oEPA
               United States
               Environmental Protection
               Agency
           Office of
           Solid Waste and
           Emergency Response
DIRECTIVE NUMBER: 9524.01(84)
TITLE: Use of Compliance Schedules in RCRA Permits

APPROVAL DATE: io-s-84
EFFECTIVE DATE: io-s-84
ORIGINATING OFFICE: office of solid waste
E FINAL
D DRAFT
 STATUS:      '
                REFERENCE (other documents)
]  A- Pending OMB approval
i  B- Pending AA-OSWER approval
:  C- For review &/Or comment
  D- In development or circulating
           headquarters
  OSWER      OSWER      OSWER
VE   DIRECTIVE    DIRECTIVE   Dl

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PART 270  SUBPART C - PERMIT CONDITIONS                       DOC:  9524.01(84)


Key Words:    Compliance Schedules

Regulations:  40 CFR Parts 265, 264, 270

Subject:      Use of Compliance Schedules in RCRA Permits

Addressee:    Hazardous Waste Directors, Region I-X

Originator:   Bruce R. Weddle, Division Director, Permits and State Program
              Division

Source Doc:   #9524.01(84)

Date:         10-5-84

Summary:

     Compliance schedules in permits can be used to allow facilities to construct
or install equipment that is not required under Part 265 but that is required
under Part 264.  They cannot be used to satisfy information requirements of
Part 270.*  Compliance schedules must be specific, enforceable, allow
for public notice and comment on the detailed permit condition, and allow the
applicant additional time only where that time is legitimately needed.

     Permits with compliance schedules should not be used to:

     o  Bring a facility into compliance with Part 265 standards.

    *o  Allow a facility additional time to provide Part B application
        information after the permit is issued.

     o  Allow modification to an existing incinerator that has failed the trial
        burn.

     o  Bring an existing incinerator into compliance with Part 264 monitoring
        requirements necessary for an adequate trial burn.

     o  Develop adequate data when interim status ground-water monitoring data
        are lacking or questionable.

     In addition, the permit writer may develop permit conditions in areaa
where the Part B is deficient based on his or her own knowledge and best engin-
eering judgment.
     *An exception to this policy exists now as a result of HSWA for corrective
action at SWMUs only.

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                                                                 9524.01 (84
                             OCT
 MFMOPAMDf.'M
 SUBJECTt   Use  of Conpliance  Schedules  In  PCPA Permits

 FROM:      Bruce R. Heddle
           Division Director
           Permits and  State  Programs Division

 TOi        Hazardous  Waste  Directors, Region I-X
^--
     Many  Regions have requested  guidance on the appropriate
 use  of compliance schedules  in RCRA permits.  In response to
 those  requests, the  Permits  Hranch has developed the attached
 guidance.

     To  surnarize the  nain points, ccnpliance schedules in RCFA
 pernits  cannot be used to  satisfy, after  the permit has been
 issued,  the information requirenents of Part 270.  Compliance
 schedules  can  be used  to allow facilities to cone into compli-
 ance with  Part 264 standards that are  not required under Part
 265.

     Please distribute this  guidance  to your respective staffs.
 Any  questions  regarding when compliance schedules can be used
 in RCRA  permits should be  referred  to  Elizabeth Cotsworth at
 FTS  382-4751.

 Attachment
 WH-563:RChrisnon:srm:8243:24691:3/12/84:Randy's disk "Menos1

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                   USE OP COMPLIANCE SCHEDULES
                         IN RCPA PERMITS
     A nunber of Regions have flskod a.^out the appropriate use of
compliance schedules in RCRA pernits.  The following explains
-•••jttncy policy on this issue.


Ccnnliance Schedules in Permits

     In general, conpliance schedules in pemits should be used to
allow the construction or Installation of f»q»iipnent that is not
required under Part 265 but that is required to ccnply with Part
2M standards.  To be acceptable, corpliance schedules rust be
specific/ enforceable, allow for public notice and conrent on
the detailed pernit condition, and allow the applicant additional
tine only where that tine is legitirntely needed.

