ZACHARY N. MOOR, MA # 681469
`HELEN Y. LI, CT # 439117
`Environmental Enforcement Section
`Environment & Natural Resources Division
`United States Department of Justice
`P.O. Box 7611, Ben Franklin Station
`Washington, DC 20044-7611
`Fax: (202) 514-0097
`Phone: (202) 514-4185
`Email: zachary.moor@usdoj.gov
`helen.li2@usdoj.gov
`Attorneys for the United States of America
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`v.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ALASKA
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`COMPLAINT
`(This is a civil action arising under the Resource Conservation and Recovery Act, 42
`U.S.C. § 6901 et seq., and the Clean Water Act, 33 U.S.C. § 1251 et seq.)
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`NORTH SLOPE BOROUGH,
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`Case No. 3:22-cv-00059-JWS
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`Defendant.
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`THE STATE OF ALASKA,
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` Non-Aligned Party
`Joined Pursuant to
`33 U.S.C. § 1319(e)
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`United States v. North Slope Borough
`Case No.
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`1
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`Case 3:22-cv-00059-JWS Document 1 Filed 03/16/22 Page 1 of 53
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`HELEN Y. LI, CT # 439117
`Environmental Enforcement Section
`Environment & Natural Resources Division
`United States Department of Justice
`P.O. Box 7611, Ben Franklin Station
`Washington, DC 20044-7611
`Fax: (202) 514-0097
`Phone: (202) 514-4185
`Email: zachary.moor@usdoj.gov
`helen.li2@usdoj.gov
`Attorneys for the United States of America
`
`UNITED STATES OF AMERICA,
`
`Plaintiff,
`
`v.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ALASKA
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`COMPLAINT
`(This is a civil action arising under the Resource Conservation and Recovery Act, 42
`U.S.C. § 6901 et seq., and the Clean Water Act, 33 U.S.C. § 1251 et seq.)
`
`NORTH SLOPE BOROUGH,
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`Case No. 3:22-cv-00059-JWS
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`Defendant.
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`THE STATE OF ALASKA,
`
` Non-Aligned Party
`Joined Pursuant to
`33 U.S.C. § 1319(e)
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`United States v. North Slope Borough
`Case No.
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`1
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`Case 3:22-cv-00059-JWS Document 1 Filed 03/16/22 Page 1 of 53
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`NATURE OF ACTION
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`1.
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`The United States of America (“United States”), by the authority of the
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`Attorney General of the United States and through the undersigned attorneys, acting at
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`the request of the United States Environmental Protection Agency (“EPA”), files this
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`Complaint and alleges as follows:
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`2.
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`This is a civil action brought pursuant to Section 3008(a) and (g) of the
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`Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6928(a) and (g), and
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`Sections 309(b) and 311(b)(7) and (e) of the Clean Water Act (“CWA”), 33 U.S.C. §§
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`1319(b) and 1321(b)(7) and (e) against the North Slope Borough (hereinafter “NSB” or
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`“Defendant”). Defendant is a municipality and a political subdivision of Alaska. The
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`United States seeks injunctive relief and the assessment of civil penalties for
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`environmental violations relating to the storage of oil and the treatment, storage, and
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`disposal of hazardous waste at more than 70 facilities across 10 communities within
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`NSB, including Anaktuvuk Pass, Atqasuk, Utqiagvik, Kaktovik, Nuiqsut, Point Hope,
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`Point Lay, Wainwright, Deadhorse, and Prudhoe Bay (collectively the “Communities”).
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`3.
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`The State of Alaska is joined in this action as a nominal party under Section
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`309(e) of the CWA, 33 U.S.C. § 1319(e). The United States reserves all claims that it
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`may have against the State of Alaska under Section 309(e), 33 U.S.C. § 1319(e).
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`JURISDICTION AND VENUE
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`4.
