Abbreviated Version RCRA STATUTORY CHECKLIST

Introduction

To obtain final authorization, a State must have the enabling authority to establish a hazardous waste 

management program which meets the requirements of 40 CFR Part 271, Subpart A. In addition, as a result of 

the Hazardous and Solid Waste Amendments of 1984, Pub, L. 98—618 (Nov. 8, 1984) [HSWA] amending the 

Resource Conservation and Recovery Act, 42 U.S.C. §6901 et. seq., all authorized States, and all States 

seeking authorization, must revise their programs to reflect the HSWA. Finally, in accordance with 40 CFR 

Part 271, Subpart A, State statutes must provide for, among other things, the right of inspection of regulated 

facilities, civil and criminal remedies for violation of program requirements, and availability of information to 

the public. States may need to provide additional information on statutes that may not be directly associated 

with the hazardous waste program but have the potential to indirectly impact implementation, administration, 

and/or enforcement of the authorized program.

What is it used for?

The RCRA Statutory Checklist is provided to aid attorneys and others in reviewing and documenting statutory

provisions required for authorization under Section 3006(b) of the Resource Conservation and Recovery Act 

(RCRA), as amended. States are advised to look broadly to their legislative authorities in assessing their 

programs. It is also provided to aid attorneys and others in documenting and reviewing a State’s enabling 

authority as a result of renumbering, restructuring, or changes to the State’s statutes that may impact 

authorization. EPA attorneys are encouraged to involve attorneys in a State’s Attorney General’s Office or other 

State legal counsel during such reviews. 

The RCRA Statutory Checklist is intended for use as an evaluation tool, and it provides valuable assistance to 

EPA reviewers if submitted as part of the application for authorization of changes initiated by Federal 

rulemaking, as well as State-initiated changes to the State’s statutes. 

Under what circumstances do we recommend use of the abbreviated version?

We recommend use of this abbreviated version of the RCRA Statutory Checklist in lieu of the full RCRA 

Statutory Checklist in situations where State authority is broadly written such that use of the full RCRA 

Statutory Checklist would be overly repetitive and unnecessary. Examples of situations where we do not 

recommend use of this abbreviated checklist include instances where:

(1) multiple State agencies share responsibility for regulation of hazardous waste under different statutes,

(2) statutory authorities were drafted and enacted with very specific enumeration of agency powers and 

duties, and 

(3) statutes contain specific limitations on agency powers that do not have analogs in RCRA.

Anyone using the checklist should refer to Part 271 (and the regulations in Parts 260-265, 266, 268, 270, 273, 

279, and 124 to the extent they are referenced in Part 271) for a full understanding of the regulations for which a 

State must have enabling authority and for enforcement authorities required for authorization. In addition, the 

full version of the RCRA Statutory Checklist contains guidance that may be useful. Users should look at all 

relevant statutes, not just the hazardous waste statutes, when assessing the hazardous waste program. For 

example, State administrative procedures acts, self-audit laws, and confidential business information protections 

would be relevant. 

The statutory checklist is intended for use as an evaluation tool and to assist EPA to understand the State’s 

enabling authority, as well as providing useful documentation for the State and EPA. The statutory checklist is 
Abbreviated Version RCRA STATUTORY CHECKLIST

not intended to identify State statutory provisions that are authorized to operate in lieu of the federal program, 

nor does it authorize the State statutory provisions listed in the checklist. It should not be referenced in a 

Federal Register notice authorizing a State’s hazardous waste program; nor should it be referenced when the 

State’s program is codified in 40 CFR part 272.
Abbreviated Version

RCRA STATUTORY CHECKLIST1

TABLE OF CONTENTS

Page

I. DEFINITIONS..............................................................................1

II. HAZARDOUS WASTE IDENTIFICATION AND LISTING [See 40 CFR 

§271.9].......................................................................................1

