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Concepts and approaches to help navigate the permitting process and write effective permits. By: Dave Bartus USEPA Region 10, Seattle Zen and the Art of Permit Writing 2

This Webinar should in no way be associated with that great body of information relating to orthodox Zen Buddhist practice. It is intended to be somewhat more factual on the topic of hazardous waste permitting. It has very little to do with motorcycles. 3

What Will We Cover?  Ways of thinking about permits and the permitting process;  Approaches that may help streamline the permitting process and improve the quality of permits;  Resources that may be helpful. This Webinar will NOT teach you to be a permit writer – hopefully, it will help you become a better permit writer. Becoming a good permit writer is a process, not an event. 4

What Will We Cover? (Cont’d)  What is a Permit?  The Permitting Process  The Permit Application  The Permit  References 5

6 What is a Permit?

A permit is:  A binding and legally enforceable document that  Establishes the waste management activities a facility can conduct, the conditions under which it can conduct them, and the corresponding technical and administrative conditions and that  Ensures compliance with applicable hazardous waste regulations in a manner protective of human health and the environment specific to the permitted facility and that  Provides a means by which regulators can track waste management at facilities that choose to handle hazardous waste. 7

What is a Permit? (Cont’d) The Golden Rules of Permitting  Equivalent - Ensures compliance with the applicable regulations in a manner protective of human health and the environment;  Enforceable - Provides clear and specific requirements in the permit conditions;  Implementable - Ensures permit requirements reflect actual and planned facility operations, conditions and capabilities. 8

9 The Permitting Process

 The permitting process can be labor and resource intensive. Like many complex products and processes, careful planning and execution can pay dividends.  The overall permitting process is well documented in the regulations (e.g., 40 Code of Federal Regulations [C.F.R.] Part 270) and guidance. What are some of the ways to help ensure the process functions efficiently and effectively? 10

The Permitting Process (Cont’d) Think in project management terms.  Break down the process into discrete steps, then establish the schedule and resource needs for each step and the dependencies between the various steps. This will help ensure that the permitting process is not open- ended, and can be completed within given schedule and resource constraints. 11

The Permitting Process (Cont’d) Be a good generalist and integrator.  Permitting typically requires knowledge and experience in a broad range of specialty areas (e.g., hydrogeology, chemistry, engineering, etc.). Few if any permit writers are experts in all subject matter areas associated with permitting. Permit writers, however, should have enough broad, general knowledge to identify and manage a broad range of issues and to integrate support from subject matter experts into a cohesive permit. Don’t feel like you need to be an expert in everything. 12

The Permitting Process (Cont’d) Relationships and communications matter.  Building an effective working relationship with the facility/permit applicants is essential. Permit applicants and the permitting authority will always have differences at some point in the permitting process. An effective working relationship will help ensure these differences become the basis for a solution, not a barrier. 13

The Permitting Process (Cont’d) Establish priorities.  Generally, permit elements such as the waste analysis plan, process description, and closure are the most detailed and complex. Plan on focusing on these permit application and permit sections. 14

The Permitting Process (Cont’d) Establish roles and responsibilities.  The Permit Writer – responsible for helping to interpret and communicate regulatory requirements, and applicable guidance, and drafting the permit based on the permit application.  The Facility Owner/Operator – responsible for documenting their waste management process, preparing and submitting the permit application. 15

The Permitting Process (Cont’d) Be engaged.  Permit writers should get to know not only the facility representatives and their consultants, but the facility itself. Make every effort to visit the facility to get first-hand information about the facility that complements the description in the permit application. Ideally, do this before the initial submission of the complete permit application – this will help provide meaningful facility-specific guidance to the permit applicants. It will also help you become aware of issues that need to be addressed that might not be mentioned in the permit application. 16

Distinguish between standard elements of the permit application (e.g., Part A of the permit application) and what is inherently facility-specific.  Standard elements – generally straight-forward and require little input from or consultation with the permitting agency.  Facility-specific elements - typically require much more extensive interaction with regulators. 17 The Permitting Process (Cont’d)

Find and use a good model permit.  In permit writing, not only is plagiarism OK, but encouraged!  Many parts of a permit (e.g., standard and general permit conditions) can and should be standardized and consistent from permit to permit.  While each permit is site-specific, make liberal use of existing permits that have been thoroughly reviewed and proven to work over time as the starting point for each new permit. 18

The Permitting Process (Cont’d) Make appropriate use of checklists.  Permit applications and permits must consider and address a very significant amount of information. Checklists can help you organize the development and review process, particularly with respect to completeness. Remember, though, that good checklists do not a good permit make. You still have to ensure that the information associated with each checklist item is acceptable and suitable for drafting a permit that ensures compliance with the regulations and protection of human health and the environment. 19

20 The Permit Application

 The permit application is central to the permitting process. Unless a complete and adequate permit application is available to the permitting agency, the permitting process will fail. What are some of the things to think about with regard to the permit application? 21

