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):
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 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.

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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.       ..-..-..      .   .

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                                                          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.

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                              -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

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