Regulating Solid and Hazardous Wastes: Has Federal Regulation Lived Up to Its Mandate or Can the States Do a Better Job?

REGULATING SOLID AND HAZARDOUS WASTES: Has Federal Regulation Lived Up to Its Mandate or Can the States Do a Better Job?

NANCY FIRESTONE, Special Assistant to the Deputy Administrator, U.S. EPA

PHILLIP F. W. AHRENS, III, Esquire, Pierce, Atwood, Scribner, Allen, Smith & Lancaster

MICHAEL K. SLATTERY, Regional General Counsel, Waste Management of North America

KAREN FLORINI, Senior Attorney, Environmental Defense Fund

NANCY FIRESTONE: I would like to discuss a recent EPA study. When Don Clay, the new Assistant Administrator for the Office of Solid Waste and Emergency Response, took office in November and Chris Holmes was designated his Principal Deputy, they already had before them the Superfund 90-day study. This became a blueprint for carrying out the Superfund program.

Because of the success of the Superfund study, they embarked on a RCRA implementation study. Eventually it should receive the same sort of wide distribution as did the Superfund study, presenting a vision of where we hope the RCRA program will be going.

I would like to share some highlights from that Report. The importance of this review is its historical perspective. In 1976, when RCRA was enacted, everyone imagined that the RCRA program would resemble the air and water programs, evolving by building on the history of in-place state programs.

We expected that the states would have the lead in implementing the law. Unfortunately, no pre-existing RCRA analogue existed at the state and local levels. So in the early years of RCRA, from 1976 until the Hazardous Waste Amendments in 1984, EPA had to work to build programs in the states.

[22 ELR 10039]

Dissatisfied with the lack of progress EPA and the states were making in implementing the law, and with the history of Superfund behind them, Congress passed the 1984 RCRA amendments, which may be the most proscriptive environmental law ever passed.¹

The amendments set deadlines for not only proposing and promulgating regulations, but also, for the first time, for permitting facilities. The Act actually included a schedule for when permits had to be issued, in addition to setting forth their contents.

In 1985, Congress also held a series of hearings that indicated that Congress expected EPA managers to be able to explain what was going on at specific facilities in the states. Managers were criticized for not having this information. As a result of that hearing, together with the 1984 legislation, EPA was forced to begin extensive oversight over state programs.

One example of that is our RCRA information system. The system requires the states to submit a tremendous amount of site-specific information to a computer system so that managers at EPA regions and headquarters will know precisely what is happening at a given facility.

The states have argued that this seriously interferes with their ability to carry out the law, because they are devoting so much time to providing information. EPA contends that without this information they will not be able to fulfill their oversight functions or be responsive to the Hill.

That sets the stage for the relationship. It is an oversight relationship. What is curious is that we in the government don't like to talk about our relationships with the states other than to suggest that they are partnerships. But we have found that it is a bit of a misnomer when it comes to RCRA.

RCRA is not a partnership. Rather, we have found that it is in some places a contractor-client relationship where EPA contracts out its requirements to the states to perform. The states sometimes view it that way as well.

In other areas, the states are far ahead of the federal government. An example is with federal facilities, where several states have taken the lead and gone far beyond the federal government.

In the RCRA report, we decided that we need to more accurately describe that relationship; it is not a partnership but rather a "working relationship."

The relationship is further strained by a lack of resources. RCRA needs are not being met fully by government funding. Many in the states believe that where there are federal mandates, federal dollars accompany those mandates. Absent federal funding, is it fair for the federal government to hold the states to fulfilling those mandates? There is a great deal of tension as the federal dollars begin to dry up and the states' funding supports a far greater share of the RCRA program. When the states contribute 60% and EPA 40%, it is difficult for EPA to mandate additional actions.

In addition, where no federal money is forthcoming, there is less state interest in assuming program obligations. Forty-six states and territories are authorized for the RCRA-based program. Only five are authorized for corrective action under the Hazardous and Solid Waste Amendments. We expect only twelve more to request authorization. Thirty-nine states therefore will not be authorized for corrective actions and are not seeking that responsibility.

