vvEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER:
TITLE:
9542.01(82)
State and Headquarters Interaction Regarding Exclusion of
' Waste Generated at Individual Facilities ("Delisting ")
(P1G-82-4)
APPROVAL DATE: 5-25-82
EFFECTIVE DATE: 5-25-82
ORIGINATING OFFICE:
0 FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OS WER OS WER OS WER
'E DIRECTIVE DIRECTIVE Di
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PART 271 SUBPART B - INTERIM AUTHORIZATION
DOC: 9542.01(82)
Key Words:
Regulation:
Subject:
Addressee:
Originator:
Source Doc:
Date:
Summary:
Delisting, Exclusions
40 CFR 260.22; 271.136
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State and Headquarters Interaction Regarding Exclusion of
Waste Generated at Individual Facilities ("Delisting ")
(P1G-82-4)
Program Implementation Guidance Addressees
Rita M. Lavelle, Assistant Administrator for Solid Waste
#9542.01(82)
5-25-82
States with Interim Authorization (IA) providing for the delisting of
waste from individual facilities must keep EPA fully informed of all State
delisting activities. If as a result of delisting action the State's program
is no longer equivalent to EPA's, the Agency may proceed to withdraw the ;.
State's authorization pursuant to 40 CFR 271.136. An IA State's own regulatory
control program is not affected by Federal delisting. However, EPA will conduct
delisting in an IA State 'where management of the waste invokes Federal juris-
diction or EPA's participation is specifically requested by the facility. In
addition, EPA will assist those States which require EPA's concurrence with the
State's delisting decision before a particular waste is dellsted. This memo
provides further details on EPA oversight review of authorized State delisting
programs and on State and EPA roles in handling specific delisting actions.
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9542.01 (82)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C, Z0460
Way 25, 1982
MEMORANDUM
SUBJECT:
PROM:
TO:
SOUO WASTI AND CMIHaCNCY
PIG-82-4
State and SPA Interaction Regarding Exclusion
of Wastes Generated at Individual Facilities
("Delisting")
Rita M. Lavelle
Assistant Administrator (WH-562-A)
Program. Implementation Guidance Addressees
I3STJ3; ... • .1-
What are the roles of EPA and the State with- respect •
to exclusions granted to individual facilities ("delisting")
in States with Interim Authorization? •
DISCTTSSIOK; - '
» . •
Previously issued Program Implementation Guidance (number
31-4) indicated that State programs which provide for the
delisting of waste from individual facilities could receive
Interim Authorization. (IA) where the States' procedures were
substantially equivalent to the Federal program. That Guidance
also indicated that the Memorandum of Agreement (MOA) between
the Regional Office and the authorized State must provide
that the. StaJt«m.y,l.Ii ke«p EPA-fully informed of any State
deliating actj^tties.. , The MO A i a also to clearly indicate
that if* del^rain^f' action causes the State program to no
longer be, sMJ^puitially equivalent to EPA's, the Agency may
begin pro<
(40 C?R 123^38$
SKT
to withdraw the State's authorization
The purpose of this memorandum is .to provide guidance
regarding Stats/Pederal- dsllstiss activities 1" Statss vith
Interim Authorization. More specifically, this Guidance will
describe delisting assistance which EPA will provide, define
the roles and responsibilities of the various State and EPA
offices in delisting* and discuss coordination among these
offices.
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A. Authorized State's Role in Conducting Deliatinq
Activities
Except' as provided below, IA States which have the
(State) legal authority to delist are solely responsible for
the delisting of wastes in their States for purposes of State
regulation. As resources allow, EPA will provide assistance
to the States on request.
Federal delisting in an IA State would have no effect
on the State's own regulatory control program and, therefore,
could be a duplication of effort without any benefit. Thus,
if the Office of Solid Waste (OSW) receives a delisting
petition pertaining to a facility in a State with Interim
Authorization, OSW will contact the petitioner and inform
him that the State, rather than EPA, manages the hazardous
waste program in the State and that Federal delisting may be
unnecessary. It should be noted that, while the effect of
Federal delisting is to exclude the facility's waste from
Federal regulatory control, the State's regulatory control
is not affected by the Federal delisting. (Thus, a waste :
delisted by EPA could still be a hazardous .waste for State?
purposes when managed within the State.), ' ?
