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

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 STATUS.
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               A- Pending OMB approval
               B- Pending AA-OSWER approval
               C- For review &/or comment
                 In development or circulating

REFERENCE (other documents):      headquarters
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  OSWER      OSWER      OSWER
VE   DIRECTIVE   DIRECTIVE    Dl

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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.

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                                                               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

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                            - 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

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