United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
&EPA
DIRECTIVE NUMBER: 9521.00-01
TITLE: RCRA PERMIT APPEALS GUIDANCE MANUAL
APPROVAL DATE: October 3, 1990
EFFECTIVE DATE: October 3, 1990
ORIGINATING OFFICE: office of s°lid
FINAL
DRAFT
STATUS:
D A - Pending OMB Approval
D B - Pending AA-OSWER Approval
REFERENCE (Other Documents):
OSWER OSWER OSWER OSWER
DIRECTIVE DIRECTIVE DIRECTIVE
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Untied States Environmental Protection Agency
Washington. DC 20460
OSWER Directive Initiation Reauest
. Directive Numoe?
9521.00-01
2. Originator Information
Name of Contact Person
Jim Michael
Mail Code
bS-343
Office
OSW/PSPD/AB/DRS
Telephone Code
(202) 382-2231
3. Title
RCRA PERMIT APPEALS GUIDANCE MANUAL
4. Summary of Directive (include brief statement of purpose)
The purpose of this guidance manual is to facilitate the RCRA permit appeals
process by clarifying how to implement the regulations governing the appeal
process and by providing helpful hints to the Regions.
5. Keywords
permit appeals/permit/RCRA/Guidance
6a. Does This Directive Supersede Previous Direciive(s)?
b. Does It Supplement Previous Directive(s)?
No
X No
Yes What directive (number, title)
Yes What directive (number, title)
Draft Level
A - Signed by AA/DAA
B - Signed by Office Director
C - For Review & Comment
D - In Development
8. Document to be distributed to States by Headquarters?
X
Yes
No
i
This Request Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
Date
/
lOxName 4rtjd Title of Approving Official
Sylvia K. Lowrance, Director, Office of Solid Waste
iDate
10/3/90
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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ISSEZ,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OCT 3 1990
SOLID '•%' A S 7 E ~ .--• O = •-••£=>•" E ••>. C v Q E S ? O N S E
OSWER Policy Directive 19521.00-01
MEMORANDUM
SUBJECT: RCRA Permit Appeals Guidance Manual
FROM: Sylvia K. Lowrance, Director ^ A iA/ \
Office of Solid Waste (OS-30Q/£/wV (\ Si* '
"^ I
TO: Hazardous Waste Management Division Directors
Regions I-X
Attached please find a copy of OSWER Policy Directive
#9521.00-01, RCRA Permit Appeals Guidance Manual. This manual
has been'developed to assist the Regions in the implementation of
the permit appeals procedures under RCRA. The manual was
developed by the Office of Solid Waste in conjunction with the
Office of General Counsel and several of the Offices of Regional
Counsel. Valuable comments and suggestions were provided by many
of the Regions.
The manual has been designed as a quick and easy reference
for Regional personnel involved in the permit appeals process.
The manual is organized around a flow chart that serves as a road
map through the permit appeals process. The flow chart is
comprised of seven phases, where each phase represents an
activity or group of complementary activities in the appeals
process. The manual describes the significant steps and decision
points within each phase and identifies the regulatory
requirements upon which these steps or decision points are based.
The manual also provides, where applicable, procedural
suggestions to help the Regions facilitate and expedite the
process.
If you have any questions or comments regarding this manual
or the RCRA permit appeals process in general, please call Jim
Michael, Chief, Disposal and Remediation Section at FTS 382-2231.
Attachment
cc: RCRA Branch Chiefs, Regions I-X
ORC RCRA Permit Contacts, Regions I-X
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Environmental Protection
Ag«ncy
Office of SoW Wasts
Washington O.C. 30460
OSWER Policy
Oir»cav« »952VOO-01
RCRA Permit Appeals
Guidance Manual
September 1990
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OSWER Policy Directive #9521.00-01
DISCLAIMER
This document is an internal guidance document that recommends model operating procedures to
EPA Regional offices. It does not have the force and effect of law, is not a regulation, and should not be
applied as regulation. EPA's recommendation of these model procedures should not be construed as a
determination that the procedures are required by statute, regulation, or other relevant law.
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OSWER Policy Directive #9521.00-01
ACKNOWLEDGMENTS
This guidance manual was prepared by the Office of Solid Waste, Assistance Branch, Disposal and
Remediation Section, under the direction of James Michael and Andrew Teplitzky. Helpful comments and
suggestions were provided by other Headquarters and Regional EPA staff including Brian Grant, Office of
General Counsel; Fred Chanania, Special Assistant to the Director of OSW; Rett Nelson, Office of
Regional Counsel, Region V; and Anne Rowland, Office of Regional Counsel, Region VII. Andrea Baier
and Susan Coppedge of ICF, Incorporated, also played a role in the preparation of this document.
