[Federal Register Volume 59, Number 105 (Thursday, June 2, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13094]


[[Page Unknown]]

[Federal Register: June 2, 1994]


_______________________________________________________________________

Part III





Environmental Protection Agency





_______________________________________________________________________



40 CFR Parts 124 and 270




RCRA Expanded Public Participation and Revisions to Combustion 
Permitting Procedures; Proposed Rule
ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 124 and 270

[FRL-4889-1]

 
RCRA Expanded Public Participation and Revisions to Combustion 
Permitting Procedures

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) today proposes to 
amend its regulations under the Resource Conservation and Recovery Act 
(RCRA) governing the permitting of hazardous waste management 
facilities. This proposed rule expands the opportunities for public 
involvement by allowing public participation at an earlier point in the 
permitting process for all RCRA facilities, and during key permitting 
milestones. This proposed rule also amends and clarifies permit 
modification classifications pertaining to combustion facilities. 
Finally, this proposed rule amends the procedures for interim status 
combustion facilities during the trial burn period by making the 
procedures more equivalent to the procedures governing permitted 
facilities.

DATES: Comments on this proposed rule must be submitted on or before 
August 1, 1994.

ADDRESSES: Written comments on this proposal should be addressed to the 
docket clerk at the following address: U.S. Environmental Protection 
Agency, RCRA Docket (5305), 401 M Street SW., Washington, DC 20460. 
Commenters should send one original and two copies and place the docket 
number (F-94-PPCP-FFFFF) in the comments. The docket is open from 9 
a.m. to 4 p.m., Monday through Friday, except for Federal holidays. 
Docket materials may be reviewed by appointment by calling (202) 260-
9327. Copies of docket material may be made at no cost, with a maximum 
of 100 pages of material from any one regulatory docket. Additional 
copies are $0.15 per page.

FOR FURTHER INFORMATION CONTACT: RCRA Hotline at 1-800-424-9346 (in 
Washington, DC, call (703) 412-9810), or Patricia Buzzell at (703) 308-
8632, Office of Solid Waste, U.S. Environmental Protection Agency, 401 
M Street SW., Washington, DC 20460.

Supplementary Information:

Preamble Outline

I. Authority

II. Background

III. Section by Section Analysis

A. Expanded Public Participation Requirements for all RCRA 
Facilities
    1. Purpose of Public Involvement in Today's Rule
    2. Current Public Participation Requirements in the RCRA Permit 
Process
    3. Summary of Proposed Approach
    a. EPA's Approach to Public Participation
    b. Structure of Proposal
    c. Overview of Proposed Requirements
    4. Applicability of Public Involvement Requirements
    a. Equitable Public Participation
    b. Applicability of the Pre-application Meeting
    c. Applicability of the Public Notice at Permit Application
    d. Applicability of the Information Repository
    5. Detailed Discussion on the Proposed Public Involvement 
Requirements
    a. General Considerations Regarding Public Notices
    b. Requirements for the Pre-application Meeting
    c. Requirement for Public Notice at Permit Application
    d. Requirement for an Information Repository
B. Permit Modification Procedures in Section 270.42
    1. Purpose
    2. Background Summary
    3. Technical Corrections
    4. Unclassified Modifications
    5. Revisions to Appendix I of Sec. 270.42
    a. Structure of Today's Proposal
    b. Shakedown
    c. Trial Burn
C. Requirements Regarding the Trial Burn
    1. Purpose and Applicability
    2. Summary of the Proposed Approach
    3. Current Trial Burn Procedures
    a. Current Trial Burn Procedures for Permitted Combustion 
Facilities
    b. Current Trial Burn Procedures for Interim Status Combustion 
Facilities
    4. Discussion of Proposed Procedural Requirements for Trial 
Burns
    a. Submittal of Trial Burn Plans for Interim Status Facilities
    b. Approval of Trial Burn Plans for Interim Status Facilities
    c. Notice of Trial Burns
    d. Post Trial Burn Period at Interim Status Combustion 
Facilities
    e. Additional Trial Burns
    f. Denial of Permit Application After the Trial Burn

IV. Solicitation of Comments

A. Expanded Public Participation
    1. Equitable Public Participation
    2. Environmental justice
    3. Pre-application meeting--applicability
    4. Pre-application meeting--possible alternatives
    5. Pre-application meeting--notice requirements
    6. Public notice at permit application--applicability
    7. Public notice at permit application--responsibility
    8. Information repository
B. Requirements Regarding the Trial Burn
    1. Notices of Trial Burns
C. Cost Estimates
    V. State Authority
A. Applicability of Rules in Authorized States
B. Effect on State Authorizations
    1. Pre-HSWA Provisions
    a. Part 270--Hazardous Waste Permitting
    b. Part 124--Public Participation Requirements
    2. Procedures Applicable to pre-HSWA Provisions

VI. Regulatory Impact Analysis Pursuant to Executive Order 12866

A. Cost Analysis
    1. Expanded Public Involvement Opportunities
    2. Modification of the Permitting Process
    a. Direct Costs
    b. Other Effects
B. Summary of Benefits
    1. Expanded Public Involvement Opptortunities
    2. Modification of the Permitting Process
C. Regulatory Flexibility Act
    1. Small Entity Impacts of Expanded Public Participation 
Requirements
    2. Small Entity Impacts of Revised Requirements for ``Data in 
Lieu of'' a Trial Burn
    3. Small Entity Impacts of Requirements Following a Trial Burn 
Failure
D. Enhancing the Intergovernmental Partnership
E. Paperwork Reduction Act

I. Authority

    These regulations are proposed under the authority of sections 
2002, 3004, 3005 and 7004(b) of the Solid Waste Disposal Act, as 
amended by the Resource Conservation and Recovery Act, as amended by 
the Hazardous and Solid Waste Amendments of 1984.

II. Background

    Section 3004 of the Resource Conservation and Recovery Act (RCRA), 
requires owners and operators of treatment, storage, and disposal 
facilities to comply with standards ``necessary to protect human health 
and the environment.'' These standards are implemented generally 
through interim status standards applicable to facilities that achieve 
interim status under RCRA section 3005(c), and through permits that are 
issued by EPA or under authorized State programs. EPA continuously 
strives to improve the hazardous waste management standards in order to 
ensure protection of human health and the environment.
    The role that combustion plays in hazardous waste management has 
changed dramatically over the last decade and a half. With the 
recognition that land disposal of hazardous waste could present long 
term pollution problems, larger use of combustion ensued. However, 
waste treatment alone will not totally solve the problems associated 
with hazardous waste disposal. Therefore, EPA decided to take a fresh 
look at how to achieve a fully integrated waste management program that 
gives source reduction its proper emphasis.1
---------------------------------------------------------------------------

    \1\ While the Agency is committed to source reduction as its 
primary approach to waste management, it believes that there will 
continue to be a role for waste combustion, provided it is done 
safely and in compliance with federal regulations. Combustion is a 
proven waste treatment technique to address many types of wastes.
---------------------------------------------------------------------------

    To this end, on May 18, 1993, the Agency announced its Draft 
Strategy on Waste Minimization and Hazardous Waste Combustion. EPA 
issued the strategy in draft form as the starting point for the debate 
on what source reduction/recycling actions and regulatory changes the 
Agency should pursue. The Agency has been aggressive in involving all 
the stakeholders as part of the national dialogue on these national 
policy questions. In addition, since EPA and the States are partners 
and co-regulators in hazardous waste management, any evaluation of the 
role of waste minimization and hazardous waste combustion in the 
hazardous waste management system must be a joint federal and state 
effort. Thus, EPA and the States have used, and will continue to use, a 
joint EPA/State committee to further develop the national strategy.
    In the context of a national dialogue on waste minimization and 
hazardous waste combustion, the Agency has identified a number of 
specific actions it would pursue to ensure that existing combustion 
facilities operate safely and without unacceptable risks to human 
health and the environment. These actions include:

 Aggressive use of waste minimization measures in permitting 
and enforcement efforts that involve generators of combustible waste, 
as well as incinerators and boilers and industrial furnaces (BIFs);
 Ensuring that a comprehensive risk assessment, including 
indirect risk, is conducted at each facility site;
 Use of omnibus permitting authority to include dioxin/furan 
emission limits and more stringent particulate matter standards in new 
permits, where necessary to protect human health and the environment; 
and
 Giving low management priority to permitting any new 
incinerator and BIF capacity, unless the new facilities would replace 
and be a significant improvement over existing capacity; in other 
words, the draft strategy makes interim status combustion facilities 
the highest permitting priority, in terms of processing permits, in 
order to bring these facilities under more comprehensive environmental 
controls.

    In addition, the draft strategy calls for development of mechanisms 
to facilitate increased public participation in the permitting process. 
By developing such mechanisms, EPA hopes to allow the public early 
access to information about the facility and an opportunity to 
participate in permitting decisions regarding hazardous waste storage, 
treatment, or disposal facilities (TSDFs) that may affect their 
communities.
    By providing citizens an enhanced opportunity to participate in 
facility permitting, the Agency is striving to give citizens more input 
into decisions about facilities that may impact their communities. This 
may be particularly so in low income or minority communities where the 
lack of this opportunity has been felt strongly. Consistent with the 
Agency's efforts to ensure environmental justice, EPA intends that this 
rulemaking will give people in such communities increased opportunity 
to affect RCRA permitting decisions.
    The draft strategy has many components and implementing all of its 
aspects will take time. Today's notice is the first regulatory action 
that EPA has taken under the draft strategy; it addresses public 
participation and several improvements to the RCRA permitting program 
that EPA had envisioned prior to the development of the draft strategy. 
Specifically, EPA proposes to: (1) Expand opportunities for timely and 
effective public involvement in the permitting process for all types of 
units; (2) improve the regulations pertaining to permit modifications, 
specifically, to clarify combustion modification classifications; and 
(3) align certain interim status requirements for combustion units with 
the more stringent permit standards for new units, particularly with 
regard to trial burns. Although the Draft Waste Minimization and 
Combustion Strategy focuses on combustion units, many of the 
requirements EPA is proposing today are more encompassing and apply to 
all RCRA facilities.
    Additional efforts are underway to continue to improve EPA's 
hazardous waste management standards and to implement other components 
of the Agency's Draft Waste Minimization and Combustion Strategy. 
Today's proposed rule is only one piece of an integrated and 
comprehensive set of regulatory, non-regulatory, and guidance materials 
intended to support the Agency's Draft Waste Minimization and 
Combustion Strategy.
    EPA has taken administrative steps to address the section of the 
draft strategy that discusses the Agency's permit denial and appeals 
process. In particular, the draft strategy indicates that EPA will 
evaluate ways to limit the burning of hazardous waste in interim status 
units during the administrative appeal of a permit denial, prior to a 
final decision. EPA considered a number of options for implementing 
this aspect of the draft strategy and selected one that could be 
effected immediately.
    The Agency issued a directive under Administrator Browner's 
signature, on March 16, 1994, to prioritize and expedite the review by 
the Environmental Appeals Board (EAB) of Federal RCRA permit denials. 
Under the procedures set forth in the directive, entitled Expedited 
Administrative Review of Appeals of RCRA Permit Denials Filed by 
Interim Status Hazardous Waste Combustion Facilities, the Administrator 
directed the EAB to take final action on any combustion permit denial 
no later than 90 days from the receipt of a petition for review. EPA 
believes that these procedures will promote the draft strategy's goal 
of limiting burning of waste during the potentially lengthy appeals 
process, during which interim status facilities whose permits were 
denied were entitled to continue operating under interim status, 
without infringing upon important rights of appeal.

III. Section by Section Analysis

A. Expanded Public Participation Requirements for All RCRA Facilities

1. Purpose of Public Involvement in Today's Rule
    The purpose of this section of the proposed rule is to enhance 
public involvement in the RCRA permit process by improving and 
increasing the opportunities for public participation. The permitting 
agency should carry out these new opportunities concurrently with the 
existing permitting process. Today's proposed requirements should not 
delay the process.
    ``Public participation'' is part of the process leading to a final 
EPA or State permit decision; it provides an opportunity for the public 
to express its views to the permitting authority and the applicant, and 
enables both to give due consideration to the public's concerns. 
Today's proposal will establish procedures to promote better and more 
timely information-sharing, not only between the public and the 
permitting agency, but among the facility applicant, EPA (or the State) 
and the public. In particular, the rule places new responsibilities on 
the permit applicant. The Agency believes that the permit applicant, 
who is responsible for initiating the permit process, is a key 
participant in the public participation process because it is the 
permit applicant who must interact and operate within the community.
    Although this portion of today's proposal applies to all applicants 
for new RCRA permits, certain aspects of the proposal specifically 
respond to the Agency's Draft Waste Minimization and Combustion 
Strategy (see the Background Section of today's preamble for further 
discussion of the draft strategy). As noted above, one component of the 
draft strategy specifically calls for greater and earlier public 
involvement in the hazardous waste permitting process. Accordingly, EPA 
proposes to amend the hazardous waste regulations to provide for 
earlier public involvement in the permitting process and, in the case 
of combustion units, to ensure public involvement at the trial burn 
plan stage. For example, today's regulations propose specific 
provisions to: solicit public participation at the beginning of the 
permit process for all new and interim status facilities; maintain open 
lines of communication with the public throughout the permit process; 
and increase public involvement with regard to trial burn plans at 
combustion facilities. These provisions will provide the public an 
expanded role in the permitting process by promoting community 
participation and input at all decision-making levels. These provisions 
will also help the permitting authority to better address public 
concerns during the permitting process and foster continued community 
involvement after facilities are permitted. These procedures are 
consistent with, and in furtherance of, the congressional mandate, 
expressed in RCRA section 7004(b)(1), to ``encourage'' and ``assist'' 
public involvement in implementation of the permit program.
    2. Current Public Participation Requirements in the RCRA Permit 
Process
    Today's proposed public involvement requirements build upon the 
current RCRA public participation process. EPA does not intend for the 
proposed provisions to replace or delete the existing public 
participation requirements in 40 CFR part 124 and 40 CFR 270.42; these 
requirements form the foundation for public involvement activities 
during the RCRA permitting process.
    Four steps make up the existing RCRA permitting decision process: 
(1) Receipt and review of the permit application; (2) preparation of 
draft permit or decision to deny; (3) public comment period; and (4) 
final permit decision. EPA regulations currently require public 
involvement activities during two of the four steps. The first step in 
the decision process begins when the permitting agency receives the 
permit application from the facility. Under the existing federal rules, 
no direct public involvement activities occur at this stage; however, 
the permitting agency begins to assemble a mailing list of appropriate 
government agencies and individuals, including interested members of 
the public, as required by Sec. 124.10(c). The permitting agency uses 
the list to distribute information about meetings, hearings, and 
available reports and documents later in the permit process. In 
addition, the permitting agency may periodically publicize the 
existence of this list and solicit additions to it.
    The second step in the permitting decision process occurs after the 
regulatory agency completes review of the permit application. At this 
point, the regulatory agency decides either to tentatively deny the 
permit application or to prepare a draft permit for the facility. The 
third step occurs once the regulatory agency makes its preliminary 
decision about the permit application. Under the existing regulations, 
the public has its first formal participation opportunities in this 
step. If the permitting agency prepares a draft permit, it must give a 
formal public notice that the draft permit is available for public 
review and comment. In addition, the permitting authority must formally 
notify the public if it plans to deny a permit application. In both 
cases, the permitting agency must place the notice in a major local 
newspaper, broadcast it over local radio stations, and send it to all 
persons on the mailing list. A 45-day public comment period on the 
draft permit or notice of intent to deny the permit follows the 
publication of the notice. The comment period provides the public with 
an opportunity to comment, in writing, on conditions contained in the 
draft permit or notice of intent to deny. The regulatory agency may re-
open or extend the comment period if, during the comment period, it 
receives substantial new questions or issues concerning the draft 
permit decision. In addition, the public may request that the 
permitting agency hold a public hearing on the draft permit decision. 
If the regulatory agency holds a public hearing, it must give the 
public a 30-day advance notice of the time and place of the hearing.
    The final permit decision is the fourth step in the permitting 
decision process. After the public comment period closes, the 
regulatory agency reviews and evaluates all written and oral comments 
and, then, issues a final permit decision. At this time, the regulatory 
agency must send a notice of decision, together with a written response 
to all significant comments, to all persons who submitted public 
comments or requested notice of the final permit decision (in 
accordance with Sec. 124.17). The response to comments summarizes all 
significant comments received during the public comment period and 
explains how the permitting authority addressed or rejected the 
comments in the final permit decision. The permitting agency must place 
the written response to comments in the Administrative Record 
established at the regulatory agency.
3. Summary of Proposed Approach
    a. EPA's approach to public participation. Today's amendments 
introduce provisions for new public notices and meetings in the permit 
process. Through this approach, EPA intends to open opportunities for 
public participation earlier in the permit process. Through earlier 
public involvement and improved public awareness, today's requirements 
will result in more meaningful and interactive public participation. At 
the same time, these amendments are flexible and allow permitting 
agencies and facilities to tailor public participation activities 
according to facility-specific circumstances.
    By expanding public involvement opportunities, the proposed rule 
should streamline the permitting process, since public issues will be 
raised and addressed earlier in the process. At present, formal public 
involvement in the permitting process does not begin until the draft 
permit stage. By this point in the process, the permitting authority 
and the applicant already have discussed crucial parts of the Part B 
application; thus, the public often feels that most major decisions on 
the permit are made before public input. Under today's proposed 
requirements, the permitting authority will be focusing discussion and 
dialogue on the permit application earlier in the permitting process. 
EPA wishes to encourage the public to participate in these earlier and 
expanded opportunities for involvement, fully raising issues and 
concerns early so they may be evaluated and responded to. Such early 
and meaningful dialogue should result in an expeditious permit 
decision.
    The earlier public involvement opportunities proposed today allow 
the public the opportunity to raise issues before many decisions are 
made. This then allows the applicant and the permitting authority to 
address citizen concerns. The idea of promoting earlier public 
involvement in the permitting process is also consistent with 
recommendations put forth by the RCRA Implementation Study and a number 
of outside sources (e.g., the Keystone Center, environmental groups, 
and business trade associations).
    EPA considered a variety of approaches in developing today's 
proposal. After careful evaluation, EPA believes that the proposed 
requirements will meet the Agency's goal of providing increased 
opportunity for public involvement. Today's proposed requirements would 
not, of course, preclude additional public involvement activities 
beyond the regulations, where appropriate on a facility-specific basis, 
such as alternative public outreach activities, supplementary meetings, 
or fact sheets. At RCRA locations, in fact, permitting agencies and 
facilities have implemented a variety of public involvement activities 
that have helped affected communities to understand and participate in 
permit decision-making. EPA has published a practical how-to guidance 
for regional permit writers and public involvement staff, entitled the 
RCRA Public Involvement Manual (September 1993/ EPA 530-R-93-006). In 
the guidance, EPA recommends public involvement activities to encourage 
productive public participation in a variety of community and facility 
situations. Additional examples of ways to expand public involvement, 
beyond what is required by today's proposed regulations, are included 
in section 5.a: General Requirements for Providing Public Notice.
    Before drafting this proposal, the Agency contacted a variety of 
interested parties involved in public outreach activities. EPA had 
discussions with a range of groups, including: Public interest groups, 
industry, state and local government, Indian tribal representatives, 
trade associations, and public involvement specialists from EPA regions 
and Headquarters. These groups submitted valuable comments and 
suggestions to the Agency on how to expand and enhance public 
involvement. The Agency also held an informal meeting on October 13, 
1993, with a small, yet diverse group of stakeholders to receive their 
input and to facilitate the exchange of information concerning greater 
opportunities for public participation. This meeting was a starting 
point for efforts to improve public involvement in the permitting 
process; EPA would like to continue these discussions beyond this 
proposal.
    Today's rule is consistent with, and builds upon, the Agency's 
final Public Participation Policy, published in the Federal Register at 
46 FR 5740, January 19, 1981. This policy established a uniform set of 
guidelines concerning public participation in all EPA programs. The 
guidelines encouraged EPA programs to provide a consistent level of 
public involvement during EPA activities, including State and local 
activities funded or delegated by EPA. The 1981 policy embodied many 
public comments on improving the process and outlined new steps that 
the Agency should take to ensure that members of the public are given 
earlier and better opportunities to be involved in EPA decision-making. 
Among other things, the policy emphasized public access to information 
as a critical component to successful public participation programs, 
and encouraged the use of a variety of outreach activities throughout 
the permit process so that the public can be kept up to date on matters 
of concern. Today's rule builds upon these policy statements and, in 
many cases, strengthens them through proposed regulatory language. For 
example, EPA is proposing regulatory requirements to provide the public 
with the opportunity to attend a public meeting at the outset of the 
permitting process. Additional public notices, including improved 
notification activities, are required at new points within the permit 
process. These proposed notices will provide information to the public 
at the beginning of decision-making processes so that the public will 
have adequate time to respond. Finally, today's rule adopts the ideas 
suggested by the policy on ``depositories'' and incorporates them into 
a flexible tool called the information ``repository.''
    In a separate effort, the Agency is reviewing its regulations that 
impose restrictions on siting RCRA hazardous waste treatment, storage, 
and disposal facilities (TSDFs). The Agency's current regulations 
impose restrictions on siting these facilities in flood plains and 
seismic zones. EPA believes that there may be a need for enhanced 
national minimum standards as required under section 3004(o)(7) of 
RCRA. Consistent with Executive Order 12898 on environmental justice, 
EPA is reviewing existing and potential standards for siting hazardous 
waste TSDFs. As a part of this review, the Agency intends to look at 
siting TSDFs in proximity to populations and institutions such as 
schools, hospitals, and prisons, to determine whether there is a need 
to consider (and the appropriate way to do so) such factors in siting 
these facilities.
    In conducting the review, EPA will recognize the appropriate role 
of State and local governments in land use planning and facility 
siting. EPA does not intend to preempt this role. Rather, it is EPA's 
intention to review the current procedures and requirements to identify 
whether any additional measures are necessary to protect human health 
and the environment.
    b. Structure of proposal. In expanding the public involvement 
activities within the permit process, EPA proposes to place these 
requirements within 40 CFR parts 124 and 270. EPA placed the general 
requirements for public participation within Part 124 Subpart B--
Specific Procedures Applicable to RCRA Permits. Subpart B is an already 
established section, which does not contain any regulations at this 
time. EPA proposes to place public involvement requirements within 
Subpart B to ensure a clear and orderly integration of new RCRA 
permitting requirements into part 124. Please note that other sections 
of this rule will address additional public involvement requirements 
during the trial burn phase within part 270. The flow chart shown in 
Figure 1 indicates the points in the permitting process where the 
proposed additions to public involvement activities would occur.

