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Managing Hazardous Waste — RCRA Subtitle C SECTION III SECTION III

Chapter 11: Authorizing States to Implement RCRA

CHAPTER 11

AUTHORIZING STATES TO IMPLEMENT RCRA

needs would allow them to administer the

hazardous waste program in the most effective

manner.

In order for a state to assume the regulatory

lead as the implementing agency, it must be

authorized by EPA to do so. RCRA requires

authorization to ensure state programs are at least

equivalent to and consistent with the federal rules.

Through state authorization, EPA establishes

minimum federal standards to prevent overlapping

or duplicative state regulatory programs. A state

that has received final authorization, known as an

authorized state, implements and enforces the

hazardous waste regulations in lieu of the federal

government.

DEVELOPING A STATE HAZARDOUS

WASTE PROGRAM

Under RCRA, as enacted in 1976, states had

two options for assuming the responsibility to

administer the RCRA Subtitle C program: final or

interim authorization.

In this chapter...

Overview........................................................... III-157

Developing a State Hazardous Waste

Program ............................................................ III-157

- Final Authorization ......................................... III-158

- Interim Authorization ..................................... III-160

Review of the Proposed State Program ........... III-161

Revising Authorized State Programs ................ III-161

- Withdrawing State Program Authorization .... III-162

- Transferring Program Responsibility Back to

EPA ............................................................... III-163

Grants and Oversight ....................................... III-163

- State Grants .................................................. III-163

- Priority Setting ............................................... III-163

- State Oversight ............................................. III-163

Information Management ................................. III-163

- Resource Conservation and Recovery

Information System ....................................... III-164

- Biennial Reporting System ............................ III-164

- State Authorization Tracking System ............ III-164

Summary .......................................................... III-164

OVERVIEW

When RCRA was written, it was Congress’

intent for the states to assume primary

responsibility for implementing the hazardous

waste regulations, with oversight from the federal

government. Congress felt the states’ familiarity

with the regulated community, and state and local
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 SECTION III SECTION III Managing Hazardous Waste — RCRA Subtitle C

Chapter 11: Authorizing States to Implement RCRA

■ Final Authorization

For a state to receive final authorization, it

must be fully equivalent to, no less stringent than,

and consistent with the federal program.

However, states may impose requirements that are

more stringent or broader in scope than the

federal requirements. Some examples of rules

that are more stringent are the decision by some

states to not recognize the CESQG exemption, or

to require annual (rather than biennial) reports.

An example of a rule that is broader in scope is

the regulation of antifreeze as a listed waste in

some states. In addition, the state’s program must

provide adequate enforcement authority to carry

out its provisions, provide for public notice and

hearing in the permitting process, and provide for

public availability of information in “substantially

the same manner and to the same degree” as the

federal program.

As an initial step toward obtaining final

authorization, a state typically adopts the federal

rules in some manner. Adopting the federal

program means either incorporating federal rules

into the state’s rules, or creating state rules that are

equivalent to federal rules. Many states simply

incorporate the federal rules by reference (this is

known as incorporation by reference). This is

when the regulatory language in a state’s

regulations actually cites, or refers to, the federal

regulations. A state may also choose to create an

analogous set of state regulations through the state

legislative process. Even though a state may have

adopted the federal program and its hazardous

waste program is similar or identical to the federal

program, it still does not have primacy for

implementing and enforcing the hazardous waste

regulations in lieu of EPA. To assume this role, the

state must first be granted final authorization. As

of January 1998, all states, with the exception of

Alaska, Hawaii, and Iowa, are authorized to

implement the RCRA hazardous waste program.

Any state that seeks final authorization for its

hazardous waste program must submit an

application to the EPA Administrator containing

the following elements:

• A letter from the governor requesting program

authorization

• A complete description of the state hazardous

waste program

• An attorney general’s statement

• A memorandum of agreement (MOA)

• Copies of all applicable state statutes and

regulations, including those governing state

administrative

procedures

• Documentation of

public participation

activities.

