Extension of Date for Submission of Part A Permit Applications for Facilities Managing Ash From Waste-to-Energy Facilities

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