State-Specific Requirements of Regulation 23

Arkansas has enacted several requirements under its hazardous waste management program that are either in addition to, more stringent than, or broader in scope than the minimum standards of the federal Resource Conservation and Recovery Act (RCRA) program set forth in 40 CFR Parts 260-279. These additional state requirements are set forth in Regulation 23 at Sections 1-6 and Sections 18-30, and appear in Sections 260-279 in italicized type to distinguish them from the adopted federal language.

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State requirements are equivalent to those of the federal program, except for the following:

  • In the definition of “Existing hazardous waste management (HWM) facility”, the deadline for the operation or construction of a facility to be included in this definition is 20 months earlier than the date set in the Federal regulations. Thus, more facilities are subject to the more stringent requirements for new facilities than is the case under the Federal requirements.
  • Arkansas includes definitions for the following terms not found in 40 CFR 260.10: “commingling”,“permit”, “permitted site”, “shipper”, “site”, transport”, “treatment facility” and “ultimate controlling person”. With the exception of “permit” and “site”, the State’s definitions serve to clarify the use of these terms and do not affect stringency or the scope of the State’s program. “Permit” and “site” are terms defined in 40 CFR 270.2. However, Arkansas has revised its definition of “permit” to include the State’s transporter permit and its definition of “site” has been revised to be consistent with the State’s definition of “existing hazardous waste management facility”.

State requirements are equivalent to those of the federal program, except that:

  • Arkansas does not provide for a State delisting program. To delist a waste in Arkansas, an applicant must first complete the process to obtain a final delisting decision from the EPA Administrator. Once a final federal delisting decision has been published in the Federal Register, it is not effective in Arkansas until the Arkansas Pollution Control and Ecology Commission completes rulemaking to approve and incorporate the federal decision in Regulation 23.
  • Arkansas has not adopted the provisions published at 73 FR 64667-64716 on October 30, 2008, which revise the definition of solid waste for the management of hazardous secondary materials under 40 CFR 261.4(a)(23).
  • Arkansas has not adopted the provisions published at 73 FR 77953-78017 on December 19, 2008 which expand the provisions for the RCRA comparable fuel exclusion at 40 CFR 261.38.

State requirements are equivalent to those of the federal program, except for the following areas:

  • Regulation 23 § 6(n), (o), (p), and (q) establishes an annual monitoring and inspection fee for fully-regulated and small quantity generators; § 25 establishes an annual fee on hazardous waste generation.
  • Regulation 23 § 262.13(d) and § 262.24(e) require that generators give their wastes only to permitted transporters, because Arkansas requires that transporters be permitted. This is a broader in scope provision.
  • Regulation 23 § 262.13(g) requires that all generators of hazardous wastes newly characterized as TC wastes must notify the Department even if they have previously notified the Department of other hazardous waste activity. The Federal program does not have an analogous requirement, making the State more stringent.
  • Arkansas does not have an analog to 40 CFR 262.20(e) which allows generators under certain specified conditions (e.g., tolling arrangements) not to be subject to the manifest requirements. This difference makes the State provisions more stringent than their Federal counterparts.
  • Regulation 23 § 262.24 contains additional requirements for generators not found in the Federal program including:
    • submitting documentation that a weight difference of more than 10% between the initial and final weights on a manifest has been resolved between the generator and the TSDF. Under the Federal requirements only the TSDF has to submit such documentation.
    • submitting a discrepancy report as per the criteria defined by the States counterpart to 40 CFR 265.72. Under the Federal program, only the TSDF has to submit this report.
  • Regulation 23 § 262.35 contains more stringent management requirements for conditionally-exempt small quantity generators.
  • Regulation 23 § 262.41 requires that generators submit annual rather than biennial reports. This is a more stringent requirement.
  • Under Regulation 23 § 262.41(e), Arkansas is more stringent in that a generator must report accumulated wastes in addition to stored wastes. Under the Federal program, only stored wastes must be reported.
  • Arkansas does not have an analog to 40 CFR 262.44 which subjects generators of between 100 and 1000 kg per month to reduced recordkeeping requirements. This difference makes the State program more stringent than the Federal program.
  • Regulation 23 § 262.50(c) requires that a copy of all export notifications and manifests that are submitted to EPA be also submitted to the Department. This is a more stringent requirement.

