[Federal Register Volume 59, Number 108 (Tuesday, June 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13668]
[[Page Unknown]]
[Federal Register: June 7, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 270
[FRL-4892-3]
Extension of Date for Submission of Part A Permit Applications
for Facilities Managing Ash From Waste-to-Energy Facilities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of extension of permit application deadline.
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SUMMARY: In City of Chicago v. Environmental Defense Fund, Inc., No.
92-1639 (____ U.S. ____, decided May 2, 1994), the Supreme Court held
that ash generated by certain municipal waste-to-energy facilities that
burn household wastes alone or in combination with nonhazardous wastes
from industrial and commercial sources is not exempt from regulation as
a hazardous waste under the Resource Conservation and Recovery Act
(RCRA). When the decision takes effect, persons who generate such ash
will need to determine whether it is a hazardous waste under Subtitle C
of RCRA. Ash that is hazardous will need to be managed in compliance
with all applicable hazardous waste regulations.
In response to the Court's decision, EPA is today announcing that
there has been substantial confusion as to when the owners and
operators of facilities managing such ash were required to file
applications for RCRA hazardous waste permits. EPA is exercising its
authority under 40 CFR 270.10(e)(2) to extend the deadline for filing
permit applications.
EPA also is announcing today that it considers ash from these
combustion facilities to be a newly identified waste for purposes of
the land disposal restrictions under sections 3004(d)-(m) of RCRA.
Current land disposal restrictions do not apply. Rather, the Agency has
a duty to promulgate ash-specific restrictions 6 months from the date
of today's document. All other hazardous waste regulations will apply
to hazardous ash when the decision takes effect.
EFFECTIVE DATE: June 7, 1994.
ADDRESSES: Docket Clerk, OSW (OS-305), Docket No. F-94-XAPN-FFFFF, U.S
Environmental Protection Agency Headquarters, 401 M Street SW.,
Washington, D.C. 20460. The public docket is located in M2616 at EPA
Headquarters and is available for viewing from 9:00 a.m. to 4:00 p.m.,
Monday through Friday, excluding Federal holidays. Appointments may be
made by calling (202) 260-9327. Copies cost $0.15/page. Charges under
$25.00 are waived.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA/Superfund Hotline, Office of Solid Waste, U.S. Environmental
Protection Agency, 401 M Street SW., Washington, DC, 20460, (800) 424-
9346, TDD (800) 553-7672 (hearing impaired); in the Washington, DC
metropolitan area the number is (703) 920-9810, TDD (703) 486-3323.
For more detailed information on specific aspects of this Notice,
contact Scott Ellinger, Office of Solid Waste (5306), U.S.
Environmental Protection Agency, 401 M Street SW., Washington, DC
20460, (202) 260-1099.
SUPPLEMENTARY INFORMATION:
Preamble Outline
I. Authority
II. Background
A. Overview
B. Nature of Ash From Waste-To-Energy Facilities
III. Extension of Permit Deadline Due to Substantial Confusion
A. Permit Requirements and Deadline Extensions
B. Regulatory History of Waste-To-Energy Ash
C. Findings
IV. Land Disposal Restrictions
V. Other Subtitle C Requirements
VI. State Authorization and Implementation
A. Permit Deadline Extension
B. Land Disposal Restrictions
VII. Good Cause Finding
VIII. Regulatory Requirements
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
I. Authority
These actions interpreting the hazardous waste regulations in 40
CFR parts 260-271 are being taken under the authority of sections 2002,
3004, 3005 and 3006 of the Solid Waste Disposal Act of 1970 as amended
by the Resource Conservation and Recovery Act of 1976, as amended (42
U.S.C. 6912, 6924, 6925, and 6926).
II. Background
A. Overview
On May 2, 1994 the Supreme Court issued an opinion interpreting
Section 3001(i) of the Resource Conservation and Recovery Act (RCRA),
42 USC 6921(i). City of Chicago v. EDF, No. 92-1639 (____ U.S. ____,
decided May 2, 1994). The Court held that this provision does not
exempt ash generated at resource recovery facilities burning household
wastes and nonhazardous commercial wastes (hereafter ``waste-to-energy
facilities'') from the hazardous waste requirements of Subtitle C of
RCRA. The Court also held that Section 3001(i) terminated a 1980
regulatory exemption for ash generated at waste-to-energy facilities
that burn only household wastes. The opinion requires EPA to revise its
prior position that both types of ash were exempt from hazardous waste
regulation. It abruptly ends nearly a decade of controversy over the
regulatory status of ash from these facilities.
As a result of this decision, ash from waste-to-energy facilities
has the same status as other solid wastes. Persons who generate such
wastes must determine whether that waste is a hazardous waste under
EPA's hazardous waste identification rules at 40 CFR part 261. Since
EPA has not listed ash as a hazardous waste, generators must determine
whether ash exhibits any of the characteristics of hazardous waste at
40 CFR 261.21-.24. Ash that exhibits a characteristic must be managed
in compliance with Subtitle C requirements.
