24 ELR 10022 -- Chemical Waste Management, Inc. v. U.S. Environmental Protection Agency: When Does a Waste Escape RCRA Subtitle C Regulation?

Chemical Waste Management, Inc. v. U.S. Environmental Protection Agency: When Does a Waste Escape RCRA Subtitle C Regulation?

Barry Needleman

Mr. Needleman is a member of the Environmental Law Department of McLane, Graf, Raulerson & Middleton, in Concord, N.H. He received his J.D. from Lewis & Clark, Northwestern School of Law, and his L.L.M. (in Environmental Law) from George Washington University, National Law Center.

[24 ELR 10022]

Congress enacted the Resource Conservation and Recovery Act (RCRA)¹ in 1976, to regulate management of solid and hazardous waste. RCRA Subtitle C regulates hazardous waste management² and Subtitle D governs nonhazardous, solid waste.³ In 1984, Congress passed the Hazardous and Solid Waste Amendments (HSWA),⁴ significantly amending and expanding RCRA Subtitle C. HSWA added to RCRA the Land Disposal Restriction (LDR) Program, or land ban, which bars land disposal of hazardous wastes that fail to meet U.S. Environmental Protection Agency (EPA or the Agency)-promulgated treatment standards.⁵

On June 1, 1990, EPA published land-ban treatment standards for a set of hazardous wastes known as the "third third."⁶ Members of the regulated community, industry groups, and environmental organizations challenged these standards in Chemical Waste Management, Inc. [CWM] v. U.S. Environmental Protection Agency.⁷ The decision, which some have called a significant victory for environmentalists and a major blow to industry,⁸ upheld many of the regulations. It clarifies the broad scope of EPA's authority over waste and makes important changes to RCRA's approach to regulation of characteristic wastes, underground injection of hazardous waste under the Safe Drinking Water Act (SDWA)⁹ and treatment of waste in lagoons at water treatment facilities regulated under the Federal Water Pollution Control Act (FWPCA).¹⁰

This Dialogue first provides background on the Subtitle C scheme and the LDR program. It discusses the proposed and final rules that were the focus of the CWM decision and reviews the decision itself. The Dialogue concludes that the decision will contribute positively to EPA's ability to protect human health and the environment.

Background

Subtitle C of RCRA details a "cradle-to-grave"¹¹ scheme for regulating the treatment, storage, and disposal of hazardous wastes. Wastes are considered hazardous under RCRA Subtitle C if, inter alia, EPA lists them pursuant to notice-and-comment rulemaking,¹² or if they display at least one of four characteristics -- ignitability, corrosivity, reactivity, or toxicity.¹³ The former are termed listed wastes, and the latter are termed characteristic wastes.

A listed or characteristic hazardous waste is subject to EPA's rigorous Subtitle C controls. Such waste must be managed as hazardous "until such time as it ceases to pose a hazard to the public."¹⁴ Listed wastes may lose their hazardous status if "delisted," which requires notice-and-comment rulemaking.¹⁵ Prior to the CWM decision, a characteristic waste generally lost its regulated status under Subtitle C when it ceased exhibiting the characteristic that made it hazardous.¹⁶

With HSWA, Congress shifted RCRA's focus from preventing [24 ELR 10023] hazardous waste releases to encouraging source reduction and treatment.¹⁷ Recognizing that it could not guarantee the long-term containment of hazardous wastes in land disposal facilities, and fearing the consequences to human health and the environment of released hazardous waste, Congress determined that land disposal is "the least favored method for managing hazardous wastes."¹⁸ The land ban is the key to RCRA's new focus. Despite its name, the land ban does not bar all land disposal of hazardous wastes. Instead, RCRA's LDR provisions require EPA to prohibit land disposal of wastes that are not treated to EPA-set standards.¹⁹ The treatment standards must specify treatment levels or methods, if any exist, that will sufficiently reduce the waste's toxicity or likelihood of migration to ensure short- and long-term protection of human health and the environment.²⁰ Alternatively, a party may satisfy the land ban by showing that its wastes will not migrate through the subsoil after disposal for as long as the wastes remain hazardous.²¹

HSWA established a phased schedule to implement the land ban. For each phase, RCRA requires EPA to publish treatment standards for certain categories of hazardous waste. The first phase banned land disposal of untreated dioxin containing and solvent containing wastes after November 8, 1986.²² The second phase banned land disposal after July 8, 1987, of untreated "California list" wastes, which are listed or characteristic wastes that fall into one of five specific categories.²³ HSWA instructed EPA to divide the remaining listed and characteristic wastes into three parts -- based on the degree of hazard posed by the wastes and the volume in which they are disposed²⁴ -- and to promulgate regulations for each of the three thirds.²⁵ EPA must determine the status under the LDR program of waste listed or identified after November 8, 1984 (HSWA's date of enactment) within six months after such waste is listed or identified.²⁶

