The Hazardous and Solid Waste Amendments of 1984: A Dramatic Overhaul of the Way America Manages Its Hazardous Wastes

William L. Rosbe and Robert L. Gulley

Editors' Summary: Just as the Environmental Protection Agency (EPA) and states, after long delays, are primed to begin final implementation of the complicated hazardous waste control provisions of the Resource Conservation and Recovery Act of 1976 (RCRA), the President has signed Amendments greatly adding to the scope and complexity of the program. The agencies must now, like Sisyphus, return to the bottom of the mountain and start the long upward trek again. Actually their plight is less grim than his, since they need not recover the same ground. But the journey ahead could be as difficult as that completed, because the Amendments establish major new programs covering small generators of hazardous waste and underground storage tanks. And EPA will not this time be able to extend the job beyond the statutory deadlines, for Congress dictated that should the Agency miss any of a host of major regulatory deadlines, statutory "hammers" would fall putting into effect strict legislated rules. The authors survey the new challenges posed by the Amendments and analyze the impact of programs on landfill disposal, small generators, leaking underground storage tanks, imminent hazard actions, and citizen enforcement. They conclude that while Congress addressed serious environmental and regulatory problems, the tasks they have given EPA will be extremely difficult to carry out.

Mr. Rosbe is a partner at Hunton & Williams in Richmond, Virginia. He received a B.A. from Yale University and a J.D. from Cornell University. Mr. Gulley is an associate at Hunton & Williams. His degrees include a B.A. from the University of Texas, a Ph.D. from the University of Minnesota, and a J.D. from the University of Texas.

[14 ELR 10458]

The Resource Conservation and Recovery Act (RCRA),¹ required the Environmental Protection Agency (EPA) to establish a regulatory program for "cradle to grave" management of hazardous wastes. EPA did not promulgate the first set of those regulations until 1980. The full package of rules, essentially completed in mid-1982, is extremely complex and difficult for EPA and the regulated community to implement.² In 1983, Congress began consideration of bills to reauthorize the RCRA program. During hearings on the bills, many members of Congress expressed frustration with what they perceived as EPA's inability or unwillingness to promulgate all of the regulations required to implement the RCRA program and with the "loopholes" in the regulations that EPA did promulgate. These concerns culminated in the Hazardous and Solid Waste Amendments of 1984 (Amendments),³ which President Reagan signed into law on November 8, 1984.

[14 ELR 10459]

The Amendments do much more than reauthorize RCRA. Instead, they will cause "a dramatic overhaul of the way America manages its hazardous wastes."⁴ First, Congress has brought up to 15 million metric tons of hazardous wastes and over 130,000 new generators within the ambit of RCRA's hazardous waste management regulations by narrowing EPA's small quantity generator exemption. Second, Congress effectively has directed EPA to phase out land disposal of hazardous wastes by prohibiting land disposal of most hazardous wastes, unless extraordinarily stringent conditions are satisfied. Third, Congress has added two major regulatory programs to RCRA — one for managing leaking underground storage tanks and a second for regulating the burning of fuels that contain used oil or hazardous wastes. Fourth, Congress hasbroadened EPA's authority to require cleanup of environmental problems caused by hazardous waste facilities. It has done so by expanding EPA's ability to require corrective actions at interim status facilities and at permitted facilities with inactive units and by broadening RCRA's imminent hazard provision to allow EPA to require corrective actions at abandoned hazardous waste sites. Finally, Congress has expanded the public's role in forcing cleanup of hazardous waste pollution by allowing citizen suits to enforce RCRA's imminent hazard provision when EPA fails to do so adequately. This article examines the five major additions to RCRA and the effects each will have on "overhauling" hazardous waste management in America.

The Small Quantity Generator Exemption

RCRA directs EPA to promulgate regulations establishing standards for generators of hazardous wastes "as may be necessary to protect human health and the environment."⁵ When first deciding how to implement RCRA, EPA realized that it lacked sufficient administrative resources to regulate all hazardous waste generators.⁶ EPA chose to make the standards applicable only to generators of 1000 or more kilograms per month ("kg/mo") of hazardous wastes, but committed itself to phasing in small quantity generators down to 100 kg/mo within two to five years.⁷

Apparently impatient with EPA's failure to keep its commitment,⁸ Congress now has directed EPA to promulgate standards by March 31, 1986, for generators of between 100 and 1000 kg/mo of hazardous wastes.⁹ The Amendments expressly allow EPA to make these standards different from those currently imposed on generators of greater than 1000 kg/mo of hazardous wastes, but require that the standards be "sufficient to protect human health and the environment."¹⁰ The new standards, at a minimum, must require that all hazardous wastes generated by these small quantity generators be treated, stored, and disposed of at a hazardous waste facility with either interim status or a permit under RCRA, except that these generators may, prior to disposal, store up to 1000 kg of hazardous wastes on site for no longer than 180 days.¹¹

The Amendments place certain requirements on small quantity generators until EPA promulgates the new standards. By August 5, 1985,¹² any hazardous wastes shipped off site by a generator that generates between 100 and 1000 kg/mo of hazardous wastes must be accompanied by a copy of EPA's Uniform Hazardous Waste Manifest form signed by the generator.¹³ Until the new standards are effective, small quantity generators must dispose of their hazardous wastes in RCRA-permitted (but not interim status) hazardous waste facilities or facilities licensed to manage municipal or industrial solid wastes.¹⁴

Congress included a so-called "hammer" if EPA does not promulgate the new standards by March 31, 1986. If EPA misses the deadline, the wastes generated by these small quantity generators would not escape regulation, but rather would be subject to what are, in effect, congressional regulations.¹⁵ Unless EPA promulgates the new standards by March 31, 1986, small quantity generators must (1) manifest their hazardous wastes for off-site disposal; (2) treat, store, or dispose of their hazardous wastes at interim status or permitted facilities; (3) file manifest exception reports as required of generators producing greater than 1000 kg/mo of hazardous wastes; and (4) retain copies of all manifests for up to three [14 ELR 10460] years.¹⁶ These statutory requirements would remain in effect until EPA promulgates the required standards.¹⁷

The new small quantity generator provisions will subject over 130,000 new generators to regulation¹⁸ — more than double the 60,000 that notified EPA in 1980 that they were generators.¹⁹ Most of these generators will be small businesses, such as dry cleaning establishments and gasoline stations. This category of generators will need to spend up to $100 million each year to comply with the new regulations. Another effect of these provisions will be that an additional 15 million metric tons of hazardous wastes will be sent to hazardous waste treatment, storage, and disposal facilities each year.²⁰ To date, in most areas of the country, where local ordinances do not bar it, hazardous wastes generated by small quantity generators typically have been sent to municipal landfills that are not required to meet strict waste management standards and, in fact, are now known to create many environmental problems. The Amendments will not change this in the short run, since small generators initially must use RCRA-permitted facilities, or licenced municipal or industrial waste sites.

