mODEL STATE HAZARDOUS WASTE mANAGEmENT ACT
                    (ANNOTATED)
               This publication (SW-635) was prepared
                  for the Office of Solid Waste
                   by MURRAY NEWTON
        U.S. ENYIRONfTlENTAL PROTECTION AGENCY
                        1977

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     An environmental protection publication (SW-635) in the solid waste
management series.  Mention of commercial products does not constitute
endorsement by the U.S. Government.  Editing and technical content of
this report were the responsibilities of the Hazardous Waste Management
Division of the Office of Solid Waste.

     Single copies of this publication are available from Solid Waste
Information, U.S. Environmental Protection Agency, Cincinnati, Ohio  45268.

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           MODEL STATE HAZARDOUS WASTE MANAGEMENT ACT—ANNOTATED
     Recent Federal and State environmental management legislation has
addressed the quality of our air, water, and of the oceans.  One result
of this legislation has been to curtail the disposal of potentially
hazardous materials into these media, thus improving the quality of our
air, water, and marine resources.  But there has been a second result:
we continue to generate potentially hazardous wastes which can no longer
go to other media, so we put them on or into the land.  The 375 million
tons of industrial wastes generated in the United States in 1974 included
about 30 million tons of potentially hazardous wastes.

     New Federal legislation, the Resource Conservation and Recovery Act
(PL 94-580), controls the disposition of potentially hazardous wastes on
land.  The Congress made clear that a joint Federal-State partnership is
intended for the implementation of this new pollution control program.
Regulatory provisions of the new Act are scheduled to take effect in
October 1978.  States should begin to develop their own control programs
now.

     An essential element in any State hazardous waste management
program is the enabling legislation.  In some cases existing legislation
authorizes parts of what would constitute the State's program; in other
cases, existing legislation may be reinterpreted in such a way as to
cover some of the threats posed by the mismanagement of potentially
hazardous wastes.  Most States, however, will find that an effective
program requires new legislation explicitly delineating the obligations
and responsibilities of those who generate, store, transport, treat, or
dispose of these wastes, but even here, States should consider the
possibility of supplementing existing solid waste legislation with the
appropriate hazardous waste management authority.  The State may or may
not prefer to have a separate hazardous waste management act, so long
as the State obtains adequate legislative authority to develop and
implement its program.

     This "Model" has been accepted by the Council of State Governments
for publication as "Suggested State Legislation" in Autumn, 1977.
                                  -iii-

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     This document includes a text and annotation.  The latter is
intended to explain the reasons for including certain phrases or ideas,
for choosing one or another among options, and to highlight potential
difficulties in interpretation or implementation of the text.  Further,
this document is intended to show the reader the kind of legislative
authority the State may find useful in developing an effective hazardous
waste management program.  Readers should not construe this Model Act as
showing what EPA will consider to be an "equivalent" State program, or
as setting out the criteria against which applications for authorization
under Section 3006 of the Resource Conservation And Recovery Act (RCRA)
will be judged; the Model Act is not so intended.
                                -iv-

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     MODEL STATE HAZARDOUS WASTE MANAGEMENT ACT — ANNOTATED



Section    1   [Short Title] 	  1

Section    2   [Finding of Necessity and Declaration
                 of Purpose] 	  3

Section    3   [Definitions] 	  6

Section    4   [Powers and Duties of the Department] 	 14

Section    5   [Permits] 	 22

Section    6   [Hazardous Waste Treatment/Disposal
                 Facilities and Sites] 	 28

Section    7   [Transportation of Hazardous Wastes] 	 34

Section    8   [Records; Reports; Monitoring] 	 39

Section    9   [Inspections; Right of Entry] 	 42

Section   10   [Imminent Hazard] 	 44

Section   11   [Enforcement] 	 48

Section   12   [Interstate Cooperation] 	 52

Section   13   [Repealer] 	 63

Section   14   [Severability] 	 63

Section   15   [Effective Date] 	 63
                                -v-

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                                   SHORT TITLE










Section 1:        This Act mag be cited as  the Hazardous Waste




                  Management Act of 29
                                       -1-

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                   FINDING OF NECESSITY AND DECLARATION OF PURPOSE









Section 2:   (A)   The legislature of this State finds:




                   (1) that continuing technological progress,




                       increases in the amounts of manufacture,




                       and the abatement of air and water pollution




                       have resulted in ever-increasing quantities




                       of hazardous wastes;









                   (2) that the public health and safety, and the




                       environment, are threatened where hazardous




                       wastes are not managed in an environmentally




                       sound manner;









                   (3) that the knowledge and technology necessary




                       for alleviating adverse health,  environmental,




                       and aesthetic impacts resulting from current




                       hazardous waste management and disposal




                       practices are generally available at costs




                       within the financial capability of those




                       who generate such wastes, but that such




                       knowledge and technology are not widely used; and,









                   (4) that the problem of managing hazardous wastes




                       has become a matter of State-wide concern.
                                     -3-

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Section 2: [continued]




             (B)    Therefore, it is hereby declared that the purposes




                   of this Act are:









                   (1) to protect the public health and safety,




                       the health of living organisms  and the




                       environment, from the effects of the improper,




                       inadequate, or unsound management of




                       hazardous wastes;









                   (2) to establish a program of regulation over




                       the storage, transportation, treatment, and




                       disposal of hazardous wastes; and,









                   (3) to assure the safe and adequate management




                       of hazardous wastes within this State.
                                        -5-

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Section 3:  Definitions
     The definitions have been worded so as to be consistent with the
new Federal solid waste legislation.

