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Frequent Questions on Permitting

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All acronyms used in the FAQs are described in the Common Acronyms section of the Toolkit.

General Permitting

  1. How did we change our permitting approach for hazardous waste burning incinerators, cement kilns and lightweight aggregate kilns in the Phase 1 HWC NESHAP?
  2. Do I need both a RCRA and CAA permit to operate?
  3. Who is responsible for implementing the Phase 1 HWC NESHAP rule: EPA or the states?
  4. Since EPA placed the Phase 1 HWC NESHAP standards only in the CAA regulations, should states remove their RCRA combustion requirements from their regulations?
  5. Can my permitting authority issue a combined RCRA and CAA permit for my facility?

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RCRA Permitting

  1. How will the Phase 1 HWC MACT standards affect my existing RCRA permit emission limits and operating conditions?
  2. How and when do I make the transition to the permitting scheme outlined in the Phase 1 HWC NESHAP?
  3. What requirements will be included in the CAA Title 5 permit and what will remain in the RCRA permit after I comply with the Phase 1 HWC NESHAP and receive a RCRA permit modification to remove any duplicative conditions?
  4. Do I need to modify my RCRA permit as a result of the Phase 1 HWC NESHAP? If so, when?
  5. Can states use an abbreviated process for authorization of the RCRA portions of the Phase 1 HWC NESHAP?
  6. If I am in the process of obtaining my RCRA permit, do I have to continue now that the Phase 1 HWC MACT standards are effective?
  7. I have already modified my RCRA permit to change my operating parameter limits to reflect my MACT equipment upgrades. What do I do if I find that I need to revise those limits further or make additional equipment upgrades in order to comply with the MACT standards?

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RCRA Permit Streamlined Permit Modification Process

  1. What is the RCRA streamlined permit modification procedure?
  2. Why have a streamlined permit modification procedure?
  3. What effect did the decision of the D.C. Circuit in Chemical Manufacturers Ass'n v. EPA have on the RCRA streamlined permit modification procedure?
  4. When is it appropriate to use the streamlined procedure?
  5. What if I cannot use the streamlined permit modification procedure?
  6. Do I send my request for a RCRA streamlined permit modification to my state regulatory agency or to EPA?
  7. Under what circumstances might I not be allowed to use the RCRA streamlined permit modification procedure?
  8. What should I do if my state does not seek authorization for the RCRA streamlined permit modification procedure?

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Title 5 Permitting

  1. What is the difference between a CAA Title 5 operating permit and a New Source Review permit?
  2. Can RCRA program staff issue CAA Title 5 permits for sources subject to the Phase 1 HWC NESHAP?
  3. Do CAA Title 5 permitting requirements apply to both area and major sources subject to the Phase 1 HWC NESHAP?
  4. If I am a non-major source and I must obtain a CAA Title 5 permit only because of the Phase 1 HWC NESHAP, do I have to include my other units in my Title 5 permit?
  5. After I demonstrate compliance with the Phase 1 HWC NESHAP, what should my permitting authority incorporate into my CAA Title 5 operating permit?
  6. What type of modification process should I use to incorporate my initial NOC into my CAA Title 5 permit?
  7. What type of modification process should I use to incorporate subsequent NOCs into my CAA Title 5 permit?
  8. If my source is a major source, what do I need to do to include the February 13, 2002 interim standards and February 14, 2002 final amendments in my permit; and what about the permanent replacement standards to be issued in 2005?
  9. If I became subject to Title 5 permitting for the first time as a result of being subject to the Phase 1 HWC NESHAP (1999 standards), what do I need to do to include the February 13, 2002 interim standards and February 14, 2002 final amendments in my permit; and what about the permanent replacement standards to be issued in 2005?

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General Permitting

  1. How did we change our permitting approach for hazardous waste burning incinerators, cement kilns and lightweight aggregate kilns in the Phase 1 HWC NESHAP?

    Prior to the Phase 1 HWC NESHAP, all aspects of hazardous waste combustor operations were regulated through RCRA permits, i.e. permits implementing the RCRA statute and the RCRA subtitle C regulations. We changed our approach in the NESHAP final rulemaking to avoid unnecessary regulatory duplication between the RCRA and CAA programs. We did this by placing the new emission standards only in the CAA regulations at 40 CFR part 63 subpart EEE. The RCRA permit will continue to address other combustor-specific concerns such as materials handling and also the requirements necessary for the basic hazardous waste management such as general facility standards, corrective action, and any standards necessary for the operation of other types of RCRA units. The RCRA permit also may contain additional conditions pursuant to the RCRA section 3005(c)(3) omnibus provision to protect human health and the environment, and other elective alternatives such as: compliance with the RCRA start-up, shutdown, and malfunction requirements; or the particulate matter standard for incinerators feeding low levels of metals.

    For more information, see the section entitled "2. What Permitting Approach Is Adopted In Today's Rule?" in the preamble to the final rule at 64 FR 52975, September 30, 1999 and the Permit Transition: Moving From RCRA to the CAA Fact Sheet (PDF) (8 pp, 569K).

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  2. Do I need both a RCRA and CAA permit to operate?

    Yes. You need both a RCRA and CAA permit to operate a hazardous waste combustor. Once you have demonstrated compliance with the MACT standards, the content of each permit, however, will be distinguishable. Your Title 5 permit will focus on the operation of the combustion unit (e.g., air emissions and related operating parameters), while your RCRA permit will focus on basic hazardous waste management (e.g., general facility standards, corrective action, other combustor-specific concerns such as materials handling, and other hazardous waste management units, etc.).