-11 -
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OSWER Policy Directive #9521.00-01
TABLE OF CONTENTS
INTRODUCTION 1
Purpose of This Document 1
Organization of This Document " 1
PHASE 1 INITIATION OF THE PERMIT APPEALS PROCESS AND THE FILING PERIOD 6
PHASE 2 RECEIPT OF PETITION BY THE EPA ADMINISTRATOR 9
PHASE 3 REGIONAL RESPONSE TO PETITION 11
PHASE 4 GRANT/DENIAL OF REVIEW OR REMAND BY THE EPA ADMINISTRATOR 16
PHASE 5 OPPORTUNITY FOR PUBLIC PARTICIPATION 18
PHASE 6 APPEAL DECISION ISSUED BY THE EPA ADMINISTRATOR 20
PHASE 7 REGIONAL ADMINISTRATOR'S' NOTIFICATION OF EPA ADMINISTRATOR'S
DECISION 21
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OSWER Policy Directive #9521.00-01
INTRODUCTION
Title 40 of the Code of Federal Regulations (40 CFR), Pan 124, contains the bulk of the regulations
that govern Resource Conservation and Recovery Act (RCRA) permitting procedures. In particular, 40
CFR 124.19 sets forth the primary regulatory requirements of the RCRA permit appeals process. In
addition, §124.15 (Issuance and effective date of permit), §124.16 (Stays of contested permit conditions),
and §124.10 (Public notice of permit actions and public comment period) contain regulatory elements
relevant to the appeals process.
Many States that are authorized to implement the base RCRA program are not yet authorized to
implement the requirements of the Hazardous and Solid Waste Amendments of 1984 (HSWA). In these
States, the Federal Government, specifically EPA, is responsible for issuing the HSWA portions of RCRA
permits, while the State issues the remainder of the RCRA permits. These permit portions are thus issued
jointly by the State and the applicable U.S. EPA Region. In States not authorized at all, EPA issues the
entire RCRA permit. The Federal regulations that are the subject of this guidance manual apply only to
EPA-issued permits or portions of permits.
Purpose of This Document
The primary purpose of this guidance manual is to facilitate the RCRA permit appeals process by
clarifying how to implement the regulations and by providing helpful hints to the Regions. The Agency
anticipates that use of this document will promote consistent and efficient processing of RCRA permit
appeals.
This document also identifies actions that should be taken during permit preparation to avoid and/or
defend against possible appeals. Permit writers should not consider an increase in the number or rate of
appeals to be an indication of inadequate or deficient permit writing. However, writing sound,
enforceable RCRA permits and providing complete, thorough justification for permit denials may prevent
needless permit appeals or expedite the resolution of any appeals that are taken. As permit writers
finalize permit conditions, they should keep in mind the possibility of future appeals. Permit language
must be clear, and conditions must be supported by the administrative record. The permit should be
crafted in such a way that the Agency will not be open to a challenge on the grounds that a condition is
based on a clearly erroneous finding of fact or conclusion of law, or is an arbitrary exercise of discretion.
In some instances, permittees have not agreed with the language chosen by the Agency to express a permit
obligation, and have appealed permit conditions. This situation may be avoided through clear
communication, documented in the Administrative Record, between the Agency and the facility
owner/operator prior to public notice of the draft permit. Potential misunderstandings can be cleared up
before the final permit decision is issued.
Organization of This Document
Figure 1 is a flowchart that illustrates the entire permit appeals process. The flowchart begins with the
issuance of a final RCRA permit decision by the Regional Administrator (RA), prior to receipt of a
petition for administrative review, and ends with the RA notification of the EPA Administrator's decision
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OSWER Policy Directive #9521.00-01
regarding the petition. The flowchart identifies each step of the appeals process with a separate box In
addition, the flowchart indicates decision points in the process and illustrates how the outcome of each
decision point can alter the "flow" of the appeals process.
The remainder of this guidance manual expands on the information presented in the flowchart and is
organized in accordance with the flowchart Specifically, the flowchart is composed of seven Phases, where
each Phase represents an activity or group of complementary activities in the appeals process undertaken
by key panics (i.e., the EPA Administrator, the Chief Judicial Officer (CIO), the RA, Regional staff, and
the petitioner). The Phases are as follows:
Phase 1: Initiation of the Permit Appeals Process and the Filing Period
Phase 2: Receipt of Petition by the EPA Administrator
Phase 3: Regional Response to Petition
Phase 4: Grant/Denial of Review or Remand by the EPA Administrator
Phase 5: Opportunity for Public Participation
Phase 6: Appeal Decision Issued by the EPA Administrator
Phase 7: Regional Administrator's Notification of EPA Administrator's Decision
This manual discusses each Phase as a separate section, describes the significant steps and decision
points within each Phase, and identifies the regulatory requirements on which these steps or decision
points are based. This manual also provides, where applicable, procedural suggestions to help the Regions
facilitate the process.
