Delisting Hazardous Wastes -- Do the RCRA Amendments Spell Relief?

Delisting Hazardous Wastes — Do the RCRA Amendments Spell Relief?

R. Sarah Compton and Donald J. Patterson, Jr.

Editors' Summary: The "delisting" process is a controversial and important aspect of the implementation of the Resource Conservation and Recovery Act (RCRA). When the Environmental Protection Agency (EPA) lists a waste as hazardous, it brings the substantial weight and cost of RCRA's regulatory requirements to bear on companies that must dispose of that waste. The delisting process is a safety valve through which erroneous listing decisions can be reversed. The authors review the delisting procedures and EPA's delisting practice and argue that the safety valve is not functioning. Citing the small number of petitions that EPA has acted on and the lengthy delay in one that it eventually granted, they conclude that the delisting process should be reformed. They find no solution in the recently passed RCRA Amendments, which will only increase petitioners' burden of proof and EPA's analytical task.

Ms. Compton is a partner and Mr. Patterson an associate in the firm of Collier, Shannon, Rill & Scott. They represented the Specialty Steel Industry of the United States in its successful delisting efforts.

[14 ELR 10374]

The U.S. Environmental Protection Agency ("EPA" or "Agency") has an overwhelming backlog of hundreds of petitions from facilities seeking to have their wastes removed from classification as hazardous. Recently Congress passed amendments to the Resource Conservation and Recovery Act ("RCRA")¹ which, in part, address the delisting process.These amendments, however, are not likely to help EPA eliminate this backlog; in fact, they may make the problem worse.

RCRA mandates that EPA identify and list wastes that it determines are hazardous. Listed wastes are subject to EPA's regulations governing their generation, transportation, treatment, storage and disposal. For a waste to be a hazardous waste, it must first be a solid waste.² Once it is determined to be a solid waste, it may be classified a hazardous waste in one of two ways. First, RCRA directed EPA to list wastes that it concluded were hazardous because they displayed one or more hazardous characteristics.³ For these, EPA identified the alleged "toxic" constituents of concern and other characteristics that made the waste hazardous.⁴ Second, solid wastes that have not been "listed" by EPA may nonetheless be hazardous if they exhibit any of the following characteristics: ignitability; corrosivity; reactivity; or toxicity as determined by the Extraction Procedure ("EP") toxicity test.⁵ It is EPA's handling of "listed" hazardous wastes that is of concern.

Given the paucity of available scientific literature on many potentially hazardous wastes,⁶ EPA's compilation of the list necessarily involved a number of assumptions and a great deal of guesswork, which accordingly resulted in the omission of some wastes that could pose a hazard to human health or the environment and would not have been included in the system based on the characteristic tests. Similarly, the list includes some wastes that are not hazardous. Realizing that the list would be overinclusive, EPA promulgated regulations that provide a mechanism by which the regulated community could obtain a "delisting" for wastes that EPA erroneously listed as hazardous.⁷

EPA's record in taking final action on delisting petitions, however, is abysmal. Of the more than 700 delisting petitions submitted since the effective date of the RCRA regulations in late 1980, EPA has taken final action on only a handful.⁸ While there are a number of reasons [14 ELR 10375] that explain why EPA has failed to act expeditiously, this record shows that it has been almost impossible for a company or industry to get an EPA decision on delisting a waste. One "success story" in EPA's handling of delisting petitions, described in detail below, involves the iron and steel industry's efforts to have one of its wastes removed from classification as hazardous. EPA took more than three and a half years and acted only after the industry filed suit in federal court.⁹

On October 5, 1984, Congress passed RCRA amendments that change the delisting process.¹⁰ These amendments, however, are a mixed blessing. On the one hand, they wisely impose a final deadline on 24 months on the Agency to decide a delisting petition.¹¹ On the other hand, they impose a new requirement on the Agency to consider, prior to any delisting, "factors … other than those for which the waste was listed if the Administrator has a reasonable basis to believe that … additional factors could cause the waste to be a hazardous waste."¹² The Agency could conclude from this directive that it must consider other factors only if it has data available "inhouse" which would indicate that these other factors may cause the waste to be hazardous. Unfortunately, the Agency has not adopted this interpretation of the new requirement. EPA has preliminarily concluded that these amendments impose a new affirmative duty on EPA to collect all possibly relevant data from the petitioner and impose upon the petitioner the burden of proving that the waste is not hazardous for any reason.¹³ As a result, these new amendments may spell further disaster for petitioners and for EPA's delisting program.

Present Statutory and Regulatory Authority for the Delisting of Hazardous Wastes

The Resource Conservation and Recovery Act of 1976

As originally passed, RCRA said little about the delisting of hazardous wastes. Section 3001(b)(1) of RCRA specifically authorizes the listing of hazardous wastes: "the Administrator of [EPA] shall promulgate regulations identifying the characteristics of hazardous waste, and listing particular hazardous wastes …. Such regulations shall be based on the criteria promulgated under subsection (a) …."¹⁴ Subsection (a) of section 3001 mandates that EPA "develop and promulgate criteria for identifying the characteristics of hazardous waste, and for listing hazardous waste … taking into account toxicity, persistence, and degradability in nature, potential for accumulation in tissue, and other related factors such as flammability, corrosiveness, and other hazardous characteristics."¹⁵

Section 3001(b)(1) does envision that this list of identified hazardous wastes will be revised from "time to time thereafter as may be appropirate."¹⁶ Congress clearly intended that this list would not remain static, that EPA would revise the list as more data became available.

