The U.S. EPA Draft Guide for Industrial Waste Management--Too Little, Too Late?

The U.S. EPA Draft Guide for Industrial Waste Management—Too Little, Too Late?

Jonathan J. Greenberg

Editors' Summary: EPA recently proposed for public comment a draft guidance document that discusses voluntary federal recommendations for hundreds of thousands of nonhazardous industrial waste sites which currently escape RCRA regulation. In this Dialogue, a member of the chartered advisory group that assisted the Agency in the development of the document discusses its attributes and shortcomings. The Dialogue describes the history of EPA's use of RCRA Subtitle D and the statutory and programmatic obstacles to meaningful federal regulation. It then outlines the draft Guidance and concludes that EPA's effort falls short of the important goal of assessing and addressing the risks presented by industrial waste disposal facilities.

The author is a private consultant in Washington, D.C., specializing in environmental legislative, regulatory, and policy matters. From 1988 to 1998, he was Director of Environmental Policy for Browning-Ferris Industries. Mr. Greenberg served as Special Assistant to the Director of the U.S. EPA Office of Solid Waste from 1985-1988. Previously, he worked as a geologist. He earned a M.P.H. from Yale University (1985) and B.S. in Geology and Geophysics from the University of California at Santa Cruz (1978). Mr. Greenberg was an industry representative to the chartered advisory group that assisted in the development of the guidance document discussed in this Dialogue. The opinions expressed are those of the author. Mr. Greenberg can be reached by e-mail at Ugreenberg@erols.com.

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On June 11, 1999, the U.S. Environmental Protection Agency (EPA) published a notice in the Federal Register¹ that requested comments on a draft guidance document entitled Guide for Industrial Waste Management (the Guidance).² The purpose of the document, which employs a multimedia approach, is to help industrial waste facility operators, state agencies, and the public in evaluating and choosing protective practices for managing nonhazardous industrial waste in new landfills, waste piles, surface impoundments and land application units. The document suggests best management practices and factors to take into account in designing, siting, and operating these types of facilities. It also makes recommendations on monitoring, closure and post-closure care, and the performance of corrective action. While primarily a technical resource, the Guidance offers advice on how an owner/operator can interact with regulators, the host community, and other interested parties. The draft is intended to be strictly guidance. It does not contain model regulatory language and EPA has no plans to develop suggested standards. Comments onthe document must be submitted to EPA on or before December 13, 1999.

Despite the fact that the document will only serve as guidance, environmental professionals would be well advised to become familiar with it for several reasons. Many states may use the Guidance as justification for revising their industrial nonhazardous waste regulatory programs.³ While state industrial waste programs have steadily been upgraded,⁴ their requirements vary substantially in both stringency and scope. The Guidance will provide an easy template for states to follow during the course of program revisions. Similarly, the Guidance will likely become important in the siting and permitting process. States or other interested parties could use the document as a point of departure or even as a rebuttable presumption.

In addition, the Guidance provides a variety of tools that could be used to oppose the siting of a landfill, or influence its design and operation. Familiarity with the Guidance will not only help facility owner/operators anticipate the arguments of opposing parties, but also assist in the preparation of acceptable answers or alternatives. Likewise, owners/operators of facilities could use the Guidance as justification for more cost-effective design or operating requirements.

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When and if the Resource Conservation and Recovery Act (RCRA)⁵ is ever reauthorized,⁶ the document may be influential in any debate over the future of federal regulation of industrial nonhazardous facilities. The Agency has made considerable effort to include a wide variety of stakeholders in its development, which should give it an aura of credibility that is likely to appeal to lawmakers. Insurance companies may use the Guidance in writing environmental policies for industrial nonhazardous waste management units. And the broad scope and detail of the Guidance offer a comprehensive "punch list" that is valuable in that few professionals can claim expertise across all federal and state environmental programs. A substantial part of the Guidance is devoted to helping the reader determine how a particular disposal unit may be subject to existing regulations.

Genesis of the Guidance Document

A brief history of how EPA has approached the regulation of nonhazardous industrial waste facilities is in order. Prior to the passage of RCRA in 1976 federal regulation of solid waste⁷ was extraordinarily modest in comparison to the current regulatory environment. The RCRA amendments to the Solid Waste Disposal Act created two subtitles that set forth new legal authorities for EPA. The Agency was to regulate hazardous waste under Subtitle C⁸ and all other solid waste under Subtitle D.⁹ Subtitle C commands EPA to create a hazardous waste program that regulates the generation, storage, treatment, and disposal of hazardous waste; in other words, a cradle-to-grave approach.¹⁰ In contrast, Subtitle D merely directs EPA to set criteria for state regulatory programs governing solely the disposal of nonhazardous waste. Moreover, the level of statutory specificity under Subtitle C, particularly after the landmark Hazardous and Solid Waste Amendments of 1984,¹¹ is extraordinary in comparison to Subtitle D. As a result, notwithstanding years of litigation and delays,¹² rulemakings under Subtitle C have been relatively easy and prolific for EPA whereas rulemakings under Subtitle D have been modest in number¹³ and have carried a higher burden of justification due to the lack of statutory specificity. In addition, Subtitle D, unlike Subtitle C, requires the Agency to consider the economic impacts of its regulations on the regulated community and not merely worry about meeting the simple statutory standard of "protection of human health and the environment."¹⁴ Economics comes into play under Subtitle C only as an exception expressly allowed for by specific statutory language, such as in the case of the best-demonstrated and available technology statutory standard for developing treatment standards for hazardous waste.

The enforcement schemes for rules respectively authorized under Subtitles C & D are also radically different. EPA can directly enforce against a Subtitle C facility using federal rules in unapproved states or by using state rules in approved states.¹⁵ However, under Subtitle D, EPA can only enforce against a facility in unapproved states or states that have had their program approval revoked.¹⁶ As a practical matter, this difference in enforcement authority puts responsibility for Subtitle D enforcement entirely on the shoulders of the states and largely reflects the long-standing policy that states play the major role in regulating nonhazardous waste.

The major differences in statutory authority go a long way in explaining the modest federal regulatory environment for nonhazardous waste and the reason EPA has chosen guidance over further regulation of nonhazardous industrial landfills. A more detailed review of Subtitle D authorities reveals the substantial hurdles that EPA faces in regulating nonhazardous industrial waste facilities.

The central authority for the regulation of nonhazardous waste is found in RCRA § 4004(a). It commands the Agency to "promulgate regulations containing criteria for determining which facilities shall be classified as sanitary landfills and which shall be classified as open dumps …."¹⁷ Section 4005(a), in turn, deems that open dumping is illegal by stating that "any solid waste management practice or disposal of solid waste or hazardous waste which constitutes the open dumping of solid waste or hazardous waste is prohibited [29 ELR 10766] …."¹⁸ Section 4005(a) also requires states to have plans to either close open dumps or force them to upgrade to sanitary landfill standards.