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Figure 1
RCRA Permit Appeals Process
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Figure 1
RCRA Permit Appeals Process (continued)
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Figure 1
RCRA Permit Appeals Process (continued)
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OSWER Policy Directive #9521.00-01
PHASE 1
INITIATION OF THE PERMIT APPEALS PROCESS AND THE FILING PERIOD
RCRA final
da<
by RA §124.15
Note* of RA's action •
Mrvadon
applicant, each
contfiiantar. and otnar
requattore §124.15(«)
30-day
Wing
period
Description of Activities
The permit appeals process begins with the issuance of a final RCRA permit decision by the RA after
the close of the public comment period on a draft permit. A final RCRA permit decision means a final
decision by the RA (or delegatee) to issue, deny, modify, revoke and reissue, or terminate a permit.
Section 124.15(a) requires the RA to serve notice of the final permit decision on the applicant, on each
person who submitted written comments on the draft permit, and on each person who requested receipt of
the notice of the final decision. This notice must reference the procedures for appealing the decision. If
service of the notice is by hand, service is considered to be complete upon delivery; if service is by mail,
service is considered to be complete upon mailing. If no one submitted comments, or participated in the
public hearing on the draft permit, and the draft permit was subsequently approved final as proposed, then
the permit would become effective immediately upon issuance. In this situation, no permit appeal filing
period would exist
Section 124.19(a) specifies that within a prescribed time period (described below), any person who filed
comments on the draft permit or participated in the public hearing on the draft permit may petition the
EPA Administrator to review any condition of the permit decision that was raised by anyone during the
public comment period (including the public hearing). (See §§124.19(a) and 124.13.) A person who did
not file comments or participate in the public hearing on the draft permit may not petition for
administrative review, except concerning those changes made from the draft to the final permit (e.g., new
permit conditions that were not included in the draft permit). Petitions from these persons must likewise
be submitted within a prescribed time period (described below).
In accordance with 5§124.19(a) and 124.20(a), a 30-day (calendar days) period for filing petitions begins
on the day after the Region serves notice of its permit decision, unless the notice specifies a later starting
date for the 30-day period. For example, if a Region serves notice on January 1 and does not specify a
later starting date for the filing period, then the 30-day filing period would begin on January 2 and end on
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OSWER Policy Directive #9521.00-01
January 31. If the Region's permit decision is served by mail (as is most frequently the case), then the
date of service is the date on which the notice is mailed and, under §124.20(d), 3 days are added to the
filing period, for a total filing period of 33 days. In this case, assuming the same conditions as in the
above scenario, the 33-day filing period would begin on January 2 and would end on February 3. In
addition, §124.20(c) specifies that if the filing period ends on a weekend or legal holiday, the period is
automatically extended to the next working day.
Note that the date of receipt of the permit decision by the permittee or other potential petitioners is
irrelevant to the filing period, unless the Region specifies the date of receipt as the commencement of the
filing period (which is not a recommended practice). Again, §124.19(a) authorizes the RA to specify such
a later starting date for the 30-day filing period. If a later starting date is to be allowed, then the RA must
specify the later date in the notice of the final permit decision; Section 124.19(a) authority may not be
exercised after the Region has served notice of the final permit decision (i.e., the Region may not
subsequently extend the appeal period). If the Region exercises its authority to specify a later date for
triggering the filing period, then 3 additional days are not added to the length of the filing period under
§124.20(d), because service by mail no longer triggers the filing period.
In addition to the permittee's or other interested panics' right to petition, the EPA Administrator may
unilaterally elect to review any condition of the permit on his or her own initiative, under the authority of
§124.19(b). If the EPA Administrator decides to initiate a review, he or she must act within 30 days of
service of notice of the RA's action.
Procedural Suggestions
• Petitioners are required, under §124.19(a), to submit their petitions for review to the EPA
Administrator. In the notice of final permit decision, the Region should remind potential petitioners
that, to be procedurally sufficient, petitions must be received by EPA Headquarters on a timely basis.
The notice of final permit decision should indicate that petitions should be sent to the following
address with a copy to the CJO:
U.S. Environmental Protection Agency Hearing Clerk (A-110)
Office of the Administrative Law Judges, Room M3708
401 M Street, S.W.
Washington, D.C 20460
The Hearing Clerk will ensure that the petitions are appropriately logged. The Region also should
indicate in the notice that it is prudent for a petitioner to send a copy of the petition for review to the
RA concurrent with submittal of the petition to the EPA Administrator. A concurrent submittal to the
RA will alert the Region to the petition early, and may result in speeding up the appeals process.
