XVI. How Did EPA Determine the Required Records and Reports for the Proposed Rule? We propose notification, reporting, and recordkeeping requirements for solid fuel fired boilers, liquid fuel fired boilers and hydrochloric acid production furnaces that are identical to those already in place at § § 63.1210 and 63.1211 and applicable to incinerators, cement kilns, and lightweight aggregate kilns. Please note, however, that we are proposing a new requirement applicable to all hazardous waste combustors that would require you to submit a Notification of Intent to Comply and a Compliance Progress Report. A. Summary of Requirements Currently Applicable to Incinerators, Cement Kilns, and Lightweight Aggregate Kilns and that Would Be Applicable to Boilers and Hydrochloric Acid Production Furnaces Owners and operators of solid fuel fired boilers, liquid fuel fired boilers, and hydrochloric acid production furnaces would be required to submit the following notifications to the Administrator in addition to those required by the NESHAP General Provisions, subpart A of 40 CFR part 63: ( 1) notification of changes in design, operation, or maintenance ( § 63.1206( b)( 5)( i)); ( 2) notification of performance test and continuous monitoring system evaluation, including the performance test plan and continuous monitoring system performance evaluation plan ( § § 63.1207( e)); and ( 3) notification of compliance, including results of performance tests and continuous monitoring system evaluations ( § § 63.1210( b), 63.1207( j); 63.1207( k), and 63.1207( l)). You would also be required to submit notifications to the Administrator if you request or elect to comply with various alternative requirements. Those notifications are listed at § 63.1210( a)( 2). Owners and operators of solid fuel fired boilers, liquid fuel fired boilers, and hydrochloric acid production furnaces would be required to submit the following reports to the Administrator in addition to those required by the NESHAP General Provisions, Subpart A of 40 CFR Part 63: ( 1) startup, shutdown, and malfunction plan ( if electing to comply with § 63.1206( c)( 2)( ii)( B)); ( 2) excessive exceedances report ( § 63.1206( c)( 3)( vi)); and ( 3) emergency safety vent opening reports ( § 63.1206( c)( 4)( iv)). Owners and operators of solid fuel fired boilers, liquid fuel fired boilers, and hydrochloric acid production furnaces would be required to keep records documenting compliance with the requirements of Subpart EEE. Recordkeeping requirements are prescribed in § 63.1211( b), and include requirements under the NESHAP General Provisions, subpart A of 40 CFR Part 63. Redline strikeout highlighting changes made during OMB review 272 B. Why Is EPA Proposing Notification of Intent to Comply and Compliance Progress Report Requirements? 1. What Is the Notification of Intent to Comply? In the June 1998 " fast track" rule ( 63 FR 33782), we required that sources subject to the Phase I Subpart EEE standards complete a Notification of Intent to Comply ( NIC) no later than October 2, 2000 and conduct a NIC public meeting no later than July 31, 2000. The NIC and its associated public meeting served four primary purposes during the early implementation and compliance phases of the Phase I Subpart EEE requirements which we believe were of benefit to regulators, sources and the public alike. First, the NIC served as a compliance planning tool for Phase I sources because it required you to develop an outline of the key activities that needed to be completed in order to meet the Subpart EEE standards by the compliance date. It also required that you include the estimated dates for each of those key activities. Because the NIC was required to be completed within the first year of implementing the Phase I requirements, it also may have had the added and important benefit of encouraging sources to reduce their HAP emissions early. By focusing a source's attention on the means by which it would achieve compliance well before the actual compliance date, the NIC may have prompted some sources to upgrade their combustion design and operations earlier, thereby yielding an early reduction in HAP emissions. The NIC also may have prompted earlier waste minimization efforts for the same reason. Second, the NIC also served as a planning tool for regulatory authorities. Based on the information provided in the NIC, regulators could determine what activities were likely to occur and when over the course of the three year compliance period. For example, they could estimate how many sources needed to modify their combustion units and existing RCRA permits prior to performance testing, how many sources intended to stop burning hazardous waste, and how many sources intended to apply for the comparable fuels exclusion. Using this information, regulators could plan how to most efficiently allocate their resources in response to the forthcoming compliance activities of the sources. Third, the NIC promoted early public involvement by fostering an open dialogue between sources and the public regarding compliance strategies for meeting the Phase I Subpart EEE standards. Experience has shown that members of the public are interested in being kept adequately informed of and having input into the compliance and permitting activities of hazardous waste combustion facilities. The NIC and its associated public meeting provided an opportunity for the public to share their views, thereby allowing the source to develop a final compliance strategy that met the goals of both the source and the surrounding community. Fourth, the public involvement aspect of the NIC also offset any public participation opportunities that may have been " lost" if sources chose to take advantage of the RCRA streamlined permit modification process. Many Phase I sources had to modify their combustion systems' design and/ or operations in order to comply with the MACT standards. Sources that were already operating under RCRA combustion permits needed to first modify those permits before initiating any MACT compliance related changes. Normally, a Class 2 or 3 modification would be necessary to incorporate into a RCRA permit the types of changes we expected would be necessary for sources complying with Phase I standards. Given that Class 2 and 3 Redline strikeout highlighting changes made during OMB review 48 Under the Early Cessation provision, we required sources that did not intend to comply with the Phase I standards to stop burning hazardous waste within two years of the effective date of the Phase I rule. Under the Compliance Progress Report provision, we required sources to report to their regulatory agencies the status of their progress toward compliance with the standards.

273 modifications could have consumed a year or more of a source's three year Subpart EEE compliance period, we developed a streamlined permit modification process solely for the purpose of implementing Subpart EEE upgrades. Under the streamlined process, you could request a Class 1 modification with prior Agency approval to address and incorporate any necessary MACT upgrades into your RCRA permit. To be eligible to use the streamlined permit modification, however, you first must have complied with the NIC requirements, including those related to public involvement. 2. What Happened to the NIC Provisions? We promulgated the NIC on June 19, 1998 ( 63 FR 33782) along with several other requirements related to the Phase I NESHAP. On May 14, 2001, we removed the NIC and two other provisions from the federal regulations in response to a court mandate to vacate. See 66 FR 24270. In Chemical Manufacturers Ass'n v EPA, 217 F. 3d 861 ( D. C. Cir. 2000), the court vacated three provisions of the Phase I rule: the Early Cessation requirement, the NIC and the Compliance Progress Report. 48 While the panel majority held that we possessed the legal authority to impose an Early Cessation requirement, the panel also held that we had claimed the authority to do so without making a showing of a health and environmental benefit ( such as reduced HAP emissions or less hazardous waste generated) and that this was an impermissible statutory interpretation. See 217 F. 3d at 865 67. The panel majority further held that because it could not determine whether we would have promulgated the NIC and Progress Report requirements absent the Early Cessation provision, both the NIC and Progress Report requirements should be vacated as well. However, the panel did agree to issue a stay of its mandate for a long enough period of time to allow sources to submit their NICs so that they would be eligible for the RCRA streamlined permit modification. As discussed above, the NIC was intended to serve as a compliance planning and communication tool. We did not intend the NIC to serve as the basis for requiring a source to cease burning hazardous waste. However, as a planning and communication tool we expected sources that did not intend to comply with the standards to state this in their NIC and include a schedule of activities that the source would need to complete in order to stop burning hazardous waste within the two year Early Cessation time frame. We believe that the court recognized this interpretation as our original intent in their agreement to stay their issuance of the mandate until after sources had submitted their final NICs on October 1, 2000. By allowing the Phase I sources to complete the NIC process, the court provided sources with the opportunity to effectively plan their compliance strategies and take advantage of the RCRA streamlined permit modification. It also provided the public with the opportunity for a level of participation that they may not have had otherwise. Redline strikeout highlighting changes made during OMB review 49 If a major title V source has a remaining permit term of three or more years on the date the Replacement standards are promulgated, the title V permitting authority must complete a reopening of the source's title V permit to incorporate the requirements of these standards not later than 18 months after promulgation. Major sources having remaining permit terms of less than three years on the date the Replacement standards are promulgated may wait until permit renewal to incorporate the new standards. Area sources with title V permits likewise may wait until permit renewal. Permitting authorities must follow the same public notice procedures for title V permit reopenings and renewals as is required for initial permit issuance under title V, including providing public notice of the action, providing a public comment period of at least 30 days, and providing an opportunity for a public hearing. See 40 CFR § § 70.7 and 71.7.

274 3. Why Is EPA Proposing to Re Institute the NIC for Phase I Sources? As stated above, we believe that the NIC was a valuable planning and communication tool for sources, regulators, and the public during the early implementation and compliance stages of the 1999 Phase I Subpart EEE requirements. The NIC also provided an additional benefit to sources upgrading their combustion systems by compensating for any " lost" public participation opportunities when using the RCRA streamlined permit modification process. As discussed in Part One, I. B and D, we are proposing in today's notice to supplant the existing Phase I standards with final Replacement standards. We anticipate that a significant number of Phase I sources may need to conduct additional upgrades, or in some cases upgrade for the first time, to comply with the Replacements standards. See § § 63.1203A1219, 63.1204A1220, and 63.1205A1221. Re instituting the NIC for these sources could provide the same planning and communication benefits during the initial Replacement standards compliance period that it did for the original Phase I standards. Specifically, we expect that by focusing attention early on the necessary tasks and strategies for achieving compliance, Phase I sources will be in a better position to meet the Replacement standards by the compliance date. Regulators will gain insight from the information provided in the NIC to effectively allocate their resources to accommodate future regulatory activities. And, the NIC will provide the public with the opportunity and mechanism to keep abreast of any significant changes an existing source might need to make as a result of the Replacement standards. We do not believe that the same planning and communication opportunities gained from completing the NIC process are available from other portions of the air regulatory program. For example, although the public will be notified of a source's obligation to comply with the Replacement standards during the reopening or renewal of the source's title V, this notification, in most cases, will not occur as early in the three year Subpart EEE compliance period, nor is it likely to include the specific information regarding the source's compliance strategy. 49 In addition, while we believe that there will be fewer Phase I sources in the position of having RCRA combustion permit conditions after demonstrating compliance with the Interim standards, for those that do and wish to use the streamlined permit modification process to allow any necessary Replacement standards upgrades, a second NIC would provide the same public Redline strikeout highlighting changes made during OMB review 50 Once a source conducts its CPT and submits an Notification of compliance documenting compliance with the Subpart EEE standards, the source may request that its RCRA permit be modified to remove any duplicative limits or conditions. Only those risk based provisions that are more stringent than the MACT requirements as specified in the Notification of compliance or that address other emission hazards will remain in the RCRA permit. We expect that many sources will document compliance with the Phase I Interim standards between 2003 and 2004 and will request the removal of any duplicative, less stringent provisions from their RCRA permits shortly thereafter.

