General Permitting |
- How did we change our permitting approach for hazardous
waste burning incinerators, cement kilns and lightweight aggregate
kilns in the Phase 1 HWC NESHAP?
- Do I need both a RCRA and CAA permit to operate?
- Who is responsible for implementing the Phase 1
HWC NESHAP rule: EPA or the states?
- Since EPA placed the Phase 1 HWC NESHAP standards
only in the CAA regulations, should states remove their RCRA combustion
requirements from their regulations?
- Can my permitting authority issue a combined RCRA
and CAA permit for my facility?
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RCRA Permitting |
- How will the Phase 1 HWC MACT standards affect
my existing RCRA permit emission limits and operating conditions?
- How and when do I make the transition to the permitting
scheme outlined in the Phase 1 HWC NESHAP?
- What requirements will be included in the CAA Title
5 permit and what will remain in the RCRA permit after I comply
with the Phase 1 HWC NESHAP and receive a RCRA permit modification
to remove any duplicative conditions?
- Do I need to modify my RCRA permit as a result
of the Phase 1 HWC NESHAP? If so, when?
- Can states use an abbreviated process for authorization
of the RCRA portions of the Phase 1 HWC NESHAP?
- If I am in the process of obtaining my RCRA permit,
do I have to continue now that the Phase 1 HWC MACT standards
are effective?
- I have already modified my RCRA permit to change
my operating parameter limits to reflect my MACT equipment upgrades.
What do I do if I find that I need to revise those limits further
or make additional equipment upgrades in order to comply with
the MACT standards?
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RCRA Permit Streamlined Permit Modification
Process |
- What is the RCRA streamlined permit modification
procedure?
- Why have a streamlined permit modification procedure?
- What effect did the decision of the D.C. Circuit
in Chemical Manufacturers Ass'n v. EPA have on the RCRA streamlined
permit modification procedure?
- When is it appropriate to use the streamlined
procedure?
- What if I cannot use the streamlined permit modification
procedure?
- Do I send my request for a RCRA streamlined permit
modification to my state regulatory agency or to EPA?
- Under what circumstances might I not be allowed
to use the RCRA streamlined permit modification procedure?
- What should I do if my state does not seek authorization
for the RCRA streamlined permit modification procedure?
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Title 5 Permitting |
- What is the difference between a CAA Title 5 operating
permit and a New Source Review permit?
- Can RCRA program staff issue CAA Title 5 permits
for sources subject to the Phase 1 HWC NESHAP?
- Do CAA Title 5 permitting requirements apply to
both area and major sources subject to the Phase 1 HWC NESHAP?
- If I am a non-major source and I must obtain a
CAA Title 5 permit only because of the Phase 1 HWC NESHAP, do
I have to include my other units in my Title 5 permit?
- After I demonstrate compliance with the Phase
1 HWC NESHAP, what should my permitting authority incorporate
into my CAA Title 5 operating permit?
- What type of modification process should I use
to incorporate my initial NOC into my CAA Title 5 permit?
- What type of modification process should I use
to incorporate subsequent NOCs into my CAA Title 5 permit?
- If my source is a major source, what do I need
to do to include the February 13, 2002 interim standards and February
14, 2002 final amendments in my permit; and what about the permanent
replacement standards to be issued in 2005?
- If I became subject to Title 5 permitting for
the first time as a result of being subject to the Phase 1 HWC
NESHAP (1999 standards), what do I need to do to include the February
13, 2002 interim standards and February 14, 2002 final amendments
in my permit; and what about the permanent replacement standards
to be issued in 2005?
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General Permitting |
- How did we change our permitting approach
for hazardous waste burning incinerators, cement kilns and lightweight
aggregate kilns in the Phase 1 HWC NESHAP?
Prior to the Phase 1 HWC NESHAP, all aspects of hazardous waste
combustor operations were regulated through RCRA permits, i.e.
permits implementing the RCRA statute and the RCRA subtitle
C regulations. We changed our approach in the NESHAP final rulemaking
to avoid unnecessary regulatory duplication between the RCRA
and CAA programs. We did this by placing the new emission standards
only in the CAA regulations at 40 CFR part 63 subpart EEE. The
RCRA permit will continue to address other combustor-specific
concerns such as materials handling and also the requirements
necessary for the basic hazardous waste management such as general
facility standards, corrective action, and any standards necessary
for the operation of other types of RCRA units. The RCRA permit
also may contain additional conditions pursuant to the RCRA
section 3005(c)(3) omnibus provision to protect human health
and the environment, and other elective alternatives such as:
compliance with the RCRA start-up, shutdown, and malfunction
requirements; or the particulate matter standard for incinerators
feeding low levels of metals.
For more information, see the section entitled "2. What Permitting
Approach Is Adopted In Today's Rule?" in the preamble to the
final rule at 64 FR 52975, September 30, 1999 and the
Permit
Transition: Moving From RCRA to the CAA Fact Sheet (PDF) (8 pp, 569K).
Top of Page
- Do I need both a RCRA and CAA permit to operate?
Yes. You need both a RCRA and CAA permit to operate a hazardous
waste combustor. Once you have demonstrated compliance with
the MACT standards, the content of each permit, however, will
be distinguishable. Your Title 5 permit will focus on the operation
of the combustion unit (e.g., air emissions and related operating
parameters), while your RCRA permit will focus on basic hazardous
waste management (e.g., general facility standards, corrective
action, other combustor-specific concerns such as materials
handling, and other hazardous waste management units, etc.).
In some cases, your RCRA permit may continue to address air
emissions. Additional risk-based emissions standards may be
necessary under the RCRA omnibus authority (RCRA section 3005(c)(3))
to supplement the CAA requirements contained in your Title 5
permit. Although we expect that in most cases such risk-based
conditions will reside in RCRA permits, some states may have
the flexibility to place the additional conditions in Title
5 permits if they have a provision in their state air statute
or regulations that is equivalent to the RCRA omnibus authority.