BILLING CODE 6560-50-P

TP02JN94.002


BILLING CODE 6560-50-C
    To avoid any potential confusion, it should be noted that 
facilities operating under interim status would not lose this status if 
they do not follow the procedures the Agency is proposing in part 124 
or 270. However, the permitting agency may choose to pursue an 
enforcement action, not connected to the termination of interim status 
provisions, including a requirement that the application be resubmitted 
or the notice be republished, if a facility fails to comply with the 
requirements. Similarly, for a new facility, the permitting agency's 
recourse would be to require that the application be resubmitted or the 
notice republished under the correct procedures, rather than permit 
denial.
    c. Overview of proposed requirements. EPA first proposes that a 
permit applicant must give notice and hold at least one informal public 
meeting before submitting a RCRA permit application to EPA or the 
State. EPA believes this requirement will address the public concern 
that public involvement occurs too late in the RCRA permit process. One 
purpose of the meeting is to inform the affected community of the 
facility's proposed operations and its intent to apply for a RCRA 
permit in the near future. Another important purpose of the meeting is 
for the applicant to solicit and receive public input. EPA believes 
that dialogue between the applicant and the public, before the 
permitting process is initiated with the permitting authority, will 
allow the public to raise important community issues early in the 
process, and will promote discussion between the public and the persons 
seeking the permit. In this way, the public will have direct input to 
facility owners or operators; at the same time, facility owners or 
operators can gain an understanding of public expectations and attempt 
to resolve public issues well in advance of the draft permit. For 
example, facility owners or operators could address public concerns 
through the permit application itself, by changing the proposed design 
or operation of the facility, or through subsequent public 
interactions.
    The notice and meeting also will assist in the generation of a 
mailing list of interested citizens. This list is a currently required 
mechanism used in the distribution of notices and information 
concerning the facility at points throughout the permit process. The 
permitting authority is responsible for developing a representative 
mailing list for public notices under 40 CFR 124.10 (see also preamble 
Section A.2: Current Public Participation Requirements in the RCRA 
Permit Process). Section 124.10 specifies the timing and content of 
such mailing lists. The pre-application meeting will assist the 
permitting authority in identifying people or organizations to include 
on the list so that it is complete and represents everyone who 
demonstrates an interest in the facility and the permit process. The 
permitting authority may develop the mailing list, in part, from the 
pre-application meeting attendance list. It has been EPA's experience 
that mailing lists often are not fully developed until the permitting 
authority issues the draft permit for public comment. Since EPA seeks 
to increase public participation earlier in the process, generation of 
a mailing list should precede such activities.
    Second, EPA is proposing that the permitting authority provide 
public notice upon receiving a permit application. Under this 
provision, the permitting authority would notify the public of proposed 
facility operations at a much earlier stage than 40 CFR part 124 
currently requires. Existing Sec. 124.10 requires the permitting 
authority to provide public notice of a facility's intention to obtain 
a RCRA permit, but only after the permitting authority has received and 
reviewed the application and proposes to grant or deny the permit. Due 
to the volume and complexity of information contained in a permit 
application, this process may take several years to complete from the 
time a permit application is initially submitted. (See Figure 1.) For 
some facilities, the public has expressed a concern that critical 
decisions about the facility already have been made by the time the 
permitting authority proposes the draft permit decision. A requirement 
for a notice at the permit application stage would allow members of the 
public to review a permit application at the same time as the 
permitting agency and inform the agency of any concerns or comments 
they may have.
    In addition to involving the public earlier in the RCRA permitting 
process, the proposed provisions will also allow the public to get an 
overview of the RCRA application and permitting process, and the parts 
played by the permitting authority and the facility owner and operator 
in that process. Under the proposed rule, the permit applicant conducts 
the pre-application meeting since it is the applicant who initiates the 
permit process by submitting a permit application. The permitting 
authority issues the notice when it receives the permit application 
from the facility since, at that time, EPA or the State will use its 
authority to begin review of the permit application.
    Table 1 below summarizes the applicability of the pre-application 
and notice of application provisions in today's rule. 

 Table 1.--Proposed Requirements for the Pre-Application Meeting and the
                         Notice of Application                          
------------------------------------------------------------------------
   Facility stage in          Facility pre-          Agency notice of   
     permit process        application meeting          application     
------------------------------------------------------------------------
New Facility...........  Yes....................  Yes.                  
Interim Status.........  Yes....................  Yes.                  
Permit Renewal.........  No.....................  Yes.                  
Permit Modification....  No.....................  No.                   
Post-Closure Permit....  No.....................  No.                   
------------------------------------------------------------------------