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`This Court has jurisdiction over the parties and the subject matter of this
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`action pursuant to Section 3008(a) of RCRA, 42 U.S.C. § 6928(a); Sections 309(b),
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`311(b)(7)(E), (e), and (n) of the CWA, 33 U.S.C. §§ 1319(b) and 1321(b)(7)(E), (e), and
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`(n); and 28 U.S.C. §§ 1331, 1345, and 1355.
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`5.
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`Venue is proper in this judicial district pursuant to Section 3008(a) of
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`RCRA, 42 U.S.C. § 6928(a); Sections 309(b), 311(b)(7)(E), (e), and (n) of the CWA, 33
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`U.S.C. §§ 1319(b) and 1321(b)(7)(E), (e), and (n); and 28 U.S.C. §§ 1391(b), 1395(a),
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`because Defendant is located in this judicial district and the violations asserted herein
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`occurred in this judicial district.
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`AUTHORITY
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`6.
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`Authority to bring this civil action is vested in the Attorney General of the
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`United States, pursuant to Section 3008(a) of RCRA, 42 U.S.C. § 6928(a), Section 506 of
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`the CWA, 33 U.S.C. § 1366, 28 U.S.C. §§ 516 and 519, and Section 10(a) of Exec. Order
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`No. 12777, 3 C.F.R., 1991 Comp., p. 351.
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`NOTICE TO THE STATE
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`7.
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`Notice of the commencement of this action has been given to the State as
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`required by Section 309(b) of the CWA, 33 U.S.C. § 1319(b).
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`STATUTORY AND REGULATORY BACKGROUND
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`The Clean Water Act
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`8.
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`The CWA is designed to restore and maintain the chemical, physical, and
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`biological integrity of the nation’s waters. 33 U.S.C. § 1251(a).
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`Spill Prevention, Control, and Countermeasure Regulations
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`9.
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`Section 311(j) of the CWA, 33 U.S.C. § 1321(j), authorizes the President to
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`promulgate regulations establishing methods, procedures, and equipment to prevent
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`discharges of oil from onshore facilities and contain such discharges when they do occur.
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`This authority was delegated to EPA. Exec. Order No. 11735, 3 C.F.R., 1971–1975
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`Comp., p. 793; Exec. Order No. 12777, 3 C.F.R., 1991 Comp., p. 351.
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`10.
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`Pursuant to Section 311(j) of the CWA, EPA promulgated Oil Pollution
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`Prevention regulations, also known as the Spill Prevention, Control, and Countermeasure
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`Regulations (“SPCC Regulations”). The SPCC Regulations are codified at 40 C.F.R.
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`Part 112.
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`11.
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`The SPCC Regulations apply to owners and operators of non-
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`transportation-related onshore facilities engaged in drilling, producing, gathering,
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`storing, processing, refining, transferring, distributing, using, or consuming oil or oil
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`products with an aboveground storage capacity greater than 1,320 gallons which could
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`reasonably be expected to discharge oil in quantities that may be harmful into or upon the
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`navigable waters of the United States or adjoining shorelines. 40 C.F.R. §§ 112.1(b) and
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`112.1(d)(2).
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`12. A “person” is an individual, corporation, partnership, association, State,
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`municipality, commission, or political subdivision of a State, or any interstate body. 33
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`U.S.C. § 1362(5).
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`13. An “owner or operator” is any person owning or operating an onshore
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`facility. 40 C.F.R. § 112.2.
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`14. A “facility” is any mobile or fixed, onshore or offshore building, property,
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`parcel, lease, structure, installation, equipment, pipe, or pipeline (other than a vessel or a
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`public vessel) used in oil well drilling operations, oil production, oil refining, oil storage,
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`oil gathering, oil processing, oil transfer, oil distribution, and oil waste treatment. Id.
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`15.
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`“Non-transportation-related” facilities include “Oil storage facilities” and
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`“Industrial, commercial, agricultural or public facilities which use and store oil.” Id.
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`16. An “onshore facility” means any facility of any kind located in, on, or
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`under any land within the United States, other than submerged lands. Id.