Furthermore, sources that elect to comply with certain alternatives
will have additional requirements in their RCRA permits. These
alternatives may include compliance with: the RCRA requirements
during start-up, shutdown, and malfunction events (40 CFR 270.235)
and the particulate matter standard for incinerators feeding
low levels of metals (40 CFR 63.1206(b)(14)).
For more information, see the sections entitled "11. What Are
the Permitting Requirements for Sources Subject to this Rule?"
in the preamble to the final rule at 64 FR 52973, September
30, 1999 and the Permit
Transition: Moving From RCRA to the CAA Fact Sheet (PDF) (8 pp, 569K) Top of Page
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Who is responsible for implementing the
Phase 1 HWC NESHAP rule: EPA or the states?
Depending on the status of CAA delegation and RCRA authorization
of the Phase 1 HWC NESHAP rule in a state, both EPA and the
state may have implementation responsibilities. In the final
rule, we did not alter the procedures for delegating authority
to the states under the CAA or for authorizing states under
RCRA. Instead, we strongly encouraged each state to include
the NESHAP requirements in their regulations as quickly as their
legislative and regulatory processes would allow. We also provided
information regarding how states might implement the NESHAP
in a way that makes the most sense given their level of resources
and organizational structure. In some instances, a state may
choose to have the CAA program implement the rule, while in
others the RCRA program may take the lead.
For more information, see the sections entitled "3. What Considerations
Were Made for Ease of Implementation?" in the preamble to the
final rule at 64 FR 52975, September 30, 1999. See also the
Clean
Air Act (CAA) Delegation for the HWC NESHAP Fact Sheet (PDF) (16 pp, 700K) and RCRA
State Authorization for the Phase 1 HWC NESHAP Faact Sheet (PDF) (3 pp, 357K). Top of Page
- Since EPA placed the Phase 1 HWC NESHAP standards
only in the CAA regulations, should states remove their RCRA combustion
requirements from their regulations?
No. Under RCRA section 3009, states may not implement requirements
that are less stringent than the federal program. When we placed
the Phase 1 HWC MACT standards in the federal CAA regulations,
we did not remove the combustion requirements from the federal
RCRA regulations. Instead, we revised the RCRA regulations such
that they no longer apply once a facility demonstrates compliance
with the Phase 1 HWC NESHAP, with some exceptions related to
compliance with omnibus requirements and/or compliance with
alternatives (i.e., the RCRA requirements during start-up, shutdown,
and malfunction events and the particulate matter standard for
incinerators feeding low levels of metals). Thus, while states
may not remove their RCRA combustion requirements from their
regulations, they may revise their regulations as we have done
in the federal program. We strongly encouraged this in the preamble
to the final Phase I HWC NESHAP rule. By deferring the RCRA
requirements (i.e. allowing the CAA requirements to supplant
them), we believe that unnecessary duplication is eliminated
between the RCRA and CAA regulatory programs.
It is important to note that the Phase 1 HWC NESHAP and our
deferral of the RCRA requirements apply only to hazardous waste-burning
incinerators, cement kilns, and lightweight aggregate kilns.
Other source categories, such as hazardous waste-burning boilers
and hydrochloric acid production furnaces, were not addressed
in this NESHAP. They continue to be regulated under the RCRA
combustion regulations. While we do plan to issue MACT standards
for these hazardous waste combustors in the future, we have
not done so yet. When we do, we will determine if the federal
RCRA combustion requirements in total should be deferred to
the CAA regulations and, if so, will encourage the authorized
states to do likewise.
States are not obligated to follow our deferral recommendation.
Authorized states are only required to modify their programs
when EPA issues federal standards that are broader or more stringent
than the existing federal standards. The revisions we made to
the federal RCRA regulations through the Phase 1 HWC NESHAP,
however, resulted in some RCRA requirements becoming less stringent.
This is because we deferred the emissions requirements to another
federal program. Although we strongly encourage authorized state
RCRA programs to make a similar deferral, they are under no
obligation to do so.
For more information, see the section entitled "12. State Authorization"
in the preamble to the final rule at 64 FR 52991, September
30, 1999 and the RCRA
State Authorization for the Phase 1 HWC NESHAP Fact Sheet (PDF) (3 pp, 357K). Top of Page
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Can my permitting authority issue a combined
RCRA and CAA permit for my facility?
Yes, it is possible. Some states can issue multi-media permits,
including both RCRA and CAA requirements, under joint program
authority. These permits must cite the appropriate authority
(either CAA or RCRA) for each condition and be signed by the
appropriate officials for each program. Each permit condition
is then enforced under its respective authority. While these
types of permits have been issued successfully, it should be
noted that the possibility exists for enforcement under both
RCRA and CAA statutes.
For more information, see the section entitled "3. What Considerations
Were Made for Ease of Implementation?" in the preamble to the
final rule at 64 FR 52976, September 30, 1999. Top of Page
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RCRA Permitting |
- How will the Phase 1 HWC MACT standards affect
my existing RCRA permit emission limits and operating conditions?
The Phase 1 HWC MACT standards will not affect your RCRA permit
limits or conditions, unless your permit contains a sunset clause
that terminates those limits and conditions upon compliance
with the standards. If your permit does not contain a sunset
clause, you must secure a RCRA permit modification or wait for
the permit to expire in order to be relieved of your RCRA permit
compliance obligations. This is the case regardless of whether
you comply with the Phase 1 HWC MACT early or on your compliance
date.
You may request modifications to your RCRA permit only after
you have successfully completed your comprehensive performance
test and submitted a NOC (Notification of Compliance')
documenting compliance with the MACT standards. In your modification
request, you should identify the conditions that you believe
should be removed from your permit. Your permitting authority
will compare your RCRA permit terms and conditions to your MACT
standards and operating parameters. Any terms or conditions
that are more stringent or extensive than the MACT requirements
will be retained in the RCRA permit if they are determined necessary
to ensure protection of human health and the environment. Additionally,
if you elect to comply with either the RCRA requirements during
start-up, shutdown, and malfunction events (40 CFR 270.235)
or the particulate matter standard for incinerators feeding
low levels of metals (40 CFR 63.1206(b)(14)), these alternatives
will likely reside in your RCRA permit. Your RCRA permit writer
also may want to verify with their counterpart in the Air program
that you have successfully completed the MACT comprehensive
performance test and submitted a NOC documenting compliance
before removing conditions. Following evaluation of your RCRA
permit and verification of MACT compliance, your RCRA permit
can be modified as appropriate.
