# Petition for Writ of Certiorari — American Mining Congress v. United States Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1282%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 497 U.S. 1003 ## Text IN THE Supreme Court of the GQnited States OCTOBER TERM, 1989 AMERICAN MINING CONGRESS and SOLITE CORPORATION, Petitioners, V. 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 @e Pe : : i oe? 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. ii 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. iv TABLE OF CONTENTS ee PID» iucccesvcnnsvinceniniceninierincesersins LIST OF PARTIES AND RULE 29.1 LIST .............. SAE OE FO RE IENUEE eivcinsccesiciscssvevitesacstnavsinens INTE cieidirclanentnibsiuinneiaonenndeentauntieedevesies STATEMENT OF THE CASE ..........ccccscssscssscccecsesees A. B. C. D. KE. acta siidhiscnialuiaaienbondinns WOMCMNOTY FROVUIOES .... 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. i 10 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: 11 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. 12 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. 13 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 14 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). 15 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. 16 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 17 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- 18 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 oo 19 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). ‘— 20 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). 21 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 la 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, v. 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). 2a 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. ee a at eS ee 3a 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), 4a (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” 6a 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 7a 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, 8a 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- 9a 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 Se 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: EE 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. V. 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 v. 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 a 28a UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT September Term, 1989 No. 88-1155 American Iron and Steel Institute Petitioner v. 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. (C) not later than six months after the date of 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. a 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 $14.5 billion. Corrective action costs dominate both first year and annualized costs in each scenario. The Agency is soliciting comments on these cost estimates. 47a OLE OGG ERS 0 ORZ LORS PSG bOZ £99'9 G62 GRP £12 9L1 Oro LOT OSL'ZS 000'SR9'S2 980 PLR'SLE OOL'ELE' ED G66 6S9'LE LOP'GOS'9ZR'E 0 i ORZ LORS PSH bOZ £99°9 000'STS'T 099'906'1 Oro LOL OFL'ZES 000'GRY'S2 00S'6R6'S9L'E 009'SL9'6 OSORAUTIF SA yory UIR JIAO 40j josyuoo anos jo soo at Sapnpour OTOP AAT A100 jo Or) : OLE OOP PRLS OMretUl | LEG 09G'0b2 O16 ZRE'Z O01 G62 ZRb £12 9L1 026 991 000008 T 000 086 PE 619' PEE 6RL'I OOL'RLE'ED Ooze £12 O1$ 09L'660' EGE PL GRT'OGR' FOE —_——= 000'S12 9 Lb6'099'0FZ OLG'ZRP'Z 00021 000'SIS'T 099'906'T 026991 000'00F'T 000'086' FE £29'968 6LUFT 009'SL9'6 02 RER PIS (9L0'LLR) OOF OOT ORG OFT 0S2'2 G62 ZRP E12 9LI 0 009'ZEE 000'OFF'9I 692909 612 OOL'ELE'ED £99 90L'SE TgsREE'GUR TO a doe (e107 purssy 000'SIZ'9 sym) adesoys punosduapuy) oor O0T ~ Ayypiqusuodses pRilouRruly ong’bL seectaesiiend uoneznuTuTU arse M O62 °° syiodxa aysem snopsRzey] ooo'sis't saanpasoad Bunstac] 099°906'T “oo squaussasse aunsodx gy Qa tensesenesentnnn #urpuayq pur Surmng 00S 'ZEE eens suoqrsauad AyQuenb jpeug ooo'orr'9T iabenisiamnngle uotssauddns 9sn¢] Ipl‘tes‘iest “eee UOKIR aANQIALI0D 009'SL9'6 Soe gqu@umaginbed prowfojouyoe) WNUTUTy OOUGIRLS oo spur, ut spinbry Aa pazyenuuy sisoo avak ysaty Ag pezipenuuy $7809 avak ysaty Aa pazyenuuy sysoo anak ysaty punog sadd) Aon SOW punog samo] SUOISIAOL a1AY IWNIG AO SLSOQO— STA FTV 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 avera [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1282%3A1. Public record. Not legal advice.