Use of Temporary Authorizations in RCRA Permitting

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Use of Temporary Authorizations in RCRA Permitting

By: George Colvin, CPG, CHMM

Under RCRA, facilities managing hazardous waste must obtain a permit from their regulatory authority (i.e., the state or EPA). The purpose of the permit is to detail how a facility must comply with the RCRA regulations to ensure that hazardous waste management activities are conducted so as to prevent and address releases that could threaten public health and the environment and lead to potential cleanup obligations. These permits are site-specific and establish the technical and administrative standards to which a facility must adhere to legally and protectively manage hazardous waste. Thus, it is critical that modifications to the permit are made as necessary to enable the facility to effectively continue to operate treatment, storage, and disposal units. Changes to permit conditions are often required to keep pace with evolving business practices, technology, cleanup decisions, and regulations. For example, permit modifications allow facilities to update technological systems, comply with new environmental standards, respond to changing waste streams, address financial assurance requirements, or simply improve their hazardous waste management practices. These changes in turn can support enhanced operational efficiency, economic development, conservation of resources, improved prevention of environmental releases, and cleanup progress.

The regulations for permittee-requested modifications establish three classes of modifications. Class 1 modifications cover routine changes, such as correcting typographical errors or replacing equipment with functionally equivalent equipment. Class 2 modifications address common or frequently occurring changes needed to maintain a facility’s level of safety or a facility’s requirement to conform to new regulations. Class 3 modifications cover major changes that substantially alter the facility or its operations. Procedures differ among the three classes of permittee-requested modifications based on the degree of change. Class 1 modifications have minor administrative requirements and may or may not need prior Agency approval. Class 2 and 3 modifications have more substantial administrative requirements and require prior Agency approval.  All three typically involve some level of public involvement.

Upon the request of a permittee, the Director may in some cases, grant the permittee a temporary authorization without prior public notice and comment.  Temporary authorizations can be used to address a onetime or short-term activity at a facility for which the full permit modification process is inappropriate or to allow a facility to initiate a necessary activity while its permit modification application is undergoing the Class 2 or Class 3 review process. The federal rules regarding temporary authorizations are at 40 CFR 270.42(e)(1)

In accordance with 40 CFR 270.42(e)(3), to issue a temporary authorization, the Director must find:

  1. The authorized activities are in compliance with the standards of 40 CFR part 264 (Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities).
  2. The temporary authorization is necessary to achieve one of the following objectives before action is likely to be taken on a modification request:
    • to facilitate timely implementation of closure or corrective action activities;
    • to allow specific treatment or storage in tanks or containers, or in containment buildings in accordance with 40 CFR part 268 (land Disposal Restrictions);
    • to prevent disruption of ongoing waste management activities;
    • to enable the permittee to respond to sudden changes in the types or quantities of waste managed under the facility permit; or
    • to facilitate other changes to protect human health and the environment.

According to 40 CFR 270.42(e)(2)(ii), the temporary authorization request must include the following:

  • a description of the activities to be conducted under the temporary authorization;
  • an explanation of why the temporary authorization is necessary; and
  • sufficient information to ensure compliance with 40 CFR part 262 standards.

Temporary authorizations must have a term of not more than 180 days but may be reissued for one additional term of up to 180 days provided that the permittee has requested a Class 2 or 3 permit modification for the activity covered in the temporary authorization.  The permittee must send a notice about the temporary authorization request to all persons on the facility mailing list maintained by the Director and to appropriate required units of state and local governments.  This notification must be made with seven days of submission of the authorized request.  State requirements for temporary authorization can vary between authorized states and should be consulted.

Temporary authorizations can be a useful tool for permitted facilities in the right situation.  Given that the permitting agency is typically required to approve or deny a temporary authorization as quickly as practical [(40 CFR 270.42(e)(3)] and the additional complications inherent to submitting a successful temporary authorization, it is critical to discuss the temporary authorization with your state agency ahead of time.  In many cases, use of the temporary authorization is the best option for both the facility and the permitting agency.  This shared goal can lead to an improved working relationship among the parties.

Cox-Colvin is well versed in hazardous waste permit modifications, including temporary authorizations.  We have assisted our permitted facility clients in obtaining temporary authorizations to facilitate timely implementation of closure, to prevent disruption of ongoing waste management activities; and to facilitate changes necessary to protect human health and the environment.  For additional information on Temporary Authorizations contact the author or Nick Petruzzi.

Published in Cox-Colvin’s January 2019 Focus on the Environment newsletter.

George H. Colvin is a hydrogeologist with over 30 years of consulting experience. Much of his experience has focused on RCRA Corrective Action, RCRA closure, and groundwater investigation, monitoring, and cleanup. He holds a BS in Geology from Ohio University and MS in geology and hydrology from Vanderbilt University. He is a Certified Professional Geologist with the American Institute of Professional Geologists, a registered geologist in Kentucky, Pennsylvania, and Tennessee, and a Certified Hazardous Materials Manager.