For more information, see the section entitled "11. What
Are the Permitting Requirements for Sources Subject to this
Rule?" in the preamble to the final rule at 64 FR 52973,
September 30, 1999 and the Permit
Transition: Moving From RCRA to the CAA Fact Sheet (PDF) (8 pp, 569K). Top of Page
- How and when do I make the transition to
the permitting scheme outlined in the Phase 1 HWC NESHAP?
The point at which you make the transition depends on your
current RCRA permitting status. If you already have a RCRA permit,
you must continue to comply with the conditions of that permit,
including those relating to combustion emissions. Unless the
conditions have been written into the permit with a sunset clause
(i.e., an automatic inactivation of those conditions upon compliance
with the MACT standards), you must continue to comply with them
until they either expire or are removed through a permit modification.
Compliance with the HWC NESHAP does not eliminate or terminate
RCRA combustion permit conditions. To remove these conditions
prior to their expiration, you may request a permit modification
from your regulatory agency. You may do this after you have
successfully completed your comprehensive performance test and
submitted an NOC documenting compliance with the MACT standards.
The request can be a Class 1 modification with prior Agency
approval. You should identify in your request the conditions
that you believe should be removed from your permit. Your RCRA
permit writer will compare the terms and conditions in your
permit to your MACT standards and operating parameters. Any
terms or conditions that are more stringent or extensive than
the MACT requirements will be retained in your RCRA permit if
they are necessary to ensure protection of human health and
the environment
If you are currently operating under interim status, you must
continue to comply with the RCRA interim status combustion requirements
of section 265.340 or 266.103, until you document compliance
with the MACT standards. Once you have documented compliance
with the MACT standards, you are no longer obligated to meet
the RCRA interim status combustion requirements. (Please note:
you are still required to have a RCRA permit to address basic
hazardous waste management requirements including: general facility
standards, corrective action, financial responsibility, closure,
and other combustor specific concerns such as materials handling
and other hazardous waste management units.) Thus, your transition
point out of RCRA is your MACT compliance date, regardless of
when you comply (i.e., whether it is prior to the compliance
date, on the compliance date, or if you have received an extension).
Since there are varying points at which you might comply with
MACT, we strongly recommend that you inform your RCRA permit
writer of the date you intend to comply so that it can be factored
into his or her decision of when to issue your RCRA permit,
and what will be contained in your RCRA permit. For example,
if you comply on September 30, 2003, your permit writer could
choose to issue your RCRA permit without the RCRA combustion
emission requirements. On the other hand, if you receive a one
year MACT compliance extension and your RCRA permit is ready
to be issued in 2003, then your permit writer may choose to
move forward and issue a complete (i.e., contains the RCRA combustion
emission requirements) permit. In this case, we recommend that
a sunset clause, which would automatically inactivate the RCRA
emission requirements upon compliance with MACT, be included
in your RCRA permit. Otherwise, you would need to comply with
both the RCRA emission requirements and MACT standards until
the duplicative RCRA requirements could be removed from your
permit.
If you are in the process of renewing your RCRA permit, how
and when you make the transition is basically the same as if
you were operating under interim status. Your permitting agency
will determine how to proceed on your renewal application based
upon when you intend to comply with the MACT standards.
For more information, see the section entitled "D. How Will
Sources Transfer from RCRA to MACT Compliance and Title 5 Permitting?"
in the preamble to the final rule at 64 FR 52981 and 52989,
September 30, 1999 and the Permit
Transition: Moving From RCRA to the CAA Fact Sheet (PDF) (8 pp, 569K) Top of Page
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What requirements will be included in my
CAA Title 5 permit and what will remain in my RCRA permit after
I comply with the Phase 1 HWC NESHAP and receive a RCRA permit
modification to remove any duplicate conditions?
Your Title 5 permit will include the Phase 1 HWC MACT standards
and any monitoring and operating parameter limits that ensure
your continued compliance with those standards. Your RCRA permit
will contain the requirements necessary for the basic hazardous
waste management of your facility. These requirements might
include for example: general facility standards, corrective
action, other combustor-specific concerns such as materials
handling, and any standards necessary for the operation of other
types of RCRA units. Your RCRA permit also may contain additional
conditions pursuant to the RCRA section 3005(c)(3) omnibus provision
to protect human health and the environment. These conditions
would supplement those required by the Phase 1 HWC NESHAP. We
expect that in most cases they will be included in RCRA permits.
However, some states may have the flexibility to place the additional
conditions in Title 5 permits. This might occur in states that
have a provision in their state air statute or regulations that
is equivalent to the RCRA omnibus authority. Furthermore, sources
that elect to comply with certain alternatives will have additional
requirements in their RCRA permits. These alternatives may include
compliance with: the RCRA requirements during start-up, shutdown,
and malfunction events (40 CFR 270.235) and the particulate
matter standard for incinerators feeding low levels of metals
(40 CFR 63.1206(b)(14)).
For more information, see "1. How Are the Title 5 Permitting
Requirements Applicable?" and "3. Which RCRA Permitting Requirements
Are Applicable?" in the preamble to the final rule at 64 FR
52977 and 52978. Top of Page
- Do I need to modify my RCRA permit as a result
of the Phase 1 HWC NESHAP? If so, when?
There are two points at which you may need to request a modification
to your RCRA permit:
First, you will need to modify your RCRA permit before making
any MACT-related process or equipment changes that would be
inconsistent with the existing terms and conditions of your
RCRA permit. You would request a streamlined permit modification,
which is a class 1 modification that requires prior Agency approval.