State requirements are equivalent to those of the federal program, except for the following:

  • Regulation 23 § 260.10, definition of “commingling” prohibits transporters from commingling wastes in any manner that constitutes treatment.
  • Regulation 23 §§ 263.10(d) and 263.13 require that any person transporting hazardous waste in, from or through Arkansas must have a permit. § 263.13 outlines the specific requirements for this permit. This difference makes the State’s program broader in scope than the Federal program. A.C.A § 8-7-209(a)(6) provides the authority to require such permits.
  • Regulation 23 § 263.11(c) requires that each transfer facility obtain an EPA identification number. This difference makes the State more stringent than the Federal program.
  • In addition to the notification requirements found at 40 CFR 263.30(c)(1)&(2), Arkansas requires immediate notice to the Arkansas State Police and the principal officer or designated contact for the transporter.
  • Regulation 23 § 263.30(c)(4) requires that copies of reports required by the U.S. Department of Transportation and the National Response Center be sent simultaneously to ADEQ.

State requirements are equivalent to those of the federal program, except for the following:

  • Arkansas has several specific authorities which relate to siting of hazardous waste management facilities. A.C.A. § 8-7-223 specifically prohibits a landfill disposal facility from being located within one-half mile of any occupied dwelling unless the applicant can demonstrate and the Department establishes a finding that a lesser distance will provide an adequate margin of safety under normal operating conditions. Likewise, A.C.A. § 8-6-1504 (in the Arkansas Environmental Equity Act (Act 1263 of 1993)) establishes a rebuttable presumption against siting any “high impact solid waste management facility” within 12 miles’ radius of any other such facility. The definition of a high impact solid waste management facility includes all commercial hazardous waste incinerators and commercial hazardous waste treatment, storage, or disposal facilities.
  • Regulation 23 § 6(a)-(n), (t), (u), (w), (x), and (z) establish a fee system for hazardous waste permitting and related activities; § 25 establishes an annual fee for treatment, storage, or disposal of out-of-state waste.
  • Regulation 23 § 264.13(a)(1) provides that the analysis must at a minimum include a detailed waste characterization by a commercial facility for at least 10% of the waste handled for each large quantity generator shipping to the facility. The Federal requirements at 40 CFR 264.13(a) do not contain this specification; however, this additional State requirement is consistent with the Federal requirements.
  • Regulation 23 § 264.16(f) has no Federal counterpart and requires that at least one person certified by the State be on duty at all times before a facility will be permitted to operate. Certified persons must meet certain qualifications including physical capability; a B.S. Degree or related experience in engineering, physical science, health sciences or related disciplines; familiarity with principles of industrial operation; and be a U.S. citizen. Facilities must also maintain records of employees, provide personnel training and review and require annual health physicals. These provisions make the Arkansas program more stringent than the Federal program.
  • Regulation 23 § 264.18(d)-(i) have no Federal counterpart and state that facilities will not be permitted in an active fault zone, regulatory floodway, 100-year floodplain, recharge zone or wetland area unless it can be proven that there is no risk to public health or the environment. Facilities located within an area containing geologic or pedologic factors will not be permitted nor will any facility located within one half mile of an occupied dwelling, school or hospital. These provisions are more stringent than the Federal location requirements at 40 CFR 264.18.
  • Regulation 23 §§ 264.19(a), 264.115 and 264.120 restrict the engineers who can develop and implement a CQA to those registered in Arkansas. The Federal regulations allow registration in any State. This difference makes the State more stringent.
  • Regulation 23 § 264.20 has no Federal counterpart and contains performance standards that are specific to Arkansas. These standards make the State more stringent.
  • Regulation 23 § 264.71(e) has no Federal counterpart and requires notification to the State of unpermitted transporters arriving at a TSD facility, because all persons who transport hazardous waste in, from or through Arkansas must have a permit. This provision makes the State’s program broader in scope.
  • Regulation 23 § 264.75 requires that facilities submit annual rather than biennial reports. This difference makes the State program more stringent than the Federal program.
  • Regulation 23 § 264.75(i) requires annual submission of groundwater monitoring data. Under the Federal requirements, these data must only be submitted by interim status facilities. This difference makes the Arkansas program more stringent than the Federal program.
  • Regulation 23 §§ 264.143(e), 264.145(e), and 264.147(a)(1) require that when insurance is used as a mechanism for financial assurance for closure, post closure, corrective actions, or liability, a copy of the insurance policy must be provided to the Director, and the insurer must be licensed to transact the business of insurance as recognized by the Arkansas Insurance Department, and be favorably rated by A.M. Best, Moody’s, or Standards & Poor’s. Captive insurance may not be used to demonstrate financial assurances under the provisions of this Regulation.
  • Regulation 23 §§ 264.143(f), 264.145(f), and 264.147(f) require the submittal of a copy of the owner’s or operator’s consolidated financial statements for the latest completed fiscal year, with all notes and attachments, when the corporate financial test or corporate guarantee is used as a financial assurance instrument for closure, post-closure, corrective action, or liability.
  • Regulation 23 § 264.175(b)(2) has no Federal counterpart and requires an impermeable coating on all surfaces of the secondary containment structure for container storage areas. This difference makes Arkansas’ program more stringent than the Federal program.
  • Regulation 23 §§ 264.191 through 264.193 restrict those engineers who can inspect or certify a tank system’s integrity to those registered in Arkansas, and independent from the facility owner/operator.. The Federal requirements allow registration in any State. Arkansas is therefore more stringent.
  • Regulation 23 § 264.571(b) requires that for immediate protection of the environment, all existing drip pads must have an impermeable coating or cover in place not later than September 30, 1995. This requirement is more stringent than its Federal counterpart.
  • Regulation 23 §§ 264.571(a)-(c) and 264.573(m)(3) restrict engineers who can certify a drip pad’s integrity or completed repairs to those registered in Arkansas and independent from the facility owner/operator. The Federal counterparts allow engineers to certify that are registered in any state. This difference makes the State’s program more stringent.
  • Regulation 23 §§ 264.573(a)(4)(i) states that penetrating sealants are not adequate to meet the coating or cover requirements for drip pads. The Federal requirements do not have this restriction; therefore, the State is more stringent.
  • Regulation 23 § 264.601(d)&(e) have no Federal counterpart and prohibit open burning or detonation of hazardous wastes on unprotected ground. Open burning or open detonation may only be conducted in or on an elevated containment device which will prevent leaching or migration of waste. Prior to open burning or detonation, a RCRA permit must be obtained and it must be demonstrated that no other feasible alternative is available. These requirements are consistent with Federal requirements at 40 CFR Part 264, Subpart X. However, the required demonstration that there are no other feasible alternatives is a more stringent provision.
  • Regulation 23 § 264.1101(c)(2)&(c)(3)(iii) restrict the engineers who can certify a containment design or completed repairs to those registered in Arkansas and independent from the facility owner/operator.
  • State corrective action authority covers hazardous substances (including petroleum and petroleum-based products), rather than only hazardous wastes and hazardous constituents as prescribed by Federal law. Thus, State authorities are broader in scope in this regard than the Federal program’s. (See A.C.A. § 8-7-502, § 8-7-503(12), § 8-7-508(a)(1).)
  • Because Arkansas law does not distinguish between corrective action on-site and off-site, demonstration of financial responsibility is required for corrective action wherever it is needed.

