&EPA
                  Unitwd St«i«t
                  Environmental Protection
                   o'
                Solid
DIRECTIVE NUMBER:  95^3.oo-i

TITLE: Applicability of PIG-82-5 and RSI #5 on Joint
      Permitting in Phase I Authorized States
                   APPROVAL DATE: 10-03-85

                   EFFECTIVE DATE: 10-03-85
                   ORIGINATING OFFICE:

                   O FINAL

                   D DRAFT

                     STATUS:
                    Office of Solid Waste
               t  ]
               I  ]
     A- Pending OMB approval
     B- Pending AA-OSWER approval
[  ]   C- For review &/or comment
[  ]   D- In development or circulating
                 headquarters
                   REFERENCE (other document*):
                   PIG-82-5 and OSWER Policy Directive #95^1.09-85
'E     DIRECTIVE    DIRECTIVE    D

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                            unncQ ouics environmentsi rrot£ctton Aocncy
                                  Washington. DC 20460
                 OSWER Directive Initiation Request
                                   1. Directive Number

                                     95^3.00-1
                                  2. Originator Information
      Name of Contact Person
        Chester Oszman
     Mail Code
     WH-563
Office
 osw
Telephone Code
 (202)
382-2210
      3. Title
       Applicability of PIG-82-5 and RSI #5 on Joint Permitting in Phase I Authorized States
      4. Summary of Directive (include brief statement of purpose)
       Memo defines "nearly identical" and discusses effect of the Hazardous and Solid Waste
       Amendments on PIG-82-5.
      5. Keywords
       Permit/State Program/Joint  Permit/Hazardous and Solid Waste Amendments
      6a. Does This Directive Supersede Previous Directive(s)?
      b. Docs It Supplement Previous Directive(s)?
                                            No
                                            No
                      Yes   What directive (number, title)
                      Yes   What directive (number, title)

                           #95^1.09-85
      7. Draft Level

          A - Signed by AA/DAA
B - Signed by Office Director
       C - For Review & Comment
         D - In Development
8. Document to be distributed to States by Headquarters?


Yes
X

No
This Request Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
10. Name and Title of Approving Official
Bruce Weddle, Director, PSPD
Date
Date
10/03/85
     EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
   OSWER           OSWER                OSWER               O
VE    DIRECTIVE         DIRECTIVE         DIRECTIVE

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASHINGTON, D.C. 20460
                          3   CCT 1985
                                                        OFFICE OF
                                               SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM

SUBJECT:  Applicability of PIG-82-5 and RSI #5 on Joint
          Permitting: in Phase I Authorized States
                ~^&.,.^- Al l.A/,£'U..-
FROM:     Bruce R. Weddle, Director
          Permits and State Programs Division (WH-563-B)

TO:       Robert L. Allen, Chief
          Waste Management Branch (3HW30)
                7TT
     Thank you for your memorandum of July 15, 1985, in which
you asked for clarification on several issues relating to permits
jointly-issued by EPA and a State with Phase I interim authori-
zation.  This memo addresses your concerns in the same order in
which you stated them on page 2 of your memorandum.

1.  You asked;  What is Headquarters ' definition of "nearly
identical" permits as used in PIG-82-5?

     A nearly identical State permit issued by a State with
Phase I authorization would contain, at a minimum, no less
stringent State analogues to all of the provisions that the
jointly-issued Federal permit would incorporate.  A State permit
could contain provisions which are more stringent than correspond-
ing Federal provisions and still be considered "nearly identical".
State permit provisions that are broader-in-scope than the Federal
program are not relevant in determining whether State permits are
"identical" or "nearly identical".  (See PIG 84-1 for a discussion
of how to determine whether State provisions are broader-in-scope
or more stringent.)

2.  You asked;  Under what circumstances can jointly-issued,
nearly identical j?ermits be issued by a Phase I authorized
State yet be considered RCRA permits after Final Authorization?

     Contrary to the approach described in #5 of PIG-82-5, we
concluded that the EPA RCRA permit should not be terminated.
While recognizing the State and Federal permits may have been
issued jointly, receipt of Phase II or final authorization does
not automatically convert the State permit into a RCRA permit.
Rather, the State must have RCRA permitting authority at the time
of permit issuance.  Thus, were the EPA permit to be terminated
prematurely, the facility would lose RCRA authority to operate.

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     Nevertheless, EPA can use its discretion to avoid duplicate
State and Federal efforts to enforce identical permit provisions.
That is, if the State were adequately enforcing its identical
permit, EPA would not plan to devote enforcement resources to that
facility.

     Subsequent to being granted final authorization, the State
could reissue its permit as a RCRA permit or wait until the EPA
RCRA permit expires.  When the State decides to issue a RCRA
permit and the State is not authorized for HSWA provisions, the
Region must determine whether and how the facility is affected
by the HSWA requirements and either issue a permit for the HSWA
provisions or a notice of its tentative and final decision that
the facility is not affected by HSWA.  At the time of permit
reissuance, the HSWA provisions must be considered even though
they were not applicable when EPA issued the first permit.

3.  You asked;  What effect will HSWA have on the provisions
of PIG 82-5?

     HSWA mandates incorporation of certain requirements and
prohibitions in all RCRA permits as of November 8, 1984.  Simply,
a permit cannot be considered a RCRA permit unless it complies
with all the applicable new requirements of HSWA.  A State must
be specifically authorized for provisions of HSWA to issue a RCRA
permit.  Thus the policy on joint permitting stated in RSI #5
supersedes the policy of PIG 82-5. (See RCRA Reauthorization
Statutory Interpretation #5, July 1, 1985.)  In relation to
PIG 82-5, you will likely be issuing permits as described Joy
situation #4, rather than situation #5.  That is, a facility will
be jointly issued a State permit and a Federal RCRA permit.  Since
the facility has a Federal RCRA permit, the urgency for State
reissuance of a State RCRA permit diminishes.  Unless there are
extenuating circumstances, there is no compelling reason for a
State to reissue a State permit to a facility which also has a
Federal RCRA permit prior to the expiration of that Federal
permit.  This would be especially true if the previous State
permit was issued using standards and procedures equivalent to
EPA's.

     I trust that the above discussion answers your questions
and concerns relating to jointly-issued permits prior to a Phase I
State receiving final authorization.

cc:  Permits Branch
     State Programs Branch
     RCRA Branch Chief, Regions I, II, IV - X

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