    Third, the Agency is proposing a provision that will allow the 
Director the discretion to require the facility to establish an 
information repository. An information repository is a central 
collection of documents, which could include reports, summaries of 
data, studies, plans, etc., that the regulatory agency considers in 
evaluating the permit. The collection would be set up by the applicant 
in a convenient and accessible location. An information repository, 
similar to those required under Superfund and proposed under the RCRA 
Subpart S corrective action regulations of 40 CFR part 264 (see 55 FR 
30798, July 27, 1990), would allow the interested public greater access 
to information, such as the permit application, and other material 
relevant to the permit decision process. To maintain flexibility in the 
permit process, and in recognition that information repositories may 
not be necessary for all facilities, the Director will use his or her 
discretion, based primarily on the level of public interest, in 
requiring a facility to establish an information repository. In 
situations where public interest is high, a locally established 
repository may benefit a community by providing convenient and timely 
access to important information about a local facility. If EPA or an 
authorized State decides to require a facility to establish a 
repository, it should be noted that only one repository is needed to 
fulfill the intent of today's proposed requirement, whether the 
permitting process for that facility is EPA-lead, State-lead, or joint 
federal-state.
4. Applicability of Public Involvement Requirements
    a. Equitable public participation. The Agency believes that 
affected members of the community should have an equal opportunity to 
participate in the permitting process. EPA considers the community to 
be all residents in the vicinity of the facility who might be most 
affected by the facility's operations. The Agency recognizes that local 
communities may be composed of a diverse group of people who may not 
share English as a primary language. Therefore, for a notice to be 
effective, the Agency is requiring under proposed Sec. 124.30 that both 
the facility and the permitting authority make all reasonable efforts 
to communicate with the various segments within the community. 
Multilingual public notices and fact sheets may be necessary for some 
communities, for example, communities that contain a significant non-
English speaking population. Likewise, interpreters may need to be 
provided at public meetings and hearings. EPA understands that 
developing multilingual notices and fact sheets, and providing 
translators, could be difficult to implement depending on the size, 
composition, and diversity of the community. Also, resource constraints 
could be a factor when determining what is a ``reasonable effort'' to 
communicate effectively with the public. EPA would like to solicit 
comments on how the requirements proposed in Sec. 124.30 could be 
implemented.
    a.1. Agency activities dealing with environmental justice.
    The Agency is placing heavy emphasis on environmental justice 
issues across all environmental programs. The Agency has stated 
repeatedly that environmental justice is one of EPA's top priorities; 
all offices should consider environmental justice issues during 
decision-making.
    In December 1993, the Office of Solid Waste and Emergency Response 
(OSWER) established an Environmental Justice Task Force to broaden 
discussion of these issues and formulate short and long-term 
recommendations for how OSWER can integrate the Agency's environmental 
justice goals and objectives into all of OSWER's programs and 
activities. Specifically, the task force has examined ways that OSWER 
can better address the concerns of minority populations and low-income 
populations that are affected by OSWER-regulated facilities and may 
face disproportionately high and adverse human health or environmental 
effects. The task force has included representatives from all OSWER 
program and administrative offices, as well as other offices throughout 
the Agency that have an interest in OSWER's programs and activities. 
The task force has met with representatives from citizen groups, 
industry, Congress, and state and local governments to ensure that 
stakeholders have an opportunity to influence OSWER's environmental 
justice strategy. The draft recommendations emerging from OSWER's 
Environmental Justice Task Force are consistent with and supportive of 
the Agency's environmental justice goals and objectives, as well as the 
President's Executive Order on Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations.
    The Agency believes that this rule presents significant 
opportunities to be responsive to environmental justice concerns in 
relation to specific OSWER-regulated facilities. The measures 
recommended in this proposed rule would help enhance the level of 
public participation in the permitting process and thereby provide 
minority populations and low-income populations with a greater voice in 
decision-making and a stronger opportunity to influence permit 
decisions early in the process. In today's proposal, the Agency would 
like to solicit comments on ways to incorporate environmental justice 
concerns into the RCRA public participation process.
    In addition to public participation, some of the key environmental 
justice issues for the RCRA permitting program include: (1) The siting 
of hazardous waste facilities; (2) the manner in which EPA should 
respond when confronted with a challenge to a RCRA permit based on 
environmental justice issues; and (3) environmental justice concerns in 
corrective action cleanups. The Agency requests comments on these 
aspects of the RCRA program in order to help identify the need for 
additional rulemaking or policy guidance.
    The Agency has also begun to focus on how EPA's programs can take 
account of the ``cumulative risk'' and ``cumulative effects'' 
associated with human exposure to multiple sources of pollution. 
Although the Agency does not expect to address these issues in this 
rulemaking, EPA would like to solicit comment on suggested 
methodologies and procedures for undertaking this type of analysis.
    With regard to the siting of a RCRA facility, EPA has in the past 
focused on geological factors to be considered when siting a facility, 
but has not undertaken a concerted effort to address environmental 
justice issues associated with the siting of a hazardous waste 
facility. The draft final report of the OSWER Environmental Justice 
Task Force recommends that the Agency compile a national summary of 
existing State, tribal, and local government requirements for siting 
with regard to environmental justice. The draft report also recommends 
that the Agency develop guidance for State, tribal, and local 
governments on how to best site a hazardous waste facility in the light 
of environmental justice concerns. In developing this guidance, the 
Agency would look to existing State and local requirements and would 
consult with a wide range of public and private stakeholders. EPA has 
placed the OSWER Environmental Justice Task Force Draft Final Report, 
April 25, 1994, into the docket for this proposed rule. The Agency is 
soliciting comments on the recommendations in the draft final report, 
as well as on any additional steps that the Agency might wish to 
consider in order to respond to environmental justice concerns 
associated with the siting of RCRA facilities.
    EPA is also interested in exploring appropriate responses when 
confronted with a challenge to a RCRA permit based on environmental 
justice concerns. This issue has arisen in the context of recent 
challenges under Title VI of the Civil Rights Act alleging that federal 
grants allocated to States to support State RCRA permit programs are 
being administered in a discriminatory manner. The draft report of the 
OSWER Environmental Justice Task Force recommends that the Agency first 
seek to mediate appropriate resolutions among affected citizens, the 
State, and the permittee. Where necessary and prudent, the task force 
also proposes that the Agency explore ways of using risk and/or health 
assessments to determine whether the affected community would face 
unacceptable human health or environmental effects if the permit were 
issued. EPA requests comment on these recommendations as well as on the 
relationship of Title VI to RCRA permitting and EPA's administration of 
state grants.
    The Agency would also like to solicit comments on ways to 
incorporate environmental justice concerns into the RCRA corrective 
action program. The OSWER Environmental Justice draft task force report 
recommends that the Agency examine the current priority-setting method 
for the cleanup of RCRA corrective action sites to determine whether 
this system adequately addresses environmental justice concerns. The 
task force has also recommended that environmental justice policy 
governing cleanup actions at RCRA corrective action facilities be 
consistent with the policy implemented under the Superfund program. The 
Agency would like to receive responses to these proposals as well as 
additional options under the RCRA corrective action program.
    a.2. The relationship of today's rule with Indian Policy. 
Currently, EPA has the responsibility for ensuring the implementation 
of the Subtitle C hazardous waste program on Indian lands. This 
includes the issuance of hazardous waste permits. However, consistent 
with EPA's Indian Policy of 1984, the Agency will look directly to, and 
work with, Tribal governments in determining the best way to implement 
these proposed public involvement requirements in Indian country. This 
Indian policy recognizes the sovereignty of Federally-recognized Tribes 
and commits EPA to a government-to-government relationship with these 
Tribes.
    b. Applicability of pre-application meeting. The requirements for 
the pre-application meeting would pertain only to new permit 
applications, i.e., the initial permit applications submitted by either 
new or interim status facilities. Therefore, the proposed pre-
application meeting requirements would not affect facilities that are 
submitting a permit renewal application under Sec. 270.51 or applying 
for a permit modification under Sec. 270.42. The additional 
requirements would not apply to cases where a facility submits a permit 
renewal application, since information concerning the facility would 
have been previously available to the public throughout the life of its 
operation. The facility would have completed the permit process and 
conducted public involvement activities, usually through the permit 
modification requirements. For example, the public will have had access 
to the administrative record for the facility, and the permitting 
authority already would have developed a mailing list for the facility.
    Furthermore, EPA is proposing today in Sec. 124.32(a) that the 
permitting authority provide public notice when a renewal application 
is submitted. This will provide the public an opportunity to further 
review the state of operations at the facility, and be aware that the 
previously approved permit is expiring. The current opportunities for 
public involvement throughout the duration of a facility's permit 
should be sufficient to keep the public informed of the facility's 
activities. No change can occur to any permit without the public, at a 
minimum, being notified (see Sec. 270.42 modification procedures). EPA 
would like to request comments on whether these current opportunities 
are indeed sufficient, or whether the pre-application meeting 
requirements should apply to renewal permits.
    Similarly, EPA does not believe the addition of a pre-application 
meeting requirement is necessary for requested permit modifications. A 
facility proposing changes to its permit must apply for a permit 
modification under Sec. 270.42. Existing permit modification 
requirements have established public involvement procedures that must 
be followed by the permitting authority and the facility before the 
final decision. These requirements are comparable to those proposed 
today for permit applications submitted by new and interim status 
facilities. For example, significant permit modifications, called class 
2 or class 3 modifications, require a public meeting at the initiation 
of the permit modification process to alert the public to changes the 
facility is proposing to make. Requiring an additional public meeting 
would be redundant.
    EPA conducted a preliminary overview of State regulations 
containing public involvement requirements that could potentially 
overlap with today's pre-application requirements. Approximately a 
dozen States have siting permit regulations that contain public 
participation requirements, apart from RCRA requirements. The state 
siting requirements could overlap with the pre-application meeting 
requirement proposed today. For example, the two permit processes, 
i.e., for siting and RCRA permits, could share similar public 
involvement mechanisms.
    EPA believes that it is important for the facility to host an 
informal and informational pre-application meeting with the public. 
This meeting should focus on the operating requirements for the permit, 
including (1) whether the facility should operate and (2) suggestions 
on how the facility should operate to protect human health and the 
environment. The informal atmosphere of the meeting should encourage 
dialogue between the public and the facility, addressing questions, 
such as the need for the facility, the proposed facility design, waste 
management practices, and safety considerations.
    On the other hand, the public meetings required by State siting 
regulations are more formal and may be hosted by the State rather than 
the facility (although state siting regulations differ regarding which 
party is responsible for conducting the siting meeting). The focus of 
the siting meeting is also different than a pre-application meeting, 
usually examining such factors as the physical location of the proposed 
facility, including local land-use issues, location sensitivity and 
suitability.
    In addition, there may be a large gap in time between the public 
siting meeting (for the dozen states with public involvement siting 
requirements) and the pre-application meeting. If a significant period 
of time were to elapse between the siting meeting and the actual 
commencement of the RCRA permitting process, then the issues raised at 
the siting meeting may not be fresh in the public's mind, or the public 
may not have the opportunity to raise new issues or potential solutions 
until later in the process.
    Because the goals of each meeting are typically different, i.e., a 
decision for whether a new facility is located at a particular site 
versus a decision on whether a facility should operate and how a 
facility could operate to protect human health and the environment, EPA 
is not proposing today to allow siting meetings to automatically 
substitute for the pre-application meeting. Some of the same issues may 
come up in either public meeting; however, this should not deter the 
public from providing input at both meetings. Of course, if a State's 
requirements for siting meetings meet the goal of today's proposal for 
a facility-led pre-application meeting, particularly in terms of 
opening a dialogue between the applicant and the community, then they 
would probably fulfill authorization requirements. In this case, the 
State would not have to require separate pre-application meetings. 
Refer to Section V, State Authority, of this preamble for further 
information on flexibility within the State authorization process.
    EPA evaluated the option of allowing State siting meetings to 
substitute for the pre-application meeting, and, for the reasons 
discussed above, decided not to include it in today's proposal. 
However, the Agency is requesting comments on this issue. Specifically, 
the Agency would like to hear comments on reasons for or against 
allowing State siting meetings to automatically substitute for the pre-
application meeting.
    c. Applicability of the public notice at permit application. The 
requirements for the permitting authority to provide public notice when 
it receives a permit application, like the pre-application meeting 
requirement, would not apply to permit modifications, because similar 
requirements already exist for both class 2 and class 3 permit 
modifications that would make the requirement redundant. Specifically, 
under Sec. 270.42 (b)(2) and (c)(2), the permittee must send a notice 
of the modification request to all persons on the facility mailing list 
and publish the notice in a major local newspaper. The notice is 
required to give, among other things, the location where copies of the 
modification request and any supporting documents can be read and 
copied. EPA believes that this requirement effectively substitutes for 
the public notice at application in the case of permit modifications.
    Unlike the pre-application meeting requirement, the public notice 
requirement will apply to permit renewals. A public notice for permit 
renewals is appropriate because the renewal application may be 
significantly different from the original permit application, 
warranting early public involvement. For example, facilities may decide 
to propose major changes, such as addition of a new unit, at the time 
of permit renewal, separate from any modifications processed during its 
original permit. In this situation, the results would be an application 
that is new in certain key respects. The permitting authority should 
give the public the same notification as it would for a new permit 
application, even though the public may already be familiar with the 
general scope of operations at the facility.
    In addition, since permit renewals generally occur 5 to 10 years 
after a facility is permitted and operating, a notice of the permit 
renewal alerts the public to the fact that the facility plans to 
continue operating. A public notice at permit renewal also would allow 
the public to compare changes between the initial approved permit and 
the permit renewal application to determine the magnitude of any 
proposed changes. Finally, the notice could serve as a mechanism for 
updating the facility mailing list, which may not contain a thorough 
list of people who are interested in the facility.
    The requirements for the pre-application meeting and the notice at 
permit application would not apply to post-closure permits. Post-
closure permit applications raise a narrower set of issues and a 
narrower range of alternatives. The public may be adequately involved 
through notices at the draft permit stage. Furthermore, the post-
closure period does not involve the same ongoing relationship between 
the facility and the community as the operating period. EPA is 
requesting comments on whether current requirements are adequate to 
ensure public involvement, or whether today's proposed requirements for 
public notice at application submittal should apply to post-closure 
permits.
    d. Applicability of the information repository. The information 
repository is a public participation tool that the permitting authority 
can use at any time during the permit process. As proposed, the 
permitting authority may require the facility to establish a repository 
during the permit review process for a new facility, or at any time 
during the life of a facility when the Director determines a repository 
is warranted due to significant public interest in the facility. The 
need for an information repository will be decided by the Director, 
based on decision criteria discussed elsewhere in today's preamble. It 
is important to have a repository requirement that the Director can 
adapt to different facility situations and public information needs. 
Thus, the Agency has allowed the Director the flexibility to decide 
whether and when a repository is established, for what activity, how 
long it must be maintained, and where it is housed.
5. Detailed Discussion on the Proposed Public Involvement Requirements
    a. General considerations regarding public notices. EPA is 
proposing new requirements for public notice in order to address public 
concern that community members are sometimes unaware of hazardous waste 
permitting activities or that public notice about a facility comes too 
late in the RCRA process. EPA believes that appropriate public notice 
is necessary to fully inform communities and involve them in permitting 
decisions involving hazardous waste facilities. By appropriate public 
notice, the Agency means that sufficient information is provided in a 
timely manner to all segments of the public throughout the permit 
process. Towards this end, EPA is proposing additional public notices 
throughout the permit process. These new notices will require the 
permitting authority to notify the public when it reaches certain 
points in the permitting process (e.g., application submittal, prior to 
a trial burn). This provision will give the public the opportunity to 
become involved in the decision-making process. As a result, the public 
may become more informed about the various steps of the permit process 
and the time requirements of each step.
    Similarly, a widely-distributed notice may reach interested 
individuals who otherwise may not have known about the opportunity to 
be on the facility mailing list. To address this issue, EPA is 
proposing requirements under Sec. 124.31(c)(1) concerning the 
distribution of the public notice for the pre-application meeting. This 
notice will be the first activity required by the RCRA permit process; 
EPA believes that stronger requirements resulting in a wider initial 
outreach are appropriate at this juncture. EPA is not proposing that 
implementing agencies follow the new distribution requirements for 
subsequent notices. Such a requirement would be redundant since, as a 
result of the widely distributed notice of the pre-application meeting, 
the permitting authority would have a list of interested people that it 
could contact as part of the mailing list.
    The Agency recognizes that the means by which a notice is 
effectively distributed is highly community-specific. The permitting 
authority may find any of a variety of distribution mechanisms 
effective, depending upon such factors as population density, 
geographic location, expanse, and cultural diversity of a community, 
when such mechanisms are used in conjunction with required notice 
activities. EPA has learned, through discussions with States, Regions, 
and outside parties (environmental and industry organizations), of a 
number of mechanisms for distributing notices. Facilities and agencies 
may voluntarily use the methods that are most practical for 
disseminating information throughout their community. Several of these 
methods that go beyond today's proposed requirements, and which may be 
voluntarily implemented, are discussed below:
    Press releases. Permitting authorities and industry alike have used 
press releases to successfully alert the local community to specific 
activities. A press release to one paper may be picked up by other 
local papers with no cost to the original party. Press releases have 
the advantage of providing in-depth coverage of a subject in a forum 
that can be widely distributed within a short timeframe. 40 CFR 
124.10(c) specifically cites press releases as a method that permitting 
authorities can use to promote public participation.
    Local cable tv channels. Many communities run their own cable 
channels for local news and activities. This medium may be used to 
target a local audience, often at no charge. TV spots may be 
advantageous for delivering pertinent information about a hazardous 
waste facility directly to people at home. The permitting authorities 
may also use the stations to broadcast logistics for upcoming meetings.
    Local community groups. The facility may enhance the distribution 
of information by including local community groups on the facility 
mailing list. Such groups may have a particular interest in hazardous 
waste issues and can be effective in circulating the information to a 
wider audience. Local religious establishments, for example, can be 
particularly useful in distributing information locally. Local 
Emergency Planning Committees (LEPCs), required under Section 301 of 
the Superfund Amendments and Reauthorization Act (SARA), can also be an 
effective group through which to disseminate notices. LEPCs are 
composed of representatives from a variety of groups or organizations, 
for example, local elected officials, law enforcement, fire fighting, 
health, and transportation personnel, community groups, and broadcast 
and print media. Facility mailing lists can include other community 
groups, such as professional and trade associations, planning 
commissions, civic leaders, and special interest groups.
    b. Requirements for the pre-application meeting. EPA is proposing 
that the facility provide public notification of the pre-application 
meeting between the facility and the public. This provision would apply 
to all RCRA facilities that submit a Part B Permit application for the 
first time. The facility will have the dual responsibility of providing 
appropriate notice and conducting the meeting.
    EPA believes that the requirements for the pre-application meeting 
should apply to all RCRA TSD facilities. EPA emphasizes that the pre-
application meeting is meant to be flexible, informal, and informative. 
Owners and operators of hazardous waste facilities, including owners 
and operators of small businesses, should be able to meet the proposed 
requirements for the pre-application meeting without undue burden. EPA 
estimates that the costs associated with the pre-application will be 
small. In addition, EPA believes that this approach will benefit the 
facility, as well as the public, in the long run since the public will 
gain greater understanding of the facility's plans and 
responsibilities. As stated above, earlier and more meaningful public 
involvement could streamline the permitting process, since issues and 
concerns will be raised at the initial point of the process.
    EPA solicits public comment on whether or not the Agency should 
require facilities to hold a pre-application meeting and, if so, 
whether the requirement should apply to all facilities, or only 
particular facilities, such as facilities conducting specific waste 
management practices, managing certain kinds of waste, or accepting 
off-site waste. In addition, EPA requests comment on the proposed 
functions of the pre-application meeting as well as comments about the 
notice requirements for the meeting.
    b.1. Providing notice of the pre-application meeting. The Agency is 
proposing this requirement because EPA is concerned that the existing 
mechanisms for providing public notice (found in 40 CFR part 124) may 
not work as effectively at the pre-application stage of the permit 
process as they do later in the permit process. The main reason for 
this is that the permitting authority generally does not develop the 
facility mailing list by the pre-application stage; it usually develops 
the list after the facility submits its permit application. 
Consequently, there is no mailing list for the facility to utilize. 
These initial outreach efforts will ultimately benefit the permit 
process by engaging interested individuals early in the process.
    EPA is proposing to require that the applicant provide notice of 
the pre-application meeting to the public, including EPA and 
appropriate units of State and local government, in three separate 
ways. EPA has designed these requirements to ensure effective public 
notice for the meeting. As proposed under Sec. 124.31(c)(1), two of 
these requirements are new approaches to providing public notice and 
apply only to the notice for the pre-application meeting. The third is 
a current requirement under Sec. 124.10(c)(2)(ii). EPA believes that 
since the notice for the pre-application meeting is the first public 
notice in the RCRA permitting process and occurs so early in the 
process, i.e., possibly before a mailing list is developed, these 
additional requirements are necessary to ensure widespread notice so 
that the public is appropriately informed. All of the public notice 
requirements for the pre-application meeting must contain the 
information proposed under Sec. 124.31(c)(2).
    The first requirement proposes that the facility must place the 
notice not only in a paper of general circulation within the community 
where the facility is located, as currently required, but also in 
newspapers that cover each jurisdiction adjacent to that community. EPA 
believes this approach is necessary to ensure that the facility 
appropriately notifies neighboring jurisdictions in the event that a 
facility is located near a jurisdictional boundary. In these cases, 
people who live near, but across the county or state line from, a 
hazardous waste facility that is applying for a RCRA permit may not 
receive notice of the activity under the present scheme because the 
newspaper is not in general circulation across that jurisdictional 
line. As a result, these people may not learn about the facility until 
much later in the permit process or after the facility is permitted. 
This initial outreach requirement would avoid such a situation. 
Interested persons could respond to this initial notice either by 
attending the pre-application meeting or by signing up for the facility 
mailing list. In either case, the person would be on the list for 
subsequent notices that comply with existing requirements in 
Sec. 124.10(c)(2) (including requirements for the facility mailing 
list).
    In some states (especially in the western part of the United 
States), the geographic areas covered by a host county or adjacent 
counties can be very large. In these cases, the requirement for the 
facility to give public notice in adjacent counties may not be 
practical or useful. Therefore, in situations where the geographic area 
of a host jurisdiction or adjacent jurisdictions is very large 
(hundreds of square miles), the newspaper notice shall cover a 
reasonable radius from the facility, such that all potentially affected 
persons have the opportunity to receive notice. EPA requests comment on 
how to implement this alternative notice provision in the regulations 
without prescribing a specific formula or approach that may not be 
appropriate in all circumstances.
    The required newspaper notices must appear as display 
advertisements within the newspapers. This provision clarifies the form 
in which the official public notice must appear in the papers. As 
defined by this proposed rule, a display ad must be of sufficient size 
to be seen easily by the reader.
    EPA intends the display ad requirement to make information about 
the pre-application meeting more visible within the newspaper. The 
display ad must be placed in a section of the newspaper that the 
average reader is likely to see, or in a manner that otherwise gives 
the general public effective notice. Currently, most public notices 
related to RCRA permitting appear as legal notices. However, EPA 
proposes to change this practice for the notice at pre-application in 
response to public concerns that legal notices are not widely read.
    EPA encourages facilities and permit writers, if it is within their 
means, to apply this requirement to other notices published in the 
newspaper. The requirements proposed in today's rule are in no way 
meant to inhibit additional public involvement activities that the 
owner or operator or the regulatory agency could carry out voluntarily.
    The second proposed mechanism for enhancing public notice of the 
pre-application meeting is a requirement that the facility owner or 
operator post a sign on the facility property displaying information 
about the meeting. This requirement will give clear notice of the 
facility location, and activity the facility is, or will be, 
conducting. The posted sign must show the same information as the other 
notices, except for the requirement to include a facility map, which is 
unnecessary. The sign must be large enough so that the wording is 
readable from the facility boundary; it should be located where it will 
be visible to the public, including passers-by. The Agency encourages 
facilities to post similar signs within the local community, where 
appropriate, to encourage people to attend the pre-application meeting. 
In some cases, the option of posting additional signs around the 
community may be a cost-effective way for the facility to communicate 
with the public.
    The third requirement is that the facility owner or operator must 
provide a radio broadcast announcement of the pre-application meeting. 
This is a current mechanism for providing public notice in 
Sec. 124.10(c)(2)(ii). The Agency is including it within today's 
proposed requirements for the pre-application meeting in order to 
maintain consistency with existing public notice requirements under 
Sec. 124.10.
    Over the years, EPA has received many questions from authorized 
states and the public concerning radio announcements. Today's proposal 
requires a radio announcement to be broadcast from at least one local 
radio station serving the community, which is the same as the current 
part 124 regulations. As mentioned earlier in the Equitable Public 
Participation section, EPA considers the community to be all residents 
in the vicinity of the facility who might be most affected by the 
facility's operations.
    Facilities can, of course, go beyond the minimum requirement being 
proposed today. EPA provides the following suggestions as guidance for 
those facilities interested in going beyond the proposed minimum 
requirements. In some rural areas, community members may listen 
predominantly to one station; in this case, EPA recommends that the 
applicant use this station as the vehicle for the notice. Some areas 
are part of a radio market (i.e., as defined by services such as 
Arbitron's Radio Market Definitions) and have competing radio stations. 
Where there is more than one radio station, the facility owner or 
operator should carefully consider the likely listeners of the radio 
stations in order to ensure a substantial listener audience. For 
example, if the facility is located within a predominately Hispanic-
American community, the applicant should use the local Spanish language 
station as the vehicle for the notice.
    Areas with many competing stations are more likely to have listener 
groups that may be delineated by, for instance, age, ethnicity, or 
income. In these situations, broadcasting the notice on several 
stations, or in more than one language, may be beneficial. In all 
cases, EPA suggests that the announcement occur at listening hours with 
a substantial audience, which will vary for each community as well as 
within listener groups. The facility may consult with radio stations 
and community members to determine the best times to broadcast the 
public notice.
    The notice of the pre-application meeting is perhaps the most 
important of the permit notices, since it is the first notice of the 
permitting process for new or existing facilities. The applicant should 
make an attempt to ensure that all interested citizens are aware of the 
pre-application meeting. The new requirements proposed today--display 
ads, notices published across jurisdictional boundaries, and posted 
signs at facilities--are more likely to reach a wider audience than a 
single notice in the legal section of the paper.
    In analyzing other approaches, such as applying the new pre-
application notice requirements to all other RCRA public notices, EPA 
found that the requirements may become burdensome to regulatory 
agencies, who must publish a number of notices throughout the 
permitting process. (As proposed today, the facility bears the burden 
of the pre-application meeting requirements.) EPA's goal in proposing 
this approach is the efficient use of resources for effective public 
notice. EPA proposes a larger initial outreach effort to help establish 
a mailing list. By initiating a larger effort early in the process, 
people who desire to be put on the mailing list are included as early 
as possible in the permit process. The facility will conduct subsequent 
notices using the existing notice requirements, which have proven 
adequate when accompanied by a well-developed mailing list.
    The Agency requests comment on the proposed requirements for public 
notice of the pre-application meeting. For example, EPA would like 
comments regarding the practicality or usefulness of these requirements 
and their application within the permitting process.
    b.2. Conducting the pre-application meeting. Today's proposed rule 
requires the applicant to hold at least one informational meeting, open 
to all interested members of the public, before submitting a permit 
application. This meeting will provide earlier public involvement 
opportunities in the RCRA permitting process, and enable the applicant 
to explain facility plans and the scope of the project to the public. 
In addition, EPA intends this meeting to create a dialogue with the 
community, raise public awareness, determine public views and questions 
raised with respect to the facility, and provide the applicant with the 
opportunity to make changes to its application based on public 
comments. (The facility may choose to hold additional meetings to 
answer questions raised at the pre-application meeting.) It is 
appropriate for the facility to conduct the public meeting because the 
facility initiates the permit process and conducts business in the 
area. The permit applicant must give the public adequate notice, at 
least 30 days before the date, of the pre-application meeting.
    The Agency believes that the meeting should be informal and 
informational. This approach is consistent with the preamble discussion 
of public meeting requirements for Class 3 permit modification 
procedures (see 53 FR 37912, September 28, 1988). However, in contrast 
to the requirements for Class 3 modifications, today's rule would 
require the facility to submit a record of the pre-application meeting, 
a list of attendees and their addresses, and copies of any written 
comments or materials submitted at the meeting, to the Director. The 
facility must include this record as part of the permit application 
and, if required, the information repository. The record requirement 
will provide the public, especially people who are unable to attend the 
meeting, and the Agency with a summary of information and issues raised 
at the pre-application meeting. The proposed rule does not require the 
permitting authority to attend the meeting. The Agency believes that 
attendance by the permitting authority, in certain instances, may 
undercut one of the main purposes of the meeting, which is to open a 
dialogue between the facility and the community. In some cases, 
attendance by the permitting authority might be useful in gaining a 
better understanding of public perceptions and issues for a particular 
facility. However, it should always remain clear that it is a facility-
lead meeting. EPA believes it is important for the public to understand 
that it is the facility's responsibility both to initiate the permit 
process, by submitting an application to EPA, and to inform the public 
of its intentions. EPA would like to solicit comments on whether the 
permitting agency should attend the pre-application meetings.
    With regard to the nature of the public meeting, EPA intends to 
provide facilities with considerable latitude. Through discussions with 
community relations experts from a variety of backgrounds, EPA has 
found that ``public meeting'' means many things to many people. In most 
cases, however, it appears that people view public meetings as being 
similar to public hearings. EPA would like to dispel the idea that 
public meetings must be similar to formal public hearings; rather, EPA 
encourages facilities to be creative in their approach towards 
conducting the pre-application meeting, in order to encourage 
constructive and open participation with people in the community. The 
facility may accomplish this goal through any of a variety of meeting 
formats. EPA further encourages innovation in the type of public 
meeting by allowing the facility to choose the medium by which it 
reports the record of the meeting to EPA, as long as the medium 
provides an adequate record of the meeting. For example, facilities may 
choose to tape-record discussions at the meeting or find another 
effective medium with which the public is comfortable.
    Many guidance documents are available on how to conduct public 
meetings and community outreach. Among them are EPA documents Community 
Relations in Superfund: A Handbook (January 1992, EPA/540/R-92/009), 
RCRA Public Involvement Manual (September 1993, EPA 530-R-93-006), as 
well as publications by private interests. The applicant may wish to 
consult these or similar publications for appropriate guidance on how 
to conduct an appropriate meeting with the public.
    Regardless of the guidance source, EPA believes that the facility, 
in meeting regulatory requirements, should also consider the following 
factors to conduct what EPA believes to be an appropriate and effective 
public meeting: first, the applicant should give special attention to 
process, logistics, content and trouble-shooting when preparing for a 
public meeting; second, the applicant should provide appropriate public 
notification, as required by Sec. 124.31(c), identify all sectors of 
the community that the facility will potentially affect, as required by 
Sec. 124.30(a), and provide outreach to interested citizens and 
officials. All these factors are important to ensure that the audience 
is representative of the community.
    The facility should encourage public participation through 
selection of a meeting date, time, and place that are convenient to the 
public. The facility should select the date and time of the public 
meeting to correspond to times when the public is most available; this 
may require the facility to conduct the meeting after normal business 
hours. The applicant should make sure that the meeting place has 
adequate space and is conducive to the type of meeting that the 
applicant will conduct. The applicant should take care in the 
development of the content of the meeting to meet the requirement of 
``sufficient detail to allow the community to understand the nature of 
the operations to be conducted at the facility and the implications for 
human health and the environment'' under proposed Sec. 124.31(a). To 
meet the ``sufficient detail'' requirement, the applicant should have a 
clear meeting agenda that states the exact reasons for the meeting and 
the specific objectives of the meeting. The applicant shall give an 
overview of the facility in as much detail as possible, such as 
identifying the type of facility (i.e., commercial or private), the 
location of the facility, the general processes involved, the type of 
wastes generated and managed, and implementation of waste minimization 
and pollution control measures. In addition, the applicant should 
provide information about risk to the public, where available.
    Finally, trouble-shooting potential problems will help the meeting 
to run smoothly in the event of unplanned obstacles. Trouble-shooting 
may involve planning for equipment failures, a shortage of parking 
spaces, or demonstrations, as well as locating facilities for 
handicapped individuals.
    c. Requirement for public notice at permit application. Today's 
proposal would also require EPA or the State to publish a public notice 
upon receipt of a permit application. EPA proposes that the permitting 
authority send the notice to everyone on the mailing list. These 
requirements are consistent with the notice requirements under 
Secs. 124.10 and 270.42. Unlike the proposed pre-application meeting 
requirement, the permitting authority must also publish this notice for 
permit renewals (see Section A.4: Applicability of public involvement 
requirements, of today's preamble discussion).
    Information requirements for the public notice will give people a 
clear opportunity to contact the appropriate parties for questions and 
suggestions, sign up on the facility mailing list, and locate the 
appropriate documents, such as the permit application, for review. The 
permitting authority must provide the name and telephone number of the 
facility and permitting agency contacts. EPA suggests that the 
permitting authority designate a community affairs specialist as the 
appropriate contact person. The permitting authority must also provide 
an address to which people can send requests to be put on the facility 
mailing list. EPA believes that the public should have this opportunity 
during the permit process, and that the notice at application is a good 
mechanism for announcing this opportunity. Today's proposed rule 
requires the permitting authority to provide the notice; however, EPA 
would like to solicit comments on whether the permitting authority or 
the facility should be responsible for providing the notice at 
application submittal. While a person may request to be put on the 
mailing list at any time during the permit process, EPA intends this 
requirement to ensure that the permitting authority alerts the public 
early in the permit process. Finally, EPA is requiring the notice to 
include specific information about the facility operations, facility 
location, and the location where the public may review and copy 
versions of the permit application and other important documents.
    EPA believes that these requirements significantly increase the 
opportunities for, and the effectiveness of, public participation 
within the permitting process. The requirement for a public notice will 
tell the public when an application for a permit has been received by 
the permitting authority. It would also provide information on where 
the permit application is available for review by the public and, thus, 
would allow interested people to begin review of the permit application 
at the same time as EPA or the State authority. The public would have 
the opportunity to review all aspects of the permit application in its 
initial form, before EPA or the State review the application for 
completeness. The public has the opportunity to make suggestions and 
raise issues for consideration by the permitting agency at any time 
during the agency's review of the permit application. Consequently, the 
permitting agency will receive public input earlier in the permit 
process as well as later, i.e., after the proposal of the draft permit. 
Another benefit of requiring such a notice is that it may alert the 
agency to facilities generating high public interest. The public notice 
will highlight public attention concerning a hazardous waste facility. 
Public interest and concerns may be expressed to the permitting 
authority in the form of letters, phone calls, and requests to be put 
on the facility mailing list. This early stage could be one potential 
point where the Director may choose to require the facility to 
establish an information repository. Furthermore, by providing 
important and timely information at the beginning of the permit 
application review stage, the permitting authority can better inform 
the public about the steps of the permit process and the amount of time 
required for each step.
    EPA believes that the public input that the permitted authority 
will receive early in the process will assist in the review of the 
permit application and result in the development of a draft permit that 
is responsive to community concerns. Once the permitting authority 
completes the draft permit, or the notice of intent to deny the permit, 
and proposes it to the public, then the public has the opportunity to 
review that decision, including any changes that occurred to the 
original permit application, since they will be reflected in the draft 
permit. These changes could include changes in response to the public 
comments EPA may have received during its review of the permit 
application.
    d. Requirement for an information repository. Proposed 
Secs. 124.33(a) and 270.30(m) would provide the Director with explicit 
authority to require the permit applicant or permittee, respectively, 
to establish and maintain an information repository. The repository 
would allow interested parties to: (1) Access reports, plans, findings, 
and other informative material relevant to the facility and the 
particular issues at hand; and (2) receive information on appropriate 
opportunities for involvement during a variety of permitting decisions. 
EPA expects that the Director would consider requiring a facility to 
establish a repository in a limited number of cases where the community 
expresses a high level of interest. A high level of community interest 
could be demonstrated, for example, in such ways as written requests 
from members of the public, or press coverage. However, the final 
decision for requiring the repository is at the Director's discretion. 
The Director may also specify any appropriate time period for the 
repository.
    As provided in proposed Sec. 124.33(b), the information repository 
will contain all public information that the Director determines to be 
relevant to public understanding of permitting activities at the 
facility. In general, the Director would require the facility to make 
available those reports or documents that provide the most relevant 
information about the facility and the best technical basis for 
decision-making. The information repository could include some of the 
following items: copies of the permit application, technical documents 
directly supporting the application, maps (i.e., sketched or copied 
street map) of the proposed location of the facility, notice of 
deficiencies (NODs), or summary reports of ground-water and air 
monitoring results at the facility, if such reports exist for the 
facility location. The repository should also contain information on 
how the public may participate and become involved during the 
permitting process. For example, EPA may contribute a fact sheet that 
outlines public involvement opportunities within the permit process and 
how to be put on the facility mailing list. Similarly, the facility may 
provide information in the repository on any additional public 
involvement activities it chooses to conduct. Examples of background 
material the facility may maintain in the repository include copies of 
relevant RCRA regulations and related information, e.g., fact sheets. 
The facility may exclude from the repository any material it claims to 
be confidential business information (CBI). Examples of CBI could 
include trade secrets, commercial, or financial information whose 
general availability could cause substantial harm to the facility's 
competitive position. The contents and size of the information 
repository may differ among sites, depending upon the reasons for 
setting up the repository, the permitting phase of the facility, and 
the site-specific characteristics of the facility.
    The facility is responsible for site selection and maintenance of 
the information repository. The facility should place the repository at 
a local public library, town hall, county courthouse, community 
college, public health office, or another public location within 
reasonable distance of the facility. In instances where such a location 
is not feasible due to the remote location of the facility, the 
Director may require the facility to establish and maintain the 
repository at some other suitable location. In most instances, the 
information repository should not be at the facility. Interested 
communities have expressed a greater comfort level with siting the 
repository at a public location, instead of within facility boundaries. 
The repository must also be open to the public during reasonable hours 
or accessible by appointment. Reasonable hours could include, for 
example, weekend and evening hours of access (e.g., beyond normal 
business hours), depending, among other things, on work schedules of 
the interested individuals, the degree of public interest in the 
facility permitting activities, the convenience of the location of the 
repository, and the timing of public meetings or hearings. In these 
situations, EPA encourages facilities to select a location that already 
has extended hours of operation, such as a local library.
    EPA encourages facilities to establish the information repository 
at a location that has reasonable access to a photocopy machine, if 
possible. Such a location would be more convenient for the people who 
wish to make copies of any of the materials at reasonable cost. For 
example, some of the public locations mentioned previously should, in 
most cases, have a photocopy machine on the premises. If it is not 
possible, the facility may want to explore other options, such as 
providing extra copies of documents that people can keep without charge 
or at reasonable cost.
    In cases where physical space to house the documents is limited, a 
potential solution for the facility, where resources allow and 
capability is available at the location, is to copy documents onto 
microfiche or CD-ROM. Either of these possible options requires little 
space and would discourage document theft or vandalism.
    Under Sec. 124.33(d), the Director will specify requirements that 
the applicant must satisfy in informing the public of the existence of 
the information repository. At a minimum, the Director will require the 
facility owner/operator to notify individuals on the mailing list when 
the facility establishes the repository. The Director may also require 
the facility to provide public notice in a local newspaper. As a 
practical matter, the facility may, in some cases, choose to provide 
the relevant information to the permitting authority so that it may 
include the information in other required notices. The facility owner/
operator would identify the EPA or State office contact and a facility 
contact person to answer questions related to the repository. EPA 
suggests that the permitting authority designate a community affairs 
specialist as the appropriate contact person.
    The information repository EPA is proposing today closely resembles 
the repository proposed under Subpart S of the Corrective Action Rule 
(see 30798 FR, July 27, 1990) and is similar to the repositories 
established at Superfund sites under the Comprehensive Environmental 
Response Compensation, and Liability Act (CERCLA). EPA's CERCLA 
experience has demonstrated that the public's interest in nearby 
hazardous waste activities is served effectively by a repository. 
Without a local repository, the burden falls on citizens to locate and 
contact the appropriate officials who are knowledgeable about the site 
in Regional EPA or State offices, which could be located far from the 
site.
    There are three major differences between the information 
repositories in today's proposal and the repositories included in the 
CERCLA program. First, Superfund requires information repositories at 
all sites on the National Priorities List (NPL), whereas, under today's 
proposal, the Director would use his or her discretion on a case-by-
case basis. All communities may not desire or request every option 
available for public involvement. In most situations, an information 
repository may not be necessary and could become an unnecessary 
resource drain for the local community hosting the repository. 
Providing discretion to the Director will allow the facility and 
community to use their resources in the most efficient manner. In 
making such a determination, the Director would consider the degree of 
public interest (which could, for example, be demonstrated through 
written requests from the public to set up a repository), as well as 
the proposed location of the facility, the proposed types and volumes 
of wastes to be managed, and the type of facility. Furthermore, the 
Director may consider requiring information repositories at certain 
Class 3 modifications or at other stages within a permit where there is 
a high level of public interest.
    The second major difference between the CERCLA and proposed RCRA 
repositories is that CERCLA repositories for NPL sites generally house 
the administrative record for CERCLA actions. Under the RCRA permitting 
program, and as described in proposed Subpart S, EPA Regional offices, 
or authorized States, maintain administrative records, which provide 
documentation of the basis of EPA's decisions and other parts of the 
record, at Regional office location. Because the RCRA permitting record 
is already available for public inspection at a separate location, the 
Agency does not believe that it is necessary to duplicate the entire 
administrative record for RCRA facilities at information repositories. 
The administrative record developed during the permitting process is 
often large, and could become burdensome to the Agency and the facility 
if it were duplicated in its entirety in an information repository. In 
addition, the space required to house an information repository, if it 
were required to be a duplicate of the administrative record, may 
severely limit prospective repository locations in a community.
    The third major difference between the CERCLA and proposed RCRA 
provisions relates to the point in the waste management process when an 
information repository is established and maintained. Information 
repositories are established at NPL sites to give the public the 
opportunity to keep informed during the cleanup process. On the other 
hand, the repository proposed for certain RCRA facilities could be 
established by the facility at any time during the RCRA permitting 
process or during the life of the facility. In either case, the 
facility will set up the information repository to provide information 
to the community about the specific issues at hand. Therefore, the 
Director may require the facility to operate the information repository 
during the permit application process only or the active life of a 
facility, whichever best applies to the facility and the community. For 
new facilities, this provision means that the Director might instruct 
the facility to establish an information repository before construction 
of the facility. EPA is concerned that the information repository for a 
RCRA facility could become cumbersome if the Agency prescribes specific 
content and duration requirements in a regulation. Therefore, EPA 
believes that the Director should designate timeframes and details for 
the contents of the information repository on a case-by-case basis, in 
keeping with the goal of enhancing public participation in the 
permitting process.
    The Agency chose what it believes to be the most flexible approach, 
that is, one that allows permitting authorities to readily respond to 
community demands. However, the Agency recognizes that questions may 
exist regarding this approach and requests comment on several aspects 
of the information repository. First, the Agency seeks comments on 
making the information repository an optional, as opposed to mandatory, 
tool within the permitting process. Second, EPA solicits comments on 
making the repository mandatory for some types of units; for example, 
the Agency could require all commercial facilities or facilities 
managing certain types of waste to establish information repositories. 
Third, EPA requests comments on the location of the repository and the 
point in the permitting process when it might be appropriate for the 
Director to require certain facilities to establish or terminate a 
repository. Fourth, the Agency seeks comments on what documents the 
facility should include within the repository as a minimum, and the 
process by which those documents are selected.