• The Region should serve notice of the final permit decision on each person entitled to such notice on
the same day so that each potential petitioner has the same filing period, or, if some notices are served
by hand and others by mail, so that the filing periods differ by no more than 3 days.
• Section 124.19(a) does not allow the RA to extend the length of the filing period. Rather, this section
only allows the RA to specify a different date on which the 30-day filing period begins. This authority
must be exercised at the time of permit issuance. Use of this authority may be appropriate when, for
example, the Region is issuing only the HSWA portion of the permit. In such a case, the notice of the
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OSWER Policy Directive #9521.00-01
permit decision could specify that the filing period for the HSWA portion of the permit begins on the
first day of the filing period for any administrative appeals on the State-issued portion of the permit
This approach would keep the Federal and the State appeals proceedings roughly concurrent. Note,
however, that in this case, the Region must ensure that State filing procedures also are clearly specified.
Otherwise, it may be difficult for the Region to determine when the "clock starts running" on the 30-day
•filing period.
If the RA decides to specify a later date for the commencement of the filing period, he or she should
adjust the effective date of the permit accordingly under §124.15(b)(l). This adjustment would
guarantee that the permittee is not temporarily forced to comply with a permit with no opportunity for
review. For example, if the Region specifies that the filing period begins upon receipt of the notice of
the final permit decision, then the permit should specify the effective date as 30 days after receipt.
EPA Headquarters strongly encourages Regions not to specify that the filing period begins upon receipt
of the notice of the final permit decision. Rather, the preference is to specify that the filing period
begins on a specific date that is computed to correlate (at a minimum) to the completion of service of the
notice. This latter approach promotes precision when defining the filing period. "Service of the notice"
can be much more readily identified by the Region than can "receipt of the notice." In addition, it is
much clearer to specify an actual date. If the filing period is adjusted to run parallel to the period for a
State administrative appeal, the Federal permit could be made effective as of the date the State permit
becomes effective.
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OSWER Policy Directive #9521.00-01
PHASE 2
RECEIPT OF PETITION BY THE EPA ADMINISTRATOR
Petition
review filed
EPA AdminwtrKort
office (oc to Region)
§l24.19(a); or Admmntratoi
unilateral di
RA Identjflee
contested
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OSWER Policy Directive #9521.00-01
• Under §124.16(a)(2), if the permit is for an existing unit or facility with interim status, all contested
permit conditions and all uncontested conditions that are not severable from the contested
conditions will be stayed, pending completion of the appeals process, while applicable Part 265
interim status standards remain in effect. All other provisions of an existing facility's permit will
become effective, as indicated in the notice of the final permit decision, and will be fully
enforceable. The RA must identify the contested and nonseverable, uncontested conditions that are
stayed. (See §124.16(a)(2).) This can be done by letter served to all interested persons.
• Under §124.16(c), if the permit is for a facility with an existing permit, then all contested and
nonseverable conditions of the new permit will be stayed, pending completion of the appeals
process. Prior to the completion of the appeals process, however, the conditions of the existing
permit that correspond to the stayed conditions of the permit under petition remain effective and
enforceable, unless compliance with the existing conditions would be technologically incompatible
with compliance with other conditions of the new permit that are not stayed. (See also §270.51.)
Note that when a permit is undergoing modification, only those conditions to be modified are
reopened. (See §124.5(c)(2).)
Upon receiving a petition, the EPA Administrator sends the petition to the CIO, who is charged with
the task of researching the circumstances surrounding the petition and advising the EPA Administrator
whether to grant the review. To cany out this task, the CJO sends a copy of the petition to the
appropriate Region, asking the Region to develop a response. Specifically, the CJO submits one copy of
the petition to the Office of Regional Counsel and another copy to the Regional Director of the Waste
Management Division (WMD).
Although the EPA Administrator is not under a precise deadline for issuing his or her decision
concerning whether to grant a petition for review, he or she is required, under §124.19(c), to issue such a
decision within a reasonable time following the filing of the petition for review. Therefore, the CJO's
office typically will specify a deadline for the Regional response to the petition, to ensure the timeliness of
Agency action. The deadline set by the CJO depends on the complexity and number of issues involved in
the appeal. Normally, the deadline is about 45 days.
