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Environmental Pro««cjion
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Solid Want and
DIRECTIVE NUMBER: 9540. oo-e
TITLE: RCRA Reauthorizatian and Joint Permitting in
Authorized States: RCRA Rea^thorization Statutory
Interpretation #5
APPROVAL DATE: 7/1/85
EFFECTIVE DATE:
ORIGINATING OFFICE
B FINAL
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D DRAFT
STATUS:
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A- Pending OMB approval
Pending AA-OSWER approval
For review &/or comment
In development or circulating
REFERENCE (other document*): headquarters
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&EPA DIRECTIVE NUMBER: 9540.00-6
TITLE: RCRA Reauthorizatic i and Joint Permitting in
Authorized States: RCRA Reaqthorization Statutory
Interpretation 1/5
APPROVAL DATE: 7/1/85
EFFECTIVE DATE: 7/1/85
ORIGINATING OFFICE: ° ‘
FINAL
DRAFT
} A— Pending 0MB approval
STATUS: [ J B— Fending AA—OSw approval
I ] C— For review 6/or coent
D— In development or circulating
REFERENCE (other documents): headquarters
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TIVE
DIRECTIVE
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Lead Office 0 OUST Aporovedt )t Review
0 OERR 0 OWPE Signature of Office Director Date
osw 0 AA OSWER
Title
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RCRA Reauthorization and Joint Permitting in Authorized States:
RS 1//5
Summary of Directive
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Provides procedural aspects of issuing State and Federal permits after
11/8/84. Responds to Section 3006 (g) of the Hazardous and Solid Waste
Amendments of 1984. Provides guidance to Regions and States in Permit Process.
Key Words:
Permit, Hazardous and Solid Waste Amendments
Type of Directive (Manual Policy Directive. Announcement. etci Status
0 I 0
New
Final 0 Revision
Does thiS Directive Supersede Previous Directive(s ) Yes No Does It Supplement Previous Directuve(sI) Yes
If Yes to Either Question What Directive (number title)
Review Plan
0 &A OSWER 0 OUST 0 OECM 0 Other
(Specilyj
0 OERR 0 OWPE 0 OGC
Osw 0 Regions 0 OPPE
tquest Meets OSWER Directives System Format
Jre of LeaC Office Directives Officer
Date
I
Sgnature of OSWER Directives Officer
Teiepnone Numoer
382—2210
Date
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• 11 EQ S?i 5
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON D C 20460
/
pP
LR_ I OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMO RAN DUM
SUBJECT: RCRA Reauthorization and Joint Permitting in
Authorized States:
Statutory Interpretation *5
X- 14 ! /fr
FROM: / J)ack W. McGILaw
‘ Acting Assistant Administrator
TO: Addressees
Section 3006(g) of the Hazardous and Solid Waste Amendments
of 1984 (HSWA or the Amendments) provides that hazardous waste
requirements and prohibitions promulgated pursuant to the
Amendments are applicable in authorized States at the same time
they are applicable in unauthorized States. HSWA also mandates
incorporation of many of these requirements in all Resource
Conservation and Recovery Act (RCRA) permits as of November 8,
1984, in both authorized and unauthorized States. In addition,
§3005(c)(3) of the Amendments provides EPA with the authority
to incorporate into permits any requirement necessary to protect
human health and the environment, even if EPA must go beyond
the specific requirements or prohibitions found in the statute
or regulations.
A permit cannot be considered a RCRA permit unless it
contains all the applicable new requirements of the Amendments.
A State must be specifically authorized for provisions of HSWA
to issue a RCRA permit. Section 3006(c) of HSWA provides EPA
with the authority to issue permits for the new requirements
and prohibitions until a State is authorized to do so. That
section provides that in an authorized State the Administrator
“shall have the authority in such State to issue or deny permits
or those portions of permits affected by the requirements and
prohibitions established by the Hazardous and Solid Waste Amend-
ments of 1984. The Administrator shall coordinate with States
the procedures for issuing such permits.” This guidance discusses
the implementation of the joint permitting process through which
this coordination will occur.’ Our intent in addressing this issue
is to continue the permitting process, in cooperation with the
States in as efficient and expeditious a manner as possible.
1 Note that there are also requirements of the HSWA which are
self—implementing. They take effect regardless of whether
a permit is being issued; for example, the ban on disposal
of hazardous wastes in salt domes (Section 3004(b)).
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JOINT PROCESSING: FORMAT AND TIMING OF THE RCRA PERMIT
The joint permit may be issued in two ways. There can
be one complete permit with signatures of both the State
Director and the Regional Administrator (RA) on the same
document. The other alternative is to issue two incomplete
permits, one signed by EPA and one signed by the State. In
either situation signatures by EPA and the State are necessary
to provide the facility with the authority to operate under
a RCRA permit.
