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 ------- |