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OSWER Policy Directive #9521.00-01
PHASE 3
REGIONAL RESPONSE TO PETITION
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OSWER Policy Directive #9521.00-01
Description of Activities
The Administrative Record for the final permit provides the basis for the EPA Administrator's
decisions during the permit appeal and for any Agency defense in subsequent judicial review. The
Regional response to the petition for review normally comprises the most resource-intensive portion of the
appeals process and is likely the single most critical step in the appeals process for the Region. Because
the Region is intimately involved in the issuance of permit decisions, the Regional response is the major
Agency document in which the factual and procedural issues are set out in detail, based on the
Administrative Record.
In deciding whether to grant or deny a petition for review, EPA Headquarters (specifically, the EPA
Administrator) must rely heavily on the Region's Administrative Record, as well as the Regional
explanation of that record (i.e., the facts, history, and rationale for the permit decision). The Region
should focus much attention and thought to crafting its response. Thorough discussion of the
circumstances surrounding the appeal, conscientious attention to details, and clear, logical writing are the
necessary elements of a sound response. Careful citation of the Administrative Record is an absolute
must. Such a response will provide the greatest amount of assistance to the EPA Administrator.
Furthermore, these responses will support the Agency if, after the administrative appeals process has been
exhausted, the petitioner decides to pursue a judicial appeal in a Federal court In such situations,
although EPA Headquarters and the Department of Justice have the lead responsibility in defensive
litigation, EPA Headquarters may again request the Regions to write sections of the necessary legal briefs.
Clearly, time spent at the beginning of the process in developing clear, sound responses during the internal
administrative review will be time well spent. Upon request, the Office of General Counsel (OGC) may
provide assistance to the Regions in preparing their responses to petitions.
Initial Action
The Office of Regional Counsel and the Director of WMD assign the task of responding to the petition
to the appropriate staff attorney and permit writer, respectively. This Regional team should take three
initial actions with regard to the petition.
First, the Regional team must decide whether the Region needs to respond to the substance of the
petition, whether a procedural objection to the petition should be raised, or both. To make this initial
determination, the Regional team must decide whether the petitioner filed the petition in a timely manner
(i.e., within the 30-day filing period), whether the petitioner commented during the public comment period
(including any public hearing) on the draft permit, and whether the issues raised in the petition were
reasonably ascertainable during the public comment period and, if so, whether they were raised by at least
one commenter (although not necessarily the petitioner). (See §§124.13 and 124.19(a).) If the petitioner
did not comment on the draft permit or the petition raises issues on which there were no comments, then
the Regional team must determine whether the issues raised in the petition address permit conditions that
changed from the draft to the final permit decision. If the petitioner failed to comply with any one of
these criteria, the petition is considered procedurally deficient, and the EPA Administrator may deny the
petition for review on the grounds of procedural deficiency. Such denial, and subsequent notice of denial
issued by the RA, would constitute completion of the appeals process. Nevertheless, should the Region
determine that the petition is procedurally deficient, then the staff attorney should assume responsibility
for preparing a response to the petition that describes the procedural deficiency.
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OSWER Policy Directive #9521.00-01
Second, in the case of existing facilities, the Regional team should further assess which conditions of
the permit are stayed. Regions need to ensure that when determining the effect of permit conditions, only
those conditions that may potentially be affected by the outcome of a permit appeal (and the nonseverable
conditions) are stayed. The Regions should review appealed permits and evaluate the list of conditions
that are nonseverable and will be stayed during the appeal and a list of those conditions that are severable
and will go into effect The Agency does not want to promote petitions for review as a means to delay the
effectiveness of permits. If the Agency is too liberal in determining that uncontested conditions are
nonseverable and therefore stayed, the result may be to encourage potential petitioners to file petitions for
review more frequently than necessary.
The third and final action of the initial meetings between the Regional staff attorney and the permit
writer should be an informal case plan, designed to guide the Region smoothly through the period allotted
for developing the Regional response and conducting negotiations. This plan may include the following
information:
• the timeframe for notifying the permittee of a stay of the effectiveness of permit conditions;
• a schedule for negotiations with the petitioner, including the potential for an extension or stay of
the appeals process, if the Region believes that such negotiations would be productive;
• an internal deadline for circulation of a draft response to the petition if negotiations are
unsuccessful; and
• the date a response will be sent to the CIO.
Negotiations
The second group of activities involved in developing a Regional response to a petition for review
concerns negotiations with the petitioner. Negotiating a settlement agreement with the petitioner may at
times be desirable • - for instance, when the Region believes that the petitioner is raising valid concerns,
the accommodation of which would not result in diminishing protection to human health and the
environment. Negotiations may resolve potential conflicts more quickly than going through the
administrative appeals process (and possibly the judicial appeals process), and may result in permit
conditions that are no less stringent than those imposed by the final permit decision. Such negotiations
should be documented in the Administrative Record.
