 270.1(c5) and (6). If a

post-closure permit is required, the permit must ad-

dress applicable Part 264 Groundwater Monitoring,

Unsaturated Zone Monitoring, Corrective Action, and

Post-closure Care Requirements of this chapter. ...

40 CFR § 270.1(c) (1988), 52 Fed.Reg. at 45,798 (emphasis

added).

We now consider two sets of objections to the new

language. One regards the first emphasized passage, which

exempts certain owner/operators only if they certified clo-

sure by January 26, 1983. The other regards the second

emphasized passage, which (through a series of cross ref-

erences) has the effect of exempting owner/operators that

“closed by removal’’ (i.e., by extracting the waste and

shipping it elsewhere) only if their removal satisfied the

part 264 standards, which are far more stringent than the

part 265 “interim status’ standards.

A. Closure by certification v. mere cessation of receipt of

waste.

Several petitioners and intervenors (whom we refer to

simply as petitioners) oppose the revision of § 270.1(c) con-

tained in the Final Second Codifu ‘tion Rule on the

grounds that it was adopted in final form without proper

notice and comment, that the EPA lacked statutory au-

l5a

thority to promulgate the amendment, and that it was

arbitrary and capricious. At issue, in substance, is the

EPA’s imposition of post-closure permitting requirements

on facilities that ceased receiving wastes before July 26,

1982 but failed to certify final closure to the EPA, as set

out in 40 CFR § 265.115, until after January 26, 1983.

We shall call these facilities the ‘‘early cessation-late cert-

ification facilities.” The EPA’s authority to require post-

closure permits from facilities that continued receiving

wastes after the earlier date (‘‘late cessation-late certifi-

cation’’) is not at issue because coverage of late cessation

facilities is explicitly mandated by the HSWA’s addition

of § 3005(i) to RCRA:

Interim status facilities receiving wastes after July

26, 1982.

The standards concerning ground water monitoring,

unsaturated zone monitoring, and corrective action,

which are applicable under section 6924 of this title

[RCRA § 3004] to new landfills, surface impound-

ments, land treatment units, and waste-pile units re-

quired to be permitted under [RCRA § 3005(c)] shall

also apply to any landfill, surface impoundment, land

treatment unit, or waste-pile unit qualifying for the

authorization to operate under [RCRA § 3005(e), re-

garding interim status facilities] which receives haz-

ardous waste after July 26, 1982.

RCRA § 3005(i), 42 U.S.C. § 6925(i) (Supp. IV 1986).

Moreover, the Proposed Second Codification Rules plainly

purported to cover late-cessation facilities, see Proposed

Second Codification Rule, 51 Fed.Reg. 10,706, 10,715/3

(Mar. 28, 1986), so that as to them there can be no claim

of defective notice.

The dates originate with EPA’s Interim Final Rules for

RCRA. 47 Fed.Reg. 32,274 (July 26, 1982). EPA published

these on July 26, 1982 (which we will sometimes refer to

l6a

as ‘‘the earlier date’’), to take effect on January 26, 1983

(sometimes referred to as “‘the later date’’).

Petitioners’ notice and comment argument arises out of

the indisputable point that the Final Second Codification

Rule’s version of § 270.1(c) differed radically from the lan-

guage of the proposed rule. Although the Proposed Second

Codification Rule expanded the post-closure permit re-

quirement to include facilities that continued to receive

waste after the earlier date (late-cessation facilities), 51

Fed.Reg. 10,706, 10,715 (Mar. 28, 1986), it did not discuss

early cessation-late certification facilities. Indeed language

in the preamble to the Proposed Second Codification Rule

suggested that EPA did not believe that the post-closure

permit requirement applied to any facilities that ceased

receiving waste before the earlier date: it stated that its

change was needed because existing rules “subjected such

units to these requirements only if they received waste

after [the later date].’’ Jd. As we will see, petitioners seek

to hold the EPA to this characterization of the status quo

ante. Among EPA’s several replies is the claim that its

1986 statement about the status quo ante was inaccurate

when made, and that the language of the Final Second

Codification Rule, denying relief to early cessation-late

certification facilities, was no more than explicit confir-

mation of the true status quo ante.

As is doubtless apparent by now, closure is an elastic

concept. A considerable period of time may pass between

when a facility ceases to receive waste and when its man-

agement elects to make a certification of closure, as re-

quired under 40 CFR § 265.115 (1988). See, e.g., Brief of

Petitioners Waste Management of North America, Inc. and

Chemical Waste Management, Inc. at 12 (‘‘several years

frequently pass between the last receipt of waste and cert-

ification of closure’). Evidently a substantial number of

facilities received no waste after the earlier date but did

not certify closure until after the later date.

17a

The heart of EPA’s position (or at least of one of its

positions) is that at some time well before the Proposed

Final Second Codification Rule, it had established, as the

true meaning of the then-existing version of 40 CFR

§ 270.1(c), that late-certification facilities were required to

obtain a post-closure permit regardless of when they had

stopped receiving waste. See Final Second Codification

Rule, 52 Fed. Reg. at 45,794/3-95/1 (Dec. 1, 1987). In the

preamble to the final rule, EPA therefore noted its agree-

ment with commentators who viewed the Proposed Second

Codification Rule as having the unintended effect of re-

laxing the post-closure permit requirement for early ces-

sation-late certification facilities. See id. Thus it explained

the final rule’s explicit coverage of early cessation-late

certification facilities as a mere correction of an inad-

vertently created ‘“‘loophole,”’ and observed that ‘“‘the term

‘closure’ in this context has been clarified to mean certi-

fication of closure according to § 265.115.” Id. at 45,795/

1. If indeed 40 CFR § 270.1(c) had by 1986 acquired the

meaning that EPA asserts, then, despite the blunder of

the proposed rule, a simple retreat to the status quo ante

can properly be viewed as a “logical outgrowth” of the

proposed rule. See NRDC v. Thomas, 838 F.2d 1224, 1242-

43 (D.C.Cir.1988). One logical outgrowth of a proposal is

surely, as EPA says, to refrain from taking the proposed

step.

We will spare the reader a review of all the regulatory

product that, in EPA’s view, established the notion that

closure for these purposed meant certification. In fact, at

least to some members of the panel, utterances claimed

by EPA to assert that meaning actually assert or imply

the opposite. Nonetheless, assuming the worst of the pre-

1985 materials, we believe that by 1985, in the First Cod-

ification Rule, EPA did in fact formally adopt the view

it now espouses.

As part of its discussion of the exact issue in question

here—the scope of the post-closure permit requirements—

18a

the EPA stated that “facilities which closed before Jan-

uary 26, 1983, are not required to obtain post-closure per-

mits.” 50 Fed. Reg. at 28,712. In a footnote to that

sentence, the EPA provided what was undoubtedly its cle-

arest definition of closure before the 1987 ‘“‘clarification”’:

It should be noted that ‘closure’ in this context

does not mean simply ceasing to place waste in a

unit. Closure, as a regulatory concept under these

rules, is a proceeding during which EPA determines,

after public review, that the facility has an adequate

closure plan and that the facility implements that plan.

Thus, closure is not complete under the hazardous

waste regulations until a certification of closure has

been given under 40 C.F.R. § 265.115.

Id. at 28,712 n. 14.

A single footnote tucked away in the Federal Register

in minuscule type is far from the best means of giving

notice of an important change in policy. Compare National

Air Transportation Ass’n v. McArtor, 866 F.2d 483, 485

(D.C.Cir.1989) (holding that preamble with misleading bold-

faced headings and summary paragraphs could not provide

constructive notice even though a “thorough and alert

reader” could have deduced its true effects), with Williston

Basin Interstate Pipeline Co. v. FERC, 874 F.2d 834, 836-

37 (D.C.Cir.1989) (holding surcharge exemption contained

in footnote to attachment to pipeline’s effective tariff is

covered by filed rate doctrine). Moreover, as the subjection

of early cessation-late certification facilities to corrective

action requirements cannot rest on the HSWA (§ 3005(i)

addresses only late cessation facilities), petitioners argue

that the footnote did not belong in purported implemen-

tations of HSWA. ‘Petitioners had no reason to look in

a HSWA codification rule for a regulatory change not

based on HSWA.” Reply Brief of Petitioners and Inter-

venors at 22. Indeed, the EPA failed to cite any statutory

or even prior regulatory authority in the footnote.

19a

We are not persuaded by the claim of inadequate notice

of the 1985 clarification. Apart from the First Codification

Rule's focus on the HSWA, petitioners suggest nothing in

its captions, headnotes or other features that would, as in

National Air Transport Ass’n, have erroneously caused an

affected party to put the material down before reaching

the critical passage. And the headnotes’ attention to the

HSWA does not appear deceptive in the present context.

The HSWA was simply a set of amendments of RCRA:

anyone subject to RCRA knew that, as a general matter,

any regulations implementing HSWA necessarily carried

serious risks for him.

Accordingly we accept EPA’s contention that the ex-

plicit definition of closure in its 1987 version of 40 CFR

270.1(c) was indeed no more than a formal restatement

of what it had established no later than 1985, and thus

may be viewed as a logical outgrowth of the proposal to

amend § 270. l(c).