     (B)  "Disposal" - This definition is taken from the "Resource
Conservation and Recovery Act of 1976," (P.L. 94-580).  The definitions
of "Disposal" and "Storage" taken together mean that the traditional
landfill can be construed as "Disposal" if there is any leaching or
other discharge; a "non-leaching" landfill, however, would be considered
"storage" (albeit very long term).  The rationale for this is partly to
increase awareness that one has not "done away" with hazardous consituents
by simply putting them into the ground.  Where there is no discharge or
emission, the hazardous waste has been retained in one place and requires
monitoring and/or care — hence "storage."
                                  -6-

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                               DEFINITIONS
Section 3:     When used in this Act:
               (A)  The term 'Department' means the Department of




                    this State charged with the administration and




                    enforcement of this Act.







               (B)  The term 'Disposal' means the discharge, deposit,




                    injection, dumping, spilling, leaking or placing




                    of any hazardous waste into or on any land or water




                    so that such hazardous waste or any constituent




                    thereof may enter the environment or be emitted




                    into the air, or discharged into any waters, including




                    groundwaters.










               (C)  The term 'Generation' means the act or process




                    of producing waste materials.









               (D)  The term 'Hazardous Waste' means any waste or




                    combination of wastes of a solid, liquid,




                    contained gaseous, or semisolid form which




                    because of its quantity,  concentration, or




                    physical, chemical, or infectious characteristics,
                                       -7-

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Section 3:  (Continued)

     (D) "Hazardous Waste" - This definition is consistent with
that in the new "Resource Conservation and Recovery Act of 1976,"
(P.L. 94-580).  EPA recommends that enabling legislation contain
a generic definition, and that it not contain specific criteria,
lists, or wastes.  The definition should instead give generic
examples of hazardous wastes, such as "... including, but not
limited to, toxic, flammable, etc	" The listing of examples
shows to the Department, the courts, industry, and the public,
what the legislature intends "hazardous" to mean.
                                  -8-

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Section 3:  [ continued ]
                   in the judgment of the Department  may (1)  cause,




                   or significantly contribute to,  an increase in




                   mortality or an increase in serious irreversible




                   or incapacitating reversible illness; or (2)




                   pose a substantial present or potential  hazard




                   to human health or the environment when  improperly




                   treated, stored, transported, or disposed of, or




                   otherwise managed. Such wastes include,  but are not




                   limited to,  those which are toxic, corrosive,




                   flammable, irritants,  strong sensitizers,  or which




                   generate pressure through decomposition, heat, or




                   other means.









             (E)    The term 'Hazardous Waste Management' means the




                   systematic control of  the collection, source




                   separation,  storage, transportation,  processing,




                   treatment, recovery, and disposal  of hazardous waste.









             (F)    The term 'Manifest' means the form used  for




                   identifying  the quantity, composition, and the




                   origin, routing, and destination of hazardous




                   waste during its transport.
                                       -9-

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Section 3:  (Continued)

     (H)  "Storage" - This definition is similar to that in RCRA.  (If
the State does not use the concepts of "storage" and "disposal" in RCRA
(and in this paper), any substitute definition of "storage" must limit
the duration for which a waste may be "stored."  One reason for this
limitation is that indefinite storage, or storage for a long period of
years, may otherwise become a way for generators to avoid the controls
which the State exercises over "disposal."  A second reason is to avoid
the enforcement problem of the possessor's intent.  Where the State
defines storage or disposal to include the concept of "intending to
reuse or recover," or "intending to hold for future use," the State
invites the difficulties attendant to proving "intent."  Third, the
longer one stores a hazardous waste, the more closely one approaches the
environmental effects and consequences of "disposal."  For all these
reasons, where the more traditional definition of "storage" is used it
should include a phrase such as, "Storage in excess of [one year, for
example] shall be considered disposal for the purpose of this Act."

     (K)  "Treatment Facility" - This definition explicitly includes
"on-site" hazardous waste management.  The law thus recognizes that the
environmental threat is no less from those wastes managed at the site of
generation than from those wastes managed anywhere else.  It is for this
reason that the State's regulation of hazardous waste treatment or
disposal facilities must include regulating those who manage their own
wastes at the site of generation.
                                 -10-

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Section 3;  [continued]
          (G)  The term 'Person' means any individual, trust,




               firm, joint stock company, corporation




               (including a government corporation), partnership,




               association, State, municipality, commission,




               political subdivision of a State, any




               interstate body, or the United States.






          (H)  The term 'Storage' means the containment of




               hazardous wastes, either on a temporary basis




               or for a period of years, in such a manner as




               not to constitute disposal of such hazardous




               wastes.






          (I)  The term 'Transport' means the movement of




               wastes from the point of generation to any




               intermediate points, and finally to the point




               of ultimate storage or disposal.






          (J)  The term 'Treatment' means any method, technique,




               or process, including neutralization, designed




               to change the physical, chemical, or biological




               character or composition of any hazardous waste,
                               -11-

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Section 3:     [continued]
                      so as to neutralize such waste or so as to




                      render such waste nonhazardous, safer for transport,




                      amenable to recovery, amenable to storage,




                      or reduced in volume.







                (K)  The term 'Treatment Facility' means a location




                     at which waste is subjected to treatment and may




                     include a facility where waste has been generated.
                                     -13-

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Section 4:   Powers and Duties of the Department
     Subsection (A) directs the Department to conduct and publish
a study of hazardous waste management within the State.   Inclusion
of this requirement is intended partly to assist the Department
in gathering information it needs, but which it may not  have
explicit authority to elicit under existing statutes.

     The subsection specifies that the study must address the costs
of current hazardous waste management practices.  This allows the
State to assign likely costs to its regulatory decisions, making
possible an analysis of the economic consequences of many of the
Hazardous Waste Management Act's provisions.  This process is
analogous to the Federal government's "Economic Impact Analysis"
process for its own actions.
                                 -14-

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                      POWERS AND DUTIES OF THE DEPARTMENT









Section 4:   (A)   Within one year after the effective date of




                   this Act, the Department shall conduct and




                   publish a study of hazardous waste management




                   in this State, which study shall include, but




                   not be limited to —









                   (1)  a description of the sources of hazardous




                        waste generation within the State, including




                        the types and quantities of such wastes; and,









                   (2)  a description of current hazardous waste




                        management practices and costs, including




                        treatment and disposal, within the State.









