[Federal Register Volume 59, Number 105 (Thursday, June 2, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13094]
[[Page Unknown]]
[Federal Register: June 2, 1994]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 124 and 270
RCRA Expanded Public Participation and Revisions to Combustion
Permitting Procedures; Proposed Rule
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 124 and 270
[FRL-4889-1]
RCRA Expanded Public Participation and Revisions to Combustion
Permitting Procedures
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) today proposes to
amend its regulations under the Resource Conservation and Recovery Act
(RCRA) governing the permitting of hazardous waste management
facilities. This proposed rule expands the opportunities for public
involvement by allowing public participation at an earlier point in the
permitting process for all RCRA facilities, and during key permitting
milestones. This proposed rule also amends and clarifies permit
modification classifications pertaining to combustion facilities.
Finally, this proposed rule amends the procedures for interim status
combustion facilities during the trial burn period by making the
procedures more equivalent to the procedures governing permitted
facilities.
DATES: Comments on this proposed rule must be submitted on or before
August 1, 1994.
ADDRESSES: Written comments on this proposal should be addressed to the
docket clerk at the following address: U.S. Environmental Protection
Agency, RCRA Docket (5305), 401 M Street SW., Washington, DC 20460.
Commenters should send one original and two copies and place the docket
number (F-94-PPCP-FFFFF) in the comments. The docket is open from 9
a.m. to 4 p.m., Monday through Friday, except for Federal holidays.
Docket materials may be reviewed by appointment by calling (202) 260-
9327. Copies of docket material may be made at no cost, with a maximum
of 100 pages of material from any one regulatory docket. Additional
copies are $0.15 per page.
FOR FURTHER INFORMATION CONTACT: RCRA Hotline at 1-800-424-9346 (in
Washington, DC, call (703) 412-9810), or Patricia Buzzell at (703) 308-
8632, Office of Solid Waste, U.S. Environmental Protection Agency, 401
M Street SW., Washington, DC 20460.
Supplementary Information:
Preamble Outline
I. Authority
II. Background
III. Section by Section Analysis
A. Expanded Public Participation Requirements for all RCRA
Facilities
1. Purpose of Public Involvement in Today's Rule
2. Current Public Participation Requirements in the RCRA Permit
Process
3. Summary of Proposed Approach
a. EPA's Approach to Public Participation
b. Structure of Proposal
c. Overview of Proposed Requirements
4. Applicability of Public Involvement Requirements
a. Equitable Public Participation
b. Applicability of the Pre-application Meeting
c. Applicability of the Public Notice at Permit Application
d. Applicability of the Information Repository
5. Detailed Discussion on the Proposed Public Involvement
Requirements
a. General Considerations Regarding Public Notices
b. Requirements for the Pre-application Meeting
c. Requirement for Public Notice at Permit Application
d. Requirement for an Information Repository
B. Permit Modification Procedures in Section 270.42
1. Purpose
2. Background Summary
3. Technical Corrections
4. Unclassified Modifications
5. Revisions to Appendix I of Sec. 270.42
a. Structure of Today's Proposal
b. Shakedown
c. Trial Burn
C. Requirements Regarding the Trial Burn
1. Purpose and Applicability
2. Summary of the Proposed Approach
3. Current Trial Burn Procedures
a. Current Trial Burn Procedures for Permitted Combustion
Facilities
b. Current Trial Burn Procedures for Interim Status Combustion
Facilities
4. Discussion of Proposed Procedural Requirements for Trial
Burns
a. Submittal of Trial Burn Plans for Interim Status Facilities
b. Approval of Trial Burn Plans for Interim Status Facilities
c. Notice of Trial Burns
d. Post Trial Burn Period at Interim Status Combustion
Facilities
e. Additional Trial Burns
f. Denial of Permit Application After the Trial Burn
IV. Solicitation of Comments
A. Expanded Public Participation
1. Equitable Public Participation
2. Environmental justice
3. Pre-application meeting--applicability
4. Pre-application meeting--possible alternatives
5. Pre-application meeting--notice requirements
6. Public notice at permit application--applicability
7. Public notice at permit application--responsibility
8. Information repository
B. Requirements Regarding the Trial Burn
1. Notices of Trial Burns
C. Cost Estimates
V. State Authority
A. Applicability of Rules in Authorized States
B. Effect on State Authorizations
1. Pre-HSWA Provisions
a. Part 270--Hazardous Waste Permitting
b. Part 124--Public Participation Requirements
2. Procedures Applicable to pre-HSWA Provisions
VI. Regulatory Impact Analysis Pursuant to Executive Order 12866
A. Cost Analysis
1. Expanded Public Involvement Opportunities
2. Modification of the Permitting Process
a. Direct Costs
b. Other Effects
B. Summary of Benefits
1. Expanded Public Involvement Opptortunities
2. Modification of the Permitting Process
C. Regulatory Flexibility Act
1. Small Entity Impacts of Expanded Public Participation
Requirements
2. Small Entity Impacts of Revised Requirements for ``Data in
Lieu of'' a Trial Burn
3. Small Entity Impacts of Requirements Following a Trial Burn
Failure
D. Enhancing the Intergovernmental Partnership
E. Paperwork Reduction Act
I. Authority
These regulations are proposed under the authority of sections
2002, 3004, 3005 and 7004(b) of the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act, as amended by
the Hazardous and Solid Waste Amendments of 1984.
II. Background
Section 3004 of the Resource Conservation and Recovery Act (RCRA),
requires owners and operators of treatment, storage, and disposal
facilities to comply with standards ``necessary to protect human health
and the environment.'' These standards are implemented generally
through interim status standards applicable to facilities that achieve
interim status under RCRA section 3005(c), and through permits that are
issued by EPA or under authorized State programs. EPA continuously
strives to improve the hazardous waste management standards in order to
ensure protection of human health and the environment.
The role that combustion plays in hazardous waste management has
changed dramatically over the last decade and a half. With the
recognition that land disposal of hazardous waste could present long
term pollution problems, larger use of combustion ensued. However,
waste treatment alone will not totally solve the problems associated
with hazardous waste disposal. Therefore, EPA decided to take a fresh
look at how to achieve a fully integrated waste management program that
gives source reduction its proper emphasis.1
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\1\ While the Agency is committed to source reduction as its
primary approach to waste management, it believes that there will
continue to be a role for waste combustion, provided it is done
safely and in compliance with federal regulations. Combustion is a
proven waste treatment technique to address many types of wastes.
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To this end, on May 18, 1993, the Agency announced its Draft
Strategy on Waste Minimization and Hazardous Waste Combustion. EPA
issued the strategy in draft form as the starting point for the debate
on what source reduction/recycling actions and regulatory changes the
Agency should pursue. The Agency has been aggressive in involving all
the stakeholders as part of the national dialogue on these national
policy questions. In addition, since EPA and the States are partners
and co-regulators in hazardous waste management, any evaluation of the
role of waste minimization and hazardous waste combustion in the
hazardous waste management system must be a joint federal and state
effort. Thus, EPA and the States have used, and will continue to use, a
joint EPA/State committee to further develop the national strategy.
In the context of a national dialogue on waste minimization and
hazardous waste combustion, the Agency has identified a number of
specific actions it would pursue to ensure that existing combustion
facilities operate safely and without unacceptable risks to human
health and the environment. These actions include:
Aggressive use of waste minimization measures in permitting
and enforcement efforts that involve generators of combustible waste,
as well as incinerators and boilers and industrial furnaces (BIFs);
Ensuring that a comprehensive risk assessment, including
indirect risk, is conducted at each facility site;
Use of omnibus permitting authority to include dioxin/furan
emission limits and more stringent particulate matter standards in new
permits, where necessary to protect human health and the environment;
and
Giving low management priority to permitting any new
incinerator and BIF capacity, unless the new facilities would replace
and be a significant improvement over existing capacity; in other
words, the draft strategy makes interim status combustion facilities
the highest permitting priority, in terms of processing permits, in
order to bring these facilities under more comprehensive environmental
controls.
In addition, the draft strategy calls for development of mechanisms
to facilitate increased public participation in the permitting process.
By developing such mechanisms, EPA hopes to allow the public early
access to information about the facility and an opportunity to
participate in permitting decisions regarding hazardous waste storage,
treatment, or disposal facilities (TSDFs) that may affect their
communities.
By providing citizens an enhanced opportunity to participate in
facility permitting, the Agency is striving to give citizens more input
into decisions about facilities that may impact their communities. This
may be particularly so in low income or minority communities where the
lack of this opportunity has been felt strongly. Consistent with the
Agency's efforts to ensure environmental justice, EPA intends that this
rulemaking will give people in such communities increased opportunity
to affect RCRA permitting decisions.
The draft strategy has many components and implementing all of its
aspects will take time. Today's notice is the first regulatory action
that EPA has taken under the draft strategy; it addresses public
participation and several improvements to the RCRA permitting program
that EPA had envisioned prior to the development of the draft strategy.
Specifically, EPA proposes to: (1) Expand opportunities for timely and
effective public involvement in the permitting process for all types of
units; (2) improve the regulations pertaining to permit modifications,
specifically, to clarify combustion modification classifications; and
(3) align certain interim status requirements for combustion units with
the more stringent permit standards for new units, particularly with
regard to trial burns. Although the Draft Waste Minimization and
Combustion Strategy focuses on combustion units, many of the
requirements EPA is proposing today are more encompassing and apply to
all RCRA facilities.
Additional efforts are underway to continue to improve EPA's
hazardous waste management standards and to implement other components
of the Agency's Draft Waste Minimization and Combustion Strategy.
Today's proposed rule is only one piece of an integrated and
comprehensive set of regulatory, non-regulatory, and guidance materials
intended to support the Agency's Draft Waste Minimization and
Combustion Strategy.
EPA has taken administrative steps to address the section of the
draft strategy that discusses the Agency's permit denial and appeals
process. In particular, the draft strategy indicates that EPA will
evaluate ways to limit the burning of hazardous waste in interim status
units during the administrative appeal of a permit denial, prior to a
final decision. EPA considered a number of options for implementing
this aspect of the draft strategy and selected one that could be
effected immediately.
The Agency issued a directive under Administrator Browner's
signature, on March 16, 1994, to prioritize and expedite the review by
the Environmental Appeals Board (EAB) of Federal RCRA permit denials.
Under the procedures set forth in the directive, entitled Expedited
Administrative Review of Appeals of RCRA Permit Denials Filed by
Interim Status Hazardous Waste Combustion Facilities, the Administrator
directed the EAB to take final action on any combustion permit denial
no later than 90 days from the receipt of a petition for review. EPA
believes that these procedures will promote the draft strategy's goal
of limiting burning of waste during the potentially lengthy appeals
process, during which interim status facilities whose permits were
denied were entitled to continue operating under interim status,
without infringing upon important rights of appeal.
III. Section by Section Analysis
A. Expanded Public Participation Requirements for All RCRA Facilities
1. Purpose of Public Involvement in Today's Rule
The purpose of this section of the proposed rule is to enhance
public involvement in the RCRA permit process by improving and
increasing the opportunities for public participation. The permitting
agency should carry out these new opportunities concurrently with the
existing permitting process. Today's proposed requirements should not
delay the process.
``Public participation'' is part of the process leading to a final
EPA or State permit decision; it provides an opportunity for the public
to express its views to the permitting authority and the applicant, and
enables both to give due consideration to the public's concerns.
Today's proposal will establish procedures to promote better and more
timely information-sharing, not only between the public and the
permitting agency, but among the facility applicant, EPA (or the State)
and the public. In particular, the rule places new responsibilities on
the permit applicant. The Agency believes that the permit applicant,
who is responsible for initiating the permit process, is a key
participant in the public participation process because it is the
permit applicant who must interact and operate within the community.
Although this portion of today's proposal applies to all applicants
for new RCRA permits, certain aspects of the proposal specifically
respond to the Agency's Draft Waste Minimization and Combustion
Strategy (see the Background Section of today's preamble for further
discussion of the draft strategy). As noted above, one component of the
draft strategy specifically calls for greater and earlier public
involvement in the hazardous waste permitting process. Accordingly, EPA
proposes to amend the hazardous waste regulations to provide for
earlier public involvement in the permitting process and, in the case
of combustion units, to ensure public involvement at the trial burn
plan stage. For example, today's regulations propose specific
provisions to: solicit public participation at the beginning of the
permit process for all new and interim status facilities; maintain open
lines of communication with the public throughout the permit process;
and increase public involvement with regard to trial burn plans at
combustion facilities. These provisions will provide the public an
expanded role in the permitting process by promoting community
participation and input at all decision-making levels. These provisions
will also help the permitting authority to better address public
concerns during the permitting process and foster continued community
involvement after facilities are permitted. These procedures are
consistent with, and in furtherance of, the congressional mandate,
expressed in RCRA section 7004(b)(1), to ``encourage'' and ``assist''
public involvement in implementation of the permit program.
2. Current Public Participation Requirements in the RCRA Permit
Process
Today's proposed public involvement requirements build upon the
current RCRA public participation process. EPA does not intend for the
proposed provisions to replace or delete the existing public
participation requirements in 40 CFR part 124 and 40 CFR 270.42; these
requirements form the foundation for public involvement activities
during the RCRA permitting process.
Four steps make up the existing RCRA permitting decision process:
(1) Receipt and review of the permit application; (2) preparation of
draft permit or decision to deny; (3) public comment period; and (4)
final permit decision. EPA regulations currently require public
involvement activities during two of the four steps. The first step in
the decision process begins when the permitting agency receives the
permit application from the facility. Under the existing federal rules,
no direct public involvement activities occur at this stage; however,
the permitting agency begins to assemble a mailing list of appropriate
government agencies and individuals, including interested members of
the public, as required by Sec. 124.10(c). The permitting agency uses
the list to distribute information about meetings, hearings, and
available reports and documents later in the permit process. In
addition, the permitting agency may periodically publicize the
existence of this list and solicit additions to it.
The second step in the permitting decision process occurs after the
regulatory agency completes review of the permit application. At this
point, the regulatory agency decides either to tentatively deny the
permit application or to prepare a draft permit for the facility. The
third step occurs once the regulatory agency makes its preliminary
decision about the permit application. Under the existing regulations,
the public has its first formal participation opportunities in this
step. If the permitting agency prepares a draft permit, it must give a
formal public notice that the draft permit is available for public
review and comment. In addition, the permitting authority must formally
notify the public if it plans to deny a permit application. In both
cases, the permitting agency must place the notice in a major local
newspaper, broadcast it over local radio stations, and send it to all
persons on the mailing list. A 45-day public comment period on the
draft permit or notice of intent to deny the permit follows the
publication of the notice. The comment period provides the public with
an opportunity to comment, in writing, on conditions contained in the
draft permit or notice of intent to deny. The regulatory agency may re-
open or extend the comment period if, during the comment period, it
receives substantial new questions or issues concerning the draft
permit decision. In addition, the public may request that the
permitting agency hold a public hearing on the draft permit decision.
If the regulatory agency holds a public hearing, it must give the
public a 30-day advance notice of the time and place of the hearing.
The final permit decision is the fourth step in the permitting
decision process. After the public comment period closes, the
regulatory agency reviews and evaluates all written and oral comments
and, then, issues a final permit decision. At this time, the regulatory
agency must send a notice of decision, together with a written response
to all significant comments, to all persons who submitted public
comments or requested notice of the final permit decision (in
accordance with Sec. 124.17). The response to comments summarizes all
significant comments received during the public comment period and
explains how the permitting authority addressed or rejected the
comments in the final permit decision. The permitting agency must place
the written response to comments in the Administrative Record
established at the regulatory agency.
3. Summary of Proposed Approach
a. EPA's approach to public participation. Today's amendments
introduce provisions for new public notices and meetings in the permit
process. Through this approach, EPA intends to open opportunities for
public participation earlier in the permit process. Through earlier
public involvement and improved public awareness, today's requirements
will result in more meaningful and interactive public participation. At
the same time, these amendments are flexible and allow permitting
agencies and facilities to tailor public participation activities
according to facility-specific circumstances.
By expanding public involvement opportunities, the proposed rule
should streamline the permitting process, since public issues will be
raised and addressed earlier in the process. At present, formal public
involvement in the permitting process does not begin until the draft
permit stage. By this point in the process, the permitting authority
and the applicant already have discussed crucial parts of the Part B
application; thus, the public often feels that most major decisions on
the permit are made before public input. Under today's proposed
requirements, the permitting authority will be focusing discussion and
dialogue on the permit application earlier in the permitting process.
EPA wishes to encourage the public to participate in these earlier and
expanded opportunities for involvement, fully raising issues and
concerns early so they may be evaluated and responded to. Such early
and meaningful dialogue should result in an expeditious permit
decision.
The earlier public involvement opportunities proposed today allow
the public the opportunity to raise issues before many decisions are
made. This then allows the applicant and the permitting authority to
address citizen concerns. The idea of promoting earlier public
involvement in the permitting process is also consistent with
recommendations put forth by the RCRA Implementation Study and a number
of outside sources (e.g., the Keystone Center, environmental groups,
and business trade associations).
EPA considered a variety of approaches in developing today's
proposal. After careful evaluation, EPA believes that the proposed
requirements will meet the Agency's goal of providing increased
opportunity for public involvement. Today's proposed requirements would
not, of course, preclude additional public involvement activities
beyond the regulations, where appropriate on a facility-specific basis,
such as alternative public outreach activities, supplementary meetings,
or fact sheets. At RCRA locations, in fact, permitting agencies and
facilities have implemented a variety of public involvement activities
that have helped affected communities to understand and participate in
permit decision-making. EPA has published a practical how-to guidance
for regional permit writers and public involvement staff, entitled the
RCRA Public Involvement Manual (September 1993/ EPA 530-R-93-006). In
the guidance, EPA recommends public involvement activities to encourage
productive public participation in a variety of community and facility
situations. Additional examples of ways to expand public involvement,
beyond what is required by today's proposed regulations, are included
in section 5.a: General Requirements for Providing Public Notice.
Before drafting this proposal, the Agency contacted a variety of
interested parties involved in public outreach activities. EPA had
discussions with a range of groups, including: Public interest groups,
industry, state and local government, Indian tribal representatives,
trade associations, and public involvement specialists from EPA regions
and Headquarters. These groups submitted valuable comments and
suggestions to the Agency on how to expand and enhance public
involvement. The Agency also held an informal meeting on October 13,
1993, with a small, yet diverse group of stakeholders to receive their
input and to facilitate the exchange of information concerning greater
opportunities for public participation. This meeting was a starting
point for efforts to improve public involvement in the permitting
process; EPA would like to continue these discussions beyond this
proposal.
Today's rule is consistent with, and builds upon, the Agency's
final Public Participation Policy, published in the Federal Register at
46 FR 5740, January 19, 1981. This policy established a uniform set of
guidelines concerning public participation in all EPA programs. The
guidelines encouraged EPA programs to provide a consistent level of
public involvement during EPA activities, including State and local
activities funded or delegated by EPA. The 1981 policy embodied many
public comments on improving the process and outlined new steps that
the Agency should take to ensure that members of the public are given
earlier and better opportunities to be involved in EPA decision-making.
Among other things, the policy emphasized public access to information
as a critical component to successful public participation programs,
and encouraged the use of a variety of outreach activities throughout
the permit process so that the public can be kept up to date on matters
of concern. Today's rule builds upon these policy statements and, in
many cases, strengthens them through proposed regulatory language. For
example, EPA is proposing regulatory requirements to provide the public
with the opportunity to attend a public meeting at the outset of the
permitting process. Additional public notices, including improved
notification activities, are required at new points within the permit
process. These proposed notices will provide information to the public
at the beginning of decision-making processes so that the public will
have adequate time to respond. Finally, today's rule adopts the ideas
suggested by the policy on ``depositories'' and incorporates them into
a flexible tool called the information ``repository.''