Under other circumstances, however, the Region may believe that the permit conditions under petition
should not be amended, deleted, or further negotiated. If the Region is firmly convinced of the necessity
of the established permit conditions, then negotiations should not be pursued, and the Region should
submit its final response to the CJO. Likewise, if the Region suspects that negotiations may not be
productive, given the history of interactions with the petitioner and the circumstances surrounding the
petition, then the Region should not pursue negotiations but should submit its response to the CJO.
If the decision is made to pursue negotiations, the Region should evaluate the complexity and number
of conditions to be discussed so as to determine whether an extension to the CJO's deadline for
responding to the petition will be necessary. The staff attorney and the permit writer participating in the
negotiations should request such extensions from the CJO, as needed. The CJO will generally be
amenable to extending the response deadline to allow for negotiations, as long as such negotiations are
expected to be or are proving to be productive. The CJO will not grant extensions simply as a means of
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OSWER Policy Directive #9521.00-01
delaying the submittal of the Region's response without good cause. Because response deadlines are
established by the CJO and are not deadlines required under regulation, the CJO has discretion to extend
the deadline by any reasonable amount of time. An extension of the deadline may be requested by letter,
a formal Motion for Extension is not necessary.
As an alternative to requesting an extension to the deadline for the Regional response, some Regions
may prefer to respond to the petition within the specified deadline and then request a stay of appeal from
the CJO to allow for negotiations. The strategy here is that a well-written response to the petition may
force the petitioner to the negotiating table. As with extensions to the response deadline, the CJO
generally will be amenable to allowing a stay of appeal to accommodate negotiations, as long as such
negotiations are expected to be productive. Stays may be requested by letter to the CJO. Several Regions
have successfully negotiated specific provisions of an appeal while keeping the other provisions under the
CJO.
As a general rule, settlement discussions between the Region and the petitioner should continue only as
long as it appears that an agreement acceptable to the Agency can be reached. If settlement discussions
are not productive, the Region should terminate negotiations and respond to the petition if a response has
not already been completed. If the response deadline has been stayed by the CJO pending negotiations,
the Region also should advise the CJO's office about the termination of negotiations and establish, in
conjunction with the CJO's office, a new date for filing the Regional response to the petition.
If settlement discussions result in an agreement that is acceptable to the Agency, the petition for review
can be resolved through consent. Although the regulations do not address this point, any settlement
should be written in a formal consent agreement signed by both the petitioner and the RA. Note that the
agreement cannot bind the Agency to make a change if public comment is needed. The Office of Regional
Counsel needs to be involved in drafting these agreements. The agreement should state what
modifications in the permit language are necessary and specify the timeframe for withdrawal of the petition
for review. Furthermore, the agreement should include any other necessary provisions, such as allowing
for public notice and Regional consideration of any comments that are received. The Agency's
interpretation of the regulations has been that generally a formal permit modification under §270.42 is not
appropriate because there is no effective permit condition that is being modified through the negotiations
process. However, under some circumstances, such as when the permit modification process offers some
advantages, the modification process may be used to implement the negotiated change.
Once a settlement agreement has been reached, the Region should notify the CJO of the agreement.
Public Notice
Once a settlement is reached, the Region must decide whether public notice of the agreed-on, revised,
and/or new conditions is necessary. If the revised permit does not differ substantially from the "initial"
final permit decision under §124.15, the RA may proceed to publish a final permit decision incorporating
the revised conditions without opportunity for further public comment (Phase 1 describes the
requirements concerning the notice of the final permit decision.)
If the revised conditions of the settlement agreement do raise substantial new questions, then the
Region should initiate the appropriate steps for further public notice and comment on the revised
conditions. A decision that public notice and comment are appropriate would trigger the requirements of
40 CFR 124.10. (Phase 5 of this manual provides a complete discussion of the public participation
requirements of §124.10.) Regardless of the decision concerning public notice and comment, the RA must
ultimately issue a notice of final permit decision for the revised conditions.
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Consistent with §124.15, the 'second' final permit decision addressing the revised conditions becomes
effective 30 days after service of notice of the decision, unless (1) a later effective date is specified in the
decision or (2) a petition for review of the revised conditions is filed with the EPA Administrator. If a
petition is filed, the entire permit appeals process is triggered again, but only for the conditions that were
revised pursuant to the settlement agreement and any nonseverable conditions.
Procedural Suggestions
• When in need of an extension of the deadline for submitting its response to the petition because of
pending settlement negotiations, the Region should discuss such procedural matters with the CJO so as
to assure him or her that negotiations are desirable under the circumstances. Such communication may
be accomplished either by telephone or by mail and generally should be made in conjunction with, or at
least with the consent of, the petitioner. The preferred method is to discuss procedural matters with
the CJO over the telephone and follow up with a written request for, or confirmation of, the extension.