That is a dramatic difference from the Clean Air Act and the Clean Water Act, where states are moving forward with the programs.

In part, you can understand why states are reluctant. The RCRA "universe" is potentially three times the size of the Superfund National Priority List. Without adequate resources, states are not necessarily anxious to take on the obligations of corrective action.

Moreover, as EPA issues more rules, broadening by about 2,000 the universe of base facilities to be covered in the next few years, and with 2,500 TSD facilities to be permitted by 1992, it is unlikely that deadlines will be met.

In these circumstances, we need to recognize that EPA and the states will not be able to achieve everything we have been told we should by Congress. As a consequence, we must find a way over the next several years to prioritize our activities under the RCRA program.

This will be complicated by the fact that our study found strained connections between Washington and the world outside of Washington. Even within Washington, priorities may be viewed differently in the Office of Solid Waste, Office of Enforcement, and Office of General Counsel. This is why we there is so much room for improvement here.

The states and the Regions have come to realize that, from an environmental perspective, waste minimization should be our first priority. Waste minimization, however, does not even have a statutory hammer in RCRA or the HSWA Amendments of 1984. In fact, because that law imposes so many other obligations, activities that would tend to encourage waste minimization are short-changed in the federal budgeting system because they lack a deadline.

Another similar problem that we hear about from the states and the regions concerns inspections. Congress instructed the states to inspect every facility, every two years. The Regions and states question why they should inspect every facility instead of concentrating on those that they have reason to believe will cause a problem, allowing them to do a more thorough job where needed. Without this flexibility, the Regions and states worry that they cannot protect the public from the biggest problem facilities.

Our expectations for this program must, I hope, change. We need some degree of order and perspective to accomplish our goals. And it takes time to accomplish everything.

In RCRA, for some reason, we have decided that this is such a high environmental priority that everything must happen [22 ELR 10040] immediately, even if other environmental priorities are set aside in order to do so. We think that all the permits can be issued within a given period of time. We think that the scope of the program can continue to grow as we add more into the system. We think that the states and Regions will be able to ensure full compliance.

Even if we allocated all of the money in world, which is neither likely nor reasonable to expect, we would find it impossible to achieve all of these goals simultaneously.

I do not like to engage in debates on resources, because regardless of how much funding ultimately is received, Congress, in the next RCRA reauthorization, will need to reach some common understanding of program priorities and expectations. Part of that debate is going to focus on the EPA Science Advisory Board's (SAB) Report on Relative Risk. That Report identifies what the SAB believes to be the most significant environmental problems facing not only the nation but the globe.

Preliminary reviews of that Report indicated that with respect to hazardous and toxic wastes are largely that the answer ultimately must be pollution prevention, not waste management.

In addition, with respect to the RCRA cleanup program, the Report suggests that we need to set priorities to avoid spending all of our money cleaning up sites as opposed to identifying better industrial processes to avoid the generation of these wastes in the first instance. Addressing these issues will be the challenge of RCRA reauthorization.

There have been high expectations for this program in the past, and many have been met. A number of permits and regulations are out. For example, as part of the RCRA study we learned that despite the fact that some people think that regulations are too slow in coming, they have moved through the agency faster than all other regulations. Despite the progress, however, it is clear that all of RCRA's goals can not be met within the time provided.

I am convinced, however, that when the SAB report comes out, it will set a new direction for the next several years, which may refocus the RCRA program. Without question, the SAB report will lay a foundation for an interesting RCRA reauthorization as we come to the close of five years of operation and try to identify our real program goals and how to achieve them in the best way possible.

PHILLIP F. W. AHRENS, III: For background purposes, I should explain that I left private practice near the end of 1977 to join the Maine Attorney General's office. As Assistant Attorney General, I spent most of my first five years in the office litigating environmental cases for the state. In early 1983 I was appointed Deputy Attorney General and for the next seven years supervised the Natural Resources Division of the Attorney General's Office. Earlier this year (1990), I returned to private practice by becoming a partner at Pierce, Atwood, Scribner, Allen, Smith and Lancaster.

