United States Solid Waste and EPA/530-R-97-004L
Environmental Protection Emergency Response December 1996
Agency (OS-343)
RCRA Permit Policy
Compendium
Volume 12
9530.1980-9551.1991
Air Emissions Standards
State Authorization (Part 271)
Land Disposal Restrictions (Part 268)
ATK1/3590/16cj
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Air Emission Standards For Owners
And Operators Of Hazardous Waste
TSDFs
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9531.1993(01)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
FEB 23 - 1993 SOLID WASTE AND EWEBGE\C-
Mr. Gary S. King, P.E.
Environmental Audit Manager
Safety-Kleen
. 777 Big Timber Road
Elgin, Illinois 60123
Dear Mr. King:
This is in response to your letter of January 5, 1993 'in
which you requested an interpretation of whether several
particular connections would be considered flanges and thus
subject t3 reporting and recordkeeping requirements of the
Subpart. ;^ regulations at 40 CFR 264/265.
"Connector" is defined at 40 CFR 264.1031 as "flanged,
screwed, welded, or other joined fittings used to connect two
pipelines or a pipeline and a piece of equipment." For the
purposes of reporting and recordkeeping, "connector" is furtr.c:
defined as "flanged fittings that are not covered by insulatic-
or other materials, that prevent location of the fittings." £1 ;
interprets these regulations to r.ean that although the aener.i .
definition of "connector" includes flanged fittings as a -subs- •
for reporting and recordkeeping purposes the definition of
"connector" includes only flanged fittings (e.g., those sere---
welded, or otherwise joined are not flanges) . The following
items are those you identified and requested an interpretatic-
to whether they are "flanges:"
1. Screwed unions
2. Quick disconnect hose fittings
3. Quick disconnect hose fittings at the end of a pipo
preceded by a closed valve, that has been plugged
capped (i.e., to meet the requirements of 265.1056
4. Strainer housing that has a flange-type top
While all of the above listed items meet the general
definition of "connector," EPA does not believe they meet the
more specific definition of "flanged fittings" for reporting
recordkeeping purposes under Subpart BB of 40 CFR 264.1064 a.- :
.1065 and 265.1064. Please be advised, however, that these
Pnr
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"other-than-flange type connectors" remain subject to the Subpart
BB requirements for inspection and leak monitoring and repair.
If you have any further questions concerning these matters,
you may contact Jim Michael, Acting Chief, Assistance Branch, at
703-308-8610.
Sincerely,
Sylvia'K. Lowrance, Director
Office of Solid Waste
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9534.1991(01)
DEC 3 1991
MEMORANDUM
SUBJECT: RCRA Regulations Applicable to Control Devices Required
by the Organic Air Emission Standards (40 CFR Parts 264
and 265 Subparts AA and BB)
FROM: James Michael, Acting Chief
Assistance Branch (OS-343)
Office of Solid Waste
TO: Catherine Massimino
Senior RCRA/Superfund
Technical Specialist
Region 10
In your memorandum of June 19, 1991, you ask for clarification
as to the standards that apply to control devices required by the
Organic Air Emission Standards for Process Vents and Equipment
Leaks, promulgated pursuant to RCRA Section 3004(n) on June 21,
1990 (55 FB 25454). This rule is codified at 40 CFR Parts 264 and
265 Subparts AA and BB. You identify potential ambiguity as to
what standards are applicable when the control device meets the
definition of a regulated unit under another portion of the
regulations. You provide the example of a control device at a
permitted facility that fits the definition of an incinerator and
ask what standards apply — the requirements of the organic air
emission rule (e.g., to reduce total organic air emissions from all
affected process vents at a facility by 95 percent weight or
greater), or the Part 264 Subpart 0 incinerator requirements (e.g.,
the requirement to achieve a destruction or removal efficiency
(ORE) of at least 99.99%). My office, in conjunction with the
Office of General Counsel, has concluded that, as a general master,
the Subpart AA and BB standards govern such control devices.
Of course, the air emission rule does not limit EPA's
"omnibus" authority under RCRA Section 3005(c), 40 CFR Section
270.32(b), to impose, on a case-by-case basis, any permit
conditions regarding air emissions that are determined to be
necessary to protect human health and the environment. In
addition, the Subpart AA and BB standards address only the
performance that must be achieved by a control device with respect
to organic air emissions from process vents and equipment leaks
covered by the air emission rule. If the device is a separate unit
that, is also treating separate hazardous wastestreams, the unit
must- nf c^nm-ae comnlv withc»K8liucn»CPopriate Part 264 or 265 unit
se comply with1
c its' tcejrtmerit
standards. ,f or itd tcejrtmerit of tho^e wastestjreams.
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The June 21, 1990 organic air emission rule required the use
of control devices to reduce emissions from certain types of
process vents and equipment leaks and required that the devices
meet standards specified in the rule, such as the requirement in 40
CFR Section 264.1033(c) that enclosed combustion devices reduce the
organic emissions vented to them by 95 percent or greater by
weight. EPA recognized in promulgating the rule that incinerators
might be among the devices that would be used to achieve the
standards imposed, see, e.g., 55 FR 25455. Nonetheless, the
discussion and analyses accompanying the rule — including, for
example, the health impact and cost impact analyses — are based on
the premise that the devices installed pursuant to the rule will
achieve the standards established by the rule, not the general Part
264 and 265 standards. See 55 FR 25486-25489, 25462, and 25477
(June 21, 1990).
The conclusion that the organic air emission rule standards
govern the performance of the required control devices is
consistent with the purpose and context of the rule. A facility
that, pursuant to the organic air emission rule, installs a control
device that appears to fit the definition of an incinerator is not
getting a "break" by being subject to the air emission rule
standards rather than the Subpart 0 standards. On the contrary,
the air emission rule for the first time requires the reduction of
gaseous emissions from certain equipment leaks and process vents
that were previously unregulated (except to the extent they were
regulated on a case-by-case basis pursuant to the omnibus
authority). The standards imposed by the organic air emission rule
are those which EPA determined to be protective. See 55 FR 25486-
25488 (June 21, 1990).
There is one caveat to this conclusion. You had expressed
concern that there may be instances in which a facility attempts to
use the organic air emission rule as a means of subjecting itself
to less stringent standards than it would otherwise be subject to -
- where, for example, a facility constructs a treatment train in
which an incinerator is preceded by a unit with regulated process
vents or equipment leaks in an attempt to characterize the
incinerator as a Subpart AA or BB control device. In such
circumstances, permit writers may conclude that the device is not
a bona fide Subpart AA or BB control device and impose the general
incinerator standards. These decisions will have to be made on a
case-by-case basis. Headquarters will assist permit writers in
these decisions upon request.
If you have any questions or concerns, please call me at FTS
260-1206, or Brian Grant of OGC at FTS 260-6512.
cc: Permit Section Chiefs, Regions I-X
Frank McAlister, PB, PSPD, OSW
Brian Grant, OGC
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State Authorization (Part 271)
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9541 - FINAL
AUTHORIZATION
Part 271 Subpart A
ATKl/l 104/62 kp
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OSWE3 DIRECTIVE *954L.OO-6
9541.00-6
UNiTEO STATES ENVIRONMENTAL PROTECTION AGl
WASHINGTON, O.C. 20460
N ^*-
MEMORANDUM
SOL.O
3 0 1987
SUBJECT: State Program Advisory #2 -
RCRA Authorization to Regulate Mixed Wastes
****
FROM: Bruce Weddle, D
Permits and State Programs Division
Office of Solid Waste
TO: RCRA Branch Chiefs
Regions I - X
The purpose of State Program Advisory (SPA)' »2 is fourfold.
One, it delineates time frames by which States must obtain mixed
waste authorization. Two, it provides a synopsis of the informa-
tion needed to demonstrate equivalence with tn-a Federal program
in order to obtain mixed waste authorization. Three, it presents
information about the availability of interim status for handlers
of mixed waste. And four/ the SPA presents the Agency's position
on inconsistencies as defined by Section 1006 of RCRA.
BACKGROUND
On July 3, 1986, EPA published a notice in the Federal
Register (see Attachment 1) announcing that in order to obtain'
and maintain authorization to administer and enforce a RCRA
Subtitle C hazardous waste program, States must apply for
authorization to regulate the hazardous components of mixed
waste as hazardous waste. Mixed waste is defined as waste that
satisfies th« definition of radioactive waste subject to the
Atomic Energy Act (AEA) and contains hazardous waste that
either (1) is listed as a hazardous waste in Subpart D of
40 CFR Part 261 or ( 2 ) causes the waste to exhibit any of the
hazardous waste characteristics identified in Subpart C of 40
CFR Part 261. The hazardous component of mixed waste is
regulated by RCRA. Conversely, the radioactive component of
mixed waste is regulated by either the Nuclear Regulatory
Commission (NRC) or the Department of Energy (DOE).
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OS A £r< J I K t C T i. v s.
In addition, DOE issued an interpretative rule on May i, 1937
to clarify the definition of "byproduct material" as it apc"l ;e-z'to
DOS-owned wastes. The final notice stipulated "that only" the"
actual radionuclides in DOE waste streams will be considered
byproduct material." Thus, a hazardous waste will always be
subject to RCRA regulation even if it is contained in a .-nixt-re
that includes radionuclides subject to the AEA. Clarification"
of the implications of the byproduct rule was previously transmit-
ted to the Regions (see Attachment 2).
MIXED WASTE AUTHORIZATION DEADLINES
States which received final authorizati9n prior to publi-
cation of the July 3, 1986 FR notice must revise tneir programs
by July 1, 1988 (or July 1, 1989 if a State statutory amendment
is required) to regulate the hazardous components of mixed waste.
This schedule is established in the "Cluster Rule" (51 FR 33712).
Extensions to these dates nay be approved by the Regional
Administrator (see 40 CFR 271.21(e)(3)).
States initially applying for final authorization after
July 3, 1987 must include mixed waste authority in their applica-
tion for final authorization (see 40 CFR 271.3(f)). In addition,
no State can receive HSWA authorization for corrective action
(§3004(u)) unless the State can demonstrate that its definition
of solid waste does not exclude the hazardous components of
mixed waste. This is because the State must be able to apply
its corrective action authorities at mixed «aste units.
PROGRA.-1 REVISION' REQUIREMENTS
Applying for mixed waste authorization is a simple, straight-
forward process. The application package should include an
Attorney General's Statement, .the applicable statutes and rules,
and a Program Description.
1. Attorney General's Statement
The Attorney General will need to certify in the state-
ment that the State has the necessary authority to
regulate the hazardous components of mixed waste as
hazardous waste. Copies of the cited statute(s) and
rules should be included in the State's application.
See Item I.G., "Identification and Listing" in the
Model AG Statement in Chapter 3.3 of the State
Consolidated RCRA Authorization Manual (SCRAM) for
additional guidance.
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OSWER
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DIRECTIVE «9541 00-5
Program Description
The Program Description should address n.~w :--e PCS A
portion of the -r.ixed waste program will oe i.-.ple-e-£ = -:
and enforced/ and describe avaiiaole resources and
costs (see 40 CrR §271.6). The State '.use also demon-
strate that start has necessary health physics and
other radiological training and has appropriate security
clearances, if needed, or that the State agency has
access to such people.
If an agency other than the authorized State agency is
implementing the RCRA portion of the .nixed waste program,
then the application should include a, Memorandum of
Understanding (MOU) between that agency and the autho-
rized hazardous waste agency describing the roles and
responsibilities of each (see 40 Ct'R §271.6(b)).
Lastly, the Program Description should include a brief
descriotion of the types and an estimate of the number
of Tixed waste activities to be regulated by the State
(see 40 CFR 5271.6(g) and (n)). Chapter 3.2, Program
Description, in the SCRAM orovides additional guidance.
INTERIM STATUS
In authorized States, mix-d waste handlers are not subject
to RCRA regulation until the State's program is revised and
approved by EPA to include this authority. I" the interim,
however, any applicable State law applies. T-^atment, storage
and disposal facilities "in existence" on the date of the State's
authorization to regulate mixed waste may qualify for interim
status under Section 3005(e)(1)(A)(ii ) (providing interim status
for newly regulated facilities), if they submit a Part A permit
application within 6 months of that date. In addition, any
such facilities which are land disposal facilities will be
subject to loss of interim status, under Section 3005(e)(3),
unless these facilities submit their Part B permit application
and two required certifications (i.e. groundwater monitoring
and financial assurance) within twelve months of the effective
date of the State's authorization (i.e., within twelve months
of the date facilities are first subject to regulation under
RCRA). Note: Federal facilities that handle mixed waste are
not required to demonstrate financial assurance.
With respect to facilities treating, storing or disposing
of mixed waste in unauthorized States, Headquarters is currently
developing a Federal Register notice that will clarify interim
status qualification requirements under Section 3005(e) as they
apply to affected facilities that have not notified in accordance
with Section 3010{a) or submitted Part A and/or B permit applic-
ations. We anticipate issuing the FR notice early this Fall.
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INCONSISTENCIES
Section 1006 of RCRA precludes any solid or hazardous waste
regulation by EPA or a State that is "inconsistent" with the
requirements of the AEA. if an inconsistency is identified, the
inconsistent RCRA requirement would be i napplicao le. For exarr.ple,
an inconsistency .-night occur where compliance with a specific RCRA
requirement would violate national security interests. In such
ins'tances, the AEA would take precedence and the RCRA requirement
would be waived.
The EPA and the Nuclear Regulatory Commission conducted a
comparison of existing regulations for hazardous waste management
and low-level radioactive waste management under 40 CFR Parts
260-266, 268 and 270 and 10 CFR Part 61, respectively, to ascertain
the extent of potential inconsistencies. None were identified as a
result of that effort. The comparison did indicate that there were
differences in regulatory stringency, however. Thus, in issuing
permits or otherwise implementing its mixed waste program, States
must make every effort to avoid inconsistencies.
If you have any questions please contact Jim Michael, Chief,
Implementation Section, State Programs Branch (WH-563B) at FTS/(202)
382-2231 or Betty Shackleford, Mixed Waste Project Manager, State
Programs Branch at FTS/(202) 475-9656.
Attachments
cc: Elaine Stanley, OWPE
Federal Facility Coordinators
Regions I - X
Chris Grundler, Federal Facilities Task Force
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1
* MRECTIVE #9541.00-6
* • UNITED STA'ES ENVIRONMENTAL 3ROTECTION AGENCY
J WASHINGTON 3 C
JUN 29 '99"
v* :s
MEMORANDUM
SCBJECT:M Department of" Energy's (DOE) Final Byproduct Rule
pn Mixe^/Wagte Regulation at DOE Facilities
FROM
rter
Assistant nfami r.istratc r
TO: wast* Mar.a^e-.ent division Directors
Regions I - X
This memorandum is intended to abate any uncertainty
surrounding the implications of the Depart?.* nt of Energy's
(DOE) final byproduct rule on mixed waste r^-rulation at DOE
facilities.
On May 1, 1937 DOE published its final Byproduct rule
(51 FJ* 15937, copy attached). In that rule DOE stipulates
"that only the actual radionucli-les in 20E waste streams will
be considered byproduct material." The effect of this inter-
pretative rulemakirvg is that all SCE vasts streams whicn either.
contain a listed waste or exhibit a hazardous characteristic
will be subject to RCRA regulation. You shoulj note that this
interpretation is consistent with the TP^/NucUar Regulatory
Commission (SRC) joint definition of c-;i-ercial low-Leval -^ixed
waste issu^'i earlier this year. See 03;v£R Directive 9432.30-2.
In addition* I would like to update you on -.he findir.;s and
status of th* Mixed Er.eray waste Study (MEW5) in view of the final
byproduct rule. As you know, DOE presented a proposal co 2?A for
excluding high-level and transuranic mixed wastes from RCRA juris-
diction. The- proposed exclusion was predicate-1 on D0£'s contention
that t.-.eir waste .nana^e:nent p-acr :es were equivalent or suoerior
to those -nandateJ ^y RCRA and re-^.:red a le-jal .^eter.nir.ation that
regulatory duplication was inconsistent. Accordingly, the ME*»3
task force was com,miss toned in November, 1936 to gather technical
information on the merits of DOE '3 assertion. You should note,
however, that past practices were not included in the DOE proposal
nor were they reviewed by the task force luring subsequent site
visits to select DOE facilities.
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OSWER DIRECTIVE 19541.00-6
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In March of this year, the MEWS task force issue--! 1-3 f-.-^i
rpoort which indicated t.K.at to a large extent, 20E r.anflce.rer.c ?:'
hich-level and transura.?ic mixed wastes were equivalent ?r sucer:;r
to RC:«A requirements. Certain areas of tneir waste nanage^snt
operations/ however, such as ground-water monitoring ar.d cnemicai
analysis 2f -wastes were clearly deficient. To date, no category
of DOE mixed waste has oeen exempted from RCRA regulation as a
result of the findings of the MEWS task force.
Thus, all DOE mixed* wastes are subject to RCRA regulations
independent of the nature of the radioactive component. Therefore,
Regions which are administering RCRA program* irt unauthorized
States should, in accordance with priorities established in the
RCRA Implementation Plan, be implementing the program at DOE
facilities. Secondly, those Regions where States have been
delegated mixed waste authority should make it clear that their
authorization includes all DOE mixed wastes. These mixed wastes
may contain high-level, low-level/ or transuranic radioactive
constituents. Thir'J, you should continue to encourage States to
apoly for mixed waste authorization especially in those States
with major DOE facilities.
Headcuarters is committed to providing technical', legal and
po.licy assistance to the States and Reaions in support of efforts
to effect mixed waste regulation at DOE facilities. Accordingly,
I will keep you apprised of any initiatives taken by either DOE
and/or EPA Headquarters affecting mixed waste regulation as soon
as they develop. Specific questions concerning mixed wastes
should be directed to 3et;y Shackleford, OSW on (FTS) 475-9656.
Attachment
cc: Ken Shuster, OSW
Chris Grundler. 03WE*
Ray Be rube, DOE
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9541.1982(01)
\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
« WASHINGTON. D.C. 20460
PIG-82-.3
MAY I 7 882 OF..CEOF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Assignment of a Memorandum to the Program
Implementation Guidance System
FROM: John Skinner, Director
State Programs and Resource Recovery Division (WH-563)
TO: Program Implementation Guidance System Addressees
>
On March 15, 1982, Enforcement Counsel issued, the attached v
memorandum to Regional Administrators and Regional Counsels. The
Memorandum provided valuable information, guidance, etc. on EPA
enforcement of RCRA-authori zed State hazardous waste laws and
regulations. I think that the guidance contained in this memo-
randum is of such value as to warrant wider distribution and incor-
poration into our system of Program-Implementation Guidance. For
future 'reference and ease in filing, I have designated this memo-
randum as Program Implementation Guidance number 82-3 •
Attachment
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WASHINGTON. C.Z. HOiSC
MAR 15 S3S2-
MEMORANDUM
SUBJECT: EPA Enforcement of RC21A -Authorized State Hazardous waste
Laws and Regulations
FROM: William A. Sullivan, Jr.
Enforcement Counsel (SN-329) \J' '
TO: Regional Administrators, Regions 1 £ *
Regional Counsels, Regions I - X
In the administration of the hazardous waste program, a st^ce
with an. authorized RCRA program may, for various reasons, be unable
or unwilling to take enforcement action that EPA may deem critical.
Several legal and administrative questions which may be prsser.-ed
in such cases include the following: *
1. Can EPA taJce enforcement, action in states whirr, have
sesn granted authorization to administer and enforce the P.C2A pro-
-an? What about states with' which EPA has Cooperative Arrance-
.TtS? •'
2. Assuninq SPA can take enforcement action, does L-
enfcrce the state laws and regulations, or the Federal RCRA law zr.z
regulations?
3. If an enforcement action is necessary, in what court
should EPA file the action?
4. If the enforcement action involves administrative
proceedings, does EPA follow federal or state procedures?
5. Since the taking of an enforcement action by EPA
in an authorized state might, in some cases, endanger or irritate
federal-state relationships, what procedures should be developed
to insure, to the greatest possible extent, that any federal
enforcement actions taJcen in a RCRA-authorized state are done at
such times and in such a manner as to eliminate or minimize
any possible impact upon that federal-state relationship?
•
•
6. What is the effect, if any, of state authorization
unon EPA's abilitv to take action ar.cer Sections 7003 and/cr 2613
c~ 3C2A?
This memorandum will attempt to suggest some answers to
these questions and procedures which might be employed co avoid
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i«iiii--.sn secween £.?A and the stare agency or agencies should it
becone r.ecessary for EPA to take enforcement action. The questions
will be addressed in the order set forth above. The Office" of •
Enforcement "Counsel has consulted with the Office of General Counsel
in the preparation of this memorandum.
CAN SPA TAXE ENFORCEMENT ACTION IN A RCRA-ALTSO RISES STATE?
WEAT A30CT STATES WITH WHICH EPA SAS COOPERATIVE A351ANGE.MENTS ?
A. Authorized states;
When a state is authorized to administer -the RCRA program in
lieu of EPA, EPA has made a determination that the state's program
is equivalent (in the case of final authorization)/ or substantially
equivalent (in the case of interim authorization)/ to the federal
program/ and that the state hazardous waste program can thereafter
be administered by the state under state law/ in lieu of the Federal
program. (See HCP.A/ Section 300d(b) and (c)). After authorization,
can EPA take enforcement action in such a state, and if so, would
it enforce state or federal law and regulations?
The provisions of RCRA Section 2008(a)(l) and (2; are most*
helpful in answering these questions. These provisions state:
"Section 3008 (a) Compliance Crcers.- (1) Except
as provided in paragraph (2)/ whenever on the'
basis of any information the Administrator
determines that any perscr._ is in violation of
any requirement of this subtitle, the
Administrator cay issue an order requiring
compliance immediately or within a specified
time period or the Administrator may commence
a civil action in the United States district
court in the district in which the violation
occurred for appropriate relief/ including a
temporary or permanent injunction."
"(2) In the case of the violation of any
requirement of this subtitle where such violation.
occurs in a State which is authorized to carry out
a hazardous waste program under Section 3006 /the
Administrator shal give notice to the State in
which such violation has occurred prior to issuing
an order or commencing a civil action under this
section." (emphasis supplied)
Subsection (2) clearly indicates that even though' a state
has an authorized hazardous waste program, EPA retains the right
of federal enforcement, subject to the giving of notice to the
' te in which the violation occurred prior to taking enforcement
-ion.
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"This legislation permits the states to take
the lead in the enforcement of the hazardous
waste laws. However, there is enough flexi-
bility in the act to permit the Administrator,
in situations where a state is not implementing
a hazardous waste program, to actually implement
and enforce the hazardous waste program
against violators in a state that does not
meet the federal minimum requirements. Although
the Administrator is required to give notice
of violations of this title to the states
with authorized hazardous waste programs, the
Administrator is not prohibited from acting
in those cases where the states fail to act,
or from withdrawing approval of the state
hazardous waste plan and implementing the
federal hazardous waste trogram pursuant
to Tizle III!/ cf this act.; •
The preamble to 40 C?3 Sl23.12S(f) and (g) at 43 Fed. 3eg. 33394
(May 19, 1980), also briefly sets forth this position regarding
rPA's enforcement of hazardous waste laws and regulations in an
thorized state.
We can also 'look to the Clean Water Act (CWA), which is highly
analocous to 2C3A in this regard, and from which Section 3003 was
drawnc/. Cases involving similar provisions of the CVA (e.g.,
Sections 309 and 402) support the proposition that while Congress
intended that the states have primary authority to administer the
the program subject to national guidelines provided by the Act
and by the EPA regulations, EPA retained the authority to achieve
the purposes and goals of the Act, including the right to take
.i/The House Bill (H.R. 14496) was amended subsequent to the
submission cf this report, which chanced the references of Title
III to Subtitle C of the final Act.
2/See Heport of Senate Committee on Public Works, Mo. 94-988,
?. 17, dated June 25, 1976; which states with reference to what is
now Section 3008:
•
"In any regulatory program involving federal
and State participation, the allocation or
division of enforcement responsibilities is
difficult. The Committee drew on the similar
provisions of the Clean Air Act of 1970 and the
Federal Water 'Pollution Control Act of 1972."
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enforcement action in appropriate cases, even after a state procrarr.
has been approved. See Cleveland Electric Illuminating Co. v. ;?.-.,
503 F. 2d 1 .(5th Cir., 19 "9)'; U.S. v. City of Colorado Sprincs,
453 T. Supp. 1354, (D.C., Colo~1975); Chesapeake 3ay foundation,
Inc. v. Vircir.ia State Water Control Board,453 F.Supp.122(D.C.
a., 1978); CJ.S. v. Camli, Inc., Civ. Dochet 480-135", (D.C. Del.
Feb. 12, 1981); and Shell Oil v. Train, 415 F. Supp. 70, (D.C. Cal.
1975), where the Court, arter quoting from legislative history
of the Of A, stated:
"The language suggests that Congress did not
intend the environmental effort to be subject
to a massive federal bureaucracy; rather, the
states were vested with primary responsibility
for water quality, triggering the federal
enforcement mechanism only where the state
defaulted.... The overall structure is designed
to give the states the first opportunity to
insure its proper implementation. In the
event that a state fails to act, federal
intervention is a certainty".
3. States With which T?A Has Cooperative Arrangements: ,
Regarding states which have entered into Cooperative
Arrangements, the .federal-state relationship is different from
that of interim or final authorization. A Cooperative Arrangement
•'- a device to assist states whose hazardous waste programs are
c yet sufficiently developed to qualify for authorization, and
j provide financial assistance to tirose states. (See guidance
memorandum on Cooperative Arrangements dated August 5, 1980).
There is no authorization by E?A of the state to administer the
hazardous waste program in lieu of the federal program. In fact,
the model Cooperative Arrangement specifically provides that:
"i?A retains full and.ultimate responsibility
for the administration and enforcement of the
Federal hazardous waste management program in
the state."
The right and obligation of EPA to taka enforcement action
in a state with which the Agency has a Cooperative Arrangement is,
therefore, the same as in a state which has neither interim or
final authorization.
Although notice to such states of impending enforcement
action is not required by RCRA, for purposes of maintaining harmo-
nious EPA-state relationships, appropriate consultations should
precede EPA action, and written, notice should be given by EPA to
the appropriate agency and the governor of the affected state. •
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2.
DOES EPA E::?ORCE STATE LAW AI;D REGULATIONS OR
FEDERAL LAW A^TD REGULATIONS IN AN AUTHORIZED STATE?
Having concluded that EPA can enforce hazardous waste 'laws
r.d regulations in a state with an EPA-approved program, the ques-
tion then becomes: does EPA enforce RC2A and federal regulations,
or the state's statute and regulations? If the latter, can EPA
enforce a portion of the state program that goes beyond the scope
of coverage of the basic federal program/ or state laws and regula-
tions which were adopted after EPA approval of the state program?
On the other hand/ may EPA enforce a portion of the federal pro-
gram that is not included in the stats program?
These issues may initially se«m arore academic than real since,
in order to gain interim authorization to administer the RCP.A
program, a state must have a program which is "substantially
equivalent" to the Federal program (see RCRA, Section 3006(cM,
and a program which is "equivalent" to the federal program in
-order to gain final authorization (Section 3006(b)). As a result,
sany authorized states will have provisions which are similar, if
not identical/ to the federal regulations. However, there will
undoubtedly be differences in the federal and state laws and
regulations, particularly during interim authorization/ ar.d many*
states will have programs which are, in part, more stringent cr
broader in scope of coverage than the federal program. Therefore,
it is very likely that these issues will be encountered frequently.
As discussed in Part 1 of this memorandum, Section 300S (a.} (2}
. RCP.A authorizes EPA to take enforcement action in an authorized
state, after notice to the state, in the case of "a violation
of any requirement of this subtitle." When EPA authorizes a
hazardous waste management program under Section 3006, the state
program becomes the RC3-A program in that state, and is a part
of the requirements of Subtitle C referred to in Section
300S(a)(2), which EPA is mandated to enforce. Upon development
of the state's program and acceptance of that program by EPA,
"such state is authorized to carry out such program in_ lieu cf_
the federal program under this subtitle in such state...." (RCRA
Section 3005(b) and (c)). In other words, the only hazardous
waste program in effect in that state is the state program, ar.d
the state laws and regulations are those which must be enforced
by EPA should federal enforcement action be necessary. This, of
course, does not limit EPA's right to take action under Sections
7003 cr 3013 of RCRA (see Section 6 of this memorandum).