    In some cases, your RCRA permit may continue to address air emissions. Additional risk-based emissions standards may be necessary under the RCRA omnibus authority (RCRA section 3005(c)(3)) to supplement the CAA requirements contained in your Title 5 permit. Although we expect that in most cases such risk-based conditions will reside in RCRA permits, some states may have the flexibility to place the additional conditions in Title 5 permits if they have a provision in their state air statute or regulations that is equivalent to the RCRA omnibus authority. Furthermore, sources that elect to comply with certain alternatives will have additional requirements in their RCRA permits. These alternatives may include compliance with: the RCRA requirements during start-up, shutdown, and malfunction events (40 CFR 270.235) and the particulate matter standard for incinerators feeding low levels of metals (40 CFR 63.1206(b)(14)).

    For more information, see the sections entitled "11. What Are the Permitting Requirements for Sources Subject to this Rule?" in the preamble to the final rule at 64 FR 52973, September 30, 1999 and the Permit Transition: Moving From RCRA to the CAA Fact Sheet (PDF) (8 pp, 569K)

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  3. Who is responsible for implementing the Phase 1 HWC NESHAP rule: EPA or the states?

    Depending on the status of CAA delegation and RCRA authorization of the Phase 1 HWC NESHAP rule in a state, both EPA and the state may have implementation responsibilities. In the final rule, we did not alter the procedures for delegating authority to the states under the CAA or for authorizing states under RCRA. Instead, we strongly encouraged each state to include the NESHAP requirements in their regulations as quickly as their legislative and regulatory processes would allow. We also provided information regarding how states might implement the NESHAP in a way that makes the most sense given their level of resources and organizational structure. In some instances, a state may choose to have the CAA program implement the rule, while in others the RCRA program may take the lead.

    For more information, see the sections entitled "3. What Considerations Were Made for Ease of Implementation?" in the preamble to the final rule at 64 FR 52975, September 30, 1999. See also the Clean Air Act (CAA) Delegation for the HWC NESHAP Fact Sheet (PDF) (16 pp, 700K) and RCRA State Authorization for the Phase 1 HWC NESHAP Faact Sheet (PDF) (3 pp, 357K).

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  4. Since EPA placed the Phase 1 HWC NESHAP standards only in the CAA regulations, should states remove their RCRA combustion requirements from their regulations?

    No. Under RCRA section 3009, states may not implement requirements that are less stringent than the federal program. When we placed the Phase 1 HWC MACT standards in the federal CAA regulations, we did not remove the combustion requirements from the federal RCRA regulations. Instead, we revised the RCRA regulations such that they no longer apply once a facility demonstrates compliance with the Phase 1 HWC NESHAP, with some exceptions related to compliance with omnibus requirements and/or compliance with alternatives (i.e., the RCRA requirements during start-up, shutdown, and malfunction events and the particulate matter standard for incinerators feeding low levels of metals). Thus, while states may not remove their RCRA combustion requirements from their regulations, they may revise their regulations as we have done in the federal program. We strongly encouraged this in the preamble to the final Phase I HWC NESHAP rule. By deferring the RCRA requirements (i.e. allowing the CAA requirements to supplant them), we believe that unnecessary duplication is eliminated between the RCRA and CAA regulatory programs.

    It is important to note that the Phase 1 HWC NESHAP and our deferral of the RCRA requirements apply only to hazardous waste-burning incinerators, cement kilns, and lightweight aggregate kilns. Other source categories, such as hazardous waste-burning boilers and hydrochloric acid production furnaces, were not addressed in this NESHAP. They continue to be regulated under the RCRA combustion regulations. While we do plan to issue MACT standards for these hazardous waste combustors in the future, we have not done so yet. When we do, we will determine if the federal RCRA combustion requirements in total should be deferred to the CAA regulations and, if so, will encourage the authorized states to do likewise.

    States are not obligated to follow our deferral recommendation. Authorized states are only required to modify their programs when EPA issues federal standards that are broader or more stringent than the existing federal standards. The revisions we made to the federal RCRA regulations through the Phase 1 HWC NESHAP, however, resulted in some RCRA requirements becoming less stringent. This is because we deferred the emissions requirements to another federal program. Although we strongly encourage authorized state RCRA programs to make a similar deferral, they are under no obligation to do so.

    For more information, see the section entitled "12. State Authorization" in the preamble to the final rule at 64 FR 52991, September 30, 1999 and the RCRA State Authorization for the Phase 1 HWC NESHAP Fact Sheet (PDF) (3 pp, 357K).

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  5. Can my permitting authority issue a combined RCRA and CAA permit for my facility?

    Yes, it is possible. Some states can issue multi-media permits, including both RCRA and CAA requirements, under joint program authority. These permits must cite the appropriate authority (either CAA or RCRA) for each condition and be signed by the appropriate officials for each program. Each permit condition is then enforced under its respective authority. While these types of permits have been issued successfully, it should be noted that the possibility exists for enforcement under both RCRA and CAA statutes.

    For more information, see the section entitled "3. What Considerations Were Made for Ease of Implementation?" in the preamble to the final rule at 64 FR 52976, September 30, 1999.