The argument that § 270.1(c) exceeded EPA’s statutory

authority rests essentially on one point: when the EPA,

in the Final Second Codification Rule, 52 Fed.Reg. at

45,794-95, confirmed its 1985 position that closure meant

certification, its only assertion of statutory authority re-

mained the proposed rule’s mention of § 3005(i), see 51

Fed.Reg. at 10,715/3, a reference that was clearly of no

use as it covered only late-cessation facilities.

Although EPA did not cite specific statutes for the post-

closure periait requirement, it did (at 52 Fed.Reg at 45,794/

2) cite passages of the preamble to its Interim Final Rules,

47 Fed.Reg. 32,274, 32,291/3-92/1, 32,336/1 (July 26, 1982),

at which it had rested its post-closure permit requirements

squarely upon RCRA § 3004, 42 U.S.C. § 6924 (renum-

bered RCRA § 3004(a), 42 U.S.C. § 6924(a), after the adop-

tion of the HSWA). This section directs the agency to

establish standards for treatment, storage or disposal of

hazardous waste. In the preamble to the 1982 rules, it had

20a

argued that permits were no more than a devise for tai-

loring the § 3004 standards to the precise specific condi-

tions. Thus EPA may fairly be said to have explicitly,

though indirectly, rested the coverage of late cessation-

late certification units on 42 U.S.C. § 6924(a) (Supp. IV

1986).

Finally, petitioners contend that the amendment of 40

CFR § 270.1(c) was arbitrary and capricious because EPA

failed to justify “its abrupt reversal’’ of the position that

‘‘closure’’ was achieved by a facility’s ceasing to receive

wastes. See Joint Brief of Petitioners and Intervenors at

65-68. Naturally this falls, given our view of the regula-

tion’s history.

We therefore reject the petitioners’ challenge to EPA’s

application of the post-closure permit requirement to fa-

cilities that ceased receiving waste before the earlier date

but certified closure after the late date.

B. “Closure by Removal”’

Certain facilities quite lawfully executed ‘‘closure by re-

moval”’ (i.e., by extraction of the hazardous wastes) under

“interim status’ regulations applicable in 1980-87. Under

the current regulations, EPA rejects this form of closure

as a basis for exemption from corrective action require-

ments, and accepts closure by removal as a basis for ex-

emption only if it satisfies certain more stringent removal

standards. Several petitioners and intervenors, again sim-

ply referred to as petitioners, attack this decision.

Under RCRA as it existed before the HSWA of 1984,

certain facilities that were already in existence when the

interim RCRA standards took effect on November 19,

1980, and which complied with certain other requirements,

were eligible for “interim status’”’ upon applying for a per-

mit—i.e., could continue to operate, just as if they had a

permit. RCRA § 3005(e), 42 U.S.C. § 6925(e) (1982). HSWA

expanded the scope of interim status to reach facilities

2la

that were subject to RCRA only because of HSWA itself.

See 42 U.S.C. § 6925(e\1) (Supp. IV 1986).

The interim RCRA regulations in effect between 1980

and 1987 imposed no post-closure care responsibilities on

interim status facilities that closed by removal (‘clean clo-

sure’) as provided in the Part 265 interim standards. See,

e.g., 40 CFR § 265.228(b) (1986) (exempting surface im-

poundments from post-closure requirements if none of re-

maining wastes are ‘hazardous waste’’). Complying

facilities were free to leave the RCRA regulatory system

and to use or convey the property for any other purpose.

See § 265.119 (1988) (provisions designed to alert pur-

chasers to history as waste facility). Facilities closing un-

der this program were required to certify final closure

according to § 265.115. See 40 CFR § 265.112(a) (1988);

see also 40 CFR § 265.112(a) (1988); see also 40 CFR at

note foll. § 265.120 (1986) (giving former version of

§ 265.112(a)).

In the Proposed Second Codification Rule EPA proposed

to amend § 270.1(c) to impose corrective action requirements

on facilities that received waste after July 26, 1982 and

closed by removal under interim standards, unless they could

show that they had not only removed all hazardous waste

(thus satisfying the interim standard), but also removed all

hazardous constituents (as required by part 264, the stand-

ard applicable to permitted facilities). 51 Fed.Reg. at 10,716/

1-2, 10,722. EPA rested the change on the language of

§ 3005(i), quoted in full at p. 399, supra, which provides that

whatever corrective action requirements apply to fully per-

mitted facilities should also reach interim status facilities

that received waste after July 26, 1982. Essentially it argued

that Congress’s concerns would not be met unless removal

encompassed hazardous constituents as well as hazardous

wastes. (As we have seen, the former may be present with-

out the latter.) The Final Second Codification Rule also

adopted this view. See 52 Fed.Reg. at 45,798-99.

22a

Petitioners complain that § 3005(i) does not give the

EPA the authority to impose such a retroactive post-clo-

sure burden on facilities that lawfully closed under the

interim status provisions. The argument rests on the en-

tirely accurate point that § 3005(i) does not mention ‘‘clo-

sure or permits.’’ Accurate, but inconsequential. Section

3005(i) provides that the new corrective action require-

ments ‘“‘shall also apply’’ to any unit “‘{1] qualifying for the

authorization to operate under [the interim status provi-

sions] [2] which receives hazardous waste after July 26,

1982.” We do not understand petitioners to assert that

the units in dispute fail to meet both those criteria. It is

obviously true that for a unit that closed by removal under

the interim standards in 1983, for example, ‘‘qualifying’’

for interim status on the date of HSWA’s enactment in

1984 would (apart from this provision) have appeared to

be no more than an irrelevance of ancient history. But

unless Congress assumed that closure would always be

interminable, it must have supposed that such units would

be retroactively swept under the stricter requirements. As

for “permits,” the petitioners do not here contest the gen-

eral proposition that post-closure permitting requirements

are a reasonable method for implementing the substantive

burdens Congress imposed.

Petitioners argue that the EPA’s reading of § 3005(i)

drastically disrupts the status quo. Once a unit is closed

by removal under interim status it becomes eligible for

sale or new construction. Subjection to the corrective ac-

tion duties (or attaining exemption by compliance with the

more stringent closure by removal standards) may be es-

pecially burdensome for such units and may upset expec-

tations derived from completing closure by removal under

the interim standards. Petitioners suggest accordingly that

it would be more reasonable to construe the statute to

exempt them. Assuming that finding such an implied ex-

emption would be permissible, however, we certainly can-

23a

not say that EPA’s more literal reading is impermissible.

Accordingly, we must affirm.

IV. AUTHORITY TO ISSUE POST-CLOSURE PERMITS IN STATES

THAT HAVE § 3006(b) AUTHORIZATION

RCRA allows states to apply for authorization to ad-

minister their own hazardous waste programs in lieu of

the EPA’s. EPA must approve the state’s request if the

state’s program is equivalent to and consistent with the

federal one and if it provides adequate enforcement. See

RCRA § 3006(b), 42 U.S.C. §6926(b) (Supp. IV 1986).

EPA’s HSWA powers, however, do not automatically de-

volve to states with § 3006(b) authorization. Instead, the

EPA must retain the responsibility for administering and

enforcing HSWA requirements until states—even those

with § 3006(b) approval—can demonstrate that they are

prepared to undertake the specific tasks HSWA mandates:

Any requirement or prohibition which is applicable

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 in-

terim or finally authorized State program on the same

date as such requirement takes effect in other States.

The Administrator shall carry out such requirement

[sic] directly in each such State unless the State pro-

gram is finally authorized (or is granted interim au-

thorization as provided in paragraph (2)) with respect

to such requirement.

RCRA § 3006(g\1), 42 U.S.C. § 6926(g\1) (Supp. IV 1986).

As a result, in a state that enjoys § 3006(b) authorization,

the first step in determining whether relevant permitting

and enforcement is to be conducted by federal or state

regulators is to inquire whether the EPA’s authority to

VX —————————

24a

issue a given requirement rests on the 1984 HSWA or on

other, pre-HSWA authority.

Earlier we upheld the EPA’s statutory authority to re-

quire early cessation-late certification facilities to seek

RCRA post-closure permits. See § III.A above. Petitioners

Waste Management of North America, Inc. and Chemical

Waste Management, Inc., though joining in the unsuc-

cessful contention on that issue, request in the alternative

that we declare that the agency’s sole authority for per-

mits required by the Second Codification Rule’ is the

HSWA. Petitioners here appear most alarmed by a pas-

sage in the preamble that concludes:

In many cases EPA will be able to defer to the states

in their efforts to implement their programs, rather

than take separate actions under Federal authority.

52 Fed.Reg. 45,788, 45,796.

We find the issue as posed extremely ambiguous. There

appears to be no dispute between the parties that sub-

stantive corrective action requirements resting on the

HSWA, listed by EPA at 40 CFR § 270.1(j) (1988), must

be enforced exclusively by the EPA in the absence of

specific authorization under § 3006(g). Cf. 40 CFR § 271.24

(1988) (procedure for interim § 3006(g) authorization). In-

sofar as the preamble passage cited by petitioners may

suggest the contrary, the EPA repudiates it as ‘“‘a single

sentence ... taken out of context.’”’ EPA Brief at 71. We

take this repudiation as authoritative and binding. We can-

not be in the position of “‘reviewing’”’ preamble language

whose meaning is obscure to begin with and which the

agency neither explicates nor defends when challenged.

Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87

S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967) (ripeness doctrine

is intended to protect the courts ‘‘from entangling them-

selves in abstract disagreements over administrative pol-

icies’’).

25a

Apart from the dispute over preamble chaff, we take

petitioners to argue that because the application of a post-

closure permit requirement to early cessation-late certifi-

cation facilities appeared (as they see it) only in the Final

Second Codification Rule, it must rest on HSWA. In fact,

we have found that the EPA made that ruling in the First

Codyication Rule, in the much disputed footnote. That

presumably leaves their claim the same, as the latter was

also promulgated primarily to implement HSWA.

On its face, however, this aspect of petitioners’ claim

is puzzling. All agree that the requirement of a post-closure

permit for such facilities cannot rest on HSWA itself, for

§ 3005(i) speaks only to late cessation facilities. See III.A

above. Thus, insofar as petitioners’ claim relates to sub-

stantive requirements that do not derive from HSWA, we

are puzzled as to the basis for supposing that such non-

HSWA requirements would be covered by § 3006(g)’s in-

sistence on federal enforcement. However, once we put

aside the now repudiated preamble passage, it seems plain

that the rules here under review said nothing on this ju-

risdictional issue; accordingly we do not address it. See

Abbott Laboratories, 387 U.S. at 148-49.

In summary, we affirm the EPA on most, but not all,

points. The EPA may impose HSWA corrective action re-

quirements on Bevill-Bentsen wastes even though such

wastes are exempt from regulation as hazardous waste

under RCRA Subtitle C. We reject as untimely petitioners’

claims that § 3004(u) does not encompass post-closure per-

mits or permits by rule. And we uphold the EPA’s amend-

ment of the RCRA permit scope requirement, 40 CFR

§ 270.1(c), insofar as it requires post-closure permits from

facilities that closed before July 26, 1982 but failed to

certify closure before January 26, 1983 and insofar as it

embraces facilities that closed by removal under part 265

interim status rules but received hazardous waste after

26a

July 25, 1982. We can identify no ripe issue relating to

matters of federal as against state permitting authority.

So ordered.

27a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1989

No. 88-1155

American Iron and Steel Institute

Petitioner

U. S. Environmental Protection Agency

Respondent

American Petroleum Institute, Edison

Electric Institute, et al.,

Intervenor

and Consolidated Cases

BEFORE: Mikva and Williams, Circuit Judges, and Will,

Senior District Judge, U. S. District Court for

the Northern District of Illinois

ORDER

Upon consideration of the petitions for rehearing of

American Mining Congress, et al. and PPG Industries,

Inc., et al., it is

ORDERED, by the Court, that the petitions are denied.

Per Curiam

FOR THE COURT:

CONSTANCE L. DUPRE, CLERK

BY: /s/ Robert A. Bonner

Robert A. Bonner

Deputy Clerk

November 27, 1989

28a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1989

No. 88-1155

American Iron and Steel Institute

Petitioner

U. S. Environmental Protection Agency

Respondent

American Petroleum Institute, Edison

Electric Institute, et al.,

Intervenor

and Consolidated Cases

BEFORE: Wald, Chief Judge; Mikva, Edwards, Ruth B.

Ginsburg, Silberman, Buckley, Williams, D. H.

Ginsburg and Sentelle, Circuit Judges

ORDER

The Suggestions For Rehearing En Banc of American

Mining Congress, et al. and PPG Industries, Inc., et al.,

have been circulated to the full Court. No member of the

Court requested the taking of a vote thereon. Upon con-

sideration of the foregoing it is

ORDERED, by the Court en banc, that the suggestions

are denied.

29a

Per Curiam

FOR THE COURT:

CONSTANCE L. DUPRE, CLERK

BY: /s/ Robert A. Bonner

Robert A. Bonner

Deputy Clerk

November 27, 1989

30a

APPENDIX B

RESOURCE CONSERVATION AND RECOVERY ACT

Sec. 3001 IDENTIFICATION AND LISTING OF HAZARD-

OUS WASTE

(a) CRITERIA FOR IDENTIFICATION OR LISTING.—

Not later than eighteen months after the date of the

enactment of this Act, the Administrator shall, after notice

and opportunity for public hearing, and after consultation

with appropriate Federal and State agencies, develop and

promulgate criteria for identifying the characteristics of

hazardous waste, and for listing hazardous waste, which

should be subject to the provisions of this subtitle, taking

into account toxicity, persistence, and degradability in na-

ture, 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.

(b) IDENTIFICATION AND LISTING.—

(1) Not later than eighteen months after the date

of enactment of this section, and after notice and

opportunity for public hearing, the Administrator shall

promulgate regulations identifying the characteristics

of hazardous waste, and listing particular hazardous

wastes (within the meaning of section 1004(5), which

shall be subject to the provisions of this subtitle. Such

regulations shall be based on the criteria promulgated

under subsection (a) and shall be revised from time

to time thereafter as may be appropriate. The Ad-

ministrator, 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 pro-

visions of this subtitle solely because of the presence

in such wastes of certain constituents (such as iden-

3la

tified carciongens, mutagens, or teratagens) at levels

in excess of levels which endangers health.

(3A) Notwithstanding the provisions of paragraph (1)

of this subsection, each waste listed below shall, ex-

cept as provided in subparagraph (B) of this para-

graph, be subject only to regulation under other

applicable provisions of Federal or State law in lieu

of this subtitle until at least six months after the date

of submission of the applicable study required to be

conducted under subsection (f), (n), (0), or (p) of sec-

tion 8002 of this Act and after promulgation of reg-

ulations in accordance with subparagraph (C) of this

paragraph:

(i) Fly ash waste, bottom ash waste, slag waste,

and flue gas emission control waste generated pri-

marily from the combustion of coal or other fossil

fuels.

(ii) Solid waste from the extraction, beneficiation,

and processing of ores and minerals, including phos-

phate rock and overburden from the mining of ura-

nium ore.

(iii) Cement kiln dust waste.

(B\Xi) Owners and operators of disposal sites for

wastes listed in subparagraph (A) may be required by

the Administrator, through regulations prescribed un-

der authority of section 2002 of this Act—

(I) as to disposal sites for such wastes which

are to be closed, to identify the locations of such

sites through surveying, platting, or other meas-

ures, together with recordation of such infor-

mation on the public record, to assure that the

locations where such wastes are disposed of are

known and can be located in the future, and

32a

(II) to provide chemical and physical analysis

and composition of such wastes, based on avail-

able information, to be placed on the public re-

cord.

submission of the applicable study required to be con-

ducted under subsection (f), (n), (0), or (p), of section

8002 of this Act, the Administrator shall, after public

hearings and opportunity for comment, either deter-

mine to promulgate regulations under this subtitle for

each waste listed in subparagraph (A) of this para-

graph or determine that such regulations are unwar-

ranted. The Administrator shall publish his

determination, which shall be based on information

developed or accumulated pursuant to such study,

public hearings, and comment, in the Federal Register

accompanied by an explanation and justification of the

reasons for it.

Sec. 3004 STANDARDS APPLICABLE TO OWNERS AND

OPERATORS OF HAZARDOUS WASTE TREAT-

MENT, STORAGE, AND DISPOSAL FACILI-

TIES

(u) CONTINUING RELEASES AT PERMITTED FACILI-

TIES.—

Standards promulgated under this section shall require,

33a

and a permit issued after the date of enactment of the

Hazardous and Solid Waste Amendments of 1984 by the

Administrator or a State shall require, corrective action

for all releases of hazardous waste or constituents from

any solid waste management unit at a treatment, storage,

or disposal facility seeking a permit under this subtitle,

regardless of the time at which waste was placed in such

unit. Permits issued under section 3005 shall contain sched-

ules of compliance for such corrective action (where such

corrective action cannot be completed prior to issuance of

the permit) and assurances of financial responsibility for

completing such corrective action.

(x) MINING AND OTHER SPECIAL WASTES.—

If (1) solid waste from the extraction, beneficiation or

processing of ores and minerals, including phosphate rock

and overburden from the mining of uranium, (2) fly ash

waste, bottom ash waste, slag waste, and flue gas emission

control waste generated primarily from the combustion of

coal or other fossil fuels, or (3) cement kiln dust waste, is

subject to regulation under this subtitle, the Administrator

is authorized to modify the requirements of subsections (c),

(d), (e), (f), (g), (0), and (u) and section 3005{j), in the case

of landfills or surface impoundments receiving such solid

waste, to take into account the special characteristics of

such wastes, the practical difficulties associated with im-

plementation of such requirements, and site-specific char-

acteristics, including but not limited to the climate, geology,

hydrology and soil chemistry at the site, so long as such

modified requirements assure protection of human health

and the environment.