This result is undoubtedly in keeping with the indent of
Congress. If the federal hazardous waste regulations were to
apply to handlers of hazardous waste in authorized states, those
persons wculd be continously subjected to a dual set of laws and
regulations, a situation which presently exists in those states
w : have not yet received interim authorization. Such dual
r>. -lation is presumably what Congress intended to phase out in
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an.orceriy manner when it adopted the provisions of Section 2CCc
{b) and (c) .
Again, an analogy can be drawn to the provisions of the
Clean *ater Act and the cases decided under it to reinforce this
opinion. See United States v. Cargill, Inc., (D.C., Dei.) Civil
So. 80-135, Slip Op. Feoruary 12, i~81; Shell Oil v. Train,
supra; united States v. I.T.T. Raycnier, Inc., 627 F. 2c 99c (9th
Cir. , 1930). The prociem becomes"more complex, however, when
the following questions are considered:
(A) If an authorized state program includes regulations
or statutory previsions which are greater in scope of coverage
than the federal program, can EPA also enforce those additional
state requirements?
(3) If the federal regulations contain provisions which
are net included in the state program (e.g., by reason of promul-
gation by EPA subsequent to authorization of the state program by
EPA), can EPA enforce the federal regulations which are net a
_part of the state program? and,
(C) If the state makes modifications in its program
after authorization, does EPA enforce the stats program as originally
approved, or the state program as modified after approval by EPA?
These questions will be of particular significance during
••'hterim authorization, when the states are required only to have
rograms which are "substantially equivalent" to the federal program,
znc while EPA and the states continue to "fine-tune" their programs.
A. If an authorized state program includes regulations
or statutory provisions which are greater in scope of
coverage cr mere stringent than the federal program,
can EPA also enforce these additional state requirements?
Individual states will, in addressing industrial, agricultural,
geographic/ hydrolcgical and other factors which exist within their
"borders, undoubtedly develop portions cf their hazardous waste
programs which are greater in scope of coverage than the federal
program. Examples of such additional coverage could include the
listing of wastes which are not included in the federal universe
of hazardous waste; the permitting of generators or transporters;
recordkeeping or reporting requirements not included in the federal
regulations; and requirements for physical examination of employees
and their families. State requirements which are greater in scope
of coverage than the federal regulations are generally those for
which no counterpart can be found in the federal requirements.
State program requirements that are greater in scope of .
-—verage than the federal program are not a part of the federally-
roved program (40 CFR §§123.i(k) and 123.121(cj). Since that
-•tion of the state program does not have a_counterpart in the
federal program, it does not become a requirement of Subtitle C,
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tne vic-.-itior. of which EPA is entitled to enforce pursuant to
Section 30CS(a)(l) and (2). Therefore, SPA .-nay ncc enforce that
portion of a state program which is broader in scope of coverage
than the federal program.
It should be made clear, however, that there is a distinction
between portions of a state program which are broader in scope of
coverage, and those which are "more stringent" than the federal
program. Section 3009 of 3C3A and 40 CFR 55123. i(k) and 123.121(g)
provide that nothing shall prohibit a state from imposing any
requirements which are more stringent than those imposed by the
fed'eral regulations.
while state provisions which are broader in scope of coverage
generally do not have a counterpart in the federal program, the
subject matter of the more stringent state provisions is usually
covered in similar provisions of the federal program.. Examples of
more stringent state provisions would include: a requirement that
not only a fence be erected and maintained around a facility, but
that it be a fence of specific height and of specific material
(e.g., a ten-foot, chain-link fence); a requirement that containers
"for storage of waste be of a specific material and/or color-coded;
a lesser amount of waste exempted from regulation under the small
quantity generator exemption (40 CF?» §251.5); and a requirement'
that final cover of a land disposal facility be of a particular
material or thicJcness.
Provisions in state programs which are more stringent than
leir federal counterparts are, nevertheless, a part of the approve:
jate program, and are enforceable bit EPA. Congress apparently
.ntended that result when, in Section 3009, it authorized states to
develop more stringent programs, and, at the same time, authorized
EPA to enforce those programs under Section 3008(a)(2). In additio:
more stringent state provisions in an approved program are, unlike
those which have no counterpart in the federal program, a part cf
the requirements of Subtitle C, which EPA is required to enforce.
- 3. If. the. state modifies its program after authorisation,
can EPA enforce the state program as modified, or the
state program as approved before the modification?
This issue assumes that, after either interim
authorisation of a state program, the state makes modifications
in that program. Such .modifications could make the program
mere stringent/ less stringent or enlarge or restrict the scope
of the program. In such event, must EPA enforce the program as
modified, or the program in. existence at the time of authorization?
With regard to modifications made by the states in their program.'
after final authorization, 40 CFR 5123.13 sets forth specific pro-
cedures •for such revisions by the states and approval thereof by EPA.
•.ate program revision after final authorization must be submitted
.PA for approval, public notice given, and a public hearing held
i_ there is sufficient public interest. The revision to the state
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_ .. i .= ;_.jo;: doprova- s'/.tne Admin is ir.i ~.or
{40"cf?. 5123.13(b) ( 4} ). It is* therefore", ciear tr.at ur.cer
rresent EPA
mccifications made to a state procram
However, the federal regulations relating co Phase I authori-
zation contained in 40 CFP. 5123.121 through 123.137 do not contai:
specific provisions comparable to 5123.13 with respect to how mod:
ficaticr.s may be made by a state in its program after interim
authorisation, or how approval of any such modifications could be
mace by EPA, short of Phase II or final authorization. This is a
significant omission, since it is apparent that many, if not all,
states will be making modifications in their programs between the
approval fcr interim authorization and the filing of their Appli-
cations far-final authorization.4/-''
In the absence of requirements in RC?-\ or EPA's regulations
for submission of program modifications by a state with interim
authorization to I?A for approval/, it is presently our opinion
,that EPA may enforce such modifications made by a stats with
interim authorization, notwithstanding that EPA may not have
aoorcved chose modifications.5/
^/Discussions with representatives of the Office of General
Counsel and the Office of Solid Waste indicate that 40. CTR 5123-13
> under review, and may.be amended to eliminate the requirement
-iat EPA approve • modifications mace "after final authorization of
state programs before the modifications may be effective. The
consequences on enforcement of such an amendment to §123.13 are
addressed in the following discussion.
4/There are, however, stages during interim authorization in
which ~state program changes may be approved by EPA. For example,
when the states, having received Phase I authorization, apply to
EPA lor Phase II interim authorization, they must demonstrate that
their programs have been modified, if necessary, since Phase I
authorization so as to contain the elements necessary to meet the
requirements of one or more of the components of Phase II. Likewise,
changes in the state program curing interim authorization are sub-
mitted to EPA for approval as part of the process for final authori-
zation. There is also a provision in the model Memorandum of Agree-
ment between EPA and the state which requires the state to inform
EPA of any program changes which would affect the state's ability
to implement the authorized program. Nevertheless, there is no
requirement, as in 40 CFR §123.13/ which delays the effective date
of modifications in a state program during interim authorization
until after TPA approval of such modifications.
f/In the event EPA should eliminate the requirement of 40 CFR
,3.13 (see footnote 3), then by much the same reasoning contained
herein, EPA could also enforce modifications made in the state pro-
gram after final authorization, notwithstanding whether E?A had
aooroved the modifications.
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v*e nave come to this conclusion ror t.ie following reasons:
i. Congress provided in Section 3005 for two types
of authorization: interim authorization,...to be granted user. 2
showing by the states of "substantial equivalence" with the
federal program; and final authorization, upon a showing by the
state of "equivalence" wish the federal program. Obviously, in
the journey from substantial equivalence to ecuivalance, some
changes must be made, and were undoubtedly contemplated by
Congress. Yet, Congress also authorized EPA to enforce the
hazardous~waste program during this interim period, including
the programs in effect in those states to which interim authori-
zation had been granted. It therefore appears that Congress
intended that EPA enforce such laws and regulations as were in
effect at the time of violation in. a .state with interim, authori-
sation, hotwithstand'ing' whether EPA-had 'formally approved each
and every one'of those laws or regulations.
2. To conclude that EPA could not enforce state laws
and regulations adopted after granting of interim authorization,
but was, instead, restricted to enforcement of only those which
were in existence at time of approval of the state program by
EPA, would potentially subject the regulated community to the
dilemma of being required to comply with two sets cf laws or
regulations on the same subject: those which__were_ a .part_p.f.
the--E-?A-appco-ved state program at the time of granting of
interim authorization; and these which the state promulgated
"ftar the granting of interim authorization. Such dual reguia-
ion defeats the whole purpose of state authorization.!/
We therefore conclude that changes made by a state in its
hazardous waste programs after granting of interim authorization,
and before granting of final authorization, may be enforced by
EPA regardless of whether the chances have been formally approved
by EPA. In so doing, we recognize that there are several forceful
arguments which can be made on-the other side of the :issue..l/
Notwithstanding these, we believe the weight of the arguments
tilts, in favcr of the conclusion which we reached herein.
.2/This reasoning would not apply with equal force to
modifications made in a state program during final authorization
because the States presumably will be making many fewer modifications
of their programs after final authorization.
_L/~cr example, if a state, after receipt of interim authoriza-
tion/ makes changes in its program which are less stringent, is EPA
"^quired to enforce the portions of the state program which are
s stringent? The answer must be "yes", and if the state makes
. ny such changes in its program, EPA's only resort .-nay be to
revoke the State's authorization.
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C. If the federal regulations contain provisions vhid-
are not included in an approved state program, can
I?A enforce those federal regulations in that s-.a-e?
The situation presented by this question will most likely
occur when 2PA modifies its regulations or adopts new regulations,
such as the addition of a waste to the universe of federally-
regulated waste, after the approval of a state program. This issue
is significant because, with approximately one-half of the states
having received interim authorization/ it is important to Jcnow
whether changes made in the federal program subsequent to a state
having been granted authorization can be enforced in that state.
Under the procedure .established by.. Section 3006 and 40 CF?.
Parr 123'-, a state'/''ill order to gain interim or final authorization,
must submit to £PA its program consisting of, among other things/
the state laws and regulations which constitute its program.
These are compared to the analogous provisions of the federal
program to determine whether the state program meets the necessary
standards for interim or final authorization. Approval is granted
for the specific state program as submitted, which then becomes
the hazardous waste program in effect ir. that state in lieu of the
federal program.I/ The federal program, in effect, ceases to '
exist in that state, except for the potential of federal enforcemer.-
of th'e state nrogram or the possibilitv of action under Sections
1003 or 3013.
Since the state hazardous waste_ laws and regulations are
Affective in lieu of the federal program after authorization, any
changes in the federal program made after'the granting of interim
authorization to a state do not become a part of the state program
unless and until the state adopts such changes.JL/ Inasmuch as the
state laws and regulations are those which EPA is required to
I/As noted earlier, where the state program has a greater
scope of coverage than required under the federal program, that
part cf the state rrogram is not a part of the federallv-aooroved
program. 40 C.R SS123Jifx)(2) and 123.121(g)(25. Also as noted ear.
during interim authorization, EPA enforces modifications in a state
program, notwithstanding that EPA may not have approved those
modifications.
l/?or a discussion of the adoption of modifications by a state
in its program, and when those modifications become- a part cf the
EPA-authorized program, see Subsection 3 of this Section, supra.
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enforce, EPA is, conversely, not entitled to enforce federal
requirements which are not a part of the state program.A£/
With' regard to states which have been granted final authori-
sation, there are provisions in the federal regulations which
govern the state adoption of modifications in the federal program,
Section- 123.13 of 40 CJR requires the states, after final authori-
zation, to adopt amendments which are made, to the Federal program
within one year of the .. romulgation of the'federal regulation,'
unless the state must'adopt or amend a statute, in which case the
revision of the state program must take place within two years.
However, until the state adopts the Federal amendments, the stats
program does not include them, and EPA cannot enforce them in tha:
state.
We recognize that this could create., a situation in which
regulations promulgated by EPA subsequent to authorization of a
substantial number of states would not be effective-in those
states until such time as the states adopted them,As/ while being
in effect as part of the federal program in those states which
do not yet have interim authorization, and in those states which
receive authorization after promulgation of the regulations and
have included a counterpart of the regulations as part of their•
state program.
3.
I? AN ENFORCEMENT ACTION IS NECESSARY,
IN WHAT COURT SEOCJLU EPA FILZ TEZ ACTION?
Section 3003(a )(i) of RCRA provides that whenever the
Administrator determines that any person is in violation of any
requirement of Subtitle C, "... the Administrator may commence a
It should be noted here that there are components of the
federal program which are not included in Phase I interim authorisa-
tion or in some phases of Phase II authorisation to the states.
For example, the grantinc of Phase I interim authorization to the
states does not include the authority to issue RCP.A permits to
hazardous waste management facilities. Likewise, the granting of
Phase II, Component A authorization (covering permitting of
storage facilities) does not include authority to issue RCRA permits
to hazardous waste land disposal facilities, which will be covered
by Component C of Phase II. The portion or portions of the federal
program not covered by an authorization to the state Continues
as a part of the federal program in effect in that state until it
is covered by a subsequent authorization. In the meantime, EPA
is entitled to enforce those portions of the federal program which
the state has not yet been authorized to administer.
bv a sta;=
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civil action in the united States District Court in the district
in wr.ich the violation .occurred...."
This statute vests jurisdiction cf suits involving violations
cf the hazardous waste program under Subtitle C in the'd.S. Distric'
Courts, and the venue of such actions in the U.S. judicial district
in which the violation occurred. Therefore, in a suit brought
by EPA to enforce a portion of the hazardous waste program of a
state which has received interim or final authorization, the
suit should be brought in the appropriate U.S. District Court,
but the substantive law to be applied to the facts of the case
should be the state hazardous waste statutes and regulations
which were applicable to these facts.
The sta-ts may, o.f course, file its' enforcement, .acticns' in the
state courts. In this regard, EPA should be aware cf the.potential
which may exist for a final decision in a state court action to
act as collateral estoppel to a subsequent action which EPA may
bring against the same offender ever the same violation. See r,T.S.
v. ITT Rayioner, Inc., 527 F.2d 996 (9th Cir, 1980), for a discus-
's ion of state court judgments actinc as collateral estocoel acainst
EPA.
\
4.
IF EPA ENFORCEMENT OF STATE LAWS, PECULATIONS OR
PERMITS IZ7VOL7SS ADMINISTRATIVE PROCEEDINGS,. SEOQLJD
EPA FOLLOW FEDERAL OR STATE PRCCEDCHIES?
Since the bulk of the RCRA enforcement activity of''EPA will
involve administrative proceedings, particularly with the authority
to issue administrative orders under Sections 3008, 3013 and 7003,
the question of whether federal or state administrative procedures
will be followed in enforcement actions is an important one.
Th-ere—e-an—be little question that Congress provided EPA with
.the necessary authority to use federal procedures' for enforcement
of all applicable hazardous waste laws, and that it intended that
those procedures be used in the event of federal enforcement of a
state's hazardous waste laws or regulations.^./ "or example,
Section 30C3(a)(i) of RCRA authorizes the Administrator/ in the
event of a violation of any requirement of Subtitle C, to issue .
an order requiring compliance immediately or within a specified
time. Section 3008(a)(2) makes it clear that such orders may be
issued in states which are authorized to carry out the hazardous
waste program under Section 3QQ6 (after notice to tne affected
state); and Section 3008(a)(3) provides for a penalty for non-
compliance, as well as the authority of the Administrator' to revoke
i/'rt'e interpret RCRA as limiting the use of the administrative
orders mentioned herein to EPA, and tha-t—rrre^ are not available,
as such, to the states. The states statutes may, of course,
contain authority for state administrative orders.
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any permit issued to the violator, whether by EPA or the State.
provisions for public hearings or. ar.y orcer issued under this
Section, ar.n authority for the Administrator to issue.'.'subpoenas
*.re also included in Section 3003 (b) . Section 3003(c) specifies
,he scope and content of the compliance orders which aay"be
issued under this Section.
Congress provided a specific mechanism for federal administrative
enforcement proceedings, to be used in cases of federal enforcement
of state programs in lieu of any administrative procedures contained
in the laws and regulations"of the state in which the violation
occurred. Furthermore/ it would seem inconceivable as. a practical
matter that EPA would consider using state, administrative procedures
even should it legally be .possible, to do,so,. since that would, in
most "cases',""nece'ssitate submitting, the violation to the state
agency whose inability or 'failure to taJce enforcement action would
have been responsible for bringing about EPA's involvement in the
matter.
IN EVENT OF EPA ENFORCEMENT IN AN AUTHORIZED STATS,
WHAT STEPS SHOULD 3E TAXEN TO MINIMIZE ADVERSE '
IMPACT C7PON FEDERAL-STATE RELATIONSHIPS?
• »
. There are several circumstances under which EPA.may.be
^quired to take enforcement action in a state with an-authorized
RA program, most primarily because of the state's lac.1: of
^sources to tahe- adequate or tiaely "action. Whatever-the reason,-
EPA should carefully avoid the appearance of being'"overbearing"
or disregarding the states' role as the primary agency for admin-
istration and enforcement of the hazardous waste program.
In some cases, the state will request SPA to taxe enforcement
action. In such cases, few problems are encountered in EPA-state
relations. 'However, a letter confirming the State's request, and
the notice provided for in Section 3008(a)(2) should be issued
to the state before the action Is commenced. On the other hand,
when the state is passive or unwilling to initiate a timely,
appropriate enforcement action, EPA should take care to handle
the matter with diplomacy.
Since it is clear, as outlined above, that Congress intended
the states to have the primary enforcement authority of the RCRA
program, if it appears that federal enforcement intervention may be
required, a letter should be written from EPA to the' appropriate
state agency administering the program containing the following:
/I. A description of the violation, including the name
a^d address of the violator; the date of violation and location
i^Bbhe facility or site at which it occurred; references to the
c. ^visions cf the state program which are being violated; and
any other pertinent details which will aid in the identification
and the nature of the violation. Additional information, such as
-------
names or witnesses, laboratory reports, inspection reports, and
other evidence in EPA's possession should be offered upon request
of the state should the state decide to take enforcement action.
•M
2. A statement that under RCRA and the Memorandum of
Agreement between EPA and the state, it is the- primary obligation
of the state to taJce necessary and timely actions' to "enforce the
provisions of the state hazardous waste.laws and'regulations, and
that EPA believes it is appropriate that the state take such
action. In seme cases, it would be appropriate to suggest the
type of action to be taken, such as issuance of a compliance
order, other administrative orders, revocation of a permit, or
filing of an injunctive action.
.-. ...-.•:•. .3-.. .-.- A statement that should the state agency fail to
take appropriate and timely action by a date certain stated in
the letter, EPA nay thereafter exercise its right to initiate
enforcement action under Section 3008(a) (2).
The question of what is a "timely" action by the state agency
will depend upon a variety of circumstances. If"an uncorrected ri:
lation could constitute a threat to human health cr the environ-
ment, a relatively short period of time cay be required for either
the state or EPA to act. If, through telephone conversations or
other communications between EPA and state agency officials, there
is already an indication before the letter is mailed to.the state
that it. will probably not take action regardless of the request,
"•-ben a relatively short period of time (e.g., 10 days) for state
/esponse may be allowed before EPA initiates the action. In such
case, the.letter should also refer to the previous communication
with the state which indicated the liklihood cf inaction on its pa:
On the other hand, if there is an indication that the state will c:
may act, but has failed to do so because of scarce resources or fo:
other clear and understandable reasons, a longer period of time
may be allowed to give the state ample opportunity .to .fulfill its
role as. the primary enforcement authority.
At the end of the time period stated in the letter, if the
state agency has not initiated an enforcement action cr indicated
its willingness and intent to do so, EPA may proceed to commence
action as- the enforcing authority without further notification.
6.
EFFECT OF STATE AUTHORIZATION ON SECTION 7003 AND 3013 ACTIONS
Section 7003 of RCRA states, in pertinent part:
"Notwithstanding any other provision of this Act,
upon receipt of"evidence that the handling... of
any solid waste or hazardous waste may present
an imminent and substantial endangement to
health or the environment, the Administrator
may bring suit ... to immediately restrain any
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person contributing to such handling..., or to
taka such other action as may be necessary.
.The Administrator shall provide notice to the
affected State of any such suix. The Administrator
.-nay also/ after notice to the affected State,
taxe other action under this section including,
but not limited to/ issuing such orders as raav
be necessary to protect public health and the*
environment." (emphasis supplied)
The first clause of the section indicates that it was the inter.-
of Congress to allow EPA to taJca emergency actions to protect human
health and the environment in cases of imminent hazard/ without re-
gard to any other provisions of the Act. Ii is not within the scope
of this, memorandum..to .review the purposes.-and uses of Section 7002",
but it i's clear that EPA is not bound by any of the provisions cf an
authorized state's laws or regulations which may appear co restrict
or limit the use of this Section. Again, however, notice must be
given to the state prior to the commencement of such an action.
It is also clear from the express wording of the section -hat
only the Administrator of EPA, or other Agency personnel to whom he
has delegated authority, nay taJce the actions"authorized by Section
7003, and that therefore a stats which has been authorized"to admin-
ister the hazardous waste program may not employ Section 7003 as a
state enforcement mechanism. States are authorized by EPA to
administer and enforce the hazardous waste program only under Sub-
title C of RCRA, which does not include Section 7003. CJse of
Section 7003 is within the exclusive^ province of EPA. This does
not, however/ prohibit the states from adoption and use of their
own form of imminent hazard authority in the state courts.
The ability of EPA to take action under Section 3013 is
likewise unaffected by authorization of a state program. 3y such
authorization, SPA does not relinquish the enforcement options
which it possesses, but merely agrees to hold them in abeyance to
be used in the event the state fails to taJce appropriate and timely
enforcement action.il/ Before issuing a 3013 order to a person in
an authorized state, however, notice should be given to the appro-
priate agency in the affected state in the manner suggested herein,
and reference should be mace to the guidance en issuance of 3013
orders contained in the Memo ran dun from Douglas Mac.Millan, Acting
Director of the Office of Waste Programs Enforcement to the Regional
Enforcement Directors dated September 11, 1981, entitled, "Issuance
of Administrative Orders under Section 3013 of the Resource Con-
servation and Recovery Act."
il/The model 'lemcrandum of Agreement between EPA and the 'states
contained in the RCRA State Interim Guidance Manual, provides:
"Nothing in this Agreement shall be construed
to restrict in any way EPA's authority to ful-
fill its oversight and enforcement responsi-
bilities under RC3A."
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If you have any questions or problems relating to the .r.azzars
contained in this rnemorandu.-, please ccr.cacc. Richard H. M=»vs ~^= —«.-
office at F?S 332-3103. " " '"'
cc: Christopher J. Capper
Acting Assistant Administrator
Office of Solid Was~s and Ssiercency Resscr.se
Robert M. Perry-
General Counsel . ....
Office of General Counsel
Mr. C. Raymond Marvin
General Counsel
Sacionai Association of Attornevs General
444 X. Capitol Street - Rocm 1777
:-.Tashinc-on, 3.C. 20001
-------
J
'i - UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
1 WASH.NGTON.D.C. 20460 9541.1934(04,
MAY 2 I 1984
OFFICE O<=
SOLID WASTE AND £VE«GENCV
PIG-84-1
MEMORANDUM
SUBJECT: Determining Whether State Hazardous Waste
Management Requirements are Broader in Scope
Stringent than the Federal RCRA Program
FROM:
Assistant Administrator for
Solid Waste and Emergency Response (WH-562-A)
TO: PIGs Addresses
Issue
How does EPA determine whether a requirement of an authorized
State hazardous waste program is broader in scope or more stringent
than the Federal RCRA program?
Discussion
The March 15, 1082 Program Implementation Guidance memorandum
from William Sullivan entitled "EPA Enforcement of RCRA-Authorized
State Hazardous Waste Laws and Regulations" (PIG-82-3) outlined EPA
policy on enforcement of Federal and State hazardous waste manage-
ment requirements in States with cooperative arrangements or
authorized RCRA programs.
The Guidance concluded that State-imposed requirements which
are beyond the scope of coverage of the Federal program are not
part of the Federally approved program (40 CFR 271.1(1) and
271.121(1)). Consequently, such requirements are not enforceable
by EPA. PIG R2-3 also concluded that "provisions in State programs
which are more stringent than their federal counterparts are,
nevertheless, a part of the approved State program and are
enforceable by EPA." [Emphasis added.]
Attempts to distinguish between those State requirements that
are broader in scope and those that are more stringent than the
Federal RCRA program have led to some confusion. The confusion is
partly a result of conflicting information in past PIG's on this
issue. PIG 81-4, discussing delisting of wastes, indicates that
State regulation of more wastes than are regulated by the Federal
program would be viewed as a nore stringent aspect of the
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- 2 -
authorized State program. Similarly, page 7 of PIG 82-3 indicates
that "a lesser amount of waste exempted [by the State] from regula-
tion under the small quantity generator exemption" is an example
of a more stringent State program requirement. In contrast,
page 6 of PIG 82-3 states that the listing by a State of wastes
which are not included in the Federal universe is an example of a
provision that is broader in scope.
Decision
To determine whether a particular requirement or provision
of a State program is "broader in scope" (and therefore not a part
of the authorized program) or more stringent (and therefore a part
of the authorized program) the questions discussed below should be
answered sequentially.
(1) Does imposition of the State requirement
increase the size of the regulated community
beyond that of the Federal program?
A State requirement that does increase the size of the
regulated community is more "extensive", not more stringent, and
is an aspect of the State program which goes beyond the scope of
the Federally-approved program. Examples of requirements that are
broader in scope include:
8 a lesser amount of waste exempted from regulation
under the small quantity generation exemption;
0 listing of wastes which are not in the Federal
universe of wastes.
Thus, the examples discussed in PIG 81-4 and on page 7 of PIG 82-3
should have been interpreted as requirements that were broader in
scope and not more stringent. (While this guidance corrects these
two examples, it does not change the policies and other examples
of PIGs 81-4 and 82-3).
If the requirement does not increase the size of the
regulated community, the following question should be asked.
(2) Does the requirement in question have a
direct counterpart in the Federal regulatory
program?
-------
If the State requirement does not have a direct Federal
counterpart,' the requirement is also beyond the scope of the
Federal regulatory program. Examples of such State requirements
are:
0 controls on traffic outside of a hazardous waste
facility or specification of transport routes to
the facility;
0 requirements for the preparation of an environmental
impact statement or the approval of a siting board
as part of the permit issuance process;
0 licensing of transporters.
However, if the requirement of the authorized State program
does have a direct Federal counterpart, the State requirement
is either equivalent to or more stringent than the corresponding
Federal regulation. Examples of more stringent State requirements
are:
0 limited financial assurance options for facility
closure;
0 submittal of an annual rather than a biennial report
for generators;
0 expiration of permits after five years instead of ten.
This guidance supports those enforcement policies outlined
in PIG 82-3, and should resolve .many of the questions concerning
the scope of the Federal and RCRA authorized State regulatory
programs. We also anticipate that this guidance will be useful
in focusing the scope of EPA oversight of.State programs. As
PIG 82-3 states, EPA enforces the more stringent provisions of
RCRA authorized programs; therefore, EPA has a corresponding
responsibility to overview implementation of those aspects of
State programs which are more stringent.
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9541.1984(05)
JUN 1984
o s
(8 T
*• m
a*
*• ui
t/» I
3 .
a £
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X N-
•3
SUBJECT: Transfer of Federal RCSA Permits to Authorized States U.
and Compliance with 40 CPP «124.10(e) jf
i^i
FRO'': Truett V. T>er.eare, Chief -
State Programs Branch ^
3D
TO! Hazardous Waste Branch Chiefs* Region I-X ^
cr.
i
N)
Recently t there has been some confusion over whether <£
Federal RCRA permits continue in States which receive
Phase IX or final authorization. This policy was explained
in PIG-82-5, dated August 5, 1982, with regard to interim
authorization (copy attached). The sane policy applies to
final authorization.
