vv EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER:
TITLE: State Adoption of Regulation's in Anticipation of Pending Federal
• Regulations Which Would Reduce the Stringency or Scope of the
Federal Program.
APPROVAL DATE: 6-29-84
EFFECTIVE DATE: 6-29-84
ORIGINATING OFFICE:
0 FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OSWER OSWER OSWER
fE DIRECTIVE DIRECTIVE Di
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'PART 271 SUBPART A - FINAL AUTHORIZATION
DOC: 9541.07(84)
Key Words: Equivalency, Authorized States, More Stringent/Broader in Scope
Regulations: 40 CFR 271.21(e)(l)(i)
Subject: State Adoption of Regulations in Anticipation of Pending Federal
Regulations Which Would Reduce the Stringency or Scope of the
Federal Program. i ........
Addressee: Merrill S. Hohman, Director, Waste Management Division, Region I
Originator: John H. Skinner, Director, Office of Solid Waste
Source Doc: 9541.07(84)
Date: 6-29-84
Summary:
State authorization regulations specify that review of official State
applications for final authorization must be based on Federal regulations that"
were promulgated 12 months prior to the State's application [§271.21(e)(1)(i)}.
A State may receive authorization for any provision that corresponds to a
Federal provision that is in effect on the date of the State's Authorization.
EPA cannot grant final authorization to a State that has incorporated proposed
Federal regulation changes into its own program that would reduce the stringency
or scope of the Federal program in effect. EPA may review and approve a State
application that contains provisions equivalent to promulgated, but not effective
Federal regulatory amendments; but the State's authorization may not become
effective until the pending Federal regulations are effective.
If the State's regulation that anticipates a Federal regulation is less
stringent than the Federal counterpart when promulgated, the State will need to
amend its regulation again before it is eligible for final authorization.
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9541.07 (84)
29JUN J984
ME^OPAKDUM
SUFVJECTi State Anticipation of Pending Federal Pegulatory
Amendments
FRCMt John H. Skinner
Director, Office of Solid Waste
TOt Merrill S. Hohaan, Director
Waste Management Division
Region I .
In your June 8 letter to Hr. Richard Valentinetti of
Vermont, you discussed the State's proposed regulatory provi-
cion regarding satellite accumulation of hazardous waste and
its effect on the State's progress toward receipt of final
authorization. The State appears to t>e adopting this regula-
tion in anticipation of the promulgation of an analagous
Federal regulation. Ve have encountered similar situations
in other Region I states. I would like to point out the
risks inherent in this approach.
Our State authorization regulations specify that the
reviewL of Offieial-State .applications for final authorization
must be based on Federal regulations that were promulgated
12 ronths prior to the State's application. (See $271.21(e)(1)(i),
49 FR 21628, May 22, 1984.) Further, a State may receive
authorization for any provision that corresponds to a Federal
provision that is in effect on the date of the State's authori-
zation. Problems arise when a State adopts regulations in
anticipation of pending Federal regulations that, if adopted,
would reduce the stringency or scope of the Federal prograre.
EPA cannot grant final authorization to a St«te that has
incorporated proposed Federal regulation changes of this nature
into its progran. This is because the appro^e'i State proqrar
would te less stringent than the Federal procrar in effect.
EPA way reviev and approve a State application that contains
provisions equivalent to proiMJlqatef but not effective Federal
regulatory arrendrents; however, the State's authcritation way
not hecore f»ffectiv*» until the fending Federal regulation* are
effective.
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In the case of Vermont, the State's proposed regulation
regarding satellite accumulation of hazardous waste is less
stringent than the current Federal program and appears to
anticipate the promulgation of a pending amendment*to 40 CFR
262.34. The most optimistic projection for adoption of the
Federal amendment is for promulgation in final fora in September
1984, with an effective date six months later (March 1985).
If Vermont adopts its proposed regulation in its present form
we will not be able to issue a tentative decision to grant
final authorization unless the corresponding Federal amendment
has been promulgated and the Vermont provision (and all other
aspects of the Vermont program) have been determined to be
equivalent.
As you know EPA is bound by statute to issue the
tentative decision within 90 days of receipt of the State's
application. If Vermont submits its official application in
July and we have not yet promulgated the Federal satellite
accumulation rule we would have no choice but to issue a tenta-
tive decision to deny authorization unless Vermont and EPA
extend the statutory review period by mutual agreement. See
40 CFR 271.20(d) and 271.5(d). It is important to recognize
that, even with this approach, the earliest possible date the
State could likely be authorized would be March 1985 (the
li'kely effective date of the Federal satellite accumulation
rule). Consequently, Vermont's interim authorization would
expire on January 26, 1985 unless statutory amendments to RCRA
extend this date.
All States should also be cautious about adopting regulations
that are based on proposed Federal regulations since there are
no assurances of the ultimate regulatory language until final
promulgation. Public comment could result in unexpected changes
to the proposed Federal regulations. Specifically, if the
State's satellite accumulation regulation is less stringent
than the Federal counterpart when promulgated, the State may
need to amend its regulation again before it is eligible for
final authorization.
I urge you to inform your States of the potential consequences
of anticipating Federal regulatory changes.
cc: Hazardous Waste Division Directors, Regions II-X
Gail Cooper, OGC ' . -
Don Lazarchifc, President, ASTSWMO
Sue Moreland, ASTSWHO
bcci State Programs Branch, OSW
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