Sec. 8002 SPECIAL STUDIES; PLANS FOR RESEARCH,

DEVELOPMENT, AND DEMONSTRATIONS

(f) MINING WASTE

The Administrator, in consultation with the Secretary

of the Interior, shall conduct a detailed and comprehensive

34a

study on the adverse effects of solid wastes from active

and abandoned surface and underground mines on the en-

vironment, including, but not limited to, the effects of such

wastes on humans, water, air, health, welfare, and natural

resources, and on the adequacy of means and measures

currently employed by the mining industry, Government

agencies, and others to dispose of and utilize such solid

wastes and to prevent or substantially mitigate such ad-

verse effects. Such study shall include an analysis of—

(1) the sources and volume of discarded material

generated per year from mining;

(2) present disposal practices;

(3) potential dangers to human health and the en-

vironment from surface runoff of leachate and air

pollution by dust;

(4) alternatives to current disposal methods;

(5) the cost of those alternatives in terms of the

impact on mine product costs; and

(6) potential for use of discarded material as a sec-

ondary source of the mine products.

In furtherance of this study, the Administrator shall, as

he deems appropriate, review studies and other actions of

other Federal agencies concerning such wastes with a view

toward avoiding duplication of effort and the need to ex-

pedite such study. Not later than thirty-six months after

October 21, 1980, the Administrator shall publish a report

of such study and shall include appropriate findings and

recommendations for Federal and non-Federal actions con-

cerning such effects. Such report shall be submitted to the

Committee on Environment and Public Works of the

35a

United States Senate and the Committee on Energy and

Commerce of the United States House of Representatives.

> = *

(n) MATERIALS GENERATED FROM THE COMBUSTION

OF COAL AND OTHER FOSSIL FUELS

The Administator shall conduct a detailed and compre-

hensive study and submit a report on the adverse effects

on human health and the environment, if any, of the dis-

posal and utilization of fly ash waste, bottom ash waste,

slag waste, flue gas emission control waste, and other

byproduct materials generated primarily from the com-

bustion of coal or other fossil fuels. Such study shall in-

clude an analysis of—

(1) the source and volumes of such material gen-

erated per year; .

(2) present disposal and utilization practices;

(3) potential danger, if any, to human health and

the environment from the disposal and reuse of such

materials;

(4) documented cases in which danger to human

health or the environment from surface runoff or

leachate has been proved;

(5) alternatives to current disposal methods;

(6) the costs of such alternatives;

(7) the impact of those alternatives on the use of

coal and other natural resources; and

(8) the current and potential utilization of such ma-

terials.

In furtherance of this study, the Administrator shall, as

he deems appropriate, review studies and other actions of

36a

other Federal and State agencies concerning such material

and invite participation by other concerned parties, in-

cluding industry and other Federal and State agencies,

with a view toward avoiding duplication of effort. The

Administrator shall publish a report on such study, which

shall include appropriate findings, not later than twenty-

four months after October 21, 1980. Such study and find-

ings shall be submitted to the Committee on Environment

and Public Works of the United States Senate and the

Committee on Energy and Commerce of the United States

House of Representatives.

(0) CEMENT KILN DUST WASTE

The Administrator shall conduct a detailed and compre-

hensive study of the adverse effects on human health and

the environment, if any, of the disposal of cement kiln

dust waste. Such study shall include analysis of—

(1) the source and volumes of such materials gen-

erated per year;

(2) present disposal practices;

(3) potential danger, if any, to human health and

the environment from the disposal of such materials;

(4) documented cases in which danger to human

health or the environment has been proved;

(5) alternatives to current disposal methods;

(6) the costs of such alternatives;

(7) the impact of those alternatives on the use of

natural resources; and

(8) the current and potential utilization of such ma-

terials.

In furtherance of this study, the Administrator shall, as

he deems appropriate, review studies and other actions of

other Federal and State agencies concerning such waste or

37a

materials and invite participation by other concerned par-

ties, including industry and other Federal and State agen-

cies, with a view toward avoiding duplication of effort.

The Administrator shall publish a report of such study,

which shall include appropriate findings, not later than

thirty-six months after October 21, 1980. Such report shall

be submitted to the Committee on Environment and Public

Works of the United States Senate and the Committee on

Energy and Commerce of the United States House of Rep-

resentatives.

(p) MATERIALS GENERATED FROM THE EXTRAC-

TION, BENEFICIATION, AND PROCESSING OF ORES

AND MINERALS, INCLUDING PHOSPHATE ROCK

AND OVERBURDEN FROM URANIUM MINING

The Administrator shall conduct a detailed and compre-

hensive study on the adverse effects on human health and

the environment, if any, of the disposal and utilization of

solid waste from the extraction, beneficiation, and proc-

essing of ores and minerals, including phosphate rock and

overburden from uranium mining. Such study shall be con-

ducted in conjunction with the study of mining wastes

required by subsection (f) of this section and shall include

an analysis of—

(1) the source and volumes of such materials gen-

erated per year;

(2) present disposal and utilization practices;

Pp po Pp

(3) potential danger, if any, to human health and

the environment from the disposal and reuse of such

materials;

(4) documented cases in which danger to human

health or the environment has been proved;

(5) alternatives to current disposal methods;

(6) the costs of such alternatives;

38a

(7) the impact of those alternatives on the use of

phosphate rock and uranium ore, and other natural

resources; and

(8) the current and potential utilization of such ma-

terials.

In furtherance of this study, the Administrator shall, as

he deems appropriate, review studies and other actions of

other Federal and State agencies concerning such waste

or materials and invite participation by other concerned

parties, including industry and other Federal and State

agencies, with a view toward avoiding duplication of effort.

The Administrator shall publish a report of such study

which shall include appropriate findings, in conjunction with

the publication of the report of the study of mining wastes

required to be conducted under subsection (f) of this sec-

tion. Such report and findings shail be submitted to the

Committee on Environment and Public Works of the

United States Senate and the Committee on Energy and

Commerce of the United States House of Representatives.

39a

APPENDIX C

125 Cong. Rec. 13,244-45 (1979)

Mr. HUDDLESTON. Mr. President, it is my under-

standing that this amendment has been cleared by the

committee on both sides of the aisle.

I rise to offer an amendment to the Solid Waste Dis-

posal Act Amendments of 1979, relating to the regulation

of byproducts produced from the combustion of coal and

other fossil fuels. The Senate is well aware of the interest

of my State in the production and utilization of coal and

the status of Kentucky as a leading producer of this vital

fuel. The present and anticipated shortage of petroleum

products once again has illustrated this Nation’s overre-

liance on the dwindling supply of oil as a major source of

energy, and our corresponding failure to utilize our most

abundant energy source—coal.

Unfortunately, many Government regulatory programs

have the effect of adding to this country’s failure to fully

utilize our coal resources.

- = =

One program which could produce such a result is that

proposed by the Environmental Protection Agency under

the authority of the Solid Waste Disposal Act to regulate

the management and control of hazardous waste from gen-

eration to final disposal. Testimony at the hearings indi-

cated that this regulatory program, crucial for protection

of this Nation’s environmental quality through the control

of truly hazardous wastes, could well, because of its overly

broad implementation, include the overcontrol of materials

such as byproducts of coal and other fossil fuel combus-

tion—fly ash, bottom ash, and flue-gas emission control

waste—which have never been demonstrated to be envi-

ronmentally harmful. Solid waste byproducts of the com-

bustion of coal and other fossil fuels have been present in

the environment of this country since fossil fuels were first

40a

used, and our practical experience with these byproducts

has revealed no instance where the ash, slag, or sludge

could be shown to have posed a substantial hazard to hu-

man health or the environment.

Nonetheless, the interim regulations proposed for these

fossil fuel combustion byproducts, including an estimated

$1 billion of additional costs over a 3-year period for the

electric utility industry alone. These burdens and costs

would be imposed despite the fact that EPA has admitted

to a lack of information on the degree of hazard, if any,

of these wastes, and recognizes that any potential hazards

are relatively low.

This amendment recognizes that the regulatory program

proposed by EPA would have a significant impaci on the

utilization of coal and other fossil fuels and the reuse of

their combustion byproducts. Therefore, additional regu-

lations on these materials would not be promulgated until

further information is developed to determine whether a

sufficient degree of hazard exists to warrant additional

regulations, and whether existing State or Federal pro-

grams adequately control any such hazards. In the rule-

making proceeding provided for in my amendment, the

Administrator should be extremely cautious in imposing

any additional regulations on these materials, particularly

in view of the resulting discouragement of coal use and

the recovery and reuse of valuable fossil fuel combustion

byproducts.

4la

126 Cong. Rec. 3361-65 (1980)

Mr. BEVILL. Mr. Chairman, I rise to offer an amend-

ment to H.R. 3994, the Resource Conservation and Re-

covery Act Amendments of 1979. I believe this amendment

is of vital importance to our Nation, particularly in light

of the President’s recent focus of our attention on the

need to develop our domestic coal resources.