275 participation benefits as did the first NIC. 50 40 CFR 270.42( j) currently allows a source to use the RCRA streamlined modification process provided that the source first complied with the NIC requirements that were in place prior to October 11, 2000. Since many sources complied with those NIC requirements in 1999 and 2000, the existing regulatory language would allow those same sources to further modify their RCRA permits for Replacement standards upgrades. The regulatory language does not make any distinction regarding when the upgrades are to take place in relation to when the NIC requirements were to have been fulfilled. We do not believe that it is appropriate for a source to rely on previous informational and public participation activities carried out to comply with the earlier NIC requirements and emission standards to address upgrades occurring years later in response to a different set of standards any more than it would be appropriate to allow the public participation activities of a previous RCRA modification to suffice for a later modification. By requiring sources that choose to use the RCRA streamlined permit modification process for Replacement standards upgrades to first complete a NIC, including its associated public meeting, that specifically addresses those Replacement standards upgrades, the community will be kept better informed of additional changes to the combustion system and the impact on the RCRA permit. 4. Why Is EPA Proposing to Require the NIC for Phase II Sources? We believe that the NIC would provide the same benefits with respect to communication and compliance strategy planning for the Phase II sources that it has for Phase I sources. In addition, without completing the NIC process, Phase II sources will not be eligible to take advantage of the RCRA streamlined permit modification when upgrading their combustion systems. We are proposing that Phase II sources comply with the same NIC requirements as their Phase I counterparts. 5. How Will the NIC Process Work? We are proposing to apply a similar NIC process to that which we promulgated in the June 19, 1998 " fast track" rule ( 63 FR 33782). The following is a general description of that process. Within nine months of the promulgation of the final Phase I Replacement standards and Phase II standards, you would develop and make publically available a draft NIC. The draft NIC would contain general information such as whether you are a major or an area source and what waste minimization, emission control techniques, and emission monitoring techniques you might be considering. At the same time, you would also provide a notice to the public of at least one informal NIC public meeting. Within ten months, you would hold this public meeting to discuss Redline strikeout highlighting changes made during OMB review 276 the activities you described in the draft NIC for achieving compliance with the Subpart EEE standards. The meeting provides an opportunity for a mutual understanding between you and the public regarding compliance options, including consideration of both technical ( e. g., equipment changes to upgrade air pollution control devices) and operational ( e. g., process changes to minimize waste generation) alternatives. We expect the exchange between you and the community at the meeting to be similar to that which would occur at RCRA pre application meetings. That is, we intend for the meeting to provide an open, flexible and informal occasion for you and the public to discuss various aspects of your compliance strategy, provide an opportunity for sharing ideas and provide an opportunity for building a framework for a solid and positive working relationship. Lastly, you would submit a final NIC to your regulatory authority that would include the information provided in the draft NIC ( revised as necessary after the public meeting) as well as a summary of the public meeting. This final NIC would be submitted to your regulatory authority within one year of the promulgation of the final Phase I Replacement standards and Phase II standards. In summary, we believe that the NIC would provide important planning and communication opportunities for both Phase I and Phase II sources. It also would allow all Phase I, as needed, and Phase II sources to take advantage of the RCRA streamlined permit modification procedure. Thus, we are proposing NIC requirements for both Phase I and Phase II sources. 6. What Is the Compliance Progress Report? In addition to the NIC, we also promulgated Compliance Progress Report requirements in the 1998 " fast track" rule. See 63 FR 33782. The purpose of the Progress Report was to help regulatory agencies determine if sources were making reasonable headway in their efforts to come into compliance. The Progress Report was required to be submitted at the midpoint of the threeyear compliance period and contain information that essentially built on the information you previously provided in the NIC. For example, if you indicated in the NIC that you needed to make specific physical modifications to your combustion system in order to comply with the standards, you would be expected to describe your progress in making those modifications in your Compliance Progress Report. Although the Progress Report was primarily intended as a tool for the regulatory agencies, we believe it also may have been beneficial to sources as well. For example, the Progress Report could have been used by sources as a mechanism to review and make any necessary changes to their original strategy for achieving compliance. As discussed in the previous section, the Court vacated the early cessation, NIC and Compliance Progress Report provisions of the Phase I rule in Chemical Manufacturers Ass'n v EPA, 217 F. 3d 861 ( D. C. Cir. 2000). Although the Court's primary focus was the early cessation provision, it also vacated the Progress Report requirements because it could not determine whether we would have promulgated those requirements absent the early cessation provision. 7. Why Is EPA Requesting Comment on Requiring the Compliance Progress Report for Phase I and Phase II Sources? We believe that the Progress Report would be a useful tool for both regulators and sources in measuring progress toward achieving compliance with the Subpart EEE standards and Redline strikeout highlighting changes made during OMB review 51 For example, if you reported in your NIC that you intended to upgrade your existing unit, but later determined that it was more appropriate to replace the unit with a new unit, we would expect you to inform your regulatory agency of this change in your compliance plan in your Compliance Progress Report.

277 determining if any revisions to a source's compliance strategy are necessary. Unlike the NIC, however, we do not have practical experience with the application of the Compliance Progress Report, because the Court vacated its requirements prior to their implementation. As a result, we are requesting comment on whether or not the Compliance Progress Report should be required for Phase I or Phase II sources. 8. How Would the Compliance Progress Report Requirement Work? The Compliance Progress Report requirements would be similar to those promulgated for Phase I sources in the June 19, 1998 " fast track" rule ( 63 FR 33782). Within two years of the promulgation of the final standards, you would develop and submit to your regulatory authority a Compliance Progress Report. The Report would include information which demonstrates your progress toward compliance. This could include, for example, completed engineering designs for any physical modifications to the combustion unit that are needed to comply with the standards; copies of construction applications; and binding contractual commitments to purchase, fabricate, and install any necessary equipment, devices, and ancillary structures. In addition, you would be expected to include a detailed schedule that lists the dates for all remaining key activities and projects that will bring you into compliance with the standards. For example, you would include bid and award dates for construction contracts, milestones for groundbreaking, and dates for the approval of permits and licenses. We would also expect you to include in your report any updates or changes to the information you previously provided in your NIC, including if you have changed your compliance plan based on engineering studies or evaluations that you have conducted since your NIC submittal. 51 Sources that intend to cease burning hazardous waste prior to or on the compliance date would still be expected to submit a report describing key activities and projected dates for initiating RCRA closure and discontinuing hazardous waste activities at the combustion unit.

XVII. What Are the Title V and RCRA Permitting Requirements for Phase I and Phase II Sources? In today's notice of proposed rulemaking, we are maintaining the same general approach we took in the 1999 rule with respect to title V and RCRA permitting requirements and the Phase I sources. We feel that this approach, to place the MACT air emissions and related operating requirements in the title V permit and to continue to require RCRA permits for all other aspects of the combustion unit and the facility that are governed by RCRA, is still the most appropriate method to meet our obligations under both statutes. In 1999, our goal in developing a permitting scheme to accommodate both statutes with respect to air emission limitations and standards, was to avoid duplication to the extent practicable and to streamline requirements. We remain committed to that goal, as we revise and refine the permitting approach we finalized in 1999. Redline strikeout highlighting changes made during OMB review 52 There is no change to our decision to subject Phase I area sources to the same MACT standards and title V permitting requirements as the major sources. For Phase II sources, area sources are required to meet the same MACT standards as major sources, but only for: dioxin/ furan, mercury, carbon monoxide/ hydrocarbons, and destruction and removal efficiency. See Part Two, Section I. A. for more information on regulation of area sources. Therefore, Phase II area sources will be required to obtain a title V permit only for those MACT standards as discussed later in Paragraph C. 4. of this section.