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`17.
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`“Oil” means oil of any kind or in any form, including petroleum, fuel oil,
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`sludge, synthetic oils, mineral oils, oil refuse, or oil mixed with wastes other than dredged
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`spoil. Id.
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`18.
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`19.
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`“Storage capacity” means the shell capacity of the container. Id.
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`“Discharge” includes, but is not limited to, any spilling, leaking, pumping,
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`pouring, emitting, emptying, or dumping of oil, except in compliance with a permit under
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`Section 402 of the CWA. Id.
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`20.
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`“Navigable waters” means waters of the United States, including the
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`territorial seas. Id. In turn, “waters of the United States” has been defined to include,
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`among other things, waters which are currently used, or were used in the past, or may be
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`susceptible to use in interstate or foreign commerce, including waters which are subject
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`to the ebb and flow of the tide; tributaries to such waters; and wetlands adjacent to the
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`foregoing waters. 40 C.F.R. § 112.2 (2002).
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`21.
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` The SPCC Regulations require owners and operators of regulated facilities
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`to prepare and implement a Spill Prevention, Control and Countermeasure Plan (“SPCC
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`Plan”) that adheres to certain requirements detailed in the regulations. 40 C.F.R. § 112.3.
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`Among other things, the SPCC Regulations require:
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`a.
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`Preparation of an SPCC Plan in accordance with good engineering
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`practices (40 C.F.R. § 112.7);
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`b.
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`Certification of the SPCC Plan by a Professional Engineer (40
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`C.F.R. § 112.3(d));
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`c.
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`Implementation of the SPCC Plan in accordance with the SPCC
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`Regulations (40 C.F.R. § 112.3);
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`d.
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`Periodic review and amendment of the SPCC Plan (40 C.F.R. §
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`112.5);
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`e.
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`Construction of adequate secondary containment for bulk storage
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`tank installations (40 C.F.R. § 112.8(c)(2));
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`f.
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`Construction of adequate secondary containment for portable
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`containers, including drums with a capacity of 55 gallons or greater (40 C.F.R. §
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`112.8(c)(11));
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`g.
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`Periodic integrity testing and visual inspections of all aboveground
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`containers in accordance with industry standards (40 C.F.R. § 112.8(c)(6)); and
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`h.
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`Retention of testing and inspection documentation (40 C.F.R. §
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`112.7(e)).
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`Section 311 Discharge
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`22.
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`The CWA prohibits the discharge of oil or hazardous substances into or
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`upon the navigable waters of the United States and adjoining shorelines or which may
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`affect natural resources belonging to or appertaining to the United States in such
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`quantities as may be harmful as determined by the President. 33 U.S.C. § 1321(b)(3).
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`23. Any person who is the owner, operator, or person in charge of any onshore
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`facility from which oil is discharged in violation of Section 311(b) shall be subject to a
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`civil penalty. 33 U.S.C. § 1321(b)(7)(A).
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`24. An “owner or operator” of an onshore facility means “any person owning
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`or operating such onshore facility.” 33 U.S.C. §1321(a).
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`25. An “onshore facility” is any facility of any kind located in, on, or under,
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`any land within the United States, other than submerged land. Id.
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`26.
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`“Discharge” means any spilling, leaking, pumping, pouring, emitting,
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`emptying or dumping. Id.
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`27.
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`28.
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`“Oil” means “oil of any kind or in any form.” Id.
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`“Navigable waters” means waters of the United States, including the
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`territorial seas. 33 U.S.C. § 1362(7). In turn, “waters of the United States” has been
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`defined to include, among other things, waters which are currently used, or were used in
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`the past, or may be susceptible to use in interstate or foreign commerce, including waters
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`which are subject to the ebb and flow of the tide; tributaries to such waters; and wetlands
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`adjacent to the foregoing waters. 40 C.F.R. § 110.1 (1993).
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`29.