Governor’s Letter

This is simply a letter, signed by the governor,

formally requesting the EPA Administrator to

authorize the state’s hazardous waste program

which will be implemented in lieu of the federal

program.

Program Description

The program description describes how the

state intends to administer the hazardous waste

program in place of the federal program. It

includes the following:

ADOPTING FEDERAL REGULATIONS

As an initial step toward obtaining final authorization,

a state typically adopts the federal rules in some

manner. Adopting the federal program means either

incorporating federal rules into the state’s rules, or

creating state rules that are equivalent to federal

rules.
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Chapter 11: Authorizing States to Implement RCRA

• A narrative description of the scope, structure,

coverage, and processes of the state program

• A description of the state agency or agencies

responsible for running the program, including

a description of state-level staff who will carry

out the program

• A description of applicable state procedures,

including permitting procedures and any state

administrative or judicial review procedures

• A description of the state’s manifest tracking

system

• Copies of any forms used to administer the

program under state law

• A complete description of the state’s

compliance tracking and enforcement

program.

In addition, the program description must

include estimates of:

• Costs involved in running the program and an

itemization of the sources and amounts of

funding available to support the program’s

operation

• The number of generators, transporters, and

on-site and off-site disposal facilities (along

with a brief description of the types of facilities

and an indication of the permit status of these

facilities)

• The annual quantities of hazardous waste

generated within the state, transported into

and out of the state, and stored, treated, or

disposed of within the state (if available).

If the state chooses to develop a program that

is more stringent or broader in scope (or both)

than the one required by federal law, the program

description should address those parts of the

program that go above and beyond what is

required under RCRA Subtitle C.

Attorney General’s Statement

The attorney general’s statement identifies the

legal authorities — statutes, regulations, and

where appropriate, case law — upon which the

state is relying to demonstrate equivalence with

the federal program. The statement must include

citations to specific statutes, administrative

regulations, and judicial decisions which

demonstrate adequate authority. When

differences from federal authorities exist in the

state’s program, the statement provides an

explanation. The statement must be signed by the

attorney general or an independent legal counsel

authorized to represent the state agency in court.

State statutes and regulations cited in the attorney

general’s statement must be lawfully adopted and

fully effective at the time the program is

authorized.

Memorandum of Agreement

Although a state with an authorized program

assumes primary responsibility for administering

Subtitle C hazardous waste regulations, EPA still

SAMPLE MEMORANDUM OF AGREEMENT

This memorandum of agreement (hereinafter

“Agreement”) establishes policies, responsibilities,

and procedures pursuant to 40 CFR §271.8 for the

State of _______ Hazardous Waste Program

(hereinafter “State Program”) authorized under

Section 3006 of the Resource Conservation and

Recovery Act (hereinafter “RCRA” or “the Act”) of

1976 (Public Law 94-580, 42 USC §6901 et seq.)

and the United States Environmental Protection

Agency (hereinafter EPA) Regional Office for Region

_____. This Agreement further sets forth the manner

in which the State and EPA will coordinate in the

State’s administration of the State program.
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Chapter 11: Authorizing States to Implement RCRA

retains enforcement authority and oversight

responsibilities. In these instances, since the

authorized state and EPA both possess regulatory

authority to administer the regulations, there is a

potential for problems or conflicts, such as dual

permitting or dual enforcement of the regulations.

The memorandum of agreement between the

state Director and the EPA Regional Administrator

outlines the nature of these responsibilities and

oversight powers, and defines the level of

coordination between the state and the EPA in

implementing the program. While each MOA will

contain provisions unique to each individual

state’s program, several provisions are common to

all MOAs. These include provisions for:

• Establishing state procedures for assigning EPA

identification numbers

• Specifying the frequency and content of

reports that the state must submit to EPA

• Coordinating compliance monitoring and

enforcement activities between the state and

EPA

• Allowing EPA to conduct compliance

inspections of the regulated community in the

authorized state

• Joint processing of permits for those facilities

that require a permit from both the state and

EPA

• Specifying the types of permit applications that

will be sent to the EPA Regional Administrator

for review and comment

• Transferring permitting responsibilities upon

authorization.