See Appendix I to 270.42 section L.9. This procedure was created
to allow facility owners or operators to request changes necessary
to meet the Phase 1 HWC MACT standards. Class 1 requests typically
are processed much more quickly than class 2 or 3 modifications,
which would be required if the streamlined procedure had not
been established. Before requesting a permit modification under
the streamlined procedure, facility owners or operators must
have first complied with the requirements governing the Notification
of Intent to Comply (NIC) in 40 CFR 63.1210(b) and (c) that
were in effect prior to their vacatur on October 11, 2000.
Second, in order to remove duplicative requirements, you may
wish to request a modification of your RCRA permit after you
demonstrate compliance with the MACT standards. After you have
conducted your comprehensive performance test and submitted
your Notification of Compliance documenting compliance with
the standards, you can request a RCRA permit modification to
remove duplicative emissions requirements. You would want to
request a Class 1 with prior agency approval modification to
remove the duplicative requirements. See Appendix I to 270.42
section A.8.
For more information regarding RCRA permit modifications related
to the Phase 1 HWC NESHAP, see the RCRA
Streamlined Permit Modification Fact Sheet (PDF) (6 pp, 368K) and the Permit
Transition: Moving From RCRA to the CAA Fact Sheet (PDF) (8 pp, 569K). You also may consult the preamble to
the final rule at 64 FR 52983, September 30, 1999. Top of Page
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Can states use an abbreviated process for
authorization of the RCRA portions of the Phase 1 HWC NESHAP?
We promulgated an abbreviated state authorization process for
minor or routine RCRA regulations on November 30, 1998 in the
HWIR Media rule (63 FR 65874). With respect to the Phase 1 HWC
NESHAP, we believe that this process may be appropriate for
states that are seeking authorization of the two RCRA modification
provisions. The first provision allows facilities to request
a Class 1 permit modification with prior agency approval to
remove duplicative air emission requirements from RCRA permits.
See 40 CFR §270.42, Appendix I, Section A.8. The second
provision, known as the streamlined modification procedure,
was promulgated in the June 19, 1998 Fast Track Rule (63 FR
33782). This modification provision allows facilities to request
a Class 1 permit modification with prior agency approval to
make equipment and technology changes to meet the MACT standards
by the compliance date. See §270.42, Appendix I, Section
L.9. (The Fast Track rule is considered minor and thus, is eligible
for the abbreviated process.) We do not believe that the abbreviated
process is appropriate for authorization of the entire RCRA
portion of the Phase 1 HWC NESHAP, but may be for other portions
not mentioned above. We recommend that states choosing to use
the abbreviated authorization process closely coordinate with
their EPA Regional authorization staff to ensure appropriate
application of the process. You should also note that EPA has
the discretion to tailor the state authorization process to
fit the content of a state's application (40 CFR Section 271.21(b)(2)). Top of Page
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If I am in the process of obtaining my
RCRA permit, do I have to continue now that the Phase 1 HWC
MACT standards are effective?
Yes, hazardous waste combustors remain subject to RCRA permitting
even after the Phase 1 HWC MACT standards are effective. This
applies whether you are renewing a RCRA permit or are obtaining
one for the first time. If you are proposing to build a new
hazardous waste combustion unit, you are required to obtain
a RCRA permit prior to construction of that unit. This permit
must contain the appropriate RCRA combustion requirements. (See
40 CFR 264.340(b), 265.340(b), and 266.100(b).) After demonstrating
compliance with the MACT standards, you can request a modification
to your RCRA permit to remove any duplicative conditions related
to your combustor. You should check with your RCRA permit writer
to discuss the possibility of including a sunset clause in your
permit so that once you demonstrate compliance with the MACT
standards, any duplicative conditions in your RCRA permit will
automatically become inactive. If you are a RCRA interim status
facility or are renewing your RCRA permit, you must continue
the RCRA permitting process. See the answer to number 7 (above)
for a discussion on interim status and renewal permit processes.
The content of your RCRA permit will depend on whether or not
you have already demonstrated compliance with the MACT standards.
If you have demonstrated compliance, your RCRA permit will not
need to address your combustor emissions. Instead, it will focus
on basic hazardous waste management requirements such as: general
facility standards, corrective action, financial responsibility,
closure, and other combustor-specific concerns such as materials
handling and other hazardous waste management units. An exception
will be if additional risk-based emissions conditions are necessary
under the RCRA omnibus authority (RCRA section 3005(c)(3)) to
supplement the MACT requirements. We expect that in most cases
such conditions will reside in RCRA permits. However, some states
may have the flexibility to place the additional conditions
in Title 5 permits, if they have a provision in their state
air statute or regulations that is equivalent to the RCRA omnibus
authority.
Other exceptions may include if a source elects to comply with
RCRA permit conditions during start-up, shutdown, and malfunctions
(SSMs). If this option is chosen, rather than complying with
the CAA option, the RCRA permit conditions to address SSMs will
be retained in the RCRA permit and enforced only when operating
under the SSM plan (40 CFR 270.235). Also, a source that chooses
to comply with the alternative to the particulate matter (PM)
standard will likely have these alternative requirements in
its RCRA permit (40 CFR 63.1206(b)(14)).
For more information, see the sections entitled "11. What
Are the Permitting Requirements for Sources Subject to this
Rule?" in the preamble to the final rule at 64 FR 52973,
September 30, 1999, and the Permit
Transition: Moving From RCRA to the CAA Fact Sheet (PDF) (8 pp, 569K). Top of Page
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I have already modified my RCRA permit
to change my operating parameter limits to reflect my MACT equipment
upgrades. What do I do if I find that I need to revise those
limits further or make additional equipment upgrades in order
to comply with the MACT standards?
You will need to request another RCRA permit modification.
If you are eligible to use the RCRA streamlined permit modification
procedure, this should not cause you any undue delay in completing
your upgrades and complying with the MACT standards. This is
because under the streamlined approach, you may use a Class
1 modification with prior Agency approval. See 40 CFR 270.42(j).