278 A. What Is the General Approach to Permitting Hazardous Waste Combustion Sources? In the September 1999 rule, we finalized a permitting approach that places the MACT air emissions and related operating requirements in the title V permit and retains all other RCRA related requirements ( e. g., corrective action, general facility standards, other combustor specific concerns such as material handling, risk based emission limits and operating requirements, and other hazardous waste management units) in the RCRA permit. See 64 FR 52828, 52833 52834 ( September 30, 2000). Under this approach, sources comply with their RCRA emission limits and operating requirements until they demonstrate compliance with the MACT standards by conducting a comprehensive performance test and submitting a Notification of Compliance ( NOC) to the Administrator ( or authorized State) that documents compliance. 52 Upon documenting compliance through the NOC, sources may begin the transition from RCRA permitting to title V permitting. We believe that this approach still makes the most sense in terms of providing flexibility and minimizing duplication between the two permitting programs, while ensuring that there is no break in regulatory coverage. It is also appropriate given where sources will be in the transition process of complying with the MACT Interim Standards upon promulgation of the Phase I Replacement standards and the Phase II standards. The majority of Phase I sources will have initiated a significant modification of their title V permits to include the operating requirements of their NOC and a modification of their RCRA permits to remove duplicative conditions. By this time, permitting authorities and sources are familiar with the current permitting approach and have worked through many issues to make compliance with the Interim Standards and the ensuing transition successful. We feel that permitting authorities and sources would prefer to draw upon their experiences and utilize the expertise they have developed, rather than exploring ways to implement a new permitting scheme. Therefore, we are retaining the same general approach to permitting for Phase I sources and are proposing to apply this same general approach to Phase II sources in today's Notice of proposed rulemaking: to place the MACT emission standards only in the CAA regulation at 40 CFR part 63 Subpart EEE, and rely on implementation through the air program and operating permit programs developed under title V. 4. What Is the Authority for the Proposals Discussed In this Section? EPA is issuing these proposals to modify RCRA permits under the authority of sections 1006( b), 2002, 3004, 3005 and 7004( b) of RCRA. With regard to the regulatory framework that would result from today's proposal, we are proposing to eliminate the existing RCRA stack emissions national standards for hazardous air pollutants for hazardous waste combustors. That is, Redline strikeout highlighting changes made during OMB review 279 after submittal of the NOC established by today's rule and, where applicable, RCRA permit modifications at individual facilities, RCRA national stack emission standards will no longer apply to these hazardous waste combustors. We originally issued emission standards under the authority of section 3004( a) and ( q) of RCRA, which calls for EPA to promulgate standards `` as may be necessary to protect human health and the environment.'' We believe that the proposed MACT standards are generally protective of human health and the environment, and that separate RCRA emission standards are not needed to protect human health and the environment. Refer to Part Four, Section IX. How Does the Proposed Rule Meet the RCRA Protectiveness Mandate? for a discussion on this topic. In addition, RCRA section 1006( b) directs EPA to integrate the provisions of RCRA for purposes of administration and enforcement and to avoid duplication, to the maximum extent practicable, with the appropriate provisions of the Clean Air Act ( and other federal statutes). This integration must be done in a way that is consistent with the goals and policies of these statutes. Therefore, section 1006( b) provides further authority for EPA to eliminate the existing RCRA stack emissions standards to avoid duplication with the new MACT standards. We are not proposing, however, that RCRA permit conditions to control emissions from these sources will never be necessary, only that the national RCRA standards appear to be unnecessary. Under the authority of RCRA's `` omnibus'' clause section 3005( c)( 3); see 40 CFR 270.32( b)( 2)), RCRA permit writers may impose additional terms and conditions on a sitespecific basis as may be necessary to protect human health and the environment. Thus, if MACT standards are not protective of human health and the environment in an individual instance, RCRA permit writers will establish permit limits that are protective. In RCRA, Congress gave EPA broad authority to provide for public participation in the RCRA permitting process. Section 7004( b) of RCRA requires EPA to provide for, encourage, and assist public participation in the development, revision, implementation, and enforcement of any regulation, guideline, information, or program under the Act. 2. Is EPA Proposing a Different Permitting Approach for New Sources? As discussed above, we are maintaining the same general permitting approach as before. However, we are proposing to eliminate the unintended result of the previous regulatory construct, which caused new sources to initially be subject to the RCRA air emission and operating requirements. In particular, we want to specify that any hazardous waste burning incinerators, cement kilns, lightweight aggregate kilns, boilers, and hydrochloric acid production furnaces newly entering the RCRA permitting process ( e. g., sources that are seeking an initial RCRA permit or permit modification to include a new hazardous waste combustion unit) after promulgation of the Phase I Replacement standards and Phase II standards are not subject to certain specified RCRA permit requirements or performance standards. The approach we are proposing today is similar to the one we proposed in the July 3, 2001 proposed amendment rule ( see 66 FR 35146), but was not finalized. The amendment was not finalized due to several unresolved issues and thus, it was agreed ( during litigation settlement discussions), that we would revisit and address the issues in the Phase I Replacement standards and Phase II standards rulemaking. a. Why Is EPA Proposing a Different Permitting Approach for New Sources? In the Redline strikeout highlighting changes made during OMB review 280 September 1999 rule, we had amended language in 40 CFR § § 264.340, 265.340, 266.100, 270.19, 270.22, 270.62, and 270.66 to accommodate the permit transition from RCRA to the CAA. To summarize, the amended language in these sections says that once a source demonstrates compliance with the standards in 40 CFR part 63 subpart EEE, the requirements in specified part 264, 265, 266, and part 270 sections would no longer apply. However, the amended language neglected to specifically address if, how, or when new sources would make the transition from RCRA permitting requirements to CAA MACT requirements. As we discussed in the preamble to the July 3, 2001 proposed amendments, under RCRA, new sources must obtain a permit or a permit modification before they may start construction of a new source/ unit. The way the current part 270 language reads, new sources subject to the 1999 rule and the Interim Standards rule are not able to demonstrate compliance with the part 63 standards until after a RCRA permit is issued, the source is built, and they conduct performance testing. This means they would have to submit a trial burn plan with their RCRA permit application and also submit suggested conditions for the various phases of operation   startup shake down, trial burn, and post trial burn. Likewise, RCRA permitted facilities that are adding a new combustion source would have to provide the same information with their permit modification request. Whether the source is new or adding a new combustion source, the permit writer would have to review this information and write conditions into the RCRA permit governing all phases of combustor operations. This expenditure of resources, on the part of the source and the permitting agency, is unnecessary given that the conditions will become inactive or be removed from the RCRA permit upon compliance with the MACT standards. For new sources, compliance with the MACT standards is upon start up. Therefore, today we are proposing that new sources ( whether a new source or a new source at an existing permitted source) who will be subject to the Phase I Replacement standards and Phase II standards upon start up, not follow the RCRA permitting process for establishing combustor emissions and operating requirements ( i. e., submission of a trial burn plan with the RCRA permit application, submission of suggested conditions for the various phases of operation   start up/ shake down, trial burn, and post trial burn, and ultimately obtaining a permit with operating and emission standards). b. How Is EPA Proposing to Change the Current Requirements for New Sources? In the July 3, 2001 proposal, we developed regulatory language to clarify our intent not to require new sources to obtain a RCRA permit with respect to combustor operations and emissions. In response to that proposal, we received comments from the Sierra Club expressing concerns that the increased opportunities for public participation established in the RCRA Expanded Public Participation Rule ( 60 FR 63417, December 11, 1995) would be lost. This rule involves communities earlier in the permitting process, provides more opportunities for participation, expands public access to information, and offers guidance on how facilities can improve public participation. In a follow up discussion with the Sierra Club, they specifically expressed interest in being able to influence decisions on the construction of hazardous waste combustors. 186 Upon consideration, we agree with the Sierra Club that in our previous effort to streamline the RCRA permitting process for new sources, we did not fully consider that important opportunities for public participation may be lost. Although we still believe that new sources, whether a new Redline strikeout highlighting changes made during OMB review 281 source or an existing source adding a new source, should not be required to follow the RCRA permitting process, we also believe that the Sierra Club's concerns have merit. It makes sense to afford the public the same ( or as close as possible) public participation opportunities for new units under the HWC MACT/ CAA framework that they had under the RCRA regulations. Therefore we are modifying our earlier proposal as discussed in the paragraphs below, to consider several options that will attempt to address these concerns, as well as provide a means to improve the existing regulatory requirements for new sources. The RCRA Expanded Public Participation Rule implemented four new requirements for facilities and permitting agencies that enable communities to become more active participants throughout the permitting process. They are: 1) permit applicants must hold an informal public meeting before applying for a permit; 2) permitting agencies must announce the submission of a permit application which will tell community members where they can view the application while the agency reviews it; 3) permitting agencies may require a facility to set up an information repository at any point during the permitting process if warranted; and 4) permitting agencies must notify the public prior to a trial ( or test) burn. 187 Consequently, we will focus on each of these and propose mechanisms that mirror or fulfill the RCRA public participation requirements. We stated earlier in this section that under RCRA, new sources must obtain a permit ( or a permit modification at an existing source) before they may start construction of a new source. This holds true regardless of whether we finalize an approach that does not require new sources to obtain a RCRA permit that contains the combustor operating and emissions standards ( i. e., a RCRA permit will still be required to address all other activities at the facility including corrective action, general facility standards, other combustor specific concerns such as material handling, risk based emission limits and operating requirements, and other hazardous waste management units). So, in applying for a RCRA permit, new hazardous waste facilities/ sources will still be required to meet the public participation requirements. However, the problem arises if new sources are not required to provide information relative to the combustor ( i. e., sources were formerly, at this point in the process, required to submit a trial burn plan), but only for the other proposed hazardous waste management activities at the source. Thus, the source would not be required to discuss the proposed combustor specific operations and emissions at the informal public meeting, nor would the permit application that is made available to the public to review, contain information regarding the combustor operations or emissions. In an effort to provide an opportunity for public participation equivalent to RCRA, we believe that the Notification of Intent to Comply ( NIC) requirements, as proposed in Part Two, Section XVI. B., serve in place of the first two RCRA public participation requirements. The primary functions of the NIC are to serve as a compliance planning tool and to promote early public involvement in the permitting process. In terms of compliance planning, the draft NIC must contain general information including the waste minimization, emission control, and emission monitoring techniques that are being considered and how the source intends to comply with the emission standards. With regard to early public involvement, a draft of the NIC must be made available to the public for review within 9 months of the effective date of the final Replacement Standards and Phase II Standards rule. One month later, the source must hold an informal public meeting to discuss the activities described in the NIC. The NIC requirements apply to new Redline strikeout highlighting changes made during OMB review 53 Note that new sources must have prepared and included their documentation of compliance in the operating record upon start up. New sources then have 6 months from the date of start up to begin their comprehensive performance test.

54 If necessary, concerns raised regarding the regulation of the combustor can be addressed through application of RCRA's omnibus provision ( RCRA Section 3005( c)( 3)).

282 sources as well ( see § 63.1212( b)( 1) in today's Notice), but the timing will vary according to the date a new source begins burning hazardous waste. For example, if a new source begins burning 3 months after the rule's effective date, then it will have only 6 months before it must prepare and make a draft NIC available for public review. 53 More significantly, according to 40 CFR § 63.1212( b)( 2), as proposed in today's Notice, new sources that are to begin burning more than 9 months after the effective date of the final rule will be required to meet all of the NIC and Compliance progress report requirements in § § 63.1210( b) and ( c), 63.1211( c), and 63.1212( a) prior to burning hazardous waste. We feel that the NIC requirements are commensurate with the public participation requirements to hold an informal public meeting to inform the community of the proposed combustor operations and to make the compliance information available for public review and comment. On the other hand, we also recognize that there are a few gaps. For instance, the NIC requirements are not associated with a permit action and the regulatory agency is not required to be present at the NIC public meeting. We would, however, expect the source to consider any comments raised during the NIC process as it develops its final compliance strategy and final NIC. 54 Also, if a new source begins burning after the effective date of today's rule, but prior to 9 months after the effective date, the NIC is not required to be made available for public review before a new source begins burning. In other words, the public is not provided information relative to the combustor's operations, emissions, and compliance schedule prior to it beginning operations. Given these gaps, we are proposing a scenario in which the NIC requirements for new sources under MACT, could be crafted to achieve a comparable level of public participation as under RCRA. We are proposing to require that all new sources prepare a draft NIC and make it available to the public at the same time as their RCRA pre application meeting notice. We also propose that new sources submit their comprehensive performance test plan at this time. By submitting the NIC and CPT plan together, the public would be provided with compliance related information relevant to the combustor as well as the proposed combustor operations and emissions ( i. e., the public is provided testing information through the CPT that they would have received via the trial burn plan). Lastly, as part of this option we propose that the NIC public meeting coincide with the informal public meeting for the RCRA permit. By holding a simultaneous meeting, the public is given the opportunity to inquire and comment on both the source's proposed activities and the combustor's proposed operations with regulatory officials Redline strikeout highlighting changes made during OMB review 55 Since the public participation requirements of 40 CFR § § 124.31 and 124.32 only apply to initial RCRA permits and renewals with significant changes, a corresponding regulatory amendment would need to be made to the applicability paragraphs to include modifications to RCRA permits only for new combustion sources that will comply with Part 63, subpart EEE upon start up. Also, 63.1212( b) would need to be amended to reference § § 124.31 and 124.32.

56 40 CFR § 70.7( h)( 2) requires that information including the draft Title V permit, the application, all relevant supporting materials, and other materials available to the permitting authority that are relevant to the permit decision, be made available to interested persons.

283 from both the Air and RCRA programs present. We request comment on this discussion. 55 With respect to the information repository regulations at 40 CFR § 124.33, the purpose of the information repository is to make information ( i. e., documents, reports, data, and information deemed necessary) available to the public during the permit issuance process and during the life of a permit. While the Title V permit procedures specify that information relevant to the permitting decision be made available to the public, 56 this information would not be accessible prior to construction or operation of the combustor. Under RCRA, the information repository would be established some time after submission of the permit application, but before construction and operation of the combustor. Even though an information repository is not a required component of the RCRA permit process, the regulations provide a permitting agency with the discretion to evaluate the need for and require a source to establish and maintain one. Therefore, so that the public is afforded the same opportunities to view and copy information such as the NIC, test plans, draft Title V permit and application, reports and so forth under MACT, we are considering two options. We could include a provision similar to § 124.33 in the NIC regulations for new sources. It would allow a regulatory agency, on a case by case basis, to require a source to establish an information repository specific to the combustor. We believe the NIC regulations are a suitable location to place such a provision, since the NIC is the first opportunity for the public to discuss the combustor operations and emissions. Alternatively, rather than incorporate provisions for an information repository in the NIC regulations, the applicability language in § 124.33 could be amended to include new combustion sources that will comply with Part 63, subpart EEE upon start up. We request comment on this discussion. The last RCRA public participation requirement requires the permitting agency to notify the public prior to a trial burn or test burn at a combustion facility. If new sources are not required to follow the RCRA permitting process with respect to combustor emissions and operations, they also would not be required to submit a trial burn plan with their permit application or conduct a trial burn. However, under MACT, new ( and existing) combustion sources are required to submit performance test and continuous monitoring system ( CMS) performance evaluation test plans for approval. The MACT performance test serves the same purpose as the RCRA trial burn test: to demonstrate compliance with the relevant emission standards and to collect data to determine at what levels the corresponding operating conditions should be set. Similar, but not identical to the RCRA requirements at 40 CFR § § 270.62 and Redline strikeout highlighting changes made during OMB review 57 This approach does not eliminate the possibility that some combustor specific requirements may be retained in the RCRA permit such as: risk based conditions, compliance with an alternative MACT standard, compliance with startup, shutdown and malfunction events under RCRA rather than the CAA, etc. See section XVII, D. 2. for a more complete discussion. Consequently, sources would be expected to include the applicable RCRA conditions in their RCRA permit application.