If a single complete permit is issued, it is especially
important to have a clear identification of which provisions
stem from Federal authorities and which stem from State
authorities. This identification will clarify enforcement
responsibilities and will enable an interested party to
determine the appropriate authority to approach when appealing
a given permit condition.
Where incomplete permits are issued simultaneously,
only those conditions stemming from one authority would be
attached to the respective signature. EPA would issue the
portion addressing only those HSWA provisions for which the
State has not yet received interim or final HSWA authorization.
The authorized State would address all other RCRA and State
conditions and requirements. The two parts together (whether
one document with two portions or two portions put together)
would address all the conditions required in a RCRA permit.
(See Draft permit section on page 7 for a discussion of how
these conditions should be addressed.) This is generally the
preferable option as it clearly separates the State and Federal
requirements yet it provides the facility with a complete RCRA
permit. However, the decision whether to issue one complete
or two incomplete permits is ultimately left to the Regions and
States; legally, there is no reason to prefer one over the other.
It is EPA policy that State and Federal portions of the
RCRA permit be issued simultaneously. However, prior to the
date of enactment of the HSWA, States with Phase II or final
authorization were processing permit applications toward
final determinations. Many of these permits have already
been issued as draft permits. States with Phase II or final
authorization that issued draft permits prior to April 8,
1985, (the date the RCRA Implementation Policy was signed
announcing that joint permits must be issued simultaneously)
should proceed as planned to take final action during fiscal
year 1985 on these draft permits. The State permits will
fulfill State law but they will not be RCRA permits.
EPA will then assign a high priority to these facilities,
so that the Federal portion of the permit can be issued as
soon as possible, or a rapid determination can be made that
a Federal portion is unnecessary. For all other permits,
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i.e., those permits which have not reached the draft stage
by April 8, 1985, or pre—April 8, 1985, draft permits which
are not issued as final permits in fiscal year 1985, States
and EPA must. plan on simultaneous issuance of the State and
Federal portions of the RCRA permit.
A new facility is not allowed to begin construction unless
both the State and Federal portions of the permit have been
issued, providing the facility with a RCRA permit. If a new
facility received only the State’s portion of the permit, it may
not begin construction since that portion does not, in itselt,
constitute a RCRA permit. For facilities that want to expand, if
the expansion is such that the facility would require a RCRA
permit (i.e., it is not an expansion allowable under interim
status), then the facility also must receive both the State and
Federal portions of the permit prior to expanding.
PROCEDURAL ASPECTS OF ISSUING STATE AND FEDERAL PERMIT PORTIONS
Most RCRA permits will he issued simultaneously by EPA
and the States. Procedures to be followed for simultaneous
issuance are discussed in the “Implementation Analysis”
section. This section discusses those instances, described
above, where the State and Federal portions of the permit
are not issued simultaneously.
The procedures for issuing a joint RCRA permit in these
cases will vary depending upon whether the State has issued a
draft or final permit. Where the final State permit has been
issued prior to the issuance of the EPA permit, the expira-
tion date will coincide with that established for the original
State permit. There are two possible permitting situations:
1. State issued draft permit prior to April 8, 1985, and
EPA issues draft permit prior to final State permit;
State issues final permit before EPA issues final permit .
Where a State has already issued its draft permit, EPA
will make this permit a high priority for action. EPA will
determine whether and how the facility is affected by the
HSWA requirements since the State is not authorized to make
a determination about the applicability of the Amendments.
When EPA makes this determination, it will either:
— issue a draft permit containing appropriate
conditions addressing HSWA, or
— where EPA finds that the facility is not affected
by HSWA, issue a notice explaining our tentative
decision. This means that no corrective action
will be necessary, no other HSWA requirements
apply, and no additional requirements to protect
human health and the environment are necessary.
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EPA will follow the procedures in 40 CFR Part 124 in issuing
the draft permit or notice of our tentative decision that the
facility is not affected by HSWA.
EPA’s Fact Sheet or Statement of Basis should explain the
relationship between the EPA action (draft permit or tentative
determination that a HSWA permit is unnecessary) and the
previously—issued draft State permit. It should explain that
EPA ’s final determination will be made simultaneously with
issuance of the final State permit or that EPA’s final action
will occur after the State issues its final permit. In the
latter event, the notice should explain that the facility will
have a RCRA permit only when final permit actions have been
taken by both EPA and the State. The State may wish to send
a letter to the facility to inform the owner/operator that
she/he does not have a RCRA permit until EPA covers the new
HSWA requirements in an EPA permit or determines that an EPA
permit to address HSWA is unnecessary.
