vvEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER. 9433.00-1
TITLE: RCRA Section 30Q'l (f) (2) (b) and States'
Exclusion of Wastes froqi Regulation as Hazardous
APPROVAL DATE: April 16, 1986
EFFECTIVE DATE: April 16, 1986
ORIGINATING OFFICE: State Programs Branch/OSW
£3 FINAL
DDRAFT
STATUS: Signed and sent to Regions on 4/17
REFERENCE (other documents):
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EPA
OSWER Directive Initiation Request
9433.00-1 • I
•Name o< Contact Person
Chester J. Qszman, Jr. ,
Ma.i Code
WH-563-B
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(202)382-2226
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S.gr.ature of G'f'Ce C.rector
Date
RCRA Section 3001(f)(2)(b) and States' Exclusion of Wastes from
Regulation as Hazardous
cf Directive
Instructs Regions and States to evaluate before 11/8/86 State-issued
waste exclusions to (1) determine type of exclusion granted by State
(tempotary or final) and (2) take appropriate action to ensure full
compliance with RCRA if temporary.
KEYWORDS: Waste Delisting, Exclusion, State Programs, and 40CFR260.22
Type of 'Directive '.Manual. Policy D/recfve. Announcement, etc./
Status
Policy'Directive
I_J Draft
0 Final
3Ui New
i I Revision
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RCRA Reautnorization Statutory Interpretation t4: Effect of
RSI #4 -Hazardous and Solid Waste Amendments of 1934 on State Delisting
Review Plan
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S.g.'.ature ot OSWER Directives Officer
Date
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t&sr^ OSWER POLICY DIRECTIVE #9433.00-1
s* *•
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
t'."p I C • OFFICE OF
*"' ; ' ^ ---•• SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: RCRA Section 3001(f)(2)(b) and States' Exclusion
of Wastes from Regulation as Hazardous
FROM: Marcia E. Williams, Director
Office of Solid Waste
TO: Hazardous Waste Division Directors
Regions I-X
Since November 8, 1984, EPA has administered all RCRA delisting
programs and will continue to do so until States become authorized
for delisting under the new provisions of the Hazardous and Solid
Waste Amendments of 1984 (HSWA). A State is not required to have
a delisting mechanism, and may be authorized under HSWA without
one. To receive authorization, a State must conform its delisting
program, if any, to the 'Federal program and apply to the Agency
for authorization.
Effective November 8, 1986, temporary exclusions automatically
expire. Any temporary exclusion granted by a State before
November 8, 1984, should be re-evaluated either' by EPA or a State
that has been authorized to conduct delisting pursuant to HSWA.
If a final decision to grant or deny a petition has not been made
by November 8, 1986, the temporary exclusion will cease to be in
effect for purposes of RCRA Section 3001 ( f ) ( 2 ) (B.) .
Temporary Exclusions
Temporary exclusions are delisting decisions which exclude
a waste from regulation as hazardous, but are not the final
•delisting action under the regulations of the rssuing authority.
For example, EPA issued a number of temporary exclusions pursuant
to 40 CFR 260.22(m). That provision explicitly stated that these
decisions are made "before making a final decision". Similarly,
several States have mechanisms for removing a waste from regulation
before promulgating a final decision, such as delistings patterned
on the Federal temporary exclusion.
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These temporary exclusions should be distinguished from
grants of enforcement discretion, where a State d'id not remove a
waste from regulation, but stated only that it would not initiate
an enforcement action against a person treating this waste as non-
hazardous. Enforcement discretion, sometimes called" informal
exclusions, are not temporary exclusions (nor are they final
exclusions ) .
Final Exclusions
A final exclusion is an agency determination done in accordance
with the issuing authority's regulations; e.g./ with notice and
comment after which no further review of the petition is contemplated
EPA issues final exclusions pursuant to 40 CFR 260.20 and 260.22,
which requires publication of a tentative decision in the Federal
Register, receipt and evaluation of public comments, and publication
of a final decision in the Federal Register. States issue final
exclusions in accordance with their State legal authorities.
Any f inal exclusions that were granted by authorized States
before November 8, 1984, are not affected by HSWA (i.e., no
additional action is required by the State or by EPA) . EPA
encourages the States to re-evaluate those decisions if all
factors (including additional constituents) which could cause
the waste to be hazardous were not considered by the State.
Actions Required
On November 8, 1986, all temporary exclusions will cease to
be in effect for purposes of RCRA if a final exclusion has not
been granted. States and Regions should plan to verify that the
handlers of these previously excluded wastes are complying with
applicable requirements after November 8, 1986. To this end, the
Regions and States should begin to evaluate all State delistings
•'"(I) determine the type of State exclusion (temporary or final) .
that was granted before November 8, 1984;
(2) determine whether a final exclusion has been granted or
denied by EPA; and
(3) take appropriate action to ensure full compliance with
RCRA (e.g., prior to 11/8/86, you should send handlers
written notification of their regulatory responsibilities.)
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From a practical standpoint, the expiration of a temporary
exclusion will have greatest immediate impact on those who
manage their waste in land disposal units. These units may
be immediately subject to ground-water monitoring requirements
and, on Movember 8, 1987, may be .subject .to the "lo^s of interim
status" requirements of Section 3005(e)(3), depending on whether
other hazardous waste management activity is occurring at the
facility.
Currently, there are no States authorized for the HSWA
delisting authority. Even if a State were to receive the
required authorization before November 8, 1986, it is highly
unlikely that adequate time exists to collect and evaluate the
additional information from petitioners so as to avoid termination
of the .temporary exclusion.
A "Reference Guide to Delisting Petitions" is compiled at
EPA Headquarters and distributed weekly to the Regional delisting
contacts. In turn, the Guide is distributed to the States. This
reference can be used to determine if EPA is reviewing a particula;
petition and the status of EPA's review. ,
Please feel free to contact the delisting staff of the Waste
Identification Branch or the Regional Liaisons of the State
Programs Branch here in the Office of Solid Waste if you have
any questions regarding State delistings.
cc: Matt Straus, OSW
Truett DeGeare, OSW
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