oEPA
Environmental Protection
0«>ca of
Solid Wa«ia and
Emargancy Raiponta
DIRECTIVE NUMBER: 9540.00-5
TITLE: (PIG-82-5) Status of Permits Issued
Before a State Deceives RCRA Phase II
Authorizat ion
APPROVAL DATE: 8/9/82
EFFECTIVE DATE: 8/9/82
ORIGINATING OFFICE:
^f FINAL
osw
D DRAFT
STATUS:
[ ]
[ ]
[ ]
A- Pending OMB approval
Pendi:.g AA-OSWER approval
C- For review &/or comment
D- In development or circulating
REFERENCE (other document*):
headquarters
DIRECTIVE DIRECTIVE D
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Wasr’ungton iJC. 20460
3 ’EPA OSWER Directive Initiation Request
Name of Contact Person
oszman
Mail Code —
(Telepnon N i be 210
Lead Office 0 OUST
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Approved f r Review
Date
Signature of Office Drector
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Title
(PIG—82—5) Status of State Permits Issued Before a State Receives
RCRA Phase ii Authorization
Summary of Directive
Memo answers: (1) Status of State issued permits before the State
receives authorization, (2) What is relationship of State issued
permits to RCRA permits and (3) Status of Federal issued permits
in an authorized State.
Key Words:
State Pro ramS Permit
Type of Directive IMenual Policy Directive. Announcement. etci Status
0 Draft I 0 New
Final 0 Revision
Does thiS Directive Supersede Previous Directive(s ? Yes No Does It Supplement Previous Directive sl) Yes No
If Yes to Either Question Whet Directive (number title)
Review Plan
0 AA OSWER 0 OUST 0 OECM 0 Other (Specdyi
OERR 0 OWPE 0 OGC
OSW 0 Regions 0 OPPE
Request Meets OSWER Directives System Format
Sigrature of Lead Office Directives Officer Date
Signature of OSWER Directives Officer Date
,
Ovq.natoi inlo,rna’ on
I
•r r ‘ Ci,ir .c
9540.00—5,
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sE 0 ST 4 ,
1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON, D C 20460
“S
‘I’,
4 L PROS
AUG 91982 PIG-82-5
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Status of State Permits Issued Before a State
Receives RCRA Phase II Authorization
FROM: Rita M. Lavelle
Assistant Administ’rator for
Solid Waste and Emergency Response (WH-562-A)
TO: Program Implementation Guidance Addressees
ISSUE
Once a state is authorized for a component of Phase It,
what is the status of hazardous waste facility permits which
the state issued prior to being authorized for the component?
Can they be considered RCRA permits? What is the status of
an EPA-issued federal permit in a state authorized for a
component of Phase II?
DISCUSSION
Prior to being authorized for a component of Phase II a
state may require facilities that treat, store, or dispose of
hazardous waste to obtain a state permit. There are no pro-
visions within RCRA or the federal hazardous waste regulations
for designating these pre-authorization state permits as RCRA
permits. RCRA permits can be issued only by EPA or an autho-
rized state. Authorization requirements ensure that an autho-
rized state will be using procedures substantially equivalent
to the federal permitting procedures (state procedures must,
of course, meet the requirements of Section 7004(b) of RCRA)
and will be requiring cornpl iance with standards providing
substantially the same degree of protection as the federal
technical standards (See 40 CFR 123.129).
Before a state is granted Phase II authorization, five
situations are possible for a hazardous waste management facility
operating in a particular state. In all of these situations
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RCRA Section 3005(a) applies. That is, owners and operators of
facilities that treat, store, or dispose of hazardous waste can
legally do so only when they have a RCRA permit. Also, RCRA
Section 3005(e) applies, allowing qualified facilities to continue
to operate under federal ‘ interini status”. When the state receives
interim authorization different results occur in each of the five
situations as described below.
1) A facility has neither a state permit nor a federal
RCRA permit (but does have federal interim status)
This situation is very straightforward. The state must
eventually issue the facility a state RCRA permit. Of
course, before the state could have obtained Phase I
interim authorization, it must have had some mechanism
in place to apply standards substantially equivalent
to federal interim status standards to all of the hazard-
ous waste management facilities within its borders.
2) A facility has a state-issued permit but no federal
RCRA permit (but does have federal interim status)
This situation is also fairly straightforward; the state
must eventually issue a RCRA permit to the facil ity.
The facility can continue to operate lawfully until that
time, provided the facility will be subject to state
standards substantially equivalent to the federal
interim status standards. The timetable for reissuance
can be negotiated between the Regional Administrator and
the State Director arid is to be delineated in the Memorandum
of Agreement and discussed in the Program Description.
