Thursday
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
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Federal Register / Vol. 59, No. 105 / Thursday, June 2, 1994 / Proposed Rules
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.
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 § 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
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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 hi 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.
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
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;
• While the Agoncy is committed to source
reduction as Its primary approach to waste
management, It believes that there will continue to
b« a tolo 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.
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,
ED. 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
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28682 Federal Register / Vol. 59, No. 105 / Thursday, June 2. 1994 / Proposed Rules
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)(l), 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)
r 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
§ 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 § 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
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28683
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 S.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 bum 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
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Federal Register / Vol. 59, No. 105 / Thursday, June 2, 1994 / Proposed Rules 28685
To avoid any potential confusion, it
should ba 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 De 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
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
braft permit. For
example, facility owners or operators
coulcf 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 § 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 per-
mit process
New Facility
Interim Status
Permit Renewal
Permit Modification ..
Post-Closure Permit
Facility
pre-appli-
cation
meeting
Yes
Yes
No
No
No
Agency
notice of
applica-
tion
Yes.
Yes.
Yes.
No.
No.
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
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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
§ 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 § 124.30 could be
implemented.
a.l. 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.
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n.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
those 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 pie-application
meeting. The requirements for the pre-
applicalion 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 § 270.51 or
applying for a permit modification
under § 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 § 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 § 270.42
modification procedures). EPA would
like to request comments on whether
these current opportunities are indeed
sufficient, or whether the pre-
addition of a pre-application meeting
requirement is necessary for requested
permit modifications. A facility
apply for a permit modification under
§ 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 § 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
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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
§ 124.31(cKl) 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
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
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28689
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 pro-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 pro-application meeting should
apply to afl 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.
6.1. Providing notice of the pre-
appUcation 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 § 124.31(c)(l), 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 § 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
§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
§ 124.10(c)(2) (including requirements
for the facility mailing list).
In some states (especially hi the
western part of the United States), the
geographic areas covered by a host
county or adjacent counties can be very
large, hi 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
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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 § 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 § 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 fist 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 responsibih'ty 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
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28691
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
tho 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
spedal 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 § 124.31(c), identify all
sectors of the community that the
facility will potentially affect, as
required by § 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 § 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 §§ 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 title 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
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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 §§ 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 § 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 tuning 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 § 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
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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.
Thesecond 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
§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 § 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 §270.42(d) of the
modification procedures and addresses
those modification requests that are not
classified in the Appendix I table of
§ 270.42. Today's proposal clarifies how
facilities may implement and utilize the
provision for other modifications in
§ 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
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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 § 270.42).
3. Technical Corrections
In today's rule, EPA is proposing
certain technical corrections in
§§ 270.42(a)(l)(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 § 124.10(c)(l)(x), in order to correct a
typographical error. At present, these
sections incorrectly reference
§ 124.10(c)(ix), which is the reference
for notifying the facility mailing list.
EPA is also proposing to make a
technical correction to § 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
3 7916) 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 § 270.42
would be impossible. Therefore, the
Agency provided a procedure in
§ 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
§ 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 § 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 § 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
§ 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 § 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 § 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 § 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
§ 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 § 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
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28695
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 bum
plan contains the parameters for
conducting a trial burn. The trial burn
plan is part of the original permit for
now 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 bum 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
tho 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 bum.
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 § 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 maybe
unclear in certain situations. In order to
avoid further confusion or potential
delays in determining these
classifications,
to reorganize and clarify Section L.7. of
Appendix I.
Currently, Appendix I of § 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 § 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.S.a. and L.S.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.S.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
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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 bum. The facility must, then,
submit a new trial burn plan. EPA is
proposing to revise Appendix I to clarify
this situation. Item L.S.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.S.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 bum 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.S.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 § 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 bums. 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 § 270.74(c)(7) for the
analogous procedures for interim status
combustion facilities.)
Furthermore, EPA is proposing to add
item L.S.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 I 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.S.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 § 270.74, which will contain
permitting procedural requirements for
interim status combustion units. This
proposed new section is a consolidation
of §§ 270.62(d) and 270.66(g), which
currently contain permitting procedural
requirements for interim status
incinerators and BIFs, respectively.