B. Permit Modification Procedures in Sec. 270.42

1. Purpose
    The main purpose of this section of the rule is to clarify the 
combustion modification provisions found in Appendix I of Sec. 270.42. 
EPA is aware that there has been some confusion over the description of 
modifications listed under section L.7 of Appendix I, which covers the 
shakedown and trial burn phases of operation for combustion units. 
Through today's changes, EPA intends to make these modification 
classifications easier to understand and implement. Today's proposal 
clarifies and describes the phases of shakedown and trial burn in more 
detail, thus, making it easier for the facility to distinguish between 
modification classifications. By making it easier for a facility to 
select the appropriate classification for each modification activity, 
the proposed rule will make compliance with the modification process 
easier.
    This section also proposes minor revisions to Sec. 270.42(d) of the 
modification procedures and addresses those modification requests that 
are not classified in the Appendix I table of Sec. 270.42. Today's 
proposal clarifies how facilities may implement and utilize the 
provision for other modifications in Sec. 270.42(d).
2. Background Summary
    EPA first promulgated procedures for RCRA permit modifications in 
1980 as part of the initial regulations establishing the RCRA permit 
program. This system of modifications consisted of two types: Major and 
minor. Major modifications followed the same public notice and comment 
procedures as for permit issuance, while minor modifications required 
only approval by the permitting authority. ``Minor modifications'' were 
defined as any modification contained in a short list in the 
regulations; all other modifications were deemed ``major.''
    EPA gained experience in implementing these procedures and decided 
that the Agency could improve the modifications process. One of the 
Agency's primary concerns was that most modifications were processed 
under the major modification procedures since few modifications were 
listed as minor. Since many less consequential permit changes and 
facility improvements were subject to extensive ``major'' modification 
procedures, EPA found that facilities were discouraged from making 
improvements to upgrade the facility to be more protective. At the same 
time, EPA and the States were diverting their resources to address 
minor modifications, instead of addressing modifications with greater 
environmental significance, or other permitting and enforcement 
actions. In considering how to address these concerns, EPA determined 
that the procedural structure needed modifying in order to classify the 
many activities that did not fall easily into only the major and minor 
categories.
    EPA amended the procedures for facility-initiated permit 
modifications on September 28, 1988 (see 53 FR 37912). The goals of 
this rule were to allow for additional flexibility in processing permit 
modifications and to provide for an appropriate level of public 
involvement in the decision-making process. The main feature of these 
revised procedures was a system of three classes of permit 
modifications, ranging from Class 1 for the least significant changes 
to Class 3 for the most significant facility modifications.
    EPA continues to believe that Agency and State permitting 
authorities must focus time, efforts, and resources on substantive 
changes to protect human health and the environment. With three classes 
of procedures, permitting authorities can classify modifications more 
accurately, according to their environmental significance, than they 
could under the former system. Individual examples of modifications are 
classified in a detailed appendix to the rule (Appendix I to 
Sec. 270.42).
3. Technical Corrections
    In today's rule, EPA is proposing certain technical corrections in 
Secs. 270.42(a)(1)(ii), 270.42(b)(2), and 270.42(c)(2). One correction 
would change the reference for notifying appropriate units of state and 
local government in each of these paragraphs to Sec. 124.10(c)(1)(x), 
in order to correct a typographical error. At present, these sections 
incorrectly reference Sec. 124.10(c)(ix), which is the reference for 
notifying the facility mailing list.
    EPA is also proposing to make a technical correction to 
Sec. 270.42(b)(6)(i). In this paragraph, the term ``notification 
request'' should be changed to ``modification request.'' It is clear 
from the preamble to the September 28, 1988 permit modification rule 
(see 53 FR 37916) that EPA intended that the deadline for EPA action be 
related to the date that the modification request is submitted to the 
permitting authority.
4. Unclassified Modifications
    During the development of the September 1988 permit modification 
rule, EPA recognized that classifying all possible permit modifications 
under the items listed in Appendix I of Sec. 270.42 would be 
impossible. Therefore, the Agency provided a procedure in 
Sec. 270.42(d) to enable facilities to submit modification requests for 
changes that are not specifically listed in Appendix I. For these 
unclassified modifications, facilities must either use the Class 3 
modification procedures or, alternatively, request that the Agency make 
a determination that the activity is either a Class 1 or 2 
modification. In general, requests for a classification determination 
would be attached to the modification request. In making its 
determination whether to process the request as a Class 1, 2, 
modification instead of a Class 3, the Agency would consider the 
similarity of the specific modification to others listed in Appendix I 
and the criteria listed in Sec. 270.42(d)(2).
    After several years' experience, EPA has found that very few 
unclassified modifications have been processed using this procedure. 
EPA believes that both facilities and permit writers may be restricting 
themselves to only the classification examples that are in Appendix I. 
EPA is also concerned that in those cases where Sec. 270.42(d) is used, 
the Class 3 modification procedure may be automatically selected, 
without consideration of whether the permit activity is less 
significant and should be reclassified to a lower category.
    While EPA believes that Appendix I offers a good starting point for 
classifying modifications, facilities and the permitting authority 
should both make additional efforts to use the flexibility in 
Sec. 270.42(d) when proposing modifications. Use of this flexibility 
will allow permit writers to better focus their efforts and resources 
on modification procedures that are necessary and appropriately 
tailored to the substantive changes proposed. Therefore, EPA believes 
that facilities should use the flexibility contained in Sec. 270.42(d) 
when their site-specific permit changes are not listed in the Appendix 
I table. To address this situation, EPA is proposing to modify the 
wording in Sec. 270.42(d) to clarify that unclassified modifications 
can be processed under Class 1 or 2 procedures, if this lower 
classification is more appropriate. EPA is also proposing to add a 
notation to Appendix I that instructs facilities to use the procedures 
in Sec. 270.42(d) if a proposed modification is not listed in Appendix 
I.
    In addition, EPA would like to clarify that the temporary 
authorization provision in Sec. 270.42(e) may be used by the facility, 
subject to approval by the permitting authority, to implement 
unclassified modifications as well as classified ones. In other words, 
the permitting agency may grant a temporary authorization, without 
prior notice and comment, for activities that are necessary for 
facilities to respond promptly to changing conditions to be protective 
of human health and the environment. Temporary authorizations have a 
term of up to 180 days; the permitting agency may grant temporary 
authorizations for Class 2 or 3 modifications that meet the criteria in 
Sec. 270.42(e), including compliance with the part 264 standards. 
Activities that will be completed before the 180 day term expires do 
not require a modification request. If a facility knows up front that 
the activity will take longer than 180 days to complete, it should 
submit a modification request at the same time as its request for 
temporary authorization.
5. Revisions to Appendix I of Sec. 270.42
    RCRA permits for new incinerators and boilers and industrial 
furnaces (BIFs) address four distinct phases of operation after 
construction. The four phases are: Shakedown, trial burn, post-trial 
burn operation, and final operation, which lasts for the duration of 
the permit. The permitting authority establishes operating conditions 
for each of these phases in the permit.
    The shakedown phase of operation lasts from the initial start up 
after construction until the trial burn. The shakedown phase prepares 
the unit for the trial burn. During this period, possible mechanical 
difficulties are identified and the unit reaches operational readiness 
by achieving steady-state operating conditions immediately prior to the 
trial burn. Federal regulations limit the shakedown period to 720 hours 
of operation using hazardous waste feed; the permitting authority may 
allow one additional period of up to 720 hours with cause. Permit 
conditions limit operations during this period; the permit sets 
hazardous waste feed and other waste management practices and requires 
the facility to monitor certain key operational indicators.
    The trial burn, which typically lasts several days, is the actual 
testing that the facility conducts, with permitting agency oversight, 
to (1) determine whether a combustion unit can meet the performance 
standards required by the regulations and the permit, (2) establish the 
final facility operating conditions for the term of the permit, and (3) 
provide data on which the permit authority can base a risk assessment. 
The trial burn plan contains the parameters for conducting a trial 
burn. The trial burn plan is part of the original permit for new 
facilities and must be approved by the permitting agency before the 
facility can conduct a trial burn. The facility often tests several 
sets of operating conditions during the trial burn. The conditions are 
designed in order to determine the range of operating conditions where 
the unit meets the performance standards. For example, the facility may 
set one trial burn condition to determine what the maximum hazardous 
waste feed can be. The trial burn demonstrates the range of operating 
conditions that allow the facility to comply with the performance 
standards. The permit writer uses the results of the trial burn to 
define the operating conditions that the facility will operate under 
during the permit term.
    The post-trial burn phase starts after the trial burn and lasts an 
average of 3 to 9 months. The permit specifies operating conditions 
that apply during this phase. Federal regulations require the permittee 
to analyze the results of the trial burn and submit them to the Agency 
within 90 days of completion of the trial burn, or later if approved by 
the Director. Also during this period, the facility may submit, and EPA 
may process, a permit modification to revise the final operating 
conditions to reflect the results of the trial burn and any other 
information. This phase ends once the permitting agency and the 
facility complete all necessary permit modifications and the final 
operating conditions take effect.
    The final operating conditions are effective for the life of the 
permit, unless the facility's permit is modified pursuant to 40 CFR 
270.41 or 270.42. The permit writer bases the conditions on actual 
trial burn data that reflect the conditions under which the facility 
met the performance standards during the trial burn.
    a. Structure of today's proposal. Confusion has existed, at times, 
over the descriptions of modifications for certain items listed in 
section L of Appendix I to Sec. 270.42, which covers incinerators and 
BIFs; in particular, the confusion has concerned changes during the 
shakedown period of operation and trial burn. How to interpret these 
modification classifications may be unclear in certain situations. In 
order to avoid further confusion or potential delays in determining 
these classifications, the Agency is proposing to reorganize and 
clarify Section L.7. of Appendix I.
    Currently, Appendix I of Sec. 270.42 places items regarding the 
shakedown period, trial burn plan, and post-trial burn operation into 
the same section, i.e., section L.7. EPA believes that placing those 
items regarding the shakedown period in one section and items 
concerning the trial burn plan into another section, along with 
describing each item more precisely, will clarify the intent behind 
each description. This reorganization will make it easier to classify 
individual modification requests and ensure that the permitting agency 
processes the requests under the appropriate procedures. EPA proposes 
today that all modifications regarding the shakedown period will remain 
in section L.7. and all items regarding the trial burn will move to new 
section L.8. The existing section L.8. will become section L.9. An 
explanation of the proposed revisions to sections L.7. and L.8. of the 
Appendix follows.
    In this proposal, Class 2 will remain the highest classification 
for changes to the trial burn and shakedown period permit conditions. 
Further, the permitting agency will continue to process many changes 
under the Class 1 procedures, with prior Director approval. One reason 
for these classifications is the short period of operation for both the 
shakedown and trial burn phases. The permitting authority must be in a 
position to respond quickly to requests for changes that are necessary 
to ensure thorough testing of the unit. In addition, operating 
conditions during the shakedown period are generally more restrictive 
than the final operation conditions.
    b. Shakedown. Appendix I to Sec. 270.42 currently classifies 
modifications addressing the shakedown period for a permitted 
combustion unit in items L.7. a. and b. EPA today proposes to simplify 
item L.7.a. by applying it only during the shakedown period and moving 
the references to the trial burn plan and post-trial burn operation to 
newly proposed section L.8. The permitting agency should not process 
under L.7.a. any modifications that are classified in other items in 
Appendix I. Today's proposed rule will not change item L.7.b., which 
allows the Director to authorize an additional 720 hours of operation 
as a Class 1 modification.
    EPA also proposes to reclassify proposed item L.7.a. as a Class 1 
permit modification, with prior approval of the Director. Our basis for 
this change is that the narrower scope and limited duration of the 
shakedown period means that a facility's activities would be less 
significant than the activities found under the existing L.7.a. One 
example of a modification under proposed item L.7.a. would be a change 
in combustion temperature to increase the unit's efficiency. The 
purpose of the shakedown period is to prepare the unit for the trial 
burn and, thus, any changes made during the shakedown period would not 
affect long term operation. The shakedown period can last no longer 
than 720 hours of operation, with only one extension possible. As 
stated previously, modification items related to the trial burn will 
now be addressed by the permitting authority under proposed section 
L.8.
    c. Trial burn. Today, EPA is proposing to create a new section L.8. 
in Appendix I to address modifications to permit conditions during the 
trial burn. These conditions are contained in the approved trial burn 
plan, which is a part of the RCRA permit. EPA has structured this 
section to progress from changes before any trial burns are completed 
to those after a trial burn has been conducted, including changes made 
to reflect the results of a successful trial burn. The format of the 
new section L.8. is as follows.
    EPA is proposing to revise Appendix I to address changes to the 
trial burn plan before the trial burn is complete (items L.8.a. and 
L.8.b). Under the proposed scheme, the permitting authority will 
consider changes to the trial burn plan a Class 2 permit modification, 
unless they are minor, in which case they will be Class 1, with prior 
Director approval. One example of a minor change would be an increase 
in the secondary combustion chamber temperature for a trial burn 
condition that is testing the destruction and removal efficiency for 
organic wastes. One example of a major change would be an increase in 
the waste feed rate. Please note that classifying changes as minor with 
regard to the trial burn is not a new requirement; it was previously 
listed under item L.7.c. However, to reflect the fact that the trial 
burn conditions are contained in the trial burn plan, EPA is deleting 
any references to ``operating requirements set in the permit'' from the 
modification table.
    EPA expects that permittees may request technical changes in the 
trial burn plan under L.8.a. while the permitting authority is on-site 
immediately before, or during, the trial burn. These changes address 
unanticipated issues and are often necessary for effective and 
protective operation and testing during the trial burn. A 
representative of the permitting authority, usually the permit writer, 
is typically at the facility during the trial burn. The Agency 
encourages permit writers and facilities to write trial burn plans with 
the flexibility to accommodate alterations during the trial burn. The 
permitting authority can expedite the modification process by 
delegating approval authority to one of its agents. The permit itself 
can also specify what level of permitting agency staff has authority to 
approve these minor changes. In deciding whether to allow such changes 
on-site, we encourage the permit writer to consider the criteria 
contained in the February 16, 1989, Trial Burn Observation Guide. Of 
course, the final permit conditions would limit the permittee to those 
conditions that met the performance standards during the trial burn.
    After a facility conducts a trial burn and submits the results to 
the permitting agency, the facility may request another trial burn. The 
facility must, then, submit a new trial burn plan. EPA is proposing to 
revise Appendix I to clarify this situation. Item L.8.c. specifically 
relates to situations where the facility did not meet the performance 
standards set in the trial burn plan and the facility proposes another 
trial burn, or portions of a trial burn, at improved conditions. Item 
L.8.c. addresses conducting additional tests to replace one or more of 
the failed conditions of a trial burn. Before the facility can conduct 
these tests, it must revise the conditions in the trial burn plan and 
the permitting agency must approve the revisions through a permit 
modification. In general, the permitting agency will not approve the 
modification request to conduct another trial burn unless the facility 
has provided a sound technical basis, demonstrating that the revised 
operating conditions are likely to meet the performance standards set 
in the permit.
    EPA is also proposing to classify item L.8.c. as a Class 2 permit 
modification. The Agency recognizes that this classification represents 
a change from the preamble language in past incinerator technical 
regulations. An early incinerator rule preamble states that ``if 
compliance has not been shown and an additional trial burn is 
necessary, the permit may also be modified under Sec. 122.17 [old minor 
permit modification language] to allow for an additional trial burn'' 
(See 47 FR 27524, June 24, 1982). This 1982 preamble language describes 
a trial burn retest of a failed condition. Since 1982, EPA has gained 
considerable experience regarding trial burns. EPA now believes that if 
a facility does not meet the regulatory performance standards during 
the trial burn, then the public needs to be involved before the 
facility revises the trial burn plan and conducts another test, because 
the facility's failure under certain conditions may raise concerns. 
Therefore, EPA believes that the additional public participation 
requirements of the Class 2 procedures are appropriate for this item. 
(See proposed Sec. 270.74(c)(7) for the analogous procedures for 
interim status combustion facilities.)
    Furthermore, EPA is proposing to add item L.8.d to address changes 
to the permit conditions that are in effect during the limited period 
called the post-trial burn period. (These modifications would currently 
be addressed under item L.7.a.) Because any changes during the post-
trial burn period will be limited in duration, similar to those during 
the shakedown period, EPA is also reclassifying post-trial burn period 
modifications from Class 2 to Class 1 permit modifications, with prior 
approval of the Director.
    For the last item in this section of Appendix I, EPA is proposing 
to move existing item L.7.d. to L.8.e. This item describes revising the 
final operating conditions to reflect the results of the trial burn. 
Changes in the final permit should reflect the operating conditions 
under which the facility met the required performance standards during 
the trial burn. EPA does not propose changes to the wording of this 
item.