In August 1988, EPA issued regulations for the first third of these wastes;²⁷ in June 1989, EPA issued regulations for the second third of this group,²⁸ and on May 8, 1990, EPA published the regulations that establish treatment standards and ban untreated disposal of the final third of this group of wastes -- the third third.²⁹ The petitioners in the CWM case challenged the regulations governing this third third of wastes.

The Rulemaking

The proposed³⁰ and final³¹ third-third rules divided characteristic wastes into subcategories and established treatment standards, or levels, for each subcategory. For some subcategories, the standards only prescribed treatment to the hazardous level -- such that the waste's hazardous characteristic is removed. For other subcategories, the standards require treatment beyond the hazardous level, such that the waste's characteristic is removed and the waste receives additional treatment.³² Regarding the treatment methods, EPA's proposal followed a course the Agency had charted in earlier land-ban rules.³³ Most third-third wastes would be treated by using Best Demonstrated Available Technology.³⁴ EPA determined, however, that some characteristic wastes have unique properties and therefore merit special consideration. EPA proposed allowing "deactivation" -- i.e., removal of hazardous characteristics -- of the wastes,³⁵ "includ[ing] dilution within the ambit of the 'deactivation' treatment standard."³⁶

In the earlier solvent and dioxin waste rule, EPA had barred dilution as a treatment method.³⁷ In the proposed third-third rule, the Agency also generally discouraged dilution for a variety of reasons. For example, EPA was concerned that dilution of ignitable wastes would release volatile organic compounds (VOCs). For corrosive wastes, EPA favored neutralization because dilution would not address the hazardous constituents of those wastes. Additionally, EPA noted that dilution of reactive wastes would often result in violent chemical reactions.³⁸ Nonetheless, EPA invited comments on dilution as a means of deactivating characteristic wastes.³⁹

In its proposal, EPA responded to assertions by the regulated community that EPA's jurisdictional authority ends when waste no longer displays a hazardous characteristic. EPA announced its interpretation that RCRA authorizes it to compel treatment below the defined hazardous level, stating "once wastes become subject to section 3004(m), they remain subject to the requirements of that section until the section 3004(m) standard is satisfied."⁴⁰

[24 ELR 10024]

In its final third-third rule, EPA reaffirmed its interpretation that RCRA authorizes it to require treatment of wastes below the level at which they cease displaying a characteristic of hazardous waste.⁴¹ Despite this claim of broad jurisdiction, EPA exercised its authority conservatively and only required treatment below the hazardous characteristic level for relatively few wastes.⁴² For most ignitable, corrosive, and reactive (ICR) wastes, EPA determined that treatment to the characteristic level would be satisfactory. EPA found, however, that EP-toxic⁴³ wastes require greater attention. Even if EP-toxic treated to below the characteristic level, toxic constituents can persist and accumulate in the environment.⁴⁴

In a significant departure from its proposal, EPA decided to permit dilution of most ICR wastes because "it should not matter how the characteristic property is removed so long as it is removed."⁴⁵ EPA set removal of the hazardous characteristic (i.e., deactivation) as the treatment standard for such wastes. Although EPA recognized that dilution would not necessarily address a waste's toxic constituents, time constraints and the pressure of regulatory "hammers"⁴⁶ led the Agency to ignore this problem indefinitely.⁴⁷

The Court's Decision

The Scope of EPA/RCRA Jurisdiction

Before the Court of Appeals for the D.C. Circuit, industry petitioners maintained that Subtitle C regulations are applicable to a characteristic waste only as long as the waste displays the characteristic that initially made it hazardous.⁴⁸ Consequently, they argued, RCRA does not afford EPA jurisdiction to require further treatment of characteristic hazardous wastes once the hazardous characteristic has been removed. In contrast, EPA asserted that the land-ban program authorizes EPA to regulate hazardous wastes at any point in the wastes' "life." EPA noted that its statutory construction meshes with a Senate concern that wastes not be diluted and then disposed of in landfills.⁴⁹