In a separate effort, the Agency is reviewing its regulations that
impose restrictions on siting RCRA hazardous waste treatment, storage,
and disposal facilities (TSDFs). The Agency's current regulations
impose restrictions on siting these facilities in flood plains and
seismic zones. EPA believes that there may be a need for enhanced
national minimum standards as required under section 3004(o)(7) of
RCRA. Consistent with Executive Order 12898 on environmental justice,
EPA is reviewing existing and potential standards for siting hazardous
waste TSDFs. As a part of this review, the Agency intends to look at
siting TSDFs in proximity to populations and institutions such as
schools, hospitals, and prisons, to determine whether there is a need
to consider (and the appropriate way to do so) such factors in siting
these facilities.
In conducting the review, EPA will recognize the appropriate role
of State and local governments in land use planning and facility
siting. EPA does not intend to preempt this role. Rather, it is EPA's
intention to review the current procedures and requirements to identify
whether any additional measures are necessary to protect human health
and the environment.
b. Structure of proposal. In expanding the public involvement
activities within the permit process, EPA proposes to place these
requirements within 40 CFR parts 124 and 270. EPA placed the general
requirements for public participation within Part 124 Subpart B--
Specific Procedures Applicable to RCRA Permits. Subpart B is an already
established section, which does not contain any regulations at this
time. EPA proposes to place public involvement requirements within
Subpart B to ensure a clear and orderly integration of new RCRA
permitting requirements into part 124. Please note that other sections
of this rule will address additional public involvement requirements
during the trial burn phase within part 270. The flow chart shown in
Figure 1 indicates the points in the permitting process where the
proposed additions to public involvement activities would occur.
BILLING CODE 6560-50-P
TP02JN94.002
BILLING CODE 6560-50-C
To avoid any potential confusion, it should be noted that
facilities operating under interim status would not lose this status if
they do not follow the procedures the Agency is proposing in part 124
or 270. However, the permitting agency may choose to pursue an
enforcement action, not connected to the termination of interim status
provisions, including a requirement that the application be resubmitted
or the notice be republished, if a facility fails to comply with the
requirements. Similarly, for a new facility, the permitting agency's
recourse would be to require that the application be resubmitted or the
notice republished under the correct procedures, rather than permit
denial.
c. Overview of proposed requirements. EPA first proposes that a
permit applicant must give notice and hold at least one informal public
meeting before submitting a RCRA permit application to EPA or the
State. EPA believes this requirement will address the public concern
that public involvement occurs too late in the RCRA permit process. One
purpose of the meeting is to inform the affected community of the
facility's proposed operations and its intent to apply for a RCRA
permit in the near future. Another important purpose of the meeting is
for the applicant to solicit and receive public input. EPA believes
that dialogue between the applicant and the public, before the
permitting process is initiated with the permitting authority, will
allow the public to raise important community issues early in the
process, and will promote discussion between the public and the persons
seeking the permit. In this way, the public will have direct input to
facility owners or operators; at the same time, facility owners or
operators can gain an understanding of public expectations and attempt
to resolve public issues well in advance of the draft permit. For
example, facility owners or operators could address public concerns
through the permit application itself, by changing the proposed design
or operation of the facility, or through subsequent public
interactions.
The notice and meeting also will assist in the generation of a
mailing list of interested citizens. This list is a currently required
mechanism used in the distribution of notices and information
concerning the facility at points throughout the permit process. The
permitting authority is responsible for developing a representative
mailing list for public notices under 40 CFR 124.10 (see also preamble
Section A.2: Current Public Participation Requirements in the RCRA
Permit Process). Section 124.10 specifies the timing and content of
such mailing lists. The pre-application meeting will assist the
permitting authority in identifying people or organizations to include
on the list so that it is complete and represents everyone who
demonstrates an interest in the facility and the permit process. The
permitting authority may develop the mailing list, in part, from the
pre-application meeting attendance list. It has been EPA's experience
that mailing lists often are not fully developed until the permitting
authority issues the draft permit for public comment. Since EPA seeks
to increase public participation earlier in the process, generation of
a mailing list should precede such activities.
Second, EPA is proposing that the permitting authority provide
public notice upon receiving a permit application. Under this
provision, the permitting authority would notify the public of proposed
facility operations at a much earlier stage than 40 CFR part 124
currently requires. Existing Sec. 124.10 requires the permitting
authority to provide public notice of a facility's intention to obtain
a RCRA permit, but only after the permitting authority has received and
reviewed the application and proposes to grant or deny the permit. Due
to the volume and complexity of information contained in a permit
application, this process may take several years to complete from the
time a permit application is initially submitted. (See Figure 1.) For
some facilities, the public has expressed a concern that critical
decisions about the facility already have been made by the time the
permitting authority proposes the draft permit decision. A requirement
for a notice at the permit application stage would allow members of the
public to review a permit application at the same time as the
permitting agency and inform the agency of any concerns or comments
they may have.
In addition to involving the public earlier in the RCRA permitting
process, the proposed provisions will also allow the public to get an
overview of the RCRA application and permitting process, and the parts
played by the permitting authority and the facility owner and operator
in that process. Under the proposed rule, the permit applicant conducts
the pre-application meeting since it is the applicant who initiates the
permit process by submitting a permit application. The permitting
authority issues the notice when it receives the permit application
from the facility since, at that time, EPA or the State will use its
authority to begin review of the permit application.
Table 1 below summarizes the applicability of the pre-application
and notice of application provisions in today's rule.
Table 1.--Proposed Requirements for the Pre-Application Meeting and the
Notice of Application
------------------------------------------------------------------------
Facility stage in Facility pre- Agency notice of
permit process application meeting application
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New Facility........... Yes.................... Yes.
Interim Status......... Yes.................... Yes.
Permit Renewal......... No..................... Yes.
Permit Modification.... No..................... No.
Post-Closure Permit.... No..................... No.
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Third, the Agency is proposing a provision that will allow the
Director the discretion to require the facility to establish an
information repository. An information repository is a central
collection of documents, which could include reports, summaries of
data, studies, plans, etc., that the regulatory agency considers in
evaluating the permit. The collection would be set up by the applicant
in a convenient and accessible location. An information repository,
similar to those required under Superfund and proposed under the RCRA
Subpart S corrective action regulations of 40 CFR part 264 (see 55 FR
30798, July 27, 1990), would allow the interested public greater access
to information, such as the permit application, and other material
relevant to the permit decision process. To maintain flexibility in the
permit process, and in recognition that information repositories may
not be necessary for all facilities, the Director will use his or her
discretion, based primarily on the level of public interest, in
requiring a facility to establish an information repository. In
situations where public interest is high, a locally established
repository may benefit a community by providing convenient and timely
access to important information about a local facility. If EPA or an
authorized State decides to require a facility to establish a
repository, it should be noted that only one repository is needed to
fulfill the intent of today's proposed requirement, whether the
permitting process for that facility is EPA-lead, State-lead, or joint
federal-state.
4. Applicability of Public Involvement Requirements
a. Equitable public participation. The Agency believes that
affected members of the community should have an equal opportunity to
participate in the permitting process. EPA considers the community to
be all residents in the vicinity of the facility who might be most
affected by the facility's operations. The Agency recognizes that local
communities may be composed of a diverse group of people who may not
share English as a primary language. Therefore, for a notice to be
effective, the Agency is requiring under proposed Sec. 124.30 that both
the facility and the permitting authority make all reasonable efforts
to communicate with the various segments within the community.
Multilingual public notices and fact sheets may be necessary for some
communities, for example, communities that contain a significant non-
English speaking population. Likewise, interpreters may need to be
provided at public meetings and hearings. EPA understands that
developing multilingual notices and fact sheets, and providing
translators, could be difficult to implement depending on the size,
composition, and diversity of the community. Also, resource constraints
could be a factor when determining what is a ``reasonable effort'' to
communicate effectively with the public. EPA would like to solicit
comments on how the requirements proposed in Sec. 124.30 could be
implemented.
a.1. Agency activities dealing with environmental justice.
The Agency is placing heavy emphasis on environmental justice
issues across all environmental programs. The Agency has stated
repeatedly that environmental justice is one of EPA's top priorities;
all offices should consider environmental justice issues during
decision-making.
In December 1993, the Office of Solid Waste and Emergency Response
(OSWER) established an Environmental Justice Task Force to broaden
discussion of these issues and formulate short and long-term
recommendations for how OSWER can integrate the Agency's environmental
justice goals and objectives into all of OSWER's programs and
activities. Specifically, the task force has examined ways that OSWER
can better address the concerns of minority populations and low-income
populations that are affected by OSWER-regulated facilities and may
face disproportionately high and adverse human health or environmental
effects. The task force has included representatives from all OSWER
program and administrative offices, as well as other offices throughout
the Agency that have an interest in OSWER's programs and activities.
The task force has met with representatives from citizen groups,
industry, Congress, and state and local governments to ensure that
stakeholders have an opportunity to influence OSWER's environmental
justice strategy. The draft recommendations emerging from OSWER's
Environmental Justice Task Force are consistent with and supportive of
the Agency's environmental justice goals and objectives, as well as the
President's Executive Order on Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations.
The Agency believes that this rule presents significant
opportunities to be responsive to environmental justice concerns in
relation to specific OSWER-regulated facilities. The measures
recommended in this proposed rule would help enhance the level of
public participation in the permitting process and thereby provide
minority populations and low-income populations with a greater voice in
decision-making and a stronger opportunity to influence permit
decisions early in the process. In today's proposal, the Agency would
like to solicit comments on ways to incorporate environmental justice
concerns into the RCRA public participation process.
In addition to public participation, some of the key environmental
justice issues for the RCRA permitting program include: (1) The siting
of hazardous waste facilities; (2) the manner in which EPA should
respond when confronted with a challenge to a RCRA permit based on
environmental justice issues; and (3) environmental justice concerns in
corrective action cleanups. The Agency requests comments on these
aspects of the RCRA program in order to help identify the need for
additional rulemaking or policy guidance.
The Agency has also begun to focus on how EPA's programs can take
account of the ``cumulative risk'' and ``cumulative effects''
associated with human exposure to multiple sources of pollution.
Although the Agency does not expect to address these issues in this
rulemaking, EPA would like to solicit comment on suggested
methodologies and procedures for undertaking this type of analysis.
With regard to the siting of a RCRA facility, EPA has in the past
focused on geological factors to be considered when siting a facility,
but has not undertaken a concerted effort to address environmental
justice issues associated with the siting of a hazardous waste
facility. The draft final report of the OSWER Environmental Justice
Task Force recommends that the Agency compile a national summary of
existing State, tribal, and local government requirements for siting
with regard to environmental justice. The draft report also recommends
that the Agency develop guidance for State, tribal, and local
governments on how to best site a hazardous waste facility in the light
of environmental justice concerns. In developing this guidance, the
Agency would look to existing State and local requirements and would
consult with a wide range of public and private stakeholders. EPA has
placed the OSWER Environmental Justice Task Force Draft Final Report,
April 25, 1994, into the docket for this proposed rule. The Agency is
soliciting comments on the recommendations in the draft final report,
as well as on any additional steps that the Agency might wish to
consider in order to respond to environmental justice concerns
associated with the siting of RCRA facilities.
EPA is also interested in exploring appropriate responses when
confronted with a challenge to a RCRA permit based on environmental
justice concerns. This issue has arisen in the context of recent
challenges under Title VI of the Civil Rights Act alleging that federal
grants allocated to States to support State RCRA permit programs are
being administered in a discriminatory manner. The draft report of the
OSWER Environmental Justice Task Force recommends that the Agency first
seek to mediate appropriate resolutions among affected citizens, the
State, and the permittee. Where necessary and prudent, the task force
also proposes that the Agency explore ways of using risk and/or health
assessments to determine whether the affected community would face
unacceptable human health or environmental effects if the permit were
issued. EPA requests comment on these recommendations as well as on the
relationship of Title VI to RCRA permitting and EPA's administration of
state grants.
The Agency would also like to solicit comments on ways to
incorporate environmental justice concerns into the RCRA corrective
action program. The OSWER Environmental Justice draft task force report
recommends that the Agency examine the current priority-setting method
for the cleanup of RCRA corrective action sites to determine whether
this system adequately addresses environmental justice concerns. The
task force has also recommended that environmental justice policy
governing cleanup actions at RCRA corrective action facilities be
consistent with the policy implemented under the Superfund program. The
Agency would like to receive responses to these proposals as well as
additional options under the RCRA corrective action program.
a.2. The relationship of today's rule with Indian Policy.
Currently, EPA has the responsibility for ensuring the implementation
of the Subtitle C hazardous waste program on Indian lands. This
includes the issuance of hazardous waste permits. However, consistent
with EPA's Indian Policy of 1984, the Agency will look directly to, and
work with, Tribal governments in determining the best way to implement
these proposed public involvement requirements in Indian country. This
Indian policy recognizes the sovereignty of Federally-recognized Tribes
and commits EPA to a government-to-government relationship with these
Tribes.
b. Applicability of pre-application meeting. The requirements for
the pre-application meeting would pertain only to new permit
applications, i.e., the initial permit applications submitted by either
new or interim status facilities. Therefore, the proposed pre-
application meeting requirements would not affect facilities that are
submitting a permit renewal application under Sec. 270.51 or applying
for a permit modification under Sec. 270.42. The additional
requirements would not apply to cases where a facility submits a permit
renewal application, since information concerning the facility would
have been previously available to the public throughout the life of its
operation. The facility would have completed the permit process and
conducted public involvement activities, usually through the permit
modification requirements. For example, the public will have had access
to the administrative record for the facility, and the permitting
authority already would have developed a mailing list for the facility.
Furthermore, EPA is proposing today in Sec. 124.32(a) that the
permitting authority provide public notice when a renewal application
is submitted. This will provide the public an opportunity to further
review the state of operations at the facility, and be aware that the
previously approved permit is expiring. The current opportunities for
public involvement throughout the duration of a facility's permit
should be sufficient to keep the public informed of the facility's
activities. No change can occur to any permit without the public, at a
minimum, being notified (see Sec. 270.42 modification procedures). EPA
would like to request comments on whether these current opportunities
are indeed sufficient, or whether the pre-application meeting
requirements should apply to renewal permits.
Similarly, EPA does not believe the addition of a pre-application
meeting requirement is necessary for requested permit modifications. A
facility proposing changes to its permit must apply for a permit
modification under Sec. 270.42. Existing permit modification
requirements have established public involvement procedures that must
be followed by the permitting authority and the facility before the
final decision. These requirements are comparable to those proposed
today for permit applications submitted by new and interim status
facilities. For example, significant permit modifications, called class
2 or class 3 modifications, require a public meeting at the initiation
of the permit modification process to alert the public to changes the
facility is proposing to make. Requiring an additional public meeting
would be redundant.
EPA conducted a preliminary overview of State regulations
containing public involvement requirements that could potentially
overlap with today's pre-application requirements. Approximately a
dozen States have siting permit regulations that contain public
participation requirements, apart from RCRA requirements. The state
siting requirements could overlap with the pre-application meeting
requirement proposed today. For example, the two permit processes,
i.e., for siting and RCRA permits, could share similar public
involvement mechanisms.
EPA believes that it is important for the facility to host an
informal and informational pre-application meeting with the public.
This meeting should focus on the operating requirements for the permit,
including (1) whether the facility should operate and (2) suggestions
on how the facility should operate to protect human health and the
environment. The informal atmosphere of the meeting should encourage
dialogue between the public and the facility, addressing questions,
such as the need for the facility, the proposed facility design, waste
management practices, and safety considerations.
On the other hand, the public meetings required by State siting
regulations are more formal and may be hosted by the State rather than
the facility (although state siting regulations differ regarding which
party is responsible for conducting the siting meeting). The focus of
the siting meeting is also different than a pre-application meeting,
usually examining such factors as the physical location of the proposed
facility, including local land-use issues, location sensitivity and
suitability.
In addition, there may be a large gap in time between the public
siting meeting (for the dozen states with public involvement siting
requirements) and the pre-application meeting. If a significant period
of time were to elapse between the siting meeting and the actual
commencement of the RCRA permitting process, then the issues raised at
the siting meeting may not be fresh in the public's mind, or the public
may not have the opportunity to raise new issues or potential solutions
until later in the process.
Because the goals of each meeting are typically different, i.e., a
decision for whether a new facility is located at a particular site
versus a decision on whether a facility should operate and how a
facility could operate to protect human health and the environment, EPA
is not proposing today to allow siting meetings to automatically
substitute for the pre-application meeting. Some of the same issues may
come up in either public meeting; however, this should not deter the
public from providing input at both meetings. Of course, if a State's
requirements for siting meetings meet the goal of today's proposal for
a facility-led pre-application meeting, particularly in terms of
opening a dialogue between the applicant and the community, then they
would probably fulfill authorization requirements. In this case, the
State would not have to require separate pre-application meetings.
Refer to Section V, State Authority, of this preamble for further
information on flexibility within the State authorization process.
EPA evaluated the option of allowing State siting meetings to
substitute for the pre-application meeting, and, for the reasons
discussed above, decided not to include it in today's proposal.
However, the Agency is requesting comments on this issue. Specifically,
the Agency would like to hear comments on reasons for or against
allowing State siting meetings to automatically substitute for the pre-
application meeting.
c. Applicability of the public notice at permit application. The
requirements for the permitting authority to provide public notice when
it receives a permit application, like the pre-application meeting
requirement, would not apply to permit modifications, because similar
requirements already exist for both class 2 and class 3 permit
modifications that would make the requirement redundant. Specifically,
under Sec. 270.42 (b)(2) and (c)(2), the permittee must send a notice
of the modification request to all persons on the facility mailing list
and publish the notice in a major local newspaper. The notice is
required to give, among other things, the location where copies of the
modification request and any supporting documents can be read and
copied. EPA believes that this requirement effectively substitutes for
the public notice at application in the case of permit modifications.
Unlike the pre-application meeting requirement, the public notice
requirement will apply to permit renewals. A public notice for permit
renewals is appropriate because the renewal application may be
significantly different from the original permit application,
warranting early public involvement. For example, facilities may decide
to propose major changes, such as addition of a new unit, at the time
of permit renewal, separate from any modifications processed during its
original permit. In this situation, the results would be an application
that is new in certain key respects. The permitting authority should
give the public the same notification as it would for a new permit
application, even though the public may already be familiar with the
general scope of operations at the facility.
In addition, since permit renewals generally occur 5 to 10 years
after a facility is permitted and operating, a notice of the permit
renewal alerts the public to the fact that the facility plans to
continue operating. A public notice at permit renewal also would allow
the public to compare changes between the initial approved permit and
the permit renewal application to determine the magnitude of any
proposed changes. Finally, the notice could serve as a mechanism for
updating the facility mailing list, which may not contain a thorough
list of people who are interested in the facility.
The requirements for the pre-application meeting and the notice at
permit application would not apply to post-closure permits. Post-
closure permit applications raise a narrower set of issues and a
narrower range of alternatives. The public may be adequately involved
through notices at the draft permit stage. Furthermore, the post-
closure period does not involve the same ongoing relationship between
the facility and the community as the operating period. EPA is
requesting comments on whether current requirements are adequate to
ensure public involvement, or whether today's proposed requirements for
public notice at application submittal should apply to post-closure
permits.
d. Applicability of the information repository. The information
repository is a public participation tool that the permitting authority
can use at any time during the permit process. As proposed, the
permitting authority may require the facility to establish a repository
during the permit review process for a new facility, or at any time
during the life of a facility when the Director determines a repository
is warranted due to significant public interest in the facility. The
need for an information repository will be decided by the Director,
based on decision criteria discussed elsewhere in today's preamble. It
is important to have a repository requirement that the Director can
adapt to different facility situations and public information needs.
Thus, the Agency has allowed the Director the flexibility to decide
whether and when a repository is established, for what activity, how
long it must be maintained, and where it is housed.
5. Detailed Discussion on the Proposed Public Involvement Requirements
a. General considerations regarding public notices. EPA is
proposing new requirements for public notice in order to address public
concern that community members are sometimes unaware of hazardous waste
permitting activities or that public notice about a facility comes too
late in the RCRA process. EPA believes that appropriate public notice
is necessary to fully inform communities and involve them in permitting
decisions involving hazardous waste facilities. By appropriate public
notice, the Agency means that sufficient information is provided in a
timely manner to all segments of the public throughout the permit
process. Towards this end, EPA is proposing additional public notices
throughout the permit process. These new notices will require the
permitting authority to notify the public when it reaches certain
points in the permitting process (e.g., application submittal, prior to
a trial burn). This provision will give the public the opportunity to
become involved in the decision-making process. As a result, the public
may become more informed about the various steps of the permit process
and the time requirements of each step.