Initially, EPA promulgated criteria for open dumping that were closely based on the statutory minimums outlined in RCRA § 1008(a)(2) so as to

describe levels of performance, including appropriate methods and degrees of control, that provide at a minimum for (A) protection of public health and welfare; (B) protection of the quality of ground waters and surface waters from leachates; (C) protection of the quality of surface waters from runoff through compliance with effluent limitations under the Federal Water Pollution Control Act…; (D) protection of ambient air quality through compliance with new source performance standards or requirements of air quality implementation plans under the Clean Air Act, …; (E) disease and vector control; (F) safety; and (G) esthetics; …¹⁹

These criteria are found at 40 C.F.R. Part 257; judging by today's standards for the design, operation, and permitting of municipal solid waste landfills (MSWLFs),²⁰ they are quite minimal. For the most part, they simply require that the facilities not violate federal environmental laws. For example, as originally promulgated the criteria did not require permitting of nonhazardous waste disposal facilities, liner systems, groundwater monitoring, corrective action, post-closure care, or financial assurance. As promulgated on September 13, 1979, they provided a modest national floor that states were to use in the development of their nonhazardous waste programs.²¹

The volume of nonhazardous waste generated on an annual basis is measured in the tens of billions of tons.²² The waste presents risks varying from essentially inert material to materials that fall just short of being hazardous under current regulations as well as some materials that may be captured under future hazardous waste rulemakings.²³ For example, a waste stream that barely passes the toxicity characteristic (TC) for lead and is not a listed waste can be disposed of in any Subtitle D landfill. However, had the same waste stream flunked the TC, it would have to meet land disposal restrictions treatment standards for lead and any other hazardous constituent present in the waste stream.²⁴ Only then could it be disposed of in a Subtitle D landfill. It is entirely possible that the former waste stream presents a greater environmental threat than does the treatment residue of the latter.

A similar example is true for a listed waste stream that is treated to land disposal restriction levels. This waste stream would not only have to meet the applicable treatment standards, but also could not exhibit a hazardous waste characteristic.²⁵ Moreover, unless delisted,²⁶ it would have to be disposed of in a double composite lined hazardous waste landfill. Again, the treatment residue may present less of a hazard than other waste streams that are never captured by the hazardous waste rules, yet it must be land disposed of in the most secure form of landfill available, a hazardous waste facility.

Unfortunately, from an environmental and human health perspective, there is very little information regarding the human and ecologic toxicology of waste streams that fail to be caught by Subtitle C. This is particularly true for wastes that present hazards in media other than groundwater, in large part because there is no regulation that compels the testing or characterization of nonhazardous waste streams. Thus, the very general criteria included in Part 257 do not provide assurance that nonhazardous waste is being properly managed in landfills, surface impoundments and land application units.

This concern was partly reflected in the passage of the 1984 Hazardous and Solid Waste Amendments (HSWA) and its focus on the protection of groundwater. RCRA § 4010(a), as added by HSWA, required EPA to

conduct a study of the extent to which the guidelines and criteria [for facilities under this Act] (other than guidelines and criteria for facilities to which [Subtitle C] applies) which are applicable to solid waste management facilities, including, but not limited to landfills and surface impoundments, are adequate to protect human health and the environment from ground water contamination. Such study shall include a detailed assessment of the degree to which criteria under section 6907(a) … and the criteria under section 6944 … regarding monitoring, prevention of contamination, and remedial action are adequate to protect ground water and shall also include recommendation with respect to any additional enforcement authorities which the Administrator, in consultation with the Attorney General, deems necessary for such purposes.²⁷

EPA did carry out the study required of it under § 4010(a), but with the exception of MSWLFs was unable to characterize risks for the remainder of the nonhazardous waste universe.²⁸ The Agency noted that:

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Limited data on violations of State requirements, coupled with these statistics on design and operating controls, suggests that releases may be occurring, but more data are needed to determine the impacts of industrial Subtitle D facilities. The notification and exposure information requirements in Part 257 proposed today are a first step toward gathering this information.²⁹

The proposed limited notification and exposure information requirements for industrial nonhazardous waste facilities did not survive the scrutiny of the Office of Management and Budget (OMB) and negative public comments, and were subsequently dropped from the rulemaking, which ultimately focused exclusively on MSWLFs. Nevertheless, despite the scrubbing of the notification and exposure requirements EPA heightened its sense of urgency regarding industrial Subtitle D facilities when it stated:

EPA believes the public comments received on the proposed notification, together with EPA's earlier findings concerning health threats and the findings in GAO's report, provide a compelling case to move forward more expeditiously than was previously proposed toward a more comprehensive information collection strategy to better understand the risks posed by these facilities and to assess the need for any future program actions by the Agency.³⁰

Because EPA did have sufficient information to document the risks presented by MSWLFs it instead used its broad authority to define open dumping and the statutory minimums outlined in § 4010(c) by promulgating comprehensive criteria on October 9, 1991. The revised Part 258 minimum federal criteria went well beyond the section 4010(c) statutory requirements of "ground water monitoring as necessary to detect contamination, establish criteria for the acceptable location of new and existing facilities, and provide for corrective action as appropriate."³¹ For example, the Agency successfully promulgated requirements for liner and capping systems, leachate collection, post-closure care, and financial assurance. The rulemaking, as a whole, is comprehensive and inclusive of the types of design, location, and operating controls that one would expect of a modern-day landfill. During the development of the regulations, EPA decided to proceed with new source performance standards (NSPS) for MSWLFs under § 111 of the Clean Air Act (CAA)³² and successfully promulgated those regulations as well.³³

Despite the great success EPA had in promulgating comprehensive regulations for MSWLFs, its efforts to get a handle on the risks and need for regulation of nonhazardous industrial waste facilities have languished. Over the past decade, various attempts at RCRA reauthorization have nearly always included bills with specific provisions for the stringent regulation of these facilities.³⁴ Almost a decade ago, the Keystone Center facilitated a process whose purpose was to come up with a set of statutory provisions. This effort failed to develop language acceptable to a majority of stakeholders. In any case, post-HSWA there have been no successful RCRA reauthorization bills, and therefore the issue of a more stringent federal program for regulating nonhazardous industrial waste has not been addressed by Congress.

When EPA proposed the Part 258 rules in 1988 it specifically announced its intention to develop regulatory programs for industrial nonhazardous waste facilities in two phases.³⁵ The first would have applied to facilities that accept conditionally exempt small quantity generator (CESQG) waste; the second to facilities that did not. For reasons never articulated, EPA essentially abandoned its plans for a "two-phased" approach to regulation. Nearly five years later, the Sierra Club filed suit on October 21, 1993, seeking to compel EPA to promulgate criteria for nonmunicipal, nonhazardous disposal facilities that may receive small quantity generator hazardous waste.³⁶ As a result of the lawsuit, the Agency issued regulations on July 1, 1996,³⁷ imposing easily satisfied standards for the small number of facilities that intended to continue to accept CESQG waste. These standards, unlike the MSWLF rules, strictly follow the statutory obligations outlined in § 4010(c) and simply set forth requirements for groundwater monitoring, location restrictions, and corrective action.

For all practical purposes, the only nonmunicipal, nonhazardous solid waste disposal facilities that might continue to accept CESQG waste would be a subset of construction and demolition landfills. Given the concerns that the Agency has expressed regarding the enormous number of nonhazardous industrial waste facilities, it is odd that the minimal regulation of literally a handful of construction and demolition sites is apparently the EPA's final say under Subtitle D. The rule, unfortunately, appears to be a convenient reading of the statutory language designed to avoid the larger and more complicated task of characterizing the risks presented by hundreds of thousands of large and heterogeneous facilities. Sorting out those risks is a difficult though necessary step in determining the need for further regulation under Subtitle D.

