vvEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 9541,02(83)
TITLE:
APPROVAL DATE: 12-14-83
EFFECTIVE DATE: 12-14-83
ORIGINATING OFFICE:
0 FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OSWER OSWER OSWER
/£ DIRECTIVE DIRECTIVE Di
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PART 271 SUBPART A - FINAL AUTHORIZATION DOC: 9541.02(83)
Key Words: Financial Responsibility Requirements, Final Authorization,
Authorized States, More Stringent/Broader in Scope
Regulations: 4%CFR 271.1(1), 271.4(b)
.-^fr:
Subject: State Financial Regulations
Addressee: Stephen R. Wassersug, Director, Air and Waste
Management Division, Region III
Originator: John H. Skinner, Director, Office of
Solid Waste, (WH-562)
Source Doc: #9541.02(83)
Date: 12-14-83
Summary:
... As long as a State's Financial Responsibility regulations do not undermine
or significantly affect the RCRA Subtitle C program, a State financial respons-
ibility requirement is not a barrier to final authorization.
Nothing in Section 271 precludes a State from: (1) adopting more stringent
or more extensive requirements than EPA or (2) operating a program with a
greater, scope of coverage than EPA requires. Section 271.4(b) establishes a
potential limitation on this authority, however. It provides that "any aspect
of State law or of the State program which has no basis in human health or
environmental protection and which acts as a prohibition on the treatment,
storage, or disposal of hazardous waste in the State may be deemed inconsistent.
This section is based on RCRA §3006(b) which provides that a State program must
be consistent with the Federal program (or State programs applicable in other
States) to. receive authorization.
Where the State's regulations will not be part of the Federally-authorized
State hazardous waste management program they are not necessarily inconsistent.
For example, if the State regulation does not represent a "more stringent"
State version of a Federal requirement, but rather, a "more extensive" State
requirement that, goes beyond the scope of the Federal program, a greater number
of facilities-will be subject to the financial requirements than under the
Federal progrJofJ§r-tbder §271.1(1), only more stringent State provisions become
part of the FJJKjirally-authorized program. In this case, the financial respons-
I «^okj4^r*t.'' "•** ^^
ibility requirements would not be included in the authorized program and EPA
would not play a role in administering the regulation, nor could it choose to
or be compelled to enforce it. Only the financial responsibility requirements
that apply to Federal facilities are not included in the authorization. Fi-
nancial responsibility regulations applicable to non-federal facilities are
included.
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9541.02 (83)
DEC I 4 198- = n
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MEMORANDUM g».2.
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SUBJECTS State Financial Regulations £T
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FROMt John H. Skinner ~2
Director* Office of Solid Waste (wtt-562) » s
•• en
Air and Waste Management Division, Region III
TOt Stephen *• Wassersug, Director _ ,*,
I" 33
Thank you for your October 4, 1983 memorandum on the above * «o
subject* I regret the delay in responding! however/ it was N
necessary that we coordinate this response with the Office of £
General- Counsel (OGC). OGC reviewed this issue and determined o
that the position presented below is consistent with our legal £.
authority. \
H-
You have asked whether State (Maryland's) financial respon- \
aibillty regulations which do not exenpt Federal facilities ™
would be a barrier to final authorization, we note that Maryland's
regulations require Federal facilities to provides (1) financial
assurance of closure and post-closure care, and (2) liability
coverage for sudden and non-sudden accidental occurrences.
Our review of these provisions was governed by two applicable
Part 271 regulations! $271.1(1) and *2?1.4(b). Section 271.1(1)
states that nothing in Part 271 precludes a State* from s (1)
adopting more stringent or- more extensive requirements than EPA
Has promulgated, or (2) operating a program with a greater scope
of coverage than EPA requires. Section 271. 4(b) establishes a
potential limitation on this authority, however* It provides
that "any aspect of State law or of the State program which has
no basis in hum n health or environmental protection and which
acts as a pjrofetbition on the treatment, storage, or disposal of
hazardous .jj^jtii'.Ln the State may be deemed inconsistent." 40 CPR
271.4 is bastion Section 300 6(b) of RCRA which provides that a
state program must be consistent with the Federal program (or
State programs applicable in other States) to receive authorization.
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«t» that during EPA^ public cow went period on
* "n tiLee X.IA application no comments were received
en* l«fl«l a"d factual basis for imposition of
*"*1161*1 responsibility requirements on Federal
facilities* However, we independently concluded that Maryland's
regulations raised serious issues with regard to their legal
basis*
To expedite our consistency review, we initially projected
the worst casei namely, that the Maryland liability insurance
requirement has no basis in human health and environmental
protection and acts as a prohibition on treatment, storage, or
disposal of hazardous waste in Maryland by Federal facilities,
The Federal Tort Claims Act and/or the Anti-Deficiency Act may
preclude Federal facilities from being able to obtain third party
liability insurance? therefore. Federal facilities presumably
could not obtain Maryland permits. For the reasons stated below,
EPA has concluded that even this "worst case" analysis is not
adequate cause to deem the Maryland program to be inconsistent.
First, the Maryland regulations will not be part.of the
Federally-authorized Maryland hazardous wast* management program*
The Maryland regulation does not represent a •more stringent* State
version of a Federal requirement but, rather, a "more extensive*
State requirement that goes beyond the scope of the Federal
program. It is more extensive because it subjects a greater
number of facilities to financial responsibility requirements
than the Federal program. Under 40 CFR $271.1(i) only more
stringent State provisions become part of the Federally-authorized
program. Since the Maryland financial responsibility requirements
will not be included in the authorized program, EPA will not play
a role administering the Maryland regulation, nor can EPA choose
or be compelled to enforce it.
Second, we have concluded that the current status or future
fate of the Maryland regulation does not undermine or significantly
affect the RCRA Subtitle C program. A court decision striking
down or upholding the regulation would have no impact on non-Federal
facilitiesi^br:other non-financial responsibility requirements
that apply to Federal facilities. This provision, therefore, is
easily severable from the Subtitle C program.
I/ The health or environmental basis for the closure/post-
closure care requirement is questionable since the Federal
government has the financial means to provide such care. However,
this provision would not act as a prohibition within the meaning
of 40 CFR $271.4
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Mi~.iv exercising our discretion under 40 CPR «27l.4(b),
Accordingly* fcfcmfc tfe have detern,ined that the dryland
requirements (1) will not be part of the
program and (2) are not Inconsistent or a
barrier to «".* authorization.
cc, Gail Cooper, OGC
State Programs Branch, OSW
Bruce weddlo, OSW
beet Jose Allen, OOJ
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