Furthermore, RCRA contains a section on the general right to file petitions under which delisting petitions are at least implicitly authorized. Section 7004(a) reads in part: "Any person may petition the Administrator for the promulgation, amendment, or repeal of any regulation under this Chapter."¹⁷ A delisting petition is authorized by § 7004(a) because it is a request for amendment or repeal of RCRA regulations that specify a certain waste as presumed hazardous. EPA must respond to a petition, including a delisting petition, within "a reasonable time" after receipt of the petition, and must enumerate the reasons for granting or denying the petition.¹⁸

Congress intended that the right to petition the Agency for changes in the RCRA regulations be meaningful. The legislative history of RCRA explicitly states that not only are delisting petitions authorized, but that they are an integral part of the hazardous waste management program established by Congress. The responsibility for identifying which wastes are hazardous rests with EPA: "The hazardous waste program under this bill is one in which the Federal Government will determine the criteria for identifying what wastes are hazardous, and will list wastes determined to be hazardous by their nature."¹⁹ Congress, however, made it clear that the regulated community should play a role in the listing process: "the involved industries [will] have input both in the development of the criteria used to determine hazardous wastes and in the actual determination of which wastes are hazardous."²⁰

In delegating the authority to identify hazardous wastes to EPA, Congress recognized the dangers of too much or too little regulation. It guarded against this possibility by allowing and encouraging public involvement in the decision-making process. The House Interstate and Foreign Commerce Committee maintained that: "It is the Committee's view that their [sic] is sufficient public [14 ELR 10376] input and this coupled with the citizen suits provisions … and the section permitting petitions for new regulations provide sufficient protection from both overzealous or lax regulation."²¹

The delisting process is an important protection against overzealous regulation. Wastes that are not hazardous should not be subject to the hazardous waste management program.

EPA's RCRA Delisting Regulations

EPA's present delisting regulations are contained in two sections, 40 C.F.R. §§ 260.20 and 260.22.²² Section 260.20 is the general rulemaking petition section. All persons are authorized to petition EPA to modify or revoke RCRA regulations pertaining to the identification and listing of hazardous waste, or regarding interim status or final generator, transporter or owner and operator standards.²³ EPA will decide such petitions after notice and opportunity for public comment.²⁴ Upon written request of an interested person, EPA, at its discretion, may hold an informal public hearing.²⁵ Section 260.22 establishes requirements for petitions to exclude wastes generated at a particular generating facility from classification as hazardous. For any such petition to be successful, the petitioner must demonstrate to the satisfaction of EPA that the waste does not meet any of the criteria under which it was listed as hazardous.²⁶

For wastes classified as hazardous because they display the characteristics of ignitability, corrosivity, or reactivity, a petitioner must present data demonstrating that test samples of its waste do not exhibit the relevant characteristic.²⁷ For wastes characterized as toxic, a petition can meet one of two tests using results obtained by approved test methods. It can show that samples of the waste do not contain the toxic constituent that caused EPA to list the waste.²⁸ In the alternative, the petitioner can make an independent showing that the waste is not capable of posing a substantial present or potential hazard to human health or the environment when improperly managed, taking into account the nature, concentration, migration and degradation potential and persistence of the toxic constituent, potential mismanagement scenarios, the quantities of the waste generated on an individual site and on a national basis, and the nature and severity of the damage to human health or the environment that has occurred as a result of mismanagement of the waste.²⁹

In determining that a waste does not meet the criteria for which it as listed as hazardous, EPA is to evaluate test results from "demonstration samples' submitted by the petitioners. Demonstration samples must consist of at least four representative samples, taken over a sufficient period of time and conditions to represent the variability and uniformity of the waste.³⁰ The petitioner must also provide a variety of background data relating to the generation of the waste, and the sampling and testing of the waste sample.³¹ EPA can request any additional information it may reasonably require to evaluate the petition.³²

The process should be fairly straightforward. EPA should review the petition for completeness and compliance with the regulatory requirements and then simply determine whether the waste exhibits any charcteristics of hazardousness. Generally, there are no difficult policy questions involved. Nonetheless, EPA's record on the handling of delisting petitions has been abysmal.

EPA's Record on Delisting Petitions

Since RCRA became effective, over 700 delisting petitions have been filed, many of them filed more than three years ago.³³ The vast majority are for wastes from individual generating facilities; at least one was for an industry-wide delisting. To date, EPA has taken final action on about 10 of the individual delisting petitions.³⁴ After a protracted three and a half year struggle, EPA granted the only industry-wide petition.³⁵ The potential cost of slow EPA action is substantial. Hundreds of companies who believe their wastes nonhazardous have spent substantial [14 ELR 10377] sums to treat their wastes as hazardous and are consuming scarce approved disposal resources while EPA considers their petitions.

