vvEPA
United States
Env ronmental Protection
Agency
Off ce of
Sol d Waste and
Emergency Response
DIRECTIVE NUMBER:
80
TITLE: ..State Regulation of Federal Agencies For Purpose of Interim
fAuthorization (P1G-81-6)
APPROVAL DATE:
EFFECTIVE DATE:
ORIGINATING OFFICE:
tc FINAL
11/14/80
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PART 27i SUBPART s - INTERIM AUTHORIZATION
DOC: 9542.05(80)
Key Words:
Regulations
Subject:
Addressee:
Originator:
Source Doc:
Date:
Summary:
Federal Facilities, State Authorization
RCRA §6001; 40 CFR 271.128
Regulation of Federal Agencies For Purpose of Interim
Authorization (P1G-81-6)
Program Implementation Guidance Addressees
Steffen W. Plehn, Deputy Assistant Administrator for Solid Waste
R. Sarah Compton, Deputy Assistant Administrator for Water
Enforcement
#9542.05(80) •
11-14-80
Pursuant to 40 CFR Part 271, Subpart B, States are required to exercise -
regulatory control over all generators, transporters, and owners/ operators of
facilities managing hazardous wastes. No provisions exist in 40 CFR Part 271,
Subpart B allowing States to exempt waste management activities of Federal
agencies from their regulated community. In order to qualify for interim ,
authorisation, a State must demonstrate in its Attorney General's Statement; and
Program Description that it regulates Federal agencies in accordance with* 40
CFR 271.128. If a State's statutes and regulations do not explicitly include
or exclude Federal agencies, then the Attorney General's Statement must explain
the basis for the State's assertion of jurisdiction over these age'ncies. The
State must also indicate in its Program Description that it will regulate
Federal agencies in accordance with 40 CFR 271.128, when these agencies are not
explicitly included in its regulated community. This memo outlines the deriva-
tion of States' statutory and regulatory power over Federal agencies, and includes
as an attachment an Executive Order on Federal Compliance with pollution control
standards.
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9542.05 (80)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 2Q460
MEMORANDUM
MOV
PIG-SI- 6
f 4 13SQ
SUBJECT: State Regulation of Federal Agencies for
Purposes of Interim Authorization
Of Jjn x A/j yj
FROM: Steffen W. Plehn J^JL\f^~^J 1 Ju>—•
Deputy Assistant Admii. atrator
TO:
for Solid Waste (WH-
62)
R. Sarah Corapton
Deputy Assistant Administrator
for Water Enforcement (EJI-335)
PIGS Addressees
ISSUE
Must States have independent statutory and regulatory con-
trol over Federal facilities and Federal agencies in order to
qualify for interim authorization? *
DISCUSSION
I . Introduction
Sen* States appear to exclude Federal agencies from their
regulated community, thereby not requiring Federal agencies to
comply with State requirements placed on generators and transporters
of hazardous waste and on owners and operators of hazardous
waste management facilities. Generally, the apparent exclusion is
not explicit* Rather, Federal agencies are, as a group, not
specifically; identified in the State's definition of the regulated
community «• 'S^fe-^ •
-- - ^ •."•*. 4™^. *'*.!•> **?' .^,'t'
"
Approximately 700 Federal installations have notified EPA that
they are engaged in hazardous waste activities. Ground-water
contamination from two Federal facilities was cited by the
U.S. House of Representatives (House of Respresentatives Report
ianaceaesftt prcblsa
*94-1491, 1976) as part cf th<3 hazardous,
which required Federal action through the Resource Conservation
and Recovery Act of 1976.
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-2-
The purpose of this Program Implementation Guidance memorandum
is to indicate whether a State must have statutory and regulate
authority for hazardous waste management over Federal agencies
order to qualify for Interim Authorization, pursuant to 40 CFR
123 Subpart F.
II. Definition of a Federal agency
Federal agency is defined in RCRA §1004 (4) and in 40 CFR
260.10(a)(22). Federal agency means "any department, agency, or
other instrumentality of the Federal Government, any independent
agency or establishment of the Federal Government including any
Government Corporation, and the Government Printing Office1*.
As used in this memorandum, "Federal facilities" are any facilities
owned or operated by any "Federal agency".
III. What Federal requirements exist over Federal agencies?
Subtitle F of RCRA establishes Federal responsibilities for
solid and hazardous waste management. RCRA §6001 states that each
Federal agency shall be subject to, and comply with, the same sub-
stantive and procedural requirements for hazardous waste management
that are imposed on other persons by Federal, State, and local
governments, when that Federal agency is engaged in activities)
which-result, or which may result, in the disposal or management
of solid or hazardous waste.
Executive Order 12088 directs Executive agencies to comply
with the Solid Waste Disposal Act, as amended by RCRA (42 U.S.C.