Proposed § 270.74 is virtually identical
to §§ 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 § 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.
BILLING CODE 6560-60-P
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28697
FIGURE 2
Proposed Public Involvement
Process for the Trial Burn
Period - Interim Status and
Permitted Facilities
Facility submits permit
application and
trial bum plan
Permitting agency
gives notice of permit
application to the
mailing list
Interim Status Facility
.ejected
Tentatively
Approved ^
Facility revises
trial bum plan
I
Facility submits
request for an
additional trial
bum
Facility
investigates
reasons for failure
^Facility burns only at*
I operating conditions
I that pass and meet
^performance standards
V. in the trial bum ^
Fail
Permitting agency rejects
revised trial bum plan and
request for an additional
trial bum. Moves to deny
the permit application
Notes:
Darkened lines represent
proposed new requirements.
C J denotes action by facility
Permitting agency
reviews draft trial
bum plan separately
from permit application
Permitting agency gives
public notice on
tentative approval of
the reviewed trial
burn plan and schedule
If trial burn plan is
approved, facility
conducts
trial bum
Facility presents final
trial bum results
to permitting agency
Permitting agency
reviews the final
trial burn results
WPass
Facility operates under
performance standards
while application is
revised to reflect the trial
bum results
cu
New Permitted Facility
See Figure 1 for permit
approval or denial process
(If agency approves permil,\
I including the trial bum plan, I
I then new permitted facility I
>^ undergoes construction J
(if a facility needs to change its\
I trial bum plan, it will request I
a permit modification. 1
Permitting agency
gives public notice of
the trial bum schedule
Facility conducts
trial burn
Facility presents final
trial bum results
to permitting agency
1
Approved
Permitting agency
reviews revised trial
burn plan and
gives notice of plan
, and schedule
1
Tentatively Approved
^Facility requests an*\
additional trial bum
and revises trial bum
plan (Class 2
^ modification) J
Rejected
Permitting agency
reviews the final
trial burn results
Pass) f
I Facility investigates 1
I reasons for failure I
Fail
Facility requests a permit
modification to change, the
permit to reflect the
trial burn results
Permitting agency rejects
request for additional trial
bum and moves to
terminate the permit
denotes action by permitting agency
BILUNO CODE SS80-SO-C
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Federal Register / Vol. 59, No. 105 / Thursday, June 2, 1994 / Proposed Rules
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 § 264.343 (for
incinerators) or §§ 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 § 270.62(b) for incinerators, and
§ 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 §§ 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
§§ 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 §§ 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
§§270.62(d) and 270.66(g), to proposed
§ 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 § 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,
§ 270.19 for incinerators and § 270.22
for BIFs, to reflect actual Agency
practice. As currently written, this
waiver, which the permitting agency
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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 wpuld not
be located at the same facility.
o. Submittal of trial bum plans for
interim status facilities. Today's
proposed rule would require interim
status hazardous waste incinerators
(proposed § 270.74(a)(l)) and BIFs
(proposed § 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
bum plan submittal (§§ 270.62(d) and
270.66(g)).
b. Approval of trial bum plans for
interim status facilities. In
§ 270.74(c)(l), 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
§ 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 bums
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 bum
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 bums. 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.l. Permitted combustion facilities.
EPA is proposing, in § 270.62(b)(6) for
incinerators and § 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 bum 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 bum 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 §§ 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
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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 § 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 bum 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 bum plan at both the application
and draft permit phases before a trial
burn occurs.
The notice must contain the
information specified in proposed
§ 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 § 270.74(c)(4)).
Including this information in the notice
enables title 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 § 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.
a. 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 § 264.343,
for incinerators, or §§ 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 Bum 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 (DUE) 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
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28701
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 bum between the medium and the
high temperature during the post-trial
bum 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 bum
results. As currently required in
§§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
bum 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
§270.74(c)(5).