If, however, you are not eligible to use the streamlined procedure
(because you did not comply with the notification of intent
to comply requirements), you will need to follow the existing
RCRA permit modification procedures, which generally require
that you obtain either a Class 2 or 3 modification. Since both
Class 2 and 3 modifications can take several years to complete,
you may experience some difficulty in meeting your MACT compliance
date. You may be able to alleviate this difficulty by requesting
an extension to your compliance date of up to one year provided
that you meet the criteria of 40 CFR §63.1213. You also
could request a temporary authorization for RCRA purposes under
40 CFR §270.42(e) or the equivalent state regulations.
Your permitting authority will decide whether to grant the temporary
authorization, based on the factors provided in the regulations.
The permitting authority may grant a temporary authorization
for a period of up to 180 days. You may request an additional
180 days, provided that you also submit a request for the Class
2 or 3 modification.
For more information, see the RCRA
Streamlined Permit Modification Fact Sheet (PDF) (6 pp, 368K). You also may refer to the June 19, 1998 Fast
Track final rule preamble (63 FR 33782). Top of Page
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RCRA Permit Streamlined Permit Modication Process |
- What is the RCRA streamlined permit modification
procedure?
We established the RCRA streamlined permit modification procedure
to facilitate compliance with the Phase 1 HWC NESHAP (Appendix
I to 270.42 section L.9). The streamlined permit modification
procedure allows facility owners or operators to request changes
necessary to meet the Phase 1 HWC MACT standards as a class
1 modification that requires prior Agency approval. Class 1
requests typically are processed much more quickly than class
2 or 3 modifications, which would be required if the streamlined
procedure had not been established. Before requesting a permit
modification under the streamlined procedure, facility owners
or operators must have first complied with the requirements
governing the Notification of Intent to Comply (NIC) in 40 CFR
63.1210(b) and (c) that were in effect prior to their vacatur
on October 11, 2000.
For more information regarding the streamlined permit modification
procedure, see the RCRA
Streamlined Permit Modification Fact Sheet (PDF) (6 pp, 368K). You also may refer to the June 19, 1998 Fast
Track final rule preamble (63 FR 33782). Top of Page
- Why have a streamlined permit modification
procedure?
When developing the Phase 1 HWC MACT standards, we recognized
that many owners or operators might need to make changes to
their combustion equipment or processes in order to comply with
the anticipated emission limits. For example, a facility may
have to add an electrostatic precipitator to its incineration
system to comply with the MACT particulate matter standard.
For facilities operating under RCRA permits, these changes must
be incorporated into the permit before they may be put in place
at the facility. We were concerned that the RCRA permit modification
procedures, as a practical matter, would not allow facility
owners or operators to complete the modifications in time to
meet the Phase 1 HWC MACT compliance time frames. We did not
want the RCRA permit modification process to hinder a facility's
ability to comply with the new emission standards, so we promulgated
a streamlined procedure to address this concern (Appendix I
to 270.42 section L.9).
For more information regarding the streamlined permit modification
procedure, see the RCRA
Streamlined Permit Modification Fact Sheet (PDF) (6 pp, 368K). Top of Page
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What effect did the decision of the D.C.
Circuit in Chemical Manufacturers Ass'n v. EPA have on the RCRA
streamlined permit modification procedure?
The court decision did not directly affect the streamlined
permit modification procedure. It did, however, have an indirect
effect since it vacated the Notification of Intent to Comply
(NIC) requirements. To take advantage of the streamlined permit
modification procedure, sources must have first complied with
the NIC requirements that were issued in the June 19, 1998 Fast
Track rule (63 FR 33782). Under those requirements, all hazardous
waste combustors must have completed their NICs by October 2,
2000.
On July 25, 2000, the Court of Appeals for the District of Columbia
decided Chemical Manufacturers Association v. EPA ( D.C. Cir.
No. 99 -1236). In this action, the court said that although
EPA had the authority to promulgate an early cessation requirement
(which required those sources who do not intend to comply with
the new standards to stop burning hazardous waste within two
years of the final rule being promulgated), we had not adequately
justified the benefits stemming from that provision. As relief,
the court vacated the early cessation provision, as well as
the related NIC and Progress Report requirements. The court's
decision does not impact the emission standards or compliance
schedule for the other requirements of the Phase 1 HWC NESHAP.
The relief ordered by the court took effect when the court issued
its mandate on October 11, 2000.
Since the mandate did not go into effect until after the deadline
when sources were required to submit their NICs (on October
2, 2000), we have determined that the court's action does not
impact a source's ability to request a RCRA permit modification
using the streamlined procedures. (EPA in fact requested the
Court to stay issuance of its mandate so as not to interdict
the streamlined process.) As long as a source complied with
the NIC provisions, then the source met the requirements in
40 CFR 270.42(j)(1) and is therefore eligible for the streamlined
modification process. Top of Page
- When is it appropriate to use the streamlined
procedure?
The regulations provide for using the streamlined permit modification
procedure only for those changes necessary to comply with the
MACT standards (Appendix I to 270.42 section L.9). The streamlined
procedure is not available for general retrofitting changes
beyond those needed for compliance with the MACT standards.
We recognize, however, that the examples we provided in the
preamble to the Fast Track rule may mislead people into thinking
those are the only types of changes allowed under this procedure.
The examples we described focused on modifications to air pollution
control equipment and certain operating parameters (see 63 FR
33803, June 19, 1998). Those examples are not all-inclusive.
As long as you can explain how a change contributes to the unit's
ability to meet one or more of the MACT standards, you can use
the streamlined procedures.
If it is unclear whether a particular type of change qualifies
for the streamlined procedures, you should discuss your plans
with your permit writer.
For more information regarding the streamlined permit modification
procedure, see the RCRA
Streamlined Permit Modification Fact Sheet (PDF) (6 pp, 368K). Top of Page
-
What if I cannot use the streamlined permit
modification procedure?
If you cannot use the streamlined permit modification procedure
because you did not submit a NIC or because your state did not
seek authorization for this procedure, your MACT-related changes
would normally fall into the class 2 or 3 permit modification
categories. Since both Class 2 and 3 modifications can take
several years to complete, you might experience some difficulty
meeting your MACT compliance date. You may be able to alleviate
this difficulty by requesting an extension to that compliance
date of up to one year, provided that you meet the criteria
of 40 CFR §63.1213. You also could request a temporary
authorization for RCRA purposes under 40 CFR §270.42(e)
or the equivalent state regulations. Your permitting authority
will decide whether to grant the temporary authorization based
on the factors provided in the regulations. The permitting authority
may grant a temporary authorization for a period of up to 180
days. You may request an additional 180 days, provided that
you also submit a request for the Class 2 or 3 modification
(40 CFR 270.42(e)).