The amendment would encourage development of coal

as a primary domestic source of energy, avoid unnecessary

inflationary impact, and focus the efforts of the Environ-

mental Protection Agency in implementing the Resource

and Conservation and Recovery Act toward activities truly

necessary to protect public health and the environment

specifically, it would require EPA to defer imposition of

regulatory requirements on the disposal of the waste by-

product of fossil fuel combustion, of discarded mining ma-

terials and of cement kiln dust waste until after EPA has

completed studies to determine whether, if at all, these

materials present any hazard to human health or the en-

vironment. These studies would include evaluation of the

economic and environmental aspects of existing and alter-

native disposal and reuse options. EPA would also be re-

quired to focus on the impact of these alternatives on the

use of our coal and other natural resources.

The effect on coal usage of the regulations EPA has

proposed under RCRA clearly would constitute an unnec-

essary and ill-timed regulatory burden. Responsible esti-

mates of their impact by the utility industry—a major

consumer of fossil fuel in this Nation—indicated a $1 billion

increase in the cost of the production of electricity from

coal over the first 3 years they are imposed. Additional

billions of dollars of costs would be imposed over the com-

ing decades. These costs are likely to be passed along to

42a

consumers, with an immediate inflationary impact. More-

over, imposition of these costs on those who burn coal

cannot help but discourage the switching from reliance on

oil to reliance on domestic coal.

Finally, let me direct the House’s attention to the fact

that after EPA concludes these studies, it will be required

to obtain public views on them and to make known

whether, as a result of this process, EPA believes any

regulation of these materials is necessary. This require-

ment is especially important in view of our national com-

mitment to develop a coherent and consistent policy toward

the use of our coal and other energy resources.

This requirement will focus public attention on the issue

of whether regulation is consistent with our national policy

goals. It will also allow interested parties to evaluate the

basis of the Agency’s decision, and to address the question

of what degree of regulation, if any, is appropriate.

Mr. Chairman, I would close by citing just a few of

these national policy goals. The President has asked that

we establish an Energy Mobilization Board to expedite

development of critical energy facilities. It makes no sense

for EPA to simultaneously impose unnecessary regulations

on coal users. The President has asked that we require

utilities to cut oil consumption by 50 percent. This requires

that they burn coal. It makes no sense for EPA to si-

multaneously act to discourage coal conversions and con-

structions of new coal-fired capacity. The President has

asked that we join hands to fight inflation. It makes no

sense for EPA to needlessly impose expensive regulations.

For those reasons, Mr. Chairman, I urge the adoption of

this amendment.

Mr. FINDLEY. Mr. Chairman, much of the debate sur-

43a

rounding the Resource Conservation and Recovery Act

tends to emphasize the need for stricter environmental

controls for handling hazardous wastes. However, for such

wastes as fly ash and slag, less control is needed.

If the Agency is successful in classifying fly ash and

slag as hazardous wastes, their reuse will be discouraged

or eliminated. EPA’s decision to treat these relatively

harmless byproducts as special hazardous wastes subject

to stringent regulation will only hasten the decline of the

coal industry in this country and that is something we can

ill afford. In addition, it has been calculated that EPA's

proposed regulations for these byproducts would add $1

billion over a 3-year period to the cost of producing elec-

tricity, costs which will be passed along to already inflation

saddled consumers.

Mr. RAHALL. I comment the gentleman from Alabama

for his amendment. I rise in support of the Bevill amend-

ment to the Resource Conservation and Recovery Act of

1976 that would require EPA to evaluate a variety of

aspects of coal byproduct management before imposing

regulations upon these materials under this act.

I view the proposed amendment as an integral element

of our national energy policy. At a time when we are

seeking to encourage electric utilities and others to switch

from the burning of oil to coal, it would be highly inap-

propriate to place further unnecessary regulatory road-

blocks in the way of increased coal usage.

Indeed, this amendment may very well serve the same

purpose as the President’s proposed Energy Mobilization

Board. It will be a step toward the elimination of delay

and unnecessary paperwork in the development of our do-

mestic energy resources. Coal is our most abundant and

44a

readily available domestic energy source. To break the grip

of foreign energy suppliers on our industry, we must pro-

mote its use, not deter it.

Mr. WILLIAMS of Montana. Mr. Chairman. I. too. want

to commend the gentleman for his amendment.

Mr. Chairman. I rise in support of the amendment of-

fered by the gentleman from Alabama.

This amendment would direct the Environmental Pro-

tection Agency to evaluate certain high volume, low tox-

icity wastes so as to assure a reasoned set of regulations

by which to manage these wastes. My interest in this

amendment is in the area of wastes from mineral pro-

duction. Mining and processing of minerals is a major in-

dustry in my congressional district. My discussion of the

wastes generated by the mining industry has illustrated

for me the wisdom of this amendment.

As has been stated, this amendment would merely sus-

pend regulation of these wastes for a reasonable period

of time until more is known about them. What is known?

With regard to slag wastes generated by the smelting of

copper, the National Academy of Sciences has recently

reported that it “‘is basically inert and weathers slowly.”

The slag produced 2,500 years ago at King Solomon’s

mines north of Eliat, Israel, has not changed perceptibly

over time.

Should wastes such as smelting slag be subject to strin-

gent regulations at this time? I think not—not until a

thorough study is conducted by the responsible agency

which clearly proves the need for additional regulation

* * *

Mr. STAGGERS. Mr. Chairman. I rise in support of the

amendment offered by the distinguished gentleman from

45a

Alabama (Mr. Bevill), and commend him for his diligent

efforts in formulating a reasonable and balanced approach

to a difficult issue. This arnendment is necessary to insure

that genuinely necessary environmental regulation does not

include overregulation of coal mining and inhibit coal uti-

lization. As everyone in this Chamber knows, the coal in-

dustry is vital to the economy of my State and to the

solution of this Nation’s energy problems. The EPA reg-

ulatory program being discussed here today is one of sev-

eral Government regulatory programs which, in fact,

discourage the increased utilization of coal by imposing

overlapping and duplicative regulatory requirements. The

program would have this unfortunate effect due to its

proposed inclusion of both coal mining and coal combustion

wastes within the scope of EPA’s hazardous waste pro-

gram in a ‘“‘special waste’ category.

We must avoid placing unnecessary roadblocks in the way

of developing our coal resources. This amendment contin-

ues to subject specified byproducts of fossil fuel combus-

tion, coal mining wastes and the other so-called special

wastes to existing regulatory programs under presently

applicable Federal and State laws, but would preclude,

until after completion of the required study and rulemak-

ing, any EPA regulation of these wastes under subtitle C

of RCRA. This amendment is necessary to insure that the

results of the studies to be undertaken have not been

prejudged or undermined by imposition of regulation prior

to an actual determination of the necessity for it.

46a

APPENDIX D

Final Rule

July 15, 1985

50 Fed. Reg. 28,702

On November 8, 1984, the President signed into law

the Hazardous and Solid Waste Amendments of 1984

(HSWA). This new statute makes many changes to EPA's

existing hazardous waste management program. The pur-

pose of this rule is to amend EPA’s existing hazardous

waste regulations to reflect those statutory provisions that

have immediate or short-term effects on the regulated

community.

D. Estimated Cost of the Final Rule

14. Total Cost of the Final Rule

The sum of all the annualized costs ranges from a lower

bound of $365 million to $2.1 billion. Table VI-2 shows

these annualized costs as well as the first year costs, which

range between $1.9 billion and $14.5 billion. Corrective

action costs dominate both first year and annualized costs

in each scenario. The Agency is soliciting comments on

these cost estimates.

47a

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48a

Regulatory Determination

July 3, 1986

51 Fed. Reg. 24,496

I. Summary

Based on the Report to Congress, comments on the

report, and other available information, EPA has deter-

mined that regulation of mining waste under Subtitle C

of the Resource Conservation and Recovery Act (RCRA)

is not warranted at this time.

This conclusion is based on EPA’s belief that several

aspects of EPA’s current hazardous waste management

standards are likely to be environmentally unnecessary,

technically infeasible, or economically impractical when ap-

plied to mining waste. While under existing law EPA would

have some flexibility to modify its standards for hazardous

waste management as applied to these wastes, there are

substantial questions about whether the flexibility inherent

in the statute coupled with the Agency’s current-data on

these wastes provide a sufficient basis for EPA to develop

a mining waste program under Subtitle C that addresses

the risks presented by mining waste while remaining sen-

sitive to the unique practical demands of mining opera-

tions. Given these uncertainties, EPA does not intend to

impose Subtitle C controls on mining waste at this time.

The Agency, however, is concerned about certain actual

and potential mining waste problems, and therefore plans

to develop a program for mining waste under Subtitle D

of RCRA. The long-term effectiveness of this program

depends on available State resources for designing and

implementing a program tailored to the needs of each

State, and on EPA’s ability to oversee and enforce the

program. As noted below in section VI, EPA will be work-

ing with the States to determine the specific nature of

their current mining waste activities and their future plans

to administer such programs. The Administration will work

with Congress to develop expanded Subtitle D authority

49a

(i.e., Federal oversight and enforcement) to support an

effective State-implemented program for mining waste.