Because the industry petitioner's challenge of the regulations involved EPA's interpretation of a statute that it administers, the court applied the two-part test set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council.⁵⁰ Under Chevron, a court first asks if Congress has "expressed [its] intent unambiguously" by "directly [speaking] to the precise question at issue." If not, the court asks, in step two, whether the Agency's interpretation of the statute is reasonable.⁵¹

The court's Chevron step-one analysis revealed "little support in [RCRA] or [the court's] prior decisions" for the jurisdictional line drawn by the industry petitioners.⁵² Rejecting the notion that the definition of "hazardous waste" "acts as a revolving regulatory door, allowing continuing entrance and egress" from the system,⁵³ the court held that RCRA supports the view that hazardous waste is subject to regulation beginning at the point of generation.⁵⁴ The court emphasized that EPA's interpretation of RCRA is compatible with the D.C. Circuit's earlier decisions, which generally hold that once a waste becomes hazardous, EPA's authority to regulate it attaches and remains.⁵⁵

The court held that HSWA authorizes EPA to require treatment of waste even after removal of the characteristic that made it hazardous.⁵⁶ The statute requires treatment that "substantially diminish[es] toxicity" or significantly reduces the chances that the waste will migrate.⁵⁷ This provision "suggests concerns that go beyond the characteristics identified in 40 C.F.R. Part 261, subpart C."⁵⁸ Additionally, RCRA's requirement that risks to human health and the environment be minimized "offers a broad mandate."⁵⁹

[24 ELR 10025]

The Treatment Methods

The court next focused on EPA's decision to allow dilution as a method of deactivation for most ICR wastes. A group of petitioners, which included environmental organizations and an association of companies that treat hazardous waste (the environmentalist petitioners), claimed that dilution does not qualify as treatment under RCRA, which requires some form of technology-based treatment.⁶⁰ They also argued that dilution does not satisfy the statutory requirement of minimizing short- and long-term threats to human health and the environment.⁶¹

The court deferred to EPA's statutory interpretation, finding that "Congress [did not] clearly bar[] dilution as an acceptable methodology."⁶² Although RCRA calls for substantial diminishment of a waste's toxicity or likelihood of migration,⁶³ its broad definition of treatment does not indicate how these goals are to be achieved. The court also ruled, however, that to satisfy RCRA, treatment must "remove the characteristic and reduce the presence of hazardous constituents" when the constituents are sufficient in number to threaten human health and the environment.⁶⁴ Unclear as to whether dilution would satisfy RCRA's standards for each of the ICR wastes at issue, the court was particularly troubled by disparities between the proposed and final rules.⁶⁵ In the proposed rule, EPA had recognized significant problems with dilution as a treatment method. When adopting the dilution standard in the final rule, the Agency confessed that the final rule did not fully address the problems identified in the proposed rule. The court did not consider "these confessions … a substitute for a rule conforming to the statute's command."⁶⁶

EPA conceded that dilution of ignitable wastes would permit toxic constituents to remain in those wastes, and, as the proposed rule recognized, could result in the release of VOCs. Moreover, such wastes might regain their ignitability after treatment. Because the final rule did not satisfy RCRA's requirement that treatment both remove the hazardous characteristic(s) and reduce the amounts of other hazardous constituents, the court overturned this portion of the rule.⁶⁷

Examining the corrosive waste treatment standard, the court noted that EPA, in its brief, had asserted that corrosivity is the only danger, or characteristic, associated with corrosive wastes and that "there are no hazardous constituents in the waste."⁶⁸ Yet in the proposed rule, EPA had indicated that dilution "does not treat or remove hazardous constituents in the waste."⁶⁹ In its final rule, EPA did not clarify whether hazardous constituents are present in corrosive wastes. The court held that dilution may be an acceptable method of treating corrosive wastes. Nonetheless, the court overturned this portion of the regulations, recognizing that EPA might revise its rulemaking to clarify that the corrosive wastes subject to treatment by dilution do not contain hazardous constituents that may threaten human health or the environment.⁷⁰

Regarding reactive wastes, neither the proposed nor final rules suggested that reactive wastes, in general,⁷¹ contain hazardous constituents. But the proposed rule did raise concerns that reactive wastes could react violently during dilution. Although EPA recommended methods to avoid this problem, it permitted dilution by any method that would remove the characteristic. The court held that EPA must limit dilution to methods that will curb the risk of reaction, or find, backed by evidence, that there is no significant risk of reaction.⁷²

