state permit certification requirements examined

State Permit Certification Requirements Examined

I I A

John M. Smith

Nearly all of the myriad federal environmental statutes that have been passed have included waivers of sovereign immunity. In order for federal practitioners to understand the nature of these waivers, and how extensive they are, it is important to understand the histoy of waivers by viewing them through the Supreme Court’s interpretation of what is required for Congress to yield federal control to the states with respect to federal facilities.

One area in which further exploration is necessa y is states requiring professional engineers or registered engineers to certih permit applications or closure plans in accordance with state permit laws and regulations, in environ- mentalfields as these laws and regulations apply to federal facilities. This issue isfurther complicated when the program has been given delegated authority by EPA. What is the effect of a program that has not been approved by EPA but still regulates an environmental area that will have a significant effect on a federal facility with respect to this same requirement?

The United States Supreme Court’s first pronouncement in the area of permit requirements established by states with respect to federal installations was Hancock v. Train, 426 U.S. 167 (1976). There, Kentucky sued to require that federal installations within its jurisdiction be compelled to obtain a state operating permit so that the state implementation plan could be approved by EPA. The Clean Air Act of 1970 was interpreted by the Court as requiring federal installations to ”comply with established air pollution control and abatement measures.” It is important to note that the existing portion of Section 118 of the Clean Air Act did not specifically require that permits be obtained.’ After reviewing the legislative history of the 1970 Clean Air Act with respect to Section 118, the Court noted that the ”House bill spoke of ’emission standards,”’and observed that the Senate commentary appeared to have ”the inter- changeable use of ’emissions standards’ and ’emission requirements’ in the Senate amendment.” This led the Court to conclude that Congress, when enacting the legislation, ”intended only that federal installations comply with emissions standards and compliance schedules. . . .” The Court went to great length to point out that Section 118 failed to “provide that federal installations ’shall comply with all requirements of the applicable State implementation plan”’ (emphasis in original).

Major John M. Smith is an active-duty Judge Advocate with the United States Air Force stationed in Arlington, Virginia. The opinions expressed in this article are thoseof the author and do not reflect any oficial position on the part of the United States Government, Defense Department, or any instrumentality thereof.

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The Court noted the confusion created in the Clean Water A c t by the use of the term requirements . ” N

In a companion case issued the same day, the Court came to the same conclusion with respect to the Clean Water Act. In EPA v. California, ex rel. State Water Resources Control Board, 426 U.S. 200 (1976), the Court analyzed “whether federal installations discharging water pollutants in a State with a federally approved permit program are to secure their permits from the State, or from the Environmental Protection Agency (EPA).” At the time, EPA approved California’s National Pollution Discharge Elimination System (NPDES) Program,2 but it did not give California the ability to grant state NPDES permits to federal facilities.

The Court analyzed the differences between the Clean Air Act and the Clean Water Act and noted significant differences. Specifically, it stated that “a State is not required to develop a NPDES permit program, and until a State does develop a permit program all dischargers in the State are subject to a permit program carried out by the EPA” (emphasis in original). Once again, the Court noted the confusion created in the Clean Water Act by the use of the term ”requirements,” and concluded the opinion by saying that ”[slhould it be the intent of Congress to have the EPA approve a state NPDES program regulating federal as well as nonfederal point sources and suspend issuance of NPDES permits as to all point sources discharging into the navigable waters subject to the State’s program, it may legislate to make that intention manifest.”

RECENT SUPREME COURT GUIDANCE The Supreme Court’s most recent pronouncement on this issue is still

United States Dept. ofEnergy v. Ohio, 112 S. Ct. 1627 (1992).The sole issue in DOE v. Ohio was ”whether Congress has waived the National Government’s sovereign immunity from liability for civil fines imposed for past failure to comply with the CWA, RCRA, or state law supplanting the federal regulation.”The Court held that the federal government was not liable for the fines. The Court did find that the government should comply with substantive requirements and further stated, ”’all . . . requirements can reasonably be interpreted as including substantive standards and the means for implementing those standards, but exclud- ing punitive measure^."'^ Importantly, the Court observed, at least with respect to RCRA,’ the following:

We have already observed that substantive requirements can be enforced either punitively or coercively, and the Tenth Circuit’s understanding that Congress intended the latter finds strong support in the textual indications of the kinds of requirements meant to bind the Government. Significantly, all of them refer either to mechanisms requiring review for substantive compliance (permit and reporting requirements) or to mechanisms for enforcing substantive compliance in the future (injunctive relief and sanctions to enforce it). In stark contrast, the statute makes no mention of any mechanism for penalizing past violations, and this absence of any example of punitive fines is powerful evidence that Congress had no intent to subject the United States to an

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The government conceded up front that it was required to obtain permits from the state of Ohio for the operation of the Fernald facility.

enforcement mechanism that could deplete the federal fisc regardless of a responsible officer's willingness and capacity to comply in the future.