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`The CWA authorizes the President to determine the quantities of oil and
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`hazardous substances that may be harmful to the public health or welfare or the
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`environment of the United States, including but not limited to fish, shellfish, wildlife, and
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`public and private property, shorelines and beaches. 33 U.S.C. § 1321(b)(4). This
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`authority has been delegated to EPA. Exec. Order No. 12777, 3 C.F.R., 1991 Comp., p.
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`351.
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`30.
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`Pursuant to that delegation, EPA promulgated regulations that define
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`quantities of oil that “may be harmful” to include discharges of oil that violate applicable
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`water quality standards or cause a film or sheen upon or discoloration of the surface of
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`the water or adjoining shorelines or cause a sludge or emulsion to be deposited beneath
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`the surface of the water or upon adjoining shorelines. 40 C.F.R. § 110.3.
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`Section 301 Discharge
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`31.
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`The CWA prohibits the discharge of any pollutant by any person, except,
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`inter alia, in compliance with a National Pollutant Discharge Elimination System
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`(“NPDES”) permit issued pursuant to Section 402 of the CWA, 33 U.S.C. § 1342, by
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`EPA or an authorized state. 33 U.S.C. § 1311(a).
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`32.
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`“Discharge of a pollutant” means any addition of any pollutant to navigable
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`waters from any point source. 33 U.S.C. § 1362(12).
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`33.
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`“Pollutant” includes “solid waste . . . chemical wastes, biological materials .
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`. . and industrial . . . waste discharged into water.” 33 U.S.C. § 1362(6).
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`34.
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`“Navigable waters” means waters of the United States, including the
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`territorial seas. 33 U.S.C. § 1362(7). In turn, “waters of the United States” has been
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`defined to include, among other things, waters which are currently used, or were used in
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`the past, or may be susceptible to use in interstate or foreign commerce, including waters
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`which are subject to the ebb and flow of the tide; tributaries to such waters; and wetlands
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`adjacent to the foregoing waters. 40 C.F.R. § 122.2 (1993).
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`35. A “point source” is any discernible, confined and discrete conveyance,
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`including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete
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`fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other
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`floating craft, from which pollutants are or may be discharged. 33 U.S.C. § 1362(14).
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`Resource Conservation and Recovery Act
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`36. RCRA establishes a “cradle-to-grave” program to be administered by the
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`EPA and authorized states for regulating the generation, transportation, treatment,
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`storage, and disposal of hazardous waste. See 42 U.S.C. § 6901 et seq.
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`37. RCRA’s Subchapter III, 42 U.S.C. §§ 6921–6939g, also known as “Subtitle
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`C,” requires EPA to promulgate regulations establishing performance standards
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`applicable to entities that generate, transport, treat, store, and dispose of hazardous waste.
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`Together, RCRA Subtitle C and its implementing regulations, set forth at 40 C.F.R. Parts
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`260–279, comprise EPA’s RCRA hazardous waste program.
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`38. RCRA regulates both hazardous waste (Subtitle C) and non-hazardous solid
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`waste (Subtitle D). A hazardous waste is also a solid waste.
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`39. A solid waste is any discarded material that is not excluded by regulation,
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`variance, or a non-waste determination. 40 C.F.R. § 261.2(a)(1).
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`40. A material is discarded if it is abandoned, recycled, or considered
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`inherently waste like. 40 C.F.R. § 261.2(a)(2)(i).
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`41. A material is abandoned if it is, among other things, disposed of, burned or
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`incinerated, or accumulated, stored, or treated (but not recycled) before or in lieu of being
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`disposed of, burned or incinerated. 40 C.F.R. § 261.2(b).
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`42.
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`Section 3001 of RCRA, 42 U.S.C. § 6921, directs the EPA to identify
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`criteria to determine which solid wastes should be listed as hazardous wastes and which
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`characteristics of solid waste render it a hazardous waste. A solid waste is a hazardous
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`waste if it is a listed waste or a characteristic waste. 40 C.F.R. § 261.3(a).