             (B)   Within six months after the publication of the study




                   required by Section 4(A) of this Act, the Department




                   shall develop and publish a plan for the safe




                   and effective management of hazardous wastes




                   within this State. Such plan shall include, but




                   not be limited to —









                   (1)  identification of those locations within




                        the State which are suitable for the
                                      -15-

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Section 4:  (Continued)
     Subsection (B) requires the Department to identify locations "suitable"
for hazardous waste treatment or disposal sites.   This phrasing is not
intended to preclude "engineered" sites.  The Department should seek
those locations which have been favored by geology, climate, and other
relevant factors, and which offer natural protection to the environment;
EPA recognizes, however, that there is a need for facilities in States,
and sections of States, which have no suitable natural sites, and that
this need can only be met through artificial devices which protect the
environment.  Where the soil does not meet acceptable standards of
impermeability, for example, artificial liners may be substituted.  This
means that the Department should include those areas where a site is
needed, but in which a site would have to be "engineered" to protect the
environment.

     Subsection (B) additionally requires the State to identify those
parts of the State which are iiot suitable for the location of hazardous
waste treatment or disposal sites.  This decision, as well as the above
decision that sites should be located in certain areas, must be based on
a number of factors besides geology and hydrology.  EPA encourages the
kind of determination which results in certain areas being designated as
"critical" or "sensitive" for ecological or other reasons, and in which
the State would allow the location of hazardous waste treatment or
disposal facilities with great reluctance and under especially high
standards of design, construction, and operation.  An example of such a
"critical area" might be a major aquifer.
                                -16-

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Section 4:  [continued]
                        establishment of hazardous waste treatment




                        or disposal facilities or sites; and,










                   (2)   identification of those locations within




                        the State which are not suitable for the





                        establishment of hazardous waste treatment




                        or disposal facilities or sites.










             (C)    Within two years after the publication of




                   the study required by Section 4(A)  of this Act,




                   the Department shall, after adequate notice




                   and at least one public hearing on  the record,




                   adopt, and may revise as appropriate —










                   (1)   criteria for the determination of whether




                        any waste or combination of wastes is




                        hazardous for the purposes of  this Act;









                   (2)   rules and regulations for the  storage,




                        treatment, and disposal of hazardous wastes;










                   (3)   rules and regulations for the




                        containerization  and labeling of hazardous






                                      -17-

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Section 4:  (Continued)

     Subsection (C) (3) requires that the State rules and regulations
for the transport of hazardous wastes be "consistent" with those of the
U.S. Department of Transportation.  This does not mean that States must
adopt the DOT rules by reference or unchanged; however, where the State
chooses to establish any rule or regulation for transport that is different
from (including stricter than) DOT's, it will be incumbent upon the
State to avoid conflict with the latter.
     Subsections  (C)  (5) and  (C) (6) are important for occupational
health and safety, as well as for environmental protection.  EPA has
documented cases where someone disposing of hazardous wastes has been
injured or killed because he handled unmarked containers in a manner one
would not were the containers prominently labeled to show their potential
danger.  Similarly, EPA has documented cases where the disposal of
imcompatible wastes together  (such as acids being disposed of with
cyanide wastes) has resulted in injury or death.  Subsections (C)  (5)
and  (C) (6) are an important part of the State's effort to assure that
those who handle hazardous wastes are fully informed as to the nature of
the hazard, and as to the safest method of handling those wastes.
                                -18-

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Section 4:  [continued]
                        wastes, which rules shall be consistent




                        with those issued by the United States




                        Department of Transportation;









                   (4)  rules and regulations specifying the terms




                        and conditions under which the Department




                        shall issue, modify, suspend, revoke, or




                        deny such permits as may be required by this Act;









                   (5)  rules and regulations establishing standards




                        and procedures for the safe operation and




                        maintenance of hazardous waste treatment or




                        disposal facilities or sites;









                   (6)  a listing of those wastes or combinations




                        of wastes which are not compatible, and




                        and which may not be stored or disposed




                        of together; and,









                   (7)  procedures and requirements for the reporting




                        of the generation, storage, transportation,




                        treatment, or disposal of hazardous wastes




                        pursuant to Section 8 of this Act.
                                     -19-

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Section 4:  (Continue)
     Section (C) includes a requirement for a "public hearing on the
record."  Readers should be aware that the use of this phrase will, in
many States, trigger the use of an "Administrative Practices Act" or
equivalent.  This entails the advantages and disadvantages of a formal
proceeding, including the keeping of a transcript, and so on.
     Subsection  (D) gives the Department an opportunity to recognize the
differing needs of differing regions within the State.  Nevertheless,
the Department must establish certain minimum standards above which the
environment will be protected; it is in the process of determining how
far above this minimum the State sets specific requirements that Subsection
(D) comes into play.
                                -20-

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Section 4: [ continued ]
                  (8)  rules and regulations establishing standards




                       and procedures for the certification of




                       supervisory personnel at hazardous waste




                       treatment or disposal facilities or sites




                       as required under Section 6(A)(3)(a)




                       of this Act.









                  (9)  Procedures and requirements for the use




                       of a manifest during the transport of




                       hazardous wastes.









             (D)  In complying with this Section the Department




                  shall consider the variations within this




                  State in climate, geology, population density,




                  and such other factors as may be relevant to




                  the management of hazardous wastes.
                                     -21-

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Section 5:  Permits
     The word  permit" has been used thorughout this document to stand
for the process by which the State can insure cognizance of, as well as
control over, various activities.   The provisions and requirements of
each permit system should be explicitly stated in the regulations which
implement the State Hazardous Waste Management Act; consequently, the
reader should be aware that certain uses of the word "permit" here may
refer to a license or registration concept, and need not imply the
detailed criteria and compliance schedules attendant to the kind of
permit issued under the Federal Water Pollution Control Act Amendments
of 1972 (P.L. 92-500).