The drafters' silence on the subject of punitive sanctions becomes virtually audible after one reads the provision's final sentence, waiving immunity "from any process or sanction of any State or FederalCourtwithrespect to the enforcement of any suchinjunctive relief." The fact that the drafter's only specific reference to an enforcement mechanism described "sanction" as a coercive means of injunctive enforcement bars any inference that a waiver of immunity from "requirements" somehow unquestionably extends to punitive fines that are never so much as mentioned.

It is significant to note that in defending this case, the government conceded up front that it was required to obtain permits from the state of Ohio for the operation of the Fernald facility.

In reaction to DOE v. Ohio, Congress passed the Federal Facility Compliance Act of 1992:which substantially changed the ground rules and subjected federal installations to far more control by state and local environmental regulations than ever before in the area of solid waste disposal.6This statute requires compliance with all state and local requirements. There is a comparable statute in the Comprehensive Envi- ronmental Response, Compensation and Liability Act (CERCLA)? Ad- ditionally, the waivers of sovereign immunity contained in the Clean Water Act,"and the Underground Storage Tank Program,'which were passed prior to the announcement of DOE v. Ohio by the Supreme Court, contained language directing compliance with all state requirements, including permits, among others, by federal facilities.

The Clean Air Act is a comprehensive federal statute designed to "protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare"'Oin the United States. With the passage of the 1990 Clean Air Act Amendments,"a new federally enforceable state permit program was introduced throughout the nation,'* and EPA was required to promulgate regulations that implemented the permit pr~gram.'~Also included within the CAA is a ~ection'~ which provided for a waiver of sovereign immunity for federal facilities. The existing waiver of sovereign immunity, at least with respect to facilities, has remained the same since the 1977law. The changes affected only government vehicles and vehicles operated on federal installations.I5Like the statutes dealing with solid waste, water pollution, and underground storage tanks, the CAA requires compliance with all state requirements, including permits.

Another substantial change made under the 1990 Amendments was for an expansion of the hazardous air pollutants (HAPs) that were subject to regulation. The 1990 Amendments established an initial list of 186 pollutants subject to regu1ation"as HAPs and provided authority for the Administrator of EPA to add more regulated pollutants if neces- sary."This section also includes provisions for the delegation of EPA's

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authority to the states for programs that regulate HAPsI8and has been supplemented by regulations that specify the requirements that state programs must meet in order for a state to be delegated authority to act in this area. There is a statutory requirement that all major sources obtain permits once a permit program (either state or federal) is in place.”The most significant definition in this section is a ”major source” for HAPS, which is ”any stationary source or group of stationary sources located within a contiguous area under common control that emits or has the potential to emit considering controls, in the aggregate 10 tons per year or more of a hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants.’’20

EPA has delegated to the states authority to enforce federally approved programs in the areas of hazardous waste? water pollution permitting,”and air pollution programs, and in the area of underground storage t ank~ .~~The next program that is likely to have such breadth is the air pollution permitting program under Subchapter V”of the Clean Air Act, which provides the states with the opportunity to create their own state permitting program for certain sources. Some of these programs in which a state has, or is seeking, delegated authority will affect the way federal facilities conduct their business with respect to complying with the authority that has been delegated to the state by virtue of these laws.25

One area will be in who can perform functions when filing documentation with the states. Arizona, which has an approved and delegated program in the area of hazardous waste, requires that in order to issue a release from liability for a closed solid waste facility, there be a ”certification by a registered professional engineer or other environmental professional deemed acceptable by the director that the specific activities of closure or postclosure have been completed in accordance with the approved facility plan and placed in the operating record of the facility plan.”26 Another illustration of this problem is New Jersey’s as- yet-unapproved Underground Storage Tank Program, which would require that a ”New Jersey licensed professional engineer” sign the documentation that relates to filing of permits for closure and operation of underground storage tanks in that state. For example, the state requires that a New Jersey licensed professional engineer certify that a tank needs to be abandoned in place.”At a federal facility, what is the manager to do if there is no New Jersey professional engineer on staff to comply with this regulation? There is perilously little guidance in this area, and the case law that has been generated in this area has revolved around the payment of fees and fines to state agencies.

