Negotiating a RCRA Part B Permit


Anyone who has ever read the first draft of a Resource Conservation and Recovery Act ("RCRA") Hazardous Waste Part B permit for a hazardous waste treatment, storage or disposal facility knows that EPA or the delegated state agency takes a much more programmatic, rather than facility-specific, approach to permit drafting. This article discusses a few aspects of the RCRA Part B permit that are programmatic, but negotiable and, more importantly, specific steps the permittee can, and perhaps should, take to make the permit more facility-specific and to better define the scope and details of various action-forcing requirements, such as corrective action, before the permit is issued in final form.

The RCRA Permit Program

While the purpose of this article is not to provide a detailed discussion of the nature of and basis for the RCRA permit program, or an extended discussion of the administrative process applicable to the issuance of such permits, we do begin with a brief overview of the RCRA permit program. We will then review the structure and elements of the typical Part B permit. Finally, we will turn to the focus of this article: thesteps the permittee can take to make the permit more user-friendly, and which parts of the programmatic permit are negotiable.

Who Is Required to Have a Permit?

RCRA was enacted for the primary purpose of creating a program to regulate, "from cradle to grave," the storage, transportation, treatment and disposal of essentially all types of hazardous wastes from all significant sources. The primary elements of the cradle-to-grave management program are the promulgated standards applicable to owners and operators of hazardous waste treatment, storage and disposal facilities, and the permit requirements.

Because of the enormous number of entities subject to the permitting requirements and the anticipated time needed to process a detailed permit application, the permit requirements were implemented in two phases. Initially, any person obligated to obtain a permit was required to file a preliminary notification giving the location of the facility and a general description of its hazardous waste management activities, to file an initial permit application and to comply with the interim status facility regulations. Such persons were deemed to have a Part A permit until a final administrative decision was made on the permit application and a detailed Part B permit was issued or the application was denied.

The Hazardous and Solid Waste Amendments of 1984 ("HSWA") imposed additional requirements and limitations on the regulatory program. For example, interim status surface impoundments were required to meet new technical construction standards or be closed; new technical standards for the construction of land disposal units and restrictions or prohibitions on the land disposal of certain waste types were imposed; and the first permit issued to any facility after the enactment of HSWA was required to contain corrective action requirements for all releases of hazardous waste or hazardous constituents from any solid waste management unit at the facility, regardless of the time at which the waste was placed in the unit. The HSWA requirements were implemented through the promulgation of both new regulations and significant revisions to the regulations promulgated in 1980.

Where the operator of an interim status facility elects to close the facility before issuance of a Part B permit, the operator is required to obtain a post-closure Part B permit encompassing any surface impoundment, landfill or similar land disposal unit which received hazardous waste after July 26, 1982, and which was not "closed clean." The post-closure Part B permit must also contain applicable corrective action requirements.

The Permit Issuance Process

After submitting the Part A permit application to obtain interim status, the permittee is authorized to operate under interim status until a final administrative determination is made on its Part B permit application or the facility is closed in accordance with the interim status closure standards. The Part B permit application need not be submitted until it is called in by EPA or the state agency delegated the authority to administer the RCRA program.

The Part B permit application is quite detailed; it requires facility-specific information and a demonstration that the facility meets all of the applicable regulatory criteria and is being operated in accordance with all of the applicable standards in 40 C.F.R. Parts 261-264 and 267-268. The application is not complete until the permitting authority determines that all of the required information has been provided and the permittee has demonstrated compliance with the applicable regulatory criteria.

Public Comment Period

Once the permitting authority has determined that the Part B application is complete, it must issue either a draft permit, signaling its tentative decision to grant the application, or a statement of its reasons for denying the application. The completeness determination and draft permit are provided to the applicant and published for a minimum of 45 days for public comment. The applicant's basic opportunity to challenge any part of the draft permit is through the submission of detailed written comments during the public comment period, with detailed factual, technical and/or legal justification for each separate comment.

