RCRA State Authorization: Legal Questions and Pitfalls: States Beware! WEDNESDAY, JUNE 6, 2018 Co l l e e n E. M i c h u d a S e n i o r At t o r n e y Of f i c e o f R CR A/ CER CLA Le g a l S u p p o r t EP A R e g i o n 4
Three Ways States Can Adopt the Federal Regulations Incorporation by Reference (IBR) “Spelling out” the regulations Hybrid: Combination of IBR + state-specific provisions
First IBR Legal Pitfall “ Any reference in these rules to standards, procedures, and requirements of Title 40 of the Code of Federal Regulations (40 C.F.R.) Parts 124, 260-266, 268, 270, 273 and 279 shall constitute the full adoption by reference of the Part, Subpart, and Paragraph of the Federal Regulations so referenced including any notes and appendices in effect Novem ber 28, 2016 .” Question: The Generator Improvements Rule and the Import/ Export Rule were published in the Federal Register on November 28, 2016. Has the State adopted them?
“Any reference in these rules to standards, procedures, and requirements of Title 40 of the Code of Federal Regulations (40 C.F.R.) Parts 124, 260-266, 268, 270, 273 and 279 shall constitute the full adoption by reference of the Part, Subpart, and Paragraph of the Federal Regulations so referenced including any notes and appendices as may be associated as am ended through Novem ber 28, 2016 . Has the State adopted them here?
What is the Legal Effect of Authorization? EPA enforces the authorized State regulations that have become part of the federal program. Rem em ber: State regs, once authorized, operate “ in lieu of” the federal.
IS A S TATE R EGU LATION EN FOR CEAB LE EVEN IF IT IS N OT AU TH OR IZED ?
D OES EP A EN FOR CE S TATE S TATU TES ?
EPA’s Role in Authorized States EPA enforces the authorized state hazardous waste regulations RCRA 3008 (Enforcement) EPA retains certain statutory authorities RCRA 3007 (Inspections) RCRA 3013 (Assessment) RCRA 7003 (ISE) EPA implements certain “non-delegable” provisions
Com m on Pitfalls Citations to RCRA generally Citations to specific sections of RCRA Citations to other federal statutes Substitutions of terms Non-delegable provisions
Citations to RCRA Generally Resource Conservation and Recovery Act Act RCRA Subtitle C of RCRA/ RCRA Subtitle C
Exam ple from KY regulations: "Resource Conservation and Recovery Act", "Act", "RCRA", "Subtitle C of RCRA", "RCRA Subtitle C", or "Subtitle C": (a) Means KRS Chapter 224: 1. If referring to a permit issued by the cabinet pursuant to KRS Chapter 224-46, including a RCRA permit, Part B permit, RCRA Part B permit, RCRA permit by rule, and RCRA standardized permit, except for a federally issued EPA perm it or a perm it issued by another authorized state ; and 2. If referring to the Federal hazardous waste program as a whole.
Exam ple from GA regulations: “The text of the federal regulations incorporated by reference includes references to "RCRA", the "Resource Conservation and Recovery Act", "Subtitle C of RCRA", "the Act", and other general references that refer to the federal hazardous waste program as a whole. Unless otherwise noted, these references shall be construed to refer to the Georgia Hazardous Waste Management Act, O.C.G.A. 12-8-60, et seq. and the Georgia hazardous waste management program. References to "RCRA perm its" or "RCRA Part B perm its" shall refer to perm its issued by the Environm ental Protection Agency, the State of Georgia, or another authorized state.”
Citations to Specific Sections of RCRA RCRA Section 3008 KEEP! EPA retains enforcement authority. RCRA Section 3008(h) KEEP! EPA retains authority to issue orders. RCRA Section 3013 KEEP! EPA retains authority to issue orders. RCRA Section 7003 KEEP! EPA retains authority to issue orders.
Exam ple of RCRA 30 0 8 Reference: 40 CFR 262.10(g)(2): Without an exemption, any violations of such storage requirements are subject to penalty and injunctive relief under section 3008 of RCRA.
Citations to Specific Sections of RCRA RCRA Section 3005 REPLACE! Permit requirement. RCRA Section 3010 REPLACE! Notification of haz waste activity. RCRA Section 3004 DEPENDS. . . HSWA provisions.
