PART 124 SUBPART A - GENERAL REQUIREMENTS DOC: 9521.03(83) Key Words: Regulations: Subject: Addressee: Originator: Source Doc: Date: Summary: Joint Permitting, Permit Modification, RCRA Permits, HSWA 40 CFR 270, Part 124 Recurring Permit Issues: Appending Information to RCRA Permits Directors, Waste Management Divisions, Regions I-X Bruce R. Weddle, Acting Director, Permits and State Programs Division s See Miscellaneous [9560.05(83) Issue 4-21-83 A draft permit cannot be issued until all Information required of the applicant has been submitted. This requirement also applies to new facilities so that permit conditions are decided before a substantial and irretrievable financial commitment is* made to the location, design, and construction which the applicant has chosen. Once an application is considered complete, the Regional Administrator may request additional information from an applicant (as needed) to clarify, modify, or supplement previously submitted material. A permit Is not considered complete unless it addresses the HSWA provisions. Until a State receives authorization for the new amendments, its permits are State, not RCRA, permits. When the Region Issues the Federal portion of the permit, it combines with the State permit to become a completed RCRA permit. Requests for additional information will not render an application incomplete. Following issuance of a permit, a modification of the permit would be warranted where the owner or operator provides information which was not.available at the time of permit issuance and which justifies"imposition of -conditions different than those in the permit. An exception to this guidance is that various regulations applicable to new facilities provide that certain informa- tional items may be submitted at times after permit issuance. ------- STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 r,r"-\ r.rn OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE MEMORANDUM SUBJECT: Recurring Issues in Preparing RCRA Permits FROM: Bruce R. Weddle Acting Director State Programs & 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 Wasħe 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 ------- - 5 - Issue 3: Appending Information to RCRA Permits Under the "shield" provision of §270.4(a), "compliance with a permit during its term constitutes compliance, for purposes of enforcement, with Subtitle C of RCRA." Thus, each regulatory requirement must be addressed expressly in the permit (written out or by reference) in order to hold the permittee to the requirement (See $270.32(e)). Questions have arisen as to how this mandate can be accomplished while at the same time meeting the permit writer's practical desire to write brief but enforceable permits. Some general guidelines on what can be appended to RCRA permits have been developed during the first RCRA permit reviews and are provided below. 0 Regulations - Because regulatory requirements can be incorporated into RCRA permits by reference, a question arose as to whether a copy of the regulations should be appended to the permit to assure that the permittee, the public and EPA inspectors could determine which requirements applied through the permit. It was noted that the regulations have been amended several times which in some cases has compounded the difficulty of determining what requirements apply. We recomend, at a minimum, appending the regulations (as amended through the date of permit issuancer to copies of the permit that are given to the applicant and placed in the Administrative Record. This will assure that there is an accurate reference available for determining what requirements apply in the permit. Other copies of the permit need not have the regulations appended but should at least provide the Federal Register citations to the exact version of the regulations being applied. *** [NOTE: RCRA permit writers should recognize that a permit which adopts regulatory requirements by reference does not thereby incorporate any future amendments made to the RCRA regulations after the date of permit issuance. The requirements that are incorporated by reference into the permit are those which are effective as of the date of permit issuance.] 0 Permit Application - It has been suggested that the entire application be appended to the permit. For three primary reasons we reconmend against this. First, applications are not typically presented as a series of enforceable permit conditions and, there- fore, would be largely useless as part of the permit. Second, EPA simply does not have the regulatory authority to include in the permit much of the information that is normally included in an application. Even if at the time of permit issuance the applicant does not object to including the entire application in the permit; numerous enforcement problems could arise later with such a permit if EPA tried to enforce the incorporated parts of the application ------- and the applicant objected on the grounds that some of those require- ments were beyond the scope of the requirements in the regulations. Third, if a permit writer did include the application as a permit condition it would in some cases make the permit much more detailed than it would otherwise be. Thus, EPA might be faced with the need to make a number of future modifications to the permit based upon changes to portions of the application that we normally would not have otherwise included as conditions to the permit. Rather than appending the entire application to the permit, we recommend that permit writers attempt to hold applicants only to the specific commitments in the permit application that address minimum regulatory requirements. Using this approach, a RCRA permit writer, the applicant, the public, and EPA inspectors can more easily ensure that at least all minimum requirements are being met. (Refer to Issue #1 of this memo concerning holding applicants to some conditions not required by the regulations.) This can be accomplished, for example, by selectively citing in permit conditions only those specific portions of the application that address the minimum regulatory requirements and appending them to the permit (e.g., facility-design specifications). The portions of the application that .in^is way become permit conditions must be appended to the permit because the part 270 regulations do not give EPA the authority to incorporate them by reference into the permit. 0 Other Attachments - Questions have been raised about whether certain portions of the application (e.g., inspection schedules, training outlines, contingency plan, and waste analysis plan) should be appended to the permit* The regulations in most cases do not explicitly require these materials to be appended to the permit (e.g., 40 CFR 264.13 does not require the waste analysis plan- to be appended as a permit condition). The regulations do require submission of these materials with part B of the RCRA Permit Application. Specifically, 40 CFR §270.32(b) requires permit writers to "include permit conditions necessary to achieve compliance with... .each of'the applicable requirements specified in 40 Part 264." Experience with the first permits has shown that the most straightforward way to meet many of the requirements of Part 264 (e.g., waste analysis) is to cite and append the applicable materials in the application into the permit as enforceable conditions. Before appending these materials to the permit, however, they must each be- carefully reviewed by the permit writer for a determination of compliance with the minimum regulatory requirements. Again, we recommend that owners and operators be held only to their specific commitments in their permit applications which address the minimum standards. For example, pages "60-80" of a training outline ought not be included as a permit condition unless the permit writer finds that all twenty pages are necessary for demonstating compliance with the pertinent regulations. Thus any connitments in these portions ------- - 7 - of an application which go beyond the minimum regulatory requirements can be culled before they become part of the permit. (Refer to Issue #i in this memo concerning holding applicants to permit conditions not required by the regulations.) Following this approach, the preferred method is for the permit writer to work with the applicant on the submittal of the application to ensure that either the unnecessary "additional" commitments are not included in these materials in the first event or are removed in subsequent submissions. A final point should be noted concerning the revisions of such incorporated materials after the permit is issued. Once these materials are incorporated as conditions of the permit, the permittee must receive a permit modification to change them. EPA would review such proposed changes under 40 CFR §§270.41 and 270.42 to determine what type of modification is needed. ------- |