RCRA C State Authorization 101 Overview of Definition

RCRA C State Authorization 101, Overview of Definition of Solid Waste Rule, and Highlights of Proposed and Final Recent Rules Presented by Office of State Programs and Office of Regional Counsel 1

Overview �RCRA C Authorization Process �Overview of Definition of Solid Waste �Updates on Other Relevant Proposed/Final Rules 2

What is RCRA State Authorization? �States are granted the authority to implement the Federally-authorized State hazardous waste program in lieu of the Federal program. �States seek authorization for: �Availability of funding (via grants); �Opportunity for state control (e. g. , permitting, enforcement actions, etc. ) �Allows EPA to take enforcement 3

HSWA’s Effect of State Authorization �Prior to HSWA in 1984, new RCRA regulations took effect only in States that were not authorized for the base program �EPA implements HSWA requirements until the States are authorized �Preamble to each federal rule indicates whether it is promulgated pursuant to HSWA or pre-HSWA authority (some rules are promulgated under both) �See Table 1 in 40 CFR 271. 1 and tables in the authorization website for lists of rules promulgated under HSWA 4

More Stringent and Broader in Scope �State regulations cannot be less stringent than the federal regulations �State regulations which are broader in scope are not part of a state’s authorized program, and thus, EPA cannot enforce them �However, states can enforce such regulations �EPA has issued guidance regarding how to determine whether a state regulation is more stringent or broader in scope than the federal regulations 5

Examples of More Stringent and Broader in Scope Provisions �More stringent: �Additional requirements regarding SQGs and CESQGs �Submittal of annual report rather than BR �Maintaining records of weekly inspections �Secondary containment in container storage area �Broader in scope : �Listing of wastes that are not in federal HW wastes (e. g. , PCB wastes) �Lower concentration level for classifying waste as hazardous (e. g. , lead) �State regulation of used, broken CRTs that meet federal exclusion (e. g. , DE considers used CRTs a solid waste) �Case Study – Region 1 Southern Union Case 6

What Is Enforceable by EPA? �Authorized program, which may be equivalent or more stringent than the federal program (includes both HSWA and non-HSWA provisions) �HSWA provisions, even for States that have not adopted/authorized the federal regulations 7

Region 3 Enforcement Examples �HSWA – EPA can implement and enforce prior to state adoption/authorization �LDR, Subpart AA/BB/CC � MD has not adopted or authorized �Corrective Action � DC, MD, & PA have not adopted or authorized �Other Examples �Solvent Wipes Rule (Non-HSWA) � Optional rule - Less stringent than previous federal rules � Only PA & VA have adopted (but not authorized) this rule � EPA cannot enforce in any R 3 states because the rule is non-HSWA, and EPA would not enforce any less stringent rules (even if HSWA) �Universal Waste – Lamps (Non-HSWA) � DC, MD, VA have adopted but not authorized � Within these States, if there are facilities not complying with Part 273, EPA could enforce HW generator requirements (rather than UW regulations) 8

Overview of State Adoption/Authorization Process �EPA Promulgates Regulation (Proposed/Final) �State Adopts Regulation �State Develops and Submits Authorization Package �Region Approves Authorized Program 9

Overview of State Adoption/Authorization Process EPA Promulgates Rule States Rule Adoption States Submit Auth Application EPA Approves States Authorization FR Notice HSWA EPA Enforceable State and EPA Enforceable Non. HSWA Not EPA Enforceable State and EPA Enforceable 10

State Adoption Process �State determines if will adopt that rule �If more stringent -> adoption and authorization is required �If less stringent -> adoption and authorization is optional �State goes through regulatory process to adopt new rules �R 3 reviews draft regulations prior to adoption �Every state has different rulemaking process �Some states have a statute or policy which prevents their rules from being more stringent than the EPA rules �DE, MD, and DC rewrite their regulations to incorporate new rules �PA adopts regulations prospectively by reference �VA & WV generally incorporate federal regulations by reference 11

Authorization Process �States are encouraged to submit authorization revisions on a regular basis, every 2 -3 years. �Iterative and sequential �Application preparation and submission by the state, then review, comment, and approval by EPA �Once authorization revision is approved by EPA, federal Register Notice (FRN) is issued �Identifies changes made to the authorized program, clearly states broader in scope or more stringent provisions �Contains the official/approved information for the authorized program �Public comment period �Codification – Incorporates state regulations into CFR 12