III. STANDARDS FOR GENERATORS [See 40 CFR §271.10]........................2

IV. STANDARDS FOR TRANSPORTERS [See 40 CFR §271.11]...................2

V. STANDARDS FOR HW STORAGE, TREATMENT, AND DISPOSAL 

FACILITIES [See 40 CFR 271.12]......................................................2

VI. LAND DISPOSAL RESTRICTIONS [See 40 CFR 271.25] ........................3

VII. PERMITS FOR HW STORAGE, TREATMENT AND DISPOSAL FACILITIES 

[See 40 CFR 271.13 and 271.14].........................................................3

VIII. PUBLIC PARTICIPATION [See 40 CFR 271.14]....................................5

IX. REQUIREMENTS FOR USED OIL MANAGEMENT [See 40 CFR 271.26]...5

X. INSPECTIONS [See 40 CFR 271.15]...................................................5

XI. ENFORCEMENT REMEDIES (INCLUDING PUBLIC PARTICIPATION IN 

ENFORCEMENT) [See 40 CFR 271.16]..............................................5

XII. SHARING OF INFORMATION WITH EPA [See 40 CFR 271.17]...............6

XIII. EXPOSURE ASSESSMENTS............................................................6

XIV. RADIOACTIVE MIXED WASTE......................................................6

XV. AVAILABILITY OF INFORMATION [See 40 CFR 271.17].......................7

XVI. ADDITIONAL MISCELLANEOUS AUTHORITIES................................7
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Title(s) of Legislation: chapter 70.105 RCW Date Enacted: 2009

Hazardous Waste Management Act

Title(s) of Legislation: RCW 70.105D.030(1)(d) Date Enacted: 2009

Hazardous Waste Cleanup Model Toxics Control Act

Title(s) of Legislation: RCW 70.94.331(2)(c) Date Enacted: 2009

 Washington Clean Air Act

Title(s) of Legislation: chapter 42.56 RCW Date Enacted: 2009

 Public Records Act

_____________ 

Date Prepared: May 3, 2010 

Statutory Element Part 271

Reference RCRA Cite State Cite

I. DEFINITIONS

Note that 40 CFR Part 271 does not specifically address definitions of terms. However, the Federal 

program relies on various definitions for establishing the applicability and scope of the hazardous waste

regulations. If definitions of these terms appear in state statutes, they should be at least as stringent as the 

analogous Federal statutory or regulatory definition. The State should have the authority to define the 

following terms in a manner at least as stringent as the Federal program:

Disposal N/A § 1004(3) RCWs: 

70.105.130

70.105.145 

70.105D.030(1)(d)

Generator N/A Not in RCRA; 

see 40 CFR 

260.10 defn.

"

Hazardous waste2 N/A § 1004(5) "

Manifest N/A § 1004(12) "

Person N/A § 1004(15) "

Storage N/A § 1004(33) "

Transport N/A Not in RCRA; 

see 40 CFR 

260.10 defn. of 

“transportation”

"

Treatment N/A § 1004(34) "

Treatment, Storage or Disposal facility N/A Not in RCRA; 

see 40 CFR 

260.10 defn. of 

“facility”

"
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Reference RCRA Cite State Cite

Waste (solid) N/A § 1004(27) "

Remarks of the Attorney General/Independent Counsel:

II. HAZARDOUS WASTE IDENTIFICATION AND LISTING [See 40 CFR §271.9]

1. Authority to adopt a set of 

characteristics for identifying

hazardous waste and a list of 

hazardous wastes that are no less 

stringent than, and consistent 

with, the Federal program, and 

to control all hazardous wastes 

controlled under 40 CFR part 

261.

271.9(a) §§ 3001(a), (b), 

(d), (e), (i) and

3018(b)

RCWs

70.105.130

70.105.145

70.105D.030(1)(d)

2. Delisting (Optional): Authority

to provide a delisting mechanism 

with regulations that are 

equivalent to 40 CFR 260.20(b) 

and 260.22 and that meets the 

requirements of RCRA § 

3001(f)(1) & (2)

271.9(b) § 3001(b) and

(f)

"

Remarks of the Attorney General/Independent Counsel:

III. STANDARDS FOR GENERATORS [See 40 CFR §271.10]

Authority to regulate all generators 

EPA regulates under 40 CFR Part 262 

and to adopt requirements that are no 

less stringent than, and consistent with, 

the Federal generator requirements.