Congress was aware of these effects and problems, but decided that the broader coverage was necessary to protect human health and the environment. It is not clear, however, that Congress considered fully the impact of the small quantity generator requirements in relation to other major changes mandated by the Amendments. For example, by March 31, 1986, all hazardous wastes generated by small quantity generators will have to be disposed of in permitted or interim status facilities. By the same time, however, other provisions in the Amendments will effectively prohibit some, if not all, forms of land disposal for many hazardous wastes and impose stringent, minimum technological requirements for all other hazardous waste facilities. The almost inevitable result will be a greatly reduced number of hazardous waste facilities available to receive the wastes generated by the small quantity generators.²¹ Where will these newly regulated wastes be disposed of? Congress apparently envisioned that small quantity generators would resort to incineration and other new technologies to handle their wastes.Yet incineration is only effective for destroying organic compounds and there is limited incineration capacity available.²² And the Amendments do nothing to expedite the permitting of hazardous waste incinerators and little to facilitate the development of new technologies.²³ The new requirements for safer disposal combined with the decreasing number of hazardous waste facilities at which disposal will be legal will drive up the disposal costs for small businesses and increase their resistance to compliance. Unless EPA is equipped to undertake massive enforcement efforts against these newly regulated generators, the small generator provision, at best, may do little to relieve the risks posed by the 15 million metric tons of wastes produced each year by the small quantity generators.

Land Disposal Provisions

Land disposal²⁴ of liquids and highly mobile or persistent hazardous wastes can present significant long-term risks to ground and surface water because, eventually, the wastes or their constituents will leak or leach from the disposal unit. Nonetheless, since land disposal is less expensive than the primary alternatives of incineration or physical-chemical treatment, it is by far the most commonly employed method for disposing of hazardous wastes. To avoid the risks from land disposal of hazardous wastes and to encourage the development of new treatment and disposal technologies, Congress enacted land disposal provisions that effectively phase out land disposal as a method of hazardous waste management.

Congress' policy regarding land disposal of hazardous wastes is simple and straightforward: (1) "reliance on land disposal should be minimized or eliminated"; and (2) "land disposal, particularly landfill and surface impoundment, should be the least favored method for managing [14 ELR 10461] hazardous waste."²⁵ Three major provisions in the Amendments implement this policy. The first prohibits, or severely restricts, land disposal of hazardous and nonhazardous liquids. The second effectively phases out land disposal of many hazardous wastes by all or most types of facilities. The third imposes stringent, minimum technological requirements on all existing and new landfills and surface impoundments.

To ensure that EPA would not fail to give full and immediate effect to these provisions, Congress set out with great specificity what EPA must do and by what dates. Moreover, to ensure that EPA would not fail to meet the deadlines, Congress included statutory prohibitions (more "hammers") that will go into effect automatically if EPA misses the deadlines.

Land Disposal of Liquids

Congress was particularly concerned with land disposal of liquids. Because liquids can readily leak from a land disposal unit or move within the wastes in a unit, Congress enacted measures to prohibit or minimize the land disposal of liquids. The Amendments impose an immediate prohibition on the placement of non-containerized or bulk liquid hazardous wastes in any salt dome or salt bed formation, underground mine or cave unless EPA determines that placement of liquids in the facility is "protective of human health and the environment," promulgates performance and permitting standards, and issues a permit to the facility.²⁶ After May 8, 1985, the Amendments prohibit disposal of bulk and non-containerized liquid hazardous wastes in any landfill.²⁷ After November 8, 1985, the Amendments prohibit the disposal of non-hazardous liquids in an interim status or permitted landfill, unless the owner/operator of the facility demonstrates to EPA that disposal will not "present a risk of contamination" of a drinking water source and that the "only reasonably available alternative" to placing the liquids in the landfill is their placement in a landfill or unlined surface impoundment "which contains, or may reasonably be anticipated to contain," hazardous wastes.²⁸ By February 8, 1986, EPA must promulgate regulations to minimize the disposal of containerized liquid hazardous wastes in landfills and to minimize the presence of free liquids in containerized hazardous wastes in landfills.²⁹ These regulations must prohibit the disposal in landfills of liquids that have been absorbed in materials that biodegrade or that release liquids when compressed.³⁰

Land Disposal of Specified Hazardous Wastes

The Amendments prohibit all methods of land disposal (except deep well injection) of the so-called "California list" hazardous wastes³¹ (effective in 32 months) and of the dioxin-containing listed hazardous wastes³² and listed spent solvents³³ (effective in 24 months), "unless [EPA] determines that the prohibition of one or more methods of land disposal of such waste is not required in order to protect human health and the environment for as long as the waste remains hazardous …."³⁴ This determination must take into account (a) the long-term uncertainties associated with land disposal; (b) the goal of managing hazardous wastes in an appropriate manner in the first instance; and (c) the persistence, toxicity, mobility, and propensity of hazardous wastes and their constituents to bioaccumulate.³⁵ A method of land disposal is not "protective of human health and the environment" for these wastes unless an interested person demonstrates "to a reasonable degree of certainty" that there will be "no migration of hazardous constituents" from the disposal unit for "as long as the wastes remain hazardous."³⁶ These tests are nearly impossible to satisfy. Thus, the Amendments will effectively prohibit the land disposal of these wastes.

Disposal in Deep Injection Wells

Congress required EPA to review the disposal of the California-list wastes, specified dioxin-containing wastes, and listed spent solvents in deep injection wells within 45 months and to promulgate regulations prohibiting such disposal if it "may be reasonably determined" that such disposal method may not be "protective of human health and the environment."³⁷ If, however, EPA fails to make that determination for any of these wastes by the deadline, the disposal of that waste into any deep injection well will be prohibited.³⁸

Other Listed Hazardous Wastes

EPA must submit on Congress a schedule for reviewing [14 ELR 10462] all other listed hazardous wastes in order to determine whether one or more methods of land disposal of those wastes should be prohibited.³⁹ Not later than specified dates several years after enactment,⁴⁰ EPA must promulgate, for each waste, regulations prohibiting all methods of land disposal, except those that EPA determines will be "protective of human health and the environment"⁴¹ Congress again included "hammers." If EPA fails to meet the 45- or 55-month deadline, disposal in a landfill or surface impoundment of any waste in the one-third or two-thirds of listed wastes to have been regulated will be prohibited unless (a) the landfill or impoundment meets the new minimum technological requirements established by the Amendments,⁴² and (b) the generator certifies that he has investigated the availability of treatment capacity and has determined that the use of a landfill or surface impoundment is the "only practical alternative to treatment currently available …."⁴³ If EPA "fails to promulgate regulations, or make a determination" regarding any listed waste within 66 months, land disposal of such waste is prohibited.⁴⁴

The Amendments authorize two types of variances from these land disposal prohibitions. First, EPA can grant a "variance" from any land disposal prohibition for a specific hazardous waste for up to two years if it determines that adequate alternative treatment, recovery, or disposal capacity for that waste is not available.⁴⁵ Second, EPA, in individual cases, can grant a one-year "extension" to an applicant who demonstrates that he has a binding contract to construct or provide alternate capacity which cannot be made available by the effective date of the applicable prohibition due to circumstances beyond the applicant's control.⁴⁶ During the variance (or an extension of the variance), the waste can be disposed of in a landfill or surface impoundment only if the facility meets the new minimum technological requirements.⁴⁷

Storage and Treatment of Prohibited Wastes

After the land disposal of any hazardous waste is prohibited, the Amendments also prohibit the storage of waste except for accumulating quantities necessary for proper treatment or disposal.⁴⁸ At the same time as it promulgates regulations prohibiting one or more methods of land disposal for a listed hazardous waste, EPA must promulgate regulations establishing levels or methods of treatment which "substantially diminish" the toxicity of the waste or "substantially reduce" the likelihood of migration of hazardous constituents from the waste.⁴⁹ If a hazardous waste has been treated according to the level or by a method specified by the regulation, it would not be subject to any prohibition "promulgated" by EPA.⁵⁰ The Amendments contain an ambiguity on this point. The prohibitions of landfilling the specified wastes under §§ 3004(d) and (e) need not be "promulgated"; they are statutory in origin. Arguably this would preclude EPA from establishing pretreatment standards. However, were this Congress' intent it would not have referred to subsections (d) and (e) in subsection (m), the pretreatment section. In addition, subsections (d) and (e) make specific reference to the applicability of pretreatment standards. Thus, the ambiguity probably is unintentional and should not be read to limit the pretreatment program.