As explained below, the regulatory status of ash has been the
subject of confusion for several years. EPA's action today responds by
giving owners and operators of facilities that manage ash that is
determined to be characteristically hazardous a reasonable opportunity
to obtain interim status by applying for a RCRA hazardous waste permit.
Without this opportunity, persons managing hazardous ash would be out
of compliance with RCRA's permit requirements and face potentially
significant civil and criminal penalties.
In this notice EPA is also announcing that it will consider ash
that is characteristically hazardous to be a ``newly identified'' waste
under the land disposal restrictions. EPA needs time to determine what
treatment standards would be appropriate. By considering such ash to be
a newly identified waste under the land disposal restrictions, EPA will
have an opportunity to evaluate the efficacy of the existing standards
and, if necessary, develop new ash-specific standards.
EPA notes that all other applicable Subtitle C regulations will
apply to ash on the date that the Court's decision takes effect. See
the discussion of state authorization below for assistance in
determining when the Court's decision will affect particular
facilities. The Agency interprets the Court's decision to cut-off the
exemption for waste management at waste-to-energy facilities at the
point that ash is generated. Subsequent management of hazardous ash on-
site is subject to regulation under Subtitle C.
B. Nature of Ash From Waste-to-Energy Facilities
Combustion of municipal solid waste, particularly through waste-to-
energy facilities, can be an important component of a local
government's waste management practices. As of 1990, approximately 196
million tons of municipal solid waste were generated annually in the
U.S., 16 percent of which (32 million tons) was combusted. The states
with the greatest municipal waste combustion capacity are Florida, New
York and Massachusetts. There are approximately 150 municipal waste
combustors in the U.S., 80 percent of which are waste-to-energy
facilities. The remaining 20 percent incinerate waste without
recovering energy.
Approximately 25 percent (by weight) of the waste that is combusted
remains as ash, amounting to around eight million tons of municipal
waste combustor ash generated annually. Generally, these combustion
facilities generate two basic types of ash--bottom ash and air
pollution control residuals, commonly referred to as ``fly ash.''
Bottom ash collects at the bottom of the combustion unit and comprises
approximately 75-80% of the total ash. Fly ash collects in the air
pollution control devices that ``clean'' the gases produced during the
combustion of the waste and comprises around 20-25% of the total. Based
on several analytical studies, fly ash generally contains the highest
concentrations of inorganic chemical constituents.
Studies also show that ash (usually fly ash) has sometimes
exhibited EPA's Toxicity Characteristic (``TC''). Typically, ash that
``fails'' the TC leaches lead or cadmium above levels of concern.
Because a number of factors can influence whether ash passes or fails
the TC (e.g., the nature of the incoming waste stream, the type of
combustion unit, the nature of the air pollution control device and the
ash sampling location), EPA cannot predict an overall failure rate for
ash from municipal waste combustors.
III. Extension of Permit Deadline Due to Substantial Confusion
A. Permit Requirements and Deadline Extensions
RCRA requires any person treating, storing or disposing of
hazardous waste to obtain a permit or a pre-permit authorization called
``interim status.'' Section 3005; 40 CFR 270.1(b). To qualify for
interim status a facility must meet criteria set out in RCRA section
3005(e), which include filing a permit application.
When EPA promulgates RCRA rules subjecting a new group of
facilities to hazardous waste permitting requirements, the permit
regulations provide 6 months for the filing of part A of the permit
application. 40 CFR 270.10 (e). EPA routinely publishes in the Federal
Register the specific permit deadline for persons regulated by the new
rules. See 270.10 (e), note. Section 270.10(e)(2) provides that EPA can
extend the date for permit applications by Federal Register notice if
it finds that there has been ``substantial confusion'' as to whether
the owner or operator was required to file a permit application and the
confusion was due to ambiguities in EPA's regulations. For the reasons
explained below, EPA today is exercising its discretion to extend the
submission dates for part A permit applications for facilities
treating, storing and disposing of ash from waste-to-energy facilities
that exhibits a characteristic of hazardous waste.
B. Regulatory History of Waste-to-Energy Ash
In 1980, EPA promulgated a rule exempting household wastes from all
RCRA requirements for hazardous wastes. 40 CFR 261.4(b)(1). EPA
interpreted this exemption to extend to residuals from the treatment of
household wastes, including ash from the combustion of household
wastes. The exemption, however, did not address ash from the combustion
of household wastes combined with nonhazardous commercial and
industrial wastes.
In 1984 Congress added to RCRA a new Section 3001(i), entitled
``Clarification of Household Waste Exemption.'' This provision
addressed waste-to-energy facilities burning household wastes and
nonhazardous commercial and industrial wastes to produce energy. In
July 1985, EPA promulgated a rule that codified this provision. In the
preamble accompanying this rule, EPA announced that it interpreted the
statute and the rule to exempt the facilities--but not their ash--from
Subtitle C, 50 FR 28702, 28725-26 (July 15, 1985). EPA did not publish
any statement informing owners of facilities managing ash of any
deadline for obtaining RCRA permits.