     Specificity reans that the compliance schedule must set forth,
in. dotail, what the applicant is supposed to do, when the applicant
is supposed to c!o it, and when the work ia to be completed.  Thus,
the schedule should include the design and construction specifi-
cations, interim milestones for construction, and a specific date
for conplo.tion.  The schedule nuat also require the applicant to
notify the Director within 14 days o? each intorin date and the
fir.al completion date.
  '\   '  '  •
     Enforceability means that the rerpui rcments inposed by the
conpliance schedule on the own^r/operator can be achieved and
that the Agency can confirm that the owner/operator has suc-
cessfully -net his responsibilities.  It also means the scheduled
activities nust comply with the technical standards of Part 254.
The permit writer nust have an opportunity to evaluate the detail?
of design, construction, and operation to assure, their adequacy  in
light of Part 264 requirements.

     The coraplote compliance schedule nust be included in the
draft pernit so the public will have an opportunity to corment
on its content.  The conpliance schedule nust bo ccnpleta as  to
the details of what is to be done, when, an
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     No.  A facility should be in compliance with Part 265 stan-
dards at the time a RCRA permit is issued.  In situations where
*-ho facility is not in compliance with the requirements of Part
265, especially when compliance problems will prevent development
of a draft permit, the permit writer should refer the case to the
enforcement staff.  The enforcement staff will make decisions as'
to the appropriate enforcement action to pursue.  When enforcement
actions result in administrative orders, a compliance schedule
may be included in the order.

2. •* Can a compliance schedule be used to allow a facility
additional time to provide Part B application information after
the permit is issued?

     No.  Use of a compliance schedule for this purpose is unac-
ceptable and may be illegal.  For example, the RCRA regulations
provide that the Director must specify detailed ground-water
monitoring conditions in the facility permit.  To develop these
permit conditions, information on ground-water monitoring at the
facility is necessary and, generally, should be drawn from the
Part B permit application.  Without adequate ground-water moni-
toring data, it is impossible to know whether a facility should
be conducting detection or compliance monitoring or corrective
action.  In addition, there may be no information that would
support the details of a ground-water monitoring plan, such as
number, location and design of wells.  Without this information,
the Agency cannot develop a permit that complies with the Subtitle
C regulations.   Additionally, the public is not given adequate
notice or opportunity to comment on the ground-water monitoring
program.  Because the Agency does not have adequate information
on these items, it cannot issue a permit.

3.   Can compliance schedules be used to bring a facility into
compliance with Part 264 standards not required under Part 265?

     Yes.  Where a facility, which is in compliance with Part
265, must undertake new construction or installation of equipment
in order to comply with Part 264, a RCRA permit should be issued
with an-attached compliance, schedule.

     For example, although an interim status storage facility
does not require secondary containment, secondary containment'  is
required under Part 264.  Accordingly, the permit applicant must
submit design, construction and operating specifications for a
secondary containment system in his application.  The permit
writer may then approve those specifications and make them part
of the draft RCRA permit.  A compliance schedule would be included
in the draft permit, setting forth milestones for various tasks,
a final completion date for construction and a  requirement for
the permitee to notify the Director within 14 days of complying
with each interim date and the final date.  See §270.33.
Incorporation of the compliance schedule  in the draft permit
would provide the public with notice of the details of the proposed
design, construction, and operation of  the secondary containment

                               -2-

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 system,  and  also  the proposed schedule for completion of the
 work.  After addressing  the public comments, the permit writer
 can issue  the final permit and attached compliance schedule.

     Note  the important  factors of this scenario:

     A.  All information requirements of Part 270 are satisfied
 before the draft  permit  ia written,

    • B,  The permit writer has an opportunity to assess the
 adequacy of  the design,  construction, and operation details.
                 /
     C.  The conpliance  schedule is specific as to what is  to be
 done, who  is responsible for seeing that activities are corpleted,
 and when those activities are to be completed.