Minimum Technological Requirements

In the Amendments, Congress established minimum technological requirements for existing and new landfills and surface impoundments in order to ensure that the landfill or surface impoundment is designed to minimize the risk of hazardous wastes or their constituents migrating from the unit and to ensure that any such migration will be detected if it does occur. Any permit issued after November 8, 1984 for a new or replacement landfill or surface impoundment or a lateral expansion of an existing facility must require, at a minimum, two or more liners, a leachate collection system above (in the case of a landfill) and between the liners, and groundwater monitoring.⁵¹ An owner or operator will not have to comply with these requirements if he demonstrates to EPA that an "alternative design," together with operating practices and location characteristics, will prevent the migration of hazardous waste constituents into the groundwater or surface water at least as well as double liners and leachate collection systems.⁵² By November 8, 1986, EPA [14 ELR 10463] must promulgate regulations or issue guidance documents to implement these requirements. Until then, an owner or operator can satisfy the double-liner requirement by installing a top liner capable of preventing migration of any constiuents into the liner during the facility's life and a lower liner meeting stringent technical requirements.⁵³ In addition, within 30 months, EPA must promulgate standards requiring new landfills, surface impoundments, waste piles, underground storage tanks, and other land disposal units to have leak detection systems.⁵⁴

Most interim status surface impoundments must comply with the new minimum technological requirements within four years.⁵⁵ The owner or operator of a surface impoundment can apply (within 24 months) for a determination that the unit does not have to comply if (a) it has one non-leaking liner, is in compliance with groundwater monitoring requirements, and is located at least one-quarter of a mile from any underground drinking water source; (b) it is part of a wastewater treatment system and meets certain other requirements; or (c) he can demonstrate that "there will be no migration of any hazardous constituent into ground water or surface water at any future time."⁵⁶ Most interim status surface impoundments will have difficulty complying with either the exemption requirements or the minimum technological standards.

Effects of Land Disposal Restrictions

By these Amendments, Congress effectively has required EPA to phase out most, if not all, methods of land disposal of hazardous wastes. To the extent that any method of land disposal might still be allowed, Congress has shifted the burden to EPA to take action before the statutory prohibitions take effect and to industry to urge that EPA act in time.⁵⁷ It is doubtful that EPA is capable of meeting the statutory deadlines, even with prodding from industry, unless it can develop simple new procedures for evaluating land disposal methods' protection of health and the environment.⁵⁸ Even if EPA develops such procedures, the burden placed on a company to demonstrate "to a reasonable degree of certainty" that there will be "no migration of hazardous constituents" from the unit "for as long as the waste remains hazardous" may be virtually insurmountable. Thus, industry may, instead, elect to invest in incineration and physical-chemical treatment as methods of managing the California list wastes, dioxin-containing wastes, and listed spent solvents rather than attempt to obtain an exception for a method of land disposal for these wastes. With regard to the other listed wastes, industry may decide to focus its efforts on urging EPA to promulgate reasonable treatment standards that would avoid the regulatory prohibitions rather than trying to overcome the burden necessary to obtain an exception. If this happens, Congress will have effectively achieved its goal of forcing the increased use of non-land disposal hazardous waste management methods and the development of new hazardous waste management technology. Whether the waste disposal industry can respond, with the time allowed, to this new technology-forcing imperative with enough effective treatment and incineration capacity to handle the growing hazardous waste load remains to be seen.

To the extent that Congress actually intended to allow some forms of land disposal to continue, the "hammer" in § 3004(g) may cause an irrational and unintended result.⁵⁹ Section 3004(g) expressly requires EPA to promulgate regulations by a specific data prohibiting all methods of land disposal of the listed wastes, except for methods determined to be protective of human health and the environment. A separate subparagraph provides that all land disposal is prohibited for any waste for which EPA has not promulgated the required prohibition or made the required determination within 66 months. Thus, the statutory prohibition is triggered solely by EPA's failure to act. Congress apparently intended not to allow EPA to override the statutory prohibition in § 3004(g) by making a determination after the statutory deadline that one or [14 ELR 10464] more methods of disposal for a waste will be protective of human health and the environment.⁶⁰ If Congress did not intend this result, it would have used a construction similar to the other provisions,⁶¹ or at least would not have made the prohibition solely contingent on EPA's failure to act. Thus, the statutory prohibitions for the other listed wastes apparently deprive EPA of jurisdiction over any form of land disposal for nay waste for which it has not taken action within 66 months.⁶²

Major New Regulatory Programs

The Amendments create two major new regulatory programs. One governs leaking underground storage tanks.⁶³ The other applies to burning fuels containing used oil or hazardous wastes.⁶⁴

Underground Storage Tanks

Recently, leaking underground storage tanks have been identified as a major source of groundwater contamination. Over 100,000 underground tanks are thought to be leaking.⁶⁵ An additional 350,000 underground tanks will reportedly begin leaking within the next five years.⁶⁶ The Amendments address these problems by creating a major new regulatory program to identify leaking underground storage tanks, to require corrective actions when tanks are leaking, and to prevent the installation of new tanks that could be a future source of problems. The scope of this new program appears awesome. Rough estimates suggest that as many as 2.8- to 5-million underground storage tanks would qualify for regulation under the program.⁶⁷ Under the Amendments, a tank will be subject to regulation if 10 percent of its volume, including the volume of all underground pipes connected to it, is beneath the surface of the ground⁶⁸ and it contains a regulated substance.⁶⁹

The regulatory program for underground storage tanks will be administered by EPA or by any state that has a program meeting the requirements set out in the Amendments and has standards that are no less stringent than the federal program.⁷⁰ By May 8, 1985, the governor of each state must designate an agency to receive notification from all tank owners in the state.⁷¹ Before May 8, 1986, the owners of new tanks, existing tanks, or tanks taken out of operation after 1973 must notify that agency of the age, size, type, location, and uses of each tank.⁷² Within 27 months of November 8, 1984, EPA must promulgate regulations that, at a minimum, include requirements for (1) a leak detection system, an inventory control system, together with tank testing or a comparable method for identifying releases; (2) recordkeeping for monitoring and leak detection; (3) reporting of releases and corrective actions; (4) corrective actions in response to releases; and (5) closure of the tanks when necessary to prevent future releases of regulated substances.⁷³ In addition, EPA must promulgate regulations establishing [14 ELR 10465] financial responsibility requirements.⁷⁴ Within 30 months of enactment, EPA must promulgate performance standards for new tanks, including standards for design, construction, installation, release detection, and compatibility standards.⁷⁵ Until such standards take effect, no new underground tank may be installed unless it meets specific requirements designed to prevent releases due to corrosion or structural failure, or unless the soil resistivity surrounding the tank is 12,000 ohm/cm or greater.⁷⁶

