vv EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 9542.O3C8O)
Ti,e (jse Of state Permitting Systems During Phase I Interim
Authorization not Based on Explicit Regulatory Standards.
TITLE:
APPROVAL DATE: 10-17-80
EFFECTIVE DATE: 10-17-80
ORIGINATING OFFICE: Solid Waste
0 FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OSWER OSWER OSWER
fE DIRECTIVE DIRECTIVE Di
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PART 271 SUBPART B - INTERIM AUTHORIZATION DOC: 9542.03(80)
Key Words: RCRA Permits, Equivalency, State Authorization, Authorized States
Subject: The Use of State Permitting Systems During Phase I Interim
Authorization not Based on Explicit Regulatory Standards.
Addressee: Program Implementation Guidance Addressees
Originator: Steffen W. Plehn, Deputy Assistant Administrator for Solid Waste
R. Sarah Compton, Deputy Assistant Administrator
Source Doc: #9542.03(80)
Date: 10-17-80
Summary:
A State may be issued Phase I interim authorization even if it uses a
permitting system (to apply their version of Federal interim status standards)
which is not based on explicit regulatory standards. To determine whether the*
State's facility controls are substantially equivalent to the Federal program,
EPA must examine the following: :
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• *•"
1) The State's program description must delineate the conditions that i
•will be used in all permits and must demonstrate that these conditions
are substantially equivalent to the Federal interim status standards.
2) The State must have the legal authority to apply these permit conditions
and to enforce compliance with the conditions. The State Attorney
General must indicate in his or her statement that such legal authority
does exist.
3) The Memorandum of Agreement (MOA) muse require that all permit conditions
delineated in the program decrlption will be incorporated into all
permits prior to the date of interim authorization; that- permits will
be re-issued or modified only if as re-issued or modified they are
substantially equivalent to the Federal interim status; that the
permits will be modified, if necessary, because of modifications in
the Federal regulations, within one year of the date of promulgation
of th»:new Federal regulations; and that hazardous waste activities
ar ^prohibited without a permit.
b« noted that permits issued by a State with only Phase I
int«rlDrauthorization are not RCRA permits; facility owner/operators
must apply for and receive a RCRA permit from EPA or a State with
Phase II or final authorization.)
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9542.03 (80)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
3FFICE OF WATER
WASTE MANAGEMENT
PIG-81-1
MEMORANDUM
SU BJECT:
FROM:
The Use of State Permitting Systems During
Phase I Interim Authorization Which are not
Based on Explicit Regulatory Standards.
Steffen W. Plehn
Deputy Assistant Admi
for Solid Waste
TO
Issue:
R. Sarah Compton
Deputy Assistant Administrator*
for Water Enforcement (EN-335)
PIGS Addressees
Can a State program be considered substantially equivalent
to the Federal Phase I hazardous waste program if the State con-
trols hazardous waste management facilities through a permitting
system which is not based on explicit regulatory standards?
Discussion:
This issue is not concerned with the authorization of
States to issue/revoke RCRA permits, as is provided in §3005.
Such authorization will not be available to States until the
Phase II regulations are effective. During Phase I of interim
authorization-Federal interim status standards or their
State anal'^iaaSfeapply to existing facilities. Some states
with Pha*i^^|interim authorization may elect to apply their
version oJpg^leral interim status standards by issuing per-
mits containing; conditions analogous to the Federal interim
status standards. This approach is perfectly acceptable.
However, a permit containing those standards is not a RCRA
permit and does not relieve the facility owner/operator
holding it of the obligation to apply for and receive a. RCRA
permit after the effective date of Phase II.
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-2-
In those States which deal with hazardous waste only through
a permitting system, the Agency is concerned with the substance
of the permit conditions. These permit conditions (along with
compliance monitoring) will be the key elements which determine
the succeaa>of a State program. The ideal situation exists when
permit conditions are based on explicit regulatory standards which
are substantially equivalent to the Federal interim status standard
This situation has the advantage of minimizing the potential for
litigation by permittees who disagree with the permit conditions
and provides a sound enforcement position. Some States, however,
base their hazardous waste permit conditions on policy or guidance
rather than on explicit standards established via regulation. Such
a State program may require additional scrutiny by EPA prior to
making a decision on whether to grant interim authorization.
Decision;
A State program may be issued interim authorization for Phase
I even if it controls hazardous waste facilities through a permit-
ting system which is not based on explicit regulatory standards. Ln
determining whether the State's facility controls are substantially
equivalent to the Federal program, the considerations discussed
below must be examined. ;
The State's program description must delineate the conditions
that will be used in all permits and must demonstrate that these
conditions are substantially equivalent to the Federal interim
status standards.
The State must have the legal authority to apply these permit
conditions and to enforce compliance with the conditions. The
State Attorney General must indicate in his or her statement
(as part of the application) that such legal authority does exist.
Furthermore, the Memorandum of Agreement (MOA) must provide
that all permit conditions delineated in the program description
will be incorporated into all permits prior to the date of interim
authorization. The MOA must state that permits will not be re-
issued or modified unless as re-issued or modified they are sub-
stantially equivalent with the Federal interim status standards. The
MOA must .cejctify. that the permits will be modified, if necessary,
because o^l^dpflcations in the Federal regulations, within one year
of the datifcp^pT omul gat ion of the new Federal regulation. In cases
where a Sti^^aitatutory amendment or enactment is required to reflect
changes irt^tfi»iFederal regulations, the MOA must provide that the
permits will-be modified within two years, as provided by 40 C.F.R.
§123.13(e) (45 FR 33463). The MOA must also specify that all haz-
ardous waste management activities without a permit are prohibited.
\uthcrity for such prohibition must ba indicated in the Accorney
General's Statement.
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