Embargoed for Release AM's Saturday, October 13
Statement on Hazardous Waste Management
by Douglas M. Costle
Administrator
Environmental Protection Agency
Friday, 'October 12, 1979
I am today submitting to Judge Gerhard A. Gesell of the
United States District Court for the District of Columbia my
quarterly affidavit on our progress in developing final regula-
tions under the Resource Conservation and Recovery Act. I
have- informed Judge Gesell that our initial hazardous waste
regulatory package will most likely be promulgated in late
winter and early spring-. I am extremely frustrated that we
are not able to meet the schedule we proposed, and the Judge
adopted, which called, for promulgation of the regulations by
December 31.
Among the many pressing environmental problems currently
facing EPA and the nation, I consider hazardous waste to be
the most serious. In many respects, I think that EPA has
performed very credibly in the 14 months since the tragedy of
Love Canal unfolded. Yet what we have been able to do has not
met my goals in terms of what I had hoped we might achieve.
Hazardous waste constitutes an extremely Serious public
health and environmental problem. Since the chemical revolution
following the Second World War, these wastes have been disposed
improperly into the air, into the water, and into the land.
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Indus-try, government, and the public were content with the idea
of "out of sight, out of mind." The "ticking time bombs" were
primed.
Then Love Canal went off, followed by other explosions
all around the country. Industry's failings-—both careless 'and
callous—were exposed. Government's shortcomings also became
evident. The public is concerned and frightened, and it is
demanding action.
EPA has taken action.
First, working with the Department of Justice and the
States, EPA has initiated a remedial and enforcement program
directed against hazardous, waste sites which pose substantial
risk to public health and the environment. A new hazardous
waste task force of 28 persons now exists in Washington. Our
Regional Offices have redirected approximately 100 work-years
focussed on this effort. Over 300 sites have been investigated.
Seven major enforcement actions have been initiated, and many
more are under preparation.
This effort will be greatly strengthened in the coming
year. An additional 63 EPA employees, supported by 130 work-
years of technical contractor personnel, will permit the investi-
gation and filing of additional enforcement actions.
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Second, to provide funds for the cleanup of abandoned
sites and to permit more rapid response where health and the
environment are threatened, SPA developed legislation, submitted
by the President to Congress in June, to establish a multi-
million dollar Superfund. Hearings have been held by several
Congressional committees, and I am hopeful that the Congress
will enact such legislation in the near future.
Third, we have used authority in other statutes to promul-
gate regulations which can be applied to the hazardous waste
problem. An example is our emergency response authority under
Section 311 of the Clean Water Act. This authority enables the
Federal Government itself to act to mitigate releases of oil
and 299 designated hazardous substances, many of which are
found in hazardous waste sites, if released into navigable
waters.
Fourth, because, the hazardous waste program is a part of
EPA1s overall effort to achieve control of toxic substances
in our environment, we have directed authorities and resources
made available for related environmental problems to a broad-
scale effort to control hazardous wastes. Actions taken by our
Region II Office in New York are typical and illustrative of
this. Importantly, all of these actions were taken in close
cooperation with State and local government. For example:
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In the case of Love Canal,, which is just one of
a major series of response efforts, SPA provided
the technical and analytical support by which the
presence of toxic chemicals in the basements of homes
along the Canal were identified. Subsequently, SPA
made a- 54 million demonstration grant and worked
closely with the State in the: design and implementa-
tion of remedial measures being taken there.
A joint SPA-State effort has identified 160 sites
in Erie/Niagara Counties where hazardous wastes
have been disposed. An SPA contract effort is
now seeking to rank these sites in terms of their
threat to public health and the environment.
With funding under Section 208 of the Clean Water
Act, EPA has made grants totaling $1.2 million to
the States of New York and New Jersey to develop
programs to apprehend and criminally prosecute
midnight dumpers of hazardous wastes. Also under
208, EPA supported the identification of the Lapari
landfill in southern New Jersey as a source of leaching
toxic pollutants and assigned over 51 million in Clean
Lakes and research funds for control, treatment,
and disposal.
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In carrying out responsibility for safe management
of PCS's under the Toxic Substances Control Act,
the Region has been directly involved in assessing
and approving landfills and incinerators for
disposing of- PCB's.
On Long Island, as a result of the discovery of
pesticides and other toxic substances in drinking
water supplies, the Regional Office worked with
State- and local health departments to close wells.
As the- result of the designation by SPA of the
groundwaters under Long Island as a sole source
acquifer, the development of new landfills has
been severely restricted.
