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DIRECTIVE NUMBER: "9540.'00-^5
i
TITLE' (PIG-82-5) Status of Permits issued
Before a State ,Rece ives RCRA Phase II
Authorization
APPROVAL DATE: 8/9/82
EFFECTIVE DATE: 8/9/82
ORIGINATING OFFICE: osw
D DRAFT
[ ] A- Pending OMB approval
STATUS: [ ] B- Pending AA-OSWER approval
C- For review i/or comment
D- In de-.elopment or circulating
REFERENCE (other documents): headquarters
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rE DIRECTIVE
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(PIG—82-5) Status of State Permits Issued Before a State Receives
RCRA Priase II Autnorization
Su rai’. ? Direc .e
emo ans.iers: (1) Status of State issued permits before the State
rece es aut or zation, (2) What is relationship of State issued
ermits to RCRA permits and 3) Status of Federal issued permits
in an authorized State.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
____ WASHINGTON, DC 20460
i t 4 (
AUG 9 1S 2 PIG-82-5
Q c c OF
SOL O WASTE E’ IEPGE\C’? ESPO. jSE
‘ IE MORAUDU 1
SJB E T: Status of State ?ermits Issued Before a State
Receives CRA Phase II Authorization
7
Rica ‘1. Lavelle - - / /
Assistant Administrator for
Solid Waste and Emergency Resp ’nse (WH-562-A)
TO. Program in 1ementation uidance Addressees
iSSUE
Once a state is authorized for a component of Phase II,
what is the status of hazardous waste facility per;iits which
the State issued prior to being authorized for the co mponent 7
Can tney be coiis dered RCRA permits 7 What is the status of
an EPA-issued feicral permit in a state authorized for a
component of ?hase Ii
3 1 SC US 51 0 N
Prior to being authorized for a component of Phase II a
state nay require facilities that treat, store, or dispose of
haza rdou s waste to obtain a state perini t. There are no pro-
visions within RCRA or the federal hazardous waste regulations
or designating these pre-authorization state perLilts as RCRA
permits. RCRA permits can be issued only by EPA or an autno-
rized state. uthorization requirements ensure that an autho-
rized state will be using procedures substantially equivalent
t the federal permitting procedures (state procedures must,
of course, meet the requirements of Section 7004(b) of RCRA)
and will e requi ring cornpl iance with standards providing
substantially the same degree of protection as the federal
technical stdndards (See 40 CFR 123.129).
3efore a state is granted Phase U 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 Se:tion 3005(a) applies. That is, owners and operators pf
facilities tndt treat, store, or d spose of hazardous ‘ asze can
leyally do so only when they have a RC A permit. Also, RCRA
Section 3005(e) applies, allowing qualified facilities to continue
to operate under federal ‘interim status”. when the state receives
interim authorization different results occur in each of the fi’e
situations as described below.
1) A facility has neither a state permit nor a federal
RC A permit (but does have federal interim status)
This situation is very straiyhtforward. The state mist
eventually issue th facil ity a state RC A permit. )f
course, before the state could have obtained Phase
interim authorization, it must have had some mechanism
in place to apply standards substantially equivalent
to federal lr’iteriin status standards to all of the hazard-
ous waste management facilities ‘ ithin its borders.
2) facility has a state-issued permit but no federal
PSCRA permit (but does have Federal interim status)
T hi s si t u at i on i s a 1 so F ai ri y st ra i gh t forward, the state
mist e’entually issue a RCRA permit to the facility.
T’n facility can continue to operate lawfully until that
time, proviaed the facility wi 11 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 and is to be delineated in the emorandum
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) i 1 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 facility. Where the state issues a RCRA permit, EPA
should suggest to the federal perniittee 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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Li) A facility has both a federal RCR\
permit and a state perini
This situation is a combination of cases (2) and (3),
above. The state must eventual ly issue a state RCRA
permit to the facility or can assume responsi Dii lty to
ad;nin1S ar the federal permit if it has the authority
to do so. The schedule for reissuance of the state
permit is to be specifiei in the 1enorandurn 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 facil ity has identical federal P CRA and
state per nts that were issued jointly
n those s1c iacions where both permits are identical and
were issued jointly, EPA can propose its intent to con—
siu r s RORA permits the jointly-issued or identical
stdte permits when the Agency announces receipt of the
state’s conipi ete Phase Ii appi ication. tn this last
situation, the RCRA permit can be terminated with the
agreement of the permi ttee (or for one of the causes
for.terminatiOn in 40 CFR 122.16). f the RCRA permit
is not terui nat’ i , then the facility wi 11 operate under
two identical permits.
The assumption underlying all of the above scenarios is that
any EP -issued permit continues in full force and effect after
Phase N authorization. EPA-issued permits continue in
force until terminated either under 40 CFR 122.16 [ see 40
CFR 123.6 (b)(1), 123.126 (c)(l) and 124.5(d)] or by the
agreement of EPA and the permittee. Permittees with EPA-issued
perini ts thus would be subject to the requi rements 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 adciiinisteriny and enforcing federal
permits in authorized states. Thus, it is extrenely 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 permits. 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 then
to summarily transform federal RCR.A 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 leyally 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 II authorization can constitute a RCRA permit is where the
state permit was issued jointly with and is identical to a federal
CRA permit. In such a case, when EPA receives the state’s appi i-
cation for Phase [ I, EPA should announce (as part of the Federal
Register notice of receipt of a complete Phase II application) its
intent 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 Oescription. In those cases
where there are previously-issued federal RCRA permits, the state
nay possess the authority to assume the administration of those
permits, thereby negatiny the need for issuance of a state RCRA
permit. EPA-issued SCRA permits cannot actually be terminated
without the agreement of the permittee unless one of the causes
for termination in 40 CFR 122.16 is present.
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