oEPA United States Environmental Protection Agency Office of Solid Waste and Emergency Response DIRECTIVE NUMBER: 9541.03-85 TITLE: Review of State Statutory Authorities for the Hazardous and Solid Waste Amendments of 1984 APPROVAL DATE: 03/08/85 EFFECTIVE DATE: 03/08/85 ORIGINATING OFFICE, osw BO FINAL D DRAFT STATUS: [ ] A- Pending OMB approval B- Pending AA-OSWER approval C- For review &/or comment [ ] D- In development or circulating REFERENCE (other document*). headquarters OSWER OSWER OSWER VE DIRECTIVE DIRECTIVE Dl ------- PART 271 SUBPART A - FINAL AUTHORIZATION DOC: 9541.03(85) Key Words: Equivalency, Authorized States, HSWA, State Authorization Regulations: Subject: Review of State Statutory Authorities for the Hazardous and Solid Waste Amendments of 1984 Addressee: Hazardous Waste Division Directors, Regions I-X Originator: Bruce R. Weddle, Director, Permits and State Programs division Source Doc: #9541.03(85) Date: 3-8-85 Summary: As a result of the Hazardous and Solid Waste Amendments of 1984 (HSWA), all authorized States and States seeking authorization must revise their programs to reflect the new requirements. To assist States in this effort, EPA devel- " oped a checklist that contains the provisions for which statutory authority is required. States should review all their existing statutory and regulatory authority before deciding whether changes are necessary as a result of HSWA. Some provisions on the checklist may not require legislative amendments, others are marked "optional." The latter are cases where the HSWA is less stringent than pre-existing law or where variances and exemptions may be granted. A State does not have to adopt the optional provisions if it wants to maintain •a more stringent program under Section 3009. Some provisions are marked "potential requirement" which, depending on future EPA action, means a State may or may not be required to adopt similar authority in the future. While States are not required to seek authority for these provisions now, they may seek to do so to avoid returning to the legislature in future years. Unless otherwise indicated, States must have authority to implement every mandatory requirement on the checklist. To receive final authorization for the requirement, the State's authority must be equivalent to, and no less stringent than, EPA's authority. The Agency urges States to amend their statutes to seek "equivalent," not "substantially equivalent," authority since the former is what is required for final authorization. The Agency also advises that States enact, where possible, statutory authority encompassing all (or a substantial number of) the 1984 Amendments at one time rather than revising their statutes in piecemeal fashion. ------- 9541.03 (85) C>v aC MAR |:4*£%*tt*t fcfcj • *jr vOWii^ •-—, .-„,. oT--L*<- -<--~~-- -- - '- £.*-'••• ~- .V- '"'/"I *.*TJ_.. ' i**^**»*««U> twle*.- - MEMORANDUM BUBJECTt *" Review of State'Statutory Authorities for Hazardous and Solid Waste Amendments of 1984 FROM: Bruce R. Weddle';rr?rr:^ :"":"^r:'?;r* ' Tt; Director -. Permits and State Programs Division JWB .TOi j_^.-__. Hazardous Waste Division Directors -----*^~ Regions I-X The Hazardous and Solid Waste Amendments of 1984 (HSWA) require that all authorized States and States seeking author- isation revise their programs to reflect the new requirements. The sheer number and impact of HSWA make it imperative that the States'once again "review "their statutes/* As In'the" ~ -• preapplication review for final authorization, EPA can aid in the effort to determine what revisions are needed by -„•-• providing States with a statutory checklist and reviewing it . when completed. This optional review requires a cooperative effort on the part of EPA and the States* For EPA's party .._ the review is the joint responsibility of the Regional Counsel, the Regional Hazardous Waste Divisions and_the Headquarters Review Teams* * ' '' *" . **••• 'The attached checklist is provided to aid States (both' *? * authorized States and those seeking authorization) in making revisions to their programs as required by HSWA. This check- list is a list of provisions for which statutory authority is required and will help in executing this review. Its specific use is described more thoroughly in its introduction. In order to meet the requirements of the HSWA, a State must have authority for every requirement of the checklist, unless otherwise tioted. Although the Amendments provide that States with provisions substantially equivalent to the new requirements may apply for interim authorization ($3006(g)(2)), the States will ultimately need to receive final authorization for these new requirements. For final authorization, such authority must be equivalent to, and no less stringent than, EPA's authority. Because interim