Interestingly, a careful reading of the preamble to the 1999 regulation fails to leave the impression that EPA had any concerns regarding the balance of the nonhazardous industrial D universe. The preamble contains no language that acknowledges the Agency's previously stated concerns, and offers no evidence that it has sufficiently studied the vast number of nonmunicipal, nonhazardous industrial waste facilities that do not accept CESQG waste. Certainly, a reading of EPA's earlier works did not even remotely suggest that the acceptance of CESQG waste was the major risk factor. Instead, CESQG and household hazardous waste played only a small role in demonstrating the risks presented by MSWLFs. Moreover, EPA did not allow MSWLFs to opt out of Part 258 if owners/operators chose not to accept household hazardous waste or CESQG waste. Indeed, EPA understood there were many other types of risks associated [29 ELR 10768] with MSWLFs that had little or nothing to do with the acceptance of these low volume hazardous waste streams.

Approximately three years ago EPA started the development of the draft guidance document that is the subject of this Dialogue. The Agency has never publicly stated why it chose guidance over regulations for nonhazardous industrial waste facilities despite its 1988 declaration that a regulatory approach was appropriate. One can speculate that a number of factors may have taken the wind out of a regulatory approach. The universe of nonhazardous waste facilities and waste streams is very large and diverse, making it difficult for EPA to develop appropriately tailored regulations. The political climate for embarking on major new regulatory programs has grown increasingly hostile. The national environmental groups that at one time had a strong stake in this topic seemed to have lost interest, further lessening the political will to act. The weak existing Subtitle D authority makes the burden of rulemaking all the more difficult, especially in the absence of risk information that is time-consuming and expensive to collect. The Agency's budget for solid waste issues has shrunken, indicating an implicit lack of priority. In the absence of EPA action, states have unevenly but steadily improved on their industrial nonhazardous waste programs, often borrowing elements from the much more comprehensive Part 258 program. And some states are apprehensive about a new federal program due to concerns that it may not dovetail with existing standards and require considerable agency resources.

Taking all of these factors into consideration, it is not surprising that EPA has taken a guidance approach toward nonhazardous industrial waste facilities. Unfortunately, however, the environmental basis for this decision has never been articulated, because the Agency has yet to comprehensively characterize the range of risk presented by these facilities (except for the extremely narrow issue of CESQG waste). If the final Guidance is taken seriously by states and facility owners/operators, it has the potential to eliminate the most notable risks presented by a number of industrial nonhazardous waste facilities.³⁸ However, because the document is targeted exclusively at new facilities, which are likely to be better located and designed than existing ones, it may do less to fix what is basically an existing facility problem.

Applicability of the Guidance

The Guidance is applicable to a well-defined set of facilities. It applies to new nonhazardous waste industrial landfills, waste piles, surface impoundments, and land application sites. It does not apply to wastes uniquely generated from mining or oil and gas exploration and production. Likewise, it does not apply to facilities that co-dispose nonhazardous industrial waste with municipal solid waste—these facilities are regulated under Part 258. Finally, the Guidance is not designed to take the place of existing federal, state or tribal regulations, permits, and operating agreements that may apply to an industrial nonhazardous waste management unit. While EPA makes that clear in the draft, there is arguably nothing that would preclude its use provided that it did not unlawfully conflict with existing regulations.

Certainly, states are perfectly free to choose to incorporate the Guidance in part or in whole in their regulations or in the permitting process. Nor, for that matter, is there anything that would prohibit its use in whole or in part in the course of siting and permitting of other types of facilities. For example, a citizen could reasonably use parts of the Guidance to raise questions regarding about the design of other types of solid waste disposal units. Hopefully, scientific discipline and existing policy and law will limit unwarranted application.

Major Elements of the Guidance

The Guidance is written to address a wide variety of audiences with a major focus on facility owners/operators, state permitting agencies and citizens who reside within the community hosting the facility. The level of discussion ranges from broad background information regarding topics such as risk assessment, suitable for a lay person, to highly technical discussions primarily intended for the users of the air and groundwater models incorporated therein. The following discussion corresponds to applicable portions of the Guidance. Because many users will likely view the document on the World Wide Web or obtain the CD-ROM version, references are typically to parts and chapter, rather than page numbers, in the print edition.

Part I: Getting Started

Chapter 1: Building Partnerships

The first chapter of this section starts with a brief but all-important discussion of fostering good relations between the facility owner/operator, the state regulatory authority, and the surrounding community during the siting and permitting process. In addition, it offers a primer on risk assessment aimed at the lay person.

Chapter 2: Characterizing Waste

This chapter focuses on characterizing the waste(s) that will be managed in the types of units that the document addresses. It borrows heavily from the hazardous waste program's rules, policies, and guidance and is written at a technical level. EPA strongly urges the use of some kind of leach test to evaluate waste and attempts to clarify the appropriate uses of procedures the Agency has already developed for regulatory or policy development purposes (e.g., the Toxicity Characteristic Leaching Procedure (TCLP)).³⁹

All of the leaching tests mentioned have been subject to considerable litigation and controversy over their scientific [29 ELR 10769] validity.⁴⁰ Moreover, their use has been primarily in setting Subtitle C policy or in defining when a waste is hazardous, rather than for site-specific determinations of whether a nonhazardous waste can be safely managed. For better or worse, the tests are well known to EPA, state agencies, and laboratories and therefore will be difficult to deviate from.

Chapter 3: Integrating Pollution Prevention, Recycling, and Treatment

This chapter of the Guidance offers a primer on pollution prevention, recycling, and treatment that is written for lay persons. The discussion presents each of these alternative approaches to disposal in light of their potential environmental and cost benefits. Understandably, the chapter does not attempt to offer any methodology for determining their applicability in specific circumstances.

Chapter 4: Considering the Site

Part I concludes with a chapter containing a discussion of environmental siting considerations that tracks very closely with the Part 258 criteria. It departs from traditional siting considerations in its discussion of buffer zones and environmental justice considerations. Interestingly, buffer zones are not required by RCRA regulations. Nevertheless, as a practical matter, many states have rules imposing buffer zones or have referenced them on a case-by-case basis during the permitting process. While the mention of environmental justice usually sparks controversy, the Agency's discussion is rather tame. The chapter merely defines the term and mentions the importance of building partnerships with host communities. It offers very generic suggestions on how facility managers can assure good communications and be responsive to local needs. Interestingly, there is no mention of the Agency's efforts in the development of environmental justice guidance.

Part II: Protecting Air Quality

Chapter 5: Protecting Air Quality

Chapter five covers four basic areas regarding air emissions from nonhazardous industrial waste management units:

. The applicability of CAA regulations.

. A primer on air risk assessment appropriate for a lay person.

. The use of a three part risk estimating model available on the CD-ROM version of the Guidance.

. Treatment options for waste streams and control options for waste management units accepting wastes with volatile and/or particulate air emissions.

