ELR Citation: ELR 21228
No(s). 90-1443 (D.C. Cir. Jul 26, 1991)

The court holds that the Environmental Protection Agency (EPA) properly declined to withdraw Resource Conservation and Recovery Act (RCRA) authorization for North Carolina's hazardous waste management program after the state enacted a statute that is more stringent than the federal standards. The North Carolina statute requires a thousand-fold dilution of discharges from commercial hazardous waste treatment facilities into surface waters located above public drinking intakes. The statute was enacted in response to the proposed construction of a large facility in Laurinburg, North Carolina, to treat liquid hazardous wastes. Although the statute does not ban the issuance of treatment facility permits, it renders the proposed facility uneconomic. The court holds that EPA reasonably determined that a state law acts as a prohibition on the treatment of hazardous waste only when it effects a total ban on a particular waste treatment technology in a state. Under EPA regulations, a state program may be deemed inconsistent with the federal program when it acts as a prohibition on the treatment, storage, or disposal of hazardous waste. The requirement in RCRA §3006(b) that a state program be consistent with the federal program gives EPA enormous discretion in structuring and interpreting its implementing regulations. While RCRA requires consistency between state and federal programs, it does not require uniformity. States are free to impose more stringent site-selection standards. The court concludes that EPA properly declined to withdraw authorization of North Carolina's program because the state did not effect a statewide ban on the use of the proposed treatment technology.

Counsel for Petitioners
David R. Case
Hazardous Waste Treatment Council
1440 New York Ave. NW, Ste. 310, Washington DC 20005
(202) 783-0870

Counsel for Respondents
W. Christian Schermann
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Intervenors
Daniel F. McLawhorne, Special Deputy Attorney General for N.C.
Department of Justice
P.O. Box 629, Raleigh NC 27602
(919) 733-3377

Before EDWARDS, BUCKLEY, and RANDOLPH, Circuit Judges.