260 SUBPART C - RULEMAKING PETITIONS
DOC: 9433.02(85)
Key Words: Delisting, HSWA, Authorized States
Regulations: HSWA §228, 40 CFR 260.22(m)., 260.20
Subject: RCRA RSI #4: Effect of HSWA on State Delisting Decisions
Addressee: RSI Addressees
Originator:
Source Doc:
Date:
Summary:
Jack W. McGraw, Acting Assistant Administrator
#9433.02(85)
5-16-85
The memo describes the effect of the RCRA Amendments on State delisting
decisions for both final and temporary exclusions.
Since November 8, 1984, EPA has administered all RCRA delisting programs,
and will continue to do so until a State is authorized for delisting under' the
new provisions of the Hazardous and Solid Waste Amendments of 1984 (HSWA or the
Amendments). To receive authorization, a State must conform its delisting .-
program to the Federal program and apply to the Agency for authorization. Any*
temporary exclusion granted by a State before November 8, 1984, must be
reevaluated using the new delisting criteria and procedures. 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 purpose of RCRA.
-------
9433.02 (8:
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
i ^il^fc/ WASHINGTON, D.C. 20460
S.. ••?
MAY I 6 1985
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT.: RCRA Reauthorization Statutory Interpretation f 4 :
Effect of Hazardous and Solid Waste Amendments of
1984 on Spates Delisting Decisions
. . t t
FROM: k/'cPC'N W.
Acting Assistant Administrator
•j
TO: RSI Addressees
ISSUE: What effect do the delisting provisions of the
Hazardous and Solid Waste Amendments of 1984 have
on State' delisting decisions?
SUMMARY
Since November 8, 1984, EPA has administered all RCRA
delisting programs, and will continue to do so until a State
is authorized for delisting under the new provisions of the
Hazardous and Solid Waste Amendments of 1984 (HSWA or the
Amendments). To receive authorization, a State must conform
its delisting program to the Federal program and apply to the
Agency for authorization. Any temporary exclusion.granted by
a State before November 8, 1984, must be reevaluated using
the new delisting criteria and procedures. 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.
DISCUSSION
Before enactment of the Amendments, EPA's evaluation of
exclusion (delisting) petitions addressed only those factors
considered by the Agency in listing the waste as hazardous.
The regulations also allowed the Agency to grant a temporary
exclusion without prior notice and comment if there was
substantial likelihood that an exclusion would be finally
granted. In addition, once EPA authorized a State program,
EPA suspended the administration and enforcement within the
-------
- 2 -
State of those parts of the Federal program for which the State
was authorized. Consequently/ any authorized State that- had a
delisting program could make delisting decisions without prior
EPA review of each decision. Any delisting decision made by the
State still was subject to EPA oversight, however, to ensure
that the State program did not become less stringent than EPA's.
(Any delisting decision made by the State was in effect only
while the waste remained under State control.)
HSWA Effect On State Delisting Decision
The Hazardous and Solid Waste Amendments of 1984 modified
both the substantive standard and the procedures to be used in
evaluating delisting petitions. The Amendments require the
Administrator/ when evaluating delisting petitions _!/ to:
0 consider factors (including additional constituents) other
than those for which the waste was listed if there is a
reasonable basis to believe that such additional factors
could cause the waste to be a hazardous waste; and
0 provide notice and an opportunity for comment before
granting or denying a petition.
Furthermore/ the Amendments require the Administrator to re-
evaluate all temporary exclusions granted before the date of
enactment (i.e. , before November 8/ 1984); if a final decision
to grant or deny a petition has not been promulgated within 24
'months (i.e., by November 8/ 1986), the temporary exclusion
will cease to be in effect.
Under Section 228 of the HSWA, any requirements, including
the delisting requirements, imposed pursuant to the Amendments
are effective in authorized States at the same time-they are
effective in other States. Therefore,- until the States are
authorized for these requirements, EPA is responsible for admin-
istering these provisions. Based on this provision:
0 any further RCRA delisting decisions made by States (once
authorized) will have to b'e based on the new delisting
criteria and procedures noted above;
I/ In evaluating a petition, the Agency does not consider
the evaluation to be completed until a final decision is published
in the Federal Register.
-------
0 any State delisting decision made on or after November 8,
1984, and before authorization under the new standard
would not qualify as a RCRA delisting decision; and"
0 any temporary exclusion 2/. that was granted by the State
before November 8, 1984, must be reevaluated by the
State ( if they have been authorized under the new
delisting criteria) or by EPA. If a final decision to
grant or deny a petition has not been made within 24
months of that date, the temporary exclusion will cease
to be in effect.
Finally, any final exclusions that were granted by the State
before November 8, 1984, are not affected by the Amendments
(i.e., no additional action is required by the State or by EPA).
The States, however, are encouraged by EPA to reevaluate those
decisions if the other factors were not considered by the State.
The effect of the Amendments on the States is summarized on
the attached table.
Attachment
2/ Temporary exclusions are any delisting decisions which
are not considered the final delisting action under the
regulations of the issuing authority. For example, EPA issued a
number of temporary exclusions, pursuant to 40 CFR §260.22(m).
That provision explicitly states 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. All such exclusions are
temporary.
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, 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.
Decisions not to prosecute petitioners because it was believed
that a delisting later would be issued do not qualify as
final exclusions.
-------
ATTACHMENT
SUMMARY: EFFECT OF
AMENDMENTS ON STATE DELISTING
0 FINAL EXCLUSIONS
States do not need to reevaluate decisions made before
November 8, 1984.
States must use new delisting criteria for decisions made
after November 8, 1984.
States must provide an opportunity for comment before
making a final decision.
TEMPORARY EXCLUSIONS
EPA will need to act on previous State temporary
exclusions, unless, within 24 months of November 8, 1984,*
the State:
r
a) modifies its regulations; £
b) requests and becomes authorized by EPA for delisting;'
and
c) acts on previous temporary exclusions.
If the State (as described above) or EPA does not make a
decision within 24 months of November 8, 1984, the waste
is hazardous again.
States must use new delisting criteria for decisions
made after November 8, 1984.
States must provide an opportunity for comment before
making a temporary decision.
------- |