State Statutes and Regulations

The state must submit copies of its statutes

and regulations that are expected to act in lieu of

the federal RCRA regulations. Where states adopt

the federal regulations by reference, a document

may be included outlining where in the state rules

the federal rules are incorporated.

Documentation of Public Participation

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 the Administrator, a state must have

given public notice of its intent to apply for

authorization. Public notice must take the form of

publishing the announcement in major

newspapers, sending information to individuals on

the state agency mailing list, and allowing for a 30-

day comment period. Proof of public

participation may include copies of comments

submitted by the public during the comment

period, and transcripts, recordings, or summaries

of any public hearings concerning state

authorization.

■ Interim Authorization

Some states are not able to receive final

authorization immediately because their programs

do not meet the minimum federal requirements.

As a result, these states can obtain interim

authorization. Interim authorization is a

temporary mechanism that is intended to promote

continued state participation in hazardous waste

management while encouraging states to develop

programs that are fully equivalent to the federal

program and that will qualify for final
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• Public comment — The public is given an

opportunity to comment on the state’s

application and the EPA Regional

Administrator’s tentative determination. If

sufficient interest is expressed, a public

hearing will be held after the notice of the

tentative determination is published in the

Federal Register.

• Final determination — After the notice of the

tentative determination is published in the

Federal Register, the EPA Regional

Administrator must decide whether or not to

authorize the state’s program, taking into

account all comments submitted. This final

determination is then published in the Federal

Register.

REVISING AUTHORIZED STATE

PROGRAMS

Once a state has gained final authorization, it

must continually amend and revise its program to

maintain its authorized status. As RCRA continues

to evolve through new federal rulemakings, an

authorized state is required to revise its program

to reflect the changes in the federal program. An

authorized state may also have to revise its

program in order to incorporate any state statutory

or regulatory changes that affect the state’s

hazardous waste program.

All program revisions may be initiated by

either EPA or the authorized state. To revise its

authorized program, a state must submit a

modified program description, attorney general’s

statement, MOA, or any other documents

deemed necessary by EPA. The EPA Administrator

reviews the state’s proposed modifications

applying the same standards used to review the

INTERIM AUTHORIZATION

Interim authorization is a temporary mechanism that

is intended to promote continued state participation

in hazardous waste management while encouraging

states to develop programs that are fully equivalent

to the federal program and that will qualify for final

authorization. A state may receive interim

authorization if its hazardous waste program is

substantially equivalent to the federal program.

authorization. A state may receive interim

authorization if its hazardous waste program is

substantially equivalent to the federal program.

Interim authorization is intended to allow a state

with its own hazardous waste program in place to

continue implementing its current program until

final authorization can be achieved. Under RCRA,

interim authorization expired on January 31,

1986. HSWA introduced a new interim

authorization period for any requirement

promulgated pursuant to HSWA authority. HSWA

interim authorization expires January 1, 2003.

REVIEW OF THE PROPOSED STATE

PROGRAM

Once the state has submitted a complete

application to EPA, the EPA Regional Administrator

determines whether or not the state’s program

should be authorized.

The EPA Regional Administrator makes this

determination according to the following steps:

• Tentative determination — The EPA Regional

Administrator must tentatively approve or

disapprove the state’s application. The

tentative determination is published in the

Federal Register.
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Chapter 11: Authorizing States to Implement RCRA

state’s initial program application. The state’s

program revisions are effective once approved by

EPA. Notice of all state program revisions are then

published in the Federal Register.