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RCRA Permitting

  1. How will the Phase 1 HWC MACT standards affect my existing RCRA permit emission limits and operating conditions?

    The Phase 1 HWC MACT standards will not affect your RCRA permit limits or conditions, unless your permit contains a sunset clause that terminates those limits and conditions upon compliance with the standards. If your permit does not contain a sunset clause, you must secure a RCRA permit modification or wait for the permit to expire in order to be relieved of your RCRA permit compliance obligations. This is the case regardless of whether you comply with the Phase 1 HWC MACT early or on your compliance date.

    You may request modifications to your RCRA permit only after you have successfully completed your comprehensive performance test and submitted a NOC (‘Notification of Compliance') documenting compliance with the MACT standards. In your modification request, you should identify the conditions that you believe should be removed from your permit. Your permitting authority will compare your RCRA permit terms and conditions to your MACT standards and operating parameters. Any terms or conditions that are more stringent or extensive than the MACT requirements will be retained in the RCRA permit if they are determined necessary to ensure protection of human health and the environment. Additionally, if you elect to comply with either the RCRA requirements during start-up, shutdown, and malfunction events (40 CFR 270.235) or the particulate matter standard for incinerators feeding low levels of metals (40 CFR 63.1206(b)(14)), these alternatives will likely reside in your RCRA permit. Your RCRA permit writer also may want to verify with their counterpart in the Air program that you have successfully completed the MACT comprehensive performance test and submitted a NOC documenting compliance before removing conditions. Following evaluation of your RCRA permit and verification of MACT compliance, your RCRA permit can be modified as appropriate.

    For more information, see the section entitled "11. What Are the Permitting Requirements for Sources Subject to this Rule?" in the preamble to the final rule at 64 FR 52973, September 30, 1999 and the Permit Transition: Moving From RCRA to the CAA Fact Sheet (PDF) (8 pp, 569K).

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  2. How and when do I make the transition to the permitting scheme outlined in the Phase 1 HWC NESHAP?

    The point at which you make the transition depends on your current RCRA permitting status. If you already have a RCRA permit, you must continue to comply with the conditions of that permit, including those relating to combustion emissions. Unless the conditions have been written into the permit with a sunset clause (i.e., an automatic inactivation of those conditions upon compliance with the MACT standards), you must continue to comply with them until they either expire or are removed through a permit modification. Compliance with the HWC NESHAP does not eliminate or terminate RCRA combustion permit conditions. To remove these conditions prior to their expiration, you may request a permit modification from your regulatory agency. You may do this after you have successfully completed your comprehensive performance test and submitted an NOC documenting compliance with the MACT standards. The request can be a Class 1 modification with prior Agency approval. You should identify in your request the conditions that you believe should be removed from your permit. Your RCRA permit writer will compare the terms and conditions in your permit to your MACT standards and operating parameters. Any terms or conditions that are more stringent or extensive than the MACT requirements will be retained in your RCRA permit if they are necessary to ensure protection of human health and the environment

    If you are currently operating under interim status, you must continue to comply with the RCRA interim status combustion requirements of section 265.340 or 266.103, until you document compliance with the MACT standards. Once you have documented compliance with the MACT standards, you are no longer obligated to meet the RCRA interim status combustion requirements. (Please note: you are still required to have a RCRA permit to address basic hazardous waste management requirements including: general facility standards, corrective action, financial responsibility, closure, and other combustor specific concerns such as materials handling and other hazardous waste management units.) Thus, your transition point out of RCRA is your MACT compliance date, regardless of when you comply (i.e., whether it is prior to the compliance date, on the compliance date, or if you have received an extension). Since there are varying points at which you might comply with MACT, we strongly recommend that you inform your RCRA permit writer of the date you intend to comply so that it can be factored into his or her decision of when to issue your RCRA permit, and what will be contained in your RCRA permit. For example, if you comply on September 30, 2003, your permit writer could choose to issue your RCRA permit without the RCRA combustion emission requirements. On the other hand, if you receive a one year MACT compliance extension and your RCRA permit is ready to be issued in 2003, then your permit writer may choose to move forward and issue a complete (i.e., contains the RCRA combustion emission requirements) permit. In this case, we recommend that a sunset clause, which would automatically inactivate the RCRA emission requirements upon compliance with MACT, be included in your RCRA permit. Otherwise, you would need to comply with both the RCRA emission requirements and MACT standards until the duplicative RCRA requirements could be removed from your permit.

    If you are in the process of renewing your RCRA permit, how and when you make the transition is basically the same as if you were operating under interim status. Your permitting agency will determine how to proceed on your renewal application based upon when you intend to comply with the MACT standards.

    For more information, see the section entitled "D. How Will Sources Transfer from RCRA to MACT Compliance and Title 5 Permitting?" in the preamble to the final rule at 64 FR 52981 and 52989, September 30, 1999 and the Permit Transition: Moving From RCRA to the CAA Fact Sheet (PDF) (8 pp, 569K)

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  3. What requirements will be included in my CAA Title 5 permit and what will remain in my RCRA permit after I comply with the Phase 1 HWC NESHAP and receive a RCRA permit modification to remove any duplicate conditions?

