Time Line and Milestones
HWC NESHAP Implementation Milestones
On September 30, 1999, EPA published the Phase 1 Maximum Achievable Control Technology (MACT) standards, also called the National Emission Standards for Hazardous Air Pollutants (NESHAP), for hazardous waste burning incinerators, cement kilns, and lightweight aggregate kilns (64 FR 52828). These standards were promulgated under the joint authority of the Clean Air Act (CAA) and the Resource Conservation and Recovery Act (RCRA). Since 1999, we have issued several technical corrections and amendments to the Phase 1 NESHAP to improve its implementation. In addition, we have also revised specific sections in response to both the July 2000 and July 2001 vacaturs ordered by the Court of Appeals for the District of Columbia Circuit. Most notably, we promulgated interim emission standards that replace the 1999-promulgated MACT standards, and we extended the compliance date by one year.
The following list identifies many of the milestones and deadlines contained in the Phase 1 HWC NESHAP rule, as amended. The milestones are grouped according to the time elapsed from the effective date of the Phase 1 HWC NESHAP rule, September 30, 1999. This list is not intended to be all-inclusive. Nor does it reflect changes in the milestone schedule due to voluntary early compliance or approval of site-specific extensions to the compliance dates.
01/28/00 Initial NotificationNo later than 120 calendar days after the effective date of the 1999 standards, sources must submit an initial notification to the regulatory agency that they are subject to the HWC Phase 1 NESHAP. This notice, which you should not confuse with the Notification of Intent to Comply, is required under the General Provisions of 40 CFR part 63. The notice includes information such as the owner and operator names and addresses, the source's address, the relevant standard that is the basis of the notification (in this case, part 63 subpart EEE), the source's compliance date, and a brief description of the source and its operations. See 40 CFR 63.9(b).
Prior to October 11, 2000, you were required to draft a Notification of Intent to Comply, make it available for public review and provide notice of a public meeting. See the requirements of 40 CFR 63.1210(b) and (c) that were in effect prior to October 11, 2000 (40 CFR Part 63 Revised as of July 1, 2000). On July 25, 2000, the Court of Appeals for the District of Columbia Circuit vacated the NIC requirements. This vacatur became effective on October 11, 2000.
Prior to October 11, 2000, you were required to hold an informal meeting with the public to discuss your draft Notification of Intent to Comply and plans for achieving compliance with the Phase 1 standards. See the requirements of 40 CFR 63.1210(c) that were in effect prior to October 11, 2000 (40 CFR Part 63 Revised as of July 1, 2000). If you planned to modify your RCRA permit to make changes necessary to meet the standards, you should have discussed these modifications during the NIC public meeting. On July 25, 2000, the Court of Appeals for the District of Columbia Circuit vacated the NIC requirements. The vacatur became effective on October 11, 2000.
09/30/00 Title 5 Permit Application DueSources newly subject to Title 5 permitting requirements as a result of the HWC Phase 1 NESHAP must submit an application by this date. See 40 CFR 70.5(a)(1) or 71.5(a)(1).
Prior to October 11, 2000, you were required to submit a final Notification of Intent to Comply (NIC) to the regulatory agency. See the requirements of 40 CFR 63.1210(b)(3) that were in effect prior to October 11, 2000 (40 CFR Part 63 Revised as of July 1, 2000). On July 25, 2000, the Court of Appeals for the District of Columbia Circuit vacated the NIC requirements. The vacatur became effective on October 11, 2000.
Although the NIC was a MACT requirement, it was also important to the RCRA permitting process. If you are a RCRA permitted facility that needs to modify your combustion unit in order to comply with the Phase 1 standards, you must first request and receive a permit modification. Sources that completed the NIC process were eligible to use the streamlined RCRA permit modification procedures instead of the traditional Class 1, 2 or 3 RCRA permit modification procedures. See 40 CFR 270.42 (j).
