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.

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                                                                  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

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                              - 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.

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  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.

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                                                  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.

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