Quick & Easy Fix Georgia Exam ple: “References to specific sections of RCRA shall refer to both the federal provisions of RCRA to be implemented by the Environmental Protection Agency, as well as analogous provisions of the Georgia Hazardous Waste Management Act, O.C.G.A. 12-8-60 et seq., to be implemented by the Georgia Environmental Protection Division.”
Citations to other Federal Statutes and Regulations Clean Water Act Clean Air Act Safe Drinking Water Act 40 CFR Part 144 (UIC) 40 CFR Part 280 (UST) Subtitle D or 40 CFR Part 258 40 CFR Parts 60, 61, and 63 40 CFR Part 63, Subpart EEE
Easy Way Out Kentucky Exam ple: “The citations to the Clean Air Act shall also include any applicable Kentucky requirements as established in 401 KAR Chapters 50 through 65.” “In addition to 40 C.F.R. 258 and Subtitle D, 401 KAR Chapters 45, 47, and 48 shall apply.”
Another Easy Way Out. . . Georgia exam ple: “References to other federal statutes and regulations contained in the text of the federal regulations incorporated by reference that are not specifically adopted by reference, including, but not limited to, references to the Clean Water Act, the Clean Air Act, and the Safe Drinking Water Act, shall be used to assist in interpreting the federal regulations, and the authority and power of the analogous or related portions of the Georgia statutes and regulations shall also be considered to apply.”
Substitutions of Term s/ Non-Delegable Provisions EPA Regional Administrator Generally replace Administrator EXCEPTIONS: EPA ID Number Director EPA test methods Sta te EPA publications Department of EPA forms Transportation EPA haz waste #s Federal Register EPA guidance EPA Ackn. of Consent
S H OU LD R EFER EN CES TO TH E U N ITED S TATES B E R EP LACED W ITH TH E N AM E OF YOU R S TATE?
Non-Delegable Provisions Import/ Export Provisions Manifest Registry Functions E-Manifest
Georgia Exam ple: “When used in any such provisions as may be adopted from 40 C.F.R. Parts 124, 260-266, 268, 270, 273, and 279: Environmental Protection Agency or EPA, except in reference to EPA ID numbers, EPA hazardous waste numbers, EPA publications, regulations on international shipments, the electronic manifest system, or manifest registry functions, shall mean the Georgia Environmental Protection Division; and Administrator or Regional Administrator, except in reference to regulations on international shipments, shall mean Director of the Environmental Protection Division.”
Individual Substitutions of Terms A lot of states will do a global replacement for terms like “EPA,” “Regional Administrator,” and “Administrator.” Individual citation carve-outs are needed for where any of these terms should not be replaced. See 401 KAR 39:005 http:/ / www.lrc.state.ky.us/ kar/ 401/ 039/ 005.htm
Yes or No?? References to “EPA” should be retained in the following phrase: “. . .provided that such copies are readily available for viewing and production if requested by any EPA or authorized state inspector.”
Brainteaser 40 CFR § 262.14(a)(5) What does this mean in an authorized state??
Permitted by EPA under 40 CFR Part 270 Permitted by the State Authorized to manage hazardous waste by a state authorized by EPA under 40 CFR Part 271 In interim status under 40 CFR Parts 265 and 270 or State regs Permitted, licensed, or registered by a state to manage municipal solid waste (subject to 40 CFR Part 258 and/ or EPA-approved state MSWLF landfill permit program) Permitted, licensed, or registered by a state to manage non-municipal non-hazardous waste (subject to the requirements in 40 CFR 257.5 through 257.30 and/ or an EPA-approved state program)
Helpful Resource Decem ber 20 0 2 “Guidelines for State Adoption of Federal RCRA Regulations by Reference” https:/ / www.epa.gov/ sites/ production/ fil es/ 2016-03/ documents/ ibr1202.pdf Checklist Sum m aries
Checklist Exam ples
Contact Inform ation Colleen E. Michuda Senior Attorney U.S. EPA, Region 4 Office of RCRA/ CERCLA Legal Support michuda.colleen@epa.gov (404) 562-9685
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