On July 25, 2000, the Court of Appeals for the District of Columbia Circuit decided Chemical Manufacturing Ass'n v. EPA, 217 F.3d 861 (D.C. Cir. 2000) by vacating the "early cessation," NIC and Compliance Progress Report requirements. The early cessation requirement, generally, required sources to choose whether to comply with HWC Phase 1 MACT standards within 3 years or cease burning hazardous waste within 2 years. The NIC requirements served to inform the regulatory agency of a source's intention to comply or cease burning. The NIC also provided other benefits separate from those associated with the early cessation requirement, such as greater public participation. The Compliance Progress Report served to help the regulatory agency determine if sources were making reasonable progress in their efforts to come into compliance. In its decision, the court held that EPA had the legal authority to promulgate a requirement of early cessation of hazardous waste burning activity for those sources not intending to comply with the MACT emission standards. However, the court further held that we had not adequately explained our reasons for imposing this requirement. As a result, the court vacated the early cessation requirement and the NIC and Compliance Progress Report requirements. The vacatur became effective on October 11, 2000. Thus, beginning on that date, the requirements no longer apply. We removed them from the federal regulations on May 14, 2001 (see 66 FR 24270).
Although the NIC was a MACT requirement, it was also important to the RCRA permitting process. Prior to October 11, 2000, submission of a NIC qualified facilities to apply for RCRA's streamlined permit modification procedures set forth in 40 CFR 270.42(j)(1). Because the court's mandate did not occur until after the NIC submission deadline on October 2, 2000, we determined that the court's action did not prevent eligible facilities from taking advantage of the streamlined permit modification. See 66 FR 24271.
Those with existing Title 5 permits must have their permits reopened, not later than 18 months after promulgation of the 1999 Phase 1 NESHAP rule, to include the HWC MACT requirements if the remaining permit term is three or more years. See 40 CFR 70.7(f)(1)(i) or 71.7(f)(1)(i). Otherwise, the HWC MACT requirements will be incorporated into your Title 5 permit at renewal. Regulatory agencies should let you know when your Title 5 permit renewal application is due.
12/06/01 FR Extending Compliance DateBecause of uncertainty created by the court's July 24, 2001 vacatur of the HWC Phase 1 MACT standards and because of the then-forthcoming interim standards, we extended the MACT standards compliance date by one year. This also had the added effect of shifting other implementation deadlines keyed to the compliance date. See 66 FR 63313.
Pursuant to the invitation of the court in Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (D.C. Cir. 2001), we promulgated negotiated interim standards that amended the 1999 HWC Phase 1 MACT standards. The interim standards also set forth certain revised compliance and implementation requirements. See 67 FR 6792.
On July 24, 2001, the Court of Appeals for the District of Columbia Circuit decided Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (D.C. Cir. 2001) by vacating challenged portions of the 1999 HWC Phase 1 NESHAP. According to the court, the standards "fail to reflect the emissions achieved in practice by the best performing sources as required by the Clean Air Act." Because the decision left the EPA without standards regulating HWC emissions, the court invited EPA or any of the parties that challenged the regulation to file a motion to request that either the 1999 standards remain in place or EPA be allowed time to develop interim standards until replacement standards could be put in place that would comply with the court's opinion. On October 19, 2001 EPA, together with all the other parties, requested the court stay its vacatur order until February 14, 2002 to allow EPA time to develop and promulgate interim standards. The court granted this motion on November 1, 2001. In turn, EPA promulgated negotiated interim standards on February 13, 2002. We also promulgated several amendments to the Phase 1 compliance and implementation requirements on February 14, 2002. See 67 FR 6792 and 67 FR 6968. The court issued its vacatur order on March 19, 2002.
Regulatory agencies must make their Title 5 permit determinations for those sources that submitted permit applications by September 30, 2000 because the sources were newly subject to Title 5 permitting requirements as a result of the HWC Phase 1 NESHAP. See 40 CFR 70.7(a)(2) and 71.7(a)(2). By statute, once Title 5 applications are received, permitting authorities have 18 months to act on them, if they are submitted after the first full year of a Title 5 program.
You must submit a Comprehensive Performance Test (CPT) Plan and Continuing Monitoring System (CMS) Performance Evaluation Test Plan to the regulatory agency for approval at least one year prior to the date you intend to begin your initial CPT. You must conduct your initial CPT no later than March 30, 2004. If you choose to begin your test on March 30, 2004, your test plans must be submitted no later than March 30, 2003. See 40 CFR 63.1207(e)(1)(i).
