United States
Environmental
Protection Agency
Solid Waste and
Emergency Response
(5305W)
EPA530-R-99-062
PB2000-101 902
February 2000
RCRA, Superfund & EPCRA
Hotline Training Module
Introduction to:
RCRA State Programs
Updated October 1999
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DISCLAIMER
This document was developed by Booz-Allen & Hamilton Inc. under contract 68-WO-0039 to EPA. It is
intended to be used as a training tool for Hotline specialists and does not represent a statement of EPA
policy.
The information in this document is not by any means a complete representation of EPA's regulations or
policies. This document is used only in the capacity of the Hotline training and is not used as a reference
tool on Hotline calls. The Hotline revises and updates this document as regulatory program areas
change.
The information in this docume nt may not necessarily reflect the current position of the Agency. This
document is not intended and cannot be relied upon to create any rights, substantive or procedural,
RCRA, Superfund & EPCRA Hotline Phone Numbers:
National toll-free (outside of DC area) (800) 424-9346
Local number (within DC area) (703) 412-9810
National toll-free for the hearing impaired (TDD) (800) 553-7672
The Hotline is open from 9 am to 6 pm Eastern Time,
Monday through Friday, except for federal holidays.
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STATE PROGRAMS
CONTENTS
1. Introduction 1
2. Elements of State Authorization Process 2
2.1 State Authorization Authority 2
2.2 State Authorization Applications 2
2.3 EPA Approval Process 5
2.4 Subsequent Program Revisions 7
3. State Authorization and Effective Dates 10
3.1 Effect of RCRA/HSWA Authority 10
3.2 Less Stringent Provisions 11
4. Withdrawal of Authorization 12
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State Programs - 1
1. INTRODUCTION
The Resource Conservation and Recovery Act (RCRA) addresses an enormous problem
- how to safely manage the huge volumes of solid and hazardous waste generated in
this country. In the Statute, Congress established the framework for a program that
would address this problem by establishing regulations for identifying and managing
hazardous waste.
Congress delegated the responsibility to develop and oversee the implementation of
these regulations to EPA. However, Congress intended that states would assume the
responsibility for day-to-day implementation of the regulations and that EPA's role
would be to provide federal oversight for such state programs. The rationale was that
states are more familiar with the regulated community and are therefore able to
administer the programs in a way that responds to specific state and local needs.
In order to ensure that state programs are at least equivalent to and consistent with the
federal regulations, RCRA requires states to become authorized to meet minimum
federal standards. Once a state has met the federal standards and gone through the
authorization process, the state implements and enforces its program in lieu of the
federal government. This prevents overlapping or duplicative state and federal
regulations.
This module outlines the requirements and procedures for a state to become
authorized to manage and oversee its own RCRA program. It also describes how the
state authorization system can affect the applicability of certain rules. When you have
completed this module you will be familiar with the state authorization process for
hazardous waste management programs. Specifically, you will be able to:
• Specify why states are authorized by EPA and list the elements of an authorized
state program
• Identify components of an authorization application and outline the stages of
EPA's approval process
• Specify the applicability of Hazardous and Solid Waste Amendments (HSWA)
and non-HSWA provisions in authorized and unauthorized states
• Define the effect of the "cluster rule."
Use this list of objectives to check your knowledge after you complete the training
session.
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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2 - State Programs
2. ELEMENTS OF STATE AUTHORIZATION PROCESS
To become authorized to implement the hazardous waste regulations found in Subtitle
C, states must develop their own hazardous waste program and receive EPA approval
for it. Initially, a state typically adopts the federal rules in some manner. The state can
write federal rules into the state regulations or simply incorporate them by reference.
The state may then submit an application for final authorization to the EPA
Administrator. The application must contain certain elements that are described in 40
CFR Part 271. These elements are discussed below.