Similarly, a widely-distributed notice may reach interested
individuals who otherwise may not have known about the opportunity to
be on the facility mailing list. To address this issue, EPA is
proposing requirements under Sec. 124.31(c)(1) concerning the
distribution of the public notice for the pre-application meeting. This
notice will be the first activity required by the RCRA permit process;
EPA believes that stronger requirements resulting in a wider initial
outreach are appropriate at this juncture. EPA is not proposing that
implementing agencies follow the new distribution requirements for
subsequent notices. Such a requirement would be redundant since, as a
result of the widely distributed notice of the pre-application meeting,
the permitting authority would have a list of interested people that it
could contact as part of the mailing list.
The Agency recognizes that the means by which a notice is
effectively distributed is highly community-specific. The permitting
authority may find any of a variety of distribution mechanisms
effective, depending upon such factors as population density,
geographic location, expanse, and cultural diversity of a community,
when such mechanisms are used in conjunction with required notice
activities. EPA has learned, through discussions with States, Regions,
and outside parties (environmental and industry organizations), of a
number of mechanisms for distributing notices. Facilities and agencies
may voluntarily use the methods that are most practical for
disseminating information throughout their community. Several of these
methods that go beyond today's proposed requirements, and which may be
voluntarily implemented, are discussed below:
Press releases. Permitting authorities and industry alike have used
press releases to successfully alert the local community to specific
activities. A press release to one paper may be picked up by other
local papers with no cost to the original party. Press releases have
the advantage of providing in-depth coverage of a subject in a forum
that can be widely distributed within a short timeframe. 40 CFR
124.10(c) specifically cites press releases as a method that permitting
authorities can use to promote public participation.
Local cable tv channels. Many communities run their own cable
channels for local news and activities. This medium may be used to
target a local audience, often at no charge. TV spots may be
advantageous for delivering pertinent information about a hazardous
waste facility directly to people at home. The permitting authorities
may also use the stations to broadcast logistics for upcoming meetings.
Local community groups. The facility may enhance the distribution
of information by including local community groups on the facility
mailing list. Such groups may have a particular interest in hazardous
waste issues and can be effective in circulating the information to a
wider audience. Local religious establishments, for example, can be
particularly useful in distributing information locally. Local
Emergency Planning Committees (LEPCs), required under Section 301 of
the Superfund Amendments and Reauthorization Act (SARA), can also be an
effective group through which to disseminate notices. LEPCs are
composed of representatives from a variety of groups or organizations,
for example, local elected officials, law enforcement, fire fighting,
health, and transportation personnel, community groups, and broadcast
and print media. Facility mailing lists can include other community
groups, such as professional and trade associations, planning
commissions, civic leaders, and special interest groups.
b. Requirements for the pre-application meeting. EPA is proposing
that the facility provide public notification of the pre-application
meeting between the facility and the public. This provision would apply
to all RCRA facilities that submit a Part B Permit application for the
first time. The facility will have the dual responsibility of providing
appropriate notice and conducting the meeting.
EPA believes that the requirements for the pre-application meeting
should apply to all RCRA TSD facilities. EPA emphasizes that the pre-
application meeting is meant to be flexible, informal, and informative.
Owners and operators of hazardous waste facilities, including owners
and operators of small businesses, should be able to meet the proposed
requirements for the pre-application meeting without undue burden. EPA
estimates that the costs associated with the pre-application will be
small. In addition, EPA believes that this approach will benefit the
facility, as well as the public, in the long run since the public will
gain greater understanding of the facility's plans and
responsibilities. As stated above, earlier and more meaningful public
involvement could streamline the permitting process, since issues and
concerns will be raised at the initial point of the process.
EPA solicits public comment on whether or not the Agency should
require facilities to hold a pre-application meeting and, if so,
whether the requirement should apply to all facilities, or only
particular facilities, such as facilities conducting specific waste
management practices, managing certain kinds of waste, or accepting
off-site waste. In addition, EPA requests comment on the proposed
functions of the pre-application meeting as well as comments about the
notice requirements for the meeting.
b.1. Providing notice of the pre-application meeting. The Agency is
proposing this requirement because EPA is concerned that the existing
mechanisms for providing public notice (found in 40 CFR part 124) may
not work as effectively at the pre-application stage of the permit
process as they do later in the permit process. The main reason for
this is that the permitting authority generally does not develop the
facility mailing list by the pre-application stage; it usually develops
the list after the facility submits its permit application.
Consequently, there is no mailing list for the facility to utilize.
These initial outreach efforts will ultimately benefit the permit
process by engaging interested individuals early in the process.
EPA is proposing to require that the applicant provide notice of
the pre-application meeting to the public, including EPA and
appropriate units of State and local government, in three separate
ways. EPA has designed these requirements to ensure effective public
notice for the meeting. As proposed under Sec. 124.31(c)(1), two of
these requirements are new approaches to providing public notice and
apply only to the notice for the pre-application meeting. The third is
a current requirement under Sec. 124.10(c)(2)(ii). EPA believes that
since the notice for the pre-application meeting is the first public
notice in the RCRA permitting process and occurs so early in the
process, i.e., possibly before a mailing list is developed, these
additional requirements are necessary to ensure widespread notice so
that the public is appropriately informed. All of the public notice
requirements for the pre-application meeting must contain the
information proposed under Sec. 124.31(c)(2).
The first requirement proposes that the facility must place the
notice not only in a paper of general circulation within the community
where the facility is located, as currently required, but also in
newspapers that cover each jurisdiction adjacent to that community. EPA
believes this approach is necessary to ensure that the facility
appropriately notifies neighboring jurisdictions in the event that a
facility is located near a jurisdictional boundary. In these cases,
people who live near, but across the county or state line from, a
hazardous waste facility that is applying for a RCRA permit may not
receive notice of the activity under the present scheme because the
newspaper is not in general circulation across that jurisdictional
line. As a result, these people may not learn about the facility until
much later in the permit process or after the facility is permitted.
This initial outreach requirement would avoid such a situation.
Interested persons could respond to this initial notice either by
attending the pre-application meeting or by signing up for the facility
mailing list. In either case, the person would be on the list for
subsequent notices that comply with existing requirements in
Sec. 124.10(c)(2) (including requirements for the facility mailing
list).
In some states (especially in the western part of the United
States), the geographic areas covered by a host county or adjacent
counties can be very large. In these cases, the requirement for the
facility to give public notice in adjacent counties may not be
practical or useful. Therefore, in situations where the geographic area
of a host jurisdiction or adjacent jurisdictions is very large
(hundreds of square miles), the newspaper notice shall cover a
reasonable radius from the facility, such that all potentially affected
persons have the opportunity to receive notice. EPA requests comment on
how to implement this alternative notice provision in the regulations
without prescribing a specific formula or approach that may not be
appropriate in all circumstances.
The required newspaper notices must appear as display
advertisements within the newspapers. This provision clarifies the form
in which the official public notice must appear in the papers. As
defined by this proposed rule, a display ad must be of sufficient size
to be seen easily by the reader.
EPA intends the display ad requirement to make information about
the pre-application meeting more visible within the newspaper. The
display ad must be placed in a section of the newspaper that the
average reader is likely to see, or in a manner that otherwise gives
the general public effective notice. Currently, most public notices
related to RCRA permitting appear as legal notices. However, EPA
proposes to change this practice for the notice at pre-application in
response to public concerns that legal notices are not widely read.
EPA encourages facilities and permit writers, if it is within their
means, to apply this requirement to other notices published in the
newspaper. The requirements proposed in today's rule are in no way
meant to inhibit additional public involvement activities that the
owner or operator or the regulatory agency could carry out voluntarily.
The second proposed mechanism for enhancing public notice of the
pre-application meeting is a requirement that the facility owner or
operator post a sign on the facility property displaying information
about the meeting. This requirement will give clear notice of the
facility location, and activity the facility is, or will be,
conducting. The posted sign must show the same information as the other
notices, except for the requirement to include a facility map, which is
unnecessary. The sign must be large enough so that the wording is
readable from the facility boundary; it should be located where it will
be visible to the public, including passers-by. The Agency encourages
facilities to post similar signs within the local community, where
appropriate, to encourage people to attend the pre-application meeting.
In some cases, the option of posting additional signs around the
community may be a cost-effective way for the facility to communicate
with the public.
The third requirement is that the facility owner or operator must
provide a radio broadcast announcement of the pre-application meeting.
This is a current mechanism for providing public notice in
Sec. 124.10(c)(2)(ii). The Agency is including it within today's
proposed requirements for the pre-application meeting in order to
maintain consistency with existing public notice requirements under
Sec. 124.10.
Over the years, EPA has received many questions from authorized
states and the public concerning radio announcements. Today's proposal
requires a radio announcement to be broadcast from at least one local
radio station serving the community, which is the same as the current
part 124 regulations. As mentioned earlier in the Equitable Public
Participation section, EPA considers the community to be all residents
in the vicinity of the facility who might be most affected by the
facility's operations.
Facilities can, of course, go beyond the minimum requirement being
proposed today. EPA provides the following suggestions as guidance for
those facilities interested in going beyond the proposed minimum
requirements. In some rural areas, community members may listen
predominantly to one station; in this case, EPA recommends that the
applicant use this station as the vehicle for the notice. Some areas
are part of a radio market (i.e., as defined by services such as
Arbitron's Radio Market Definitions) and have competing radio stations.
Where there is more than one radio station, the facility owner or
operator should carefully consider the likely listeners of the radio
stations in order to ensure a substantial listener audience. For
example, if the facility is located within a predominately Hispanic-
American community, the applicant should use the local Spanish language
station as the vehicle for the notice.
Areas with many competing stations are more likely to have listener
groups that may be delineated by, for instance, age, ethnicity, or
income. In these situations, broadcasting the notice on several
stations, or in more than one language, may be beneficial. In all
cases, EPA suggests that the announcement occur at listening hours with
a substantial audience, which will vary for each community as well as
within listener groups. The facility may consult with radio stations
and community members to determine the best times to broadcast the
public notice.
The notice of the pre-application meeting is perhaps the most
important of the permit notices, since it is the first notice of the
permitting process for new or existing facilities. The applicant should
make an attempt to ensure that all interested citizens are aware of the
pre-application meeting. The new requirements proposed today--display
ads, notices published across jurisdictional boundaries, and posted
signs at facilities--are more likely to reach a wider audience than a
single notice in the legal section of the paper.
In analyzing other approaches, such as applying the new pre-
application notice requirements to all other RCRA public notices, EPA
found that the requirements may become burdensome to regulatory
agencies, who must publish a number of notices throughout the
permitting process. (As proposed today, the facility bears the burden
of the pre-application meeting requirements.) EPA's goal in proposing
this approach is the efficient use of resources for effective public
notice. EPA proposes a larger initial outreach effort to help establish
a mailing list. By initiating a larger effort early in the process,
people who desire to be put on the mailing list are included as early
as possible in the permit process. The facility will conduct subsequent
notices using the existing notice requirements, which have proven
adequate when accompanied by a well-developed mailing list.
The Agency requests comment on the proposed requirements for public
notice of the pre-application meeting. For example, EPA would like
comments regarding the practicality or usefulness of these requirements
and their application within the permitting process.
b.2. Conducting the pre-application meeting. Today's proposed rule
requires the applicant to hold at least one informational meeting, open
to all interested members of the public, before submitting a permit
application. This meeting will provide earlier public involvement
opportunities in the RCRA permitting process, and enable the applicant
to explain facility plans and the scope of the project to the public.
In addition, EPA intends this meeting to create a dialogue with the
community, raise public awareness, determine public views and questions
raised with respect to the facility, and provide the applicant with the
opportunity to make changes to its application based on public
comments. (The facility may choose to hold additional meetings to
answer questions raised at the pre-application meeting.) It is
appropriate for the facility to conduct the public meeting because the
facility initiates the permit process and conducts business in the
area. The permit applicant must give the public adequate notice, at
least 30 days before the date, of the pre-application meeting.
The Agency believes that the meeting should be informal and
informational. This approach is consistent with the preamble discussion
of public meeting requirements for Class 3 permit modification
procedures (see 53 FR 37912, September 28, 1988). However, in contrast
to the requirements for Class 3 modifications, today's rule would
require the facility to submit a record of the pre-application meeting,
a list of attendees and their addresses, and copies of any written
comments or materials submitted at the meeting, to the Director. The
facility must include this record as part of the permit application
and, if required, the information repository. The record requirement
will provide the public, especially people who are unable to attend the
meeting, and the Agency with a summary of information and issues raised
at the pre-application meeting. The proposed rule does not require the
permitting authority to attend the meeting. The Agency believes that
attendance by the permitting authority, in certain instances, may
undercut one of the main purposes of the meeting, which is to open a
dialogue between the facility and the community. In some cases,
attendance by the permitting authority might be useful in gaining a
better understanding of public perceptions and issues for a particular
facility. However, it should always remain clear that it is a facility-
lead meeting. EPA believes it is important for the public to understand
that it is the facility's responsibility both to initiate the permit
process, by submitting an application to EPA, and to inform the public
of its intentions. EPA would like to solicit comments on whether the
permitting agency should attend the pre-application meetings.
With regard to the nature of the public meeting, EPA intends to
provide facilities with considerable latitude. Through discussions with
community relations experts from a variety of backgrounds, EPA has
found that ``public meeting'' means many things to many people. In most
cases, however, it appears that people view public meetings as being
similar to public hearings. EPA would like to dispel the idea that
public meetings must be similar to formal public hearings; rather, EPA
encourages facilities to be creative in their approach towards
conducting the pre-application meeting, in order to encourage
constructive and open participation with people in the community. The
facility may accomplish this goal through any of a variety of meeting
formats. EPA further encourages innovation in the type of public
meeting by allowing the facility to choose the medium by which it
reports the record of the meeting to EPA, as long as the medium
provides an adequate record of the meeting. For example, facilities may
choose to tape-record discussions at the meeting or find another
effective medium with which the public is comfortable.
Many guidance documents are available on how to conduct public
meetings and community outreach. Among them are EPA documents Community
Relations in Superfund: A Handbook (January 1992, EPA/540/R-92/009),
RCRA Public Involvement Manual (September 1993, EPA 530-R-93-006), as
well as publications by private interests. The applicant may wish to
consult these or similar publications for appropriate guidance on how
to conduct an appropriate meeting with the public.
Regardless of the guidance source, EPA believes that the facility,
in meeting regulatory requirements, should also consider the following
factors to conduct what EPA believes to be an appropriate and effective
public meeting: first, the applicant should give special attention to
process, logistics, content and trouble-shooting when preparing for a
public meeting; second, the applicant should provide appropriate public
notification, as required by Sec. 124.31(c), identify all sectors of
the community that the facility will potentially affect, as required by
Sec. 124.30(a), and provide outreach to interested citizens and
officials. All these factors are important to ensure that the audience
is representative of the community.
The facility should encourage public participation through
selection of a meeting date, time, and place that are convenient to the
public. The facility should select the date and time of the public
meeting to correspond to times when the public is most available; this
may require the facility to conduct the meeting after normal business
hours. The applicant should make sure that the meeting place has
adequate space and is conducive to the type of meeting that the
applicant will conduct. The applicant should take care in the
development of the content of the meeting to meet the requirement of
``sufficient detail to allow the community to understand the nature of
the operations to be conducted at the facility and the implications for
human health and the environment'' under proposed Sec. 124.31(a). To
meet the ``sufficient detail'' requirement, the applicant should have a
clear meeting agenda that states the exact reasons for the meeting and
the specific objectives of the meeting. The applicant shall give an
overview of the facility in as much detail as possible, such as
identifying the type of facility (i.e., commercial or private), the
location of the facility, the general processes involved, the type of
wastes generated and managed, and implementation of waste minimization
and pollution control measures. In addition, the applicant should
provide information about risk to the public, where available.
Finally, trouble-shooting potential problems will help the meeting
to run smoothly in the event of unplanned obstacles. Trouble-shooting
may involve planning for equipment failures, a shortage of parking
spaces, or demonstrations, as well as locating facilities for
handicapped individuals.
c. Requirement for public notice at permit application. Today's
proposal would also require EPA or the State to publish a public notice
upon receipt of a permit application. EPA proposes that the permitting
authority send the notice to everyone on the mailing list. These
requirements are consistent with the notice requirements under
Secs. 124.10 and 270.42. Unlike the proposed pre-application meeting
requirement, the permitting authority must also publish this notice for
permit renewals (see Section A.4: Applicability of public involvement
requirements, of today's preamble discussion).
Information requirements for the public notice will give people a
clear opportunity to contact the appropriate parties for questions and
suggestions, sign up on the facility mailing list, and locate the
appropriate documents, such as the permit application, for review. The
permitting authority must provide the name and telephone number of the
facility and permitting agency contacts. EPA suggests that the
permitting authority designate a community affairs specialist as the
appropriate contact person. The permitting authority must also provide
an address to which people can send requests to be put on the facility
mailing list. EPA believes that the public should have this opportunity
during the permit process, and that the notice at application is a good
mechanism for announcing this opportunity. Today's proposed rule
requires the permitting authority to provide the notice; however, EPA
would like to solicit comments on whether the permitting authority or
the facility should be responsible for providing the notice at
application submittal. While a person may request to be put on the
mailing list at any time during the permit process, EPA intends this
requirement to ensure that the permitting authority alerts the public
early in the permit process. Finally, EPA is requiring the notice to
include specific information about the facility operations, facility
location, and the location where the public may review and copy
versions of the permit application and other important documents.
EPA believes that these requirements significantly increase the
opportunities for, and the effectiveness of, public participation
within the permitting process. The requirement for a public notice will
tell the public when an application for a permit has been received by
the permitting authority. It would also provide information on where
the permit application is available for review by the public and, thus,
would allow interested people to begin review of the permit application
at the same time as EPA or the State authority. The public would have
the opportunity to review all aspects of the permit application in its
initial form, before EPA or the State review the application for
completeness. The public has the opportunity to make suggestions and
raise issues for consideration by the permitting agency at any time
during the agency's review of the permit application. Consequently, the
permitting agency will receive public input earlier in the permit
process as well as later, i.e., after the proposal of the draft permit.
Another benefit of requiring such a notice is that it may alert the
agency to facilities generating high public interest. The public notice
will highlight public attention concerning a hazardous waste facility.
Public interest and concerns may be expressed to the permitting
authority in the form of letters, phone calls, and requests to be put
on the facility mailing list. This early stage could be one potential
point where the Director may choose to require the facility to
establish an information repository. Furthermore, by providing
important and timely information at the beginning of the permit
application review stage, the permitting authority can better inform
the public about the steps of the permit process and the amount of time
required for each step.
EPA believes that the public input that the permitted authority
will receive early in the process will assist in the review of the
permit application and result in the development of a draft permit that
is responsive to community concerns. Once the permitting authority
completes the draft permit, or the notice of intent to deny the permit,
and proposes it to the public, then the public has the opportunity to
review that decision, including any changes that occurred to the
original permit application, since they will be reflected in the draft
permit. These changes could include changes in response to the public
comments EPA may have received during its review of the permit
application.
d. Requirement for an information repository. Proposed
Secs. 124.33(a) and 270.30(m) would provide the Director with explicit
authority to require the permit applicant or permittee, respectively,
to establish and maintain an information repository. The repository
would allow interested parties to: (1) Access reports, plans, findings,
and other informative material relevant to the facility and the
particular issues at hand; and (2) receive information on appropriate
opportunities for involvement during a variety of permitting decisions.
EPA expects that the Director would consider requiring a facility to
establish a repository in a limited number of cases where the community
expresses a high level of interest. A high level of community interest
could be demonstrated, for example, in such ways as written requests
from members of the public, or press coverage. However, the final
decision for requiring the repository is at the Director's discretion.