In the late 1980's, various EPA officials began taking the position
that Section 3001(i) could be interpreted to exempt ash from Subtitle
C. They also expressed the opinion that ash could be managed safely in
nonhazardous waste disposal facilities. The Environmental Defense Fund
(EDF) filed citizen suits in two separate U.S. District Courts to
enforce the 1985 interpretation of the statute against two specific
waste-to-energy facilities. EDF v. City of Chicago, 727 F. Supp. 419
(N.D. Ill. 1989); EDF v. Wheelabrator Technologies, Inc., 725 F. Supp.
758 (S.D.N.Y. 1989). Both courts held that Section 3001(i) exempted
ash. On appeal, the Second Circuit ruled in favor of the exemption, but
the Seventh Circuit reversed, finding that the statute did not exempt
ash. EDF v. City of Chicago, 948 F.2d 345 (7th Cir. 1991); EDF v.
Wheelabrator Technologies, Inc., 931 F.2d 211 (2d Cir. 1991), cert.
denied 112 S.Ct. 453 (1991). The City of Chicago, which operated the
facility adversely affected by the 7th Circuit's decision, appealed to
the Supreme Court.
Also in the late 1980's, Congress considered a number of bills that
would have explicitly exempted ash from Subtitle C requirements. In
November 1990, Congress enacted an uncodified amendment to the Clean
Air Act prohibiting EPA from regulating ash as a hazardous waste under
Section 3001 of RCRA for a period of two years. Clean Air Act
Amendments of 1990, Pub.L. No. 101-549, 104 Stat. 2399.
In response to these events, a number of states authorized to
implement Subtitle C programs in lieu of EPA began treating ash from
waste-to-energy facilities as exempt. Some interpreted their own
regulations virtually identical to Section 3001(i). Others promulgated
specific ash exemptions. Many of these specific exemptions were
accompanied by detailed regulations for the management of ash as a
nonhazardous waste. Consistent with the evolving federal position on
the regulation of ash, EPA took no action affecting these state
programs.
Finally, in September 1992, just before the expiration of the Clean
Air Act ash ``moratorium,'' EPA Administrator William Reilly signed a
memorandum announcing that the Agency now interpreted Section 3001(i)
to exempt ash from waste-to-energy facilities burning household wastes
and nonhazardous wastes from Subtitle C requirements. This memorandum
also announced that EPA believed that ash could be disposed of safely
in landfills meeting new standards for municipal solid waste facilities
promulgated in 1991 and codified at 40 CFR part 258.
C. Findings
EPA finds that the events above have created substantial confusion
about the status of ash under the rule EPA wrote to codify the
exemption in Section 3001(i). Although EPA's 1980 and 1985 preambles
indicated that there was no exemption for ash from combined sources,
later events suggested that ash was not regulated. Persons may have
relied on the two District Court decisions, the 1990 ash moratorium, or
the 1992 Reilly memorandum to conclude that Section 3001(i) and 40 CFR
261.4(b)(2) were ambiguous about the status of ash from combined
sources. They could quite reasonably have concluded that they could
manage ash from combined sources without obtaining hazardous waste
permits. If EPA did not act to extend the Part A deadline, however,
these facilities would be unable to obtain interim status because the
Court's action is not a statutory or regulatory change establishing a
new period for obtaining interim status under RCRA section 3005(e).
Such facilities would have to cease handling hazardous ash until EPA
took final action on their completed permit applications--a process
that typically takes several years.
Section 270.10(e)(2) was written to prevent such harsh results. EPA
is today invoking its authority to provide a reasonable opportunity for
persons managing combined ash to satisfy RCRA's permitting
requirements. Applying the substantial confusion approach to facilities
managing this ash is consistent with previous precedents. See, e.g., 52
FR 34779-81 (Sept. 15, 1987) (notice of substantial confusion for big
city cement kilns).
Persons handling ash from the combustion of 100% household waste
could have relied with even greater justification on the Agency's 1980
interpretation of the household waste exemption to handle such waste
without a hazardous waste permit. They are also entitled to an
opportunity to satisfy the permit requirement. Since they are becoming
subject to Subtitle C without the enactment of a statute or the
promulgation of a rule, they do not technically qualify for the normal
6 months provided for persons newly subject to Subtitle C regulation.
See section 40 CFR 270.10(e)(1). Section 270.10(e)(1)(ii), which
provides 30 days for filing a Part A after a facility ``first becomes
subject to the [Subtitle C] standards'' could apply to these
facilities. EPA, however, interprets this provision to apply to
facilities whose own actions subject them to Subtitle C rather than to
facilities affected by regulatory events. (An example would be a
generator that exceeded the small quantity generator monthly waste
generation limit.) See generally 45 FR 76630, 76633 (November 19,
1980). Consequently, EPA believes the ``substantial confusion''
approach is also appropriate for persons who manage 100% household
waste. Moreover, it reduces confusion by establishing a single deadline
for both types of ash from waste-to-energy facilities.