EPA is proposing, in § 270.74(c)(6), to
give the Director the discretion to
further restrict operating conditions
during the post-trial bum 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 bums. The existing
permit modification procedures
(§ 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 § 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 alkiwed 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 bum
unless the facility has demonstrated
satisfactorily that the changes proposed
hi the revised trial bum 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 § 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 § 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
die 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,decisiori'to approve a J~
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28702 Federal Register / Vol. 59, No. 105 / Thursday, June 2, 1994 / Proposed Rules
revised trial burn plan is not subject to
administrative appeal. . .
/. Denial of permit application after
the trial bum. 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 § 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
§ 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 § 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 § 124.30 could be
implemented.
2. Environmental Justice
EPA is soliciting comments, in section
4.a.l: 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.l.
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 S.b.l:
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 bum
stage. EPA is also requesting comments,
in section S.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.
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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 §§ 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
§ 270.74, and revisions to §§ 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 § 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
§ 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 § 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
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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, § 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 die 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). hi 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
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28705
514,000. 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
5110,000 to 5550,000 per facility.
Submitting "data in lieu of a trial burn
is assumed to cost approximately the
same as preparing a trial burn plan, or
510,000 to 550,000. The net incremental
cost of denying the "data in lieu of
option would be 5100,000 to 5500,000
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 50 to 5520,000.
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 bum
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
tho main effect of changing the "data in
JGuId«nco on Setting Permit Conditions and
Reporting Trill Bum Results. US EPA January 1989.
lieu of provision will be to clarify
already existing practices, and to reflect
more realistic situations and how EPA
currently interprets this provision.
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
55,100), or revise the trial burn plan and
rerun the trial burn (estimated cost
5110,000 to 5550,000).
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 bum. 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 5340,000.
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
bum 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 § 264.342 (for incinerators) or
§ 266.104,through § 266.107 (for BIFs)
upon completion of trial bum 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*
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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
§ 270.62(d) and § 270.66(g), which
address interim status requirements, to
proposed § 270.74, where the majority
of the interim status provisions are
contained. The wording is essentially
the same, clarifying when the facility
must submit die trial bum 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 die
regulation easier to understand.
EPA is also stating in § 270.74(c)(l)
that interim status combustion facilities
seeking permits must receive approval
of the trial burn plan by die 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 (§ 270.19 for incinerators
and § 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 bum 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
diat 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
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 nave 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 ibis low for
a RCRA hazardous waste facility. Total
sales for "small entity" BIFs range from
$1.3 million to $87.3 million for die
individual facilities and $19.1 million to
$513 million for the parent companies.6
'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.
413 CFR part 121.
'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.
6 Ibid.
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28707
Costs of production would presumably
bo 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.
2. Small Entity Impacts of Revised
Requirements for "Data in Lieu of a
Trial Bum
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
5500,000 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
S1.3 million to S87.3 million for the
individual facilities and $19.1 million to
S513 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.
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 bum 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) etseq.;
Clean Water Act, 33 U.S.C. 1251 et seq.; and
Clean Air Act, 42 U.S.C. 7401 ef seq.
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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
§ 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.
§ 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),
die 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)(l) 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 § 270.42 of this chapter, permit
renewals under § 270.51 of this chapter,
or apph'cations that are submitted for
the sole purpose of conducting post-
closure activities at a facility.
§ 124.32 Public notice requirements at
application stage.
(a) Notification at application
submittal. (1) The Director shall provide
public notice as cited in
§ 124.10(c)(l)(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 § 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 die
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 die
notice; and
(vi) The date the application was
submitted.
(b) Concurrent with the notice
required under § 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 §§ 124.33 or
270.30(1)(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 § 270.42 of this chapter, and/or
applications that are submitted for the
sole purpose of conducting post-closure
activities at a facility.
§ 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 § 270.30(1)(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
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28709
of the plans, activities, and operations of
any hazardous waste facility that is
operating or seeking a permit
(c) The information repository shall
ho 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
bo 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:
§270.2 Definitions.