2.1 STATE AUTHORIZATION AUTHORITY
RCRA §3006 gives EPA the authority to authorize qualified states to administer and
enforce the RCRA hazardous waste program within the state. Following authorization,
state regulations operate in lieu of the federal regulations in that state (with some
limits). In order to receive authorization, a state's statute(s) and regulations must be
equivalent to federal authorities, consistent with the federal program, and at least as
stringent as the federal program. The state program must address requirements for
permitting, compliance evaluation, enforcement, public participation, and sharing of
information. As part of the consistency requirement, state programs may not restrict
the free movement of hazardous waste across state borders to or from treatment,
storage, or disposal facilities (TSDFs) permitted to operate under RCRA or any
approved state program. Although many of the state programs closely parallel the
federal program, some states do adopt requirements more stringent or broader in scope
for generators, transporters, or other facilities handling hazardous waste.
While authorized states have primary enforcement responsibility under state law, EPA
retains enforcement authority under RCRA §§3007, 3008, 3013, and 7003. When EPA
does enforce in authorized states (called "overfiling"), it enforces the authorized state
programs where appropriate.
2.2 STATE AUTHORIZATION APPLICATIONS
Any state that seeks authorization for its hazardous waste program must submit an
application to EPA for review and approval. The state program application must
include the following items:
• Letter from the governor
• Description of the state's program
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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State Programs - 3
• Statement from the state attorney general
• Memorandum of agreement between state and Region
• Provisions for public involvement for initial program authorization.
GOVERNOR'S LETTER
In order to become authorized, a state must indicate a desire to implement its own
RCRA program. The state does this by submitting a letter from the governor of the
state requesting program approval (§271.5 (a) (1)). The governor's letter transmits the
state's application and is the formal request for program approval.
PROGRAM DESCRIPTION
The state must demonstrate to EPA that its program meets minimum federal
requirements. To become authorized, the state must submit a copy of the state statutes
and regulations that will act in place of the federal RCRA regulations. A document is
often included with the application highlighting where federal requirements are
incorporated in the state code (§271.5 (a) (5)). Any state that seeks approval to
administer its own RCRA program must also submit a description of the proposed
program (§271.5(a) (2)). Pursuant to §271.6, the program description must include:
• Scope, structure, coverage, and processes of the state program
• Description of the organization or state agency that will manage the program
• Estimate of the cost of administering the program, as well as sources and
amounts of funding available
• Description of the applicable state procedures, such as procedures for
permitting or judicial review
• Copies of any forms used to administer the program under state law
• Description of the state's compliance tracking and enforcement program
• Description of the state's manifest tracking system
• Estimation of the size of the regulated community in the state (i.e., number of
generators, transporters, and TSDFs)
• Estimate of the annual quantities of hazardous waste generated, transported,
stored, treated, or disposed of within the state, if available.
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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4 - State Programs
ATTORNEY GENERAL'S STATEMENT
Before EPA can grant authorization to a state, it must be clear that the state has the
necessary legal authority to be able to implement and enforce the regulations. This is
demonstrated by a statement, signed by the state attorney general, certifying that the
state has the legal authority to implement and enforce the regulations submitted in the
application and that the submitted regulations are adequate to meet authorization
standards (§271.7).
MEMORANDUM OF AGREEMENT
A memorandum of agreement (MOA) serves as a contract between the state and the
Regional Administrator. This agreement identifies each party's roles and
responsibilities and how the state and Region plan to measure achievements.
According to §271.8, the MOA must address:
• Cooperative activities in areas for which the state is not authorized (e.g., joint
permitting)
• Transitional activities (e.g., transfer of permit or delisting applications)
• Enforcement and oversight authorities that EPA retains after authorization (e.g.,
routine and emergency inspections by EPA)
• Administrative procedures (e.g., sharing information between state and EPA)
• Any state commitments to carry out administrative procedures or variances and
waivers to ensure state's adherence to authorization standards.
PUBLIC INVOLVEMENT
A state must demonstrate that the public was allowed to participate in the state's
decision to seek final authorization. Prior to submitting the application to EPA, a state
seeking program approval must give public notice across the state (e.g., by publication
in major newspaper). The notice must allow for a 30-day public comment period, as
well as a public hearing if comments are extensive. The state must document public
involvement by compiling copies of comments submitted as well as transcripts,
recordings, or summaries of any public hearings held by the state on program
approval. The state must also address the comments received from the public in the
application (§271.20).