284 270.66 requiring the permitting agency to notify the public prior to a trial/ test burn, the MACT performance test regulations ( see § 63.1207( e)( 2)), specify that a source must issue a public notice announcing the approval of the test plans and provide a location where the public may view them. Although the timing of the public notices are slightly different, the regulations both provide notice to the public about testing. Under RCRA, notice is given to the public prior ( usually 30 days) to commencement of the trial burn, whereas under MACT, notice is given when the test plans are approved. The newly amended regulations of § 63.1207( e)( 2) proposed in this Notice, specify that sources must make the test plans available for review at least 60 days prior to commencement of the test and must provide the expected time period for commencing ( and completing) the test. Thus, the public is informed of the test and provided estimates of test dates through public notice of the approved test plan. Thus far, the approach we have proposed is intended to ensure that the public will have the same opportunities for participation and access to information as they would if new sources continued to be subject to the RCRA permit process to include the combustor emission and operating requirements. By proposing that new sources not be required to obtain a RCRA permit with combustor emission and operating requirements, it provides for the smoothest and most practical transition from RCRA requirements to MACT requirements. 57 Aside from the approach we have focused on, there are others that may be worthy of consideration. We can also look at the option of a transition point for new sources that would specify how far a new source would proceed down the RCRA permit path before it could " transition" over to compliance with the MACT standards and CAA permitting. There are three additional options we can consider relative to a transition point: 1) after the RCRA Part B application is submitted; 2) after the RCRA permit is issued; and 3) after the source places its Documentation of Compliance ( DOC) in the operating record. Beginning with the first option, each successive one moves in the direction toward the way new sources currently make the transition from RCRA to MACT and includes modifications to the RCRA information requirements. We envision each of these options to be a variation of the current RCRA permit process. Under the first option, the transition point would occur after the source submits its RCRA Part B application. The key to this option is that the source would be subject to the public participation requirements of 40 CFR § § 124.31 and 124.32, to hold an informal public meeting and to have the submission of the permit application noticed. However, new sources would not be required to include the combustor's operation and emission information in the Part B application. Rather, the source would only be required to discuss the compliance related activities related to the combustor as part of the informal public meeting. For Redline strikeout highlighting changes made during OMB review 285 the second option, the transition point would be after the permitting agency issues the RCRA permit. The source would not only discuss the combustor's compliance related activities as part of the RCRA informal public meeting as in the first option, but it would also address the operations and emissions through development of a trial burn plan, or a CPT plan in lieu of the trial burn plan, or even a coordinated CPT/ RCRA trial burn plan, if it is likely that the source will require some RCRA permit conditions ( i. e., risk based conditions). With this option, even though all activities pre permit issuance must address the source and the combustor's operations and emissions, the approved permit would not contain the operating and emission requirements ( with the exception of risk based or alternative standards). For the third option, the transition point would be after the source places its DOC in the operating record, which indicates the source's compliance with the MACT standards. Basically, the source would proceed down the RCRA permit path as in option two by complying with the public participation requirements, submitting a trial burn plan/ CPT plan/ coordinated plan, suggesting conditions for the various phases of operation, and receiving a RCRA permit. However, in this option, the permit would need to address combustor operations and emissions to the extent that it would cover the construction and start up/ shakedown periods. With respect to the public participation requirements, all three options automatically factor in the first two RCRA public participation requirements ( by virtue of where the transition would be made). However, we did not discuss how we would account for the remaining two public participation requirements. We believe that the information repository and the notification of a trial burn requirements can be addressed in the same manner as we discussed in our proposed approach. So, for these options, we would incorporate an appropriate requirement, either through the NIC regulations or the public participation regulations, that would allow for an information repository to be established. Regarding the notice of a trial burn, we believe that the notice of the performance test is equivalent. In summary, our proposed approach involves modifying the NIC provisions to include RCRA public participation requirements. The second group of options consider a range of transition points that are also worthy of consideration. We invite comment on this discussion. 3. What Are the Proposed Changes to the RCRA Permitting Requirements that Will Facilitate the Transition to MACT? To alleviate potential conflicts between the RCRA permit requirements and MACT, we are proposing an additional streamlined permit modification provision, requiring prior Agency approval, which would allow an existing RCRA permit to be better aligned with specific provisions contained in the Subpart EEE requirements. The intent of this provision is to reduce potential burdens associated with compliance with overlapping RCRA and MACT requirements, while still maintaining the overall integrity of the RCRA permit. a. How Will the Overlap During Performance Testing Be Addressed? When we finalized the performance test requirements and the changes to the RCRA permitting requirements in the September 30, 1999 rule, we did not consider how sources would conduct their performance tests while at the same time, maintain compliance with their RCRA permit requirements. For instance, during the performance test, a source will likely want to conduct testing at the edge of the operating envelope or the worst case for certain parameters to ensure operating flexibility. This Redline strikeout highlighting changes made during OMB review 58 For subsequent performance tests, we anticipate that this modification would be useful for sources that may have risk based or alternative requirements in their RCRA permits.

286 could conflict with established operating and emissions limits required in the source's RCRA permit and consequently, prevent the source from optimizing its testing range. Currently, sources have three options that would allow them to resolve any potential conflicts between their performance test and their RCRA permit requirements. One option would be for a source to submit a RCRA Class 2 or 3 permit modification request to temporarily change or waive specific RCRA permit requirements during the MACT performance test ( see § 270.42, Appendix I, L. 5). Another option would be for a source to request approval for such changes through its RCRA trial burn plan or coordinated MACT / RCRA test plan ( see § 270.42, Appendix I, L. 7. a. or d.). In this case, a source could include proposed test conditions in its plan to temporarily waive specific RCRA permit requirements during the test. The last option would be for a source to request a temporary authorization that would allow specific RCRA permit requirements to be waived for a period of 180 days ( see § 270.42( e)). We do not believe that any of the options discussed above provide an optimal solution to resolving conflicts between a source's performance test protocol and its RCRA permit operating and emissions limits. A Class 2 or 3 RCRA permit modification may not be an option for many sources due to the time typically involved in processing these requests. Sources that choose to modify their permits would need to do so well in advance of conducting their performance test to ensure that the modification would be processed in time to conduct the test on schedule. This may result in sources submitting modification requests prior to approval of their performance test plans. We believe that RCRA permit writers are unlikely to approve any modifications to RCRA permit requirements without the assurance that the source will be operating under an approved test plan. Resolving conflicts using a trial burn or coordinated test plan is not a viable option for a source that has already completed its trial burn/ risk burn testing. Lastly, while a temporary authorization is relatively streamlined, it is meant to be used in unique cases affecting an individual facility. We believe that it is most logical and easily implemented to propose a modification that can be used consistently to remedy a common problem affecting an entire group of facilities with similar operations ( e. g., hazardous waste burning combustors facing barriers to testing due to RCRA permit requirements). Therefore, in today's Notice, we are proposing to allow sources to waive specific RCRA permit operating and emissions limits during pretesting, initial, and subsequent performance testing through a new streamlined permit modification procedure. 58 We believe that a process for waiving specific RCRA permit requirements during performance testing is consistent with our objectives to streamline requirements and minimize conflicts between the RCRA and CAA programs without sacrificing the protections afforded by RCRA. Moreover, we view this new permit modification to be complementary to the provisions of § 63.1207( h) for waiving operating parameter limits ( OPLs) during performance testing. In the February 14, 2002 final amendments rule, we reiterated that OPLs in the Documentation of Compliance ( DOC) may be revised at any time to reflect testing parameters for the initial performance test prior to submission of the NOC and so, in effect, are automatically waived. Redline strikeout highlighting changes made during OMB review 287 Also, we revised the language in § 63.1207( h)( 1) and ( 2) to not require that subsequent performance test plans be approved in order to waive OPLs, but rather that sources only record the emission test results of the pretesting. b. Are There Other Instances Where the New Streamlined Permit Modification Can Be Used? In addition to our efforts today to minimize overlapping permit requirements during performance testing, we are also proposing to allow the new streamlined permit modification to address other potential conflicts. In implementing the 1999 rule, it has become clear that there are several other instances when conflicts may arise where RCRA permit requirements overlap with MACT requirements. For example, the required averaging period for an operating parameter might be slightly different between MACT and the RCRA permit, requiring two different data acquisition schemes during the interim period between submittal of the Documentation of Compliance ( DOC) and the final modification of the RCRA permit after receipt of the NOC. Or, if a RCRA permit requires periodic emissions testing, the specified test schedule in the permit might not be aligned with the required test schedule for MACT, causing a facility to perform duplicate testing instead of allowing a single coordinated RCRA/ MACT test event. Conflicts in operating limitations, monitoring and recordkeeping requirements, and scheduling provisions can be especially prevalent during this interim period. Consequently, we believe the new streamlined permit modification procedure would be appropriate to address these probable overlaps. c. Why Is a New Streamlined Permit Modification Procedure Being Proposed? This new streamlined modification differs from the one we finalized in the June 1998 " fast track" rule ( 63 FR 33782). In 1998, we provided for a streamlined RCRA permit modification process whereby you could request a Class 1 modification with prior Agency approval to address and incorporate any necessary MACT upgrades into your RCRA permit ( see 40 CFR § 270.42, Appendix I, L( 9)). The streamlined permit modification provision, which was intended solely for the purpose of implementing physical or operating upgrades, allowed sources that were already operating under RCRA combustion permits to modify their combustion systems' design and/ or operations in order to comply with the MACT standards without having to obtain a Class 2 or 3 RCRA permit modification. Thus, L( 9) was not intended to account for overlapping requirements. Further, to be eligible to use L( 9), you first must have complied with the NIC requirements, including those related to public involvement. Refer to Part Two, Section XVI for a discussion of the NIC. However, similar to the streamlined modification we finalized as L( 9), we feel that this new streamlined modification warrants a Class 1 modification with prior Agency approval. We feel that a Class 1 is appropriate considering that: we do not expect that there would be significant changes when requesting certain RCRA permit requirements to be waived; it would be applicable for a relatively short period of time; regulatory oversight is incorporated via approval of the modification request and; the intended goal of the modification is to achieve environmental improvement ultimately through implementation of more protective standards. d. How Will the New Streamlined Permit Modification Work? Our proposed approach allows for a waiver of specific RCRA permit requirements provided that you: 1) submit a Class 1 permit modification request specifying the requested changes to the RCRA permit, with an accompanying explanation of why the changes are necessary and how the revised provisions will Redline strikeout highlighting changes made during OMB review 59 Refer to the new section in the RCRA permit modification table in 40 CFR 270.42, Appendix I, L( 10) and new regulatory language in 270.42( k), that must be used to waive specified permit requirements.

60 See 40 CFR 63.1207( e)( 3) for performance test time extension requirements.

61 Some sources will receive extensions of up to one year to conduct their initial comprehensive performance test ( see 40 CFR 63.1207( e)( 3)). Therefore, their transition point will occur at a later time designated by the extension.

288 be sufficiently protective, and 2) obtain Agency approval prior to implementing the changes. 59 When utilized to waive permit requirements during the performance test, you also must have an approved performance test plan prior to submitting your modification request. ( We believe that the Class 1 modification with prior Agency approval will ensure that your proposed test conditions are reasonable with respect to your existing permit limits ( i. e. that they are sufficiently protective); and that an approved performance test plan confirms that you have met the regulatory requirements for performance test plans.) We propose that you submit your streamlined modification request in sufficient time to allow the Director a minimum of 30 days ( with the option to extend the deadline for another 30 days) to review and approve your request. For purposes of performance testing, we propose that you submit your request at the time you receive approval of your performance test plan, which is 90 days in advance of the test and coincides with the time limitations imposed on the Director for approval. Additionally, we are requiring that the waiver of permit limits only be relevant during the actual testing events and during pretesting for an aggregate period of up to 720 hours of operation. In other words, it would not apply for the duration of time allotted to begin and complete the test ( i. e., the entire 60 days). As a side note, we realize that some sources may not have an approved performance test plan by the date their test is scheduled to begin because the Administrator failed to approve ( or deny) it within the specified time period, which could render this new streamlined modification impractical. However, we expect that sources would petition the Administrator to waive their performance test date for up to 6 months, with an additional 6 months possible, rather than to proceed with the performance test without the surety of an approved test plan. 60 B. How Will the Replacement Standards Affect Permitting for Phase I Sources? 1. Where Will Phase I Sources Be in their Transition to MACT with Respect to Their RCRA Permits? We discussed earlier that by the time the Phase I Replacement standards and Phase II standards are finalized, most Phase I sources will have completed their initial comprehensive performance test and submitted their NOC documenting compliance with the MACT Interim Standards. 61 This marks the point at which sources will begin to transition from RCRA permitting requirements to CAA requirements and title V permitting. For sources with RCRA permits, they must continue to comply with the operating standards and emission limits in their permits until any Redline strikeout highlighting changes made during OMB review 62 A streamlined permit modification was developed in the 1999 rule to allow the removal of duplicative conditions from RCRA permits ( see 270.42, Appendix I, Section A. 8).

