Crucial regulations to control dumping of hazardous wastes, which were under federal court order to come out today, have been delayed yet again by an interagency battle that goes to the heart of the regulatory reform debate.
The Environmental Protection Agency announced that regulations for the Resource Conservation and Recovery Act of 1976 (RCRA) have been held up at the Office of Management and Budget and will be issued soon on an "interim permanent" basis, possibly next week.
The complex rules have been the subject of intense lobbying, generating what one EPA official called the biggest pile of comment papers he ever has seen: nearly seven feet tall.
They affect every business that produces any kind of toxic residues and are the EPA's main effort to control an estimated 57 million tons of the stuff that industry puts out every year. That is more than the combined weight of all the automobiles now on U.S. roads.
The rules, 14 sections of them, were under federal court order to be issued by April 1. The EPA had scheduled a giant press spectacular for the announcement at the awesome Chemical Control Corp. waste dump in Elizabeth, N.J., which often had been described as a disaster waiting to happen.
The disaster happened last week. The five-deep stacks of metal drums blew sky-high in a spectacular fire, leaving a toxic miasma that caused the EPA to cancel the Elizabeth visit late yesterday. The island where the dump lies is closed to the public while technicians in protective clothing work to defense the remaining barrels.
But the EPA still hoped to get the regulations out on time. Officials who had been working late for weeks submitted their work to the OMB on March 19. Under the Federal Reports Act of 1942, the OMB must approve any additional forms that an executive agency requires members of the public to fill out, deciding in 3,000 cases a year whether the time required is worth the trouble.
The OMB isn't convinced that the new EPA regulations are worth the additional 5.2 million hours of industry time the EPA admits they will take. a
"We may well complete the review and conclude that the EPA did a magnificent job in cutting these regs down to the bare bones," said an OMB official. "But we haven't got enough information yet to know." He said there was a 65 to 70 percent chance the regulations would remain as they are.
But another OMB source said the regulations are substantially different than the ones proposed in 1978, and require far more recordkeeping on the part of the waste-generating companies. "We can be sued by people subject to these regs if we haven't followed procedures to be sure the costs and benefits have been adequately analyzed," he said.
He cited a suit by Shell Oil and Mobil Oil Co. last year charging the Department of Energy with "arbitrary and capricious" issuance of regulations which had more hearings behind them than the current EPA offering. "If we went today on the basis of what we have now, we'd be challenged and probably overturned," he said.
EPA officials, however, are less certain that the delay is meant to be helpful. "We're hoping the review will end up closer to the original than we fear it may," said one high-ranking bureaucrat. "We're concerned that some teeth in the regs may be dulled, but we'll wait and see."
Officially, EPA spokesman Marlin Fitzwater said the agency would notify U.S. District Court Judge Gerhardt Gesell that although the EPA had done its work, the OMB had asked for more time. "The delay should not have any real impact on the program," he said.
Gesell set the deadline last December after the Environmental Defense Fund sued the EPA for what it called unreasonable delay in promulgating the regulations. Yesterday, Dave Lennett of the Environmental Defense Fund said it might seek further court action on this additional delay. "There is an issue to resolve as to whether OMB has the authority to substantively change federal requirements," he said.
Marchant Wentworth, who handles toxic-waste issues for Environmental Action, another ecology-oriented group, said the OMB's announced reasons for delay were weak ones. "The additional time requirements are minor compared to the effect of further delay," he said.
The regulations now are expected to be published next week, with industry given a 15-day comment period after that. The OMB then has 30 days to complete its review, with final results to be announced in mid-June.
That still would allow enough time for the necessary forms to be printed and the procedures implemented by Oct. 1, six months from today, which is the date specified for implementation by Judge Gesell's order.