authorization under Section 3006(g) is only temporary, we ------- Strongly encourage ART State needing to amend its statute to seek "equivalent" versus "substantially equivalent" authority. By doing so, the State will not need to amend Ve also advise that .the States enact, where possible, - statutory .authority encompassing all — or a substantial _ number «f «-- th« 1984 Amendments at one time, rather than ~~ revising their statutes in piecemeal fashion. This will minimise the possibility of having to return to the State - - legislature in the near future to obtain additional statutory authority, even though not all of the Mandatory requirements on the checklist must be adopted immediately. The reasons for this are self evident* The timing requirements of the H5WA do not necessarily mesh with the calenders of the legis- latures. In addition, delays are inherent in the legislative process. ...... _ '-~.~ • ., i.,--^!.— -. • — •- Specific Guidelines for Regional and Headquarters Review 1. Regions should develop priorities for statutory ~ review based on the frequency and timing of legislative sessions in each State and State procedures for filing bills* All States should be given a copy of the checklist BOW, •vea if • particular Stats is »ot a high priority for .;?" immediate review. ~~-~'-\ - --•-•• ~ - 2. States which request reviews must provide to the Region a completed copy of the attached checklist* up-to-date copies of their hazardous waste statutes, copies of any other statutes that may be invoked to carry out the hazardous waste program, and information concerning any pending legis- lative actions. (Where the Region has up-to-date State statutes on file, the State need not submit new copies.) The Region, in turn, will send a copy of the package to Headquarters for a concurrent review period. Headquarters will provide comments to the Region within 30 days of receipt of the package. The Region will consolidate all comments within 15 days. A State should be able to receive consolidated comments from the Region within a total of 45 days from its review request. This checklist will facilitate the review process and will provide you and the States with a reference for most of the necessary provisions. You are encouraged to work closely with the States in order to successfully implement the HSWA in the State programs. While State regulatory authority is not addressed in the checklist, CPA will try to accommodate State requests for review of draft regulations. If you have ------- «»7 -. T^.~- .-^T.--* _=-.-^-. ^^^'^'9^^'SS&f^^^lS^^ the appropriate" Program Manager In bur state Program* ~ " ***^ 38 2-2210 ^ j»r ^our ORC JtCJlA Teaa Leader "«cr ";lia*artSoui Ha• t« ""Branch ~CS {• f«y R»g ionr'-f-X - ORC RCKA laam L>ad*r*, Jt»qion»-I«X.- . r U-- "i "i • %-•» ^.i.'jfc'./V-^'*1^^'-'••••» '• •• *^ • i«^*^^fT»1*S •a Fri»d«an, OOCv?.-^*^ -- ,. ^v-^ - ; Gail Cooper, OGC ' x . "./ State Prograas Branch, O8W -..*":*- ------- MAR 8 1985 STATUTORY AUTHORITY CHECKLIST FOR THE HAZARDOUS AND SOLID WASTE ACT AMENDMENTS OF 1984 Introduction As a result of the Hazardous and Solid Waste Amendments of 1984, Pub. L. 98-618 (Nov. 8, 1984) [HSWA] amending the Resource Conservation and Recovery Act, 4_2 U.S.C. §6901 et. seq. , all authorized states and all states seeking authorization will need to revise their programs to reflect the HSWA. The checklist which follows is provided to guide attorneys and others in assessing which changes to the Subtitle C RCRA program may necessitate new state legislation. States will be able to adopt analogues to many HSWA provisions and subsequent EPA implementing regulations simply by making regulatory changes. For instance, while the HSWA requires EPA to list specified wastes, any state with interim or final authorization should already have the statutory authority to list additional wastes. Similarly, any finally authorized state should already have adequate statutory authority to require double liners for landfills since, to receive final authorization, a state must be able to establish permit requirements for landfills. Thus, we have not included such HSWA provisions in the statutory checklist. Other provisions are very likely to require state statutory' amendments, such as the HSWA requirement that corrective action for all releases at a facility must be included as a requirement in a RCRA permit, regardless of when the waste was placed in the solid waste management unit. All such provisions are included in the checklist. However, inclusion of a provision on this checklist does not mean that EPA has concluded that all states, or any particular state, will need to amend their statute's. States should carefully review all their existing statutory and regulatory authority before deciding whether statutory or regulatory changes