There is a statuto y requirement that all major sources obtain permits once a permit program is in place.

APPLICATION OF STATE LAW REQUIREMENTS One of the most important cases dealing with the applicability of

requirements to federal facilities is McClelIan Ecological Seepage Situation (MESS) v. Weinberger, 707 F. Supp. 1182 (E.D. Cal. 1988), in which McClellan Air Force Base, California, was sued by a citizens organization to compel compliance with RCRA and the Clean Water Act. In particular, the plaintiffs alleged that the base’s ”generation, treatment, and disposal

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Citizens would only be able to obtain injunctive relief wi th a valid state program approved pursuant to RCRA.

of wastes are in conflict with RCRA, . . . provisions of the California Health and Safety Code, . . . [and] provisions of the California Fish and Game Code.”The action was brought under the applicable citizens suit provisions for RCRA and the CWA.**

The court inMESS held that the citizens would only be able to obtain injunctive relief with a valid state program approved pursuant to RCRA. Specifically, the court found that “section 7002 of RCRA limits citizen suits to alleged violations of ’any permit, standard, regulation, condi- tion, requirement, prohibition, or order which has become effective pursuant to [RCRA].”’It found that ”EPA may grant final authorization to state hazardous waste programs that: (1) are equivalent to the federal hazardous waste program; (2) are consistent with the federal program and other state programs that have received final authorization; and (3) provide adequate enforcement,” and that the California program’s authorization had expired. The court held that a program with no authorization or an expired authorization would mean that the ”state’s hazardous waste laws are not even arguably ’effective pursuant to [RCRA].”’ The court also observed that Section 6001 is a waiver of sovereign immunity with respect to certain substantive and procedural requirements that have independent existence outside of section 6001. The MESS court noted that, ”Indeed, Counts 6,8,9,10, and 11 do not allege violations of Section 6001; rather, they allege violations of state solid waste laws. It is these laws that must have become effective pursuant to RCRA for this Court to have jurisdiction under section 7002.”

WhatMESS began was a discussion of what a requirement really means and what a federal installation needs to be concerned about. The Clean Air Act waiver of sovereign immunity was explored in South Coast Air QuaZity Management District v. United States, 748 F. Supp. 732 (E.D. Cal., 1990)., in which several military installations sued the South Coast Air Quality Management District alleging that fees charged by the district were uncon- stitutional, and the specific basis of the challenge was ”( 1) the fees are not calculated on the basisof the cost of services provided to the United States; (2) the fees are designed to produce revenue in excess of the cost of services provided to the United States; and (3) by exempting state, county, city, district, and other political subdivisions from the imposition of the fees, the District discriminated against the United States.” Part of the permit fee charged by the district was based on the amount of total emissions generated by a source. The court analyzed the history of sovereign immunity in the area of environmental law. It noted that the existing version of Section 118 was passed in response to Huncock v. Train, discussed above. The South Coast court stated that ”[blased on the language of Section 118, the Court concludes that the language of the statute clearly and unambiguously waives sovereign immunity.”

The government went on to argue whether fees or taxes were requirements. Analyzing Section 118, the court concluded that Congress could issue a waiver either through a listing of categories or a broad waiver. The court stated, ”[tlhere is no requirement that Congress express its waiver by means of a list approach. The language of section 118 indicates that it was

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The court held that the waiver of sovereign immunity did not mean that the federal government was compelled t o pay unreasonable fees.

Congress’ intent to grant a broad waiver of sovereign immunity. Given this inclusive language, the assumption would be that Congress intended a waiver of all immunity absent any exclusions.”

