vv EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER:
TITLE: 'jfcligting» Of Wasteg j,y Authorized States (P1G-81-4)
APPROVAL DATE: 10-31-so
EFFECTIVE DATE: 10-31-so
ORIGINATING OFFICE:
0 FINAL
D DRAFT
STATUS:
R EF E R E N Cllother documents):
OSWER OSWER OSWER
fE DIRECTIVE DIRECTIVE Di
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PART 271 SUBPART B - INTERIM AUTHORIZATION
DOC: 9542.04(80)
Key Words:
Regulation:
Subject:
Addressee:
Originator:
Source Doc:
Date:
Summay:
Equivalency, Authorized States, Delisting
40 CFR 271.128 (a); 271.136; 271.22; 260.20; 260.22
""Delisting" of Wastes by Authorized States (P1G-81-4)
Program Implementation Guidance Addressees
Steffen W. Plehn, Deputy Assist. Administrator for Solid Waste;
R. Sarah Compton, Deputy Assist. Administrator Water Enforcement
9542.04(80) ;
10-31-80 :.
State programs with delistlng mechanisms may receive interim authorization
if their delisting mechanisms are substantially equivalent to EPA's. To meet
the substantially equivalent test, States' delisting methodology must be consis-
tent with their methodology for listing. States' delisting mechanisms must not
interfere with the "nearly identical" universe of waste between the States and
EPA. Where a State's delisting activities cause its universe to be no longer
nearly identical with EPA's, EPA could withdraw that State's interim authorisa-
tion. The Memorandum of Agreement must make this possibility of withdrawal of
authorization clear to the State, and must contain a promise that the State
will keep EPA informed of any State delisting activity.
The memo discusses the interaction between the States' delisting mechanism
and the Federal program and includes an itemlzation of the necessary showings
persons requesting delisting of waste must make in their petition to EPA.
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9542.04 (80)
\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20450
(0-31-
MEMORANDUM
SUBJECT: "Delisting." of Wastes by Authorized States
FROM: Steffen W. Plehn
Deputy Assistant
for Solid Waste (WE
R. Sarah Compton • . .. •.;•••.•
Deputy Assistant Administrator
for Water Enforcement (EU-335)
PIGS Addressees .
Can a State with an authorized hazardous .waste management
program be allowed to exempt ("delist") hazardous waste from
individual sites?
DISCUSSION:
EPA has provided certain standards and procedures for
"delisting1* waste from a particular generating facility or storage,
treatment, or disposal facility at which a hazardous waste is
generated (see 40 CPU 260.20 and 260.22, 45 FR 33076, and preamble
discussion at 45 FR 33116). Persons seeking such a delisting
action may petition the Administrator of EPA for an amendment to
the Federal regulations which would provide the exemption. In the
petition, the^person must show that the waste is fundamentally
that listed by demonstrating, as appropriate, that th
waste
(1) eiibit the characteristic of ignitability,
corrosivity, reactivity, or toxicity,
(2) raa
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(3) contain the hazardous constituent of Appendix VTII
of 40 CPR 261 (45 PR 33312) for which it was listed,
or, if the waste does contain those constituents,
show that consideration of other factors argue against
th*>waste being considered a hazardous waste (see
40---"CFR 261.11(a)(3), 45 PR 33121). This decision
is based on consideration of any of approximately ten
factors and is a discretionary one.
When a State program has been found to be substantially
equivalent; to the Federal program, it receives interim x
authorization to operate in lieu of the Federal program; i.e.,
Federal requirements generally no longer apply, and the "requiremen,
of this subtitle1* which are enforced under section 3008 of the
Act are those of the State program'approved under section 3006.
Therefore, action by SPA to i .ist a. waste from a particular
generating facility (or storage, treatment, or disposal facility
which generates hazardous waste) in a State with interim authorization
would not affect the State requirements unless the State took a
similar action.
Som* concern exists regarding the potential incompatibility
inherent, in allowing, one State to delist., whereas another States
may desire not to delist. This problem is not unique to the
issue of d all sting, since the latter State program- may be viewed
as a "more stringent" one (because it regulates more wastes) and
is acceptable under section 3009 of RCRA. (See the preamble to
40 CPR Part 123, Subparts 3 and F, 45 PR 33385.)
The. question here is whether a State program with interim
authorization can provide a delis-ting mechanism. If so, what shape
and form must that mechanism take if EPA is to authorize the State-
program as "substantially equivalent" to the Federal program?
In the regulations under 40 CFR Part. 123, EPA is silent on
'the issue of State dells-ting mechanisms. A State without such
a mechanism is not precluded from receiving interim authorization.
'The universe of wastes controlled by such a State would be subject
to change onvtipthrough regulatory or statutory change.
For interia. authorization, EPA requires the States to
control a univisrs* of hazardous waste generated,, treated/
stored, and disposed of in the State which is nearly identical
to that which would be controlled by the Federal program under
40 CPR Part 261 (see 40 CPR 123.128(a), 45 PR 33481). A State can
dascns-crata that iis pzrcgrs^; cca-ca.^3 a dalia-iing prevision which,
nevertheless, leaves the State universe nearly identical to EPA's.
__ On the other hand, if the State's delisting mechanism lacked explicit:
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standards and procedures analogous to those included in SPA's
delisting mechanism, it would be difficult for EPA to assure
that the State was providing the proper control of wastes.
It is possible- that, a State, as a result of its delisting ,
may deer ease-- its universe of wastes such that its coverage is no
longer nearly identical to the Federal universe. For example, a
question has arisen as to what would happen if an interim authorized
State abused its discretion in delisting wastes from individual
sites, but EPA, operating the Federal program in one or more
States into which those wastes were imported, refused to delist
the wastes from those sites. This would clearly be a situation
where the State would be subject to withdrawal of SPA's author izatio:
for failure to exercise control over activities required, to be
regulated (40 CFR 123.136 and 40. CFR 123. 14 (a) (2)
DECISION; State programs with delisting mechanisms may receive
Ixiterim~~authorization provided those delisting mechanisms are
substantially equivalent to SPA's. In order to be considered
substantially equivalent, the State must demonstrate that the
delisting methodology is consistent with its methodology for
listing. The Memorandum of Agreement must contain a provision
that the State will keep EPA fully informed of any State deliating
activities and should make clear the possibility of withdrawal
of authorization in the event that, due to delistlngs, the State's
universe of wastes is no longer nearly identical to EPA1 3.
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