States may impose requirements that are more stringent or broader in scope than the federal requirements. Hazardous waste generators are required to follow whichever is the stricter program.
State programs may be more stringent than RCRA, but by law cannot be less stringent than the federal program. Differences that occur in state regulations include:
- Regulating additional wastes as hazardous by adding additional criteria for determining whether a waste is hazardous or by adding additional listed hazardous wastes;
- Classifying generators by standards that, by differing from the federal standards, make the state generator classifications more stringent;
- Requiring annual reports on hazardous waste activities instead of or in addition to biennial reports;
- Establishing additional waste minimization program requirements;
- Placing a time limit on satellite accumulation; or
- Defining treatment more broadly, or not allowing the same exemptions from permitting as under RCRA.
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RCRA Enforcement in Authorized States
Determining which agency, either EPA or the state, will take the enforcement lead in a RCRA-authorized state generally depends on whether the state is fully authorized to enforce the applicable provisions. If the provision being enforced was promulgated prior to the 1984 Hazardous and Solid Waste Amendments (HSWA) to RCRA, the authorized state has the primary responsibility for ensuring compliance. A rule issued pursuant to HSWA is effective in all states (whether or not they are RCRA-authorized) at the same time it takes effect under the federal program and is enforced by EPA. As states become authorized for all aspects of HSWA, they will assume enforcement authority for HSWA enforcement actions from EPA. In RCRA-authorized states, EPA maintains the authority to take independent enforcement actions.
It is EPA’s policy to take enforcement actions in RCRA-authorized states when:
- The state requests EPA to do so and provides information on the case-specific circumstances;
- The state fails to take timely and/or appropriate action;
- A case could establish a legal precedent or federal involvement is needed to ensure national consistency; or
- It is a federal lead action.
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According to RCRA §3008(a)(2), in order to enforce a provision for which a particular state has authorization, EPA must notify the state prior to issuing a compliance order or starting a civil action. For provisions promulgated pursuant to HSWA, EPA has the sole authority for enforcement until the state either becomes fully authorized for that provision (RCRA §3006(g)), or receives interim authority for that provision.
See tomorrow’s Advisor for a look ahead at what EPA has in store for RCRA compliance in the year 2020.