    Your Title 5 permit will include the Phase 1 HWC MACT standards and any monitoring and operating parameter limits that ensure your continued compliance with those standards. Your RCRA permit will contain the requirements necessary for the basic hazardous waste management of your facility. These requirements might include for example: general facility standards, corrective action, other combustor-specific concerns such as materials handling, and any standards necessary for the operation of other types of RCRA units. Your RCRA permit also may contain additional conditions pursuant to the RCRA section 3005(c)(3) omnibus provision to protect human health and the environment. These conditions would supplement those required by the Phase 1 HWC NESHAP. We expect that in most cases they will be included in RCRA permits. However, some states may have the flexibility to place the additional conditions in Title 5 permits. This might occur in states that have a provision in their state air statute or regulations that is equivalent to the RCRA omnibus authority. Furthermore, sources that elect to comply with certain alternatives will have additional requirements in their RCRA permits. These alternatives may include compliance with: the RCRA requirements during start-up, shutdown, and malfunction events (40 CFR 270.235) and the particulate matter standard for incinerators feeding low levels of metals (40 CFR 63.1206(b)(14)).

    For more information, see "1. How Are the Title 5 Permitting Requirements Applicable?" and "3. Which RCRA Permitting Requirements Are Applicable?" in the preamble to the final rule at 64 FR 52977 and 52978.

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  4. Do I need to modify my RCRA permit as a result of the Phase 1 HWC NESHAP? If so, when?

    There are two points at which you may need to request a modification to your RCRA permit:

    First, you will need to modify your RCRA permit before making any MACT-related process or equipment changes that would be inconsistent with the existing terms and conditions of your RCRA permit. You would request a streamlined permit modification, which is a class 1 modification that requires prior Agency approval. See Appendix I to 270.42 section L.9. This procedure was created to allow facility owners or operators to request changes necessary to meet the Phase 1 HWC MACT standards. Class 1 requests typically are processed much more quickly than class 2 or 3 modifications, which would be required if the streamlined procedure had not been established. Before requesting a permit modification under the streamlined procedure, facility owners or operators must have first complied with the requirements governing the Notification of Intent to Comply (NIC) in 40 CFR 63.1210(b) and (c) that were in effect prior to their vacatur on October 11, 2000.

    Second, in order to remove duplicative requirements, you may wish to request a modification of your RCRA permit after you demonstrate compliance with the MACT standards. After you have conducted your comprehensive performance test and submitted your Notification of Compliance documenting compliance with the standards, you can request a RCRA permit modification to remove duplicative emissions requirements. You would want to request a Class 1 with prior agency approval modification to remove the duplicative requirements. See Appendix I to 270.42 section A.8.

    For more information regarding RCRA permit modifications related to the Phase 1 HWC NESHAP, see the RCRA Streamlined Permit Modification Fact Sheet (PDF) (6 pp, 368K) and the Permit Transition: Moving From RCRA to the CAA Fact Sheet (PDF) (8 pp, 569K). You also may consult the preamble to the final rule at 64 FR 52983, September 30, 1999.

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  5. Can states use an abbreviated process for authorization of the RCRA portions of the Phase 1 HWC NESHAP?

    We promulgated an abbreviated state authorization process for minor or routine RCRA regulations on November 30, 1998 in the HWIR Media rule (63 FR 65874). With respect to the Phase 1 HWC NESHAP, we believe that this process may be appropriate for states that are seeking authorization of the two RCRA modification provisions. The first provision allows facilities to request a Class 1 permit modification with prior agency approval to remove duplicative air emission requirements from RCRA permits. See 40 CFR §270.42, Appendix I, Section A.8. The second provision, known as the streamlined modification procedure, was promulgated in the June 19, 1998 Fast Track Rule (63 FR 33782). This modification provision allows facilities to request a Class 1 permit modification with prior agency approval to make equipment and technology changes to meet the MACT standards by the compliance date. See §270.42, Appendix I, Section L.9. (The Fast Track rule is considered minor and thus, is eligible for the abbreviated process.) We do not believe that the abbreviated process is appropriate for authorization of the entire RCRA portion of the Phase 1 HWC NESHAP, but may be for other portions not mentioned above. We recommend that states choosing to use the abbreviated authorization process closely coordinate with their EPA Regional authorization staff to ensure appropriate application of the process. You should also note that EPA has the discretion to tailor the state authorization process to fit the content of a state's application (40 CFR Section 271.21(b)(2)).

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  6. If I am in the process of obtaining my RCRA permit, do I have to continue now that the Phase 1 HWC MACT standards are effective?

    Yes, hazardous waste combustors remain subject to RCRA permitting even after the Phase 1 HWC MACT standards are effective. This applies whether you are renewing a RCRA permit or are obtaining one for the first time. If you are proposing to build a new hazardous waste combustion unit, you are required to obtain a RCRA permit prior to construction of that unit. This permit must contain the appropriate RCRA combustion requirements. (See 40 CFR 264.340(b), 265.340(b), and 266.100(b).) After demonstrating compliance with the MACT standards, you can request a modification to your RCRA permit to remove any duplicative conditions related to your combustor. You should check with your RCRA permit writer to discuss the possibility of including a sunset clause in your permit so that once you demonstrate compliance with the MACT standards, any duplicative conditions in your RCRA permit will automatically become inactive. If you are a RCRA interim status facility or are renewing your RCRA permit, you must continue the RCRA permitting process. See the answer to number 7 (above) for a discussion on interim status and renewal permit processes.