EPA has already made preliminary contacts with Congress

and intends to hold detailed discussions on the specifics

of the Subtitle ™ program in the coming year. In the

interim, EPA will use RCRA section 7003 and CERCLA

sections 104 and 106 to protect against substantial threats

and imminent hazards. If EPA is unable to develop an

effective mining waste program under Subtitle D, the

Agency may find it necessary to use Subtitle C authority

in the future.

x* * *

IV. Report to Congress

x * *

A. Summary of Report to Congress

x* * *

2. Waste Quantities

The Report to Congress estimated that 1.3 and 2 billion

metric tons per year of nonfuel mining waste were gen-

erated in 1982 and 1980, respectively. The accumulated

waste volume since 1910 from nonfuel mining is estimated

to be approximately 50 billion metric tons. The large vol-

ume of annual and accumulated nonfuel mining waste re-

sults from the high waste-t-product ratios associated with

mining. The fact that most of the material handled in

mining is waste and not marketable product distinguishes

mining from many other process industries where waste

materials make up a relatively small portion of the ma-

terials used to produce a final product. Consequently, some

of the larger mining operations handle more material and

generate more waste than many entire industries.

*> * *

6. Potential Costs of Regulation

The Report to Congress presented for five metal mining

segments, total annualized costs ranging from $7 million

50a

per year (for a scenario that emphasizes primarily basic

maintenance and monitoring for wastes that are hazardous

under the current RCRA criteria) to over $800 million per

year (for an unlikely scenario that approximates a full

RCRA Subtitle C regulatory approach, emphasizing cap

and liner containment for all wastes considered hazardous

under the current criteria, plus cyanide and acid formation

wastes). About 60 percent of the total projected annualized

cost at active facilities can be attributed to the manage-

ment of waste accumulated from past production. Those

segments with no hazardous waste (e.g., iron) would incur

no costs. Within a segment, incremental costs would vary

greatly from facility to facility, depending on current re-

quirements of state laws, ore grade, geography, past waste

accumulation, percentage of waste which is hazardous, and

other factors.

B. Comments Received on the Report to Congress and

EPA’s Response

*-_ * *

3. Potential Costs of Regulation

EPA received a large number of comments pertaining

to the cost of complying with regulations for mining waste,

and the effects these compliance costs would have on the

mining industry. Many commenters claimed that regulating

the mining industry would impose costs much greater than

those EPA estimated in its Report to Congress. They also

noted that the mining industry was depressed, and that

for many mines, increased compliance costs would be

greater than the profits leading to forced closures.

*_ * *

C. Mining Waste Conclusions

Based on the available information and public comments,

the Agency draws the following conclusions about mining

wastes. (BAI, 1986 see VII No. 1)

Source and Volume

e The waste volume generated by mining and benefi-

ciation is considerably larger than the volume of waste

generated by other industries currently subject to hazard-

ous waste controls. The mining industry alone generates

over one billion metric tons of waste per year compared

to 260 million metric tons generated annually by all other

hazardous waste industries. The average mining waste fa-

cility manages about three million metric tons of waste

annually while the typical facility subject to Subtitle C

controls manages about 50 thousand metric tons of waste

per year.

e In general, mining waste disposal facilities.are con-

siderably larger than industrial hazardous waste disposal

facilities; most of the largest industrial hazardous waste

land disposal facilities are (tens of acres) in size, while

typical mining waste disposal facilities are (hundreds of

acres) in size. Agency studies indicate that mining waste

tailings impoundments average about 500 acres; the largest

is over 5000 acres. Mining waste piles average 126 acres;

the largest exceeds 500 acres. Hazardous waste impound-

ments, however, average only about 6 acres and hazardous

waste landfills average only about 10 acres. Consequently,

EPA believes that many traditional hazardous waste con-

trols may be technically infeasible or economically im-

practical to implement at mining waste sites because of

their size.

Waste Management Practices

e EPA estimates indicate that most hazardous waste

generators (about 70 percent) ship all of their waste off-

site, however, no mines ship all of their waste off-site. In

addition, nearly all mining waste is land disposed, while

less than half of all industrial hazardous waste is land

disposed.

52a

Evidence of Damage

e In general, environmental conditions and exposure po-

tential associated with mining waste are different than

those associated with industrial hazardous waste streams.

Agency studies suggest that mining waste streams gen-

erally have lower exposure and risk potential for several

reasons.

— First, mining waste management facilities are gen-

erally in drier climates than hazardous waste management

facilities, thereby reducing the leaching potential. Over 80

percent of the mining sites are located west of the Mis-

sissippi River, which generally has drier climates, whereas

industrial hazardous waste landfills are more evenly dis-

tributed nationally. In addition, the Agency estimates that

more than sixty percent of all mines have annual net re-

charge between 0-2 inches, and only ten percent have net

recharge greater than ten inches. However, about 80 per-

cent of the hazardous waste land disposal facilities have

net recharge greater than five inches and over one-third

exceed 15 inches.

— Second, EPA studies indicate that hazardous waste

land disposal facilities are closer to ground water than

mining waste sites. Over 70 percent of hazardous waste

sites have a depth to ground water of 30 feet or less,

while about 70 percent of mining sites have ground water

depths greater than 30 feet.

— Third, Subtitle C facilities tend to be located in

more densely populated areas. EPA estimates that mining

waste sites have average populations of less than 200

within one mile of the site, while hazardous waste sites

average over 2,000 people at the same distance. Within

five miles of the mining waste sites, the average population

is almost 3,000, while hazardous waste sites average nearly

60.000 people.

— Fourth, Agency studies suggest that, compared to

mining waste sites, hazardous waste sites tend to be lo-

53a

cated closer to drinking water receptors and serve larger

populations. Almost 70 percent of the hazardous waste

sites are located within five miles of a drinking water

receptor serving an average population of over 18,000 and

as many as 400,000 people. Almost half as many mining

sites are located within this same distance, and they serve

considerably smaller populations (averaging 3,000 but rang-

ing as high as 20,000.)

e Although the Agency believes that the human expo-

sure and risk potential appears to be lower for mining

waste sites than for industrial hazardous waste sites, many

mines are located in sensitive environmental settings. EPA

estimates that about 50 percent of the mines are located

in areas that have resident populations of threatened or

endangered species or species of other special concern,

(often the case for industrial sites). In addition, mining

sites are typically located in relatively remote and other-

wise undisturbed natural environments.

Cost and Economic Impacts

e EPA believes that many traditional waste manage-

ment controls designed principally for industrial hazardous

waste management facilities may be economically impract-

ical to implement at mining sites and could impose sub-

stantial costs to the industry resulting in potential mine

closures. Full Subtitle C controls for mining sites could

impose as much as $850 million per year in compliance

costs. Such costs could be greater than profits resulting

in mine closures.

e Many Federal and State agencies already have reg-

ulatory programs for managing mining waste. New haz-

ardous waste controls for mining waste could be difficult

to integrate with existing Federal and State programs.

V. Application of Subtitle C to Mining Waste

EPA believes that it needs maximum flexibility to de-

velop an appropriate program for mining waste which ad-

o4a

dresses the technical feasibility, the environmental

necessity, and the economic practicality of mining waste

controls. The program should consist of a tailored risk-

based approach which addresses the diversity and unique

characteristics of mining waste problems.

The current Subtitle C program is designed principally

for controlling problems created by industrial wastes. Based

on information available, the Agency believes that many

controls required under the current Subtitle C program,

if applied universally to mining sites, would be either un-

necessary to protect human health and the environment.

technically infeasible, or economically impractical to im-

}

plement.

Section 3004(x) of RCRA does provide flexibility for reg-

ulating mining waste. This section gives EPA the authority

to modify certain Subtitle C requirements for mining waste

which were imposed by the Hazardous and Solid Waste

Amendments of 1984 (HSWA) which relate to liquids in

landfills, prohibitions on land disposal, minimum techno-

logical requirements, continuing releases at permitted fa-

cilities, and retrofitting interim status surface

impoundments with liners. In modifying these require-

ments, EPA may consider site-specific characteristics as

well as the practical difficulties associated with imple-

menting such requirements. In addition, EPA has general

authority under RCRA section 3004(a) to modify remaining

Subtitle C requirements, such as administrative standards,

- " . } } }

Hy ry - ‘ ih) te ‘ > "ay ‘ ) T 5 yy) >

linancial requirements, and closure and Capping require-

nro 4 os oa ‘+ . . et ~+- , Loe val ryvorinys

ments, 1 a waste poses qailteren rISKS or the existing

standards are technically infeasible. However, in modifying

“11Ah 17 > . . ty \ 2) ‘ | . tr \ )

sucn requirements, section 3004(a) does not provide EPA

the same degree of flexibility to consider the economic

, ¢ ha J sles , + »,< lt. J so" ] , _ . , , ) ,

Impac Of reguiation that is found in section 3004(x)

: lacar!) ] awls on —— ‘ - "Dp eas}

As qgescrided earlier in this notice, EP, belleves tna

tne decision whether to repuiate mining waste inder sul

iS)

title C must consider the factors listed in KCRA sections

8002(f) and (p), including the risks associated with mining

waste, the cost of such regulation, and the effect regu-

lation might have on the use of natural resources. EPA

has concluded that in order to meet that objective, it would

want to develop a program that has maximum flexibility

to develop an effective control strategy for individual fa-

cilities based on site-specific conditions. The existing Sub-

title C regulatory program would probably have to be

changed substantially for mining waste to provide that

type of flexibility.