are necessary as a result of the HSWA. There are some HSWA provisions which we doubt will require legislative amendments but which we have included in the checklist out of an abundance of caution. The main example of this is the prohibition on the land disposal of various hazardous wastes. While we believe any state with authority to regulate land disposal would probably have the authority to prohibit land disposal of particular wastes, we have included provisions like these on the checklist as possibly requiring legislative amendments. Another example is the requirement that a state have authority to prohibit the storage of waste prohibited from land disposal. Other provisions are marked "optional." These are cases where the HSWA is less stringent than pre-existing law or where variances and exemptions may be granted. If a state wishes to maintain a more stringent program, as is authorized by Section 3009, it need not adopt the optional provisions. ------- - 2 - A few provisions are marked "potential requirement." Depending on future EPA action, a state may or may not need to adopt similar authority in the future. States are not required to seek authority for these provisions now; however, if a state wishes to minimize the likelihood that it will need to return to the legislature in future years, it may wish to consider seeking authority for the potential require- ments now. The major provisions in this area concern EPA's enhanced enforcement authority under Section 3008. We have not listed each change to Section 3008; states wishing to strengthen their enforcement authority in a similar fashion should review Sections 232 and 233 of the HSWA amending Section 3008. Before states would be required to amend their enforcement, authority, EPA would need to amend the state authorization enforcement requirements in 40 CFR §271.16. Unless otherwise indicated, states must have authority to implement every mandatory requirement on the checklist. To receive final authorization for the requirement, the state's authority must be equivalent to, and no less stringent than, EPA's authority. To receive interim authorization under Section 3006(g) of the HSWA, a state must have substantially equivalent authority. Because interim authorization under Section 3006(g) is only temporary, we strongly encourage any state needing to amend its statute to seek "equivalent," and not "substantially equivalent" authority. By doing so, the state will not need to ame.nd its statute twice. Not all the mandatory requirements on the checklist must be adopted immediately. 40 CFR §271.21(e) establishes the time frame for making statutory and regulatory changes; the deadlines vary depending on the provision. Since the purpose of this checklist is to identify all possible statutory changes so that states may develop one legislative package to present to their legislatures, the checklist does not differentiate among the different time deadlines. We strongly recommend that persons using this checklist familiarize themselves with the pertinent RCRA provisions. The checklist is an important evaluation tool but it is not a substitute for the statute. Further, we add the cautionary note that, because of the number of regulations EPA will be adopting in the coming years, we cannot provide any guarantee that a state which has relied on this checklist may not need to obtain new statutory authority at some time. We have tried to minimize that possibility in preparing this checklist but we cannot rule it out. Additionally, this checklist does not address non-Subtitle C requirements (such as Title VI requirements on underground storage tanks). ------- Hazardous and Solid Waste Amc Enacted: November 8, 1 Public Law 98-616 'ents of 1984 ..-t Statutory Element RCRA [HSWA] Cite Prepared By: Date: Reviewed By: Date: Coverage Y/N State Cite Comment RCRA §3001 1. Authority to regulate the generation, §3001(d) transportation, treatment, stor- [Sec. 221] age and disposal of hazardous waste produced by generators of between 100-1000 kg/month. *2. Authority to regulate the generation, §3001(d) transportation, treatment, storage and (Sec. 221] disposal of hazardous waste produced by generators of less than 100 kg/month. 3. Optional: Authority to allow §3001(d) generators of between 100-1000 [Sec. 221] kg/mo to store hazardous waste" on-site for up to 180 days without a permit or interim status. On-site storage of no more than 6,000 kgs may occur for up to 270 days without a permit or interim status if the generator must ship or haul the waste over 200 miles. * Potential requirement -1- ------- Statutory Element Cite Y/N Cite Comment 4. Required if a State has a delisting mechanism: in any delisting action, authority to consider factors (including addi- tional constituents) other than those for which the waste was listed, if the State has a reasonable hasis to believe that such additional factors could cause the waste to be •a hazardous waste. 