    The content of your RCRA permit will depend on whether or not you have already demonstrated compliance with the MACT standards. If you have demonstrated compliance, your RCRA permit will not need to address your combustor emissions. Instead, it will focus on basic hazardous waste management requirements such as: general facility standards, corrective action, financial responsibility, closure, and other combustor-specific concerns such as materials handling and other hazardous waste management units. An exception will be if additional risk-based emissions conditions are necessary under the RCRA omnibus authority (RCRA section 3005(c)(3)) to supplement the MACT requirements. We expect that in most cases such conditions will reside in RCRA permits. However, some states may have the flexibility to place the additional conditions in Title 5 permits, if they have a provision in their state air statute or regulations that is equivalent to the RCRA omnibus authority.

    Other exceptions may include if a source elects to comply with RCRA permit conditions during start-up, shutdown, and malfunctions (SSMs). If this option is chosen, rather than complying with the CAA option, the RCRA permit conditions to address SSMs will be retained in the RCRA permit and enforced only when operating under the SSM plan (40 CFR 270.235). Also, a source that chooses to comply with the alternative to the particulate matter (PM) standard will likely have these alternative requirements in its RCRA permit (40 CFR 63.1206(b)(14)).

    For more information, see the sections entitled "11. What Are the Permitting Requirements for Sources Subject to this Rule?" in the preamble to the final rule at 64 FR 52973, September 30, 1999, and the Permit Transition: Moving From RCRA to the CAA Fact Sheet (PDF) (8 pp, 569K).

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  7. I have already modified my RCRA permit to change my operating parameter limits to reflect my MACT equipment upgrades. What do I do if I find that I need to revise those limits further or make additional equipment upgrades in order to comply with the MACT standards?

    You will need to request another RCRA permit modification. If you are eligible to use the RCRA streamlined permit modification procedure, this should not cause you any undue delay in completing your upgrades and complying with the MACT standards. This is because under the streamlined approach, you may use a Class 1 modification with prior Agency approval. See 40 CFR 270.42(j). If, however, you are not eligible to use the streamlined procedure (because you did not comply with the notification of intent to comply requirements), you will need to follow the existing RCRA permit modification procedures, which generally require that you obtain either a Class 2 or 3 modification. Since both Class 2 and 3 modifications can take several years to complete, you may experience some difficulty in meeting your MACT compliance date. You may be able to alleviate this difficulty by requesting an extension to your compliance date of up to one year provided that you meet the criteria of 40 CFR §63.1213. You also could request a temporary authorization for RCRA purposes under 40 CFR §270.42(e) or the equivalent state regulations. Your permitting authority will decide whether to grant the temporary authorization, based on the factors provided in the regulations. The permitting authority may grant a temporary authorization for a period of up to 180 days. You may request an additional 180 days, provided that you also submit a request for the Class 2 or 3 modification.

    For more information, see the RCRA Streamlined Permit Modification Fact Sheet (PDF) (6 pp, 368K). You also may refer to the June 19, 1998 Fast Track final rule preamble (63 FR 33782).

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RCRA Permit Streamlined Permit Modication Process

  1. What is the RCRA streamlined permit modification procedure?

    We established the RCRA streamlined permit modification procedure to facilitate compliance with the Phase 1 HWC NESHAP (Appendix I to 270.42 section L.9). The streamlined permit modification procedure allows facility owners or operators to request changes necessary to meet the Phase 1 HWC MACT standards as a class 1 modification that requires prior Agency approval. Class 1 requests typically are processed much more quickly than class 2 or 3 modifications, which would be required if the streamlined procedure had not been established. Before requesting a permit modification under the streamlined procedure, facility owners or operators must have first complied with the requirements governing the Notification of Intent to Comply (NIC) in 40 CFR 63.1210(b) and (c) that were in effect prior to their vacatur on October 11, 2000.

    For more information regarding the streamlined permit modification procedure, see the RCRA Streamlined Permit Modification Fact Sheet (PDF) (6 pp, 368K). You also may refer to the June 19, 1998 Fast Track final rule preamble (63 FR 33782).

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  2. Why have a streamlined permit modification procedure?

    When developing the Phase 1 HWC MACT standards, we recognized that many owners or operators might need to make changes to their combustion equipment or processes in order to comply with the anticipated emission limits. For example, a facility may have to add an electrostatic precipitator to its incineration system to comply with the MACT particulate matter standard. For facilities operating under RCRA permits, these changes must be incorporated into the permit before they may be put in place at the facility. We were concerned that the RCRA permit modification procedures, as a practical matter, would not allow facility owners or operators to complete the modifications in time to meet the Phase 1 HWC MACT compliance time frames. We did not want the RCRA permit modification process to hinder a facility's ability to comply with the new emission standards, so we promulgated a streamlined procedure to address this concern (Appendix I to 270.42 section L.9).

    For more information regarding the streamlined permit modification procedure, see the RCRA Streamlined Permit Modification Fact Sheet (PDF) (6 pp, 368K).

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  3. What effect did the decision of the D.C. Circuit in Chemical Manufacturers Ass'n v. EPA have on the RCRA streamlined permit modification procedure?

    The court decision did not directly affect the streamlined permit modification procedure. It did, however, have an indirect effect since it vacated the Notification of Intent to Comply (NIC) requirements. To take advantage of the streamlined permit modification procedure, sources must have first complied with the NIC requirements that were issued in the June 19, 1998 Fast Track rule (63 FR 33782). Under those requirements, all hazardous waste combustors must have completed their NICs by October 2, 2000.