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`43.
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`In accordance with 40 C.F.R. Part 261, Subpart C (“Subpart C”),
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`characteristic wastes are so designated because they exhibit one of four characteristics:
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`ignitibility, corrosivity, reactivity, and toxicity. 40 C.F.R. §§ 261.20–261.24.
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`44.
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`In accordance with 40 C.F.R. Part 261, Subpart D (“Subpart D”), listed
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`wastes are divided into four categories based on the source of the waste: F-wastes (non-
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`specific sources), K-wastes (specific sources), and P-wastes and U-wastes (discarded
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`chemical products, off-specification species, container residues, and spill residues
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`thereof). 40 C.F.R. §§ 261.30–261.33.
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`45.
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`Pursuant to its authority under Subtitle C of RCRA, EPA promulgated
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`regulations addressing hazardous waste generators at 40 C.F.R. Part 262; transporters of
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`hazardous waste at 40 C.F.R. Part 263; operators of hazardous waste facilities at 40
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`C.F.R. Parts 264 and 265; restrictions on land disposal of hazardous waste at 40 C.F.R.
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`Part 268; standards for the management of universal waste at 40 C.F.R. Part 273; and
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`standards for the management of used oil at 40 C.F.R. Part 279.
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`46.
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`EPA may authorize a state to administer its own hazardous waste program
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`in lieu of the federal program when it deems the state program to be equivalent to the
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`federal program. 42 U.S.C. § 6926(b).
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`47. Alaska has not received authorization to administer its own hazardous
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`waste program so EPA administers the hazardous waste program in Alaska.
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`Permit Requirement for the Treatment, Storage, or Disposal of Hazardous Waste
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`48. RCRA requires each person owning or operating an existing facility or
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`planning to construct a new facility for the treatment, storage, or disposal of hazardous
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`waste to have a permit. 42 U.S.C. § 6925(a). Owners and operators of hazardous waste
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`management units must have permits during the active life of the unit. 40 C.F.R. §
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`270.1(b)–(c).
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`49. A “person” is an individual, trust, firm, joint stock company, corporation
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`(including a government corporation), partnership, association, State, municipality,
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`commission, political subdivision of a State, or any interstate body and shall include each
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`department, agency, and instrumentality of the United States. 42 U.S.C. § 6903(15).
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`50. An “owner” is the person who owns a facility or part of a facility. 40
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`C.F.R. § 260.10.
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`51. An “operator” is the person responsible for the overall operation of a
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`facility. Id.
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`52.
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`“Disposal” means the discharge, deposit, injection, dumping, spilling,
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`leaking, or placing of any solid waste or hazardous waste into or on any land or water so
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`that such solid waste or hazardous waste or any constituent thereof may enter the
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`environment or be emitted into the air or discharged into any waters, including ground
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`waters. Id.
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`53.
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`“Storage” means the holding of hazardous waste for a temporary period, at
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`the end of which the hazardous waste is treated, disposed of, or stored elsewhere. Id.
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`54.
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`“Treatment” means any method, technique, or process, including
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`neutralization, designed to change the physical, chemical, or biological character or
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`composition of any hazardous waste so as to neutralize such waste, or so as to recover
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`energy or material resources from the waste, or so as to render such waste non-hazardous,
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`or less hazardous; safer to transport, store, or dispose of; or amenable for recovery,
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`amenable for storage, or reduced in volume. Id.
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`55. A “hazardous waste management unit” is a contiguous area of land on or in
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`which hazardous waste is placed, or the largest area in which there is significant
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`likelihood of mixing hazardous waste constituents in the same area. Id.
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`56. A “facility” is all contiguous land, and structures, other appurtenances, and
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`improvements on the land, used for treating, storing, or disposing of hazardous waste, or
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`for managing hazardous secondary materials prior to reclamation. A facility may consist
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`of several treatment, storage, or disposal operational units (e.g., one or more landfills,
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`surface impoundments, or combinations of them). Id.
