oEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 9541.04-85
TITLE: Application of 40 GFR 271.21 (e) ("Moving Target")
to Recently Promulgated Regulations -
APPROVAL DATE: 03/20/85
EFFECTIVE DATE: 03/20/85
ORIGINATING OFFICE: OsuJ
fi FINAL
D DRAFT
STATUS:
[ ]
i
;
REFERENCE (other documents):
A- Pending OMB approval
B- Pending AA-OSWER approval
C- For review &/or comment
D- In development or circulating
headquarters
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
-------
PART 271 SUBPART A - FINAL AUTHORIZATION DOC: 9541.04(85)
Key Words: "Moving Target" Regulation, State Program, Changing Federal
Regulations, Authorized States
Regulations: 40 CFR 271.21(e), 265.l(a) and (b), 262.34, 260, 261, 264, 265,
266, 270, 775
Subject: Application of 40 CFR 271.21(e) ("Moving Target") to Recently
Promulgated Regulations
Addressee: Hazardous Waste Management Division Directors, Regions I-X
Originator: Bruce R. Weddle, Director, Permits and State Program Division
Source Doc: #9541.04(85)
Date: 3-20-85
Summary:
The "moving target" regulation [40 CFR 271.21(e)] requires revision to
approved State programs when EPA changes Parts 124, 260-266, and 270. The
State must act within one year of the date of promulgation of the regulation
or two years if the State needs to amend or enact a statute in order to make
the revision. The following process, which calls for concurrent Regional and
Headquarters review, will be used to review program revision applications.
1. The State submits an application consisting of copies of applicable
revised statutes and regulations, Attorney General's (AG) Statement,
Program Description, and MOA, as appropriate.
2. While the Region conducts its review, HQ has 30 days after the receipt
of the State package to send comments to the Region.
3. The Region makes a tentative decision and the appropriate HQ team has
a 10-day consultation period to review the Region's Action Memorandum
and FR Notice. AA and General Counsel concurrence on the Action
Memorandum are not required.
4. There is a 30-day public comment period and an opportunity for public
hearing after the tentative decision is made.
5. The Region makes a final decision and publishes it in the FR.
Application of the moving target regulations is discussed below in
relation to the four rules recently promulgated.
-------
Continued from Document 9541.04(85)
disposal) or incineration (e.g., burning wastes or waste-derived fuel for
energy). Materials that are used or reused are no longer automatically consid-
ered solid waste and therefore subject to RCRA.
A State has two options:
a) If it chooses to adopt the new concept in its entirety, it must submit
amended regulations, an AG's statement certifying the changes with the
statutory authority for the changes, and amendments to its' program
description describing how the State now defines solid waste and how
it will regulate hazardous waste recycling activities. The State does
not have to adopt the less stringent provisions of these rules.
b) It can show that current regulations are equivalent to and no less
stringent than EPA's new regulations. The State must submit a
certification from the AG explaining why that is so. MOA and program
description amendments are not required.
HSWA Application - Since this rule was not promulgated pursuant to HSWA,
interim authorization is not available.