If EPA determines that a permit is necessary to impose
HScJA requirements, and that the draft HSWA permit would
affect the draft State permit, the State is strongly
encouraged to redraft and, if appropriate, renotice its
permit at the same time EPA drafts and notices its permit.
In some cases there could be a direct conflict between the
two permits. If States have the authority to remove permit
conditions that conflict with HSWA requirements, removal
of such conditions before the permit is issued would avoid
the later issuance of two conflicting permits and the need
to explain that the HSWA permit supersedes any conflicting
State requirements.
In other cases decisions made by EPA concerning HSWA
requirements may affect the State portion of the permit
even though they do not conflict with the State approach.
For example, as a result of EPA technical requirements,
it may be necessary to revise the closure plan. It would
be preferable for the State to revise the closure plan in
its permit, making it unnecessary for both the State and
EPA permits to cover the same areas. However, if the State
is unwilling or unable to modify its draft permit, both the
State’s final permit and EPA’s draft and final permits must
indicate that HSWA requirements in the EPA portion of the
permit supersede any inconsistent or less stringent State
permit requirement. A Fact Sheet for the final EPA permit
must specifically identify the conflicting State provisions
which are superseded in order to avoid ambiguity about
whether the State or Federal permit condition in a particular
area is the operative requirement.
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2. State has issued both the draft and final permit before
EPA issues its draft permit .
In issuing its portion of the permit in this situation,
EPA should proceed as described above, by making a determina-
tion about the applicability of the Amendments and issuing
either a draft permit or a notice of our tentative decision
that the facility is not affected by HSWA.
Where the State does not open its permit, the State is
encouraged to issue a notice in conjunction with EPA’s final
permit which announces that when the State permit was issued
it was not a RCRA permit, the State permit does not address
the HSWA provisions, and that the State did not reopen its
permit. In addition, the State may wish to send a letter to
the facility as described above.
The EPA Fact Sheet should explain the relationship between
the EPA action and the final State permit. EPA should explain
that once EPA makes its final decision, the combination of the
State and Federal permits (or decision that a Federal permit is
not necessary) will meet the requirements for a RCRA permit.
In the situation described previously —— where the State
permit conflicts or overlaps with the HSWA requirements EPA
is imposing —— the State is strongly encouraged to modify its
permit. If, however, the State is unwilling or unable to
reopen its permit (e.g. , there is no “cause for modification”
under the State regulations to cover the type of change that
would be necessary), EPA should proceed to issue its permit,
making sure that the EPA permit states that the HSWA require-
ments supersede any inconsistent or less stringent State
permit requirements. As explained before, the Fact Sheet for
the RCRA permit must specifically identify whether the State
or Federal permit condition in a particular area is the
operative requirement. In any of these permitting situations,
if a State believes it must follow additional procedures in
order to meet the requirements of State law it should do so.
JOINT PERMIT IMPLEMENTATION
The joint permitting relationship must be defined by the
Regions and authorized States. The Regions and States will
need to:
o establish procedures for coordinating the joint
permitting process;
o establish procedures and schedules to obtain additional
information from permit applicants;
o notify those facilities who have already submitted
applications about the new requirements and their
need to address them.
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Authorization Memoranda of Agreement (MOA’s) need to be
amended or other agreements executed to define EPA and State
roles in the permit process.
As stated earlier, the Amendments specitica1ly provide
that the States may participate in implementing the new
provisions. An authorized State would participate in
applying the }-ISWA requirements to the same extent that an
unauthorized or Phase I State may currently participate in
the Federal permit process. The States can take the lead
on the technical review of the application, preparation
of the draft and final permit, preparation of the public
notice, review of public comments and preparation of the
response to comments; but the joint role must be clearly
understood. The State is assisting in processing the
Federal HSWA portion of the permit, but EPA has the ulti—
mate decision—making authority for those aspects of RCRA
permitting for which the State has yet to be authorized.
IMPLEMENTATION ANALYSIS
This section discusses the major steps in the permit
process and how each would be affected under joint permitting.
The Regions may wish to consider additional changes to MOA’s
to address the following discussion in greater detail.
1. Permit Application Request — Where possible, there
should be one application request issued jointly by EPA and
the State. The request should make clear which requirements
are State and which are Federal. Duplicates of the same
application should be sent to both EPA and the State. Requiring
only one application makes it easier for the applicant since
she/he need not separate the State and Federal requirements in
the application. EPA must receive a copy of the State portion
in order to consider whether any additional requirements are
necessary to protect public health and the environment, pursuant
to §3005(c). The State maintains the overall lead in the
process, with EPA responsible for the provisions which stem
from Federal requirements for which the State is not authorized.
Where an authorized State has requested a permit
application before HSWA, that request will retain its validity
for the State’s program. However, where information is needed
to address the new requirements, EPA must request the additional
information if the State does not have the authority to demand
such information.