*****
Combustion unit means any unit that
meets the definition of an incinerator, a
boiler, or an industrial furnace in
§ 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
3. Section 270.19 is amended by
revising paragraphs (b) and (d) to read
as follows:
§ 270.1 9 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 §§ 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 § 264.345 of
this chapter) operating conditions that
will ensure that the performance
standards in § 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:
§ 270.22 Specific Part B Information
requirements for boilers and Industrial
furnaces burning hazardous waste.
(a) * * *
(6) Data in lieu of a trial bum. The
owner or operator may seek a waiver
from the trial bum requirements to
demonstrate conformance with
§§266.104 through 266.107 of this
chapter and § 270.66 by providing the
information required by § 270.66 from
previous compliance testing of the
device in conformance with § 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 § 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 bums, or
operational burns are adequate to
specify (under § 266.102 of this chapter)
operating conditions that will ensure
conformance with § 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:
§ 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 § 124.33(b) through (f) of
this chapter.
*****
6. Section 270.42 is amended by
revising paragraph (d)(l) to read as
follows:
§ 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 § 270.42—Classification
of Permit Modification
Modification
Class
L. Incinerators, Boilers, and Industrial Furnaces:
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Modification
Class
7. Shakedown:
a. Modification of permit conditions applicable during the shakedown period for determining operational readiness after con-
struction, with prior approval of the Director 11
b. Authorization of an additional 720 hours of waste burning during the shakedown period for determining operational readi-
ness after construction, with prior approval of the Director 11
8. Trial Bum:
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 11
b. Changes in the approved trial bum plan for conducting an initial trial burn, if the change is not minor 2
c. Changes in the approved trial bum plan to conduct additional trial bum 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 bum period, with prior approval of the Director 11
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 11
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 § 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:
§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)(l)(ix) and
to the appropriate units of State and
local government as specified in 40 CFR
124.10(c)(l)(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 tie 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 § 270.62, paragraph (d) is
removed.
10. In § 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:
§ 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)(l)(ix) and
to the appropriate units of State and
local government as specified in 40 CFR
124.10(c)(l)(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 § 270.66, paragraph (g) is
removed.
12. Section 270.74 is added to read as
follows:
§ 270.74 Trial bum 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 § 264.343 and establishing
adequate operating conditions under
§ 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
§ 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 § 270.19(d).
(2) Applicants submitting information
under § 270.19(a) are exempt from
compliance with §§ 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
§§ 266.104 through 266.107 of this
chapter and establishing adequate
operating conditions under § 266.102 of
this chapter, applicants owning or
operating existing boilers or industrial
furnaces operated under the interim
status standards of § 266.103 of this
chapter must prepare and submit a trial
burn plan with Part B of the permit
application in accordance with
§§ 270.22(a) and 270.66(c) or submit
other information in accordance with
§ 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 §§ 270.62(b)(3)
through (b)(5) for incinerators, or
§ 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)(l)(ix) and
to the appropriate units of State and
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28711
local government as specified in 40 CFR
124.10(c)(l)(x) announcing that the
Director has reviewed the draft trial
bum 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;
(Cj 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 bum must be
conducted.
(5) The applicant shall perform a trial
burn in accordance with the approved
trial bum plan, and must make the
required determinations, submissions,
and certifications in accordance with
f §270.62(b)(6) through (b)(9) for
incinerators, or §§ 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 § 264.343 of
this chapter (for incinerators), or
§§ 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
§ 264.343 of this chapter for
incinerators, or §§ 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 bum.
(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)(l)
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)(l)(ix)
and to the appropriate units of State and
local government as specified in 40 CFR
124.10(c)(l)(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 § 270.74(c)(3)(A)
through (D).
(8) If the trial burn results indicate
that compliance with the performance
standards in § 264.343 of this chapter
for incinerators, or §§ 266.104 through
266.107 of this chapter for boilers and
industrial furnaces, was not achieved,
and thus, operating conditions cannot
be developed under § 264.345 of this
chapter for incinerators, or § 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 6560-60-P
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