    On July 25, 2000, the Court of Appeals for the District of Columbia decided Chemical Manufacturers Association v. EPA ( D.C. Cir. No. 99 -1236). In this action, the court said that although EPA had the authority to promulgate an early cessation requirement (which required those sources who do not intend to comply with the new standards to stop burning hazardous waste within two years of the final rule being promulgated), we had not adequately justified the benefits stemming from that provision. As relief, the court vacated the early cessation provision, as well as the related NIC and Progress Report requirements. The court's decision does not impact the emission standards or compliance schedule for the other requirements of the Phase 1 HWC NESHAP. The relief ordered by the court took effect when the court issued its mandate on October 11, 2000.

    Since the mandate did not go into effect until after the deadline when sources were required to submit their NICs (on October 2, 2000), we have determined that the court's action does not impact a source's ability to request a RCRA permit modification using the streamlined procedures. (EPA in fact requested the Court to stay issuance of its mandate so as not to interdict the streamlined process.) As long as a source complied with the NIC provisions, then the source met the requirements in 40 CFR 270.42(j)(1) and is therefore eligible for the streamlined modification process.

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  4. When is it appropriate to use the streamlined procedure?

    The regulations provide for using the streamlined permit modification procedure only for those changes necessary to comply with the MACT standards (Appendix I to 270.42 section L.9). The streamlined procedure is not available for general retrofitting changes beyond those needed for compliance with the MACT standards. We recognize, however, that the examples we provided in the preamble to the Fast Track rule may mislead people into thinking those are the only types of changes allowed under this procedure. The examples we described focused on modifications to air pollution control equipment and certain operating parameters (see 63 FR 33803, June 19, 1998). Those examples are not all-inclusive. As long as you can explain how a change contributes to the unit's ability to meet one or more of the MACT standards, you can use the streamlined procedures.

    If it is unclear whether a particular type of change qualifies for the streamlined procedures, you should discuss your plans with your permit writer.

    For more information regarding the streamlined permit modification procedure, see the RCRA Streamlined Permit Modification Fact Sheet (PDF) (6 pp, 368K).

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  5. What if I cannot use the streamlined permit modification procedure?

    If you cannot use the streamlined permit modification procedure because you did not submit a NIC or because your state did not seek authorization for this procedure, your MACT-related changes would normally fall into the class 2 or 3 permit modification categories. Since both Class 2 and 3 modifications can take several years to complete, you might experience some difficulty meeting your MACT compliance date. You may be able to alleviate this difficulty by requesting an extension to that compliance date of up to one year, provided that you meet the criteria of 40 CFR §63.1213. You also could request a temporary authorization for RCRA purposes under 40 CFR §270.42(e) or the equivalent state regulations. Your permitting authority will decide whether to grant the temporary authorization based on the factors provided in the regulations. The permitting authority may grant a temporary authorization for a period of up to 180 days. You may request an additional 180 days, provided that you also submit a request for the Class 2 or 3 modification (40 CFR 270.42(e)).

    For more information regarding the streamlined permit modification procedure, see the RCRA Streamlined Permit Modification Fact Sheet (PDF) (6 pp, 368K).

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  6. Do I send my request for a RCRA streamlined permit modification to my state regulatory agency or to EPA?

    This depends on whether your facility is located in a state authorized to administer the RCRA program in lieu of EPA's for the type of combustion unit at your facility. If your state is authorized to regulate the combustion unit at your facility, you should submit your streamlined permit modification request to your state RCRA permitting authority. Otherwise, you must submit your request to your EPA regional office. In any event, it is always wise to confer with your regulatory authority (EPA region or state) before submitting any permit modification request in order to verify the correct procedures and contacts for your request. It is useful to note that for some facilities, the EPA regional office may be administering the RCRA permit instead of the authorized state. This situation may exist for facilities that were issued their RCRA permits by EPA before their state became authorized. These facilities should submit their modification requests to their EPA regional office.

    For further information see "12. State Authorization" in the preamble to the final rule at 64 FR 52991, September 30, 1999. See also the RCRA State Authorization for the Phase 1 HWC NESHAP Fact Sheet (PDF) (3 pp, 357K) and the RCRA Streamlined Permit Modification Fact Sheet (PDF) (6 pp, 368K).

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  7. Under what circumstances might I not be allowed to use the RCRA streamlined permit modification procedure?

    There are three general circumstances under which you may not be able to use the streamlined permit modification procedure:

    First, if you are located in an authorized state that has not changed its laws or regulations to adopt the streamlined procedure, you may not use this procedure. Instead, you must continue to follow your state's existing procedures for modifying a RCRA permit.

    Second, in order to take advantage of the streamlined permit modification procedure, you must first have complied with the Notification of Intent to Comply (NIC) requirements that were in effect prior to October 11, 2000. Under these requirements you should have submitted your final NIC to your regulatory agency by October 2, 2000. If you failed to submit your NIC by this date, you may not take advantage of the streamlined modification procedure.

    Third, the modification you are requesting must be necessary for compliance with the HWC NESHAP. See section L.9 in Appendix I to 40 CFR §270.42. If the modification is for some other purpose than compliance with the NESHAP, you may not take advantage of the streamlined procedure.

    For more information regarding the streamlined permit modification procedure, see the RCRA Streamlined Permit Modification Fact Sheet (PDF) (6 pp, 368K) in this Toolkit. You also may refer to the June 19, 1998 Fast Track final rule preamble (63 FR 33782).

