Frequent Questions on Public Participation

In this rule, the opportunities for public involvement in the CAA permitting process are similar to those in the RCRA permitting process. The public participation requirements for Title 5 permits are identified in Title 40 Code of Federal Regulations (40 CFR) parts 70 and 71, and include such activities as allowing an opportunity for a public hearing and public comments on draft permits. In addition to the requirements in parts 70 and 71, we required an informal public meeting early in the MACT compliance process as part of the Notification of Intent to Comply (NIC) process. This meeting, which provided an opportunity for the public to learn of a source's plans for compliance was patterned after the RCRA pre-application meeting. Sources in existence at the time of the publication of the Phase 1 HWC NESHAP were required to hold this informal public meeting by July 31, 2000. Newer sources were relieved of this requirement, however, due to an October 11, 2000 mandate issued by the Court of Appeals for the District of Columbia vacating the NIC provisions. We have since removed this requirement from the federal regulations (see 66 FR 24270).

Although the NIC public meeting requirement has been vacated, opportunities for public participation continue to exist within the Phase 1 HWC NESHAP implementation framework. For example, we recommended that once a Title 5 permitted source completes its initial performance testing and submits its Notification of Compliance (NOC), the NOC be incorporated into the Title 5 permit using the significant modification procedure. The significant modification procedure requires the same level of public involvement as does the initial Title 5 permit issuance and renewal procedures (see 40 CFR 70.7(h) and 71.11). Specifically, the public is provided notice of the action to be taken (i.e., the incorporation of the NOC into the Title 5 permit) and given at least 30 days for comment, and if there is to be a hearing (i.e., meeting), notice will be provided at least 30 days in advance of the hearing. The regulatory authority will then approve/disapprove the modification. The primary rationale for recommending the significant modification procedure is to afford the public an opportunity to review all of the information pertinent to the source's compliance obligations. When including operating requirements in Title 5 permits, we want to ensure a level of public involvement that is equal to that under RCRA. For instance, when doing a significant permit revision in RCRA (a class 2 or 3 permit modification, see 40 CFR 270.42), the public is provided notice, a public meeting is held, and the public is given a 60-day comment period, before the regulatory authority can approve/disapprove the modification.

The Phase 1 HWC NESHAP has not changed any of the public involvement procedures under RCRA or under the CAA. In most instances, the RCRA emission standards and associated operating limits no longer apply once a source demonstrates compliance with the MACT standards by submitting a notification of compliance and subsequently has the operating requirements and emission standards removed from its RCRA permit. However, a RCRA permit is still required for basic hazardous waste management activities including: general facility standards, corrective action, other combustor-specific concerns such as materials handling, and other hazardous waste management units. As a result, public participation will still be an integral part of the RCRA permit process. The Title 5 permit process also has its own public participation requirements as discussed above.

For more information on Title 5 permitting and public participation, see the Title 5 Operating Permits Fact Sheet (PDF) (6 pp, 379K, About PDF) located in the Fact Sheets module of the Toolkit.

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Yes. As discussed in the Permitting FAQs, also located in the FAQ module of this Toolkit, hazardous waste combustors subject to the Phase 1 HWC NESHAP (and Title 5 permitting) still need RCRA permits. Even though the emission standards and operating requirements are being deferred to the Clean Air Act, the RCRA permit will retain conditions governing all other aspects of the hazardous waste combustor unit and the rest of the facility that continues to be regulated under RCRA such as: general facility standards, corrective action, financial responsibility, closure, and other hazardous waste management units. Also, your RCRA permit may contain additional conditions pursuant to the RCRA section 3005(c)(3) omnibus provision to protect human health and the environment. Further, if you elect to comply with certain alternatives you 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)). These conditions would supplement those required by the Phase 1 HWC NESHAP. You are still subject to the RCRA pre-application meeting requirements in 40 CFR §124.31 when renewing (i.e., as part of the renewal, a significant change is being requested via a Class 3 permit modification) or applying for a RCRA permit. Consequently, all other public participation requirements in 40 CFR Part 124 associated with the RCRA permitting process also continue to apply.

For further information, see "What is the Relationship to the RCRA Pre-application Meeting Requirements?" in the preamble to the September 30, 1999 final rule at 64 FR 52979 and the RCRA Public Participation Manual (EPA530-R-96-007, September 1996), which provides guidance on how to implement RCRA public participation requirements.

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When do facilities complying with the Phase 1 HWC NESHAP have to provide notices to the public?

Facilities complying with the Phase 1 HWC NESHAP must provide notice to the public during several stages of both the CAA Title 5 and RCRA permitting processes as outlined in 40 CFR Parts 70, 71 and 124. Under the RCRA requirements, public notice is given: prior to the submittal of a permit application, once the draft permit is prepared, and during any significant permit modifications (Class 2 and 3 modifications). Likewise, we require similar public participation opportunities for CAA Title 5 permits.

With respect to the Phase 1 HWC NESHAP, we originally required that sources provide notice to the public of their scheduled informal public meeting associated with the Notification of Intent to Comply (NIC) process. Sources in existence at the time of the publication of the Phase 1 HWC NESHAP were required to hold this informal public meeting by July 31, 2000. Newer sources were relieved of this requirement, however, due to an October 11, 2000 mandate issued by the Court of Appeals for the District of Columbia vacating the NIC provisions. We have since removed this requirement from the federal regulations (see 66 FR 24270). Regardless, there are still opportunities for public participation in the Title 5 process. Opportunities for public participation exist when applying, renewing, reopening, and requesting significant modifications for a Title 5 permit. For instance, we expect that when sources incorporate their Notification of Compliance (NOC) into their Title 5 permits, they will follow the significant modification procedure. This procedure provides an opportunity for public participation and specifically, will afford the public an opportunity to review all of the information pertinent to the source's compliance obligations. The public participation requirements include: notice of the action to be taken, a minimum of 30 days for comment, and the opportunity for a hearing (i.e., meeting). See 40 CFR 70.7(h) and 71.11(d).