During or following the closure of the written comment period, the agency has the discretion to schedule and conduct a legislative-type public hearing. A hearing will be scheduled whenever the agency receives notice of opposition to the draft permit. Once the administrative record closes, the permitting authority may issue the final permit in the same form as the draft, issue the final permit with changes from the draft or deny the application stating the reasons therefor. Any person who filed comments on the draft permit or who participated in the public hearing may petition the EAB to review any condition of the permit decision.

Appeal Process

Any other person may petition to review only those conditions that changed from the draft to the final permit decision. EAB review is typically granted when there is a claim that a finding of fact or conclusion of law is clearly erroneous, or there was an exercise of discretion or an important policy consideration that the EAB should review. Such an appeal is necessary in order to exhaust administrative remedies. The final appeal is to the appropriate United States Circuit Court of Appeals. Matters with respect to which review could have been obtained during the permit issuance process are not subject to judicial review in civil or criminal enforcement proceedings.

When the permit issuing authority is a delegated state agency, it is important to recognize that, while the federal program establishes the minimum technical and procedural requirements, state technical standards and procedural requirements may vary from the federal program in several respects. For example, the technical standards in a state-issued permit may be stricter, or there may be a grant of authority for the imposition of special conditions. The state permitting process might also be subject to environmental impact review procedures, or additional state permits or a siting certificate may be required. Additional procedural safeguards may also be available. Knowing and understanding the applicable state requirements and procedures, obviously, is essential.

The Part B Permit

There are certain conditions that must be included in all permits. The permitting authority is also authorized to establish additional conditions regarding permit duration, schedules of compliance and monitoring on a case-by-case basis.

Module I

The RCRA Part B standard form permit is organized into modules, each of which addresses a particular aspect of the facility or particular program requirements applicable to the facility as a whole. Module I of the permit contains those standard conditions set forth at 40 C.F.R. Part 270, which must be included in every Part B permit. These include, among others, conditions setting forth the permittee's duty to comply with the permit terms and the effect of such compliance (i.e., compliance with the permit constitutes compliance for purposes of RCRA Subtitle C enforcement); reporting and recordkeeping requirements; conditions regarding the duration of the permit and its renewal; and definitions of relevant terms. Module I might also include conditions relating to the agency's authority to revise a permittee's submissions to the issuing agency and the incorporation of the revised submissions into the permit.

Module II

Module II concerns the facility as a whole and, depending on the type of facility involved, might include little more than a general facility description. In appropriate circumstances, however, (e.g., a commercial hazardous waste treatment and disposal facility), this module might also include detailed conditions regarding general design and operation requirements, facility security, personnel training, contingency planning and financial assurance requirements.

Module III

Module III is the corrective action module. It provides an overview of the corrective action process, including a general description of each phase of the process; identifies and describes each of the facility's solid waste management units ("SWMUs") and the current regulatory status of each; and sets forth the specific conditions governing the permittee's corrective action obligations.

The content of the remaining modules of the Part B permit depends on the nature of the activities conducted at the facility and the types of waste management units present on-site. For example, the permit might contain modules addressing the facility's waste minimization requirements; compliance with applicable air emission standards; compliance with land disposal restrictions; or conditions governing the operation, inspection, monitoring, closure and post-closure care of individual hazardous waste management units, such as surface impoundments, landfills or tanks.

EAB Decisions Impacting the Programmatic Permit Provisions

Since the typical draft RCRA Part B permit is generic and programmatic, it leaves almost all site-specific requirements to be dictated by the permitting authority after the permit has been issued in final form, when the permittee has no meaningful recourse. As a result, several aspects of the programmatic permit have been the subject of permit appeals to the EAB. A number of appeals have focused on the generic corrective action requirements in Module III of the permit. This section reviews the more significant EAB determinations.

