oEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 9524.02(84)
TITLE: Permit Writer Responsibilities in Writing Permit
Conditions, the Velsicol Decision
APPROVAL DATE: io-ii-84
EFFECTIVE DATE: io-ii-84
ORIGINATING OFFICE:
C3 FINAL
D DRAFT
STATUS:
[ 1
Office of Solid Waste
REFERENCE (other documents):
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B- Pending AA-OSWER approval
C- For review fit/or comment
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OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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PART 270 SUBPART C - PERMIT CONDITIONS
DOC: 9524.02(84)
'Key Words:
Regulations:
Subject:
Addressee:
Originator:
Source Doc:
Date:
Summary:
Permit Conditions, RCRA Permits
Permit Writer Responsibilities in Writing Permit Conditions,
the Velsicol Decision
Hazardous Waste Division Directors, Regions I-X
Bruce Weddle, Director, Permits and State Programs Division
#9524.02(84)
10-11-84
To maintain flexibility in writing permit conditions, permit writers can
restate the requirements of the regulations, incorporate parts of the permit
application directly into the permit, or write completely original permit
conditions so long as the "permit conditions are 'based' on the appropriate
substantive provisions of the regulations and are necessary to achieve compliance
with the Act and regulations." The Velsicol's decision allows permit writers
to continue using the Model Permit as the basis for RCRA permits. Permit
writers must also ensure that applicants are aware that parts of the permit
application can be put into the permit as enforceable permit conditions.
Permit writers should use NODs and requests for additional information to
encourage applicants to identify and remove information from the application
that is not needed to demonstrate compliance with RCRA. Permit writers can
excise extraneous information from those parts of the application that are
incorporated into the permit.
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9524.02 (84
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OCT I I 1984
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
SUBJECT: Recurring Permit Issues: Extent of Permit Conditions
and the Velsicol Decision
FROM: Bruce Weddle,
Permits and State Programs Division (WH-563)
TO: Hazardous Waste Division Directors,
Regions I-X
Attached to this memo is a copy of the Administrator's
Decision in the Velsicol Appeal. Velsicol challenged its RCRA
permit on the grounds that EPA lacked the authority to incorporate
parts of the permit application into the permit as enforceable
conditions and on the grounds that this incorporation would lead
to an inflexible permit with conditions that exceed RCRA's
requirements. Velsicol had submitted a permit application that
described both RCRA and non-RCRA activities at a chemical plant.
The application led to a permit that was not limited to the RCRA
storage facility at this plant.
The Administrator, citing the need for flexibility in writing
permit conditions, declared that a permit writer can restate
the requirements of the regulations, incorporate parts of the
permit aplication directly into the permit, or write a completely
original permit condition. The latter two approaches are
permissible as long as "the permit conditions are 'based' on the
appropriate substantive provisions of the regulations and are
'necessary to achieve compliance with the Act and regulations.1"
This ruling upholds the approach used in the Model Permit.
The Adminis-trator also found that both Velsicol and the
Region had failed to take full advantage of the permit process
to work together in preparing the permit conditions. As a result,
permit conditions were written that, as the Region conceded, were
too broad. For this reason, he remanded the permit to Region IV
for additional public comment and potential revision of the
permit after public comment. In the new public comment period,
Velsicol can submit the information necessary to limit the permit
to the regulations.
In summary, this decision allows permit writers
using the Model Permit as the basis for RCRA permits,
to continue
and to
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-2-
continue to incorporate parts of the permit application in the
draft permit or to, when necessary, write completely original
permit conditions. Permit writers must also ensure that appli-
cants are aware that parts of the permit application can be put
into the permit as enforceable permit conditions. Accordingly,
the applicant should be encouraged, through NODs and requests for
additional information, to identify and remove information that
is not needed to demonstrate compliance with RCRA. The permit
writers are also free to excise extraneous information from
those parts of the application that are incorporated into the
permit.
This guidance replaces our earlier guidance of January 20,
1984, entitled "Recurring Permit Issues: Extent of Permit
Conditions."
Attachment
cc: RCRA Branch Chiefs, Regions I-X
RCRA Permit Section Chiefs, Regions I-X
OSW Permits Branch
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BEFORE THE ADMINISTRATOR
U.S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
In the Matter of: )
)
Velsicol Chemical Corporation, ) RCRA Appeal No. 83-6
>
Applicant )
)
Permit No. TND-061-314-803 )
REMAND AND PARTIAL DENIAL OF PETITION FOR REVIEW
I/
In a petition filed pursuant to 40 CFR §124.19 (1983),
Velsicol Chemical Corporation (Applicant) requested review of
a Resource Conservation and Recovery Act (RCRA) permit issued
to it for operation of a hazardous waste management (HWM)
facility at its chemical manufacturing plant in Chattanooga,
!/ •
Tennessee. The contested permit was issued on September 28,
1983, by the Director, Air and Waste Management Division, Re-
gion IV, U.S. Environmental Protection Agency. According to
Applicant, the permit is inflexible due to "Region IVs
I/ 40 CFR $124.19 provides in pertinent part:
(a) Within 30 days after a RCRA . . . final permit
decision has been issued . . ., any person who filed
comments on the draft permit . . . may petition the Ad-
ministrator to review any condition of the permit decision.
