RCRA Permit Changes

• Author: Susan M. McMichael
• Pages: 151-182

Page 151

Chapter 6

RCRAPermit Changes

6.0 Introduction

e Agency believes that [RCRA] permits must be viewed as living documents that can be modied

to allow facilities to make technological improvements, comply with new environmental standards

. . . and generally improve waste management practices.

—U.S. Environmental Protection Agency1

EPA once described permit changes at hazardous waste management facilities as inevitable, occurring as often

as “two or three times a year.”2 ere are numerous circumstances that may cause a facility to modify its permit,

including transfer of ownership, changing operations, technological advancements, and improvements in waste

management practices. In addition, EPA has issued hundreds of RCRA rules that may require a permit change.

RCRA regulators, in turn, may seek to change permit provisions to incorporate new rules, standards, or other

changes. In either case, it is impossible for a facility or permit writer to anticipate the f uture administrative,

technical, or operational changes that may be required during RCRA’s 10-year permit term. But when these

changes occur, the task of changing the permit can be dicult and time-consuming. Class 3 modications may

be as arduous as obtaining the initial operating permit. Even minor or Class 2 permit changes can take months,

or longer, to implement. Facilities may feel trapped by rigid permit conditions that are dicult to change, and

be discouraged from implementing changes aimed to improve waste management practice.

is chapter addresses permit changes and discusses the regu-

latory process and issues that may arise for each type of change.

ese permit changes include: (1) permit modications, including

agency-initiated and facility-initiated modications (Sections 6.1-

6.3); (2) classication decisions (Section 6.4); (3) special modi-

cation procedures for newly regulated wastes and units and for

o-site military munitions, and changes needed by hazardous

waste combustion facilities to comply with hazardous air-pollu-

tion emission standards (Section 6.5); (4) temporary authoriza-

tions (Section 6.6); and (5) other types of permit changes, such as

permit transfers, permit reviews, permit renewals and reapplica-

tion, permit termination, revocation, and reissuance (Section 6.7)

(see Box 6.1). e chapter closes with practical tips and pitfalls for

facilities that seek permit changes.

1. U.S. EPA, Permit Modications for Hazardous Waste Facilities; Final Rule, 53 Fed. Reg. 37912, 37913 (Sept. 28, 1988).

2. Id. at 37913.

Box 6.1

Per mit Cha nges

Permit modifi cations

Temporary auth orizations

Permit transf ers

Permit review s

Permit renewa ls an d reap plication

Permit termin ation

Permit revocat ion a nd re issuance

Page 152 RCRA Permitting Deskbook

6.1 Permit Modications

Unless EPA improves the permit modication procedures . . . improvements in the handling and

treatment of hazardous waste will be delayed , and the regulated community will nd itself frozen

by rigid permit conditions.

—U.S. Environmental Protection Agency3

Permit modications are divided into two categories under §§270.41 and .42: agency-initiated and facility-initi-

ated. Facility-initiated modications, in turn, are divided into a three-tier classication system: Class 1, 2, and

3. EPA established this tiered system in its 1988 modication rule. e 1988 rule eliminated the distinction

between major and minor modications previously established under EPA’s consolidated permitting regulations

of 1980.4 EPA determined that a major overhaul to the modication process was necessar y after nding prob-

lems with the consolidated rules, including a nding that major modications could take “six months to a year”

for approval.5 is delay, in turn, discouraged operational changes and improvements to waste management

practices. e 1988 rule was intended to accomplish two goals: (1) provide facilities with incentives to pursue

changes for improved management of hazardous waste; and (2) provide greater exibility for timely processing

permit requests.6 Not all states adopted the modication rule, and have retained the major and minor permit

modication distinction. (Note: EPA’s modication rule is an optional rule that states are not required to adopt

(to check on the status of state authorization, see Appendix 2).)

6.2 Agency-Initiated Modications

Agency-initiated modications are rare, and they are uncharted territory for many states. is may be due, in

no small measure, to the restricted circumstances in which an agency may modify a RCRA permit and the

extensive procedural process associated with these modications. A gency-initiated modications are a type of

last resort, unilaterally imposed by the EPA or a state permitting agency for specied causes under §270.41.

Nevertheless, they can be a powerful tool to impose permit conditions needed to ensure continued compliance

with RCRA rules. Agency-initiated modications can be implemented after following part 124 procedures

or the state equivalent. Part 124, in turn, imposes a full host of procedures, including a requirement that the

agency provide public notice, at least a 45-day public comment period, and an opportunity for public hear-

ing. e agency must also prepare a draft permit with the proposed modication, along with a fact sheet or

statement of basis. Only those conditions subject to the modication are reopened. Full permit procedures for

agency-initiated modications provide the “appropriate level of protection for the permittee, and reasonable

opportunity for public comment.”7 ey make sense because the agency is imposing a change that the facility

may be “less than enthusiastic about adopting.”8 If the permitting agency denies a request to modify a permit,

however, few procedural requirements apply. e agency must send the requester a brief written response and

provide a reason for the decision. Denials are not subject to public notice, comment, or opportunity for a hear-

ing under §124.5(b). State law may impose dierent procedural requirements, and must be consulted.

A few notable features are associated with agency-initiated modications. First, not all changes to a RCR A

permit actually require an agency modication under §270.41. Only those revisions that modify the permit are

subject to formal modication procedures. Several administrative decisions reviewed the issue of what actions

3. U.S. EPA, Permit Modications for Hazardous Waste Management Facilities; Proposed Rule, 52 Fed. Reg. 35838, 35840 (Sept. 23, 1987).