The receipt of final authorization is not contingent
upon the State assuming permit responsibility for those RCRA
permits issued by EPA; nor is the granting of authorization
cause for termination of an EPA-issued permit. PPA-issued
permits continue in force until terminated under 40 C?R
$270.43 for cause (e.g. , noncompliance by the permittee) or
transferred by agreement between the permittee and EPA as
provided in $271. 8(b) (6) . (See also «124.5(d).) The State
must eventually issue a State RCPA permit or assure responsi-
bility to administer the Federal permit if It has the authority
to do soy however, it does not have to do so immediately as
a condition of receiving authorisation.
Another permit issue which has arisen recently is
failure to comply with 40 CF* $124.in(e). That section
requir** a copy of the fact sheet or statement of basis, the
permit application an* the draft permit to be irailerl to all
persons identified in C124 .10(c) ( 1 ) ( i )-( iv) . An EP.*-issue*
permit has been challenged for failure to con-ply with f!24.10(e)
(PCRA appeal No. 83-5 In the Matter of w«*t* Technologies
Industries). In that case, the State of v.'est virgin!* clai">er«
that it was unlawfully prevented frc^ filing tirely correrts
or a perrit application because th* Pecjion failed to give it
certain supporting documents. It was entitled to receive
those documents (draft p^rnit and p*»rt*it arrlication) as an
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-2-
•affected State" under $124.10(c)(1)(iii). The Adi-lnistrator
remanded the patter to the Pegional Administrator for the
United purpose of reopening the public comment period.
Pleaae observe this requirement and remind Rtate* with
Phase II or final authorization to comply with it as well.
If you have any questions on these issues, pleas* call Deborah
wolpe at 382-2227.
Attachment
cct Bruce Weddle
Ftate Program Branch
Gail Cooper* occ
Pusan
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9541.1984(08)
WASHINGTON O.C. 23460
*"'«.
MEMORANDUM;
SUBJECT: adioactive Waste Exemption in North and South
FROM: Tee M. Thomas
Assistant Administrator
TO: Charles R. Jeter
Regional Adminstrator
Region IV.
•
Thank you foe your memorandum of July 11 regarding the
exemption of radioactive materials in North and South Carolina's
hazardous waste statutes. You asked whether their programs
could be authorized with these exemptions. The answer is yes
for the reasons described below.
On February 21 I wrote to Regional Administrator Ernesta
Barnes, on the subject of State regulation of radioactive wastes.
In that memorandum I explained that there are three categories .
of radioactive waste. The first category - source, special
nuclear and by-product materials defined by the Atomic Energy
Act - is excluded from the definition of solid waste in RCRA; •
therefore, RCRA does not provide authority for us to regulate
these wastes as hazardous waste and we do not require authorized
States to do so. The second category is "mixed" waste; i.e.,
those wastes which consist of source, special nuclear or by-
product material and RCRA hazardous waste. At the time of my
writing, we had not determined the extent of EPA's authority
over such wastes, and therefore did not require States to have
jurisdiction over or regulate "mixed* wastes. The final category
consists of radioactive wastes outside of the source, special
nuclear or by-product universe such as naturally-occurring radio-
nuclides and accelerator-produced radioisotopes. Such wastes are
also hazardous if they are listed in 40 CFR Part 261, Subpart D,
or when they exhibit any characteristic identified in Part 261,
Subpart C.
North and South Carolina's laws do hot extend the full range
of RCRA controls over this last category of radioactive hazardous
wastes. A question has arisen about whether any of these wastes
in fact exist. Since no wastes currently listed in Part 261,
-------
""} uU-
Cr-.i
_J "-1"'
Subpart D, are radioactive, we focused on whether there are any
naturally-occurring or accelerator-produced wastes that exhibit a
Subpart C characteristic. After checking with the Office of
Radiation Programs, which has consulted with the regulated commu-
nity and research organizations, we have determined that no such
wastes are known to exist (copy of memorandum attached). From
this determination we now conclude that it is inappropriate to
require States to demonstrate control over this hypothetical
category of wastes to obtain final authorization. Accordingly,
North and South Carolina need not amend their statutes to obtain
final authorization.
I also wish to apprise you of recent developments in the area
of those mixed wastes which consist of source, special nuclear, or
by-product material and RCRA hazardous waste. Since issuance of
the February 21 memorandum, we have determined that RCRA authority
does extend to these mixed wastes. We are now working with the
Department of Energy to determine how best, under RCRA and the
Atomic Energy Act, to implement this authority. States need not
yet revise their programs to regulate mixed wastes since EPA must
still resolve some definitional issues. However, you may wish to
advise them of this development, should they wish to initiate
changes in their programs to obtain legal authority to regulate
mixed wastes. At that time we would also advise States to obtain
jurisdiction over the third category of non-excluded radioactive \
and hazardous waste in the future event that a non-excluded radio-
active waste is listed or .we discover that such a waste exhibits a
hazardous characteristic. Once we have defined our implementation
program we will work with the Regional Administrators to guide
States in revising their programs as required by 40 CFR 5271.21.
In the meantime, EPA is responsible for implementing the RCRA v
program wi-th respect to mixed wastes.
I appreciate you bringing this situation to my attention.
Please let me know if you have further questions.
Attachment
cc: Regional .Administrator, Regions I-III and V-X
Regional- Hazardous Waste Division. Director, Regions I-x
Regional Counsel, Regions I-X
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
3ATe AUG1 1984
Existence of Hazardous Non-Excluded Radioactive Vasces
"Floral. Galpir
Waste Management Standards Branch
Criteria & Standards Division (ANR-460)
ro John H. Skinner, Director ,.
Office of Solid Waste (WH-362B) 7 \:
THRU: Richard J. Guiaond, Director^
Criteria and Standards Division (A.XR-460)
Glen Ly^30blom~ Director^
Office of Radiation Programs (ANR-458)
On February 21, 1934, Assistant Administrator Lee Thomas sent a memo
to Regional Administrator Ernesta Barnes, detailing the Agency's position
on which radioactive-wastes are outside the source, special nuclear, or
by-product universe exempted under RCRA. This meno stated that the wastes
which could falrl under RCRA's authority include naturally-occurring
radionuclides and accelerator-produced radioisoeopes. The aemo went on to
say chat authorized States aust regulate these wastes when they are listed
under 40 CFR Part 261, Subparc D, or when they exhibit any characteristics
identified in Subpart C.
You have recently asked us to clarify whether any nonexempted .wastes
exist which are also hazardous because they exhibit a characteristic under
40 CFR Part 261, Subpart C (no nonexempted wastes are currently listed
under Subparc D). Georgia, North Carolina, and South Carolina have
indicated co you that no such wastes exist ia their jurisdictions.
Discrete sources of low-level radioactive wastes, such as radiua
(naturally-occurring) or accelerator-produced wastes are Che only wastes
which presently fall into Che nonexempted category. This does not include
mining and beneficiation wastes which we presently do not regulate under
RCRA. To our knowledge, none of Chest wastes art hazardous under Pare 261.
I hope Che above information is of use. Should you have any further
questions, please fttl free to contact toe.
r*r* 11:04 !«•«.
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9541.1984(09)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
ornct or
OKMBNAi. COUNKL
APR 4884
MEMORANDUM
SUBJECT: Status of Federal Permits in
States Which Have Received RCRA
Final Authorization
FROM: Gail B. Cooper 7 ^j fe . . ^u
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-2-
pertinenc statutory and regulatory provisions are the same
for interim and final authorization, the same conclusion
would hold for final authorization.
Discussion
Sections 271.8(b)(6) and 271.126(c)(1) of the RCRA state
authorization regulations provide that the Memorandum of
Agreement (MOA) between the state and EPA must contain provisions
specifying a procedure for transferring the administration
of existing federal permits to the state. They further provide
that if "a state lacks authority to directly administer permits
issued by the Federal government, a procedure may be established
to transfer responsibility for these permits." An example of
such a procedure is provided in a note to $271.8(b)(6): the
state, EPA and the permittee could agree that "the State would
issue a permit(s) identical to the outstanding federal permit
which would simultaneously be terminated." I/
This provision clearly provides that EPA-state procedures
on the transfer of permits must be established but is silent
on whether such transfers must be effective on the date of
authorization. This issue was addressed for interim authorization
on August 9, 1982 by a Program Implementation Guidance memorandum
(PIG-82-5). The memorandum concluded that federal permits remain
in effect after Phase II authorization until the state issues a
RCRA permit or assumes responsibility for administering the
federal permit if it has the authority to do so. According to
the memorandum, federal permits do not terminate automatically
but must be terminated according to the procedures in S270.43 or
by agreement of the permittee and EPA. To avoid the need for
EPA administration and enforcement of federal permits in authorized
states, the memorandum strongly encouraged the states to issue
state RCRA permits or administer federal RCRA permits as soon as
possible.
As we indicated to you, it is conceivable that someone
'could challenge the policy reflected in the memorandum in a
permit or enforcement proceeding by arguing that since section
3006 provides that the State carries out the RCRA program
"in lieu of the federal program" upon authorization, federal
permits terminate automatically upon a state's authorization.
Following that interpretation, the state would have to be
I/ Section 124.5(d) provides that EPA does not have to
issue a notice of intent to terminate a permit in
this situation.
-------
-3-
able Co assume or administer the Federal permit (or issue
its own RCRA permit) at the time it was authorized in order
for the facility to continue to have a RCRA permit.
We do not find that argument persuasive. Many states do
not have the statutory or regulatory authority to administer
federal permits or to issue their own RCRA permits as of the
date of authorization. If federal permits automatically expired
upon a state's authorization, a facility could be left without
any permit (if there were no state permit for that facility)
or could continue to operate under a state permit with less
stringent requirements than were contained in the federal RCRA
permit. Given Congress* general goal of providing for the
effective regulation of hazardous waste and the "no less stringent
requirement" in Section 3009 in particular 2/, it is difficult
to conceive that Congress would have intended that the transfer
of authority from EPA to a state result in a decrease in
environmental protection. In our view, PIG-82-5 is a reasonable
interpretation of our legal authority, designed to assure that
authorization of a state program does not cause a facility to
lose its permit or allow a facility to benefit from relaxed
permit requirements. 2/
The analysis is supported by a case dealing with the NPDES
program under the Clean Water Act (CWA). In Central Hudson
Gas and Electric Corporation v. U.S.E.P.A., 587 F;2d 549, 560
(2nd Cir. 1978), EPA had issued a NPDES permit which was partially
contested. Before the Part 124 adjudicatory hearings began on
the contested provisions, the State NPDES program was approved
by EPA. The State and EPA arranged for EPA to continue to
handle the adjudicatory hearings and any subsequent litigation.
The permittee challenged EPA's authority to do so, pointing to
the CWA provision which states that when a state program is
I/ Section 3007 provides that ... "no state or political
~" subdivision may impose any requirements less stringent
than those authorized under [subtitle C] respecting the same
matter as governed by such regulations ..."
21 EPA does not have the same leeway if the federal permit has
~ not yet been issued. 40 C.F.R. 271.l(f) specifically
provides that "Upon approval of a State permitting program,
the Administrator shall suspend the issuance of Federal permits
for those activities subject to the approved State program."
Thus, even if EPA has already issued a draft permit and held
public hearings, it may not proceed to issue a final RCRA permit.
This obviously makes it essential for EPA and the state to allocate
permitting resources efficiently in the period before a state
receives authorization.
-------
-4-
approved by EPA, the EPA must "suspend the issuance of permits."
33 U.S.C. S1342(c)(l). EPA argued that the permit had been
issued, so that this provision did not govern.
The court deferred to EPA's position that the permit had
been "issued" and did not get into the broader issue of what
happens to EPA permits after NPDES approval. To that extent,
the decision does not address the same legal issues we might
confront. However, the court's reasoning is relevant; it
concluded that the statutory policy of having states implement
the NPOES permit program was outweighed by the Act's primary
objective to restore and maintain water quality. The court
was persuaded by EPA's argument that the permittee's
interpretation would produce duplication, waste, and delay,
and disrupt the state program because the state would not be
prepared to bear the sudden transfer of the permit. The Court
did not wish to discard the transition mechanism EPA and the
state had worked out. While there are differences between
the CWA and RCRA, the similar statutory goals and problems
of transitions from EPA to state regulation make this case
a helpful precedent for PIG-82-5.
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9541.1985(01)
o o o 2
1
wn
— . _ ....... .. ... ..... ----------- 33*11
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ts t « t « * r— r •» : r *r» * r • _ ~ 4AOC -.-..,.. - . 2 2. 2 w
..... '***•.- MAR6<1985 ., ^,^
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• ~: • *••*•- - . . > . a
».•"•-•. : T • • i"- . i -r. > * "«•-.-.? • •>•-. .. .--: r^,.._( a o w a
,5 ......... . ' ...... e JB • •
HEMORAHDOB ..^^..:l ^ :.... . ........ -__:.*. .....
SUBJECT i JtCRA P«nit R««othorl««t Ion Z»«u«« In H»«ton XXI
(O
.
fROPii John B. 8kinn«r, Director ... #•__ _____ ^, : ____ . _. , . \ w«
Office Of Solid HABt* (WB-5C2) « •£
w* ^s OB
00 K>
TOi 8t«v«n R. W«««er»uo» Director "^
• lasardoa* Haste Management Division* Region XXX _.
This memorandum is In response to the series of questions ^
raised in your memorandum of February 1, 1985, regarding issuance *J
of RCRA permits in authorised States in light of the new reauthor- «
ization amendments. Several of the issues you raised have been £
addressed in the draft guidance on corrective action for continuing o
releases (dated January 10, 1915) and the draft guidance on joint ST
permitting, which was distributed in early December. We are pre- x
paring additional guidance on EPA/State permitting, which should y
be distributed in draft very shortly. . - ... : c
It should be understood thst most of the following responses ^
to the specific questions raised in your memorandum reflect our w
current thinking, and are based on preliminary policy interpreta-
tions which have not completed the Agency's formal review and
concurrence process. Our responses sre as followsi .
A. Aberdeen Proving Grounds. As stated in the 1/30/15
draft guidance on corrective action for continuing
releases, the facility is the entire contiguous property
under the control of the owner/operator, at which the
hazardous waste management units are located. Thus,
the entire army base must be taken into account when
considering continuing releases for the purposes of
this permit action.
A permit Issued sfter November 6, 1964, is not a
fully effective RCRA permit unless it addresses all
applicable proviaior.e of the reauthorization amendments,
as well as the regulations currently in place in the
authorized State. However, the State may issue its
-------
-2-
•State" permit to the facility, without the new require-
ment* of the amendment* having been addressed by BPA.
Until the State receives authoritation for the new >
amendments, its permits are State permits, and not RCRA
permits. Region III should issue the Federal portion
of the permit addressing the provisions of the new
amendments as soon as practicable, consistent with the
overall program priorities in *he Region. • -When this ••
Federal portion of the permit is issued, it will combine
with the State permit to become the RCRA permit. In
this situation, provisions of -the State permit would be
reopened only if provisions of the State permit are
affected by the Federal portion of the permit.
• »•" Spec tr on. Ontil the State is authorised for the
continuing release provision, implenentation of the
provision must be done by BPA. We would urge that,
If possible, a joint and simultaneous RCRA permit be
issued to this facility by BPA and the State, (see
the I/ JO/13 draft corrective -action guidance). * <•
•--".'If the Federal portion of the permit cannot be : ••-..
prepared within the State's timetable for the permit,
the State may chooae .to issue the State permit to th« T
facility without the Federal portion. Until the Federal
portion la issued. Region III has the option of using
an interim status corrective action order [$3008(h)] to
require the owner/operator to begin any necessary remedial
Investigations at the facility.
D. Baval Shipyard. 'The fact that the facility notified
under S10J(c) of CBRCLA do«a not affect EPA1 a ability
to iasue a RCRA permit to the facility. Any releases
that may b« at the facility can and should be addressed,
either through a RCRA permit, a RCRA interim status
corrective action order* or through State enforcement
action, as appropriate.
B. Defense General Supply. Aa you may know, guidance is
currently being developed on the Agency's policy toward
RCRA facilities that ara also Hated on the National
Prioritv List (NPL), in light of the new RCRA corrective
action authorities. This policy guidance Is expected to
be Issued in the next few months. Until the guidance
is issued, we would tentatively advise that if CERCLA
remedial measures ara already being conducted at a RCRA
facility, those activities should continue under CCRCLA.
If, on the other hand, tha CBRCLA remedial process is
-------
7*.„ not yet underway at the facility (i.e., a RI/F8 has not
t*» . ~^.<. yet been done), it would be appropriate to uee the RCRA
permit or a RCRA 13008(h) order to provide for corrective
• measures.
B. Allied Bermuda-Hundred. The determination as to
..... whether or not a releaae that poses a threat to human
health and the environment has occurred, or is likely
to have occurred, can only be made by EPA (or by the
State when it is authorised for the continuing release
requirements). This determination is based on infor-
.. mation submitted to EPA by the owner/operator regarding
the solid waste management units at the facility, and
any available Information on releases from those unit* r
(see Reauthorisation Statutory Interpretation 13,
February 5, 1985).
P. Dupont gdqeaoor. Section 270.10(f)(l) requires
that physical construction of a facility cannot begin
until the facility has secured a 'finally effective
RCRA permit." Therefore, before construction of the.:
hazardous waste storage tank can begin, a permit which
addresses both the applicable State requirements and
the new RCRA $3004(u) requirement must be issued to the
facility. As explained in the January 30 guidance on
continuing releases, investigations of releases from
the solid waste disposal unit at the facility, and
development of a program of corrective measures, can
take place under a schedule of compliance after the
permit is issued. However, the owner/operator cannot
begin construction or operation until the Region issues
its portion of the permit.
G. In regard to the hypothetical situation posed on
page three of your memorandum, the State may issue the
State permit to the facility and continue to require
cleanup activities under a State compliance order.
This will not of itself, however, constitute compliance
with the $3004(u) requirements. Only EPA car. implement
this provision (until such time as the State becomes
authorized for it). When EPA issues its portion of
the permit, any remaining remedial investigations and
corrective measures will be carried out under the
permit. If this scenario is followed, we would urge
that Region III and the State coordinate to ensure
that the investigations and corrective measures imposed
under the State enforcement order would be consistent
with those which EPA would require under the permit
when it is issued.
-------
The answer* to your gereral question on how EPA and a State
interact during joint permitting procedures ^re .addressed«^4«;
p*rt,-in~the guidance memoranda already mentioned.' -We aleo ""-"=..
discussed these issues in some detail at the February 27-26
Division Directors' meeting. We expect to be issuing Additional"
guidance on these various joint permitting issues within the -
next several weeks. Please let me know if there are any further
questions or comments*
^
cct
Veddle
DeGeare .
Guerrero
Greenwood
Pitzbaek
Regional Hazardous .Waste Branch Chiefs, Kegion* I-X
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9541.1985(05)
May 6, 1985
MEMORANDUM
SUBJECT: Applicable Management Standards for Wastes Newly
Regulated Pursuant to HSWA
FROM: Bruce R. Weddle, Director
Permits and State Programs Division (WH-563)
TO: Kenneth Feigner, Chief
Waste Management Branch (M/S 533)
Region X
This is in response to your memorandum of April 4,
addressing the question of which standards (EPA's or an
authorized State's) apply to the management of wastes which
become regulated in authorized States as a result of EPA
rulemaking pursuant to HSWA.
We agree with your conclusion that when EPA promulgates
additions to Part 261 pursuant to HSWA, it is EPA's standards
which are applicable to handlers affected by the new regulations.
This situation continues until the State revises its program
pursuant to 40 CFR 271.21 to add the wastes to its regulated
universe and receives EPA's approval.
You are also correct in that, while States may participate
in implementing the Federal requirements through agreements with
EPA, EPA retains ultimate responsibility for the Federal program.
Only EPA can issue RCRA permits with respect to the new wastes.
While EPA may defer to authorized States that are taking timely
and appropriate enforcement actions against violations with
respect to the new wastes, EPA also retains ultimate enforcement
responsibility.
We appreciate your raising this issue, and it will be
discussed in the RCRA Reauthorization Statutory Interpretation
memorandum (RSI) on joint permitting.
cc: Hazardous Waste Branch Chiefs, Regions I - IX
State Programs Branch
Gail Cooper, OGC
This has been retyped from the original document.
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9541.1985(07)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
MAY 85
Manifest Use and State Authorization
•
3. A spent solvent, which is hazardous by characteristic only (e.g. ignitable-
D001), is transported from the generator in Montana, to a reclamation facility
in Texas. Both Montana and Texas are states with final authorization for
the RCRA program. The transporter will also go through Wyoming which is a
non-authorized state (i.e., it is under the Federal RCRA program).
Pursuant to 40 CFR §261. 6(a), characteristic >«*»•-» r^w wastes which are reclaiited
are not subject to ROWV regulations. According to §261. 2(c) as amended by the
January 4, 1965, Federal Register (50 FR 614), however, all spent solvents,
characteristic or listed, will be defined as "spent materials" and win be
regulated as "solid wastes" prior to reclamation. Thus, per §261. 6(b), in the
January 4, 1985, rule, generators and transporters of recyclable hazardous
materials (e.g., spent solvents) are subject to Parts 262 and 263 (generator
and transporter standards, respectively). The complicating factor is that this
new definition of solid waste and respective recycling regulations nay go into
effect at different tines throughout the country depending on whether a state
is authorized or not.
The January 4, 1985, rule will be effective in non-authorized states on July 5,
1985. States with final authorization, such as Montana and Texas, may have up
to January 4, 1987, to adopt this rule. Therefore, a characteristic ignltable
spent solvent will be a regulated hazardous waste prior to reclamation in non-
authorized states on July 5, 1985. In the transport situation described above,
is the transporter required to carry the Uniform Hazardous Waste Manifest in
Wyoming, since the spent solvent is a •hazardous waste" in Wyoming on July 5,
1985?
If the spent solvent is transported from Montana to Texas (EPA-*uthorized
states) after July 5, 1985, the transporter need not carry the Uniform
Hazardous Waste Manifest, even though the spent solvent is transported
through Wyoming, which regulates the solvent as a RCRA waste. States through
which the waste shipment travels nay not dictate manifest requirenents per
49 PR 1049 (March 20, 1984). When either the generator state (Montana) or
the~oesignated state (Texas) determines that the waste is hazardous, that
waste win be subject to the Uniform Manifest requirenents.
Source: Denise Hawkins (202) 382-2231
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9541.1985(09)
i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
J - WASHINGTON. D C 20460
JUL I IQPF O^f iCE OP
t"^-"-t SOLID WASTE AND EMERGES^ RESPONSE
MEMORANDUM
SUBJECT: RCRA Reauthorization and Joint Permitting in
Authorized States:
KCRA Reauth.o»r>izat ion Statutory Interpretation #5
'< '•• it in ' •
.•i-.\,< (It '// i e.n_
FROM: J/ack w. McGraw
Acting Assistant Administrator
TO: Addressees
Section 3006(g) of the Hazardous and Solid Waste Amendments
of 1934 (HSWA or the Amendments) provides that hazardous waste
requirements and prohibitions promulgated pursuant to the
Amendments are applicable in authorized States at the same time
they are applicable in unauthorized States. HSWA also mandates
incorporation of many of these requirements in all Resource
Conservation and Recovery Act (RCRA) permits as of November 8,
1984, in both authorized and unauthorized States. In addition,
§3005(c)(3) of the Amendments provides EPA with the authority
to incorporate into permits any requirement necessary to protect
human health and the environment, even if EPA must go beyond
the specific requirements or prohibitions found in the statute
or regulations.
A permit ca.nnot be considered a RCRA permit unless it
contains all the applicable new requirements of the Amendments.
A State must be specifically authorized for provisions of HSWA
to issue a RCRA permit. Section 3006(c) of HSWA provides EPA
with the authority to issue permits for the new requirements
and prohibitions until a State is authorized to do so. That
section provides that in an authorized State the Administrator
"shall have the authority in such State to issue or deny permits
or those portions of permits affected by the requirements and
prohibitions established by the Hazardous and Solid Waste Amend-
ments of 1984. The Administrator shall coordinate with States
the procedures for issuing such permits." This guidance discusses
the implementation of the joint permitting process through which
this coordination will occur.1 Our intent in addressing this issue
is to continue the permitting process, in cooperation with the
States in as efficient and expeditious a manner as possible.
1 Note that there are also requirements of the HSWA which are
self-implementing. They take effect regardless of whether
a permit is being issued; for example, the ban on disposal
of hazardous wastes in salt domes (Section 3004(b)).
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JOINT PROCESSING; FORMAT AND TIMING OF THE RCRA PERMIT
The joint permit may be issued in two ways. There can
be one complete permit with signatures of both the State
Director and the Regional Administrator (RA) on the same
document. The other alternative is to issue two incomplete
permits, one signed by EPA and one signed by the State. In
either situation signatures by EPA and the State are necessary
to provide the facility with the authority to operate under
a RCRA permit.
If a single complete permit is issued, it is especially
important to have a clear identification of which provisions
stem from Federal authorities and which stem from State
authorities. This identification will clarify enforcement
responsibilities and will enable an interested party to
determine the appropriate authority to approach when appealing
a given permit condition.
Where incomplete permits are issued simultaneously,
only those conditions stemming from one authority would be
attached to the respective signature. EPA would issue the
portion addressing only those HSWA provisions for which the
State has not yet received interim or final HSWA authorization.
The authorized State would address all other RCRA and State
conditions and requirements. The two parts together (whether
one document with two portions or two portions put together)
would address all the conditions required in a RCRA permit.
(See Draft permit section on page 7 for a discussion of how
these conditions should be addressed.) This is generally the
preferable option as it clearly separates the State and Federal
requirements yet it provides the. facility with a complete RCRA
permit. However, the decision whether to issue one complete
or two incomplete permits is ultimately left to the Regions and
States; legally, there is no reason to prefer one over the other.
It is EPA policy that State and Federal portions of the
RCRA permit be issued simultaneously. However, prior to the
date of enactment of the HSWA, States with Phase II or final
authorization were processing permit applications toward
final determinations. Many of these permits have already
been issued as draft permits. States with Phase II or final
authorization that issued draft permits prior to April 8,
1985, (the date the RCRA Implementation Policy was signed
announcing that joint permits must be issued simultaneously)
should proceed as planned to take final action during fiscal
year 1985 on these draft permits. The State permits will
fulfill State law but they will not be RCRA permits.
EPA will then assign a high priority to these facilities,
so that the Federal portion of the permit can be issued as
soon as possible, or a rapid determination can be made that
a Federal portion is unnecessary. For all other permits,
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i.e., those permits which have not reached the draft sta^e
by April 8, 1985, or pre-April 8, 1935, draft permits whicn
are not issued as final permits in fiscal year 1985, States
and EPA must plan on simultaneous issuance of the State and
Federal portions of the RCRA permit.
A new facility is not allowed to begin construction unless
both the State and Federal portions of the permit have been
issued, providing the facility with a RCRA permit. If a new
facility received only the State's portion of the permit, it may
not begin construction since that portion does not, in itself,
constitute a RCRA permit. For facilities that want to expand, if
the expansion is such that the facility would require a RCRA
permit (i.e., it is not an expansion allowable under interim
status), then the facility also must receive both the State and
Federal portions of the permit prior to expanding.
PROCEDURAL ASPECTS OF ISSUING STATE AND FEDERAL PERMIT PORTIONS
Most' RCRA permits will he issued simultaneously by EPA
and the States. Procedures to be followed for simultaneous
issuance are discussed in the "Implementation Analysis"
section. This section discusses those instances, described
above, where the State and Federal portions of the permit
are not issued simultaneously.
The procedures for issuing a joint RCRA permit in these
cases will vary depending upon whether the State has issued a
draft or final permit. Where the final State permit has been
issued prior to the issuance o£ the EPA permit, the expira-
tion date will coincide with that established for the original
State permit. There are two possible permitting situations:
State issued draft permit prior to April 8, 1985, an
CPA issues draft permit prior to final State permit;
State issues final permit before EPA issues final pe
where a State has already issued its draft permit, EPA
will make this permit a high priority for action. EPA will
determine whether and how the facility is affected by the
HSWA requirements since the State is not authorized to make
a determination about the applicability of the Amendments.
When CPA makes this determination, it will either:
- issue a draft permit containing appropriate
conditions addressing HSWA, or
- where EPA finds that the facility is not affected
by HSWA, issue a notice explaining our tentative
decision. This means that no corrective action
will be necessary, no other HSWA requirements
apply, and no additional requirements to protect
human health and the environment are necessary.