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`Hazardous Waste Determination at the Point of Generation
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`57. A person who generates a solid waste must make an accurate hazardous
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`waste determination at the point of generation by determining if the waste is: a) excluded
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`by regulation; b) a listed waste under Subpart D; or c) a characteristic waste under
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`Subpart C. 40 C.F.R. § 262.11.
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`58.
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` A “generator” is any person, by site, whose act or process produces a
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`hazardous waste or whose act first causes a hazardous waste to become subject to
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`regulation. 40 C.F.R. § 260.10.
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`59.
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`Small or large quantity generators must maintain records supporting their
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`hazardous waste determinations, including records that identify whether a solid waste is a
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`hazardous waste. These records must be maintained for at least three years from the date
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`that the waste was last sent for on-site or off-site treatment, storage, or disposal. 40
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`C.F.R. § 262.11(f).
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`Transporting Hazardous Waste
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`60. A transporter must not transport hazardous wastes without having received
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`an EPA identification number. 40 C.F.R. § 263.11(a).
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`61. A “transporter” is a person engaged in the offsite transportation of
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`hazardous waste by air, rail, highway, or water. 40 C.F.R. § 260.10.
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`Hazardous Waste Manifest Requirements
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`62. A generator who transports or offers for transport hazardous waste for
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`offsite treatment, storage, or disposal must prepare a manifest (OMB Control number
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`2050-0039) on EPA Form 8700-22 and, if necessary, a continuation sheet on EPA Form
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`8700-22A. 40 C.F.R. § 262.20(a)(1).
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`63. At all relevant times, the hazardous waste manifest and any continuation
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`sheet had to be prepared according to instructions contained in an Appendix to 40 C.F.R.
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`Part 262. 40 C.F.R. § 262.20(a)(1) (effective to June 30, 2018). Recently, the hazardous
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`waste instructions were migrated to EPA’s internet domain, www.epa.gov/e-Manifest.
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`See 83 Fed. Reg. 420 (Jan. 3, 2018).
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`64. A generator must designate on the manifest one facility that is permitted to
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`handle the waste described in the manifest. 40 C.F.R. § 262.20(b).
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`65. At all relevant times, the manifest instructions required the generator to:
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`a.
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`Enter the name, address, and telephone number of the generator
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`(Item 5);
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`waste;
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`b.
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`Identify each hazardous waste listed on the manifest as hazardous
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`c.
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`Enter the United States Department of Transportation (“DOT”)
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`Proper Shipping Name, Hazard Class or Division, Identification Number (UN/NA), and
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`Packing Group for each waste identified in the DOT regulations, 49 C.F.R. Part 172
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`(Item 9(b));
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`d.
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`Enter the number of containers of each waste and the appropriate
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`abbreviation (Item 10);
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`e.
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`f.
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`Enter the total quantity of waste being shipped (Item 11);
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`Enter up to six federal and state waste codes that describe each waste
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`stream, including the federal waste codes which are most representative of the properties
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`of the waste (Items 13, 31);
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`g.
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`Certify that the “contents of the consignment are fully and accurately
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`described above [in the manifest] by the proper shipping name, and are classified,
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`packaged, marked, and labeled/placarded, and are in all respects in proper condition for
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`transport by highway according to applicable international and national governmental
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`regulations” (Item 15);
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`h.
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`Ensure the generator identified on a manifest continuation sheet
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`matches the generator identified on the manifest (Item 24); and
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`i.
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`For each row, enter a sequential number that corresponds to the
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`order of waste codes from one continuation sheet to the next, to reflect the total number
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`of wastes being shipped (Item 27). 40 C.F.R. Part 262, App.
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`Exception Reporting
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`66.
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`To ensure safe transport and disposal of hazardous waste, the generator of
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`certain quantities of hazardous waste in a calendar month must receive a signed copy of
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`the manifest from the owner or operator of the designated facility the waste has been sent
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`to in order to confirm delivery.
