SEPA
UnitM States
Environmental Pro««ci>on
o»
Soi-d
DIRECTIVE NUMBER: 9841.00-9
TITLE: State Program Advisory (SPA) #5: Revised
Model Attorney General's Statement and Models
G and H Federal Register Notices for Codification
APPROVAL DATE: 8/22/88
EFFECTIVE DATE: 8/22/88
ORIGINATING OFFICE: Office of Solid Waste
B FINAL
D DRAFT
STATUS:
[ 3
[ 3
3
A- Pending OMB approval
B- .Pending AA-OSWIR approval
C- For review &/or comment
[ ] D- In development or circulating
REFERENCE (other documents): headquarters
SCRAM - OSWER Policy Directive #9540.00-9
n
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v>EPA
United States Environmental Protection Agency
Washington. DC 20460
OSWER Directive initiation Request
1. Directive Number
9541.00-9
2. Originator Information
Name of Contact Person
Martha A. Madison
Mail Code
OS-342
Office
OSW
Telephone Code
(202) 382-2229
State Program Advisory (SPA) #5: Revised Model Attorney General's Statement
and Models G and H Federal Register Notices for Codification
4. Summary of Directive (include brief statement of purpose)
This document corrects some of the policy given in the SCRAM (OSWER Directive # 9540.
00-9) regarding incorporation by reference in the Federal Register. SPA #5 corrects
errors identified in the model A.G. statement and revises language in model codifica-
tion notices. These documents are part of the SCRAM which provides guidance to^the
Regions and States. They must use them as models for authorization and codification
5. Keywords
Guidance / State Authorization / State Program
Yes What directive (number, title)
6a. Does This Directive Supersede Previous Directive(s)?
b. Does It Supplement Previous Directive(s)?
No
No
Yes What directive (number, title)
# 9540.00-9
7. Draft Level
A - Signed by AA/DAA
B - Signed by Office Director
C - For Review & Comment
D - In Development
8. Document to be distributed to States by Headquarters?
XXX
Yes
No
This Request Meets OSWER Directives System Format Stan
9. Signature of Lead Office Directives Coordinator V 1 J|| i
Jennifer A. Barker/ Office of Solid^
lards. . .
](/ ktyttu*^
Waste
10. Name and Title of Approving Official
Sylvia K. Lowrance/ Director, Office of Solid Waste
Date
9/7/88
Date
'8/22/88
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
(summary continued - of State hazardous waste programs.)
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
AUG 22 1988
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
OSWER DIRECTIVE 19541.00-9
MEMORANDUM
SUBJECT:
FROM:
TO:
State Program Advisory Number Five -- Revised Model
Attorney General's Statement and Revised Federal
Register Notices for Codification (Models G and H)
Sylvia K.
Office of
Lowrance, Director
Solid Waste
K.
Division Directors, Regions I-X
Please find attached State Program Advisory (SPA)
SPA's purpose is twofold:
#5. This
(1) A revised Model Attorney General's (AG)
Statement (see Attachment A) corrects two minor
errors. This should replace the current AG
Statement.
(2) Concerning codification of authorized State
programs in the Code of Federal Regulations
(CFR), Attachment B to this SPA provides
revised Federal Register codification notices
(Models G and H) to replace those in Appendix C
of the SCRAM. The models were revised at the
request of the Office of Federal Register (OFR)
because of changed OFR requirements.
Following is a brief explanation of OFR's
requirements and the codification process.
Codification is the process by which State statutes and
regulations become part of the CFR. Through codification, the
specific elements of the State's authorized hazardous waste
program are
authority.
identified as subject to direct Federal enforcement
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OSWER DIRECTIVE 19541.00-9
Typically the OFR requires the entire reprinting in the CFR
of those State statutes and regulations being codified.
However, in the interest of space [and reproduction costs], EPA
may meet this requirement by "incorporating by reference"
materials published elsewhere (e.g., the State statutes, rules
and accompanying checklists). Materials incorporated by
reference have the same legal effect .as if published in full in
the CFR. A copy of the incorporated material is kept on file
at OFR to ensure public availability. A change in OFR's
policies on keeping incorporated material has necessitated some
changes in the model codification notices provided as
Attachment B.
Note that although the Program Description, Memorandum of
Agreement and Attorney General's Statement are mentioned in the
CFR, they are not incorporated by reference nor kept on file at
OFR. These items, as distinguished from State statutes, rules
and the checklist, are not Federally enforceable documents.
However, the Region should maintain these documents as part of
a State's authorization application for public review.
SPA #5 is provided to' you out of sequence because SPA #4
is still in the review process. If you have any questions",
please contact Alex Wolfe, Chief, Implementation Section,
State Programs Branch or Marty Madison at FTS 382-2210.
Attachments
cc: RCRA Branch Chiefs, Regions I-X
Authorization Section Chiefs, Regions I-X
State Programs Branch, Headquarters
ASTSWMO
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OSWER DIRECTIVE #9541.00-9
Attachment A
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OSWER DIRECTIVE #9541.00-9
MODEL ATTORNEY GENERAL'S STATEMENT FOR FINAL AUTHORIZATION
FOR CHANGES TO THE FEDERAL RCRA PROGRAM FROM
JANUARY, 1983 THROUGH JUNE, 1987
I hereby certify, pursuant to my authority as and in
accordance with Section 3006(b) of the -Resource Conservation and
Recovery Act, as amended by the Hazardous and Solid Waste
Amendments of 1984 (42 USC 6901 et seq.), and 40 CFR 271 that in my
opinion the laws of the State [Commonwealth] of provide
adequate authority to carry out the revised program set forth in
the revised "Program Description" submitted by the [State Agency].
The specific authorities provided are contained in statutes or
regulations lawfully adopted at the time this Statement is signed
and which are in effect now [shall be fully effective by.
], as specified below.
I. IDENTIFICATION AND LISTING
A. State statutes and regulations contain lists of'hazardous
waste which encompass all wastes controlled under the following
Federal regulations as indicated in the designated Revision
Checklists:
(1) Chlorinated aliphatic hydrocarbons, 40 CFR 261.31, as
amended February 10, 1984 [49 FR 5308-15], Revision
Checklist 4.
(2) [OPTIONAL; This is a reduced requirement.] . Warfarin and
zinc phosphide listing, 40 CFR 261.33(e) and (f), as
amended May 10, 1984 [49 FR 19923], Revision Checklist 7.
(3) TDI, DNT and TDA wastes, 40 CFR 261.32 and 261.33(f),
as amended October 23, 1985 [50 FR 42936-43], Revision
Checklist 18.
(4) Spent solvents, 40 CFR 261.31, as amended December 31,
1985 [50 PR 53319-20] and January 21, 1986 [51 FR 2702],
Revision Checklist 20. ,
' i '
(5) EDB wastes, 40 |CFR 261.32, as amended February 13, 1986
[50 FR 5330], Revision Checklist 21.
(6) Four spent solvents, 40, CFR 261.31 and 261.33(f), as
amended February 25, 1986 [51 FR 6541], Revision Checklist
22.
(7) [OPTIONAL; This is a reduced requirement.] Listing of
spent pickle liquor from steel finishing operations, 40
CFR 261.32, as amended May 28, 1986 [51 F_R 19320] and
September 22, 1986 [51 FR 33612], Revision Checklist 26.
The "OPTIONAL; This is a reduced requirement" is used to
indicate provisions that either are less stringent or reduce
the scope of the program. Any State which adopts an "optional"
requirement must ensure that it is as least as stringent as the
Federal requirement.
3.3-4
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(8). Listing of commercial chemical products and Appendix VIII
constituents, 40 CFR 261.33 and Appendix VIII, as amended August 6,
1986 [51 FR 28296], Revision Checklist 29.
(9) EBOC wastes, 40 CFR*261.32, as amended on October 24, 1986 [51 FR
37725], Revision Checklist 33.