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  8. What should I do if my state does not seek authorization for the RCRA streamlined permit modification procedure?

    While we have encouraged all authorized states to adopt the streamlined permit modification procedure, we recognize that some may choose not to. If your state has not picked up this procedure, we suggest that you meet with your state permit writer to discuss what options are available to you that will still allow you to meet your HWC NESHAP compliance date. Some options may include: (1) using the existing permit modification procedures, which generally will be either a Class 2 or 3 RCRA permit modification, (2) requesting a temporary authorization under 40 CFR §270.42(e), or (3) applying for a compliance extension under 40 CFR §§63.6(i)(4) and 63.1213. Another mechanism that is available to facilities that are in the process of renewing their RCRA permits is to incorporate the MACT-related equipment and process changes in the RCRA permit renewal application. For more information regarding these potential options, see the RCRA Streamlined Permit Modification Fact Sheet (PDF) (6 pp, 368K) in this Toolkit.

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Title 5 Permitting

  1. What is the difference between a CAA Title 5 operating permit and a New Source Review permit?

    There are two basic types of permits required for major stationary sources under the CAA: New Source Review (NSR) permits and Title 5 permits. NSR permits, commonly referred to as construction permits, are required for all new major sources. They also are required for all existing major sources that are adding or modifying emissions units. NSR permits contain the conditions necessary to construct or modify a source. In addition, NSR permits will often include operating conditions. For example, some states typically include conditions for shakedown and the temporary operation of the source in an NSR permit. The operating conditions may be incorporated later into a source's Title 5 operating permit.

    Title 5 permits are required for the operation of all new and existing major sources. They also may be required for non-major sources subject to standards developed under sections 111 or 112 of the CAA (40 CFR §70.4(a)). Title 5 permits contain all CAA requirements applicable to a source, including emission limits and any monitoring, record keeping and reporting requirements (40 CFR §70.6(a)). These permits are more comprehensive than NSR permits and, as mentioned above, may incorporate NSR permit conditions.

    For more information regarding NSR and Title 5 permits, see the Air program's NSR website and the Title 5 Operating Permits Fact Sheet (PDF) (6 pp, 379K) . Also, see the section entitled "1. How Are the Title 5 Permitting Requirements Applicable?" in the preamble to the final rule at 64 FR 52977, September 30, 1999.

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  2. Can RCRA program staff issue CAA Title 5 permits for sources subject to the Phase 1 HWC NESHAP?

    Title 5 permits cover a wide range of requirements under the CAA. As a result, we expect that the Phase 1 HWC NESHAP will constitute just one piece of a Title 5 permit for any given source. While we would not expect the RCRA program staff to issue the Title 5 permit for a hazardous waste combustor, some states may choose to have their RCRA staff develop the combustor portion of the permit. In addition, states also may choose to utilize their RCRA staff for many of the HWC NESHAP implementation activities that occur before the Title 5 permit is issued (i.e., review of the initial performance test plan). States considering utilizing their RCRA staff expertise may want to explore the flexibility provided by Performance Partnership Grants to strategically move funds, and Performance Partnership Agreements to strategically integrate programs.

    For more information, see the section entitled "3. What Considerations Were Made for Ease of Implementation?" in the preamble to the final rule at 64 FR 52976, September 30, 1999.

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  3. Do CAA Title 5 permitting requirements apply to both area and major sources subject to the Phase 1 HWC NESHAP?

    Yes. Since both area and major sources are subject to the Phase 1 HWC NESHAP, they are also subject to Title 5 permitting requirements. See 40 CFR §63.1200(a)(2). Our decision to require Title 5 permits for both area and major sources is consistent with the scope of the Title 5 program as presented in the 40 CFR part 70 implementing regulations. Section 70.3(a) lists the sources that are subject to Title 5 permitting. This includes major sources (section 70.3(a)(1)) and "any source, including an area source, subject to a standard or other requirement under section 112 of the Act ..."(section 70.3(a)(3)). Further, section 70.3(b)(2) states that the decision to subject non-major sources to Title 5 permitting is to be made when a section 112 standard is promulgated: "In the case of non-major sources subject to a standard or other requirement under either section 111 or 112 of the Act after July 21, 1992 publication, the Administrator will determine whether to exempt any or all such applicable sources from the requirement to obtain a part 70 permit at the time that the new standard is promulgated". We chose not to provide an exemption or a deferral from Title 5 permitting for any sources subject to the Phase 1 HWC MACT standards under section 112.

    For more information, see the section entitled "C. Is Title 5 Permitting Applicable to Area Sources?" in the preamble to the final rule at 64 FR 52979, September 30, 1999. See also the Title 5 Operating Permits Fact Sheet (PDF) (6 pp, 379K)

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  4. If I am a non-major source and I must obtain a CAA Title 5 permit only because of the Phase 1 HWC NESHAP, do I have to include my other units in my Title 5 permit?

    No. If a nonmajor source (also known as an "area" source) is subject to Title 5 permitting only because it has a combustion unit that must comply with the Phase 1 HWC NESHAP, we do not require that other units, if any, at the source (i.e., emissions units not previously subject to Title 5) also be included in the permit (see 40 CFR §70.3(c)(2) and 71.3(c)(2)). Your Title 5 permit application as well as your Title 5 permit, is only required to address the emissions units which caused your source to be subject to Title 5. However, the permit applications and permits for these nonmajor sources must include all of the applicable requirements that apply to the triggering units, e.g., State Implementation Plan requirements. See 40 CFR 70.3(c)(2) and 71.3(c)(2). You should note that your state may issue more stringent requirements than the federal requirements. Thus, you may be required under state regulations to include other units in your Title 5 permit even if you are not required to do so under the federal regulations.