63 Only major sources are required to reopen their title V permits when 3 or more years remain in the permit term. Even though area sources were subject to the same standards and title V permit requirements, they can wait until renewal regardless of the time remaining to incorporate new or revised standards. The reopening provisions of 40 CFR 70.7( f) and 71.7( f) only apply to major sources.

289 duplicative requirements are either removed through a permit modification, expire, or are automatically inactivated via a sunset clause contained in the permit. For sources operating under interim status, they must comply with the RCRA interim status requirements until they demonstrate and document compliance with the MACT Interim Standards. We anticipate that sources who are in the process of renewing their RCRA permits would work with their permit writers to include sunset clauses to inactivate duplicative requirements upon compliance with the MACT Interim Standards. Given the permit actions taken during the transition period leading up to compliance with the Interim Standards, we believe that many sources will have had duplicative requirements removed from their permits by the time the Replacement Standards are promulgated. For sources that have not had their RCRA permits modified, we expect that they will proceed with a modification to remove duplicative requirements. 62 2. Where Will Phase I Sources Be in Their Transition to MACT with Respect to Their Title V Permits? With regard to title V permits, Phase I major and area sources were required to submit a title V permit application 12 months after the effective date of the 1999 rule  or were required to reopen existing title V permits with 3 or more years remaining in the permit term, 18 months after the effective date  to include the MACT standards. Sources with less than 3 years remaining could wait until renewal to incorporate the 1999 standards. 63 Upon promulgation of the Interim Standards on February 13, 2002, major sources were required to reopen their permits or could wait until renewal to include the revised standards according to the same time frames mentioned above. Therefore, we expect that all Phase I sources would have title V permits containing the MACT Interim Standards and potentially, operating standards in accordance with their DOC, at the time the Replacement Standards rule is promulgated. Furthermore, most sources will have initiated a significant modification to their permits to include the revised operating requirements of their NOC. Regardless of these required compliance activities leading up to the promulgation date of the Replacement Standards rule, Phase I sources will again need to reopen within 18 months or wait until renewal to incorporate the MACT Replacement standards. 3. What Is Different with Respect to Permitting in Today's Notice of Proposed Rulemaking? Based upon our decision to utilize the same general permitting approach as in the 1999 and Interim Standards rules, we expect sources to follow the same transition scheme as it relates to RCRA permit requirements and the CAA requirements and title V permitting for the Redline strikeout highlighting changes made during OMB review 290 Replacement Standards rule. One aspect, however, that was not addressed in those rules was how the permitting of new sources would be affected. Hence, we discuss approaches in this Notice of Proposed Rulemaking ( see Section A. 1. above) that would require them to obtain RCRA permits only for corrective action, general facility standards, other combustor specific concerns such as material handling, risk based emission limits and operating requirements, and other hazardous waste management units at the source. Should the approach we are proposing be finalized, there may not be any operating requirements and emission standards to remove from their RCRA permits. We also discussed a new streamline permit modification procedure in section A. 2. " What Are the Proposed Changes to the RCRA Permitting Requirements that Will Facilitate the Transition to MACT?". This new procedure allows sources to waive specific RCRA permit operating and emission limits during pretesting, performance testing, and other instances where there may be conflicts during the interim period between submission of the Documentation of Compliance and final RCRA permit modification. Another important difference is our proposal to codify the authority for permit writers to evaluate the need for and, where appropriate, require SSRAs. We are also proposing to codify the authority for permit writers to add conditions to RCRA permits that they determine, based on the results of an SSRA, are necessary to protect human health and the environment. In doing so, our intent is to change the regulatory mechanism that is the basis for SSRAs, while retaining the same SSRA policy from a substantive standpoint. Under this approach, permitting authorities continue to have the responsibility to ensure the protectiveness of RCRA permits. Next, we have proposed to re institute the NIC ( see Part Two, Section XVI for a discussion of the NIC) for Phase I sources and to require the NIC for Phase II sources. While the NIC serves as a compliance planning tool and to promote early public involvement, it is also a requirement before the streamlined permit modification procedure in 40 CFR § 270.42( j) and 270.42, Appendix I, Section L. 9, can be utilized to make changes to either the combustor design or operations, in order to comply with the final Replacement Standards. Thus, sources who have not yet made the transition from their RCRA permits to title V permits must comply with the NIC requirements to take advantage of the streamlined permit modification. Last, a subtle difference pertaining to the transition scheme stems from the time span between compliance with the Interim Standards and the effective date of the Replacement Standards relative to RCRA permits. Sources who received extensions to the date for commencing their initial comprehensive performance test, whether a 6 month or 12 month extension, will not be required to submit an NOC until either a few months before or just after the effective date of the final Replacement Standards rule. Therefore, these sources would be modifying their RCRA permits just before or after the effective date of the final rule. Nevertheless, we anticipate that sources will proceed with modification of their RCRA permits to remove duplicative requirements. C. What Permitting Requirements Is EPA Proposing for Phase II Sources? Phase II sources are presently subject to the RCRA permitting requirements for hazardous waste combustors provided in 40 CFR § § 270.22 and 270.66. We are proposing in today's Notice to apply the same approach to permitting Phase II sources that we did for Phase I sources in the Redline strikeout highlighting changes made during OMB review 64 Even though the RCRA air emission standards for combustors will no longer apply once compliance is demonstrated with MACT ( except in certain cases), other RCRA air emission standards will continue to apply to other hazardous waste management units at the facility. For example, part 264, subpart CC, still applies to air emissions from tanks, surface impoundments, and containers.

291 September 1999 rule. Specifically, we propose to: ( 4) place the new Phase II emission standards only in the CAA regulations at 40 CFR Part 63, Subpart EEE, and rely on their implementation through the air program, ( 5) specify that, with few exceptions, the analogous standards in the RCRA regulations no longer apply once a facility demonstrates compliance with the MACT standards in Subpart EEE, and ( 6) require that the new standards be incorporated into operating permits issued under title V of the CAA rather than be incorporated into RCRA permits. Our goal with regard to permitting Phase II sources remains the same as the goal that we had for Phase I sources   to accommodate the requirements of both the RCRA and CAA statutes, while at the same time avoiding duplication between the two programs to the extent practicable. The permitting approach we developed for Phase I sources in the September 1999 rule enables us to achieve this goal. In that rule, we amended the applicability of 40 CFR § § 270.19, 270.22, 270.62, and 270.66 so that once a source demonstrates compliance with the MACT standards, it is no longer subject to the full array of RCRA combustion permitting activities, unless the Director of the permitting agency decides to apply specific RCRA regulatory provisions, on a case by case basis, for purposes of information collection in accordance with § § 270.10( k) and 270.32( b)( 2). We are proposing to make a similar change to 40 CFR § § 270.22 and 270.66 for Phase II sources. In addition, we are proposing for Phase II sources, as we are for Phase I sources, that new sources not follow the RCRA permitting process for establishing combustor emissions and operating requirements. Of course, as for Phase I sources, Phase II sources would remain subject to the RCRA permitting requirements for all other aspects of their combustion unit and facility operations, including general facility standards, corrective action, other combustorspecific concerns such as materials handling, risk based emission limits and operating requirements, as appropriate, and other hazardous waste management units at the site. 64 Also, some sources will retain specific RCRA permitting requirements if they choose to comply with an alternative MACT standard; address startup, shutdown and malfunction events under RCRA rather than the CAA; or, if an area source, comply with the RCRA metals, particulate matter, or chlorine standards and associated requirements. It is also important to note that if you later decide to add a new combustion unit to your facility, you must first modify your RCRA permit to include the new unit. This is because your RCRA permit must reflect all hazardous waste management units at the facility. Although the emissions from the new unit will be regulated under the CAA MACT standards, as noted above, your RCRA permit must address any other related requirements for the new unit. 1. What Other Permitting Requirements Are We Proposing to Apply to Phase II Redline strikeout highlighting changes made during OMB review 65 It is important to note that you only may request the removal of duplicative combustion limits and conditions from your RCRA permit. Any risk based conditions that are more stringent than the MACT requirements would be retained.

66 Section 270.72( b) imposes a limit on the extent of the changes, stating that they cannot amount to " reconstruction" ( defined in the regulation as " when the capital investment in the changes to the facility exceeds 50 percent of the capital cost of a comparable entirely new hazardous waste management facility"). Although we did not expect the individual costs to perform changes required to comply with the MACT standards to exceed this 50 percent limit, the limit is cumulative for all changes at an interim status facility. Thus, conceivably there could be situations where MACT related changes would cause a source to exceed the limit. To ensure that the limit would not be a hindrance to MACT compliance, we added an exemption to paragraph ( b) of that section for changes necessary to comply with standards under 40 CFR Part 63, Subpart EEE.