A number of reasons can be advanced to explain EPA's inability to decide these petitions in a timely fashion. One explanation is the availability of temporary exclusions. Section 260.22 provides that EPA "may (but shall not be required to) grant a temporary exclusion before making a final decision … whenever [it] finds that there is a substantial likelihood that an exclusion will be finally granted."³⁶ EPA has provided relief to a number of applicants by granting them temporary exclusions, but has denied this relief to many others.³⁷ In addition, EPA stopped granting any temporary delistings in late 1983 in anticipation of a prohibition on such actions which was in the House RCRA bill. This prohibition did not survive the RCRA conference.³⁸

Staffing and organizational problems have hampered EPA's decisionmaking. At the same time that petitions are filed seeking the delisting of specific hazardous wastes, pressure is being exerted by environmental and other public interest groups for the additional listing of wastes. A seriously understaffed EPA lacks sufficient resources to investigate whether new wastes should be listed at the same time it examines whether "old" wastes should be delisted.³⁹ The result is a gridlock in which EPA has made few changes to the original list.

Moreover, perceived political and public relations problems with removing wastes from the ambit of the hazardous waste control program also have contributed to EPA's slowness in responding to hazardous waste delisting petitions. The practical effect of listing a waste is much more than the simple designation of a particular waste as hazardous. The listing takes on a life of its own; a delisting may be perceived by the public as a "sell-out," an abdication of regulatory responsibility that will free a company or industry to dispose randomly of wastes that could threaten public health or the environment. Concern over potential adverse publicity that could be associated with delisting doubtless has made EPA hesitant to act.

Yet it is no easy task to determine whether any complex waste is hazardous to public health or the environment, and EPA did not act with perfect knowledge when it designated which wastes were hazardous and which were non-hazardous. Instead, the truth is that EPA, in what it admits and Congress recognized was a necessarily imperfect process, tentatively identified certain wastes as hazardous. If EPA made a mistake, it should have been able to correct the problem through its delisting mechanism. This has not been the case. A notable example of the problems with the system involves the iron and steel industry delisting petition.

The Iron & Steel Industry Delisting Petition: A Case Study

On March 9, 1981, the American Iron & Steel Institute ("AISI") filed an industry-wide petition seeking the exclusion of lime neutralized waste pickle liquor sludge ("LNWPLS") from classification as hazardous. EPA finally granted the petition on June 5, 1984; the delisting will not become effective until December 5, 1984, nearly three and three-quarter years after the petition was filed. A review of the circumstances surrounding the LNWPLS exclusion petition vividly illustrates many of the problems in the delisting process.

In steel forming and finishing operations, exposure to the atmosphere causes the formation of oxide scale on the unfinished steel. This scale must be removed by acid pickling before further processing. Treatment of steel products by acid pickling includes immersion in a heated acid solution. Over time, the dissolved metals content of the acid pickling solution becomes sufficiently high and the available acid level drops sufficiently low to render the solution unusable. This spent pickle liquor is then treated by adding lime to neutralize the acid, before the liquid wastewater is discharged pursuant to the facilities' national pollutant discharge elimination system permits. The sludge resulting from the treatment process is given the appropriate but tongue-twisting name of lime neutralized waste pickle liquor sludge.

On May 19, 1980, EPA proposed to list iron and steel LNWPLS as a hazardous waste ("KO63")⁴⁰ alleging that LNWPLS leached toxic concentrations of chromium and lead, the specified constituents of concern.⁴¹ According to EPA's background document, the Agency decided to list LNWPLS as hazardous on the basis of leachate analysis from a single sample, conducted under unspecified pH and other test conditions.⁴²

The AISI and individual iron and steel companies submitted comments to EPA challenging the proposed listing of KO63. In response, on November 12, 1980 EPA agreed to remove iron and steel LNWPLS from the list of hazardous wastes.⁴³ The waste, however, continued to be presumed hazardous because it is derived from spent pickle liquor, a listed hazardous waste (KO62).⁴⁴ The toxic constituents of concern for spent pickle liquor are hexavalent chromium and lead.⁴⁵

At the time EPA removed LNWPLS from the list, it [14 ELR 10378] also announced that, pursuant to section 260.22, it would approve an industry-wide exclusion petition that would remove iron and steel LNWPLS from the presumption of hazardousness if the industry demonstrated that the waste did not leach hexavalent chromium and lead in toxic concentrations. The Agency stated:

[s]ince our chief concern with these lime treatment sludges is whether they will leach significant concentrations of lead and chromium, we will consider delisting petitions for these wastes to be adequate if petitioners show that concentrations of lead and chromium in EP [extraction procedure] waste extracts are significantly less than the maximum concentration levels for lead and chromium contained in [40 C.F.R.] § 261.24, without requiring consideration of the other delisting factors. We also will consider an industry-wide rulemaking petition to exclude these wastes from RCRA Subtitle C [hazardous waste classification] jurisdiction if industry presents representative data showing the wastes are not hazardous.⁴⁶

Accordingly, on March 9, 1981, the AISI submitted a petition on behalf of the iron and steel industry requesting that EPA exclude iron and steel LNWPLS from classification as a hazardous waste. The AISI presented data demonstrating that hexavalent chromium and lead are present in the sludge in an essentially immobile form. Iron and steel LNWPLS produces a leachate with concentrations of lead and hexavalent chromium that are significantly below 5.0 milligrams per liter ("mg/1"), the maximum concentration level allowed by the EP toxicity test for both hexavalent chromium and lead.⁴⁷

