oEPA United States Environmental Protection Agency Office of Solid Waste and Emergency Response DIRECTIVE NUMBER: 9542.02-82 w TITLE: Federal Delisting ami RCRA Permitting in Interim Authorized States APPROVAL DATE: 07/09/82 EFFECTIVE DATE: 07/09/82 ORIGINATING OFFICE: osw B FINAL * ^ D DRAFT • STATUS. [ i I [ ] A- Pending OMB approval B- Pending AA-OSWER approval C- For review &/or comment In development or circulating REFERENCE (other documents): headquarters ] OSWER OSWER OSWER VE DIRECTIVE DIRECTIVE Dl ------- PA^T 271 SUBPART B - INTERIM AUTHORIZATION DOC: 9542.02(82) Key Words: Delisting, Authorized States Regulation: 271.121 Subject: Federal Delisting and RCRA Permitting in Interim Authorized States Addressee: Richard C. Boynton, Chief, Permits Development Section, Region 1 Originator: Dan Derkics, Coordinator, Northern States PATs Source Doc: #9542.02(82) Date: 7-9-82 Summary: If a State program is approved and EPA (but not the State) subsequently delists or excludes a waste, that waste will no longer be a part of the Federally authorized State program. A RCRA hazardous waste permit cannot be issued to a~ facility managing such a waste. This reduces the Federal hazardous waste universe against which the State universe is matched to determine what part of the State's program is authorized, leaving the State program with a universe that is broader in scope than the Federal system. ------- 9542.02 (82) •<*«. Federal Delisting and RCRA Permitting in Interim Authorized Statss Dan Derkics, Coordinator Northern States PATs Richard C. Eoynton, Chief Permits Development Section - Region i This is in response to your April 28 nemo (postmarked May 26 and received on June 3) in which neso you requested Headquarters' clarification of the following: "In a Phase I authorized state, must EPA issue a permit to a facility handling a waste which was included in both the state's and EPA's universe of regulated wastes at the tine of authorization, but was subsequently excluded by EPA?" Your question has been reviewed by several Headquarters officials, including representatives on the Stable* PAT. The reviewers are in general agreement that EPA does not have to issue a permit to a facility managing a federally-excluded or delisted waste. Reviewers from the Office of General Counsel were careful to emphasize that the federal regulations also do not allow writing a federal permit for such a waste which is no longer a haz-ardous waste under the Federal system. The regulatory prohibition of 40.CFR 123.121(i)(2) applies for purposes of RCRA permitting, even in an authorized state which decides not to exclude or delist the waste: "Where an approved program has a greater scope of coverage than required by federal law the additional coverage is not part of the federally approved program11. Program Implementation Guidances (PIGs) 82-1 and 3 provide further explanatory guidance which can be read to address an important underlying issue raised by your question: what effect (if any) does a federal delisting .or exclusion] have in an authorized s^ate? Both PIGs reaffirm the principle of the state's Phasr I- approved hazardous waste universe apply- ing (in lieu of the Federal system) for purposes of federal permitting. PIG-82-1 defines "the universe of hazardous waste considered part of a state's Phase I authorized program are those wastes identified or listed by both EPA and the state". PIG 82-3 further describes that a state program, for purposes of federal enforcement, is broader in scope if it includes wastes that are in addition to those listed in the federal universe. Following the above-stated logic of this guidance, the federal delisting [or exclusion] can be seen to do two ------- - 2 - things: (l) It reduces the federal hazardous waste universe against which the state univer-rs is matched to determine what part of the state's program is authorized, and (2) it leaves the state program with a universe that is broader in scope than the Federal system (unless the state also delists or excludes wastes). Accordingly, the federal delisting [or exclusion] must automatically place the waste outside the coverage of the RCRA program: both the federal program and the previously- .authorised portion of the state program" The complete' answer to the question in your memo is therefore as follows: If a state program is approved and EPA (but not the state) subsequently delists [or excludes] a waste in the state, that waste is automatically no longer a part of the federally-authorized state program and a RCRA hazardous waste permit cannot be issued to a . facility managing that waste. cc: John Skinner Truett DeGeare Susan Absher Denise Hawkins Dotz Darrah Stablex PAT ------- |