Square The FWPCA Dilution Rule. Some FWPCA-regulated treatment facilities operating pursuant to the national pollutant discharge elimination system's permits, receive waste streams that contain RCRA characteristic hazardous wastes. These facilities frequently combine these wastes and place them temporarily in unlined surface impoundments as part of the treatment process. Prior to promulgation of the third-third rule, RCRA did not prohibit these FWPCA-regulated treatment facilities from handling characteristic hazardous wastes. After promulgation of the rule, however, FWPCA-regulated facilities faced potential regulation under the land-ban requirements,⁷³ because the impoundments used to store the combined wastes are land disposal units.⁷⁴

EPA thus faced the problem of trying to harmonize RCRA with the FWPCA. The Agency feared that requiring these facilities to meet RCRA treatment standards would create "significant regulatory disruption."⁷⁵ Therefore, when EPA promulgated the third-third rule, it allowed FWPCA-regulated treatment facilities to aggregate and store streams of certain characteristic wastes in unlined surface impoundments. The aggregation purportedly resulted in dilution of the wastes to an extent that removed the hazardous characteristics. EPA elected to allow this type of dilution when there was no other specified treatment method for the waste and where FWPCA-regulated treatment facilities "include[] a treatment protocol addressed to the types of characteristic wastes being aggregated."⁷⁶

The environmentalist petitioners challenged EPA's approach as inconsistent with RCRA's hazardous waste management requirements. They argued that characteristic hazardous wastes are only beyond the power of the Subtitle C [24 ELR 10026] scheme when they have been treated to the LDR standards, or disposed of in a way that satisfies the "no migration" standard.⁷⁷ They argued that placing diluted wastes in surface impoundments is akin to land disposal prior to treatment and, thus, violates the land ban. They contended that the dilution that results from aggregation of waste only reduces a waste's hazardous constituent's concentration, but does not prevent the entry of the constituents into the environment.⁷⁸

Although sympathetic to the petitioners' argument that § 3004(m)(1) requires treatment both to remove the characteristic and to reduce the toxicity of the hazardous constituents,⁷⁹ the court recognized that Congress wanted RCRA and the FWPCA to function harmoniously.⁸⁰ Consequently, the court deferred in part to EPA's position, stating that "diluted formerly characteristic wastes may be placed in subtitle D surface impoundments which are part of an integrated [FWPCA] treatment train."⁸¹ The court held that when such diluted waste meets § 3004(m)(1) standards, nothing else is required.⁸² The court, however, explicitly limited its holding to "existing [FWPCA-regulated] treatment systems."⁸³

Nonetheless, the court refused to defer fully to EPA's rule because, by not addressing the fate of the toxic constituents after wastes entered the storage impoundments, the rule compromised RCRA's substantive standards. Therefore, in accord with RCRA's language and the legislative intent, the court required that when dilution does not attain land-ban treatment standards, further treatment is necessary after placement in surface impoundments and before the waste leaves the facility to address the waste's toxic constituents.⁸⁴ The court noted that its ruling "satisfies RCRA's requirement that any accommodation 'be done in a manner consistent with the goals and policies' of both RCRA and the FWPCA."⁸⁵ By holding that RCRA does not require treatment prior to aggregation, and by allowing use of disposal to meet land-ban standards, the court established a scheme for permitting the statutes to work together. The court left it to EPA to address how dilution of specific wastes can fit in with this scheme, and what alternative methods might be necessary to meet § 3004(m)(1) standards.

In its ruling, the court allowed EPA to maintain apparently contradictory positions. EPA claimed that once wastes at FWPCA-regulated facilities lost their hazardous characteristics, they were no longer hazardous and, thus, could be placed in non-Subtitle C surface impoundments without violating RCRA. While this logic permits RCRA and the FWPCA to mesh, EPA had also argued that the land-ban program potentially applied to hazardous wastes at any point in the wastes' "life." After noting that "EPA cannot take a position here radically at odds with its prior position,"⁸⁶ the court allowed EPA to do just that, demonstrating the flexibility inherent in the court's Chevron analysis.