Arkansas allows existing facilities to continue operation only if the facility was in existence on March 14, 1979 and submitted an initial State application form to the Department by September 14, 1979. A.C.A.§ 8-7-216 requires that an initial State application for interim status be submitted to the Department by September 14, 1979. Thus, Arkansas has a more stringent form of interim status. Otherwise, State requirements are equivalent to those of the federal program, except for the following:

  • Regulation 23 § 265.13(a)(1) provides that the analysis must at a minimum include a detailed waste characterization by a commercial facility for at least 10 % of the waste handled for each large quantity generator shipping to the facility. The Federal requirements at 40 CFR 265.13(a) do not contain this specification; however, this requirement is consistent with the Federal requirements.
  • Regulation 23 § 265.16(f) has no Federal counterpart and requires that at least one person certified by the State be on duty at all times before a facility will be permitted to operate. Certified persons must meet certain qualifications including physical capability, a BS Degree or related experience in engineering, physical science, health sciences, or related disciplines, familiarity with principles of industrial operation and be a U.S. citizen. Facilities must also maintain records of employees, provide personnel training and review and require annual health physicals. These provisions make the State’s program more stringent than the Federal program.
  • Regulation 23 §§ 265.19(a), 265.115 and 265.120 restrict the engineers who can develop and implement a CQA to those registered in Arkansas and independent from the facility owner/operator. This difference makes the State more stringent.
  • Regulation 23 § 265.71(e) has no Federal counterpart and requires notification to the State of unpermitted transporters arriving at a TSD facility, because all persons who transport hazardous waste in, from or through Arkansas must have a permit. This provision makes the State’s program broader in scope.
  • Regulation 23 § 265.75 requires that facilities submit annual rather than biennial reports. This difference makes the State program more stringent than the Federal program.
  • Regulation 23 §§ 265.143(h), 265.143(h) and 265.147(e) require that the engineer who certified closure be registered in Arkansas and independent from the facility owner/operator. This difference makes the State more stringent.
  • Regulation 23 §§ 265.143(e), 265.145(e), and 265.147(a)(1) require that when insurance is used as a mechanism for financial assurance for closure, post closure, corrective actions, or liability, a copy of the insurance policy must be provided to the Director, and the insurer must be licensed to transact the business of insurance as recognized by the Arkansas Insurance Department, and be favorably rated by A.M. Best, Moody’s, or Standards & Poor’s. Captive insurance may not be used to demonstrate financial assurances under the provisions of this Regulation.
  • Regulation 23 §§ 265.143(f), 265.145(f), and 265.147(f) require the submittal of a copy of the owner’s or operator’s consolidated financial statements for the latest completed fiscal year, with all notes and attachments, when the corporate financial test or corporate guarantee is used as a financial assurance instrument for closure, post-closure, corrective action, or liability.
  • Regulation 23 §§ 265.191 through 265.193, 265.196(f) and 265.280(e) restrict those engineers who can inspect or certify a tank system’s integrity to those registered in Arkansas and independent from the facility owner/operator. The Federal requirements allow registration in any State. Arkansas is therefore more stringent.
  • Regulation 23 §§ 265.441(a)&(c), 265.443(g)&(m)(3) and 265.444(a) restrict engineers who can certify a drip pad’s integrity or completed repairs to those registered in Arkansas and independent from the facility owner/operator. This difference makes the State’s program more stringent.
  • Regulation 23 § 265.441(b) requires that for immediate protection of the environment, all existing drip pads must have a impermeable coating or cover in place not later than September 30, 1995. This requirement is more stringent than its Federal counterpart.
  • Regulation 23 § 265.443(a)(4)(i) states that penetrating sealants are not adequate to meet the coating or cover requirements for drip pads. The Federal requirements do not have this restriction; therefore, the State is more stringent.