On October 27, 1981, after reviewing both the AISI information and data in site-specific delisting petitions EPA acknowledged that hexavalent chromium and lead are present in the waste in essentially an immobile form and thus not hazardous.⁴⁸ EPA indicated its support for an industry-wide exclusion of LNWPLS with the exception of LNWPLS generated by the stainless steel industry. This, however, was no small exception; it was half the industry. EPA reserved judgment on stainless steel LNWPLS because one site-specific petition had indicated the existence of some nickel in the waste, which EPA thought might be of regulatory concern.⁴⁹ Nickel, however, had not been originally listed as a toxic constituent of concern for spent pickle liquor.

October 27, 1981 was the starting date of a heated debate over the nickel toxicity of stainless steel LNWPLS that has not yet been finally resolved. Even though EPA admitted that the waste did not contain the toxic constituents for which it was listed, EPA claimed, based on pending House and Senate RCRA amendments, that it was required to look at other constituents that might cause the waste to be hazardous before taking action on the delisting petition. The steel industry disagreed with EPA's authority to delay such action, but nonetheless submitted voluminous data on nickel toxicity, pointing out that EPA's arbitrarily selected level of concern for nickel toxicity was incorrect and unsubstantiated. Stainless steel industry representatives met with EPA on numerous occasions, but to no avail. EPA continued to delay action on the stainless steel portion of the delisting petition and also refused to implement its determination made in late 1981 that carbon steel LNWPLS, which contains only insignificant traces of nickel, was not hazardous.

With no other recourse available, the Specialty Steel Industry of the United States filed a notice of intent to sue EPA on August 18, 1983. The Specialty Steel Industry alleged that EPA had unreasonabley delayed in acting upon the iron and steel exclusion petition with regard to both the carbon and stainless steel industry. The Specialty Steel Industry of the United States and the American Iron and Steel Institute filed suit on these grounds November 17, 1983, in the U.S. District Court for the District of Columbia.⁵⁰

Soon thereafter the parties began negotiations and reached a final settlement on April 9, 1984, which called for EPA to act on the iron and steel delisting petition by May 31, 1984. The Administrator signed the final notice granting the delisting petition on May 31, 1984; it was published in the Federal Register June 5, 1984⁵¹ and will become effective December 5, 1984.⁵² In the rulemaking, the Agency reiterated the position it had expressed over two years earlier that lead and hexavalent chromium are present at low levels and are substantially immobilized in properly neutralized iron and steel industry LNWPLS. EPA indicated that it was still evaluating whether the levels of nickel present in stainless steel LNWPLS were of regulatory concern, but was not delaying action on that basis. Finally, EPA found that the levels of organics did not affect the mobility of metals in iron and steel LNWPLS and that organic toxicants were not found at levels of regulatory concern.⁵³

The primary lesson of the LNWPLS delisting is that EPA's desire to seek information on constituents other than those for which the waste was originally listed can be the cause of long and costly delays in the delisting process. EPA had data demonstrating that nickel was present in stainless steel LNWPLS; however, it did not have information that indicated that it existed at levels of regulatory concern. The Agency delayed final action on the stainless steel portion of the petition for years while it "evaluated" the data; moreover, it also refused to act on the carbon steel portion of the petition, even though all available data showed that carbon steel contains only trace amounts of nickel. If the industry had not filed suit, EPA might still be evaluating the data.

Will the RCRA Amendments and EPA Policy Changes Resolve the Delisting Deadlock?

The RCRA delisting amendments mandate two significant [14 ELR 10379] changes in the delisting process. First, before delisting a waste, EPA will have to consider factors ther than those for which the waste was originally listed as hazardous if the Agency has a "reasonable" basis to believe that such additional factors would make the waste hazardous.Second, the amendments establish a deadline by which EPA must take final action on delisting petitions. There is a superficial balance to the two changes — one protecting against unwarranted delisting, the other protecting against procedural delays that could block warranted delisting. The appearance is illusory, however. The new pressures for thoroughness are likely to overwhelm the new requirements of timely action. It is possible that the regulated community will never be able to obtain a delisting without a lawsuit.⁵⁴

The "additional factors" language reads as follows:

When evaluating a petition to exclude a waste generated at a particular facility from listing under this section, the Administrator shall consider factors (including additional constituents) other than those for which the waste was listed if the Administrator has a reasonable basis to believe that such additional factors could cause the waste to be a hazardous waste. The Administrator shall provide notice and opportunity for comment on these additional factors before granting or denying such petition.⁵⁵

This amendment is designed to correct a perceived loophole in the present EPA regulations, that a waste could be delisted even if evidence existed that the waste was hazardous for reasons other than those for which it was listed. This problem is discussed in the Report of the Energy and Commerce Committee on the House amendment:

EPA's delisting regulations do not fully address the fact that wastes are frequently composed of numerous hazardous constituents. In some instances, because listing is a general screening process, EPA may not have taken all the hazardous constituents in a waste into consideration when the waste was originally listed. It may be apparent in evaluating a petition, or based on subsequently developed data, however, that the petitioner's waste may contain significant levels of hazardous constituents in addition to those for which the waste was originally listed. Although EPA has authority under RCRA to reject a delisting petition based on the presence of these additional constituents, EPA's regulations currently do not allow the agency to do so. This is not merely a potential danger; it historically has resulted in some wastes which are still hazardous being exempted from the hazardous waste lists and consequently from all RCRA regulation.