For more information regarding the streamlined permit modification
procedure, see the RCRA
Streamlined Permit Modification Fact Sheet (PDF) (6 pp, 368K). Top of Page
-
Do I send my request for a RCRA streamlined
permit modification to my state regulatory agency or to EPA?
This depends on whether your facility is located in a state
authorized to administer the RCRA program in lieu of EPA's for
the type of combustion unit at your facility. If your state
is authorized to regulate the combustion unit at your facility,
you should submit your streamlined permit modification request
to your state RCRA permitting authority. Otherwise, you must
submit your request to your EPA regional office. In any event,
it is always wise to confer with your regulatory authority (EPA
region or state) before submitting any permit modification request
in order to verify the correct procedures and contacts for your
request. It is useful to note that for some facilities, the
EPA regional office may be administering the RCRA permit instead
of the authorized state. This situation may exist for facilities
that were issued their RCRA permits by EPA before their state
became authorized. These facilities should submit their modification
requests to their EPA regional office.
For further information see "12. State Authorization"
in the preamble to the final rule at 64 FR 52991, September
30, 1999. See also the RCRA
State Authorization for the Phase 1 HWC NESHAP Fact Sheet (PDF) (3 pp, 357K) and the RCRA
Streamlined Permit Modification Fact Sheet (PDF) (6 pp, 368K). Top of Page
-
Under what circumstances might I not be
allowed to use the RCRA streamlined permit modification procedure?
There are three general circumstances under which you may not
be able to use the streamlined permit modification procedure:
First, if you are located in an authorized state that has
not changed its laws or regulations to adopt the streamlined
procedure, you may not use this procedure. Instead, you must
continue to follow your state's existing procedures for modifying
a RCRA permit.
Second, in order to take advantage of the streamlined permit
modification procedure, you must first have complied with the
Notification of Intent to Comply (NIC) requirements that were
in effect prior to October 11, 2000. Under these requirements
you should have submitted your final NIC to your regulatory
agency by October 2, 2000. If you failed to submit your NIC
by this date, you may not take advantage of the streamlined
modification procedure.
Third, the modification you are requesting must be necessary
for compliance with the HWC NESHAP. See section L.9 in Appendix
I to 40 CFR §270.42. If the modification is for some other
purpose than compliance with the NESHAP, you may not take advantage
of the streamlined procedure.
For more information regarding the streamlined permit modification
procedure, see the RCRA
Streamlined Permit Modification Fact Sheet (PDF) (6 pp, 368K) in this Toolkit. You also may refer to the June
19, 1998 Fast Track final rule preamble (63 FR 33782). Top of Page
-
What should I do if my state does not seek
authorization for the RCRA streamlined permit modification procedure?
While we have encouraged all authorized states to adopt the
streamlined permit modification procedure, we recognize that
some may choose not to. If your state has not picked up this
procedure, we suggest that you meet with your state permit writer
to discuss what options are available to you that will still
allow you to meet your HWC NESHAP compliance date. Some options
may include: (1) using the existing permit modification procedures,
which generally will be either a Class 2 or 3 RCRA permit modification,
(2) requesting a temporary authorization under 40 CFR §270.42(e),
or (3) applying for a compliance extension under 40 CFR §§63.6(i)(4)
and 63.1213. Another mechanism that is available to facilities
that are in the process of renewing their RCRA permits is to
incorporate the MACT-related equipment and process changes in
the RCRA permit renewal application. For more information regarding
these potential options, see the RCRA
Streamlined Permit Modification Fact Sheet (PDF) (6 pp, 368K) in this Toolkit. Top of Page
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Title 5 Permitting |
- What is the difference between a CAA Title
5 operating permit and a New Source Review permit?
There are two basic types of permits required for major stationary
sources under the CAA: New Source Review (NSR) permits and Title
5 permits. NSR permits, commonly referred to as construction
permits, are required for all new major sources. They also are
required for all existing major sources that are adding or modifying
emissions units. NSR permits contain the conditions necessary
to construct or modify a source. In addition, NSR permits will
often include operating conditions. For example, some states
typically include conditions for shakedown and the temporary
operation of the source in an NSR permit. The operating conditions
may be incorporated later into a source's Title 5 operating
permit.
Title 5 permits are required for the operation of all new
and existing major sources. They also may be required for non-major
sources subject to standards developed under sections 111 or
112 of the CAA (40 CFR §70.4(a)). Title 5 permits contain
all CAA requirements applicable to a source, including emission
limits and any monitoring, record keeping and reporting requirements
(40 CFR §70.6(a)). These permits are more comprehensive
than NSR permits and, as mentioned above, may incorporate NSR
permit conditions.
For more information regarding NSR and Title 5 permits, see
the Air program's NSR website and the Title
5 Operating Permits Fact Sheet (PDF) (6 pp, 379K) . Also, see the section entitled "1. How Are the Title
5 Permitting Requirements Applicable?" in the preamble
to the final rule at 64 FR 52977, September 30, 1999. Top of Page
- Can RCRA program staff issue CAA Title 5
permits for sources subject to the Phase 1 HWC NESHAP?
Title 5 permits cover a wide range of requirements under the
CAA. As a result, we expect that the Phase 1 HWC NESHAP will
constitute just one piece of a Title 5 permit for any given
source. While we would not expect the RCRA program staff to
issue the Title 5 permit for a hazardous waste combustor, some
states may choose to have their RCRA staff develop the combustor
portion of the permit. In addition, states also may choose to
utilize their RCRA staff for many of the HWC NESHAP implementation
activities that occur before the Title 5 permit is issued (i.e.,
review of the initial performance test plan). States considering
utilizing their RCRA staff expertise may want to explore the
flexibility provided by Performance Partnership Grants to strategically
move funds, and Performance Partnership Agreements to strategically
integrate programs.
