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Coughlan, Laura

From: Groce, Bryan

Sent: Wednesday, April 23, 2014 12:36 PM

To: Coughlan, Laura

Subject: FW: REMINDER - request for assistance in running proposed deletion of note in 263.10 

past DOT

Per Dirk’s email below, DOT is okay with removing the text contained in the note.

From: Dirk.DerKinderen@dot.gov [mailto:Dirk.DerKinderen@dot.gov] 

Sent: Tuesday, April 22, 2014 12:10 PM 

To: Groce, Bryan 

Subject: RE: REMINDER - request for assistance in running proposed deletion of note in 263.10 past DOT 

Bryan,

I have no problem with removing the text....especially since it should now read 49 CFR Parts 171‐180.

Sincerely, 

Dirk Der Kinderen 

From: Groce, Bryan [mailto:Groce.Bryan@epa.gov] 

Sent: Friday, April 18, 2014 2:38 PM 

To: DerKinderen, Dirk (PHMSA) 

Subject: FW: REMINDER - request for assistance in running proposed deletion of note in 263.10 past DOT 

Hi Dirk,

Per Laura’s email below and the preceding thread of emails, I wanted to know whether DOT is okay with removing the

text language currently in 40 CFR Part 263.10.  Rich and I are okay with removing it, but we wanted to run it by you to

determine whether DOT was okay with removing it as well.

Sent: Friday, April 11, 2014 1:25 PM 

To: LaShier, Rich; Groce, Bryan 

Subject: REMINDER - request for assistance in running proposed deletion of note in 263.10 past DOT 

Hey Guys:

Could you please email your DOT contact to inform them that EPA considers the last paragraph in the note in 40 CFR

263.10 (text immediately below) to no longer be needed and is planning to propose deleting it unless DOT has significant

concerns with doing so.   

Text from note in 40 CFR 263.10: EPA and DOT worked together to develop standards for transporters of hazardous

waste in order to avoid conflicting requirements. Except for transporters of bulk shipments of hazardous waste by

water, a transporter who meets all applicable requirements of 49 CFR parts 171 through 179 and the requirements of

40 CFR 263.11 and 263.31 will be deemed in compliance with this part. Regardless of DOT's action, EPA retains its

authority to enforce these regulations.

This Note was included in the original 1980 RCRA rulemaking to ease compliance, but was not removed during the 1986

regulation amendments, which introduced additional requirements into part 263, such as export provisions in 263.20(a).

This language, if enforceable, would permit transporters to sidestep nearly all of part 263’s requirements, including
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those not contemplated when the Note was written. While Notes technically lack the legal force of regulation, this one

would impede an enforcement proceeding if raised as a defense, and would likely require explanation to a judge.

Laura L. Coughlan, P.E.

Environmental Scientist

International and Transportation Branch

U.S. EPA (5304P)

phone: 703‐308‐0005

fax: 703‐308‐0514

From: Coughlan, Laura  

Sent: Wednesday, March 26, 2014 12:34 PM

To: LaShier, Rich

Subject: RE: Please confirm that I can propose deleting note in 263.10

Could you send it to your DOT contact (I know you must have one)?  PLEEEEEEEEEASE?

From: LaShier, Rich  

Sent: Wednesday, March 26, 2014 12:32 PM

To: Coughlan, Laura

Cc: Groce, Bryan

Subject: RE: Please confirm that I can propose deleting note in 263.10

Laura,

I personally have no problem with the deletion of the note, but since it does reflect coordination of EPA and

DOT requirements, we should run it past DOT to be sure that it does not give them any heartburn.

Rich

  

From: Coughlan, Laura

Sent: Wednesday, March 26, 2014 10:48 AM

To: LaShier, Rich

Subject: RE: Please confirm that I can propose deleting note in 263.10  

  

The bottom of this thread includes Bob’s rationale for deleting.  It makes sense to me and Bryan said he did not see a

need for the note any longer, but I wanted to check if you had any concerns.  If you don’t think we should propose

deleting the note, please let me know why so I can tell Bob.  Otherwise, I think we should at least propose deleting it as

no longer needed.

From: LaShier, Rich  

Sent: Wednesday, March 26, 2014 10:44 AM

To: Coughlan, Laura

Subject: RE: Please confirm that I can propose deleting note in 263.10

  

If he did, it was so long ago that it slipped by my consciousness!

