How States Adopt New RCRA Hazardous Waste Rules

Under the Resource Conservation and Recovery Act (RCRA), Congress and the US EPA encourage each state to implement and oversee its own hazardous waste program. With the exception of Alaska and Iowa, each US state (and several territories) maintains its own RCRA program that operates in lieu of the Federal rules.

For the US EPA to authorize a state’s RCRA program to operate in lieu of Federal standards, the state program must be:

• Consistent with the Federal RCRA standards; and
• Holistically at least as stringent as the RCRA requirements.

Specific requirements for State hazardous waste programs, and the procedures the US EPA uses to authorize State programs, are found in Title 40 of the Code of Federal Regulations (40 CFR) Part 271.



General Principles for Adopting New Hazardous Waste Rules

So what happens to an authorized State plan when the US EPA issues a new hazardous waste rule? How states respond to new Federal hazardous waste standards will depend on a few key factors: 
 

1. A new rule promulgated under the authority of the basic RCRA statute is not enforceable in a state with an Authorized Plan until the state adopts an equivalent rule. If the new rule is more stringent than the Federal RCRA regulations, the state has one year to adopt a consistent and equivalent standard. In this case, the new rule is not enforceable in the interim period.


2. When the EPA makes a new rule is created under the authority of the Hazardous and Solid Waste Amendments (HSWA)—passed by Congress in 1984 to expand the scope of RCRA—the US EPA can enforce the new rule immediately, even in a state that has not yet adopted it. The state is required to incorporate the new rule (or an equivalent rule) into its State regulations within one year.


3. When US EPA issues new rules that are less stringent than existing State rules, states are not required to adopt the new rule.

Case Study—EPA’s New RCRA Definition of Solid Waste

On January 13, 2015 (at 80 FR 1694), the EPA published a final rule under RCRA to amend its Definition of Solid Waste (DSW). The revised standards provided relief for hazardous waste generators by authorizing exclusions for certain recycling activities. States with Authorized Plans are not required to adopt these new regulatory exclusions. However, several conforming provisions of the new rule are more stringent than pre-existing RCRA regulations. The new portions that are most likely to be more stringent than existing State regulations are:

• The codification of conditions for demonstrating a material is being legitimately recycled [40 CFR 260.43];


• Adding “sham recycling” to the definition of solid waste [40 CFR 261.2(g)]; and


• Adding labeling and recordkeeping requirements to the definition of “speculative accumulation” [40 CFR 261.1(c)(8)].

While these newly restrictive standards are not yet enforceable in self-run states, the provisions must be adopted into Authorized Plans before June 2016, or else self-run states risk losing their RCRA authority.

For those provisions of the new rule that create new relief for hazardous waste generators, each state will determine whether to adopt each new provision as is, adopt it with variations, or reject it entirely.

Read more about State implementation of the new RCRA Definition of Solid Waste here.

Exclusive State RCRA Summaries for Lion Members

Are you a Lion Member? For an easy-to-read breakdown of the specific, unique requirements in your state, log in to the Member Area here. Click the Resources Tab, and select your state from the pull-down menu to access your free State Summary.

Lion Membership is included with enrollment in many of Lion’s hazardous waste training workshops, online courses, and webinars. Learn more about Federal and State RCRA training for your hazardous waste personnel here.

Tags: hazardous waste, new rules, RCRA, state rules