The chapter begins with a broad description of air emission control programs under the CAA. The level of detail is probably most helpful for an environmental professional who is only modestly familiar with the various CAA programs. The discussion then focuses on how the air emissions regulations found in Subtitle C,⁴¹ the NSPS for MSWLFs and the off-site waste and recovery operations national emission standard for hazardous air pollutants (NESHAP)⁴² could be helpful in controlling emissions in units that otherwise are not subject to those rules. A decision guide is included to assist in the determination of whether a nonhazardous industrial waste management unit may already be subject, directly or indirectly, to the CAA. The discussion should also be helpful to state solid waste regulators. Until recently the regulation of air emissions from disposal facilities has been uneven because air regulators often over-looked disposal facilities and/or solid waste regulators lacked sufficient knowledge of CAA programs to recognize their applicability.

The next major topic concerns use of the three components of the Industrial Waste Air (IWAIR) model to characterize air emissions risks.⁴³ The heart of the IWAIR model is EPA's long-standing CHEMDAT8 air emissions prediction model. In brief, IWAIR can be used to determine emission rates, model the dispersion of pollutants, and estimate risk. While the model can use varying degrees of site and waste specific data to estimate risk, the cost of collecting data can escalate risk evaluation costs dramatically. As used in its generic form, the model is essentially a screening device to determine whether more sophisticated modeling is appropriate based on an initial estimation of risk or emission rates. This is important for two reasons: an estimation of emission rates may be helpful in determining the applicability of rules under the CAA, and the risk information can be helpful to focus the need for air emission controls even if a unit is not regulated. Interestingly, EPA does not offer any specific guidance in determining when an unregulated unit should be subject to control.

The chapter concludes with an overview discussion of methods to control emissions of particulate matter and volatile organic compounds (VOCs). For particulate emissions, EPA points the reader in the direction of operational controls such as waste placement and handling in the waste management unit. For VOCs, EPA follows a logical path in discussing treatment options to reduce emissions either prior to or after placement in a management unit. The reader of this section will not find any specific criteria for deciding when controls should be utilized.

Part III: Protecting Surface Water

Chapter 6: Protecting Surface Water

Chapter 6 has two major objectives. The first is to point out the applicability of the stormwater and process water regulations that may apply to nonhazardous industrial waste management facilities. In addition, it provides an overview of management and design practices that can prevent spills and minimize the contamination of stormwater runoff. The latter objective borrows heavily from the best management practices found in the Agency's stormwater regulatory program.⁴⁴

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A careful reading of this chapter reveals that landfills and land application sites have to comply with stormwater regulations. In addition, EPA also notes that surface impoundments managing process water that is discharged must be included in an NPDES permit. In addition, landfill leachate that is collected for treatment and discharge must also be subject to an NPDES permit. While not mentioned in the Guidance, all landfills actively managing leachate will eventually be subject to a categorical standard that was proposed in February 6, 1996⁴⁵ and is expected to be finalized by November 1999 under a court-ordered schedule.⁴⁶

Part IV: Protecting Groundwater

This portion covers risk estimation (based on different levels of groundwater modeling analysis), liner design and construction quality assurance, and a chapter devoted to designing a land application program. While the discussions of these topics provide a good overview of the issues, a lay person will find it difficult ground to cover. For environmental professionals the reading will be easier, especially if the individual has some familiarity with EPA's groundwater fate and transport models. Section A of Chapter 7 deserves careful attention and has many elements that are likely to prove controversial, especially in terms of the underlying assumptions driving the models and appropriate uses of the results.

Chapter 7, Section A: Assessing Risk

This section of Chapter 7 takes a three-tiered approach toward groundwater risk assessment. The first is a very conservative national evaluation based on EPA's industrial waste evaluation model (IWEM).⁴⁷ The second tier makes limited use of site-specific data allowing for a better estimation of risk, thanks to use of a derivative model of the IWEM. The third is not a model itself but rather a primer on site-specific risk evaluations and a description of some available groundwater models that can be used to estimate risk and assist in the choice of liner and capping systems. All but the smallest landfills and surface impoundments are designed on the basis of comprehensive site-specific analysis. The reason for this is simple:

. Only a site-specific analysis can offer sufficient information to choose a proper design for liner and capping systems; and

. Only a site-specific analysis can offer sufficient information to custom tailor a design type to an actual site conditions such that it can be properly constructed and perform as intended.

This is not to say that the first two tiers are without utility, but how the Guidance portrays their role is crucial. As they are presently described, the tiers will likely draw more controversy than the balance of the Guidance.

The Tier 1 IWEM model is actually a variation on EPA's Composite Model for Leachate Migration With Transformation Products (EPACMTP).⁴⁸ It has been used by the Office of Solid Waste in number of different regulatory and policy undertakings, most notably in the various iterations of the Hazardous Waste Identification Rule,⁴⁹ and has been reviewed by the Science Advisory Board (however, not for the use as intended in the Guidance). Essentially, the model links a range of key variables that affect the fate and transport of chemical constituents in groundwater such that one can pick a point of exposure from a unit and predict what the concentration levels will be. The actual statistical technique employed is known as a Monte Carlo analysis. The model uses maximum contaminant levels (MCLs) and/or HBNs (which are toxicological limits that are considered protective of human health) and assumes at the point of exposure that these are the maximum levels allowed. It then back calculates and determines the maximum level at which the waste in a management unit will not exceed the point of exposure.

The IWEM is set up on a nationwide basis to answer a deceptively simple question: For a given waste and unit, what kind of liner design is necessary such that the unit could, within reason, be built anywhere in the United States and be protective of human health?

The actual results are organized in such a way that for a given constituent concentration one can determine whether no liner, a single liner, or a composite liner is necessary. Because the question is so generic, the model is by design very conservative. The results of the analysis are printed in table form in the print version⁵⁰ of the Guidance or can be accessed on the CD-ROM. The model itself is not suited for running on a personal computer (PC).

The Tier 2 approach for selecting liner designs allows for the input of a small set of site-specific data (e.g., depth to water table or aquifer thickness). It relies upon a neural net derivation of the IWEM. Put simply, the neural net derivation is more or less the distillation of the IWEM results into a set of simplified statistical heuristics that can be run on a PC. If done well, it should produce results nearly as good as from use of the IWEM. Indeed, because Tier 2 approach allows for some site-specific input, it has the potential to better tailor risk to individual conditions. While EPA does discuss which of the input parameters most strongly affect Tier 2 results, it does not attempt to show the degree to which the approach can improve on the results of Tier 1 by better assessing site-specific conditions.

As with all environmental risk estimation models, the devil is in the details. For both Tiers 1 and 2 there are numerous assumptions that can have a major impact on model results. For example, both tiers use a default measurement of 150 meters for the distance to a monitoring well. In Tier 2 it can be increased significantly. However, it is worth noting that under both Subtitle C and Part 258 the compliance boundary is the unit boundary, with little room for exception. One could fairly ask, then, if the unit boundary is the enforceable regulatory standard under RCRA, why should the Guidance suggest another criterion? Many would argue [29 ELR 10771] that the point of exposure or compliance should be consistent as a matter of policy for guidance or regulation under both subtitles of RCRA.