South Coast holds for the proposition that the courts will be willing to view the waivers of sovereign immunity in this area as broad and will not allow federal agencies, faced with these requirements, to avoid complying with state requirements in the future. The Third Circuit Court of Appeals in Pennsylvania Department ofNatural Resources v. United States Postal Sewice, 13 F.3d 62 (3d Cir. 1993)’ found that the Postal Service was liable for the payment of civil penalties for a violation of the Pennsylva- nia Clean Streams law, which implemented the Clean Water Act.

There is still going to be confusion in this area. In State ofMaine v. Department of the Navy, 973 F.2d 1007 (1st Cir. 1992), the court held that the United States could avoid paying fees that are unreasonable. Maine’s scheme assessed a fee of two cents per pound of “hazardous waste . . . disposed of on the site of generati0n”and penalties based on the amount of waste generated for which fees were not paid. While much of the case dealt with civil penalties, which the court disposed of in accordance with the recent DOE v. Ohio, the court held that the waiver of sovereign immunity, with respect to solid and hazardous waste, did not mean that the federal government was compelled to pay unreasonable fees. It stated that:

In our view, RCRA language subjecting the federal government to ”all” requirements, including ”any requirements for permits,’’ does not waive the sovereign immunity of the United States from unreasonable fees. The law typically treats unreasonably high regulatory charges as “taxes” that the Constitution forbids the state to assess against the federal government without explicit consent.

The court found that the applicable statute required the Navy to have a permit, and it also found that the terms of the waiver of sovereign immunity set forth in 42 USC Section 6961 were clear.r’ The court ultimately remanded this issue for further consideration by the district court.

In United States v. New Mexico, 32 F.3d 494 (10th Cir. 1994)’ the court analyzed whether conditions imposed on a hazardous waste permit issued by New Mexico to the United States constituted requirements that were permitted within the context of the waiver of the sovereign immunity section of RCRA. Citing MESS, the court found that ”’objective and admin- istratively preestablished’ standards” were ”’objective, quantifiable standards subject touniformapplication’”(citations omitted).Thehistory of this case is interesting and will be an illustration of the problems that will be faced by federal practitioners and officials in the future.

The federal government and the regents of the University of Califor- nia jointly operated the Los Alamos National Laboratory (LANL). The government sought a ”Hazardous Waste Facility Permit” from the Environmental Improvement Division of the New Mexico Health and Environment Department30 to dispose of hazardous waste generated by

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Federal facilities are going to have to comply with the state requirements for all permits in which sovereign immunity has been waived.

LANL. The state proceeded to issue a permit with three conditions, which were contested by the government. These conditions required the government to survey each batch of waste to be burned for its radioactive content and monitor radioactivity of the exhaust from the incinerator, and required that the radioactivity did not exceed certain background levels. The government attempted to argue that these conditions were not related to the regulation of hazardous waste, but the court found otherwise. The court stated, ”The requirements in Plaintiffs’ permit are pursuant to the EIDs authority to issue, or to deny the issuance of, hazardous waste permits. They are specific, detailed and ascertainable. These are exactly the type of requirements contemplated by section 6001’s waiver of sovereign immunity.’’

Given the trend that we are seeing with these recent court cases, federal facilities are going to have to comply with the state requirements for all permits in which sovereign immunity has been waived, and quibbling by the federal agency will not be viewed kindly. As a practical matter, the federal facility is going to have to have a permit to operate from the state if authority has been delegated to the state by EPA. It is logical to conclude that the permit requirements will have to be complied with before the permit is approved. If a validly required permit is not approved for a particular operation, then the operation should not be running. The states are the linchpin for this decision.

WHAT SHOULD THE FEDERAL FACILITY PRACTITIONER DO? It is my belief that the courts will construe the certification require-

ments by a licensed professional engineer or other certified professional as a “requirement” that has been waived by Congress if there is an approved delegated program. The courts are also leaning in the direction that the program must have an EPA delegation of federal authority for there to be an effective waiver of sovereign immunity. Federal facilities will have to be aware of the status of the programs in their particular states. Not all states have programs in all areas that have been approved for execution of federal environmental programs, as illustrated previ- ously. Once a state program is approved for federal enforcement by EPA, then the federal facility will have to comply with this standard, which would appear to be reasonable, objective, and quantifiable as a nondiscriminatory requirement.