With grant funds provided under Section 201 of
the Clean Water Act, New York and New Jersey will
be requiring municipalities.whose industries are
implementing ore-treatment to develop programs for
the safe management of the resulting hazardous
wastes.
As water discharge permits under 402 of the Clean
Water Act are reissued, SPA is requiring the use
of best management practices to control spills of
hazardous wastes and hazardous materials.
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In Large part because of his performance, in attacking
hazardous waste in Region II, as well as his previous experience
at the State level and in Washington, I have chosen Chris
Beck, Regional Administrator, to oversee hazardous waste as
Assistant Admninistrator for Water and Waste Management.
Which brings me back to what we have not accomplished—
the promulgation of the hazardous waste regulations—and my
frustration that we were not able to produce those regulations
yesterday or last week or last month. The affidavit explains
why.
There' are two points which I think it important that
the public understand.
The first is the significance of the fact that we have
received over 1200 sets of comments on our regulations which,
when placed together, constitute a stack of text over seven
feet high. Under the laws governing rulemaking, SPA is required
to read, digest, analyze, and respond to every major point
made by every commenter in that entire record.
The public should understand that most of those comments
were prepared by highly trained and sophisticated Washington
lawyers and technical experts who represent the industries who
will be regulated. Their comments relate to practically
every word in the proposed regulations. They are designed to
raise every issue and every question that creative, well trained
professionals can imagine.
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Looked at from one point of view, these comments are
extremely helpful to us. We at EPA are not all-knowing with
respect to hazardous waste or any other environmental issue.
Our goal~is~to develop "a" reasonable and sensible regulatory
system, and we need and value additional information and
perspectives. And we recognize the right of industry to
protect its legitimate interests.
But from another point of view, these comments are designed
to stake out territory on which industry lawyers can subsequently
sue, seeking court-ordered stays and remands of promulgated
regulations. In other words, these comments are a minefield
with the potential of blowing our hazardous waste regulatory
program right out of the water. We must deal with each comment
as though it were a mine, taking every care that we do not
make a procedural, legal, or technical error. If we do not
take such care, industry lawyers can, in the courts, undo
everything we have been trying to achieve.
So to achieve effective regulation of hazardous waste we
must take the time to do our homework.
The second point that the public should understand is the
continuous nature of rulemaking. -The promulgated regulations
will be continuously in a process of expansion and revision.
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What SPA will, promulgate over the coming months will
provide the basis for an operational hazardous waste management
program. It will identify a substantial segment, but not
the entire universe, of potentially hazardous wastes. It will
establish a substantial complement, but not a complete set,
of rigorous regulatory requirements. It will provide critical
regulatory tools—such as the manifest system to control
midnight dumping—but it will not provide every desirable
regulatory tool. It will not be (and Judge Gesell told us
last January that he did not expect it to be) a gold platad
program.
I have made every effort to assure myself that the Agency
has a management system and plan of action which, with a high
degree of confidence, can achieve the promulgation of a high
quality, legally defensible, operational hazardous waste
regulatory program by next April:._
We will, consistent with the overriding objective of
assuring a high quality product, make every effort to promul-
gate regulations before then. If particular regulations are
ready earlier, SPA will promulgate them so that the regulated
community has immediate opportunity to understand what will
be required of it.
In closing, I would ask the public to ponder one final,
critical point.
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SPA's desire, and that of the public, is to bring hazardous
wastes under safe inanagement and control. We want to identify
the hazardous wastes, control them during storage or transport,
and destroy or neutralize or contain them.
The still largely unanswered question is how we are going
to decide where we are going to undertake such destruction,
neutralization or containment. Everyone wants these wastes
managed, but not in their backyard. And cur entire nation is
someone's backyard.
This is a very difficult question. Our society is only
in the earliest stages of facing up to it. And few, if any,
believe they have the complete answer. 3ut we are going to
have to answer this question if we are to achieve effective
control over hazardous wastes.