271.10 §§ 3001, 3002, 

& 3017

RCWs

70.105.130

70.105.145

70.105D.030(1)(d)

Remarks of the Attorney General/Independent Counsel:

IV. STANDARDS FOR TRANSPORTERS [See 40 CFR §271.11]

Authority to regulate all transporters 

EPA regulates under 40 CFR Part 263 

and to adopt requirements that are no 

less stringent than, and consistent with, 

the Federal transporter requirements.

271.11 § 3001

§ 3003

RCWs

70.105.130

70.105.145

70.105D.030(1)(d)

Remarks of the Attorney General/Independent Counsel:
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Statutory Element Part 271

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V. STANDARDS FOR HW STORAGE, TREATMENT, AND DISPOSAL FACILITIES [See 40 CFR 

271.12]

1. Authority to regulate all owners 

and operators of hazardous 

waste management facilities that 

EPA regulates under 40 CFR 

Parts 264 and 266 and to adopt 

technical standards, 

requirements, and prohibitions 

that are no less stringent than, 

and consistent with, the Federal 

TSD facility requirements.

271.12 § 3004 RCWs

70.105.130

70.105.145

70.105D.030(1)(d)

2. Authority to require corrective 

action in a manner that is no less 

stringent than, and consistent 

with, the Federal corrective 

action requirements.

271.12 § 3004(u) and 

(v), and 

3004(a)(6)

"

Remarks of the Attorney General/Independent Counsel:

VI. LAND DISPOSAL RESTRICTIONS [See 40 CFR 271.25]

Authority to enact land disposal 

restrictions that are no less stringent 

than, and consistent with, the Federal 

land disposal restrictions in 40 CFR 

Part 268.

271.25 § 3004(d)-(g), 

(j) and (m)

RCWs

70.105.130

70.105.145

70.105D.030(1)(d)

Remarks of the Attorney General/Independent Counsel:

VII. PERMITS FOR HW STORAGE, TREATMENT AND DISPOSAL FACILITIES [See 40 CFR 

271.13 and 271.14]

1. Authority to require permits for 

owners and operators of all TSD 

facilities in a manner that is no 

less stringent than, and 

consistent with, the Federal 

permit program under 40 CFR 

Parts 270 and 124.

271.13(a) § 3005(a) RCWs

70.105.130

70.105.145

70.105D.030(1)(d)

2. Authority to require permit 

application information 

271.13(a)

271.14

§ 3005(b)

§ 3005(c)(3)

"
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Statutory Element Part 271

Reference RCRA Cite State Cite

(including exposure information) 

and to issue permits containing 

all technical and administrative 

standards for facilities and any

conditions necessary to protect 

human health and environment

§ 3005(g)

§ 3019(a)

3. Authority to provide for permit 

modification and termination 

(revocation) in a manner that is 

no less stringent than, and 

consistent with, the Federal 

program. 

271.13(d) 

271.14

§ 3005(c)

§ 3005(d)

"

4. Interim Status: Authority to 

authorize owners or operators of 

TSD facilities to operate under 

interim status if the facility

would qualify for interim status 

under the Federal program.3

271.13(a) § 3005(e)(1) "

5. Interim Status: Authority to 

require interim status to

terminate under conditions that 

are equivalent and consistent 

with the Federal program.4

271.13(a) § 3005(e)(2) 

and (3)

"

6. Interim Status: Authority to 

require interim status facilities to 

comply with standards at least as 

stringent as those in 40 CFR Part 

265.

271.13(a) § 3005(e)(1)

§ 3005(h)

§ 3005(i) 

§ 3015

"

7. Interim Status: Authority to 

require interim status 

impoundments to comply with 

the double liner, leachate 

collection and ground-water 

monitoring requirements 

applicable to new units or stop 

treating, receiving or storing 

hazardous wastes. (SR1)5

271.13(a) § 3005(j) "

8. (Optional): Authority to modify

the double liner, leachate 

collection and groundwater 

monitoring requirements for 

impoundments in § 3005(j)(1) if 

prior to October 1, 1984, the 

271.13(a) § 3005(j)(2)-(9) 

and (j)(13)

"
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owner/operator has entered into 

a consent decree, order, 

agreement with EPA or an 

authorized State which requires 

correction and provides 

protection of health and 

environment at least equivalent 

to that in § 3005(j)(1). (SR2)5

Remarks of the Attorney General/Independent Counsel:

VIII. PUBLIC PARTICIPATION [See 40 CFR 271.14]

Authority to adopt public participation 

procedures for the permit process.

