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):

              RSI = 4
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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
                                  .e Sumoer
                             (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
3oes ;~is Directive Supersede Previous Directive's,'   j	j Yes  ;X! No   Does i; S-jpo'ernent Previous Directives!'   (X | Yes  ;	i \o
If 'Yes" to Eitner Question. What Directive Irmmber, nr/el              TL         .  .    H .  „ ^/-      ^ ~~~~-^
            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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                                                                     Oaie
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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