5. Required if State has delisting authority: State may not allow new temporary delistings without prior notice and comment, absent good cause. Prior tanporary delistings lapse if not made final by November 8, 1986. RCRA §3002 6. Authority to require generators to submit reports and manifest certifications regarding efforts taken to minimize the amounts and toxicity of waste generated. RCRA §3004 7. Authority to promulgate rules requiring evidence of financial responsibility for corrective action on and off-site. §3001(f)(1) [Sec. 222] §3001(f)(2) [Sec. 222] §3002 [Sec. 224] §3004(a)(6) [Sec. 208] -2- ------- RCRA [RSWA] Co -erage State Statutory Element Cite Y/N Cite Comment 8. Authority to prohibit the land §300A(b)-(g) disposal of any hazardous waste. [Sec. 201] Land disposal includes, but is not limited to, landfills, sur- face impoundments, waste piles, deep injection wells, land treat- ment facilities, salt dome and bed formations and underground mines or caves. Deep iniection well means a well used for the underground iniectio'n of hazardous wastes other than a well to which §7010(a) of RCRA applies. We believe that States already have this authority through their authority to regulate the treatment, storage and disposal of hazardous waste. However, if a State believes it needs new authority to ban a waste from land disposal, we strongly recommend that the State seek the broad statutory authority described above. This recommendation is based primarily on §3004(g) of RCRA; Section 3004(g) requires EPA to decide whether to prohibit one or more methods of land disposal for every listed or identified hazardous waste by 1990. Thus, unless a State has statutory authority to ban the land disposal of any such hazardous waste, it may need to amend its statute repeatedly as EPA decides the status of each waste. / If a State decides not to seek or cannot obtain such broad authority, the following list breaks down the various HSWA provisions relating to land disposal bans that States will need to adopt in the coming months and years: *A. Authority to prohibit the disposal of §3004(b) any hazardous waste in salt dome and [Sec. 201] bed formations, underground mines, or caves until a §3005(c) permit'is issued. In addition, authority to prohibit disposal of any bulk liquid hazardous waste in salt dome and bed formations, underground mines, or caves until * Authority over bulk liquid hazardous waste may be under a hazardous waste or underground injection control program as long as all RCRA requirements are met. -3- ------- try Element RCRA [Hc Cit Coverage Y/N State Cite ient (1) it is determined, after notice and opportunity for hearings on the record in the affected area, that such placement is protective of health and the environment and (2) performance and permitting standards for such facilities are adopted. B. Authority to prohibit landfilling of bulk or non-containerized liquid hazardous waste. C. Authority to promulgate regula- tions that minimize the land- filling of containerized liquid hazardous waste and free liquids in containerized hazardous wastes, and prohibit the landfilling of liquids absorbed in materials that biodegrade or release liquids when compressed. *E. Authority to prohibit the land disposal, including underground injection into deep injection wells, of the following wastes (including the authority to set more stringent concentration levels for categories A-E): (A) Liquid hazardous wastes, including free liquids associated with any solid or sludge, containing free cyanides at concentrations greater than or equal to 1000 mg/1. (B) Liquid hazardous wastes, including free liquids associated with any solid or sludge, containing the following metals §3004(c) [Sec. 201] §3004(c) [Sec. 201] S3004(d),(e),(f) [Sec. 201] Authority regarding deep injection wells may be under the State's hazardous waste authority or its underground injection control authority as long as all RCRA requirements are met. ------- Statutory Element Cite >w\j Coverage Y/N State Cite Comment (or elements) at concentrations greater than or equal to those specified below: (i) arsenic and/or compounds (as As) 500 mg/1 (ii) cadmium and/or compounds (as Cd) 100 mg/1 (iii) chromium VI and/or compounds (as Cr VI) 500 mg/1 (iv) lead and/or compounds (as Pb) 500 mg/1 (v) mercury and/or compounds (as Hg) 20 mg/1 (vi) nickel and/or compounds (as Ni) 134 mg/1 (vii) selenium and/or compounds (as Se) 100 mg/1 (viii) thallium and/or compounds (as Th) 130 mg/1 (C) Liquid hazardous waste having a pH less than or equal to two (2.0) (D) Liquid hazardous wastes containing polychlorinated biphenyls at concentrations greater than or equal