Under this amendment, there would no longer be a risk that delisting a waste means releasing waste which may still be hazardous from regulation. The amendment expressly directs EPA to consider additional constitutens or other relevant factors when evaluating a delisting petition. If the Agency has a reasonable basis to believe that there are additional hazardous constituents present in the waste in potentially significant concentrations, it can present the basis for its finding and ask the petitioners to demonstrate that this is not the case. After allowing an opportunity for comment by the petitioner and other interested persons, EPA can grant or deny a delisting petition (including petitions or temporary delisting) based not only on the original constituents but on any additional hazardous constituent present in significant concentrations.⁵⁶

Congress' fear that EPA would delist a facility's waste because it did not meet the criteria for which it was listed when EPA knew some other factor made the waste hazardous has a weak foundation. The above quote makes reference to historical occurrences of this phenomenon. EPA acted on so few delisting petitions that even one or two mistakes would be a significant percentage of the actions. But this problem pales in comparison to EPA's inability to act at all on 99 percent of the delisting petitions filed to date. Nonetheless, Congress has instructed EPA to be even more cautious in deciding whether to grant a delisting petition.

The impact of the RCRA delisting amendment will be to impose on EPA the responsibility to determine that there is no reasonable basis to believe that the waste is hazardous for any reason before it can delist the waste. In order to satisfy reviewing courts, EPA may need data in the record which demonstate that the waste is not hazardous for any reason, not just data which indicate that the waste is not hazardous for the reasons it was listed.

In order to meet this new responsibility, EPA will have to request significantly more information from delisting petitioners. In the expectation that the RCRA amendments would pass before the close of the 98th Congress, EPA began implementing its new policy. On February 8, 1984, EPA published a notice of intent to request additional information in processing delisting petitions.⁵⁷ EPA indicated that it will seek the following general types of information in addition to what is already required:

A complete list of raw materials, intermediates, by-products, and products used in the manufacturing process (grouped by sub-process);

A description and schematic diagram of each process which may contribute waste to the waste stream petitioned for exclusion;

Testing of representative waste samples for total oil and grease and total organic carbon (TOC);

Testing of representative waste samples for all of the Extraction Procedure (EP) toxic metals listed in table 1 of 40 C.F.R. § 261.24, nickel, and cyanide (total and free) for bulk analysis using a complete digestion procedure; and

Testing of representative waste samples for all of the EPA toxic metals listed in Table 1 of 40 C.F.R. § 261.24, nickel, and cyanide (both total and free) using an appropriate leachate procedure.⁵⁸

Moreover, EPA indicated that it reserves the right to seek additional test data if necessary after reviewing the information submitted pursuant to this request.⁵⁹

It will be expensive in terms of both time and money for a company or industry to develop all this information. More significantly, the costs and efforts involved in meeting the new burden of proof could be overwhelming. Instead of proving that its waste does not have the specified problems identified by EPA, it is almost as though [14 ELR 10380] the petitioner must prove the negative, i.e. that its waste will have no adverse public health or environmental effects. Petitioners would find themselves in the unenviable position of one wrongly found guilty of one crime, who after being proved innocent, cannot get out of jail without proving that he did not commit any other crime.

The shift in the burden of proving wastes nonhazardous treats unfairly facilities whose wastes were listed erroneously, in comparison to facilities whose wastes never have been listed. The former bear a burden of proof and costs far heavier than the latter. Facilities whose wastes are not on the list must simply demonstrate to their own satisfaction, and if requested, to EPA's, that the wastes do not exhibit any of the four named characteristics.⁶⁰ However, facilities that have listed wastes that are not hazardous for the reasons EPA listed them, and whose wastes also do not exhibit any of the four designated characteristics, will be required to demonstrate that their waste is not hazardous for any other reasons. This might make sense if the original listing process was reasonably comprehensive and accurate, but it was not.

Thus, these listed wastes will be regulated for what may be speculative reasons while EPA is collecting and reviewing data. These facilities will not have notice and the opportunity to comment on any "additional factors" whose consideration will delay action until EPA formally acts on the delisting petition. In most cases, this opportunity has never arisen. These facilities will continue to pay the high cost of compliance with hazardous waste regulation while EPA conducts its exhaustive investigations. This extreme procedural bias against delisting strains the spirit if not the letter of due process.

The RCRA amendments will only encourage further delays. EPA's plans to obtain a great deal of additional data alone will extend the process. It will take time to assemble this data, time for EPA to examine the data to determine if yet more information is necessary, time to obtain any extra data, and even more time for EPA to evaluate the additional information.