2/ The Applicant is currently operating its facility under the
authority of "Interim Status," a provision in RCRA which allows
persons who own facilities which were in existence on or before
November 19, 1980, to continue in operation until final action
is taken on their permit applications.
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extensive Incorporation of Velsicol's [permit] application
f
into the permit itself . . . ." The Applicant's specific
objections to the permit fall into two broad categories:
(1) the Region lacks the authority to incorporate substantial
portions of the permit application in the permit as enforceable
conditions; and (2) such incorporation led to a permit which
is inflexible and contains conditions that are "stricter than
3/
required by the RCRA regulations."
As explained below, insofar as the Applicant questions the
Regional Administrator's authority to incorporate portions of
the permit application in the final permit, the Applicant has
r»
not carried its burden of showing, in accordance with $124.19(a!
(1) and (2), that the permit determination is clearly erroneous
or involves an exercise of discretion or policy which is impor-
l/
tant and which should t>e reviewed as a discretionary matter.
Therefore, review of that aspect of the permit is denied.
3/ See "Velsicol Chemical Corporation's Reply to Region IVs Re-
sponse in Opposition to Velsicol's Petition" dated January 20,
1984. In its petition, the Applicant requests review of eighteen
conditions in the permit. In some instances, it is not possible
to discern the precise basis for the Applicant's challenge to
a specific condition.
47 The preamble to the regulations containing this standard for
accepting review states that "this power of review should be
only sparingly exercised [and] . . . most permit conditions
should be finally determined at the Regional level . . . ."
45 Fed. Reg. 33412 (May 19, 1980).
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Howevrer, with respect to the challenges to specific permit
conditions on grounds that they are inflexible and too strict,
the permit determination is remanded to the Region for the
X
purposed of reopening the comment period and revising the
permit conditions where.appropriate.
A.
There is no compelling reason to question the Region's
authority to incorporate portions of the permit application in
the Applicant's permit. The regulations confer broad discretion
on the Regional Administrator to either: (1) restate the require-
.ments.of the regulations as permit conditions (which he did in
some instances); or (2) to "establish other permit conditions"
which meet the regulatory standards, 40 CFR §270.32(b) ("Es-
tablishing Permit Conditions"). The text reads as follows:
(b) Each RCRA permit shall include permit
conditions necessary to achieve compliance with the
Act and regulations, including each of the applicable
requirements specified in 40 CFR Parts 264, 266, and
267. In satisfying this provision, the Director
[Regional Administrator or authorized representative!
may incorporate applicable requirements of 40 CFR Parts
264, 266, and 267 directly into the permit or establish
other permit conditions that are based en these parts.
When the Regional Administrator elects to "establish other per-
mit conditions," instead of simply restating tne requirements of
the regulations, he can choose between incorporating parts of
the permit application directly in the permit or crafting a com-
pletely original permit condition in his own words. No legal
significance attaches to his choice, however, for in either
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instance th<§ '«ol« test of legal sufficiency is whether the
^
requirements of $270.32(b) are satisfied, i.e., whether the
permit conditions are "based" on the appropriate substantive
provisions of the regulations and are "necessary to achieve
compliance with the Act and regulations." Therefore, the con-
tention that the Regional Administrator is without authority
5/
to incorporate portions of the application is rejected.
Similarly, there is no basis for contending, as Velsicol
does, that restating the requirements of the regulations should
be preferred over incorporation of the permit application. The
permit issuer needs to have .broad discretionary powers in de-
ciding .which of the several approaches to writing permit con-
ditions under $270.32(b) is most appropriate: permits are
issued for many different kinds of hazardous -vaste facilities,
ranging from those which only store small amounts of hazardous •
waste on a temporary basis, to those which are in the business
of disposing of large quantities of hazardous waste on a contin-
5/ In some cases, the regulations actually direct the Regional
Administrator to incorporate approved plans from the application,
thus depriving the Regional Administrator of discretion to do
otherwise. For example, 40 CFR $264.112 (Closure Plan)
provides:
(a) The owner or operator of a hazardous waste
management facility must have a written closure plan.
The plan must be submitted with the permit application,
in accordance with §270.14(b)(13) of this chapter, and
approved by the Regional Administrator as part of the
permit issuance proceeding under Part 124 of this chapter.
In accordance with S122.29 of this chapter, the approved
closure plan will become a condition of any RCRA permit.
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uous basis. In some cases, a restatement of the regulation
r
will be sufficient to insure the safe handling of the waste;
in others it will not. Similarly, in some cases incorporation
of the permit application will be sufficient; in others it
will not. Finally, in some cases it may be necessary to devise
new language that is tailor-made for the specific circumstances.
Therefore, any suggestion that any single approach to writing
n^O1"12
"permit conditions is preferable in all circumstances is cate-
gorically rejected.