Burning and Blending of Hazardous Wastes

EPA regulations exempt from most regulation hazardous wastes that are "beneficially used or reused," including those wastes burned as fuel for energy recovery.⁷⁷ An estimated 10- to 20-million metric tons of hazardous wastes and used oil are burned each year as fuel in boilers. When EPA promulgated the beneficial use regulations in early 1980, it stated its intent by late 1981 to address the risks posed by burning certain hazardous wastes and used oil as a fuel.⁷⁸ However, it did not do so. In response, Congress created a second major new regulatory program under the Amendments for managing the burning and blending of hazardous wastes.⁷⁹ Within 15 months of enactment, producers, users, distributors, and marketers of fuel produced from used oil or hazardous wastes or containing used oil or hazardous wastes must file with EPA (and with the state if it has an authorized hazardous waste program) a notification describing the facility, the hazardous wastes involved, and, where applicable, the production or energy recovery activity involved.⁸⁰

Within two years, EPA must promulgate standards applicable to producers, users, distributors, or marketers of fuels containing hazardous wastes as are "necessary to protect human health and the environment" from the effects of burning and blending hazardous wastes.⁸¹ EPA may exempt from these standards facilities that (1) burn de minimis quantities of hazardous wastes generated at the same facility; (2) burn the wastes to recover useful energy; and (3) burn the wastes in a device determined by EPA to have sufficient destruction and removal efficiency to protect human health and the environment.⁸² After February 6, 1985, and until EPA promulgates the new standards, a warning label must be placed on the invoice or bill of sale accompanying fuels produced from or containing any hazardous wastes.⁸³ Within 15 months of enactment, EPA must promulgate recordkeeping requirements for anyone producing, burning, distributing, or marketing fuel containing used oil or hazardous wastes.⁸⁴

Corrective Actions

The Amendments expand EPA's ability to take corrective actions to prevent or remedy surface or groundwater contamination from leaking active and inactive land disposal units. EPA's current regulations do not allow EPA to require permitted facilities to correct releases from inactive units or to require corrective actions at interim status facilities. The Amendments close both of these loopholes.

Under EPA's current groundwater protection program, the owner/operator of a permitted hazardous waste facility must comply with groundwater monitoring and corrective action programs only for units that received wastes after January 26, 1983.⁸⁵ Thus, an owner or operator seeking a permit for or operating a facility could not be required to take corrective actions for contamination escaping from an inactive unit at that facility. To correct this loophole, Congress directed that any permit for a hazardous waste facility issued after the effective date of the Amendments must "require corrective action for all releases of hazardous waste or constituents" from any solid waste management unit at the facility, "regardless of the time at which waste was placed in such unit."⁸⁶

In addition, EPA's current regulations do not require interim status facilities to take corrective actions. EPA estimates that up to 60 percent of interim status facilities have leaked or are leaking and require corrective action.⁸⁷ Under present regulations, in order to require an interim status facility to take corrective action, EPA must bring the facility under its permit review process and require corrective action as a condition for receiving a final permit. To address this problem, the Amendments authorize EPA to issue an interim status corrective action order or to commence a civil action seeking injunctive relief requiring an interim status facility to undertake corrective actions "necessary to protect human health and the environment."⁸⁸ In addition, EPA can suspend [14 ELR 10466] or revoke a facility's interim status.⁸⁹ If any person does not comply with EPA's order, EPA can assess a civil penalty of up to $25,000 per day for noncompliance with the order.⁹⁰

The Amendments also expand the scope of corrective actions at hazardous waste facilities by directing EPA to amend standards regarding corrective actions "[a]s promptly as possible" to require facilities to take corrective actions "beyond the facility boundary" where "necessary to protect human health and the environment," unless the owner/operator can demonstrate that, despite the owner/operator's "best efforts," he was unable to obtain the necessary permission to undertake such action.⁹¹ These amended standards must apply to all permitted facilities, landfills, surface impoundments, and waste pile units that received hazardous wastes after July 26, 1982.⁹²

The Amendments also expand EPA's authority to address problems at inactive sites which are not subject to the permitting process. RCRA § 7003 currently grants EPA authority to immediately restrain any person "contributing to" disposal of any solid or hazardous waste that "may present an imminent and substantial endangerment." Several courts interpreted § 7003 not to authorize EPA to bring an imminent hazard suit against parties who previously contributed wastes to an abandoned site that presents an imminent hazard.⁹³ Under this interpretation, EPA would lack the authority under § 7003 to address problems at abandoned hazardous waste sites and would have to resort to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to correct these problems. The Amendments expressly extend the scope of § 7003 to allow EPA to bring a suit against "any person," including any "past or present" generator, transporter, or owner or operator of a hazardous waste facility "who has contributed or who is contributing" to an activity that "may present an imminent and substantial endangerment to health or the environment."⁹⁴

The Conference Report states that Congress intended the Amendments specifically to overrule the prior district court decision that restricted the application of § 7003.⁹⁵ The Conference Report opined that it always was the intent of Congress that persons who contributed in the past or are presently contributing to the endangerment were included within the scope of RCRA's imminent hazard provision.⁹⁶

By expanding the parties whom EPA can sue under § 7003 to past and present generators, transporters, and owners/operators, Congress now authorizes EPA to use RCRA to address both active and inactive hazardous waste sites that present an imminent and substantial endangerment and makes EPA's authority under CERCLA § 106 and RCRA § 7003 virtually identical. The overall effect of the corrective action provisions and the change in the imminent hazard provision in the Amendments is to make EPA's RCRA authority overlap extensively with its authority under CERCLA to address releases from hazardous waste facilities.⁹⁷

Citizen Suits

The expansion in the parties who can be sued under RCRA's imminent hazard provision is particularly significant in light of the fact that the Amendments authorize citizen suits to enforce the imminent hazard provision when EPA is not adequately addressing the problem. RCRA authorizes a citizen suit in a federal district court (a) against any person alleged to have violated any permit standard, regulation, condition, requirement, or order under RCRA, or (2) against EPA for allegedly failing to perform a non-discretionary duty.⁹⁸ District courts have interpreted this provision not to grant a private right of action to enforce RCRA's imminent hazard provision.⁹⁹ In response to these decisions, Congress amended the citizen suit provision to allow suits to enforce the imminnent hazard provision.¹⁰⁰ A citizen suit can be filed to enforce the imminent hazard provision only after giving 90 days' notice to EPA, the state where the endangerment occurs, and any person alleged to have contributed to the endangerment.¹⁰¹ No citizen suit may be commenced to enforce [14 ELR 10467] the imminent hazard provision if EPA or a state (1) has "commenced and is diligently prosecuting" an action under RCRA § 7003 or CERCLA § 106; (2) is engaged in a removal action under CERCLA § 104; or (3) has incurred any cost to initiate a remedial investigation/feasibility study (RI/FS) under CERCLA § 104 and is diligently proceeding with remedial action.¹⁰² In addition, no private right of action is available if EPA has obtained a court order (including a consent decree) or issued an administrative order under CERCLA § 106 or RCRA § 7003, pursuant to which a responsible party is diligently conducting a removal action or RI/FS or proceeding with a remedial action.¹⁰³ Citizen suits also are barred with respect to siting or permitting of hazardous waste facilities.¹⁰⁴ Previously, attorneys fees and costs in citizen suits were awarded "any party."¹⁰⁵ Under the Amendments, attorneys fees and costs will only be awarded to "the prevailing or substantially prevailing party."¹⁰⁶