Accordingly, EPA today establishes that facilities that are
handling hazardous ash from waste-to-energy facilities that wish to
continue to do so may file Part A applications anytime before December
7, 1994. See the discussion of state authorization below for guidance
on where to request and submit an application.
Another statutory requirement for obtaining interim status is the
filing of any notification required under section 3010(a) of RCRA.
Under section 3010, EPA may require all persons that handle hazardous
wastes--including generators and transporters--to notify EPA of the
location of their activities within 90 days of the promulgation of a
new rule identifying additional characteristics or listing a waste.
This provision does not literally apply because EPA is not promulgating
or revising a rule. However, failure to satisfy it could cloud a
facility's claim that it obtained interim status. In order to prevent
this result, EPA is exercising its discretion to waive filing of
section 3010 notifications by facilities managing ash from resource
recovery facilities. EPA notes that persons who manage ash will be
required to obtain EPA identification numbers in the near future. This
process will furnish the information that the notifications would have
provided.
IV. Land Disposal Restrictions
The RCRA land disposal restrictions (LDRs) prohibit land disposal
of hazardous wastes unless those wastes are first treated to
substantially reduce toxicity or mobility of the hazardous constituents
in the wastes so as to minimize threats to human health and the
environment. RCRA sections 3004 (d), (e), (g), (m). The restrictions
specify dates on which particular groups of wastes are prohibited from
land disposal unless they are treated. RCRA sections 3004 (d), (e),
(g). For wastes which are ``newly identified or listed'' after November
8, 1984, EPA must promulgate treatment standards within 6 months of the
date of identification or listing. RCRA section 3004(g)(4).
On June 1, 1990, EPA promulgated treatment standards for
constituents in wastes identified as hazardous under the ``EP
toxicity'' characteristic, the predecessor to the current TC. 55 FR
22520. The treatment standards for metal constituents are levels
identical to the EP toxicity standards themselves. 40 CFR 268.41. (EPA
notes that it must revise these standards under Chemical Waste
Management, Inc. v. EPA, 976 F.2d 2 (D.C. Cir. 1992) (the ``Third
Third'' decision).) Persons generating wastes that fail the current TC
test must determine whether their TC wastes exceed these EP levels,
and, if they do, comply with the treatment standards.
EPA, however, believes that ash from waste-to-energy facilities is
``newly identified'' for purposes of the land disposal restrictions.
Although technically ash would be identified as hazardous under the
existing TC rather than a new characteristic rule, the Supreme Court's
decision is bringing ash into the Subtitle C system for the first time
(for ash from 100% household waste) or returning it to the system after
a period of uncertainty and actual legislative exemption (for ash from
combined sources).
EPA dealt with a similar situation in a 1990 LDR rule. In that
notice, EPA interpreted section 3004(g)(4) for mineral processing
wastes brought into RCRA by a decision of the U.S. Court of Appeals for
the District of Columbia Circuit holding that EPA had improperly
considered them to be exempt from Subtitle C under the statute's
``Bevill amendment''. (The mineral processing wastes also sometimes
exceed the TC and EP toxicity levels for metals.) In that notice, EPA
explained that section 3004(g)(4) is ambiguous as to whether it applies
to wastes brought into the system after 1984 due to regulatory
reinterpretation. See 55 FR 22667 (June 1, 1990). EPA determined that
it was preferable to read section 3004(g)(4) to include such wastes
because that reading was more consistent with the policy goals that
prompted Congress to establish a separate schedule for new wastes in
the first place: the need to study such wastes separately to set
appropriate treatment standards, and the established priority of
subjecting older wastes to the land ban first. Id.
EPA also noted that, before it developed specific treatment
standards for the newly-identified mineral processing wastes, the
wastes could be regulated under existing treatment standards for EP
toxicity metals. EPA determined that it would not be appropriate to
apply those treatment standards, however, because it had not analyzed
and tested the wastes to determine whether those standards would meet
the statuary requirements of reduced toxicity and mobility. Id.
Ash from 100% household waste clearly fits this precedent. It, too,
is being regulated under Subtitle C for the first time as the result of
a court decision narrowing an Agency interpretation of an existing
Subtitle C exemption. Further, as explained in more detail below, EPA
needs to determine whether exiting EP toxicity treatment standards will
meet land treatment standard requirements for this ash. Accordingly,
EPA interprets section 3004(g)(4) to apply to this ash. EPA will not
apply the current treatment standards for the EP toxicity
characteristic to ash which is identified as hazardous under the TC.
Section 3004(g)(4) will require EPA to promulgate treatment standards
for this ash within 6 months of the date of this notice.