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EPA will follow the procedures in 40 CF? Part 124 in issuing
the draft permit or notice of our tentative decision that the
facility is not affected by HSWA.
EPA's Fact Sheet or Statement of Basis should explain the
relationship between the EPA action (draft permit or tentative
determination that a HSWA permit is unnecessary) and the
previously-issued draft State permit. It should explain that
EPA's final determination will be made simultaneously with
issuance of the final State permit or that EPA's final action
will occur after tne State issues its final permit. In the
latter event, the notice should explain that the facility will
have a RCRA permit only when final permit actions have been
taken by both EPA and the State. The State may wish to send
a letter to the facility to inform the owner/operator that
she/he does not have a RCRA permit until EPA covers the new
HSWA requirements in an EPA permit or determines that an EPA
permit to address HSWA is unnecessary.
If EPA determines that a permit is necessary to impose
HSWA requirements, and that the draft HSWA permit would
affect the draft State permit, the State is strongly
encouraged to redraft and, if appropriate, renotice its
permit at the same time EPA drafts and notices its permit.
In some cases there could be a direct conflict between the
two permits. If States have the authority to remove "permit
conditions that conflict with HSWA requirements, removal
of such conditions before the permit is issued would avoid
the later issuance of two conflicting permits and the need
to explain that the HSWA permit supersedes any conflicting
State requirements.
In other cases decisions made by EPA concerning HSWA
requirements may affect the State portion of the permit
even though they do not conflict with the State approach.
For example, as a result of EPA technical requirements,
it may be necessary to revise the closure plan. It would
be preferable for the State to revise the closure plan in
its permit, making it unnecessary for both the State and
EPA permits to cover the same areas. However, if the State
is unwilling or unable to modify its draft permit, both the
State's final permit and EPA's draft and final permits must
indicate that HSWA requirements in the EPA portion of the
permit supersede any inconsistent or less stringent State
permit requirement. A Fact Sheet for the final EPA permit
must specifically identify the conflicting State provisions
which are superseded in order to avoid ambiguity about
whether the State or Federal permit condition in a particular
area is the operative requirement.
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2. State has issued both the draft and final permit before
EPA issues its draft permit.
In issuing its portion of the permit in this situation,
EPA should proceed as described above, by making a determina-
tion about the applicability of the Amendments and issuing
either a draft permit or a notice of our tentative decision
that the facility is not affected by HSWA.
Where the State does not open its permit, the State is
encouraged to issue a notice in conjunction with EPA's final
permit which announces that when the State permit was issued
it was not a RCRA permit, the State permit does not address
the HSWA provisions, and that the State did not reopen i-ts
permit. Tn addition, the State may wish to send a letter to
the facility as described above.
The EPA Fact Sheet should explain the relationship between
the EPA action and the final State permit. EPA should explain
that once EPA makes its final decision, the combination of the
State and Federal permits (or decision that a Federal permit is
not necessary) will meet the requirements for a RCRA permit.
In the situation described previously — where the State
permit conflicts or overlaps with the HSWA requirements EPA
is imposing — the State is strongly encouraged to modify its
permit. If, however, the State is unwilling or unable to
reopen its permit (e.g., there is no "cause for modification"
under the State regulations to cover the type of change that
would be necessary), EPA should proceed to issue its permit,
making sure that the EPA permit states that the HSWA require-
ments supersede any inconsistent or less stringent State
permit-requirements. As explained before, the Fact Sheet for
the RCRA permit must specifically identify whether the State
or Federal permit condition in a particular area is the
operative requirement. In any of these permitting situations,
if a State believes it must follow additional procedures in
orf.er to meet the requirements of State law it should do so.
JOINT PERMIT IMPLEMENTATION
The joint permitting relationship must be defined by the
Regions and authorized States. The Regions and States will
need to:
0 establish procedures for coordinating the joint
permitting process;
0 establish procedures and schedules to obtain additional
information from permit applicants;
0 notify those facilities who have already submitted
applications about the new requirements and their
need to address them.
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Authorization Memoranda of Agreement (MOA's) need to be
amended or other agreements executed to define EPA and State
roles in the permit process.
As stated earlier, the Amendments specifically provide.
that the States may participate in implementing the new
provisions. An authorized State would participate in
applying tne HSWA requirements to the same extent that an
unauthorized or Phase I State may currently participate in
the Federal permit process. The States can take the lead
on the technical review of the application, preparation
of the draft and final permit, preparation of the public
notice, review of public comments and preparation of the
response to comments; but the joint role must be clearly
understood. The State is assisting in processing the
Federal HSWA portion of the permit, but EPA has the ulti-
mate decision-making authority for those aspects of RCRA
permitting for which the State has yet to be authorized.
IMPLEMENTATION ANALYSIS
This section discusses the major steps in the permit
process and how each would be affected under joint permitting.
The Regions may wish to consider additional changes to MOA's
to address the following discussion in greater detail.
1. Permit Application Request - Where possible, there
should be one application request issued jointly by EPA and
the State. The request should make clear which requirements
are State and which are Federal. Duplicates of the same
application should be sent to both EPA and the State. Requiring
only one application makes it easier for the applicant since
she/he need not separate the State and Federal requirements in
the application. EPA must receive a copy of the State portion
in order to consider whether any additional requirements are
necessary to protect public health and the environment, pursuant
to §3005(c). The State maintains the overall lead in the
process/ with EPA responsible for the provisions which stem
from Federal requirements for which the State is not authorized.
Where an authorized State has requested a permit
application before HSWA, that request will retain its validity
for the State's program. However, where information is needed
to address the new requirements, EPA must request the additional
information if the State does not have the authority to demand
such information.
The applicant should be given time to comply with the
request for the new HSWA information if necessary; the amount
of time granted is subject to the Region's discretion as
negotiated with the State. Where the new request creates a
burden for the permit applicant, additional time should clearly
be granted. The additional time should be granted only to
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accommodate the new burden; the State's original time frame tor
receipt of information from the applicant will apply to the
original application request.
2. Completeness Determination - Ideally, the completeness
determination should be a joint decision. Since there is only
one application, one determination will facilitate the process
for the applicant. If one Agency finds the application to be
incomplete prior to the other Agency's determination, it can
issue a Notice of Deficiency (NOD) or commence an enforcement
action, where appropriate. However, the draft permit cannot
be issued until both the State and Federal draft permits have
been prepared. If one portion of the application is not
complete, another completeness determination will be made for
that portion only after'the date on which the newly requested
information becomes due. If both portions of the application
are incomplete, a joint completeness determination will be made
once the newly requested information is received. In either
situation, it is only at that later date that an owner/operator
would be subject to enforcement action for an incomplete
application based on an NOD for the newly-requested information.
3. Application Deficiencies - Where possible, a joint
NOD should be issued with the appropriate enforcing authority
issuing the appropriate portion of the NOD. Where deficiencies
occur in both the State and Federal portions of the application,
the applicant should receive notice, simultaneously from both
parties to facilitate the applicant's response. Either two
NOD's should be issued at the same time, or one document can
be issued signed by both parties, so long as it explicitly
states which requirements stem from which enforcing authority.
If, however, the deficiency relates only to a State provision,
the State will issue the NOD with a statement explaining that
only the State portion is deficient. Where necessary, separate
NOD's for State and Federal deficiencies can be issued at
different times.
4. Draft Permit - The draft permit (or intent to deny)
will be issued simultaneously by EPA and the State (unless
the State draft permit was issued prior to April 8, 1985).
The joint draft permit would be physically similar to any
other draft permit except that it would contain two parts,
specifically identifying which provisions stem from State
authorities and which from Federal authorities. As discussed
earlier, the two parts may be issued as either one or two draft
permits as determined by the Region and the State.
The Fact Sheet or Statement of Basis should be jointly
written (as should the public notice) and should include
separate discussions of Federal and State issues. An
authorized State can enforce its approved analogue to the
generally applicable requirements of 40 CFR 270.30. As a
result, the State's parallel provisions to 40 CFR 270.30 will
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- 8 -
be applicable to both the State and Federal portions of the
permit. The Fact Sheet or Statement of. Basis should contain
an explanation of these requirements.
where possible, permit writers should avoid putting
conflicting requirements into joint permits. This could occur,
for exanple, if a State authorized for the pre-HSWA single liner
requirement includes such requirements in its portion of the
permit, while EPA includes the HSWA double liner requirement in
its portion. Where possible, the State should agree not to
include those requirements which are inconsistent or less
stringent. There may be situations, however, where a State
only has legal authority for single liners and has no discretion
to do otherwise. Therefore, where less stringent requirements
cannot be eliminated, the Fact Sheet (or Statement of Basis)
should state that the more stringent requirements always take
precedence and should include a summary of the operative permit
conditions. In this way, the facility and the public will know
what requirements must he fulfilled and confusion from permits
which contain conflicting requirements will be minimized.
5. Permit Procedures and Public Participation - Public
participation activities should be conducted jointly. The
EPA Region should follow the .State's hearing procedures and
requirements (adhering to the State's processing deadlines)
even where those requirements are more stringent than tPA's.
EPA would serve as the hearing officer for purposes of the
Federal provisions of the permit.
To the extent that the State desires and EPA resources
allow, the Regions should participate in other aspects of
the State's public involvement process. However, EPA is not
bound to participate in procedures which are not part of the
State's authorized program. State imposed requirements which
are beyond the scope of coverage of the Federally approved
program are not enforceable by EPA, nor is EPA hound by them.2
Requirements for environmental impact statements (EIS's) and
siting boards are specific examples of State requirements
which are "broader in scope" than the Federal program and,
therefore, although they may be needed as a matter of
State law, EPA need not participate with respect to EPA's
portion of the permit.
<5. Final Decision - As with the draft permit, the EPA
and State final permits will be issued simultaneously (except
where the State draft permit was issued prior to April 8, 1985,
and the final permit was issued before the end of fiscal year
1985). The format of the final permit will be the same as the
draft permit. (See discussion on pages 7-8.)
2 PIG 84-1, from Lee M. Thomas, May 21, 1984.
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- 9 -
7. Appeals - The States will handle appeals relating
to State provisions and EPA will handle appeals of the
Federal provisions. Each party should notify the other when
any appeal action is initiated.
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l'""*ED sf . iS ENVIRONMENTAL PROTEC .ON AC?.1 .JY
9541.1986(04
MAR - 3 '•'
Felix A. Dunaway
C-E Power Systems
Combustion Engineering/ Inc.
4224 Shackleford Road
Norcross, Georgia 30093
Dear Mr. Dunawayi
As the result of our office's investigation into the current
regulatory status of the spent pickle liquor sludge generated at
your Norcross facility, we have found that the State of Georgia
issued a final exclusion for this waste on Hay 11, 1984. As a
result. Combustion Engineering, Inc. may no longer want to pursue
a final exclusion for this waste from EPA. We would like to make
you aware, however, of the limited jurisdiction of the State decision,
as described below. The Georgia deli sting designates your process
waste as a non-hazardous waste within the State of Georgia under
the authority granted to Georgia for interim authorization by EPA on
February 3, 1981.
If the waste continues to be handled entirely within the borders
of Georgia, and does not enter interstate commerce, the waste may
be disposed as non-hazardous. In the event, however* that this
waste enters interstate commerce, e.g., transported by an interstate
carrier, even within Georgia, it must be treated as hazardous.
Our office will encourage the Georgia Department of Natural Resources
to consider additional factors if they reconsider this deiisting,
but Georgia is not required to readdress this delisting.
If Combustion Engineering, Inc. wishes to pursue a final >
deli sting from EPA, then the previously requested information
should be forwarded immediately. If Combustion Engineering, Inc.
does not wish to pursue an EPA delisting, then the petition on
file with the Agency should be withdrawn. A letter indicating your
intent (i.e., whether to proceed with the delisting or withdraw the
petition), should be sent to our office within two weeks of the date
of receipt of today's correspondence.
Mi.a. SFO . i»6)-4»7-ijj
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If you have any further questions, please contact either Mr.
Wendel Miser, of ray staff, at (202) 382-7817, or Mr. Steven Hirsch
of the Office of General Counsel at (202) 382-7703.
Sincerely,
Eileen Claussen
Director
Characterization and
Assessment Division (WH-562B)
cc: Georgia Department of Natural Resources
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9541.1986(05)
31 OCT 86
MEMORANDUM
3U8JLCT: RCRA Section 300l( f!) (2) (b) and States' exclusion
oc Wastes from Regulation as Hazardous
. . .- • • i -7
FROMt Marcia E. William, Director Vl»T" p"v "•-•
Office of Solid Waste MaTC» fc
TO i Hazardous Waste Division Directors
Regions I-X
Since November 8, 1984, EPA has administered all RCRA delisti
programs and will continue to do so until States become authorized
for do11sting under the new provisions of the Hazardous and Solid
Waste Amendments of 1984 (HSWA). A State is not required to have
a delisting mechanism* and may be authorised under HSWA without
one. To receive authorization, a State must conform its denoting
program* if any* to the Federal program and apply to the Agency
tor authorization.
Effective November 8* 1986* temporary exclusions automatically
expire. Any temporary exclusion granted by a State before
November 8* 1984* should be re-evaluated either by EPA or a State
that has been authorized to conduct delisting pursuant to HSWA.
If a final decision to grant or deny a petition has not been made
by November 8, 1916* the temporary exclusion will cease to be in
effect for purposes of RCRA Section 3001(f)(2)(B).
Temporary Exclusions
Temporary exclusions are delisting decisions which exclude
a waste from) regulation as hazardous* but are not the tinal
deliating action under the regulations of the issuing authority.
r'or example/. If* issued s number of temporary exclusions pursuant
to 40 CFR 260.22(m). That provision explicitly atated that these
decisions are made "becore naning a final decision*. Similarly*
several States have mechanisms for removing a waste from regulation
twtore promulgating a final decision* such as delistings patterned
on the Federal temporary exclusion.
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- 2 -
The»« temporary exclusions should be distinguished rrom
grants of enforcement discretion/ where a State did not remove a
vase* from regulation, but stated only that it would not initiate
an enforcement action against a person treating this waste as non-
hazardous, r.ntorcement discretion, somet l«os called informal
exclusions, aro not temporary exclusions (nor are they final
exclusions).
Final Exclusions
A final exclusion is an agency determination don* in accordance
with tne issuing authority's regulations, e.g., with notice and
coma*nt after which no further review of the petition is contemplated
t'PA issues final exclusions pursuant to 40 CFR 260.20 and 2(0.22,
which requires publication of a tentative decision In the Fed«ral
Register/ receipt and evaluation of public comments, and publication
of a final decision in the Federal Register. States issue tinal
exclusions in accordance with their State legal authorities.
Any final exclusions that were granted by authorised States
becore Novesper d/ 1964, are not affected by BSWA (I.e., no
additional action is required by the Stats or by EPA). EPA
encourages the States to re-evaluate those decisions if all
factors (including additional constituents) which could csuse
the vasts to be hacardous were not considered by the Stste.
Actions Required
On November 8, 1986, all temporary exclusions will csass to
be in effect for purposes of RCRA if s final exclusion has not
been granted* States and Regions should plan to verify that the
handlers of these previously excluded wastes are complying with
applicable requirements after November 8, 1986. To this end, the
Regions and States should begin to evaluate all State delistings
tot
(1) determine the type) of Stste exclusion (temporary or final)
that was) granted before November 8, 1984i
(2) determims whether a final exclusion has been granted or
denied my EPA) and
(3) take appropriate action to ensure full compliance with
ACJtA (e.g., prior to 11/8/86, you should send handlers
written notification of their regulatory responsibilities.
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- 3 -
Proa a practical standpoint, the expiration of a temporary
exclusion will have greatest imaediate impact on those who
manage their waste in land disposal units. These units nay
oe immediately subject to ground-water monitoring requirements
ancJ, on November «, 1987, may be subject to the "loss of interim
status" requirements of Section 3005 (a)(3), depending on whether
otnur hazaraous waste management activity is occurring at the
facility.
Currently, there aro no States authoriied for the HSWA
dellating authority. tven it a State were to receive the
required authorisation before November 8, 1986, it is highly
unlikely that adequate tine exists to collect and evaluate the
additional information from petitioners so as to avoid termination
of the tafflporary exclusion.
A 'Reference Guide to Del1st ing Petitions" Is compiled at
i fiPA Headquarters and distributed weekly to the Regional delisting
contacts. In turn, the Guide is distributed to the States. This
: reference can be used to determine if EPA is reviewing a particular
I petition and the status of EPA's review.
i Please feel free to contact the delistlng staff of the Waste
! Identification Branch or the Regional Liaisons of the State
I Programs Branch her* in the Office of Solid Waste if you have
I any questions regarding State delistlnqs.
cci Matt Straus, OttW
Truett DeGeare, OSM
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9541.1986(10)
MAY 1, 1986
"FMOPANDUM
~M?J£CT: Heanonse to Kooion III Implementation and
Oversight Issues
FPO><: ".arcia ?. ^illlams, Director
Office of Solid Waste (WH-563)
Gene Lucero, Director
Office of Pasta Programs Enforcement (v/H-527)
TO: 5-teohen R. Wassersug, Director
Hazardous Waste Management Division (3HWOO)
Thank you for your memorandum of March 5, 1986, in which
you asked for clarification on several issues relating to
implementation and oversight of the RCRA hasardous waste program
in Pennsylvania. This memo addresses your concerns in the samp
order in which you stated then in your memorandum.
1. Is there still a need to maintain a major handlers list?
Although the major handlers list played a role in the past
to establish insoectlon frequencies and targets and oermit over-
sight priorities, it does not translate to the existing needs of
the Agency. You should amend your States' MOAs to use designa-
tions which conununlcate the priorities set in each year's RIP.
For example, facilities presenting immediate threats, government
facilities, and land disposal facilities, would be appropriate
designations for inspections and oversight in FT 86 & FY 87.
because of the recent policy/Guidance set forth in the PIP (9.a.,
insoectiee) targets in PY 86 PIP), PICs 83-1 and 82-2 have been
superseded and are presently inoperative with regard to ^inspections
and oversight* As you point cut, a'major facility designation
does need* to be maintained to guide the permitting actions of
5*124.7 and 124.8.
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- 2 -
What happens to EPA's oversight responsibility (especially
direct enforcement autnority) when SPA makes regulatory changes
which narrow the "scope" of the original program?
The axanple you related with this question refers to EPA
removing a waste trom the lists in Part 261, where an authorized
States program continues to include the waste. In this situation,
the State requirement would increase the size of the regulated
community and would be an aspect of the State prog ran which ooes
beyond the scop« of the Federal prograa. Therecore, tPA would
no longer enforce the hazardous waste activity associated with
the federally deregulated waste. This aspect of the State program
would not De subject to EPA oversight.
However, fcPA's oversight and enforcement responsibilities
are different where EPA reduces the stringency: of a requirement
(tor example, requiring a biennial report Instead of an annual
report). In that case, the State requirement (i.e., annual report)
becomes more stringent than the corresponding federal requirement.
EPA would enforce and otherwise oversee the more stringent State
provision, since more stringent provisions are still considered
part of the State's authorized program.
3. You asked Headquarters to make a specific determination
regarding the "more stringent' or 'broader in scope* nature of
Stats standards for managing a material which SPA has determined
to not b« a hazardous waste.
In the situation you described, the lack of the waste
exemption/exclusion in the State's program increases the siz« of
the regulated community beyond that of the Federal program. As
you indicated, this part of the Pennsylvania program could bo
viewed as 'broader in scope'. He agree with this assessment.
Therefore, EPA does not have an oversight responsibility and
would not enforce the State's provision.
I hope that the above discussion answers your questions and
concerns regarding major facilities and oversight of approved
state progri
cc: Susam Schmwdes, OGC
Virginia Steiner,
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UNIT-D STATES ENVIRONMENTAL PROTECTION AGENCY
9541.1986(13)
iJUf' 2 A '986
Kicnard C. Fortuna
Hazardous waste Treat/rant Council
191^ Pennsylvania Avenue* N.4.
Suite JOO
Wasnington, D.C. 2J006
Dear Mr. Portuna:
Tnank you for your letter of May 21, 1986, expressing your
concerns over the uniform application and enforcement of land
disposal restriction regulations. I will answer your specific
questions in the order in which they were presented.
• Kegardinq uniform application of the federal require-
ments in States which have established or are estab-
lishing their own pre-treatment levelst
As you Know, Congress intended that the KCRA program be ultimately
implemented at the state level* We have established a very detailed
and comprehensive process for delegation of our Federal authoritv
to qualified states. Through that process, States are required to
prove their eligibility to receive delegation. Part of that proof
involves a showing by the State that its enabling legislation, the
rules whicn are promulgated undor that authority, and the programs
which are established to implement and enforce those rules are all
equivalent to the Federal program. Only after our determination
of overall program equivalency will we award the State the authority
to operate its program in lieu of the EPA program. State programs
;nay differ froa the Federal program in only two respects. They
may contain elements which are more rigorous or limiting than the
federal analog (more stringent programs)* or they may contain
elements of control and regulation which have no Federal counterpart
progran. As you know* we will be promulgating the land disposal
restriction regulations under the authority of the Hazardous and
Solid Waste Amendments of 1984 (HStfA). One unique aspect of that
statute is that the agency will be responsible for implementing
and enforcing its rules on their effective dates in all States,
unless and until authority for implementation has been delegated
to the States. Once a State program is authorized* CPA will
guarantee continued consistent application of Federal requirements
through annually negotiated progran grants and memoranda of under-
-------
standing -with authorized States and also through oversight activities
and overfiling when necessary* For your review, I have attached a
copy of our Draft State Consolidated RCKA Authorization Manual which
discusses the State authorization process in greater detail. Finally,
the agency plans to develop guidance manuals for permit writers in
the EPA Kegional offices and the States and will also be offering
training opportunities to those individuals to guarantee universal
understanding and consistent interpretation of Federal regulations.
• Regarding a State's ability to establish treatment
levels separate and apart from the land disposal
restrictions:
Nothing in the Federal program or the delegation process
descrioed above prevents a State from establishing its own standards.
Indeed/ State rulemaking is governed and directed by authorities
bestowed on each State agency by its legislature. However, for the
State to become federally authorized, those standards must be £t_
least as restrictive as their Federal analogs. Where they are not,
authorization will not be granted and, as noted above/ the Federal
standards will take effect immediately in the State, regardless of
any less stringent or absent State requirements and will be imple-
mented by £fA (see SUFR 2d729, July 15, 1985).
* *
• Regarding specific steps to be taken to guarantee
that Kansas maintains adequate control over
hazardous vastest
Neither EPA Headquarters nor Region VII was aware of Mr.
Murphy's letter prior to its being sent. Since then, our Regional
Oftice has had conversations with Kansas officials regardinn the
letter, and we will have more in-depth discussions in the near
future. We will continue to support the State of Kansas in the
implementation of their hazardous waste program since no Federal
requirements have as yet been promulgated. However, when Federal
regulations are effective, either those rules or equivalent rulete
promulgated by the State will govern hazardous waste activities
in Kansas.
• Regarding the criteria which will guide the
process of evaluating the volume of waste
generated by a small generators
First/ let me note that determinations of what is to be
considered to be the volume (or weight) of hazardous waste are
the same for any generator and small quantity generator requirements
are considered only after the waste generation rate is established.
Secondly, lot me )>oint out that the final determination of what
exactly constitutes the waste is made by that agency operating the
federal program, either the appropriate EPA Regional office or the
authorized State wherein the generator is located. Regarding
the specific question of cartridge weights, EPA has consistently
specified that tne wei.jht of the cartridge as well as the weight
of the filtor be included in the weight of the waste.
-------
• Keciardinn the effect of Federal land disposal
restrictions -.n cjonerators in States with more
stringent or broader in scope programs!
In those instances where a more restrictive or broader in scope
state program has received Federal authorization those State require-
ments will prevail. (Please note that in those situations where EPA
finds it necessary to take enforcement actions against generators
located in these States, EPA will enforce the more restrictive State
requirement.) wnere State programs have not been authorized, EPA
is required Dy HSWA to implement and enforce the Federal standards.
However, in these instances, nothing precludes the State from imposing
its more restrictive requirements as well. Generators should consult
tneir State officials directly to determine if each State standards
are additionally in effect. Finally, in those instances where State
and r'eoeral requirements are in conflict or mutually exclusive, HSWA
dicates tnat the Federal requirements will prevail.
* Kegarding the applicability of the Federal land disposal
restrictions to residues from Totally Enclosed Treatment
Facilities (TETFs)i
four interpretation is correct* There is no relationship
between the source of a waste and that waste's acceptaoility for
land disposal. Acceptable disposition of such residues is
determined solely on the basis of that waste's characteristics
and chemical composition. Finally, regarding applications for
TETt' determinations which the agency may have received, I am
sorry but we at EPA Headquarters cannot satisfy your request.
Such applications are submitted to the appropriate CPA Regional
Office or authorized State. I reconmend you contact the RCRA
Branch Chiefs in our Regional Offices to secure that information.
For your convenience, I have included the names, addresses, and
telephone numbers of those individuals.
I trust tnis adequately addresses your concerns. Peel
free to contact «r. Bruce '.feddle, Director, Permits and State
Programs Division at.(2J2)362-4746 if you have additional
questions on the State authorization nrocess or the procedures
in place whicn guarantee consistent application of the Federal
program.
Sincerely,
Marcla E. Williams
Director
Office of Solid Waste
Enclosures
cc: Bruce weddle
ilicnael Sanderson
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9541.1986(14)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C 20460
July 3, 1986
Ms. Carol C. Amick
Senate Chairman
Special Legislative Commission on
Low-Level Radioactive Waste
The Commonwealth of Massachusetts
Boston, Massachusetts 02133
Fr"
E.
UU
Dear Ms. Amick:
This is in response to your June 3, 1986, letter requesting
the Environmental Protection Agency's (EPA's) position on the
management of "mixed wastes", i.e., wastes that contain hazardous
as well as source, special nuclear or byproduct material as
those terms are used in the Atomic Energy Act (AEA). In your
letter, you raise concerns about the jurisdictional issues of
mixed waste management.
I first want to note how pleased I am that your Special
Commission is proceeding with identifying the particular low-level
mixed waste streams in Massachusetts. This will, of course,
facilitate resolution of any technical issues that might arise
in the future.
In particular, you asked my views on three areas of concern
to the Special Commission: (1) State jurisdiction over mixed
wastes; (2) regulation of incineration of mixed waste; and (3)
the effect on State compacts if EPA receives sole (federal)
jurisdiction over mixed wastes.
EPA considers the hazardous waste component of all mixed
waste streams to be subject to the Resource Conservation and
Recovery Act (RCRA). However, no States have yet been authorized
under RCRA for these mixed wastes. A notice is to be published
Shortly in the Federal Register advising States, such as Massachu-
setts, with RCRA final authorization that they have one year
from the date of the notice (or two years if a statutory amendment
is required) to demonstrate authority to regulate the hazardous
components of mixed wastes. In the interim, States which already
have existing laws which regulate mixed wastes may enforce those
laws under their own authorities.
Incineration of mixed waste must meet applicable requirements
under RCRA for the hazardous constituents as well as applicable
requirements under the Clean Air Act and the AEA for the radioac-
tive constituents. Current requirements under the AEA consist
primarily of NRC licensing requirements; however, EPA's forthcoming
low-level waste regulations will likely address incineration as
a method of handling wastes containing AEA-regulated radionuclides.
-------
In response to your last question, EPA does not foresee
receiving.sole jurisdiction over mixed wastes. RCRA facilities
are not designed to address radioactive hazards. Thus, any
potential for a prohibition on disposal of mixed wastes at NRC
facilities or a lack of sufficient disposal capacity at NRC
facilities (because of closing of existing sites and failure to
identify new sites under State compacts) could affect the safe
disposal of mixed wastes.
It is, therefore, EPA's position that it will authorize
States pursuant to RCRA to regulate the hazardous components of
the mixed waste, while NRC will continue to regulate the low-
level radioactive components. In that case, there should be no
effect on the already existing State compacts' language.
with regard to the AEA's 1993 deadline requiring States to
develop commercial low-level radioactive waste sites, EPA will
provide guidance to clarify hydrogeologic characteristics for
locating sites. To assist the States in site selection, EPA'g
location guidance will be available this summer, and final
regulations on location standards will be promulgated in 1988.