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`67. A “designated facility” is a hazardous waste treatment, storage, or disposal
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`facility that is either permitted (or has interim status) under the federal RCRA regulations
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`and that has been designated on the manifest by the generator as the facility that will
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`receive the hazardous waste. 40 C.F.R. § 260.10.
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`68. A generator of greater than 100 kilograms but less than 1,000 kilograms of
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`hazardous waste in a calendar month must submit an exception report to the EPA
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`Regional Administrator if it has not received a copy of the manifest signed by the owner
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`or operator of the designated facility within 60 days of the date the waste was accepted by
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`the initial transporter. 40 C.F.R. § 262.42(b).
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`69. A generator of 1,000 kilograms or greater of hazardous waste in a calendar
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`month must submit an exception report to the EPA Regional Administrator if it has not
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`received a copy of the manifest signed by the owner or operator of the designated facility
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`within 45 days of the date the waste was accepted by the initial transporter. 40 C.F.R. §
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`262.42(a)(2).
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`Land Disposal Restriction Treatment Standards
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`70. Under RCRA, certain hazardous wastes are subject to land disposal
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`restrictions (“LDR”) and must be treated before they can be land disposed in order to
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`prevent soil and groundwater contamination.
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`71.
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`To ensure safe disposal of a hazardous waste, a generator must determine if
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`the waste must be treated before it can be land disposed. 40 C.F.R. § 268.7(a)(1).
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`72. Various listed and characteristic wastes are subject to LDR treatment
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`standards for hazardous wastes. See 40 C.F.R. § 268.40.
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`73.
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`If a hazardous waste generator has determined its hazardous waste must be
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`treated before it can be land disposed, or if the generator chooses not make the
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`determination, then the generator must send a one-time written notice with the initial
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`shipment of waste to each treatment or storage facility receiving the waste with certain
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`information about the waste. 40 C.F.R. § 268.7(a)(2).
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`74.
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`If the generator chooses not to determine whether its waste must be treated
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`before land disposal, then the notice sent to the treatment facility must include the
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`relevant EPA hazardous waste numbers, the manifest number of the first shipment, and a
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`statement notifying the facility that the “hazardous waste may or may not be subject to
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`LDR treatment standards. The treatment facility must make the determination.” Id.
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`Universal Waste Management Standards
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`75. Universal waste, while still hazardous waste, is subject to separate
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`management standards due to its common use across industries and facilities in order to
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`encourage recycling and to reduce illegal disposal in municipal landfills and combustors.
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`76. Universal waste includes batteries, pesticides, mercury-containing
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`equipment, lamps, and aerosol cans. 40 C.F.R. § 273.1.
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`77. A “battery” is a device consisting of one or more electrically connected
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`electrochemical cells which is designed to receive, store, and deliver electric energy. An
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`electrochemical cell is a system consisting of an anode, cathode, and an electrolyte, plus
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`such connections (electrical and mechanical) as may be needed to allow the cell to deliver
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`or receive electrical energy. The term battery also includes an intact, unbroken battery
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`from which the electrolyte has been removed. 40 C.F.R. § 273.9.
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`78. A used battery becomes a waste on the date it is discarded, and an unused
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`battery becomes a waste on the date the handler decides to discard it. 40 C.F.R. §
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`273.2(c).
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`79.
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`“Lamps,” also referred to as “universal waste lamps,” are the bulb or tube
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`portion of an electric lighting device. A lamp is specifically designed to produce radiant
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`energy, most often in the ultraviolet, visible, and infra-red regions of the electromagnetic
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`spectrum. Examples of common universal waste electric lamps include, but are not
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`limited to, fluorescent, high intensity discharge, neon, mercury vapor, high pressure
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`sodium, and metal halide lamps. 40 C.F.R. § 273.9.
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`80. A lamp is a hazardous waste if it is a characteristic waste under Subpart C.
