[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]


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[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