oEPA United States Environmental Protection Agency Office of Solid Waste and Emergency Response DIRECTIVE NUMBER: 9541.08-85 TITLE: Revisions to State ^Programs APPROVAL DATE: 08/16/85 EFFECTIVE DATE: 08/16/85 ORIGINATING OFFICE: 05U3 K FINAL D DRAFT STATUS: 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: 9541.08(85) Key Words: Authorized States, HSWA Regulations: 40 CFR 271.21(c), 271.23 Subject: Revisions to State Programs Hazardous Waste Management Division Directors, Regions I-X Bruce R. Weddle, Director, Permits and State Program Division #9541.08(85) 8-16-95 Addressee: Originator: Source Doc: Date: Summary: The memo describes procedures for States to follow to revise their programs in order to incorporate new Federal program requirements under HSWA. These requirements apply to States that have final authorization as well as those that are seeking final authorization. ------- 9541.08 (85) .. . SUBJECT t a*ri»iona to State Programs » ' • • , . '*'' Weddie . /< / 2 S /^/ ° ' Pwetoits and Statfe Programs Division (WH-563-B) » S rt> •• • ifl- hg TOt Hazardous Waste Managewcnt Division Director - • .•: Regiona I-X H- n • ' D > a M (0 H- ••-•-•- Ond«r our current regulations, changes to the Federal •• n- prograut can have a profound impact on Statea that either are M ^ applying for or have received final authorization: w ^ ' ;e> 2(5 States that currently have final authorization • -• S* revise their programs to pick up all of the recent \® Federal changes* ';-' — " -•-'. ' f-'.'''• - M tlwtt intend, to apply for finatl authorization in 8J 'near futtcire, will -need to demons1 trait* coverage .of ^ _v the new Federal requirements, depending on the " ^ the official application "Is. Th,« Regioxur need to make all' the States aware of the upcoming ^ revisions deadlines as discussed in this memorandum and my ® March 20, 1985 memorandum (attached) so that they can develop i schedules with the States for the execution and submission of jo. State program modifications. £ CHAHOIJKJ THB PROGRAM REVTSTON RULE ^ Th1* vCTurr^n-t^ draft of, the propoaed codification rule propoaes to change ^^thia'progr an revi»i«*t deadlines. The proposal would aospend ^intit 1992 -the d«adi4.me«, inr. ^271. 21(e) for State revisions for.B»eX ruie»v Tm« deadline in' §3006 (b) for review of official not b« affected by the suspension, nor would '' apply to th.e availability of information require- - ' " - . . • •' --»».*..".' .. •- -*.«-• ' •' ^ j! a i ^ j m ttie- concept of clustering . that program revisions will be '»'T«;ar-:,;fwr a- groap^. of requirements, instead of ------- separate one year deadline* applying to each individual requirement. The- first cluster would encompass the non-HSWA requirement* promulgated between July 1, 1984 and June 30, 1985 .(see the atftftcfeed table). That cluster would also contain the State-^VJniljlriKTity of: information requirements. State program modificatiid«»v>for this cluster would need to be complete by July 1, 198«V.-{br July 1, 1987, for those provisions in the cluster for which a State statutory change is needed). HSWA requirements (other than the State availability of informa- tion requirement) would be included in the annual clusters beginning July 1, 1990. A copy of the. draft proposed rule is Attached for your information. Although we believe our draft proposal is a reasonable way to implement the newly expanded RCRA-HSWA program, at this time we cannot be certain as to the ultimate outcome of the rulemaking. However, over the past few months we have indicated in meetings witJvyou as well as with ASTSWMO that we plan- to proprose the alaove changes to- the program revision requirements. As a result, few States have initiated the legislative and rulemaking actions to adopt the HSWA amendments as required by bur current regulations. We, therefore, face a dilemma: we could urge authorized States to adopt the appropriate HSWA amendments by November 8, even though we are attempting to change our regulations; or we could assume that our regulatory changes will be in effect by November 8. .1 recommend the "latter approach. While" I believe that we should urge the States to adopt the HSWA amendments as quickly as practicable, I believe that "forcing" them to adopt changes by November while we are actively proposing to change the regulations is not advisable. As part of the rulemaking,process we may decide to retain the existing program revision schedules. Should this occur we 'then, can negotiate.schedules vi^h the States that enable them .to adopt the necessary program changes before initiating the program withdrawal procedures under. $271.23. It should be noted that program withdrawal is descretionary and the procedures provide time for, the States, to remedy any program deficiencies. r; " ' * V OFFICIAL. APPLICATION APPROVAL PROCESS In: or$inr for a State to obtain final authorization, it must submit an official application to EPA for review. The State's appljjratfOff''•tts.t address all provisions of the Federal program that