The CPT test plan must indicate how you intend to conduct your comprehensive performance test to demonstrate initial compliance with the emission standards and how you intend to establish your initial operating parameter limits. For example, you must include descriptions of the feedstreams, sampling and monitoring procedures and test protocols. You must also include a detailed test schedule, including the date(s), duration, and quantity of hazardous waste to be burned. See 40 CFR 1207(f).
The CMS Performance Evaluation Test Plan must include the evaluation program objective, an evaluation program summary, the evaluation schedule, data quality objectives, and both an internal and external QA program. See 40 CFR 63.8(e)(3)
The initial comprehensive performance test must demonstrate compliance with the February 2002 interim standards. See 67 FR 6792 published on February 13, 2002. All subsequent comprehensive performance testing requirements are waived under the interim standards. Once we promulgate the Phase 1 replacement standards, you will be required to conduct these tests every five years. You will also be required to conduct a confirmatory performance test once we promulgate the replacement standards (until that time, the confirmatory test requirements are waived). See new 40 CFR 63.1207(d)(4)(i) and (ii).
As part of the comprehensive performance test, you may have to conduct a Destruction and Removal Efficiency (DRE) test. All sources must conduct a DRE test at least once to demonstrate compliance with the DRE standard. Sources that do not have DRE test data from a previous test must conduct DRE testing during the initial CPT. If you must perform a DRE test during your initial CPT, you should address the DRE testing provisions in your performance test plan. See 40 CFR 63.1206(b)(7).
You may request that regulators consider data from previous emission tests (such as a RCRA trial burn test) in lieu of data from an initial comprehensive performance test. If you are planning to use data in lieu for all CPT data, you must submit your request and the data, itself, no later than March 30, 2003. This submittal is in lieu of a CPT plan. Your regulatory agency will review your submittal and determine if the data meets the requirements of 40 CFR 63.1207(c)(2)(i). If you are planning to use data in lieu for some, but not all performance testing, you must submit your request and the data along with your CPT plan. Although you are not required to submit your data in lieu until March 30, 2003, we encourage that you do so as early as possible, or, at a minimum, enter into discussions with your regulatory authority alerting them as to your plans. This would allow you and your regulatory authority to make a preliminary determination of the acceptability of your data in lieu. If the data does not meet the requirements of 40 CFR 63.1207(c)(2)(i), you would then have time to submit a CPT plan and conduct your emission test by March 30, 2004. See 40 CFR 63.1207(c)(2)(ii).
You may be able to petition the regulatory agency for alternative test methods, alternative emission standards, and/or alternative monitoring methodologies at this time. See 40 CFR 1209(g)(1), 63.7(f), 63.8(f), 63.1206(b)(9), (10), and (14).
The initial performance test may be important to RCRA regulators if you have not yet performed a RCRA risk burn. In this case, the MACT performance test plan offers the opportunity for coordinating performance and risk burn tests.
05/30/03 Request for Extensions to Compliance DateThose seeking an extension to the compliance date must submit a written request to the regulatory agency no later than this date. Regulatory agencies may grant the request if the source demonstrates that necessary pollution prevention or waste minimization emission control equipment cannot be installed by the compliance date. You may also request an extension if you can demonstrate that the emissions control equipment necessary to comply with the HWC Phase 1 NESHAP and operating requirements can not be installed by September 30, 2003. See 40 CFR 63.6(i)(4)(i)(B), 63.1206(b)(4), and 63.1213.
09/30/03 Compliance DateIf your facility existed, or if you constructed or commenced construction or reconstruction before April 19, 1996, you must be in compliance by this date. 40 CFR 63.1206(a)(1). This compliance date does not apply if you have received a site-specific extension. An extension to the September 30, 2003, compliance date may be granted for up to one year. See 40 CFR 63.6(i) and 63.1213. This compliance date also does not apply to new or reconstructed sources that began construction or reconstruction after April 19, 1996. New or reconstructed sources that began construction or reconstruction after April 19, 1996, have a compliance date which is the latter of September 30, 1999, or the date the source begins operations. See 40 CFR 63.1206(a)(2).
You must place a Documentation of Compliance (DOC) in your operating record by this date. See 40 CFR 63.1211(c). The DOC must identify your emission standards and monitoring and operating parameter limits that will ensure compliance. All operating limits identified in your DOC are enforceable limits. Regulatory agencies may conduct targeted compliance inspections and review your operating records to confirm placement of the DOC and compliance with the operating requirements at this time.
