RCRA Permits

• Author: Susan M. McMichael
• Pages: 55-78

Page 55

Chapter 3

RCRA Permits

3.0 Introduction

One of the cornerstones of the hazardous waste management program is the issuance of permits

to TSDFs . . . . Most of Congress’ policy objectives can only be realized through the issuance and

enforcement of permits.1

e RCRA permit is key to ensuring the safe management of hazardous a nd radioactive mi xed wastes. Once

a permit is issued, compliance operates as both a sword and a shield. e permit shields the facility from

enforcement by dening the lega l requirements that a facility must follow to manage hazardous waste. It is

also a sword, enforceable by EPA, the st ate permitting agency, and t he public, through citizen lawsuits. As a

result, RCRA’s eectiveness in controlling and managing hazardous waste can be measured by t he terms and

conditions of the permit. e proof, it has been sa id, “is in the permit.”2 is chapter provides an overview of

RCRA permit requirements (Sections 3.1 and 3.2), permit exemptions (Section 3.3), types of permits (Section

3.4), and permitting as enforcement (Section 3.5). It also outlines EPA’s permit initiatives, developed primarily

to simplify the permit process (Section 3.6).

3.1 Overview of the RCRA Permit Requirement

RCRA Subtitle C requires a permit for any person who treats, stores, or disposes hazardous waste. ese activi-

ties occur in speci c hazardous waste management units, categorized according to EPA process codes that are

identied in the Part A permit application (see Chapter 4.2.1). According to EPA’s 2009 biennial data, approxi-

mately 39 million tons of hazardous waste are managed annually.3 e EPA data also show that RCRA storage

permits are by far the most common type of unit for mana ging ha zardous waste.4 Storage permits are issued

for containers, tanks, waste piles, surface impoundment storage, drip pads, containment building storage,

and other storage devices. Treatment permits, which are not as common, are issued for ma ny dierent types of

treatment units, such as tank treatment, surface impoundment treatment, incinerators, boilers, open burn and

open denotation (OB/OD), and other treatment devices, such as thermal, sedimentation, lters, and others.

Disposal permits, on t he other hand, are issued for landlls, land application, ocean disposal, surface disposal,

underground injection wells (UIC), and other disposal methods (see Table 3.1).

ree basic questions arise when determining whether a RCRA permit is needed to manage hazardous

waste: (1) scope; (2) permit exemptions; and (3) types of permits available. For hazardous wa ste, the permit

1. S. R. N. 97-445, 97th Cong., 2d Sess. 2 (May 27, 1982).

2. is term was coined by the New York Public Interest Research Group, in a publication addressing Title V Permits, e Proof Is in the Permit:

How to Make Sure a Facility in Your Community Gets an Eective Title V Air Pollution Control Permit (June 19, 2000), available at www.epa.gov/

oar/oaqps/permits/partic/proof.html.

3. U.S. EPA, N A: T N RCRA B H W R (based on 2009 Data) (2010) (note, this data does

not include hazardous waste that was stored, bulked, and/or transferred o-site with no prior treatment/recovery, fuel blending, or disposal).

4. U.S. EPA, RCRA Training Module, Introduction to Containers, EPA530-K-05-010, at 1 (Sept. 2005) (container storage permits one of the most

commonly used devices). Note, EPA’s Envirofacts database contains information on the type and number of RCRA permitting units nationwide,

available at www.epa.gov/enviro/html/rcris/rcris_query_java.html.

Page 56 RCRA Permitting Deskbook

requirement took place in most states on November 19, 1980, the date EPA’s hazardous waste program rules

became eec tive.5 For mixed wa ste, however, the permit requirement varies state-by-state, and took eect on

the date the state received EPA authorization for mixed waste (see Appendix 2).6 For most states, this occurred

during the early 1990s.

3.2 Scope of Permit Requirement

3.2.1 Owner and Operator

e permit requirement applies to the owner and operator of a facility that treats, stores, or disposes hazardous

waste under §270.1. EPA rules at §260.10 dene owner as “the person who owns a facility or par t of a facility”

and operator as “the person responsible for the overall operation of a facility.” Congress imposed this broad

requirement so that “responsibility for complying with the regulations . . . rests equally with owners and opera-

tors of hazardous waste treatment, storage or disposal sites and facilities where the owner is not the operator.”7

ere is a signicant body of federal and state case law interpreting what constitutes an owner or operator

subject to RCRA’s permit requirement. Although the issue may appear relatively straightforward for permit

applicants, this is far from the case when liability is at issue. A few principles can be derived from these cases.

5. U.S. EPA, Hazardous Waste Management System, 45 Fed. Reg. 33156, 33290 (May 19, 1980) [hereinafter 1980 Preamble].

6. U.S. EPA, State Authorization to Regulate the Hazardous Components of Radioactive Mixed Waste Under the Resource Conservation and Recovery

Act, 51 Fed. Reg. 24504 (July 3, 1986) and Clarication of Interim Status Qualication Requirements for the Hazardous Components of Mixed

Radioactive Waste, 53 Fed. Reg. 37045 (Sept. 23, 1988) (EPA claried that radioactive mixed waste would not be subject to RCRA regulation

until the state received EPA authorization). See also State of New Mexico v. Watkins, 969 F.2d 1122, 1129-30, 22 ELR 21262 (D.C. Cir. 1992)

(permit requirement not applicable for mixed wastes until the date a state received EPA authorization); State of New Mexico ex rel. Madrid v.

Richardson, 39 F. Supp. 2d 48, 52, 29 ELR 21006 (D.D.C. 1999) (WIPP facility was rst subject to the permit requirement on July 25, 1990,

the date New Mexico received state authorization for mixed waste).

7. H.R. R. No. 94-1491, 94th Cong., 2d Sess. 27-28 (1976).

Table 3.1

Hazardo us Waste Treatment, Storag e, and Disp osal Units

Management Method Type of Unit

Disposal Landll

Surface Impoundment

Land Application

Underground Injection Well

Ocean Disposal

Storage Container

Tank Storage

Surface Impoundment

Drip Pad

Waste Pile

Containment Building

Treatment Tank

Surface Impoundment

Incinerator

Boiler/Kiln/Furnace

Containment Building

Subpart X Open Burning/Open Detonation

Mechanical Processing

Thermal Unit

Geologic Repository, e.g., WIPP