292 Sources? As part of the Phase I rule, we promulgated additional specific changes to the RCRA permitting requirements in 40 CFR Part 270 to facilitate implementation of the new standards and permit transition from RCRA to the CAA. First, we added a streamlined RCRA permit modification process to allow sources to make changes to either their combustor design or operations, as necessary, in order to comply with the Phase I standards. This modification process, a Class 1 with prior Agency approval, was promulgated in the June 19, 1998 " Fast Track" rule and is provided in 40 CFR § 270.42( j) and 270.42, Appendix I, Section L. 9. See 63 FR 33785. Second, we further amended the Section 270.42, Appendix I permit modification table to add a new line item that streamlines modification procedures for removing conditions from a permit that are no longer applicable ( e. g., because the standards upon which they are based are no longer applicable to the source). This new line item is a Class 1 modification requiring prior Agency approval and is provided in Section A. 8 of Appendix I. 65 Third, we added a new section, 40 CFR § 270.235, to the RCRA permitting requirements that address startup, shutdown, and malfunction events and the integration of those requirements between the RCRA program and the CAA program. Fourth, we amended the requirements in 40 CFR § 270.72 governing changes that facilities can make while they are operating under interim status. 66 We believe that each of the above changes that we made to the RCRA permitting regulations for Phase I sources are also appropriate for Phase II sources and thus, are proposing that these same features apply to Phase II sources. They will serve to ease implementation of the new standards and transition combustion sources from RCRA to the CAA. We did not amend any title V regulations in 40 CFR Parts 70 or 71 for Phase I sources. It was our intent during the Phase I rulemaking, and continues to be our intent for Phase II, to rely on the existing air program to implement the new MACT requirements, including their incorporation into a title V operating permit. Thus, we are proposing that all current CAA title V requirements governing permit applications, permit content, permit issuance, renewal, reopenings Redline strikeout highlighting changes made during OMB review 293 and revisions will apply to air emissions from Phase II sources. In addition, the requirements of other CAA permitting programs, such as air construction permits, likewise will continue to apply, as appropriate. We also included provisions in the Subpart EEE requirements that address the relationship between the standards and title V permits. Specifically, we stated in 40 CFR § 63.1206( c)( 1)( iv) and ( v) that the operating requirements in the Notification of Compliance are applicable requirements for purposes of Parts 70 and 71, and that these operating requirements will be incorporated into title V permits. We are proposing the same approach for the interface between the Phase II standards and title V permits. 2. What Other Permitting Requirements Are We Proposing in Today's Notice that Would Also Be Applicable to Phase II Sources? In today's notice, we are proposing three changes to the general permitting approach for all sources subject to Part 63, Subpart EEE, including Phase II sources. First, we are proposing to allow sources to waive specific RCRA permit operating and emission limits using a streamlined permit modification procedure. This would apply for pretesting, performance testing, and other instances where there may be conflicts during the interim period between submittal of the DOC and final RCRA permit modification. Second, we are proposing that new units not be required to obtain a RCRA permit that includes emission limits or conditions, with certain exceptions ( e. g., more stringent risk based limits). Third, we are proposing to codify the authority for permit writers to evaluate the need for and, where appropriate, require SSRAs. We are also proposing to codify the authority for permit writers to add conditions to RCRA permits that they determine, based on the results of an SSRA, are necessary to protect human health and the environment. We believe that each of the above proposals are appropriate for Phase II as well as Phase I sources and, therefore, are applying them to all hazardous waste combustors subject to Part 63, Subpart EEE. See the discussions provided in A. 1 and A. 2 of this section. 3. How Will the Permitting Approach Work for Phase II Sources? In the preamble to the September 1999 rule, we discussed at length how to implement the new permitting approach, including aspects such as when and how to transition sources from RCRA permitting to title V. See 64 FR 52981. We have also provided a fact sheet on permit transition in our Hazardous Waste Combustion NESHAP Toolkit, which is available at the following Internet address: http:// www. epa. gov/ epaoswer/ hazwaste/ combust/ toolkit/ index. htm. The information provided in the above mentioned preamble and the fact sheet is appropriate for Phase II as well as Phase I sources. Below is a summary of this information for sources that already have RCRA permits and for sources that are currently operating under RCRA Interim Status. The permitting approach for new sources is discussed earlier in A. 1 of this section. a. Implementing the New Permitting Approach for Phase II Sources that Already Have RCRA Permits. If you already have a RCRA permit, you must continue to comply with the conditions in your permit until either they expire or your permitting authority modifies your permit to remove them. You can request a permit modification, using line item A. 8 provide in Appendix I of Section 270.42, to request that your permitting authority remove any duplicative conditions once you have conducted your comprehensive performance test and submitted a Notification of Compliance documenting compliance to your CAA regulatory agency. The appropriate CAA regulatory agency in most cases will be the state environmental agency. Redline strikeout highlighting changes made during OMB review 294 When you submit your RCRA permit modification request you should identify the conditions in your RCRA permit that you believe should be removed. We recommend that you also attach a copy of your Notification of Compliance. This information will help the RCRA permit writer determine whether there are any risk based conditions that need to remain in your RCRA permit. For example, any conditions imposed under RCRA omnibus authority, or similar state authority, based on the results of a site specific risk assessment that are more stringent than the corresponding MACT standard or limitation documented in the Notification of Compliance would have to remain in the RCRA permit. You should also inform your RCRA permit writer if you intend to comply with any specific RCRA requirements in lieu of those provided in Part 63, Subpart EEE, such as the RCRA startup, shutdown, and malfunction requirements. Providing this information to the RCRA permit writer likely will expedite review of your permit modification request. We expect that in some situations RCRA permit writers may not approve a request to remove conditions until they know that their counterparts in the Air program have reviewed the Notification of Compliance and verified that the facility has successfully demonstrated compliance with the MACT standards. This may happen, for example, with facilities that have historically generated a lot of interest or concern from the community or that have had previous problems in maintaining compliance with performance standards. If you have received confirmation that the regulatory agency has made a Finding of Compliance based on your Notification of Compliance, we recommend you include that with your RCRA permit modification request as well. Once people in the Air program responsible for reviewing the Notification of Compliance have completed their evaluation of the documentation and test results, we encourage them to inform their RCRA counterparts. This courtesy will help RCRA permit writers complete their review of the RCRA permit modification requests, thereby facilitating the permit transition. b. Implementing the New Permitting Approach for Sources that Are Operating under RCRA Interim Status. If you are currently operating under RCRA interim status, you must continue to meet RCRA performance standards governing emissions of hazardous air pollutants in 40 CFR Part 266 until you conduct your comprehensive performance test and submit your Notification of Compliance documenting compliance with the MACT standards to the regulatory agency. The RCRA combustion permitting procedures in 40 CFR part 270 also continue to apply until you demonstrate compliance. There is not a " one size fits all" answer to how facilities operating under RCRA interim status should make the transition. RCRA permit writers, in coordination with facility owners or operators, should map out the most appropriate route to follow in each case. In mapping out sitespecific approaches to transition, both the regulators and the facility owners or operators should keep in mind the goal we mentioned earlier of minimizing the amount of time a facility might be subject to duplicative requirements under the two programs. Factors they should take into consideration include, but are not limited to the following. ( 1) The status of the facility in the RCRA permitting process at the time the final MACT rule is promulgated. For example   If a facility is on the verge of conducting a RCRA trial burn, it should proceed with the trial burn and continue through the RCRA permitting process. ( 2) The facility's anticipated schedule for demonstrating compliance with the MACT standards. For example   If the facility plans to come Redline strikeout highlighting changes made during OMB review 295 into compliance with the standards early, it may make sense to transition before completing the RCRA permitting process. ( 3) The priorities and schedule of the regulatory agency. For example   A state agency may have made certain commitments ( e. g., to the public or to its state legislature) regarding their RCRA or CAA programs that might impact its decisions regarding the transition. ( 4) The level of environmental concern at a given site. For example   To make sure that the facility is being operated in a manner protective of human health and the environment, the regulatory agency may decide to proceed with RCRA permitting, including the site specific risk assessment, rather than delay the RCRA process to coordinate with testing under MACT. If after evaluating all the relevant factors a decision is made to proceed with a RCRA permit in advance of a source's MACT compliance demonstration, we suggest including language to facilitate the eventual transition. Regulators can attach " sunset" provisions to those conditions that will no longer apply once a source demonstrates compliance with the Part 63 Subpart EEE standards. In making the transition from one program to the other, testing under one program should not be unnecessarily delayed in order to coordinate with testing required under the other. As proposed for Phase II, sources would be conducting periodic performance testing ( every five years) anyway, just as the Phase I sources are required to do. In both our Hazardous Waste Minimization and Combustion Strategy and in the September 1999 Phase I rule, we emphasized the importance of bringing hazardous waste combustion units under enforceable controls that have been demonstrated to achieve compliance with performance standards. Stack testing is essentially the way to make this demonstration, whether it is performed under the RCRA or CAA regulatory schemes, and so should be performed as expeditiously as possible. 4. How Do We Propose Regulating Phase II Area Sources? In today's Notice, we are not making a positive area source finding as we have with the Phase I area sources. However, we are using the " specific pollutants" authority in § 112section 112( c)( 6) of the CAA to propose that area sources be subject to MACT standards only for certain hazardous air pollutants. Thus, area sources will be subject to title V permitting requirements for those pollutants specified per CAA § 112section 112( c)( 6). Under 40 CFR § 6363.1( c)( 2), area sources subject to MACT standards are also subject to title V permitting, unless the standards for the source category specifies that: ( 1) states will have the option to exclude area sources from title V permit requirements; or ( 2) states will have the option to defer permitting of area sources. We did not allow the states these options in the September 1999 rule for Phase I sources, and we are not proposing to offer them for Phase II sources either. Since the RCRA program does not make a distinction between regulating major and area sources and would no longer be able to address the pollutants covered by MACT ( because the underlying RCRA standards in 40 CFR parts 264, 265, and 266 would no longer be applicable once the source demonstrates compliance with Subpart EEE), we believe that area sources should not be exempt from the title V permitting requirements. It is important that there not be a gap in permitting coverage as we implement the deferral from regulation under RCRA to regulation under the CAA. In addition, Section 502( a) of the CAA requires that any area source exemptions from the title V permitting requirements be predicated on a finding that compliance with the requirements is impracticable, infeasible, or unnecessarily burdensome. We do not Redline strikeout highlighting changes made during OMB review 67 We provided further clarification of the appropriate use of the SSRA policy and technical guidance in an April 10, 2003 memorandum from Marianne Lamont Horinko, Assistant Administrator for OSWER, to the EPA Regional Administrators titled Use of the Site Specific Risk Assessment Policy and Guidance for Hazardous Waste Combustion Facilities. This document is available in the docket ( Docket # RCRA 2003 0016) established for today's proposed action.

296 believe that the title V permitting requirements will be impracticable, infeasible, or unnecessarily burdensome for Phase II area sources, because these sources are already complying with RCRA permitting requirements. As explained above, we are using the " specific pollutants" authority to propose that area sources be subject to MACT standards only for certain hazardous air pollutants: dioxin/ furans, mercury, DRE and carbon monoxide/ hydrocarbons. ( See Part Two, Section II. C.) For particulate matter, chlorine and HAP metals other than mercury, we are proposing that area sources have the option of complying with the MACT standards for Phase II major sources or continuing to comply with the RCRA emission standards and requirements. Those Phase II area sources that choose to comply with the RCRA standards and requirements will be subject to title V permits for some of their emissions and RCRA permits for others. In summary, regardless of whether an area source elects to comply with all or only the pollutants pursuant to CAA § 112section 112( c)( 6), a title V permit will be required. D. How Would this Proposal Affect the RCRA Site Specific Risk Assessment Policy? 1. What Is the Site Specific Risk Assessment Policy? In the September 30, 1999 Phase I rule, we articulated a revised Site Specific Risk Assessment ( SSRA) policy recommendation for hazardous waste burning incinerators, cement kilns and light weight aggregate kilns. Specifically, we recommended that for hazardous waste combustors subject to the Phase I MACT standards, permitting authorities should evaluate the need for an SSRA on a case by case basis. We further stated that while SSRAs are not anticipated to be necessary for every facility, they should be conducted where there is some reason to believe that operation in accordance with the MACT standards alone may not be protective of human health and the environment. If the permitting authority concludes that a risk assessment is necessary for a particular combustor, the permitting authority must provide the factual and technical basis for its decision in the facility's administrative record. Should the SSRA demonstrate that supplemental requirements are needed to protect human health and the environment, additional conditions and limitations should be included in the facility's RCRA permit pursuant to the omnibus authority. The basis and supporting information for those supplemental requirements also must be documented in the facility's administrative record. For hazardous waste combustors not subject to the Phase I standards, we continued to recommend that SSRAs be conducted as part of the RCRA permitting process. See 64 FR 52841.67 2. Are SSRAs Likely to be Necessary After Sources Comply with the Phase I Replacement Standards and Phase II Standards? As explained earlier, all Phase I replacement standards must be equivalent to or more Redline strikeout highlighting changes made during OMB review 68 The 1999 promulgated total chlorine standard for new LWAKs was 41 ppmv. The proposed replacement standard is 150 ppmv. We do not view the total chlorine replacement standard as a concern because the 1999 promulgated total chlorine standard for existing sources was higher ( 230 ppmv) and found to be generally protective in the national risk assessment conducted for that rulemaking. With respect to risk from mercury for LWAKs, see " Inferential Risk Analysis in Support of Standards for Emissions of Hazardous Air Pollutants from Hazardous Waste Combustors," prepared under contract to EPA by Research Triangle Institute, Research Triangle Park, NC.

69 See Human Health and Ecological Risk Assessment Support to the Development of Technical Standards for Emissions from Combustion Units Burning Hazardous Wastes: Background Document, July 1999.

297 stringent than the negotiated interim standards. Many of the replacement standards proposed in today's notice would be more stringent than the interim standards ( e. g., 64 ug/ dscm as opposed to 120 ug/ dscm for the existing source cement kiln mercury standard). And, with the exception of the mercury standard for both new and existing LWAKs and the total chlorine standard for new LWAKs, they are also equivalent to or more stringent than the 1999 promulgated standards, which EPA determined to be generally protective in a national risk assessment conducted for that rulemaking. 68,69 For today's proposed action, we conducted a comparative risk analysis of the Phase I replacement standards to the 1999 promulgated Phase I standards. Specifically, we compared certain characteristics of the Phase I source universe as it exists today to the 1999 Phase I source universe to determine if there were any significant differences that might influence or impact the potential risk. We focused on the following four key characteristics: emission rates, stack gas characteristics, meteorological conditions, and exposed populations. Based on the results of our comparative analysis, we believe that the risk to human health and the environment from Phase I sources complying with the proposed replacement standards will be, for the most part, the same or less than the estimated risk from sources complying with the 1999 promulgated standards. See Part Four, Section IX, How Does the Proposed Rule Meet the RCRA Protectiveness Mandate?. Although the replacement standards are generally equivalent to or more stringent than both the interim and 1999 promulgated standards, we cannot assess to what extent this may change the frequency with which SSRAs are determined to be necessary. In the end, the MACT standards are technology based and so, risk analysis notwithstanding, cannot assure that emissions from each affected source will be protective of human health and the environment. For example, a particular source could emit types and concentrations of non dioxin PICs different from those we modeled, and so could continue to pose risk not accounted for in our analysis. Sources' emissions of criteria pollutants, which are non HAPs and so are beyond the direct scope of Redline strikeout highlighting changes made during OMB review 70 See 56 FR at 7145 ( Feb. 21, 1991) explaining why there can be circumstances where a risk based standard for particulate matter ( a criteria pollutant) for hazardous waste combustion sources may be needed, and how such a standard could be integrated into the National Ambient Air Quality Standard implementation process.