I am proud to say that Maine has been perceived as being one of the more aggressive states in environmental enforcement. I intend to explain some of my experiences in Maine and ask you to consider how these experiences might translate to your state as we try to address the questions posed to us.

Has the federal government lived up to its mandate in regulating hazardous waste? No.

Have they done so with solid wastes? It is too soon to tell.

Can the states do a better job than the federal government? Increasingly, the answer is yes.

Keep in mind throughout these remarks what has happened in just the past twenty years. We have come a remarkable way. For example, untreated industrial waste no longer is being dumped into rivers; we now are debating whether to set limits on chemicals that are below detection levels. Those of us who have grown up with environmental protection sometimes fail to step back and realize what progress has been made. We also fail sometimes to have less experienced lawyers and regulators understand what progress has been made in a very short time.

Whether we talk of oversight, partnership, or working relationship as the term of art describing the federal/state relationship, it is fair to say that it differs vastly from twenty years ago. Undoubtedly it will be vastly different twenty years from now.

In the early 1980s, the United States sued the State of Maine, requesting a seven figure penalty because several Bureau of Forestry staff members removed catalytic converters from four state vehicles which were operating in unorganized portions of the north Maine woods. At the same time, Portsmouth Naval Shipyard was dumping toxic waste into a dump on Jamaica Island, a small island in Kittery, Maine. Jamaica Island is flushed by tidal action at the mouth of the Piscataqua River. Toxic wastes were migrating from the site and contaminating statewaters. Shellfish advisories were posted: shellfish in the area were contaminated and unfit for consumption. The Shipyard resisted all state attempts to have the site cleaned up. The U.S. EPA could take no action without the assistance of the U.S. Department of Justice, which in turn has refused to take any formal enforcement action against the Department of Defense on the basis of the so-called unitary executive theory.

Also at this time, the U.S. Department of Energy was seeking to site a high-level nuclear waste repository and came to Maine to further explore two candidate sites, including one located partly under Sebago Lake, a major recreational area in Maine and the source of the drinking water for the city of Portland, Maine's largest city.

Suffice it to say that Maine's environmental experiences with the federal government in the early or mid-1980s were not happy ones. The federal government was considering siting a nuclear waste repository adjacent to the water supply for the state's largest city; a federal hazardous waste dump was contaminating state resources; and EPA's enforcement response was to sue the State for more than a million dollars because four catalytic converters had been removed from vehicles that operated in northern Maine in towns so small that they are identified by township and range numbers rather than by names.

Maine decided to sue the Portsmouth Naval Shipyard because we read the language of RCRA and believed that it meant what [22 ELR 10041] it said: the federal government had waived sovereign immunity with regard to federal facilities. Since the federal government was unwilling to reach agreement on compliance, let alone cleanup, with our State Department of Environmental Protection, the Attorney General's Office was left with little choice but to go to Court.

I believe that only a highly imaginative lawyer could possibly interpret the waiver language under RCRA as not meaning exactly what it says. The United States District Court agreed² with our view and found that the federal government indeed had waived its sovereign immunity.

Since our decision, by the way, all fifty Attorneys General have signed a resolution endorsing S. 1140, the Federal Facilities Compliance Act, which further clarifies the application of the sovereign immunity waiver.

The federal government, however, is still fighting the federal facility waiver. The federal government still believes it should not be required to comply with state and federal environmental laws.

With that background, I will turn to solid waste issues in Maine. The economy was booming in Maine in the 1980s. Land values were escalating enormously, and major development outstripped the state's ability to exercise any meaningful growth control.

Local municipalities with no zoning at all reacted to growth management pressures and adopted local moratoria in order to stop development while zoning plans were adopted. On the state level, major state-wide growth management controls were adopted.

During the 1980s "land rush," municipal landfills in Maine were most often sited in geologically undesirable locations. The gravel pits in Maine began to fill up with trash. Ground water became contaminated. Dumps were either being closed voluntarily or through actions taken by the Attorney General's office and the Department of Environmental Protection. Land that might be otherwise available for landfills was being sold for real estate development purposes. New residential development preceded a proliferation of NIMBYs.