Explicit in both Tiers 1 and 2 is that EPA is attempting to rely on the hazardous waste program to preclude the need for more than a composite liner. EPA apparently hopes to achieve this by setting the maximum allowable leachate concentration at 1,000 milligrams per liter (mg/l) or, for TC constituents, at the TC regulatory levels. It offers no explanation why the 1,000 mg/l limit will achieve the desired result, but merely states that higher levels "are not expected" in leachate from industrial nonhazardous waste management units.⁵¹

The efficacy of the 1000 mg/l criterion is not an esoteric issue; indeed, it raises important questions about the adequacy of the Subtitle C program in screening out wastes needing cradle-to-grave management. In fact, the Agency confronts this issue head on:

The hazardous waste program deals with liner/cap uncertainties by requiring treatment prior to disposal. How should such uncertainties be dealt with for nonhazardous industrial wastes? One possibility is to rely on quality assurance and control, long-term monitoring and corrective action to address nonhazardous waste. Where uncertainties are too great, we could rely on the hazardous waste program to list such waste as hazardous and require treatment. A second approach could be to rely on treatment of certain nonhazardous wastes. What other approaches are available?⁵²

This raises the age-old Subtitles C and D "bright-line" issue that has haunted EPA since the inception of the hazardous waste program. Instead of developing a continuum of risk approach across the subtitles, the Agency has been under pressure to move any problematic waste into Subtitle C because it cannot point to a national regulatory floor for nonhazardous industrial waste. The problem is a major headache for the Agency and has arisen on numerous occasions:

. EPA has spent years trying to come to terms with how to regulate, outside of the Subtitle C program, low-risk dust generated by cement kilns that use hazardous waste as fuel.⁵³

. Because of a recent petroleum waste listing rule,⁵⁴ a significant number of MSWLFs that received the waste streams prior to their listing would have to treat their leachate as a hazardous waste—even though the leachate is indistinguishable from leachate at other MSWLFs that never received the wastes. This situation is a result of the retroactive application of the mixture and derived-from rules.⁵⁵ The Agency has attempted to get around this issue by a temporary deferral of the affected leachate from the definition of hazardous waste.⁵⁶ However, it is unclear how EPA will ultimately resolve the matter.

. In order to lower the cost of remediating buildings with lead-based paint (a widely recognized public health threat with a large exposed population).⁵⁷ EPA has proposed a rule that would allow building components to be exempted from the TC rule provided the materials are managed in accordance with certain requirements and disposed of in a construction and demolition landfill.⁵⁸ Ironically, EPA is seeking to prohibit the disposal of the components in much more comprehensively regulated MSWLFs because of a slight difference in risk resulting from the use of controversial pH modeling assumptions.

While the legal issues are admittedly complex, the root cause of the bright-line problem is the lack of an adequate national regulatory floor for nonhazardous industrial landfills and EPA's use of mismanagement scenarios in determining the regulatory status of a waste stream pursuant to RCRA § 3001. Without an adequate floor, the Agency is essentially forced to assume mismanagement. Moreover, EPA is placed in a programmatic paradox; if it did upgrade the nonhazardous industrial waste facility regulations, it would undermine its ability to identify waste as hazardous, and thereby strengthen the argument to manage many hazardous wastes (particularly treatment residues) outside of Subtitle C.

For generators of industrial waste the issue is a double-edged sword. Because EPA has not comprehensively evaluated the risks presented by industrial nonhazardous wastes, generators of waste streams that could be construed to be hazardous must rely on an element of luck in avoiding regulation. Their good fortune is primarily a function of EPA's limited resources and avoiding the lime-light of environmental organizations that may otherwise target them. Over the past decade, EPA's Subtitle C listing determinations have been driven largely by statutory and environmental group pressure, rather than due to a comprehensive understanding of risk. Without an adequateSubtitle D floor, industrial waste generators have no protection from having their wastes listed as hazardous, even if at their own facility they are voluntarily managing the wastes more stringently than what is required by regulations of their state or other jurisdictions.⁵⁹

Finally, despite the EPA's claim that everyone can use the models effectively, it is not at all clear that lay users will [29 ELR 10772] or should feel comfortable using them. As with any complex model, unless the user has substantial relevant training and experience, the results may be deceptively simple and inadvertently misused. Without an understanding of the importance of the basic underlying assumptions and theories that are behind its various components—not to mention a grounding in statistics—it is hard to believe that a lay person could employ Tiers 1 or 2 with confidence. Moreover, precisely because of this problem the general public may distrust the models despite their generally conservative nature. Also, for any model to be used, especially in this context, it has to be validated for the particular site in question—even if only to ensure that the underlying assumptions hold true. The greatest utility of the approach set forth in the draft Guidance may be in its use as a screening tool for waste streams. For example, the IWEM model could be used by an engineer designing a new industrial process to steer the design in the direction of producing a more innocuous waste stream. Thus, as a potential pollution prevention tool, rather than a liner design tool for a specific site, it could have considerable utility.

Chapter 7, Section B: Designing and Installing Liners

Chapter 7 then focuses on liner designs, ranging from a simple clay liner up to a double system with leachate collection.⁶⁰ It also discusses quality assurance and control issues necessary to assure proper installation of a liner. The chapter is very helpful for lay readers, as it is logically presented and contains a minimum of technical jargon but nevertheless provides a good overview of liner design and installation. The only shortcoming is the absence of a discussion on liner efficacy and longevity, perhaps because of the controversy both within and outside EPA on these topics.⁶¹ However, at a minimum EPA should mention that the most important role of liner systems is to prevent leachate migration during the active phase of operation, since it is during that period that most of the moisture is likely to enter the unit. During this initial relatively brief time frame (typically 20 to 40 years), liner systems are most likely to work. The chapter then should relate the role of capping systems as a long-term, life of the landfill, strategy in preventing moisture from entering the landfill in the first place.

Chapter 7, Section C: Designing a Land Application Program

This portion of Chapter 7⁶² describes considerations for land application⁶³ when used for beneficial purposes or primarily as a disposal method. EPA relies on the Tier I groundwater model to screen out waste streams that contain constituents not appropriate for land application—waste streams in which toxic chemicals serve no beneficial purpose or would not biodegrade and simply "go along for the ride." The chapter is essentially an overview of concerns and suggestions for resources that must be consulted to actually design a land application program. As an overview chapter it provides a good explanation of concerns that would be helpful to a generator contemplating this technique of waste management. The chapter does need a discussion on application methods and technologies—both how they work and the kinds of exposure risks they may present. Such a discussion is very important for communities that may host a land application site. The topic is hinted at with a one-paragraph admonishment to follow the Occupational Safety and Health Administration procedures during land application.

Part V: Ensuring Long-Term Protection

Chapter 8: Operating the Waste Management System

This noncontroversial analysis⁶⁴ covers a variety of operational issues regarding waste facilities ranging from installation of gas control systems to safety training. It borrows substantially from the municipal solid waste landfill rules and guidance and from the hazardous waste program on the issue of waste analysis. The chapter is successfully written for a lay audience and provides a good sense of day-to-day facility operations.

Chapter 9: Monitoring Performance

This chapter⁶⁵ focuses primarily on groundwater monitoring systems and operations and briefly mentions monitoring issues for other media such as surface water or air. It provides a good overview of these topics but is unevenly written. For example, EPA points out that groundwater monitoring systems are essential for all waste disposal facilities, but does not provide any criteria for determining when the exception is appropriate.