A state with final authorization must modify its

program on a yearly basis to reflect changes to the

federal program resulting from the promulgation

of new rules. New federal rules are grouped into

annual clusters, and a state revises its program by

adopting and becoming authorized for the entire

cluster. A cluster begins on July 1 of each year

and ends on June 30 of the following year. By July

1 of each year, an authorized state must adopt the

cluster, which includes all changes to the federal

program, that occurred during the 12 months

preceding the previous July 1 (e.g., states must

modify their programs by July 1, 1997 to reflect all

changes made between July 1, 1995 and June 30,

1996). The deadlines for program modifications

may also be extended for one year if state

statutory amendments are necessary.

■ Withdrawing State Program

Authorization

Authorized state programs are continually

subject to review. If the EPA Administrator

determines that a state’s authorized program no

longer complies with the appropriate regulatory

requirements and the state fails to amend its

program accordingly, authorization may be

withdrawn. An authorized state’s program may be

considered out of compliance for many reasons.

One reason could be failure to promulgate or

enact required regulations, leaving the state

without the legal authority to implement or

enforce its program. Also, the state legislature

could limit or strike down the state’s authority to

enforce its program. A state could also be out of

compliance by failing to issue required permits, or

by continually issuing bad permits. If an

authorized state fails to enforce its authorized

program properly, does not act on violations, fails

to assess proper penalties or fines, or fails to

inspect and monitor properly, it may also be

considered out of compliance. Finally, if the state

fails to comply with the requirements of the MOA,

the EPA Administrator may determine the state is

out of compliance and may begin program

withdrawal procedures. If program authorization

is withdrawn, responsibility for administering and

enforcing RCRA Subtitle C reverts back to EPA.

Although EPA can withdraw hazardous waste

program authorization for a state that fails to

enforce its authorized program properly or take

timely and appropriate action, the Agency can

take other action without officially withdrawing

authorization. In such instances, EPA may take

independent enforcement action by overfiling, or

enforcing a provision for which a particular state

has authorization. EPA may also overfile if the

state requests EPA to do so and provides

justification based on unique, case-specific

circumstances, or if a case could establish a legal

precedent. In order to overfile, EPA must notify

the state 30 days prior to issuing a compliance

order or starting a civil action within that state.

WHAT IS OVERFILING?

Overfiling is when EPA enforces a provision for which

a particular state has authorization in instances when

the state fails to enforce its authorized program

properly or take timely and appropriate action. EPA

may also overfile if the state requests EPA to do so

and provides justification based on unique, casespecific circumstances, or if a case could establish a

legal precedent. For example, an SQG in an

authorized state generates hazardous waste, but

does not store such waste in proper accumulation

tanks and containers. If the state failed to

adequately enforce against the facility for violation of

the generator provisions, federal EPA could overfile

by issuing an enforcement order forcing the facility to

comply with the regulations.
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■ Transferring Program Responsibility Back

to EPA

A state with an authorized program may

voluntarily transfer the program back to EPA. To

do this, the state must give the EPA Administrator

180 days notice and submit a plan for the orderly

transfer to EPA of all relevant program information

necessary for administering the program (e.g.,

permits and permit files, compliance records,

permit applications, reports).

GRANTS AND OVERSIGHT

While authorized states bear the primary

responsibility for implementing the RCRA Subtitle

C program, federal EPA still plays a role by offering

financial assistance to states to help them develop

and implement their hazardous waste programs,

establishing broad national priorities, and ensuring

that states properly carry out the RCRA program.

■ State Grants

EPA offers grants to states to assist them in

developing or implementing authorized hazardous

waste management programs. Each EPA Regional

Office receives an allotment based upon multiple

factors, such as population and the amounts and

types of hazardous waste generated in the EPA

Region. States then submit proposed work plans

that outline planned activities in the upcoming

year, including permitting, enforcement, and

program management. EPA Regions then

negotiate with each state over the specific work to

be accomplished with these grant funds. States

that receive RCRA grant funds must provide a 25

percent match.

■ Priority Setting

EPA also sets RCRA national goals and priority

program activities on an annual basis. Each year,

EPA identifies the national priorities for

implementing all of its programs, including the

RCRA Subtitle C and D programs. These priorities

form the basis for EPA Regional and state

workload negotiations for the upcoming year.