     Subsection (A) requires a permit to construct, "substantially
alter," or operate any hazardous waste treatment or disposal facility.
This poses at least two issues for the State to address:  defining
"substantially alter;" and, deciding whether construction and operation
entail two separate permits.

     The phrase "substantially alter" is intended to allow the State
latitude in deciding what kinds or degrees of alteration so change the
environmental impact of a site as to make reassessment necessary.
Neither the State nor the site operator wants to repeat the permit
application and evaluation process each time there is a change to the
site, no matter how trivial or irrelevant that change may be.  Therefore,
the State regulations should describe the circumstances under which an
existing site would be required to apply for a revised or amended permit.

     The Model Legislation is purposely vague on the issue of separate
versus combined permits for construction and operation.  Some States
issue a permit to construct, but require the permittee to apply for an
entirely separate permit after construction to operate the site.  Other
States issue a single permit for the construction and subsequent operation
of a site.  The State should be explicit in describing which of these
systems it is using.

     Subsection (A) requires a permit to "store" hazardous wastes.  As
stated above, this use of the word "permit" is not intended to parallel
the use of the word in the Water Pollution Control Act, or even in other
parts of this Model Legislation.  The provision is nevertheless an
important one.  It is intended to control the environmental abuse from
"storage" which is really "disposal," and which has the same (degrading)
environmental result as improper disposal.  Consequently, the State
might require a permit from those who store in large, open areas  (pits,
ponds, lagoons) for some period sufficient to threaten the environment.
The State should also use this provision to control the creation of
large piles of tailings or mining residuals above the surface, as there
are cases of such residuals remaining long after the generator has gone
out of business or otherwise left the scene.  Conversely, the State
                                    -22-

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                                     PERMITS










Section 5:   (A)    Beginning six months after promulgation of




                   the regulations required under Section 4(C)




                   of this Act, no person shall construct,




                   substantially alter, or operate any hazardous




                   waste treatment or disposal facility or site,




                   nor shall any person store, transport, treat,




                   or dispose of any hazardous waste without first




                   obtaining a permit from the Department for




                   such facility, site, or activity.










             (B)    Permits issued under this Section shall be




                   issued under such terms and conditions as the




                   Department may prescribe under the authority




                   of Section 4 of this Act, and under such terms




                   and conditions as the  [ appropriate State agency ]




                   may prescribe for the transportation of hazardous




                   wastes under Section 7 of this Act.









             (C)    Permits shall be issued for a period not to




                   exceed five years, and may be renewed at the




                   option of the issuing agency.










             (D)    Any permit issued under this Section may be
                                     -23-

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Section 5:  (Continued)
might not require permits of those who store small quantities in closed
tanks awaiting shipment, or those holding residuals for short periods
awaiting use or reuse.

     The State should use the permits it does issue for "storage" as a
source of information, so that the State is aware of, and can track,
wastes through their life cycle, and to prevent such abuses as might
otherwise follow from the misnamed "storage" of hazardous wastes described
here.

     Subsection (A) explicitly applies also to generators treating or
disposing of their own wastes.  This frees the State from having to
allege that someone treating his own wastes at the site of generation is
"operating" a treatment or disposal site; this Subsection renders such
an issue moot, as anyone treating or disposing of hazardous wastes
(including his own wastes, and including on his own property) may be
required to use proper management practices.

     Subsections (A) and (B) require permits for the transportation of
hazardous wastes; as elsewhere in this document, however, the word
"permit" is not intended to imply the kind of detailed criteria and
compliance schedules attendant to permits under the Federal Water
Pollution Control Act.  (A number of States have elected to regulate the
transporters of hazardous wastes, several through the use of a "trip
ticket" or "manifest" system.  These systems are described in the
annotation for Section 7.)

     Subsection (B) includes the phrase "appropriate State agency," a
phrase which appears thorughout the Model Law where the subject is the
transport of hazardous wastes.  Institutional arrangements and responsibilities
for the transport of hazardous wastes vary widely from one State to
another, making it impossible to generalize in a document such as this.
The reader should distinguish, however, between the economic aspects of
regulation (usually assigned to the State Public Utilities Commission or
equivalent agency) and other aspects such as transportation safety
(often assigned to the State Highway Patrol or equivalent agency).  The
Model Law addresses only the latter function; where the economic and
safety aspects are divided between two agencies, all transport responsibilities
specified in the Model Law would logically be assigned to the latter
agency.

     Subsection  (C) suggests a term of five years for all permits.  This
figure is presented for example only and is admittedly arbitrary.  The
State should issue permits for a sufficient term that investors will
commit necessary funds, but not for a period which is so long as to
obligate the State to continue an unsatisfactory situation any longer
than it must.
                                     -24-

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Section 5:  [continued]
                   revoked by the issuing agency at any time when




                   the permittee fails to comply with the terms




                   and conditions of the permit, PROVIDED, no permit




                   shall be revoked until the Department has




                   provided the affected  party with the opportunity




                   for an adequate hearing, and with written notice




                   of the intent of the Department to revoke the




                   permit and the reasons for such revocation.









             (E)    Where the application for or compliance with




                   any permit required under this Section would,




                   in the judgment of the Department, cause




                   undue or unreasonable hardship to any person, the




                   Department may issue a variance from the requirements




                   of this Section. In no case shall the duration




                   of any such variance exceed one year; renewals or




                   extensions may be given only after opportunity for




                   public comment on each such renewal or extension.









             (F)    Beginning six months after promulgation of




                   the regulations required under Section 4(C)




                   of this Act, any person undertaking one of the
                                    -25-

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Section 5:  (Continued)
     Subsection (E) provides for variances.  The State may choose to
issue variances for durations other than twelve months; the figure used
in this Model Legislation is for example only.