C. Requirements Regarding the Trial Burn

1. Purpose and Applicability
    The purposes of this section of the proposed rule are (1) to make 
the permitting procedural requirements for interim status combustion 
units more equivalent to current permitting requirements for new units, 
particularly with regard to trial burns, and (2) to clarify some 
administrative permitting procedures for combustion units. In addition, 
this section contains proposed requirements that will provide for more 
public involvement opportunities, both earlier in the combustion 
permitting process and at key points throughout the process.
    The requirements in this section apply only to combustion units at 
both interim status and permitted facilities.
2. Summary of Proposed Approach
    EPA is proposing today to create a new Sec. 270.74, which will 
contain permitting procedural requirements for interim status 
combustion units. This proposed new section is a consolidation of 
Secs. 270.62(d) and 270.66(g), which currently contain permitting 
procedural requirements for interim status incinerators and BIFs, 
respectively. Proposed Sec. 270.74 is virtually identical to 
Secs. 270.62(d) and 270.66(g), except where EPA is proposing additional 
permitting procedural requirements for interim status units. EPA 
intends the additional requirements to make the procedural requirements 
for interim status units more equivalent to the permitting procedural 
requirements for new units, and to expand public involvement 
opportunities during the trial burn phase. The flow chart shown in 
Figure 2 indicates the points in the permitting process where the 
proposed activities would occur. For instance, the administrative 
procedural changes EPA is proposing in Sec. 270.74 will require interim 
status facilities to submit a trial burn plan with their initial Part B 
applications. Section 270.74 further states that the permitting agency 
must approve the trial burn plan before the facility conducts the trial 
burn. These proposed explicit requirements will ensure that interim 
status facilities conduct trial burns in accordance with approved 
plans, as do permitted facilities, and do not perform the trial burns 
before submitting their applications. In another permitting procedural 
change, EPA proposes to clarify the Director's authority to allow 
additional trial burns and to deny a permit to an interim status unit 
if the Director does not believe that the unit is capable of meeting 
performance standards.
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    EPA is proposing a new regulatory requirement, not addressed in 
previous regulations, which pertains to post-trial burn conditions at 
interim status combustion facilities. EPA is proposing that, upon 
completion of the trial burn, interim status facilities must operate 
only under conditions that passed and were demonstrated to meet the 
performance standards of Sec. 264.343 (for incinerators) or 
Secs. 266.104 through 266.107 (for BIFs), and only if the successful 
trial burn data are sufficient to set all applicable operating 
conditions.
    Concerning public involvement, the Agency is proposing additional 
public participation opportunities in the combustion permitting process 
by requiring public notices at key points in the trial burn process. 
The Agency would like to build on the public involvement requirements 
in today's proposed rule and expand them to the trial burn stage. The 
Agency believes that public involvement opportunities should continue 
beyond the initial permit application stage and throughout the 
permitting process. For instance, the proposed rule requires the 
permitting authority to give public notice of the actual trial burn for 
both interim status and new combustion facilities. It is important to 
inform the public of the pending burn and give members of the public an 
opportunity to participate in this later phase of the permitting 
process. As mentioned previously in the public involvement segment of 
the preamble, expanded public participation in the RCRA program and 
decision-making process is a high priority for the Agency.
3. Current Trial Burn Procedures
    Trial burns are an important step in the permitting process for 
combustion facilities. There are differences in the permitting process 
for new and interim status combustion facilities, which stem from the 
original composition of the regulated community in 1980 when EPA first 
promulgated the RCRA Subtitle C regulations. At that time, Congress 
granted existing facilities interim status if they complied with 
notification and application requirements, so they could continue 
operating while pursuing a permit. Anyone proposing a new facility now 
had to obtain a permit prior to construction. This distinction between 
existing and proposed facilities led to differences in the permitting 
procedural requirements for combustion units. For example, existing 
combustion facilities that have interim status must conduct a trial 
burn prior to permit issuance, whereas proposed facilities must obtain 
a permit before they may construct the combustion unit and then conduct 
a trial burn.
    a. Current trial burn procedures for permitted combustion 
facilities. The trial burn procedures for new combustion units are 
currently set forth in Sec. 270.62(b) for incinerators, and 
Sec. 270.66(c) for BIFs. These regulations require new hazardous waste 
incinerators and BIFs to submit trial burn plans with their initial 
Part B permit applications. The actual trial burn is conducted after: 
(1) The public has reviewed and commented on the permit application; 
(2) the permitting authority has reviewed and approved the permit 
application; and (3) the facility has constructed the combustion unit. 
The permitting authority uses the results of the trial burn to 
determine whether a facility can meet the applicable performance 
standards and, if it does, to establish the final operating conditions 
in the permit that enable the facility to comply with those standards.
    The facility or the permitting authority must initiate changes to 
the trial burn plan through the permit modification procedures in 
Secs. 270.41 through 270.42 (see Section B. Permit Modification 
Procedures). The permitting authority must approve any modifications 
before the facility can implement them. Where results of a trial burn 
show non-compliance with performance standards, a facility would 
typically be required to either: (1) revise the trial burn plan to test 
new conditions; or (2) submit a request to the permitting authority to 
modify the permit to permanently exclude the conditions that resulted 
in non-compliance. Both the permit review/ determination process and 
the permit modification process have built-in opportunities for public 
involvement, including procedures for appealing decisions made by the 
permitting authority.
    b. Current trial burn procedures for interim status combustion 
facilities. The trial burn procedures for interim status combustion 
units are currently in Secs. 270.62(d) and 270.66(g). These 
requirements are not as detailed as the requirements for new combustion 
facilities, although it is common practice for owners/operators of 
interim status facilities to follow many of the requirements for new 
facilities. For example, the interim status regulations in 
Secs. 270.62(d) and 270.66(g) require facilities to submit the results 
of the trial burn before permit issuance, but do not explicitly state 
that facilities must receive permitting agency approval of the trial 
burn plan before conducting the burn.
    The procedures for interim status and new combustion facilities 
differ in other areas. Contrary to permitted facilities, interim status 
facilities do not have a permit during the trial burn stage; thus, the 
permit modification procedures do not apply. As a consequence, the 
permitting agency currently does not have the same authority to 
regulate post-trial burn changes by interim status facilities as it 
does for new combustion facilities, especially in the case of 
incinerators [BIFs are more highly regulated under interim status].
    Unlike the requirements for new facilities, there is no opportunity 
for public involvement in the permitting process for interim status 
combustion facilities until after the facility has conducted the burn 
and the permitting agency issues the draft permit.
    EPA believes that many of the requirements for new combustion 
facilities are appropriate for interim status facilities; the Agency 
proposes to change the regulations to apply some of these requirements 
specifically to interim status facilities. It is the Agency's intent, 
in changing the regulations, to ensure protection of human health and 
the environment and provide a greater opportunity for public 
involvement in the permitting process.
4. Discussion of Proposed Permitting Requirements for Trial Burns
    EPA is proposing to consolidate the permitting procedural 
requirements for interim status combustion facilities by moving the 
incinerator and BIF interim status permitting requirements, found in 
Secs. 270.62(d) and 270.66(g), to proposed Sec. 270.74. In addition, 
EPA is proposing to amend these requirements to make them more 
equivalent to the permitting requirements for new combustion units. EPA 
believes that consolidating the permitting requirements for interim 
status combustion facilities and distinguishing them from the 
requirements for permitted facilities will simplify the interim status 
trial burn process.
    The consolidation and movement into proposed Sec. 270.74(a) and (b) 
will not change the majority of the regulatory language in the existing 
provisions. However, EPA is proposing additional language that will 
make interim status permitting procedures more consistent with new 
facility permitting procedures and expand the opportunities for public 
participation.
    EPA is also revising provisions for submitting data in lieu of a 
trial burn, Sec. 270.19 for incinerators and Sec. 270.22 for BIFs, to 
reflect actual Agency practice. As currently written, this waiver, 
which the permitting agency can grant to either permitted or interim 
status units, could be seen as relatively open-ended; yet, in actual 
practice, permitting authorities have allowed facilities to use the 
provisions only under a narrow range of circumstances. EPA believes 
that granting the waiver only under a narrow range of circumstances is 
appropriate for the reasons discussed below and, therefore, is 
proposing to revise this provision to specifically restrict application 
to this narrow range. This revision to the regulatory language will 
ensure consistency among permit writers. It could also benefit 
facilities in the following way. The proposed rule will make explicit 
the strict circumstances under which a permitting agency will grant a 
waiver. Once a facility knows these circumstances, it will not misuse 
its resources in compiling a waiver request that the permitting agency 
will not grant; instead, the facility can focus its resources on 
developing a trial burn plan.
    EPA is concerned that units constructed at different locations at 
different times, or with slight design or operating differences, may 
not perform in an identical manner. For example, if the locations are 
at different altitudes, the differences in atmospheric pressure could 
affect the performance of the units. In addition, there would likely be 
different operators running the units at different locations; thus, the 
units may not be operated in an identical manner.
    The Agency believes that the theory of submitting data from other 
units in lieu of conducting a trial burn is sound; however, sufficient 
data is not available to ensure that the theory could be applied to 
real world situations without imposing strict limitations. EPA believes 
that most combustion units will need to conduct trial burns in order to 
develop operating conditions that ensure compliance with the 
performance standards.
    To this end, EPA is proposing today to codify EPA's current policy 
by making the following changes: (1) Replace ``sufficiently similar'' 
with ``virtually identical''; and (2) specify that the units must be 
located at the same facility. The ``data in lieu of'' provision, 
therefore, would not apply to mobile treatment units when moved from 
site to site, since they would not be located at the same facility.
    a. Submittal of trial burn plans for interim status facilities. 
Today's proposed rule would require interim status hazardous waste 
incinerators (proposed Sec. 270.74(a)(1)) and BIFs (proposed 
Sec. 270.74(b)) to submit a trial burn plan with their initial Part B 
permit applications. EPA believes that the trial burn plan for interim 
status facilities should be subject to public notice and available for 
review with the initial Part B application, as it is for new facilities 
seeking permits. EPA's objective in proposing these revisions is to 
involve the public much earlier in the interim status facility 
permitting process than current regulations require.
    EPA intends that today's requirements regarding submittal of the 
trial burn plans for interim status facilities will: (1) Specify the 
point in the permit process when the facility submits the trial burn 
plan, which will be the same point as for new facilities; and (2) 
explicitly provide that interim status facilities must conduct the burn 
in accordance with an approved plan.
    Since EPA is proposing a specific point for trial burn plan 
submittal in the proposed rule, i.e., with the Part B application, the 
Agency is deleting the current provisions that refer to the trial burn 
plan submittal (Secs. 270.62(d) and 270.66(g)).
    b. Approval of trial burn plans for interim status facilities. In 
Sec. 270.74(c)(1), EPA is explicitly requiring that any interim status 
combustion facility that seeks a permit must obtain the Director's 
approval of the trial burn plan before conducting the trial burn. EPA 
is also proposing, in Sec. 270.74(c)(4), that the Director, after 
approving a trial burn plan, must specify a time period during which 
the facility shall conduct the burn. EPA adds this latter requirement 
to ensure that facilities conduct trial burns in a timely manner. The 
Agency believes that requiring the permitting agency's approval of 
interim status trial burn plans will ensure that the facilities submit 
plans that reflect, and the permitting authority reviews the plans in 
the context of, current EPA policy and guidance. EPA also believes that 
today's proposed requirements will ensure that, in most cases, the 
burns will supply adequate data and information to set permit operating 
conditions. This proposed requirement for interim status facilities is 
equivalent to the permitting procedures for new facilities seeking 
permits.
    It should be noted, however, that unlike the procedures for new 
facilities, approval of the trial burn plan for interim status 
facilities is on a separate track from the rest of the permit 
application. As mentioned earlier in this preamble, a new combustion 
facility must receive a permit before building the combustion unit and 
conducting the trial burn. Review and approval of trial burn plans for 
these facilities is concurrent with review and approval of the entire 
permit application; the trial burn plan is just one of many components. 
However, for interim status facilities, the permitting authority does 
not issue the draft permit, or the notice of intent to deny the permit, 
until after the facility conducts the trial burn. Since facilities must 
conduct the burn in accordance with a plan approved by the permitting 
agency, it is clear that the plan must be on a separate approval track 
from the rest of the permit application. Furthermore, interim status 
facilities typically must revise their permit applications to reflect 
the results of the burn, so that the conditions set in the permit can 
be based on conditions known to ensure compliance with the performance 
standards.
    c. Notices of trial burns. In today's proposed rulemaking, EPA is 
seeking to expand opportunities for public involvement during the trial 
burn phase of the combustion permitting process for both new and 
interim status facilities. EPA requests comments on whether the 
facility or the permitting authority should be responsible for 
publishing the public notices discussed in the following sections.
    c.1. Permitted combustion facilities. EPA is proposing, in 
Sec. 270.62(b)(6) for incinerators and Sec. 270.66(d)(3) for BIFs, to 
require the Director to send a notice of the expected trial burn 
schedule to all persons on the mailing list and to appropriate units of 
State and local government. As mentioned previously in the preamble, 
the trial burn plan is available for public review at other points in 
the permitting process (e.g., at application submittal, at draft permit 
issuance, and at final permit determination). Thus, unlike the notice 
requirement for interim status facilities, explained in the section 
below, the notice of the trial burn schedule for permitted facilities 
does not refer to the trial burn plan.
    EPA recognizes that, in a limited number of situations, 
circumstances beyond the control of the facility or the permitting 
authority could delay a trial burn. It is not EPA's intent, in these 
limited situations, to require an additional notice with a revised burn 
schedule.
    The notice must contain the following information, specified in 
Secs. 270.62(b)(6) or 270.66(d)(3): (1) Name and telephone number of 
the facility's contact person; (2) name and telephone number of the 
permitting authority's contact office; (3) location where the approved 
trial burn plan and any supporting documents are available for review; 
and, (4) the expected time period during which the facility is 
scheduled to conduct the trial burn. Including this information in the 
notice enables members of the public to speak with a person who is 
knowledgeable about the trial burn plan, and to be aware of an imminent 
trial burn in their community.
    c.2. Interim status combustion facilities. In Sec. 270.74(c)(3), 
EPA is proposing notice requirements for interim status facilities that 
are similar to the requirements for permitted facilities. The proposed 
rule will require the Director to send a notice to all persons on the 
mailing list and appropriate units of State and local government, 
informing them of the proposed approval of the trial burn plan and the 
expected trial burn schedule. The Agency is requiring this notice 
before the permitting authority approves the plan in order to provide 
an additional opportunity for the public to review the final draft 
plan. It should be noted that, for interim status facilities, the 
Director's decision to approve the trial burn plan is not subject to 
administrative appeal.
    EPA recognizes that the draft plan submitted with the initial Part 
B application may differ significantly from the final version that the 
permitting authority approves. EPA wants to ensure that the public has 
a chance to see the revisions prior to approval and the actual burn. 
EPA would like to solicit comments on whether the Agency should 
establish a comment period for interim status facilities prior to 
approving the trial burn plan, in view of the fact that, for permitted 
facilities, the public has an opportunity to comment on the draft trial 
burn plan as part of the draft permit process.
    Currently, there are less public involvement opportunities for 
interim status facilities than there are for permitted facilities, with 
regard to the review of trial burn plans. As mentioned previously, for 
permitted facilities, the public has the opportunity to review the 
trial burn plan at both the application and draft permit phases before 
a trial burn occurs.
    The notice must contain the information specified in proposed 
Sec. 270.74(c)(3). The notice should include the following: (1) Name 
and telephone number of the facility's contact person; (2) name and 
telephone number of the permitting authority's contact office; (3) 
location where the draft trial burn plan and any supporting 
documentation are available for review; and (4) a schedule of 
activities that are required prior to permit issuance, including the 
date by which the Director expects to approve the plan and the expected 
time period during which the facility is scheduled to conduct the trial 
burn and submit results to the Director (refer to proposed 
Sec. 270.74(c)(4)). Including this information in the notice enables 
the public to speak with a person who is knowledgeable about the trial 
burn plan, receive or review additional information, and learn of an 
imminent trial burn in their community.
    As stated earlier, interim status facilities will conduct the trial 
burn prior to permit issuance, as required by current regulations. 
Although the public will have an opportunity to review the trial burn 
plan, since it must be submitted with the initial Part B application, 
in accordance with today's proposed requirements in Sec. 270.74(a) or 
(b), a significant amount of time may elapse before the Director 
approves the plan and announces the facility's expected schedule for 
the burn. EPA believes that it is important to inform the public of the 
Director's proposed approval of the trial burn plan, separate from the 
rest of the Part B permit application, and the anticipated time period 
for conducting the burn. Again, this is consistent with the Draft 
Combustion Strategy goal of promoting public involvement in the trial 
burn stage.
    d. Post-trial burn period at interim status combustion facilities. 
In today's rule, EPA is proposing that interim status combustion 
facilities be subject to the performance standards of Sec. 264.343, for 
incinerators, or Secs. 266.104 through 266.107, for BIFs, upon 
completion of the trial burn. During the post-trial burn period, 
interim status facilities must operate only under conditions that 
passed and were demonstrated to meet these performance standards, and 
only if the successful trial burn data is sufficient to set all 
applicable operating conditions. EPA has provided information, in its 
June 1994 Guidance on Trial Burn Failures, for determining whether 
conditions resulted in non-compliance and under what circumstances 
successful data from the trial burn is sufficient to set all applicable 
operating conditions.
    This proposal is more stringent than current regulations and 
practices. Currently, no regulations provide for setting post-trial 
burn conditions at interim status facilities. EPA believes that these 
proposed regulations will give the permitting agency the direct 
authority it needs to restrict these interim status facilities' 
operations to ensure that they are in compliance with the basic 
performance standards applicable to permitted facilities during the 
post-trial burn period. Establishing these requirements will ensure 
that interim status combustion facilities are operating in a manner 
that is protective of human health and the environment during the post-
trial burn period.
    This proposed requirement for interim status facilities is 
consistent with the post-trial burn requirements for permitted 
facilities. It is also consistent with EPA's draft model permit 
(September 1988), which has wording for the permitting agency to 
incorporate into combustion permits regarding temporary restriction of 
operating conditions following the trial burn.
    Today's proposed rule supports and builds upon the language 
contained in the draft model permit. EPA is proposing that if the trial 
burn data for an interim status combustion facility show non-compliance 
with any set of the performance standards, then the facility will be 
required to (1) immediately cease operating under the condition(s) that 
resulted in non-compliance and (2) notify the Director. The facility 
may only continue operating if there are enough successful data from 
the trial burn to set all applicable operating conditions, and the 
facility is able to modify its design and/or limit its operating 
conditions to operate within the performance standards.
    For example, one component in establishing a complete set of 
operating conditions is determining a maximum and a minimum combustion 
temperature. A maximum temperature is important for the metals 
volatilization standard; a minimum temperature is important for the 
destruction and removal efficiency (DRE) standard. For the sake of 
simplicity, this example assumes that the facility tested under only 
two temperature conditions, a high and low temperature, and that all 
other variables remained constant. By setting minimum and maximum 
temperature limits, the test burn can establish an operating 
``envelope,'' in other words, a range of temperatures within which the 
facility can operate safely in compliance with the performance 
standards. If the trial burn results show that the high temperature was 
successful, but that the low temperature was not sufficient to meet 
performance requirements, then there may not be enough successful data 
to set all applicable operating conditions. In this example, the 
facility would be required to stop operating.
    On the other hand, following up on the above example, a facility 
may want to run tests over a range of temperatures in order to avoid 
shutdown. By running multiple temperature tests, the facility could 
attempt more conservative tests, as well as tests that would push the 
combustion unit's operating envelope. For instance, a facility may plan 
to conduct multiple tests to establish its minimum operating 
temperature. Thus, a facility may choose to test at two temperatures, 
e.g., low and medium. If the trial burn results show that the low 
temperature could not meet the performance standards, but the medium 
temperature did, then enough successful data would exist to set all 
applicable operating conditions. In this scenario, the facility would 
restrict its operations to burn between the medium and the high 
temperature during the post-trial burn period and, thus, would continue 
operating within the performance standards.
    EPA intends for the facility to be responsible for restricting its 
operations if any of the trial burn data show non-compliance with 
performance standards. If the facility wishes to continue operating 
under restricted conditions during the post-trial burn period, it must 
provide to the Director a description of the conditions under which it 
is operating, and a preliminary explanation of how the conditions were 
determined to be sufficient to ensure that the unit functions within 
the performance standards. EPA is proposing to require facilities to 
submit this information with the trial burn results. As currently 
required in Secs. 270.62(b)(7) and (8) for incinerators, and 
270.66(d)(3) and (4) for BIFs, facilities must submit the results of 
the trial burn and any data from the trial burn within 90 days of 
conducting the burn. As part of the proposed consolidation of the 
permitting procedural requirements for interim status combustion 
facilities, EPA has also reiterated this requirement by incorporating 
it, by reference, into Sec. 270.74(c)(5).
    EPA is proposing, in Sec. 270.74(c)(6), to give the Director the 
discretion to further restrict operating conditions during the post-
trial burn period to ensure that the unit is operated within the 
performance standards. The Director will make a determination on the 
need for further restrictions after reviewing the trial burn data and 
the preliminary explanation submitted by the facility within 90 days of 
the trial burn. The Director will inform the facility, in writing, of 
any operational restrictions that he or she is imposing on the facility 
beyond those listed by the facility in its preliminary explanation.
    e. Additional trial burns. The existing permit modification 
procedures (Sec. 270.42) contain provisions to address additional trial 
burns at permitted combustion facilities. As mentioned previously, 
public involvement opportunities are built into the permit modification 
procedures. The procedures require the permitting authority to notify 
the public when any change is made to the existing permit through these 
procedures. Since the permit modification procedures do not apply to 
interim status facilities, EPA is proposing, in Sec. 270.74(c)(7), to 
specify requirements for additional trial burns at interim status 
combustion facilities. As discussed in the previous section, if any 
results of a trial burn at an interim status combustion facility show 
non-compliance with any set of the performance standards, the facility 
must restrict its post-trial burn operations to conditions that passed 
and demonstrated compliance with performance standards. At this point, 
there are two potential courses of action a facility may follow. On one 
hand, the facility may choose to revise its Part B application to 
exclude those conditions. A facility that opts for this course of 
action is, in essence, choosing not to pursue those conditions in its 
final permit. For example, if the facility failed conditions relating 
to burning of aqueous wastes, it may decide to restrict its long-term 
operations by handling only non-aqueous wastes; the facility would then 
reflect that decision in its permit application.
    Alternatively, a facility may choose to revise its trial burn plan 
to address the reasons for the failure and then conduct an additional 
burn under improved design or operating conditions. EPA believes that 
the majority of facilities that fail trial burn condition(s) will 
choose this latter course of action in order to establish permit 
conditions that meet their needs for long-term operation.
    EPA believes that there may be a misconception that permitting 
authorities allow facilities to run the same conditions over and over 
again without making any changes. The Agency would like to remove any 
confusion over its policy regarding performance of additional trial 
burns when a test condition fails. It is important first to recognize 
that a facility spends a considerable amount of time and resources on 
the trial burn, and intends to pass the first time. An informal poll of 
EPA Regions showed that only a dozen additional trial burns for 
incinerators have occurred to date.
    Furthermore, EPA has clarified, in its Guidance on Trial Burn 
Failures (June 1994), the circumstances under which facilities would be 
allowed to run additional trial burns. According to this guidance, 
facilities may submit a request to conduct an additional trial burn to 
the Director. As part of this request, the facility should demonstrate 
that it has investigated the reasons for the failure and describe 
planned substantive changes to its process. A facility should not be 
allowed to retest under the same design and operating conditions at 
which it failed. The facility should demonstrate in a revised trial 
burn plan that the changes to its design and/or operations are 
sufficient to prevent failure from reoccurring. The Director reviews, 
and either approves or denies, the request. The Director should not 
approve an additional trial burn unless the facility has demonstrated 
satisfactorily that the changes proposed in the revised trial burn plan 
are likely to meet the performance standards.
    As indicated in the trial burn guidance, existing EPA policy allows 
for facilities to conduct additional trial burns. Current regulations, 
on the other hand, do not specifically address permitting procedures 
for interim status combustion facilities for the limited number of 
situations when facilities would request additional burns. Today's 
proposed rule establishes procedures for these situations and builds 
upon EPA's current policy by incorporating the circumstances described 
in guidance into proposed regulatory language.
    Under proposed Sec. 270.74(c)(7), interim status combustion 
facilities may request an additional trial burn. According to the 
proposed section, the facility's request for an additional trial burn 
must contain an explanation of the reasons for the previous trial burn 
failure, as well as a revised trial burn plan that has substantive 
changes to address the reasons for the previous failure. EPA encourages 
facilities that pursue this option to fulfill the above requirement by 
expanding the preliminary explanation that they are required to provide 
in order to continue operating during the post-trial burn period (as 
discussed in the previous section). The Agency believes that these 
provisions, along with the requirement that the permitting agency 
approve trial burn plans before the facility conducts the burn, will 
help ensure that facilities conduct trial burns properly and the public 
is informed throughout the process.
    EPA believes it is important to inform the public when the 
permitting authority anticipates an additional trial burn. Thus, in 
proposed Sec. 270.74(c)(7), the rule will require the Director to 
inform the people on the mailing list and appropriate units of State 
and local government once he or she has reviewed the revised trial burn 
plan and has tentatively decided to approve it. This notice will 
provide the public with an opportunity to review the revised plan, and 
see the rationale for the additional burn. EPA wants the public to be 
aware of the reasons why the facility believes the additional run will 
be successful. The Director's decision to approve a revised trial burn 
plan is not subject to administrative appeal.
    f. Denial of permit application after the trial burn. There may be 
occasions when a combustion facility cannot demonstrate compliance with 
the performance standards through the trial burn, or has not 
demonstrated to the Director that an additional burn is likely to 
address the causes of the previous failure. In the case of permitted 
facilities, the Director may choose to terminate the permit. Existing 
regulations in Sec. 270.43 provide the Director with the authority to 
terminate a permit for cause, following procedures set forth in part 
124.
    EPA would like to provide similarly clear authority to the Director 
in the case of interim status combustion facilities. Existing 
regulations in Sec. 270.29 provide the Director with authority to deny 
a permit application, pursuant to procedures in part 124. In order to 
clarify the applicability of this provision to trial burn failure 
situations, EPA is proposing, in Sec. 270.74(c)(8), to provide specific 
authority for the Director to deny a permit, pursuant to procedures in 
part 124, for an interim status combustion facility, based on the 
facility's inability to demonstrate compliance with the performance 
standards. It is not EPA's intent, in providing this authority, to 
imply that the Director would deny a permit automatically if the 
facility failed any of the trial burn plan conditions. Every facility, 
permitted and interim status alike, will have the option of requesting 
and proving that it can meet the requirements for an additional burn.
    In keeping with EPA's goal of involving the public at key points in 
the permit process, EPA would like to reiterate that the current 
procedures for permit denial, set forth in part 124, include 
requirements for the permitting authority to notify to the public of 
intent to deny the permit application.