The court's statement that dilution of wastes at FWPCA-regulated treatment facilities is acceptable, but that waste discharged from the facilities must meet RCRA standards,⁸⁷ leaves unclear whether the rule was remanded or vacated. The difference is significant. Remand requires EPA to reconsider the regulations, whereas a vacatur immediately strikes the rule down, leaving the regulated community without an accepted method of disposal and causing a statutory "hammer" to ban the affected waste management practices pending EPA amendment of its regulation.⁸⁸ Confusion on this point led EPA to move the court, unsuccessfully, for clarification.⁸⁹ Upon denying EPA's petition, however, the court stated that the regulations "are vacated only insofar as 'expressly indicated' in the Sept. 25, 1992 panel opinion."⁹⁰

* The SDWA Dilution Rule. EPA's third-third regulations also permitted dilution of all characteristic hazardous wastes, including those covered by specific treatment methods, disposed of in injection wells pursuant to the SDWA.⁹¹ The Agency used the same two rationales to defend this rule that it used with regard to the FWPCA rule: (1) since the hazardous characteristics were removed, the wastes were no longer hazardous, and (2) this rule is a necessary accommodation with the SDWA.⁹²

EPA claimed that prohibiting dilution would render treatment too onerous for SDWA-regulated facilities and "treatment to RCRA standards would provide no environmental benefit over dilution and injection."⁹³ Moreover, the Agency determined that all SDWA-regulated Class I injection wells⁹⁴ would satisfy the "no migration" requirement such that individual "no migration" showings were unnecessary.⁹⁵ In challenging this rule, petitioners again argued that the rule violated the land ban by allowing land disposal of hazardous wastes before required treatment.

The court found for the environmentalist petitioners on this issue, holding that dilution and injection of characteristic hazardous wastes is acceptable only when the process [24 ELR 10027] meets § 3004(m)(1) standards. Thus, dilution followed by injection of characteristic wastes without further treatment "would completely avoid the balance Congress struck in RCRA."⁹⁶ The court distinguished this example from the FWPCA situation, noting "that holding turns on the prospect of future treatment so that the core of RCRA is not voided."⁹⁷

The court held that because deep-well injection is a form of land disposal governed by the RCRA land ban, EPA's argument that modifying deep-well injection systems to meet RCRA standards would be too burdensome is "irrelevant."⁹⁸ Finally, the court rejected EPA's contention that it was unnecessary for injection well owners and operators to apply for no migration variances based on an EPA finding that deep-injected wells, in general, qualify for such variances. RCRA explicitly requires each site to obtain a variance.⁹⁹ Thus, the court's flexibility in harmonizing RCRA with FWPCA-regulated facilities did not carry over to the SDWA context.

Postscript

Early in 1993, EPA announced the availability of information developed to implement the court's decision.¹⁰⁰ On May 24, 1993, the Agency published its interpretation that the court had vacated only those third-third rules that applied to ignitable and corrosive wastes that are not managed in centralized wastewater management systems -- i.e., FWPCA-regulated treatment systems or SDWA-regulated Class I injection wells¹⁰¹ -- and for which EPA had originally set "deactivation" of the wastes hazardous characteristic as the standard.¹⁰² EPA asserted that the court had merely remanded the rules that apply to EP-toxic wastes and wastes managed in centralized wastewater management systems.

The Agency promulgated an interim final rule setting treatment standards for those ignitable and corrosive wastes which had been subject to rules the court vacated. EPA reinstituted its "deactivation" standard but added a requirement that hazardous constituents be treated to meet numerical treatment standards or, for ignitable wastes, alternative standards that set treatment methods.¹⁰³

The environmentalist petitioners responded by moving the D.C. Circuit to enforce its mandate.¹⁰⁴ In a challenge to EPA's interpretation of the court's decision, the environmentalist petitioners contended that the court had vacated EPA's rules allowing dilution of ignitable and corrosive waste in FWPCA- and SDWA-regulated facilities and that the statutory hammer accordingly banned further land disposal of those wastes. On August 24, 1993, EPA and the environmentalist petitioners filed a settlement which set a schedule for EPA promulgation of rules to comply with the court's mandate and to govern management of characteristic hazardous wastes in Class I SDWA-regulated wells and FWPCA-regulated facilities that use surface impoundments.¹⁰⁵

Conclusion

EPA is under increasing pressure, both in this arena and with the mixture-from or derived-from rule,¹⁰⁶ to draw clear lines delineating when a waste is no longer subject to regulation under RCRA Subtitle C. Ultimately, the CWM case could contribute significantly to the overall protection of human health and the environment by affirming EPA's authority to control hazardous wastes during their entire life cycle and thus to regulate wastes past the point of elimination of whatever characteristic led to their classification as hazardous. In the wake of EPA's sparing exercise of this authority in the third-third rule, and amidst significant pressure from the regulated community, the question remains how EPA will exercise this broad power in the future.

1. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001 et seq.

2. Id. §§ 6921-6939e, ELR STAT. RCRA §§ 3001-3023.

3. Id. §§ 6941-6949a, ELR STAT. RCRA §§ 4001-4010.

4. Pub. L. No. 98-616, 98 Stat. 3221 (1984).

5. 42 U.S.C. § 6924(d)-(m), ELR STAT. RCRA § 3004(d)-(m).