Dispute Resolution

The corrective action process generally involves three major stages. The first phase is the RCRA Facility Investigation ("RFI"), the purpose of which is to characterize both the nature and extent of any releases from the SWMUs at the facility. The RFI is followed by a Corrective Measures Study ("CMS") to evaluate potential remedial approaches. Based on the RFI and CMS, the permitting agency selects the remedial measures it deems appropriate and modifies the permit to require implementation of the selected remedy. In addition, the permit includes a mechanism to address, via interim measures, those releases that the permitting authority concludes pose an imminent threat to human health or the environment, without awaiting the completion of the RFI and CMS process.

Corrective action at a facility is carried out according to a schedule of compliance, set forth in the permit, which prescribes those tasks that must be accomplished within specified time periods. However, because the full nature and extent of the contamination at a facility typically is unknown at the time the permit is issued, the issuing agency will have insufficient information to set forth, with any degree of particularity, those tasks which must be undertaken to fully characterize a release and to evaluate the most effective remedial measures.

Consequently, the permit's schedule of compliance will contain merely an outline of the RFI and CMS procedures. The details of the process and the permittee's obligations under the permit then emerge through a series of interim submissions in which the permittee proposes plans for carrying out the various steps of the RFI and CMS and reports on the individual tasks as they are completed. Each of the plans and reports is subject to review and revision by the agency. Upon approval, the interim submissions, as revised by the agency, are incorporated into the permit and thus become enforceable permit obligations. By this process, the general obligations set forth in the original permit are infused with substance through the permittee's interim submissions, as modified by the agency.

Since the details of the permittee's corrective action obligations are typically not included in the permit as originally issued, some permit holders have challenged their permits on the ground that the agency's revision of its interim submissions constitutes a permit modification and should be subject to the formal modification procedures prescribed by 40 C.F.R. §§270.41 and 124.5. While this position has been uniformly rejected, the EAB has acknowledged that, because they can materially and substantially affect the scope of the permittee's obligations under the permit, such revisions constitute a deprivation of property within the meaning of the due process clause of the United States Constitution.

Therefore, the permittee must be given adequate notice and an opportunity for a hearing before the agency's revisions become an enforceable part of the permit. In other words, there must be some sort of dispute resolution mechanism which the permittee may invoke in the event the permittee disagrees with the revisions the agency seeks to impose. Exactly what this dispute resolution mechanism must entail to protect the permittee's due process rights has been the subject of numerous permit challenges before the EAB.

Consideration of the parameters of the dispute resolution mechanism has focused on three issues, the first being who should be the final arbiter of the dispute between the permittee and the agency. In this regard, the EAB has concluded that, since revisions to the interim submissions can have significant financial consequences for the permittee (perhaps commensurate with those flowing from the terms of the original permit), the person who has final authority to issue the permit in the first instance must also be the person who resolves disputes over the proposed revisions. Generally, this person is either the Regional Administrator or a Division Director to whom permit issuance authority has been delegated.

The second issue is whether the conclusion of the decision-maker must be deemed final agency action, such that the administrative determination will be subject to immediate judicial review. On this point, the EAB has taken the position that due process does not require immediate recourse to the courts; it is sufficient that the disputed revision could be challenged in an enforcement proceeding, despite the fact that daily penalties would accrue during the pendency of that proceeding.

The final point of contention is whether the permittee must be afforded an opportunity to make an oral presentation of its arguments to the final decision-maker. Noting that corrective action determinations are based on technical considerations and therefore amenable to effective written presentation, the EAB concluded that oral argument is not required to protect the permittee's due process rights. It strongly urged the agency, however, to include in its dispute resolution procedures an opportunity for the permittee to make an oral presentation of its position to the regional staff prior to submission of the dispute to the final decision-maker.

While EPA has not yet formally promulgated a hearing procedure to address disputes over agency revisions to interim submissions, the regions have developed dispute resolution provisions that are routinely included as a condition to the permit. The elements of the dispute resolution provision typically include the following:

  1. the right of the permittee to submit written statements to, and meet with, regional staff members responsible for making the disputed revisions;
  2. the right to meet with the final decision-maker; and
  3. the issuance of a written decision by the agency responding to the evidence and arguments presented by the permittee.