[Federal Authority: RCRA §3001(b).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General
B. State statutes and regulations define hazardous waste so as to control
the generation, transportation, treatment, storage and disposal of hazardous
waste produced by small quantity generators of between 100 and 1000
kilograms/month as indicated in Revision Checklist 23. State statutes and
regulations also require small quantity generators to certify good faith
efforts to minimize waste generation and to select the best available and
affordable treatment, storage or disposal alternatives, 40 CFR 262 as amended
October 1, 1986 [51 FR.35190], Revision Checklist 32 (see Item IX below).
[Federal Authority: RCRA §3001(d); 40 CFR Parts 260-263 and 270 as amended
March 24, 1986 (51 FR 10174) and October 1, 1986 (51 FR 35190.]
Citation of Laws and Regulations;. Date of Enactment and Adoption Remarks of the
Attorney General:
C. [This is an optional requirement only if States do not have a
delisting mechanism.] State statutes and regulations provide authority to
delist,.hazardous waste as indicated in Revision Checklist 178.
(1) State statutes and regulations require that before deciding to delist
a waste, the State must consider whether any listing factor
(including additional constituents) other than those for which the
waste was listed would cause the waste to be hazardous.
[Federal Authority: RCRA §2001(f)('l); 40 CFR 260.22.]
(2) State statutes and regulations require that there be no new temporary
delistings without prior notice and comment. All temporary
deli stings received before November 18, 1984 without the opportunity
for public comment and full consideration of such comment, shall
lapse if not made final by November 8, 1986.
[Federal Authority: RCRA §3001(f)(2);.40 CFR 260.20(d).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General~*
D. [OPTIONAL: This is a reduced requirement.] State statutes and
regulations define hazardous waste so as to exclude waste pickle liquor sludge
generated by lime stabilization, but only to the extent that such waste is
3.3-5
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OSWER DIRECTIVE #9541.00-7
excluded by 40 CFR 261.3(0(2), as amended June 5, 1984 [49 FR 23287], as
indicated in Revision Checklist 8.
[Federal Authority: RCRA §3001; 40 CFR 261.3(c).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General
E. [OPTIONAL: This is a reduced requirement.] State statutes and
regulations define hazardous waste so as to not exclude household waste other
than those household wastes excluded in 40 CFR 261.4(b)(l), as amended November
13, 1984 [49 FR 44980], and as indicated in Revision Checklist 9.
[Federal Authority: RCRA §3001; 40 CFR 261.4(b)(c).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General
F. State statutes and regulations incorporate the most recent edition and
updates to "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods"
(SW-846) as indicated in Revision Checklists 11 and 35.
[Federal Authority: RCRA §§2002, 3001 and 40 CFR 260.11, 260.21 and 270.6(a)
,a-s amended December 4, 1984 (49 FR 47391) and March 16, 1987 (52 FR 8072).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney GeneraT " ~~~~~"
G. State statutes and regulations define solid wastes to include the
hazardous components of radioactive mixed wastes, July 3, 1986 [51 FR 24504].
See State Program Advisory (SPA) ?2.
[Federal Authority: RCRA §§1006 and 3001(b).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney GeneraT
II. DEFINITION OF SOLID WASTE
A. State statutes and regulations define hazardous waste and impose
management standards so as to control all the hazardous waste controlled under
-40 CFR Parts 261, 264, 265 and 266 as amended January 4, 1985 [50 FR 614-669],
April 11, 1985 [50 FR 14216-20], August 20, 1985 [50 FR 33541-43] and June 5,
1987 (52 FR 21306) as indicated in Revision Checklists 13 and 37.
[Federal Authority: RCRA §§3001, 3004]
Citation of Laws and Regulations;. Date o.f Enactment and Adoption Remarks of the
Attorney General!*:
3.3-6
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III. MANAGEMENT OF DIQXIN WASTES
A. State statutes and regulations contain the following requirements
regarding,dioxin wastes as indicated in Revision Checklist 14:
a" i
(1) Dioxin wastes are listed and otherwise identified as hazardous wastes
so as to encompass all such wastes controlled under 40 CFR 261.5(e),
261.7(b), 261.30(d), 261.31, and 261.33(f).
(2) Special management and permitting standards for facilities managing
dioxin wastes and prohibitions applicable to interim status
facilities, as provided in 40 CFR Parts 264, 265, and 270.
[Federal Authority: §§3001, 3004; 40 CFR Parts 261, 264, 265 and 270 as
amended January 14, 1985 (50 FR 1978-2006).]
Citation of Laws and Regulations;,Date of Enactment and Adoption Remarks of the
Attorney General
IV. SATELLITE ACCUMULATION ' .
[OPTIONAL: This is a reduced requirement.] State statutes and
regulations allow generators to accumulate at the site of generation, without a
permit or interim status, as much as 55 gallons of hazardous waste or one-quart
of acutely hazardous waste provided that the generator complies with the
requirements specified in §262;3^(c) as indicated in Revision Checklist 12.
[Federal Authority: RCRA §§2002, 3002, 3004, 3005 and 40 CFR 262.34(c) as
amended December 20, 198* (49 FR 49571).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General" " '
V. APPLICABILITY OF INTERIM STATUS STANDARDS
A.; .State statuses and regulations contain the following requirements
regarding interim status standards as indicated in Revision Checklists 3 and
10: '
(1) Interim status standards apply to facilities identified in 40 CFR
265.l(b).
[Federal Authority: RCRA §3004; 40 CFR Part 265 as amended November 22, 1983
(48 FR 527.18) and November 21, 1984 (49 FR 46095).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General"''
3.3-7
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OSWER DIRECTIVE *9541.1DO-7
VI. PAINT FILTER TEST
State statutes and regulations require the use of a paint filter test to
determine the absence or presence of free liquids in either a containerized or
bulk'waste as indicated in Revision Checklists 16, 17F and 25.
[Federal Authority: RCRA §§3004, 3005; 40 CFR Parts 260, 264, 265, and 270 as
amended April 30, 1985 (50 FR 18370), July 15, 1985 (50 FR 28702) and May 28,
1986 (51 FR 19176).] ~~ ~~
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney GeaeraT'
VII.. NATIONAL UNIFORM MANIFEST
State statutes and; regulations require generators to use the national
uniform manifest as indicated in Revision Checklists 5 and 32.
[Federal Authority: RCRA §§2002, 3002, 3003 and 40 CFR Parts 260 and 262 as
amended March 20, 1984 (49 FR 10490) and Octcoer 1, 1986 (51 FR 35190)..]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney GeneraT!"""""
VIII. BIENNIAL REPORT '
A. State statutes and regulations contain the following reporting
requirements as indicated in Revision Checklists 1 and 30.
(1) The bienn-ial report contains the information indicated in 40 CFR
262.41U).
i
(2) Facilities must submit groundwater monitoring data annually to the
State Director as indicated in 40 CFR 265.,94"
[Federal Authority: RCRA §§3002, 3004; 40 CFR Parts 262 and 265 as amended
January 28;'1983 (48 FR 3981-83) and August 8, 1986 (51 FR 28566).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General
.IX. WASTE MINIMIZATION
State statutes and regulations contain the following requirements
regarding waste minimization as indicated in Revision Checklists 17D, 30 and 32
(see Item I.B. above).
(1) Generators must submit report and manifest certifications regarding
efforts taken to minimize the amounts and toxicity of wastes.
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OSVTER DIRECTIVE #9541.00-7
[Federal Authority: RCRA §3002(a)(6), (b); 40 CFR 262.41, 264.75 and 265.75 as
amended July 15, 1985 (50 FR 28702),. August 8, 1986 (51 FR 28.556) and October
1, 1986 (51 FR 35190).] ~~
Citation of Laws and. Regulations; Date of Enactment and Adoption Remarks of the
Attorney General
(2) RCRA permits for the treatment, storage, or disposal of hazardous
waste on the premises where the waste was generated must contain a
certification by the permittee regarding efforts taken to minimize
the amount and toxicity of the generated wastes.
[Federal Authority: §300'5(h); 40 CFR Parts 264.70, 264.73 and 270.30(j)(2) as
amended July 15, 1985 (50 FR 28702).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General
X. LIQUIDS IN LANDFILLS
A. State statutes and regulations contain the following requirements
regarding liquids in landfills as indicated in Revision Checklists 17F and 25.