Ash from combined sources is not entering Subtitle C jurisdiction
for the first time--it was not exempt under EPA's original household
waste exemption, and was not originally viewed as exempt under section
3001(i). Nevertheless, EPA believes that it would be appropriate and
consistent with the goals of the LDRs to view it as a newly identified
waste under section 3004(g)(4). Section 3004(g)(4) is ambiguous as to
wastes reentering Subtitle C after several years of confusion and two
years of clear statutory exemption. Moreover, EPA has not studied ash
to determine what treatment standards would meet the requirements of
Section 3004(m) of RCRA, and in fact is reviewing what the appropriate
treatment standards are for all of the wastes with metal constituents
exhibiting the Toxicity Characteristic. 58 FR 48116 (Sept. 14, 1993).
Congress' priority scheme for land disposal restrictions directs EPA to
promulgate standards for post-1984 wastes in chronological order. If
EPA were required to immediately determine whether the current EP
toxicity standards for ash were appropriate, it would have to postpone
work on treatment standards for new listings and a new characteristic
promulgated several years prior to the City of Chicago decision.
Additionally, EPA needs time to determine whether current treatment
standards are appropriate for ash.
For these reasons, EPA will also consider ash from combined sources
to be newly identified for purposes of the land disposal restrictions.
Furthermore, it will not apply the existing treatment standards for EP
toxicity. As a result of this decision, Section 3004(g)(4) requires EPA
to promulgate treatment standards for combined ash within 6 months of
the date of this notice.
V. Other Subtitle C Requirements
EPA is not extending compliance dates for any other aspect of the
hazardous waste regulations. Facilities generating, transporting, or
treating, storing or disposing of hazardous ash must, as a matter of
federal law, comply with the substantive requirements of 40 CFR parts
260-270 on the effective date of the Court's decision. (See the
discussion of state authorization below to determine when the decision
takes effect under authorized state RCRA programs.) EPA reminds
generators, transporters and treatment, storage and disposal facilities
that they must promptly obtain EPA identification numbers. See, e.g.,
40 CFR 262.12. EPA intends to issue an implementation strategy in the
near future that will provide additional information on complying with
other RCRA requirements.
To facilitate compliance with Subtitle C, EPA has developed draft
guidance for the sampling of ash from waste-to-energy facilities. EPA
has already released this draft. Interested parties may obtain a copy
by calling the RCRA/Superfund Hotline, Office of Solid Waste, U.S.
Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460, (800) 424-9346, TDD (800) 553-7672 (hearing impaired); in the
Washington, DC metropolitan area, the number is (703) 920-9810, TDD
(703) 486-3323. EPA soon will publish a separate Federal Register
notice requesting comment on the draft.
EPA notes that by following certain waste management practices,
some facilities may not need interim status or a RCRA permit. For
example, under federal regulations, generators of hazardous ash may
accumulate and treat ash onsite in tanks or containers for up to 90
days without obtaining hazardous waste permits under 40 CFR 262.34. See
also 51 FR 10186 (May 24, 1986.)
VI. State Authorization and Implementation
A. Permit Deadline Extension
1. General Principles
Section 3006(b) of RCRA allows states to obtain authorization to
implement state hazardous waste programs in lieu of federal law. To
obtain authorization, a state must show that its program is equivalent
to the Federal program. EPA interprets this requirement to mean that
state laws and rules must be no less stringent than federal
requirements. Section 3009, however, expressly allows states the option
of establishing more stringent requirements.
Forty-eight states and territories are now authorized for all of
the RCRA requirements established prior to November 1984 (the RCRA
``base program''). In these states, the state's definition of hazardous
waste--including any exemptions--operates in lieu of the federal
definition. Changes to the federal definition do not automatically
revise independently promulgated state regulations. Rather, the states
are required to revise their programs and submit the revisions to EPA
for approval. The revision does not take effect under federal law until
EPA approves the revision. As explained below, in a few of these
states, the Court's decision may not take effect on its federal law
effective date. EPA believes that there are very few states in this
category.
Where the Court's decision does eliminate an exemption for ash, the
hazardous waste characteristic most likely to apply to ash is the TC as
determined by the Toxicity Characteristic Leaching Procedure (``TCLP'')
promulgated by EPA in 1990. This rule was promulgated under one of the
Hazardous and Solid Waste Amendments of 1984 (``HSWA''). Section
3006(g) provides that rules promulgated under HSWA take effect in all
states at the same time, displacing state rules unless the state rules
are more stringent. EPA implements the new HSWA rule until the state
adopts an equivalent provision, submits it to EPA, and obtains EPA
approval. 50 FR 28728-30. (July 15, 1985). The TC and TCLP displaced
the 1980 EP toxicity characteristic and leaching procedure. The EP,
however, also remains in effect as a matter of state law in many
states.
Sixteen states are now authorized for the TC and TCLP (see list in
Table 1). EPA continues to implement the TC and the TCLP in the
remaining states. EPA takes the position that, where it implements the
TC, it uses federal permitting procedures. Consequently, EPA will
implement the permit deadline extension announced today in all states
where it implements the TC. Owners and operators in those states would
file Part A applications with EPA Regional Offices. (See list in Table
2.) Where a state has been authorized to implement the TC, however,
state permit procedures are in effect. Today's deadline extension is
not in effect in those states. Moreover, since the extension makes
permit requirements less stringent, states are not required to adopt
equivalent extensions. If any of these states chooses to provide
equivalent relief, owners and operators would file permit applications
with the state agency.