The applicant should be given time to comply with the
request for the new HSWA information if necessary; the amount
of time granted is subject to the Region’s discretion as
negotiated with the State. Where the new request creates a
burden for the permit applicant, additional time should clearly
be granted. The additional time should be granted only to
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accommodate the new burden; the State’s original time frame for
receipt of information from the applicant will apply to the
original application request.
2. Completeness Determination — Ideally, the completeness
determination should be a joint decision. Since there is only
one application, one determination will facilitate the process
for the applicant. If one Agency finds the application to be
incomplete prior to the other Agency’s determination, it can
issue a Notice of Deficiency (NOD) or commence an enforcement
action, where appropriate. However, the draft permit cannot
be issued until both the State and Federal draft permits have
been prepared. If one portion of the application is not
complete, another completeness determination will be made for
that portion only after the date on which the newly requested
information becomes due. If both portions of the application
are incomplete, a joint completeness determination will be made
once the newly requested information is received. In either
situation, it is only at that later date that an owner/operator
would be subject to enforcement action for an incomplete
application based on an NOD for the newly—requested information.
3. Application Deficiencies — Where possible, a joint
NOD should be issued with the appropriate enforcing authority
issuing the appropriate portion of the NOD. Where deficiencies
occur in both the State and Federal portions of the application,
the applicant should receive notice simultaneously from both
parties to facilitate the applicant’s response. Either two
NOD’s should be issued at the same time, or one document can
be issued signed by both parties, so long as it explicitly
states which requirements stem from which enforcing authority.
If, however, the deficiency relates only to a State provision,
the State will issue the NOD with a statement explaining that
only the State portion is deficient. Where necessary, separate
NOD’s for State and Federal deficiencies can be issued at
different times.
4. Draft Permit — The draft permit (or intent to deny)
will be issued simultaneously by EPA and the State (unless
the State draft permit was issued prior to April 8, 1985).
The joint draft permit would be physically similar to any
other draft permit except that it would contain two parts,
specifically identifying which provisions stem from State
authorities and which from Federal authorities. As discussed
earlier, the two parts may be issued as either one or two draft
permits as determined by the Region and the State.
The Fact Sheet or Statement of Basis should be jointly
written (as should the public notice) and should include
separate discussions of Federal and State issues. An
authorized State can enforce its approved analogue to the
generally applicable requirements of 40 CFR 270.30. As a
result, the State’s parallel provisions to 40 CFR 270.30 will
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be applicable to both the State and Federal portions of the
permit. The Fact Sheet or Statement of Basis should contain
an explanation of these requirements.
Where possible, permit writers should avoid putting
conflicting requirements into joint permits. This could occur,
for example, if a State authorized for the pre—HSWA single liner
requirement includes such requirements in its portion of the
permit, while EPA includes the HSWA double liner requirement in
its portion. Where possible, the State should agree not to
include those requirements which are inconsistent or less
stringent. There may be situations, however, where a State
only has legal authority for single liners and has no discretion
to do otherwise. Therefore, where less stringent requirements
cannot be eliminated, the Fact Sheet (or Statement of Basis)
should state that the more stringent requirements always take
precedence and should include a summary of the operative permit
conditions. In this way, the facility and the public will know
what requirements must be fulfilled and confusion from permits
which contain conflicting requirements will be minimized.
5. Permit Procedures and Public Participation — Public
participation activities should be conducted jointly. The
EPA Region should follow the State’s hearing procedures and
requirements (adhering to the State’s processing deadlines)
even where those requirements are more stringent than EPA’s.
EPA would serve as the hearing officer for purposes of the
Federal provisions of the permit.
To the extent that the State desires and EPA resources
allow, the Regions should participate in other aspects of
the State’s public involvement process. However, EPA is not
bound to participate in procedures which are not part of the
State’s authorized program. State imposed requirements which
are beyond the scope of coverage of the Federally approved
program are not enforceable by EPA, nor is EPA hound by them. 2
Requirements for environmental impact statements (SIS’s) and
siting hoards are specific examples of State requirements
which are “broader in scope” than the Federal program and,
therefore, although they may he needed as a matter of
State law, EPA need not participate with respect to EPA’s
portion of the permit.
6. Final Decision — As with the draft permit, the EPA
and State final permits will be issued simultaneously (except
where the State draft permit was issued prior to April 8, 1985,
and the final permit was issued before the end of fiscal year
1985). The format of the final permit will be the same as the
draft permit. (See discussion on pages 7—8.)
2 PIG 84—1, from Lee M. Thomas, May 21, 1984.
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7. Appeals — The States will handle appeals relating
to State provisions and EPA will handle appeals of the
Federal provisions. Each party should notify the other when
any appeal action is initiated.
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