to 50 ppm (E) Hazardous wastes containing halogenated organic compounds in total concentration greater than or equal to 1000 mg/kg (F) solvents (G) dioxins -5- ------- RCRA SET ory Element *F. 9. Authority to prohibit the land disposal of any hazardous waste which is prohibited from land disposal under §3004(g) of RCRA. Optional: Authority to waive, until November 8, 1987, a prohibition on land disposal of certain hazardous wastes (i.e., those designated in //10E above) that might otherwise apply to the disposal of'contaminated soil or debris from CERCIA §104 or §106 actions or RCRA corrective actions. **10. Authority to prohibit disposal of nonhazardous liquids in Sub- title C landfills unless (1) the only reasonable alternative is disposal in a landfill or unlined impoundment, whether or not subject to Subtitle C, that contains or may contain hazardous waste and (2) disposal will not endanger an underground source of drinking water. Cit Coverage Y/N State Cite lent §3004 (p,) [Sec. 201] §3004 [Sec. 201] §3004(c)(3) [Sec. 201] *Because of legal problems with incorporating future EPA regulations by reference, States pursuing this option should seek only the authority to ban wastes prohibited by EPA rather than seeking to incorporate by reference any EPA land disposal prohibition. As discussed above, we advise states to seek authority to ban the land disposal of any hazardous waste. However, some states may wish to seek authority to ban land disposal of only those hazardous wastes for which EPA has prohibited land disposal. **States should particularly note this requirement. Since many State statutes pertain only to hazardous waste, States are likely to need new authority to regulate the disposal of nonhazardous waste at Subtitle C facilities. -6- ------- Rtc ory Element RCRA Cit. Coverage Y/N State Cite 11. Authority to prohibit the storage §3004(j) of hazardous wastes prohibited from [Sec. 2011 land disposal. 12. Authority to prohibit the use of §3004(1) waste oil or other materials [Sec. 201] contaminated with hazardous wastes (except ignitable wastes) as a dust suppressant. 13. Authority to promulgate standards §3004(m) specifying levels or methods of [Sec. 201] treatment, if any, which sub- stantially diminish the toxicity of the waste or substantially reduce the likelihood of its migration so as to minimize threats to human health and the environment. Optional for //13: Authority to exempt wastes in compliance with such levels or methods from the land disposal prohibitions. 14. Authority to promulgate rules for §3004(n) monitoring and controlling air [Sec. 201] emissions at treatment, storage, and disposal facilities. 15. Authority to regulate fuel containing §3004(q-s) hazardous waste and all persons who [Sec. 204] produce, burn, distribute, and market fuel containing hazardous wastes. Comment: States should not need new authority over fuel containing hazardous waste but may need additional authority over some of the persons or activities described above. -7- ------- Statutory Element RCRA f) ,] Cite Coverage Y/N State Cite Comment 16. Optional: Authority to exempt petroleum coke containing hazardous waste from petroleum refining from regulation if it is is to be burned for energy recovery unless the coke exhibits a characteristic of hazardous waste. 17. Authority to allow direct action against the insurer or corporate guarantor if an owner/operator is in bankruptcy or reorganization. Optional: (A) Authority to allow an insurer to claim all rights and defenses available to the owner/operator. (B) Authority to limit insurer liability to the liability amount provided as evidence of financial responsibility and by contractual agree- ment unless the owner/ operator acted in bad faith. *18. Authority to assure that permits issued after 11/8/84 require corrective action for releases of hazardous waste or constituents §3004(q)(2)(A) [Sec. 204] §3004(t) [Sec. 205] §3004(u) [Sec. 2061 * Note: States must have authority to require corrective action for all solid waste management units, even though the only unit receiving a permit is a deep injection well. (Ttiis authority may be under a hazardous waste or underground injection control program as long as all RCRA requirements are met.) -8- ------- Stau _ory Element RCRA [H Cite Coverage Y/N State Cite Comment from any solid waste management unit at a facility, regardless of when the waste was placed in the unit. 19. Authority to require corrective action beyond a facility's boundary. Once EPA promulgates the regulations required by §3004(v), the state must have authority to include corrective action as a permit requirement. Until then, a state may use corrective action orders as an alternative to imposing corrective action in a permit. Without some mechanism for requiring correction action beyond a facility's boundary, a state may not issue a RCRA permit. 