  • Regulation 23 § 265.1101(c)(2)&(c)(3)(iii) restrict the engineers who can certify a containment design or completed repairs to those registered in Arkansas and independent from the facility owner/operator. Under the Federal requirements the engineer can be registered in any state.

All State requirements are equivalent to those of the Federal program.

State requirements are equivalent to those of the Federal program, except for the following:

  • Fees are required by A.C.A. § 8-7-226 and Regulation 23, Section 6 for permitting. This requirement is broader in scope because there is no direct Federal analog addressing permit fees.
  • Arkansas distinguishes between commercial and non-commercial waste activities in setting its permit fee schedule.
  • Regulation 23 § 270.7 has no direct analog in the Federal requirements and includes additional requirement relative to permit application. Some of the requirements are a restatement of the Federal requirements, but others are additional demonstrations which must be made or information which must be provided. Included are such things as evidence that the contingency plan has been developed in consult-ation with the fire department, the Mayor/City Manager/County Judge in the municipality/county in which the facility is to be located; provision of contracts, agreements, and such other documentation to demonstrate that the waste which will be disposed of is waste which resulted from the treatment of waste to the full extent of known technology and economics or is waste for which there is no technically and economically feasible means of treatment available; demonstration of full fee ownership of lands and all mineral rights; location and places where public notice must be made; proof of public notice of application submission prior to any permit decision; written notice to all landholders and tenants of property contiguous to the proposed or existing facility; evidence of good faith effort to contact all contiguous landholders; and permittee must submit as part of the annual permit review process a plat of any landfill disposal area in which waste has been disposed. These requirements make the state more stringent.
  • Regulation 23 § 270.10(e)(1) requires that any facility in existence on March 14, 1979 submit a permit application on or before September 4, 1979. The State is more stringent because if the application was not submitted to the Department as required under the State Act, the facility is not eligible for interim status.
  • Under Regulation 23 § 270.10(e)(8), Arkansas can take immediate enforcement action relative to an application deficiency; whereas the Federal requirements allow 30 days to fix the application. This difference makes the state more stringent.
  • Regulation 23 § 270.12 contains state- and program-specific requirements for the submittal and handling of confidential business information in conjunction with permit applications and processing.
  • Regulation 23 § 270.13(o), which does not have a Federal analog, requires disclosure information to be submitted as part of the permit application. A.C.A. § 8-1-106(b) provides the State with the authority to require this information. This requirement makes Arkansas more stringent than the Federal program.
  • Regulation 23 §§ 270.14(a), 270.16(a), 270.26(c)(15) and 270.30(l)(2)(i) are more stringent because they restrict those registered professional engineers who can certify certain technical data those who are registered in Arkansas and independent from the facility owner/operator.
  • In Regulation 23 § 270.19(d), Arkansas uses “may” rather than “shall” giving the Director the discretion for non-approval. The Administrator does not have this discretion making the State more stringent.
  • Regulation 23 § 270.30(l)(9) requires an annual rather than a biennial report.
  • Regulation 23 § 270.34, which does not have a Federal analog, requires that a survey be conducted by any appropriate health agency to establish baseline health data. In addition, the state requires that if emissions from any hazardous waste management facility are related to disease etiology, the Department shall conduct pertinent epidemiologic investigation. This requirement makes the state more stringent.
  • Regulation § 270.40(b) requires that upon the transfer of a RCRA permit to a new owner or operator, the new operator must establish compliant financial assurance no later than the date of the change of ownership or operational control. This is a more stringent requirement.
  • At Regulation 23 § 270.70(b), the analog to 40 CFR 270.70(b), Arkansas does not allow the owner/operator at least 30 days to explain or correct a deficiency. This difference makes the state more stringent.