Perhaps the greatest obstacle to expeditious action on delisting petitions will be EPA's caution. In the past, EPA has been reluctant to grant delisting petitions, in part at least because of the negative public perception associated with removing a waste from classification as hazardous, and therefore from the control of the hazardous waste management program. The new amendments will only reinforce any EPA proclivity towards delay, because EPA will be reluctant to go on record as deciding that there is no "reasonable basis to believe" that a waste is hazardous.

Additional delays in a process already marked by months and years of waiting may effectively preclude any delisting of hazardous waste. "Waiting for Godot" will seem brief and acceptable compared with waiting for a decision on a delisting petition.

Given the new obstacles, the cost of delisting, especially to small companies, could become prohibitive. For such companies, the delisting option will become meaningless. These companies will continue to be required to treat their wastes as hazardous, putting unnecessary pressure on scarce disposal resources. In the alternative, some of these companies, believing their wastes are not hazardous, may decide to handle them as nonhazardous, gambling that they will not be the target of federal or state enforcement action and that if an action is brought, the penalties would be low. However, EPA is initiating enforcement actions for minor violations against facilities that have petitions pending even though the agency has failed to act, in some cases for more than three years, on their delisting petitions.

The primary check on further paralyzing delays in the delisting process will be the deadlines within which EPA must decide delisting petitions. The amendment provides:

(2)(A) To the maximum extent practicable the Administrator shall publish in the Federal Register a proposal to grant or deny a petition referred to in paragraph (1) within 12 months after receiving a complete application to exclude a waste generated at a particular facility from being regulated as a hazardous waste and shall grant or deny such a petition within 24 months after receiving a complete application.⁶¹

The deadline theoretically could prevent unreasonable EPA delays. But, even with these deadlines, the transaction costs of the additional information requirements imposed by EPA will continue to cripple the delisting process. EPA has not been able to act in a timely fashion even with the relatively minimal information requirements previously in effect. Under the new scheme, the time it will take EPA to request, review and evaluate the additional information could increase exponentially.

If delays in the handling of delisting petitions continue or increase, the only recourse left to a company or industry will be judicial action to compel EPA to decide a delisting petition within the deadlines established by the amendments.⁶² Such an option will be unavailable to some companies because of the high costs of litigation.Even if a company or industry were to litigate and prevail, more time will have been consumed and EPA may well be given even more time to decide the petition. The deadlines thus are unlikely to speed appreciably the delisting process.

The companies that believe their wastes have been erroneously listed as hazardous by EPA may have obtained no relief from the RCRA amendments, and in fact may be facing even tougher obstacles in their efforts to be free of unwarranted regulation. The practical effect will not be improved protection of the public from threats to the environment; but rather increased costs of compliance both to the facility and to the public because nonhazardous waste will be treated as hazardous, further exacerbating the shortage of safe disposal capacity.

[14 ELR 10381]

What is the solution? Increasing EPA's data-gathering responsibilities without increasing the personnel to handle them is not the answer. EPA must streamline its delisting procedures and develop a manageable policy for determining how much information it must have before it can safely say that it has no "reasonable basis to believe that … additional factors could cause the waste to be a hazardous waste."

Authors' Postscript

On October 23, 1984, EPA proposed to exclude solid waste generated at eight individual hazardous waste facilities. 49 Fed. Reg. 42580. These proposed exclusions apply the narrow delisting standard that EPA appeared to have abandoned months ago: "[t]o be excluded, petitioners must show that the waste generated at their facility does not meet any of the criteria under which the waste was listed." Id. at 42581. The use of this benchmark appears to contravene EPA's February 8, 1984 notice. However, in a footnote to the October 23 notice, id., n. 2, EPA indicated that once RCRA Amendments pass or when the Agency independently amends its delisting procedures, it will "consider all criteria, constituents, or other related factors before making a decision (see 49 FR 4802, February 8, 1984)." Moreover, relief granted under the old standard may be temporary. In proposing to grant a petition for the Chrysler Corporation's Fenton, Missouri plant, EPA, While proposing to grant the exclusion, specifically indicated that it will reconsider this decision to exclude the waste immediately upon the occurrence of either eventuality. 40 Fed. Reg. 42581, 42588 (Oct. 23, 1984).

A second aspect of this noice of interest is that EPA decided not to grant temporary exclusions to these petitioners, but instead to engagein notice and comment rulemaking before granting any relief. This may indicate that EPA will decline to grant any relief, interim or final, to delisting petitioners until full notice and comment rulemaking is completed, despite the fact that a House provision requiring these procedures was dropped in conference.

1. 42 U.S.C. §§ 9601-9687, ELR STAT. 41901.

2. The definition of "solid waste" is found at 40 C.F.R. § 261.2 ELR REG. 47322. EPA proposed sweeping changes to the definition of solid waste on April 4, 1983, 48 Fed. Reg. 14472 (Apr. 4, 1983), and expects the final definition to be promulgated in early 1985.

3. 40 C.F.R. §§ 261.30-261.33, ELR REG. 47326:1.

4. 40 C.F.R. pt. 261, app. VII.

5. 40 C.F.R. § 261.20, ELR REG. 47326. See 40 C.F.R. §§ 261.21-261.24, ELR REG. 47326, for an explanation of the properties of a waste that must be present for it to exhibit these characteristics.

