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.

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                  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

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                             - 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

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 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

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                             - 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.

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