In 1985, in the midst of this land rush, two major commercial waste incinerators submitted their plans to the Maine Department of Environmental Protection. Maine's solid waste regulations had not been revised substantially in ten years and were clearly antiquated when forced to confront the contemplated development.

In 1987, the state enacted a moratorium dealing with landfills, prohibiting any pending landfill applications from being processed by the Department of Environmental Protection until the Department adopted comprehensive solid waste regulations. The legislature knew, based on the agency's propensity for delay, that the moratorium would last for quite some time.

In 1988, the legislature undertook a one-year study of solid waste issues. The moratorium remained in place, with the added wrinkle that any pending applications would be subject to the (future) rules to be adopted by the Department of Environmental Protection.

At this time, other nearby states, most notably Massachusetts, also were confronting the landfill crisis. Increasingly, it became economically sensible for those states to send commercial and municipal waste to Maine.

Maine legislators expressed outraged that waste was coming in from out of state, and decided to adopt a statute to ban its importation. I reminded them that Maine had such a statute on the books since the early 1970s and that a number of years ago I had drafted the Attorney General's opinion that indicated that the statute was unconstitutional. Based on the opinion, the Attorney General said he would not enforce the statute. The legislature decided nonetheless to leave the statute on the books rather than repeal it. The result is that Maine has a statute that bans the importation of solid waste, but the statute is not being enforced.

Landfill operators began to realize their economic position, and costs for waste disposal escalated rapidly, primarily for out-of-state waste. Despite the costs, as municipal landfills in Maine closed, municipalities also began to send their wastes to the two commercial landfills. Local citizens began to realize that, in terms of disposal costs, waste is not free. The cost of disposal skyrocketed from one to six dollars a ton. It now costs up to $ 60 a ton. What the future costs may be is anyone's guess.

The state faced a dilemma. Three options were considered. The first was simply to ban out-of-state waste. While an attractive possibility, it was not going to be successful. The second option was to impose Public Utilities Commission price controls. Maine came close to adopting legislation that would place price controls on private facilities, but realized that it had little experience in a complex area and decided against it.

The state chose a third option: to enter the solid waste field in a proprietary capacity. It did so contemplating that as a practical matter the state would be able to control both prices and the amount of waste that would come in from out of state, all in a way that could withstand constitutional scrutiny.

The resulting legislation was adopted in 1989. The principal scheme includes a ban on any new commercial landfills in the State of Maine. Any new landfill in Maine will be developed by the Maine Solid Waste Management Agency. This state agency has eminent domain authority and may contract out to private parties for the development, construction, and operation of a landfill. In the alternative, it may choose to perform these tasks itself.

What conclusions can we draw from this brief historic overview? I think the states can do a better job than the federal government in certain areas. At a minimum, states can react much more quickly to respond to local concerns. As the federal government struggles with how to manage its hazardous wastes and fights any attempts by the states and the EPA to force it to [22 ELR 10042] comply with environmental laws, some states are recognizing the obligation to take care of their own wastes responsibly.

MICHAEL K. SLATTERY: Enforcement of and compliance with regulations are a significant part of my work. As a Regional General Counsel for Waste Management of North America, a major practical problem I face is legal oversight of siting of sanitary landfills.

We look forward to RCRA Subtitle D. The concern is that, after the federal government has elevated landfill development and operation and maintenance to a science and brought it and many landfill operators kicking and screaming into the 21st century, there not be a frustration of its purpose through dilution and deferral.

We see a need to site Subtitle D facilities. An EPA report released in February 1990 stated that in the next five to seven years, 45 percent of the municipal solid waste landfills in the country will reach capacity. Subtitle D will independently cause a significant number of others to close.