IV. Solicitation of Comments

    EPA is soliciting comments on a number of items in today's proposed 
rule. The following is a list of the items on which EPA solicits 
comment in the preamble. Detailed discussions of each of the items can 
be found in the relevant sections of the preamble. For ease in 
referencing these sections, the items are briefly summarized below.

A. Expanded Public Participation

1. Equitable Public Participation
    EPA is asking for comments, in section 4.a: Equitable Public 
Participation, on how the requirements proposed in Sec. 124.30 could be 
implemented.
2. Environmental Justice
    EPA is soliciting comments, in section 4.a.1: Agency activities 
dealing with environmental justice, on several items relating to 
environmental justice. For instance, EPA is interested in receiving 
comments on ways to incorporate environmental justice concerns into the 
RCRA public participation process. EPA is also requesting comments on 
the need for additional rulemaking or policy guidance for incorporating 
environmental justice into certain aspects of the RCRA permitting 
program, such as corrective action. The Agency is also interested in 
receiving comments on suggested methodologies and procedures for 
undertaking analysis of ``cumulative risk'' and ``cumulative effects'' 
associated with human exposure to multiple sources of pollution. 
Finally, EPA is soliciting comments on some of the recommendations 
developed by the OSWER Environmental Justice task force, discussed in 
section 4.a.1.
3. Pre-Application Meeting--Applicability
    EPA is soliciting comments on the applicability of the pre-
application meeting requirements in two sections. In section 4.b: 
Applicability of Pre-application Meeting, EPA is requesting comments on 
whether the pre-application meeting should apply to permit renewal 
applications. In section 5.b: Requirements for the Pre-application 
Meeting, EPA is requesting comment on whether the requirements should 
apply to all facilities or only to certain groups (e.g., incinerators, 
commercial facilities). EPA is also requesting comments on whether the 
permitting authority should attend the pre-application meeting.
4. Pre-Application Meeting--Possible Alternative
    In section 4.b: Applicability of Pre-application Meeting, EPA is 
requesting comments on whether a State's public participation meeting 
for siting a facility should be an allowable substitute for today's 
proposed pre-application meeting.
5. Pre-application Meeting Notice Requirements
    As discussed in section 5.b.1: Providing Notice of the Pre-
application Meeting, EPA would like comments on whether these expanded 
notice requirements should apply to other notices during the RCRA 
permitting process. EPA also requests comments on how to implement the 
alternative notice provision in the regulations without prescribing a 
specific formula or approach that may not be appropriate in all 
circumstances.
6. Public Notice at Permit Application--Applicability
    EPA is requesting comments in section 4.c: Applicability of Public 
Notice at Permit Application on whether today's proposed requirements 
should also apply to post-closure permits.
7. Public Notice at Permit Application--Responsibility
    In section 5.c: Requirement for Public Notice at Permit 
Application, EPA is requesting comments on whether the permitting 
authority or the facility should be responsible for providing the 
public notice at application submittal.
8. Information Repository
    EPA is requesting comments on the proposed information repository 
requirements described in section 5.d: Requirement for an Information 
Repository. For example, at what time during the permitting process 
would it be useful to have the repository be maintained or terminated? 
Should the repository be limited to certain types of facilities? What 
specific documents would the public like to see in the repository?

B. Requirements Regarding the Trial Burn

1. Notices of Trial Burns
    In section 4.c: Notices of Trial Burns, EPA is requesting comments 
on whether the permitting authority or the facility should be 
responsible for providing public notices during the trial burn stage. 
EPA is also requesting comments, in section 5.c.2: Interim Status 
Combustion Facilities, on whether the Agency should establish a comment 
period for interim status facilities prior to approving the trial burn 
plan, in view of the fact that, for permitted facilities, the public 
has an opportunity to comment on a draft trial burn plan as part of the 
draft permit process.

C. Cost Estimates

    In section VI. Regulatory Impact Analysis Pursuant to Executive 
Order 12866, EPA is asking for comments on the data and methodologies 
used to derive the cost estimates associated with this proposed rule.
    EPA intends to consider all comments on these, and any additional, 
items before drafting a final rule.

V. State Authority

A. Applicability of Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified states to 
administer and enforce the RCRA program within the state (see 40 CFR 
part 271 for the standards and requirements for authorization). 
Following authorization, EPA retains enforcement authority under 
sections 3008, 7003, and 3013 of RCRA, although authorized states have 
primary enforcement responsibility.
    Prior to enactment of the Hazardous and Solid Waste Amendments 
(HSWA) of 1984, a state with final RCRA authorization administered its 
hazardous waste program entirely in lieu of the federal program. The 
federal requirements no longer applied in the authorized state, and EPA 
could not issue permits for any facilities in that state, since only 
the state was authorized to issue RCRA permits. When new, more 
stringent federal requirements were promulgated or enacted, the state 
was obligated to enact equivalent authority within specified 
timeframes. However, the new federal requirements did not take effect 
in an authorized state until the state adopted the requirements as 
state law.
    In contrast, HSWA amended RCRA to add section 3006(g) (42 U.S.C. 
6926(g)). Under section 3006(g), new requirements and prohibitions 
imposed under HSWA authority take effect in authorized states at the 
same time that they take effect in nonauthorized states. EPA is 
directed by statute to implement those requirements and prohibitions in 
authorized states, including the issuance of permits, until the state 
is granted authorization to do so. While states must still adopt HSWA-
related provisions as state law to retain final authorization, the HSWA 
requirements are implemented by EPA in authorized states in the 
interim.
    Today's proposal is promulgated pursuant to pre-HSWA authority. 
These provisions, therefore, would become effective as RCRA 
requirements in states with final authorization once the state has 
amended its regulations and the amended regulations are authorized by 
EPA. However, EPA would like to encourage States to adopt the changes 
proposed today expeditiously, and implement them as part of their own 
programs as rapidly as possible.

B. Effect on State Authorizations

    The provisions of this rule are proposed under pre-HSWA authority. 
This section discusses the implications of the pre-HSWA authority on 
EPA's and the states' implementation, and the schedule for state 
adoption of these new requirements.
1. Pre-HSWA Provisions
    a. Part 270--Hazardous Waste Permitting. The provisions of today's 
proposal that would affect the permitting and permit modification 
procedures for combustion units (BIFs and incinerators) are proposed 
under pre-HSWA authority. These provisions include revised 
Secs. 270.22(a) and 270.19(d) which clarify allowable circumstances for 
using the ``data in lieu of trial burns'' in connection with permitting 
combustion units; proposed Sec. 270.74, and revisions to Secs. 270.62 
and 270.66 for permitted units, which would add new procedures for 
public involvement in the trial burn planning and trial burn phases for 
both permitted and interim status combustion facilities, make interim 
status procedures more equivalent to permitted, and require interim 
status facilities to comply with performance standards during the post-
trial burn period. In addition, the proposed amendments to the permit 
modification provisions of Sec. 270.42 (to distinguish further between 
the shakedown and trial burn phases when modifying permitted combustion 
units) are also based on pre-HSWA provisions. These provisions of the 
proposal, since they are based on pre-HSWA authority, will apply 
immediately only in those states that do not have RCRA authorization. 
In authorized states, these requirements will not apply until the 
states revise their programs to adopt requirements under state law that 
are at least as stringent and have these new requirements approved by 
EPA.
    b. Part 124--Public Participation Requirements. EPA desires to 
provide for, encourage and assist public participation. This proposed 
rule would establish procedures to promote better and more timely 
information sharing between the public, the state, EPA, and the 
facility applicant. The following is required under the part 124 
regulations to comply with new public participation requirements: A 
pre-application meeting, a notice of application, and an information 
repository. However, these provisions, since they are based on pre-HSWA 
authority, will apply immediately only in those states that do not have 
RCRA authorization. In authorized states, these requirements will not 
apply until the states revise their programs to adopt requirements 
under state law that are at least as stringent and have these new 
requirements approved by EPA.
2. Procedures Applicable to Pre-HSWA Provisions
    40 CFR 271.21(e) requires that states that have final authorization 
must modify their programs to reflect federal program changes and must 
subsequently submit the modifications to EPA for approval. The 
deadlines for state modifications are set out in Sec. 271.21(e)(2), and 
depend upon the date of promulgation of final rules by EPA, announcing 
the program changes. For example, if a final regulation based on this 
proposal is promulgated by EPA before June 30, 1995, the deadline by 
which the states must modify their programs to adopt this regulation 
would be July 1, 1996 (or July 1, 1997 if a state statutory change is 
needed). These deadlines can be extended in certain cases (see 40 CFR 
271.21(e)(3)). Once EPA approves the modifications, the state 
requirements become RCRA subtitle C requirements.
    States with authorized RCRA programs may already have requirements 
similar to those proposed today. These state regulations have not been 
assessed against final federal regulations to determine whether they 
meet the tests for authorization. Thus, similar provisions of state law 
are not considered to be authorized RCRA requirements until they are 
submitted to EPA and evaluated against final EPA regulations. Of 
course, states may continue to administer and enforce their existing 
standards as a matter of state law.
    States that submit their official applications for final 
authorization less than 12 months after the effective date of final 
standards are not required to include standards that are at least as 
stringent as these standards in their application. However, states that 
submit final applications for final authorization 12 months or more 
after the effective date of the final standards must include standards 
that are at least as stringent as these standards in their 
applications. 40 CFR 271.3 sets forth the requirements that states must 
meet when submitting final authorization applications. Because the 
proposed public participation requirements in Sec. 270.74 represent a 
significant upgrade to the combustion unit permitting process, EPA 
strongly encourages States that have not yet adopted the BIF rule (56 
FR 7134, February 21, 1991) to adopt these new public participation 
procedures concurrently with their BIF rules, rather than deferring 
their adoption to the much later deadline that would apply under the 
Cluster Rule to this new regulation. It should be noted that in 
situations where EPA retains permitting authority for BIFs (because the 
State has not yet received authorization for BIFs), EPA may implement 
both the permitting and public involvement procedures described in 
today's proposed rule. In this joint permitting situation, EPA would be 
the responsible Agency for the BIF permitting requirements in 
unauthorized States that are not authorized to issue BIF permits.
    EPA believes that the overall effect of this proposed regulation 
would increase the stringency of the RCRA permitting processes. 
Therefore, all authorized states will be obligated to modify their 
programs to adopt these requirements when they are finalized by EPA, 
unless their existing state programs and laws are deemed by EPA to be 
equivalent in effect. For those states which are obligated to modify 
their programs to adopt these requirements when they are finalized by 
EPA, Sec. 271.21(e) deadlines for state modifications will apply 
accordingly.
    In developing today's proposed regulations, EPA was sensitive to 
impacts on existing State programs. The proposed requirements may be 
viewed as performance objectives the Agency wants States to meet. It is 
not EPA's intent to restrict States from using similar activities that 
accomplish the same objectives. Therefore, EPA will allow latitude and 
room for interpretation when reviewing state modifications for adopting 
these regulations.