(1) Effective May 8, 1985r there is a ban on the placement of bulk or
non-containerized liquid hazardous waste or hazardous waste
containing free liquids in any landfill pursuant to 40 CFR 264.314
and 265.314 as amended July 15, 1985.and May 28, 1986.
(2) Effective November 8, 1985, there is a ban on the placement of
non-hazardous liquids in landfills unless the owner or operator
satisfies the criteria set forth in 40 CFR 264.314(e), 265.314(e), as
amended July 15, 1985 and May 28, 1986.
(3) For bulk or non-containerized liquid wastes or wastes containing free
liquids they may be placed in a landfill prior to May 8, 1985, only
if the .requirements of 40 CFR 264.314(a) and 265.314(a) are met.
[Federal Authority: §3004(c); 40 CFR 264.314, 265.314 and 270.21(h) as amended
July 15, 1985 (50 FR 28702) and May 28, 1986 (51 FR 19176).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General ~~
XI. GROUND-WATER MONITORING
A. State statutes and regulations provide that the §3004 groundwater
monitoring requirements applicable to surface impoundments, waste piles, land
treatment units and landfills shall apply whether or not such units are located
above the seasonal high water table, have two liners and a leachate collection
3.3-9
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OSWER DIRECTIVE #9541.00-7
system or have liners that are periodically inspected, as indicated in Revision
Checklist 171.
[Federal Authority: RCRA §3004(p); 40 CFR 264.222, .252, .253, and .302 as
amended July 15, 1985 (50 FR 28702).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney .General
B. [OPTIONAL: This is a reduced requirement.] State statutes and
regulations may allow variances from the ground-water monitoring requirements
as provided in §3004(p). However, those variances must be restricted as
provided in RCRA §3004(p).
[Federal Authority: RCRA §3004(p); 40 CFR 264.90(b).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General";
XII. BURNING AND BLENDING OF HAZARDOUS WASTES
A. State statutes and regulations provide the following requirements:
(1) The burning of fuel containing hazardous waste in a cement kiln is .
prohibited as specified in 40 CFR 266.31 .and Revision Checklist 17J.
[Federal Authority: RCRA §3004(q); 40 CFR 266.31, July 15, 1985 (50 FR
28702).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General"
(2) Fuels containing hazardous waste and all persons who produce,
distribute and market fuel containing hazardous "wastes must be
regulated as indicated in Revision Checklists 17J and 17K.
[Federal Authority: RCRA §§3004(q)-(s); 40 CFR 261.33; 266.34, July 15, 1985
(50 FR 28702-).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General
B.. [OPTIONAL: This is a reduced requirement.] State statutes and
regulations provide exceptions to these requirements as specified in
§§3004(q)-(s).
[Federal Authority: RCRA §§3004(q)-(s).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General
3.3-10
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OSWER DIRECTIVE #9541.00-7
XIII. CORRECTIVE ACTION
State statutes and regulations contain the following corrective action
requirements as indicated in Revision Checklists 17L and 38.
(1) Corrective action is required for releases of hazardous waste .or
constituents from any solid waste management unit at a facility
seeking a permit, regardless of when the waste was placed in the
unit, in all permits issued after November 8, 1984 as indicated in
Revision Checklist 17L.
[Federal Authority: RCRA.§3004(u); 40 CFR 264.90; .101; 270.60.]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General '. :
(2) Corrective action is required beyond a facility's boundary, in
accordance with RCRA §3004(v). (States now may impose these
requirements through a permit or a corrective action order. Once EPA
promulgates the, regulations required by RCRA §3004(v), States, will
need authority to- impose corrective action in a permit following the
§3004(v) regulations.)
[Federal Authority: RCRA §3004(v)(1).]
Citation of Laws and Regulations;-Date of Enactment and Adoption Remarks of the
Attorney General'~
(3) Corrective action is required beyond a facility's boundary in
accordance with §3004(v) for all landfills, surface impoundments and
waste pile units (including any new units, replacements of existing
units or lateral expansions of existing units) which receive
hazardous waste after July 26, 1982.
[Federal Authority: RCRA ,§3004(v)(2).]
.Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General ~ -- -- -_..,-. .,.-,,_, ,..,._,_,, .__. ,__..__,._..,_.__
(4) There is evidence of financial responsibility for corrective action
on- and off-site.
[Federal Authority: RCRA §§3004(a)(6); (u); 40 CFR 264.90; .101.]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General
(5) Additional information and engineering feasibility plan requirements
regarding groundwater contamination detected at the time of Part B
permit application as indicated in Checklist 38 (52 FR 23447, June
22, 1987 and 52 FR 33936, September 9, 1987),
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OSWER DIRECTIVE #9541.00-7
[Federal Authority: Sees 1006, 2002, 3005, 3007 and 70C4 of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act, as
amended (42 U.S.C. 6905, 6912, 6925, 6927, 6974), unless otherwise noted.]
XIV. HAZARDOUS WASTE EXPORTS
State statutes and regulations require generators and transporters of
hazardous waste destined for export outside the United States to comply with
standards equivalent to those as indicated in Revision Checklist 31.
[Federal Authority: RCRA §3017; 40 CFR 262.50 as amended August 8, 1986 (51 FR
28664).] . ~~
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General":
XV. STANDARDS FOR FACILITIES
A. State statutes and regulations prohibit the land disposal of hazardous
waste prohibited under 40 CFR Parts 264 and 265 as indicated in Revision
Checklist 17E. Land disposal includes, but is not limited to, placement in
landfills, surface impoundments, waste piles, deep injection wells, land
treatment facilities, salt dome and bed formations and underground mines or
caves. Deep injection well means a well used for the underground injection of
hazardous wastes other than a well to which §7010(a) of RCRA applies.
[Federal Authority: RCRA §§3004(b)-(q); 40 CFR 264.18, 265.18.]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General "* " "~
E. Effective on November 8, 1984 State statutes and regulations prohibit
the placement of any non-containerized or bulk liquid hazardous waste in any
salt dome or salt bed formation any underground mine.or cave except as provided
in §264.18(c.) and §265.18(c) as indicated in Revision Checklist 17E.
Furthermore, State statutes and regulations prohibit the placement of any other
hazardous waste in such formations until a permit is'issued.
[Federal Authority: RCRA §3004(b)(4); 40 CFR 264.18 and 265.18.] Citation of
Laws and Regulations; Date of Enactment and Adoption Remarks of the Attorney
-General;
C. State statutes and regulations prohibit the use of waste oil or other
materials contaminated with hazardous wastes (except ignitible wastes) as a
dust suppressant as indicated in Revision Checklist 17G.
[Federal Authority: RCRA §3004(1); 40 CFR 266.23.]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General
3.3-12
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D. State statutes ard regulations allow direct action by third parties
against the insurer or guarantor of an owner/operator's financial
responsibilities if an owner/operator is in bankruptcy reorganization or
arrangement or where (with reasonable diligence) jurisdiction in any State or
Federal Court cannot be obtained over an owner/operator likely to be solvent at
time of judgment.
[Federal Authority: RCRA §3004(t).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney GeneraT
E. State statutes and regulations require the permittee to take steps to
minimize releases to the environment in accordance with 40 CFR Part 270.30(d)
as amended September 1, 1983, as indicated in Revision Checklist 2.
[Federal Authority: RCRA §3005(c).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks c'f the
Attorney GeneraT!~"~"
F. State statutes and regulations require that closure and post-closure
recuirements and special requirements for containers apply to interim status
landfills as indicated in Revision Checklist 15.
[Federal Authority: RCRA .§3004; 40 CFR 265.310, .315 as amended April'23, 1985
(50 £R 16044).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of -the
Attorney GeneraT
G. State statutes and regulations require compliance with
closure/post-closure and financial responsibility requirements applicable to
owners and operators of hazardous waste treatment, storage and disposal
facilities, as indicated in Revision Checklists 24 and 36.
[Federal Authority: RCRA §§3004 and 3005, 40 CFR 260, 264, 265, and 270 as
amended May 2-,- 1986 (51 FR 16422) and March 19, 1987 (52 FR 8704).] ,... ,
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General
H. [OPTIONAL: This is a reduced requirement.] State statutes and
regulations allow companies that treat store or dispose of hazardous waste to
demonstrate alternate coverage for liability insurance in the form of a
corporate guarantee as indicated in Revision Checklist 27.