If the government wants to settle any allegation of imminent and substantial endangerment under RCRA § 7003, it must provide notice and an opportunity for public comment and hold a public meeting in the local area.¹⁰⁷ However, the decision whether to settle is not an agency action subject to judicial review.¹⁰⁸

Conclusion

It may be unrealistic to expect EPA to complete all the tasks required by the 1984 RCRA Amendments. To fulfill the statutory requirements, EPA must complete over 30 rulemakings and meet over 50 deadlines — most of them within the next two years. The Amendments treble the number of generators that EPA will have to regulate. They create two major new programs covering hundreds of thousands of private entities and require EPA to process promptly permits for over 1500 hazardous waste facilities.¹⁰⁹ And Congress has placed the onus of making the new RCRA program succeed totally on EPA.¹¹⁰

The success or failure of the new RCRA program may be preordained by the nature of the Amendments. Even a casual review reveals that they do not resemble traditional environmental statutes. In nearly all previous environmental legislation, Congress has established broad environmental goals and delegated to the agency the authority to make the technical and scientific decisions necessary to implement those goals. In contrast, the Amendments have the specificity and detail of regulations and confer only limited discretion on EPA for implementing those regulations. Congress clearly has invaded the bailiwick of the administrative agency by engaging in highly technical and scientific decision-making.¹¹¹ Thus, the success or failure of the amended RCRA program depends in large part on the real world effect of Congress' decisions. If EPA's attempt to implement the new hazardous waste management program fails, any assessment of the blame for the failure should give equal consideration to the wisdom of Congress' new approach to environmental legislation as to EPA's "incompetence and lack of will."¹¹²

1. 42 U.S.C. § 6901 et seq., ELR STAT. 41901.

2. The RCRA rules are codified at 40 C.F.R. pts. 260-265, ELR REG. 47301. For a general description of that regulatory program, see J. QUARLES, FEDERAL REGULATION OF HAZARDOUS WASTES (1982).

3. Pub. L. No. 98-616, 96 Stat. 3221 (forthcoming). The only version of the amendments available at press time is in the Conference Report, H.R. REP. NO. 1133, 98th Cong., 2d Sess. (1984). Citations to the 1984 Act [hereinafter cited as Amendments] and to the analysis in the Report [hereinafter cited as Conference Report] both refer to this document. RCRA will be republished as amended in ELR STAT. in the near future, beginning at ELR STAT. 41901. It is not possible to give ELR STAT. cites for the Amendments as yet. U.S. Code cites also are unavailable. The RCRA section numbers given for the Amendments are those identified in the Conference Report.

The Amendments, sec. 2(a), reauthorize RCRA through 1988. Any requirement or prohibition established by the Amendments regarding the generation, transportation, treatment, storage, or disposal of hazardous wastes is effective not only in states where EPA is administering the program, but also in states having interim or finally-authorized RCRA programs. Amendments, sec. 228, RCRA § 3006(g). EPA will administer the requirements of the Amendments in a state with interim or final authorization, unless EPA grants the state interim or final authorization with regard to the requirements under the Amendments. Id. The Amendments allow regulations to be effective immediately upon promulgation. This contrasts with prior law, which generally required a six-month delay. Any regulation promulgated after November 8, 1984 (the date the Amendments became law), can have an immediate effective date when EPA determines that (1) the regulated community does not need six months to respond; (2) there is an emergency situation; or (3) "other good cause" exists. Id., sec. 234, RCRA § 3010(b).

4. 130 CONG. REC. H11,141 (daily ed. Oct. 3, 1984) (statement of Congressman Florio, sponsor of H.R. 2867).

5. RCRA § 3002.

6. 45 Fed. Reg. 33084, 33104 (1980).

7. 40 C.F.R. § 261.5 (1983). The exemption for generators who generate less than 1000 kg in each calendar month is referred to as the "small quantity generator exemption." EPA's plan to regulate small generators was announced in the preamble, 45 Fed. Reg. 33084, 33104 (1980).

8. See, e.g., H.R. REP. NO. 98-198, to accompany H.R. 2867, 98th Cong., 1st Sess. 25-26 (1983); S. REP. NO. 98-284, to accompany S. 757, 98th Cong., 1st Sess. 7 (1983).

9. Amendments, supra note 3, sec. 221(a), RCRA § 3001(d)(1).

10. Id., sec. 221(a), RCRA § 3001(d)(2). In hearings, some members of Congress expressed concern that this standard might undercut the express authority to make the standards applied to small quantity generators different from those applicable to larger generators.Conference Report, supra note 3, at 102. In response, the Conference Report points out that EPA is not required to "select a single regulatory approach that is applicable to all hazardous wastes and generators of hazardous wastes." Id. Instead, Congress recognizes that a range of regulatory options is available to satisfy the mandate that human health and the environment be protected. The Conference Report states that the selection of a particular approach will be lawful as long as it "satisfies the statutory mandate and is not an arbitrary or capricious decision." Id. at 103. The Conference Report suggests that distinctions might be made on the basis of "waste characteristics, waste management practices and locational criteria." Id.

11. Amendments, supra note 3, sec. 221(a), RCRA § 3001(d)(6). The Amendments authorize on-site storage without a permit for not more than 6000 kg for up to 270 days if the generator must ship or haul the wastes over 200 miles. Id.

12. Id., sec. 221(a), RCRA § 3001(d)(3). The Amendments say "not later than 270 days after the enactment of the [Amendments]. In the remainder of this article, deadlines usually will be stated as specific dates.

13. Id. The manifest must contain (1) the name and address of the generator, (2) a description of the waste, (3) the number and type of containers, (4) the quantity of waste, and (5) the name and address of the facility designated to receive the waste. Id.

14. Id., sec. 221(a), RCRA § 3001(d)(5).

15. Id., sec. 221(a), RCRA § 3001(d)(8).

16. Id. The original version of H.R. 2867 subjected these generators to all the regulations imposed upon generators of greater than 1000 kg/mo of hazardous wastes. This "hammer," as it was referred to in the debates, was replaced in H.R. 2867 by the Shelby-Lent Amendment which, as introduced, was essentially similar to the small quantity generator provision in the Amendments. 129 CONG. REC. H6514-15 (daily ed. Aug. 4, 1983). The Shelby-Lent Amendment, as introduced, adopted verbatim a compromise agreement worked out between major environmental and industry groups regarding this provision. Id. at H6517.