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Promulgation of RCRA Hazardous Waste Program
- to be promulgated in February and April
3001 Ignitable, Corrosiveness, Reactive,
Toxic Characteristics
Listing of wastes for those charac-
teristics
3002
3003
3004 Interim Status Standards
3010
- to be reproposed this Spring
3001 Organic Listing
3004 Main Frame
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STATE OF ILLINOIS, )
Plaintiff, )
vs. ) Civil Action"No. 78-1689
DOUGLAS M. COSTLE, )
Defendant. )
ENVIRONMENTAL DEFENSE FUND, )
INC. , et al. , )
Plaintiffs, )
vs. ) Civil Action No. 78-1715
STEFFEN PLEHN, et. al., )
Defendants. )
CITIZENS FOR A BETTER )
ENVIRONMENT, )
Plaintiffs, )
vs. ) Civil Action No. 78-1734
DOUGLAS M. COSTLE, )
Defendant. )
NATIONAL SOLID WASTE MANAGEMENT )
ASSOCIATION, )
Plaintiff, )
vs. ) Civil Action No. 78-1899
DOUGLAS M. COSTLE, )
Defendant. )
ADMINISTRATOR'S THIRD•QUARTERLY REPORT ON THE
STATUS OF DEVELOPMENT OF REGULATIONS UNDER THE
RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
In accordance with the Court's January 3, 1979, order in
these consolidated proceedings, I, Douglas M. Costle,
Administrator of the United States Environmental Protection
Agency (EPA), am submitting the following report on SPA'S
progress during' the period July 1, through September 30,
1979, in meeting the Court's schedule for the development of
final regulations under the Resource Conservation and Recovery Act
of 1976, as amended (RCRA), 42 U.S.C. §6901 et seq;
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A. Section 3001 - 3004 Regulations
(Proposed December 18, 1978)
1. As discussed in EPA's December 4, 1978, Proposed
Schedule for Promulgation of Solid Waste Regulations and
Memorandum in Support Thereof, finalizing lengthy, complex
environmental regulations which potentially affect hundreds
of thousands of persons is a difficult and time consuming
task. It entails organizing public comments received on the
proposed regula-tions; analyzing and resolving the issues raised
by those comments'; making decisions on the desirability or
necessity of reproposing part or all of the regulations;
collecting additional data or conducting additional studies
to respond to comments or otherwise support the final
regulations; writing final regulations and preambles, responses
to comments, final support or background documents, and, for
some regulations, a final Environmental Impact Statement
(EIS), Economic Impact Analysis (EIA) and Regulatory Analysis
(RA) r and assuring, through a thorough intra-Agency review,
that the final regulatory package is internally consistent,
consistent with other EPA programs, defensible and workable.
2. During the past calendar quarter, EPA has worked
diligently to complete these tasks on its Section 3001-3004
regulations.
3. During June, July, August, at my express direction
and in accordance with the unprecendented decisionmaking
procedure which I established in June (see my June 4, 1979,
affidavit), twenty key personnel from each of the major EPA
offices affected by the regulations ^ met sixteen all-day
sessions to discuss approximately forty major issues raised
by the proposed regulations and to make recommendations to
- E.g., the Office of Solid Waste, the Office of Planning
and Evaluation, the. Off ice of Enforcement, the Office of
Research and Development, and the Office of General Counsel.
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me as to how each of these issues should be resolved. In
July and August, I met personally with high-level EPA management
(including my Assistant Administrator for Water and Waste
Management, General Counsel, and Assistant Administrator for
Research and Development) on several occasions to make decisions
on these recommendations so that the job of writing the
final regulations could proceed expeditiously. In addition
to working on these major issues, the Office of Solid Waste
has also started to address the literally hundreds of minor
issues raised by the proposed regulations.
4. As preliminary decisions have been made on issues, and
the final regulations have begun to take shape, we have
started to assess the need for supplemental proposals and
reproposals. We have already proposed a supplemental list
of approximately 45 hazardous wastes (44 Fed. Reg. 49402
(August 22, 1979)) and reproposed the statistical test to be
used in determining a statistically significant difference
in groundwater monitoring samples under §250.43-8 of the
proposed regulations (44 Fed. Reg. 54323 (September 19,
1979)). Other reproposals and partial reproposals will be
published as soon as final decisions can be made on related
technical and policy issues and the formal reproposals and
associated background materials prepared. See ^110.
5. In order to adequately respond to public comment on
the proposed regulations and to better support the final
regulations, we have attempted to obtain additional information
on hazardous waste management and the health and environmental
dangers caused by improper transportation, storage and disposal
of hazardous wastes. For example, over the last several
months we have collected additional State manifest and waste
composition data to better support SPA's hazardous waste list..
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6. Much of the data we are gathering are being used in
contractor and in-house studies of major issues raised by the
proposed regulations (e.g., the regulation of small generators,
wastewater treatment lagoons, the mining industry and new vs.
existing treatment, storage and disposal facilities). As
discussed in Ull, below, several of these studies have recently
been completed and the rest are scheduled to be completed
within the next few months; Half a dozen reports of these
studies have already been noticed for public comment (see 44
Fed. Reg. 49277 (August 22, 1979) and 44 Fed. Reg. 56724
(October 2, 1979)).