[Federal Authority: RCRA §§2002, 3004, and 3005, 40 CFR 264.147 and 264.151 as
amended July 11, 1986 (51 FR 25350).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General:
3.3-13
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OSWER DIRECTIVE #9541.00-1
I. State statutes and regulations require companies that generate, treat
or store hazardous waste in containers to comply with tank standards equivalent
to those indicated in Revision Checklist 28.
[Federal Authority: RCRA §§1006, 2002, 3001 - 3007, 3010, 3014, 3017 - 3019
and 7004; 40 CFR 260, 261, 262, 264, 265, and 270 as amended July 14, 1986 (51
£R 25422) and August 15, 1986 (51 FR 29430).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General'
XVI. REQUIREMENTS FOR PERMITS
A. [OPTIONAL: This, is a reduced requirement.] State statutes and
regulations allow a facility (1) to construct an approved TSCA facility for
burning PCBs without first obtaining a RCRA permit and (2).to subsequently
apply for a RCRA permit in accordance with Revision Checklist 17M.
[Federal Authority: RCRA §3005(a), 4Q CFR 270.10(f)(3).]
B. State statutes and regulations require review of land disposal permits
every five years and modification of such permits as necessary to assure
compliance with the requirements in Parts 264, 266, and 270, as indicated in
Revision Checklist 17N.
[Federal Authority: . RCRA §3005(c)(3), 40 CFR 270.41(a) (6), .50(d)..]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney GeneraT:':
C. State statutes 'and regulations require permits to contain any
conditions necessary to protect human' health and the environment in addition to
any conditions required by regulations as indicated in Revision Checklist 170.
[Federal Authority: RCRA §3005(c)(3); 40 CFR 270.32]
Citation of Laws and Regulations; Date of Enactment and.Adoption Remarks of the
Attorney General
D. State statutes and regulations require that:
(1) For land disposal facilities granted interim status prior to 11/8/84,
interim status terminates 11/8/85; unless a Part B application and
certification of compliance with applicable groundwater monitoring
and financial responsibility requirements are submitted by 11/8/85,
as indicated in Revision Checklist UP.
[Federal Authority: RCRA §3005(e); 40 CFR 270.73(c).]
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OSWER DIRECTIVE £9541.00-7
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General"
(2) For land disposal facilities in existence on the effective date of
statutory or regulatory changes under this Act that render the
facility subject to the requirement to have a permit and which is
granted interim status, interim status terminates 12 months after the
date the facility first becomes subject to such permit requirement
unless a Part B application and certification of compliance with
applicable groundwater monitoring and financial responsibility
requirements are submitted by that date as indicated in Revision
Checklist 17P.
[Federal Authority: RCRA §3005(e); 40 CFR 270.73(d).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General :
(3) Interim status terminates for incinerator facilities by 11/8/89
unless the owner/operator submits a Part B application by 11/8/86 as
indicated in Revision Checklist 17P.
[Federal Authority: RCRA' §3005(c) (2)(C); 40 CFR 270.7.3(e).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General
(4) Interim status- terminates for any-facility other than a land disposal
or an incineration facility by 11/8/92 unless the owner/operator
submits a Part B application by 11/8/88 as indicated in Revision
Checklist 17P.
[Federal Authority: RCRA §3005(c)(2)(C); 40 CFR 270.73(f).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General
E. [OPTIONAL: This is a reduced requirement.] State statutes and
regulations allow facilities to qualify for interim status if they (1) are in
existence on the effective date of statutory or regulatory changes that render
the facility subject to the requirement to have a permit and (2) comply with
§270.70(a) a.s indicated in Revision Checklist 17P.
[Federal Authority: .RCRA §3005(e); 40 CFR 270.73(d).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General"
F. State statutes and regulations provide that facilities may not qualify
for interim status under the State's analogue to Section 3005(e) if they were.
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OSWER DIRECTIVE #9541.00-7
previously denied a Section 3005(c) permU or if authority to operate the
facility has been terminated as indicated in Revision Checklist 17P.
[Federal Authority: RCRA §3005(c)(3); 40 CFR 270.70(c).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General:
G. [OPTIONAL: This is a reduced requirement.] State statutes and
regulations allow the issuance of a one-year research development, and
demonstration permit (renewable 3x) for any hazardous waste treatment facility
which proposes an innovative and experimental hazardous waste treatment
technology or process not yet regulated as indicated in Revision Checklist 17Q.
If adopted, however, the State must require the facility to meet RCRA's
financial responsibility and public participation requirements and retain
authority to terminate experimental activity if necessary to protect health or
the environment.
[Federal Authority: RCRA §3005(g); 40 CFR 270.65]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General' . " . '
H. State statutes and regulations require landfills, surface
impoundments, land treatment units, and waste piles that received waste after
July 26, 1982 and which Qualify for interim status to comply with the . ,
groundwater monitoring, unsaturated zone monitoring, and corrective action
requirements applicable to new units at the time of permitting as- indicated.in>
Revision Checklist 17L.
[Federal Authority: RCRA §3005(i); 40 CFR 264.90(a).j
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General
I. State statutes and regulations require:
(1) Surface impoundments in existence on November 8, 1984 [or
subsequently becoming subject to RCRA pursuant to §3005(j)(6)(A) or
(B)] to comply with the double liner, leachate collection, and
grcundwater monitoring requirements applicable to new units by
November 8, 1988 [or the date specified in §3005(j)(6)(A) or (B)] or
to stop treating, receiving, or storing hazardous waste, unless the^
surface impoundment qualifies for a special exemption under §3005(j).
[Federal Authority: RCRA §3005(j)(8).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of the
Attorney General;
(2) Surface impoundments to comply with the double liner, leachate
collection and ground-water monitoring requirements if the Agency
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OSWER DIRECTIVE
allows a hazardous waste prohibited from land disposal under
§3004(d), (e) or (g) to be placed in such impoundments.
[Federal Authority: RCRA §3005(j)(ll)-.]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of'
Attorney General"
(3) [OPTIONAL: This is a reduced requirement.] State statutes and
reaulations may allow variances from the above requirements as
provided in RCRA §3005(j)(2-9) and (13). However, the availability
of such variances must be restricted as provided in RCRA §3005(j).
[Federal. Authority: RCRA §3005( j)(2-9).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of
Attorney GeneraT'
J. [Optional: This is a reduced requirement.] Facility owners or
operators are given the opportunity to cure deficient Part A applications in
accordance with 40 CFR 270.70(b) before failing to qualify for interim status
as indicated in Revision Checklist 6.
[Federal Authority: RCRA §3005; 40 CFR Part 270 as amended April 24, 1984 (49
FR 17716).] - .
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of
Attorney GeneraT["
i
XVII. MINIMUM TECHNOLOGICAL REQUIREMENTS
A. State statutes and regulations require that new units, expansions, and
replacements of interim status waste piles meet the requirements for a single
liner and leachate collection system in regulations applicable to permitted
waste piles as indicated in the Revision Check-list 17H.
[Federal Authority: RCRA §3015(a); C-FR >265 .254>
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of
Attorney General '
B. State statutes and regulation require that:
(1) New units, expansions, and replacement units at interim status
landfills and surface impoundments and permitted landfills and
surface impoundments meet the requirements for double liners and
leachate collection systems applicable to new permitted landfills and
surface impoundments in 40 CFR 264.221 and .301 and 265.221-and .301
as indicated in Revision Checklist 17H.
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OSWER DIRECTIVE #9541.00-7
(2) [Optional: This is a reduced requirement.] Facilities which comply
in good faith need not retrofit at permit issuance unless the liner '
is leaking as provided in §§265.221(e) a"d 265.301(e) as indicated in
Revision Checklist 17H.
(3) Variances from the above requirements are optional. However, the
availability of such variances is restricted as provided in
§§265.221(c) and 265.301(c) as indicated in Revision Checklist 17H.