-------
2 0 130J
.9541.04 (85)
o -
271721(4') -t*KbVl«*$ T*rg«1~> J* *
Promulgated Regulations - v " '--»"'< ** w
- O U>
*. Weddle ._ . ...... ........... ljpf^^._... , . _ «
Director - ~
. permit*
TOs V*"~ Hazardous Waste Hanagentent Division Directors, « >-
~ '""*"' "~ I-X "~ ............. " .-._..._ x H-
^
im >^^^ ;!,>,. ^'»-<» ir<»j« » rfl"' ' ct_i',^-"*~- '» - - ' - . . Si
EPA recently promulgated four rules which may require 3-
changes . in authorized State programs. The 'moving target" - £,
regulation (40 CFR 271.21(e)) requires revision to approved \
State programs when EPA changes Parts 124, 260-266 and 270. to
Revisions must be made within one year of the date of ' '" ^
promulgation of the regulation.' 'If the State must amend or " ««
enact a statute in order to make the revision, the State has - en
tw6 years in which to act. 'This memo 'describes the process ^
]to fce used ^ to review program revision applications and w
addresses', the specific application requirements for each of
the regulations. r " *' J';- r .-^ .-.-. *-j- -err -T^ trr-.-.r^.- - w
--_"".-!«..'. ...«>._...... 10
Application Review Process " 10
' - ' "
10
-.,.._
..... A future RCRA Reauthorization Statutory Interpretation,
(the State. Authorization R.S.I.), will discuss OSW s process
for reviewing applications for program revisions. Briefly,
the process calls for concurrent Regional and Headquarters
review of these applications. The applications will consist
of copies of applicable revised statutes and regulations,
Attorney General's (A.G.) Statement, Program Description, and
WOA, as appropriate. While the Region is conducting its review,
Headquarters will have thirty days after receipt of the State
package to send comments to the Region. After the Region has
made a tentative decision, Headquarters will have a ten-day
consultation period in which to review the Action Memorandum
and FR notice. The appropriate Headquarters Team will conduct
the review. AA and General Counsel concurrence on the Action
Memorandum will not be required. The tentative decision will
provide a 30-day public comment period and -an opportunity for
public hearing. When the Region has made a final decision, it
can proceed directly to publish the decision in the FR.
-------
»-- nThe four new rules are discussed in the following"""'""'.~*
paragraphs. Th^e discussion includes the promulgation date,
-^i^cief 3«uimaary-Of eacb;:i>uler>the application of the Moving
target'regulations to each'rule, and the application of HSWA
to each^rule. ;.. - ^
il' Technical Amendmentto"§265ri(ay and (b), 49 FR 46094.
Promulgation dates .November 21* 1984.
.» - - ... .-A-_-t
*--,* -r -'-... .. £--_'.*' . » .. .'#- t
Summary: This rule amends the definition of interim'status to
plarify that interim status continues until closure is certified
or until any applicable post-closure activities are finished.
Moving Targets The preamble states that the regulation was
changed only for clarification. Howevar, this interpretation
is store stringent than what may have existed! when States were
authorised. If the State A.G. concludes that a regulatory . *
anendaent is not needed* be only needs to certify that he inter-
prets and enforces the definition in the same manner as EPA.
If the State amends its rules, the State must submit the
amended regulations and an A.G.'s Statement certifying the
change, along with the statutory authority for the change.
No MOA or Program Description amendments are required. -
Official applications for final authorization submitted '
after November 21, 1985, must reflect this regulation.' . f
> i t
HSWA Applications This rule was not promulgated pursuant to
HSWA, therefore interim authorization is not available.
>, Satellite Accumulation, §262.34, 49 FR 49568.' * ''' "
Promulgation Dates December 20, 1984.
Summarys This rule allows generators to store up to 55 gallons
of hazardous waste and one quart of acute hazardous waste at
or near the point of generation subject to certain conditions.
After three days of storage the amount in excess of the threshold-
levels must be managed in- accordance with the requirements of
the less than 90-day storage rule.
»
Moving Targets States are not required to adopt this rule since
it is less stringent than the existing Federal program. However,
if a State wishes to adopt equivalent requirements, the State
must submit the amended regulations, an A.G.'s Statement certifying
the change with the statutory authority for the change, and must
amend its Program Description. The amended Program Description
must include a discussion of how the State will regulate satel-
lite accumulation areas. No MOA amendments are needed.
HSWA Application: This rule was not promulgated pursuant to
HSWA, therefore interim authorization is not available.
-------
--*- *
r3. Dio*in Listing, JS261, 2*4, 2<5, 270, and 775, SO Fit 1578. -
PKcauilgation Datst.-,<260, 261, 264, 265, and 266,
50 PR 614. . - ...
Promulgation Datei January 4, 1985.