7. During this past calendar quarter, SPA also started the
substantial task of writing a first draft of the final background
documents for the regulations (which will support the final
regulations and respond to comments), as well as related
portions of the final regulations, final preamble, and final
EIS/EIA/RA. We estimate that these documents, when finalized,
will run over 5,000 pages in length (approximately 1,000
pages of final regulation and preamble, a 1,000-page EIS/EIA/RA,
and over 3,000 pages of background documents).
8. In addition to developing final section 3001-3004
regulations, SPA has been hard at work on a number of other
major projects which deal with the environmental and health
problems caused by improper hazardous waste management and
supplement the hazardous waste management program under Subtitle
C of RCRA:
(a) On June 13, 1979, the President submitted to Congress
legislation drafted by SPA which would, among other things,
establish a multimillion dollar Federal fund ("Superfund")
to finance the clean-up of inactive hazardous waste sites.
SPA is now in the process of providing the Congressional
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briefings necessary to assure that this legislation (or
something similar) is enacted within the next year.
(b) EPA is also drafting legislation to establish a
Federal post-closure liability fund which would provide compen-
sation for post-closure damages from permitted hazardous
waste treatment, storage or disposal facilities and finance
monitoring for such facilities after the twenty-year time
limit provided in EPA's proposed regulations. We expect to
submit this legislation to Congress early next year.
r
(c) During FY 1979, EPA's regional offices devoted
approximately 100 work-years to the task of investigating and
assisting the Department of Justice in instituting actions
against hazardous waste sites which pose substantial risks to
human health and the environment. As a result of this effort,
over 300 sites have been investigated and seven major
enforcement actions initiated to date. With the assistance
of an additional $17 million and 68 positions in FY 1980, a
new headquarters hazardous waste task force (formed in May,
1979 with an authorized size of 28 persons), and a new
Hazardous Waste Section at the Department of Justice, we
anticipate that a significant number of additional sites will
be investigated and a substantial number of additional
enforcement actions filed over the next couple of years.
(d) Using regulatory authorities other than RCRA, we
have been funding the development of municipal programs for
the safe management of hazardous waste, State hazardous waste
enforcement programs and disposal site clean-up; approving
landfills and incinerators for ?C3 disposal and treatment;
and providing technical assistance to State and local
authorities to help them in analyzing and remedying existing
or potential public health problems caused by improper hazardous
waste management.
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9. Notwithstanding these efforts, and the progress which
we have made over the last nine months, it is now clear that
EPA will not be able to finalize its Section 3001-3004
regulations by December 31, 1979. There are many reasons why
additional time is required; I will outline the major ones below.
10. Over the last several months, we have decided to
make a number of significant changes in the regulations —
both in response to public-comment and as a result of receiving
new information — which are likely to require reproposal or
partial reproposal of major portions of the Section 3001 and
3004 regulations, including:
The list of hazardous wastes
The criteria for listing wastes as hazardous
The criteria for demonstrating that a listed
waste from an individual facility is not hazardous
The contents of petitons for the approval of
equivalent sampling, testing, or analytical
methods
The regulation of re-used/recovered wastes
The technical standards for landfills, landfarms
and surface impoundments
The regulation of storage of waste piles
The regulation of certain special wastes
It is physically impossible to prepare Federal Register
notices announcing these reproposals and the background
documents to support them, allow a reasonable public comment
period (at least thirty days), organize and evaluate trie
comments received, prepare written responses to comments and
revise the regulations, preambles and background documents
(while simultaneously finalizing the remainder of the regula-
tions) by December 31, 1979.
11. An estimated fifteen studies and other documents
or sets of documents which will be used to support the final
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Section 3001 and 3004 regulations will not be completed
even in draft form until November or December. We are unable
to announce the availability of these materials for comment,
allow a reasonable comment period, evaluate the comments
received, prepare written responses, and revise the regulations,
preambles, background documents and draft reports (while
simultaneously finalizing the remainder of the regulations
and dealing with the reproposals discussed in fllO) by December
31, 1979.
