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
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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.
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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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