Section 3009 of Subtitle C of the Resource Conservation and Recovery Act (RCRA) allows EPA-authorized states to promulgate hazardous waste regulations that are more stringent (MS) than counterpart federal hazardous waste (hazwaste) rules. If the EPA authorizes the MS provisions, they become part of the federal hazwaste program, which means that the EPA may enforce the provisions whether or not the state does so. But there are other types of revisions a state may make to its federal hazwaste program that are not MS and that the EPA may not enforce. These revisions are termed broader in scope (BIS). Are you subject to state hazwaste regulations that are either MS or BIS? A regulated entity will, of course, want to know the answer to determine whether it is subject to hazwaste requirements that may be enforced by both the state and the EPA regional office or only by the state.
Guidance
The EPA has long recognized that the difference in the two terms is critical to its enforcement discretion. In both 1982 and 1984, the Agency issued guidance documents that discussed how to classify state provisions as either MS or BIS. Thirty years later, in 2014, the Agency decided more clarity was needed and published revised guidance. The guidance generally defines the two terms. However, recognizing that definitions often take the reader only part of the way to a firm understanding, the document also contains many examples of what MS and BIS are. Here we will stick to the definitions and refer readers to the guidance itself for further illumination provided by the examples.
Two-Part Test
The 2014 guidance differentiates between MS and BIS through a revised two-part test that was introduced in the 1984 guidance. The test comprises two questions:
(1) Does imposition of the particular 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?
(2) Does the particular state requirement under review have a counterpart in the federal regulatory program?
If the answer to (1) is yes, then the state requirement is generally considered BIS. If the answer is no, then the state requirement satisfies the first part of the test for being classified as MS; however, the requirement must also receive a yes response under (2) to be classified as MS.
BIS
If a state requirement regulates wastes or entities that are exempted unconditionally or omitted from hazardous waste regulation at the federal level, then the state requirement increases the size of the state’s regulatory program beyond that of the federal program and thus is BIS.
However, since 1984, the EPA has promulgated a large number of conditional exclusions from Subtitle C requirements. Such exclusions free entities from some but not all Subtitle C requirements. In other words, if a state decides not to grant these exclusions, it is not, in fact, increasing the size of the regulated community, and the affected entities are still subject to the federal program. Therefore, by this measure, the requirement is not BIS, and the first part of the MS test is satisfied.
In contrast, if a state regulates material that is not considered to be solid waste or hazwaste under federal regulations, the state regulation is BIS (that is, outside the range of federal enforcement), even if a federal exclusion applies to the material and only if the regulated entity meets all the conditions of the exclusion.
The guidance is equipped with a useful appendix of all Subtitle C exclusions and exemptions.
MS
A state regulation must be classified as BIS if it does not have a counterpart in the federal regulations. If an additional state requirement has a counterpart in the federal regulatory program, it should be classified as MS. 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. The EPA explains:
“It is not necessary that the state requirement have a ‘direct’ counterpart in the federal program for the state requirement to be classified as more stringent. In addition, the requirements need not be identical and need not achieve identical results. Factors that Regions should consider in determining whether a state regulation has a counterpart include whether the state and federal requirements are designed for the same purpose and to achieve similar results, whether the state requirements support or enhance the implementation of a federal requirement, and whether the state requirements supplement federal regulations. A region need not determine that all factors are present when determining if there is an adequate counterpart between the state and federal provisions.”
We repeat, while these explanations may seem straightforward, a close review of the examples will aid in obtaining a fuller understanding of how BIS and MS differ and how they are applied by the EPA in practice.