     D.  The public has  a full opportunity for notice and comment.

 4.   Should  a compliance schedule be used to issue a permit and
 allow modifications to an existing incinerator that has failed
 the trial  burn?                                        , .
*/•'•*'                                                    .
  •.•' No.  The Agency should not issue a permit to a facility which
 has failed to demonstrate, in accordance with Part 270, conpliance
 with the Part 264 performance standards.
  * f •         •                                     _» . - .
           -•*•»                          -       • . •   -r  •   .
"^•i": This  scenario appears to be similar to the secondary contain-
 ment situation described previously.  There is, however, a  fund-
 amental  difference between the two situations.  With respect to
 secondary  containment, it can be ascertained from the applicant's
 proposed designs  and specifications that the containment structure
 will comply  with  the Part 264 technical standards.  With respect
 to  an  incinerator, however, there is a much higher level of
 uncertainty  that  proposed modifications will result in  the
 incinerator  achieving compliance with the performance standards
 in  Part  264, Subpart O1.   The Agency cannot  issue  a permit to an
 incinerator  that  cannot  demonstrate its ability to comply with
 the regulations.

     Generally,  tho permit writer has several options.  The Agency
 can delay  any final action, send a letter to the  applicant  saying
 that we  will deny the permit unless we get  trial  burn  results
 demonstrating compliance with the Part 264  performance  standards
 within a specified tine  period.  The Director could also  issue an
 administrative order to  achieve the same results.  Tho  applicant,
 of  course, can submit a  new trial burn plan using different
 operating  parameters or  modify the facility and submit  a  new
 trial  burn plan  incorporating the new modifications.   This  order
 likely would contain a compliance schedule.  Finally,  in  some
 circumstances, it may be appropriate to deny the  permit.
                                -3-

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 5.   Por  incinerators, should a RCRA permit be issued vith an
 attached  conpliance schedule to bring an existing incinerator
 into "compliance with Part 264 monitoring requirements necessary
 for an adequate trial burn?            -•...'
     No.  All continuous monitoring instrumentation should be
installed for the trial burn.  Under SS270.19(d) or 270.62(b)(5),
the Director nust find that the trial burn will allow hin to set   ;
operating conditions for the unit before he can approve the trial
burn plan.  If  the continuous monitoring equipment is not installed
during the  trial burn, the Director cannot set operating conditions,
Therefore,  under the authority of Part  270, the Director can
require continuous nonitors to be installed before the trial burr
is conducted and the permit issued.  :    .          .        •
6.   Should "permits with corapliance schedules be used to correct
deficiencies  in  interim status ground-water monitoring data?    .
                               ' " ' '                 '•'•',."'    *
     Where the ground-water nonitoring data are lacking or question
able due  to poor .sampling  and analytical  techniques, improper well
placement, or lack of nonitoring, the Agency cannot  issue a RCRA .v
permit with an attached coapliance schedule to develop adequate
data.  Rather, the perrait  writer should refer the case to the  : '•*
enforcement office for action. ;Closo coordination between the ..
permits and enforcement staffs will, of course, be necessary  to
ensure that the  relief sought through enforcement action will  be
consistent and compatible  with the Part B infomation requirements.

                        '
     May  the  permit writer  develop pern.it  conditions  in areas ."_
where  the Part  B  is deficient?   For example,  if an applicant     :   '
fails  to  specify  information  regarding  fire prevention and  control  •
can the permit  writer still draf t .pernit conditions  in that area?
 *                              '•»'*•»•".•
                                                 .      r   ••-""'".
--'"   Yes.  It should be  kept  in  wind  that  the applicant is  not
the sole  source of information available to the permit writer.
Por example,  the  permit  writer's knowledge of safety  codes, such
as the National Fire Protection  Association Code, can provide
the basis for permit conditions.  The permit  writer  can impose
draft  permit  conditions  on  necessary  fire  prevention  and  control
noasures  based  on the NFPA  code, even though  the applicant  has  :
failed to specify this  infomation  in the  Part B application.
The perrait writer/ in essence, is completing  the application  for
the applicant by  drawing on his  own knowledge and best engineering
judgment.  .      .
-            *•  * • *
 •  _•    '.'     "'  .'  -» , ,
For Hore  Infomation
                  *             •                        ^
     .The  above  examples  cover the situations  where use of compli-
ance schedules  has been  suggested.  Headquarters jfill be  working
with the  Regions  to establish a  national clearing house  for sharing
 "nodel" permits,  permit  conditions, HOHs,  and compliance  schedules.'
 In the meantime,  any questions regarding when conpliance  schedules £
fcan be used should be referred to F.lizabeth Cotsworth at  PTS-8- ..^: ^
582-4751.

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