12. It has taken us much longer than we originally
anticipated to responsibily address the now 1200 sets of public
comments(some as long as 1,500 pages and totalling over
seven linear feet in length) which have been submitted on
the proposed regulations.^ As noted in ray June 4, 1979,
affidavit, this is, to the best of my knowledge, more comments
than we have received on any proposed regulation in the
history of the Agency. The issues raised in these comments
are extraordinarily complex, reflecting the length, complexity
and scope of the proposed regulations. For example:
(a) A major issue in developing our hazardous waste
regulations has simply been defining what constitutes a
"waste". In our December 18, 1978, regulations, SPA proposed
to exclude from its definition of "waste" materials which are
destined for reuse or recovery (e.g., used solvents sent to a
solvent reclaiming facility). Our objective was to create an
incentive for resource recovery by relieving legitimate
reclamation activities from the burdens of complying with
Subtitle C requirements.
2 This figure does not include the comments that will be
received on the supplemental proposals, reproposals or notices
of availability of reports, studies and other documents
discussed in fl'J4, 6, 10 and 11.
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Although industry generally supported this approach,
many States and environmental groups argued that it would
create a substantial loophole in the hazardous waste management
system. They contended that wastes going to recovery facilities
present the same hazards in storage and transport as wastes
going to disposal facilities; that allowing a generator,
transporter, treater, storer, or disposer to avoid regulation
under Subtitle C simply by stating that a material would be
reused would encourage sham "reuses" and allow individuals to
improperly store wastes for long periods of time if the wastes
were purportedly going to be "reused" at some point in the
future; and that there have been serious damage incidents at
hazardous waste recovery facilities. We are still trying to
figure out how to balance our stated objective with these
legitimate environmental and public health concerns.
(b) In our proposed regulations, we exempted from
regulation under Subtitle C all generators who produced and
disposed of' less than 100 kg. of hazardous waste a month, if
they disposed of their waste in a permitted Subtitle C facility
or a Subtitle D sanitary landfill. This "small generator"
exemption provoked hundreds of comments. At one extreme,
commenters urged that no exclusion be provided for small
quantities of hazardous waste because they may pose environmental
or health hazards. At the other end of the spectrum, commenters
argued for a broader exclusion (e.g., 1,000 kg. per month)
because of the economic impact of the regulations on small
business. Still other commenters took a middle of the road
course, urging the phase-in of a limitation or a cut-off
based on the degree of hazard posed by the waste. How EPA
addresses this issue will determine the applicability of the
hazardous waste program to an estimated 500,000' small generators
of hazardous waste.
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2PA is carefully assessing these comments and attempting
to develop the information which will enable it to determine
who the snail generators of hazardous waste are, how they
currently manage their wastes, what types of waste they are
producing and the economic and environmental/health impacts
of establishing various exemption levels. To date, $600,000
in contract funds and eight work years have been expended to
collect this information. Even when our data base is completed,
EPA must evaluate it, develop regulatory options, solicit
comment on its data/options, review and consider the comments,
respond to comments received, and make a final decision.
(c) Another controversial issue in our proposed rules
was-the requirement that existing surface impoundments
treating, storing or disposing of hazardous waste be retrofitted
with liners, soil barriers, leachate collection systems,
etc., unless the owner/operator of an impoundment could
demonstrate that it did not leak. As proposed, this requirement
would potentially apply to an estimated 20,000 wastewater
treatment lagoons built to meet Clean Water Act requirements.
EPA received widely divergent comments on this section
of its regulations. Some commenters contended that SPA had
no authority to regulate wastewater treatment lagoons under
RCRA, and that even if EPA did have such authority, requiring
existing facilities to retrofit to meet RCRA requirements
would be prohibitively expensive and would cause many facilities
to violate their Clean Water Act discharge permits. Other
commenters stated that surface impoundments were a major
source of groundwater pollution and should be strictly regulated.
EPA is now thoroughly evaluating these comments, and,
through a major contractor/in-house study, collecting data on
the number of wastewater treatment lagoons affected by the
regulations, the types of liners, soil barriers, etc. which
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are currently in place at these facilities, and the cost and
• practical difficulties of retrofitting these facilities to
meet RCRA requirements. As with EPA's small generator study,
even when this data base is assembled, EPA must review it,
develop regulatory options, solicit public comment on the
data/options, review and respond to those comments and reach
a final decision. This decision will be complicated by the
fact that there are now pending in Congress amendments to
RCRA which would modify EPA's authority to regulate these
facilities.
13. Although we are learning a great deal from the public
comments we have received, responding to these comments has
required not only additional data gathering, but also developing
and analyzing alternative regulatory approaches (both in
isolation and in the context of the entire regulatory program)
on literally hundreds of major and minor issues, and preparing a
written response to each issue raised.
