oEPA United States Environmental Protection Agency Office of Solid Waste and Emergency Response DIRECTIVE NUMBER: 9522.02(85) TITLE: Steam Team RCRA Permit Issuance to Facilities in Violation of Other" Federal Laws and Regulatory Programs APPROVAL DATE: *-9-85 EFFECTIVE DATE: 4-9-85 ORIGINATING OFFICE: e«i« of solid waste a FINAL D DRAFT STATUS: [ ] [ ] [ 1 [ A- Pending OMB approval B- Pending AA-OSWER approval C- For review &/or comment In development or circulating REFERENCE (other document*): headquarters OSWER OSWER OSWER VE DIRECTIVE DIRECTIVE Dl ------- PART 270 'SUBPART A - GENERAL INFORMATION DOC: 9522.02(85) Key Words: Other Federal Laws, RCRA Permits Regulations: 40 CFR 270.3 Subject: Addressee: Originator: Source Doc: Date: Summary: Steam Team RCRA Permit Issuance to Facilities in Violation of Other Federal Laws and Regulaotry Programs Jim Reidy, Permits Section Chief, Region II Randy Chrismon, PAT Incinerator Coordinator #9522.02(85) 4-9-85 The memo provides an interpretation of 40 CFR 270.3, which gives EPA the authority to deny a RCRA permit to a facility that is not complying with other federal laws even though the facility is in compliance with all applicable provisions of RCRA. ------- 9522.02 (85) APR 9 1985 r 5 o K *• K SOmJRCTi Steam Team Commsntsi Other Pederal Laws £ .. . . V. PROMt Randy Chrlsmon . ° FAT Incinerator Coordiaator £ .TOi Jia Reidy . . * Permits Section Chief, Region II £ «.---..< - - . • . £ I. Background . . ..., . H ^ ' CD An incineration facility ha* conducted a trial burn pursuant . ° to 40 CPR 270.62. The results of the trial burn indicate that the- facility meet* the performance standards of 40 CPR 264.343. The > trial burn provided sufficient information to allow the permit H writer to establish operating conditions in the permit. The trial burn data, however, also showed that the facility violates the Clean Air Act in that it emits unacceptable quantities of 8Ox. II. Issue Can a facility, although in full compliance with RCRA, be denied a RCRA permit because it violates other federal law* and regulatory programs? Ill* Discussion It has been suggested that 40 CPR 270.3 gives the Agency the authority to deny a RCRA permit to a facility that is not complying with other federal laws even though that facility is in compliance with all applicable provisions of RCRA. This, however, is an overly broad Interpretation of Section 270.3. That provision (see 48 PR 39614, September 1, 1983) requires the Agency to comply with other federal laws that_imDose_re_quirements_on_the_Agency_in_the issuance of RCKA permit»« Inparticular. Section 270.3 requires the Agency to comply with the several federal laws listed in that section when processing a RCRA permit application. Section 270.3, however, cannot be used as a vehicle to generally enforce all other ------- -2- federal licensing law* through RCRA. As the preamble indicatesr the rule "does not alter EPA'a responsibilities under, other Federal statutes.* By the way of illustration, suppose that a RCRA application for a new facility shows that the proposed location is near the critical habitat of an endangered species. Section 270.3.requires the Director to make a finding that the proposed facility will not significantly affect that critical habitat before the Agency can issue the permit, since this is the standard imposed on BPA permit actions by the Endangered Species Act* referenced in J270.3. If the Director cannot make the required finding, the permit must be denied. Where, as here, the applicant is in full compliance with RCRA but there is information to show that the applicant is in Violation of another federal statute (such as the Clean Air Act) which does not require action on the part of EPA when issuing RCRA permits, it is the responsibility of the permit writer to forward that information to the appropriate enforcement agency* In the meantime, however, the Director may approve and issue a final RCRA permit. If you have any questions on this issue, please contact Terry Groyan, PAT Program Manager, at FTS-382-2224. ccs Peter Guerrero . . Terry Grogan Art Day Susan Schmedes ------- |