71 Particulate matter is an appropriate surrogate to control metal emissions in nonhazardous waste fuels and raw material in lieu of a numerical metal emission limit because a numerical metal emission standard may inappropriately control feedrate of HAP metals in the raw materials and fossil fuels ( since such control would be neither replicable nor duplicable, and is not justified as a beyond the floor standard).

298 MACT, also could possibly pose risk which could necessitate site specific risk assessment. 70 Another potential example involves emissions of nonmercury metal HAP by cement kilns and lightweight aggregate kilns. The semivolatile and low volatile metal thermal emission standards directly address emissions attributable to the hazardous waste, as opposed to a source's total HAP metal emissions. Thus, although these proposed limits reflect MACT, by normalizing the standards to thermal firing rate ( for the appropriate reasons explained earlier), they do not create a HAP metal " emissions cap". HAP metal emission contributions from nonhazardous waste fuels and raw materials are not directly regulated by this type of emission standard, but are rather controlled appropriately with the particulate matter standard. 71 In contrast, RCRA permits can address the total emissions from the combustion unit, assuming an appropriate nexus with hazardous waste combustion. Thus, for those combustors that must comply with a thermal emission standard and that feed materials other than hazardous waste, the permitting authority may decide that an SSRA is appropriate to determine if additional limits ( i. e., a total emissions cap) are necessary to ensure that all metal HAP emissions from the combustion unit remain at a level that is protective of human health and the environment. With respect to Phase II sources, the standards we are proposing in today's notice are significantly more stringent than the existing technical standards required under RCRA ( 40 CFR Part 266, Subpart H). To evaluate the protectiveness of the proposed Phase II standards, we conducted the same comparative risk analysis for Phase II sources that we conducted for Phase I sources. Specifically, we evaluated the differences between the 1999 Phase I source universe and the existing Phase II source universe with respect to the four key source characteristics mentioned above to determine if there were any significant differences that might influence or impact the potential risk. As discussed in the background document, (" Inferential Risk Analysis in Support of Standards for Emissions of Hazardous Air Pollutants from Hazardous Waste Combustors,") we estimated emissions for each facility based on site specific stack gas concentrations and flow rates measured during trial burn or compliance tests. We then assumed that sources would design their systems to meet an emission level below the proposed standard. For today's proposed standards, the design level is generally the lower of: ( 1) 70% of the standard; or ( 2) the arithmetic Redline strikeout highlighting changes made during OMB review 72 If available test data in our data base indicate that the source was emitting below the design level, we assumed that the source would continue to emit at the levels measured in test.

299 average of the emissions data of the best performing sources. 72 The comparative analysis results indicate that the standards for Phase II sources are generally protective. For a detailed discussion of the comparative risk analysis methodology and results, see the background document entitled " Inferential Risk Analysis in Support of Standards for Emissions of Hazardous Air Pollutants from Hazardous Waste Combustors," prepared under contract to EPA by Research Triangle Institute, Research Triangle Park, NC. As with the Phase I sources, we cannot reliably predict to what extent SSRAs will continue to be necessary for Phase II sources once they have complied with the MACT standards. In view of the standards alone there are at least three possible scenarios for which SSRAs may continue to be needed. First, we are proposing thermal emission standards for liquid fuel fired boilers. Thus, similar to cement kilns and LWAKs, permitting authorities may determine that an SSRA is necessary to ensure that all emissions from liquid fuel fired boilers are protective of human health and the environment. Second, we are proposing that liquid fuel fired boilers with wet APCD or no APCD and solid fuel fired boilers comply with a CO or total hydrocarbon limit as a surrogate for the dioxin/ furan emission standard. Permitting authorities may determine that an SSRA is necessary for these sources if there is some concern that the CO or total hydrocarbon limit alone may not be adequately protective. Third, we are not proposing standards for all HAPs emitted by Phase II area sources. Instead, consistent with CAA § 112( c)( 6), we are proposing MACT standards only for dioxin/ furans, mercury, carbon monoxide and hydrocarbons, and DRE. For the remaining metals, particulate matter and TCl, we are providing area sources with the option of complying with the MACT standards for major sources or continuing to comply with the existing RCRA technical standards. Sources that choose to comply with the RCRA standards may need to consider an SSRA, because the RCRA standards alone may not be sufficiently protective ( i. e., since they do not address the potential risk from indirect exposures to long term deposition of metals onto soils and surface waters). To date, we have identified only three area sources in the Phase II universe. Thus, the number of sources that could decide to continue complying with the above mentioned RCRA standards is expected to be very limited. It is useful to note that there are other site specific factors or circumstances beyond the standards themselves that can be important to the SSRA decision making process for an individual combustor. For example, a source's proximity to a water body or an endangered species habitat, repeated occurrences of contaminant advisories for nearby water bodies, the number of hazardous air pollutant emission sources within a facility and the surrounding community, whether or not the waste feed to the combustor is comprised of persistent, bioaccumulative or toxic contaminants, and sensitive receptors with potentially significantly different exposure pathways, such as Native Americans, will likely influence a permitting authority's decision of whether or not an SSRA is necessary. In addition, uncertainties inherent in our comparative risk analysis and the national risk assessment conducted in support of the 1999 promulgated standards also may influence a permitting authority's decision. For example, the 1999 national risk assessment contained some Redline strikeout highlighting changes made during OMB review 300 uncertainties regarding the fate and transport of mercury in the environment and the biological significance of mercury exposures in fish. Another example relates to nondioxin products of incomplete combustion. Due to insufficient emissions data and parameter values, the 1999 national risk assessment did not include an evaluation of risk posed by nondioxin products of incomplete combustion. See 64 FR 52840 and 52841 for additional discussion of uncertainties regarding the national risk assessment. Also, the comparative risk analysis conducted in support of today's action did not account for cumulative emissions at a source or background exposures from other sources. 3. What Changes Is EPA Proposing With Respect To the Site Specific Risk Assessment Policy? As stated earlier in this section, we recommended in the preamble to the 1999 rulemaking that permitting authorities evaluate the need for an SSRA on a case by case basis for hazardous waste combustors subject to the Phase I MACT standards. For hazardous waste combustors not subject to the Phase I standards, we continued to recommend that SSRAs be conducted as part of the RCRA permitting process if necessary to protect human health and the environment. We indicated that the RCRA omnibus provision authorized permit writers to require applicants to submit SSRA results where an SSRA was determined to be necessary. Today, we are proposing to codify the authority for permit writers to evaluate the need for and, where appropriate, require SSRAs. We are also proposing to codify the authority for permit writers to add conditions to RCRA permits that they determine, based on the results of an SSRA, are necessary to protect human health and the environment. In doing so, our intent is to change the regulatory mechanism that is the basis for SSRAs, while retaining the same SSRA policy from a substantive standpoint. Under this approach, permitting authorities continue to have the responsibility to ensure the protectiveness of RCRA permits. We are requesting comment on this proposal. RCRA Sections 3004( a) and ( q) require that we promulgate standards for hazardous waste treatment, storage and disposal facilities and hazardous waste energy recovery facilities as may be necessary to protect human health and the environment. RCRA section 1006( b) directs us to integrate the provisions of RCRA with the appropriate provisions of the CAA and other federal statutes to the maximum extent practicable. Thus, to the extent that the RCRA emission standards and associated requirements promulgated under Section 3004( a) or ( q) are duplicative of the CAA MACT standards, Section 1006( b) provides us with the authority to eliminate duplicative RCRA standards and associated requirements. For this reason, we have provided that most RCRA emission standards and associated requirements no longer apply to incinerators, cement kilns, and lightweight aggregate kilns once these sources demonstrate compliance with MACT requirements. As explained earlier, we are proposing to do the same in today's notice for solid fuel fired boilers, liquid fuel fired boilers and HCl production furnaces. Although the Phase I replacement and Phase II standards provide a high level of protection to human health and the environment, thereby allowing us to nationally defer the RCRA emission requirements to MACT, additional controls may be necessary on an individual source basis to ensure that adequate protection is achieved in accordance with RCRA. We believe that this will continue to be the case even after the Phase I replacement and Phase II standards are promulgated as discussed earlier in this section. Up to this point in time, we have Redline strikeout highlighting changes made during OMB review 301 relied exclusively on RCRA Section 3005( c)( 3) and its associated regulations ( e. g., 40 CFR 270.10( k)) when conducting or requiring a risk assessment on a site specific basis. Because risk assessments are likely to continue to be necessary at some facilities, we are proposing to explicitly codify the authority to require them on a case by case basis and add conditions to RCRA permits based on SSRA results under the authority of Sections 3004( a) and ( q) and 3005 of RCRA. We continue to believe that section 3005( c)( 3) and its associated regulations provide the authority to require and perform SSRAs and to write permit conditions based on SSRA results. Indeed, as explained below, EPA will likely continue to include permit conditions based on the omnibus authority in some circumstances when conducting these activities, and state agencies in states with authorized programs will continue to rely on their own authorized equivalents, at least for some period of time. However, since we foresee that SSRAs will likely continue to be necessary at some hazardous waste combustion facilities, we are proposing to expressly codify these authorities for the convenience of both regulators and the regulated community. We are not proposing that SSRAs automatically be conducted for hazardous waste combustion units, because we continue to believe that the decision of whether or not a risk assessment is necessary must be made based upon relevant site specific factors associated with an individual combustion unit and that there are combustion units for which an SSRA will not be necessary. We further believe that it is the permitting authority, with information provided by hazardous waste combustion facilities, that is best equipped to make this decision. 4. How Would the New SSRA Regulatory Provisions Work? The SSRA regulatory provisions are proposed under both base program authority ( sections 3004( a) and 3005( b)) and HSWA authority ( section 3004( q)). Thus, where EPA or a state regulator has determined that a risk assessment is necessary, the applicability of the new provisions will vary according to the nature of the combustion unit in question ( whether it is regulated under 3004( q), or only 3004( a) and 3005( b)), and the authorization status of the state. Depending on the facts, the new authority would be applicable, or the omnibus provision would remain the principal authority for requiring site specific risk assessments and imposing risk based conditions where appropriate. As explained in the state authorization section of this preamble ( see Part Two, Section XIX. C), EPA does not consider these provisions to be either more or less stringent than the preexisting federal program, since they simply make explicit an authority that has been and remains available under the omnibus authority and its implementing regulations. Thus, states with authorized equivalents to the federal omnibus authority will not be required to adopt these provisions, so long as they interpret their omnibus authority broadly enough to require risk assessments where necessary. Nonetheless, we encourage states to adopt these provisions to promote regulatory transparency. We are proposing to add a paragraph to the general permit application requirements of 40 CFR § 270.10 to specifically allow a permit writer to require that a permittee or an applicant submit an SSRA or the information necessary for the regulatory agency to conduct an SSRA, if one is determined to be necessary. The permit writer may decide that an SSRA is needed if there is some reason to believe that additional controls beyond those required pursuant to 40 CFR Parts 63, 264 or 266 may be needed to ensure protection of human health and the environment under Redline strikeout highlighting changes made during OMB review 302 RCRA. We are also proposing to allow the permit writer to require that the applicant provide information, if needed, to make the decision of whether a risk assessment should be required. In addition, we are proposing to amend the applicability language of 40 CFR § § 270.19, 270.22, 270.62, and 270.66 to allow a permit writer that has determined that an SSRA is necessary for a specific combustion unit to continue to apply the relevant requirements of these sections on a case by case basis and as they relate to the performance of the SSRA after the source has demonstrated compliance with the MACT standards. The basis for the decision to conduct the risk assessment must be included in the administrative record for the facility and made available to the public during the comment period for the draft permit. If the facility, or any other party, files comments on a draft permit decision objecting to the permitting authority's conclusions regarding the need for a risk assessment, the authority must respond fully to the comments. In addition, the risk assessment itself also must be included in the administrative record and made available to the public during the comment period for the permit. Any resulting permit conditions from the SSRA also must be documented and supported in the administrative record. We are proposing to add a paragraph to 40 CFR § 270.32 to address the inclusion of conditions and limitations in RCRA permits as a result of the findings of an SSRA. 5. Why Is EPA Not Providing National Criteria for Determining when an SSRA Is or Is Not Necessary? We are not proposing national criteria for determining when an SSRA is necessary. In the preamble to the April 1996 Phase I NPRM, we provided a list of guiding factors which we later updated and modified in the preamble to the September 1999 final rulemaking. See 61 FR 17372 and 64 FR 52842. We view these guiding factors as items that, because they may be relevant to the potential risk from a hazardous waste combustion unit, could be considered by a permitting authority when deciding if an SSRA is necessary. We did not, and do not, intend for them to be definitive criteria from which permitting authorities would make their decision. As we stated in 1999, we believed that the complexity of multi pathway risk assessments precluded the conversion of these qualitative guiding factors into more definitive criteria. Since that time, we have reaffirmed our belief that the decision process regarding SSRAs does not lend itself to the application of required national criteria. Most combustors may be characterized using one or more of the qualitative guiding factors we provided in 1999, but not all. These factors were not intended to be an exclusive list of considerations, nor do we believe that this decision is necessarily susceptible to an exclusive list of factors. The decision whether to require a risk assessment is inherently site specific, and permitting authorities need to have the flexibility to evaluate a range of factors that can vary from facility to facility. In addition, it is useful to recognize that as risk assessment science continues to mature, the factors may change in terms of relative importance and it may not be prudent to obligate permitting authorities to an exclusive list that could not be easily adjusted to keep pace with scientific advancements. In a study conducted by U. S. EPA Region 4, the guiding factors were used to rank 13 hazardous waste combustion facilities into high, medium and low risk potential groupings to ascertain if the factors could be used as a prioritization tool for determining whether or not an SSRA was necessary. The region found that all facilities evaluated exhibited a " high" level of Redline strikeout highlighting changes made during OMB review 303 concern with respect to at least one or more site specific characteristics relating to the guiding factors and that further analysis was required before the region could be assured that the source would operate in a manner that is adequately protective under RCRA. As a result, the region concluded that the guiding factors alone could not be used to make a protectiveness finding. The region's study, which is entitled Technical Support Assistance of MACT Implementation Qualitative Risk Check is available in the docket ( Docket # RCRA 2003 0016) established for today's notice. Moreover, simply determining whether a combustor fits a particular guiding factor does not address the complex interplay that may exist between the guiding factors. Nor, does it measure the level of relative importance of one factor over another. For example, is the proximity of potentially sensitive receptors more important than multiple on site emission points? For all of these reasons, we believe that codification of a list of factors would not be appropriate here. 6. What Is the Cement Kiln Recycling Coalition's SSRA Rulemaking Petition? On February 28, 2002, the Cement Kiln Recycling Coalition ( CKRC) submitted a petition for rulemaking " Petition Under RCRA § 7004( a) For ( 1) Repeal of Regulations Issued Without Proper Legal Process and ( 2) Promulgation of Regulations If Necessary With Proper Legal Process" to the Administrator containing two independent requests with respect to SSRAs. First, CKRC requested that we repeal the existing SSRA policy and technical guidance because it believes that the policy and guidance " are regulations issued without appropriate notice and comment rulemaking procedures." Second, CKRC requested that after we repeal the policy and guidance, " should EPA believe it can establish the need to require SSRAs in certain situations, CKRC urges EPA to undertake an appropriate notice and comment rulemaking process seeking to promulgate regulations establishing such requirements." As stated in the petition, " CKRC does not believe that these SSRA requirements are in any event necessary or appropriate." In addition, CKRC disagrees with our use of the RCRA omnibus provision as the authority to conduct SSRAs or to collect the information and data necessary to conduct SSRAs and further contends that the regulations associated with the omnibus provision are insufficient in detail. CKRC asserts that we have chosen to establish SSRA requirements through guidance documents. CKRC also raised the following three general concerns: ( 1) Whether an SSRA is needed for hazardous waste combustors that will be receiving a RCRA permit when the combustor is in full compliance with the RCRA boiler and industrial furnace regulations and/ or with the MACT regulations; ( 2) How an SSRA should be conducted; and ( 3) What is the threshold level for a " yes" or " no" decision that additional risk based permit conditions are necessary. In support of its petition, CKRC refers to Appalachian Power Co. v. EPA, 208 F. 3d 1015 ( D. C. Cir. 2000), GE v. EPA, 290 F. 3d 377 ( D. C. Cir. 2002), and Ethyl Corporation v. EPA, 306 F. 3d 1144 ( D. C. Cir. 2002). The petition is available in the docket established for today's proposed action. CKRC filed the petition filed under RCRA Section 7004( a), which provides that: " Any person may petition the Administrator for the promulgation, amendment, or repeal of any regulation under this Act. Within a reasonable time following receipt of such a petition, the Administrator shall take action with respect to the petition and shall publish notice of such action in the Federal Register, together with the reasons therefor." Redline strikeout highlighting changes made during OMB review 73 EPA does not consider the request to repeal EPA's guidance documents to be a valid petition under this section, since the documents are guidance documents, not regulations. Nonetheless, because CKRC has also petitioned the Agency to issue regulations, and to be responsive to issues raised by the regulated community, EPA has decided to use the procedure established in 40 CFR § 260.20 for section 7004 petitions to respond to both of CKRC's requests. EPA does not concede by relying on the section 7004( a) procedure that its guidance documents are regulations.

