ELR Citation: ELR 20027
No(s). s. 88-1155 et al (D.C. Cir. Sep 22, 1989)

The court generally upholds the Environmental Protection Agency's (EPA's) 1987 second codification rule implementing the 1984 Resource Conservation and Recovery Act (RCRA) Amendments. The court first holds that EPA acted within its authority in imposing RCRA §3004(u) corrective action requirements on certain mining, oil, gas, and geothermal production wastes that were statutorily exempted by the 1980 Bevill-Benston Amendments from regulation as hazardous wastes. Congress intended to protect these "Bevill-Bensten" wastes from undue burdens from potentially hasty classification as hazardous wastes, not from burdens imposed on nonhazardous wastes. All nonhazardous wastes are subject to RCRA's corrective action requirements. The court holds that petitioners' claim that §3004(u) does not encompass postclosure permits has been previously adjudicated and is untimely under the 90-day limit in RCRA §7006(a)(1). Petitioners' claim that §3004(u) does not apply to owner/operators of underground injection wells who receive permits issued under the Safe Drinking Water Act's underground injection control program is untimely under RCRA §7006(a)(1). The court upholds EPA's new and broader interpretation of the scope of the RCRA permit requirement to the extent that it requires postclosure permits from facilities that closed before July 26, 1982, but failed to certify closure before January 26, 1983, and to the extent that it covers facilities that closed by removal under the interim status rules but received hazardous waste after July 26, 1982. Finally, the court holds that challenges concerning EPA's authority to issue postclosure permits in authorized states is not ripe for review.

Counsel for Petitioners
Angus Macbeth, Samuel I. Gutter, Peggy L. O'Brien
Sidley & Austin
1722 I St. NW, Washington DC 20036
(202) 429-4000

Counsel for Petitioners-Intervenors
William R. Weissman, Karl S. Bourdeau
Beveridge & Diamond
1333 New Hampshire Ave. NW, Washington DC 20036
(202) 828-0200

Counsel for Respondent
Scott A. Schachter
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611 Ben Franklin Station, Washington DC 20044
(202) 633-2000

Caroline Wehling
Office of General Counsel
U.S. Environmental Protection Agency, 401 M St. SW, Washington DC 20460
(202) 475-8040

Before MIKVA and WILLIAMS, Circuit Judges, and HUBERT L. WILL,^* United States District Judge for the Northern District of Illinois.