To summarize, in order to determine the impact of today's action,
persons handling ash must determine (1) the impact of the Court's
decision on the RCRA program in each state (primarily an issue of
whether a state's base program contains an authorized exemption for
ash) and (2) whether the entity authorized to implement the TC and TCLP
has extended its permit deadline.
2. Application of Principles: Status of Court Decision and Permit
Exemption in Individual States
a. Unauthorized states. In the eight states and territories where
EPA implements all portions of the RCRA program (see Table 1 for a list
of these states and territories), including the base program, the
Court's decision will eliminate EPA's interpretative ash exemption on
the opinion's effective date. Since EPA implements the TC, the permit
deadline extension will take effect today. Owners and operators of
facilities who wish to obtain interim status to manage hazardous ash
may file Part A applications with EPA Regional Offices. (See list in
Table 2.)
b. Authorized states. The issues in authorized states are very
complex. Table 3 summarizes the status of the decision and the permit
deadline for major categories of states. This text presents a few
explanatory notes.
Table 1.--List of States and Territories Without RCRA Subtitle C Base
Program Authorization
Wyoming
Hawaii
Alaska
Iowa
Puerto Rico
Virgin Islands
American Samoa
Northern Mariana Islands
List of States and Territories Authorized for the Toxicity
Characteristic
Alabama
Florida
Georgia
Kentucky
Mississippi
North Carolina
South Carolina
Tennessee
Minnesota
Arkansas
Texas
Arizona
California
Guam
Nevada
Idaho
Table 2.--U.S. EPA Regional Contacts for the Part A Permit Application
U.S. EPA Region 1, RCRA Support Section, JFK Federal Building, Boston,
MA 02203-2211, (617) 573-5750, CT, ME, MA, NH, RI, VT
U.S. EPA Region 2, Air and Waste Management Division, Hazardous Waste
Facilities Branch, 26 Federal Plaza, room 1037, New York, NY 10278,
(212) 264-0504, NJ, NY, PR, VI
U.S. EPA Region 3, RCRA Programs Branch (3HW50), 841 Chestnut Street,
Philadelphia, PA 19107, (215) 597-8116 (PA, DC), (215) 597-3884 (VA,
WV, DE, MD), DE, DC, MD, PA, VA, WV
U.S. EPA Region 4, Hazardous Waste Management Division, RCRA Permitting
Section, 345 Courtland Street, NE, Atlanta, GA 30365, (404) 347-3433,
AL, FL, GA, KY, MS, NC, SC, TN
U.S. EPA Region 5, RCRA Activities, P.O. Box A3587, Chicago, IL 60690
(Call State Offices), IL, IN, MI, MN, OH, WI
U.S. EPA Region 6, Hazardous Waste Management Division, First
Interstate Bank Tower, 1445 Ross Avenue, Suite 1200, Dallas, TX 75202-
2733, (214) 655-8541, AR, LA, NM, OK, TX
U.S. EPA Region 7, RCRA Branch, Permitting Section, 726 Minnesota
Avenue, Attn: WSTM/RCRA/PRMT, Kansas City, KS 66101, (913) 551-7654,
IA, KN, MO, NE
U.S. EPA Region 8, Hazardous Waste Management Division, 999 18th
Street, Suite 500, Denver, CO 80202-2405, (303) 294-1361, CO, MT, ND,
SD, UT, WY
U.S. EPA Region 9, Hazardous Waste Management Division, Attn: H-2-3, 75
Hawthorne Street, San Francisco, CA 94105, (415) 744-2098, AZ, CA, HI,
NV, AS, GU, No. Mariana Is.
U.S. EPA Region 10, Waste Management Branch, HW-105, 1200 Sixth Avenue,
Seattle, WA 98101, (206) 553-0151, AK, ID, OR, WA
Table 3.--Permit Deadline: Implementation in Authorized States
------------------------------------------------------------------------
State has no ash State has unauthorized State has authorized
exemption ash exemption ash exemption
------------------------------------------------------------------------
TC Authorization: EPA\1\
------------------------------------------------------------------------
1. Court decision in 1. Court decision in 1. Decision may not be
effect. effect. in effect (state law
issue).
2. No deadline 2. Deadline extension 2. Deadline extension
extension needed. in effect. not in effect. EPA
will extend deadline
when it approves
program revision.
3. No state program 3. State must revise 3. State must revise
revision needed. state law and inform program and submit
EPA informally. for review under 40
CFR 271.21(e)(2)(ii).
4. Owners/operators 4. Owners/operators
file notifications and file notifications
Part A's with EPA and Part A's with EPA
Regional Office. Regional office.