[Federal Authority: RCRA §3015(b); 40 CFR 264.221 and 265.221.]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of
Attorney GeneraT'""
.XVIII. EXPOSURE ASSESSMENTS
A. State laws and regulations require permit applicants for landfills or
surface impoundments to submit exposure information as indicated in Revision
Checklist 17S.
[Federal Authority: RCRA §3019(a); 40 CFR 270.10(j).]
B. State laws and regulations allow the State to make assessment
information available to the Agency for Toxic Substances and Disease Registry.
(See CERCLA §104(i).]
*
[Federal Authority: RCRA §3019(b).] .
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of
Attorney General":
XIX. AVAILABILITY OF INFORMATION
State'statutes and.regulations provide'that:
(1) All records shall be available to the public unless they are exempt
from the disclosure requirements of the Federal FOIA, 5 U.S.C. 552;
(2) All nonexempt records will be available to the public upon request
regardless of whether any justification or need for such records has
been shown by the requestor;
(3) The same types of records.would be available to the public from the
State as would be available from EPA. [In making this certification,
the Attorney General should be aware of the types of documents EPA
generally releases under the FOIA, subject to claims of business
confidentiality: permit applications; biennial reports from
facilities; closure plans; notification .of a facility closure;
contingency plan incident reports; delisting petitions; financial
responsibility instruments; ground-water monitoring data (note that
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OSWSR DIRECTIVE #9541.00-9
5 U.S.C.552(b)(9) of the FOIA applies to such wells
gas, rather than to ground-water wells); transporter
exempt ions
as oi1 and
spill reports; international shipment reports; manifest
exception, discrepancy and unmanifested waste reports; facility
EPA identification numbers; withdrawal requests; enforcement
orders; and, inspection reports]; and,
(4) Information is provided to the public in substantially the same
.manner as EPA as indicated in 40 CFR Part 2 and the Revision
Checklist in Appendix D of the SCRAM. [OPTIONAL: Where the
State agrees to implement the selected provisions through the
use of a Memorandum of Agreement (MOA) the Attorney General
must certify that: "The State has the authority to enter into
and carry out the MOA provisions and there are no State
statutes (e.g.,State Administrative Procedures Acts) which
require notice and comment or .promulgation of regulations for
the MOA procedures to be binding.] ;
(5) [OPTIONAL: The State statutes and agulations protect
Confidential Business information (CBI) to the same degree as
indicated in 40 CFR 2 and the Revision Checklist in Appendix D
of the SCRAM. Note, that States do not have to protect CBI,
to satisfy 3006(f). However, if. a State does extend protection
to CBI then it cannot restrict the release of information that
EPA would require to be disclosed.]
[FEDERAL Authority: RCRA Section 3006(f) ; .40- CFR Section 271.17(c).]
W^itation of Laws and Regulations'; Date of- Enactment and Adoption; Remarks
of Attorney General
XX. BURNING OF WASTE FUEL AND USED OIL FUEL IN BOILERS AND INDUSTRIAL
FURNACES
A. State statutes and regulations contain the following
requirements regarding the burning of waste fuel and used oil fuel for
energy recovery in boilers and industrial furnaces as indicated in
Revision Checklist 19:
(1)
(2)
Waste fuels and used oil fuels are
so as to encompass all such wastes
261.3, 261.5 and 261.6.
identified
controlled
as solid wastes
under 40 CFR
Special management standards for generators transporters,
marketers and burners of hazardous waste and used oil burned
for energy, as provided in 40 CFR 264.340, 265.340, 266.30-35
and 266.40-45.
[Federal Authority: Sections 3001, 3004, 3014(a); 40 CFR Parts 261,
264, 265 and 266 as amended November 29, 1985 [50 FR 49164 - 49212],
November 19, 1986 [51 £R 41900 - 41904] and April 13, 1987 [52 FR 11819
- 11822] .]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks
of Attorney General
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OSWER DIRECTIVE #9541.00-7.
B. State statutes and regulations provide the authority to obtain
criminal penalties for violations of the waste fuel and used oil fuel .
requirements, as provided in 40 CFR 266.40-45.
[Federal Authority: §3C06(h), §3008(d), 3014; 40 CFR 271.16]
Citation of laws and Regulations; Date of Enactment and Adoption Remarks of
Attorney General
XXI. LAND DISPOSAL RESTRICTIONS
A. State statutes and regulations provide for the restrictions of the
land disposal of certain spent solvents and .dioxin-containing hazardous wastes
as indicated in Revision Checklist 34. ' ;
[Federal Authority: §3004(d)-(k) and (m); 40 CFR Parts 260, 261, 262, 263,
264, 265, 268 and 270 as amended on November 7, 1986 (51 FR 4(3572) and as
amended on June 4, 1987 (52 FR 21010).]
Citation of Laws and Regulations; Date of Enactment and Adoption Remarks of
Attorney General"[
XXII. MEMORANDUM OF AGREEMENT (MCA) .
[If the State uses the MOA to satisfy Federal procedural.requirements, the
Attorney General must certify the following: : '
(1) The State has the authority to enter into the agreement,
(2) The State has the authority to carry out the agreement, and
(3) No applicable State statute (including the State Administrative
Procedure Act) requires that the procedure be promulgated as a rule
in order to be binding. .'. :
Seal of Office ,. : '
Signature
Name (Type or Print)
Title
Date
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OSWER DIRECTIVE §9541.00-93
Attachment B
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OSWER DIRECTIVE #9541.00-9
MODEL G
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 272
HAZARDOUS WASTE MANAGEMENT PROGRAM: CODIFICATION OF APPROVED
STATE HAZARDOUS WASTE PROGRAM FOR [insert name of State]
AGENCY: Environmental Protection Agency
ACTION: Proposed/Final Rule
SUMMARY: The Resource Conservation and Recovery Act of 1976^ as
amended (RCRA) authorizes the U.S. Environmental Protection Agency
(EPA) to grant Final Authorization to States to operate their
hazardous waste management programs in lieu of the Federal program.
40 CFR Part 272 codifies EPA's prior authorizacion of State programs
and incorporates by reference those provisions of the State statutes
and regulations that EPA will enforce under RCRA Sections 3008,
3013, and 7003. This [[proposal is to codify] or [rule codifies]]
the [insert State name] authorized State program in Part 272.
DATES: [For proposed rule: Comments on [insert State name]
authorized program proposed codification must be received by the
close of business [insert date 30 days after publication]]. [For
final rule: The codification is effective [insert date 14 days
after publication] . The incorporation by reference of certain [name
of State] statutes and regulations was approved by the Director of
the Federal Register in accordance with 5 U.S.C. 552(a).
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OSWER DIRECTIVE #9541.00-9
[ADDRESSES: For proposed rule: Written comments should be sent
to [insert name/ address, and telephone number of the appropriate
Regional contact]]..
FOR FURTHER INFORMATION CONTACT: [Insert name, address, and
telephone number of the appropriate Regional contact].
SUPPLEMENTARY INFORMATION
Background : .
Section 3006 of the Resource Conservation and Recovery Act
of 1976, as amended,, (RCRA), 42 U.S.C. 6926 et. seq. , allows, the
U.S. Environmental Protection Agency (EPA), to.authorize State
hazardous waste programs to operate in the State in lieu of the
Federal hazardous waste-program. On [insert date of final deter-
mination], EPA published a Federal Register notice announcing its
decision to grant final authorization to'[inspect State name]. .
(See F_R ). [Describe program revisions for which State
is authorized and current [proposed] revisions if applicable].
Since that ;time, EPA has decided to codify its approval of
« '
State programs in Part 272 of Title 40, Code of Federal Regulations
(CFR). and to incorporate by reference therein the State statutes
and regulations that EPA will enforce under Sections 3008, 3013,
and 7003 of RCRA. Today's [proposed] codification reflects the
State program that was in effect when EPA granted [insert state
name] final authorization under Section 3006(b) for its hazardous
waste program and authorized revisions thereto and the revisions
[[being authorized for today] or [proposed for authorization]].