Legally, the state permit cannot be considered a RCRA
permit even if the state permit was issued using standards
and procedures that were eventually authorized. However,
under these circumstances there would be very little reason
to reissue the permit in the near future, and the state
could plan to reissue the permit at the end of the current
permit term or at some other convenient time.
3) A facility has a federal RCRA permit but does
not have a state permit
In this situation the state can assume responsibility
for the administration of the RCRA permit if it has
explicit authority allowing it to directly administer
and enforce permits issued by the federal government.
As an alternative, the state can issue a RCRA permit to
the facil ity. Where the state issues a RCRA permit, EPA
should suggest to the federal permittee that the permittee
should agree to the termination of the federal permit.
The EPA-issued RCRA permit cannot be terminated with-
out the agreement of the permittee unless one of the
causes for termination in 40 CFR 122.16 is present.
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4) A facility has both a federal RCRA
permit and a state permit
This situation is a combination of cases (2) and (3),
above. The state must eventually issue a state RCRA
permit to the facility or can assume responsibility to
administer the federal permit if it has the authority
to do so. The schedule for reissuance of the state
permit is to be specified in the Memorandum of Agreement.
Since the facility has a federal RCRA permit, the urgency
for state reissuance of a state RCRA permit diminishes.
This would be especially true if the previous state
permit was issued using standards and procedures that
were eventally authorized.
5) A facility has identical federal RCRA and
state permits that were issued jointly
In those situations where both permits are identical and
were issued jointly, EPA can propose its intent to con-
sider as RCRA permits the jointly-issued or identical
state permits when the Agency announces receipt of the
state’s complete Phase II application. In this last
situation, the RCRA permit can be terminated with the
agreement of the permittee (or for one of the causes
for termination in 40 CFR 122.16). If the RCRA permit
is not termi nated, then the facility will operate under
two identical permits.
The assumption underlying all of the above scenarios is that
any EPA-issued permit continues in full force and effect after
Phase II authorization. EPA—issued permits continue in
force until terminated either under 40 CFR 122.16 [ see 40
CFR 123.6 (b)(l), 123.126 (c)(l) and 124.5(d)] or by the
agreement of EPA and the permittee. Perniittees with EPA-issued
permits thus would be subject to the requirements of 40 CFR
Parts 122 and 124 until their EPA—issued permits are terminated.
The permit terms and conditions, as well as the applicable
requirements of Part 122, would be the “requirement of
this subtitle” (Subtitle C) which EPA could enforce under
Section 3008 of RCRA.
EPA would prefer not to be administering and enforcing federal
permits in authorized states. Thus, it is extremely desirable that
EPA and a non-authorized state coordinate their permitting activities
so that whenever possible they hold joint hearings and issue identi-
cal or nearly identical pernii ts. Then, upon authorization, those
state permits can be considered RCRA permits. Alternatively, it
would be extremely desirable for those states that are currently
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making legislative or regulatory changes to incorporate in their
legislation (or in their regulations, if their legislative author-
ity is already broad enough to allow it) a provision allowing them
to summarily transform federal RCRA permits into state RCRA permits.
That is, the state would want to be able, through some very simple
procedure, to issue state RCRA permits incorporating all the terms
and conditions of the federal permits.
DECISION
All facilities that treat, store, or dispose of hazardous
waste can do so legally only under a state or federal RCRA permit,
federal interim status, or a state analogue to interim status.
The only instance where a state permit that was issued prior to
Phase I I authorization can constitute a RCRA permit is where the
state permit was issued jointly with and is identical to a federal
RCRA permit. In such a case, when EPA receives the state’s appli-
cation for Phase II, EPA should announce (as part of the Federal
Register notice of receipt of a complete Phase II application) its
fntent to consider the identical, jointly-issued state permits to
be RCRA permits and take comment on that intention. At the time of
joint permit processing, EPA should also announce such an intent
if the state is one that may seek Phase II interim authorization.
Except for the above situation where joint identical state and
federal permits occurred, all state permits will need to be modified
or reissued by the state as RCRA permits once the state is author-
ized. The schedule for reissuanCe can be negotiated between the
state and the Region and must be delineated in the Memorandum of
Agreement and described in the Program Description. In those cases
where there are previously-issued federal RCRA permits, the state
may possess the authority to assume the administration of those
permits, thereby negating the need for issuance of a state RCRA
permit. EPA-issued RCRA permits cannot actually be terminated
without the agreement of the perinittee unless one of the causes
for termination in 40 CFR 122.16 is present.
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