------------------------------------------------------------------------
TC Authorization: State
------------------------------------------------------------------------
1. Court decision in 1. Court decision in 1. Decision may not be
effect. effect. in effect (state law
issue).
2. No deadline 2. Deadline extension 2. Deadline extension
extension needed. not in effect. State not in effect. State
may provide equivalent may provide
relief. equivalent relief
when it eliminates
exemption.
3. No state program 3. State must revise 3. State must revise
revision needed. state law and inform program and submit
EPA informally. for review under 40
CFR 271.21(e)(2)(ii).
4. Owner/operators file 4. Owner/operators
with State if State file with State if
grants relief. State grants relief.
------------------------------------------------------------------------
\1\Note: EP toxicity characteristic may still be in effect under state
law. States that have ash exemptions may determine whether they want
to provide similar relief for EP permitting deadline.
(i) States with no ash exemption.
Since states may maintain more stringent RCRA programs, some states
may never have exempted ash from hazardous waste requirements. The City
of Chicago decision has no impact in these states. No permit deadline
extensions are needed.
(ii) States with unauthorized ash exemptions.
EPA knows that, during the years of confusion over the status of
ash, some states exempted ash from their Subtitle C programs. Most of
these states, however, did not submit these provisions to EPA for
authorization reviews. Although they arguably may have made the state
programs less stringent than the federal program, EPA would have taken
no action to force the states to eliminate them.
(A) Effect of court's decision.
Some of these states adopted provisions resembling 3001(i) and
interpreted them to exempt ash. Whether the City of Chicago decision
requires these states to abandon these interpretations is an issue of
state law that can be answered authoritatively only by state officials.
Other states promulgated rules under their solid waste authorities
that established ash-specific management standards that implicitly--or
explicitly--transferred ash management from their hazardous waste
programs to their solid waste programs. The status of these provisions
is again an issue of state law.
(B) Effect of today's deadline extension.
Since the state never obtained authorization for its exemption for
ash, its authorized program still regulates ash as a hazardous waste.
The regulated community, however, could have been confused about the
status of ash, so the relief provided by the deadline extension would
be appropriate. Whether or not the extension is in effect, however,
depends on which entity is authorized to implement the TC. As explained
above, where EPA implements the TC, it will apply today's notice. Where
states implement the TC, today's notice cannot operate to revise state
permit rules. The state would need to determine whether it wanted to
provide equivalent relief.
(C) Requirements for program revision.
As a result of the court's decision, states with unauthorized ash
exemptions now have state law requirements that are less stringent than
the federal Subtitle C program. EPA is today notifying those states
that they must revise their laws and regulations to eliminate the less
stringent provisions. Although EPA is not today initiating any
withdrawals of state programs, it advises states to take timely action
to eliminate their ash exemptions. Since these provisions are not part
of states' authorized RCRA programs, no Subtitle C program revisions
will be necessary. Rather, EPA advises states to notify Regional
Offices informally by letter when they have eliminated their
exemptions.
(D) Where to file Part A applications.
Where EPA implements the TC, owners and operators must file Part A
applications with the appropriate EPA Regional Office.
Where a state that is authorized to implement the TC decides to
extend the filing deadline, owners and operators must file with the
state hazardous waste agency.
(iii) States with authorized ash exemptions.
EPA may have authorized a few ash exemptions during the late 1980's
and early 1990's. EPA has not found any such authorization during a
limited review prior to the publication of this emergency notice.
Consequently, EPA believes that there are very few states in this
category. Nevertheless, in case such states exist, EPA is explaining
their obligations.
(A) Effect of court decision.
Whether or not the decision affected the state law or rule that EPA
authorized is a state law issue. State officials will need to make that
determination. If a state determines that its state provision is still
in effect, both the state law and the authorized RCRA program will
continue to exempt ash until such time as the state revises its program
and obtains EPA approval for its revision.
(B) Effect of today's permit deadline extension.
If ash is still exempt under both state law and the authorized
program, no permits are currently required. Today's filing date
extension would not take effect. As explained in (D.) below, in some
cases EPA will announce an extension when it approves a revision
eliminating an ash exemption.
(C) State program revisions.
Where ash exemptions remain in effect, state programs will be less
stringent than the federal program. Formal state program revisions,
including notice and comment rulemaking, will be required under 40 CFR
271.21(e)(2)(ii). The deadline for these revisions will be July 1, 1995
under 40 CFR 271.21(e)(2)(ii). An additional year is available where
states must make statutory changes. 40 CFR 271.21(e)(2)(v).
(D) Where to file Part A applications.
At the time that the state receives EPA authorization for the
revision that eliminates its ash exemption, if EPA is still
implementing the TC, it will make a finding of substantial confusion
and extend the Part A deadline for that state. Owners and operators
desiring interim status will need to file applications with the
appropriate EPA Regional Office. EPA will not be able to provide this
relief where a state is authorized to implement the TC. Those states
must determine whether they want to extend permit deadlines. If they
do, owners and operators wishing to obtain interim status will need to
file applications with the appropriate state agency.
