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:
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               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

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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.

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                                                              9522.02 (85)
                             APR   9 1985
                                                                          r
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                                                                          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

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                             -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

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