- What are the opportunities for public involvement
under the Phase 1 HWC NESHAP rule? How has public involvement
changed because of the rule?
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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- Will I still be subject to RCRA pre-application
meeting requirements under this rule?
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. Top of Page
-
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). Top of Page
- How does the public benefit from permits?
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.
Top of Page
- What are the public notification requirements
related to the performance test plans and Continuous Monitoring
System Performance Evaluation Test plan?
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). < Top of Page
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