The Director may also specify any appropriate time period for the
repository.
As provided in proposed Sec. 124.33(b), the information repository
will contain all public information that the Director determines to be
relevant to public understanding of permitting activities at the
facility. In general, the Director would require the facility to make
available those reports or documents that provide the most relevant
information about the facility and the best technical basis for
decision-making. The information repository could include some of the
following items: copies of the permit application, technical documents
directly supporting the application, maps (i.e., sketched or copied
street map) of the proposed location of the facility, notice of
deficiencies (NODs), or summary reports of ground-water and air
monitoring results at the facility, if such reports exist for the
facility location. The repository should also contain information on
how the public may participate and become involved during the
permitting process. For example, EPA may contribute a fact sheet that
outlines public involvement opportunities within the permit process and
how to be put on the facility mailing list. Similarly, the facility may
provide information in the repository on any additional public
involvement activities it chooses to conduct. Examples of background
material the facility may maintain in the repository include copies of
relevant RCRA regulations and related information, e.g., fact sheets.
The facility may exclude from the repository any material it claims to
be confidential business information (CBI). Examples of CBI could
include trade secrets, commercial, or financial information whose
general availability could cause substantial harm to the facility's
competitive position. The contents and size of the information
repository may differ among sites, depending upon the reasons for
setting up the repository, the permitting phase of the facility, and
the site-specific characteristics of the facility.
The facility is responsible for site selection and maintenance of
the information repository. The facility should place the repository at
a local public library, town hall, county courthouse, community
college, public health office, or another public location within
reasonable distance of the facility. In instances where such a location
is not feasible due to the remote location of the facility, the
Director may require the facility to establish and maintain the
repository at some other suitable location. In most instances, the
information repository should not be at the facility. Interested
communities have expressed a greater comfort level with siting the
repository at a public location, instead of within facility boundaries.
The repository must also be open to the public during reasonable hours
or accessible by appointment. Reasonable hours could include, for
example, weekend and evening hours of access (e.g., beyond normal
business hours), depending, among other things, on work schedules of
the interested individuals, the degree of public interest in the
facility permitting activities, the convenience of the location of the
repository, and the timing of public meetings or hearings. In these
situations, EPA encourages facilities to select a location that already
has extended hours of operation, such as a local library.
EPA encourages facilities to establish the information repository
at a location that has reasonable access to a photocopy machine, if
possible. Such a location would be more convenient for the people who
wish to make copies of any of the materials at reasonable cost. For
example, some of the public locations mentioned previously should, in
most cases, have a photocopy machine on the premises. If it is not
possible, the facility may want to explore other options, such as
providing extra copies of documents that people can keep without charge
or at reasonable cost.
In cases where physical space to house the documents is limited, a
potential solution for the facility, where resources allow and
capability is available at the location, is to copy documents onto
microfiche or CD-ROM. Either of these possible options requires little
space and would discourage document theft or vandalism.
Under Sec. 124.33(d), the Director will specify requirements that
the applicant must satisfy in informing the public of the existence of
the information repository. At a minimum, the Director will require the
facility owner/operator to notify individuals on the mailing list when
the facility establishes the repository. The Director may also require
the facility to provide public notice in a local newspaper. As a
practical matter, the facility may, in some cases, choose to provide
the relevant information to the permitting authority so that it may
include the information in other required notices. The facility owner/
operator would identify the EPA or State office contact and a facility
contact person to answer questions related to the repository. EPA
suggests that the permitting authority designate a community affairs
specialist as the appropriate contact person.
The information repository EPA is proposing today closely resembles
the repository proposed under Subpart S of the Corrective Action Rule
(see 30798 FR, July 27, 1990) and is similar to the repositories
established at Superfund sites under the Comprehensive Environmental
Response Compensation, and Liability Act (CERCLA). EPA's CERCLA
experience has demonstrated that the public's interest in nearby
hazardous waste activities is served effectively by a repository.
Without a local repository, the burden falls on citizens to locate and
contact the appropriate officials who are knowledgeable about the site
in Regional EPA or State offices, which could be located far from the
site.
There are three major differences between the information
repositories in today's proposal and the repositories included in the
CERCLA program. First, Superfund requires information repositories at
all sites on the National Priorities List (NPL), whereas, under today's
proposal, the Director would use his or her discretion on a case-by-
case basis. All communities may not desire or request every option
available for public involvement. In most situations, an information
repository may not be necessary and could become an unnecessary
resource drain for the local community hosting the repository.
Providing discretion to the Director will allow the facility and
community to use their resources in the most efficient manner. In
making such a determination, the Director would consider the degree of
public interest (which could, for example, be demonstrated through
written requests from the public to set up a repository), as well as
the proposed location of the facility, the proposed types and volumes
of wastes to be managed, and the type of facility. Furthermore, the
Director may consider requiring information repositories at certain
Class 3 modifications or at other stages within a permit where there is
a high level of public interest.
The second major difference between the CERCLA and proposed RCRA
repositories is that CERCLA repositories for NPL sites generally house
the administrative record for CERCLA actions. Under the RCRA permitting
program, and as described in proposed Subpart S, EPA Regional offices,
or authorized States, maintain administrative records, which provide
documentation of the basis of EPA's decisions and other parts of the
record, at Regional office location. Because the RCRA permitting record
is already available for public inspection at a separate location, the
Agency does not believe that it is necessary to duplicate the entire
administrative record for RCRA facilities at information repositories.
The administrative record developed during the permitting process is
often large, and could become burdensome to the Agency and the facility
if it were duplicated in its entirety in an information repository. In
addition, the space required to house an information repository, if it
were required to be a duplicate of the administrative record, may
severely limit prospective repository locations in a community.
The third major difference between the CERCLA and proposed RCRA
provisions relates to the point in the waste management process when an
information repository is established and maintained. Information
repositories are established at NPL sites to give the public the
opportunity to keep informed during the cleanup process. On the other
hand, the repository proposed for certain RCRA facilities could be
established by the facility at any time during the RCRA permitting
process or during the life of the facility. In either case, the
facility will set up the information repository to provide information
to the community about the specific issues at hand. Therefore, the
Director may require the facility to operate the information repository
during the permit application process only or the active life of a
facility, whichever best applies to the facility and the community. For
new facilities, this provision means that the Director might instruct
the facility to establish an information repository before construction
of the facility. EPA is concerned that the information repository for a
RCRA facility could become cumbersome if the Agency prescribes specific
content and duration requirements in a regulation. Therefore, EPA
believes that the Director should designate timeframes and details for
the contents of the information repository on a case-by-case basis, in
keeping with the goal of enhancing public participation in the
permitting process.
The Agency chose what it believes to be the most flexible approach,
that is, one that allows permitting authorities to readily respond to
community demands. However, the Agency recognizes that questions may
exist regarding this approach and requests comment on several aspects
of the information repository. First, the Agency seeks comments on
making the information repository an optional, as opposed to mandatory,
tool within the permitting process. Second, EPA solicits comments on
making the repository mandatory for some types of units; for example,
the Agency could require all commercial facilities or facilities
managing certain types of waste to establish information repositories.
Third, EPA requests comments on the location of the repository and the
point in the permitting process when it might be appropriate for the
Director to require certain facilities to establish or terminate a
repository. Fourth, the Agency seeks comments on what documents the
facility should include within the repository as a minimum, and the
process by which those documents are selected.
B. Permit Modification Procedures in Sec. 270.42
1. Purpose
The main purpose of this section of the rule is to clarify the
combustion modification provisions found in Appendix I of Sec. 270.42.
EPA is aware that there has been some confusion over the description of
modifications listed under section L.7 of Appendix I, which covers the
shakedown and trial burn phases of operation for combustion units.
Through today's changes, EPA intends to make these modification
classifications easier to understand and implement. Today's proposal
clarifies and describes the phases of shakedown and trial burn in more
detail, thus, making it easier for the facility to distinguish between
modification classifications. By making it easier for a facility to
select the appropriate classification for each modification activity,
the proposed rule will make compliance with the modification process
easier.
This section also proposes minor revisions to Sec. 270.42(d) of the
modification procedures and addresses those modification requests that
are not classified in the Appendix I table of Sec. 270.42. Today's
proposal clarifies how facilities may implement and utilize the
provision for other modifications in Sec. 270.42(d).
2. Background Summary
EPA first promulgated procedures for RCRA permit modifications in
1980 as part of the initial regulations establishing the RCRA permit
program. This system of modifications consisted of two types: Major and
minor. Major modifications followed the same public notice and comment
procedures as for permit issuance, while minor modifications required
only approval by the permitting authority. ``Minor modifications'' were
defined as any modification contained in a short list in the
regulations; all other modifications were deemed ``major.''
EPA gained experience in implementing these procedures and decided
that the Agency could improve the modifications process. One of the
Agency's primary concerns was that most modifications were processed
under the major modification procedures since few modifications were
listed as minor. Since many less consequential permit changes and
facility improvements were subject to extensive ``major'' modification
procedures, EPA found that facilities were discouraged from making
improvements to upgrade the facility to be more protective. At the same
time, EPA and the States were diverting their resources to address
minor modifications, instead of addressing modifications with greater
environmental significance, or other permitting and enforcement
actions. In considering how to address these concerns, EPA determined
that the procedural structure needed modifying in order to classify the
many activities that did not fall easily into only the major and minor
categories.
EPA amended the procedures for facility-initiated permit
modifications on September 28, 1988 (see 53 FR 37912). The goals of
this rule were to allow for additional flexibility in processing permit
modifications and to provide for an appropriate level of public
involvement in the decision-making process. The main feature of these
revised procedures was a system of three classes of permit
modifications, ranging from Class 1 for the least significant changes
to Class 3 for the most significant facility modifications.
EPA continues to believe that Agency and State permitting
authorities must focus time, efforts, and resources on substantive
changes to protect human health and the environment. With three classes
of procedures, permitting authorities can classify modifications more
accurately, according to their environmental significance, than they
could under the former system. Individual examples of modifications are
classified in a detailed appendix to the rule (Appendix I to
Sec. 270.42).
3. Technical Corrections
In today's rule, EPA is proposing certain technical corrections in
Secs. 270.42(a)(1)(ii), 270.42(b)(2), and 270.42(c)(2). One correction
would change the reference for notifying appropriate units of state and
local government in each of these paragraphs to Sec. 124.10(c)(1)(x),
in order to correct a typographical error. At present, these sections
incorrectly reference Sec. 124.10(c)(ix), which is the reference for
notifying the facility mailing list.
EPA is also proposing to make a technical correction to
Sec. 270.42(b)(6)(i). In this paragraph, the term ``notification
request'' should be changed to ``modification request.'' It is clear
from the preamble to the September 28, 1988 permit modification rule
(see 53 FR 37916) that EPA intended that the deadline for EPA action be
related to the date that the modification request is submitted to the
permitting authority.
4. Unclassified Modifications
During the development of the September 1988 permit modification
rule, EPA recognized that classifying all possible permit modifications
under the items listed in Appendix I of Sec. 270.42 would be
impossible. Therefore, the Agency provided a procedure in
Sec. 270.42(d) to enable facilities to submit modification requests for
changes that are not specifically listed in Appendix I. For these
unclassified modifications, facilities must either use the Class 3
modification procedures or, alternatively, request that the Agency make
a determination that the activity is either a Class 1 or 2
modification. In general, requests for a classification determination
would be attached to the modification request. In making its
determination whether to process the request as a Class 1, 2,
modification instead of a Class 3, the Agency would consider the
similarity of the specific modification to others listed in Appendix I
and the criteria listed in Sec. 270.42(d)(2).
After several years' experience, EPA has found that very few
unclassified modifications have been processed using this procedure.
EPA believes that both facilities and permit writers may be restricting
themselves to only the classification examples that are in Appendix I.
EPA is also concerned that in those cases where Sec. 270.42(d) is used,
the Class 3 modification procedure may be automatically selected,
without consideration of whether the permit activity is less
significant and should be reclassified to a lower category.
While EPA believes that Appendix I offers a good starting point for
classifying modifications, facilities and the permitting authority
should both make additional efforts to use the flexibility in
Sec. 270.42(d) when proposing modifications. Use of this flexibility
will allow permit writers to better focus their efforts and resources
on modification procedures that are necessary and appropriately
tailored to the substantive changes proposed. Therefore, EPA believes
that facilities should use the flexibility contained in Sec. 270.42(d)
when their site-specific permit changes are not listed in the Appendix
I table. To address this situation, EPA is proposing to modify the
wording in Sec. 270.42(d) to clarify that unclassified modifications
can be processed under Class 1 or 2 procedures, if this lower
classification is more appropriate. EPA is also proposing to add a
notation to Appendix I that instructs facilities to use the procedures
in Sec. 270.42(d) if a proposed modification is not listed in Appendix
I.
In addition, EPA would like to clarify that the temporary
authorization provision in Sec. 270.42(e) may be used by the facility,
subject to approval by the permitting authority, to implement
unclassified modifications as well as classified ones. In other words,
the permitting agency may grant a temporary authorization, without
prior notice and comment, for activities that are necessary for
facilities to respond promptly to changing conditions to be protective
of human health and the environment. Temporary authorizations have a
term of up to 180 days; the permitting agency may grant temporary
authorizations for Class 2 or 3 modifications that meet the criteria in
Sec. 270.42(e), including compliance with the part 264 standards.
Activities that will be completed before the 180 day term expires do
not require a modification request. If a facility knows up front that
the activity will take longer than 180 days to complete, it should
submit a modification request at the same time as its request for
temporary authorization.
5. Revisions to Appendix I of Sec. 270.42
RCRA permits for new incinerators and boilers and industrial
furnaces (BIFs) address four distinct phases of operation after
construction. The four phases are: Shakedown, trial burn, post-trial
burn operation, and final operation, which lasts for the duration of
the permit. The permitting authority establishes operating conditions
for each of these phases in the permit.
The shakedown phase of operation lasts from the initial start up
after construction until the trial burn. The shakedown phase prepares
the unit for the trial burn. During this period, possible mechanical
difficulties are identified and the unit reaches operational readiness
by achieving steady-state operating conditions immediately prior to the
trial burn. Federal regulations limit the shakedown period to 720 hours
of operation using hazardous waste feed; the permitting authority may
allow one additional period of up to 720 hours with cause. Permit
conditions limit operations during this period; the permit sets
hazardous waste feed and other waste management practices and requires
the facility to monitor certain key operational indicators.
The trial burn, which typically lasts several days, is the actual
testing that the facility conducts, with permitting agency oversight,
to (1) determine whether a combustion unit can meet the performance
standards required by the regulations and the permit, (2) establish the
final facility operating conditions for the term of the permit, and (3)
provide data on which the permit authority can base a risk assessment.
The trial burn plan contains the parameters for conducting a trial
burn. The trial burn plan is part of the original permit for new
facilities and must be approved by the permitting agency before the
facility can conduct a trial burn. The facility often tests several
sets of operating conditions during the trial burn. The conditions are
designed in order to determine the range of operating conditions where
the unit meets the performance standards. For example, the facility may
set one trial burn condition to determine what the maximum hazardous
waste feed can be. The trial burn demonstrates the range of operating
conditions that allow the facility to comply with the performance
standards. The permit writer uses the results of the trial burn to
define the operating conditions that the facility will operate under
during the permit term.
The post-trial burn phase starts after the trial burn and lasts an
average of 3 to 9 months. The permit specifies operating conditions
that apply during this phase. Federal regulations require the permittee
to analyze the results of the trial burn and submit them to the Agency
within 90 days of completion of the trial burn, or later if approved by
the Director. Also during this period, the facility may submit, and EPA
may process, a permit modification to revise the final operating
conditions to reflect the results of the trial burn and any other
information. This phase ends once the permitting agency and the
facility complete all necessary permit modifications and the final
operating conditions take effect.
The final operating conditions are effective for the life of the
permit, unless the facility's permit is modified pursuant to 40 CFR
270.41 or 270.42. The permit writer bases the conditions on actual
trial burn data that reflect the conditions under which the facility
met the performance standards during the trial burn.
a. Structure of today's proposal. Confusion has existed, at times,
over the descriptions of modifications for certain items listed in
section L of Appendix I to Sec. 270.42, which covers incinerators and
BIFs; in particular, the confusion has concerned changes during the
shakedown period of operation and trial burn. How to interpret these
modification classifications may be unclear in certain situations. In
order to avoid further confusion or potential delays in determining
these classifications, the Agency is proposing to reorganize and
clarify Section L.7. of Appendix I.
Currently, Appendix I of Sec. 270.42 places items regarding the
shakedown period, trial burn plan, and post-trial burn operation into
the same section, i.e., section L.7. EPA believes that placing those
items regarding the shakedown period in one section and items
concerning the trial burn plan into another section, along with
describing each item more precisely, will clarify the intent behind
each description. This reorganization will make it easier to classify
individual modification requests and ensure that the permitting agency
processes the requests under the appropriate procedures. EPA proposes
today that all modifications regarding the shakedown period will remain
in section L.7. and all items regarding the trial burn will move to new
section L.8. The existing section L.8. will become section L.9. An
explanation of the proposed revisions to sections L.7. and L.8. of the
Appendix follows.
In this proposal, Class 2 will remain the highest classification
for changes to the trial burn and shakedown period permit conditions.
Further, the permitting agency will continue to process many changes
under the Class 1 procedures, with prior Director approval. One reason
for these classifications is the short period of operation for both the
shakedown and trial burn phases. The permitting authority must be in a
position to respond quickly to requests for changes that are necessary
to ensure thorough testing of the unit. In addition, operating
conditions during the shakedown period are generally more restrictive
than the final operation conditions.
b. Shakedown. Appendix I to Sec. 270.42 currently classifies
modifications addressing the shakedown period for a permitted
combustion unit in items L.7. a. and b. EPA today proposes to simplify
item L.7.a. by applying it only during the shakedown period and moving
the references to the trial burn plan and post-trial burn operation to
newly proposed section L.8. The permitting agency should not process
under L.7.a. any modifications that are classified in other items in
Appendix I. Today's proposed rule will not change item L.7.b., which
allows the Director to authorize an additional 720 hours of operation
as a Class 1 modification.
EPA also proposes to reclassify proposed item L.7.a. as a Class 1
permit modification, with prior approval of the Director. Our basis for
this change is that the narrower scope and limited duration of the
shakedown period means that a facility's activities would be less
significant than the activities found under the existing L.7.a. One
example of a modification under proposed item L.7.a. would be a change
in combustion temperature to increase the unit's efficiency. The
purpose of the shakedown period is to prepare the unit for the trial
burn and, thus, any changes made during the shakedown period would not
affect long term operation. The shakedown period can last no longer
than 720 hours of operation, with only one extension possible. As
stated previously, modification items related to the trial burn will
now be addressed by the permitting authority under proposed section
L.8.
c. Trial burn. Today, EPA is proposing to create a new section L.8.
in Appendix I to address modifications to permit conditions during the
trial burn. These conditions are contained in the approved trial burn
plan, which is a part of the RCRA permit. EPA has structured this
section to progress from changes before any trial burns are completed
to those after a trial burn has been conducted, including changes made
to reflect the results of a successful trial burn. The format of the
new section L.8. is as follows.
EPA is proposing to revise Appendix I to address changes to the
trial burn plan before the trial burn is complete (items L.8.a. and
L.8.b). Under the proposed scheme, the permitting authority will
consider changes to the trial burn plan a Class 2 permit modification,
unless they are minor, in which case they will be Class 1, with prior
Director approval. One example of a minor change would be an increase
in the secondary combustion chamber temperature for a trial burn
condition that is testing the destruction and removal efficiency for
organic wastes. One example of a major change would be an increase in
the waste feed rate. Please note that classifying changes as minor with
regard to the trial burn is not a new requirement; it was previously
listed under item L.7.c. However, to reflect the fact that the trial
burn conditions are contained in the trial burn plan, EPA is deleting
any references to ``operating requirements set in the permit'' from the
modification table.