6901 et seq). Section 1-302 directs the SPA Administrator or his
agent to conduct inspections, as necessary, to monitor compliance
by Executive agencies. Section 1-601 establishes that the Admini-
strator or an appropriate State agency can notify an Executive
agency of its violation of an applicable pollution control standard,
and approve a compliance plan and schedule. This procedure is in
addition to the other applicable statutory enforcement procedures
and sanctions.
IV. What controls must States have over Federal agencies to quali
for Interim Authorization?
* . . * \
^,!:^~^&-L -•
A* Onlverse of Wastes
The Federal regulation at 4.0 CFR 123.128(a) requires that a
State program control a universe 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
undar 40 C77. Part, 231. Th
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B. Genera-tors, Transporters and Facilities
The Federal regulation at 40 CFR 123. 128(b) (2 ) requires that
a State program regulate all generators located in the State. The
regulation*; at 40 CFR 123 .128(b) (3 ) through (3) require that the
State regulate generators in a manner substantially equivalent to
the procedural and substantive requirements of 40 CFR 262. Parallel
requirements for State programs concerning transporters of hazardous
waste are established in 40 CFR 123.128(c). The Federal regulation'
at 40 CFR l23.123(e) requires that State programs enforce facility
standards which are substantially equivalent to 40 CFR 265, and
that State law prohibit the operation of facilities not in compliance
with such standards. 40 CFR Part 123, Subpart F indicates that
States are to exercise regulatory control over all generators,
transporters, and owners/ operators of facilities managing hazardous
wastes. .
C. State Controls
There is no provision in 40 CTR Part 123, Subpart F that
States may exempt from their regulated community those wastes or
waste management activities involving Federal agencies. Consequently
in order to be substantially equivalent to the Federal program, a
State program must exercise authority over Federal agencies .involved
in hazardous waste management. _
DECISION v
For purposes of interim authorization, a State must
demonstrate , through its Attorney General ' s Statement and
Program Description, that it controls Federal agencies in
the manner required by 40 CFR §123.128.
When State law and regulations explicity include Federal
agencies in the State* s regulated community, the issue is
not in controversy, and the Attorney General ' s demonstration
would be straightforward. This would be the case where a State's
definition of "person" (i.e., those, who are subject to the
regulatory requirements for hazardous waste management established
in the. Stats Program) explicitly includes Federal agencies.
When y«>diiral^ agencies are not explicitly included in (or
excluded frcmi the State ' a regulated community (i.e., State
statutes aatf^reg^ulations are silent on whether Federal agencies
are regulate*!) , feh* xttnrnay General's Statement must explain
" ' a aaaartion of jurisdiction over them.
explanation *m»+ **» fraafid on the s^a^g'g overall atatutoVy
and requj.atorv_frameworjf;. The State Attorney General can cite
"SCiui §oOGI anci E~.aciri.iva Ordar 120o£j to damonatrata Congressional
and Executive intent that Federal agencies comply with State
Program requirements. However, these citations do not independently
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provide the State with jurisdiction over Federal agencies.
la addition, when Federal agencies are not explicity included
in the regulated community, the State must also indicate in
its PrograarDescription that it will raflulata Jr'edarai agencies
"in the manner described by 40 CTR §123.1287
r ' If a State Attorney General's Statement indicates that the
/ State cannot control Federal agencies, interim authorization
cannot be granted.
In defining their regulated community, states should be
encouraged to explicitly include Federal agencies, in order
to qualify for final authorization.
Attachment - Executive order ".2088
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presidential documents
[3195-01-M]
- Title 3—The President
Executive Order 12088 • October 13,1978
CofTtpucncS' Wrtn Pollution Control jfondoros
47707
By die authority vested In me as President by the Constitution and
statutes of the United Sates of America, including Section 22 of the Toxic
Substances Control Act (15 U-S.C 2621). Section 313 of (he Federal Water
Pollution Control Act. as amended (33 U-S.C. 1323). Section 1447 of the
Public Health Service Act. as amended by the Safe Drinking Water Act (42
U-S.C 300J-6"). Section 113 of the Clean Air Act. as amended (42 U.S.C
741S(b)). Section 4 of the Noise Control Act of 1972 (42 U.S.C 4903).
Section 6001 of the Solid Waste Disposal Act. as amended (42 U.S.C 6961).
and Section 301 of Title 3 of the United States Code, and to ensure Federal
compliance with applicable pollution control standards, it is hereby ordered as
follows:
1-1. Applicability ofPolbttiam Cmtni Standards.
1-101. The head of each Executive agency is responsible for ensuring that
all necessary actions are taken for the prevention, control, and abatement of
environmental pollution with respect to Federal facilities and activities under
the control of the agency.