State Application Components �Final state rules �Rule checklists or document comparing federal and state rule. �Program Description and Memorandum of Agreement (MOA) �Revised Attorney General’s (AG) Statement or certification 13

Authorization Resources RCRA State Authorization Website: http: //www 3. epa. gov/epawaste/laws-regs/state/index. htm �Region 3 Authorization Website (archived): http: //archive. epa. gov/reg 3 wcmd/RCRA_State_Star/web/html/r cra_star_index. html • Contains historical authorization materials, including State authorized regulations through the present • Contains summary table of significant regulations adopted and authorized by Region 3 states (Note – This can no longer be updated on this website) 14

Region 3 Authorization Status Adopted/Authorized Program Area HSWA/Non. HSWA Major Checklists DE DC MD PA VA WV Base Program HSWA I-V Y/Y Y/Y Y/Y BIF HSWA/Non-HSWA 85 Y/Y N/N Y/Y Y/Y CA HSWA 17 L Y/Y N/N Y/N N/N Y/Y LDR HSWA 34, 106, 157, 167 A Y/Y N/N Y/Y Y/Y Air Emission Standards HSWA 154 Y/Y N/N Y/Y Y/Y Universal Waste - Excluding lamps Non-HSWA 142 A Y/Y Y/Y Y/Y Universal Waste - Lamps Non-HSWA 181 Y/Y Y/N Y/Y Used Oil HSWA/Non-HSWA 130 Y/Y N/N Y/N Y/Y Mixed Waste Non-HSWA 191 Y/Y Y/N N/N Y/Y Y/N Exclusion - Solvent Contaminated Wipes Non-HSWA 229 N/N N/N Y/N Y/N E-Manifest 1 -Year Rule Non-HSWA 231 Y/N N/N Y/N Y/N Revised CRT Export Provisions HSWA 232 N/N N/N Y/N N/N Revisions to DSW Non-HSWA/ HSWA 233 N/N N/N Y/N N/N Vacatur of the Comparable Fuels Rule Non-HSWA 234 N/N N/N Y/N N/N 15

Region 3 State RCRA C Authorization Status State (State Program Manager) Authorized Through (FR Year) Current Status of Next Authorization Package Submittal Delaware (S. Pratt) 2002 Awaiting final authorization package (drafts had been submitted; EPA has provided comments). Will be authorized through July 28, 2006 (Checklist 215). Expecting final submittal in June 2016; Anticipating authorization in FY 16. District of Columbia (S. Kinslow) 1998 Awaiting final authorization package (drafts had been submitted; EPA has provided comments). Will be authorized through April 26, 2004 (Checklist 205). Expecting final submittal by second quarter FY 16; Anticipating authorization in FY 16. Maryland (S. Pratt) 2000 Received final authorization package, and EPA is reviewing. Will be authorized through August 5, 2005 (Checklist 209). Anticipating authorization in FY 16. *Note – This package does not include LDR. * Pennsylvania (A. Barbieri) 2005 PA has submitted draft checklists to bring them up to January 2014 (contaminated solvent wipes rule). Expecting authorization package in 2016. Virginia (A. Barbieri) 2010 Expecting authorization package in Winter/Spring 2016. West Virginia (C. Mc. Goldrick) 2010 16

2015 Definition of Solid Waste (DSW) Final Rule �Federally Effective: July 13, 2015 � Already adopted in PA and VA � No R 3 states authorized �Non-HSWA �Encourages sustainability through recycling, while improving safeguards against mismanagement of hazardous secondary materials (HSM) �Addresses potential risks to human health from sham recycling, overaccumulation, and mismanagement of HSM 17

Changes to RCRA Base Program 1. Changes to the standards and criteria for the solid waste variance and non-waste determinations § 260. 30 – 260. 34 2. Recordkeeping requirements for speculative accumulation § 261. 1(c)(8) 3. Prohibition of sham recycling and the definition of legitimate recycling § 261. 2(b)(4) & (g) § 260. 43 4. Conditional exclusions for legitimate recycling § 261. 4(a)(23), (24) & (27) 18

Variances and Non-Waste Determinations Required to Maintain Authorization Facilities that have received or are requesting a variance/non-waste determination must: 1. Re-apply every 10 years 2. Re-notify every 2 years (on BR schedule) 3. Provide notice of a change in circumstances that impacts variance/non-waste determination decision 19

