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. ------- |