The Permit Application (Cont’d) Think of the permit application in terms of the following functions:  Provides information required by permit application regulations;  Provides a broad overview of the facility and its operations to allow the permit writer to make his/her independent evaluation of what wastes and waste management processes are regulated. Thus, the permit application will typically have additional information beyond what will be included in the final permit;  Provides sufficient detail about wastes to be accepted for treatment, storage, or disposal so that the permit writer can evaluate whether the wastes can be safely and compliantly managed in the proposed facility;  Provides sufficient detail about waste management equipment and processes so that the permit writer can evaluate whether the processes can be safely operated in compliance with regulations;  Provides sufficient detail that the permit writer can develop permit conditions necessary to authorize what is proposed in the permit application. 22

The Permit Application (Cont’d)  Much of the substantive content of the final permit should be included in the permit application. For example, waste analysis plans, groundwater monitoring plans, closure plans, etc. all should be suitable for inclusion in the permit directly from the permit application without revision.  The organization of the permit application and the permit should be parallel. Thus, much of the permit application, such as the sections noted above, can be included directly into the permit.  Stand-alone sections of the permit application (closure plan, waste analysis plan, training plan) generally have introductory and background information included. However, all substantive elements need to be clear, concise and enforceable. When included in a permit, they function just like permit conditions. 23

The Permit Application (Cont’d) Corrective Action  For most facilities, information necessary to evaluate the need for facility-wide corrective action should be developed during the permit application process. Generally, a RCRA Facility Assessment, and possibly a RCRA Facility Investigation, should be completed during the permit application development process.  Since permits must contain schedules of compliance for corrective action, don’t worry about getting to a fixed point in the corrective action process during the permit application stage. 24

25 The Permit

Drafting a Permit  An established or model permit is normally the best place to start.  Take advantage of the analysis and review that went into an existing permit, and don’t feel like you have to reinvent the wheel.  As you and your permitting organization develop skill and experience, the model permit will serve as institutional knowledge. 26

The Permit (Cont’d) Level of Detail  Regulatory requirements and the corresponding permit conditions vary in their complexity, and may vary by the type of waste management unit.  For example, closure of a container storage unit is generally (but not always!) fairly straight-forward. Closure of a land disposal unit, however, is far more complex.  Corresponding permit requirements should reflect this level of complexity, and potential for environmental harm if activities are not properly conducted. A container storage closure plan may be fairly compact and straight forward, while the closure plan for a landfill will be very complex, and include detailed engineering designs, material specifications, construction quality assurance/quality control, etc. 27

The Permit (Cont’d) Language  Permit language should, of course, be clear, concise and to- the-point.  Consider “plain English” concepts, but remember, permits are legally enforceable documents – they do not always fully lend themselves to conversational language. Often, detailed language is necessary.  Wherever possible, draft permit conditions to establish affirmative obligations on the part of the Permittees. Avoid background information (that belongs in the permit application) and conditions that apply to the permitting agency. Use “Shall,” “Will,” or “Must,” not “May” or “Should,” unless a requirements is intentionally discretionary on the part of the Permittee.  Use language, including definitions and terms, directly from the regulations wherever possible. Wherever possible, avoid use of new terms or concepts not in the regulations, and use of multiple nouns or phrases for the same item or concept. 28

The Permit (Cont’d) Permit as a Shield  Compliance with a RCRA permit during its term constitutes compliance, for purposes of enforcement, with subtitle C of RCRA, with only certain exceptions (requirements that become effective by statute, LDR, minimum technology and organic air emissions requirements). This means that:  Permit conditions become the enforceable requirements with which the Permittees must comply;  Permit conditions must be complete – requirements omitted from the permit are not enforceable (except for the exceptions noted above). 29

The Permit (Cont’d) Drafting Permit Conditions  “Each […] permit shall include permit conditions necessary to achieve compliance with the Act and regulations, including each of the applicable requirements specified in parts 264 and 266 through 268 of this chapter. In satisfying this provision, the [permitting official] may incorporate applicable requirements […] directly into the permit or establish other permit conditions that are based on these parts.” (40 CFR (b)(1))  Incorporation of requirements into the permit may be done directly (recite the regulatory text in the permit) or by reference. Be sure to cite the specific regulatory provision incorporated by reference.  Some requirements are very straightforward (for example, “A container holding hazardous waste must always be closed during storage, except when it is necessary to add or remove waste”) and do not need to be modified on a facility-specific basis. These requirement can easily be incorporated by reference.  Other requirements are inherently site-specific (e.g., a closure plan, a groundwater monitoring plan). These requirements must always be developed on a site-specific basis.  For permit conditions developed on a site-specific basis, be sure to 1) have a specific authority upon which the permit condition is based and 2) have a defensible technical basis for the permit condition. 30