14. In retrospect, certain of the extraordinary (and
therefore untested) emergency procedures which we adopted to
meet the December 31, 1979, deadline did not prove to be fully
successful, largely because they required us to do too much
too quickly. For example, the decisionmaking strategy which
we adopted this spring to streamline the development of
final regulations (see my June 4, 1979,'affidavit) has turned
out. to be largely unworkable in practice. In attempting to
meet our court schedule, we tried to make decisions on major
issues in June and July before we had an opportunity to
fully analyze those issues and obtain all available data, and
before we could examine issues in the content of the entire
hazardous waste program. As a result, many of our early
decisions are now being re-evaluated in the light of new infor-
'rnation. Similarly, our extraordinarily tight internal schedules
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for the completion of draft final background documents,
regulations and preambles have resulted in the production of
documents which my General Counsel has advised me must be
significantly improved if the final regulations are to withstand
judicial review.
15. As noted in *,i8 above, the Agency's program to remedy
and prevent the health and environmental hazards associated
with the improper transportation, storage, treatment and disposal
of hazardous waste involves activities other than the development
of hazardous waste regulations under RCRA. Not surprisingly,
these activities have diverted Agency resources (both personnel
and funds) from the job of developing final hazardous waste
regulations. For example, the attorneys in the Office of
General Counsel who are responsible for overseeing the development
of the Section 3001 and 3004 regulations must also review
the Section 3005 and 3006 regulations, draft legislation,
and provide advice to the Office of Enforcement and assist
the Justice Department on the hazardous waste site enforcement
effort, as well as provide overall legal counsel on the Agency's
solid waste program.
16. As a result of the problems outlined above, I and
my Assistant Administrator for Water and Waste Management 3
and General Counsel have discussed how we can best maximize
our limited resources and rearrange our priorities to produce
a defensible, operative hazardous waste program as quickly as
possible. We have reached the following conclusions:
3 My former Assistant Administrator for Water and Waste
Management, Thomas C. Jorling, left EPA on September 7, 1979,
to assume his teaching position at Williams College. In
choosing his successor, I have tried, among other things, to
select an individual who has a strong track record in dealing
with hazardous waste. The man I have designated, Eckhardt C.
Beck, was previously EPA's Regional Administrator in EPA
Region II,-.and has been both agressive and creative in dealing
with the serious hazardous waste problems which have arisen
in N'ew York (e.g. , Love Canal) and. New Jersey (e.g., Kin-3uc).
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(a) We feel fairly confident that we can finalize our
Section 3002 generator standards and Section 3003 transporter
standards (as well as our Section 3010 notification regulations,
which were not the subject of this lawsuit but are an integral
part of the hazardous waste program) by February, 1980.
While these regulations would not become operative until we
promulgate our Section 3001 regulations, identifying those
hazardous wastes which are. subject to regulation under Subtitle
C, their publication at this time would allow generators and
transporters to begin preliminary planning and would permit
States to begin preparation of the legislation and regulations
needed to allow them to obtain EPA approval of their hazardous
waste programs under Section 3006.
(b) Because of the reproposal and data notification
requirements discussed in UH10 and 11, we will be unable to
promulgate final Section 3001 regulations and final Section
3004 treatment, storage, and disposal standards at the same
time as our Section 3002, 3003, and 3010 regulations. We do
think it may be possible to finalize portions of the Section
3001 regulations and the interim status standards under
Section 3004 by April, 1980. With related portions of the
Section 3005 regulations (see Part B of this report), this '
would allow us to have a meaningful "core" Federal ha-zardous
waste management system in place only four months after the
deadline set forth in the Court's January 3, 1979, order.
When the regulations become effective (see Section 3010),
generators, transporters, treaters, storers, and disposers
of the wastes identified in the final Section 3001 regulations
will be required to provide notification to SPA under Section
3010. Generators of those wastes will have to begin properly
containerizing and labeling their wastes for shipment, maintaining
records, and reporting to EPA; transporters will have to
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begin safely transporting wastes; the manifest system will
be in operation; and owners/operators of treatment, storage,
and disposal facilities will have to begin properly storing
wastes and meeting EPA's interim status standards, including
standards for security, recordkeeping, reporting, visual
inspection, training of personnel, contingency plans, closure
and financial responsibility.
Congress clearly anticipated that it would take time to
issue permits to all treatment, storage and disposal facilities,
as evidenced by the provision for "interim status" under
Section 3005(e). EPA estimates that this permitting process
will take between five and ten years. Thus, while the schedule
outlined above does not cover certain portions of the Section
3004 regulations, it would result in the promulgation of
those elements of the hazardous waste management program
which will have the greatest impact over the short term
(and the only elements most facilities would be required to
meet for the next several years even if SPA were able to
promulgate the remaining portions of the Section 3004 regula-
tions by April, 1980).