     The State should also decide whether variances may be renewed, and,
if so, how many such variances may be given to one applicant or permittee.
This decision must take into account the environmental effects of
variances, since continued non-compliance with minimum standards creates
no less a problem for being sanctioned by the authority of a variance.
Balancing this is the realization that many factors may militate against
immediate closure of a permittee who can be brought into compliance
within a finite period if allowed to continue to operate.  The Model Law
includes a requirement that the public be allowed to comment on any
renewal or extension of a variance.  This is intended to make explicit
the State's authority to continue variances, but also its responsibility
to demonstrate to the public the reasons for so doing.
                              -26-

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Section 5:  [continued]
                   activities for which, a permit is required




                   under this Section or under Section 7 of this




                   Act, or violating anu term or condition




                   under which a permit has been issued pursuant




                   to this Section or pursuant to Section 7




                   of this Act, shall be subject to the enforcement




                   procedures of Section 11 of this Act.
                                    -27-

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 Section 6:   Hazardous Waste Treatment/Disposal Facilities and Sites
     This Section includes several subjects which could be addressed
separately in hazardous waste legislation.   These include:  funding or
other provisions for long term care of sites; insurance requirements;
training requirements for operating and supervising personnel at sites;
and, a possible method for financing the State regulatory program.  The
State should be certain that the first three above areas are addressed
somewhere in the authorizing legislation, if not in the section describing
the duties and responsibilities of treatment/disposal site operators.

     The initial paragraph in Subsection (A) is intentionally broad in
order to give the State wide latitude in determining those requirements
necessary to the safe operation and environmentally-sound design of
treatment/disposal sites.  The State should use its regulations to
detail the terms and conditions required of all permit holders.  Terms
and conditions will vary (as they should) between permit holders depending
upon geology, hydrology, geography, and many other factors, and the
Regulations should recognize this by stating that the Department may
require such other terms and conditions as are necessary to meet the
purposes of the authorizing legislation.  General terms and conditions
will include such things as a specific monitoring and sampling system
approved by the State, and evidence of financial responsibility in such
form and amount as the Department deems necessary.

     Subsection (A)  (2) does not suggest the specific type of financial
responsibility to be required.  There are two separate concerns involved
in "long term care:"  The first is the expense of continued monitoring
and maintenance of the site after cessation of operations; the second is
the potential expense of environmental damage occurring (or being
discovered) after cessation.  The first concern is relatively inexpensive
and can be estimated in advance.  The State can, therefore, require an
amount equal to X dollars a year for Y years.  For example, the State
might require a bond of $10,000 dollars based upon monitoring and
maintenance costs of $1,000 each year for 10 years.  This would assure
the integrity of fences, signs, monitoring wells, and so on, for whatever
period the State determined appropriate.
                              -28-

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             HAZARDOUS WASTE TREATMENT/DISPOSAL FACILITIES AND SITES









Section 6:    (A)   No permit shall be issued to any hazardous




                   waste treatment or disposal facility or site




                   unless that facility or site meets such terms




                   and conditions as the Department may direct.




                   Terms and conditions shall include, but not




                   be limited to —









                   (1)  Evidence of liability insurance in such




                        amount as the Department may determine




                        to be necessary for the protection




                        of the public health and safety and




                        of the environment;









                   (2)  Evidence of financial responsibility




                        in such form and amount as the Department




                        may determine to be necessary to insure




                        that, upon abandonment, cessation, or




                        interruption of the operation of the facility




                        or site, all appropriate measures are taken




                        to prevent present and future damage to the




                        public health and safety and to the environment;
                                     -29-

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Section 6:  (Continued)
     The second concern is considerably more difficult to quantify.
The type of damage which could occur, the cost of correcting that
damage (if it can be corrected),  and the gestation time between closing
a site and the discovery of any damage are all relative unknowns.
States have devised different responses to these unknowns in order
to protect their citizens.  One approach has been to require that any
site licensed for hazardous waste disposal or treatment be deeded to
the State, in effect making all sites public land.  States which
have done this believe that the State will ultimately be responsible
for correcting any environmental damage caused by hazardous waste
treatment or disposal sites anyway, making it prudent that such sites
be on public land from the start.  EPA does not necessarily endorse
this concept, as there are many facets to the issue of public versus
private disposal or treatment facilities, not all of which favor
public ownership.  Most States have instead required some form
of bonding.  The chief drawback to this approach is the difficulty
in determining an adequate amount for such a bond.  A third
alternative is some type of trust fund or revolving account which
would receive money from currently operating sites, to be used to
correct damage caused by any treatment or disposal site, even if
closed long ago.  The specific course chosen is less important than
the fact that the State have legislative authority to address the
problem of potential environmental damage from hazardous waste
treatment or disposal sites, and to institute some type of
protection for the public before that damage occurs.
                                -30-

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Section 6: [ continued ]
                  (3)  Evidence that the personnel employed at




                       the hazardous waste treatment or disposal




                       facility or site have met such qualifications




                       as to education and training as the Department




                       may determine to be necessary to assure the




                       safe and adequate operation of the facility




                       or site:









                       (a)  Persons charged with the direct




                            supervision of the operation of




                            any facility or site shall be certified




                            by the Department according to the




                            regulations required under Section 4(C)(8)




                            of this Act and after a review of the




                            types, properties, and volume of hazardous




                            wastes to be treated or disposed of at




                            the facility or site.









                       (b)  The Department may require the recertification




                            of supervisory personnel where there is




                            any significant change in the types or




                            properties of hazardous wastes being
                                     -31-

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     Subsection (B) describes a system which would make the State
regulatory program self-supporting, and is similar to the system used in
California.  The logic of such a system is that the "polluter pay," and
Subsection (B) offers one way by which the generators of hazardous
wastes might be charged for the costs of a State program to assure
adequate treatment and disposal of those wastes.  If the State does
choose to establish a special fund for hazardous waste management, or
any similar area, the legislature will have to amend the State revenue
code; legislation such as a State hazardous waste management act is not
the proper vehicle for this.