B. Land Disposal Restrictions
The LDRs are HSWA rules initially implemented by EPA. Moreover, EPA
has established that it will not delegate its authority to set
treatment standards to states. EPA views determinations linked to the
need for and scope of treatment standards as similarly nondelegable.
This includes today's interpretation that ash from waste-to-energy
facilities is a newly identified waste under section 3004(g)(4). This
interpretation is effective in all states, including those authorized
to implement the delegable portions of the land disposal restrictions.
VII. Good Cause Finding
Section 270.10(e)(2) does not require notice and comment rulemaking
for substantial confusion notices. Rather, it simply requires EPA to
publish a ``notice'' in the Federal Register. To the extent that this
notice is a rulemaking for the purposes of section 553 of the
Administrative Procedure Act (APA), EPA believes that it has ``good
cause'' under section 553(b)(3)(B) of the APA to extend the permit
application deadline without prior notice and opportunity for comment.
First, EPA believes that its determination regarding the existence of
regulatory confusion is an ``interpretative rule'' for which notice and
comment is not required under section 553(b)(3)(A) of the APA. It
clarifies and explains existing law rather than creating new duties.
Moreover, the establishment of a due date for Part A permit
applications is a procedural rule also exempt from notice and comment
under section 553(b)(3)(A) of the APA. The effect of establishing this
new date is that EPA will not take enforcement action for operation
without a RCRA permit against a facility that submits its application
in compliance with this notice and that meets the other conditions of
RCRA section 3005(e). Finally, EPA views the issues of whether
confusion existed and whether it was ``substantial'' as subjects on
which comment would not be useful and would not serve the public
interest.
EPA's findings concerning the land disposal restrictions are also
``interpretative rules'' exempt from notice and comment requirements.
They provide EPA's views on the scope of section 3004(g)(4) of RCRA.
Moreover, EPA would have good cause to eliminate notice and comment
even if these determinations are regarded as legislative rules. The
land disposal restrictions would take effect for ash approximately 25
days after the Court issued its opinion. It would be impossible for
facilities managing ash to come into compliance with the restrictions
in that short time. See 55 FR 22521 (June 1, 1990) (Third Third LDR
rule--EPA provides 90 days for persons managing wastes subject to new
treatment standards to come into compliance.) The Court's decision thus
creates an emergency justifying use of the ``good cause'' exemption
under section 553(b)(3)(B) of the APA.
VIII. Regulatory Requirements
A. Executive Order 12866
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action''
because it involves novel policy issues arising out of legal mandates.
However, OMB waived review of this action.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C 601 et seq.) requires the
Agency to prepare and make available for public comment, a regulatory
flexibility analysis that describes the impact of a proposed or final
rule on small entities (i.e., small businesses, small organizations,
and small governmental jurisdictions). No regulatory flexibility
analysis is required if the Administrator certifies that the rule will
not have a significant economic impact on a substantial number of small
entities.
The ruling of the Supreme Court in City of Chicago v. Environmental
Defense Fund, Inc. will result in additional costs for waste management
facilities and some of those costs will be borne by small entities. The
Agency does not have estimates of those costs. Today's rule extends the
date by which affected facilities must submit a Part A permit
application. This action will lower the costs to small entities that
will have to comply with the Court's ruling. Therefore, pursuant to 5
U.S.C. 605b, I certify that this regulation will not have a substantial
impact on small entities.
C. Paperwork Reduction Act
The Office of Management and Budget (OMB) has approved the
information collection requirements contained in this rule under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control numbers 2050-0009; 2050-0120; 2050-0028; 2050-
0034; 2050-0039; 2050-0035 ; 2050-0024.
This collection of information has an estimated average burden per
respondent as stated below:
----------------------------------------------------------------------------------------------------------------
Total
New Average additional
OMB No. Title respondents burden burden
(hours) (hours)
----------------------------------------------------------------------------------------------------------------
2050-0009.. Part B Permit Application.................................. 6 242 1457
2050-0120.. General Facility Standards................................. 6 91 547
2050-0028.. Notification (for EPA ID).................................. 62 4.35 270
2050-0034.. Part A Permit Application.................................. 68 72 4903
2050-0039.. Hazardous Waste Manifest................................... 12 1.8 22
2050-0035.. Generator Standards........................................ 62 1.1 68
2050-0024.. Biennial Report............................................ 62 20 1240
----------------------------------------------------------------------------------------------------------------
These estimates include time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information.
Send comments regarding the burden estimate or any other aspect of
this collection of information, including suggestions for reducing this
burden to Chief, Information Policy Branch; EPA; 401 M St., SW. (Mail
Code 2136); Washington, DC 20460; and to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington, DC
20503, marked ``Attention: Desk Officer for EPA.''
Dated: May 27, 1994.
Carol M. Browner,
Administrator.
[FR Doc. 94-13668 Filed 6-6-94; 8:45 am]
BILLING CODE 6560-50-P