(c) We hope to repropose those portions of Section 3001
which require reproposal and are not finalized in April, and
the technical standards for treatment, storage and disposal
facilities under Section 3004 after the core program is
finalized. We are unable to make any meaningful prediction
at this time as to when these two sets of supplemental
regulations might be promulgated in final form, but expect
to do so in our next quarterly report.
17. Bringing the management of hazardous wastes under
control has been the greatest challenge of my administration.
It is with deep regret that I report these facts to the Court,
to Congress, and to the public at large. I wish we could
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issue a sound, workable, defensible hazardous waste program
by December 31, 1979. For the reasons outlined above, however,
I do not believe that is possible. I do believe that the
regulatory development schedule which I have set forth above, and
which I have discussed in detail with representatives of the
major EPA offices involved with this program, represents the
best prioritization of our limited resources and time, and
will maximize the number of elements of an operative hazardous
waste program which we can promulgate within the next year.
We will make every effort to meet it.
3. Section 300S and 3006 Regulations
(Proposed June 14, 1979)
18. In my first quarterly report and June 4, 1979,
affidavit, I explained in some detail why it was taking EPA
approximately four months longer than we had originally
predicted to propose regulations implementing Sections 3005
(procedures for permitting hazardous waste treatment, storage
and disposal facilities) and 3006 (standards for approvable
State hazardous waste programs) of RCRA. As I stated at that
time, much of this delay was attributable to the fact that the
Section 3005 and 3006 regulations were being published as
part of a consolidated permitting regulation, which attempts
to integrate Federal permitting and State permit program
approval regulations under Sections 402 and 404 of the Clean
Water Act (The National Pollutant Discharge Elimination System
(NPDES) permit program and the Section 404 dredge and fill
material program), the underground injection control (UIC)
program under the Safe Drinking Water Act, the prevention of
significant deterioration program under the Clean Air Act,
and the hazardous waste program under RCRA. I also noted
that while we would try to promulgate final regulations by
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December 31, 1979, it "could require until March of 1980"
(June 4, 1979, affidavit at Mil).
19. We have made a great deal of progress in developing
these regulations during the last calendar quarter. For
example, we held five three-day public hearings on the
consolidated permit regulations in July and August and began
drafting issue papers based on the oral presentations made at
those hearings. The comment period on the regulations closed
on September 12, 1979, and we are now beginning to catalogue
(with the help of a contractor) and review the 500 plus
written comments submitted, and analyze the issues raised.
20. It is clear, however, that we will not be able to
finalize these regulations by the end of the year. Based on
our preliminary review of public comments, and our experience
in promulgating final NPDES regulations last June, our current
best estimate of a final promulgation date for these regulations
is now April, 1980. This estimate is premised, among other
things, on the following considerations:
(a) It took over ten months following proposal to develop
the final NPDES regulations on which the consolidated regulations
are based. These regulations were also on an expedited schedule.
(b) While we learned a great deal from the development
of the final NPDES regulations which can be used to expedite
the development of a final consolidated permits package,
these gains are largely offset by the greater complexity of
the latter regulations. For example, whereas the NPDES
regulations involved one section of the Clean Water Act and
one SPA office, the consolidated regulations involve two
sections of the Clean Water Act, the Safe Drinking k7ater Act,
the Clean Air Act and RCRA, and six separate EPA program offices.
(c) The regulations are quite long (an estimated 500 pages,
not including related permit application forms and instructions).
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(d) Because of the length of the regulations and the
number of EPA headquarters and Regional offices involved, the
logistical problems of providing thorough intra-agency review
of the regulations are significant. For example, it takes
one to two days simply to type a redraft of the regulations,
another day to reproduce it for distribution, and several
more days to disseminate it to reviewers at headquarters and
in the Regions. We estimate that it will take an average of
four weeks between each draft to review internal comments and
make necessary revisions.
21. I have carefully considered whether it might be
possible to promulgate final Section 3005 and 3006 regulations
sooner by extricating them from the consolidated permits
regulations. However, because a large portion of the
consolidated regulations are necessary to implement Sections
3005 and 3006, I do not think there would be any real time
gained by breaking off the hazardous waste program from the
other environmental programs included in this package. In
addition, such a move would frustrate a major goal of EPA's
regulatory reform effort — to better integrate and improve
consistency among its permitting programs.