VI. Regulatory Impact Analysis pursuant to Executive Order 12866

    Under Executive Order 12866, (58 FR 51735, October 4, 1993) the 
Agency must determine whether a regulatory action is ``significant'' 
and therefore subject to review by the Office of Management and Budget 
(OMB) and to the requirements of the Executive Order, which include 
assessing the costs and benefits anticipated as a result of the 
proposed regulatory action. The Order defines ``significant regulatory 
action'' as one that is likely to result in a rule that may: (1) Have 
an annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities; (2) 
create serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; (3) materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order.
    OMB has determined this is a significant rule under Executive Order 
12866. Pursuant to the terms of Executive Order 12866, this section of 
the preamble summarizes the potential economic impacts of the proposed 
RCRA Expanded Public Participation and Revisions to Combustion 
Permitting Procedures rule.
    Based upon the economic impact analysis for today's proposed rule, 
the Agency's best estimate is that the requirements regarding expanded 
public participation before and during permit application would result 
in an incremental national annual cost of $130,000 to $380,000.
    In addition, the annualized incremental national cost of the 
permitting requirements in today's proposed rule is estimated to be 
between $0 to $520,000. EPA expects that much of the effect of the 
permitting provisions in today's proposed rule will be to clarify and 
codify current practice.
    Based upon the economic impact analysis for today's proposed rule, 
the Agency's best estimate is that the requirements of today's proposed 
rule would result in an incremental national annual cost of $130,000 to 
$900,000.
    A complete discussion of the economic impact analysis is available 
in the regulatory docket for today's proposed rule in a report entitled 
``Economic Impact Analysis for the Proposed RCRA Expanded Public 
Participation and Revisions to Combustion Permitting Procedures Rule.''
    EPA requests comments on the data and methodologies used to derive 
the estimates described below and in the background document.

A. Cost Analysis

    This section summarizes estimated costs and potential impacts of 
two aspects of today's proposed rule: (1) Expansion of opportunities 
for public involvement in the permitting process, and (2) modification 
of combustion unit permitting requirements. These two pieces of the 
proposed rule affect a different universe of facilities at different 
stages in the permitting process and, thus, are presented separately.
1. Expanded Public Involvement Opportunities
    Most of the requirements of the expanded public involvement portion 
of today's proposed rule apply only to new hazardous waste treatment, 
storage, and disposal permit applications. With the exception of the 
information repository requirement (see below), the expanded public 
involvement requirements do not apply to post-closure permits and 
permit modifications.
    EPA estimates that, over the next ten years, the bulk of new permit 
applications will be submitted by the 159 interim-status boilers and 
industrial furnaces (BIFs). In addition, based on information provided 
by the Regional permit writers, EPA estimates that an additional 53 to 
127 new treatment, storage, and disposal facilities (for a total of 212 
to 286 facilities) will submit permit applications over the next ten 
years.
    Today's proposed rule includes several requirements that would 
result in direct costs to facilities submitting new permit 
applications. The analysis estimates the costs to all affected 
facilities of (1) Preparing a public notice announcing the intention to 
submit a permit application and to hold a public meeting; (2) 
disseminating the public notice in local newspapers and over the radio; 
and (3) holding a public meeting and preparing a transcript.
    In addition, for communities with a non-English speaking 
population, the rule will require the facility to ``make all reasonable 
efforts to communicate with the community in ways that reach all 
segments.'' Based on conversations with RCRA and Superfund Regional 
community relations specialists and on data about existing RCRA 
facilities, this analysis assumes that between 5%-30% of the facilities 
(11 to 86 facilities over the next ten years) will fulfill this 
requirement by publishing multi-lingual notices and providing an 
interpreter at the public meeting.
    Finally, the rule will give the Director the discretion to require 
a facility to set up an information repository, based on the level of 
public interest or other factors. This requirement can apply anywhere 
in the permitting process, including post-closure permits, permit 
renewals, and permit modifications. Thus in addition to the interim 
status BIFs and the new facilities mentioned above, the repository 
requirement can apply, at the discretion of the Director, to the 
approximately 4,100 treatment, storage, and disposal facilities that 
EPA expects will undergo permit renewals, modifications, or closure 
over the next ten years. EPA estimates that 15-20% of the estimated 212 
to 286 facilities submitting a new Part B application, and 1% of the 
4,100 already-permitted facilities (73 to 98 facilities total) would be 
affected over the next ten years by the repository requirement in 
today's proposed rule.
    The total cost per facility of the above requirements is 
approximately $5,000 to $14,000. Annualized over a ten-year period, 
using a 7% discount rate, the resulting national annual cost of the 
expanded public involvement requirements is estimated to be between 
$130,000 to $380,000.
2. Modification of the Permitting Process
    a. Direct costs. Today's proposed rule includes two new permitting 
requirements that have direct cost implications for the regulated 
universe: (1) Changing the ``data in lieu of'' requirements, and (2) 
specifying the events that follow a trial burn failure.
    Currently, interim status combustion facilities have the option of 
submitting ``data in lieu of'' a trial burn for a unit that is 
``sufficiently similar'' to an already-permitted unit. Today's proposed 
rule proposes changing the requirements for ``data in lieu of'' by 
requiring the units to be ``virtually identical'' and to be located at 
the same facility.
    Based on information from trial burn contractors, preparing a trial 
burn plan and conducting a trial burn costs about $110,000 to $550,000 
per facility. Submitting ``data in lieu of'' a trial burn is assumed to 
cost approximately the same as preparing a trial burn plan, or $10,000 
to $50,000. The net incremental cost of denying the ``data in lieu of'' 
option would be $100,000 to $500,000 per affected facility.
    EPA estimates that between zero and eight percent (0-13 facilities 
total) of the interim-status BIFs could incur a cost of doing a trial 
burn due to this proposed rule. The resulting annual national cost is 
$0 to $520,000.
    The low end of the affected facility universe is ``zero'' because, 
although submission of ``data in lieu of'' a trial burn is an option 
under current regulations for a facility with ``sufficiently similar'' 
units, it appears that facilities almost never exercise this option. 
EPA guidance on trial burns states that ``although it is possible to 
satisfy this requirement by submitting information showing that a trial 
burn is not required, this is a rare occurrence * * *.''2 Neither 
of the trial burn contractors that were contacted was aware of a 
successful ``data in lieu of'' application. Regional permit writers 
knew of a few permits that were granted based on the ``data in lieu 
of'' provision, but in those cases the units were determined to be 
identical and, therefore, would still qualify under today's proposal. 
Thus it is likely that the main effect of changing the ``data in lieu 
of'' provision will be to clarify already existing practices, and to 
reflect more realistic situations and how EPA currently interprets this 
provision.
---------------------------------------------------------------------------

    \2\Guidance on Setting Permit Conditions and Reporting Trial 
Burn Results. US EPA January 1989.
---------------------------------------------------------------------------

    The second permitting requirement that may result in a direct cost 
to the regulated community is the delineation of the process following 
a trial burn failure. Today's proposed rule proposes that, following a 
trial burn failure, (1) The combustion facility must immediately 
restrict operation for those conditions that failed the trial burn, and 
(2) the combustion facility must either revise the permit application 
to reflect the new conditions (estimated cost $5,100), or revise the 
trial burn plan and rerun the trial burn (estimated cost $110,000 to 
$550,000).
    EPA estimates that 4% of interim status combustion units (six 
facilities over the next twenty years) will fail a trial burn for one 
or more conditions. Of these, 17% (one facility) is expected to simply 
revise the permit application and 83% (five facilities) are expected to 
revise the trial burn plan and rerun the trial burn. Annualized over a 
ten year period, discounted at 7%, the resulting annualized national 
total cost of facility actions that follow a trial burn failure is 
$70,000 to $340,000.
    Although the above costs can be attributed to today's proposed 
rule, EPA does not expect there to be any true incremental costs. 
Currently, if an interim status facility fails a trial burn, the 
permitting authority can deny the permit. In addition, based on 
conversations with EPA Regional permit writers, no permit writer would 
grant a permit to a facility that failed the trial burn unless the 
facility re-ran (and passed) the trial burn or revised the permit 
conditions. Thus, the incremental cost of this proposed requirement, 
when current practices are taken into account, is $0. The main effect 
of the delineation of the process that follows trial burn failures 
would be to clarify current permitting requirements.
    In summary, the potential annualized total national cost for the 
permitting section of today's proposed rule is estimated to be $70,000 
to $860,000. The annualized incremental cost, when current practices 
are taken into account, is estimated to be between $0 to $520,000. EPA 
expects that the main effect of the permitting provisions of today's 
proposed rule will be to clarify and codify current practice.
    b. Other effects. In addition to the costs estimated above, the 
requirement that interim status combustion facilities be subject to the 
performance standards of Sec. 264.342 (for incinerators) or 
Sec. 266.104 through Sec. 266.107 (for BIFs) upon completion of trial 
burn has the potential to impose costs due to the restricted operating 
conditions.
    However, despite the proposed restriction following trial burn 
failure, operations at the affected units are not expected to cease 
entirely, because the proposed restriction on operations pertains only 
to the condition(s) that fail to meet the specifications in the trial 
burn plan. The unit can continue operations under a modified design 
and/or operating conditions that are sufficient to allow the unit to 
function within the performance standards. In addition, the restriction 
lasts only until the trial burn plan is revised and a new trial burn 
occurs or the permit application is modified. Therefore, EPA does not 
expect this provision to significantly disrupt facility operation or 
impose significant additional costs.

B. Summary of Benefits

    The RCRA permitting program was developed to protect human health 
and the environment from the risks posed by the treatment, storage, and 
disposal of hazardous waste. By improving and clarifying the permitting 
process, today's proposed rule produces environmental benefits that 
result from a more efficient permitting process. Below is an 
explanation of how each of the provisions of today's rule provides 
benefits.
1. Expanded Public Involvement Opportunities
    The main benefit of the expanded public participation requirements 
of today's rule is to provide more opportunities for the public to 
become involved early in permitting decisions regarding hazardous waste 
storage, treatment, and disposal facilities that may ultimately affect 
their communities. EPA believes these requirements will allow 
applicants and permitting authorities the opportunity to address public 
concern in making decisions about the facility and the proposed permit.
    Providing the public with an expanded role in the permit process, 
by promoting community participation and input at all decision-making 
levels, also will help to foster continued community involvement after 
sites become permitted.
    In addition, expanding public involvement opportunities should 
streamline the permitting process, since public issues will be raised 
and addressed earlier in the process. Currently, the public does not 
formally get involved in the permitting process until the draft permit 
stage. This stage occurs after the permitting agency and the permit 
applicant have discussed crucial parts of the Part B application; thus, 
the public feels that most major decisions on the permit have already 
been made at this point.
2. Modification of the Permitting Process
    One benefit of the permitting provisions of today's rule is to 
clarify current practices and, therefore, facilitate the permitting 
process by making it easier to understand for the public and the 
regulated community.
    For example, today's proposal moves Sec. 270.62(d) and 
Sec. 270.66(g), which address interim status requirements, to proposed 
Sec. 270.74, where the majority of the interim status provisions are 
contained. The wording is essentially the same, clarifying when the 
facility must submit the trial burn plan and emphasizing that the 
permitting authority must approve the trial burn plan before the 
facility may conduct the trial burn. The new language structure 
presents the requirements chronologically and makes the regulation 
easier to understand.
    EPA is also stating in Sec. 270.74(c)(1) that interim status 
combustion facilities seeking permits must receive approval of the 
trial burn plan by the Director before conducting the trial burn. EPA 
believes that making the requirements more explicit will ensure that 
trial burn plans reflect EPA policy and guidance, and that the burns 
will be adequate to set permit operating conditions. As discussed in 
the cost analysis section, EPA is also proposing a revision of the 
provision for submitting data in lieu of a trial burn (Sec. 270.19 for 
incinerators and Sec. 270.22 for BIFs) to reflect current practices.
    By specifying that a unit must be ``virtually identical'' to, and 
at the same facility as, a permitted unit, instead of ``sufficiently 
similar'', today's rule will remove any confusion surrounding the 
interpretation of the ``data in lieu of'' option and will reflect EPA's 
current interpretation of this provision.
    Another aspect of the permitting process that may cause confusion 
is the fact that, although existing EPA policy allows the facility to 
conduct additional trial burns, current regulations do not specifically 
address permitting procedures following an interim status facility 
trial burn failure. Today's proposed rule, by clarifying existing EPA 
policy, will help state what actions follow a trial burn failure.
    Finally, today's proposed rule describes in more detail the phases 
of both shakedown and the trial burn permit modifications listed under 
section L.7 of Appendix I, and clarifies how a facility may implement 
and utilize section 270.42(d) of the modification procedures. This 
revision will simplify a facility's compliance with the modification 
process by making it easier for a facility to select the appropriate 
classification for the modification activity.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) of 1980 requires Federal 
agencies to consider ``small entities'' throughout the regulatory 
process. Section 603 of the RFA requires an initial screening analysis 
to be performed to determine whether small entities will be adversely 
affected by the regulation. If the analysis identifies affected small 
entities, regulatory alternatives must be considered to mitigate the 
potential impacts. Small entities as described in the Act are only 
those ``businesses, organizations and governmental jurisdictions 
subject to regulation.''
    In developing the proposed regulations for expanding public 
involvement in the RCRA permitting process, EPA was sensitive to the 
needs and concerns of small businesses. Therefore, the proposed 
regulations describe the minimum efforts necessary to fulfill the 
public involvement requirements. Additional examples of activities 
facilities may choose to conduct are provided in the preamble, rather 
than incorporated into the regulatory language. EPA's intent in doing 
so is to provide flexibility for a facility to determine how elaborate 
it wishes to be in conducting public involvement activities. In 
addition, EPA recognizes that, in some situations, an information 
repository could become resource intensive for a facility or for the 
local community. EPA has addressed this concern by providing discretion 
to the Director to determine whether to require a repository, rather 
than requiring it for all facilities.
    In regards to the burden placed on facilities that burn small 
quantities of hazardous waste, EPA has already provided an exemption 
under section 3004(q)(2)(B) of RCRA. The Agency carefully evaluated the 
risks posed by small quantity burning and concluded that a conditional 
exemption for small quantity burners should be allowed where hazardous 
waste combustion poses an insignificant risk. This small quantity 
burner exemption would therefore reduce the burden placed on small 
entities from the revised permitting requirements for hazardous waste 
combustors.
    The following sub-sections summarize the potential impacts on small 
entities of three aspects of today's proposed rule: expanded public 
participation requirements, revised requirements for ``data in lieu 
of'' a trial burn, and requirements following a trial burn failure. In 
summary, EPA has determined that there are no significant impacts on 
small entities from the requirements of this proposed rule.
1. Small Entity Impacts of Expanded Public Participation Requirements
    The universe of facilities affected by the public participation 
requirements include all facilities submitting a new part B 
application. In the case of the repository requirement, facilities 
undergoing permit modification or closure may also be affected.
    Determination of which facilities that submit new part B 
applications might be small entities is somewhat speculative. Assuming 
future RCRA facilities will resemble past facilities, approximately 12% 
of the estimated 53 to 127 new hazardous waste treatment, storage, and 
disposal facilities may be ``small entities.''\3\ In addition, 14 of 
the 159 interim status BIFs are owned by companies that are potentially 
``small entities,'' based on current size thresholds established by the 
U.S. Small Business Association.4,5
---------------------------------------------------------------------------

    \3\Hazardous Waste TSDF--Regulatory Impact Analysis for Proposed 
RCRA Air Emission Standards, Final Review Draft, USEPA, Office of 
Air and Radiation, August 1989. ``Small entity'' was defined as a 
company whose uniform annual sales cutoff is equal to $3.5 million.
    \4\13 CFR part 121.
    \5\Employment, sales, industry category, and parent company 
information was obtained from on-line searches of Dun & Bradstreet 
and the American Business Directory. In addition to the fourteen 
BIFs that were identified as potentially small entities, another 
four did not have enough information to make a determination.
---------------------------------------------------------------------------

    As mentioned in the cost analysis section, the highest total cost 
of the public participation requirements is estimated to be $14,000 per 
facility. This cost includes setting up an information repository, 
translating public notices, and interpreting public meetings. 
Annualized over ten years at a discount rate of 7%, the cost for a 
facility, as the high end of the cost range, would be $1,900 per year.
    This $1,900 per year may have a significant impact on a small 
entity if it is greater than five percent of the total cost of 
production. Thus a facility whose total cost of production is less than 
$37,000 may be significantly impacted. It is highly unlikely that the 
cost of production would be this low for a RCRA hazardous waste 
facility. Total sales for ``small entity'' BIFs range from $1.3 million 
to $87.3 million for the individual facilities and $19.1 million to 
$513 million for the parent companies.\6\ Costs of production would 
presumably be in the same order of magnitude. Thus EPA has determined 
that there are no significant impacts on small entities from this 
provision of the proposed rule and that alternative regulatory 
approaches are not necessary.
---------------------------------------------------------------------------

    \6\Ibid.
---------------------------------------------------------------------------

2. Small Entity Impacts of Revised Requirements for ``Data in Lieu of'' 
a Trial Burn
    The universe of facilities potentially affected by the revised 
requirements for ``data in lieu of'' a trial burn include interim-
status BIFs that would have used the ``data in lieu of'' exemption, but 
because of the revised requirements of the proposed rule, would now not 
be allowed to do so. As mentioned above, 14 of the 159 interim status 
BIFs are owned by companies that are potentially ``small entities.''
    As mentioned in the cost analysis section, the revised requirements 
for ``data in lieu of'' a trial burn have a potential direct 
incremental cost of $0 to $500,000 per affected facility, or an 
annualized cost of $0 to $47,000 per facility (over ten years at 7% 
discount rate, assuming costs occur in year one). The high end of the 
cost range would be caused by trial burn costs that are imposed due to 
tightening of the ``data in lieu of'' requirement. Because total sales 
for ``small entity'' BIFs range from $1.3 million to $87.3 million for 
the individual facilities and $19.1 million to $513 million for the 
parent companies,\7\ the costs of the ``data in lieu of'' requirement 
are less than 5% of total sales for any one facility and therefore not 
likely to significantly impact small entities.
---------------------------------------------------------------------------

    \7\Ibid.
---------------------------------------------------------------------------

    Furthermore, the ``data in lieu of'' requirement is not a new 
requirement, but simply a codification of current policy. Currently, 
this requirement can only be applied at facilities with multiple units. 
Such facilities are not likely to be small entities; therefore a 
tightening of the ``data in lieu of'' requirement would not affect 
small entities. Thus EPA does not expect the revised requirements for 
``data in lieu of'' a trial burn to impact small entities.
3. Small Entity Impacts of Requirements Following a Trial Burn Failure
    The universe of facilities potentially affected by the requirements 
following a trial burn failure include interim-status BIFs that fail 
their trial burn for one or more condition. As mentioned above, 14 of 
the 159 interim status BIFs are owned by companies that are potentially 
``small entities.'' As explained in the cost analysis section, EPA does 
not expect there to be any major incremental costs to those facilities 
that fail a trial burn and, therefore, does not expect the proposed 
rule requirements to have any significant impacts on small entities.

D. Enhancing the Intergovernmental Partnership

    Executive Order 12875 on enhancing the intergovernmental 
partnership charges federal agencies to establish meaningful 
consultation and collaboration with State and local governments on 
matters that affect them. In most cases, State governments are the 
level of government that regulates hazardous waste. In developing this 
proposed rule, therefore, EPA has consulted with State officials. EPA 
had five states (representing various parts of the country, e.g., east, 
south, center, and west) participate in the workgroup process for this 
proposed rule. These states reviewed and provided feedback on the draft 
proposal over a period of eight months. In addition, these states 
participated in monthly workgroup meetings via conference call. Their 
participation and immediate feedback in the workgroup process added 
considerable value to the draft proposal.
    EPA contacted additional states in an effort to receive their 
specific feedback on general permitting and public involvement 
techniques. Additionally, EPA solicited state input during a session of 
the 3rd Annual RCRA Public Involvement National Conference, in which 16 
state representatives participated. The state participants provided 
numerous helpful suggestions and ideas.
    In addition, the Agency utilized existing State groups, such as the 
Association of State and Territorial Solid Waste Management Officials 
(ASTSWMO), to solicit input on the proposed rule at various stages in 
the development process. Also, State personnel at the Commissioner 
level provided input to EPA at bi-monthly meetings of the EPA-State 
Task Force on Hazardous Waste Management. Through early involvement in 
both vehicles, state representatives made valuable contributions to the 
regulatory development process.

E. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An 
Information Collection Request (ICR) document has been prepared by EPA 
(ICR No. 1688.01) and a copy may be obtained from Sandy Farmer, 
Information Policy Branch (2136); U.S. Environmental Protection Agency; 
401 M St., SW.; Washington, DC 20460, or by calling (202) 260-2740.
    This collection of information is estimated to have a public 
reporting burden varying from 203.45 to 1,230.50 hours per response, 
with an average of 716.98 hours per response, and to require 34.10 
hours per recordkeeper over the three year period covered by the ICR. 
This includes time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information.
    Send comments regarding the burden estimate or any other aspect of 
this collection of information, including suggestions for reducing this 
burden to Chief, Information Policy Branch (2136); U.S. Environmental 
Protection Agency; 401 M St., SW.; Washington, DC 20460; and to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, Washington, DC 20503, marked ``Attention: Desk Officer for 
EPA.'' The final rule will respond to any OMB or public comments on the 
information collection requirements contained in this proposal.

List of Subjects

40 CFR Part 124

    Environmental protection, Administrative practice and procedure, 
Hazardous Waste, Reporting and recordkeeping requirements.

40 CFR Part 270

    Environmental protection, Administrative practice and procedure, 
Hazardous Waste, Reporting and recordkeeping requirements, Permit 
application requirements, Permit modification procedures, Waste 
treatment and disposal.