271.14(v)-(aa) § 7004(b) "

Remarks of the Attorney General/Independent Counsel:

IX. REQUIREMENTS FOR USED OIL MANAGEMENT [See 40 CFR 271.26]

Authority to promulgate regulations 

establishing special generator and 

transporter standards, performance 

standards, and other requirements as 

may be necessary to protect health and 

the environment from hazards 

associated with recycled used oil, as 

specified in 40 CFR Part 279.6

271.26 § 3014(a), (c) 

and (d)6

RCWs

70.105.130

70.105.145

70.105D.030(1)(d)

Remarks of the Attorney General/Independent Counsel:

X. INSPECTIONS [See 40 CFR 271.15]

Authority to enter, inspect and obtain 

samples (at all regulated premises and 

any location where records are kept).

271.15(c) § 3007 RCW 70.105.130

42 USC 6927

Remarks of the Attorney General/Independent Counsel:

XI. ENFORCEMENT REMEDIES (INCLUDING PUBLIC PARTICIPATION IN 

ENFORCEMENT)7[See 40 CFR 271.16]

1. Authority to immediately 

restrain unauthorized activity.

271.16(a)(1) § 3006 70.105.095

70.105.120
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Statutory Element Part 271

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2. Authority to sue to enjoin any

threatened or continuing 

program violation without prior 

revocation of permit.

271.16(a)(2) § 3006 70.105.120

3. Authority to obtain civil 

penalties for any violation 

(maximum no less than $10K 

per day).

271.16(a)(3)(i),

(b), and (c)

§ 3006 70.105.080

4. Authority to obtain criminal 

penalties for specified maximum 

violations (no less than $10K per 

day and imprisonment with 

maximum no less than 6 

months); burden of proof no 

greater than under Federal law 

271.16(a)(3)(ii) 

and (b)

§ 3006 70.105.080

70.105.085

5. Authority to allow public 

intervention.

271.16(d) § 7004 70.105.145

6. Optional: Require that neither 

the State nor citizens may bring 

action against common carriers 

for imminent hazards arising 

after delivery of the shipment to 

the consignee, provided the 

carrier exercised due care when 

handling the work.

Not required § 7002(g)

§ 7003(a)

Remarks of the Attorney General/Independent Counsel:

XII. SHARING OF INFORMATION WITH EPA [See 40 CFR 271.17]

Authority to share all information with 

EPA

271.17(a) § 3007(b) Chapter 42.56 RCW

Remarks of the Attorney General/Independent Counsel:

XIII. EXPOSURE ASSESSMENTS

Authority to make exposure and health 

assessment information available to the 

Agency for Toxic Substances and 

Disease Registry (See CERCLA § 

104(i)) (SI)5

Not in 40 CFR 

Part 271

§ 3019(b)(1) Chapter 42.56 RCW
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Remarks of the Attorney General/Independent Counsel:

XIV. RADIOACTIVE MIXED WASTE

Authority to regulate hazardous waste 

that is radioactive except to the extent 

that the waste is source, special nuclear, 

or byproduct material as defined by the 

Atomic Energy Act of 1954, as 

amended. (68 Stat. 923) (MW)5, 8

271.9(a) § 1004(27) RCWs

70.105.130

70.105.145

70.105D.030(1)(d)

Remarks of the Attorney General/Independent Counsel:

XV. AVAILABILITY OF INFORMATION [See 40 CFR 271.17]

Authority to make information about 

treatment, storage, and disposal 

facilities available to the public in 

substantially the same manner and to 

the same degree as if EPA were 

running the program (AI)5

271.17(c) § 3006(f) Chapter 42.56 RCW

Remarks of the Attorney General/Independent Counsel:

XVI. ADDITIONAL MISCELLANEOUS AUTHORITIES

1. Authority to grant variances and 

exemptions that are no less 

stringent than allowed by 

Subtitle C of RCRA.9

Not required N/A RCWs

70.105.130

70.105.145

70.105D.030(1)(d)

2. Importation ban.10 Not required N/A "

3. Siting.11 Not required N/A "

4. Authority to adopt existing 

and/or future Federal regulations 

by reference (current and 

prospective incorporation by

reference).12

N/A N/A 70.105.130

5. Limitation on State authority to 

adopt more stringent or broader 

in scope provisions.