EPA expects that permittees may request technical changes in the
trial burn plan under L.8.a. while the permitting authority is on-site
immediately before, or during, the trial burn. These changes address
unanticipated issues and are often necessary for effective and
protective operation and testing during the trial burn. A
representative of the permitting authority, usually the permit writer,
is typically at the facility during the trial burn. The Agency
encourages permit writers and facilities to write trial burn plans with
the flexibility to accommodate alterations during the trial burn. The
permitting authority can expedite the modification process by
delegating approval authority to one of its agents. The permit itself
can also specify what level of permitting agency staff has authority to
approve these minor changes. In deciding whether to allow such changes
on-site, we encourage the permit writer to consider the criteria
contained in the February 16, 1989, Trial Burn Observation Guide. Of
course, the final permit conditions would limit the permittee to those
conditions that met the performance standards during the trial burn.
After a facility conducts a trial burn and submits the results to
the permitting agency, the facility may request another trial burn. The
facility must, then, submit a new trial burn plan. EPA is proposing to
revise Appendix I to clarify this situation. Item L.8.c. specifically
relates to situations where the facility did not meet the performance
standards set in the trial burn plan and the facility proposes another
trial burn, or portions of a trial burn, at improved conditions. Item
L.8.c. addresses conducting additional tests to replace one or more of
the failed conditions of a trial burn. Before the facility can conduct
these tests, it must revise the conditions in the trial burn plan and
the permitting agency must approve the revisions through a permit
modification. In general, the permitting agency will not approve the
modification request to conduct another trial burn unless the facility
has provided a sound technical basis, demonstrating that the revised
operating conditions are likely to meet the performance standards set
in the permit.
EPA is also proposing to classify item L.8.c. as a Class 2 permit
modification. The Agency recognizes that this classification represents
a change from the preamble language in past incinerator technical
regulations. An early incinerator rule preamble states that ``if
compliance has not been shown and an additional trial burn is
necessary, the permit may also be modified under Sec. 122.17 [old minor
permit modification language] to allow for an additional trial burn''
(See 47 FR 27524, June 24, 1982). This 1982 preamble language describes
a trial burn retest of a failed condition. Since 1982, EPA has gained
considerable experience regarding trial burns. EPA now believes that if
a facility does not meet the regulatory performance standards during
the trial burn, then the public needs to be involved before the
facility revises the trial burn plan and conducts another test, because
the facility's failure under certain conditions may raise concerns.
Therefore, EPA believes that the additional public participation
requirements of the Class 2 procedures are appropriate for this item.
(See proposed Sec. 270.74(c)(7) for the analogous procedures for
interim status combustion facilities.)
Furthermore, EPA is proposing to add item L.8.d to address changes
to the permit conditions that are in effect during the limited period
called the post-trial burn period. (These modifications would currently
be addressed under item L.7.a.) Because any changes during the post-
trial burn period will be limited in duration, similar to those during
the shakedown period, EPA is also reclassifying post-trial burn period
modifications from Class 2 to Class 1 permit modifications, with prior
approval of the Director.
For the last item in this section of Appendix I, EPA is proposing
to move existing item L.7.d. to L.8.e. This item describes revising the
final operating conditions to reflect the results of the trial burn.
Changes in the final permit should reflect the operating conditions
under which the facility met the required performance standards during
the trial burn. EPA does not propose changes to the wording of this
item.
C. Requirements Regarding the Trial Burn
1. Purpose and Applicability
The purposes of this section of the proposed rule are (1) to make
the permitting procedural requirements for interim status combustion
units more equivalent to current permitting requirements for new units,
particularly with regard to trial burns, and (2) to clarify some
administrative permitting procedures for combustion units. In addition,
this section contains proposed requirements that will provide for more
public involvement opportunities, both earlier in the combustion
permitting process and at key points throughout the process.
The requirements in this section apply only to combustion units at
both interim status and permitted facilities.
2. Summary of Proposed Approach
EPA is proposing today to create a new Sec. 270.74, which will
contain permitting procedural requirements for interim status
combustion units. This proposed new section is a consolidation of
Secs. 270.62(d) and 270.66(g), which currently contain permitting
procedural requirements for interim status incinerators and BIFs,
respectively. Proposed Sec. 270.74 is virtually identical to
Secs. 270.62(d) and 270.66(g), except where EPA is proposing additional
permitting procedural requirements for interim status units. EPA
intends the additional requirements to make the procedural requirements
for interim status units more equivalent to the permitting procedural
requirements for new units, and to expand public involvement
opportunities during the trial burn phase. The flow chart shown in
Figure 2 indicates the points in the permitting process where the
proposed activities would occur. For instance, the administrative
procedural changes EPA is proposing in Sec. 270.74 will require interim
status facilities to submit a trial burn plan with their initial Part B
applications. Section 270.74 further states that the permitting agency
must approve the trial burn plan before the facility conducts the trial
burn. These proposed explicit requirements will ensure that interim
status facilities conduct trial burns in accordance with approved
plans, as do permitted facilities, and do not perform the trial burns
before submitting their applications. In another permitting procedural
change, EPA proposes to clarify the Director's authority to allow
additional trial burns and to deny a permit to an interim status unit
if the Director does not believe that the unit is capable of meeting
performance standards.
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EPA is proposing a new regulatory requirement, not addressed in
previous regulations, which pertains to post-trial burn conditions at
interim status combustion facilities. EPA is proposing that, upon
completion of the trial burn, interim status facilities must operate
only under conditions that passed and were demonstrated to meet the
performance standards of Sec. 264.343 (for incinerators) or
Secs. 266.104 through 266.107 (for BIFs), and only if the successful
trial burn data are sufficient to set all applicable operating
conditions.
Concerning public involvement, the Agency is proposing additional
public participation opportunities in the combustion permitting process
by requiring public notices at key points in the trial burn process.
The Agency would like to build on the public involvement requirements
in today's proposed rule and expand them to the trial burn stage. The
Agency believes that public involvement opportunities should continue
beyond the initial permit application stage and throughout the
permitting process. For instance, the proposed rule requires the
permitting authority to give public notice of the actual trial burn for
both interim status and new combustion facilities. It is important to
inform the public of the pending burn and give members of the public an
opportunity to participate in this later phase of the permitting
process. As mentioned previously in the public involvement segment of
the preamble, expanded public participation in the RCRA program and
decision-making process is a high priority for the Agency.
3. Current Trial Burn Procedures
Trial burns are an important step in the permitting process for
combustion facilities. There are differences in the permitting process
for new and interim status combustion facilities, which stem from the
original composition of the regulated community in 1980 when EPA first
promulgated the RCRA Subtitle C regulations. At that time, Congress
granted existing facilities interim status if they complied with
notification and application requirements, so they could continue
operating while pursuing a permit. Anyone proposing a new facility now
had to obtain a permit prior to construction. This distinction between
existing and proposed facilities led to differences in the permitting
procedural requirements for combustion units. For example, existing
combustion facilities that have interim status must conduct a trial
burn prior to permit issuance, whereas proposed facilities must obtain
a permit before they may construct the combustion unit and then conduct
a trial burn.
a. Current trial burn procedures for permitted combustion
facilities. The trial burn procedures for new combustion units are
currently set forth in Sec. 270.62(b) for incinerators, and
Sec. 270.66(c) for BIFs. These regulations require new hazardous waste
incinerators and BIFs to submit trial burn plans with their initial
Part B permit applications. The actual trial burn is conducted after:
(1) The public has reviewed and commented on the permit application;
(2) the permitting authority has reviewed and approved the permit
application; and (3) the facility has constructed the combustion unit.
The permitting authority uses the results of the trial burn to
determine whether a facility can meet the applicable performance
standards and, if it does, to establish the final operating conditions
in the permit that enable the facility to comply with those standards.
The facility or the permitting authority must initiate changes to
the trial burn plan through the permit modification procedures in
Secs. 270.41 through 270.42 (see Section B. Permit Modification
Procedures). The permitting authority must approve any modifications
before the facility can implement them. Where results of a trial burn
show non-compliance with performance standards, a facility would
typically be required to either: (1) revise the trial burn plan to test
new conditions; or (2) submit a request to the permitting authority to
modify the permit to permanently exclude the conditions that resulted
in non-compliance. Both the permit review/ determination process and
the permit modification process have built-in opportunities for public
involvement, including procedures for appealing decisions made by the
permitting authority.
b. Current trial burn procedures for interim status combustion
facilities. The trial burn procedures for interim status combustion
units are currently in Secs. 270.62(d) and 270.66(g). These
requirements are not as detailed as the requirements for new combustion
facilities, although it is common practice for owners/operators of
interim status facilities to follow many of the requirements for new
facilities. For example, the interim status regulations in
Secs. 270.62(d) and 270.66(g) require facilities to submit the results
of the trial burn before permit issuance, but do not explicitly state
that facilities must receive permitting agency approval of the trial
burn plan before conducting the burn.
The procedures for interim status and new combustion facilities
differ in other areas. Contrary to permitted facilities, interim status
facilities do not have a permit during the trial burn stage; thus, the
permit modification procedures do not apply. As a consequence, the
permitting agency currently does not have the same authority to
regulate post-trial burn changes by interim status facilities as it
does for new combustion facilities, especially in the case of
incinerators [BIFs are more highly regulated under interim status].
Unlike the requirements for new facilities, there is no opportunity
for public involvement in the permitting process for interim status
combustion facilities until after the facility has conducted the burn
and the permitting agency issues the draft permit.
EPA believes that many of the requirements for new combustion
facilities are appropriate for interim status facilities; the Agency
proposes to change the regulations to apply some of these requirements
specifically to interim status facilities. It is the Agency's intent,
in changing the regulations, to ensure protection of human health and
the environment and provide a greater opportunity for public
involvement in the permitting process.
4. Discussion of Proposed Permitting Requirements for Trial Burns
EPA is proposing to consolidate the permitting procedural
requirements for interim status combustion facilities by moving the
incinerator and BIF interim status permitting requirements, found in
Secs. 270.62(d) and 270.66(g), to proposed Sec. 270.74. In addition,
EPA is proposing to amend these requirements to make them more
equivalent to the permitting requirements for new combustion units. EPA
believes that consolidating the permitting requirements for interim
status combustion facilities and distinguishing them from the
requirements for permitted facilities will simplify the interim status
trial burn process.
The consolidation and movement into proposed Sec. 270.74(a) and (b)
will not change the majority of the regulatory language in the existing
provisions. However, EPA is proposing additional language that will
make interim status permitting procedures more consistent with new
facility permitting procedures and expand the opportunities for public
participation.
EPA is also revising provisions for submitting data in lieu of a
trial burn, Sec. 270.19 for incinerators and Sec. 270.22 for BIFs, to
reflect actual Agency practice. As currently written, this waiver,
which the permitting agency can grant to either permitted or interim
status units, could be seen as relatively open-ended; yet, in actual
practice, permitting authorities have allowed facilities to use the
provisions only under a narrow range of circumstances. EPA believes
that granting the waiver only under a narrow range of circumstances is
appropriate for the reasons discussed below and, therefore, is
proposing to revise this provision to specifically restrict application
to this narrow range. This revision to the regulatory language will
ensure consistency among permit writers. It could also benefit
facilities in the following way. The proposed rule will make explicit
the strict circumstances under which a permitting agency will grant a
waiver. Once a facility knows these circumstances, it will not misuse
its resources in compiling a waiver request that the permitting agency
will not grant; instead, the facility can focus its resources on
developing a trial burn plan.
EPA is concerned that units constructed at different locations at
different times, or with slight design or operating differences, may
not perform in an identical manner. For example, if the locations are
at different altitudes, the differences in atmospheric pressure could
affect the performance of the units. In addition, there would likely be
different operators running the units at different locations; thus, the
units may not be operated in an identical manner.
The Agency believes that the theory of submitting data from other
units in lieu of conducting a trial burn is sound; however, sufficient
data is not available to ensure that the theory could be applied to
real world situations without imposing strict limitations. EPA believes
that most combustion units will need to conduct trial burns in order to
develop operating conditions that ensure compliance with the
performance standards.
To this end, EPA is proposing today to codify EPA's current policy
by making the following changes: (1) Replace ``sufficiently similar''
with ``virtually identical''; and (2) specify that the units must be
located at the same facility. The ``data in lieu of'' provision,
therefore, would not apply to mobile treatment units when moved from
site to site, since they would not be located at the same facility.
a. Submittal of trial burn plans for interim status facilities.
Today's proposed rule would require interim status hazardous waste
incinerators (proposed Sec. 270.74(a)(1)) and BIFs (proposed
Sec. 270.74(b)) to submit a trial burn plan with their initial Part B
permit applications. EPA believes that the trial burn plan for interim
status facilities should be subject to public notice and available for
review with the initial Part B application, as it is for new facilities
seeking permits. EPA's objective in proposing these revisions is to
involve the public much earlier in the interim status facility
permitting process than current regulations require.
EPA intends that today's requirements regarding submittal of the
trial burn plans for interim status facilities will: (1) Specify the
point in the permit process when the facility submits the trial burn
plan, which will be the same point as for new facilities; and (2)
explicitly provide that interim status facilities must conduct the burn
in accordance with an approved plan.
Since EPA is proposing a specific point for trial burn plan
submittal in the proposed rule, i.e., with the Part B application, the
Agency is deleting the current provisions that refer to the trial burn
plan submittal (Secs. 270.62(d) and 270.66(g)).
b. Approval of trial burn plans for interim status facilities. In
Sec. 270.74(c)(1), EPA is explicitly requiring that any interim status
combustion facility that seeks a permit must obtain the Director's
approval of the trial burn plan before conducting the trial burn. EPA
is also proposing, in Sec. 270.74(c)(4), that the Director, after
approving a trial burn plan, must specify a time period during which
the facility shall conduct the burn. EPA adds this latter requirement
to ensure that facilities conduct trial burns in a timely manner. The
Agency believes that requiring the permitting agency's approval of
interim status trial burn plans will ensure that the facilities submit
plans that reflect, and the permitting authority reviews the plans in
the context of, current EPA policy and guidance. EPA also believes that
today's proposed requirements will ensure that, in most cases, the
burns will supply adequate data and information to set permit operating
conditions. This proposed requirement for interim status facilities is
equivalent to the permitting procedures for new facilities seeking
permits.
It should be noted, however, that unlike the procedures for new
facilities, approval of the trial burn plan for interim status
facilities is on a separate track from the rest of the permit
application. As mentioned earlier in this preamble, a new combustion
facility must receive a permit before building the combustion unit and
conducting the trial burn. Review and approval of trial burn plans for
these facilities is concurrent with review and approval of the entire
permit application; the trial burn plan is just one of many components.
However, for interim status facilities, the permitting authority does
not issue the draft permit, or the notice of intent to deny the permit,
until after the facility conducts the trial burn. Since facilities must
conduct the burn in accordance with a plan approved by the permitting
agency, it is clear that the plan must be on a separate approval track
from the rest of the permit application. Furthermore, interim status
facilities typically must revise their permit applications to reflect
the results of the burn, so that the conditions set in the permit can
be based on conditions known to ensure compliance with the performance
standards.
c. Notices of trial burns. In today's proposed rulemaking, EPA is
seeking to expand opportunities for public involvement during the trial
burn phase of the combustion permitting process for both new and
interim status facilities. EPA requests comments on whether the
facility or the permitting authority should be responsible for
publishing the public notices discussed in the following sections.
c.1. Permitted combustion facilities. EPA is proposing, in
Sec. 270.62(b)(6) for incinerators and Sec. 270.66(d)(3) for BIFs, to
require the Director to send a notice of the expected trial burn
schedule to all persons on the mailing list and to appropriate units of
State and local government. As mentioned previously in the preamble,
the trial burn plan is available for public review at other points in
the permitting process (e.g., at application submittal, at draft permit
issuance, and at final permit determination). Thus, unlike the notice
requirement for interim status facilities, explained in the section
below, the notice of the trial burn schedule for permitted facilities
does not refer to the trial burn plan.
EPA recognizes that, in a limited number of situations,
circumstances beyond the control of the facility or the permitting
authority could delay a trial burn. It is not EPA's intent, in these
limited situations, to require an additional notice with a revised burn
schedule.
The notice must contain the following information, specified in
Secs. 270.62(b)(6) or 270.66(d)(3): (1) Name and telephone number of
the facility's contact person; (2) name and telephone number of the
permitting authority's contact office; (3) location where the approved
trial burn plan and any supporting documents are available for review;
and, (4) the expected time period during which the facility is
scheduled to conduct the trial burn. Including this information in the
notice enables members of the public to speak with a person who is
knowledgeable about the trial burn plan, and to be aware of an imminent
trial burn in their community.
c.2. Interim status combustion facilities. In Sec. 270.74(c)(3),
EPA is proposing notice requirements for interim status facilities that
are similar to the requirements for permitted facilities. The proposed
rule will require the Director to send a notice to all persons on the
mailing list and appropriate units of State and local government,
informing them of the proposed approval of the trial burn plan and the
expected trial burn schedule. The Agency is requiring this notice
before the permitting authority approves the plan in order to provide
an additional opportunity for the public to review the final draft
plan. It should be noted that, for interim status facilities, the
Director's decision to approve the trial burn plan is not subject to
administrative appeal.
EPA recognizes that the draft plan submitted with the initial Part
B application may differ significantly from the final version that the
permitting authority approves. EPA wants to ensure that the public has
a chance to see the revisions prior to approval and the actual burn.
EPA would like to solicit comments on whether the Agency should
establish a comment period for interim status facilities prior to
approving the trial burn plan, in view of the fact that, for permitted
facilities, the public has an opportunity to comment on the draft trial
burn plan as part of the draft permit process.
Currently, there are less public involvement opportunities for
interim status facilities than there are for permitted facilities, with
regard to the review of trial burn plans. As mentioned previously, for
permitted facilities, the public has the opportunity to review the
trial burn plan at both the application and draft permit phases before
a trial burn occurs.
The notice must contain the information specified in proposed
Sec. 270.74(c)(3). The notice should include the following: (1) Name
and telephone number of the facility's contact person; (2) name and
telephone number of the permitting authority's contact office; (3)
location where the draft trial burn plan and any supporting
documentation are available for review; and (4) a schedule of
activities that are required prior to permit issuance, including the
date by which the Director expects to approve the plan and the expected
time period during which the facility is scheduled to conduct the trial
burn and submit results to the Director (refer to proposed
Sec. 270.74(c)(4)). Including this information in the notice enables
the public to speak with a person who is knowledgeable about the trial
burn plan, receive or review additional information, and learn of an
imminent trial burn in their community.
As stated earlier, interim status facilities will conduct the trial
burn prior to permit issuance, as required by current regulations.
Although the public will have an opportunity to review the trial burn
plan, since it must be submitted with the initial Part B application,
in accordance with today's proposed requirements in Sec. 270.74(a) or
(b), a significant amount of time may elapse before the Director
approves the plan and announces the facility's expected schedule for
the burn. EPA believes that it is important to inform the public of the
Director's proposed approval of the trial burn plan, separate from the
rest of the Part B permit application, and the anticipated time period
for conducting the burn. Again, this is consistent with the Draft
Combustion Strategy goal of promoting public involvement in the trial
burn stage.
d. Post-trial burn period at interim status combustion facilities.
In today's rule, EPA is proposing that interim status combustion
facilities be subject to the performance standards of Sec. 264.343, for
incinerators, or Secs. 266.104 through 266.107, for BIFs, upon
completion of the trial burn. During the post-trial burn period,
interim status facilities must operate only under conditions that
passed and were demonstrated to meet these performance standards, and
only if the successful trial burn data is sufficient to set all
applicable operating conditions. EPA has provided information, in its
June 1994 Guidance on Trial Burn Failures, for determining whether
conditions resulted in non-compliance and under what circumstances
successful data from the trial burn is sufficient to set all applicable
operating conditions.
This proposal is more stringent than current regulations and
practices. Currently, no regulations provide for setting post-trial
burn conditions at interim status facilities. EPA believes that these
proposed regulations will give the permitting agency the direct
authority it needs to restrict these interim status facilities'
operations to ensure that they are in compliance with the basic
performance standards applicable to permitted facilities during the
post-trial burn period. Establishing these requirements will ensure
that interim status combustion facilities are operating in a manner
that is protective of human health and the environment during the post-
trial burn period.