Also in February 1990, the National Governors' Association (NGA) released a task force report on solid waste management, finding that states face a political crisis. Many communities no longer will tolerate the construction of new landfills or incinerators. The NGA report added, "As disposal capacity diminishes, millions of tons of waste are transported across state and municipal lines, causing additional parochial opposition from states and localities on the receiving end of the waste." The report also stated, "Although increased waste minimization and recycling will likely ease capacity crunches, the need for safe, well-designed, and properly sited waste management facilities is not going to disappear in the near term but neither are the NIMBYs".³

These words touch on substantially all the issues we face in the waste disposal crisis: diminished landfill capacity, lack of sufficient modern facilities, no "magic bullet" to eliminate the need for land disposal at the present time, market economy versus parochialism, NIMBY and NIMTO, or, not in my term of office.

Where are we? Where do we go? How do the federal and state governments interact and best focus their limited resources? What does the future hold for landfill siting?

The pending Louisiana Senate Bill 202 provides that no permit shall be issued by the Secretary which would allow construction or operation of a sanitary landfill within one mile of a wildlife refuge. The same state also has House Bill 690 prohibiting permits within Rapid's Parish for any landfills within five miles of any municipality, hospital, church, park, nursing home, school, daycare center, residential area or any publicly owned facility.

Today I learned of the prison expansion bill in Massachusetts.

Georgia passed Senate Bill 533 last year prohibiting permits to landfills within 5,708 yards of the center of any historical site currently designated by the State of Georgia. There they sought to stop a landfill that was within 5,708 yards of the Andersonville Prison site.

Obviously, these bills are designed to stop particular landfill projects. These parochial actions undermine attempts at comprehensive planning.

Yet many states have accepted the obligation and responsibility to site landfills and proceeded in fine fashion. One problem that they face is knee-jerk parochial reactions from local politicians feeling pressure from NIMBYs and others to pass reactive legislation to stop a facility that is otherwise consistent with the comprehensive state plan.

The development of Subtitle D landfills seems encouraging. Yet, some states have succumbed to parochialism and have sought more and more ways to shift responsibility for the tough decision of where and when to site landfills.

These states may write a version of a legislative preamble similar to this one, as a rational basis for making it more difficult to site landfills:

whereas, due to the growing concern over the shortage of landfill capacity and the proper disposal of waste and the impending disposal crisis …

If you haven't seen this preamble in your state, you probably will. We see the concept in South Carolina, Alabama, and Tennessee.

Alabama used the concept and rationale in its legislation to impose a two-year moratorium in the face of a growing waste crisis caused in part by the closing of small municipally owned dumps. With almost 75 percent of its landfills (according to its own records) closing in three years, Alabama introduced a moratorium to delay for two years any landfill sitings, but generally it takes at least three years or more to complete a siting.

What then might be the motivator for such an apparent non sequitur? The goal professed by many states is to plan. One such possibility is a plan designed to circumvent the law of interstate commerce.

The legislation in the state of Maine prohibiting the private sector from owning disposal facilities strikes a blow to my heart. It also strikes a blow to the U.S. Constitution.

Beginning with Philadelphia v. New Jersey, any attempt by a state to qualify as a market participant, with the motivation to control interstate waste, is unconstitutional where the state attempts to hoard landfill sites and acts in a manner that would restrict the entry into the market by private industry.⁴

This leads to the two most recent relevant cases. A Michigan case involves a plan gone awry. In the Bill Kettlewell case, the county in question had introduced planning legislation that formed a unit for the purpose of waste disposal planning that prohibited out-of-state wastes. Relying on inapplicable precedent, the Michigan court wrongfully upheld the plan.⁵ The case is on appeal.

Diamond Waste, out of the middle district of Georgia, articulates the proper analysis in declaring unconstitutional one [22 ELR 10043] county's attempt to restrict the flow of waste across its borders.⁶ Simply put, the court reaffirms the tenets of Philadelpia v. New Jersey.

This leads to the inevitable conclusion that states need better guidance, direction, political insulation and limitations imposed upon them by the federal and state governments. As Justice Cardozo noted in Baldwin v. GAF, the Constitution, including the Commerce clause, was framed on the theory that the peoples of the several states must sink or swim together and that in the long run prosperity and salvation are in union and not division.⁷

The need for comprehensive national guidance and appropriate delegation to states, not national control, is necessary to solve these problems.

The crisis is upon us. Indications are that certain states will avoid substantive solutions to the environmental problems in favor of ineffective quick politically motivated fixes.