In summary, EPA is proceeding to authorize States under RCRA
to regulate the hazardous components of mixed wastes. If we find
the application of the RCRA regulations would increase radiation
hazards or otherwise would be inconsistent with AEA requirements,
we will modify or waive the RCRA requirements under Section 1006
of RCRA.
If you have further questions, please contact Bruce Weddle,
Director, Permits and State Program Division, at (202) 382-4746.
Sincerely,
Lee M. Thomas
cc: Honorable Edward Markey
Michael Deland, EPA, Region 1
Commissioner Silva, Mass. DEQE
Commissioner Walker, Mass. DPH
-------
9541.1986(19)
October 14, 1986
Mr. C. Alan Boright
Legislative Counsel
Vermont Legislative Council
State House
Montpelier, Vermont 05602
Dear Mr. Boright:
Thank you for your letter of September 17, 1986 in which you
requested advice on the impact and meaning of certain provisions
of the "Low-Level Radioactive Waste Policy Amendments Act of
1985" (LLRWPAA). As you know from earlier discussions with my
staff, the final version of the LLRWPAA did not address
regulation of components of radioactive mixed waste which would
be classified as hazardous under the Resource Conservation and
Recovery Act (RCRA), as amended.
On July 3, 1986, however, EPA published a notice in the
Federal Register (51 FR 24504) (copy enclosed) which stated that
in order for States to obtain and maintain authorization to
administer and enforce the hazardous waste program pursuant to
Subtitle C of RCRA, States must have authority to regulate the
hazardous components of radioactive mixed wastes. As defined by
that notice, radioactive mixed wastes are wastes containing
hazardous waste subject to RCRA and radioactive wastes subject to
the Atomic Energy Act (AEA).
The July 3 notice was prepared with input from both the U.S.
Department of Energy (DOE) and the U.S. Nuclear Regulatory
Commission (NRC). This cooperative effort is continuing as we
move forward in developing guidance for managing radioactive
mixed waste. Joint efforts between EPA, DOE and NRC have been
extremely productive, and it does not appear that additional
legislative intervention will be necessary to effect dual
regulation and management of the hazardous components of low-
level radioactive mixed wastes.
In regard to your concern about disposal of mixed wastes
with differing characteristics, RCRA does not preclude disposal
of mixed wastes at facilities that handle other radioactive
wastes. At the present time, there are three operating low-level
radioactive waste land disposal facilities in the United States.
Discussions with States that have low-level waste disposal
facilities and States with plans to develop such sites have
indicated to us that they do not foresee any problems in meeting
This has been retyped from the original document.
-------
-2-
both EPA and NRC regulations in managing radioactive mixed
wastes.
Additionally, under the LLRWPAA States may form "compacts",
that is, enter into a cooperative agreement with one or more
States to provide for the disposal of low-level'radioactive waste
generated within the State. Compacts and the rules and
regulations governing them are under NRC jurisdiction.
Therefore, questions regarding compacts as well as questions on
liability and/or ownership under the LLRWPAA should be addressed
to Mr. Robert Browning, Director, Division of Waste Management,
NRC on (301) 427-4069.
Questions regarding State authorization for the hazardous
components of radioactive mixed wastes may be addressed to
Betty Shackleford of my staff at (202) 475-9656 while questions
on health and environmental standards for radioactive materials
should be addressed to Mr. Floyd Galpin, Acting Director,
Criteria and Standards Division, Office of Radiation Program,
U.S. EPA.
Sincerely,
Marcia Williams
Director
Office of Solid Waste (WH 582)
Enclosures
cc: Mr. Robert Browning, NRC
Mr. Floyd Galpin, EPA
Ms. Susan Sawtello, EPA
This has been retyped from the original document.
-------
9541.1986(20;
OCT 2 0 1986
SULJECTt State Authorization to Regulate Hazardous
Coir.pORe*tf.;ftit7Kadioactive Mixed Wastes
a -» --=— -<0
FROMi Lj. Winston Porter
TAssistant Administrator
TOt Waste Management Division Directors
Regions I-X
On July 3, 1986, EPA published a notice in the Federal
Register (51 FR 24504 copy attached) announcing that in order to
obtain and maintain authorization, to administer and enforce a RCKA
Subtitle C hazardous waste program, States must apply for authori-
zation to regulate the hazardous components of radioactive nixed
wastes, i.e., wastes that contain both RCRA waste and radioactive
waate subject to the Atomic Energy Act (AEA). You will soon
receive a State Programs Advisory (SPA) with more information on
format and procedures for State applications. However, in th
-------
- 2 -
Until a State with final authorization is authorized
for radioactive mixed wastes, handlers of such wastes are not
subject to KCKA regulation. However, radioactive mixed wastes
are considered "solid waste* for purposes of HSWA corrective
action at solid waste management units. Under I3004(u), EPA
can jointly issue a permit with the State' a&d impose corrective
action requirements on hazardous waste management units and
solid waste management units at facilities that contain units
subject to RCRA.
Attachment
cc: Harcia Williams
Bruce Weddle
State Programs Branch
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9541.1986(24)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
OCTOBER 86
2. Delisting by States
A facility generates a waste that is not hazardous by Federal EPA
standards but is listed as a hazardous waste by the state. The state in
which the generator is located is authorized to implement the RCRA program,
excluding delisting provisions and the Hazardous and Solid Waste Amendments
of 1984. According to 40 CFR 271.9(b) (See the September 22, 1986 Federal
Register, 51 FR 33721), authorized states are not required to have a delisting
mechanism. If the generator wishes to have his state-listed hazardous waste
delisted, does he submit the delisting petition to EPA headquarters if the
state has no delisting program?
Although EPA has the authority to grant delistings, its authority does
not extend to wastes that are listed as hazardous by the state, but not
by Federal EPA. According to 40 CFR 271.1(i)(2) and 271.121(i)(2), any
state requirement that is greater in scope than the Federal RCRA require-
ments is not part of the Federally approved program. Program Implementa-
tion Guidance (PIG) 84-1 explains further that EPA may not enforce state
provisions that are broader in scope than the Federal program. State
listing of a waste that is not Federally listed is an example of a
provision that is broader in scope because it increases the size of the
regulated connunity. Therefore, EPA would have no authority to grant an
exclusion for a waste that is listed only by the state. The state would
be responsible for granting any exclusions for a waste not regulated
Federally.
Source: Many Madison (202) 382-2229
Research: Jennifer Brock
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L PROTECTION AGENCY
•
""" " 9541.1987(01)
JAN 14 1987
SUbJECT: The Role of Authorized States in Dispute Resolution
j FROM: Bruce R. Meddle, Director
i Permits and State Programs Division
i
' TO: Marcia E. Williams, Director
! Office of Solid Waste
i
i
You asked about the role of authorised States in the dinpute
resolution procedures described in the attached DOJ nemo. The
! DOJ memo suggests procedures for resolving RCRA disputes between
! EPA and Federal agencies. EPA's procedures for Federal facility
j dispute resolution and the role of an authorized State in dispute
j resolution are explained in the RCRA Enforcement Responpe Policy
j (ERF) and in EPA's Federal Facility Compliance Strategy. The draft
i DOJ procedures do not appear to affect the role of authorized States
in dispute resolution since they are not bound by EPA's dispute
resolution procedures*
1
j Under either EPA's current dispute resoluton procedures or
DOJ's draft procedures* EPA would encourage the State (whether
: authorized or not) to participate in the dispute resolution pro-
; cess. It is EPA's policy that an authorized State take the
enforcement lead for violations of RCRA. This policy applies to
violations at private facilities as well as Federal facilities.
Where the State fails to take timely and appropriate action, or
where the State requests EPA to take the lead, EPA will purime
an enforcement action in an State. Where EPA takes the lead and
pursues a negotiated settlement, it is our policy to encourage
the States to participate in the negotiations and sign the con-
pi iance agreement. Signing the agreement, however, does not
prevent a State from pursuing an independent enforcement action
against the Federal facility. Furthermore, the State usually
; reserves the right to take an enforcement action if the Federal
j facility does not coaply with the agreement. For example, in
the Rocky Flats agreeaent and in the Wright-Patterson AFB agree-
ment, the States reserved the right to take an enforcement action
: against the Federal facilities. The State's role in dispute
resolution is the same under either the draft procedures written
by bOJ or under EPA's dispute resolution procedures.
-------
- 2 -
Where EPA takes the enforcenent lead, States are often
hesitant to join EPA'a dispute resolution negotiations because
the States would prefer to pursue an enforceable order in court.
Under the draft DOJ procedures the States may be even more hesitant
to join EPA's dispute resolution negotiations because the draft
procedures do not include tiBefranes for issuing SOV's or for
referring disputes to Headquarters as do EPA's current procedures.
Attachment
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9541.1987(04
JUN 291987
Mr. Steven A. Black
Radiological Services Department
Teledyne Isotopes
50 Van Buren Avenue •
Westwood, New Jersey 07675
Dear Mr. Black:
Thank you for your letter of May 29 in which you raised a
number of issues regarding the applicability of Resource Conser-
vation and Recovery Act (RCRA) regulations to your radioactive
mixed waste brokerage in New Jersey.
Let me begin by providing an overview of how the Federal
hazardous waste program would be applicable to your waste manage-
ment operations. RCRA provides that States may obtain authorization
to administer and enforce a hazardous waste program in lieu of
EPA. New Jersey and New York have obtained such authorization.
However, due to earlier uncertainty about the status of radioactive
mixed waste, most States, including New York and New Jersey, have
not yet obtained authorization to regulate radioactive mixed waste
as part of the authorized State program. This means that radioactive
mixed waste is not a "hazardous waste" within the meaning of New
Jersey or New York's RCRA authorized State program. However, this
does not preclude New Jersey and New York from regulating radioactive
mixed waste as a natter of State law, provided that such regulation
is not inconsistent with the Federal program.
One of your questions concerned the availability of interim
status for "handlers" of radioactive mixed waste. Since neither
New York nor New Jersey's RCRA authorized program includes radio-
active mixed waste, there is no need yet to obtain interim status
with respect to such wastes in those States. However, once States
become authorized, facilities handling mixed wastes will need to
obtain permits or interim status. The Agency is currently reviewing
options for providing interim status to owner/operators of mixed
waste treatment, storage and disposal facilities. Once the options
have been considered, the Agency's decision will be announced.
-------
Your second question relates to New York's authority to
regulate radioactive mixed waste under State law. As I indicated
previously, New York can regulate radioactive mixed waste under
applicable State law although the State cannot administer the
Federal program until it has been authorized to do so by EPA.
Determining which State requirements apply to your radioactive
mixed waste handling operation is a matter of State law. Questions
regarding those requirements should be addressed to appropriate
State authorities. For further information contact:
Paul Counterman
Bureau of Hazardous Waste Technology,
New York State Department of Environmental
Conservation (OEC)
50 Wolf Road
ALbany, New York 12233
Third, we nre not aware of any inconsistencies between the
Nuclear Regulatory Commission (NRC) and EPA storage requirements.
EPA regulations do not prohibit storage beyond 90 days. However,
EPA does require that a permit be obtained for generators that
store hazardous wastes more than 90 days. Of course, a State may
require permits even for a lesser holding period.
Lastly, you asked if EPA could issue regulations exempting
certain segments of the radioactive mixed waste management operations
from RCRA regulations. Any such action on the part of EPA would
be inconsistent with the "cradle to grave" management mandate of
the hazardous waste program. Consequently, it is unlikely that
the Agency will exempt segments of the radioactive mixed waste
operations from RCRA unless the subject requirement is inconsistent
with the Atomic Energy Act as specified in section 1006(a) of
RCRA.
In conclusion, radioactive mixed waste is not yet subject
to Federal hazardous waste requirements in New Jersey or New York.
Questions about compliance with State requirements should be
addressed to those States; questions about the Federal RCRA
program may be addressed to Betty Shackleford, Mixed Waste Project
Manager at (202) 475-9656.
Sincerely yours,
cc: Marcia Williams, OSW
Bruce Weddle, OSW
Barry Tornick, Region II
Andy Bellina, Region II
Lisa K. Friedman, OGC
J. Winston Porter
Assistant Administrator
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9541.1987(10)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
DECEMBER 87
Land Disposal Restrictions
In a particular state authorized to implement pre-HSWA
regulations, the F005 hazardous waste listing also
includes spent solvent nixtv. -es and blends containing
less than 1CK solvent befo: r use. Due to the state's
hazardous waste listing, does this mean the waste
(which is not listed under the Federal hazardous waste
regulations) is now restricted from land disposal?
No, authorized state regulations which list
hazardous waste (not within the Federal hazardous
waste universe) are broader in scope than the
Federal regulations. According to the May 21,
1984 Program Implementation Guidance Memorandum
from Lee Thomas entitled, "Determining Whether
State Hazardous Waste Management Requirements are
Broader in Scope or More Stringent than the
Federal RCRA Program" (PIG-84-1), EPA cannot
enforce state regulations which are broader in
scope. Therefore, a waste designated by the state
as F005 (which does not meet the Federal criteria
for listing) would not be subject to Federal land
disposal restrictions. However, states are free
to impose their own disposal prohibitions if such
actions are more stringent or broader in scope
than Federal programs (RCRA $3009 and 40 CFR
Source: Mitch Kidwell (202) 382-4805
Research: Joe Nixon
-------
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
9541.1988(01)
JANUARY 88
4. Federal Authority Over Authorized States
Does the Regional Administrator always retain oversight
authority for State permit issuance or may a State become
completely autonomous if it has final approval for all
phases of its RCRA program?
Section 3006(c)(4) of HSWA provides that in the case of
an authorized State program, until such program is
amended to reflect the amendments made by the Hazardous
and Solid Waste Amendments of 1984 and such program
amendments receive interim or final authorization, the
Administrator shall have the authority in such States
to issue or deny permits or those portions of permits
affected by the requirements and prohibitions
established by the Hazardous and Solid Waste Amendments
of 1984. The Administrator shall coordinate with
States the procedures for issuing such permits.
Even if a State has final authorization of all phases
for its RCRA program, however, the Administrator always
retains a statutory oversight authority for such
programs. Section 3006(e) of RCRA authorizes the
Administrator to withdraw approval of any State program
where, after public hearing, it is determined that the
State is not administering and enforcing its program in
accordance with the requirements of Section 3006.
After notifying the State, the Administrator may
withdraw authorization for the State program if
corrective action measures are not taken within a
reasonable time, not to exceed 90 days. Further, 40
CFR Section 271.8(a) provides that any State seeking to
administer a program shall submit a Memorandum of
Agreement (MOA) executed by the State Director and the
Regional Administrator. Such Memorandum of Agreement
shall not contain provisions which restrict EPA's
statutory oversight responsibility. The Administrator
may also comment on permits and draft permits pursuant
to 40 CFR Section 271.19 and Section 271.8 and Section
3008(a)(3) permits the Administrator to revoke permits.
Finally, Section 7003 permits the Administrator to take
action in cases of imminent and substantial
endangerroent notwithstanding other provisions of the
Act, including State authorization.
Source: Marty Madison (202) 382-2229
Research: Bob Adamson
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9541.1991 (01)
MEMORANDUM
SUBJECT: Pilot Delegation of RCRA Subtitle C State Program
Revision Authorizations to the Regions
FROM: Don R. Clay
Assistant Administrator
E. Donald Elliott
General Counsel
TO: Regional Administrators, Regions I-X
In response to a request made by the Regional Waste
Management Division Directors as well as the recommendation of
the RCRA Implementation Study, we are fully delegating the
responsibility for RCRA Subtitle C State program revision
application review and authorization decisions to the Regions on
a two year pilot basis. We look upon this delegation as an
opportunity to make EPA more responsive in authorizing RCRA State
programs while, at the same time, developing an expanded
cooperative role between the Regions and Headquarters. This
pilot delegation will allow the Regions to review and make
decisions on program revision applications without HQ
consultation or concurrence. However, Headquarters review and
concurrence will still be required for those few States, and in
-the future, Indian Tribes, applying for base RCRA program
authorization. This delegation is effective March 1, 1991.
In setting up the Subtitle C program, Congress envisioned
the Agency would expeditiously authorize qualified States. A
quality authorization program requires a significant commitment
to enhance State capability and actively delegate programs to the
States. In order to support this commitment, we are asking that
each Region submit an annual "State Enhancement and Authorization
Plan" outlining what the Region is doing to build State
capability and encourage authorization. Guidance for developing
this plan will be in the FY 92 RCRA Implementation Plan to be
issued by April 1, 1991, and will indicate when these plans will
be due.
-------
Each Region will be fully responsible for maintaining the
integrity of the authorization decision process, including
explaining those decisions to the public and Agency oversight
bodies such as Congress. In addition, delegation of this
authorization responsibility to the Regions is contingent on
Regional commitment to raise issues of national significance to
Headquarters on a timely basis and to adhere to basic guidance
and policy as well as to the underlying statutory and regulatory
requirements for authorization. To that end, each Regional Waste
Management Division Director must certify prior to the Regional
Administrator approving an application that national issues have
been brought to Headquarters* attention.
As it is critical that the Office of the Regional Counsel be
fully involved, the Regional Counsel must also provide assurances
that all legal issues have been reviewed and satisfactorily
addressed. The Offices of Regional Counsel and the Office of the
General Counsel will share responsibility for any defensive
litigation arising from delegated approvals. The Offices of
Regional Counsel must notify OGC promptly when litigation is
filed. OGC will determine whether the case raises any issues of
national significance and retain responsibility for litigating
such issues. The Offices of Regional Counsel will be responsible
for all other issues.
Headquarters will issue broad national guidance outlining
potential issues of national significance. However, since many
of the issues that arise in" a revision application are of first
impression, increased Regional alertness to potential national
issues is critical and Regions should err on the side of prudence
in raising issues to Headquarters.
At the end of the two year delegation pilot, we will decide,
based on our review of each Region's authorization performance,
whether to continue the delegation. In the near future,
Headquarters will establish oversight criteria by which we will
measure Regional success in achieving the national authorization
goals of enhancing State capability and delegating programs to
the States is attached. There will be regular evaluation of
Regional performance, possibly through annual audits and
Headquarters attendance at end-of-year and mid-year State
evaluations. Regions will also be expected to maintain accurate
and timely authorization data.
Each Region undertaking this delegated review and
authorization role must fully recognize the significantly
increased responsibility of Regional authorization program staff
and the need for active ORC involvement. In addition, each
Region is responsible for providing adequate staffing and
training for authorization. Headquarters will provide two
-------
authorization training workshops beginning in the Spring of 1991
and be available for technical (policy and legal) assistance to
the Regions upon request.
The success of this delegation is dependent upon all of us
taking our responsibilities seriously, in full realization of the
critical implications of authorization decisions. We know we can
count on you and your staff to give RCRA authorization careful
attention so that we can all be proud of our accomplishments and
maintain a track record that withstands careful public and
Congressional scrutiny.
cc: Hazardous Waste Management Division Directors, Region I-X
Regional Counsels, Regions I-X
Sylvia Lowrance, OSW
Bruce Diamond, OWPE
Lisa Friedman, OGC
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9542 - INTERIM
AUTHORIZATION
Part 271 SubpartB
ATKl/l 104/63 kp
-------
9542.1980(01)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
OCT
PIG-80-3
MEMORANDUM
SUBJECT*
FROM:
Requirement That State-Permitted Hazardous
Waste Facilities Have "Interim Status"
Steffen W. plehn
Deputy Assistant
for Solid Waste (
TO:
R. Sarah Compton ft
Deputy Assistant Administrate;
for Water Enforcement (EN-335)
PIGS Addressees
ISSUE.
If a State agency in a State with Phase I authorization
issues a facility permit after November 19 , 1980 but the
State program Has not been authorized for Phase II
interim authorization: •
a) Does the* facility have interim status?
. %
• b) If the facility does not have interim status,
can it begin operation?
DISCUSSION/DECISION
a) For a f ability to obtain interim status it must
meet three requirements jsjt^t^e&^£«cs£aB JpOJSUe) of
RCRA. These aret
The facility must have been. ."i& existence11 on
the date of^nactnewfe^f R£RA> Jbcteqber -iV, 1976),
or on the da-te ej^cistied .b^j-an^ ajroejjdme nta
passed by Gang«e«ST. and
The facility
tion
and
iwwi.j3GpBJi.ired
The
under Section- 3005 ( a) .
for a
r«quir«d
-------
- 2 -
If a .facility meets all three of these requirements, it
has interim status for the purposes of RCRA until a RCRA
permit has been issued or denied by EPA or a State authorized
for Phase II*
b) Assuming that a facility does not qualify for interim
status and has not been issued a RCRA permit, facility
construction and operation are precluded until a RCRA permit
is issued. Because EPA is not authorizing State permit
programs during Phase I interim authorization, a facility
permit issued by a State with Phase I authorization is not a
RCRA permit. For the same reason, Phase I authorization of
a State program does not suspend the RCRA Section 3005 require-
ment that in order to operate lawfully a facility must have
a RCRA permit or interim status. Because neither EPA nor
any States will be issuing RCRA permits during Phase I, only
facilities with interim status may operate during .that period.
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9542.1980(02)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OCI Sibeu
PIG-80-2
MEMORANDUM
SUBJECTS Interim Authorization of Programs Based on
Emergency state Regulations
FROM: Steffen W. Plehn
Deputy Assistant
for Solid Waste (WB
R. Sarah Compton
Deputy Assistant Aaministratibr
for Water Enforcement (EN-335)
TOt • PIGS Addressees
ISSUE
Can States use emergency regulations to obtain interim
authorization?.
DISCUSSION
••
In order to Qualify for interim authorization a State
must have a hazardous waste statute and regulations that
meet minimum Federal requirements. In some cases when a
State promulgates final regulations they are subject to
State administrative review. Such a review process may be
time-consuming and delay .the State ' s receipt of Phase I
interim authorization. .Many states have authority to enact
emergency regulations which postpone this State administrative
review.
•
\
A major drawback of authorizing State programs based
upon emergency regulations is the possibility that the regu-
lations may expire before final regulations are enacted. A
State hazardous waste program without regulations obviously
would not comply with minimum Federal requirements, and
interim authorization would be subject to withdrawal under
section 123.136. However, EPA could not administer a Federal
program in the State until the State voluntarily returned
the program to EPA or the extensive withdrawal procedures
under section 123. 15 (b) were completed. Theoretically, this
could result in a void during which no State or Federal
regulations would be in force in the State.
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In addition to the possibility that the emergency regulations
would expire prior to the effective date of the final regulations,
EPA is also concerned that the State's final regulations might be
inadequate. The withdrawal procedures of 40 CFR 123.15(b) would
apply in either case. However, the Agency wants to eliminate any
possible gap in regulatory control and address in advance questions
regarding reversion of the program in both of these situations.
Therefore/ it is necessary that the Memorandum of Agreement
(MOA) describe the process whereby the State would immediately
and voluntarily return the program to EPA. The Federal regulations
provide for such a reversion process at 40 CFR 123.15(a):
"... or in such other manner as may be agreed upon with the
Administrator." The State must also agree to submit its final
regulations for review of adequacy at the time it applies for
Phase II authorization.
DECISION
Recognizing both the advantages and disadvantages of allowing
a State to use emergency regulations to qualify for interim
authorization, EPA has decided to allow a State to use emergency
regulations, provided the State meets certain conditions.
EPA will grant Phase I interim authorization to a State
whose program under emergency regulations is substantially
equivalent to the Federal program if, in addition, the following
conditions are, met:
1) The State must show that under its normal administrative
procedures it will be able to enact final regulations
which wftl take effect before the emergency regulations
expire;
2) The MOA must provide that the State will submit its
final regulations to EPA for review at the time the
State applies for Phase II interim authorization; and
3) The MOA must describe the process by which the State will
immediately and voluntarily return the program to EPA in
the event that the emergency regulations expire prior to
the effective date of the final regulations.
Emergency regulations will not be an eligible basis for
issuance of final authorization.
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9542.1980(03)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
I?
OFFICE OF WATER
WASTE MANAGEMENT
PIG-81-1
MEMORANDUM
SUBJECT:
FROM?
TO:
Issues
The Use of State Permitting Systems During
Phase I Interim Authorization Which are not
Based on Explicit Regulatory Standards.
Steffen W. Plehn
Deputy Assistant Administrator
for Solid Waste (Wft-562;
jf
R. Sarah Compton 7?
Deputy Assistant Administrator'
for Water Enforcement (EN-335)
PIGS Addressees
Can a State program be considered substantially equivalent
to the Federal Phase I hazardous waste program if the State con-
trols hazardous waste management facilities through a permitting
system which is not based on explicit regulatory standards?
Discussion*
This issue is not concerned with the authorization of
States to issue/revoke RCRA permits, as is provided in §3005.
Such authorization will not be available to States until the
Phase II regulations are effective. During Phase I of interim
authorization. Federal interim status standards or their
State analogues apply to existing facilities. Some States
with Phase I interim authorization may elect to apply their
version of Federal interim status standards by issuing per-
mits containing conditions analogous to the Federal interim
status standards. This approach is perfectly acceptable.
However, a permit containing those standards is not a RCRA
permit and does not relieve the facility owner/operator
holding it of the obligation to apply for and receive a RCRA
permit after the effective date of Phase II.
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In those States which deal with hazardous waste only through
a permitting -system, the Agency is concerned with the substance
of the permit conditions. These permit conditions (along with
compliance monitoring) will be the Key elements which determine
the success of a State program. The ideal situation exists when
permit conditions are based on explicit regulatory standards which
are substantially equivalent to the Federal interim status standards.
This situation has the advantage of minimizing the potential for
litigation by permittees who disagree with the permit conditions
and provides a sound enforcement position. Some States, however,
base their hazardous waste permit conditions on policy or guidance
rather than on explicit standards established via regulation. Such
a State program may require additional scrutiny by EPA prior to
making a decision on whether to grant interim authorization.
Decision;
A State program may be issued interim authorization for Phase
I even if it controls hazardous waste facilities through a permit-
ting system which is not based on explicit regulatory standards. In
determining whether the State's facility controls are substantially
equivalent to the Federal program, the considerations discussed
below must be examined.
The State's program description must delineate the conditions
that will be used in all permits and must demonstrate that these
conditions are substantially equivalent to the Federal interim
status standards.
The State must have the legal authority to apply these permit
conditions and to enforce compliance with the conditions. The
State Attorney General must indicate in his or her statement
(as part of the application) that such legal authority does exist.
Furthermore, the Memorandum of Agreement (MOA) must provide
that all permit conditions delineated in the program description
will be incorporated into all permits prior to the date of interim
authorization. The MOA must state that permits will not be re-
issued or modified unless as re-issued or modified they are sub-
stantially equivalent with the Federal interim status standards. The
MOA must .certify that the permits will be modified, if necessary,
because of modification* in the Federal regulations, within one year
of the date of promulgation of the new Federal regulation. In cases
where a State statutory amendment or enactment is required to reflect
changes in the Federal regulations, the MOA must provide that the
permits will be modified within two years, as provided by 40 C.F.R.
§123.13(e) (45 PR 33463). The MOA must also specify that all haz-
ardous waste management activities without a permit are prohibited.
Authority for such prohibition must be indicated in the Attorney
General's Statement.
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9542.1980(04)
- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D,C. 20460
.. PIG-81-4
MEMORANDUM
SUBJECTS "Delisting." of Wastes by Authorized States
FROM i Steffen W. Plehn
Deputy Assistant "Aaia&trator
for Solid Waste (WE-1962)
R. Sarah Compton :. ... . ; .•••.-
Deputy Assistant Administrator
for Water Enforcement (EN-335)
TO: PIGS Addressees
ISSUE »
Can a State with an authorized hazardous waste management
program be allowed to exempt ("delist") hazardous waste from
individual sites?
DISCUSSION t
EPA has provided certain standards and procedures for
"delisting" waste from a particular generating facility or storage,
treatment, or disposal facility at which a hazardous waste is
generated (see 40 CFR 260.20 and 260.22, 45 FR 33076, and preamble
discussion at 45 PR 33116). Persons seeking such a delisting
action may petition the Administrator of EPA for an amendment to
the Federal regulations which would provide the exemption. In the
petition, the person must show that the waste is fundamentally
different than that listed by demonstrating, as appropriate, that the
waste does noti
(1) exhibit the characteristic of ignitability,
corrosivity, reactivity, or toxicity,
(2) meet the criteria for listing the waste as acutely
hazardous (i.e., the oral or dermal LD50 or
inhalation LC50 specified in 40 CFR 261.11(a) (2) ,
45 FR 33121) and also does not meet the toxicity
criterion,
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(3) contain the hazardous constituent of Appendix VIII
of 40 CPR 261 (45 FR 33312) for which it was listed,
or, if the waste does contain those constituents,
show that consideration of other factors argue against
the waste being considered a hazardous waste (see
40 CPR 261.11(a)(3), 45 PR 33121). This decision
is based on consideration of any of approximately ten
factors and is a discretionary one.