Such communication should be documented in the Administrative Record.
• Requests for extensions should be well thought out by the Region and should specify the approximate
number of additional days needed to pursue negotiations. Periodic status reports may prove useful.
• Regions should bear in mind that the CJO and his or her assistants are lawyers; for the most part, they
are not engineers and do not typically have technical backgrounds. Moreover, the CIO and his or her
assistants must recommend decisions on ail types of permits (e.g., Underground Injection Control
(UIC), Prevention of Significant Deterioration (PSD), and National Pollutant Discharge Elimination
System (NPDES)), not only RCRA permits. Therefore, a Region's response should not assume that
the CJO or his or her assistants have expert technical knowledge of the RCRA requirements.
• One way for the Regions to ensure that the petition for review is withdrawn in a timely manner after a
settlement agreement has been reached is to write into the agreement that withdrawal of the petition is
a condition of the agreement This should be done even if completion of the terms of the settlement
agreement requires other steps to be taken before the petition for review is to be withdrawn.
• The Regions should ensure that the Administrative Record has been collated early in the process and is
complete.
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OSWER Policy Directive #9521.00-01
PHASE 4
GRANT/DENIAL OF REVIEW OR REMAND BY THE EPA ADMINISTRATOR
D«ny
Wttnttor nottftac
thflt rwww te
§124.19(C)
CJO may contact
RsQion to otstun
funhar Mormaflon
AdmMsfttoi
dtTttM Of QTWlti
raviaw §124.19(0
Grant
Description of Activities
Once the Region completes and submits its response to the CIO, the CJO must review the response
and provide the EPA Administrator with a recommendation for either granting or denying review of the
permit or for remanding the case to the Region for further consideration. To provide the EPA
Administrator with the best possible recommendation, the CJO must receive from the Region complete
and accurate information concerning the issuance of the permit, the reasons for the petition, the status of
any negotiations or settlement discussions between the Region and the petitioner (but not the contents of
such negotiations or discussions, which are normally confidential), the status of any parallel State permit
proceeding, and any other pieces of information contained in the Administrative Record that may be
relevant to the decision to grant or deny the petition or to remand the case to the Region. To the extent
that the CJO believes the Region's response is lacking in some areas or needs further clarification, he or
she may ask the Region to provide additional information.
Grant or Deny
Following a review of the information submitted, the CJO will recommend to the EPA Administrator
that he or she either grant or deny the petition for review. The CJO also will provide the EPA
Administrator with information supporting this recommendation, which is based on the information in the
petition for review and the Regional response.
The Region, the CJO, and the EPA Administrator must keep in mind the criteria specified in the
regulations (§124.19(a)) for granting or denying a petition for review. Specifically, acceptable petitions for
review should generally provide a threshold showing that the condition in question is based on:
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OSWER Policy Directive #9521.00-01
• a finding of fact or conclusion of law that is clearly erroneous; or
• an exercise of discretion or an important policy consideration that the EPA Administrator should,
in his or her discretion, review.
The EPA Administrator will then consider the petition in light of the CJO's recommendation and make
a decision whether to grant the petition for review. Notice of the EPA Administrator's denial of a
petition for review will be provided to the Region and the petitioners. Following the EPA Administrator's
decision to deny review, the RA should provide notice to persons specified in §124.15(a) that the initial
permit decision stands unchanged and that the stayed conditions of the permit are effective. Because the
conditions of the permit remain unchanged, the contested conditions may become effective following this
notice in accordance with §124.20(d) - no sooner than 3 days after mailing of the RA's notice. While the
reinstating of stayed permit conditions may be effective immediately after the notice becomes effective (3
days later), it is strongly recommended that the RA's letter specify a date certain for the "re-effectiveness"
of the appealed conditions. In determining an appropriate date for reinstatement, the nature of the permit
conditions and the associated time needed to comply with these conditions should be considered.
Following the RA's notice of the EPA Administrator's permit appeal decision, and thus exhaustion of
administrative remedies, judicial review may be conducted in accordance with Section 7006 of RCRA.
If the EPA Administrator grants the petition for review, then the Agency review procedures continue.
Granting the petition triggers a series of public notice requirements and additional Regional
responsibilities, discussed in subsequent Phases of this manual
Remand
Occasionally, the EPA Administrator will remand the case to the Region for further consideration
without requiring the submission of additional briefs. This approach is followed only when there is a
determination that the issues have been adequately delineated in the petition and Regional response and
that further briefing is unnecessary. Such remands generally should be treated as a grant of review. An
administrative appeal from the remand is available only if the remand order so provides. Phase 6 of this
manual describes the procedures followed as a result of the remand order.