The individual federal facility that is subject to the state permitting requirement will have to ascertain the correct law that applies to each particular facility. This will be a complicated procedure in the federal constitutional form of government that we have. Installations will no doubt be contracting for the filing of permit applications in all of these areas. This may be the most practical way of complying with the state requirements that apply to federal facilities. The federal facility will also have to maintain a wary observance of the Federal Register to see what delegated programs apply to the particular installation.

Federal facilities may also be able to help themselves in this area. Many states have notice and comment rule making, and this would be an

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Any waivers granted to the federal facility may encounter due process or equal protection problems.

opportunity for federal facilities to deal with the possibility of a ”state registered professional engineer’’ requirement before it becomes effective. If this does not accomplish the desired goal, then the federal facility applicant should determine if a waiver to this requirement is possible at the permit application stage. Any waivers granted to the federal facility may encounter due process or equal protection problems, because the prevailing trend is to have the federal government comply with the same rules as General Motors or Ford. It appears that the federal facility filing the permit in these areas will wind up complying with these requirements anyway. From a practical standpoint, contracting out these requirements, if no qualified personnel are on staff, will be the most economical and efficient solution for the federal facility. *:*

NOTES 1. The court cited the applicable provision from which it was working in the opinion as follows: “Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge of air pollutants, shall comply with Federal, State, interstate, and local requirements respecting control and abatement of air pollution to the same extent that any person is subject to such requirements.” Citing 42 USC s1857f.

2. The statutory authority for delegation of federal authority in the enforcement of clean water standards is presently found at 33 USC §1342@) (Clean Water Act §402@), hereafter CWA).

3. DOE v. Ohio (cited on p. 86) at 1639-1640, citing Mitzfelt v. Department of the Air Force, 903 F.2d 1293,1295 (10th Cir. 1990).

4. Resource Conservation and Recovery Act of 1976, Pub. L. 94-580, 90 Stat. 2796 (Codified at 42 USC §§6901-69921<).

5. Federal Facility Compliance Act of 1992, Pub. L. 102-386,106 Stat. 1505 (Codified at 42 USC §§6903,6908,6924,6927,6939~, 6939d, 6939e, 6961, and 6965).

6. 42 USC §6961(a) (1995) provides in part as follows: AUTHORIZED FOR EDUCATIONAL USE ONLY Copr. (C) West 1995 No claim to orig. U.S. govt. works.

Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any solid waste management facility or disposal site, or (2) engaged in any activity resulting, or which may result, in the disposal or management of solid waste or hazardouswasteshallbesubject to, andcomplywith, allFederal,State,interstate, and local requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief), respecting control and abatement of solid waste or hazardous waste disposal and management in the same manner, and to the same extent, as any person is subject to such requirements, including the payment of reasonable service charges. The Federal, State, interstate, and local substantive and procedural requirements referred to in this subsection include, but are not limited to, all administrative orders and all civil and administrative penalties and fines, regardless of whether such penalties or fines are punitive or coercive in nature or are imposed for isolated, intermittent, orcontinuingviolations. Theunited States hereby expressly waives any immunity otherwise applicable to the United States with respect to any such substantive or procedural requirement (including, but not limited to, any injunctive relief, administrative order or civil or administrative penalty or fine referred to in the preceding sentence, or reasonable service charge). The reasonable service charges referred to in this subsection include, but are not

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limited to, fees or charges assessed in connection with the processing and issuance of permits, renewal of permits, amendments to permits, review of plans, studies, and other documents, and inspection and monitoring of facilities, as well as any other nondiscriminatory charges that are assessed in connection witha Federal, State, interstate,orlocalsolid wasteorhazardous wasteregulatory program. Neither the United States, nor any agent, employee, or officer thereof, shall be immune or exempt from any process or sanction of any State or Federal Court with respect to the enforcement of any such injunctive relief.

7.42 USCS. §9620(a)(1) and (4) provide in part as follows: Copyright (c) 1994, Lawyers Cooperative Publishing.

(a)(l) In general. Each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of government) shall be subject to, and comply with, this Act in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 107 of this Act [42 USCS 5 9607). Nothing in this section shall be construed to affect the liability of any person or entity under sections 106 and 107 [42 USCS §§ 9606 and 96071 (1994).

(a)(4) State laws. State laws concerning removal and remedial action, including State laws regarding enforcement, shall apply to removal and remedial action at facilities owned or operated by a department, agency, or instrumentality of the United Stateswhen such facilities arenot included on the National PrioritiesList. The preceding sentence shall not apply to the extent a State law would apply any standard or requirement to such facilities which is more stringent than the standards and requirements applicable to facilities which are not owned or operated by any such department, agency, or instrumentality.