This proposed requirement for interim status facilities is
consistent with the post-trial burn requirements for permitted
facilities. It is also consistent with EPA's draft model permit
(September 1988), which has wording for the permitting agency to
incorporate into combustion permits regarding temporary restriction of
operating conditions following the trial burn.
Today's proposed rule supports and builds upon the language
contained in the draft model permit. EPA is proposing that if the trial
burn data for an interim status combustion facility show non-compliance
with any set of the performance standards, then the facility will be
required to (1) immediately cease operating under the condition(s) that
resulted in non-compliance and (2) notify the Director. The facility
may only continue operating if there are enough successful data from
the trial burn to set all applicable operating conditions, and the
facility is able to modify its design and/or limit its operating
conditions to operate within the performance standards.
For example, one component in establishing a complete set of
operating conditions is determining a maximum and a minimum combustion
temperature. A maximum temperature is important for the metals
volatilization standard; a minimum temperature is important for the
destruction and removal efficiency (DRE) standard. For the sake of
simplicity, this example assumes that the facility tested under only
two temperature conditions, a high and low temperature, and that all
other variables remained constant. By setting minimum and maximum
temperature limits, the test burn can establish an operating
``envelope,'' in other words, a range of temperatures within which the
facility can operate safely in compliance with the performance
standards. If the trial burn results show that the high temperature was
successful, but that the low temperature was not sufficient to meet
performance requirements, then there may not be enough successful data
to set all applicable operating conditions. In this example, the
facility would be required to stop operating.
On the other hand, following up on the above example, a facility
may want to run tests over a range of temperatures in order to avoid
shutdown. By running multiple temperature tests, the facility could
attempt more conservative tests, as well as tests that would push the
combustion unit's operating envelope. For instance, a facility may plan
to conduct multiple tests to establish its minimum operating
temperature. Thus, a facility may choose to test at two temperatures,
e.g., low and medium. If the trial burn results show that the low
temperature could not meet the performance standards, but the medium
temperature did, then enough successful data would exist to set all
applicable operating conditions. In this scenario, the facility would
restrict its operations to burn between the medium and the high
temperature during the post-trial burn period and, thus, would continue
operating within the performance standards.
EPA intends for the facility to be responsible for restricting its
operations if any of the trial burn data show non-compliance with
performance standards. If the facility wishes to continue operating
under restricted conditions during the post-trial burn period, it must
provide to the Director a description of the conditions under which it
is operating, and a preliminary explanation of how the conditions were
determined to be sufficient to ensure that the unit functions within
the performance standards. EPA is proposing to require facilities to
submit this information with the trial burn results. As currently
required in Secs. 270.62(b)(7) and (8) for incinerators, and
270.66(d)(3) and (4) for BIFs, facilities must submit the results of
the trial burn and any data from the trial burn within 90 days of
conducting the burn. As part of the proposed consolidation of the
permitting procedural requirements for interim status combustion
facilities, EPA has also reiterated this requirement by incorporating
it, by reference, into Sec. 270.74(c)(5).
EPA is proposing, in Sec. 270.74(c)(6), to give the Director the
discretion to further restrict operating conditions during the post-
trial burn period to ensure that the unit is operated within the
performance standards. The Director will make a determination on the
need for further restrictions after reviewing the trial burn data and
the preliminary explanation submitted by the facility within 90 days of
the trial burn. The Director will inform the facility, in writing, of
any operational restrictions that he or she is imposing on the facility
beyond those listed by the facility in its preliminary explanation.
e. Additional trial burns. The existing permit modification
procedures (Sec. 270.42) contain provisions to address additional trial
burns at permitted combustion facilities. As mentioned previously,
public involvement opportunities are built into the permit modification
procedures. The procedures require the permitting authority to notify
the public when any change is made to the existing permit through these
procedures. Since the permit modification procedures do not apply to
interim status facilities, EPA is proposing, in Sec. 270.74(c)(7), to
specify requirements for additional trial burns at interim status
combustion facilities. As discussed in the previous section, if any
results of a trial burn at an interim status combustion facility show
non-compliance with any set of the performance standards, the facility
must restrict its post-trial burn operations to conditions that passed
and demonstrated compliance with performance standards. At this point,
there are two potential courses of action a facility may follow. On one
hand, the facility may choose to revise its Part B application to
exclude those conditions. A facility that opts for this course of
action is, in essence, choosing not to pursue those conditions in its
final permit. For example, if the facility failed conditions relating
to burning of aqueous wastes, it may decide to restrict its long-term
operations by handling only non-aqueous wastes; the facility would then
reflect that decision in its permit application.
Alternatively, a facility may choose to revise its trial burn plan
to address the reasons for the failure and then conduct an additional
burn under improved design or operating conditions. EPA believes that
the majority of facilities that fail trial burn condition(s) will
choose this latter course of action in order to establish permit
conditions that meet their needs for long-term operation.
EPA believes that there may be a misconception that permitting
authorities allow facilities to run the same conditions over and over
again without making any changes. The Agency would like to remove any
confusion over its policy regarding performance of additional trial
burns when a test condition fails. It is important first to recognize
that a facility spends a considerable amount of time and resources on
the trial burn, and intends to pass the first time. An informal poll of
EPA Regions showed that only a dozen additional trial burns for
incinerators have occurred to date.
Furthermore, EPA has clarified, in its Guidance on Trial Burn
Failures (June 1994), the circumstances under which facilities would be
allowed to run additional trial burns. According to this guidance,
facilities may submit a request to conduct an additional trial burn to
the Director. As part of this request, the facility should demonstrate
that it has investigated the reasons for the failure and describe
planned substantive changes to its process. A facility should not be
allowed to retest under the same design and operating conditions at
which it failed. The facility should demonstrate in a revised trial
burn plan that the changes to its design and/or operations are
sufficient to prevent failure from reoccurring. The Director reviews,
and either approves or denies, the request. The Director should not
approve an additional trial burn unless the facility has demonstrated
satisfactorily that the changes proposed in the revised trial burn plan
are likely to meet the performance standards.
As indicated in the trial burn guidance, existing EPA policy allows
for facilities to conduct additional trial burns. Current regulations,
on the other hand, do not specifically address permitting procedures
for interim status combustion facilities for the limited number of
situations when facilities would request additional burns. Today's
proposed rule establishes procedures for these situations and builds
upon EPA's current policy by incorporating the circumstances described
in guidance into proposed regulatory language.
Under proposed Sec. 270.74(c)(7), interim status combustion
facilities may request an additional trial burn. According to the
proposed section, the facility's request for an additional trial burn
must contain an explanation of the reasons for the previous trial burn
failure, as well as a revised trial burn plan that has substantive
changes to address the reasons for the previous failure. EPA encourages
facilities that pursue this option to fulfill the above requirement by
expanding the preliminary explanation that they are required to provide
in order to continue operating during the post-trial burn period (as
discussed in the previous section). The Agency believes that these
provisions, along with the requirement that the permitting agency
approve trial burn plans before the facility conducts the burn, will
help ensure that facilities conduct trial burns properly and the public
is informed throughout the process.
EPA believes it is important to inform the public when the
permitting authority anticipates an additional trial burn. Thus, in
proposed Sec. 270.74(c)(7), the rule will require the Director to
inform the people on the mailing list and appropriate units of State
and local government once he or she has reviewed the revised trial burn
plan and has tentatively decided to approve it. This notice will
provide the public with an opportunity to review the revised plan, and
see the rationale for the additional burn. EPA wants the public to be
aware of the reasons why the facility believes the additional run will
be successful. The Director's decision to approve a revised trial burn
plan is not subject to administrative appeal.
f. Denial of permit application after the trial burn. There may be
occasions when a combustion facility cannot demonstrate compliance with
the performance standards through the trial burn, or has not
demonstrated to the Director that an additional burn is likely to
address the causes of the previous failure. In the case of permitted
facilities, the Director may choose to terminate the permit. Existing
regulations in Sec. 270.43 provide the Director with the authority to
terminate a permit for cause, following procedures set forth in part
124.
EPA would like to provide similarly clear authority to the Director
in the case of interim status combustion facilities. Existing
regulations in Sec. 270.29 provide the Director with authority to deny
a permit application, pursuant to procedures in part 124. In order to
clarify the applicability of this provision to trial burn failure
situations, EPA is proposing, in Sec. 270.74(c)(8), to provide specific
authority for the Director to deny a permit, pursuant to procedures in
part 124, for an interim status combustion facility, based on the
facility's inability to demonstrate compliance with the performance
standards. It is not EPA's intent, in providing this authority, to
imply that the Director would deny a permit automatically if the
facility failed any of the trial burn plan conditions. Every facility,
permitted and interim status alike, will have the option of requesting
and proving that it can meet the requirements for an additional burn.
In keeping with EPA's goal of involving the public at key points in
the permit process, EPA would like to reiterate that the current
procedures for permit denial, set forth in part 124, include
requirements for the permitting authority to notify to the public of
intent to deny the permit application.
IV. Solicitation of Comments
EPA is soliciting comments on a number of items in today's proposed
rule. The following is a list of the items on which EPA solicits
comment in the preamble. Detailed discussions of each of the items can
be found in the relevant sections of the preamble. For ease in
referencing these sections, the items are briefly summarized below.
A. Expanded Public Participation
1. Equitable Public Participation
EPA is asking for comments, in section 4.a: Equitable Public
Participation, on how the requirements proposed in Sec. 124.30 could be
implemented.
2. Environmental Justice
EPA is soliciting comments, in section 4.a.1: Agency activities
dealing with environmental justice, on several items relating to
environmental justice. For instance, EPA is interested in receiving
comments on ways to incorporate environmental justice concerns into the
RCRA public participation process. EPA is also requesting comments on
the need for additional rulemaking or policy guidance for incorporating
environmental justice into certain aspects of the RCRA permitting
program, such as corrective action. The Agency is also interested in
receiving comments on suggested methodologies and procedures for
undertaking analysis of ``cumulative risk'' and ``cumulative effects''
associated with human exposure to multiple sources of pollution.
Finally, EPA is soliciting comments on some of the recommendations
developed by the OSWER Environmental Justice task force, discussed in
section 4.a.1.
3. Pre-Application Meeting--Applicability
EPA is soliciting comments on the applicability of the pre-
application meeting requirements in two sections. In section 4.b:
Applicability of Pre-application Meeting, EPA is requesting comments on
whether the pre-application meeting should apply to permit renewal
applications. In section 5.b: Requirements for the Pre-application
Meeting, EPA is requesting comment on whether the requirements should
apply to all facilities or only to certain groups (e.g., incinerators,
commercial facilities). EPA is also requesting comments on whether the
permitting authority should attend the pre-application meeting.
4. Pre-Application Meeting--Possible Alternative
In section 4.b: Applicability of Pre-application Meeting, EPA is
requesting comments on whether a State's public participation meeting
for siting a facility should be an allowable substitute for today's
proposed pre-application meeting.
5. Pre-application Meeting Notice Requirements
As discussed in section 5.b.1: Providing Notice of the Pre-
application Meeting, EPA would like comments on whether these expanded
notice requirements should apply to other notices during the RCRA
permitting process. EPA also requests comments on how to implement the
alternative notice provision in the regulations without prescribing a
specific formula or approach that may not be appropriate in all
circumstances.
6. Public Notice at Permit Application--Applicability
EPA is requesting comments in section 4.c: Applicability of Public
Notice at Permit Application on whether today's proposed requirements
should also apply to post-closure permits.
7. Public Notice at Permit Application--Responsibility
In section 5.c: Requirement for Public Notice at Permit
Application, EPA is requesting comments on whether the permitting
authority or the facility should be responsible for providing the
public notice at application submittal.
8. Information Repository
EPA is requesting comments on the proposed information repository
requirements described in section 5.d: Requirement for an Information
Repository. For example, at what time during the permitting process
would it be useful to have the repository be maintained or terminated?
Should the repository be limited to certain types of facilities? What
specific documents would the public like to see in the repository?
B. Requirements Regarding the Trial Burn
1. Notices of Trial Burns
In section 4.c: Notices of Trial Burns, EPA is requesting comments
on whether the permitting authority or the facility should be
responsible for providing public notices during the trial burn stage.
EPA is also requesting comments, in section 5.c.2: Interim Status
Combustion Facilities, on whether the Agency should establish a comment
period for interim status facilities prior to approving the trial burn
plan, in view of the fact that, for permitted facilities, the public
has an opportunity to comment on a draft trial burn plan as part of the
draft permit process.
C. Cost Estimates
In section VI. Regulatory Impact Analysis Pursuant to Executive
Order 12866, EPA is asking for comments on the data and methodologies
used to derive the cost estimates associated with this proposed rule.
EPA intends to consider all comments on these, and any additional,
items before drafting a final rule.
V. State Authority
A. Applicability of Rules in Authorized States
Under section 3006 of RCRA, EPA may authorize qualified states to
administer and enforce the RCRA program within the state (see 40 CFR
part 271 for the standards and requirements for authorization).
Following authorization, EPA retains enforcement authority under
sections 3008, 7003, and 3013 of RCRA, although authorized states have
primary enforcement responsibility.
Prior to enactment of the Hazardous and Solid Waste Amendments
(HSWA) of 1984, a state with final RCRA authorization administered its
hazardous waste program entirely in lieu of the federal program. The
federal requirements no longer applied in the authorized state, and EPA
could not issue permits for any facilities in that state, since only
the state was authorized to issue RCRA permits. When new, more
stringent federal requirements were promulgated or enacted, the state
was obligated to enact equivalent authority within specified
timeframes. However, the new federal requirements did not take effect
in an authorized state until the state adopted the requirements as
state law.
In contrast, HSWA amended RCRA to add section 3006(g) (42 U.S.C.
6926(g)). Under section 3006(g), new requirements and prohibitions
imposed under HSWA authority take effect in authorized states at the
same time that they take effect in nonauthorized states. EPA is
directed by statute to implement those requirements and prohibitions in
authorized states, including the issuance of permits, until the state
is granted authorization to do so. While states must still adopt HSWA-
related provisions as state law to retain final authorization, the HSWA
requirements are implemented by EPA in authorized states in the
interim.
Today's proposal is promulgated pursuant to pre-HSWA authority.
These provisions, therefore, would become effective as RCRA
requirements in states with final authorization once the state has
amended its regulations and the amended regulations are authorized by
EPA. However, EPA would like to encourage States to adopt the changes
proposed today expeditiously, and implement them as part of their own
programs as rapidly as possible.
B. Effect on State Authorizations
The provisions of this rule are proposed under pre-HSWA authority.
This section discusses the implications of the pre-HSWA authority on
EPA's and the states' implementation, and the schedule for state
adoption of these new requirements.
1. Pre-HSWA Provisions
a. Part 270--Hazardous Waste Permitting. The provisions of today's
proposal that would affect the permitting and permit modification
procedures for combustion units (BIFs and incinerators) are proposed
under pre-HSWA authority. These provisions include revised
Secs. 270.22(a) and 270.19(d) which clarify allowable circumstances for
using the ``data in lieu of trial burns'' in connection with permitting
combustion units; proposed Sec. 270.74, and revisions to Secs. 270.62
and 270.66 for permitted units, which would add new procedures for
public involvement in the trial burn planning and trial burn phases for
both permitted and interim status combustion facilities, make interim
status procedures more equivalent to permitted, and require interim
status facilities to comply with performance standards during the post-
trial burn period. In addition, the proposed amendments to the permit
modification provisions of Sec. 270.42 (to distinguish further between
the shakedown and trial burn phases when modifying permitted combustion
units) are also based on pre-HSWA provisions. These provisions of the
proposal, since they are based on pre-HSWA authority, will apply
immediately only in those states that do not have RCRA authorization.
In authorized states, these requirements will not apply until the
states revise their programs to adopt requirements under state law that
are at least as stringent and have these new requirements approved by
EPA.
b. Part 124--Public Participation Requirements. EPA desires to
provide for, encourage and assist public participation. This proposed
rule would establish procedures to promote better and more timely
information sharing between the public, the state, EPA, and the
facility applicant. The following is required under the part 124
regulations to comply with new public participation requirements: A
pre-application meeting, a notice of application, and an information
repository. However, these provisions, since they are based on pre-HSWA
authority, will apply immediately only in those states that do not have
RCRA authorization. In authorized states, these requirements will not
apply until the states revise their programs to adopt requirements
under state law that are at least as stringent and have these new
requirements approved by EPA.
2. Procedures Applicable to Pre-HSWA Provisions
40 CFR 271.21(e) requires that states that have final authorization
must modify their programs to reflect federal program changes and must
subsequently submit the modifications to EPA for approval. The
deadlines for state modifications are set out in Sec. 271.21(e)(2), and
depend upon the date of promulgation of final rules by EPA, announcing
the program changes. For example, if a final regulation based on this
proposal is promulgated by EPA before June 30, 1995, the deadline by
which the states must modify their programs to adopt this regulation
would be July 1, 1996 (or July 1, 1997 if a state statutory change is
needed). These deadlines can be extended in certain cases (see 40 CFR
271.21(e)(3)). Once EPA approves the modifications, the state
requirements become RCRA subtitle C requirements.
States with authorized RCRA programs may already have requirements
similar to those proposed today. These state regulations have not been
assessed against final federal regulations to determine whether they
meet the tests for authorization. Thus, similar provisions of state law
are not considered to be authorized RCRA requirements until they are
submitted to EPA and evaluated against final EPA regulations. Of
course, states may continue to administer and enforce their existing
standards as a matter of state law.
States that submit their official applications for final
authorization less than 12 months after the effective date of final
standards are not required to include standards that are at least as
stringent as these standards in their application. However, states that
submit final applications for final authorization 12 months or more
after the effective date of the final standards must include standards
that are at least as stringent as these standards in their
applications. 40 CFR 271.3 sets forth the requirements that states must
meet when submitting final authorization applications. Because the
proposed public participation requirements in Sec. 270.74 represent a
significant upgrade to the combustion unit permitting process, EPA
strongly encourages States that have not yet adopted the BIF rule (56
FR 7134, February 21, 1991) to adopt these new public participation
procedures concurrently with their BIF rules, rather than deferring
their adoption to the much later deadline that would apply under the
Cluster Rule to this new regulation. It should be noted that in
situations where EPA retains permitting authority for BIFs (because the
State has not yet received authorization for BIFs), EPA may implement
both the permitting and public involvement procedures described in
today's proposed rule. In this joint permitting situation, EPA would be
the responsible Agency for the BIF permitting requirements in
unauthorized States that are not authorized to issue BIF permits.
EPA believes that the overall effect of this proposed regulation
would increase the stringency of the RCRA permitting processes.
Therefore, all authorized states will be obligated to modify their
programs to adopt these requirements when they are finalized by EPA,
unless their existing state programs and laws are deemed by EPA to be
equivalent in effect. For those states which are obligated to modify
their programs to adopt these requirements when they are finalized by
EPA, Sec. 271.21(e) deadlines for state modifications will apply
accordingly.
In developing today's proposed regulations, EPA was sensitive to
impacts on existing State programs. The proposed requirements may be
viewed as performance objectives the Agency wants States to meet. It is
not EPA's intent to restrict States from using similar activities that
accomplish the same objectives. Therefore, EPA will allow latitude and
room for interpretation when reviewing state modifications for adopting
these regulations.
VI. Regulatory Impact Analysis pursuant to Executive Order 12866
Under Executive Order 12866, (58 FR 51735, October 4, 1993) the
Agency must determine whether a regulatory action is ``significant''
and therefore subject to review by the Office of Management and Budget
(OMB) and to the requirements of the Executive Order, which include
assessing the costs and benefits anticipated as a result of the
proposed regulatory action. The Order defines ``significant regulatory
action'' as one that is likely to result in a rule that may: (1) Have
an annual effect on the economy of $100 million or more or adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities; (2)
create serious inconsistency or otherwise interfere with an action
taken or planned by another agency; (3) materially alter the budgetary
impact of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients thereof; or (4) raise novel legal
or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive Order.
