ELR Citation: ELR 21235
No(s). s. 82-2210 et al (D.C. Cir. Jul 16, 1991)

The court holds that the Environmental Protection Agency's (EPA's) adoption of permitting regulations for closed land disposal facilities and groundwater monitoring and cleanup standards for disposal sites located above aquifers was within its authority under the Resource Conservation and Recovery Act (RCRA) and not arbitrary or capricious. Under RCRA §§3004 and 3005, EPA is required to establish performance standards, applicable to owners and operators of facilities for the treatment, storage, or disposal (TSD) of hazardous waste, and to issue regulations requiring owners and operators of TSD facilities to obtain permits for their operations. The court first holds that EPA reasonably interpreted the permitting requirement of §3005 as applying to disposal facilities whether they are currently open or closed. Although in ordinary language disposal may not be a continuing activity, RCRA §1004 equates "disposal" with "leaking," which is a continuous phenomenon rather than a discrete event. Further, the parties challenging EPA's regulations concede EPA's authority to adopt post-closure performance standards under RCRA §3004(a), which was intended to work with RCRA §3005. Finally, the court holds that EPA is not required to create an exemption from its groundwater monitoring and cleanup standards for sites located above unusable aquifers. The existence of such sites is hypothetical and unsupported by any evidence in the record.

Counsel for Petitioners
William R. Weissman
Piper & Marbury
1200 19th St. NW, Washington DC 20036
(202) 861-3900

Anthony F. King
Kaye, Scholer, Fierman, Hays & Handler
901 15th St. NW, Washington DC 20005
(202) 682-3500

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

Caroline H. Wehling
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-2090

Before RUTH B. GINSBURG, SILBERMAN, and D.H. GINSBURG, Circuit Judges.