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OSWER DIRECTIVE #9541.00-9
This effort will provide clearer notice to the public of the
scope of the authorized program in each State. Such notice is
particularly important in light of the Hazardous and Solid Waste
Act Amendments of 1984 (HSWA), Pub. L. 98-616. Revisions to State
hazardous waste programs are necessary when Federal statutory or
regulatory authority is modified. Because HSWA extensively amended
RCRA, State programs must be modified to reflect those.'amendments.
3y codifying the authorized [insert State name] program and by
amending the Code of Federal Regulations whenever a new or different
set of requirements is authorized in [insert State name], the
status of Federally approved requirements of the [.insert State name]
program wti 11 be readily discernible.
The Agency will only codify for enforcement purposes those
provisions of the [insert State name] hazardous waste management
program.for which authorization approval has been granted by EPA.
Concerning HSWA, some State requirements may be similar to HSWA
requirements that are in effect under Federal statutory authority
in that State. However, a State's HSWA-type requirements are not
' .
authorized and will not be codified into the CFR until the Regional
Administrator publishes his final decision to authorize the State
for specific HSWA requirements and not the State analogs.
To codify the [insert State name] authorized hazardous waste
program, EPA [[proposes to add] or [has added]] Subpart [ ] to
Part 272 of Title 40 of the CFR. Subpart [ ] has previously been
reserved for [insert State name]. [[As proposed, section, or
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OSWER DIRECTIVE #9541.00-9
[Section]] 272. l(a)(l) [[will codify for enforcement purposes
or [codifies for enforcement purposes]] the State statutes and
regulations. Section also codifies the Memorandum or Agreement,
the*Attorney General's Statement and the Program Description which
are authorized and made part of the hazardous waste management
program under Subtitle C of RCRA.
The Agency retains the authority under Section 3008, 3013
and 7003 of RCRA to undertake enforcement actions in authorized
States. With respect to su-ch an enforcement action, the Agency
will rely on Federal sanctions, Federal inspection authorities
^
and the Federal Administrative Procedure Act rather than the
State authorized analogs to these requirements. Therefore, the
Agency does not intend to codify for purposes of enforcement such
j
particular, authorized [insert State name] enforcement authorities.
[Propose'd] [3]ection 272. l(a)(2) lists those authorized
[insert State name] authorities that would fall into this category.
The public also needs to be aware that some provisions of the
State's hazardous waste management program are not part of the
Federally authorized State program. These non-authorized provisions
are not part of the RCRA Subtitle C program because they are "broader
in scope" than RCRA Subtitle C. See 40 CFR Section 271.1(1). As a
result, State provisions which are "broader in scope" than the Federal
program are not codified for purposes of enforcement in Part 272.
Section 272. l(a)(3) of the [proposed] codification simply lists
for reference and clarity the [insert State name] statutory and
regulatory provisions which are "broader in scope" than the Federal
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OSWER DIRECTIVE #9541.00-9
program and which are not, therefore, part of the authorized program
[[proposed for codification] or [being codified today]]. "Broader
in scope" provisions will not be enforced by EPA; the State,, however,
will continue to enforce such provisions.
As noted above, the Agency is not [[proposing to amend] or
[amending]] Part 272 to include HSWA requirements and prohibitions
that are immediately effective in [insert State name] and other
States. Section 3006(g) of RCRA provides that any requirement or
prohibition of HSWA (including implementing regulations) takes
effect in authorized States? at the same time that it takes effect
in non-authorized states. Thusif EPA has immediate authority to
implement a HSWA requirement or prohibition once it is effective.
A HSWA requirement or prohibition supercedes any.less stringent
or inconsistent State provision which may have been previously - '
authorized by EPA. (See 50 F_R 28702, July 15, 1985.) Because
of the vast number of HSWA statutory and regulatory requirements
taking effect over the next few years, EPA expects that many pre-
viously authorized and codified State provisions will be affected.
The States are required to revise their programs to adopt the HSWA
requirements and prohibition by the deadlines set forth in
40 CFR Section 271.21, and then to seek authorization for those
revisions pursuant to 40 CFR Section 271. EPA expects that the States
will be modifying their programs substantially and repeatedly.
Instead of amending the Part 272 codification every time a new HSWA
provision takes effect under the authority of RCRA Sect ion 3006(g),
EPA will wait until the State receives authorization for its analog
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OSWER DIRECTIVE #9541.00-9
to the new HSWA. provision before amending the State's Part 272
codification. In the interim, persons wanting to know whether a
HSWA requirement or prohibition is in effect should refer to
40 CFR 271.l(j), as amended, which lists each such provision.
The codification of State authorized programs in the CFR
should substantially enhance the public's ability to discern the
current status of the authorized State program and clarify the
extent of Federal enforcement authority. This will b'e particularly
true as more State program revisions to adopt HSWA provisions are
i
authorized.
.Certif ica-t ion Under The Regulatory Flexibility Act
Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify
that this action will not have a significant economic impact on
a substantial number of small entities. It . [ [proposes to" codify]
or [codifies;]] the decision already made to' authorize the [insert
State name] program and has no separate effect on handlers of
hazardous waste in the State or upon small entities. This rule,
therefore, does not require a regulatory flexibility analysis.
Compliance With Executive Order 1229.1
The Office of Management and Budget has exempted this rule
from the requirements of Section 3 of Executive Order 12291.
Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et. seq.,
Federal agencies must consider the paperwork burden imposed by
any information request contained in a proposed rule or a final
rule. This rule will not impose any information requirements
upon the regulated community.
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OSWER DIRECTIVE #9541.00-9
List of Subjects In 40 CFR Part 272
Administrative practice and procedure, Confidential business
information, Hazardous waste transportation, Hazardous waste,
Incorporation by reference, Indian lands, Intergovernmental
relations, Penalties, Reporting .and recordkeeping requirements,
Water pollution control, Water supply.
.Dated:
Regional Administrator
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OSWER DIRECTIVE #9541.00-9
For the reasons set forth in the preamble, 40 CFR Part 272 is
[proposed to be] revised as follows:
PART 272 - APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS
1. The authority for Part 272 continues to read as follows:
Authority: Sees. 2002(a), 3006, and 7004(b) of the Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976, as amended, 42 U.S.C. 6912(a), 6926, and
6974(b).
2. The table of contents for Part 272 is revised to read as
f'ollows:
SUB-PART [insert appropriate letter(s) and appropriate #s] -
[insert State name]
272. State Authorization1
272. 1 State-Administered Program: Final Authorization
272. 2 State-Administered Program: Interim Authorization
272. 3 - 272. [Reserved]
3. 40 CFR Part 272, Subpart [insert appropriate letter and
appropriate #s] is amended to read as follows:
272. - State Authorization
(a) The State of [insert State name] is authorized to
administer and enforce a hazardous waste management program in lieu
of the Federal program under Subtitle C of the Resource Conservation
and Recovery Act of 1976 (RCRA), 42 U.S.C. 6921 et. seq., subject to
the Hazardous and Solid Waste Amendments of 1984 (HSWA), (Pub. L.
98-616, Nov. 8, 1984), 42 U.S.C. 6926(c) and (g)). The Federal
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OSWER DIRECTIVE #9541.00-9
program for which a state may receive authorization is defined
in 40 CFR.Part 271. The State's program, as administered by
the [insert State lead agency] was approved by EPA pursuant to
42 U.S.C. 6926(b) and Part 271 of this Chapter. EPA's approval
was effective on [insert appropriate Federal Register reference].
(b) [insert State name] is not authorized to implement
any HSWA requirements in lieu of EPA unless EPA has explicitly
indicated its intent to allow such action in a Federal Register
notice granting [insert State name] authorization.
(c) [insert State name] has primary responsibility for
enforcing its hazardous waste program. However, EPA retains the
authority to exercise its enforcement authorities under Sections
3007, 3008, 3013, and 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934,
and 6973, as well as under Bother Federal laws and regulations.
(d) [insert] State name] must revise its approved program
to adopt new changes to the Federal Subtitle C program in accordance
with Section 3006(b) of RCRA and 40 CFR Part 271, Subpart A.