17. The Amendments also expressly authorize, but do not require, EPA to promulgate standards for generators who generate less than 100 kg of hazardous waste each month. Amendments, supra note 3, sec. 221(a), RCRA § 3001(d)(4). In addition, the Amendments direct EPA to conduct a study to identify the impact of that study to Congress by April 1, 1985. Amendments, supra note that study to Congress by April 1, 1985. Amendments, supra note 3, sec. 221(c). Finally, Congress required EPA to identify means of simplifying the manifest system, as well as other ways to relieve the regulatory burden on these generators, and to report to Congress not later than April 1, 1987 on the results of these studies. Amendments, supra note 3, secs. 221(e), (f).

18. See, e.g., 129 CONG. REC. H6516 (daily ed. Aug. 4, 1983) (statement of Congressman Skelton).

19. See, e.g., 130 CONG. REC. S13817 (daily ed. Oct. 5, 1984) (statement of Senator Chafee).

20. 130 CONG. REC. S13816 (daily ed. Oct. 5, 1984) (statement of Senator Mitchell).

21. Currently, there are approximately 1500 land disposal facilities. John Skinner, Director of the RCRA Program at EPA, estimates that up to 70 percent of the facilities may close as a result of the new minimum technological requirements. 15 [Current Developments] ENV'T REP. (BNA) at 1275 (Nov. 23, 1984).

22. 129 CONG. REC. H6509 (daily ed. Aug. 4, 1983) (statement of Congressman Skelton pointing out the limited capacity to incinerate this waste in a cost-effective manner). Variances from the land disposal prohibitions, Amendments, supra note 3, sec. 201(a), RCRA § 3004(h), will not effectively mitigate the burden on the small quantity generators because, during the variance, hazardous wastes can be disposed of in a landfill or surface impoundment only if that facility meets the new minimum technological requirements. The Amendments do require generators, after September 1, 1985, to certify on the manifest that the generator has "a program in place to reduce the volume … of waste" to the degree "economically practicable," id., sec. 224(a)(1), RCRA § 3002(b)(1), and to document this program, id., sec. 224(a)(2), RCRA § 3002(a)(6).

23. EPA may issue a "research, development and demonstration permit" for any hazardous waste facility which proposes to utilize an innovative and experimental treatment technology following an expedited review process. Amendments, supra note 3, sec. 214(a), RCRA § 3005(g).

24. The term "land disposal" includes, but is limited to: "[A]ny placement of … [such] hazardous waste in a landfill, surface impoundment, waste pile, injection well, land treatment facility, salt dome formation, salt bed formation, or underground mine or cave." Id., sec. 201(k), RCRA § 3004(k).

25. Id., sec. 101(a)(7), RCRA § 1002(b)(7).

26. Id., sec. 201(a), RCRA § 3004(b).

27. Id., sec. 201(a), RCRA § 3004(c)(1). In the interim, existing regulatory limitations on liquids in landfills remain in effect. Id.

28. Id., sec. 201(a), RCRA § 3004(c)(3).

29. Id., sec. 201(a), RCRA § 3004(c)(2). Until EPA promulgates these regulations, the requirements in effect on April 30, 1983, regarding the disposal of containerized liquid wastes in landfills, remain in effect. Id.

30. Id.

31. The "California list" of hazardous wastes includes liquid hazardous wastes and sludges containing specified concentrations of cyanide, heavy metals or arsenic, highly acidic liquids, liquids containing 50 or more parts per million of PCBs and halogenated organic compounds in total concentrations of 1000 mg/kg or greater. Id., sec. 201(a), RCRA § 3004(d)(2).

32. These wastes were proposed as listed hazardous wastes F020, F021, F022, and F033 in 48 Fed. Reg. 14514 (1983).

33. The spent solvents are listed as hazardous wastes F001, F002, F003, F004, and F005 in 40 C.F.R. § 261.31 (1983).

34. California list wastes, Amendments, supra note 3, sec. 201(a), RCRA § 3004(d)(1); dioxin-containing wastes and spent solvents, id., sec. 201(a), RCRA § 3004(e)(1). For 48 months, this prohibition does not apply to the disposal of contaminated soil or debris from a response action taken under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9657, ELR Stat. 41941, or a RCRA corrective action. Amendments, supra note 3, sec. 201(a), RCRA §§ 3004(d)(3), (e)(3).

35. Amendments, supra note 3, sec. 201(a), RCRA §§ 3004(d)(1)(A)-(C), 3004(e)(1).

36. Id., sec. 201(a), RCRA §§ 3004(d)(1), (e)(1).

37. Id., sec. 201(a), RCRA §§ 3004(f)(1), (2). In determining whether deep well injection is protective of human health and the environment, EPA must consider the three factors set out in RCRA §§ 3004(d)(1)(A)-(C). The Amendments prohibit deep well injection of hazardous astes into any formation that contains an underground source of drinking water above or within one-quarter mile of the well. Id., sec. 405(a), RCRA § 7010(a).

38. Id., sec. 201(a), RCRA § 3004(f)(3).

39. Id., sec. 201(a), RCRA § 3004(g)(1). EPA must base the schedule on a consideration of the intrinsic hazard and volume of the listed wastes such that determinations regarding land disposal of wastes high in intrinsic hazard or volume occur first. Id., sec. 201(a), RCRA § 3004(g)(2). EPA does not need to hold a hearing to establish the schedule, and the schedule is not subject to judicial review. Id., sec. 201(a), RCRA § 3004(g)(3). Congress intended, however, that EPA's failure to prepare the schedule could be reviewed by a court. Conference Report, supra note 3, at 87.

40. The Administrator must complete his determination for one-third of the wastes on the schedule within 45 months, two-thirds within 55 months, and all of the wastes in 66 months. Amendments, supra note 3, sec. 201(a), RCRA § 3004(g)(4).

41. Id., sec. 201(a), RCRA § 3004(g)(5). EPA's determination is to be based upon the factors set out in RCRA §§ 3004(d)(1)(A)-(C). A method of land disposal may be allowed only if EPA finds "to a reasonable degree of certainty" based upon a demonstration by the facility owner or operator or other interested party that there will be no migration of hazardous constituents from the disposal unit or injection zone for as long as the waste remains hazardous. Id.

42. Id., sec. 201(a), RCRA §§ 3004(g)(6)(A), (B).

43. Id.

44. Id., sec. 201(a), RCRA § 3004(g)(6)(C).

45. Id., sec. 201(a), RCRA § 3004(h)(2).

46. Id., sec. 201(a), RCRA § 3004(h)(3).

47. Id., sec. 201(a), RCRA § 3004(h)(4).

48. Id., sec. 201(a), RCRA § 3004(j).

49. Id., sec. 201(a), RCRA § 3004(m)(1).

50. Id., sec. 201(a), RCRA § 3004(m)(2). The treated waste presumably would escape the statutory prohibitions concerning hazardous waste if it were delisted, however.

51. Id., sec. 202(a), RCRA § 3004(o)(1). Congress reversed one part of a settlement agreement concerning the term of permits. EPA initially set 10 years as the maximum term for RCRA permits but, in litigation, agreed to lifetime permits. In the Amendments, Congress reestablished the ten-year term and required review every five years for land disposal permits, id., sec. 212, RCRA § 3005(c)(3).