The Agency correctly points out the importance of accurate characterizing hydrogeological conditions at the site; otherwise, designing and executing a groundwater monitoring program would be futile. However, this admonishment conflicts with the portrayal of the first two tiers of the groundwater protection model used to select liner design—even taking into consideration the qualifications the Guidance places on the models. It is hard to imagine a situation in which one would select a liner design in the absence of detailed site hydrogeological data. Until the site-specific conditions are adequately mapped, very little is known about the site's natural efficacy to contain waste and leachate, making liner system design selection premature. Models such as those employed in Tiers I and II simply cannot replace actual site-specific data. While some geologic formations are massive and homogeneous in nature and therefore can be easily modeled, most are not. Careful examination of an actual site is typically likely to reveal hydrogeologic details that are of critical importance to the successful design of liner systems and monitoring systems.

[29 ELR 10773]

Chapter 10: Taking Corrective Action

This chapter⁶⁶ borrows heavily from the correction action rules and guidance applicable to MSWLFs. It also suggests the use of guidance documents available under the Subtitle C and Superfund⁶⁷ programs. EPA uses its drinking water standards⁶⁸ as the point of departure for determining when a release needs to be evaluated and also as a goal for final remediation. However, the Agency also suggests the use of institutional controls⁶⁹ in certain situations to control the spread and exposure of a release (but not necessarily clean it up to a health-based level). The chapter also introduces the Risk Based Corrective Action (RBCA) standard⁷⁰ developed by some states and an American Society for Testing and Materials committee.⁷¹ The RBCA is a generic approach to corrective action that suggests a means of evaluating risk from releases from a variety of situations and how to respond appropriately. The point of RBCA is not to challenge existing regulations regarding the remediation of sites that have releases but to suggest an approach that result in a response that is acceptable within the constraints of the regulations that operate on a particular type of release. The RBCA approach is designed to be useful for a wide range of release scenarios ranging from underground storage tank releases to releases from Superfund sites. The chapter includes a brief discussion recommending involvement of the community hosting the facility when corrective action may be indicated. Overall, the chapter is written in a manner that provides a lay person a good overall picture of the considerations and processes that need to be addressed in a corrective action situation.

Chapter 11: Performing Closure and Post-Closure Care

This chapter⁷² sets forth the technical considerations for closure of disposal facilities, including the design of cover systems and their maintenance. In addition, it also mentions issues concerning the determination of the length of the post-closure care period and the cost associated with providing ongoing maintenance at a closed facility. It ends with a discussion on different mechanisms that can be used to provide financial assurance that a facility will be properly closed and maintained during the post-closure period.⁷³ The discussion provides a lay person with an understandable overview of the covered topics.

Conclusion

While the scope and depth of the Guidance is impressive and EPA and the participating states should be commended for its overall quality and completeness, it does not answer the hard question—when does one really have to do the things EPA recommends be done. This issue is, of course, the major difference between writing enforceable regulations versus unenforceable guidance. Thus, the fact that the Guidance does not exactly pinpoint when a waste should be treated for VOCs prior to disposal, for example, or when a setback is absolutely necessary simply underscores the difference between guidance and regulation.

While few will find major faults with the technical aspects of the Guidance, many will have concerns about the unanswered questions regarding the risks presented by nonhazardous industrial waste units. In the absence of a systematic means of sorting out the risks presented by all of the combinations of waste streams and management techniques, the Guidance is merely a stop-gap means of addressing the issue. It may result in unnecessary cost for those who generate waste streams that are truly innocuous, while in instances of the generation of problematic waste streams EPA merely suggests that something more be done. Certainly under Subtitle C risks have greatly been lowered through the program's comprehensive reach and its centerpeice of requiring treatment of hazardous waste prior to disposal. Likewise, the Part 258 criteria have also greatly reduced the risks associated with MSWLFs. In addition, both types of facilities are unambiguously regulated under the CAA and the Clean Water Act.⁷⁴ The same cannot be said for the overwhelming majority of nonhazardous industrial solid waste facilities.

It is also worth noting that nearly every element of the Guidance is borrowed from the regulatory programs that govern the management of hazardous and municipal solid waste. This does not necessarily mean that the bulk of nonhazardous industrial solid waste facilities should be regulated, but it does indicate that EPA should be in a position to clearly answer the need for regulation. Unfortunately, while the Guidance may hint at these unknown risks, it does establish what they are, and the Agency fails to indicate whether the Guidance is an adequate means of addressing whatever the risks may be.

The selection of guidance rather than regulation also presents a paradox: the responsible owner/operator will take heed of good guidance and invest in the necessary controls to avoid environmental problems. Yet the less responsible owner/operator will not make the investment either/or for lack of caring or not having the economic resources to do so. The end result is that the responsible party is economically disadvantaged while the less one is benefitted. Moreover, host communities will potentially be harmed based on their proximity to the unenlightened owner/operator.

The fact that the risks presented by nonhazardous industrial waste facilities remain unquantified after two decades of a strong federal presence for hazardous and municipal solid waste regulation is problematic. It raises questions regarding [29 ELR 10774] whether existing rules adequately protect human health and the environment. Moreover, EPA is pressed to further expand the Subtitle C program, because the determination that waste streams are hazardous is heavily dependent on mismanagement scenarios at facilities that operate under Subtitle D. Ideally, the wastes presenting the greatest hazards would be managed under Subtitle C, while others could be regulated with tailored rules (as EPA has done for MSWLFs and publicly owned treatment works sludge disposal).⁷⁵ A fully developed Subtitle D program would take considerable pressure off EPA to capture waste streams into the hazardous waste system. The Agency would no longer need to act out of concerns of mismanagement due to the absence of a minimum non-MSWLF Subtitle D regulatory floor (excepting the vague requirements of Part 257). In addition, a better defined Subtitle D program would also ease concerns about low-risk treatment residuals of listed waste streams that could be safely managed in a landfill other than one permitted under Subtitle C.

While the draft Guidance has great potential to help prevent mismanagement of waste, because of its nature the pressure to use the hazardous waste program to manage industrial wastes will continue until such time as EPA can reasonably quantify risks presented by this large universe of facilities. While some may argue that Superfund is a "safety net," it is actually a corrective rather than a preventive tool.

Why is EPA at this point in the RCRA program? The Agency lacks strong statutory authority for the regulation of nonhazardous industrial waste facilities. In addition, EPA, by developing guidance rather than rules, shows that it does not have the wherewithal to invest in the process of evaluating and possibly regulating nonmunicipal, nonhazardous waste facilities. Yet the fact that EPA was able to go beyond the statutory minimum in establishing standards for MSWLFs indicates that the issue of statutory authority is not insurmountable provided the Agency does its homework.⁷⁶ However, it would appear that absent sufficient statutory authority and the political pressure to do something, EPA has understandably not dedicated resources to sort out the risks presented by industrial nonhazardous waste facilities. Absent that effort, there is no way that the Agency can make the case for further regulation of nonhazardous industrial waste facilities. Nevertheless, implicit in the issuance of guidance is a demonstration of concern on EPA's behalf that there are unknown risks that need to be addressed at nonhazardous industrial waste facilities. Unfortunately, the Guidance is prospective in focus, whereas the actual environmental impact of this vast universe of facilities may be the large subset of existing facilities that are poorly located, designed, and/or operated.

1. 64 Fed. Reg. 31576 (June 11, 1999).

2. OFFICE OF SOLID WASTE, U.S. EPA, DRAFT GUIDE FOR INDUSTRIAL WASTE MANAGEMENT (1999) http://www.epa.gov/industrialwaste [hereinafter GUIDANCE].