[Insert State name] must seek final authorization for all program
revisions pursuant to Section 3006(b) of RCRA, but, on a temporary
basis, may seek interim authorization for revisions required by
HSWA pursuant to Section 3006(g) of RCRA, 42 U.S.C. 6926(g). If
[insert State name] obtains final authorization for the revised
requirements pursuant to Section 3006(g), the newly authorized
provisions will be listed in 272. 1 of this Subpart. If
[insert State name] obtains interim authorization for the revised
requirements pursuant to Section 3006(g), the newly authorized
provisions will be listed in 272. 2.
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OSWER DIRECTIVE #9541.00-9
272. 1 State-Administered Program: Final Authorization
Pursuant to Section 3006(b) of RCRA, 42 U.S.C. 6926(b):
[Insert State name] has final authorization for the following
elements submitted to EPA in [insert State name] program application
for final authorization and approved for by EPA on . [Insert
Final Authorization for Base Program and any program revisions].
(a) State Statutes and Regulations. (1) The requirements in
I ...
the [insert State name] statutes and regulations cited in this
paragraph are incorporated by reference and codified as part of
the hazardous waste management program under Subtitle C of RCRA,
42 U.S.C'. 6921 et. se'q. This -incorporation by reference was
approved by the Director of the Federal Register in accordance
with 5 U.S.C. 552(a).
(i) [Insert reference for statutory authorities that are
part of the approved program under RCRA.]
(ii) [Insert reference for hazardous waste rules that are a
part of the approved program under RCRA.]
(2) The following'statutes and regulation, although not
codified herein for enforcement purposes, are part of the authorized
State program.
(i) [Insert reference for statutory authorities that are not
to be incorporated by reference but are part of the approved program.]
(ii) [Insert reference for regulations that are not to be
incorporated by reference but are part of the approved program under
RCRA.]
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OSWSR DIRECTIVE #9541.00-9
(3) The following statutory and regulatory provisions are
broader in scope than th Federal program, are not part of the
authorized program, and are.not codified herein for enforcement
purposes.
(i) [Insert statutory provisions, if any, which are broader
in scope.]
(ii) [Insert regulatory provisions, if any, which are broader
in scope.]
(b) Memorandum of Agreement. The Memorandum of Agreement
i
between EPA Region and the [insert State lead agency], signed
by EPA Regional 'Administrator on [insert appropriate date] is
codified as part of the authorized hazardous waste management
program under Subtitle C of RCRA, 42 U.S.C. 6921 et. seg.
(c) Statement of Legal Authority. [(!)] "Attorney General's
Statement for Final Authorization", signed by the Attorney General
of [insert State name] on [insert appropriate date] is codified
as part of the authorized hazardous waste management program under
Subtitle C of R-CRA, 42 U.S.C. 6921 et. sea.
[(2)] Letter from the Attorney General of [insert State name]
to EPA, [insert appropriate date]. .
(d) Program Description. The Program Description and any
other materials submitted as part of the original application or
as supplements thereto are codified as part of the authorized
hazardous waste management program under Subtitle C of RCRA,
42 U.S.C. 6921 et. seq. 272. 2 State-Administered Program:
Interim Authorization. [Insert paragraph similar to 272. 1
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OSWER DIRECTIVE #9541.00-9
above. These -paragraphs will reflect approved program revisions
for interim authorization.].
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OSWER DIRECTIVE #9541.00-9
.MODEL H
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 272
HAZARDOUS WASTE MANAGEMENT PROGRAM: CODIFICATION OF APPROVED
STATE HAZARDOUS WASTE PROGRAM FOR [insert name of State]
AGENCY: Environmental Protection Agency
ACTION: Immediate Final Rule
SUMMARY: The Resource Conservation and Recovery Act of 1976 as
amended (RCRA) authorizes the U.S. Environmental Protection Agency
(EPA) to grant Final Authorization to States to operate their
hazardous waste management programs in lieu of'the Federal program,
40 CFR Part 272 codifies EPA's prior authorization of State
programs and incorporates by reference those provisions of the
State statutes and regulations that EPA will enforce under RCRA
Sections 3008, 3013, and 7003. Thus, EPA intends to codify the
[insert State name] authorized State program in Part 272,.
DATES: The codification of [insert State's name] authorized
hazardous waste program shall be effective [insert date 60 days
after publication] unless EPA publishes a prior Federal Register
action withdrawing this immediate final rule. All comments on
the [insert State name] authorized program codification must be
received by the close of business [insert date 30 days after
publication ] .
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ADDRESSES: Written comments should be sent to [insert name, address,
and telephone number of the appropriate Regional contact].
FOR FURTHER INFORMATION CONTACT: [Insert name, address, and
telephone number of the appropriate Regional contact].
SUPPLEMENTARY INFORMATION:
Background
Section 3006 of the Resource Conservation and Recovery Act
of 1976, as amended, (RCRA), 42 U.S.C. 6926 et. seq., allows the
U.S. Environmental Protection Agency (EPA) to authorize State
hazardous waste programs to operate in the State in lieu of the
Federal hazardous waste program. On [insert date of final
determination], EPA published a Federal Register notice announcing
its decision to grant final authorization to [insert State name].
(See F_R. .) [If applicable describe' program revisions
for which State is authorized]. > !
Since that time, EPA has decided to codify its approval of
State programs in Part 272 of Title 40, Code of Federal Regulations
(CFR) and to incorporate by reference therein the State statutes
and regulations that EPA will enforce under Sections 3008, 3013,
and 7003 of RCRA. The intended codification reflects the State
program that was in effect, when EPA granted [insert State name]
final authorization under Section 3006(b) for its hazardous waste
program [and authorized revisions thereto].
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This effort will provide clearer notice to the public of
scope of the authorized' program in each State. Such notice is
particularly important in light of the Hazardous and Solid Waste
Act Amendments of 1984 (HSWA), Pub. L. 98-616. Revisions to State
hazardous waste programs are necessary when Federal statutory or
regulatory authority is modified. Because HSWA extensively amended
RCRA, State programs must be modified to reflect those amendments.
By codifying the authorized [insert State name] program and by
amending the Code of Federal Regulations whenever a new or different
set of requirements is authorized in [insert State name], the
status of Federally approved requirements of the [insert State name]
program will be readily discernible.
The Agency will only codify for enforcement purposes those
provisions of the [insert State name] hazardous waste management
program for which authorization approval has ,'oeen granted by EPA.
Concerning HSWA, some State requirements may be similar to HSWA
requirements that are in effect under Federal statutory authority
in that State. However, a State's HSWA-type requirements are not
authorized and will not be codified into the CFR until the Regional
Administrator publishes his , final decision to authorize the State
for specific HSWA requirements and not the State analogs.
To codify the [insert State name] authorized hazardous waste
program, .EPA intends to add Subpart [ ] to Part 272 of Title 40
of the CFR. Subpart [ ] has previously been reserved for [insert
State name]. Section 272. l(a)(l) intends to codify for
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enforcement purposes the State statutes and regulations. Section
also codifies the Memorandum of Agreement, the Attorney General's
Statement and the Program Description which are authorized and made
part of the hazardous waste management program under Subtitle C of
RCRA.
The Agency retains the authority under Section 3008, 3013
and 7003 of RCRA to undertake enforcement actions in authorized
States. With respect to such an enforcement action, the Agency
will rely on Federal sanctions, Federal inspection authorities
and the Federal Administrative Procedure Act rather than the
State authorized analogs to these requirements. Therefore, the .
Agency does not intend to codify for purposes of enforcement such
particular-, authorized [insert State name] enforcement authorities.
I
[Proposed] [S]ection 272. l(a)(2) lists those authorized
[insert State, name] authorities that would fall into this category.
The public also needs to be aware that some provisions of the
State's hazardous waste management program are not part of the
Federally authorized State program. These non-authorized provisions
are not part of the^ RCRA Subtitle C program because they are "broader
in scope" than RCRA Subtitle C. See 40 CFR Section 271.1(1). As a
result, State provisions which are "broader in scope" than the Federal
program are not codified for purposes of enforcement in Part 272.
Section 272. l(a)(3) of the [proposed].codification simply lists
for reference and clarity the [insert State name] statutory and
regulatory provisions which are "broader in scope" than the Federal
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program and which are not, therefore, part of the authorized program
[[proposed for codification] or [being codified today]]. "Broader
in scope" provisions will not be enforced by EPA; the State,.however,
will continue to enforce such provisions.
