March 12, 2015

Understanding State Regulations: More Stringent or Broader in Scope

In newly published guidance (RO 14848), EPA sheds light on determining whether a state’s hazardous waste requirements, which are different than the federal RCRA hazardous waste regulations, are “more stringent” or “broader in scope.” This new RO document supersedes previous agency guidance released in 1982 and 1984.

Although this guidance mostly pertains to state and EPA regional personnel, it is important for the regulated community to understand what state provisions are more stringent, making them part of the federally authorized program and, in turn, federally enforceable. State requirements EPA determines are broader in scope are not part of the federally authorized program and, thus, are not federally enforceable.

Two-Part Test

The basic premise in distinguishing between “more stringent” vs. “broader in scope” is subjecting the state requirement to a two-part test:

  1. Does imposition of the state requirement increase the size of the regulated community or universe of wastes beyond what is covered by the federal program through either directly enforceable (i.e., independent) requirements or certain conditions for exclusion?

If the answer to Question 1 is “yes,” generally the requirement is broader in scope. If the answer is “no,” it meets the first part of the test for being classified as more stringent but still needs to be further assessed against Question 2.

  1. Does the state requirement have a counterpart in the federal regulatory program?

If there is a federal counterpart (i.e., the answer to Question 2 is “yes”) and the answer to Question 1 is “no,” both parts of the test indicate that the state requirement should be classified as more stringent. If there is no federal counterpart, the state requirement is broader in scope.

More Stringent

For a state regulation to have a counterpart in the federal regulations, it is sufficient if the state and federal provisions relate to the same general subject matter. It is not necessary for the state requirement to have a “direct” counterpart in the federal program in order for the state requirement to be classified as more stringent. A more stringent determination causes the requirement to be within the scope of the federal program and therefore enforceable by both the implementing state and EPA. A few examples include:

Broader in Scope

If a state requirement regulates wastes or entities that are exempted unconditionally or omitted from hazardous waste regulation at the federal level, then it increases the size of the state’s regulatory program beyond that of the federal program and thus is broader in scope than the federal program. A broader in scope determination means the state requirement is not within the scope of the federal program and, therefore, is left to the state to enforce. A few examples include:

 


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Considerable care has been exercised in preparing this document; however, McCoy and Associates, Inc. makes no representation, warranty, or guarantee in connection with the publication of this information. McCoy and Associates, Inc. expressly disclaims any liability or responsibility for loss or damage resulting from its use or for the violation of any federal, state, or municipal law or regulation with which this information may conflict. McCoy and Associates, Inc. does not undertake any duty to ensure the continued accuracy of this information.

This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.