Given these general conclusions about what would be

needed to make the Subtitle C system appropriate for

mining waste, there are substantial uncertainties about

whether that program is the right mechanism to address

mining waste. First, it is unclear whether the legal

authorities under which EPA would be acting (i.e., sections

3004(a) and 3004(x)) give EPA sufficient flexibility to craft

a program for “hazardous” mining waste given the sta-

tutory and regulatory approach established for other haz-

ardous vastes. Second, and closely related, there are

substantial questions about whether the Agency’s current

data on mining waste management provide a basis for

substantial modifications to the existing Subtitle C regu-

latory program. With the mining waste study and the sup-

plementary information collection efforts associated with

today’s notice, EPA has greatly expanded its understand-

ing of mining waste management practices. At the same

time, additional data collection and analysis would probably

be necessary to support specific modifications of multiple

provisions in the existing hazardous waste regulations be-

fore those regulations would provide the type of flexibility

we currently believe might be necessary. These uncertain-

ties have led us to the conclusion that Subtitle C does not

provide an appropriate template for a mining waste man-

agement program.

56a

VI. Application of Subtitle D to Mining Waste

Solid waste that is not hazardous waste is subject to

regulation under Subtitle D. Therefore, mining waste,

which is included in the RCRA definition of solid waste,

is currently covered by Subtitle D. EPA believes that it

can design and implement a program specific to mining

waste under Subtitle D that addresses the risks associated

with such waste. The current Subtitle D program estab-

lishes criteria which are, for the most part, environmental

performance standards that are used by States to identify

unacceptable solid waste disposal practices or facilities. (See

40 CFR Part 257). These criteria include, among other

things, standards related to surface water discharges,

ground-water contamination, and endangered species. Be-

cause the program’s criteria are aimed principally at mu-

nicipal and industrial solid waste, EPA believes they do

not now fully address mining waste concerns. In addition,

many of these criteria, such as control of disease vectors

and bird hazards, are not appropriate for mining waste.

The Agency is currently revising these criteria for fa-

cilities that may receive hazardous household waste and

small quantity generator hazardous waste; these revisions

will not apply to mining waste which are generally not

codisposed with such wastes. However, the Agency intends

to further augment the Subtitle D program by developing

appropriate standards and taking other actions appropriate

for mining waste problems. EPA will focus on identifying

environmental problems and setting priorities for applying

controls at mining sites with such potential problems as

high acid-generation potential, radioactivity, asbestos and

‘yanide wastes. EPA will also develop a risk-management

framework to develop appropriate standards as necessary

to protect human health and the environment. EPA will

consider requirements such as: (1) A range of closure op-

tions to accommodate variabie probiems sucn as infiltratior

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ground water and exposure from fugitive dus

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(2) options to define tailored controls, including those es

tablished by the Clean Water Act, to address problems

from runoff to surface water; (3) options for liquid man-

agement controls such as pretreatment of wastes prior to

disposal, controlled release, or liner systems, (4) ground-

water monitoring options that accommodate site-specific

variability; and (5) a range of clean-up options.

Final Rule

December 1, 1987

52 Fed. Reg. 45,788

52 Fed. Reg. at 45,789-90

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59a

EPA does not agree that these exclusions extend to

corrective action for releases from solid waste manage-

ment units under section 3004(u). EPA believes that Con-

gress enacted these provisions in 1980 to prohibit EPA

from regulating these wastes as ‘‘hazardous’’ while it stud-

ied the impacts of such regulation. When Congress enacted

these exemptions in 1980, Subtitle C provided only for the

regulation of hazardous waste. Hence, the reference to

“this subtitle’ indicated only an intent to exclude these

special wastes from EPA’s hazardous waste regulations.

Section 3004(u), however, does not fit in the 1980 sta-

tutory scheme. Although it is located in Subtitle C, it

provides for clean-up of releases of ‘hazardous constitu-

ents’ (not just hazardous wastes) from both hazardous

waste and solid waste management units. Indeed, section

3004(u) is the only provision in Subtitle C that reaches

beyond the universe of hazardous waste. Thus, the ques-

tion of statutory interpretation for the Agency is whether

the exemption, which extends to regulation “under Subtitle

C’’. should be read as covering the authorities granted to

EPA to correct releases of hazardous constituents at solid

waste management units

FPA does not believe that Congress intended the ex-

emptions in section 3001, which were clearly aimed at

hazardous waste, to extend to corrective action for solid

wastes under section 3004(u). Certainly nothing in the plain

language of the legislative history of section 3004(u) sug-

gests that Congress intended to create any exemptions for

any category of solid waste. Furthermore, the commenter

conceded that fossil fuel combustion wastes are ‘‘solid

wastes” subject to corrective action regulation under Sub-

title D and emergency clean-up orders under Section 7003

(See the brief of petitioner Edison Electric Institute in

United Technologies Corporation v. EPA, D.C. Cir No. 85

1654 consolidated cases.) It is more logical and consistent

shat

with Congressional goals to conciude tnat tnese soild

60a

wastes are similarly subject to clean-up requirements under

section 3004(u).

An exemption from corrective action under section

3004(u) is also not necessary to achieve the goals of the

original exemption in section 3001. The sponsors of the

1980 amendments were chiefly concerned with the lack of

specific data showing that these solid wastes endangered

human health and the environment, and the potential for

disruptive economic impacts if these wastes were subject

to regulation as hazardous wastes under Subtitle C. See,

e.g., 126 Cong. Rec. H1101-1102 (daily ed. Feb. 19, 1980)

(remarks of Representative Bevill); 125 Cong. Rec. $6821

(daily ed. June 4, 1979) (remarks of Senator Huddleston).

Section 3004(u), however, will not require any corrective

action unless EPA obtains data showing that specific solid

waste management units are releasing hazardous constit-

uents in the manner that threatens human health and the

environment. Furthermore, a decision to require clean-up

under section 3004(u) will not require compliance with the

full range of Subtitle C regulations. For example, the dou-

ble liner retrofitting requirements in section 3005(j) would

not apply to a solid waste management unit containing a

Bevill waste or an oil and gas waste. Corrective action

will not have the same economic impact as full Subtitle C

regulation. As indicated, Congress provided for corrective

action for solid wastes under Subtitle D and/or section

7003; coverage under section 3004(u) simply provides a

linkage between corrective action and the hazardous waste

permitting process.

In summary, EPA has concluded that “‘Bevill wastes”’

and oil and gas wastes are subject to the corrective action

requirements of section 3004(u) when they are found in

solid waste management units at facilities that need per-

mits to manage hazardous wastes.

6la

APPENDIX E

EPA REPORT TO CONGRESS: WASTES FROM THE

COMBUSTION OF COAL BY ELECTRIC UTILITY

POWER PLANTS (FEBRUARY 1988)

* * *

[p. 6-19, footnotes deleted]

6.2.2.3 Corrective Action

Subpart F of 40 CFR Part 264 also lists requirements

for corrective action. A variety of actions may be under-

taken to correct ground-water contamination problems

caused by a hazardous waste disposal facility. The facility

owner or operator would need to conduct a site-specific

investigation to ascertain the potential degree of contam-

ination and the appropriate response that would be most

effective in remedying the situation. Types of remedial

responses that might be required would be placing a cap

(made of either a clay or synthetic material) on the disposal

unit, counter-pumping the ground water to retard contam-

inant migration, excavating the disposal area and removing

the wastes to a Subtitle C landfill, or installing an im-

permeable curtain around the disposal area to prevent

ground-water flow into or out of the disposal area. As one

example of the potential magnitude of corrective action

costs, this section evaluates the cost to excavate the ex-

isting disposal areas and transfer the wastes to RCRA

Subtitle C-approved facilities.

EPA developed the following formula to calculate total

excavation costs for Subtitle C units, (including closure of

the existing site and removal of the wastes to a Subtitle

C facility):

Cost - [((Surface Area x $45) + (Volume x $187)] x 2.16

where the surface area is measured in square meters, and

volume is measured in cubic meters.

62a

For a power plant of average size (500 MW), it has been

assumed that a 45-acre landfill would be required, or about

182,000 square meters, with a capacity of approximately

5 million cubic meters. Based on the cost equaticn listed

above, costs for excavation and waste transfer for a landfill

site would be about $2.0 billion. For surface impound-

ments, the appropriate parameters are 145 acres, or about

587,000 square meters, and a volume of about 5 million

cubic meters, which works out to about $2.1 billion for

the same type of corrective action. If this type of correc-

tive action were required at all power plants, compliance

costs for the industry would be enormous. At a cost of

about $2 billion per plant, industry-wide costs would ex-

ceed one trillion dollars.

63a

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY

WASHINGTON, D.C. 20460

JAN 8 1987

OFFICE OF

SOLID WASTE AND EMERGENCY RESPONSE

MEMORANDUM

SUBJECT: Options Selection Meeting on Develop-

ment of a Regulatory Program for Cor-

rective Action Under Section 3004(u)

FROM: J. Winston Porter

Assistant Administrator

TO: Addressees

x * *

ISSUE V: What technical standards should be applied

to management of non-hazardous wastes dur-

ing corrective action remedies?