1-102, The head of each Executive agency is responsible for compliance
with applicable pollution control standards, including those established pursu-
ant to. but not limited to, the following:
(a) Toxic Substances Control Act (15 U-S.C 2601 tt uq.).
(b) Federal Water Pollution Control Act. as amended (33 U.S.C 1231 it
. (c) Public-Health Service Act. as amended by the Safe Drinking Water Act
(42 U.S.C300f ttuq.).
(d) dean Air Act, as amended (42 U-S.C 7401 tt MO.}.
(e) Noise Control Act of 1972 (42 U.S.C 4901 tt «^).
(f) Solid Waste Disposal Act. as amended (42 U-S.C 6901 it *?.).
(g) Radium gmdancr pursuant to Section 274(h) of the Atomic Energy
Act of 1954^» amended (42"U-S.C 2021(h); see also, the Radiation Protec-
tion G
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47708 THf PftSSIOCNT
trator. and State, interstate, and local agencies in, che prevention, control, and
abatement of environmental pollution.
1-202. Each Executive agency shall consult with the Administrator and
with State, interstate, and local agencies concerning the beat techniques and
methods available for the prevention, control, and abatement of environmen-
tal pollution.
1-3. Teefinieal Advict and Orr
1-301. The Administrator shall provide technical advice and assistance to
Executive agencies in order to ensure their cost effective and timely compli-
ance with applicable pollution control standards.
1-302. The administrator shall conduct such reviews and inspections as
may be necessary to monitor compliance with applicable pollubon control
standards by Federal facilities and activities.
1-4. Pntlution Control Plan.
1-401. Each Executive agency shiJl submit to the Director of the Office of
Management and Budget, through the Administrator; an annual plan for ih«
control of environmental pollution. The plan shall provide for any necessary
improvement in the design, construction, management, operation, and mainte-
nance of Federal facilities and activities, and shall include annual cost esti-
mates. The Administrator shall establish guidelines for developing such plans.
1-402. In preparing its plan, each Executive agency shall ensure thac the
plan provides for compliance with all applicable pollution control standards.
1-403. The plan shall be submitted in accordance with any other instruc-
tions ihat the Director of the Office .of Management and Budget may issue..
1-5.
1-501. The head of each Executive agency shall ensure that sufficient
funds fur compliance with applicable pollution control standards are requested
in the agency budget.
. 1-302. The head of each Executive agency shall ensure thai funds appro-
priated and apportioned for the prevention, control and abatement of environ-
mental pollution are not used for any other purpose unless permitted by-law
and specifically approved by the Office of Management and Budget.
1-6. CampUaaer \\lth Pollution Contmis.
fc, Whenever the Administrator or the appropriate State, interstate.
;2
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TXI Misaoecr 47709
/
1-604. These conflict resolution procedures are in addition to. not in lieu
of, other procedures, including: sanctions, for the enforcement of applicable
pollution control standards.
1-605. Except as expressly provided by a Presidential exemption under
this Order, nothing in this Order, nor any action or inaction under this Order.
shall be construed to revise or modify any applicable pollution control
standard. 'i§«;
1-7. Limitation m Exemptions.
1-701. Exemptions from applicable pollution control standards may only
be granted under statutes cited in Section 1-102 (a) through 1-102(0 if the
President makes the required appropriate statutory determination: that such
exemption is necessary (a) in the interest of national security, or (b) in the
paramount interest of the United States.
1-702. The head of an Executive agency may. from time to time, recom-
mend to the President through the Director of the Office of Management and
Budget, that an activity or facility, or uses thereof, be exempt from an applica-
ble pollution control standard.
1-703. The Administrator shall advise the President, through the Director
of the Office of Management and Budget, whether he agrees or disagrees with
a recommendation for exemption and his reasons therefor.
1-704. The Director of the Office of Management and Budget must
advise the President within sixty days of receipt of (he Administrator's views.
Ctntral Previsions. • • .
1-801. The head of each Executive agency that is responsible for the
construcMon or operation of Federal facilities outside the United States shall
ensure that such construction or operation complies with the environmental
pollution control standards of general applicability in the host country or
jurisdiction. .
1-802. Executive Order No. 11752 of December 17. 1073s is revoked.
TH* Warn House.
Ortafcr 13. 1978.
OrXDoe, 79-29404 Filed 10-13-73: 3:40 pnU
statement of Oct. IS. 1978. on signing Executin* Order
I20M aad:W#iiJiiiiimnduai for the headi of departments and agencies, dated On. 13. 1978. un
Federal cooipipiSitwiUi poUutioo control standard* are primed ia the WrrUy OxnpUauon of
Pmidowai Oiaipaio («ot 14. no. 41).
vet, a. NO. »i—njissAT. OCTOMI IT. i«rt
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