However, EPA delisting. in IA States will be conducted
if: (1) the facility's waste may be managed in a way which
would bring the waste under Federal jurisdiction (e.g., the
waste is transported across State boundaries) or (2) if the
facility owner/operator specifically requests EPA to process
his petition (e.g., the facility may want the option of
shipping the wastes out-of-state in the future).' Before •
OSW initiates processing of the petition/ the appropriate
Regional Office will be informed of the upcoming .action;
the Regional Office will be expected to then inform the
State. The appropriate Regional Office will also be informed
of OSW's decision on whether to grant or .deny the petition
before OSW informs the petitioner; the Regional Qffice should
then informs the State.
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responsibilities of the various offices. Where appropriate,
the Regions should consider amending existing MOA's to define
specific.responsibilities.
C. State and EPA Responsibilities
State Responsibilities
1. Authorized States should promptly notify the Regional
Office of all "delisting" petitions received.
2. Authorized States must submit copies of all petitions,
supplements to these petitions and decisions made (e.g.,
memoranda and letters imparting the State's position to the
petitioner) to the Regional Office on a semi-annual (or more
frequent, if desired) basis.
Regional Office Responsibilities
3. When the Regional Office receives notice from OSW of •
receipt of a Federal delisting petition (see item 6 below)}
it is expected to immediately inform the State and clearly;
offer and make arrangements for the State to comment on the
petition before the Office of Solid Waste makes a determination
to grant (temporarily or finally) or deny the petition. In
particular, the State should be offered the opportunity to
comment early on any deficiency of information in the petition
to assist the Office of Solid Waste in requesting additional
information from the petitioner which is necessary in many cases.
Because EPA's delisting process is a rulemaking procedure
(resulting in an amendment to 40 CPU' Part 261, if .a delisting
petition is granted), we cannot offer a State a participatory
role in delisting determinations. However, because a State
has a genuine interest in assuring that EPA's delisting
determinations are made on accurate and complete information
and because*a-. State may have or know about information relevant
to a petition, OSW, through the Regional Office, should assure
that th»^^tite» (both IA and other States) have a timely
opportuc^^pto comiMnt on petitions received ar^d being
proce«»e^^iy^;OSW. State comments forwarded to OSW by the
Regional Of fie e will be maintained in the docket (along with
all other comments) and be available for public inspection
and copying during normal business hours.
4. The Regional Office will advise the State of the Agency's
comments on the State delisting actions. As resources allow,
OSW will be available to support the Regional Offices (at their
request) in the review of and comment on State delisting actions.
5. Pursuant to 40 CFR 123.136, the Regional Administrator
may begin proceedings.to withdraw authorization of the State's
hazardous waste program if the Regional Administrator determines
that the State's dalistings have rendered its program less than
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substantially equivalent to the Federal program.
Office of Solid Waste Responsibilities
6. On receipt of a delisting package from a petitioner, OSW
will notify- the appropriate Regional Office, which in turn, will
be expected to notify and solicit State input and relay it to
OSW (see item 3, above).
7. On receipt of a State delisting package (e.g., petitions,
supplements to petitions and a State's decisions on petitions)
from the 'Region (see item 4, above), OSW will review the
package and notify the Regional Office by memorandum of its
agreement or disagreement (including per-tiftent reasons) with
the State's decisions.
In their MOA's, some IA States have provided for prior
EPA concurrence with the State delisting decision. Irt these
instances, OSW will continue to evaluate petitions submitted
to EPA but will work closely with the Region and State in order
to reach a joint decision on whether or not to grant the delist^
ing. Thus, if OSW receives a petition from a facility-In a
State which requires Federal concurrence with the State's t
delisting decision, OSW will contact the petitioner and inform
him that the State manages the hazardous waste program in
that State and that Federal delisting is unnecessary, except
as noted above. OSW will then proceed to evaluate the pe'titiofi,
since the State will ultimately be seeking EPA concurrence
on the State delisting decision. However, this evaluation will
not culminate in the usual Federal Register rulemaking.
DECISION;
Where the State has IA and operates a delisting program,
the State is the agency responsible for conducting the delisting
of waste within the* State for purposes of the State program.
Where petitioners may manage wastes so as to bring the wastes
under Peciyi^||jurisdiction, or if petitioners specifically
request-|»li|;tcr: act; on their petitions, OSW will continue to
evaluate^^||d|ireach decisions on the petitions. In such
cases OSi^p^plkeep, the Region informed; the Region, in
turn, wiir keep the State informed and offer the State the
opportunity to comment on the petition to EPA. In addition,
in those States which require prior EPA concurrence with the
State's delistino decision b«for« a particular facility's
was-ca is delisred, OSW will work with the Region and State
in order to reach a decision on whether or not to grant the
delisting.
V.
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