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Air permits contain provisions requiring sources to comply with applicable pollutant emission limitations. The permits can also require sources to operate pollution control equipment in a manner that assures compliance with these emission limitations, and to report time periods when these emission limitations are not achieved. The primary benefit to the public is that air permits limit the emission of air pollutants from a stationary source.

For pre-construction permits, also known as New Source Review (NSR) permits, federal law does not allow a source owner/operator to construct or modify a major stationary source unless they can demonstrate that the project will not cause or contribute to a violation of the National Ambient Air Quality Standards (NAAQS). Furthermore, source owner/operators are required to provide the public notice of their proposed construction. Note that a "major" source is defined differently under NSR (see 40 CFR 51.166(b)(1)(i)) than under Title 5 (see 40 CFR 63.2).

For operating permits, also known as Title 5 permits, a major source owner/operator is required to compile all applicable air pollution requirements at their source (e.g., existing permit conditions, State Implementation Plan requirements and NSR requirements) for purposes of obtaining one comprehensive permit, the Title 5 permit. An area source owner/operator may also be required to obtain a Title 5 permit, as is the case with the Phase 1 HWC NESHAP. See 40 CFR §§63.1(c)(2), 70.3 (a) and (b) and 71.3(a) and (b). The Title 5 application and permit requirements for area sources are less inclusive. Your Title 5 permit application, as well as your Title 5 permit, is only required to address the emissions unit(s) which caused your source to be subject to Title 5. The application and permit however, must include all of the applicable requirements that apply to the triggering units (e.g., State Implementation Plan requirements). The Title 5 permit process provides several opportunities for public participation during permit issuance, reopening, renewal, and significant modifications. Note that a "major" source is defined differently under Title 5 (see 40 CFR 63.2) than under NSR (see 40 CFR 51.166(b)(1)(i)).

RCRA permits are designed to protect human health and the environment by ensuring that all wastes are managed safely. To ensure protectiveness, RCRA permits address facility-wide issues such as corrective action, general facility standards, and unit specific requirements for hazardous waste combustors (HWCs) and other types of hazardous waste management units at the facility. Furthermore, construction of a new hazardous waste management unit cannot begin until a final approved RCRA permit is issued for the unit (see 40 CFR 270.10(f)). Prior to the Phase 1 HWC NESHAP, the combustor-specific portion of RCRA permits set emission standards and operating requirements. Specifically, RCRA permits for HWC facilities set the operating requirements that specify the allowable ranges for critical parameters to ensure compliance with national risk-based emission standards. Compliance with those operating parameters, and thus with the emission standards, is then verified through continuous monitoring required by the RCRA permit. As a result of the Phase 1 HWC NESHAP, the operating requirements and performance standards in the RCRA permits are generally superseded by the technology-based MACT standards and are being placed into Title 5 permits. Regardless of the placement of emission standards and operating requirements for HWCs into Title 5 permits, RCRA permits will still ensure that hazardous wastes are managed properly by addressing: general facility standards, corrective action, other combustor-specific concerns such as materials handling, any risk-based emissions limits and operating requirements as appropriate, and regulation of other hazardous management units at the facility.

Once your regulatory authority approves your performance test plan (comprehensive or confirmatory) and your Continuous Monitoring System (CMS) Performance Evaluation Test plan, you must make the plans available to the public for review. You are required to issue a public notice announcing the approval of the plans and the location where the plans will be made available.

We included this requirement as part of our overall approach to ensure that ample opportunities would be made available for public participation under the Hazardous Waste Combustion NESHAP. It is important to remember that although the primary objective of the Hazardous Waste Combustion NESHAP was to establish technology-based emission standards, the NESHAP also provided an opportunity for EPA to integrate CAA and RCRA combustion regulatory requirements so as to minimize duplication to the extent possible. Thus, in most instances the RCRA emission standards and associated requirements no longer apply once a source demonstrates compliance with the MACT standards. Because the RCRA combustion requirements contain several distinct opportunities for public involvement, including one that requires the state program director to notify the public prior to a facility conducting a trial burn, we believed it was important to include similar requirements in the Hazardous Waste Combustion NESHAP.

The Hazardous Waste Combustion NESHAP currently does not specify how you should notify the public once your test plans have been approved, nor does it specify how long and where the plans must be made available for public review. We recommend that you refer to the RCRA trial burn public notice and information repository requirements as a guide. Under the trial burn public notice requirements, a state director must send a notice to all persons on the facility mailing list prior to a trial burn. The notice must announce the scheduled dates for the trial burn and provide basic information regarding the facility and its proposed test. This information includes, for example, the facility contact names and telephone numbers, test dates, and the location where the public may review the trial burn plan. The notice must be mailed within a reasonable time period before the scheduled date of the trial burn (typically such notices are sent out 30 days prior to commencement of the test). With respect to where you may choose to locate the MACT test plans to allow for public review, you may wish to consult the RCRA information repository requirements. These regulations require that the repository be located in a place with suitable public access, be open during reasonable hours, and give the public access to photocopy service (or an alternative means for people to obtain copies of the plan). Regarding how long the plans should be available for review, we recommend that you maintain the copies in a publically accessible location until completion of the tests.

For more information, see 60 FR 63417 and 40 CFR §§63.1207(e)(2), 124.33, 270.62(b)(6) and 270.66(d)(3). <

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