vvEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 95*1.01(83)
State Regulation Development and RCRA Final Reauthorization
APPROVAL DATE: 9-3-33
EFFECTIVE DATE: 9-3-33
ORIGINATING OFFICE:
0 FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OS WER OS WER OS WER
/£ DIRECTIVE DIRECTIVE Di
-------
PART 271 SUBPART A - FINAL AUTHORIZATION
DOC: 9541.01(83)
Key Words:
Regulations:
Subject:
Addressee:
Originator:
Source Doc:
Date:
Summary:
Equivalency, Changing Federal Regulations, More Stringent,
Broader in Scope
40 CFR 271.1(1), 271.21(e)
State Regulation Development and RCRA Final Reauthorization
.Alexandra 8.. Smith, Director,. Air and Waste Management Division,
Region X
John H. Skinner, Director, Office of Solid Waste (WH-562)
#9541.01(83)
9-8-83
This memorandum concerns proposed changes in Federal regulations and State
adoption of analogues f.or final authorization, especially those instances whece
EPA is proposing to make its requirements less stringent or more flexible and
workable. According to §-271.1(1), States are not precluded from:
(1) Adopting or enforcing requirements which are more stringent, or
(2.) Operating a program with a greater scope of coverage than Federal
_ ^requirements."
Thus, in cases where the State's requirements are either more stringent or
broader in scope than EPA's .rules, the ability of any State to be granted
authorization is'hot jeopardized." .
''-•-••However, to qualify 'for.'f inal authorization, the States' requirements must
be.equivalent to the existing Federal requirements, not to the anticipated less
.stringent.,requirement which- is being considered or has been proposed but not
promulgated. Proposed Federal regulations cannot be treated as promulgated. To
do so: would run counter to the-concept of public participation in rulemaking.
Were we to authorize a State on the basis of a proposed regulatory change which
was never effected, we would be authorizing programs which may not be equivalent
to or as stringent as the existing Federal program.
Under current rules, programs approved before the effective date of a
regulatory amendment would be required to have an analogue in effect one year
from promulgation of that amendment. Programs approved after the effective
date would need to have the analogue promulgated by the time of authorization.
A regulation will soon become effective, however, which will enable State
programs applying for final authorization to be authorized if they were equiva-
lent to Federal regulations in effect one year prior to submission of a complete
application or on January 26, 1983, whichever is later. The intent of the
proposed amendment is to ensure that States do not have to revise their programs
while their applications are being prepared or processed.
-------
Continued From Document 9541.01(83)
Concerning setback rules for ignitable and reactive waste, the Agency
is pursuing a regulatory amendment that will add flexibility to the 50-foot
setback rule. Currently, EPA should use the flexibility available to the
Agency in assessing specific State regulations to determine whether they provide
protection of human health and the environment in a manner equivalent to and no
less stringent than the Federal program. For example, setback requirements of
less than 50 feet can also be judged to be equivalent or more stringent if
supplemented by other requirements such as fire resistant construction or
explosion-proof, structures. ..-..-.. . .
-------
95^1.01 (83)
SEP " 8 1983
State Regulation Development and z.
Final Authorization •£.
John H. Skinner
Director, Office of Solid Waste (WH-562V
Alexandra R, Smith, Director
Air and Waste Management Division-, Region X
This is in response to your August 2 memorandum concerning
proposed changes in Federal regulations and State adoption of
analogues for final authorization.
You expressed, concern primarily for those instances where
EPA is proposing to make its requirements less stringent or
more flexible and workable. According to 40 CPH Part 271.1(i),
States are not precluded frowi
"(1) Adopting or enforcing requirements which are
.. more stringent., or more extensive than those required
under this subpart;
(2) Operating a prograa with a greater scope of
coverage than that required under this subpart."
Thus,, in case* where the State's requirements are either nore
stringent or broader in scope than BPA's rules, the abl-lity—
of any State to be granted authorisation ia not jeopardized.
, fou, »1 so expressed concern for. the reluctance of States
to adopt- analogues to existing Federal requirements where
those Federal requirements are expected to he made less
stringent in the near future. As required by 40 CFR 271.21(e),
newly authorized State programs must be equivalent to all
applicable Federal regulations immediately upon receiving final
authorization. Therefore, to qualify for final authorization
the States' requirements must be equivalent to the existing
Federal requirements, not to the anticipated less stringent
requirement which is being considered or has been proposed
but not promulgated. Proposed Federal regulations cannot be
treated as promulgated; to do so would run counter to the
concept of public participation in rulei^aking. when we (or
the States) propose regulations, we are requesting suggestions
and comments which could result in changes to or withdrawal
of the proposal. In practice, public conwent often does lead
us to change or withdraw proposed regulations. Were we to
authorize a State on the basis of a proposed regulatory channe
which was never effected, we would be authorizing programs
which nay not be equivalent to or as stringent as the axisitinq
Federal program.
-------
-2-
As Detailed in your ^enorandum, the redefinition of
waste is an example of a change in federal regulations which ray
require revisions in sore State programs. As you know, the
*nendnent was proposed in April of this year. The final rule is
scheduled to be promulgated in April 1934 and become effective
in October 1984. Under current rules, programs approved before
the effective date (October 1984) would be required to have an
analogue in '-effect' by April 1985 (.one year from promulgation).
Programs approved after October 1984 would need to have the
analogue promulgated hy the tine of authorization. However, on
August 25 we proposed a regulation (copy attached) which would
enable. State programs applying for final authorization to be
authorized if they were equivalent to Federal regulations in
effect one year prior to submission of a complete application,
or on January 26, 1933,. whichever is later. The intent of t1-*
proposed amendment is to ensure that States do not have to re•. ' se
their programs while their applications are being prepared or
processed.
Your memorandum also.raised specific questions concerning
setback rules for ignitable and reactive waste. We are pursuing
a regulatory amendment to the 50 f«*t setback rule. In this
area, we should use the flexibility available to us in assessing
specific ^tate regulations to determine whether they provide
protection of human health and the environment in a manner
equivalent.'to and no -'less stringent than the Federal program.
Por example, setback requirements of less-than-50 feet can also
be judged to be equivalent or nore stringent if supplemented
by other requirements such as fire resistant construction or
oxp.ip3ipn-p.rqp'.,structures.; Because of. this flexibility,
revisions to State regulations in this area ;nay not be necessary.
"' T agree" with'your suggestion to'establish a- focal point for
resolving technical and policy issues so the regulation adoption
and. authorization process can proceed, on schedule. Since Bruce
Weddle, Acting Director of the State Program* and Resource Recovery
"Division;, has been functioning in that capacity, as a. matter of
practice, by this memorandum I am formally designating him as the
appropriate focal point.
Thank you for relaying your concerns on these important
issues. We believe that the proposed changes to «271.'21 outlined
above will prevent delays in State authorization by allowing the
states a reasonable time to respond to Federal regulatory amendment1
where necessary. Should you have any further questions on the
rulemaking please contact Oenise Hawkins of our State Programs
"ranch staff at PTS 382-2231.
Attachment
cc: Air and Waste Division Directors, Regions I-IX
Hruce Weddle
------- |