     Whether or not the State establishes any new fund, thought should
be given to some type of mechanism which will allow the hazardous waste
managment system to be self-sustaining.  The State may elect a variant
of this system, such as returning a surcharge from treatment/disposal
sites to the General Fund while allocating the same amount to its
regulatory program through the usual appropriations process.   In this
case, the State would avoid establishing any special accounts within the
General Fund.
                              -32-

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Section 6: [ continued ]
                            treated or disposed of at the facility




                            or site.









             (B)  The Department is authorized to establish a




                  schedule of fees to be paid to the Department




                  by hazardous waste treatment or disposal




                  facilities or sites.
                                    -33-

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Section  7:   Transportation of Hazardous Wastes
     Many States have  recognized  the  importance  of  transportation in
the "cradle-to-grave"  life cycle  of hazardous waste management,  and
several  have initiated hazardous  waste hauler permit or control  systems
as their first step  in managing these wastes.  The  Congress has  also
recognized the importance of transport control in managing hazardous
wastes,  as demonstrated by the inclusion of a manifest system  in the
"Resource Conservation and Recovery Act of 1976."

     The Model Law directs the "appropriate State agency," rather than
the environmental management agency,  to issue rules, regulations, and
permits  for the transport of hazardous wastes.   The wide variation in
institutional arrangements and responsibilities  for the transport of
hazardous wastes make  it impossible  to specify the  "appropriate" agency
for each State in this document.   The reader should distinguish,
however, between the economic aspects of regulation (usually assigned
to the State Public  Utilities Commission, or equivalent agency), and
other aspects such as  transportation  safety (often  assigned to the
State Highway Patrol,  or equivalent  agency).  The Model Law addresses
only the latter aspects.

     Environmental agencies in a  few  States have been charged  with the
responsibility for control of hazardous waste haulers.  Where  a
legislature chooses  to do this, Subsection (A) should read:  "...
the Department shall issue rules  and  regulations for the transportation
of such  wastes."*  Readers should  also be  aware of Section  112  of  the
Hazardous Materials  Transportation Act  (P.L.  93-633), which reads  (in part):
             SEC. 112. (a) GfcNKRAL.—Except as provided in subsection (b) of
           this section, any requirement, of a State or political subdivision thereof,
           which is inconsistent with any requirement set forth  in this title, or
           in a regulation issued under this title, is preempted.
             (b) STATE  LAWS.—Any requirement, of a State or political Bub-
           division thereof, which is not consistent with any requirement set forth
           in this title, or in a. regulation issued under this title, is not preempted
           if, upon the application of an appropriate State agency, the Secretary
           determines, in accordance with procedures to be prescribed by regula-
           tion, that such requirement (1)  affords an equal or greater level of
           protection to  the public than is afforded by the requirements of this
           title or of regulations issued under this title and (2) does not unreason-
           ably burden commerce. Such requirement shall not be preempted to
           the'extent s|>ecified in such determination by the Secretary for so long
           as such State  or political subdivision thereof continues to administer
           mid enforce effectively such requirement.
 US EPA  and  US  DOT  are working together  to assure that  the  implementation
 of RCRA and of  the Hazardous  Materials  Transportation Act  are compatible.

 *EPA has published  a  guide to assist  the States in implementing the kind
 of transportation control systems autfiorized under this Section:  Porter, C.H.
 State program implementation guide:  hazardous waste transportation control.
 Environmental Protection Publication  SW-512.  [Washington], U.S.
 Environmental Protection Agency,   March 1976.   35 p.
                                       -34-

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Section 7:  (Continued)
purpose of controlling the movement of hazardous wastes from generation
to treatment or disposal.  The single part system is simpler, and
generates less paper; the cost to the regulatory agency is that there
is no separate submittal from the generator to match with the form which
arrives (or fails to arrive) from the treatment/disposal site.  Conversely,
the cost to the State in using the multi-part system is a large increase
in the amount of paper to be monitored.  In many States this would require
automatic data processing equipment, with the attendant increase in
costs and personnel.

     (3)  The manifest system serves an important function in expediting
emergency response actions.  Both variations of the manifest system
described above require the hauler to have a copy of the manifest system
in his possession when he has the wastes.  A properly designed and
accurately completed manifest tells emergency response personnel what
the material is, the dangers it presents, and the proper procedures to
follow to mitigate damages.  Equally important, the State insures that
the hauler is fully aware of what he is carrying by requiring full
disclosure from the generator at the time of consignment.

     Existing U.S. Department of Transportation (DOT) regulations
require only that the material be marked as "flammable," "toxic," or
whatever the appropriate hazard may be.  The waste hauler, treatment/
disposal site personnel, and emergency response personnel all need a
fuller description of the material being carried.  This is especially
true because of the nature of hazardous wastes:  combinations and mixtures
of any number of different substances, possibly posing several different
types of threats.

     (4)  The manifest system is useful to the State in compiling
information on the quantity and disposition of hazardous wastes within
the State.  Because it is, in effect, a self-reporting system for
generators  (generators must disclose information to the hauler which
is later submitted to the State), the State can monitor the aggregate
generation and treatment or disposal of hazardous wastes thorughout the
State.  Any manifest system must be mandatory, including a prohibition
against the hauler accepting any wastes without a properly executed
form.

     Subsection (B) includes explicit coverage of those hauling hazardous
wastes "...they have generated themselves."  This is an important
provision and the State should be certain that any regulations of
hazardous waste haulers includes this or a similar phrase.  Some States
have included the phrase "for hire" in describing the community being
regulated; this can be a significant loophole.  Wastes are no less
hazardous, and the need for State cognizance no different, for the fact
that the hauler and the generator are the same person.  The existence
of this loophole may leave a large segment of the hazardous waste problem
unregulated.