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PHASES
OPPORTUNITY FOR PUBLIC PARTICIPATION
If th« Admin-
Mttor grants
ortytpartal
RAmurt
notify ttw
to wttch per-
mit oondWont
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OSWER Policy Directive #9521.00-01
• persons on a mailing list composed of individuals who requested in writing to be on the list or who
participated in past permit proceedings in that area;
• any unit of local government having jurisdiction over the area where the facility is proposed to be
located; and
• each State agency having authority under State law with respect to the construction or operation of
such facility.
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PHASE 6
APPEAL DECISION ISSUED BY THE EPA ADMINISTRATOR
R0Qion oonductv
•ny rwoMswy
Description of Activities
After the briefs are submitted to the EPA Administrator and any other procedural steps required by the
EPA Administrator have been completed, the EPA Administrator will decide either that the permit needs
to be revised (remand) or that the permit as written will be upheld (no remand). In the case of a remand,
the EPA Administrator's remand order generally will specify the actions the Region must take on the final
permit decision, the timeframe for completing such action, and an indication of whether appeal of the
remand decision would be required to exhaust administrative remedies. If the EPA Administrator's
remand order does not specifically require appeal of the remand decision to exhaust administrative
remedies, then completion of the remand proceedings, including notice by the RA of the "new" final
permit decision, ends the appeals process (see Phase 7). (See §124.l9(f)(l)(iii).) Alternatively, the EPA
Administrator's remand decision may specify that administrative appeal of the decision on remand is
required to exhaust administrative remedies. Finally, if the EPA Administrator's decision does not involve
remand, the appeals process is completed by the RA's notice of the EPA Administrator's decision (see
Phase?).
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OSWER Policy Directive #9521.00-01
PHASE 7
REGIONAL ADMINISTRATOR'S NOTIFICATION OF EPA ADMINISTRATOR'S DECISION
RA notfflM partw of
t acton
§124.19(1)
may pureu* judtoM
review m Pectoral court
RCRA §7006
Description of Activities
Following Phases 4 and/or 6 as applicable, the RA notifies the petitioner(s) of the EPA Administrator's
final permit decision concerning the contested conditions. Three situations may arise:
• The EPA Administrator issues notice that the petition for review is denied. The procedures to be
followed are discussed fully under Phase 4.
• The petition for review has been granted, the EPA Administrator issues a decision on the merits of
the appeal, and the decision affirms the initial permit decision without remand. In this case, the
procedures to be followed are the same as those described under Phase 4 following denial of the
review petition.
• The petition for review has been granted, and the EPA Administrator issues a decision on the
merits and remands the condition(s) to the Region for further action or change. In this case,
several scenarios may arise, or the EPA Administrator's decision may specify the applicable
procedural steps to be followed. In the absence of specific directions in the EPA Administrator's
order, the general principles of Part 124 should be complied with. The Office of Regional Counsel
should be consulted concerning individual cases to establish appropriate procedures. For example,
if several conditions of the permit were appealed and the EPA Administrator sustains some of the
conditions and remands the remaining conditions to the Region, the RA, following issue of notice,
may reinstate the unaffected conditions of the permit (see discussion under Phase 4 for procedures
to follow when reinstating stayed conditions). The remanded conditions shall remain stayed
pending adjustment by the Region in accordance with the EPA Administrator's order. Unless the
EPA Administrator's order specifies otherwise, the Region shall revise the permit conditions as
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OSWER Policy Directive #9521.00-01
direaed and determine the need for further public comment. The permit modification provisions of
§270.42 may be consulted to assist in determining whether public comment or notice is required.
Following such revision and any notice and comment, the RA shall issue a final permit decision
with respect to the remaining contested permit conditions. Notice shall be provided in accordance
with §124.15(a). The changed conditions shall become effective in accordance with §124.15(b) (see
discussion under Phase 2), except that no further appeal is permitted unless the EPA
Administrator's order so provides. (See discussion above and §124.19(f).) Unless otherwise
specified in the EPA Administrator's order, the RA's notice pursuant to §124.19(f) would complete
the appeals process and exhaust administrative remedies. If so inclined, the applicant/petitioner
could then seek judicial review pursuant to Section 7006 of RCRA. All players involved in the
issuance of a final permit decision and the completion of the appeals process should bear in mind
that if a petitioner pursued a permit appeal vigorously and was left unsatisfied, there is a high
probability that this petitioner will challenge the final Agency decision in court.
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