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. ". »' 'i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OP • .
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Recurring Issues in Preparing RCRA Permits
FROM: Bruce R. Meddle
Acting Director
State Programs 4 Resource Recovery Division (WH 563)
TO: Directors
Air & Hazardous Waste Management Divisions
Regions I - X
In reviewing - the preparation of several of the first RCRA
permits, the Office of Solid Waste has identified and resolved a
number of recurring issues. For~the purpose of ensuring consistent
permits among the Regions, we ask that your staffs heed the decisions
that have been reached in the analyses attached. Lisa "Friedman
and her staff in the Office of General Counsel concur in these
decisions.
We will provide similar memoranda from time to time as more
issues are identified and resolved in future permitting.
Please also note that a draft Model Permit for storage and
incineration was distributed to your Hazardous Waste Branch Chiefs
under a March 25, 1983 memorandum from Steve Levy, Chief of the
Permits Branch in OSW. This memorandum should be used hand-in-hand
with the draft Model Permit in preparing RCRA permits.
Attachment
cc: RCRA Permit Contacts: Regions I - X
RCRA Attorneys: ORCs Regions I - X
OSW Senior Staff
Susan Schmedes
Steve Levy
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Issue 2: Interpreting Regulatory Authority For RCRA Permit Conditions
Another issue that has arisen in the first permit reviews is
how much discretion the permit writer has in interpreting regulatory
authority to support including specific conditions in a RCRA permit.
The answer to this question is tied to the three general types
of provisions found in the regulations. Sane are specific provisions
which allow little or no interpretation by the permit writer because
they are very explicit requirements (e.g., the requirements for
administrative handling of manifests by facilities found in 40 CFR
§§ 264.71, 264.72 and 264.76). Sane are more general provisions
which must be made more specific in permit conditions by the permit
writer based on the information provided by the applicant (e.g,
an applicant's proposed method for storing or treating ignitable
or reactive waste that allows its placement in tanks in accordance
with 40 CFR §264.198(a)).
*** [NOTE: Each module of the Model Permit attempts- to identify
where little or no interpretation of regulatory provisions is
warranted (i.e., model language based on the regulation is provided)
and where technical judgments must be made to specify
permit conditions which will meet the more general minimum
regulatory requirements.] _
Finally, there are some regulatory provisions in Part 264 which
are quite broadly stated (e.g., §264.31) and thus are potentially
subject to wide interpretation by permit writers. Seme general
guidelines on making interpretations of regulatory authority in.
these instances have been developed during the first RCRA permit
reviews and are provided' below. -,
Available Resources
First of all, Lf permit writers follow their own technical
judgment and cannon sense they will usually be able to make their
own interpretations of regulatory authority which will reasonably
clarify the need for specific permit conditions. The permit.
writer should consult Regional Counsel after this initial
analysis if doubt still remains as to whether certain permit
conditions are required by the regulations. The permit writer
can also consult with the Permit Assistance Team Program in
the Off ice-of Solid Waste for guidance or suggestions. Finally,
supporting information to the regulations can be researched by-
the permit writer.
Supporting Information
Supporting information can be found in the preambles to the
regulations, the technical background documents, and the permit
writers' guidance manuals. These materials set forth the considerations
weighed by the Agency in making decisions on the- content of the
regulations; as suchr they should be used by the' permit writer
as a guide to making interpretations of regulatory intent, especially
where there is doubt as to whether general regulatory provisions
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provide. the authoity necessary to support imposition of specific
requirements'- in permit conditions. For example, in the preparation
of one particular permit, these supporting materials served to
justify a permit condition which explicitly required the permittee
to use an X-ray measuring device with a specified procedure for
examining the tanks' welded seams to assure that proper thickness
was achieved during construction..
Specification of Authority in the Fact Sheet/Statement of Basis
Permit conditions based on the permit writer's interpretation
of general regulatory provisions should be placed, in the Administrative
Record" and summarized in the fact sheet or statement of basis,
as necessary. The level of detail to which the fact sheet or
statement of basis should address such conditions will vary case-by-case
depending on whether they are considered to be significant issues
in preparing the permit. (See- Issue *5 in this memo for additional
discussion concerning the level of detail in fact sheets.)
Other Federal Authorities
• A related issue that has arisen in some of the first permit
reviews is whether RCFA permit writers should insert permit conditions
which- would require permittees to meet requirements established
under other Federal laws and, regulations. Permit writers should-
realize that the ROSA regulations have been, specifically written
to avoid duplication of coverage with other Federal authorities.
The supporting information behind the Part 264 regulations points
out that the Agency has excluded from the' regulations many proposed N.
Part 264 standards that would have required permittees to meet
other Federal laws and regulations (see 45 Fed.Reg. 33171; May
19, 1980.) Therefore, as a general matter, permit writers should
not include in RCRA permits conditions based on other Federal
authorities merely for repetition or emphasis. Such conditions
should only be used if the permit writer decides they are needed
to meet RCRA regulatory requirements.
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