As noted above, the Agency is not [[proposing to amend] or
[amending]] Part 272 to include HSWA requirements and prohibitions
that are immediately effective in [insert State name] and other
States. Section 3006(g) of RCRA provides that any requirement or
prohibition of HSWA (including implementing regulations) takes
effect in authorized states at the same time that it takes effect
in non-authorized States. Thus, EPA has immediate authority to
implement a HSWA requirement or prohibition once it is effective.
A HSWA requirement or prohibition supercedes any less stringent -
or inconsistent State provision which may have been previously
authorized by EPA. (See 50 FR 28702, July 15, 1985.) Because
of the vast number of HSWA statutory and regulatory requirements
taking effect over the next few years, EPA expects that many pre-
viously authorized and codified State provisions will be affected.
The States are required to revise their programs to adopt the HSWA
requirements and prohibition by the deadlines set forth in
40 CFR Section 271.21, and then to seek authorization for those
revisions pursuant to Section 271. EPA expects that the States
will be modifying their programs substantially and repeatedly.
Instead of amending the Part 272 codification every time a new HSWA
provision takes effect under the authority of RCRA Section 3006(g),
EPA will wait until the State receives authorization for its analog
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to the new HSWA provision before amending the State's Part 272
codification. In the interim, persons wanting to know whether a
HSWA requirement or prohibition is in%effect should refer to
40 CFR 271.l(j), as amended, which lists each such provision.
The codification of State authorized programs in the CFR
should substantially enhance the public's ability to discern the
current status of the authorized State program and clarify the
extent of Federal enforcement authority. This will be particularly
true as more State program revisions to adopt HSWA provisions are
authorized.
Certification Under The Regulatory Flexibility Ac_t
Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify
that this action will not have a significant economic, impact on
a substantial number of small entities. It [[proposes to codify]
or [codifies]] the decision already made to authorize the [insert
i
State name] program and has no separate effect on handlers of
hazardous waste in the State or upon small entities. This rule,
therefore, does not require a regulatory flexibility analysis.
Compliance With Executive Order 12291
The Office'Of Management and Budget has exempted this rule
from the requirements of Section 3 of Executive Order 12291.
Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et. seq.,
Federal agencies must consider the paperwork burden imposed by
any information request contained in a proposed rule or a final
rule. This rule will not impose any information requirements
upon the regulated community.
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List of Sublects In 40 CFR Part 272
Administrative practice, and procedure, Confidential business
information, Hazardous waste transportation, Hazardous waste,
«
Incorporation by reference, Indian lands, Intergovernmental
relations, Penalties, Reporting and recordkeeping requirements,
Water pollution control, Water supply.
Dated:
Regional Administrator
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For the reasons set forth in the preamble, 40 CFR Part 272 is
[proposed to be] revised as follows:
PART 272 - APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS
1. The authority for Part 272 continues to read as follows:
Authority: Sees. 2002(a), 3006, and 7004(b) of the Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976, as amended, 42 U.S.C. 6912(a), 6926, and
6974(b).
2. The table of contents for Part 272 is revised to read as
follows:
3UBPART [insert appropriate letter(s) and appropriate #s] -
[insert State name]
272. State Authorization
272. ' 1 State-Administered Program: Final Authorization
272. 2 State-Administered Program: Interim Authorization
272. 3-272. [Reserved]
3. 40 CFR Part 272, Subpart [insert appropriate letter and
appropriate #s] is amended, to read as follows:
272. State Authorization
(a) [insert State name] is authorized to administer and ;enforce
a hazardous waste management program in lieu of the Federal program
under Subtitle C of the Resource Conservation and Recovery Act of 1976
(RCRA), 42 U.S.C. 6921 et. seq., subject to the Hazardous and Solid
Waste Amendments of 1984 (HSWA), (Pub. L.98-616, Nov. 8, 1984), 42
U.S.C. 6926(c) and (g)). The Federal program for which a State may
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receive authorization is defined in 40 CFR Part 271. The State's
program/ as administered by the [insert State lead agency] was approved
by EPA pursuant to 42 U.S.C. 6926(b) and Part 271 of this Chapter.;
EPA's approval was effective on [insert appropriate Federal Register
reference].
(b) [insert State name] is not authorized to implement
any HSWA requirements in lieu of EPA unless EPA has explicitly
indicated its intent to allow such action in a Federal Register
notice granting [insert State name] authorization.
(c) [insert State name] has primary responsibility for
enforcing its hazardous waste program. However, EPA retains the
authority to exercise its enforcement authorities under Sections
3007, 3008, 3013, and 7003 of RCRA,'42 U.S.C. 6927, 6928, 6934,
and 6973, as well as under other Federal laws and regulations.
(d) [insert-] State name] must revise its approved program
to adopt new changes to the Federal Subtitle C program in accordance
with Section 3006(b) of RCRA and 40 CFR Part 271, Subpart A.
[Insert State name] must seek final authorization for all program
revisions pursuant' to Section 3006(b) of RCRA, but, on a temporary
basis, may seek interim authorization for revisions required by;
HSWA pursuant to Section 3006(g) of RCRA, 42 U.S.C. 6926(g). If
[insert State name] obtains final authorization for the revised
requirements pur4suant to Section 3006(g), the newly authorized
provisions will be listed in 272. 1 of this Subpart. If
[insert State name] obtains interim authorization for the revised
requirements pursuant to Section 3006(g), the newly authorized
provisions will be listed in 272. 2.
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272.______ 1 State-Administered Program: Final Authorization'
Pursuant to Section 3006(b) of RCRA, 42 U.S.C. 6926(b):
%[Insert State name] has final authorization for the following
elements submitted to EPA in [insert State name] program application
for final authorization and approved for by EPA on . [Insert
Final Authorization for Base Program and any program revisions].
(a) State Statutes and Regulations. (1) The requirements in
the [insert State name] statutes and regulations cited in this
paragraph are incorporated by reference and codified as part of
the hazardous waste management program under Subtitle C of RCRA,
42 U.S.C. 6921 et. seq. This incorporation by reference was
approved by the Director of the Federal Register in accordance
with 5 U.S.C. 552(a). .
(i) [Insert reference for statutory authorities that are
part of the approved program under RCRA.]
(ii) [Insert reference for hazardous waste rules that are a
part of the approved program under RCRA.]
(2) The following statutes and regulation, although not
codified herein for enforcement purposes, are part of the authorized
State program.
(i) [Insert reference for statutory authorities that are not
to be incorporated by reference but are part of the approved program.]
(ii) [Insert reference for regulations that are not to be
incorporated by reference but are part of the approved program under
RCRA.]
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(3) The following statutory and regulatory provisions are
broader in scope than th Federal program, are not part of the
authorized program, and are not codified herein for enforcement
purposes.
(i) [Insert statutory provisions, if any, which are broader
in scope.]
(ii) [Insert regulatory provisions, if any, which are broader
in scope.]
(b) Memorandum of Agreement. The Memorandum of Agreement
between EPA Region and the [insert State lead agency], signed
by the EPA Regional Administrator on [insert appropriate date] is
codified as part of the authorized hazardous waste management
program under Subtitle C of RCRA, 42 U.S.C. 6921 et. seq.
(c) Statement of Leaal Authority. ['(I)] "Attorney General's
Statement for Final Authorization", signed by the Attorney General
of [insert State name] on [insert appropriate date] is codified
as part of the authorized hazardous waste management program under
Subtitle C of RCRA, 42 U.S.C. 6921 et. seq.
[(2)] Letter from the Attorney General of [insert State name]
to EPA, [insert appropriate date].
(d) Program Description. The Program Description and any
other materials submitted as part of the original application or
as supplements thereto are codified as part of the authorized
hazardous waste management program under Subtitle C of RCRA,
42 U.S.C. 6921 et. seq. 272. 2 State-Administered Program:
Interim Authorization. [Insert paragraph similar to 272. 1
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above. These paragraphs will reflect approved program revisions
for interim author izat ion. ].
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