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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State Programs - 5
2.3 EPA APPROVAL PROCESS
Once the state has followed the regulatory procedures for submitting an application for
authorization, EPA begins a process to determine whether or not authorization should
be granted. Some states are not able to receive final authorization immediately because
their programs do not meet minimum federal requirements. As a result, these states
can obtain interim authorization. Other states with programs that are fully equivalent
to the federal program receive final authorization directly.
INTERIM AUTHORIZATION
To provide for smoother transitions from federal to state implementation, Congress
allowed interim authorization under both RCRA (§3006 (c)) and HSWA (§3006(g))
statutory provisions (§271.24(a)). Interim authorization was established to allow states
to continue operating their own hazardous waste programs while striving to achieve
the requirements for final authorization. This provides states with a transition period
to adopt all the changes necessary to implement programs equivalent to the federal
requirements. A state with interim authorization can temporarily implement the state
hazardous waste program in lieu of the federal program. Although RCRA program
interim authorization expired on January 31, 1986, interim authorization still exists for
HSWA provisions. Interim authorization for the HSWA provisions expires January 1,
2003 (§271.24(c)). Any state with HSWA interim authorization must obtain final
authorization by this date or the HSWA program will revert to EPA.
FINAL AUTHORIZATION PROCESS
In order to grant final authorization to a state, the EPA Regional Administrator (RA)
must determine whether or not the state's program meets the federal requirements (See
Figure 1). The RA will review the application and must be satisfied that the program is
consistent with and at least as stringent as the federal program before approval. After
receipt of the state program application, the RA has 90 days to make a tentative
determination in the Federal Register (then there is an additional 30-day public
comment period). Within 90 days of the tentative determination, the RA must make a
final determination and publish a notice in the Federal Register and major newspapers
within the state. The notice must include the reasons for making any determination
and responses to significant comments received (§271.20(e)).
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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6 - State Programs
Figure 1
INITIAL PROGRAM APPLICATIONS
STATE PROGRAM APPROVAL
PROCESS
State issues public notice of intent to seek approval
(§271.20(a))
30-day comment period (§271.20(a)(4))
Sufficient public interest
YES
NO
State submits proposed program to EPA for
approval (§271.20(c))
Within 90 days the Administrator gives
notice of tentative determination in the
Federal Register (§271.20(d))
NO
Public hearing 30 days after
notice (§271.20(a)(6))
I
Substantial modification to
program (§271.20(b))
YES
Further opportunity for comment
Sufficient public interest
(§271.20(d)(1))?
NO
YES
Public hearing no earlier than 30 days
after tentative determination
(§271.20(d)(1))
30-day comment period (§271.20(d)(2))
May not require public hearing
Within 90 days the Administrator makes
a final determination (§271.20(e))
The Administrator publishes notices
in the Federal Register and newspapers
addressing reasons for determination
and responding to comments
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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State Programs - 7
2.4 SUBSEQUENT PROGRAM REVISIONS
Once a state has gained final authorization, it must continually amend and revise its
program to reflect changes in the federal regulations and maintain its authorization
status. To revise its authorized program, a state must submit documentation similar to
the documents used in the initial authorization applications discussed above. The
actual documentation required will vary, depending on the scope of the state
modifications and previously submitted application materials. EPA generally uses a
streamlined process for issuing an immediate final rule for subsequent revision
approvals. This means that authorization is automatically effective in 60 days unless
adverse comment is received within 30 days (§271.21(b)(3)(iii)).
THE CLUSTER RULE
The federal RCRA program is constantly evolving. If states were required to adopt
every federal change into their program as soon as it occurred, they would be
continually changing their requirements. To avoid the burden this would place on
state lawmakers and the regulated community, RCRA only requires that states modify
their programs on a yearly basis. Therefore, a state can incorporate all of the changes of
a year into the program at one time. EPA groups new federal rules into annual clusters
(See Figure 2). A state may revise its program by adopting and becoming authorized
for the entire cluster, or may request authorization for parts of a cluster, provided the
state eventually adopts all of the required provisions.
States that have adopted the basic cluster of RCRA regulations, those promulgated
before January 26, 1983, are considered to be "base authorized." Rules issued after
January 26, 1983, are each assigned a checklist number, and are grouped into clusters
based on the period of time in which they were promulgated. Each cluster has a name
as well as due dates by which authorized states must submit applications to revise
their program to include that group of rules (§271.21(e)). See Appendix G of the State
Authorization Manual for a complete list of all clusters.