Facility Specificity

Given the large number of facilities requiring corrective action and the varied histories of such facilities, the regions have found it expeditious to draft permits which set forth generic, boilerplate requirements for the conduct of the RFI and CMS, rather than tailoring these provisions, in each instance, to address the conditions existing at the individual facility for which the permit is issued. In this regard, the regions routinely draw on the language of the agency's proposed Subpart S corrective action regulations, which have never been formally promulgated, and other agency guidance documents in drafting permit conditions. Permit holders, therefore, have challenged their permits on the ground that compliance with such generic conditions results in the imposition of inappropriate and unnecessary burdens.

In response to such challenges, the EAB has made it clear that, to the extent practicable, the permit's corrective action requirements must be tailored to address the conditions existing at the facility in question. Accordingly, the permit must include some "minimum measure of site-specificity to avoid imposing unnecessary requirements on the permittee." However, the EAB also has determined that use of boilerplate conditions is not improper so long as there is sufficient latitude to allow omission of, or deviation from, generic requirements upon providing sufficient justification based on site-specific considerations.

In particular, with regard to incorporation of the proposed Subpart S requirements into a permit, the EAB has cautioned the agency to bear in mind that the proposed regulations do not have the force of law and, at most, represent policy guidance, which may be followed only to the extent appropriate for the individual permit at issue. Since the proposed regulations are nonbinding, their inclusion in the permit is open to attack and must be justified on a case-by-case basis. Thus, for example, a permit condition requiring a Phase I RFI for all SWMUs at a facility has been held inappropriate where a previous RCRA Facility Assessment ("RFA") concluded that no further action would be required at some of the identified SWMUs.

Action Levels

The proposed Subpart S regulations contemplate that a permittee will be required to proceed with a CMS only to the extent the action levels for certain constituents are exceeded in a particular medium. Consequently, the preamble to the proposed regulations indicates that appropriate action levels must be specified in the initial permit, so that both the public and the permittee will be apprised, in advance, of the constituent levels in particular environmental media that will trigger the CMS requirements. Thus, relief from the CMS requirement in those instances where constituent levels do not exceed specified action levels would be self-effectuating. In other words, if evaluation of the permittee's RFI indicates that action levels have not been exceeded for a particular medium in one or more SWMUs, the CMS requirement would not be triggered, and the compliance schedule would simply lapse with respect to the SWMUs involved.

Rather than include the action levels in the permit at the time of issuance, in most cases, the agency has insisted that action levels are more appropriately determined as part of the remedy selection process. As a result of this approach, if the RFI indicates that corrective action is not required for a particular SWMU, termination of the compliance schedule for that SWMU could only be accomplished by requiring the permittee to request a permit modification. However, because the agency's stated position is that action levels should be included in the permit in order to minimize the need for time-consuming permit modifications, where the agency decides to deviate from this approach, it should be required to justify its decision on the basis of facility-specific consideration.

Interim Measures

Where appropriate, a permit may require expedited cleanup of a release which cannot await the completion of the RFI/CMS process. No such interim measures may be required, however, unless necessary to protect human health or the environment. The EAB has stated that the use of this expedited cleanup mechanism should be based on both the magnitude and immediacy of the threat involved, but that the agency need not wait until actual exposure to contaminants has occurred before requiring the permittee to act. If the agency determines that interim measures are warranted, it must initiate a permit modification, in accordance with 40 C.F.R. §270.41.

Negotiating the Permit

This section contains our suggestions for negotiating the Part B permit in those circumstances where the facility owner recognizes that it is engaged in hazardous waste management activities that are subject to the permitting requirements and intends to continue such activities.

