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
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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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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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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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