6. Land Disposal Restrictions for Third Third Scheduled Wastes, 55 Fed. Reg. 22520 (1990).

7. 976 F.2d 2, 23 ELR 20024 (D.C. Cir. 1992), cert. denied, 113 S. Ct. 1961 (1993).

8. Court Rules EPA May Set Land Ban Standards Below Hazardous Waste Cutoff, INSIDE EPA, Oct. 2, 1992, at 1.

9. 42 U.S.C. §§ 300f-300j-26, ELR STAT. SDWA §§ 1401 et seq.

10. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101 et seq.

11. H.R. REP. NO. 1491, 94th Cong., 2d Sess. 5 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6242.

12. 40 C.F.R. §§ 261.31-.33 (1992).

13. Id. §§ 261.21-.24.

14. Chemical Waste Management, Inc. [CWM] v. U.S. Environmental Protection Agency, 976 F.2d at 8, 23 ELR at 20026 (D.C. Cir. 1992) (quoting Shell Oil Co. v. Environmental Protection Agency, 950 F.2d 741, 754, 22 ELR 20305, 20311 (D.C. Cir. 1991), cert. denied, 113 S. Ct. 1961 (1993).

15. 40 C.F.R. §§ 260.20, .22 (1992).

16. See Hill, Randolph L., An Overview of RCRA: The "Mind-Numbing" Provisions of the Most Complicated Environmental Statute, 21 ELR 10254, 10259 (May 1991).

17. See id. at 10268.

18. 42 U.S.C. § 6901(b)(7), ELR STAT. RCRA § 1002(b)(7).

19. Id. § 6924(m), ELR STAT. RCRA § 3004(m).

20. Id.

21. Id. §§ 6924(d)(1), (e)(1), ELR STAT. RCRA §§ 3004(d)(1), (e)(1).

22. Id. § 6924(e), ELR STAT. RCRA § 3004(e).

23. Id. § 6924(d), ELR STAT. RCRA 3004(d). These categories are "(1) liquid wastes containing high concentrations of free cyanide, (2) liquid wastes containing high concentrations of certain heavy metals, (3) liquid wastes containing high concentrations of polychlorinated biphenyls (PCBs), (4) liquid wastes with low [pH], or (5) other wastes containing high concentrations of halogenated organic compounds." See Hill, supra note 16, at 10268.

24. 42 U.S.C. § 6924(g)(4), ELR STAT. RCRA § 3004(g)(4).

25. Id. § 6924(g)(5), ELR STAT. RCRA § 3004(g)(5).

26. Id. § 6924(g)(4), ELR STAT. RCRA § 3004(g)(4).

27. Land Disposal Restrictions for First Third Scheduled Wastes, 53 Fed. Reg. 31138 (Aug. 17, 1988); see also 53 Fed. Reg. 30908 (Aug. 16, 1988); 54 Fed. Reg. 25416 (June 14, 1989) (rules prohibiting deep-well injection of first third wastes).

28. Land Disposal Restrictions for Second Third Scheduled Wastes, 54 Fed. Reg. 26594 (June 23, 1989).

29. See supra text accompanying note 6.

30. 54 Fed. Reg. 48372 (1989).

31. See supra text accompanying note 6.

32. CWM v. U.S. EPA, 976 F.2d at 9, 23 ELR at 20027 (D.C. Cir. 1992), cert. denied, 113 S. Ct. 1961 (1993). For example, wastes are considered corrosive if they are aqueous and have a pH of less than 2 or greater than 12.5. The proposed rule required treatment of these wastes to bring the pH to a level between 6 and 9. Id. (citing 54 Fed. Reg. 48372, 48422 (1989)).

33. EPA required treatment of solvents and dioxins with Best Demonstrated Available Technology (BDAT), 51 Fed. Reg. 40572, 40578 (1986), and applied a similar approach to first-third wastes, 53 Fed. Reg. 31138, 31142 (1988).

34. 54 Fed. Reg. 48420-26 (1989).

35. Id. at 48419.

36. CWM v. U.S. EPA, 976 F.2d at 12, 23 ELR at 20028 (D.C. Cir. 1992), cert. denied, 113 S. Ct. 1961 (1993).

37. 51 Fed. Reg. 40639 (1986).