Variances and Non-Waste Determinations Optional* Facilities may petition for a scenario-specific variance or non-waste determination if the HSM being managed is: 1. Reclaimed in a continuous industrial process 2. Indistinguishable from a product or intermediate Facilities in a state that is not authorized for these provisions may petition EPA directly. 20

Speculative Accumulation Required to Maintain Authorization Facilities storing HSM prior to recycling must demonstrate that 75% of material accumulated is recycled in a calendar year and must: Place materials in a storage unit that is labeled with the first date on which accumulation began, OR 2. Maintain a log of the first date on which accumulation began 1. 21

Definition of Legitimate Recycling Required to Maintain Authorization “Sham recycling” is any recycling that is not “legitimate. ” 22

Definition of Legitimate Recycling Required to Maintain Authorization Recycling is legitimate if: 1. HSM provides a useful contribution to the recycling process, product, or intermediate 2. Recycling produces a valuable product or intermediate 3. HSM is managed as a valuable commodity 4. The product is comparable to a legitimate product or intermediate 23

Recycling Exclusions Optional* 1. HSM managed under the control of the generator § 261. 4(a)(23) 2. HSM transferred to a “verified recycler” § 261. 4(a)(24) 3. Spent solvent remanufacturing § 261. 4(a) (27) 24

Recycling Exclusions Optional* 1. “Generator-Controlled Exclusion” � HSM is recycled: � On-site � Off-site within the same company � Within a certain tolling agreements 2. “Verified Recycler Exclusion” � Receiving facility has: � Part B permit � “Verified recycler” variance 25

Recycling Exclusions – Conditions for Generators Optional* Generator-Controlled: Verified Recycler: 1. Subject to the speculative accumulation, 1. including new recordkeeping Subject to the speculative accumulation, including new recordkeeping 2. Must notify using EPA Form 8700 -12 3. HSM must be contained 4. Must follow emergency preparedness and response requirements 5. Must maintain records of off-site shipments and confirmation of receipts for 3 years 6. Must maintain documentation that reclamation is legitimate Must send their HSM to a verified reclamation facility (RCRA Part B permitted or obtained a DSW variance) in the U. S. 26 6.

Recycling Exclusions – Verified Recycler Variance Optional* To receive variance, reclaimer must: 1. Demonstrate recycling is legitimate 2. Have financial assurance 3. Not have had any formal enforcement actions for RCRA violations in the previous 3 years 4. Meet personnel training and emergency preparedness and response requirements 5. Properly manage residuals 6. Address risk to nearby communities from potential releases 27

Recent Rulemakings Rule Status of Rule Definition of Solid Waste (DSW) Final (FY 15) - PA has adopted in full - VA in the process of adopting in full, with more stringent state requirements - DE, DC, MD, and WV will adopt at least the more stringent provisions Coal Combustion Residual Final (FY 15) - RCRA Subtitle D regulation E-Manifest One Year Rule E-Manifest Fee Schedule Import/Export Final (FY 14) - DE, PA, VA, and WV have adopted the rule. All States are expected to adopt and authorize the rule. States must adopt before system becomes active (2018). National proposed rulemaking FAR process complete. In development Status/Plans of State to Adopt/Authorize Proposed (FY 16) - Uncertain at this time – States do not receive authorization to administer the Federal government’s export or import functions in the RCRA hazardous waste regulations, however, State programs are still required to adopt the final provisions in this rule to maintain their equivalency with the Federal program. Generator Improvements Proposed (FY 15) - Uncertain at this time – Some parts are more stringent, so States would be required to adopt/authorize these parts of the rule. Pharmaceuticals Proposed (FY 15) - Uncertain at this time – Most parts are more stringent, so States would be required to adopt/authorize these parts of the rule. Non-Secondary Hazardous Materials (NSHM) Final (FY 16) – Signed 1/21/16 - NA – Not covered under RCRA Subtitle C (Subtitle D regulation) 28

Questions? �Office of State Programs: �Judy Hykel, Acting Associate Director �Stacie Pratt – Team Leader and SPM for DE and MD �Andrea Barbieri – PA and VA �Sara Kinslow – DC �Cassie Mc. Goldrick – WV �ORC: Hilda Burgos 29