In a RCRA criminal enforcement case, the Rhode Island federal District Court denied the defendant’s motion for acquittal on charges that it illegally stored mercury without a permit, even though the amount stored was less than would have been actionable under federal regulations.
Defendant Southern Union Co. was found guilty by a jury of storing hazardous waste without a permit in violation of 42 U.S.C. § 6928(d)(2), part of RCRA (the federal Resource Conservation and Recovery Act). Although the opinion does not specify how much hazardous waste it stored (in this case, mercury), apparently all sides agreed the amount was less than 1,000 kilograms. This made the defendant a “Small Quantity Generator,” and therefore eligible for a conditional exemption from permitting requirements, the “conditional exemption for small quantity generators” or “CESQG.”
But U.S. EPA had given Rhode Island the authorization to administer its own hazardous waste management program. A state may do so under RCRA if the regulations under its state program are “equivalent to” and “consistent with” RCRA regulations, and even if they are “more stringent.” A state may not, however, impose regulations that are “broader in scope” than RCRA regulations under an EPA-authorized program.
Rhode Island’s program did not recognize any CESQG. In other words, in Rhode Island, all hazardous waste storage requires a permit. And when EPA approved Rhode Island’s program, it noted that Rhode Island’s rules – because they were approved by EPA under RCRA – are “federally enforceable.”
After it was found guilty by the jury for illegal storage (but acquitted by the same jury on two other counts of the indictment), defendant moved for acquittal. It argued that Rhode Island’s regulations were “broader in scope” than RCRA’s regs because the state’s regulations covered all hazardous waste generators, not just large quantity generators. As such, the regs could not have been properly authorized by EPA and were not enforceable.
The District Court denied the motion. In classic deference-to-agency language, it held that “EPA has the inherent authority –subject of course to the APA — to make determinations as to whether a state program submitted to the EPA for approval is more stringent, or seeks to regulate in areas that are beyond the federal program’s scope of coverage.”
This is true even though EPA apparently determined that California’s and the District of Columbia’s similar treatment of small quantity generators amounted to regulation that was “broader in scope” than RCRA, and therefore not permitted. The District Court described EPA’s actions with respect to the various states as a policy that evolved over time, although “in a less than perfectly seamless fashion,” and not fatally arbitrary.
The lesson to be learned from this decision is that EPA’s approval of state regulations under RCRA will likely not be overturned by a court – even if the line between “more stringent” and “broader in scope” is not so easily drawn.
The decision is U.S. v. S. Union Co., 2009 U.S. Dist. LEXIS 63619 (D.R.I. July 23, 2009), also available at http://www.rid.uscourts.gov/opinions/smith/07222009_1-07CR0134S_USA_V_SOUTHERN_UNION_COMPANY_P.pdf.
Both Pennsylvania and New Jersey have received approval from EPA to adminster their own hazardous waste programs. See 51 Fed. Reg. 1,791 (Jan. 15, 1986) (Pennsylvania) and 53 Fed. Reg. 30,054 (Aug. 10, 1988) (New Jersey). Unlike Rhode Island, neither state has eliminated preferential treatment of CESQGs. See, e.g., 27 Pa. Bull. 237, 239 (Jan. 11, 1997) and 28 N.J.R. 1693(a) (April 1, 1996). No foolin’.