For more information, see the section entitled "3. What Considerations
Were Made for Ease of Implementation?" in the preamble to the
final rule at 64 FR 52976, September 30, 1999. Top of Page
-
Do CAA Title 5 permitting requirements
apply to both area and major sources subject to the Phase 1
HWC NESHAP?
Yes. Since both area and major sources are subject to the Phase
1 HWC NESHAP, they are also subject to Title 5 permitting requirements.
See 40 CFR §63.1200(a)(2). Our decision to require Title
5 permits for both area and major sources is consistent with
the scope of the Title 5 program as presented in the 40 CFR
part 70 implementing regulations. Section 70.3(a) lists the
sources that are subject to Title 5 permitting. This includes
major sources (section 70.3(a)(1)) and "any source, including
an area source, subject to a standard or other requirement under
section 112 of the Act ..."(section 70.3(a)(3)). Further,
section 70.3(b)(2) states that the decision to subject non-major
sources to Title 5 permitting is to be made when a section 112
standard is promulgated: "In the case of non-major sources
subject to a standard or other requirement under either section
111 or 112 of the Act after July 21, 1992 publication, the Administrator
will determine whether to exempt any or all such applicable
sources from the requirement to obtain a part 70 permit at the
time that the new standard is promulgated". We chose not
to provide an exemption or a deferral from Title 5 permitting
for any sources subject to the Phase 1 HWC MACT standards under
section 112.
For more information, see the section entitled "C. Is
Title 5 Permitting Applicable to Area Sources?" in the
preamble to the final rule at 64 FR 52979, September 30, 1999.
See also the Title
5 Operating Permits Fact Sheet (PDF) (6 pp, 379K) Top of Page
- If I am a non-major source and I must obtain
a CAA Title 5 permit only because of the Phase 1 HWC NESHAP, do
I have to include my other units in my Title 5 permit?
No. If a nonmajor source (also known as an "area"
source) is subject to Title 5 permitting only because it has
a combustion unit that must comply with the Phase 1 HWC NESHAP,
we do not require that other units, if any, at the source (i.e.,
emissions units not previously subject to Title 5) also be included
in the permit (see 40 CFR §70.3(c)(2) and 71.3(c)(2)).
Your Title 5 permit application as well as your Title 5 permit,
is only required to address the emissions units which caused
your source to be subject to Title 5. However, the permit applications
and permits for these nonmajor sources must include all of the
applicable requirements that apply to the triggering units,
e.g., State Implementation Plan requirements. See 40 CFR 70.3(c)(2)
and 71.3(c)(2). You should note that your state may issue more
stringent requirements than the federal requirements. Thus,
you may be required under state regulations to include other
units in your Title 5 permit even if you are not required to
do so under the federal regulations.
Under federal regulations, only major sources must include
all applicable units (present at the source) in their Title
5 permits. A major source is one that emits or has the potential
to emit greater than 10 tons per year (tpy) of an individual
HAP, or greater than 25 tpy of HAPs in aggregate (see definition
for "major source" at 40 CFR 63.2). When determining
whether a source's classification is major or area, all units
at the source that emit or have the potential to emit HAPs are
considered.
For more information on Title 5 permitting, see the Title
5 Operating Permits Fact Sheet (PDF) (6 pp, 379K). Top of Page
-
After I demonstrate compliance with the
Phase 1 HWC NESHAP, what should my permitting authority incorporate
into my CAA Title 5 operating permit?
Your permitting authority will incorporate your Phase 1 HWC
MACT standards, monitoring requirements and operating parameter
limits into your Title 5 permit. These standards, requirements
and parameter limits are the same as those specified in your
initial Notification of Compliance. 40 CFR §§63.1206(c)(1)(v),
70.6(a)(1) and 71.6(a)(1) require that they be included in your
Title 5 operating permit.
For more information, see "2. What Is the Relationship
Between the Notification of Compliance and the Title 5 Permit?"
in the preamble to the final rule at 64 FR 52977, September
30, 1999 and the NOC/Title
5 Interface Fact Sheet (PDF) (6 pp, 324K). Top of Page
-
What type of modification process should
I use to incorporate my initial NOC into my CAA Title 5 permit?
We expect that most sources will need to follow the significant
permit revision procedures to modify their Title 5 permits to
include their initial Notification of Compliance (NOC). You
can find these procedures in 40 CFR §70.7(e)(4) and 71.7(e)(3).
Any change in monitoring terms and conditions that is considered
to be significant must be incorporated into your Title 5 permit
through the significant permit revision procedures. Since the
initial NOC contains the emission standards, operating parameter
limits and monitoring requirements that demonstrate your continued
ability to comply with the Phase 1 HWC NESHAP, we consider incorporation
of the NOC as a significant change. Applying the significant
permit revision procedures also allows for a level of public
involvement similar to that which would have been required under
RCRA had we continued to regulate combustion emissions under
that program. You should note that we plan to amend the permit
revision procedures of part 70 and 71 in the future. Therefore,
before submitting your request for a revision to your permitting
authority, we recommend that you confirm that you are following
the correct procedure.
For more information regarding modification of your Title 5
permit to incorporate the NOC parameter limits, see the NOC/Title
5 Interface Fact Sheet (PDF) (6 pp, 324K). Top of Page
-
What type of modification process should
I use to incorporate subsequent NOCs into my CAA Title 5 permit?
We recommend that you coordinate your comprehensive performance
tests and Notifications of Compliance (NOCs) with your Title
5 permit renewal schedule. In this way, you will be able to
incorporate subsequent NOCs into your Title 5 permit through
the permit renewal process. If, however, you are unable to coordinate
these activities, you will need to modify your permit instead.
You should consult with your permitting authority to determine
the most appropriate way to do this. We believe that most sources
will be able to follow the minor permit revision procedures
of 40 CFR §70.7(e)(2) and 71.7(e)(1). This is because we
expect that over time you will only need to make minor changes
or adjustments to your existing parameter limits.