                                 -37-

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Section 8:  Records, Reports, Monitoring
     This Section allows the State to require submittal of the information
it needs to assure "cradle-to-grave" control over hazardous wastes.
This is a crucial element in the State hazardous waste management program,
as the State must be aware of the kinds and quantities of hazardous wastes
for which it is responsible, the origins and destinations of these wastes,
and the integrity of the treatment or disposal method used.  The State
can do these things most effectively through rules or regulations describing
what is needed.

     Section 8 explicitly covers all main participants in hazardous waste
management.  The State can only assure sound management if it is aware
of all potentially hazardous wastes in the State, including those which
remain at the site of generation.
                                 -38-

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                         RECORDS;  REPORTS;  MONITORING









Section 8:   (A)   The Department  shall adopt, and may revise




                   as necessary, such rules relating to records,




                   reports, and monitoring as may be necessary




                   to achieve the  purposes of this Act.  These




                   rules shall include, but not be limited to,




                   rules which prescribe:









                   (1)  the establishment and maintenance of




                        records;




                   (2)  the submittal of reports;




                   (3)  the taking of samples, and the




                        performing of tests or analyses;




                   (4)  the installing, calibrating, using,




                        and maintaining of monitoring




                        equipment  or methods; and,




                   (5)  the providing of such other information




                        as the Department may specify by rule.









             (B)   Six months after promulgation of the regulations




                   required under Section 4(C)(7) of this Act,




                   it shall be unlawful for any person to generate,




                   store, transport, treat, or dispose of hazardous




                   wastes in this state without reporting such




                   activity to the Department according to the




                   procedures described in said regulations.




                                       -39-

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Section 8:  (Continued)
     Subsection (E) is especially important to generating industries.
Those States which have begun their own hazardous waste management
programs have encountered concern from generators that trade secrets,
or other proprietary information, could be deduced from their wastes,  or
from reports to the State concerning their wastes.  The State should
recognize and accommodate this concern in establishing its program.
However, the State should retain the prerogative of determining that
the release of information would not be harmful if the claim of trade
secret is not valid.  The Model Legislation includes the requirement
that persons seeking protection of information demonstrate "...to
the satisfaction of the Department..." that the information is indeed
a "trade secret."
                                -40-

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Section 8: [ continued ]
             (C)  Six months after promulgation of the rules




                  required under Section 8(A)  of this Act, it shall




                  be unlawful for any person to generate, store,




                  transport, treat, or dispose of hazardous wastes




                  within this State without complying with the




                  procedures described in said rules.









             (D)  Any person violating any requirement authorized by




                  this Section shall be subject to the enforcement




                  provisions of Section 11 of this Act.









             (E)  Information obtained by the Department under this




                  Section shall be available to the public, unless




                  the Department certifies such information to be




                  proprietary. The Department may make such




                  certification where any person shows,  to the




                  satisfaction of the Department, that the infor-




                  mation, or parts thereof, if made public, would




                  divulge methods, processes,  or activities entitled




                  to protection as trade secrets.  Nothing in this




                  Subsection shall be construed as limiting the dis-




                  closure of information by the Department to any




                  officer, employee, or authorized representative




                  of the State concerned with  effecting this Act.




                                     -41-

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Section 9:  Inspections; Right of Entry
     This Section parallels a common provision of existing State and
Federal environmental statutes.  Subsection (B) is of special importance
to States regulating land disposal and treatment of hazardous wastes.

     Industrial wastes have traditionally been mobile, and the State
cannot effectively regulate the management of these wastes without
authority to monitor their movements.  The State must be able to inspect
waste-carrying vehicles to insure that they are hauling what they say
they are, and that Federal and State safety provisions have been met.
                                 -42-

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                         INSPECTIONS; RIGHT OF ENTRY









Section 9:        For the purposes of developing or enforcing




                  any rule or regulation authorized by this Act,




                  any duly authorized representative or employee




                  of the Department may, upon presentation of




                  appropriate credentials, at any reasonable time









                  (A)   Enter any place where hazardous wastes




                       are generated, stored, treated, or




                       disposed of;









                  (B)   Inspect and obtain samples of any waste,




                       including samples from any vehicle in




                       which wastes are being transported,




                       as well as samples of any containers




                       or labels; and,









                  (C)   Inspect and copy any records, reports,




                       information, or test results relating




                       to the purposes of this Act.
                                   -43-

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Section 10:  Imminent Hazard
     The purpose of this Section is to allow the Department to act
immediately where the potential for environmental damage may be
realized before the completion of normal administrative or judicial
remedies.   The corollary to this is that the Department would use
this Section to prevent or minimize such damage only in situations
where immediate action were essential.

     The Section provides considerable flexibility.  Where the
Department chooses, it may issue an administrative order, but the'
Section also allows the Department to seek a court order if it
prefers.
                                -44-

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                                IMMINENT HAZARD









Section 10:  (A]   Notwithstanding any other provision of this Act,




                   the Department, upon receipt of information that




                   the storage,transportation, treatment, or




                   disposal of any waste may present an imminent and




                   substantial hazard to the health of persons or




                   to the environment, may take such action as it




                   determines to be necessary to protect the health




                   of such persons or the environment. The action




                   the Department may take includes, but is not




                   limited to —









                   (1)  Issuing an order directing the operator




                        of the treatment or disposal facility




                        or site, or the custodian of the waste,




                        which constitutes such hazard, to take




                        such steps as are necessary to prevent the




                        act or eliminate the practice which




                        constitutes such hazard. Such action may




                        include, with respect to a facility or site,




                        permanent or temporary cessation of operation; and,









                   (2)  Requesting that the Attorney General or




                        appropriate District Attorney commence an





                                    -45-

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Section 10:  (Continued)
     Subsection (B) includes the phrasing "...it shall not be necessary
to allege or prove...that irreparable damage will occur.,, or that the
remedy at law is inadequate..." for the Department to take immediate
action under this Section,  Such a waiver is a useful element in any
imminent hazard provision the State includes in its hazardous waste
management legislation.  Its purpose is to prevent lengthy legal delays
over the correctness of the Department's judgment that a threat is
immediate, and delays caused by affected persons forcing the Department
to exhaust such other (slower) legal remedies as may be available to the
Department.  This phrasing may be of special interest in those States
where the courts have been reluctant to consider limited environmental
damage to be "irreparable."
                               -46-

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Section 10:  [continued}
                        action enjoining such, acts  or practices.