OMB has determined this is a significant rule under Executive Order
12866. Pursuant to the terms of Executive Order 12866, this section of
the preamble summarizes the potential economic impacts of the proposed
RCRA Expanded Public Participation and Revisions to Combustion
Permitting Procedures rule.
Based upon the economic impact analysis for today's proposed rule,
the Agency's best estimate is that the requirements regarding expanded
public participation before and during permit application would result
in an incremental national annual cost of $130,000 to $380,000.
In addition, the annualized incremental national cost of the
permitting requirements in today's proposed rule is estimated to be
between $0 to $520,000. EPA expects that much of the effect of the
permitting provisions in today's proposed rule will be to clarify and
codify current practice.
Based upon the economic impact analysis for today's proposed rule,
the Agency's best estimate is that the requirements of today's proposed
rule would result in an incremental national annual cost of $130,000 to
$900,000.
A complete discussion of the economic impact analysis is available
in the regulatory docket for today's proposed rule in a report entitled
``Economic Impact Analysis for the Proposed RCRA Expanded Public
Participation and Revisions to Combustion Permitting Procedures Rule.''
EPA requests comments on the data and methodologies used to derive
the estimates described below and in the background document.
A. Cost Analysis
This section summarizes estimated costs and potential impacts of
two aspects of today's proposed rule: (1) Expansion of opportunities
for public involvement in the permitting process, and (2) modification
of combustion unit permitting requirements. These two pieces of the
proposed rule affect a different universe of facilities at different
stages in the permitting process and, thus, are presented separately.
1. Expanded Public Involvement Opportunities
Most of the requirements of the expanded public involvement portion
of today's proposed rule apply only to new hazardous waste treatment,
storage, and disposal permit applications. With the exception of the
information repository requirement (see below), the expanded public
involvement requirements do not apply to post-closure permits and
permit modifications.
EPA estimates that, over the next ten years, the bulk of new permit
applications will be submitted by the 159 interim-status boilers and
industrial furnaces (BIFs). In addition, based on information provided
by the Regional permit writers, EPA estimates that an additional 53 to
127 new treatment, storage, and disposal facilities (for a total of 212
to 286 facilities) will submit permit applications over the next ten
years.
Today's proposed rule includes several requirements that would
result in direct costs to facilities submitting new permit
applications. The analysis estimates the costs to all affected
facilities of (1) Preparing a public notice announcing the intention to
submit a permit application and to hold a public meeting; (2)
disseminating the public notice in local newspapers and over the radio;
and (3) holding a public meeting and preparing a transcript.
In addition, for communities with a non-English speaking
population, the rule will require the facility to ``make all reasonable
efforts to communicate with the community in ways that reach all
segments.'' Based on conversations with RCRA and Superfund Regional
community relations specialists and on data about existing RCRA
facilities, this analysis assumes that between 5%-30% of the facilities
(11 to 86 facilities over the next ten years) will fulfill this
requirement by publishing multi-lingual notices and providing an
interpreter at the public meeting.
Finally, the rule will give the Director the discretion to require
a facility to set up an information repository, based on the level of
public interest or other factors. This requirement can apply anywhere
in the permitting process, including post-closure permits, permit
renewals, and permit modifications. Thus in addition to the interim
status BIFs and the new facilities mentioned above, the repository
requirement can apply, at the discretion of the Director, to the
approximately 4,100 treatment, storage, and disposal facilities that
EPA expects will undergo permit renewals, modifications, or closure
over the next ten years. EPA estimates that 15-20% of the estimated 212
to 286 facilities submitting a new Part B application, and 1% of the
4,100 already-permitted facilities (73 to 98 facilities total) would be
affected over the next ten years by the repository requirement in
today's proposed rule.
The total cost per facility of the above requirements is
approximately $5,000 to $14,000. Annualized over a ten-year period,
using a 7% discount rate, the resulting national annual cost of the
expanded public involvement requirements is estimated to be between
$130,000 to $380,000.
2. Modification of the Permitting Process
a. Direct costs. Today's proposed rule includes two new permitting
requirements that have direct cost implications for the regulated
universe: (1) Changing the ``data in lieu of'' requirements, and (2)
specifying the events that follow a trial burn failure.
Currently, interim status combustion facilities have the option of
submitting ``data in lieu of'' a trial burn for a unit that is
``sufficiently similar'' to an already-permitted unit. Today's proposed
rule proposes changing the requirements for ``data in lieu of'' by
requiring the units to be ``virtually identical'' and to be located at
the same facility.
Based on information from trial burn contractors, preparing a trial
burn plan and conducting a trial burn costs about $110,000 to $550,000
per facility. Submitting ``data in lieu of'' a trial burn is assumed to
cost approximately the same as preparing a trial burn plan, or $10,000
to $50,000. The net incremental cost of denying the ``data in lieu of''
option would be $100,000 to $500,000 per affected facility.
EPA estimates that between zero and eight percent (0-13 facilities
total) of the interim-status BIFs could incur a cost of doing a trial
burn due to this proposed rule. The resulting annual national cost is
$0 to $520,000.
The low end of the affected facility universe is ``zero'' because,
although submission of ``data in lieu of'' a trial burn is an option
under current regulations for a facility with ``sufficiently similar''
units, it appears that facilities almost never exercise this option.
EPA guidance on trial burns states that ``although it is possible to
satisfy this requirement by submitting information showing that a trial
burn is not required, this is a rare occurrence * * *.''2 Neither
of the trial burn contractors that were contacted was aware of a
successful ``data in lieu of'' application. Regional permit writers
knew of a few permits that were granted based on the ``data in lieu
of'' provision, but in those cases the units were determined to be
identical and, therefore, would still qualify under today's proposal.
Thus it is likely that the main effect of changing the ``data in lieu
of'' provision will be to clarify already existing practices, and to
reflect more realistic situations and how EPA currently interprets this
provision.
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\2\Guidance on Setting Permit Conditions and Reporting Trial
Burn Results. US EPA January 1989.
---------------------------------------------------------------------------
The second permitting requirement that may result in a direct cost
to the regulated community is the delineation of the process following
a trial burn failure. Today's proposed rule proposes that, following a
trial burn failure, (1) The combustion facility must immediately
restrict operation for those conditions that failed the trial burn, and
(2) the combustion facility must either revise the permit application
to reflect the new conditions (estimated cost $5,100), or revise the
trial burn plan and rerun the trial burn (estimated cost $110,000 to
$550,000).
EPA estimates that 4% of interim status combustion units (six
facilities over the next twenty years) will fail a trial burn for one
or more conditions. Of these, 17% (one facility) is expected to simply
revise the permit application and 83% (five facilities) are expected to
revise the trial burn plan and rerun the trial burn. Annualized over a
ten year period, discounted at 7%, the resulting annualized national
total cost of facility actions that follow a trial burn failure is
$70,000 to $340,000.
Although the above costs can be attributed to today's proposed
rule, EPA does not expect there to be any true incremental costs.
Currently, if an interim status facility fails a trial burn, the
permitting authority can deny the permit. In addition, based on
conversations with EPA Regional permit writers, no permit writer would
grant a permit to a facility that failed the trial burn unless the
facility re-ran (and passed) the trial burn or revised the permit
conditions. Thus, the incremental cost of this proposed requirement,
when current practices are taken into account, is $0. The main effect
of the delineation of the process that follows trial burn failures
would be to clarify current permitting requirements.
In summary, the potential annualized total national cost for the
permitting section of today's proposed rule is estimated to be $70,000
to $860,000. The annualized incremental cost, when current practices
are taken into account, is estimated to be between $0 to $520,000. EPA
expects that the main effect of the permitting provisions of today's
proposed rule will be to clarify and codify current practice.
b. Other effects. In addition to the costs estimated above, the
requirement that interim status combustion facilities be subject to the
performance standards of Sec. 264.342 (for incinerators) or
Sec. 266.104 through Sec. 266.107 (for BIFs) upon completion of trial
burn has the potential to impose costs due to the restricted operating
conditions.
However, despite the proposed restriction following trial burn
failure, operations at the affected units are not expected to cease
entirely, because the proposed restriction on operations pertains only
to the condition(s) that fail to meet the specifications in the trial
burn plan. The unit can continue operations under a modified design
and/or operating conditions that are sufficient to allow the unit to
function within the performance standards. In addition, the restriction
lasts only until the trial burn plan is revised and a new trial burn
occurs or the permit application is modified. Therefore, EPA does not
expect this provision to significantly disrupt facility operation or
impose significant additional costs.
B. Summary of Benefits
The RCRA permitting program was developed to protect human health
and the environment from the risks posed by the treatment, storage, and
disposal of hazardous waste. By improving and clarifying the permitting
process, today's proposed rule produces environmental benefits that
result from a more efficient permitting process. Below is an
explanation of how each of the provisions of today's rule provides
benefits.
1. Expanded Public Involvement Opportunities
The main benefit of the expanded public participation requirements
of today's rule is to provide more opportunities for the public to
become involved early in permitting decisions regarding hazardous waste
storage, treatment, and disposal facilities that may ultimately affect
their communities. EPA believes these requirements will allow
applicants and permitting authorities the opportunity to address public
concern in making decisions about the facility and the proposed permit.
Providing the public with an expanded role in the permit process,
by promoting community participation and input at all decision-making
levels, also will help to foster continued community involvement after
sites become permitted.
In addition, expanding public involvement opportunities should
streamline the permitting process, since public issues will be raised
and addressed earlier in the process. Currently, the public does not
formally get involved in the permitting process until the draft permit
stage. This stage occurs after the permitting agency and the permit
applicant have discussed crucial parts of the Part B application; thus,
the public feels that most major decisions on the permit have already
been made at this point.
2. Modification of the Permitting Process
One benefit of the permitting provisions of today's rule is to
clarify current practices and, therefore, facilitate the permitting
process by making it easier to understand for the public and the
regulated community.
For example, today's proposal moves Sec. 270.62(d) and
Sec. 270.66(g), which address interim status requirements, to proposed
Sec. 270.74, where the majority of the interim status provisions are
contained. The wording is essentially the same, clarifying when the
facility must submit the trial burn plan and emphasizing that the
permitting authority must approve the trial burn plan before the
facility may conduct the trial burn. The new language structure
presents the requirements chronologically and makes the regulation
easier to understand.
EPA is also stating in Sec. 270.74(c)(1) that interim status
combustion facilities seeking permits must receive approval of the
trial burn plan by the Director before conducting the trial burn. EPA
believes that making the requirements more explicit will ensure that
trial burn plans reflect EPA policy and guidance, and that the burns
will be adequate to set permit operating conditions. As discussed in
the cost analysis section, EPA is also proposing a revision of the
provision for submitting data in lieu of a trial burn (Sec. 270.19 for
incinerators and Sec. 270.22 for BIFs) to reflect current practices.
By specifying that a unit must be ``virtually identical'' to, and
at the same facility as, a permitted unit, instead of ``sufficiently
similar'', today's rule will remove any confusion surrounding the
interpretation of the ``data in lieu of'' option and will reflect EPA's
current interpretation of this provision.
Another aspect of the permitting process that may cause confusion
is the fact that, although existing EPA policy allows the facility to
conduct additional trial burns, current regulations do not specifically
address permitting procedures following an interim status facility
trial burn failure. Today's proposed rule, by clarifying existing EPA
policy, will help state what actions follow a trial burn failure.
Finally, today's proposed rule describes in more detail the phases
of both shakedown and the trial burn permit modifications listed under
section L.7 of Appendix I, and clarifies how a facility may implement
and utilize section 270.42(d) of the modification procedures. This
revision will simplify a facility's compliance with the modification
process by making it easier for a facility to select the appropriate
classification for the modification activity.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) of 1980 requires Federal
agencies to consider ``small entities'' throughout the regulatory
process. Section 603 of the RFA requires an initial screening analysis
to be performed to determine whether small entities will be adversely
affected by the regulation. If the analysis identifies affected small
entities, regulatory alternatives must be considered to mitigate the
potential impacts. Small entities as described in the Act are only
those ``businesses, organizations and governmental jurisdictions
subject to regulation.''
In developing the proposed regulations for expanding public
involvement in the RCRA permitting process, EPA was sensitive to the
needs and concerns of small businesses. Therefore, the proposed
regulations describe the minimum efforts necessary to fulfill the
public involvement requirements. Additional examples of activities
facilities may choose to conduct are provided in the preamble, rather
than incorporated into the regulatory language. EPA's intent in doing
so is to provide flexibility for a facility to determine how elaborate
it wishes to be in conducting public involvement activities. In
addition, EPA recognizes that, in some situations, an information
repository could become resource intensive for a facility or for the
local community. EPA has addressed this concern by providing discretion
to the Director to determine whether to require a repository, rather
than requiring it for all facilities.
In regards to the burden placed on facilities that burn small
quantities of hazardous waste, EPA has already provided an exemption
under section 3004(q)(2)(B) of RCRA. The Agency carefully evaluated the
risks posed by small quantity burning and concluded that a conditional
exemption for small quantity burners should be allowed where hazardous
waste combustion poses an insignificant risk. This small quantity
burner exemption would therefore reduce the burden placed on small
entities from the revised permitting requirements for hazardous waste
combustors.
The following sub-sections summarize the potential impacts on small
entities of three aspects of today's proposed rule: expanded public
participation requirements, revised requirements for ``data in lieu
of'' a trial burn, and requirements following a trial burn failure. In
summary, EPA has determined that there are no significant impacts on
small entities from the requirements of this proposed rule.
1. Small Entity Impacts of Expanded Public Participation Requirements
The universe of facilities affected by the public participation
requirements include all facilities submitting a new part B
application. In the case of the repository requirement, facilities
undergoing permit modification or closure may also be affected.
Determination of which facilities that submit new part B
applications might be small entities is somewhat speculative. Assuming
future RCRA facilities will resemble past facilities, approximately 12%
of the estimated 53 to 127 new hazardous waste treatment, storage, and
disposal facilities may be ``small entities.''\3\ In addition, 14 of
the 159 interim status BIFs are owned by companies that are potentially
``small entities,'' based on current size thresholds established by the
U.S. Small Business Association.4,5
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\3\Hazardous Waste TSDF--Regulatory Impact Analysis for Proposed
RCRA Air Emission Standards, Final Review Draft, USEPA, Office of
Air and Radiation, August 1989. ``Small entity'' was defined as a
company whose uniform annual sales cutoff is equal to $3.5 million.
\4\13 CFR part 121.
\5\Employment, sales, industry category, and parent company
information was obtained from on-line searches of Dun & Bradstreet
and the American Business Directory. In addition to the fourteen
BIFs that were identified as potentially small entities, another
four did not have enough information to make a determination.
---------------------------------------------------------------------------
As mentioned in the cost analysis section, the highest total cost
of the public participation requirements is estimated to be $14,000 per
facility. This cost includes setting up an information repository,
translating public notices, and interpreting public meetings.
Annualized over ten years at a discount rate of 7%, the cost for a
facility, as the high end of the cost range, would be $1,900 per year.
This $1,900 per year may have a significant impact on a small
entity if it is greater than five percent of the total cost of
production. Thus a facility whose total cost of production is less than
$37,000 may be significantly impacted. It is highly unlikely that the
cost of production would be this low for a RCRA hazardous waste
facility. Total sales for ``small entity'' BIFs range from $1.3 million
to $87.3 million for the individual facilities and $19.1 million to
$513 million for the parent companies.\6\ Costs of production would
presumably be in the same order of magnitude. Thus EPA has determined
that there are no significant impacts on small entities from this
provision of the proposed rule and that alternative regulatory
approaches are not necessary.
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\6\Ibid.
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2. Small Entity Impacts of Revised Requirements for ``Data in Lieu of''
a Trial Burn
The universe of facilities potentially affected by the revised
requirements for ``data in lieu of'' a trial burn include interim-
status BIFs that would have used the ``data in lieu of'' exemption, but
because of the revised requirements of the proposed rule, would now not
be allowed to do so. As mentioned above, 14 of the 159 interim status
BIFs are owned by companies that are potentially ``small entities.''
As mentioned in the cost analysis section, the revised requirements
for ``data in lieu of'' a trial burn have a potential direct
incremental cost of $0 to $500,000 per affected facility, or an
annualized cost of $0 to $47,000 per facility (over ten years at 7%
discount rate, assuming costs occur in year one). The high end of the
cost range would be caused by trial burn costs that are imposed due to
tightening of the ``data in lieu of'' requirement. Because total sales
for ``small entity'' BIFs range from $1.3 million to $87.3 million for
the individual facilities and $19.1 million to $513 million for the
parent companies,\7\ the costs of the ``data in lieu of'' requirement
are less than 5% of total sales for any one facility and therefore not
likely to significantly impact small entities.
---------------------------------------------------------------------------
\7\Ibid.
---------------------------------------------------------------------------
Furthermore, the ``data in lieu of'' requirement is not a new
requirement, but simply a codification of current policy. Currently,
this requirement can only be applied at facilities with multiple units.
Such facilities are not likely to be small entities; therefore a
tightening of the ``data in lieu of'' requirement would not affect
small entities. Thus EPA does not expect the revised requirements for
``data in lieu of'' a trial burn to impact small entities.
3. Small Entity Impacts of Requirements Following a Trial Burn Failure
The universe of facilities potentially affected by the requirements
following a trial burn failure include interim-status BIFs that fail
their trial burn for one or more condition. As mentioned above, 14 of
the 159 interim status BIFs are owned by companies that are potentially
``small entities.'' As explained in the cost analysis section, EPA does
not expect there to be any major incremental costs to those facilities
that fail a trial burn and, therefore, does not expect the proposed
rule requirements to have any significant impacts on small entities.
D. Enhancing the Intergovernmental Partnership
Executive Order 12875 on enhancing the intergovernmental
partnership charges federal agencies to establish meaningful
consultation and collaboration with State and local governments on
matters that affect them. In most cases, State governments are the
level of government that regulates hazardous waste. In developing this
proposed rule, therefore, EPA has consulted with State officials. EPA
had five states (representing various parts of the country, e.g., east,
south, center, and west) participate in the workgroup process for this
proposed rule. These states reviewed and provided feedback on the draft
proposal over a period of eight months. In addition, these states
participated in monthly workgroup meetings via conference call. Their
participation and immediate feedback in the workgroup process added
considerable value to the draft proposal.
EPA contacted additional states in an effort to receive their
specific feedback on general permitting and public involvement
techniques. Additionally, EPA solicited state input during a session of
the 3rd Annual RCRA Public Involvement National Conference, in which 16
state representatives participated. The state participants provided
numerous helpful suggestions and ideas.
In addition, the Agency utilized existing State groups, such as the
Association of State and Territorial Solid Waste Management Officials
(ASTSWMO), to solicit input on the proposed rule at various stages in
the development process. Also, State personnel at the Commissioner
level provided input to EPA at bi-monthly meetings of the EPA-State
Task Force on Hazardous Waste Management. Through early involvement in
both vehicles, state representatives made valuable contributions to the
regulatory development process.
E. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 1688.01) and a copy may be obtained from Sandy Farmer,
Information Policy Branch (2136); U.S. Environmental Protection Agency;
401 M St., SW.; Washington, DC 20460, or by calling (202) 260-2740.
This collection of information is estimated to have a public
reporting burden varying from 203.45 to 1,230.50 hours per response,
with an average of 716.98 hours per response, and to require 34.10
hours per recordkeeper over the three year period covered by the ICR.
This includes time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection of information.
Send comments regarding the burden estimate or any other aspect of
this collection of information, including suggestions for reducing this
burden to Chief, Information Policy Branch (2136); U.S. Environmental
Protection Agency; 401 M St., SW.; Washington, DC 20460; and to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, Washington, DC 20503, marked ``Attention: Desk Officer for
EPA.'' The final rule will respond to any OMB or public comments on the
information collection requirements contained in this proposal.
List of Subjects
40 CFR Part 124
Environmental protection, Administrative practice and procedure,
Hazardous Waste, Reporting and recordkeeping requirements.