were prieralgated (for regulations) or effective (for self- implementing statutory provisions) more than one year prior to application submission. (See §271.21(e)(1>(i); note that the six month extension in §271.21(e)(1)(ii) was superseded by the HSWA change to §3O06(b) and removed from the regulation by the July 15, 1985 final codification rule.) Therefore, it is important for any State which is applying for final authorization ------- -3- to adopt any Federal program changes that occurred earlier than the date one year before its official application is submitted. Once the Stm-te's application has been submitted, the applica- tioztvdoes> nb&have. to be amended for subsequent changes in the Federal progxu. The application proceeds through the EPA approval procetfs specified in §270.20. The attached table identifies the deadlines for submission of an official applica- tion without addressing certain Federal program changes. As an example, the chlorinated aliphatic hydrocarbon listing was promulgated on February 10, 1984. Therefore any official final authorization application submitted on or after February 10, 1985 must address this listing (see attached table)^ An application received prior to that date does not have to include the waste listing, but the State will subsequently need to revise its program for the listing as disctiased below. PROGRAM REVISION PROCESS The revision process is separate from the initial final authorization approval process; it applies to States that have obtained or are in the process of obtaining final authorization. (See §271.21(e)(l)(iii), (e)(2), and (e}(3).) States must modify their programs to pick up Federal program changes by certain deadlines, currently one year after rule promulgation or after the effective date of self-implementing statutory provisions. An extension of an additional year is allowed if the State must make statutory changes. Once the State has modified its program, it must seek EPA approval of the change within 30 days (§271.21(e)(4)). As discussed earlier in this memorandum, EPA is about to propose changes to the revision deadlines. It is possible that a State can be involved in the authorization process and revision process simultaneously. This can happen when a change to the Federal program occurs during the period beginning one year prior to the State's submission and ending one year prior to the date that authorization is granted. In this case, the State's application does not have to address the Federal change* bat the State must modify its program by the date of authorization. For example, if an official application is submitted vprjtox- to February 10, 1985 but authorization is not granted by, -fcBajt,date, the State is obliged to modify its program to include-chlorinated aliphatic hydrocarbons by the date of final authorization. The RA may extend the February 10, 1985, deadline for the modification by up to six months (August 10, 1985) if the State made a good faith effort to meet the deadline.1 (See $271.21(e) (3); note that the deadline extension begins on February 10", 1985, not on the date of final authorization.) If the JRA grants such an extension, then the authorization may proceed without the modification. ------- - 4 - TJ&LE OF FEDERAL PROGRAM CHANGES I am attaching a table which identifies amendments to the Federal program since January 1, 1983 that States with final authorization are obliged to pick up. The table delineates which provision* are HSWA requirements and which are non-HSWA requirements. It also specifies the deadlines for submission of official final authorization applications. State program modification deadlines are presented for those rules unaffected by the proposed codification rule (i.e., changes promulgated prior to July 1, 1984). As can be seen from this table, we are now past the deadline for four State program modifications: * immediate response to spills and discharges * biennial report. * uniform national manifest • chlorinated aliphatic hydrocarbon listing All States with final authorization should have completed their program modifications for these rules and submitted documentation to EPA for approval. Recently authorized States may already have received approval for some or all of these provisions as part of their final authorization decisions.? in such cases the State- only has to revise its program for the remaining rules listed above* We are developing a computerized tracking system that will allow the Agency to monitor each State's program in receiving approval for its program revisions. You will be receiving information on this system very scon. In addition, the attached table will be updated as additional requirements are promulgated. The updated tables will be issued by the State Programs Branch, and all Regional Hazardous Waste Branch Chiefs will receive copies. '.."•' / 1 Attachments, ccs Hazardous Wajate Branch Chiefs, Regions I-X v~. RCHA OftC Braacfe Chiefs , .Regions I-X Jotanr ffl&nper »• OS5T Branch Sue Mos-Lfcad, ASTSWMO ------- |