20. Authority to assure that permitting standards for underground hazardous waste tanks, at a minimum, satisfy Section 9003, Subtitle I of RCRA,. 42 USC 9003. RCRA §3005 21. Optional: Authority to allow a facility to construct an approved TSCA facility for burning PCBs without first obtaining a RCRA permit. An owner/operator may file for a RCRA permit to burn hazardous waste after construction or operation of such a facility has begun. §3004(v). [Sec. 207] §3004(w) [Sec. 207] §3005(a)(3) [Sec. 211] -9- ------- _ RCRA f"^\] Coverage State St tory Element Cu Y/N Cite 22. Authority to review land disposal §3005(c)(3) permits every five years and to fSec. 212] modify them as necessary to assure compliance with State's analogue to RCRA §§3004, 3005 and to take into account improvements in technology. 23. Authority to issue permits §3005(c)(3) containing any conditions [Sec. 212] necessary to protect human health and environment. *24. Authority to require that §3005(c),(e) (i) for land disposal facilities fSec. 213] qualifying for interim status prior to 11/8/84, interim status terminates 11/8/85 unless a Part B applica- tion and certification of compliance with applicable ground-water monitoring and financial responsi- bility requirements are submitted by 11/8/85. ** (ii) For land disposal facilities in existence on the effective date of statutory or regulatory amendments under the HSUA that require the facility to have a RCRA permit, interim status terminates 12 months after the facility is first required to * Note that the state's analogue to interim status must terminate automatically in these cases (whether the state's analogue is Part 265 type standards or permits). If a State statute or regulation would require any type of hearing to terminate the facility's operating authority, the State must amend its authority to delete that requirement for these provisions. (Interim status as used here means the state's analogue to Federal interim status.) **Applicable if State adopts optional authority in //25. -10- ------- PCRA ory Element Ch Coverage Y/N State Cite 4iient obtain a permit, unless a Part B application and certification of compliance with applicable ground-water monitoring and financial responsibility require- ments are submitted 12 months after the date the facility is first required to obtain a permit. (iii) Interim status terminates for incinerator facilities by 11/8/89 unless the owner/ operator submits a Part B application by 11/8/86. (iv) Interim status terminates for any facility other than a land disposal or an incineration facility by 11/8/92 unless the owner/operator submits a Part B application by 11/8/88. 25. Optional: Authority to allow facilities to qualify for interim status if they (1) are in existence on the effective date of statutory or regulatory changes that render the facility subject to the requirement to have a permit and (2) meet notice and permit application require- ments. 26. Authority to require that facilities may not qualify for interim status under the State's analogue to Section 3005(e) if they were previously denied a Section 3005(c) permit or for which authority to operate has been terminated. 53005(e) fSec. 241] §3005(c),(e) [Sec. 213] -11- ------- * RCRA tory Element Ci Coverage Y/N State Cite .iment 27. Optional: A. Authority to issue a one-year research §3005(g) development, and demonstration [Sec. 214] permit for any hazardous waste treatment facility which pro- poses an innovative and experi- mental hazardous waste treatment technology or process not yet regulated. Permits may he renewed no more than three times; no renewal may exceed a year. B. Authority to waive or modify general permit application and issuance requirements for R&D permits, except for financial responsibility and public participation requirements (RCRA §700A(b)(2)) . C. Authority to terminate experimental activity if necessary to protect health and the environment. (Mandatory if State adopts R&D permitting authority). 28. Authority to require landfills, surface §3005(i) impoundments, land treatment units, fSec. 2431 and piles that received waste after July 26, 1982 and which qualify for interim status to comply with the groundwater monitoring, unsaturated zone monitoring, and corrective action requirements applicable to new units at the time of permitting. 