■ State Oversight State Oversight

Ensuring that states properly implement their

hazardous waste management programs is also an

important EPA responsibility. As a result, EPA

Regional staff have oversight responsibilities to:

• Promote national consistency in RCRA

implementation

• Encourage coordination and agreement

between EPA and states on technical and

management issues

• Ensure proper enforcement by the state

• Ensure appropriate expenditure of federal

grant funds.

INFORMATION MANAGEMENT

Several RCRA provisions require the regulated

community to report hazardous waste

management information to EPA and states. For

example, biennial reporting provisions require

large quantity generators and TSDFs to submit

waste management information to EPA by March

1 of every even-numbered year. EPA and states,

in turn, collect and track such information to
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ensure that the hazardous waste program is

adequately managed at the EPA Headquarters,

EPA Regional, and state levels, and to provide

accurate and up-to-date information to both

Congress and the general public. In order to

achieve this goal, EPA compiles such data in the

Resource Conservation and Recovery Act

Information System (RCRIS) and the Biennial

Reporting System (BRS) databases. EPA also

maintains the State Authorization Tracking System

(StATS), which it uses to track whether states have

been authorized to implement or have adopted

federal hazardous waste rulemakings.

■ Resource Conservation and Recovery Act Resource Conservation and Recovery Act

Information System

The RCRA program uses the Resource

Conservation and Recovery Act Information

System to track RCRA Subtitle C facility-specific

data. This database tracks events and activities

related to generators, transporters, and treatment,

storage, and disposal facilities. RCRIS is

maintained by EPA Regions and states who submit

monthly updates to the database. RCRIS replaced

the Hazardous Waste Data Management System,

which was permanently archived on December

24, 1991.

■ Biennial Reporting System

The Biennial Reporting System tracks

detailed hazardous waste activity reports, known

as biennial reports, that are submitted by LQGs

and TSDFs. Some states require facilities to report

this information annually. States compile these

reports and submit the information to EPA

Regions. This data is then entered directly into

BRS.

■ State Authorization Tracking System

The State Authorization Tracking System is a

tool used by EPA to chart the states that have been

authorized to implement the RCRA hazardous

waste program. By looking at StATS reports, an

individual can determine if a particular state has

been authorized to implement a specific rule. The

reports also list the Federal Register citations for

final authorization decisions for each state and

rule.

SUMMARY

Congress intended states to assume

responsibility for implementing RCRA, with

oversight from the federal government. In order

for a state to receive authorization to implement

and enforce the hazardous waste regulations in

lieu of federal EPA, the state must demonstrate

that its program:

• Is equivalent to, no less stringent than, and

consistent with the federal program (state

requirements may be more stringent or

broader in scope)

• Provides adequate enforcement authority

• Provides for public availability of information

in substantially the same manner and to the

same degree as the federal program.

Any state that seeks final authorization for its

hazardous waste program must submit an

application to the EPA Administrator containing

the following elements:

• A letter from the governor requesting program

authorization

• A complete program description
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Chapter 11: Authorizing States to Implement RCRA

• An attorney general’s statement

• An MOA

• Copies of all applicable state statutes and

regulations

• Documentation of public participation

activities.

Once a state’s program has been authorized, it

must revise its program, on an annual basis, to

reflect both changes in the federal program, and

state statutory or regulatory changes. State

programs are also subject to review by EPA, and a

state’s authorized status can be withdrawn if the

program does not comply with appropriate

regulatory requirements. Without officially

withdrawing authorization, EPA may take

independent enforcement action by overfiling, or

enforcing a provision for which a particular state

has authorization. States may also choose to

transfer program responsibility back to EPA.

EPA works closely with states in implementing

the hazardous waste management program by

offering grants to states, setting national goals and

priorities, and providing program oversight.

EPA Headquarters, EPA Regions, and states

collect, compile, and track information on the

RCRA hazardous waste program through RCRIS,

BRS, and StATS.