When a State program has been found to be substantially
equivalent to the Federal program, it receives interim
authorization to operate in lieu of the Federal program; i.e.,
Federal requirements generally no longer apply, and the "requirements)
of this subtitle" which are enforced under section 3008 of the
Act are those of the State program approved under section 3006.
Therefore, action by EPA to . ist a waste from * particular
generating facility (or storage, treatment, or disposal facility
which generates hazardous waste) in a State with interim authorization
would not affect the State requirements unless the State took a
similar action.
Son* concern exists regarding the potential incompatibility
inherent in allowing one State to delist, whereas another State
may desire not to delist. This problem is not unique to the
issue of delisting, since the latter State program may be viewed
as a "more stringent" one (because it regulates more wastes) and
is acceptable under section 3009 of RCRA. (See the preamble to
40 CPR Part 123, Subparts B and ?. 45 PR 33385.)
The question here is whether a State program with interim
authorization can provide a delisting mechanism. If so, what shape
and form must that mechanism take if EPA is to authorize the State
program as "substantially equivalent" to the Federal program?
In the regulations under 40 CPR Part. 123, EPA is silent on
the issue- of State delisting mechanisms. A State without such
a mechanism is not precluded from receiving interim authorization.
The universe of wastes controlled by such a State would be subject
to change only through regulatory or statutory change.
For interim authorization, EPA requires the States to
control a universe of hazardous waste generated, treated,
stored, and disposed of in the State which is nearly identical
to that which would b« controlled by the Federal program under
40 CPR Part 261 (see 40 CPR 123.128(a), 45 PR 33481). A State can
demonstrate that its program contains a delisting provision which,
nevertheless, leaves the State universe nearly identical to EPA'a.
On the other hand, if the State's delisting mechanism lacked explicit
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standards.and procedures analogous to those included in EPA's
delisting mechanism, it would be difficult for EPA to assure
that the State was providing the proper control of wastes.
It is possible- that a State, as a result of its delisting,
may decrease its universe of wastes such that its coverage is no
longer nearly identical to the Federal universe. For example, a
question has arisen as to what would happen if an interim authorized
State abused its discretion in delisting wastes from individual
sites, but EPA, operating the Federal program in one or more
States into which those wastes were imported, refused to delist
the wastes from those sites. This would clearly be a situation
where the State would be subject to withdrawal of EPA's authorization
for failure to exercise control over activities required, to be
regulated (40 CPR 123.136 and 40 CFR 123.14(a)(2)(i)).
DECISIONt State programs with delisting mechanisms may receive
interinTauthorization provided those delisting mechanisms are
substantially equivalent to EPA1 s. In order to be considered
substantially equivalent, the State must demonstrate that the
delisting methodology is consistent with its methodology for
listing. The Memorandum of Agreement must contain a provision
that the State will keep EPA fully informed of any State delisting
activities and should malce clear the possibility of withdrawal
of authorization in the event that, due to delistings, the State's
universe of wastes is no longer nearly identical to EPA'3.
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9542.1980(05)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
~ WASHINGTON. O.C. 20460
MEMORANDUM
PIG-81- 6
I 4 1380
SUBJECT: State Regulation of Federal Agencies for
Purposes of Interim Authorization
FROMt Steffen W. Plehn ^/^JI*-^ \Sj9- -
Deputy Assistant Administrator
for Solid Waste (WH-362)
R. Sarah Compton
Deputy Assistant Administrator
for Water Enforcement (EN-335)
TO: PIGS Addressees
ISSUE
Must States have independent statutory and regulatory con-
trol over Federal facilities and Federal agencies in order to
qualify for interim authorization?• *
DISCUSSION
I. Introduction
Some States appear to exclude Federal agencies from their
regulated community/ thereby not requiring Federal agencies to
comply with State requirements placed on generators and transporters
of hazardous waste and on owners and operators of hazardous
waste management facilities. Generally, the apparent exclusion is
not explicit. Rather, Federal agencies are, as a group, not
specifically identified in the State's definition of the regulated
community. • ^
Approximately 700 Federal installations have notified EPA that
they are engaged in hazardous waste activities. Ground-water
contamination from two Federal facilities was cited by the
U.S. House of Representatives (Bouse of Respresentatives Report
#94-1491, 1976) as part of the hazardous waste management problem
which required Federal action through the Resource Conservation
and Recovery Act of 1976.
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-2-
The purpose of this Program Implementation Guidance memorandum
is to indicate whether a State must have statutory and regulatory
authority for hazardous waste management over Federal agencies in
order to qualify for Interim Authorization, pursuant to 40 CFR
123 Subpart T.
II. Definition of a Federal agency
Federal agency is defined in RCRA $1004 (4) and in 40 CFR
260.10(a)(22). Federal agency means "any department, agency, or
other instrumentality of the Federal Government, any independent
agency or establishment of the Federal Government including any
Government Corporation, and the Government Printing Office".
As used in this memorandum, "Federal facilities" are any facilities
owned or operated by any "Federal agency".
III. What Federal requirements exist over Federal agencies?
Subtitle F of RCRA establishes Federal responsibilities for
solid and hazardous waste management. RCRA $6001 states that each
Federal agency shall be subject to, and comply with, the samo sub-
stantive and procedural requirements for hazardous waste management
that are imposed on other persons by Federal, State, and local
governments, when that Federal agency is engaged in activities
which result, or which may result, in the disposal or management
of solid or hazardous waste.
Executive Order 12088 directs Executive agencies to comply
with the Solid Waste Disposal Act, as amended by RCRA (42 O.S.C.
6901 et seq). Section 1-302 directs the EPA Administrator or his
agent to conduct inspections, as necessary, to monitor compliance
by Executive agencies. Section 1-601 establishes that the Admini-
strator or an appropriate State agency can notify an Executive
agency of its violation of an applicable pollution control standard,
and approve a compliance plan and schedule. This procedure is in
addition to the other applicable statutory enforcement procedures
and sanctions.
17. What controls must States have over Federal agencies to qualify
for Interim Authorization?
\
A. Universe of Wastes
The Federal regulation at 40 CFR 123.128(a) requires that a
State program control a universe of hazardous waste generated,
treated, stored, and disposed of in the State which is nearly
identical to that which would be controlled by the Federal program
under 40 CPR Part 261. The "nearly identical" test is discussed
in the RCRA State Interim Authorization Guidance Manual (EPA,
1980, pp. 3.1-1,2). The test for substantial equivalence is based
on the generic nature of the waste, not on the nature of ownership
(e.g. Federal) of the generating facility or the waste.
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B. Generators, Transporters and Facilities
The Federal regulation at 40 CFR 123 . 128(b) ( 2 ) requires that
a State program regulate all generators located in the State. The
regulations at 40 CFR 123 .128(b) (3 ) through (8) require that the
State regulate generators in a manner substantially equivalent to
the procedural and substantive requirements of 40 CFR 262. Parallel
requirements for State programs concerning transporters of hazardous
waste are established in 40 CFR 123.128(c). The Federal regulation
at 40 CFR 123. 128 (e) requires that State programs enforce facility
standards which are substantially equivalent to 40 CFR 265, and
that State law prohibit the operation of facilities not in compliance
with such standards. 40 CFR Part 123, Subpart F indicates that
States are to exercise regulatory control over all generators,
transporters, and owners/operators of facilities managing hazardous
wastes.
C. State Controls
There is no provision in 40 CFR Part 123, Subpart F that
States may exempt from their regulated community those wastes or
waste management activities involving Federal agencies. Consequently,
in order to be substantially equivalent to the Federal program, a
State program must exercise authority over Federal agencies involved
in hazardous waste management.
DECISION
For purposes of interim authorization, a State must
demonstrate, through its Attorney General's Statement and
Program Description, that it controls Federal agencies in
the manner required by 40 CFR §123.128.
When State lav and regulations explicity include Federal
agencies in the State's regulated community, the issue is
not in controversy, and the Attorney General's demonstration
would b« straightforward. This would be the case where a State's
definition of "person" (i.e., those who are subject to the
regulatory requirements for hazardous waste management established
in the State Program) explicitly includes Federal agencies.
When Federal agencies are not explicitly included in (or
excluded from) th» State's regulated community (i.e.. State
statutes and regulations are silent on whether Federal agencies
are regulated), **• Attorney General's Statement must explain
H*il«-t« f™. »>j^af «».•«• p««^^ion of ^jurisdiction over them.
explanation ""-* >*• baaed on th« S±»±m< m overall
'and regula-torvframeworjc. The State Attorney General can cito
"RCRA §6001 and Executive Order 12088 to demonstrate Congressional
and Executive intent that Federal agencies comply with State
Program requirements. However, these citations do not independently
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provide the State with jurisdiction over Federal agencies.
In addition, when Federal agencies are not explicity included
in the regulated community, the1 State must also indicate in
its Program Description that it will regulate Federal aoeMJaa
'in the manner described by 40 CFR §123.1287
I If a State Attorney General's Statement indicates that the
/ State cannot control Federal agencies, interim authorization
j^, cannot be granted.
In defining their regulated community, States should be
encouraged to explicitly include Federal agencies, in order
to qualify for final authorization.
Attachment - Executive Order 12088
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9542.1981(01)
UNITID STATES ENVRC1 :' '~AL '"CTilTlCN AGENCY
OFFICE or WATER
AND WASTC MANACCMCNT
PIG-81-11
MEMORANDUM
SUBJECT: Involvement of States without Phase II
Interim Authorization in. RCRA Permitting
FROM: Steffen W. Plehn ^C*'j;l^ W
Deouty Assistant Administrator
for Solid Waste (WH-^'62)
TO:
R. Sarah Compton
Deputy Assistant Aomir.istatbr
for Water Enforcener.i (EN-335)
PIGs Addressees
ISSUE
Bow should States without i-
Phase II be involved in RCRA per-
DISCUSSION
leriai authorization for
itting?
An you know, the recent prcrr.ulgations of Phase II
facility standards^ under Part 264 and permitting requirements
under Part 122 enable States to receive Phase II interim
authorization for issuing RCRA permits- to the following
categories of facilities!
* use and management of containers;
* storage and treatment of hazardous wastes in tanks,
surface impoundments, and waste piles; and
* treatment of waste in in:iterators.
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In addition, EPA has published interim final regulations •
(Part 267) which, for a period of 13 months, will allow £?;;
to issue permits to new land disposal facilities pending
promulgation of the final land disposal regulations. States
may not receive interim authorization for permitting land
disposal facilities at this time, since the Part 267 regulations
only provide temporary standards which will not suffice for
determinations of substantial equivalence.
Although States may now apply for Phase II interim
authorization for permitting certain facilities, some
States may not cheers• to do so in 1981. Some States may
postpone their Phase II application until the final Federal
land disposal regulations are promulgated later this year or
in 1982. Also, State preparation of Phase II applications
may take longer than Phase I applications, due to the complexity
of the technical facility standards and the financial.responsi-
bility requirements. Some States may need to adopt or amend
legislation and regulations to obtain substantially equivalent
authority in these areas and may need to add additional
personnel to administer the permitting program.
Given this situation, the Federal permit process
must be implemented in a way which maximizes the use of State
resources and technical capabilities and avoids inefficient
and confusing duplication with State programs. Therefore,
EPA must work closely with State permitting programs, especially
those programs which appear to be moving in a timely manner
toward Phase II interim authorization.
DECISION
EPA Regional Offices must seeV the active involvement
of State programs in the conduct of RCRA permitting during
the period before a State receives Phase II interim authori-
zation. This policy will provide for the most efficient use
of EPA" and State permitting resources and technical expertise,
reduce confusion and paperwork burdens for the regulated
community and the public, and ease the transition toward
State administration of the RCRA permit program in lieu of
EPA* While EPA retnlnJi authority and responsibility for
RCRA permitting until a State receives Phase II authorization,
EPA must cooperate with the States as closely as possible in
the implementation of this responsibility.
State involvement prior to Phase II interim authorization
should take several forms:
* States should assist Regional Offices in the development
of permitting priorities and in initial contacts with potential
permittees, based on their own priorities and their knowledge of
local conditions.
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• -States should review psrr.it applications, shire
information- from their files, assist EPA in obtaining
additional information (inducing size visits) ar.d help
prepare technical analyses and support documents.
* States should assist in developing permit conditions
and should comment on draft and final permits.
* Where unauthorized States must issue permits under
State law, they should participate with EPA in joint permit
issuance procedures (e.g., joint public notice, public
hearings, response to comments).
These and other Federal-State working relationships should
be .formalized in writing through an amendment to a Cooperative
Arrangement, a Phase I Memorandum of Agreement, or a Subtitle C
grant work program. Through these mechanisms, the State can
agree to perform specified tasks, for which it has legal authority
and can be funded by EPA to perform those tasks.
CPA can also support State involvement in the permit
process through funding of State travel by the Peer Matching
program. State access to EPA contractors, and participation
of State personnel in RCRA training. We encourage Regional
Offices to be aggressive in securing State involvement as we
move toward the issuance of the first RCRA permits.
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9542.1931(02)
^ UNITED STATES ENVIRONMENTAL ."CTEZTiCN AGENCY
'" ' WASHINGTON. D.C. 23.160
MEMORANDUM •>--..--- io31 PIG-81-10
SUBJECT: Transfer of Notification and Permit Application
Information _to-States
FROM: >St«ffen W. Piehn
/ Deputy Assistant Administrator
for Solid Waste (WH-562)
R. Sarah Compton
Deputy Assistant Aministrato
for Water Enforcement and Permits (EN-335)
TO: PIGS Addressees
ISSUE;
When should EPA transfer information from both the notification
forms and the Part A's of the RCRA permit applications, to th«
States? In what format should EPA transfer this information?
How can the States assist EPA to review and process this
information?
«
DECISION:
(1) Until EPA authorizes a State for Phase II Interim Authori-
zation to carry out a permit program in lieu of the Federal
permit program (or. authorizes a component of Phase II), E2A
is responsible for reviewing «»* TgVnowl•doing BgPA pf "•**""
<
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(2) EPA Headquarters is providing Sta<;e solid and hazardous
waste management agencies with copj.es of the Agency's notifi-
cation report which presents a compilation of information that
was received and processed between May 19, 1980 and November 19,
1980. The report includes the names and addresses of notifiers
in each State and a listing of the hazardous waste(s) they handle.
EPA will provide supplements of this report to State agencies
as new notification information is received and processed.
(3) Subject to confidentiality constraints, EPA will also ahara
all Part A permit_apolf <•?»»
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will aend an initial acknowledgment to applicants when they
meet all of these three conditions. The purpose of this
acknowledgment is to inform the applicant that a preliminary
review of the information he provided indicates that he
appears to satisfy the statutory requirements for interim
status. EPA will not load any data into the computer data
base during this initial review except to "flag" the data
base to indicate those facilities for which EPA has sent an
acknowl edgment.
During round two of the review process EPA will conduct
a .more detailed review of the permit application. The purposes
of this round are (1) to attempt to verify that the facility
needs a RCRA permit; (2) to acknowledge the processes which
the facility is allowed to use and the wastes which the
facility is allowed to handle during interim status; and (3)
to check that the remainder of the information items required
in Part A of the application, such as the map, photographs*
and sketch have been provided. In the round two review, EPA
(using State assistance wherever possible) will resolve
errors and inconsistencies in information items by communicating
with the applicant. When EPA has verified that certain key
items are correct, the data on the application will be loaded
into the computer data base, and a second acknowledgment
will b« sent to the applicant. This acknowledgment will
include a list of the wastes which may be handled during
interim status and the processes to which the interim status
applies (based on the owner/operator's Part A application).
EPA and State responsibilities
There has been some confusion as to what role the States
can play in reviewing and acknowledging permit applications.
Until a State receives Phase II Inte*-^ &M».'hrt^<^n»fon to carry
out a permit program in lieu of the Federal permit program "*
(of part, of a program, i.e., a component of Phase II)*,_E£A
is responsible for reviewing and acknowledging all permit
"applications, including determining who appears to quality
Tor interim status1, and acknowledging tne processes tney may
THe and tne wastes th«y may handle during TFm ^J^11*- T*flJ.""
•peiModTStates with only Fnase I Interim Authorization are
not authorized to carry out a RCRA permit program and cannot
assum« responsibility for these functions (although they
can assist EPA in this area). EPA is also responsible for
these activities for those facilities not covered in a State's
authorization for a component of Phase II**.
•Do not confuse Phase I and Phase II of Interim Authorization
with the two rounds of Part A permit application processing.
**When a State receives interim authorization for one or more
components of Phase II, the issue of whether a facility (covered
by a component handled by the State) qualifies for interim status
is moot because State, rather than Federal requirements, then apply
-3-
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Therefore, EPA is responsible for completing the review of
Part A of the permijt apoLLgi'U.i.ons^a.nd^far sending out-
Ledcimenta^TEPA must therefore retain the originals of ai
•noti-icatoon forms and Part A's of the permit applications
which the Agency has received*.
—' EPA encourages and welcomes States to assist the Agency in
reviewing and acknowledging applications, particularly for the
round two reviews. This State involvement has a number of
advantages: (1) it will give the States an opportunity to
become familiar with the information which applicants have
submitted: (2) the extra resources will help EPA expedite the
review and acknowledgment of applications; and (3) the States can
provide useful, and sometimes crucial information about certain
facilities of which EPA may not be aware.
State information needs and specific provisions for EPA to
provide States with information
The information EPA received in the notification forms
and in the Part A's of the applications can be useful to the
States in various ways. Some examples are:
(1) to evaluate the scope of State regulatory coverage
and to determine if State control of hazardous waste is
"substantially equivalent" to Federal control,
(2) to calculate resource needs for conducting a State
hazardous waste permit program, for conducting surveillance
and enforcement activities, and for providing technical
assistance,
(3) as a potential source of data for revisions to grant
regulations,
(4) to assist States with interim authorization in preparing
reports to EPA,
(S) as input for developing a strategy for siting hazardous
waste facilities,
(6) to assist States with hazardous waste permit programs
to identify facilities which may need a State permit but have
not applied for on*. (Likewise, State permit files will also
be useful to EPA).
•Mote that this continues to be important even after a State
receives interim authorization for one or more components of
Phase II, because if a State program reverts to EPA during
Phase II or at the end of the interim authorization period,
facilities without RCRA permits will again need interim status
in order to be able to operate lawfully.
-4-
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(7) to assist States with notification requirements to
identify non-notifiers.
(8) to assist State inspectors in conducting facility
inspections.
Both the "RCRA State Interim Authorization Guidance Manual",
issued June 25, 1980, and the "Additional Guidance for Cooperative
Arrangements under Subtitle C of RCRA", issued August 5, 1980,
provide that States may obtain notification and permit application
information. Specifically, the guidance for interim authorization
indicates that EPA will furnish to States with interim authoriza-
tion copies of notification forms and permit applications within
30 days after the Memorandum of Agreement is signed. The guidance
for cooperative arrangements does not specify that EPA will
furnish notification and permit application information to the
States. However, under cooperative arrangements, the States
are encouraged to assist EPA in identifying and contacting non-
notifiers and to make recommendations to EPA concerning the
review of applications. In order to make this process work/
the Agency will have to provide the States with some notification
and Part A information, consistent, of course, with the confident-
iality provisions in 40 CFR Part 2.
Assessing individual State information needs and formats
for transferring information
..EPA Headquarters will sand each State solid and hazardous
waste management office copies of EPA's summary report contain-
ing notification information received during the period of
May 19, 1980, to November 19, 1980*. The report contains the
following item* of information on hazardous waste facilities:
the name and location of the facility; the type of activity(ies)
(i.e., generate, transport, treat, store, or dispose of hazardous
waste); a listing of the hazardous waste(s) which the facility
handles; the name of the owner of the facility; whether or not
the facility is Federally or privately owned; and whether or
not there is ••an underground injection well located at the
facility. The report has ten volumes; one volume for each of
EPA's ten regions. Each volume contains a State-by-State list-
ing of notifiers. The Agency will routinely send State Agencies
supplements to this report as new notification information is
received and processed.
While EPA intends to share fully with the States all permit
application information, transferring this information requires
a significant resource commitment, and if not done carefully
can result in the States being inundated with information which
has not been verified and therefore may be of little use to the
State. We recommend that Regional Offices and States work
together and carefully assess what specific pieces of Part A
-5-
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application data the individual States need to run their program
and to assist EPA, and when that data is needed. For example,
a State with Phase I interim authorization may need to know
early on who has applied for a Federal permit and who has received
a round one acknowledgement. The State may have no immediate use
for information about the processes or wastes described in the
application, except on a case by case basis. In this example,
it would make little sense for EPA to spend time copying Part A
forms in order to provide the State with the information.
instead, as EPA completes the round one reviews for facilities
in the State, it would be better for the Agency to provide the
State with computer printouts containing the names and addresses
of all facilities EPA considers to have interim status. This
approach would provide the State with much of the information
it needs, save EPA a considerable amount of time in copying forms,
and eliminate the possibility of the State clogging its files
with superfluous information which may be inaccurate since it
has not been reviewed by the Agency.
A number of notifiers and applicants have submitted claims
of confidentiality for their information. EPA will transfer
to the States information covered by these claims only in
accordance with the provisions of 40 CFR Part 2.
-6-
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. Z0460
Hay 25, 1982
Of
SOUO WACTI AND CMfROENCY HU^ONSI
PIG-82-4
MEMORANDUM
SUBJECT: State and EPA Interaction Regarding Exclusion
of Vaates Generated at Individual Facilities
("Delisting")
?ROM: Rita M. Lavelle
Assistant Administrator (WH-562-A)
TO: Program. Implementation G-uidance Addressees
ISSUE;
What are the roles of EPA and the State with respect •
to exclusions granted to individual facilities ("delisting")
in States vith Interia Authorization?
DI3CTJ5SIOS; '
»
Previously issued Program Implementation Guidance (number
81-4) indicated that State programs vhich provide for the
delisting of waste from individual facilities could receive
Interia Authorization (IA) vhere the States' procedures were
substantially equivalent to the Federal program. That Guidance
also indicated that the Memorandum of Agreement (MOA) between
the Regional Office and tht authorized State must provide
that the State wiH keep SPA-fully informed of any State
delisting activities. ,The MOA is also to clearly indicate
that if delisting action causes the State program to no
longer be substantially equivalent to EPA1a, the Agency may
begin proceedings to withdraw the State's authorization
(40 CFR 123.136).
The purpose of this memorandum is to provide guidance
regarding State/Federal delisting activities in States with
Interim Authorization. More specifically, this Guidance will
describe delisting assistance which SPA will provide, define
the roles and responsibilities of the various State and EPA
offices in delisting, and discuss coordination among these
offices.
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- 2 -
A. Authorized State's Role in Conducting Delisting
Activities
Except as provided below, IA States which have the
(State) legal authority to delist are solely responsible for
the delisting of wastes in their States for purposes of State
regulation. As resources allow, EPA will provide assistance
to the States on request.
Federal delisting in an IA State would have no effect
on the State's own regulatory control program and, therefore,
could be a duplication of effort without any benefit. Thus,
if the Office of Solid Waste (OSW) receives a delisting
petition pertaining to a facility in a State with Interim
Authorization, OSW will contact the petitioner and inform
him that the State, rather than EPA, manages the hazardous
waste program in the State and that Federal delisting may be
unnecessary. It should be noted that, while the effect of
Federal delisting is to exclude the facility's waste from
Federal regulatory control, the State's regulatory control
is not affected by the Federal delisting. (Thus, a waste
delisted by EPA could still be a hazardous waste for State
purposes when managed within the State. )„.•
However, EPA delisting in IA States will be conducted
if: (1) the facility's waste may be managed in a way which
would bring the waste under Federal jurisdiction (e.g., the
waste is transported across State boundaries) or (2) if the
facility owner/operator specifically requests EPA to process
his petition (e.g,, the facility may. want the option of
shipping the wastes out-of-state in the future).' Before •
OSW initiates processing of the petition/ the appropriate
Regional Office will be informed of the upcoming action;
the Regional Office will be expected to then inform the
State. The appropriate Regional Office will also be informed
of OSW's decision on whether to grant or deny the petition
before OSW informs the petitioner; the Regional Office should
than inform the State.
\
8. EPA Role in IA States' Delisting Programs
Generally, EPA's role is one of oversight to provide that
tho State's program continues to be substantially equivalent
to the Federal program. In son* States an expanded EPA role
may exist by virtue of special provisions in the MOA.
As discussed in previous Guidance (number 81-4), the
MOA is to provide that the State will keep EPA fully informed
of any State delisting activities. This will provide EPA
with the opportunity to review State delistings. EPA's
review function is especially relevant where categorization
of a waste is not clearly defined. In order to facilitate
this review function, this Guidance clearly defines
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responsibilities of the various offices. Where appropriate,
the Regions should consider amending existing MOA's to define
specific responsibilities.
C. State and EPA Responsibilities
State Responsibilities
1. Authorized States should promptly notify the Regional
Office of all "delisting" petitions received.
2. Authorized States must submit copies of all petitions,
supplements to these petitions and decisions made (e.g.,
memoranda and letters imparting the State's position to the
petitioner) to the Regional Office on a semi-annual (or more
frequent, if desired) basis.
Regional Office Responsibilities
3. When the Regional Office receives notice from OSW of
receipt of a Federal delisting petition (see item 6 below)
it is expected to immediately inform the State and clearly
offer and make arrangements for the State to comment on the
petition before the Office of Solid Waste makes a determination
to grant (temporarily or finally) or deny the petition. In
particular, the State should be offered the opportunity to
comment early on any deficiency of information in the petition
to assist the Office of Solid Waste in requesting additional
information from the petitioner which is necessary in many cases.
Because EPA's delisting process is a rulemaking procedure
(resulting in an amendment to 40 CFR Part 261, if a delisting
petition is granted), we cannot offer a State a participatory
role in delisting determinations. However, because a State
has a genuine interest in assuring that EPA's delisting
determinations are made on accurate and complete information
and because a State may have or know about information relevant
to a petition, OSW,^ through the Regional Office, should assure
that the States (both IA and other States) have a timely
opportunity to comment on petitions received a:«d being
processed by OSW. State comments forwarded to OSW by the
Regional Office will be maintained in the docket (along with
all other comments) and be available for public inspection
and copying during normal business hours.
4. The Regional Office will advise the State of the Agency's
comments on the State delisting actions. As resources allow,
OSW will be available to support the Regional Offices (at their
request) in the review of and comment on State delisting actions.
5. Pursuant to 40 CFR 123.136, the Regional Administrator
may begin proceedings to withdraw authorization of the State's
hazardous waste program if the Regional Administrator determines
that the State's delistings have rendered its program less than
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- 4 -
substantially equivalent to the Federal program.
Office of Solid Waste Responsibilities
6. On receipt of a delisting package from a petitioner, OSW
will notify the appropriate Regional Office, which in turn, will
be expected to notify and solicit State input and relay it to
OSW (see item 3, above).
7. On receipt of a State delisting package (e.g., petitions,
supplements to petitions and a State's decisions on petitions)
from the Region (see item 4, above), OSW will review the
package and notify the Regional Office by memorandum of its
agreement or disagreement (including pertinent reasons) with
the State's decisions.
In their MOA's, some IA States have provided for prior
EPA concurrence with the State delisting decision. In these
instances, OSW will continue to evaluate petitions submitted
to EPA but will work closely with the Region and State in order
to reach a joint decision on whether or not to grant the delist-
ing. Thus, if OSW receives a petition from a facility in a
State which requires Federal concurrence with the State's
delisting decision, OSW will contact the petitioner and inform
him that the State manages the hazardous waste, program in
that State and that Federal delisting is unnecessary, except
as noted above. OSW will then proceed to evaluate the petition,
since the State will ultimately be seeking EPA concurrence
on the State delisting decision. However, this evaluation will
not culminate in the usual Federal Register rulemaking.