State requirements are equivalent to those of the Federal program, except for the following:

  • Arkansas requires that used oil handlers use the State’s Notification of Regulated Waste Activity form to obtain an EPA identification number; requests via an ordinary letter are not accepted.
  • Used oil transporters, processors, re-refiners, burners, and marketers who have previously obtained an EPA identification number must re-notify in order to register their used oil activities with the Department.
  • At Regulation 23 § 279.82, used oil used as a dust suppressant may not exhibit any characteristic of a hazardous waste, and such use must prevent the oil or any component of the oil from entering any waters of the State.

State requirements are equivalent to those of the Federal program, except for the following:

  • Regulation 23 § 273.5(b)(3) specifically excludes broken and crushed lamps as well as the debris from broken or crushed lamps from being managed under the universal waste program.
  • Regulation 23 § 273.6 establishes a universal waste classification for “consumer electronic items,” a broad category encompassing CRTs and other electronic wastes.

Arkansas has four different types of criminal penalties for violation of the hazardous waste laws or regulations. The burden of proof for these penalties is not greater than under the Federal law. These penalties are at least as stringent as, and in most cases more stringent than, those required for authorization.

  • Under the first (A.C.A.§ 8-7-204(a)(1), criminal penalties can be assessed for violation of any provision of the Hazardous Waste Management Act or a violation of any rule, regulation, or order of the Commission or the Department. This is considered a misdemeanor; if a person is convicted, that person is subject to imprisonment for not more than 1 year or a fine of not more than $25,000 or subject to both fine and imprisonment. Additionally, for the purpose of the fines only, each day or part of a day during which the violation is continued or repeated constitutes a separate offense.
  • The second type of criminal penalty (A.C.A. § 8-7-204(a)(2)) results if a person violates the provisions of the Hazardous Waste Management Act or violates any rule, regulation, or order of the Commission or the Department and then leaves the State or the jurisdiction of the State. In this case, the person is guilty of a felony. If convicted, that person is subject to imprisonment for not more than 5 years or a fine of not more than $50,000 or both. As with the first type of criminal penalty, each day or part of any during which the violation is continued or repeated constitutes a separate offense.
  • The third type of criminal penalty (A.C.A. § 8-7-204(a)(3)) can be assessed when a person is convicted of treating, storing, transporting, or disposing of any hazardous wastes and purposely, knowingly or recklessly causing the release of hazardous wastes into the environment in a manner not otherwise permitted by law, or creates a substantial likelihood of endangering human health, animal or plant life, or property. The person is guilty of a felony and subject to imprisonment for not more than 10 years or to a fine of not more than $100,000 or both. Each day or part of day during which the violation is continued is considered a separate offense.
  • § The fourth type of criminal penalty (A.C.A.§ 8-7-204(4)) differs from the third type in that the violation must also include placing another person in imminent danger of death or serious bodily injury. This is also a felony and subject to criminal penalties of not more than 20 years imprisonment or a fine of not more than $250,000 or both. Each day or part of day during which the violation continues is considered a separate offense.
  • Finally, under A.C.A.§ 8-7-204(a)(5), a person convicted and subject to any of the above criminal penalties may also be subject to additional fines if that person derived pecuniary gain from the commission of the offense. The fine may not exceed twice the amount of the pecuniary gain.