                        Upon a showing by the Department  that a




                        person has engaged in such  acts or practices,




                        a permanent or temporary injunction,




                        restraining order, or other order may be




                        granted.








             (B)    In any civil action brought pursuant to tnis




                   Section in which a temporary restraining order,




                   preliminary injunction, or permanent injunction




                   is sought, it  shall not be necessary to allege




                   or prove at any stage of the proceeding that




                   irreparable damage will occur should the temporary




                   restraining order, preliminary injunction, or




                   permanent injunction not be issued; or that the




                   remedy at law  is inadequate, and the temporary




                   restraining order, preliminary injunction, or




                   permanent injunction shall issue without such




                   allegations and without such proof.
                                    -47-

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Section 11:   Enforcement

     Section 11 provides the mechanism by which the Department can
enforce the permits, rules, regulations, standards, and requirements
promulgated under the authority of this Act.

     The Department has three options under the Recommended Legislation's
enforcement provisions:

          (1)  The Department can issue an order
               to the violator instructing him to
               comply with whatever rule (or regulation,
               etc.,) he is violating;

          (2)  The Department can ask that an action be
               brought for a penalty against a violator;
               or,

          (3)  The Department can obtain an injunction
               against a violator.

These options provide the Department with wide latitude in enforcing the
rules and regulations promulgated under the Act.  The Department may
choose to simply issue an order preventing an act or the continuation of
a practice which violates applicable regulations, where the act or
practice does not pose an imminent threat of extreme hazard.  Section
11(B) then allows the Department to invoke criminal penalties where such
an order has been knowingly violated.

     Where damage has already occurred, and where that damage appears to
warrant compensation, the Department may choose to seek civil penalties.

     Last, the Department may choose to seek injunctive relief for those
situations where the potential hazard of an act or practice appears to
make that appropriate.
                               -48-

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                                   ENFORCEMENT









Section 11:  (A)    Whenever the Department finds that any person




                   is in violation of any permit, rule,  regulation,




                   standard, or requirement under this Act,  the




                   Department may issue an order requiring such




                   person to comply with such permit, rule,




                   regulation, standard, or requirement, or  the




                   Department may request that the Attorney




                   General of this State bring a civil action for




                   injunctive relief in [the appropriate]  court;




                   or, the Department may request that the Attorney




                   General of this State bring a civil enforcement




                   action under Subsection 11(C) of this Act.









             (B)    Any person who knowingly violates any order




                   issued by the Department pursuant to  this Section




                   shall be liable for a fine not to exceed  $25,000




                   per day of violation, imprisonment for not to




                   exceed one year, or both.









             (C)    Any person who violates any permit, rule,




                   regulation, standard, or requirement  pursuant to




                   Sections 4, 5, 6, 7, or 8 of this Act shall be




                   liable for a fine of not to exceed $25,000 per




                   day of violation.



                                      -49-

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Section 11:  (Continued)
     Subsections 11(C) and 11(D) specify the Sections of this Act which,
if violated, can result in the imposition of penalties.  Failure to
specify those Sections which carry such sanctions may result in problems
of "due process," as persons subject to the Act must be given clear
notice of the sanctions which may result from a violation.  The State
legislation should clearly identify those provisions which carry
penalties.

     Subsection 11(E) is similarly important for reasons of due process:
the violator must receive "effective notice" that he has violated an
order which may result in criminal sanctions.
                                 -50-

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Section 21:  [continued]
             (D)    Each day of non-compliance with any order




                   issued by the Department pursuant to this Section,




                   or of non-compliance with any permit,  rule,




                   regulation, standard, or requirement pursuant




                   to Section 4, 5, 6, 7, or 8 of this Act shall




                   constitute a separate violation of this Act.









             (E)    An order issued under this Section shall be




                   delivered by personal service and shall be




                   served on the person designated by the laws




                   of this State as appropriate to receive




                   service of process.
                                    -51-

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Section 12:  Interstate Cooperation
     Interstate cooperation is especially important in the management of
hazardous wastes.  While air pollution moves as the climate dictates,
and water pollution as geography and geology dictate, residuals destined
for the land move at human whim.  Wastes going to the land can and are
transported by all manner of vehicle to sites in any direction as far
away from the point of generation as economics allows.  Many large
industrial centers are at or near the boundary of a neighboring State,
with the movement of wastes from generation in one State to treatment or
disposal in another State being part of longstanding residuals management
practices as a result.

     The Congress has recognized this in the "Resource Conservation and
Recovery Act of 1976," Section 1005 of which encourages certain interstate
compacts.  Where States do not establish formal agreements, they may
find it useful to at least recognize publicly that interstate cooperation
is especially important in managing hazardous wastes by including phrasing
similar to that in Section 12 of the Model Law in their own Hazardous
Waste Management Acts.
                                 -52-

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                             INTERSTATE COOPERATION









Section 12:        The legislature of this State encourages




                   cooperative activities by the Department with




                   other States for the improved management of




                   hazardous wastes; for improved, and so far




                   as is practicable, uniform State laws relating




                   to the management of hazardous wastes; and




                   compacts between this and other States for the




                   improved management of hazardous wastes.
                                      -53-

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                                     REPEALER
Section 13:
The following laws of this State are hereby

repealed on the effective date of this Act:
                                 SEVERABILITY
Section 14:
If any provision of this Act, or the application

of any provision of this Act to any person or

circumstances, is held invalid, the application

of such provision to other persons or circumstances,

and the remainder to this Act, shall not be

affected thereby.
Section 15:
                                EFFECTIVE DATE
This shall take effect on
                                                                ya!567
                                                                SW-635
                                      -55-

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