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`40 C.F.R. § 273.5(b)(2).
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`81. A used lamp becomes a waste on the date it is discarded, and an unused
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`lamp becomes a waste on the date the handler decides to discard it. 40 C.F.R. § 273.5(c).
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`82. A “universal waste handler” is a generator of universal waste or the owner
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`or operator of a facility that receives universal waste from other universal waste handlers,
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`accumulates universal waste, and sends universal waste to another universal waste
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`handler, to a destination facility, or to a foreign destination. 40 C.F.R. § 273.9.
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`83. Different waste management standards apply based on the quantity of
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`universal waste generated or handled.
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`84. A “small quantity handler of universal waste” is a universal waste handler
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`who does not accumulate 5,000 kilograms or more of universal waste at any time. Id.
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`85. A small quantity handler of universal waste must contain any lamp in
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`containers or packages that are structurally sound, adequate to prevent breakage, and
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`compatible with the contents of the lamps. Such containers and packages must remain
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`closed and must lack evidence of leakage, spillage, or damage that could cause leakage
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`under reasonably foreseeable conditions. 40 C.F.R. § 273.13(d)(1).
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`86. A small quantity handler of universal waste must immediately clean up and
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`place in a container any lamp that is broken and must place in a container any lamp that
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`shows evidence of breakage, leakage, or damage that could cause the release of mercury
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`or other hazardous constituents to the environment. Such containers must be closed,
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`structurally sound, compatible with the contents of the lamps and must lack evidence of
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`leakage, spillage, or damage that could cause leakage or releases of mercury or other
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`hazardous constituents to the environment under reasonably foreseeable conditions. 40
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`C.F.R. § 273.13(d)(2).
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`87.
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`Each lamp or the container or package in which the lamps are contained
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`must be labeled or marked clearly with one of the following phrases: “Universal Waste—
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`Lamp(s),” or “Waste Lamp(s),” or “Used Lamp(s).” 40 C.F.R. § 273.14(e).
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`88. Universal waste batteries or a container in which the batteries are
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`contained, must be labeled or marked clearly with any one of the following phrases:
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`“Universal Waste—Battery(ies),” or “Waste Battery(ies),” or “Used Battery(ies).” 40
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`C.F.R. § 273.14(a).
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`89.
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`Subject to certain exceptions, a small quantity handler of universal waste
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`may not accumulate universal waste for longer than one year from the date the waste is
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`generated. 40 C.F.R. § 273.15(a).
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`90. A small quantity handler of universal waste must be able to demonstrate the
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`length of time that the universal waste has been accumulated from the date it becomes a
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`waste or is received. 40 C.F.R. § 273.15(c).
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`Used Oil Management Standards
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`91. RCRA requires EPA to establish performance standards to protect public
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`health and the environment from hazards associated with used oil. 42 U.S.C. § 6935.
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`Used oil must be handled in accordance with the management standards promulgated by
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`EPA. See Hazardous Waste Management System; Identification and Listing of
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`Hazardous Waste; Recycled Used Oil Management Standards, 57 Fed. Reg. 41566, (Sept.
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`10, 1992) (codified at 40 C.F.R. pts. 261, 279).
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`92. A “used oil generator” is any person, by site, whose act or process produces
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`used oil or whose act first causes used oil to become subject to regulation. 40 C.F.R.
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`§§ 279.1 and 279.20(a).
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`93.
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`“Used oil” is defined as any oil that has been refined from crude oil, or any
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`synthetic oil, that has been used and as a result of such use is contaminated by physical or
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`chemical impurities. 40 C.F.R. § 279.1.
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`94. Containers and aboveground tanks used to store used oil at generator
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`facilities must be labeled or marked clearly with the words “Used Oil.” 40 C.F.R. §
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`279.22(c)(1).
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`95. Containers and aboveground tanks used to store used oil at generator
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`facilities must be in good condition (no severe rusting
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