Other documents that must be included in the Operating Record are: the Startup, Shutdown, Malfunction Plan; the Emergency Safety Vent Operating Plan; the Operator Training and Certification Plan; the Operation and Maintenance Plan; and the Feedstream Analysis Plan. See 40 CFR 63.6(e)(3)(i), 1206(c)(2), 1206(c)(4)(ii), 1206(c)(6)(vii), 1206(c)(7) and 1209(c)(2).
Your regulatory agency will notify you of its approval or denial of your CPT and CMS performance evaluation test plans within nine months of your original submittal of those documents. Therefore, if you submit your plans on March 30, 2003, your regulatory agency will complete its review and either approve or deny them by December 30, 2003. See 40 CFR 63.1207(e)(i)(A). If you do not receive notification by this date, you are still required to initiate performance testing by March 30, 2004. See 40 CFR 63.7(c)(3). You may petition for a six month extension to the test date under 40 CFR 63.7(h). Your request must be submitted to the regulatory agency at least 60 days prior to the scheduled date of the performance test. This extension may be renewed once for an additional six months resulting in a total waiver period of up to twelve months. Once your performance test plan is approved, you must issue a public notice and make the plan available for public review. See 40 CFR 63.1207(e)(2).
You must begin your initial comprehensive performance test no later than 180 days after the compliance date. See 40 CFR 63.1207(c)(1). If your regulatory agency has not yet approved or denied your test plan, you may petition for a six month extension to the test date under 40 CFR 63.7(h). Your request must be submitted to the regulatory agency at least 60 days prior to the scheduled date of the performance test. This extension may be renewed once for an additional six months resulting in a total waiver period of up to 12 months. The regulatory agency may provide oversight during the tests. Although the intent of the test plan is to specify, as completely as possible, test conditions and sampling and analytical methods, unforeseen circumstances can occur during the actual test. This may cause some deviation from the plan to be necessary. If the regulator is overseeing the test, the source can discuss the problem with them and potentially reach a solution that will be acceptable to the regulator without undue delays to the testing schedule.
You must complete your initial comprehensive performance test 60 days after initiation. Your regulatory agency may grant you an extension if you provide written documentation that you are unable to complete the test within 60 days due to factors beyond your control. See 40 CFR 63.1207(d)(3).
You must submit your Notification of Compliance (NOC) to the regulatory agency 90 days after completion of your CPT. See 40 CFR 63.9(h), 63.10(d)(2), 63.10(e)(2), 63.1207(j), and 63.1210(b). Therefore, if you complete your CPT on May 29, 2004, you are required to submit your NOC on August 26, 2004. You may request an extension if, for reasons beyond your control, you are unable to submit your NOC within the 90 days. Your NOC must document compliance or noncompliance with the emission standards and continuous monitoring system requirements, and must identify all operating parameters limits necessary to maintain compliance with the standards. Upon submittal of the NOC, you must comply with all operating requirements specified in your NOC, in lieu of those limits specified in your DOC.
Upon obtaining all the necessary compliance information required under the MACT standards, the regulatory agency will make a finding of compliance. See 40 CFR 63.6(f)(3) and 63.1206(b)(3).
At this point sources will need to revise their Title 5 permits to include the NOC. We expect sources will need to follow the procedures for making a significant permit revision which could take up to nine months to complete. See 40 CFR §§70.7(e)(4)(ii) and 71.7(e)(3)(ii).
Once a source demonstrates compliance with the MACT standards, they may submit a RCRA permit modification request to have the relevant conditions removed from their RCRA permits (excluding any risk-based permit conditions that are more stringent than the MACT standards). See 40 CFR 270.42 Appendix I, item A.8. RCRA permit writers will likely require documentation that the finding of compliance has been made before they will approve the modification request.
In response to our motion, on March 04, 2002 the Court of Appeals for the District of Columbia Circuit published an order that requires EPA to promulgate replacement Phase 1 MACT standards by June 14, 2005. These forthcoming MACT standards will replace the current interim emission standards, which have been in effect since February 13, 2002. See 67 FR 6792.