v>EPA
              United States
              Environmental Protection
              Agency
            Office of
            Solid Waste and
            Emergency Response
DIRECTIVE NUMBER: 9481.15(84)

TITLE: Definition of Regulated Units



APPROVAL DATE: n-zo-84

EFFECTIVE DATE: n-20-84

ORIGINATING OFFICE: °ffice of Solid Waste

0 FINAL

D DRAFT

 STATUS:
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[  ] _ B^Pending AA-OSWER approval
.[  ]  C- For,review &/or comment
                         A  ]  D-^In development or circulating
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               REFERENCE '(other documemfs):
  OSWER      OSWER      OSWER
fE    DIRECTIVE    DIRECTIVE

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 PARTS 264 AND  265  SUBPART F - GROUND-WATER PROTECTION
                                                              DOC:   9481.15(84)
Key Words:     Definition of Regulated Unit

Regulations:   40 CFR 264.90(a), RCRA Amendments §243(c)

Subject:       Definition of Regulated Units

              Karl Klepitsch, Chief, Waste Management Branch, Region

              John H.  Skinner,  Director,  Office of Solid Waste

              #9481.15(84)                 \s

              11-20-84
Addressee:

Originator:

Source Doc:

Date:

Summary:
     A "regulated" unit is defined in §264.90(a) as "... any such waste
management unit at a facility that receives hazardous waste after January 26,
1983." The RCRA Amendments changed this date to July 26, 1982.

     A unit does not become a regulated unit until it actually receives waste..

     The regulatory definition of "regulated unit" supports the Agency's ability
to require a moving point of compliance in the Part B permit.

     Although existing guidance manuals may not have the "correct" definition
of regulated unit, they do not weaken EPA's ability to regulate on the basis of
the new definition.  When there is a discrepancy between a rule and guidance,
the rule carries the weight of the law.

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                                                              9431.15 (34)

 r- r -  -.  • ,, _ .

 Populated Units


 John H.  Fkinner,  Director
 Office of Solid Waste  (WH-562)

 Kerl Klepitsch,  Chief
 ^'aste  Management  Branch (5-HW)
 "egion V


     This responds  to  your  memo  dated  August  31,  1984,
 regarding the definition  of a  "regulated  unit."   You  asked
 cor Headquarters  concurrence that  a  waste management  unit
 becomes  a "regulated unit"  when  the  unit  physically receives
 hazardous waste after  January  26,  1933.   This  interpretation
 is  correct.   However,  the RCRA Amendments will change  the
 date upon which a unit becomes a "regulated unit."

     A "regulated unit"  is  defined in  S264.90(a)  as "...any
 such waste management  unit  at  the  facility that  receives
 hazardous waste after  [January 26, 19831." However,  the
 RCRA Amendments will change the  date which defines when a
 unit becomes  a  "regulated unit"  from January  26,  19^3, to
 July 26,  19?2,  pursuant, to  Section 243(c), amending PCRA
 Section  3005.   Therefore, a unit which receives  hazardous
 waste  after July  26, 1982,  will  be a "regulated  unit."

     "Receives" as used  in  the regulatory definition  of
 "regulated unit"  means present physical disposal.  A  unit
 oecomes  a regulated unit  when  it actually receives waste.

     You  point  out a discrepancy between  the  regulatory
 definition of regulated unit and the Permit Applicants^
 Guidance  Manual for Hazardous t-.'jsto -Land  Trentmpn't, -Storage,
 and  Disposal  Facilities explanation  octhe same  term.The
 manual states,  "A regulated  unit is  any 'waste management
 unit'  that has or will receive hazardous  waste after
 January  2ft, 1983."  The manual's language "has or will"
 suggests  that an  intended waste  management unit  can be a
 "regulated unit"  before it  receives  hazardous waste.  This
 is  incorrect.   In the  next  draft of  the manual,  we will
 remove the phrase "has or will."  In addition, upon enactment
of the RCRA Amendments, the  effective 'date will  be changed.
 to July 26, 1982.  The manual's  definition of "regulated
unit" will then-*r>e consistent with that of the regulation.

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      We  agree  that  the  regulatory  definition  of  "regulated
 unit"  supports  the  Agency's  ability  to  require a  moving
 point  of  compliance in  the Part  B  permit.   You state in  your
 nemo  that  the guidance  manual's  discussion  of  "regulated
 unit"  weakens your  ability to do so.  This  is  not correct.
 where  there  in  a discrepancy between  a  rule and  a guidance,
 the rule  carries the weight  of the law.  That  is, the  guidance.
 nanual offers no challenge to the  regulation.

 Attachment
      •                                                 ^

 cc:  Hazardous  Waste Branch Chief - Regions I-IV,  VI-X
     Division Director  — Regions i-x
     Mark Greenwood
     Peter Guerrero
     Jerry Kotas
WH-565E:PSbar-:38-2-3345:rm2106:10./5/

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