To become authorized for new regulations, a state must adopt those regulations in its
state program before applying for authorization. Usually the state needs only to
amend its regulations to reflect the new rules. When this is the case, states have one
year from the closing date of the cluster in which the rule was placed to apply for
revisions. Sometimes, however, the implementing agency lacks the statutory authority
from the state legislature to write certain regulations. If a state statutory change is
required before regulations can be issued, a second year is allowed (§271.21 (e) (2) (v)).
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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8 - State Programs
Figure 2
THE CLUSTER SYSTEM
Non-
HSWA
Clusters
HSWA
Clusters
RCRA
Clusters
Cluster
Number*
I
II
III ... V
VI
I
II
I
II
III ... VII
VIII
IX
Cluster
Period
July 1, 1984, to
June 30, 1985
July 1, 1985, to
June 30, 1986
July 1, 1986, to
June 30, 1987, etc.
July 1, 1989, to
June 30, 1990, etc.
Novembers, 1984,
to June 30, 1987
July 1, 1987, to
June 30, 1990
July 1, 1990, to
June 30, 1991
July 1, 1991, to
June 30, 1992
July 1, 1992, to
June 30, 1993, etc.
July 1, 1997, to
June 30, 1998
July 1, 1998, to
June 30, 1999
State
Modification
Deadline**
July 1,1 986
July 1,1 987
July 1,1988, etc.
July 1,1991
July 1,1 989
July 1,1991
July 1,1992
July 1,1993
July 1, 1994, etc.
July 1,1999
July 1,2000
State Revision
Application Deadline
September 1, 1986
September 1, 1987
September 1, 1988, etc.
September 1, 1991
September 1, 1989
September 1, 1991
September 1, 1992
September 1, 1993
September 1, 1994, etc.
September 1, 1999
September 1, 2000
Program Areas
Affected
Non-HSWA Rules and
HSWA §3006 (f)
Non-HSWA Rules
Non-HSWA Rules
Non-HSWA Rules
HSWA Provisions
HSWA Provisions
All HSWA and
Non-HSWA Provisions
All HSWA and
Non-HSWA Provisions
All HSWA and
Non-HSWA Provisions
All HSWA and
Non-HSWA Provisions
All HSWA and
Non-HSWA Provisions
* Checklists 1-8 were issued prior to establishment of the cluster system. State modification deadlines for
these rules are one year from the promulgation date of each rule, or two years if a statutory change is
required.
** One additional year provided if statutory change is needed. Can be extended by up to 18 months (see
§§271.21 (e) and (g)).
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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State Programs - 9
ABBREVIATED REVISION PROCESS
On November 30, 1998, EPA promulgated an abbreviated program revision process in
§271.21(h) (63 FR 65874). EPA believes it is appropriate to have an abbreviated
authorization process for minor or routine rules to be used by states that have already
received authorization for the significant parts of the RCRA program that are being
revised. In the future, as EPA proposes rulemakings, the Agency will also propose to
list additional minor or routine rules in Table 1 to §271.21 (h). EPA is developing
guidance to enable states and Regions to make proper decisions regarding which
previously promulgated rules should be included in an authorization application that
uses the abbreviated procedures (63 FR 65929; November 30, 1998).
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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10 - State Programs
3. STATE AUTHORIZATION AND EFFECTIVE DATES
The state authorization process and the effective dates of rules depend upon whether
EPA promulgated a rule pursuant to HSWA or RCRA authority, and whether the rule
is less stringent or more stringent than current regulations.
3.1 EFFECT OF RCRA/HSWA AUTHORITY
Prior to the enactment of HSWA, a state with final authorization administered its
hazardous waste program entirely in lieu of the federal program. This meant the
federal requirements no longer applied in an "authorized" state. When a new, more
stringent, federal requirement was enacted, the state was obligated to enact equivalent
authorities within specified time frames, but the new federal requirements were not
effective in the authorized state until the state adopted the new requirements as state
law and received authorization for them. Some federal rules are still issued based on
the original pre-HSWA authority and become effective in authorized states only when
the state adopts the provisions as state law. These rules are known as "non-HSWA"
rulemakings.