6. See 45 Fed. Reg. 33084, 33113, 33114 (May 19, 1980).

7. 40 C.F.R. §§ 260.20, 260.22, ELR REG. 47308, 47309.

8. EPA periodically publishes lists of all petitions filed with it under 40 C.F.R. §§ 260.20, 260.21, and 260.22. These include delisting and exclusion petitions. Each list covers those petitions filed since publication of the preceding list. See 46 Fed. Reg. 59537 (Dec. 7, 1981); 47 Fed. Reg. 9007 (Mar. 3, 1982); 47 Fed. Reg. 36162 (Aug. 19, 1982); 48 Fed. Reg. 8278 (Feb. 28, 1983); 49 Fed. Reg. 32766 (Aug. 16, 1984).

9. Specialty Steel Industry of the United States v. U.S. Environmental Protection Agency, No. 83-3438 (D.D.C. voluntarily dismissed with prejudice August 13, 1984); see 49 Fed. Reg. 23284 (June 5, 1984).

10. H.R. 2867, 98th Cong., 2d Sess., 130 CONG. REC. H11112 (passed October 5, 1984). The full bill and conference report are found in 130 CONG. REC. H11103-41. The President is expected to sign the amendments into law, but had not done so as of the date of this writing.

11. Id. at H11112.

12. Id. Prior to these amendments, EPA was required to delist a waste if a petitioner demonstrated that the waste was not hazardous for the reasons it was listed. Section 260.22(a), ELR REG. 47309, states "Any person seeking to exclude a waste at a particular generating facility from the lists in Subpart D of Part 261 [ELR REG. 47326:1] may petition for a regulatory amendment under this section and § 260.20 [ELR REG. 47308]. To be successful, the petitioner must demonstrate to the satisfaction of the Administrator that the waste produced by a particular generating facility does not meet any of the criteria under which the waste was listed as a hazardous waste…." 40 C.F.R. § 260.22(a), ELR REG. 47309. Obviously, if EPA determined that the waste was hazardous for other reasons, it could have listed the waste for the new reason after notice and an opportunity for comment on this additional factor, in effect denying the petition for delisting. EPA, however, did not take the position that the petitioner must prove that its waste was not hazardous for any reason before it could be delisted.

13. 49 Fed. Reg. 4802 (Feb. 8, 1984).

14. 42 U.S.C. § 6921(b), ELR STAT. 41908.

15. 42 U.S.C. § 6921(a), ELR STAT. 41908.

16. 42 U.S.C. § 6921(b), ELR STAT. 41908.

17. 42 U.S.C. § 6974(a), ELR STAT. 41922.

18. Id.

19. H.R. REP. NO. 1491, 94th Cong., 2d Sess. 24 (1976), reprinted in 1976 U.S. CODE CONG. & AD. NEWS 6262.

20. Id. at 25.

21. Id. at 26.

22. 40 C.F.R. §§ 260.20, 260.22, ELR REG. 47308.

23. 40 C.F.R. § 260.20(a), ELR REG. 47308.

24. 40 C.F.R. § 260.20(c), ELR REG. 47308.

25. 40 C.F.R. § 260.20(d), ELR REG. 47308.

26. 40 C.F.R. § 260.22(a), ELR REG. 47309. See supra note 13. By its terms, § 260.22 applies only to rulemaking petitions filed for particular generating facilities, not to industry-wide delisting petitions. Section 260.20, the general rulemaking petition section, does not specify the standard of review that EPA should use to evaluate an industry-wide exclusion petition.

EPA's policy has been to evaluate industry-wide petitions under the same standard as delisting petitions for individual facilities. In a number of cases, EPA has used this standard to exclude wastes from entire industries from classification as hazardous because a reevaluation of the properties of an entire industry's wastes demonstrated that the wastes did not meet the criteria for which they were listed as hazardous. See 45 Fed. Reg. 72029 (Oct. 30, 1980) (exclusion of wastewater treatment sludges from titanium dioxide (TiO2) production by the chloride process (KO74); 45 Fed. Reg. 72037-38 (Oct. 30, 1980) (exclusion of numerous leather tanning wastes). As long as there is a standard industry-wide practice for treating a particular waste and no great difference in treatment process among facilities, the § 260.22(a) standard should be used to evaluate industry-wide petitions.

27. 40 C.F.R. § 260.22(c), ELR REG. 47309.

28. 40 C.F.R. § 260.22(d)(1), ELR REG. 47308. Taken literally, this standard for delisting a toxic waste is too narrow. While a waste listed for a particular toxic constituent might contain that constituent, the constituent might be present at levels that would present no hazard to human health or the environment. Moreover, the nature of the waste could be such that the constituent is immobile and will not leach from the waste even under mismanagement conditions. EPA has recognized this and has interpreted its regulations broadly. In a February 8, 1984 notice, EPA stated that the current regulations mandate that a petitioner show that the toxic constituents are not present or that they exist in "an immobile form or at levels below those of regulatory concern." 49 Fed. Reg. 4803 (Feb. 8, 1984). Presumably, for most "toxic" constituents, the "level of regulatory concern" is that expressed in Table 1 (Maximum Concentration of Contaminants for Characteristic of EP Toxicity) of 40 C.F.R. § 261.24, ELR REG. 47326:1.