The Permit (Cont’d) Omnibus Authority  Some hazardous waste management practices may pose threats to human health and the environment that are not specifically addressed by the RCRA regulations. Omnibus authority provides authority to establish permit requirements to ensure these practices are conducted in a manner protective of human health and the environment.  “Each permit issued under section 3005 of this act shall contain terms and conditions as the Administrator or State Director determines necessary to protect human health and the environment.” [40 C.F.R (b)(2)] Note that this authority imposes an affirmative obligation on the permitting authority to exercise omnibus authority. Exercise of omnibus authority is not discretionary – it must be exercised when the permitting authority has a basis to determine that some aspect of treatment, storage or disposal at a facility seeking a permit requires regulatory control to be protective. 31

The Permit (Cont’d) Drafting a Permit  When drafting a permit, make frequent use of review by legal counsel and compliance staff. 32

The Permit (Cont’d) Drafting a Permit  Make extensive use of your colleagues. Frequent consultation, including “hallway” conversation, is a great way to learn from each other, draw from each other’s strengths, build institutional memory, and get support on complex issues. 33

The Permit (Cont’d) The Fact Sheet and Statement of Basis  The fact sheet and statement of basis that accompanies a draft permit is just as important as the permit itself.  The fact sheet/statement of basis serves two key functions:  It provides the public a road map to the draft permit to assist them in reviewing and commenting on the permit.  It serves as the explanation of the agency’s basis and rational for each and every condition and requirement of the permit.  If there is an appeal of the permit, the fact sheet/statement of basis plays a key role in the adjudication process.  The fact sheet/statement of basis should explain how the permitting process considered applicable guidance, both when it follows the guidance, and when it deviates from it. Both are important! 34

The Permit (cont’d) The Administrative Record  The draft permit must be supported by a complete and documented Administrative Record.  The Administrative Record must include all information and communication considered by the permitting agency in developing the draft permit, including the permit application and all related documents associated with the permit application.  Typically, the last entry in the Administrative Record is the response to comment document following public notice and comment and preceding final signature of the permit. 35

36 References

 Hazardous Waste Treatment, Storage, and Disposal Facilities (TSDF) Regulations, A User-Friendly Reference Document for RCRA Subtitle C Permit Writers and Permittees, EPA 530-R , 12/1/ This guidance includes references to a wide range of federal register publications related to hazardous waste permitting regulations, as well as permit appeal documents. Hazardous Waste Treatment, Storage, and Disposal Facilities (TSDF) Regulations, A User-Friendly Reference Document for RCRA Subtitle C Permit Writers and Permittees, EPA 530-R , 12/1/2014  Waste Analysis at Facilities that Generate, Treat, Store, and Dispose of Hazardous Waste – Final, EPA 530R , April This guidance discusses how a person can perform waste analyses and develop waste analysis plans (WAPs) in accordance with federal hazardous waste regulations of the Resource Conservation and Recovery Act. Waste Analysis at Facilities that Generate, Treat, Store, and Dispose of Hazardous Waste – Final, EPA 530R , April

References (Cont’d)  RCRA Online – Search letters, memoranda, publications and questions and answers issued by EPA's Office of Resource Conservation and Recovery (ORCR). These documents represent EPA Headquarters interpretations of the RCRA regulations governing the management of solid and hazardous waste. RCRA Online 38

References (Cont’d) Groundwater Monitoring Resources  Handbook of Groundwater Protection and Cleanup Policies for the Resource Conservation and Recovery Act (RCRA) Corrective Action, EPA 530-R , April Designed to help TSDF owners/operators find and understand EPA’s policies concerning groundwater protection and cleanup. Handbook of Groundwater Protection and Cleanup Policies for the Resource Conservation and Recovery Act (RCRA) Corrective Action, EPA 530-R , April 2004  RCRA Training Module: Introduction to Groundwater Monitoring, EPA 530-K I, October Provides an introduction to the groundwater requirements for TSDFs. RCRA Training Module: Introduction to Groundwater Monitoring, EPA 530-K I, October 2001  RCRA Orientation Manual: Chapter 3 - Regulations Governing Treatment, Storage and Disposal Facilities, EPA 530-F , October Provides introductory information on the groundwater monitoring requirements for hazardous waste TSDFs. RCRA Orientation Manual: Chapter 3 - Regulations Governing Treatment, Storage and Disposal Facilities, EPA 530-F , October 2014  RCRA Technical Enforcement Guidance Document, EC-G , September This document describes the essential components of a ground water monitoring system that meet the goals of RCRA. RCRA Technical Enforcement Guidance Document, EC-G , September

References (Cont’d)  EPA RCRA Corrective Action Web Page - This web page includes extensive references, policy and guidance regarding the RCRA corrective action process and program requirements. EPA RCRA Corrective Action Web Page 40

References (Cont’d) Project Management Resources  A Guide to the Project Management Body of Knowledge (PMBOK Guide), 5 th Edition (2013). The Project Management Institute, ISBN

42 Questions?