In contrast, HSWA amended RCRA by adding §3006 (g). Under this section, new
requirements and prohibitions imposed by HSWA take effect in authorized states at the
same time that they take effect in unauthorized states. These regulations are known as
"HSWA" provisions. EPA implements these requirements in authorized states until the
state is granted authorization to implement the new regulation(s). While states must
still adopt HSWA provisions as state law to maintain authorization, HSWA
requirements are implemented by EPA in authorized states until they do so.
The underlying statutory authority is explained with each new rule in the Federal
Register on the first page under "Summary" and at the end of the preamble in a special
section titled "Applicability of Rules in Authorized States." Until authorized states
obtain approval for HSWA-based requirements, there will be joint state/EPA
permitting of facilities in the authorized state. The MO A must discuss joint permitting
responsibilities and procedures.
One example of the applicability of HSWA provisions and non-HSWA provisions in
authorized and non-authorized states is illustrated by the rulemaking that
promulgated the wood preserving listings (F032, F034, and F035). These wood
preserving wastes were promulgated pursuant to both HSWA and non-HSWA
authorities. The F032 listing is a HSWA provision, and is applicable in all states, both
authorized and non-authorized. The F034 and F035 listings are non-HSWA provisions.
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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State Programs - 11
The F034 and F035 listings are effective only in states that are not authorized for the
RCRA program and in states that have incorporated the listings into their state
programs and have received EPA approval for their revised state programs. The F034
and F035 listings are not applicable in authorized states that have not yet modified
their state programs to include the listings.
3.2 LESS STRINGENT PROVISIONS
In order to maintain the authority to administer the federal hazardous waste program,
authorized states are generally required to revise their state hazardous waste programs
as new federal regulations are promulgated. Sometimes, however, federal rulemakings
are less stringent than the existing federal standards. In such instances, authorized
states are not required to incorporate the less stringent standards into the state
hazardous waste program, and they retain authorization for the RCRA program. For
example, if EPA were to promulgate an exemption for some forms of a currently listed
hazardous waste, authorized states would be under no obligation to adopt the less
stringent rule. The rule would be effective in the authorized state only if adopted by
the state.
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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12 - State Programs
4. WITHDRAWAL OF AUTHORIZATION
Neither RCRA nor HSWA requires that states apply for initial authorization. Once a
state has been granted authorization, however, it must regularly modify its program to
incorporate new federal requirements in order to maintain full authorization
(§271.21 (e) (1)). An authorized state must modify its program and submit authorization
applications according to the schedule in the cluster rule, described above. If a state
falls behind the schedule set out by the cluster rule, the Region may grant the state an
extension or put it on a compliance schedule (§271.21 (g)). An important exception to
this requirement is for changes in the federal program that are deemed less stringent
than previous requirements. States are not required to incorporate less stringent
provisions into their hazardous waste programs.
The Administrator may withdraw program approval of any authorized state when the
state no longer complies with the requirements of Part 271. Withdrawal of program
approval may occur for the following reasons: the state's legal authority no longer
meets the requirements of Part 271, the operation of the state program does not comply
with the Part 271 requirements, the state's enforcement program fails to comply with
Part 271, or the state program fails to comply with the terms of the MOA (§271.22). The
program withdrawal authority is discretionary, however, and EPA encourages Regions
to approve states' authorization applications, even when there are elements of a cluster
that are incomplete or overdue.
If an authorized state determines that it can no longer comply with the requirements of
Part 271, the state may voluntarily transfer program responsibilities to EPA. In doing
so, the state must give the Administrator 180 days notice of the proposed transfer of all
relevant program information. At least 30 days before the approved transfer occurs, the
Administrator must publish notices of the transfer in the Federal Register and major
newspapers within the state.
A transfer of program responsibilities may also occur after the Administrator orders
withdrawal proceedings to begin. Commencement of the proceedings may be under
the Administrator's own initiative or in response to a petition from an interested person
alleging failure of the state to comply with the requirements of Part 271. A more
detailed description of the procedures for withdrawing approval of a state program is
codified in §271.23.
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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