  

From: Coughlan, Laura

Sent: Wednesday, March 26, 2014 10:23 AM
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To: LaShier, Rich

Subject: RE: Please confirm that I can propose deleting note in 263.10

The request came from OECA and is to delete the entire note.  As for why now – because we are amending the

import/export/transit related regulations and Bob Heiss saw a chance to ask for the change.  I gather he has wanted to

delete this for some time.  Has he never asked you about it?

From: LaShier, Rich  

Sent: Tuesday, March 25, 2014 3:56 PM

To: Coughlan, Laura

Cc: Groce, Bryan

Subject: RE: Please confirm that I can propose deleting note in 263.10

  

Laura,

Are you trying to delete the entire note, or just certain language in it that is obsolete?  Why do you see the need to

delete it at this point in time?

Thanks,

Rich

From: Coughlan, Laura 

Sent: Tuesday, March 25, 2014 3:46 PM 

To: LaShier, Rich 

Cc: Groce, Bryan 

Subject: Please confirm that I can propose deleting note in 263.10

  

Rich:

I talked with Bryan and he said that he was okay with proposing to delete the note in 263.10, but that I should confirm

with you since you know the history on this note.  I know you guys are super busy with e‐manifest, but please let me

know this week if you have a concern with ORCR proposing to delete the note.  If I do not hear anything, I will assume

that it is okay to propose deletion of the note.

Laura Coughlan

From: Coughlan, Laura  

Sent: Wednesday, March 12, 2014 3:59 PM

To: Groce, Bryan; LaShier, Rich

Subject: RE: question about note in 263.10 ‐ STILL NEED YOUR FEEDBACK

  

Hey Guys:

Did you get a chance to talk about the note in 263.10?  I’d really like an answer.

Laura Coughlan

From: Groce, Bryan 

Sent: Thursday, February 27, 2014 11:05 AM 

To: Coughlan, Laura 

Subject: RE: question about note in 263.10 - STILL NEED YOUR FEEDBACK

  
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I don’t have the historical knowledge so I don’t know whether this note is still relevant.  Rich is across the river so I will

ask him upon his return.

From: Coughlan, Laura 

Sent: Thursday, February 27, 2014 10:58 AM 

To: LaShier, Rich; Groce, Bryan 

Subject: FW: question about note in 263.10 - STILL NEED YOUR FEEDBACK 

Importance: High

  

Hello Rich and Bryan:

I was going through my list of possible issues for my Export‐Import Revisions rule, and I realized that I never got

feedback from you guys back in November (see email below) on whether the note to 263.10 is still needed as negotiated

text that cannot be altered.  Could you please provide feedback on this ASAP?  Bob Heiss agreed to drop if it was

negotiated text that cannot be amended.

Laura Coughlan

From: Coughlan, Laura 

Sent: Friday, November 08, 2013 11:25 AM 

To: LaShier, Rich; Groce, Bryan 

Cc: Noggle, William; Nam, Katherine 

Subject: question about note in 263.10

  

Dear Bryan and Rich:

  

During  a workgroup meeting on my export‐import rule, OECA presented issues they would like included in the early

guidance list of issues to potentially address in the proposed rule.  One of the presented issues was the following (OECA

description below):

  

1) 263.10 Note Exempting some transporters from Part 263 requirements

Text: EPA and DOT worked together to develop standards for transporters of hazardous waste in order to avoid

conflicting requirements. Except for transporters of bulk shipments of hazardous waste by water, a transporter who

meets all applicable requirements of 49 CFR parts 171 through 179 and the requirements of 40 CFR 263.11 and

263.31 will be deemed in compliance with this part. Regardless of DOT's action, EPA retains its authority to enforce

these regulations.

Problem(s): This Note was included in the original 1980 RCRA rulemaking to ease compliance, but was not removed

during the 1986 regulation amendments, which introduced additional requirements into part 263, such as export

provisions in 263.20(a). This language, if enforceable, would permit transporters to sidestep nearly all of part 263’s

requirements, including those not contemplated when the Note was written. While Notes technically lack the legal

force of regulation, this one would impede an enforcement proceeding if raised as a defense, and will require

explanation to a judge.

Proposed Solution: Delete the note? Is this possible or a negotiated concession that cannot be altered

  

I said I would ask the manifest team whether or not the note text was negotiated text that could not be altered.  If it is,

please let me know so that I can let OECA know, and drop it from the list of issues.  What are your thoughts/concerns

about this request?

  

Laura L. Coughlan, P.E.

phone: 703‐308‐0005
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fax: 703‐308‐0514