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Zen and the Art of
Permit Writing
Concepts and approaches to help navigate
the permitting process and write effective
permits.
By: Dave Bartus
USEPA Region 10, Seattle
2
Zen and the Art of
Permit Writing
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
What is a Permit?
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
The Permitting
Process
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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 openended, 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
The Permitting Process
(Cont’d)
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
The Permit
Application
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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
The Permit
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 tothe-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 270.32(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. 270.32(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
References
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-11-006, 12/1/2014 - This
guidance includes references to a wide range of federal
register publications related to hazardous waste
permitting regulations, as well as permit appeal
documents.

Waste Analysis at Facilities that Generate, Treat, Store,
and Dispose of Hazardous Waste – Final, EPA 530R-12001, April 2015 - 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.
37
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.
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-04-030, April 2004 - Designed to help TSDF
owners/operators find and understand EPA’s policies
concerning groundwater protection and cleanup.

RCRA Training Module: Introduction to Groundwater
Monitoring, EPA 530-K-02-010I, October 2001 - Provides an
introduction to the groundwater requirements for TSDFs.

RCRA Orientation Manual: Chapter 3 - Regulations Governing
Treatment, Storage and Disposal Facilities, EPA 530-F-11-003,
October 2014 - Provides introductory information on the
groundwater monitoring requirements for hazardous waste
TSDFs.

RCRA Technical Enforcement Guidance Document, EC-G-2002130, September 1986 - This document describes the essential
components of a ground water monitoring system that meet
39
the goals of RCRA.
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.
40
References (Cont’d)
Project Management Resources

A Guide to the Project Management Body of
Knowledge (PMBOK Guide), 5th Edition (2013). The
Project Management Institute, ISBN 978-1-935589-67-9
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Questions?
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