C. Section 4002(b) Guidelines
(Proposed August 28/1978)
22. EPA issued final Section 4002(b) State solid waste
management plan guidelines on July 31, 1979 (44 Fed. Reg.
45066). A copy of these regulations was filed with the Court
on August 9, 1979.
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D. Section 4004/1008(a)(3) Criteria for
Classification of Solid Waste Disposal
Facilities and Practices
(Proposed February 6, 1978)
23. On September 13, 1979, EPA published sanitary
landfill/open dump criteria implementing Sections 4004 and
100S(a)(3) of RCRA (44 Fed. Reg. 53438). A copy of these
regulations is attached.
24. Although most of the criteria were published in
final form, two portions dealing primarily with sewage sludge
disposal — §257.3-5 (Application to Land Used for the
Production fo Food Chain Crops) and §257.3-6(b) (Disease:
sewage sludge and septic tank pumpings) — were issued as
"interim final" regulations. This means that while these
regulations will become effective on October 15, 1979, EPA
will take additional public comment on them before issuing a
"final final" regulation. The public comment period on these
interim final sections closes on November 20, 1979.
•25. On September 13, 1979, EPA also proposed an amendment
to §257.3-4 (Groundwater Criteria) of the final regulations
which would expand the list of groundwater contaminants
regulated. The public comment period on this supplemental
proposal will close on November 13, 1979, and a public hearing
will be held on the proposal on November 1, 1979.
E. Section 1008(a)(1) Guidelines
(Proposed March 26, 1979)
26. The public comment period on these guidelines closed
on May 25, 1979. EPA received very few comments on them,
and we expect to promulgate them on or about January 31,
1980, as required by the Court's schedule.
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I declare under penalty of perjury that the foregoing is
/ / ' St
true and correct. / / / / /
/ / / /
/ I t,
Executed on October 12, 1979 t- (/[y.X v^\:*.\J£/Ji
Douglas M. Cos tie
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CERTIFICATE OF SERVICE
I hereby certify that the foregoing Administrator's
Third Quarterly Report, has been hand-delivered or mailed
first class postage prepaid this 15th day of October 1979 to
each of the following:
Russell R. Eggert, Esquire
Dean Hansell, Esquire
George W. Wolff, Esquire
Environmental Control Division
188 West Randolph, Suite 2315
Chicago, Illinois 60601
William A. Butler, Esquire
Jacqueline H. Warren, Esquire
Environmental Defense Fund
1525 18th Street, N.W.
Washington, D.C. 20036
Bill S. Forcade, Esquire
Robert Goldsmith, Esquire
Citizens for a Better Environment
59 East Van Buren, Suite 2610
Chicago, Illinois 60605
Ellen Weiss, Esquire
Sheldon, Harmon, Roisman and Weiss
1025 15th Street, N.W.
Washington, D.C. 20005
William C. Brashares, Esquire
Richard W. Bowe, Esquire
Cladouhous & Brashares
1750 New York Avenue, N.W.
Washington, D.C. 20006
Thomas H. Truitt, Esquire
Toni K. Golden, Esquire
Wald, Harkrader & Ross
1320 Nineteenth Street, N.W.
Washington, D.C. 20036
John H. Pickering, Esquire
Andrew T.A. Macdonald, Esquire
Wilmer, Cutler & Pickering
1666. K.Street, N.W.
Washington, D.C. 20036
Michael K. Glenn, Esquire
Dunnington, Bartholow & Miller
1120 Connecticut Avenue, N.W.
Washington, D.C. 20036
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Loren K. Olson, Esquire
John R. Quarles, Jr. , Esquire
1800 M Street, N.W.
Washington, D.C. 20036
Stark Ritchie, Esquire
2101 L Street, N.W.
Washington, D.C. 20037
Alan B. Mallohan, Esquire
J. Roy Spradley, Esquire
Rose, Schmidt, Dixon, Hasley,
Whyte & Hardesty
818 Connecticut Avenue
Washington, D.C. 20006
Lawrence A. Demase, Esquire
Ronald S. Cusano
Rose, Schmidt, Dixon, Hasley,
Whyte & Hardesty
900 Oliver Building
Pittsburgh, Pennsylvania 15222
Honorable John Culver
Subcommittee on Resource Protection
Room 4202
Senate Office Building
Washington, D.C. 20510
Honorable Bob Eckhardt
Subcommittee on Oversight and
Investigations
Committee on Interstate and
Foreign Commerce
Rayburn House Office Building
Washington, D.C. 20515
Lisa K. Friedman
SW-811
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