Take Charge

While EPA and the delegated state agencies have established certain programmatic requirements, there are significant opportunities for the permittee to take charge of its own permit, and good reasons for it to do so. Once the permittee recognizes that its facility requires an RCRA Part B permit, it should also recognize that the agency will never know as much about the facility, or understand as much about what it takes to operate the facility, as the permittee does. Thus, the permittee would be well served by concentrating its efforts on customizing the generic RCRA permit to the specific circumstances and needs of its facility. This requires a proactive rather than reactive approach.

To make the most of a proactive approach to permitting, the permittee must have a detailed understanding of the intent and requirements of the programmatic permit as well as the underlying regulations. It also requires a recognition that all applicable regulatory requirements must be met, unless a waiver is available and the facility can satisfy the waiver requirements.

As is the case with most first-issue Part B permits, one of the requirements is corrective action -- a potentially costly and time-consuming program that, for the most part, will not improve operating efficiencies and is not necessary for the facility's ongoing hazardous waste management activities. It is, however, required by statute. Perhaps more so than any other, the corrective action module can be significantly improved by the permittee's proactive approach to the process. A proactive approach to development of the corrective action module might include the following:

  1. In developing the facility's list of SWMUs, provide as much site-specific data as are available.
  2. Propose that certain SWMUs be grouped together for purposes of the corrective action RFI/CMS process.
  3. During the permit application and agency review process, develop sufficient field data to allow the agency to determine, before the permit is issued, that qualified SWMUs require no further action or that other SWMUs should be the subject of an RFI.
  4. Comment on the draft permit to be sure that the final permit contains the dispute resolution, facility specificity, action level and other action control factors contemplated by the EAB decisions discussed above.
  5. Where the permittee recognizes that an RFI will be required for certain SWMUs, prepare a site-specific RFI work plan and submit it either as part of the permit application or as a comment on the draft permit. Also insist on negotiating the terms of the RFI work plan to be included in the permit in lieu of the generic boilerplate work plan attached to the generic corrective action module.
  6. To the greatest extent possible, identify and address in the permit the technical requirements that will apply to your facility, and thus minimize those issues that will need to be dealt with after the permit is issued, through submittals that will then be subject to the agency's review, modification and approval/rejection.
  7. Recognize that the agency personnel have a job to do. Develop a working relationship with the permit writer. Avoid hostility if at all possible.
  8. Carefully build the administrative record in the event a permit appeal becomes necessary.

What Is Negotiable?

Considered as a whole, a relatively small percentage of the permit provisions are negotiable. A number of the permit provisions are required by the regulations themselves and, obviously, are not negotiable. A number of other provisions are mandated by EPA's uniform permit modules, which are intended to establish and maintain consistency throughout all of the states.

The permit, however, is negotiable with regard to those provisions that deal with the application of the programmatic requirements to the site-specific conditions of the facility in question. Whether those provisions remain in generic form, with the facility-specific issues to be determined by EPA or the state agency after the permit has been issued -- when the permittee has almost no negotiating leverage -- or the facility-specific issues are addressed in the permit process itself -- where the permittee has the maximum available due process and negotiating leverage -- depends on how proactive the permittee is during the permit application process.

In our experience, for example, negotiating the details of the corrective action program as part of the permit application process has resulted in a much more user-friendly permit than the typical generic corrective action module. Other site-specific issues that might be negotiated during the permit application process include:

  1. The technical details of a groundwater monitoring program.
  2. The technical details of a particular hazardous waste management unit.
  3. All special conditions inserted by the agency in the draft permit pursuant to its "omnibus authority."

While EPA tends to be less communicative and less willing to negotiate permit provisions, most delegated state agencies will make a serious effort to address and resolve the applicant's issues before the final permit is issued.

In Summary

Negotiating a site-specific Part B permit for your facility entails a lot of time and effort, a commitment to achieving the fundamental objectives of the RCRA program and a willingness to take a leadership role in developing the site-specific permit provisions that ultimately your company will be required to implement. In many instances, that is the better alternative when compared to issuance of EPA's standard, programmatic permit.