52. Id., sec. 202(a), RCRA § 3004(o)(2).

53. Id., sec. 202(a), RCRA § 3004(o)(5).

54. Id., sec. 202(a), RCRA § 3004(o)(4)(A).

55. Id., sec. 215, RCRA § 3005(j)(1). If, at some point, the so-called "special" wastes, i.e., mining wastes, utility wastes, and cement kiln dust are regulated, the Amendments authorize EPA to "modify" the new minimum technology requirements for the disposal of these wastes in landfills or surface impoundments to take into account (1) the special characteristics of these wastes, (2) the practical difficulties of implementing the requirements for them, and (3) site-specific characteristics of the disposal sites. Id., sec. 209, RCRA § 3004(x).

56. Id., sec. 215, RCRA § 3005(j)(2).

57. The Amendments also require EPA to address other major aspects of the scope of RCRA in the next two years. They establish a schedule by which EPA must consider listing certain wastes as hazardous wastes. Within six months, EPA must decide whether to list wastes containing chlorinated dioxins or chlorinated-dibenzofurans. Id., sec. 222(a), RCRA § 3001(e)(1). Within one year, EPA must decide whether to list wastes containing other halogenated dioxins and halogenated dibenzofurans. Id. Also within 12 months, EPA must decide whether to propose the listing of used automobile and truck crankcase oil as a hazardous waste and must make a final determination regarding used oil within 24 months. Id., sec. 241(a), RCRA § 3014(b). Within 15 months, EPA must determine whether to list as hazardous wastes the following: chlorinated aliphatics, dioxin, dimethyl hydrazine, toluene diisocyanate, carbamates, bromocil, linuron, organo-bromines, solvents, refining wastes, chlorinated aromatics, dyes and pigments, inorganic chemical industry wastes, lithium batteries, coke by-products, paint production wastes, and coal slurry pipeline effluent. Id., sec. 222(a), RCRA § 3001(e)(2). Within two years, EPA must identify additional characteristics of hazardous waste including indicators of toxicity, id., sec. 222(a), RCRA § 3001(h), and must identify or list those wastes that are hazardous only because of the presence of certain constituents, such as carcinogens, mutagens or teratagens, at dangerous levels. Id., sec. 222(b), RCRA § 3001(b)(1). Finally, EPA must examine deficiencies in the extraction procedure toxicity characteristic within 28 months to ensure it accurately predicts the leaching potential of wastes which pose an environmental threat when mismanaged. Id., sec. 222(a), RCRA § 3001(g).

58. Concern about the various "hammer" provisions apparently has caused the Office of Solid Waste at EPA to consider proposing a very simple "generic" land disposal model for landfills, waste piles, and surface impoundments as the principal decision tool for deciding whether to ban a variety of very dissimilar wastes. See RCRA Hazardous Waste: Identification and Land Disposal Restrictions Groundwater Screening Procedure, presented to the EPA Science Advisory Board's Environmental Engineering Committee in Arlington, Virginia (Nov. 27, 1984).

59. RCRA § 3004(f) relates only to a single method of land disposal, deep well injection. EPA is required to prohibit this method for the California list wastes, dioxin-containing wastes, and listed spent solvents within 45 months, unless the method is protective of human health and the environment. This provision contains a statutory prohibition that is identical to RCRA § 3004(g). Thus, the analysis regarding the effect of that prohibition would apply equally to the prohibition in RCRA § 3004(f).

60. A comparison of the structure and language of §§ 3004(d) and (e) with that of § 3004(g) compels, by negative inference, a conclusion that Congress intended the statutory prohibition in § 3004(g) to oust EPA of jurisdiction over any form of land disposal for any waste for which it has not taken action within 66 months. Sections 3004(d) and (e) do not expressly require EPA to make any determination before the effective date of the prohibition for the California list wastes, dioxin-containing wastes, and listed spent solvents. The prohibition is in effect from the end of the specified period "unless the Administrator determines" the ban is not necessary to protect public health and the environment. The use of present tense concerning the determination strongly suggests that the Administrator may act after the 32-month period ends. The language could be read to mean that the ban takes effect unless EPA determines before the end of 32 months that it is unnecessary. That result could have been accomplished easily and without ambiguity by simply stating that the ban takes effect at 32 months "unless the Administrator has determined" that it is unnecessary. Unlike the wastes in § 3004(g), Congress apparently intended to allow EPA to avoid or override the statutory prohibition for California list wastes, dioxin-containing wastes, and solvents at any time simply by making the appropriate determination.

61. For example, when Congress intended such a result in the small quantity generator provision, it expressly indicated that the statutory requirements would only be effective until EPA could promulgate standards to replace them. Amendments, supra note 3, sec. 221(a), RCRA § 3001(a)(8).

62. However, EPA could avoid this problem by promulgating a regulation immediately before the 66-month deadline that prohibits all methods of land disposal for any waste for which it had not been able to make a determination. This would avoid the statutory prohibition, and EPA could later promulgate a new regulation authorizing one or more methods of land disposal for that waste.

63. Amendments, supra note 3, sec. 601(a), RCRA §§ 9001-9010. The program, because it was intended to address leaking underground storage tanks, was affectionately referred to as the "LUST" program. Less passionate minds must have prevailed because the program has now been given the acronym of "RUST" ("Regulation of Underground Storage Tanks").

64. Id., sec. 204, RCRA §§ 3004(p)-(s), 3010.

65. 130 CONG. REC. S9164 (daily ed. July 25, 1985) (statement of Senator Durenberger, sponsor of the Amendment creating the RUST program).

66. Id.

67. Id.

68. Amendments, supra note 3, sec. 601(a), RCRA § 9001(1). Excluded from the definition of an "underground storage tank" are septic tanks, storage tanks located in underground areas but standing above the floor, small farm or residential tanks used for storing motor fuel for noncommercial purposes, heating oil tanks for consumptive use on the premises, pipelines that are already regulated under federeal or state laws, surface impoundments, and storm water or wastewater collection systems. Id.

69. The term "regulated substance" is defined as any hazardous substance as defined in § 101(14) of CERCLA, "but not including any substance regulated as a hazardous waste under Subtitle C [of RCRA]" or any liquid petroleum. Id., sec. 601(a), RCRA § 9001(2). Although the meaning of the phrase "but not including any substance …" is ambiguous, apparently it means that an underground tank used to store a hazardous substance as raw material or finished product would be subject to regulation under Subtitle I of RCRA, but a tank used to store the same hazardous substance as a hazardous waste would not be subject to Subtitle I of RCRA but would be subject to regulation under Subtitle C of RCRA.

70. Id., sec. 601(a), RCRA § 9004.

71. Id., sec. 601(a), RCRA § 9002(b)(1).

72. Id., sec. 601(a), RCRA §§ 9002(a)(1)-(3). These requirements do not apply to tanks for which notice was given pursuant to CERCLA § 103. Id. The form of the notice will be prescribed by EPA, in conjunction with the states, before November 8, 1985. Id., sec. 601(a), RCRA § 9002(b)(2).

73. Id., sec. 601(a), RCRA §§ 9003(a), (c). The regulations may distinguish between types, classes, and ages of underground storage tanks and take into consideration a variety of factors, including, but not limited to, location of the tanks, soil and climate conditions, uses of the tanks, history of maintenance, age of the tanks, current industry recommended practices, national consensus codes, hydrology, water table, size of the tanks, quantity of regulated substances typically in the tanks, the technical capability of the owners and the compatability of the regulated substances, and the material of which the tanks are fabricated. Id., sec. 601(a), RCRA § 9003(b).