Sumaryt This rule modifies the regulatory definition of solid
waste to clarify which secondary materials being recycled are
aolid and hazardous wastes under Subtitle C. In addition, it
establishes general and specific standards for various types of
hazardous waate recycling activitiea.
Moving Target* This rule redefines solid waste and establishes
regulations for controlling 'the various types of hazardous
waste, recycling activities. This new rule is based on a
different concept of defining which secondary materials (when
recycled) are solid and hazardous wastes under PCRA. The
concept is different because SPA has abandoned the 'sometimes
discarded" test for determining whether EPA has jurisdiction
under Subtitle C of RCRA over a material being recycled and
substituted a test based on two factors! (l)."what the material
is and (2) how it is being managed.
Under this concept, EPA regulates virtually all hazardous
wastes when they are recycled, instead of regulating only listed
wastes and sludges when they are recycled. Commercial chemical
products are also defined as wastes and regulated when they are
recycled in ways that differ fron-. their normal reanner of use,
namely, when they are used in a manner constituting disposal, when
they are burned for energy recovery, or used to produce a fuel.
Finally, although EPA usually does not regulate the actual
recycling process, we will regulate those recycling practices
-------
.that ..are analogous to land disposal ( 1 , a . , use constituting v - ~-
disposal) -er -inc inera tierr ^ e . q . ,-"tetirtt ing wa s te« or 'waste-derived"
fuel for energy). At the same time, materials that are used
or reiAed are no longer automatically considered solid waste.
.Tc:'-:"?.'* Ftate "«0st" either adopt ;'th is new concept :£n. Its «htiratv
or show through a revised A.G.'s statement that its current
regulations are equivalent to and no less stringent than EPA** -~
new regulations. .In either situation, the State Programs .- ' -:--:-
£ranch, along with the Characterization and Assessment Division,
will help the Regions in their analysis of these State regula-
k-« ..--.. * F-',.- - -- , ~ ---. . ,..--> * ..... - ..^^- - . .. -w*--r,. » . . . «».,<
tlen---- "-.'" -..'- - / --- -- '-'
->sT.;s*r.' If a State chooses the lirst approach, it «u»t subnit
anended regulations, an A.G.'s Statement certifying .the changes
with the statutory authority for the changes, and amendments ^v
to its Program Description describing how the State now defines-:
solid waste end how it will regulate hazardous waste recycling^
activities* The State does not have to adopt the loss stringent
provisions of these rules* For example, the provisions creating
variance procedures (ff 269.30-32) are less stringent than the .
previous regulations, which did. not have such provisions*.
A State has the option of being wore stringent than EPA by not
adopting these provisions. ~- '4 r^ 1 ^ "',< : f~ .''. '- V
'^., *-.-. -..i--^. --.--..--. ..- -'^r >-*.^r-y. \v-r- -v'^i; .r^-v^/^A'-, ~^'.'
f.^,~ 'i^~ . . '--*.' - ~ - ----- - .. - - - .-_ -i. -.--.--- - r..." -., --- l.-.f-T.- '. -J-.' I,--*
' - If a State believes its present regulations are equivalent
to and no less stringent than the new regulations, the, State ^V^
must subait a certification frow the A.G. explaining why that.' '
is so. MOA and Program Description amendments are not required,
\; .-;-.-. -;-." :. » - -- ,- '" -.-:'>. -v;;-.1^'^- . .".'. "*'.- *'
«r official applications for final authorization submitted » ",
after January 4, 1986, must reflect this regulation* '..
' - --. v t-f.-t -. .;*-- -:- ;~ . J*r . -.'.--. .-"- - -. . . ;+-<",- .->.. - --.-- -
V - r- .. .- % - - '
HSWA Applications This rule was not promulgated pursuant to
HSWA, therefore interia authorization is not available. it>ir
------- |