8. 33 USCS. §1323(a) provides as follows: Copyright (c) 1994, Lawyers Cooperative Publishing

(a) Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and comply with, all Federal, State,interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges. The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner. This subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or employees under any law or rule of law.

9.42 USC §6991f(a) provides in part as follows: AUTHORIZED FOR EDUCATIONAL USE ONLY Copr. (C) West 1995 No claim to orig. U.S. govt. works.

Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government having jurisdiction over any underground storage tank shall be subject to and comply with all Federal, State, interstate, and local requirements, applicable to such tank, both substantive and procedural, in the same manner, and to the same extent, as any other person is subject to such requirements, including payment of reasonable service charges. Neither the United States, nor any agent, employee, or officer thereof, shall be immune or exempt from any process or sanction of any State or Federal court with respect to the enforcement of any such injunctive relief.

10. 42 USC §7401(b)(l), also cited as the Clean Air Act, hereafter referred to as [CAA §101(b)(l)l (1994).

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11. Pub. L. 101-549 (1990).

12.42 USC 57661 et seq. [CAA 5501 et seq.] (1994).

13.57 Fed. Reg. 32,250 (July 21,1992), codified at 40 CFR Part 70.

14.42 USC §7418(a) [CAA §118(a)] (1990) which provides as follows: (a) General compliance

Each department, agency and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge of air pollutants, and each officer, agent, or employee thereof, shall be subject to and comply with, all Federal, State, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of air pollution in the same manner, and to the same extent as any nongovernmental entity. The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including recordkeeping or reporting requirement, any requirement respecting permits and any other requirement whatsoever), (B) to any requirement to pay a fee or charge imposed by any State or local agency to defray the costs of its regulatory program, (C) to theexercise of any Federal, State, or local administrative authority, and (D) to any process and sanction, whether enforced in Federal, State,or local courts, or in any other manner. This subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or employees under any law or rule of law.

15. Pub. L. 101-549, §235,104 Stat. 2399,2530-31, codified as amended at 42 USC 5118 (1 994).

16.42 USC §7412(b)(l) [CAA §112@)(1)] (1994).

17.42 USC §7412@)(2) [CAA §112(b)(2)] (1994).

18.42 USC §7412(1) [CAA §112(1)] (1994).

19.42 USC §7661a(a) [CAA §502(a)] (1994).

20.42 USC §7412(a)(1) [CAA §112(a)] (1994).

21.40 C.F.R. Part 272 (§§272.151-272.2501) lists approved hazardous waste programs. As of April 21, 1995, approved programs exist in Arizona, Arkansas, Delaware, Idaho, Illinois, Indiana, Michigan, Minnesota, Missouri, Montana, New Mexico, Ohio, Oklahoma, and Wisconsin.

22. See 60 Fed. Reg. 25,718 (May 12,1995) for complete listing of state-approved NPDES Program.

23. As of March 5,1996, there were 15 approved Underground Storage Tank Programs. See 40 CFR 99282.52 to .95.

24.42 USC SS7661-7661f [CAA §§501-507] (1990).

25.40 C.F.R. Part 70, App. A (1995,1996). As of March 5,1996, EPA has granted 72 interim approval Title V programs, 14 full approvals and one denial. See 60 Fed. Reg. 57,186.

26. Ark. Rev. Stat. Ann. §49-770(G)(5) (1994).

27. N.J.A.C. 7:26E-6.3@)(6)(ii)(2)(1995) provides as follows: (2) The owner or operator submits a certification, signed and sealed by a New

Jersey professional engineer, stating that removal of the underground storage tank will cause damage to the other structure, or that the tank is difficult to remove from the ground because of inaccessibility or type of tank construction.

28.42 USC §6972(a)(l)(A) and 33 USC §1365(a)(1).

29. See note 7 and accompanying text.

30. United States D. New Mexico, Civ. No. 90-276 SC, 1992 U.S. Dist. LEXIS 20962 at '2 (D.N.M., August 13,1992) aff'd 32 F.3d 494 (10th Cir. 1994).

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state permit certification requirements examined

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