74. Id., sec. 601(a), RCRA § 9003(d).

75. Id., sec. 601(a), RCRA § 9003(e).

76. Id., sec. 601(a), RCRA § 9003(g).

77. 40 C.F.R. § 261.6; 45 Fed. Reg. 33084, 33090-95 (1980).

78. Id. at 33094.

79. Amendments, supra note 3, sec. 204, RCRA § 3010.

80. Id., sec. 204(a)(1), RCRA § 3010(1). The term "hazardous waste" also includes any commercial chemical product listed under § 3001 of RCRA that is produced for use as a component of a fuel, distributed for use as a fuel or burned as a fuel. Id.

81. Id., sec. 204(b)(1), RCRA § 3004(g)(1).

82. Id., sec. 204(b)(1), RCRA § 3004(g)(2)(B). Presumably, the third condition would permit EPA to exempt hazardous waste incinerators from the requirements of this section. However, because the provision uses the conjunctive "and," a hazardous waste incinerator for burning fuel containing used oil or hazardous wastes would also have to meet the other requirements in order to qualify for the exemption.

83. Id., sec. 204(b)(1), RCRA § 3004(r).

84. Id., sec. 204(b)(1), RCRA § 3004(s).

85. 40 C.F.R. § 264.90(a) (1983).

86. Amendments, supra note 3, sec. 206, RCRA § 3004(u). The Amendments also require EPA to direct any owner or operator seeking to permit a hazardous waste facility to provide evidence of financial responsibility for corrective action. Id., sec. 208, RCRA § 3004(a)(6).

87. 130 CONG. REC. S9174 (daily ed. July 25, 1984) (statement submitted by Senator Chaffee accompanying S. 3409 containing this provision).

88. Amendments, supra note 3, sec. 233(a), RCRA § 3008(h)(1). The Amendments also make several other important changes regarding interim status facilities, including (1) terminating the interim status of all existing land disposal facilities on November 8, 1985, unless the owner/operator of a facility files Part B of its permit application and certifies that its facility is in compliance with all groundwater and financial responsibility requirements, id., sec. 213(a)(3), RCRA § 3005(e)(2); and (2) terminating the interim status of any new facility required to obtain a permit under the Amendments 12 months after the facility becomes subject to the permitting requirements, unless the owner/operator submits Part B of its application and certifies it is in compliance with all groundwater and financial responsibility requirements, id., sec. 213(a)(3), RCRA § 3005(e)(3). In addition, after November 8, 1985, every hazardous waste facility required to obtain a permit must be inspected every two years for compliance with RCRA requirements. Id., sec. 231, RCRA § 3007(e).

89. Id., sec. 233(a), RCRA § 3008(h)(2).

90. Id.

91. Id., sec. 207, RCRA § 3004(v).

92. Id. Until EPA promulgates the amended standards, EPA must issue corrective orders "on a case-by-case basis" consistent with the purposes of the provision.Id. Following the words "waste pile units," this provision adds "(including any new units, replacements of existing units, or lateral expansions of existing units)." While Congress may have intended that this additional language apply to landfills, surface impoundments, and waste piles, the language appears limited to "waste pile units."

93. E.g., United States v. Northeastern Pharmaceutical & Chemical Co., 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984); United States v. Wade, 546 F. Supp. 785, 12 ELR 21051 (E.D. Pa. 1982); and United States v. Waste Industries, 556 F. Supp. 1301, 13 ELR 20286 (E.D.N.C. 1982).

94. Amendments, supra note 3, sec. 402(a), RCRA § 7003(a). A transporter will not be deemed to have contributed or be contributing to the handling, storage, treatment, or disposing taking place after such solid waste or hazardous waste has left the possession or control of the transporter, if the transportation of the waste was under the contractual arrangements arising from a published tariff and acceptance for carriage by common carrier by rail, and such transporter has exercised due care in the past or present handling, storage, treatment, transportation, and disposal of the waste. Id.

95. Conference Report, supra note 3, at 119

96. Id.

97. CERCLA excludes the use of cost recovery actions against RCRA permitted facilities. CERCLA § 107(j). Furthermore, EPA will not list releases from permitted or interim status units at a RCRA facility on the National Priorities List. 48 Fed. Reg. 40658, 40662-63 (1983).

98. RCRA §§ 7002(a)(1), (2).

99. City of Gallatin v. Cherokee, 563 F. Supp. 94, 13 ELR 20395 (E.D. Tex. 1983); Luckie v. Gorsuch, 13 ELR 20400 (D. Ariz. Feb. 25, 1983); but see Jones v. Inmont Corp., 14 ELR 20485 (S.D. Ohio Apr. 26, 1984).

100. Amendments, supra note 3, sec. 401(a), RCRA § 7002(a)(1)(B. 130 CONG. REC. S9152 (daily ed. July 25, 1984) (statement of Senator Mitchell, sponsor of the citizen suit provision adopted in the Amendments).

101. Amendments, supra note 3, sec. 401(d), RCRA § 7002(b)(2)(A).

102. Id., sec. 401(d), RCRA §§ 7002(b)(2)(B), (C).

103. Id., sec. 401(d), RCRA § 7002(b)(2)(B).

104. Id., sec. 401(d), RCRA § 7002(b)(2)(D). Citizen suits are also authorized for alleged violations of the open dumping prohibition in Subtitle D of the RCRA program. Id., sec. 403(e), RCRA § 4005(a).

105. RCRA § 7002(e).

106. Amendments, supra note 3, sec. 401(e), RCRA § 7002(e). The Conference Report indicates that Congress intended the term "party" to be read to include the possibility that there could be more than one prevailing party. Conference Report, supra note 3, at 118.

107. Amendments, supra note 3, sec. 404, RCRA § 7003(d).

108. Id.

109. Within four years, EPA must process all applications for land disposal facilities received before the effective date of the regulations. Id., sec. 213(c), RCRA § 3005(c)(2)(A)(i). Within five years, EPA must process all permit applications for hazardous waste incinerators received before the effective date of the Amendments.Id., sec. 213(c), RCRA § 3005(c)(2)(A)(ii).

110. "If EPA fails in this mission to carry out this legislation, it will only be the result of incompetence or a lack of will." 130 CONG. REC. H11141 (daily ed. Oct. 3, 1984) (statement of Congressman Florio).

111. The fundamental problem with this bill is that it attempts to write detailed regulations into the law. It is instructive to compare the original 28 page version of S. 757 as introduced with the voluminous, extraordinarly complex bill that we have before us today. Can any Member of this body explain why it is necessary to require EPA to list halogenated dibenzofurans as hazardous wastes within the next 15 months? Or why the lower liner of a hazardous waste disposal facility should have a permeability of 1 X 10(-7) centimeter per second? Or why secondary wastewater treatment ponds employing biological treatment should be retrofitted if they have a retention time in excess of 5 days? Or why steel underground tanks can no longer by used in soils with a resistivity of 12,000 Ohms? I submit that making these kinds of technical judgments is the function of EPA, not the Congress. These particular regulations may be workable, even appropriate, but writing regulations is not our job.

130 CONG. REC. S13812 (daily ed. Oct. 5, 1984) (statement of Senator Symms).

112. Supra note 110.