29. Authority to require interim status §3005(1) impoundments to comply with the [Sec. 2151 double liner, leachate collection, and ground-water monitoring requirements applicable to new units or stop treating, receiving, or storing hazardous wastes. -12- ------- RCRA Statutory Element 31, fA] Coverage Y/N State Cite Comment §3005(j)(13) [Sec. 215] Authority to impose any necessary §3005(j) requirements (including double (Sec. 215] liners) on an existing surface impoundment to protect health and the environment after determining that hazardous constituents are likely to migrate into groundwater. Optional: Authority to mbdify the double liner, leachate collection, and groundwater monitoring require- ments for impoundments in §3005(.1)(i) if prior to October '1, 1984, the owner/operator has entered into a consent decree, order, or agreement with EPA or an authorized State which requires corrective action and provides protection of health and environment at least equivalent to that in §3005(j)(l). RCRA §3006 32. Authority to make information obtained §3006(f) on treatment, storage, and disposal [Sec. 226] facilities available to the public in substantially the same manner and to the same degree as if EPA were running the program. RCRA §3014 * *33. Authority to promulgate special §3014(c) generator and transporter standards [Sec. 241] for recycled hazardous used oil. * Potential requirement: EPA is planning to list used oil as a hazardous waste. If we do so, states may need this authority. -13- ------- T^ tory Element RCRA §3015 35. Authority to require new units, expansions and replacements of interim status waste piles to meet the requirements for a single liner and leachate collection system in current regulations applicable to permitted waste piles. 36. Authority to require new units, expansions, and replacement units at interim status landfills and surface impoundments to meet the requirements for double liners and leachate collec- tion systems applicable to new permitted landfills and surface impoundments. Optional: Facilities which comply in good faith need not retrofit at permit issuance unless the liner is leaking. RCRA C. Coverage Y/N State Cite .nment 34. Optional: Authority to deem hazardous waste used oil recycling facilities to have a permit if they comply with the State's analogue to the §3004 standards. However, a State must retain the authority to require individual permits if necessary to protect human health and the environment. §3015(a) [Sec. 243] §3015(b) [Sec. 243] -34- ------- jry Element RCRA [' Cit Coverage Y/N State Cite ..lent RCRA §3018 *37. Authority to regulate listed or identified wastes which pass through a sewer system to a publicly owned treatment works (POTW) as necessary to adequately protect human health and environment. RCRA §3019 38. Authority to require permit applicants for landfills or surface impoundments to submit exposure information. 39. Authority to make exposure and health assessment information available to the Agency for Toxic Substances and Disease Registry. (See CERCLA §104(0) RCRA §§7002, 7003 **40. Optional: Authority to grant variances and exemptions that are no less stringent than allowed by Subtitle C of RCRA. §3018(b) fSec. 246] §30l9(a) [Sec. 247] §3019(b)(1) [Sec. 247] * Potential requirement: Depending on the result of reports EPA is required to prepare under §3018(a), EPA may impose regulations in the future addressing hazardous wastes passing through to a POTW. Such regulations, if adopted, may be under RCRA, the Clean Water Act or other authority, and may or may not be a State program requirement. ** Various HSWA provisions amend RCRA to allow EPA-and the States if they wish - to grant variances and exemptions. In addition to those variances specifically authorized by statute, the HSWA allows EPA to develop regulations with variance provisions or to make case-by-case variance decisions. Unless a state is absolutely sure that it will never wish to grant a variance or exemption, we strongly recommend states obtain the above authority. The States' variance procedures and decision criteria must be no less stringent than EPA's. -15- ------- RCRA r^K] Coverage State ST -ory Element CL Y/N Cite ..roent 41. Optional: Neither the State nor §7002(g), citizens may bring action against §7003(a)(B)(2) common carriers for imminent hazards arising after delivery of the shipment to the cosignee, pro- vided the carrier exercised due care when handling the work. RCRA §1004 *42. Authority to regulate hazardous §1004(27) waste that is radioactive except to the extent that the waste is source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended. (68 Stat. 923) * Ihis is not a HSWA requirement. Until recently there had been some controversy about the scope of EPA's RCRA authority over radioactive waste. EPA has now determined that hazardous wastes are subject to RCRA if they are mixed with source, special nuclear or byproduct material even though source, special nuclear, or byproduct material itself is not subject to RCRA. Ihus, States will need to review their authority to ensure that only source, special nuclear, or byproduct material is excluded from their hazardous waste jurisdiction. -16- ------- |