The federal government must involve itself by buttressing the interstate commerce laws to focus the states on responsible planning by providing objective siting standards in the Subtitle D or other landfill planning legislation.

In essence, what industry asks is that once the ballgame starts, it remain consistent. What hampers industry is inconsistent legislative initiatives that defeat long-term planning.

Such initiatives show a lack of respect for both the agency siting the facility and the time and money devoted to siting Subtitle D facilities.

The federal government views itself as the general and the states view themselves as soldiers. From a private industry perspective, the federal government is certainly the general. But industry views the states as lieutenants and ourselves as the soldiers.

Technical knowledge, skills, financing, efficiencies, flexibility to adapt quickly to changes — all those are tools that private industry can bring to the table. We hope that in the future, through cooperation, the table has three legs as opposed to the two now perceived.

The role private industry envisions for the federal government in this process is analogous to the role of top management in a strongly decentralized company. In overseeing state actions in the state solid waste industry, the federal government should heed the words of CEO Bruce Henderson, "[i]t is a paradox that the greater the decentralization, the greater the need for both leadership and explicit policies from top management."⁸ We hope the federal government will follow these guidelines.

KAREN FLORINI: I will frame my discussion around the title of this panel, "Regulating Solid and Hazardous Waste — Has Federal Regulation Lived up to its Mandate or Can the States do a Better Job?" The two short answers are: no and no.

With respect to whether federal regulation has met its mandates, let us ask first, what is the mandate? Both RCRA and Superfund have several mandates renging from RCRA's broadly worded "Objectives and National Policy" section to the highly specific deadlines for issuing various regulations and studies. At least as to the latter, the mandates have demonstrably gone unfulfilled.

For example, last March I filed what is known as a "mega-deadline" suit against EPA under RCRA.⁹ We brought suit over two dozen deadlines that the agency has missed for actions that the agency was to have carried out by 1987 at the latest.

Those deadlines included a number of listing activities for EPA to determine whether certain specified materials were in fact hazardous waste. EPA was to list them in February, 1986 but to date has listed only three determinations and has made very little progress with the other fourteen.

The schedule that they have presented to the court for completing those mandates stretches through the year 1999. I should mention that those listing determinations were not arbitrary. These seventeen materials found their way into the statute because, as part of the 1984 reauthorization, EPA staff were asked in 1983 what they were working on. In other words, the HSWA provisions focused on the chemicals or categories of waste that EPA already had decided might warrant regulation.

Nor were the deadlines arbitrary. They originated from discussions with EPA. Moreover, in the 1984 reauthorization hearings, the EPA Administrator was asked whether the listings could be completed in the next two years, and he said yes. Indeed, the year after authorization the then Assistant Administrator for this program sent a letter to Congress saying the deadlines would be met. Quite a bit of slack seems to have worked its way into the system, since the agency now predicts they won't finish until 1999.

That is, however, not the worst of it. Other provisions in the deadline suits address issuing post-closure permits where EPA was required to promulgate them by 1987. The agency says they will not issue these until the year 2004.

The environmental community has learned over the last few years of watching RCRA that if you want a program to work you need a hammer in the governing statute. This is clear from EPA's promulgation of land ban standards or regulatory requirements from the 1984 Amendment. Although not in the form we would have preferred, all were issued on time. This is certainly a technique that will continue to be pursued by the environmental community in the upcoming RCRA reauthorization.

In terms of the broader mandates of RCRA and Superfund, the federal government also has not met the mandates.

To put this in perspective, at present the United States generates something on the order of ten billion tons of hazardous wastes a year. About five percent of that total is encompassed within the RCRA regulatory system, either listed as a waste or exhibiting the characteristics of one.

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It is hard to know how to evaluate progress in dealing with waste. You can measure what is in the air and the water and know whether it is getting cleaner or dirtier. A fundamental goal of RCRA, however, is to prevent future Superfund sites. You only know if it is working by moving into the future and asking in retrospect whether you would have had more or fewer Superfund sites had you done things differently under RCRA ten or twenty years earlier.