3. Note, however, that some states have enacted legislation that prohibits the enactment of "more stringent than federal" standards; those laws may arguably act to preclude the issuance of regulations based on the Guidance given the absence of a corresponding federal rule. For a discussion and criticism of such statutes, see James M. McElfish Jr., Minimal Stringency: Abdication of State Innovation, 25 ELR 10003 (Jan. 1995).

4. Examples of improved state programs include those in Texas and Pennsylvania.

5. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11011.

6. While reauthorization is not on the current radar screen of Congress, events such as the infamous wandering Mobro garbage barge can certainly precipitate political interest in an issue that otherwise seems dead. See Michael J. O'Grady, Going Nowhere Fast: The Environmental Record of the 105th Congress, 29 ELR 10085, 10101 (Feb. 1999).

7. The RCRA term "solid waste" is inclusive of hazardous and nonhazardous waste. See 42 U.S.C. § 6902(a), ELR STAT. RCRA § 1003(a). See generally 40 C.F.R. §§ 261.1, .2 (1997). See also American Mining Congress v. U.S. Environmental Protection Agency, 824 F.2d 1177, 17 ELR 21064 (D.C. Cir. 1987) (dealing with the thorny issue of what constitutes a "solid waste"); 54 Fed. Reg. 36592, 36615 (Sept. 1, 1989).

8. 42 U.S.C. §§ 6921-6939(e), ELR STAT. RCRA §§ 3001-3023. See also 45 Fed. Reg. 12724 (Feb. 26, 1980).

9. 42 U.S.C. §§ 6941-6949a, ELR STAT. RCRA §§ 4001-4010.

10. See 40 C.F.R. pts. 261-272; see generally Randolph L. Hill, An Overview of RCRA: The "Mind-Numbing" Provisions of the Most Complicated Environmental Statute, in RCRA DESKBOOK (1991).

11. Pub. L. No. 98-616, 98 Stat. 3221. For example, the amendments added § 3004, 42 U.S.C. § 6924, ELR STAT. RCRA § 3004, which required treatment of hazardous waste prior to land disposal by using statutory hammers that if not met by EPA would have banned the disposal of hazardous waste. See Philip L. Comella. HWIR: A New Era in Hazardous Waste Management?, 26 ELR 10304 (June 1996).

12. See, e.g., Shell Oil Co. v. EPA, 950 F.2d 741, 22 ELR 20305 (D.C. Cir. 1991, as amended 1992); Hazardous Waste Treatment Council v. EPA, 886 F.2d 355, 19 ELR 21398 (D.C. Cir. 1989), cert. denied, 498 U.S. 849 (1990); Chemical Waste Management, Inc. v. EPA, 976 F.2d 2, 23 ELR 20024 (D.C. Cir. 1992), cert. denied, 113 U.S. 1961 (1993); 58 Fed. Reg. 48092 (Sept. 14, 1993); 55 Fed. Reg. 22520 (June 1, 1990); 55 Fed. Reg. 11798 (Mar. 29, 1990); 51 Fed. Reg. 21648 (June 13, 1986); 45 Fed. Reg. 33084 (May 19, 1980).

13. See John H. Turner, Off to a Good Start: The RCRA Subtitle D Program for Municipal Solid Waste Landfills, 15 TEMP. ENVTL. L. & TECH. J. 1 (1996).

14. Section 4010(c) of Subtitle D, 42 U.S.C. § 6949a(c), ELR STAT. RCRA § 4010(c), commands the EPA to create criteria that "… shall be those necessary to protect human health and the environment and may take into account the practicable capability of such facilities." For a discussion of the "practicable capability" standard, see Sierra Club v. EPA, 992 F.2d 337, 23 ELR 20827 (D.C. Cir. 1993); Turner, supra note 13, at 7 n.24.

15. See Turner, supra note 13, at 35-36. But see, e.g., regarding the controversial practice of federal "overfiling," Harmon Industries, Inc. v. Browner, 1999 WL 718443, 29 ELR 21412 (8th Cir. Sept. 16, 1999) (concluding that primary enforcement authority is vested in authorized states, and that EPA may not commence a second enforcement action without first allowing the state to "cure" the deficiency or, alternatively, withdrawing the state's program authorization).

16. See 42 U.S.C. § 6945(c)(2)(A), ELR STAT. RCRA § 4005(c)(2)(A).

17. Id. § 6944(a), ELR STAT. RCRA § 4004(a); Turner, supra note 13, at 3.

18. 42 U.S.C. § 6945(a), ELR STAT. RCRA § 4005(a).

19. Id. § 6907(a)(2), ELR STAT. RCRA § 1008(a)(2).

20. 40 C.F.R. pt. 258 (1997).

21. See 44 Fed. Reg. 58910 (Sept. 13, 1979).

22. See U.S. EPA, THE WASTE MINIMIZATION NATIONAL PLAN 1 (1994); U.S. EPA, REPORT TO CONGRESS: SOLID WASTE DISPOSAL IN THE UNITED STATES (1988) [hereinafter REPORT TO CONGRESS]; OFFICE OF TECHNOLOGY ASSESSMENT, U.S. CONGRESS, MANAGING INDUSTRIAL SOLID WASTES 103 (1992); John C. Dernbach, The Unfocused Regulation of Toxic and Hazardous Pollutants, 21 HARV. ENVTL. L. REV. 1, 10 n.40 (1997) ("Approximately 300 million tons of hazardous waste are generated annually, compared with at least 7600 million tons of industrial waste that is legally hazardous."); John C. Dernbach, Industrial Waste: Saving the Worst for Last?, 20 ELR 10283 (July 1990); John C. Dernbach, The Other Ninety-Six Percent, ENVTL. F., Jan./Feb. 1993, at 10. See also Turner, supra note 13, at 11.

23. EPA has undertaken an initiative that will examine the efficacy of its waste identification rules, from listings to characteristics, to determine whether they are capturing all of the wastes that fit the definition of hazardous under RCRA § 3001, 42 U.S.C. § 6921, ELR STAT. RCRA § 3001.

24. See, e.g., Caroline B. Buenger, Using Generator Knowledge to Characterize Waste Under RCRA: Gambling on the Use of "Unacceptable" Knowledge, 27 ELR 10439 (Sept. 1997).

25. See 55 Fed. Reg. 22520, 22652 (June 1, 1990); Hazardous Waste Treatment Council v. EPA, 886 F.2d 355, 362, 19 ELR 21398, 21402 (D.C. Cir. 1989), cert. denied, 498 U.S. 849 (1990); Chemical Waste Management, Inc. v. EPA, 976 F.2d 2, 17-18, 23 ELR 20024, 20031-32 (D.C. Cir. 1992), cert. denied, 113 U.S. 1961 (1993). See also 60 Fed. Reg. 66344, 66381 (Dec. 21, 1995); 55 Fed. Reg. 6641 (Feb. 26, 1990).

26. Delisting is an extraordinarily expensive and time-consuming process only worthwhile for large volume waste streams that are continuously generated.

27. 42 U.S.C. § 6949a, ELR STAT. RCRA § 4010(a).

28. REPORT TO CONGRESS, supra note 22.

29. 53 Fed. Reg. 33319, 33320 (Aug. 30, 1988) (preamble to proposed pt. 258 regulations).

30. 56 Fed. Reg. 50978, 51000 (Oct. 9, 1991) (preamble to promulgated pt. 258 regulations).