38. CWM, 976 F.2d at 10, 23 ELR at 20027.

39. Id. at 11, 23 ELR at 20028 (citing 54 Fed. Reg. 48495 (1989)).

40. Id. at 10, 23 ELR at 20027 (citing 54 Fed. Reg. 48490 (1989)).

41. Id.

42. Id.

43. Effective September 25, 1990, EPA redefined the toxicity characteristic of hazardous waste. 55 Fed. Reg. 11798 (Mar. 29, 1990). Following this change, whether wastes exhibit the characteristic of toxicity is determined according to the Toxicity Characteristic Leachate Procedure rather than the Extraction Procedure (EP). EPA's third-third rule applies only to EP-toxic waste. 55 Fed. Reg. 22531 (June 1, 1990). Because EPA promulgated the TCLP after enactment of HSWA, EPA treats wastes that are toxic under the TCLP, but not EP-toxic, as "newly identified wastes." Land Disposal Restrictions for Newly Identified and Listed Hazardous Wastes and Hazardous Soil (Proposed Rule), 58 Fed. Reg. 48092, 48096 (Sept. 14, 1993).

44. CWM v. U.S. EPA, 976 F.2d at 11, 23 ELR at 20028 (D.C. Cir. 1992) (citing 55 Fed. Reg. 22655 (1990)), cert. denied, 113 S. Ct. 1961 (1993).

45. Id. (citing 55 Fed. Reg. 22532 (1990)).

46. Many of HSWA's most important deadlines, including LDR requirements, are enforced by statutory "hammers" -- strict standards that become effective automatically if EPA fails to promulgate regulations before the deadlines. See, e.g., 42 U.S.C. § 6921(d)(8), ELR STAT. RCRA § 3001(d)(8); 42 U.S.C. § 6924(g)(6)(c), ELR STAT. RCRA § 3004(g)(6)(c); see also Hill, supra note 16, at 10256.

47. CWM v. U.S. EPA, 976 F.2d at 11, 23 ELR at 20028 (D.C. Cir. 1992) (citing 55 Fed. Reg. 22665-66 (1990)), cert. denied, 113 S. Ct. 1961 (1993).

48. Id.

49. Id. (citing S. REP. NO. 284, 98th Cong., 1st Sess. 17 (1983)).

50. Id., 23 ELR at 20029 (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 14 ELR 20507, 20508-09 (1984)).

51. Id. at 12, 23 ELR at 20028-29.

52. Id. at 13, 23 ELR at 20029.

53. Id.

54. Id. at 14, 23 ELR at 20030.

55. Id. at 13, 23 ELR at 20029 (citing American Petroleum Inst. v. U.S. Environmental Protection Agency, 906 F.2d 729, 733, 20 ELR 21091, 21092 (D.C. Cir. 1990) (holding "[o]nce a waste is listed or identified as hazardous, its subsequent management is regulated"); Shell Oil Co. v. U.S. EPA, 950 F.2d 741, 754, 22 ELR 20305, 20311 (D.C. Cir. 1991) (holding EPA's authority to manage a hazardous waste attaches "at the point" it is defined as hazardous). The CWM court rejected the assertion that in American Mining Congress [AMC] v. U.S. EPA, 824 F.2d 1177, 17 ELR 21064 (D.C. Cir. 1987), it had adopted the position advanced by the industry petitioners. The court distinguished AMC, which addressed only the question of when secondary materials are "discarded," and thus subject to RCRA. CWM v. U.S. EPA, 976 F.2d at 14, 23 ELR at 20030 (D.C. Cir. 1992), cert. denied, 113 S. Ct. 1961 (1993).

56. CWM v. U.S. EPA, 976 F.2d at 11, 23 ELR at 20024.

57. 42 U.S.C. § 6924(m)(1), ELR STAT. RCRA § 3004(m)(1).

58. CWM, 976 F.2d at 14, 23 ELR at 20030.

59. Id. The court noted that in Hazardous Waste Treatment Council v. U.S. Environmental Protection Agency, 886 F.2d 355, 363, 19 ELR 21398, 21402 (D.C. Cir. 1989), cert. denied, 111 S. Ct. 139 (1990), it upheld land disposal standards for solvents that required treatment below the established hazardous level, because such treatment would minimize risks to human health and the environment. CWM, 976 F.2d at 14, 23 ELR at 20030.

60. Id. at 15, 23 ELR at 20030.

61. Id.

62. Id. at 15, 23 ELR at 20030. The regulations did not permit the dilution of the fourth type of characteristic hazardous wastes; toxicity characteristic wastes.

