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):
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              B- Pending AA-OSWER approval
              C- For review &/or comment
              D- In development or circulating

                        headquarters
  OSWER      OSWER      OSWER
VE   DIRECTIVE   DIRECTIVE   Dl

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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.

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                                                               9541.08 (85)
.. .
SUBJECT t  a*ri»iona to State Programs                                 »
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                '*'' Weddie . /< /                                        2 S
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           Pwetoits and Statfe Programs  Division (WH-563-B)              » S
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 TOt        Hazardous Waste Managewcnt  Division Director                - •
  .•:        Regiona I-X                                                  H- n
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  ••-•-•-  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

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 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

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                               -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.

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                                 - 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

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