DECISION:
Where the State has IA and operates a delisting program,
the State is the agency responsible for conducting the dolisting
of waste within the State for purposes of the State program.
where petitioners may manage wastes so as to bring the wastes
under Federal jurisdiction, or if petitioners specifically
request EPA to act on their petitions, OSW will continue to
evaluate and reach decisions on the.petitions. In such
case* OSW will keep the Region informed; the Region, in
turn, will keep the State informed and offer the State the
opportunity to comment on the petition to EPA. In addition,
in those States which require prior EPA concurrence with the
State's delisting decision before a particular facility's
waste is delisted, OSW will work with the Region and State
in order to reach a decision on whether or not to grant the
dolisting.
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9542.1982(02)
Federal Demisting and RCRA Permitting
in Interim Authorized Statss
Dan Derkics, Coordinator
Northern States PATs
Richard C. Eoynton, Chief
Permits Developcent Section - Region I
This ie in response to your April 28 memo (postmarked
Kay 26 and received on June 3) in which nemo you requested
Headquarters' clarification of the following:
"In a Phase I authorized state, must EPA issue
a permit to a facility handling a waste which was ~
included in both the state's and EPA'a universe of
regulated wastes at the tine of authorization, but
was subsequently excluded by EPA?"
lour question has been reviewed by several Headquarters
officials, including representatives on the Stablex PAT. The
reviewers are in general agreement that EPA does not have to
issue a permit to a facility managing a federally-excluded
or delisted waste. Reviewers from the Office of General
Counsel were careful to emphasize that the federal regulations
also dp not allow writing a federal permit for such a waste
which is no longer a hazardous waste under the Federal system.
The regulatory prohibition of 40.CFR 123.121(i)(2) applies
for purposes of RCRA permitting* even in an authorized state
which decides not to exclude or delist the waste:
"Where an approved program baa a greater scope
of coverage than required by federal law the
additional coverage la not part of the federally
approved program".
Prograa Implementation Guidances (PIGa) 82-1 and 3
provide further explanatory guidance which can be read to
address an important underlying issue raised by your question:
what effect (if any) doea a federal deliating .or exclusion]
have in an authorized e";ate? Both PIGa reaffirm the principle
of the state'a Phaar I- approved hazardous waste univerae apply*
ing (in lieu of the Federal system) for purposes of federal
permitting. PIG-R2-1 definea "the univerae of hazardoua waste
considered part of a atate'a Phase I authorized program are
those wastes Identified or Hated by both EPA and the atate".
PIG 82-3 further describes that a atate program, for purposes
of federal enforcement, la broader in acope if it includes
waetea that are in addition to those Hated in the federal
universe. Following the above-stated logic of this guidance,
the federal delisting [or exclusion] can be aeen to do two
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- 2 -
things: (~1) it reduces the federal hazardous waste universe
against which the state univer-c is cetched to determine
what part of the state's prograa is authorized, and (2) it
leaves the state program with a universe that is broader in
scope than the Federal system (unless the state also delists
or excludes wastes).
Accordingly, the federal dellsting [or exclusion] oust
automatically place the waste outside the coverage of the
RCRA program: both the federal prograa and the previously-
authorized portion of the state program"The coeplete answer
to the question in your nemo ie therefore as follows:
If a state prograa is approved and EPA (but not the
state) subsequently delists [or excludes] a waste in
the state, that waste is automatically no longer a
part of the federally-authorized state program and a
RCRA hazardous waste permit cannot be issued to a .
facility managing that waste. x
cc: John Skinner
Truett DeGeare
Susan Absher
Denise Hawkins
Dotz Darrah
Stabler PAT
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9542.1982^03)
AUG 4 1982 PIG.82.5
Of
SOLID WASTE ANO EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Status of State Permits Issued Before a State
Receives RCRA Phase II Authorization
FROM: Rita M. Lavelle . - ?
Assistant Administrator for
Solid Waste and Emergency Response (WH-562-A)
TO: Program Implementation Guidance Addressees
ISSUE
Once a state is authorized for a component of Phase II,
what is the status of hazardous waste facility permits which
the state issued prior to being authorized for the component?
an they be considered RCRA permits? What is the status of
an EPA-issued federal permit in a state authorized for a
component of Phase II?
DISCUSSION
Prior to being authorized for a component of Phase II a
state may require facilities that treat, store, or dispose of
hazardous waste to obtain a state permit. There are no pro-
visions within RCRA or the federal hazardous waste regulations
fop- desi gnati ng these pre-authorization state permits as RCRA
permits. RCRA permits can be issued only by EPA- or an autho-
rized state. Authorization requirements ensure that an autho-
rized state will be using procedures substantially equivalent
to the federal permitting procedures (state procedures must,
of course, meet the requirements of Section 7004(b) of RCRA)
and will be requiring compliance with standards providing
substantially the same degree of protection as the federal
technical standards (See 40 CFR 123.129).
Before a state is- granted Phase II authorization, five
situations are possible for a hazardous waste management facility
operating in a particular state. In all of these situations
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3CRA Section 3005(a) applies. That is, owners and operators of
facilities tha; treat, store, or dispose of hazardous waste can
legally do so only when they have a RCRA permit. Also, RCRA
Section 3005(e) applies, allowing qualified facilities to continue
to operate under federal "interim status". When the state receives
interim authorization different results occur in each of the five
situations as described below.
1) A facility has neither a sta.te permit nor a federal
«*«* . t. -. J te / U . I i . . * i . * *• * • • \
i * M A * » p* *• f In • v \ •*«««• «• w <• * i • «• t ^ i w *• ^ • «• •
«•• ••••
This situation is very straightforward. The state must
eventually issue the facility a state RCRA permit. Of
course, before the state could have obtained Phase I
interim authorization, it must have had .some mechanism
in place to apply standards substantially equivalent
to federal interim status standards to all of the hazard-
ous waste management facilities within its borders.
2) A facility has a state-issued permit but no federal
RCRA permit (but does have federal interim status)
This situation is also fairly straightforward; the state
must eventually issue a RCRA permit to the facility.
The facility can continue to operate lawfully until that
time, provided the facility will be subject to state
standards substantially equivalent to the federal
interim status standards. The timetable for reissua-nce
can be negotiated between the Regional Administrator and
the State Director and 1s to be delineated 1n the Memorandum
of Agreement and discussed in the Program Description.
Legally, the sta.te permit cannot- be considered a RCRA
permit even if the state permit was issued using standards
and procedures that were eventually authorized. However,
under these circumstances there would be very little reason
:o reissue' trie permit in the near future, and the state
could plan to reissue the permit at the end of the current
permit term or at some other convenient time.
3) A facility has a federal P.CP.A permit but does
not have a state permit
In this situation the state can assume responsibility
for the administration of the RCRA. permit if 1t has
explicit authority allowing it to directly administer
and enforce permits issued by the federal government.
As an alternative, the state can issue a RCRA permit to
the facility. Where the state issues a RCRA permit, EPA
should suggest to the federal permittee that the permittee
should agree to the termination of the federal permit.
The EPA-issued RCRA permit cannot be terminated with-
out the agreement of% the permittee unless one of the
causes for termination in 40 CFR 122.16 is present.
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4) A facility has both a federal RCRA
permit and a state permit
This situation is a combination of cases (2) and (3),
above. The state must eventually issue a state RCRA
permit to the facility or can assume responsibility to
administer the federal permit if it has the authority
to do so. The schedule for reissuance of the state
npftni't *' ^0 h* enori^»n/4itm' «* A <*<• Anm«t»+(
Since the facility has a federal RCRA permit, the urgency
for state reissuance of a stat* P.CRA permit diminishes.
This would be 'especially true if the previous state
permit was Issued using standards and procedures that
were eve^taTly authorized.
5). A facility has Identical federal RCRA and
state permits that were Issued jointly
In those situations where both permits are identical and
were issued jointly, EPA can propose its intent to con-
sider as RCRA permits the jointly-Issued or identical
state permits when the Agency announces receipt of the
state's complete Phase II application. In this last
situation, the RCRA permit can be terminated with the
agreement of the permittee (or for one of the causes
for termination 1n 40 CFR 122.16). If the RCRA permit
1s not terminated, then the facility will operate under
two identical permits.
The assumption underlying all of the above scenarios 1s-that
any EPA-issued permit continues 1n full force and effect after
Phase II authorization. EPA-issued permits continue 1n
force until terminated either unJer 40 CFR 122.lo [see 40
CFR 123.6 (b)(l), 123.126 (c)(l) and 124.5(d)] or by the
agreement of EPA and the permittee. Permittees with EPA-issued
permits thus would be subject to the requirements of 40 CFR
Pa^ts 122 and 124 until their EPA-issued permits are terminated.
The permit terms and conditions, as well as the applicable
requirements of Part 122, would be the "requirement of
this subtitle" (Subtitle C) which EPA could enforce under
Section 3008 of RCRA.
EPA would prefer not to be administering and enforcing federal
permits in authorized states. Thus, it 1s extremely desirable that
EPA and a non-authorized state coordinate their permitting activities
so that whenever possible they hold joint hearings and issue identi-
cal or nearly identical permits. Then, upon authorization, those
state permits can be considered RCRA permits. Alternatively, it
would be extremely desirable for those states that are currently
-------
making legislative OP regulatory changes to incorporate in their
legislation (o'r in their regulations, if their legislative author-
ity is.already broad enough to allow it) a provision allowing them
to summarily transform federal RCRA permits into state RCRA permits,
That is, the state would want^to be able, through some very simple
procedure, to issue state RCRA permits incorporating all the terms
and conditions of the federal permits.
i> L w * w » « >
. All facilities that treat, store, or dispose cf hazsrdeus
waste can do so legally only under a state or federal RCRA permit,
federal interim status, or a state analogue to interim status.
The only instance where a state permit that was Issued prior to
Phase II authorization can constitute a RCRA permit 1s where the
state permit was Issued jointly with and 1s Identical to a federal
RCRA permit. In such a case, when EPA receives the state's appli-
cation for Phase II, EPA should announce (as part of the Federal
Register notice of receipt of a complete Phase II application) its
intent to consider the identical, jointly-issued state permits to
.be RCRA permits and .take comment on that intention. At the time of
joint permit processing, EPA should also announce such an Intent
1f the state is one that may seek Phase II Interim authorization.
Except for the above situation where joint identical state and
federal permits occurred, all state permits, will need to be modified
or reissued by the state as RCRA permits once the state 1s author-
ized. The schedule for reissuance can be negotiated between the
state and the Region and must be delineated in the Memorandum of
Agreement and described 1n the Program Description. In those cases
where there are previously-issued federal RCRA permits, the state
may possess the authority to assume the administration of those
permits, thereby negatirg the need for issuance of a state RCRA
permit. EPA-issued RCRA permits cannot actually be terminated
without the agreement of the permittee unless one of the causes
for termination in 40 CFR 122.16 is present.
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9542.1983(01)
August 2, 1983
MEMORANDUM
SUBJECT: Changes During Interim Status in Phase II
Authorized States
FROM: John H. Skinner
Director, Office of Solid Waste (WH-562)
TO: Merrill Hohman
Director, Air and Hazardous Materials Division
Region I
In your June 13 memo to me, several issues were raised
concerning interim status changes in authorized States and the
Region's role in quality control of changes to the RCRA facility
data base. Our response to these issues is outlined below.
• Do Phase II interim authorized States make
determinations on interim status changes and
termination of interim status in lieu of EPA?
Yes, once a State has Phase II or final authorization, the
State may make determinations relating to changes and termination
of interim status. EPA may not make such determinations for
facilities covered by components for which the State is
authorized. Additional guidance on this issue can be found in
the attached copies of PIG 81-10 and John Skinner's July 20, 1981
memorandum to Region IX.
• Do Phase II interim authorized States have to agree to
utilize procedures substantially equivalent to EPA's
procedures with respect to changes during interim
status or termination of interim status? Must these
procedures be in regulation in order for the State to
qualify for Final Authorization?
State programs are not required to have an analogue to
Federal interim status in order to qualify for interim or final
authorization. A State may instead require existing facilities
to comply with such standards through permit terms and
conditions. If a State does allow continued facility operation
through an interim status analogue, the State's requirements and
This document has been retyped from the original.
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-2-
procedures must be substantially equivalent to the Federal
regulations for Phase II interim authorization. For final
authorization they must be at least as stringent as the Federal
requirements. These procedures need not be in regulation for
interim authorization, but for final authorization they must be
of a regulatory nature.
The RCRA regulations allow States to provide for continued
facility operation without a RCRA permit only if the facility
would qualify for Federal interim status. (See §§271.13(a) and
271.129(b) (2) .) In order to qualify for Federal interim status,
facilities must meet the requirements of §270.70 which requires
compliance with §270.10 regarding general permit application
requirements, including grounds for termination of interim status
(§270.10(e)(5)). Section 270.10(g)(1)(iii) incorporates §270.72
or the authorized State's analogue to §270.72, obligating
facilities to conform to specific provisions regarding changes
during interim status.
For a State with an interim status analogue, the Model
Attorney General's Statement on page 2.3-8 of the Final
Authorization Guidance Manual requires the following
certification: "State Law and regulations assure that any
facility qualifying for State interim status continues to qualify
for Federal interim status." As provided in §§271.13(a) and
271.129(b)(2), this certification ensures that facility changes
allowed by the State will conform with §§270.71 and 270.72;
otherwise, the facility would not continue to qualify for Federal
interim status. Likewise, States should terminate interim status
when a facility meets conditions under §270.73. Checklist V of
the Final Authorization Guidance Manual provides for citations to
State interim status analogues (page A-70).
The Headquarters' comment on Maine's Phase II application is
consistent with the Final Authorization Guidance Manual and the
above discussion. Since Maine has an interim status analogue,
for final authorization the State provisions for changes to
existing facilities must be no less stringent than §270.72.
Does EPA Washington expect the regions to quality
control the additions, deletions, or changes made to
the RCRA facility Data Base (Ver. IV) by authorized
States?
Yes, in order for HWDMS users to have full confidence in the
data, systems must be in place to ensure that the information is
correct. The Regional Offices should monitor the quality of
additions, deletions, or changes to the data base made by
This document has been retyped from the original.
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-3-
authorized States. Regional quality control can be accomplished
through the following activities. The Regions should assure that
State deletions of Part A data are supported by on-site
inspections of the facility. The reports of these inspections
should be verified by the Regions during the quarterly file
audits or mid-year reviews. If the inspection data is of
questionable value, joint inspections should be conducted.
Routine additions or changes to Part A information by the State
should also be verified through random file audits during the
Region's scheduled reviews of the State.
Thank you for relaying your concerns on these important
issues. If you have any further questions, please contact Bruce
Weddle at 382-4746.
Attachment
cc: Division Directors, Regions II-X
Pam Hill
This document has been retyped from the original.
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9542.1985(01)
•JNI-ED STATES ENVIRONMENTAL DOOTECTION AGENCY
;N
January 11, 1935
MEMORANDUM
SUBJECT: RCRA Reauthorization Statutory Interpretation 12 :
(Extensions of Interim Authorization of State
Hazardous^.Wrfste Programs
FROM: JSCK W. McGraw
Acting Assistant Administrator
TO: Regional Administrators
Regions I-X
The Hazardous and Solid Waste Amendments of 1984 extend
the interim authorization period to January 31, 1986. Each
Regional Administrator has extended the previous deadline
(January 26, 1985) for some States for good cause (see 40 CFR
271.122(c)). In the absence of a further extension, interim
authorization for these States' hazardous waste programs will
expire on the previously published deadlines. At that point,
reversion of the States' programs to Federal control would
be automatic.
Extensions for "good cause" were typically granted to
States which encountered unforeseen difficulty in developing
RCRA equivalent programs or encountered difficulty in sub-
mitting their applications for authorization. Any further
extensions should be granted on that basis also.
Should you decide to extend the authorization deadline
for certain States, we have attached for your reference a
sample Federal Register notice for announcing their extensions.
Where you wish to grant extensions, the notices must be
published by January 26, 1985, in order to avoid terminiation
of interim authorization on that date.
Attachment
cc: Hazardous Waste Division Directors, Regions I-X
Hazardous Waste Branch Chiefs, Regions I-X
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(SAMPLE NOTICE)
U. S. ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
Hazardous Waste Management Program; Extensions Of
Application Deadline For Final Authorization
AGENCY: Environmental Protection Agency (EPA)
ACTION: Notice of Extension of Phase I and II Interim Authorization
for California, Guam, and Nevada.
SUMMARY: EPA previously granted an extension of interim
authorization to January 26, 1985, for the States of California
and Nevada, and the Territory of Guam. These States and Guam
recently requested a further extension of interim authorization
beyond the January 26, 1985 deadline. This extension would
allow for continuation of their interim authorization under the
Resource Conservation and Recovery Act (RCRA), as amended. EPA
is granting the requested extension to avoid the reversion, on
January 26, 1985, of their interim authorization. This notice
extends California's Phase I and IIB, Nevada's Phase I, IIA
and B, and Guam's Phase I interim authorization until January 31,
1986, or until the date these States and Guam receive final
authorization, whichever is earlier.
EFFECTIVE DATE: [Date of publication]
FOR FURTHER INFORMATION: Chuck Flippo, RCRA Programs Branch,
Environmental Protection Agency Region IX,
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2
(SAMPLE NOTICE)
215 Fremont Street, San Francisco, CA 94105, telephone
(415) 974-8128.
SUPPLEMENTARY INFORMATION:
Background
Section 3006 of the Resource Conservation and Recovery
Act (RCRA) allows EPA to authorize State hazardous waste
programs to operate in the State in'lieu of the Federal hazardous
waste program. Two types of authorization may be granted.
The first type, known as "interim authorization" is a temporary
authorization which is granted if EPA determines that the
State program is "substantially equivalent" to the Federal
program (Section 3006(c), 42 U.S.C. 6226(c)). EPA's implementing
regulations at 40 CFR 271.121-271.137 established a phased
approach to interim authorization: Phase I, covering the EPA
regulations in 40 CFR Parts 260, 263, and 265 (universe of
hazardous wastes, generator standards, transporter standards
and standards for interim status facilities) and Phase II,
covering the EPA regulations in 40 CFR Parts 124, 264 and 270
(procedures and standards for permitting hazardous waste
management facilities).
Phase II, in turn, has three components. Phase II A
covers general permitting procedures and technical standards
for containers and tanks, and, in certain instances (see
California section below for discussion), for surface impound-
ments and waste piles as well, phase II B covers incinerator
facilities, and Phase II C addresses landfills and land treatment
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3
(SAMPLE NOTICE)
facilities.
The second type of authorization is a "final" (permanent)
authorization that is granted by EPA if the Agency finds that
the State program (1) is "equivalent" to the Federal program,
(2) is "consistent" with the Federal program and other State
programs, and (3) provides for adequate enforcement (section
3006(b), 42 U.S.C. 6226(b)). States need not have obtained
interim authorization in order to qualify for final authori-
zation. EPA regulations for final authorization appear at 40
CFR 271.1-271.23.
40 CFR 271.122(c) (4) requires States which have received
any, but not all, phases/components of interim authorization
to have amended their original submissions by July 26, 1983, to
include all components of Phase II. (See 47 FR 32377, July 26,
1982.) Further, 40 CFR 271.137(a) provides that interim authori-
zation automatically terminated (reverted) on July 26, 1983,
unless the State had submitted an application for all phases/
components of interim authorization by that date. (See 47 FR
32178, July 26, 1982.) Where the authorization (approval) of the
State program reverts, EPA is to administer and enforce the
Federal program in the State.
However, 40 CFR 271.137(a) also allowed the Regional
Administrator to extend the July 26, 1983, deadline for good
cause so that the State program would not revert to EPA. A
Regional Administrator could not, however, extend the deadline
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4
(SAMPLE NOTICE) :
past January 26, 1985, as 40 CFR 271.122(b) provides that
interim authorization of a State's hazardous waste program
ends 24 months from the effective date of the last component
of Phase II. The last component of the Phase II regulations
was published on July 26, 1982. It became effective on
January 26, 1983; thus, interim authorization was to end on
January 26, 1985. (See 47 PR 32365, July 26, 1982.)
The Hazardous and Solid Waste Amendments of 1984
(PL-98-616, Nov. 8, 1984), amended Section 3006(c) to allow
interim authorization to extend to January 31, 1986. Therefore,
the Regional Administrator has authority to extend a State's
interim authorization to January 31, 1986, in appropriate
cases.
California
California received Phase I interim authorization on
June 4, 1981,.and Phase II A interim authorization on January 11,
1983. The state's Phase II authorization includes only
responsibility for permitting storage and treatment in tanks and
containers. It does not include responsibility for permitting:
1) treatment in surface impoundments, waste piles, land treat-
ment facilities, or incinerators; 2) storage in surface impound-
ments or waste piles; or, 3) disposal facilities.
The state chose to apply for final authorization in
lieu of additional increments of interim authorization.
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5
(SAMPLE NOTICE)
EPA granted California's request for an extension of interim
authorization until January 26, 1985, because the State had
made a good faith effort to pursue regulatory and statutory
amendments necessary to secure final authorization. This effort
constituted "good cause" for extending the State's deadline
for submission of their application for final authorization.
(See 49 FR 33018, August 20, 1984.) The State then expected
to submit its application in September 1984; however, the
State subsequently encountered significant delays in adopting
the necessary three sets of regulations under two different
statutes due to.a lengthy public hearing process and extensive
public interest in the regulations. California now intends
to submit its official application by July 1985 after sub-
mitting a draft application in March 1985. California expects
to receive receive final authorization by January 31, 1986.
Guam
The Territory of Guam received Phase I interim .
authorization on Hay 16, 1983. Guam chose to apply for final
authorization rather than apply for Phase II interim authoriza-
tion. Before submitting a final authorization application, the
Territory needed to adopt both statutory and regulatory
amendments. Guam requested and was granted an extension to
submit their complete application and gain final authorization
by January 26, 1985. Because the Territory had encountered
significant delays in developing and adopting the necessary
regulatory and statutory amendments, but had made a good faith
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6
(SAMPLE NOTICE)
effort to pursue those amendments, good cause was shown to
allow extension of the deadline for obtaining final authori-
zation to January 26, 1985. (See 49 FR 33018, August 20,
1984.) The Territory expects to receive final authorization
by July 1985.
Nevada
Nevada received interim authorization for Phases I, II A
and II B on July 19, 1983. The State chose to apply for final
authorization rather than apply for Phase II C interim
authorization. Revisions to the State's regulations, needed to
meet the requirements for final authorization, were completed in
June 1984. The State then planned to submit an official final
authorization application in July 1984. The State requested
and was granted an extension to this deadline because the
State encountered significant delays in completing the statutory
amendment necessary to secure final authorization. The
State's biennial legislature and limited (60 day) legislative
term added to the State's difficulty in gaining approval of
the necessary statutory amendments. The State's good faith
effort to pursue the necessary statutory amendment constituted
good cause for extension of the State's deadline for gaining
final authorization to January 26, 1985. (See 49 FR 33018,
August 20, 1984.) The State now intends to submit its official
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7
(SAMPLE NOTICE) :
application for final authorization by December 1984 and
receive final authorization by July 1985.
DECISION;
In consideration of the above schedules and the States' continued
good faith efforts to adopt hazardous waste programs necessary
to obtain final authorization, the immediate reversion of these
State programs because of their failure to meet the January 26,
1985, deadline is not in the best interest of California, Guam, or
Nevada, this Agency, the regulated community, or the citizens of
California, Guam, or Nevada. I have found good cause to extend
the deadline for the final determination on the final authoriza-
tion applications for California, Guam, and Nevada, until
[insert appropriate date for each State and Guam]; after
that, responsibility for implementing RCRA reverts to Federal
control if they have not received final authorization.
EXECUTIVE ORDER 12291: The Office of Management and Budget
(OMB) has exempted this rule from the requirements of Section
3, Executive Order 12291.
CERTIFICATION UNDER THE REGULATORY FLEXIBILITY ACT: Pursuant
to the provisions of 5 U.S.C. 605(b), I hereby certify that
this extension will not have a significant economic impact
on a substantial number of small entities. The extension
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8 :
(SAMPLE NOTICE)
effectively suspends the applicability of certain Federal
regulations in favor of these States' programs, thereby
eliminating duplicative requirements for handlers of
hazardous waste in California, Guam, and Nevada. It does
not impose any new burdens on small entities. This rule,
therefore, does not require a regulatory flexibility
analysis.
LIST OF SUBJECTS IN 40 CFR PART 271: Hazardous materials,
Indian-lands, Reporting and recordkeeping requirements, Waste
treatment and disposal, Water pollution control. Water supply,
Intergovernmental relations, Penalties, Confidential business
information.
AUTHORITY: This notice is issued under the authority of Sections
2002U), 3006, and 7004(b) of the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act of 1976,
as amended, 42 U.S.C. 6912(a), 6926, and.6974.
DATED:
Judith E. Ayres
Regional Administrator
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9543 - ASSESSMENT
OF STATE
CAPABILITIES
Part 271
ATKl/l 104/64 kp
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9543.00-1
October 3, 1985
MEMORANDUM
SUBJECT: Applicability of PIG-82-5 and RSI #5 on Joint
Permitting in Phase I Authorized States
FROM: Bruce R. Weddle, Director
Permits and State Programs Division (WH-563-B)
TO: Robert L. Allen, Chief
Waste Management Branch (3HW30)
Thank you for your memorandum of July 15, 1985, in which you
asked for clarification on several issues relating to permits
jointly-issued by EPA and a State with Phase I interim
authorization. This memo addresses your concerns in the same
order in which you stated them on page 2 of your memorandum.
1. You asked: What is Headquarters' definition of "nearly
identical" permits as used in PIG-82-5?
A nearly identical State permit issued by a State with Phase
I authorization would contain, at a minimum, no less stringent
State analogues to all of the provisions that the jointly-issued
Federal permit would incorporate. A State permit could contain
provisions which are more stringent than corresponding Federal
provisions and still be considered "nearly identical". State
permit provisions that are broader-in-scope than the Federal
program are not relevant in determining whether State permits are
"identical" or "nearly identical". (See PIG 84-1 for a
discussion of how to determine whether State provisions are
broader-in-scope or more stringent.)
2. You asked; Under what circumstances can jointly-issued.
nearly identical permits be issued by a Phase I authorized State
vet be considered RCRA permits after Final Authorization?
Contrary to the approach described in #5 of PIG-82-5, we
concluded that the EPA RCRA permit should not be terminated.
While recognizing the State and Federal permits may have been
issued jointly, receipt of Phase II or final authorization does
not automatically convert the State permit into a RCRA permit.
This document has been retyped from the original.
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-2-
Rather, the State must have RCRA permitting authority at the time
of permit issuance. Thus, were the EPA permit to be terminated
prematurely, the facility would lose RCRA authority to operate.
Nevertheless, EPA can use its discretion to avoid duplicate
State and Federal efforts to enforce identical permit provisions.
That is, if the State were adequately enforcing its identical
permit, EPA would not plan to devote enforcement resources to
that facility.
Subsequent to being granted final authorization, the State
could reissue its permit as a RCRA permit or wait until the EPA
RCRA permit expires. When the State decides to issue a RCRA
permit and the State is not authorized for HSWA provisions, the
Region must determine whether and how the facility is affected by
the HSWA requirements and either issue a permit for the HSWA
provisions or a notice of its restitutional final decision that
the facility is not affected by HSWA. At the time of permit
reissuance, the HSWA provisions must be considered even though
they were not applicable when EPA issued the first permit.
3. You asked; What effect will HSWA have on the provisions of
PIG-82-5?
HSWA mandates incorporation of certain requirements and
prohibitions in all RCRA permits as of November 8, 1984. Simply,
a permit cannot be considered a RCRA permit unless it complies
with all the applicable new requirements of HSWA. A State must
be specifically authorized for provisions of HSWA to issue a RCRA
permit. Thus the policy on joint permitting stated in RSI #5
supersedes the policy of PIG 82-5. (See RCRA Reauthorization
Statutory Interpretation #5, July 1, 1985.) In relation to PIG
82-5, you will likely be issuing permits as described by
situation #4, rather than situation #5. That is, a facility will
be jointly issued a State permit and a Federal RCRA permit.
Since the facility has a Federal RCRA permit, the urgency for
State reissuance of a State RCRA permit 'diminishes. Unless there
are extenuating circumstances, there is no compelling reason for
a State to reissue a State permit to a facility which also has a
Federal RCRA permit prior to the expiration of that Federal
permit. This would be especially true if the previous State
permit was issued using standards and procedures equivalent to
EPA's.
