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DIRECTIVE NUMBER: 9522.00-3
TITLE: Region X's Recommended Revision of 40 CFR SS
270.A(a) and 270.32(b)(l)
APPROVAL DATE: November 13, 1987
EFFECTIVE DATE: November 13, 1987
ORIGINATING OFFICE: office of solid waste
5) FINAL
D DRAFT
STATUS-
] A- Pending OMB approval
B- Pending AA-OSWER approval
<-- Fcr review i/or
REFERENCE (other documanu):
nmenc
J D- *r. develop^ or circulating
headquarters
DIRECTIVE DIRECTIVE
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Agency I Directive Number
OSWER Directive Initiation Request 9522.00-3
2. Oflatnator Information
Name of Contact Person Mail Code Office Telephone Code
Frank McAlister WH—563 OSW (202) 382—2223
3 Title
Region X ’s Recoended Revision of 40 CFR § 2 ?0.4(a) and 2 70.32(b)(1)
4 Summary of Directive (include bnef statement of purpose)
This memorandum clarifies the 40 CFR Part 270.4 Upermit shield” provision as it
relates to self implementing regulations and statutes like 40 CFR Part 268 and
gives Sample permit language.
5 Keywords
Permit / Enforcement
6a Does This Directive Supersede Previous Directive( 5)
XX No Yes What directive (number title)
b Does It Supplement Previous Directive(s)’
XX No Yes What directrve (number trite)
/ Draft Level
A - Signed by AA/D&A B - Signed by Office Director c - For Review & Comment 0 - In Development
[ 8 Document to be distributed to States by Headquarters? es No .
This Request Me.ts OSWER Directives System Format Standards.
9 Signature of Lead Office Directives Coordinator Dare
O ,tt) 11 / 17 / 87
10 Name and Title of Approving Official Date
Marcia Williams, Director, Office of Solid Waste 11/13/87
EPA Form 1315 - 17 (Rev. 5- I l) Previous edd ons are obsolete
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DIRECTIVE
DIRECTIVE
DIRECTIVE
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OSW Policy Directive 9522.00-3
p 0
i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
N ’1 13 87
OFFICE OF
SOLID WASTE ANO EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Region ‘s Recommended Revision of 40 C.F.R. §S2 7 0.4(a)
and
FROM: Gert Lucero, Direct r
Office of Waste Programs Enforceq eDt
•1
Marcia Williams,
Office of Solid Waste
/
TO: Charles . Findley, Director
Hazardous Waste Division
Region X
In your memorandum dated June 26, 1987, y ou identify
several potential enforcement problems in the RCRA permitting
regulations and in the corresponding language in the Agency’s
model permits. In addition, you present alternative language
that Region X intends to incorporate into permits to prevent
these enforcement problems. Specifically, you express concerns
with the language of S270.4(a) (and similar language in
S270.32(b)(1)) which states:
Compliance with a RCRA permit during its term
constitutes compliance, for purposes of enforcement,
with Subtitle C of RCRA.
Several issues are involved in the consideration of this
“permit shjeld• provision. First, we agree that this language
may be overly broad for some of the reasons you cited in your
memorand ,. However, we do not believe that it presents a
serious Impediment to enforcing the RCRA Subtitle C requirements
that are outside the permit’s scope. Although an argument can
be made that S270.4(a) limits the enforceability of any RCRA
Subtitle C requirements not addressed by the permit, such an
interpretation would conflict with the intent of other RCRA
provisions. Many of the Subtitle C requirements are not designed
for, ftnd are not appropriate for inclusion as permit conditions,
namely Parts 260, 26],, 262, and 263. An illustration of the
Agency’s intent to implement these Part 260—263 standards outside
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Policy Directive 9522.00-3
—2—
of the permit is s262.l0(f) which applies the Subtitle C Part
262 generator standards to permitted facilities that generate
hazardous wastes.
Second, the regulations at S270.32(b)(l) indicate that a
permit should include conditions that incorporate the standards
specified in Parts 264, 266, 267, and 268. ( ote, however, that
the applicability of Part 267 has expired.) The purpose of
S270.32(o)(l) and the “permit as a shie1d provision of §270.4(a)
is to assure the permittee that by complying with the permit, he
or she is in compliance with the RCRA facility standards. Thus,
given S270.32(b)(l), the permit shield applies in all cases to
the facility standards of Parts 264 and 266.
The relation of the permit shield provision to Part 263 is
more complex. As a result of HSWA, the self—implementing
facility standards imposed by statute and the Part 268 land
disposal restrictions apply to all permitted facilities despite
the shield provision of §270.4(a), except in those cases where
the self—implementing requirements have been incorporated into
the permit. (See the March 28, 1986 proposed amendment to S270.4,
51 FR 10715.) Consequently, if the self—implementing RCRA
provi ions are incorporated into the permit, the permit will act
as a shield from- t-hese seif—implement-ing requirements.. EPA
maintains its position that it is generally preferable to incor-
porate the Part 268 and related statutory standards into new
permits whenever oossible. At the same time, the ? gency must
assure that the permittee is obligated to comply with new or
amended self—implementing provisions that occur after permit
issuance. Sample permit language is provided below to achieve
that effect.
Based on the two points discussed above, we believe that
§270.4(a) is not as serious an impediment as you suggest.
However, we agree with your concern that there is a potential
for confusion, and concur with your approach to modifying the
permit language to clarify the effect of the permit for
enforcement purposes. We recommend a few changes to your
suggested alternative language to indicate more clearly which
40 C.F.R. Parts are shielded by the permit and those that are
not shielded. Thus, the boilerplate language should read as
follows:
Compliance with this permit during its term
constitutes compliance, for purposes of enforcement,
with 40 C.F.R. Parts 264 and 266 only for those
management practices specifically authorized by this
permit. The permittee is also required to comply
with Parts 260, 261, 262, and 263 to the extent the
requirements of those Parts are applicable.
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OSW Policy Directi’e 9522.00—3
tn addition, one of the following conditions should be used
to reflect the applicability of the statutory and Part 268
self—implementing provisions:
1. For permits that do not incorporate self—implementing
requirements:
The permittee must also comply with all applicable
self—implementing provisions imposed by the RCR?I
statute or the Part 268 regulations.
2. For permits that incorporate self—implementing
requirements:
Compliance with this permit constLtutes compliance,
for purposes of enforcement, with Part 268 only for
those management practices and related standards
specifically authorized by this permit. The permittee
must also comply with all applicable self—implementing
provisions that take effect after issuance of this
permit, whether they are imposed by the RCRA statute
or the Part 268 regulations (including amendments).
You may also add a general provision which states that compliance
with the permi.t does not constitute a defense against any action
brought under law to protect human health or the environment-,
including other requirements not necessarily included in the
permit.
Thank you for bringing this matter to our attention. We
will continue to reexamine the entire permit shield issue to
determine whether further changes to S270.4(a) are warranted.
If you have additional cuestions or observations on this subject
please contact Frank McAlister of the Office of Solid Waste
(FTS 382—2223) or Susan Hodges of the Office of Waste Programs
Enforcement (FTS 475—9315).
cc: Waste Management Division Directors, Regions 1—IX
RCRA Branch Chiefs, Regions I-X
Regional Counsels, Regions I—X
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