4. U.S. EPA, Consolidated Permit Regulations, 45 Fed. Reg. 33290 (May 19, 1980). e consolidated permit rule applied to many federal programs

including RCRA, the Safe Drinking Water Act, the Clean Water Act, and the Clean Air Act. In mid-1986, EPA developed a permit modication

negotiating committee comprising of 18 parties from hazardous waste generators; representatives from the waste management industry; environ-

mental and citizen groups, and a few states. In 1988, EPA “deconsolidated” its permit program and reorganized permit modication rules. See 52

Fed. Reg. 35838, 35839-42.

5. See 53 Fed. Reg. 37912, 37913 and 52 Fed. Reg. 35838, 35839-40.

6. See 53 Fed. Reg. 37912, 37936.

7. 52 Fed. Reg.35842, 35843.

8. Id. See also U.S. EPA, Guidance on Permitting Issues Related to the Dupont Edgemore Facility, OSWER Dir. 9525.1988(02), 1988 WL 525208 (July

1, 1988) (agency-initiated modications do not require permittee agreement).

RCRA Permit Changes Page 153

constitute an agency permit modication. ese cases involve challenges to EPA on the ground that it modi-

ed a RCRA permit without following the procedures under §270.41, allegedly a violation of RCRA and EPA

procedures. ese cases tend to focus on whether the change was part of a process contemplated in the original

permit (see note 24 infra). Second, if a modication is required, the permitting agency can modify a permit

only for causes listed in §270.41(a) and (b) (discussed below). e agency narrowed the scope of changes,

stating that “[t]he list for modifying a permit is narrow and absent cause from this list, the permit cannot be

modied.”9 is limitation in agency authority is rmly rooted in the permit shield policy, embodied in §270.4,

which provides that compliance during the permit term constitutes compliance for purposes of RCRA, except

for specic requirements not included in the permit (see Chapter 3.5, “Permitting as Enforcement”).10

6.2.1 Causes for Agency Modications

ere are seven causes to support an agency-initiated modication,

six of which originated from EPA’s 1980 consolidated permit pro-

gram (see Box 6.2). Authorized state programs can be more stringent

or broader in scope and include additional causes (discussed below).

• Alterations

RCRA permits can be modied to include alterations dened at

§270.41(a)(1) as “material and substantial alterations or additions to

the permitted facility or activity which occurred after permit issu-

ance which justif y the application of permit conditions that are dif-

ferent or absent in the existing permit.” EPA issued this rule to guard

against a permitted facility that changes operations in a manner not

contemplated in the original permit, but which require regulation.

Absent this provision, “permits would have to be written to prohibit

all activities not specically limited in the permit.”11 It is important

to note, however, that a permittee must report all planned physical changes, as well as any other change, that

may result in noncompliance.12 For this reason, a facility that alters its operations as contemplated under this

provision may violate its permit if the alteration is completed without modifying its permit.

• New Information

RCRA permits can be modied for new information that meets the following conditions at §270.41(a)(2):

(1)the information was not available at the time of permit issuance (other than revised rules, guidance, or test

methods); and (2) the information would have justied the application of dierent permit conditions at the

time of issuance. Adopted in 1980, §270.41(a)(2) provides that an agency can modify a permit upon receipt of

information not available at the time of permit issuance. is limitation, which is rooted in the permit shield

policy at §270.4, is intended to ensure that permit conditions cannot be arbitrarily changed by the agency dur-

ing the term of the permit (see Chapter 3.5, “Permitting as Enforcement”).13 Although the scope of this rule

9. 45 Fed. Reg. 33290, 33314. EPA rejected the notion that an agency had broad authority to modify a permit for “good cause” on the basis that it

was too vague and unlimited agency authority could “provide a means of circumventing the limitations on opportunities for modifying permits

during their terms” intended by the rule. Id. at 33317. See also In the Matter of Waste Technologies Indus. East Liverpool, Ohio, 4 E.A.D. 106,

112-13, A. M. 40028 (EAB 1992) (EPA cannot modify permit unless for cause as specied by rule; agency required to delete provision

in permit authorizing it to modify permit at any time “to include terms and conditions determined necessary to protect human health and the

environment pursuant to Section 3005(c)(3) of RCRA”); In the Matter of General Motors Corp. Delco, 4 E.A.D. 334, A. M. 40087 (EAB

1992) (EPA required to delete provision in permit that authorized it to modify permit as “necessary to protect human health and the environment

pursuant to Section 3005(c)(3) of RCRA”; “EPA may not invoke 3005(c)(3) to bypass [270.41], for it ‘is axiomatic that the agency must follow

its own regulations’”); In re General Motors Corp., Inland Fisher Guide Division, 5 E.A.D. 400, A. M. 40244 (EAB 1994) (EPA ordered

to revise permit condition to constrain EPA authority to modify permits to §270.41, and not broad omnibus authority of RCRA, Section 3005(c)

(3));In the Matter of Beazer East, Inc. and Koppers Indus., Inc., 4 E.A.D. 536, A. M. 40132 (EAB 1993) (EPA cannot adopt abbreviated

modication procedures, but must follow existing modication requirements under §270.41).

10. See U.S. EPA, Corrective Action and Permits, OSWER Dir. 9525.1988(01), 1988 WL 525207 (Feb. 1988).

11. 45 Fed. Reg. 33290, 33314.

12. 40 C.F.R. §270.30(l)(1)(2). See also discussion at 45 Fed. Reg. 33290, 33314.

13. EPA explained that requiring the information to be available at the time of permit issuance will ensure that the permit writer cannot modify a

permit because a mistake was made at the time of permit issuance. See 45 Fed. Reg. 33290, 33915 and U.S. EPA, Corrective Action and Permits,

Box 6.2

Cau ses to Mo dify a Pe rmit

Alterations

New informat ion

New statutor y/regulato ry

requirements

Complia nce s chedules

Land disposa l fac ilities

Permit termin ation

Permit transf er