For more information regarding modification of your Title
5 permit to incorporate subsequent NOC parameter limits, see
the NOC/Title
5 Interface Fact Sheet (PDF) (6 pp, 324K). Top of Page
-
If my source is a major source, what do
I need to do to include the February 13, 2002 interim standards
and February 14, 2002 final amendments in my permit; and what
about the permanent replacement standards to be issued in 2005?
If the February 13, 2002 and February 14, 2002 requirements
were not included in your permit when your permit was issued
and you are covered by a Title 5 permit with a remaining permit
term of 3 or more years on February 13, 2002, then your permitting
authority must complete a reopening of your permit to incorporate
the applicable requirements from these two rules by August 14,
2003. If on February 13, 2002, you had a permit with a permit
term of less than 3 years, then the permitting authority can
wait until permit renewal to incorporate these applicable requirements
into your Title 5 permit. Of course, these applicable requirements
would also be included in your permit renewal application. See
40 CFR 70.5(a)(1)(iii), 70.5(c)(4)(i), 71.5(a)(1)(iii), and
71.5(c)(4)(i). (Also, remember that as a major source, your
Title 5 application and permit must address all emissions units
and their applicable requirements at the Title 5 source, not
just the section 112 emissions unit according to 40 CFR 70.3(c)(1)
and 71.3(c)(1).)
The mechanism to reopen a Title 5 permit is stipulated in
the permit itself and is referred to as "reopening for
cause." Reopenings are initiated by the permitting authority,
who will notify you at least 30 days in advance of the date
your permit is scheduled to be reopened, unless a shorter time
period is provided due to an emergency. Reopenings must be completed
no later than 18 months after the promulgation of an applicable
requirement. See 40 CFR 70.7(f) and 71.7(f).
Keep in mind, though, that an owner or operator of a source subject
to the February 13, 2002 and February 14, 2002 rules remains subject
to, and must act in compliance with, the requirements contained
in these rules, as well as all other applicable requirements to
which the source is subject, regardless of whether the requirements
are included in a Title 5 permit. See 40 CFR 70.6(a)(1), 70.2,
71.6(a)(1) and 71.2.
With respect to the permanent replacement standards that are
scheduled to be promulgated in 2005, you would follow the same
procedures as discussed above to incorporate them into your
existing Title 5 permit.
It is always advisable to consult with your permitting authority
regarding their specific Title 5 permit reopening and renewal
procedures.
For more information on Title 5 permitting, see the Title
5 Operating Permits Fact Sheet (PDF) (6 pp, 379K) in this toolkit. Also, for information on aggregating emissions
units to determine what is a source under Title 5, see the definition
of major source in 40 CFR 70.2, 71.2, and 63.2. Top of Page
-
If I became subject to Title 5 permitting
for the first time as a result of being subject to the Phase
1 HWC NESHAP (1999 standards), what do I need to do to include
the February 13, 2002 interim standards and February 14, 2002
final amendments in my permit; and what about the permanent
replacement standards to be issued in 2005?
If you first became subject to Title 5 permitting requirements
as a result of the Phase 1 HWC NESHAP promulgated on September
30, 1999, you should have submitted a complete application for
a Title 5 permit by September 30, 2000, and should have been
issued a Title 5 permit by March 30, 2002. See 40 CFR 70.5(a)(1)(i),
70.7(a)(2), 71.5(a)(1)(i), and 71.7(a)(2).
If this standard is the only reason that you are now subject
to Title 5, then you are an area/nonmajor source for which a
"positive area source finding" has been made. This
means that even though your emissions qualify only as area source
status, we chose not to exclude you from Title 5 permitting
(refer to 40 CFR §§63.1(c)(2), 70.3 (a) and (b) and
71.3(a) and (b)) under this NESHAP. (Major sources would have
already applied for or obtained Title 5 permits prior to being
subject to this NESHAP.) Title 5 requires that sources supplement
their permit applications if additional information becomes
available, such as the promulgation of new or revised requirements.
Therefore, if your Title 5 permitting authority had not released
your draft permit by February 14, 2002, then you were required
by 40 CFR 70.5(b) or 71.5(b) to supplement your Title 5 application
by providing additional information as necessary to address
the applicable requirements from the February 13, 2002 and February
14, 2002 rules. This update of the application should have ensured
that the Title 5 permit when issued, included the applicable
requirements from the February 13 and February 14 rules.
If, however, your Title 5 permit was issued and it did not
include the applicable requirements from the February 13th and
February 14th rules due to the timing of permit issuance relative
to when these standards were promulgated, then your permitting
authority can wait until permit renewal to incorporate these
applicable requirements into your Title 5 permit. This is because
the permit reopening provisions of 40 CFR 70.7(f) and 71.7(f)
only apply to major sources. See also section 502(b)(9) of the
CAA. Of course, these applicable requirements would also be
included in your permit renewal application. See 40 CFR 70.5(a)(1)(iii),
70.5(c)(4)(i), 71.5(a)(1)(iii) and 71.5(c)(4)(i). Also, remember
that as an area/nonmajor source, your Title 5 permit application
as well as your Title 5 permit, is only required to address
the emissions units which caused your source to be subject to
Title 5. However, the permit applications and permits for these
nonmajor sources must include all of the applicable requirements
that apply to the triggering units, e.g., State Implementation
Plan requirements. See 40 CFR 70.3(c)(2) and 71.3(c)(2).
Since all permits for area sources subject to the Phase 1
HWC NESHAP should have been issued by March 30, 2002, the permanent
replacement standards (scheduled to be promulgated in 2005)
will need to be incorporated into area source permits at the
time of permit renewal.
It is always advisable to consult with your permitting authority
regarding their specific Title 5 permit reopening and renewal
procedures.
For more information on Title 5 permitting, see the Title
5 Operating Permits Fact Sheet (PDF) (6 pp, 379K) in this toolkit and the section entitled "A. Positive
Area Source Finding for Hazardous Waste Combustors" in
the preamble to the final rule at 64 FR 52837, September 30,
1999. Top of Page
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