Under the Resource Conservation and Recovery Act (RCRA), USEPA will allow a state to operate its own hazardous waste program as long as it is at least as stringent and as broad as the Federal regulations. A state with a hazardous waste program that meets these requirements is known as “Authorized”. This means that states with an authorized hazardous waste program may not immediately – or at all – adopt regulations created by the USEPA unless new Federal regulations are more stringent and/or broad than those existing. In the case of more strict Federal regulations, states must adopt them, but may do so on their own schedule. Not surprisingly, this flexibility can create a patchwork of differing Federal and state RCRA regulations spreading across the U.S. like a quilt.
The purpose of this article is to explain how state authorization will impact implementation of the Federal regulations created by the 2015 Definition of Solid Waste Rule (2015 DSW).
- State Authorization of Hazardous Waste Programs Under RCRA
- Summary of the 2015 Definition of Solid Waste Rule
What is the status of state authorization under RCRA?
Well, it’s easier to list those states – and territories and tribal lands – without authorization:
- Puerto Rico
- The Virgin Islands
- American Samoa
- Commonwealth of the Northern Marianna Islands
- All Tribal Lands (unless the State specifically receives authorization for them within its borders)
All other U.S states and territories (what up, Guam?) and the District of Columbia have an authorized hazardous waste program under RCRA.
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When will the Federal regulations of the 2015 DSW be effective?
The USEPA regulations created or revised by the 2015 DSW are effective July 13, 2015.
State implementation of the 2015 DSW regulations is made more complicated by the fact that the 2015 DSW was itself a more strict revision of the unsatisfactory 2008 Definition of Solid Waste Rule which had been adopted by the following states:
- New Jersey
So, the implementation of the regulations of the 2015 DSW will look like this:
- The regulations will be immediately effective on July 13, 2015 at the Federal level and in those states and territories lacking RCRA authorization.
- Those state that had adopted the 2008 DSW must modify their state regulations to make them as least as stringent as the new Federal regulations of the 2015 DSW.
- Those remaining states with authorized hazardous waste programs must, at a minimum, adopt the provisions of the 2015 DSW that are more stringent than current regulations:
- Prohibition of “sham” recycling.
- New definition of legitimate recycling.
- New definition of contained.
- Requirement to track the accumulation start date to disprove speculative accumulation.
- Changes to standards and criteria for the solid waste variance and non-waste determinations.
- The conditional exclusions created by the 2015 DSW will not go into effect until they are adopted by those states with authorized hazardous waste programs. Conditional exclusions?
- 40 CFR 261.4(a)(23) – the Generator-Controlled Exclusion was retained and strengthened by the 2015 DSW.
- 40 CFR 261.4(a)(24) – the Verified Recycler Exclusion (replacing the Transfer-Based Exclusion).
- 40 CFR 261.4(a)(27) – the Remanufacturing Exclusion was created by the 2015 DSW.
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So, if a state is required to change their regulations to match those of the USEPA that are more stringent, they’ll probably do it right around July 13th, right? Don’t bet on it. It’s been my experience that states don’t change their regulations at the drop of a hat. Be sure to check with your state to determine their progress on the implementation – and enforcement – of the new regulations of the 2015 Definition of Solid Waste Rule. Also, USEPA will not be idle; it will assist states in the adoption of these new regulations.
To check on the status of the 2015 Definition of Solid Waste Rule in your state, refer to this EPA website: Where is the 2015 Definition of Solid Waste Rule in Effect?
Be sure to contact me if you have any questions about the management of hazardous waste or require the Annual Training required for Hazardous Waste Personnel.