This document has been retyped from the original.
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-3-
I trust that the above discussion answers your questions and
concerns relating to jointly-issued permits prior to a Phase I
State receiving final authorization.
cc: Permits Branch
State Programs Branch
RCRA Branch Chief, Region I, II, IV - X
This document has been retyped from the original.
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9543.1984(01)
December 27, 1984
MEMORANDUM
SUBJECT: Additional Guidance on RCRA State Capability
Assessments
FROM: Lee M. Thomas
Assistant Administrator (WH-562-A)
TO: Regional Administrators
Regions I - X
Your assessment of the State's capability to implement a
quality RCRA program is an important part of the process of
making a Tentative Determination to grant RCRA final
authorization. (Guidance on conducting the capability
assessments was issued on June 26.) To help ensure timely
Headquarters' concurrence on both tentative and final
determination decision packages, this memorandum provides
additional guidance on capability assessments.
Our review of the assessments indicates the need for a more
formalized process to collect the information needed to assess
the State capability. This process will ensure that program
quality/capability can be readily discerned from the decision
packages and that the packages can be processed well within the
10-day concurrence period.
Please make sure that your tentative and final determination
decision packages include the following:
1. A chart outlining specific grant commitments and State
accomplishments in the areas of permitting, compliance
monitoring and enforcement for FY 84 (suggested format
attached). A similar chart should also be updated upon
submittal of the Final Decision (and for Notices of
Tentative Decisions submitted later this year) with
respect to State commitments and accomplishments to
date in FY 85.
This document has been retyped from the original.
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-2-
2. As you know, the assessments must include an agreement
in the form of a Letter of Intent or Memorandum of
Agreement that outlines specific State and EPA actions
necessary to strengthen State program capability and
sustain a quality RCRA program over time. The Letter
of Intent or Memorandum of Agreement must include
specific schedules and/or dates for implementing both
EPA and State activities identified as necessary for
enhancing the State's RCRA program. Letters or
Memoranda which are vague or generalized are more
likely to lead to unachieved expectations and
misunderstandings. It is imperative that both we and
the State clearly understand and agree to these
specific milestones so that each program knows what is
expected. For example, if the State has not met its
inspection commitments for ground-water monitoring
facilities, the agreement should reference a schedule
identifying specific facilities to be inspected and a
timetable for completion of those inspections in the
coming year. The agreement would also specify a
timetable for the State to hire additional inspectors,
and an EPA inspection schedule that would temporarily
augment the State program and enable the State to meet
its inspection commitments.
3. Where weaknesses are found in State program areas not
identified in the grant accomplishment chart, include
specific documentation to support the findings. For
example, a State capability assessment may conclude
that the State attorney general has been slow in
processing cases referred by the program office. The
assessment would identify the specific number of cases
referred in FY 84, and the current status of those
cases at the time of the assessment (pending, filed
etc.). Corrective measures for this situation would be
addressed in the Letter of Intent or in the Memorandum
of Agreement.
I encourage you to submit drafts of your capability
assessments to Headquarters (OSW's State Programs Branch) prior
to transmitting your tentative or final determinations. By
reviewing drafts in advance, the Office of Solid Waste and the
Office of Waste Program Enforcement are able to identify and
This document has been retyped front the original.
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-3-
assist in resolving potential problem areas in the document
without being constrained by the 10-day concurrence period.
Attachment
cc: Waste Management Division Directors,
Regions I - X
This document has been retyped from the original.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
21 1984
O*»ICE or
SOLID WfASTt AND EMERGCNCV HESPONSB
MEMORANDUM
SUBJECT: Review of State Capability in RCRA Final
4~ uthorization
^N^3^""T(>3w • *•
ee M. Thomas
Assistant Administrator (WH-562-A)
TO: Regional Administrators
Region I - X
At thft heart of the- Federal and- State- implementation of- the-
hazardous waste management program- under RCRA must be a commitment
to quality in the. permits we issue, the enforcement, actions we
initiate, the corrective steps we undertake, and the information
we provide to the public on program accomplishments. The States
are pivotal to the success of this effort. Our joint commitment
to quality under final authorization is critical to meeting our
mandate under the statute. Capable managers at all levels working
together toward common objectives is a prerequisite to an effective,
high quality program..
It is appropriate, therefore, to re-affirm the importance of
jointly completing with the States a detailed review of program
capability as a key component of the final authorization process.
The enactment of State statutory authority and promulgation of
regulations, although critical steps, must be coupled with a firm
commitment to enhance program capability to effectively implement
the- authorized State- program.
It- is imperative? that you reach agreement with each State,
before* th» final authorization decision is made, on the steps
necessary to strengthen program capability and sustain a quality
State RCRA program over time. I am optimistic that the States will
have achieved adequate program capability to implement the RCRA
program. However, if your joint review with the State leads
you to conclude that the State does not have this capability,
you should be prepared to recommend that the State's application
for final authorization be denied..
-------
The Review of State Capability
The Region and State should jointly conduct a detailed
review of Stat* capability to identify areas that, require
strengthening. This, review should use information, gathered
in. previous reviews, or analyses, particularly the? mid-year
and. end-of-year evaluations and other activities related to>
the- annual prograar grant. The. review should address those
portions oft. the Federal program a State has been conducting
for EPA (if- under a cooperative arrangement) or in lieu of,
EPA (if they have interim authorization). In the latter
instance, more stringent State requirements may be included
if they are- part of the program- authorized by EPA- Areas- of
a State-' s program broader in scope- than the Federal program
are not part of the authorized program and need not be included
in the review.
Ther review, must be* broad enough to isolate the issues and
needs of: both:. EPA- and: the* State; to- manage, the program: under
final! Stater authorizations It must, provide* for:
0 An Assessment of the Quality of The state's Past
Performance Under Interim Authorization or Cooperative
Arrangements. Areas to consider include:
The compliance monitoring and enforcement program
under interim authorization or cooperative arrange-
ments, including an analysis of the number and
thoroughness of inspections, the number, type and
timeliness, ot enforcement actions, and the improve-
ment shown by the State in bringing violators
into compliance.
• The permitting program under interim authorization
or cooperative arrangements, including the number
and types of permit actions handled, conformance
to, technical and procedural requirements, and
future permitting, strategy.
— State? program- management, including resources, skill
mix, State organization, institutional constraints
(organization, salary rate, etc.), training needs,
legal support, and timeliness for filling vacancies.
Even when such areas cannot be directly influenced
by EPA or the State program (e.g., salaries) they
should be noted.
* The Identification of State and EPA Actions Which Will
Be> Taken To Ensure? State Capabilities. The actions.
shouldr ,•
-------
- Define resource levels, skill mix, training needs
an* other- factors necessary to address management
issue* raised ixr the assessment of. past performance.
— Address* t±» leval. of! Regional involvement in direct.
.. ftcgj^rltieas after; final: authorization, and the fora
andr content off oversight and: assistance over time.
— Recognize the value of flexible State management
approaches and,, where appropriate,, account for State
institutional constraints or other unique features
that determine the form: of. the authorized program.
Use of• The Review m Final Authorization Process.
The joint review of State capability should take place as
early in the-final authorization process, as-possible, most
appropriately: before* thet draft: application- is submitted, to EPA..
The? Memorandum of: Agreement (MOA) or ait equivalent document
(e.g., joint letter-of: intent) should, reflect, agreement on the
responsibilities or. both EPA. and? the State in sustaining program-
quality over time. Through the- MOA, the Regions and States
should agree to use the program grant process to annually (or
more frequently) identify and commit to specific actions required
to strengthen the State program. The specific commitments and
associated resource impact should be incorporated into the State's
grant work, program..
To. facilitate? the> final, authorization- decision, your Action.
Memorandum, transmitting the- Federal Register Notice of Tentative
Decision (or Final Decision- if State is later in the authorization
process) must: (a) describe-the major aspects of past State perform-
ance relevant to State capability under final authorization, (b)
outline the steps, agreed to by the Region and State to enhance
program: capability, and. (c) include- a statement that affirms that
these actions; will result in, the implementation of a quality RCRA
programs. A* stated* beCarev i£ yott concludes from your review* that
a State) doe* not have? tn» capability ta implement the RCRA program,
then you. should recommend that the State's application be denied.
Timely completion of the review is critical to. demonstrate
that proper consideration has been given to identifying and
resolving State capability questions prior to the decision on
final authorization. Because we have already received several
draft and. official applications* the following schedule should
be. followed*
-------
For States which have not yet submitted an official
application*, the capability assessment should be*
addressed: Ln. the> Action Memorandum for tentative
decfstott-.
States wtiich. have* submitted. an. official, applica-
tion tne assessment snouldr also be addressed* (where -
possible} Lit tne, Action. Memorandum for tentative
decision- However, if it is too late in the review
process to permit this, the assessment should be
addressed; in. the; Action Memorandum for final
determination- °
In no case is the review of State capability to be completed later
than the final Action Memorandum and Federal Register Notice of
Final Decision-
ASK you* know,, C have* established? a*- iaint Region/Stater tasJc force-
to- consider: the> question of RCRft program* quality.. The outputs from
this tasJc. force/ will provide* more* specifier guidance and policy on
criteria; to be/ used: irr evaluating: program-performance- under final
State; authorization- We? dor not: expect, to issue the final policy on
RCRA program- quality until April, 1984. However, to the extent
feasible you may wish to use the criteria developed by the task
force- to assist you in performing the State capability reviews
outlined above. The criteria you use should be based on the
circumstances appropriate? to. your- situation and your experience
with, each: State?..
Support and: assistance in completing the reviews during the
final authoriration- process will be provided by the Permits and
State Programs. Division, Office of Solid Waste. The State Programs
Branch will be developing recommended MOA language, a model Action
Memorandum- and a sample review- of State capability to implement
the new* requirements- This, w-i 11 be/completed in spring, 1984.
ccs Regional. Hazardous^ Waste/ Management Division Directors
OSWHK Office* Directors
Kirfc- Sniff7,. Office of Enforcement and Compliance Monitoring
Lisa Friedman, Office of General Counsel
Bruce Weddle, Acting Director, Permits and State
Programs Division
Donald Lazarchik, President, Association of State &
Territorial Solid Waste Management Officials
State Hazardous Waste Management Directors
-------
JUN26S984 2*
o» 5
I I
*• 3
••
MEMORANDUM 3 *
• 3. r
SUBJECT! State Capability Assessment Guidance * 1
/signed/ Lee M. Thomas
FROM i Lee M. Thomas ~'£
Assistant Administrator a
••
9»
TO» Regional Administrators, Regions I - X ^
w
x.
9
On February 21, I wrote to you explaining the importance ^
of assessing State program capability as a key component of '•«
the final authorisation process. I asked that before you K>
recovurend authorisation of a State program you work with the £
State to evaluate its capabilities and come to an agreement
on whether action is required to strengthen those capabilities.
Several Regions requested guidance on conducting these assessments.
The attached guidance was developed after reviewing several
capability assessments and receiving comments from the Regions
on a draft guidance document.
In conducting these assessments, you should work closely
with the States to identify areas of program inadequacy and
weakness and to devise remedial measures. The basic criteria
to be used in this evaluation are the Criteria for a Quality
RCRA Program, developed jointly by CPA and the States. These
are the same criteria which will be used as a component of
the Headquarters review of Regional activities where EPA
operates the RCRA program.
It should be clearly understood that this review a 1 Iowa
the Region and the State to take a prospective view of the
RCRA program and mutually establish capability objectives and
supporting strategies for their accomplishment. Its purpose
is not to be an impediment to final authorization unless the
Regional Administrator feels the weaknesses in the State
program are so severe that additional tim*» is needed to as«?es«=
a State's ability to implement remedial measures. Through
this exercise we hop«» to avoid granting final authorization
to a State only to be faced soon after with concern about
-------
-2-
inadequate performance and uncertainty about the criteria used
to aeasure it* Your Action Menorandur should, affirm that the
remedial actions delineated in the capability assessment are
mutually agreed upon strategies which will result in a quality
PCRA program.
Support and assistance in completing the reviews will be
provided by the State Programs Branch, Permits and State Programs
Division, Office of Solid Waste, X recommend that a draft of
your capability assessments be submitted to that Branch before
you seek State concurrence on corrective measures* Comments
will be provided as quickly as possible*
Attachment
cci Regional Hazardous Waste Management
Division Directors
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i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
13 MOV 1984
SOLID WASTE AND EM6BGENC" "ESPONSE
MEMORANDUM
SUBJECT: Placement of Capability Assessments in Authorization
File
FROM: Bruce R. Weddle
Director, Permits and Sta'te
Programs Division (WH-563)
TO: Hazardous Waste Division Directors
Regions I-X
The Capability Assessments which you develop when making
tentative and final decisions on authorizing a State's hazard-
ous waste management program are an integral part of our
decision-making process. This being the case, the Office of
General Counsel has informed us that the Capability Assessment
and Letter of Intent must be included in the public record.
Therefore, when notice of the Region's decision is published
in the Federal Register, copies of these documents should
be placed in your State Authorization File :?r access by the
public.
Several decisions have already been published. If the
Capability Assessment was not part of the Authorization File
at the time of publication, consult with your Office of
Regional Counsel before adding them to the F.Le now.
cc: John Skinner
Truett DeGeare
Gail Cooper
ORC Team Leaders
-------
Volume 12
Addendum
Place the attached
directive at the
heginning of
section 9551 in
Volume 12
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This Page Intentionally Left Blank
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OSWER Directive #9551.01-01
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
May 23, 1994 9551.00-01
MEMORANDUM
SUBJECT: RCRA Policy Statement: Clarification of the Land Disposal Restrictions'
Dilution Prohibition and Combustion of Inorganic Metal-Bearing Hazardous
Wastes
FROM: Elliott P. Laws
Assistant Administrator
TO: Waste Management Division Directors, Regions I - X
I. Introduction
A. Purpose
This memorandum sets out a Statement of Policy under the Resource Conservation
and Recovery Act (RCRA) clarifying the application of the Land Disposal Restrictions (LDR)
prohibition on dilution (see 40 CFR § 268.3) to combustion1 of certain inorganic metal-
bearing hazardous wastes. Because combustion normally does not represent effective
treatment of these wastes, such burning can be considered impermissible dilution. In such
cases, these hazardous metal-bearing wastes cannot be combusted legally. This Policy
Statement clarifies the general situation regarding combustion of these metal-bearing
hazardous wastes, but application of this policy will vary depending on particular
circumstances.
B. Regulatory Background
Under RCRA, the LDR prohibition on dilution states generally that no person "shall
in any way dilute a restricted waste ... as a substitute for adequate treatment to achieve
compliance with [a treatment standard for that waste]". 40 CFR 268.3(a). This prohibition
implements the requirement of section 3004(m) of RCRA, which requires that hazardous
Combustion for purposes of this memo does not include metal recovery units engaged
in metal reclamation or vitrification units engaged in metal stabilization.
Tills document has been retyped from the original.
-------
OSWER Directive #9551.01-01
constituents in hazardous wastes be destroyed, removed or immobilized before these wastes
can be land disposed. Hazardous constituents are not destroyed, removed or immobilized if
they are diluted. Chemical Waste Management v. EPA. 976 F.2d 2, 16, 17, 19-20 (D.C.
Cir. 1992), cert, denied 113 S.Ct. 1961 (1993); see also S. Rep. No. 298, 98th Cong. 1st
Sess. 17 (1983) ("the dilution of wastes by the addition of other hazardous waste or any other
materials during waste handling, transportation, treatment or storage is not an acceptable
method of treatment to reduce the concentration of hazardous constituents").
Consistent with these authorities, the Agency has stated that the dilution prohibition
serves one chief purpose — "to ensure that prohibited wastes2 are treated by methods that are
appropriate for that type of waste." 55 FR at 22532 (June 1, 1990). Impermissible dilution
can occur under a number of circumstances. The most obvious is when solid wastes are
added to a prohibited waste to reduce concentrations but not volumes of hazardous
constituents, or to mask their presence. Impermissible dilution also may occur when wastes
not amenable to treatment by a certain method (i.e., treated very ineffectively by that
treatment method) are nevertheless 'treated' by that method. 55 FR 22666 (June 1, 1990)
(biological treatment does not effectively remove toxic metals from wastes; therefore,
prohibited wastes with treatment standards for metals ordinarily would be impermissibly
diluted if managed in biological treatment systems providing no separate treatment for the
metals). See also 52 FR at 25778-79 (July 8, 1987) (impoundments which primarily
evaporate hazardous constituents do not qualify as section 3005(j)(ll) impoundments which
may receive otherwise-prohibited hazardous wastes that have not met the treatment standard).
EPA is providing guidance today clarifying how the LDR dilution prohibition could
apply to certain inorganic metal-bearing hazardous wastes that may be placed in combustion
units, other than metal recovery furnaces.
II. General Distinction Between "Adequate Treatment" and Potential Violations of
the Dilution Prohibition
This memorandum deals with the question of whether combustion of prohibited
inorganic.hazardous wastes can be a type of impermissible dilution, An "inorganic
hazardous waste" is one for which EPA has established treatment standards for metal
'»' • • y
hazardous constituents, and,which does not otherwise contain significant organic or cyanide
content (see further discussion, last paragraph page 3, clarifying what constitutes an
insignificant organic or .cyanide content). . -..-•'
-'A "prohibited" hazardous waste is one which,is actually,subject to a prohibition on
land disposal without first.-.beingCreated, or, .disposed in, a no-migration unit.. See 54
FR 36968 (Sept. 6, 1989), ; -r ;r;v r , •-, ^
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OSWER Directive #9551.01-01
The Agency has evaluated the listed wastes and has determined that 44 of the RCRA
listed wastes (as set forth in 40 CFR § 261) typically appear to be such inorganic hazardous
wastes; i.e., they typically do not contain organics, or contain only insignificant amounts of
organics, and are not regulated for organics3 (see Appendix A to this memorandum for a list
of these wastes). The Best Demonstrated Available Technology (BDAT) for these inorganic,
metal-bearing listed wastes is metal recovery or stabilization. Thus, impermissible dilution
may result when these wastes are combusted.
There are eight characteristic metal waste codes; however, only wastes that exhibit
both the toxicity characteristic (TC) and the extraction procedure (EP) for D004 - DO 11 are
prohibited now (see 55 FR 22660-02, June 1, 1990). Characteristic wastes, of course,
cannot be gerieric'ally characterized as easily as listed wastes because they can be generated
from many different types of processes. For example, although some characteristic metal
wastes do not contain organics or cyanide or contain only insignificant amounts, others may
have organics.or cyanide present which justify combustion, such as a used oil exhibiting the
TC characteristic for a metal. Thus, it is difficult to say which D004-D011 wastes would be
impermissibly diluted when combusted, beyond stating that as a general matter,
impermissible dilution would occur if the D004-D011 waste does not have significant organic
or cyanide content but is nevertheless combusted.
EPA ordinarily would not consider the following hazardous wastes to be strictly
inorganic (or to contain "significant organic or cyanide content") for which combustion
would otherwise be impermissible dilution. Combustion of the following wastes is therefore
not prohibited under the LDR dilution prohibition: (1) any of the 44 listed wastes and 8
characteristic wastes in Appendix A that, at point of generation, or after any bona fide
treatment such as cyanide destruction prior to combustion, contain hazardous organic
constituents or cyanide at levels exceeding the constituent-specific treatment standard for
F039, which represents a compilation of numerical limits for hazardous constituents; (2)
organic, debris-like materials (e.g., wood, paper, plastic, or cloth) contaminated with an
inorganic metal-bearing hazardous waste; and (3) any of the 44 listed wastes and 8
characteristic wastes that, at point of generation, have reasonable heating value'such-as-
greater than or equal to 5000' Btu (see 48 FR 11157 (March 16, 1983)). The foregoing threes
categories of Waste typically would contain sufficient organic content to'indicate that • < >•*:
combustion can be a reasonable means of treating the wastes prior to land disposal =••«•
However, as noted above, mixing practices such as fuel blending to;add or'ganic'sUb inorganic^
metal-bearing hazardous wastes ordinarily would be considered to be' impermissible dilution. '<:
This is because the dilution prohibition applies at the point a hazardous waste is generated.
Chemical Waste Management v. EPA. 976 F.2d at 22-3; also 48 FR 11158, 11159 and nn. 2
To the extent that these"-wastes or'residues of these wastes (i'.e.; 'biological treatment
sludges) contain significant'organic content, combustion^ may-be an appropriate'
treatment technology. See later discussion regarding this point: '''••
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OSWER Directive #9551.01-01
and 4 (March 16, 1983); 53 FR at 522 (Jan. 8, 1988) (determinations of legitimacy of
recycling are made on a waste-by-waste basis before any blending occurs).
This Policy Statement is also reflective of the Agency's concerns about the hazard
presented by toxic metals in the environment. When an inorganic metal-bearing hazardous
waste with insignificant organics is placed in a combustion unit, legitimate treatment for
purposes of LDR ordinarily is not occurring. No treatment of the inorganic component
occurs during combustion, and therefore, metals are not destroyed, removed, or
immobilized. Since there are no significant concentrations of organic compounds in
inorganic metal-bearing hazardous wastes, it cannot be maintained that the waste is being
properly or effectively treated via combustion (i.e., thermally treated or destroyed, removed,
or immobilized).
In terms of the dilution prohibition, if combustion is allowed as a method to achieve a
treatment standard for these wastes, metals in these wastes will be dispersed to the ambient
air and will be diluted by being mixed in with combustion ash from other waste streams.
Adequate treatment (stabilization or metal recovery to meet LDR treatment standards) has not
been performed and dilution has occurred. It is also inappropriate to regard eventual
stabilizing of such combustion ash as providing adequate treatment for purposes of the LDRs.
Simply meeting the numerical BOAT standards for the ash fails to account for metals in the
original waste stream that were emitted to the air and for reductions achieved by dilution
with other materials in the ash. (In most cases, of course, the metal-bearing wastes will have
been mixed with other wastes before combustion, which mixing itself could be viewed as
impermissible dilution).
These inorganic, metal-bearing hazardous wastes should be and are usually treated by
metal recovery or stabilization technologies. These technologies remove hazardous
constituents through recovery in products, or immobilize them, and are therefore permissible
BOAT treatment methods. However, EPA believes that this statement of policy clarifying
application of LDR dilution prohibition is needed because we have observed that some of
these wastes may be going to conventional combustion devices such as incinerators or cement
kilns. For example, some owners/operators may be willing to accept inorganic lead wastes
with insignificant organics at their combustion facilities (which can still apparently meet their
air emissions limits at the stack). As explained above, land disposal of combustion residuals
from these facilities would typically violate the land disposal restrictions prohibition on
dilution. Combustion is not usually an appropriate treatment for these wastes because
hazardous constituents are not removed, destroyed, or immobilized.
Consequently, the general principles set out in this memorandum, subject to
appropriate consideration of individual circumstances, are: (1) that a prohibited inorganic
metal-containing hazardous waste (listed in Appendix A to this memorandum) without
significant organic content can be considered to be diluted impermissibly when combusted
(even; if the i.tfea|ment.standards for metals areiachieved.in^partibyisubsequent'treatment of
4,
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OSWER Directive #9551.01-01
combustion ash); and (2) that the determination of whether a waste is an inorganic metal-
bearing hazardous waste is made at the point of generation.4 This means that, ordinarily,
such a waste would be considered to be diluted impermissibly even if it is blended with
organic wastes for which combustion would otherwise be an appropriate treatment method.
-i li'.j. • .'.:;.rif '• roht/-^.',';1. :. :/.-• " . >"
This.is,.the point at which->me waste becomes hazardous.^(See .45 FR-t33095-33096,
May 19, 1980).
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OSWER Directive #9551.01-01
Appendix A. Description of Wastes Affected by this Policy
Waste Code
F0065* n'
•rv
F007*
F008*
F009* __ 1"
.* :
F010*
•i ''
F011*
1 T •
F012*
F019*
tt .
K002
K003
K004
Listed Wastes
Wastewater treatment sludges from electroplating operations except
from the following processes: (1) sulfuric acid anodizing of
aluminum; ''(2)' tin plating carbon steel; (3) zinc plating (segregated
basis) on carbon steel; (4) aluminum or zinc-plating on "carbon
steel; (5) cleaning/stripping associated with tin, zinc and aluminum
plating on carbon steel; and (6) chemical etching and milling of
aluminum. •..--•-
iSpent cyanide plating bath-solutions from electroplating operations.
Plating bath residues from the bottom of. plating baths f|pm
electroplating operations where cyanides are used "in the process.
Spent stripping -and cleaning bath solutions 'from electroplating
operations where cyanides are used in the process.
• • • T
-Quenching bath residues from oil baths from metal treating
-operations where cyanides are used in the process.
...... . .. .
. Spent cyanide solutions from salt bath pot cleaning from metal heat
treating operations.' " ' '
Quenching waste water treatment sludges_.from metal heat treating
operations where cyanides are used in the process.
Wastewater treatment sludges, from the, chemical conversion coating
of aluminum except from z-irconium -phosphating in aluminum car
washing when such phosphating isian exclusive conversion coating
process.
— - -
Wastewater treatment sludge from the production of chrome yellow
j . " i . . j • . . • . -
and orange pigments... ------
••" -•••'j>>'/:' "..- 1
Wastewater treatment .sludge from-the production o€- inolybdate
orange pigments. .r;- ••':•;
Wastewater treatment sludge. foom tfie.-pcoduction'of zinc yellow
pigments. •• - "" '
* *"^ f • • (-1 . • .' • - \ • • '
._*..== Assuming wastes do^not contain treata'ble'~c6hcehtratTons of cyanide.
Tliis document has been, retyped from the •original. • ''• *
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OSWER Directive #9551.01-01
Waste Code
K005_
K006 ••••*)•
K007
K008
K061 L:"1 £.'._. KH
K069 /lJ-La:
K071 "':
K100 '•'''"'
K106
•.-_•=-- Listed Wastes
Wastewater treatment sludge
pigments.
from the production of chrome green
'_• i . (
Wastewater treatment sludge fronrthe -production of chrome oxide
green pigments (anhydrous and hydrated). .,
Wastewater treatment sludge
^pigments: •
from the production of iron blue
Oven residue from the production of chrome oxide green pigments.
: -Emission control dust/sludge
s in eleictric furnaces.
-Emission^eontrol dust/'sludge
Brine purification muds from
•preduction, where separately
fronTthe primary, production of steel
from secondary lead smelting.
the- mercury cell processes in chlorine
prepurified brine is not used.
Waste leaching solution from acid leaching of emission control
dust/sludge from secondary lead smelting. ""
Sludges from the mercury cell processes for making chlorine.
:• V ." '" ^"V,, .'.. ..,./ -«,. .;•••.", ' ;
P010
POll • ic-r /
poi2 "'f:'"
P013*
P015
P029* T- '•' ;
Pti74*
PO'87
P099
P104*
P113
PI 14
Arsenfc acid H3Ak.O4. . " - -
Arsenic oxide As205 _,"f_
Arsenic, trioxide •••;•.... :,M"
S S
Barium cyanide- ~
.Beryllium . - - — ..•.-:.-- - ~;
Coppervcyanide rt!:u(CN)
Nickefcyanlde^ Ni(CN)2 . . .
- . -TIT; • -]>. .'- . v
•" • .,-- liSU/*'1-1 '•• !
Osmium tetroxide j£ _;;-!' ^±L.' -
Potassium silver cyanide1
oiiveF-cyaRKie • —
rv \ [,'
•*""'" J_ ~-
Thallic oxide
Thallium1 (1) selenite
i;i>i ': "•'
77i« dotumcr&has been retyped frtim ttie original.
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OSWER Directive #9551.01-01
Waste Code
P115
P119
P120
P121*
P122
U032
U145
U151
U204
U205
U216
U217
Listed Wastes
Thallium (1) sulfate
Ammonium vanadate
Vanadium oxide V205
Zinc cyanide
Zinc phosphide
;i
Calcium chromate ;
Lead phosphate • -• :
Mercury
Selenious acid .« .
Selenium disulfide
Thallium (I) chloride -
Thallium (I) nitrate
Waste Code
D004
D005
D006
D007
D008
D009
D010
D011
Characteristic Wastes ---'I
Arsenic -:
Barium
Cadmium
Chromium
Lead
Mercury
Selenium
Silver
This document has been retyped from the original.
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