The Applicant argues, however, "that even if incorporation
is authorized by the regulations, it is bad policy. According
to the Applicant, it results in inflexible permits which will
have to be modified in the future, thus wasting valuable Agency
and applicant resources. This argument also fails to persuade
me that the permit should be reviewed. There is no reason to
assume, as the Applicant evidently does, that incorporation will
inevitably produce an inflexible permit needing modification.
<}
On the contrary, the outcome depends in large part on what the
IN ~~
Applicant has submitted and on whether the procedures for de-
veloping permits are.used effectively, so that unnecessary con-
flicts over the terms and conditions of the permit are minimized,
Based on the record before me, I am convinced that the Applicant
and the Region have not taken advantage of the permit procedures
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i/
to avo^d the present controversy.
B.
The applicable procedures for pe'rrait issuance contemplate
that the permit issuer and the permit applicant will work to-
y
gether in developing a permit. To that end, the regulations
provide that if the permit application does not contain the in-
formation required to write a permit, the Regional Administrator
•
may issue a "notice of deficiency," requesting the information
necessary to complete the application. 40 CFR 5124.3{c). After
the application is officially "complete," the Regional Adminis-
trator may still request additional information to clarify what
^
has already been submitted, 40 CFR 5124.3(c); and still later,
after the draft permit determination is issued for public comment,
the Regional Administrator, may modify the permit (and reopen the
comment period) if the Region receives comments from the Appli-
cant (or the public) that appear to raise substantial new ques-
tions concerning the permit, 40 CFR 5124.14. Naturally, if the
comments indicate that the permit would be contrary to the Act
6/ For much the same reason I do not believe that it is necessary
to address the Applicant's contention that incorporation of major
portions of its application leads to the inclusion of permit con-
ditions that, under 5270.32(b), allegedly are not "necessary to
achieve compliance with the Act and regulations." (Emphasis added.)
There is no reason to assume that incorporation inevitably leads
to inclusion of unnecessary conditions. In any event, whether or
not a particular condition is necessary can be judged on a case-
by-case basis and corrected as appropriate.
y See generally, 40 CFR Part 124 (1983).
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or the regulations," the Regional Administrator can always
deny the permit application )
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For reasons which are not apparent from the record,
I/
the "Region did not request clarifying information, or
issue a notice of deficiency, or reopen the public comment
period for the purpose of considering modification of the pro-
posed permit or denial of the permit application. The record
-does show, on the other hand, that the Applicant did raise its
concerns about inflexibility and overbroadness in its comments
on the draft permit. However, the record also shows that the
Applicant's comments we_re not accompanied by the information
which the Region would have needed tp__change the permit so
that it would .conform to the regulations.
Since the Region concedes that 'some of the conditions in
the permit are too broad, it is my conclusion that the Region
erred when it issued the permit. Given the Region's stated
willingness to entertain proposals to amend certain permit con-
*
ditions, the Applicant should be given an opportunity to submit
the information that will enable a permit to be prepared that
is narrower and distinguishes between the Applicant's hazardous
9/ The Region did request other information from the Applicant
to clarify some of the submitted material, but that request did
not address the matters in question here.
10/ See, for example, 40 CFR §124.13 ("Obligation to raise issues
and provide information during the public comment period"). Of
course, it is a settled principle of law that the party who is in
possession of information has the burden of producing it. Seg
McCormick on Evidence (2d ed. 1972) ("A doctrine often repeated by
the courts is that where the facts.-with regard to an issue lie
peculiarly in the knowledge of a party, that party has the burden
of proving the issue.").
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and nojihazardous waste operations, and otherwise conforms to
the regulations. Therefore, I am remanding the permit to the
Region so that the comment period can be reopened under $124.14,
thus giving the Applicant another opportunity to submit that
information.
Conclusion
Accordingly, for the reasons stated above, it is ray con-
clusion that review of the RCRA permit is not warranted at this
time. The petition for review is denied insofar as it chal-
lenges the Regional Administrator's authority to incorporate
portions of the permi.t application in the final permit. However,
regarding Applicant's objection to specific conditions in the
permit, the permit determination is remanded cor the purposes
of reopening the comment period to provide an opportunity to
obtain the additional information needed to revise those permit
uy
conditions. If the information is not forthcoming and the'
Region is, therefore, unable to write a permit: that complies
with the Act and the regulations, the Region is instructed to
issue an appropriate notice of its intent to deny the permit. /
ll/ Of course, only the permit conditions contested in the
Applicant's petition for review will be the subject of the
reopened comment period.
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10
Any final p«nnit determination shall reflect the Region's
<•
response to all comments. Thereafter, the Region's permit
12/
determination may be appealed in accordance with 5124.19. —
So ordered.
William D. Ruckelshaus
Administrator
Dated: SEP 1 4 1984
12/ For purposes of judicial review, final Agency action occurs
after a final RCRA permit is issued by the Regional Administrator
and Agency review procedures are exhausted. See 40 CFR §124.19
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