304 Shortly after receiving the petition, we conducted a preliminary evaluation of CKRC's concerns as stated in the petition. 73 We determined that any decision regarding the petition should be made in coordination with our development of the proposed Replacement MACT standards for Phase I sources and the proposed new MACT standards for Phase II sources. Thus, we decided that today's notice was the most appropriate vehicle to announce and request comment on our tentative decision concerning the petition. In the meantime, we believed that it was important to take certain measures to ensure that the SSRA policy and guidance were being used in the manner that we had intended. In an April 10, 2003 memorandum from Marianne Lamont Horinko, Assistant Administrator of the Office of Solid Waste and Emergency Response, to the U. S. EPA Regional Administrators, we took two of these measures. First, we requested that the regions review certain documents ( e. g., regional memoranda, policy and guidance documents, Memoranda of Agreement of Grant Workplans with the states) to determine if any contained misleading or incorrect information concerning the SSRA policy and technical guidance. If any were found to contain misleading or incorrect information, we requested that the region take immediate measures to clarify or correct the information. Second, we reiterated, in detail, the appropriate use of the SSRA policy and guidance for hazardous waste combustors, as well as the appropriate use of the RCRA omnibus authority as it relates to SSRAs. In a May 15, 2002 memoranda from Robert Springer, Director of the Office of Solid Waste, to the RCRA Senior Policy Advisors, we took the third measure to ensure proper application of the SSRA policy by our regional permit writers. In this memorandum, we instituted an EPA headquarters review process of future regional decisions concerning the need for an SSRA for hazardous waste combustion units seeking a RCRA permit determination. Specifically, we requested that the regions provide us with a written summary of the basis for any future decisions to conduct or not conduct an SSRA. It is our intention that the review process focus on whether or not permit writers have adequately supported their decisions. It is important to point out that because many of the decisions regarding SSRAs are now being made at the state level, we do not yet know how many regional SSRA decision summaries will be submitted for our review. Both the April 10, 2003 and May 15, 2003 memoranda are provided in the docket established for today's proposed action. EPA is in the process of an additional effort to ensure proper use of the guidance: we are reviewing the guidance documents themselves, and, to the extent we find language that could be construed as limiting discretion, we intend to revise the documents to make clear that they are non binding. CKRC indicated in its petition that, in its view, the documents contain language that Redline strikeout highlighting changes made during OMB review 305 could be construed as mandatory. While EPA does not necessarily agree, and believes that, in context, it is clear that the guidance in the documents is discretionary, EPA is nonetheless reviewing the documents to ensure that they are carefully drafted. After consideration of the petition, we have made a tentative decision to partially grant and partially deny CKRC's requests. Specifically, we are proposing to deny CKRC's request that we repeal the SSRA policy and guidance and we are proposing to grant CKRC's request in part by promulgating an explicit authority to require SSRAs on a site specific basis using notice and comment rulemaking procedures. We are requesting comment on our tentative decision. With respect to CKRC's first request that we repeal the SSRA policy and guidance, and in response to their specific concern of whether an SSRA is necessary for combustors that are in full compliance with the RCRA and/ or MACT regulations, we believe that SSRAs do serve a useful purpose and can be necessary even if a facility is in full compliance with the existing RCRA and/ or MACT technical standards. RCRA requires that all hazardous waste permits be protective of human health and the environment. As discussed in the preamble to the 1999 Phase I rulemaking, the existing RCRA incinerator and Boiler and Industrial Furnace ( BIF) regulations do not address the potential risk that may be posed from indirect exposures to combustor emissions. See 64 FR 52828, 52839 52842 ( September 30, 1999). Further, the technical requirements associated with the RCRA standards have not been updated to reflect changes in technology or science for a decade or more and, thus, may not be sufficiently protective with respect to the potential risk from direct exposures either. For example, our knowledge regarding the formation, control and toxicity of dioxin/ furans has vastly improved since the promulgation of the RCRA standards. Therefore, until such time that hazardous waste combustors comply with the MACT standards, SSRAs can serve a useful function in ensuring that RCRA combustor permits will be protective of human health and the environment. Moreover, even once the MACT standards are fully implemented for incinerators and BIFs, we believe that there may continue to be instances in which the permitting authority determines that additional protections are necessary ( e. g., where site specific conditions indicate that there may be a potential risk to a sensitive ecosystem or population), as was explained above in Section 2, Are SSRAs Likely to be Necessary After Sources Comply with the Phase I Replacement Standards and Phase II Standards?. See also, the explanations at 64 FR 52840 52841. Because there may continue to be a need for SSRAs at some level, we agree with CKRC that it would be appropriate to explicitly codify the authority to require SSRAs and SSRA based permit conditions, for the sake of regulatory clarity and transparency ( although we continue to believe that the RCRA omnibus provision provides sufficient authority to conduct SSRAs). EPA requests comment on the variety of site specific circumstances that might give rise to the need for an SSRA, and whether other mechanisms might exist to address those circumstances. As stated earlier, CKRC raised three general concerns, the first of which we discussed in the preceding paragraphs. The second concern relates to the technical recommendations that EPA has offered for conducting an SSRA. CKRC disagrees with our use of guidance, instead arguing that EPA's recommendations should have been issued through the notice and comment rulemaking process. We disagree that the Agency's technical recommendations either must or should be issued Redline strikeout highlighting changes made during OMB review 74 Permitting authorities, in some cases, have developed their own guidance methodologies responsive to the specific needs associated with their facilities. For example, North Carolina, Texas, and New York have each developed their own risk assessment methodologies. We think this flexibility employed in the field supports our judgment that risk assessment methodologies should not be codified.