Ultimately, our society is going to have to move toward a goal of becoming an environmentally sustainable industrial society. This is both necessary and appropriate because we are, in global terms, a wealthy country. We have to invent and implement the technologies for an environmentally sustainable industrial society on a planet-wide basis.

Fortunately, doing so is well within our power. One of the few publications that I often read is Chem Week. Over the last six months every issue has carried a story reporting developments in replacements for CFCs, solvents, and paints. These new coating material applications are a direct response to the regulatory and legislative initiatives that require the phase-out and substantial reduction of those materials.

The process does work. It involves some misdirections, but, ultimately it gets us where we need to go.

As emphasized by Vic Sher, the process is aided by uniformity. Fundamental economic pressures have not changed in the past twenty years; that is why we need a federal base-line of uniformity.

At the same time, it is critical to keep in mind that the states have limited resources. This is particularly true in the municipal solid waste area. According to EPA figures, the average number of state employees working on municipal solid waste issues is about twenty people.

Nonetheless, EPA's initial regulatory proposal for determining how to regulate new municipal waste landfills calls for the application of an algorithm that, although spelled out in minimal detail, required input of a substantial amount of data. Despite this commitment of resources, the algorithm merely estimated the cancer risks posed by the facilities' potential for contaminating groundwater. It didn't tell decisionmakers what to do if they ran through this model and came up with an unacceptable risk level. Presumably, decisionmakers were supposed to select certain additional landfill design features, but it didn't suggest which ones to install or how they should be constructed.

We strongly advocated the inclusion of uniform standards with a variance provision for areas such as the arid West, which may face fundamentally different conditions. We hear that EPA may be leaning in this direction.

The limitations on the state and federal governments will require fundamental change: shifting to the 'pay as you go' approach for permitting and oversight of industrial facilities including both manufacturers and disposal facilities.

Finally, we have to ask the federal government not only to set uniform base-line environmental standards, but also to level the playing field in terms of the implications for environmental quality within such other areas as the tax code. The time has long since come and gone when mineral depletion allowances make any sense as a matter of environmental and public policy. By removing depletion allowances we will allow recycling to displace primary manufacturing where feasible. This will reduce pollutant loadings.

That is an example of a relatively inexpensive way to engage in pollution prevention and to reduce the amount of solid waste disposed. But that example does not stand alone. There are other relatively inexpensive solutions; we have only to act on them.

1. Hazardous and Solid Waste Amendments of 1984, Pub. L. No. 98-616, 98 Stat. 3221 (1984).

2. Maine v. Department of the Navy, 904 F. Supp. 322, 330 (D. Me. 1988) (holding 43 U.S.C. Section 6972 is a limited waiver of sovereign immunity); see also Ohio v. U.S. Dep't of Energy, 904 F.2d 1058 (6th Cir. 1990) (holding RCRA Section 6972 is a limited waiver of sovereign immunity for civil penalties under the citizen suit provisions). But cf., Mitzefelt v. Dep't of Air Force, 903 F.2d 1293 (10th Cir. 1990) (holding RCRA Section 6001 is not express waiver of sovereign immunity).

3. National Governors Association, National Association of Attorneys General, FROM CRISIS TO COMMITMENT: ENVIRONMENTAL CLEANUP AND COMPLIANCE AT FEDERAL FACILITIES, Jan. 1990.

4. 437 U.S. 617 (1978).

5. Bill Kettlewell Excavating, Inc. v. Michigan, D.N.R., 89-CV-30015-P.H. (U.S. D. Ct. E.D. Mich. 1990).

6. Diamond Waste, Inc. v. Monroe County, C.A. 89-380-2-MAC (WDO) (U.S. D. Ct. Mid. Dist. Ga. 1990).

7. Baldwin v. G.A.F. Seelig, 294 U.S. 511, 523 (1935).

8. Bruce Henderson, CEO, Boston Consulting Group, Inc., "Henderson on Corporate Strategy" (Abt. 1979).

9. EDF v. Reilly, No. 89-0598 (D.D.C. Filed March 8, 1989).