31. See id. (codified at 40 CFR pt. 258 (1997)). The regulations are discussed in Turner, supra note 13.

32. 42 U.S.C. § 7411, ELR STAT. CAA § 111.

33. 40 C.F.R. pt. 60, subpts. WWW and Co. See 49 Fed. Reg. 9905 (Mar. 12, 1996).

34. See James E. Satterfield, A Funny Thing Happened on the Way to the Revolution: The Environmental Record of the 104th Congress, 27 ELR 10019, 10031 (Jan. 1997).

35. 53 Fed. Reg. 33319, 33322 (Aug. 30, 1988) (proposed 40 C.F.R. pt. 258 regulations).

36. Sierra Club v. EPA, 992 F.2d 337, 23 ELR 20827 (D.C. Cir. 1993).

37. See 61 Fed. Reg. 34252 (July 1, 1996) (revising pt. 257 regulations).

38. Instead of developing the document independently, EPA has taken a collaborative approach in its development. The draft Guidance was developed under the direction of a steering committee consisting of EPA staff and 12 state representatives who are members of the Association of State and Territorial Solid Waste Management Officials (ASTWMO). In addition, the Agency convened an industry and public interest stakeholders' group under a Federal Advisory Committee Act (FACA) charter. The latter group acts as an advisor to the former, which has responsibility for all substantive matters. Once the comment period closes EPA will reconvene both groups as appropriate until a final guidance is ready for publication. Ultimately, this process should result in a product that is acceptable to EPA and state solid waste agencies and, hopefully, the majority of other stakeholders.

39. 55 Fed. Reg. 11798 (Mar. 29, 1990); 40 C.F.R. § 261.24 (1997).

40. See, e.g., Buenger, supra note 24, at 10444; David M. Moore. The Toxicity Characteristic Rule for Hazardous Waste Determination: Has EPA Satisfied Congress' Mandate?, 7 TUL. ENVTL. L.J. 467 (1994).

41. See 40 C.F.R. § 265.1084(a)(6); 59 Fed. Reg. 62896 (Dec. 6, 1994).

42. 61 Fed. Reg. 34139 (July 1, 1996).

43. OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. EPA, INDUSTRIAL WASTE AIR MODEL (IWAIR), EPA/530-R-99-0055 (1988).

44. See 60 Fed. Reg. 50803 (Sept. 29, 1995).

45. 63 Fed. Reg. 6426 (Feb. 6, 1998).

46. Natural Resources Defense Council v. Reilly, 22 ELR 20108 (D.D.C. 1991).

47. OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. EPA, DRAFT INDUSTRIAL WASTE MANAGEMENT EVALUATION MODEL (IWEM): GROUND-WATER MODEL, EPA/530-R-99-002(1999).

48. OFFICE OF SOLID WASTE, U.S. EPA, EPACMTP BACKGROUND DOCUMENT AND USER'S GUIDE (1996).

49. See 63 Fed. Reg. 65873 (Nov. 30, 1998).

50. OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S. EPA, USER'S GUIDE FOR THE INDUSTRIAL WASTE MANAGEMENT EVALUATION MODEL (IWEM): TIER 1 LOOK-UP TABLE AND TIER 2 NEURAL NETWORKS FOR GROUND-WATER MODEL (1999).

51. See GUIDANCE, supra note 2, at 7A-3.

52. Id. at 7A-6.

53. See, e.g., 64 Fed. Reg. 45631 (Aug. 20, 1999).

54. 63 Fed. Reg. 42110 (Aug. 6, 1998).

55. Chemical Waste Management, Inc. v. EPA, 869 F.2d 1526, 19 ELR 20641 (D.C. Cir. 1989). See 40 C.F.R. § 261.3(a)(2)(iii), (iv) (1997) (mixture rule); 40 C.F.R. § 261.3(c)(2)(1) (derived-from rule).

56. 64 Fed. Reg. 6806 (Feb. 11, 1999).

57. For a discussion of how California's Proposition 65 can serve as a useful nonfederal tool for addressing the problem, see Clifford Rechtschaffen, How to Reduce Lead Exposures With One Simple Statute: The Experience of Proposition 65, 29 ELR 10581 (Oct. 1999).

58. See 63 Fed. Reg. 70189 (Dec. 18, 1998).

59. While the Guidance purports to build a voluntary national floor, it is not an enforceable one, nor is it surgically targeted at those waste streams that present risks below Subtitle C level but nevertheless above the modest requirements of Part 257. Because the Guidance is nonenforceable, a generator that voluntarily follows it still may find that EPA decides to list its wastes as hazardous; when the Agency considers the issue of mismanagement, it makes a judgment based on the existing regulation of such facilities as a whole. This discussion underscores the need for environmental professionals and all other stakeholders to become familiar and comment on the draft Guidance, as it could greatly influence broad policy and regulatory issues under RCRA in the future. Once the Guidance is made final it will set precedents that will constrain future debates over the direction of the entire RCRA program.

60. GUIDANCE, supra note 2, at 7B-1.

61. There are two basic points of views on liners. One camp believes that they are destined to failure, while the other contends that they can be maintained as long as necessary until a landfill no longer poses any threat. Solving this controversy is impossible because of the absence of long-term empirical data for modern liner systems. The time horizon would have to run hundreds of years to begin to show sufficient evidence to justify either theory.

62. GUIDANCE, supra note 2, at 7C-1.

63. The land application of certain nonhazardous wastes has become a controversial topic. It is a subject that is seldom comprehensively addressed in state or local regulations. See, e.g., John H. Turner, Model State Regulations Governing the Land Application of Petroleum Contaminated Soils, 8 S.C. ENVTL. L.J. 1 (1999).

64. GUIDANCE, supra note 2, at 8-1.

65. Id. at 9-1.

66. Id. at 10-1.

67. Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

68. 40 C.F.R. pts. 141, 143 (1997).

69. For a discussion of the use of institutional controls, see John Pendergrass, Sustainable Redevelopment of Brownfields: Using Institutional Controls to Protect Public Health, 29 ELR 10243 (May 1999); John S. Applegate & Stephen Dycus, Institutional Controls or Emperor's Clothes? Long-Term Stewardship of the Nuclear Weapons Complex, 28 ELR 10631 (Nov. 1998); John Pendergrass, Use of Institutional Controls as Part of a Superfund Remedy: Lessons From Other Programs, 26 ELR 10109 (Mar. 1996).

70. See James P. O'Brien, The Tiered Approach to Corrective Action Objectives and the Site Remediation Program in Illinois, 27 ELR 10611 (Dec. 1997).

71. ASTM E 1739-95, STANDARD GUIDE FOR RISK-BASED CORRECTIVE ACTION APPLIED AT PETROLEUM RELEASE SITES.

72. Id. at 11-1.

73. For a discussion of the financial assurance mechanisms available under Part 258, see Turner, supra note 13, at 58-61.

74. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

75. See 58 Fed. Reg. 9248 (Feb. 19, 1993).

76. Doing a good job on the homework is now more important than ever, in light of the recent decision in American Trucking Ass'n v. EPA, 175 F.3d 1027, 29 ELR 21071 (D.C. Cir. 1999); see Craig N. Oren, Run Over by American Trucking Part I: Can EPA Revive Its Air Quality Standards?, 29 ELR 10653 (Nov. 1999).