N/A N/A
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Remarks of the Attorney General/Independent Counsel:
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EXPLANATORY NOTES

1. The statutory checklist is intended for use as an evaluation tool and to assist EPA to understand the 

State’s enabling authority, as well as providing useful documentation for the State and EPA. The 

statutory checklist is not intended to identify State statutory provisions that are authorized to operate in 

lieu of the federal program, nor does it authorize the State statutory provisions listed in the checklist. It 

should not be referenced in a Federal Register notice authorizing a State’s hazardous waste program; nor 

should it be referenced when the State’s program is codified in 40 CFR part 272.

2. The State must have authority to regulate the recycling and reuse of hazardous waste in a manner at least 

as stringent as the Federal program. 

3. States are not required to provide interim status for TSD facilities. However, if a State chooses to 

provide for interim status, then the State must have authority described in items 4 through 8 of Section 

VII.

4. A State’s analog to interim status must terminate automatically in these cases (whether the state’s analog 

is Part 265 type standards or permits). If a State statute or regulation would require any type of hearing 

to terminate the facility’s operating authority, the State must amend its authority to delete that 

requirement for these provisions. (Interim status as used here means the state’s analog to Federal 

interim status.)

5. The following items are a part of the “Statutory (Non-Checklisted) Provisions addressed in Appendix N 

of the hardcopy version of the State Authorization Manual (SAM) -- Guidance for State Authorization 

Issues:

AI - Availability of Information

MW - Mixed Waste

SI - Sharing of Information

SR1 - Surface Impoundment Requirement

SR2 - Optional: Exemptions from the Surface Impoundment Requirements)

Also, see the Availability of Information Checklist for a specific analysis of the manner and degree that 

EPA provides for availability of information.

6. This used oil management authority originated at RCRA § 3012, but was amended and redesignated as § 

3014(a) by HSWA.

7. Note that RCRA contains enforcement provisions that differ from those listed in 40 CFR 271.16. Thus, 

the enforcement authority of an authorized State program need not be equivalent to the RCRA 

enforcement provisions. Instead, a State’s authority should be adequate to meet the requirements listed 

in 40 CFR 271.16 which were established pursuant to RCRA §§ 3006 and 7004. 

8. EPA has determined that hazardous wastes are subject to RCRA if they are mixed with source, special 

nuclear or byproduct material even though source, special nuclear, or byproduct itself is not subject to 

RCRA. States will need to review their authority to ensure that only source, special nuclear, or

byproduct material is excluded from their hazardous waste jurisdiction.
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9. Various HSWA provisions amend RCRA to allow EPA to grant variances and exemptions. In addition 

to those variances specifically authorized by statute, the HSWA allows EPA to develop regulations with 

variance provisions or to make case-by-case variance decisions. EPA strongly recommend States obtain 

the above authority. The State’s variance procedures and decision criteria must be no less stringent than 

EPA’s.

10. May create problems for a State seeking authorization. States with this authority should ensure that its 

statutory and regulatory provisions do not conflict with EPA’s requirements for imports/exports and 

transportation.

11. May create problems for a State seeking authorization. States with this authority should ensure that its 

statutory and regulatory provisions do not conflict with EPA’s requirements for permitting.

12. For prospective incorporation of the Federal regulations by reference, the Attorney General or 

Independent Legal Counsel must cite State authority that enables it both to promulgate and enforce

regulations in this manner. States which incorporate by reference prospectively, should provide a 

discussion on the constitutionality of the procedure within the State. Appropriate court case 

citations should also be provided.