63. 42 U.S.C. § 6924(m)(1), ELR STAT. RCRA § 3004(m)(1).

64. CWM, 976 F.2d at 16, 23 ELR at 20031.

65. Id.

66. Id.

67. Id. at 16-17, 23 ELR at 20031.

68. Id. at 17, 23 ELR at 20031.

69. Id.

70. Id. at 18, 23 ELR at 20032.

71. EPA did recognize two specific types of reactive wastes that do contain hazardous constituents. For these two wastes, EPA required a technological treatment standard. Id.

72. Id.

73. Id. at 21, 23 ELR at 20033-34.

74. Id. at 20, 23 ELR at 20033.

75. Id. EPA gave several reasons for this potential disruption: "each facility would be forced 'either to (1) treat the waste prior to placement in the surface impoundment, (2) obtain a 'no migration['] variance, (3) comply with section 3005(j)(11) [setting standards for surface impoundments which treat hazardous wastes,] or (4) install tank treatment instead of using surface impoundments.'" Id. at 21, 23 ELR at 20034 (citing 55 Fed. Reg. 22657 n.14 (1990)).

76. Id. at 19, 23 ELR at 20032.

77. Id. at 19, 23 ELR at 20033.

78. Id. at 22, 23 ELR at 20034.

79. Id.

80. Id.

81. Id.

82. Id.

83. Id. at 24, 23 ELR at 20035 (emphasis in original).

84. Id. at 23-24, 23 ELR at 20035.

85. Id. at 24, 23 ELR at 20035.

86. Id. at 23, 23 ELR at 20035.

87. Id. at 22, 23 ELR 20024, 34. Confusion has also resulted in the court's ruling concerning ignitable and corrosive wastes. EPA to Seek Time in Land Ban Case, Eyes Universal Wastewater Standard Option, INSIDE EPA, Oct. 30, 1992, at 5, 6.

88. See Land Disposal Restrictions for Ignitable and Corrosive Characteristic Wastes Whose Treatment Standards Were Vacated, 58 Fed. Reg. 29860, 29863 (May 24, 1993); Land Disposal Restrictions for Third Third Scheduled Wastes; Response to Court Decision, 58 Fed. Reg. 4972, 4973 (Jan. 19, 1993).

89. EPA Asks Court to Clarify It Has Remanded Key Part of RCRA Land Ban, INSIDE EPA, Nov. 13, 1992, at 5. Environmentalists are not as confused as EPA on this point. They read the decision as clearly vacating EPA's approach. Id. at 6.

90. Chemical Waste Management, Inc. v. U.S. Environmental Protection Agency, 985 F.2d 1075 (D.C. Cir.) (rehearing denied), cert. denied, 113 S. Ct. 1961 (1993).

91. CWM v. U.S. EPA, 976 F.2d at 24, 23 ELR at 20035 (D.C. Cir. 1992), cert. denied, 113 S. Ct. 1961 (1993). Operators of deep-injection wells in this case inject wastewater into the earth, below the lowest geological formations that contain drinking water sources. Id. at 24 n.11, 23 ELR at 20036 n.11.

92. Id. at 25, 23 ELR at 20036.

93. Id.

94. Generally under the SDWA, only Class I wells may receive hazardous waste. 40 C.F.R. § 144.6(a).

95. CWM v. U.S. EPA, 976 F.2d at 25, 23 ELR at 20024, 20036 (D.C. Cir. 1992), cert. denied, 113 S. Ct. 1961 (1993).

96. Id.

97. Id.

98. Id. at 26, 23 ELR at 20036-37.

99. 42 U.S.C. § 6924(g), ELR STAT. RCRA § 3004(g).

100. Land Disposal Restrictions for Third Third Scheduled Wastes: Response to Court Decision, 58 Fed. Reg. 4972 (Jan. 19, 1993).

101. 58 Fed. Reg. 29860 (May 24, 1993). The Agency also took the position that the rules were remanded with respect to regulated entities that do not discharge into navigable waters but whose wastewater treatment systems are equivalent to FWPCA-regulated facilities. Id. at 29866.

102. Id. at 29863.

103. Id. at 29884-87.

104. See Settlement Agreement, Chemical Waste Management, Inc. v. U.S. EPA, 976 F.2d 2, 23 ELR 20024 (D.C. Cir. 1992) (No. 90-1230) (settlement filed Aug. 24, 1993).

105. Id.

106. See Shell Oil Co. v. U.S. EPA, 950 F.2d at 754, 22 ELR at 20311 (D.C. Cir. 1991).