    Dated: May 20, 1994.
Carol M. Browner,
Administrator.
    For the reasons set out in the preamble, title 40, Chapter I, of 
the Code of Federal Regulations, is proposed to be amended as follows:

PART 124--PROCEDURES FOR DECISIONMAKING

    1. The authority citation for part 124 continues to read as 
follows:

    Authority: Resource Conservation and Recovery Act, 42 U.S.C. 
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300(f) et seq.; 
Clean Water Act, 33 U.S.C. 1251 et seq.; and Clean Air Act, 42 
U.S.C. 7401 et seq.

    2. Subpart B is added to read as follows:

Subpart B--Specific Procedures Applicable to RCRA Permits

Sec.
124.30  Equitable Public Participation
124.31  Public participation requirements at pre-application.
124.32  Public notice requirements at application stage
124.33  Information repository.

Subpart B--Specific Procedures Applicable to RCRA Permits


Sec. 124.30  Equitable public participation.

    The applicant and the Director shall make all reasonable efforts 
when conducting public information activities, such as public 
briefings, meetings, hearings, and dissemination of notices and fact 
sheets, to ensure that all segments of the population have an equal 
opportunity to participate in the permitting process. Reasonable 
efforts include disseminating multilingual public notices and fact 
sheets, and providing an interpreter at public meetings and hearings, 
where the affected community contains a significant non-English 
speaking population.


Sec. 124.31  Public participation requirements at pre-application.

    (a) Prior to the initial submission of a Part B RCRA permit 
application for a facility, the applicant must hold at least one 
meeting with the public in order to solicit questions from the 
community and inform the community of proposed hazardous waste 
management activities in sufficient detail to allow the community to 
understand the nature of the operations to be conducted at the facility 
and the implications for human health and the environment. The 
applicant shall give an overview of the facility in as much detail as 
possible, such as identifying the type of facility, the location of the 
facility, the general processes involved, the types of wastes generated 
and managed, and implementation of waste minimization and pollution 
control measures.
    (b) A stenographic or electronic record shall be made of the 
meeting, along with a list of attendees and their addresses. The 
record, list of attendees, and copies of any written comments or 
materials submitted at the meeting, shall be submitted as part of the 
permit application.
    (c) The applicant must provide public notice of the pre-application 
meeting at least 30 days prior to the meeting in a manner that is 
likely to reach all affected members of the community. The applicant 
must provide documentation of this notice in the permit application.
    (1) Public notice shall be given in the following manner:
    (i) The notice shall be published in a newspaper of general 
circulation in the county or equivalent jurisdiction that hosts the 
proposed location of the facility, and in each adjacent county or 
jurisdiction, if applicable. In situations where the geographic area of 
a host jurisdiction or adjacent jurisdictions is very large (hundreds 
of square miles), the newspaper notice shall cover a reasonable radius 
from the facility. The notice must be published as a display 
advertisement. The advertisement shall appear in a place within the 
newspaper calculated to give the general public effective notice; it 
must be of sufficient size to be seen easily by the reader.
    (ii) The applicant must post a notice on a clearly marked sign on 
the proposed or existing facility property. The sign should be large 
enough so that the wording is readable from the facility boundary. It 
is not necessary to display a map on the required posted sign on the 
facility property.
    (iii) The notice must be broadcast on at least one local radio 
station.
    (2) The notices required under paragraph (c)(1) of this section 
must include:
    (i) The date, time, and location of the meeting.
    (ii) A brief description of the purpose of the meeting.
    (iii) A brief description of the facility and proposed operations, 
including a map (e.g., a sketched or copied street map) of the facility 
location. Notices sent to people on the mailing list must show the 
facility map on the front page of the notice.
    (iv) A statement that encourages people who need special access 
(e.g., disabled) to participate in the meeting to provide at least a 
72-hour advance notice of their needs to the facility.
    (d) The requirements of this section do not apply to permit 
modifications under Sec. 270.42 of this chapter, permit renewals under 
Sec. 270.51 of this chapter, or applications that are submitted for the 
sole purpose of conducting post-closure activities at a facility.


Sec. 124.32  Public notice requirements at application stage.

    (a) Notification at application submittal. (1) The Director shall 
provide public notice as cited in Sec. 124.10(c)(1)(ix), that a Part B 
permit application has been submitted to the Agency, and is available 
for review. The requirements of this section apply to permit renewals 
under Sec. 270.51 of this chapter as well as to original applications.
    (2) The notice shall be published within a reasonable period of 
time after the application is received by the Director. The notice must 
include:
    (i) The name and telephone number of the applicant's contact 
person;
    (ii) The name and telephone number of the permitting agency's 
contact office, and a mailing address to which comments and inquiries 
may be directed throughout the permit review process;
    (iii) An address to which people can write in order to be put on 
the facility mailing list;
    (iv) Location where copies of the permit application and any 
supporting documents can be viewed and copied;
    (v) Brief description of the facility and proposed operations, 
including a map (i.e., sketched or copied street map) of the facility 
location. Notices sent to people on the mailing list must show the 
facility map on the front page of the notice; and
    (vi) The date the application was submitted.
    (b) Concurrent with the notice required under Sec. 124.32(a) of 
this subpart, the Director must place the permit application and any 
supporting documents in a location accessible to the public in the 
vicinity of the permitted facility or at the permitting agency's 
office. For facilities establishing an information repository pursuant 
to proposed Secs. 124.33 or 270.30(l)(12) of this chapter, the 
applicant shall place a copy of the permit application or modification 
request, and any supporting documents in the information repository.
    (c) The requirements of this section do not apply to permit 
modifications under Sec. 270.42 of this chapter, and/or applications 
that are submitted for the sole purpose of conducting post-closure 
activities at a facility.


Sec. 124.33  Information repository.

    (a) At any time during the application process for a RCRA permit, 
the Director may require the applicant to establish and maintain an 
information repository. The purpose of this provision is to make 
accessible to interested persons documents, reports and other public 
information developed pursuant to activities required under 40 CFR 
parts 124, 264, and 270. (See Sec. 270.30(l)(12) of this chapter for 
similar provisions relating to the information repository during the 
life of a permit.)
    (b) The information repository shall contain all documents, 
reports, data, and other information deemed sufficient by the Director 
for public understanding of the plans, activities, and operations of 
any hazardous waste facility that is operating or seeking a permit.
    (c) The information repository shall be located and maintained at a 
location chosen by the facility that is within reasonable distance of 
the facility, and within a structure with suitable public access, such 
as a county library, courthouse, or local government building. However, 
if the Director determines the location unsuitable, the Director may 
specify a more appropriate location. The repository shall be open to 
the public during reasonable hours, or accessible by appointment. The 
information repository shall be located to provide reasonable access to 
a photocopy machine or alternative means for people to obtain copies of 
documents at reasonable cost.
    (d) The Director shall specify requirements for informing the 
public about the information repository. At a minimum, the Director 
shall require the facility to provide a written notice about the 
information repository to all individuals on the facility mailing list.
    (e) Information regarding opportunities and procedures for public 
involvement, including the opportunity to be put on the facility 
mailing list, shall be made available at the repository.
    (f) The facility owner/operator shall be responsible for 
maintaining and updating the repository with appropriate information 
throughout a time period specified by the Director, unless existing 
State regulations require the State to maintain the information 
repository.

PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE 
PERMIT PROGRAM

    1. The authority citation for part 270 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and 
6974.

    2. Section 270.2 is amended by adding, in alphabetical order, a 
definition for ``Combustion unit,'' and by revising the definition for 
``Facility mailing list'' to read as follows:


Sec. 270.2  Definitions.

* * * * *
    Combustion unit means any unit that meets the definition of an 
incinerator, a boiler, or an industrial furnace in Sec. 260.10 of this 
chapter.
* * * * *
    Facility mailing list means the mailing list for a facility 
maintained by EPA or the State in accordance with 40 CFR 
124.10(c)(1)(ix).
* * * * *
    3. Section 270.19 is amended by revising paragraphs (b) and (d) to 
read as follows:


Sec. 270.19  Specific part B information requirements for incinerators.

* * * * *
    (b) Submit a trial burn plan with the initial part B application 
including all required determinations, in accordance with Secs. 270.62 
or 270.74; or
* * * * *
    (d) The Director shall approve a permit application for an 
incinerator without a trial burn if he finds that:
    (1) The wastes are sufficiently similar;
    (2) The incinerator units are virtually identical and are located 
at the same facility; and
    (3) The data from other trial burns are adequate to specify (under 
Sec. 264.345 of this chapter) operating conditions that will ensure 
that the performance standards in Sec. 264.343 of this chapter will be 
met by the incinerator.
* * * * *
    4. Section 270.22 is amended by revising paragraph (a)(6) to read 
as follows:


Sec. 270.22  Specific Part B information requirements for boilers and 
industrial furnaces burning hazardous waste.

    (a) * * *
    (6) Data in lieu of a trial burn. The owner or operator may seek a 
waiver from the trial burn requirements to demonstrate conformance with 
Secs. 266.104 through 266.107 of this chapter and Sec. 270.66 by 
providing the information required by Sec. 270.66 from previous 
compliance testing of the device in conformance with Sec. 266.103 of 
this chapter, or from compliance testing or trial or operational burns 
of boilers or industrial furnaces with a virtually identical design at 
the same facility burning similar hazardous wastes under virtually 
identical conditions. If data from a virtually identical device is used 
to support a trial burn waiver request, the design and operating 
information required by Sec. 270.66 must be provided for both the 
virtually identical device and the device to which the data are to be 
applied, and a comparison of the design and operating information must 
be provided. The Director shall approve a permit application without a 
trial burn if he finds that the hazardous wastes are sufficiently 
similar, the devices are virtually identical in design and at the same 
facility, the operating conditions are virtually identical, and the 
data from other compliance tests, trial burns, or operational burns are 
adequate to specify (under Sec. 266.102 of this chapter) operating 
conditions that will ensure conformance with Sec. 266.102(c) of this 
chapter. In addition, the following information shall be submitted:
* * * * *
    5. Section 270.30 is amended by adding paragraph (m) to read as 
follows:


Sec. 270.30  Conditions applicable to all permits.

* * * * *
    (m) Information repository. The Director may require the permittee 
to establish an information repository for a permit if the Director 
determines that there is significant public interest in the permitted 
facility. The information repository will be governed by the provisions 
in Sec. 124.33(b) through (f) of this chapter.
* * * * *
    6. Section 270.42 is amended by revising paragraph (d)(1) to read 
as follows:


Sec. 270.42  Permit modification at the request of the permittee.

* * * * *
    (d) Other modifications. (1) In the case of modifications not 
explicitly listed in Appendix I of this section, the permittee may 
submit to the Agency a request for a determination by the Director on a 
Class 1, 2, or 3 modification. If the permittee requests that the 
modification be classified as a Class 1 or 2 modification, he or she 
must provide the Agency with the necessary information to support the 
requested classification.
* * * * *
    7. Section 270.42, Appendix I is amended by redesignating item L.8. 
as L.9, revising item L.7, and adding a new item L.8 and note at the 
end of Appendix I to read as follows:

Appendix I to Sec. 270.42--Classification of Permit Modification

------------------------------------------------------------------------
                         Modification                             Class 
------------------------------------------------------------------------
                                                                        
                              * * * * * * *                             
L. Incinerators, Boilers, and Industrial Furnaces:                      
                                                                        
                              * * * * * * *                             
    7. Shakedown:                                                       
        a. Modification of permit conditions applicable during          
         the shakedown period for determining operational               
         readiness after construction, with prior approval of           
         the Director..........................................     \1\1
        b. Authorization of an additional 720 hours of waste            
         burning during the shakedown period for determining            
         operational readiness after construction, with prior           
         approval of the Director..............................     \1\1
    8. Trial Burn:                                                      
        a. Changes in the approved trial burn plan for                  
         conducting an initial trial burn, provided the change          
         is minor and has received the prior approval of the            
         Director..............................................     \1\1
        b. Changes in the approved trial burn plan for                  
         conducting an initial trial burn, if the change is not         
         minor.................................................        2
        c. Changes in the approved trial burn plan to conduct           
         additional trial burn testing under revised conditions         
         if the unit has not met one or more conditions of a            
         previous trial burn...................................        2
        d. Modification of permit conditions applicable during          
         the post-trial burn period, with prior approval of the         
         Director..............................................     \1\1
        e. Changes in the operating requirements set in the             
         permit to reflect the results of the trial burn,               
         provided the change is minor and has received the              
         prior approval of the Director........................     \1\1
                                                                        
                             * * * * * * *                              
------------------------------------------------------------------------
\1\Class 1 modification requiring prior Agency approval.                

    Note: Permittees should use the procedures in 270.42(d) if a 
proposed modification is not listed in this Appendix.

    8. In Sec. 270.62, paragraphs (b)(6) through (10) are redesignated 
as paragraphs (b)(7) through (11), and new paragraph (b)(6) is added to 
read as follows:


Sec. 270.62  Hazardous waste incinerator permits.

* * * * *
    (b) * * *
    (6) The Director must send a notice to all persons on the facility 
mailing list as specified in 40 CFR 124.10(c)(1)(ix) and to the 
appropriate units of State and local government as specified in 40 CFR 
124.10(c)(1)(x) announcing the scheduled commencement and completion 
dates for the trial burn.
    (i) This notice must be mailed within a reasonable time period 
before the scheduled trial burn.
    (ii) This notice must contain:
    (A) Name and telephone number of applicant's contact person;
    (B) Name and telephone number of the permitting authority contact 
office;
    (C) Location where the approved trial burn plan and any supporting 
documents can be reviewed and copied; and
    (D) An expected time period for commencement and completion of the 
trial burn. An additional notice is not required if the trial burn is 
delayed due to circumstances beyond the control of the facility or the 
permitting authority.
* * * * *
    9. In Sec. 270.62, paragraph (d) is removed.
    10. In Sec. 270.66, paragraphs (d) (3) through (5) are redesignated 
as paragraphs (d) (4) through (6), and new paragraph (d)(3) is added to 
read as follows:


Sec. 270.66  Permits for boilers and industrial furnaces burning 
hazardous waste.

* * * * *
    (d) * * *
    (3) The Director must send a notice to all persons on the facility 
mailing list as specified in 40 CFR 124.10(c)(1)(ix) and to the 
appropriate units of State and local government as specified in 40 CFR 
124.10(c)(1)(x) announcing the scheduled commencement and completion 
dates for the trial burn.
    (i) This notice must be mailed within a reasonable time period 
before the trial burn.
    (ii) This notice must contain:
    (A) Name and telephone number of applicant's contact person;
    (B) Name and telephone number of the permitting authority contact 
office;
    (C) Location where the approved trial burn plan and any supporting 
documents can be reviewed and copied; and
    (D) An expected time period for commencement and completion of the 
trial burn. An additional notice is not required if the trial burn is 
delayed due to circumstances beyond the control of the facility or the 
permitting authority.
* * * * *
    11. In Sec. 270.66, paragraph (g) is removed.
    12. Section 270.74 is added to read as follows:


Sec. 270.74  Trial burn requirements for interim status combustion 
units.

    (a) Submission of the trial burn plan for interim status 
incinerators. For the purpose of determining feasibility of compliance 
with the performance standards of Sec. 264.343 and establishing 
adequate operating conditions under Sec. 264.345, the applicant for a 
permit for an existing hazardous waste incinerator must prepare and 
submit a trial burn plan with Part B of the permit application in 
accordance with Sec. 270.19(b) and 270.62(b)(2).
    (1) Applicants submitting other information as specified in 
270.19(c) are exempt from the requirement to conduct a trial burn if 
the Director approves the permit application in accordance with the 
criteria in Sec. 270.19(d).
    (2) Applicants submitting information under Sec. 270.19(a) are 
exempt from compliance with Secs. 264.343 and 264.345 of this chapter 
and, therefore, are exempt from the requirement to conduct a trial 
burn.
    (b) Submission of the trial burn plan for interim status boilers 
and industrial furnaces. For the purpose of determining feasibility of 
compliance with the performance standards of Secs. 266.104 through 
266.107 of this chapter and establishing adequate operating conditions 
under Sec. 266.102 of this chapter, applicants owning or operating 
existing boilers or industrial furnaces operated under the interim 
status standards of Sec. 266.103 of this chapter must prepare and 
submit a trial burn plan with Part B of the permit application in 
accordance with Secs. 270.22(a) and 270.66(c) or submit other 
information in accordance with Sec. 270.22(a)(6).
    (c) At combustion facilities--approval of the trial burn plan and 
conducting the trial burn. (1) The applicant must receive approval for 
the trial burn plan by the Director before performing a trial burn.
    (2) The Director shall review and make a determination on the trial 
burn plan in accordance with Secs. 270.62(b)(3) through (b)(5) for 
incinerators, or Sec. 270.66(d)(2) for boilers and industrial furnaces.
    (3) The Director must send a notice to all persons on the facility 
mailing list as specified in 40 CFR 124.10(c)(1)(ix) and to the 
appropriate units of State and local government as specified in 40 CFR 
124.10(c)(1)(x) announcing that the Director has reviewed the draft 
trial burn plan and has tentatively decided to approve it.
    (i) This notice must be mailed within a reasonable time period 
before the trial burn.
    (ii) This notice must contain:
    (A) Name and telephone number of applicant's contact person;
    (B) Name and telephone number of the permitting authority contact 
office;
    (C) Location where the draft trial burn plan and any supporting 
documents can be viewed and copied; and
    (D) A schedule of required activities prior to permit issuance, 
including when the permitting authority is expecting to give its 
approval of the plan, and the time periods during which the trial burn 
would be conducted.
    (4) When a trial burn plan is approved, the Director will specify a 
time period prior to permit issuance during which the trial burn must 
be conducted.
    (5) The applicant shall perform a trial burn in accordance with the 
approved trial burn plan, and must make the required determinations, 
submissions, and certifications in accordance with Secs. 270.62(b)(6) 
through (b)(9) for incinerators, or Secs. 270.66(d)(3) through (d)(5), 
and 270.66(f) for boilers and industrial furnaces. Trial burn results 
must be submitted prior to issuance of a draft permit.
    (6) Upon completion of the trial burn, combustion units must comply 
with the performance standards of Sec. 264.343 of this chapter (for 
incinerators), or Secs. 266.104 through 266.107 of this chapter (for 
BIFs), along with all other applicable interim status standards. 
Compliance shall be demonstrated and determined based on the results of 
the trial burn, as follows. The owner or operator may only operate the 
combustion unit under conditions that passed and were demonstrated to 
meet the performance standards, and only if the successful trial burn 
data is sufficient to set all applicable operating conditions during 
the post-trial burn period. If any results of a trial burn for a 
combustion unit show non-compliance with any set of performance 
standards, the owner or operator must immediately cease operating under 
the condition(s) that resulted in non-compliance, and notify the 
Director. In order to continue operating when results of the trial burn 
show non-compliance with any performance standards under any set of 
conditions, the owner or operator must submit to the Director, with the 
trial burn results, a description of the conditions under which it is 
operating, and a preliminary explanation of how the conditions were 
determined to be sufficient to ensure that the unit functions within 
the performance standards. After reviewing the trial burn data and the 
preliminary demonstration submitted by the owner or operator, the 
Director may further restrict operating conditions as necessary to 
assure that the unit is operated within the performance standards.
    (7) If the trial burn results indicate that any performance 
standards in Sec. 264.343 of this chapter for incinerators, or 
Secs. 266.104 through 266.107 of this chapter for boilers and 
industrial furnaces, have not been met, the facility may submit a 
request to conduct an additional trial burn.
    (i) The request to conduct an additional trial burn must include:
    (A) An explanation of the reasons for the previous trial burn 
failure; and
    (B) A revised trial burn plan submitted under paragraph (a) or (b) 
of this section which contains substantive changes to address the 
reasons for the previous trial burn failure.
    (ii) The revised trial burn plan must be approved by the Director 
according to the requirements of paragraphs (c)(1) through (c)(4) of 
this section. The Director may approve the request to conduct an 
additional trial burn only if the requirements of this section have 
been satisfactorily met.
    (iii) The Director must send a notice to all persons on the 
facility mailing list as specified in 40 CFR 124.10(c)(1)(ix) and to 
the appropriate units of State and local government as specified in 40 
CFR 124.10(c)(1)(x) announcing that the Director has reviewed the draft 
revised trial burn plan and has tentatively decided to approve it.
    (iv) This notice must be given within a reasonable time period, and 
in accordance with Sec. 270.74(c)(3)(A) through (D).
    (8) If the trial burn results indicate that compliance with the 
performance standards in Sec. 264.343 of this chapter for incinerators, 
or Secs. 266.104 through 266.107 of this chapter for boilers and 
industrial furnaces, was not achieved, and thus, operating conditions 
cannot be developed under Sec. 264.345 of this chapter for 
incinerators, or Sec. 266.103 of this chapter for boilers and 
industrial furnaces, the Director may, pursuant to the procedures in 
Part 124 of this chapter, deny the permit application for the 
combustion unit.
[FR Doc. 94-13094 Filed 6-1-94; 8:45 am]
BILLING CODE 6560-50-P