29. 40 C.F.R. §§ 260.22(d)(2), 261.11(a)(3), ELR REG. 47309, 47325-26.

30. 40 C.F.R. § 260.22(h), ELR REG. 27309.

31. 40 C.F.R. § 260.22(i), ELR REG. 47309.

32. 40 C.F.R. § 260.22(j), ELR REG. 47309.

33. These figures are based on a review of the EPA lists of RCRA petitions. See supra note 8.

34. Id.

35. On March 9, 1981 the American Iron and Steel Institute filed an industry-wide petition for the exclusion of lime stabilized waste pickle liquor sludge ("LSWPLS") generated by the iron and steel industry. The history of the rulemaking involving this petition is summarized and analyzed below.

36. 40 C.F.R. § 260.22(m).

37. See supra note 8.

38. The final RCRA amendments, however, do provide that

(B) The temporary granting of such a petition prior to the enactment of the Hazardous and Solid Waste Amendments of 1984 without the opportunity for public comment and the full consideration of such comments shall not continue for more than 24 months after the date of enactment of the Hazardous and Solid Waste Amendments of 1984. If a final decision to grant or deny such a petition has not been promulgated after notice and opportunity for public comment within the time limit prescribed by the preceding sentence, any such temporary granting of such petition shall cease to be in effect.

H.R. 2867, 98th Cong., 2d Sess., 130 CONG. REC. H11112-13. Presumably, because Congress did not include a ban on temporary delisting in the final bill, EPA may continue to grant temporary delistings so long as the final decision to grant or deny the petition is made within 24 months of the date of filing.

39. See W. DRAYTON, AMERICA'S TOXIC PROTECTION GAP 49-57 (1984) for one assessment of the need for more staff in EPA's RCRA office, and for the listing of additional hazardous wastes.

40. 45 Fed. Reg. 33084, 33124 (May 19, 1980).

41. 45 Fed. Reg. at 33132 (May 19, 1980).

42. See U.S. ENVIRONMENTAL PROTECTION AGENCY, OFFICE OF SOLID WASTE, LISTING BACKGROUND DOCUMENT, STEEL FINISHING: SLUDGE FROM LIME TREATMENT OF SPENT PICKLE LIQUOR 774.

43. 45 Fed. Reg. 74884, 74888 (Nov. 12, 1980).

44. See 45 Fed. Reg. at 74888 (Nov. 12, 1980); 40 C.F.R. § 261.3(c)(2).

45. 40 C.F.R. pt. 261, app. VII.

46. 45 Fed. Reg. at 74888 (Nov. 12, 1980).

47. 40 C.F.R. § 261.24, Table 1, ELR REG. 47326:1.

48. Letter from John P. Lehman, Director, Hazardous & Industrial Waste Division, U.S. Environmental Protection Agency to Earle F. Young, Jr., Vice President, Energy & Environment, AISI (Oct. 27, 1981). The reference to LNWPLS throughout this article is to "lime neutralized waste pickle liquor sludge." In its final rule, EPA decided that this waste was better characterized as "lime stabilized waste pickle liquor sludge" — LSWPLS.

49. Id.

50. See supra note 9.

51. 49 Fed. Reg. 23284 (June 5, 1984).

52. Id. EPA asserted that all RCRA regulations should be subject to a six-month delay before becoming effective until the RCRA amendments were passed, which explicitly authorized shorter periods for effective dates. We believe that this six-month delay did not apply to RCRA actions that were deregulatory in nature.

53. Id. See also 49 Fed. Reg. 427 (Jan. 3, 1984).

54. It is generally not possible for individual facilities to convince EPA to remove the waste from the list because those facilities do not have data on the entire industry. Their only recourse is the individual facility delisting process. Moreover, the steel industry LNWPLS delisting experience suggests that EPA would have difficulty meeting the two-year deadline for industry-wide waste petitions without considering additional factors.

55. H.R. 2867, 98th Cong., 2d Sess; 130 CONG. REC. H11112 (1984).

56. H. REP. NO. 198, Part 1, 98th Cong., 1st Sess. 57 (1983).

57. 49 Fed. Reg. 4802 (Feb. 8, 1984).

58. Id. at 4803.

59. Id.

60. See supra note 5.

61. H.R. 2867, 98th Cong., 2d Sess., 130 CONG. REC. H11112. Presumably, the language "to the maximum extent practicable" applies only to the 12-month deadline for proposals and not to the 24-month deadline for final decisions. Otherwise, these deadlines would be useless to the regulated community.

62. Prior to the new statutory deadline, petitioners had to rely on § 7004(a) of RCRA, which reads in relevant part: "Within a reasonable time following receipt of such petition, the Administrator shall take action with respect to such petition and shall publish notice of such action in the FEDERAL REGISTER together with the reasons thereof." 42 U.S.C. § 6974(a), ELR STAT. 41922. Thus, petitioners were at the mercy of a court's opinion as to what constituted "unreasonable delay." This provision partially formed the basis for the complaint in Specialty Steel Industry of the United States v. U.S. Environmental Protection Agency. This case and additional authorities are discussed in detail above. Now petitioners can bring an action to compel Agency action on a delisting petition if the Agency fails to decide the petition within 24 months of filing.