40 CFR Part 270
Environmental protection, Administrative practice and procedure,
Hazardous Waste, Reporting and recordkeeping requirements, Permit
application requirements, Permit modification procedures, Waste
treatment and disposal.
Dated: May 20, 1994.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, Chapter I, of
the Code of Federal Regulations, is proposed to be amended as follows:
PART 124--PROCEDURES FOR DECISIONMAKING
1. The authority citation for part 124 continues to read as
follows:
Authority: Resource Conservation and Recovery Act, 42 U.S.C.
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300(f) et seq.;
Clean Water Act, 33 U.S.C. 1251 et seq.; and Clean Air Act, 42
U.S.C. 7401 et seq.
2. Subpart B is added to read as follows:
Subpart B--Specific Procedures Applicable to RCRA Permits
Sec.
124.30 Equitable Public Participation
124.31 Public participation requirements at pre-application.
124.32 Public notice requirements at application stage
124.33 Information repository.
Subpart B--Specific Procedures Applicable to RCRA Permits
Sec. 124.30 Equitable public participation.
The applicant and the Director shall make all reasonable efforts
when conducting public information activities, such as public
briefings, meetings, hearings, and dissemination of notices and fact
sheets, to ensure that all segments of the population have an equal
opportunity to participate in the permitting process. Reasonable
efforts include disseminating multilingual public notices and fact
sheets, and providing an interpreter at public meetings and hearings,
where the affected community contains a significant non-English
speaking population.
Sec. 124.31 Public participation requirements at pre-application.
(a) Prior to the initial submission of a Part B RCRA permit
application for a facility, the applicant must hold at least one
meeting with the public in order to solicit questions from the
community and inform the community of proposed hazardous waste
management activities in sufficient detail to allow the community to
understand the nature of the operations to be conducted at the facility
and the implications for human health and the environment. The
applicant shall give an overview of the facility in as much detail as
possible, such as identifying the type of facility, the location of the
facility, the general processes involved, the types of wastes generated
and managed, and implementation of waste minimization and pollution
control measures.
(b) A stenographic or electronic record shall be made of the
meeting, along with a list of attendees and their addresses. The
record, list of attendees, and copies of any written comments or
materials submitted at the meeting, shall be submitted as part of the
permit application.
(c) The applicant must provide public notice of the pre-application
meeting at least 30 days prior to the meeting in a manner that is
likely to reach all affected members of the community. The applicant
must provide documentation of this notice in the permit application.
(1) Public notice shall be given in the following manner:
(i) The notice shall be published in a newspaper of general
circulation in the county or equivalent jurisdiction that hosts the
proposed location of the facility, and in each adjacent county or
jurisdiction, if applicable. In situations where the geographic area of
a host jurisdiction or adjacent jurisdictions is very large (hundreds
of square miles), the newspaper notice shall cover a reasonable radius
from the facility. The notice must be published as a display
advertisement. The advertisement shall appear in a place within the
newspaper calculated to give the general public effective notice; it
must be of sufficient size to be seen easily by the reader.
(ii) The applicant must post a notice on a clearly marked sign on
the proposed or existing facility property. The sign should be large
enough so that the wording is readable from the facility boundary. It
is not necessary to display a map on the required posted sign on the
facility property.
(iii) The notice must be broadcast on at least one local radio
station.
(2) The notices required under paragraph (c)(1) of this section
must include:
(i) The date, time, and location of the meeting.
(ii) A brief description of the purpose of the meeting.
(iii) A brief description of the facility and proposed operations,
including a map (e.g., a sketched or copied street map) of the facility
location. Notices sent to people on the mailing list must show the
facility map on the front page of the notice.
(iv) A statement that encourages people who need special access
(e.g., disabled) to participate in the meeting to provide at least a
72-hour advance notice of their needs to the facility.
(d) The requirements of this section do not apply to permit
modifications under Sec. 270.42 of this chapter, permit renewals under
Sec. 270.51 of this chapter, or applications that are submitted for the
sole purpose of conducting post-closure activities at a facility.
Sec. 124.32 Public notice requirements at application stage.
(a) Notification at application submittal. (1) The Director shall
provide public notice as cited in Sec. 124.10(c)(1)(ix), that a Part B
permit application has been submitted to the Agency, and is available
for review. The requirements of this section apply to permit renewals
under Sec. 270.51 of this chapter as well as to original applications.
(2) The notice shall be published within a reasonable period of
time after the application is received by the Director. The notice must
include:
(i) The name and telephone number of the applicant's contact
person;
(ii) The name and telephone number of the permitting agency's
contact office, and a mailing address to which comments and inquiries
may be directed throughout the permit review process;
(iii) An address to which people can write in order to be put on
the facility mailing list;
(iv) Location where copies of the permit application and any
supporting documents can be viewed and copied;
(v) Brief description of the facility and proposed operations,
including a map (i.e., sketched or copied street map) of the facility
location. Notices sent to people on the mailing list must show the
facility map on the front page of the notice; and
(vi) The date the application was submitted.
(b) Concurrent with the notice required under Sec. 124.32(a) of
this subpart, the Director must place the permit application and any
supporting documents in a location accessible to the public in the
vicinity of the permitted facility or at the permitting agency's
office. For facilities establishing an information repository pursuant
to proposed Secs. 124.33 or 270.30(l)(12) of this chapter, the
applicant shall place a copy of the permit application or modification
request, and any supporting documents in the information repository.
(c) The requirements of this section do not apply to permit
modifications under Sec. 270.42 of this chapter, and/or applications
that are submitted for the sole purpose of conducting post-closure
activities at a facility.
Sec. 124.33 Information repository.
(a) At any time during the application process for a RCRA permit,
the Director may require the applicant to establish and maintain an
information repository. The purpose of this provision is to make
accessible to interested persons documents, reports and other public
information developed pursuant to activities required under 40 CFR
parts 124, 264, and 270. (See Sec. 270.30(l)(12) of this chapter for
similar provisions relating to the information repository during the
life of a permit.)
(b) The information repository shall contain all documents,
reports, data, and other information deemed sufficient by the Director
for public understanding of the plans, activities, and operations of
any hazardous waste facility that is operating or seeking a permit.
(c) The information repository shall be located and maintained at a
location chosen by the facility that is within reasonable distance of
the facility, and within a structure with suitable public access, such
as a county library, courthouse, or local government building. However,
if the Director determines the location unsuitable, the Director may
specify a more appropriate location. The repository shall be open to
the public during reasonable hours, or accessible by appointment. The
information repository shall be located to provide reasonable access to
a photocopy machine or alternative means for people to obtain copies of
documents at reasonable cost.
(d) The Director shall specify requirements for informing the
public about the information repository. At a minimum, the Director
shall require the facility to provide a written notice about the
information repository to all individuals on the facility mailing list.
(e) Information regarding opportunities and procedures for public
involvement, including the opportunity to be put on the facility
mailing list, shall be made available at the repository.
(f) The facility owner/operator shall be responsible for
maintaining and updating the repository with appropriate information
throughout a time period specified by the Director, unless existing
State regulations require the State to maintain the information
repository.
PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE
PERMIT PROGRAM
1. The authority citation for part 270 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and
6974.
2. Section 270.2 is amended by adding, in alphabetical order, a
definition for ``Combustion unit,'' and by revising the definition for
``Facility mailing list'' to read as follows:
Sec. 270.2 Definitions.
* * * * *
Combustion unit means any unit that meets the definition of an
incinerator, a boiler, or an industrial furnace in Sec. 260.10 of this
chapter.
* * * * *
Facility mailing list means the mailing list for a facility
maintained by EPA or the State in accordance with 40 CFR
124.10(c)(1)(ix).
* * * * *
3. Section 270.19 is amended by revising paragraphs (b) and (d) to
read as follows:
Sec. 270.19 Specific part B information requirements for incinerators.
* * * * *
(b) Submit a trial burn plan with the initial part B application
including all required determinations, in accordance with Secs. 270.62
or 270.74; or
* * * * *
(d) The Director shall approve a permit application for an
incinerator without a trial burn if he finds that:
(1) The wastes are sufficiently similar;
(2) The incinerator units are virtually identical and are located
at the same facility; and
(3) The data from other trial burns are adequate to specify (under
Sec. 264.345 of this chapter) operating conditions that will ensure
that the performance standards in Sec. 264.343 of this chapter will be
met by the incinerator.
* * * * *
4. Section 270.22 is amended by revising paragraph (a)(6) to read
as follows:
Sec. 270.22 Specific Part B information requirements for boilers and
industrial furnaces burning hazardous waste.
(a) * * *
(6) Data in lieu of a trial burn. The owner or operator may seek a
waiver from the trial burn requirements to demonstrate conformance with
Secs. 266.104 through 266.107 of this chapter and Sec. 270.66 by
providing the information required by Sec. 270.66 from previous
compliance testing of the device in conformance with Sec. 266.103 of
this chapter, or from compliance testing or trial or operational burns
of boilers or industrial furnaces with a virtually identical design at
the same facility burning similar hazardous wastes under virtually
identical conditions. If data from a virtually identical device is used
to support a trial burn waiver request, the design and operating
information required by Sec. 270.66 must be provided for both the
virtually identical device and the device to which the data are to be
applied, and a comparison of the design and operating information must
be provided. The Director shall approve a permit application without a
trial burn if he finds that the hazardous wastes are sufficiently
similar, the devices are virtually identical in design and at the same
facility, the operating conditions are virtually identical, and the
data from other compliance tests, trial burns, or operational burns are
adequate to specify (under Sec. 266.102 of this chapter) operating
conditions that will ensure conformance with Sec. 266.102(c) of this
chapter. In addition, the following information shall be submitted:
* * * * *
5. Section 270.30 is amended by adding paragraph (m) to read as
follows:
Sec. 270.30 Conditions applicable to all permits.
* * * * *
(m) Information repository. The Director may require the permittee
to establish an information repository for a permit if the Director
determines that there is significant public interest in the permitted
facility. The information repository will be governed by the provisions
in Sec. 124.33(b) through (f) of this chapter.
* * * * *
6. Section 270.42 is amended by revising paragraph (d)(1) to read
as follows:
Sec. 270.42 Permit modification at the request of the permittee.
* * * * *
(d) Other modifications. (1) In the case of modifications not
explicitly listed in Appendix I of this section, the permittee may
submit to the Agency a request for a determination by the Director on a
Class 1, 2, or 3 modification. If the permittee requests that the
modification be classified as a Class 1 or 2 modification, he or she
must provide the Agency with the necessary information to support the
requested classification.
* * * * *
7. Section 270.42, Appendix I is amended by redesignating item L.8.
as L.9, revising item L.7, and adding a new item L.8 and note at the
end of Appendix I to read as follows:
Appendix I to Sec. 270.42--Classification of Permit Modification
------------------------------------------------------------------------
Modification Class
------------------------------------------------------------------------
* * * * * * *
L. Incinerators, Boilers, and Industrial Furnaces:
* * * * * * *
7. Shakedown:
a. Modification of permit conditions applicable during
the shakedown period for determining operational
readiness after construction, with prior approval of
the Director.......................................... \1\1
b. Authorization of an additional 720 hours of waste
burning during the shakedown period for determining
operational readiness after construction, with prior
approval of the Director.............................. \1\1
8. Trial Burn:
a. Changes in the approved trial burn plan for
conducting an initial trial burn, provided the change
is minor and has received the prior approval of the
Director.............................................. \1\1
b. Changes in the approved trial burn plan for
conducting an initial trial burn, if the change is not
minor................................................. 2
c. Changes in the approved trial burn plan to conduct
additional trial burn testing under revised conditions
if the unit has not met one or more conditions of a
previous trial burn................................... 2
d. Modification of permit conditions applicable during
the post-trial burn period, with prior approval of the
Director.............................................. \1\1
e. Changes in the operating requirements set in the
permit to reflect the results of the trial burn,
provided the change is minor and has received the
prior approval of the Director........................ \1\1
* * * * * * *
------------------------------------------------------------------------
\1\Class 1 modification requiring prior Agency approval.
Note: Permittees should use the procedures in 270.42(d) if a
proposed modification is not listed in this Appendix.
8. In Sec. 270.62, paragraphs (b)(6) through (10) are redesignated
as paragraphs (b)(7) through (11), and new paragraph (b)(6) is added to
read as follows:
Sec. 270.62 Hazardous waste incinerator permits.
* * * * *
(b) * * *
(6) The Director must send a notice to all persons on the facility
mailing list as specified in 40 CFR 124.10(c)(1)(ix) and to the
appropriate units of State and local government as specified in 40 CFR
124.10(c)(1)(x) announcing the scheduled commencement and completion
dates for the trial burn.
(i) This notice must be mailed within a reasonable time period
before the scheduled trial burn.
(ii) This notice must contain:
(A) Name and telephone number of applicant's contact person;
(B) Name and telephone number of the permitting authority contact
office;
(C) Location where the approved trial burn plan and any supporting
documents can be reviewed and copied; and
(D) An expected time period for commencement and completion of the
trial burn. An additional notice is not required if the trial burn is
delayed due to circumstances beyond the control of the facility or the
permitting authority.
* * * * *
9. In Sec. 270.62, paragraph (d) is removed.
10. In Sec. 270.66, paragraphs (d) (3) through (5) are redesignated
as paragraphs (d) (4) through (6), and new paragraph (d)(3) is added to
read as follows:
Sec. 270.66 Permits for boilers and industrial furnaces burning
hazardous waste.
* * * * *
(d) * * *
(3) The Director must send a notice to all persons on the facility
mailing list as specified in 40 CFR 124.10(c)(1)(ix) and to the
appropriate units of State and local government as specified in 40 CFR
124.10(c)(1)(x) announcing the scheduled commencement and completion
dates for the trial burn.
(i) This notice must be mailed within a reasonable time period
before the trial burn.
(ii) This notice must contain:
(A) Name and telephone number of applicant's contact person;
(B) Name and telephone number of the permitting authority contact
office;
(C) Location where the approved trial burn plan and any supporting
documents can be reviewed and copied; and
(D) An expected time period for commencement and completion of the
trial burn. An additional notice is not required if the trial burn is
delayed due to circumstances beyond the control of the facility or the
permitting authority.
* * * * *
11. In Sec. 270.66, paragraph (g) is removed.
12. Section 270.74 is added to read as follows:
Sec. 270.74 Trial burn requirements for interim status combustion
units.
(a) Submission of the trial burn plan for interim status
incinerators. For the purpose of determining feasibility of compliance
with the performance standards of Sec. 264.343 and establishing
adequate operating conditions under Sec. 264.345, the applicant for a
permit for an existing hazardous waste incinerator must prepare and
submit a trial burn plan with Part B of the permit application in
accordance with Sec. 270.19(b) and 270.62(b)(2).
(1) Applicants submitting other information as specified in
270.19(c) are exempt from the requirement to conduct a trial burn if
the Director approves the permit application in accordance with the
criteria in Sec. 270.19(d).
(2) Applicants submitting information under Sec. 270.19(a) are
exempt from compliance with Secs. 264.343 and 264.345 of this chapter
and, therefore, are exempt from the requirement to conduct a trial
burn.
(b) Submission of the trial burn plan for interim status boilers
and industrial furnaces. For the purpose of determining feasibility of
compliance with the performance standards of Secs. 266.104 through
266.107 of this chapter and establishing adequate operating conditions
under Sec. 266.102 of this chapter, applicants owning or operating
existing boilers or industrial furnaces operated under the interim
status standards of Sec. 266.103 of this chapter must prepare and
submit a trial burn plan with Part B of the permit application in
accordance with Secs. 270.22(a) and 270.66(c) or submit other
information in accordance with Sec. 270.22(a)(6).
(c) At combustion facilities--approval of the trial burn plan and
conducting the trial burn. (1) The applicant must receive approval for
the trial burn plan by the Director before performing a trial burn.
(2) The Director shall review and make a determination on the trial
burn plan in accordance with Secs. 270.62(b)(3) through (b)(5) for
incinerators, or Sec. 270.66(d)(2) for boilers and industrial furnaces.
(3) The Director must send a notice to all persons on the facility
mailing list as specified in 40 CFR 124.10(c)(1)(ix) and to the
appropriate units of State and local government as specified in 40 CFR
124.10(c)(1)(x) announcing that the Director has reviewed the draft
trial burn plan and has tentatively decided to approve it.
(i) This notice must be mailed within a reasonable time period
before the trial burn.
(ii) This notice must contain:
(A) Name and telephone number of applicant's contact person;
(B) Name and telephone number of the permitting authority contact
office;
(C) Location where the draft trial burn plan and any supporting
documents can be viewed and copied; and
(D) A schedule of required activities prior to permit issuance,
including when the permitting authority is expecting to give its
approval of the plan, and the time periods during which the trial burn
would be conducted.
(4) When a trial burn plan is approved, the Director will specify a
time period prior to permit issuance during which the trial burn must
be conducted.
(5) The applicant shall perform a trial burn in accordance with the
approved trial burn plan, and must make the required determinations,
submissions, and certifications in accordance with Secs. 270.62(b)(6)
through (b)(9) for incinerators, or Secs. 270.66(d)(3) through (d)(5),
and 270.66(f) for boilers and industrial furnaces. Trial burn results
must be submitted prior to issuance of a draft permit.
(6) Upon completion of the trial burn, combustion units must comply
with the performance standards of Sec. 264.343 of this chapter (for
incinerators), or Secs. 266.104 through 266.107 of this chapter (for
BIFs), along with all other applicable interim status standards.
Compliance shall be demonstrated and determined based on the results of
the trial burn, as follows. The owner or operator may only operate the
combustion unit under conditions that passed and were demonstrated to
meet the performance standards, and only if the successful trial burn
data is sufficient to set all applicable operating conditions during
the post-trial burn period. If any results of a trial burn for a
combustion unit show non-compliance with any set of performance
standards, the owner or operator must immediately cease operating under
the condition(s) that resulted in non-compliance, and notify the
Director. In order to continue operating when results of the trial burn
show non-compliance with any performance standards under any set of
conditions, the owner or operator must submit to the Director, with the
trial burn results, a description of the conditions under which it is
operating, and a preliminary explanation of how the conditions were
determined to be sufficient to ensure that the unit functions within
the performance standards. After reviewing the trial burn data and the
preliminary demonstration submitted by the owner or operator, the
Director may further restrict operating conditions as necessary to
assure that the unit is operated within the performance standards.
(7) If the trial burn results indicate that any performance
standards in Sec. 264.343 of this chapter for incinerators, or
Secs. 266.104 through 266.107 of this chapter for boilers and
industrial furnaces, have not been met, the facility may submit a
request to conduct an additional trial burn.
(i) The request to conduct an additional trial burn must include:
(A) An explanation of the reasons for the previous trial burn
failure; and
(B) A revised trial burn plan submitted under paragraph (a) or (b)
of this section which contains substantive changes to address the
reasons for the previous trial burn failure.
(ii) The revised trial burn plan must be approved by the Director
according to the requirements of paragraphs (c)(1) through (c)(4) of
this section. The Director may approve the request to conduct an
additional trial burn only if the requirements of this section have
been satisfactorily met.
(iii) The Director must send a notice to all persons on the
facility mailing list as specified in 40 CFR 124.10(c)(1)(ix) and to
the appropriate units of State and local government as specified in 40
CFR 124.10(c)(1)(x) announcing that the Director has reviewed the draft
revised trial burn plan and has tentatively decided to approve it.
(iv) This notice must be given within a reasonable time period, and
in accordance with Sec. 270.74(c)(3)(A) through (D).
(8) If the trial burn results indicate that compliance with the
performance standards in Sec. 264.343 of this chapter for incinerators,
or Secs. 266.104 through 266.107 of this chapter for boilers and
industrial furnaces, was not achieved, and thus, operating conditions
cannot be developed under Sec. 264.345 of this chapter for
incinerators, or Sec. 266.103 of this chapter for boilers and
industrial furnaces, the Director may, pursuant to the procedures in
Part 124 of this chapter, deny the permit application for the
combustion unit.
[FR Doc. 94-13094 Filed 6-1-94; 8:45 am]
BILLING CODE 6560-50-P