Solid waste management units, addressed as part of

RCRA corrective actions, will often contain wastes that

do not meet the definition of ‘‘hazardous”’ but that never-

theless contain hazardous constituents. Such wastes may,

if mismanaged, pose threats to human health and the en-

vironment. Outlined below are three options for the types

of standards or controls that should be placed on man-

agement of non-hazardous wastes in the RCRA Subtitle C

corrective action program.

OPTIONS:

(A) Apply Subtitle C standards to management (treat-

ment, storage, and disposal) of all non-hazardous

wastes generated as part of RCRA corrective action

remedies.

64a

(B) Manage non-hazardous wastes in accordance with

Subtitle D standards.

DISCUSSION:

Option A would preserve the status quo and apply the

full range of Subtitle C design/operating standards (e.g.

double liners, ground water monitoring, etc.) to on-site and

off-site management of non-hazardous solid wastes. (Of

course, if option B in Issue IV is adopted, specific Subtitle

C standards could be waived for temporary units.) This

approach would be the most environmentally conservative

option. However, it could be argued that application of

Subtitle C standards to wastes that are not defined as

hazardous could be unreasonable for both technical and

legal reasons. Solid wastes are likely to be inherently less

threatening to human health and the environment than

hazardous wastes. It could thus be argued that applying

stringent Subtitle C standards to such wastes could pro-

vide relatively few environmental benefits, might signifi-

cantly delay cleanup in certain circumstances, and could

severely overload available capacity for managing hazard-

ous waste.

Under option B, non-hazardous wastes would be man-

aged under the Subtitle D program which sets minimum

standards for solid waste disposal facilities. Although these

regulations are likely to be expanded significantly in the

next several years, the scope and substance of those stand-

ards have not yet been defined.

Under option C, general performance and protectivenes

[sic] standards for management of non-hazardous wastes

would be established and applied on a case-by-case basis.

The objective would be to impose standards of varying

levels of stringency, depending on the degree of environ-

mental protection that is warranted (i.e. the amount and

nature of hazardous constituents contained in the waste).

65a

While meeting the general standards, the permitting au-

thority would be given a substantial amount of discretion

as to what specific design/operating standards would be

applied at different units. Such standards could not be less

stringent than the minimal Subtitle D standards. In other

cases, Subtitle C standards may be appropriate.

From a legal standpoint, neither the language of §3004(u)

nor the legislative history to the statute indicate that non-

hazardous wastes should be handled in a different manner

than hazardous wastes. It is reasonable to assume, there-

fore, that EPA could exercise some discretion in deter-

mining the level of protectiveness necessary to protect

human health and the environment in each situation.

This approach affords a desirable measure of flexibility,

but results in less consistency across the program. Appli-

cation of general performance and protectiveness stand-

ards may also be difficult to enforce and could lead to

extended negotiations with owner/operators in designing

remedies.

Recommendation—Option C: Apply appropriate stand-

ards on a case-by-case basis.

OSWER recommends Option C, because it believes that

in some circumstances Subtitle C restrictions will be nec-

essary to ensure safe handling of “‘nonhazardous’” SWMU

waste, while in others they will be unnecessarily restric-

tive.

66a

U.S. EPA, OUTLINE OF RCRA SUBTITLE D MINING

WASTE STRAWMAN

(May 31, 1988 DRAFT)

[p. 8]

40 CFR Part xxy: Technical Criteria for Mining Waste

Management Facilities and Practices

* * *

[p. 45]

Subpart G: Corrective Action Criteria

A. Corrective action criteria for ground water

1. If concentration of any parameter exceeds ground-

water protection standard established under par-

agraph (A\6\g) of Subpart F, owner or operator

must:

a. Establish and implement corrective action

ground-water monitoring program that:

i. At minimum, meets requirements of para-

graph (A\9\f) of Subpart F; and,

ii. Demonstrates effectiveness of corrective

action; and,

ili. Demonstrates compliance with ground-

water protection standard.

b. Implement corrective action remedy selected

by regulatory authority under paragraph

(AX6Xg) of Subpart F.

c. Notify all persons who own or reside on land

that overlies any part of plume of contamina-

tion.

d. Take any interim measures deemed necessary

by regulatory authority to protect human health

and environment. To extent technically prac-

67a

tical, interim measures should be consistent

with objectives, and contribute to performance

of corrective action remedy selected pursuant

to paragraph (AX6\g) of Subpart F. Regulatory

authority may consider following factors in

evaluating need for interim measures:

i. Time required to develop and implement

final corrective action remedy; and

ii. Actual or potential for exposure to wastes

or constituents by humans or environmen-

tal receptors; and,

ili. Further degradation of ground water that

may occur; and

iv. Meteorological conditions that may cause

release or migration of wastes or constit-

uents; and,

v. Other conditions that may pose threats to

human health and environment.

2. Regulatory authority may determine, after imple-

mentation of corrective action remedy has begun,

that compliance with the requirement(s) of the

corrective action remedy selected under para-

graph (A\(9) of Subpart F is not technically prac-

tical. In making such a determination, regulatory

authority shall consider:

a. Owner or operator’s efforts to achieve compli-

ance; and

b. Whether other currently available or new and

innovative methods could achieve compliance.

3. If, pursuant to paragraph (2), regulatory authority

determines that compliance with requirements of

the corrective action remedy is not technically

practical, regulatory authority may require owner

or operator to:

68a

a. Implement alternate measures to control ex-

posure of humans or environmental receptors

to wastes or constituents; and,

b. Implement alternative measures to control

sources of contamination or to remove or de-

contaminate equipment, units, devices, or

structures.

. All wastes that are managed pursuant to imple-

mentation corrective action under paragraph

(A\(6\iXii) or to an interim measure under para-

graph (1d) above shall be managed in a manner

that:

a. Is protective of human health and environment:

and,

b. Complies with applicable Federal, State, and

local requirements.

. Corrective action remedies selected pursuant to

paragraph (A\6\g) of Subpart F and implemented

pursuant to paragraph (A)(6\i) of Subpart F shall

be considered complete when regulatory authority

determines that:

a. Compliance with ground water protection

standards established under paragraph (A\6\g)

have been achieved in accordance with the re-

quirements of paragraph (A)(9\f) of Subpart

F; and,

b. All requirements to complete corrective action

have been satisfied.

. Upon completion of corrective action, owner or

operator must submit to regulatory authority cert-

ification that action is completed in accordance

with paragraph (5) above. Certification must be

signed by owner or operator and by independent

professional in appropriate discipline(s).

69a

7. Upon receipt of certification and after considering

other relevant information, regulatory authority

may determine that corrective action has been

completed. When such determination is made, reg-

ulatory authority shall release owner or operator

from requirements for financial assurance under

paragraph (D) of Subpart I.

B. Corrective action criteria for surface water

1. If concentration of any parameter exceeds surface

water protection standard established under par-

agraph (B\(3)(b\i) of Subpart F’, owner or operator

must:

Establish and implement corrective action sur-

face water monitoring program that:

i. At minimum, meets requirements of para-

graph (BX3) of Subpart F; and,

ii. Demonstrates effectiveness of corrective

action; and,

iii. Demonstrates compliance with surface

water protection standard.

Pursuant to paragraph (B\5\Xb) of Subpart F,

implement corrective action remedy selected by

regulatory authority under paragraph

(BX4\bXii) of Subpart F.

c. Notify all users of contaminated surface waters.

Take any interim measures deemed necessary

by regulatory authority to protect human health

and environment. To maximum extent techni-

cally practical, interim measures should be con-

sistent with objectives, and contribute to

performance, of corrective action remedy. Reg-

ulatory authority may consider the following

factors in evaluating need for interim meas-

ures:

70a

i. Time required to develop and implement

final corrective action remedy; and,

ii. Actual or potential for exposure to wastes

or constituents by humans or environmen-

tal receptors; and,

iii. Further degradation of surface water that

may occur; and,

iv. Meteorological conditions that may cause

release or migration of wastes or constit-

uents; and,

v. Other conditions that may pose threats to

human health and environment.

2. Regulatory authority may determine, after imple-

mentation of corrective action, that compliance

with the requirement(s) for the corrective action

remedy in paragraph (BX8\f) for Subpart F is not

technically practical. In making a determination,

the regulatory authority shall consider:

a. Owner or operator’s efforts to achieve compli-

ance; and,

b. Whether other currently available or new and

innovative methods could achieve compliance.

3. If regulatory authority determines, pursuant to

paragraph (2), that compliance with the require-

ment(s) for the corrective action remedy in par-

agraph (BX8\f) of Subpart F is not technically

practical, regulatory authority may require owner

or operator to:

a. Implement alternate measures to control ex-

posure of humans or environmental receptors;

and,

b. Implement alternative measures to control

sources of contamination or to remove or de-

Tla

contaminate equipment, units, devices, or

structures.

4. All wastes that are managed pursuant to correc-

tive action implemented under paragraph (B\5\(b)

of Subpart F or to an interim mea

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