    Under federal regulations, only major sources must include all applicable units (present at the source) in their Title 5 permits. A major source is one that emits or has the potential to emit greater than 10 tons per year (tpy) of an individual HAP, or greater than 25 tpy of HAPs in aggregate (see definition for "major source" at 40 CFR 63.2). When determining whether a source's classification is major or area, all units at the source that emit or have the potential to emit HAPs are considered.

    For more information on Title 5 permitting, see the Title 5 Operating Permits Fact Sheet (PDF) (6 pp, 379K).

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  5. After I demonstrate compliance with the Phase 1 HWC NESHAP, what should my permitting authority incorporate into my CAA Title 5 operating permit?

    Your permitting authority will incorporate your Phase 1 HWC MACT standards, monitoring requirements and operating parameter limits into your Title 5 permit. These standards, requirements and parameter limits are the same as those specified in your initial Notification of Compliance. 40 CFR §§63.1206(c)(1)(v), 70.6(a)(1) and 71.6(a)(1) require that they be included in your Title 5 operating permit.

    For more information, see "2. What Is the Relationship Between the Notification of Compliance and the Title 5 Permit?" in the preamble to the final rule at 64 FR 52977, September 30, 1999 and the NOC/Title 5 Interface Fact Sheet (PDF) (6 pp, 324K).

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  6. What type of modification process should I use to incorporate my initial NOC into my CAA Title 5 permit?

    We expect that most sources will need to follow the significant permit revision procedures to modify their Title 5 permits to include their initial Notification of Compliance (NOC). You can find these procedures in 40 CFR 70.7(e)(4) and 71.7(e)(3). Any change in monitoring terms and conditions that is considered to be significant must be incorporated into your Title 5 permit through the significant permit revision procedures. Since the initial NOC contains the emission standards, operating parameter limits and monitoring requirements that demonstrate your continued ability to comply with the Phase 1 HWC NESHAP, we consider incorporation of the NOC as a significant change. Applying the significant permit revision procedures also allows for a level of public involvement similar to that which would have been required under RCRA had we continued to regulate combustion emissions under that program. You should note that we plan to amend the permit revision procedures of part 70 and 71 in the future. Therefore, before submitting your request for a revision to your permitting authority, we recommend that you confirm that you are following the correct procedure.

    For more information regarding modification of your Title 5 permit to incorporate the NOC parameter limits, see the NOC/Title 5 Interface Fact Sheet (PDF) (6 pp, 324K).

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  7. What type of modification process should I use to incorporate subsequent NOCs into my CAA Title 5 permit?

    We recommend that you coordinate your comprehensive performance tests and Notifications of Compliance (NOCs) with your Title 5 permit renewal schedule. In this way, you will be able to incorporate subsequent NOCs into your Title 5 permit through the permit renewal process. If, however, you are unable to coordinate these activities, you will need to modify your permit instead. You should consult with your permitting authority to determine the most appropriate way to do this. We believe that most sources will be able to follow the minor permit revision procedures of 40 CFR §70.7(e)(2) and 71.7(e)(1). This is because we expect that over time you will only need to make minor changes or adjustments to your existing parameter limits.

    For more information regarding modification of your Title 5 permit to incorporate subsequent NOC parameter limits, see the NOC/Title 5 Interface Fact Sheet (PDF) (6 pp, 324K).

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  8. If my source is a major source, what do I need to do to include the February 13, 2002 interim standards and February 14, 2002 final amendments in my permit; and what about the permanent replacement standards to be issued in 2005?

    If the February 13, 2002 and February 14, 2002 requirements were not included in your permit when your permit was issued and you are covered by a Title 5 permit with a remaining permit term of 3 or more years on February 13, 2002, then your permitting authority must complete a reopening of your permit to incorporate the applicable requirements from these two rules by August 14, 2003. If on February 13, 2002, you had a permit with a permit term of less than 3 years, then the permitting authority can wait until permit renewal to incorporate these applicable requirements into your Title 5 permit. Of course, these applicable requirements would also be included in your permit renewal application. See 40 CFR 70.5(a)(1)(iii), 70.5(c)(4)(i), 71.5(a)(1)(iii), and 71.5(c)(4)(i). (Also, remember that as a major source, your Title 5 application and permit must address all emissions units and their applicable requirements at the Title 5 source, not just the section 112 emissions unit according to 40 CFR 70.3(c)(1) and 71.3(c)(1).)

    The mechanism to reopen a Title 5 permit is stipulated in the permit itself and is referred to as "reopening for cause." Reopenings are initiated by the permitting authority, who will notify you at least 30 days in advance of the date your permit is scheduled to be reopened, unless a shorter time period is provided due to an emergency. Reopenings must be completed no later than 18 months after the promulgation of an applicable requirement. See 40 CFR 70.7(f) and 71.7(f).

    Keep in mind, though, that an owner or operator of a source subject to the February 13, 2002 and February 14, 2002 rules remains subject to, and must act in compliance with, the requirements contained in these rules, as well as all other applicable requirements to which the source is subject, regardless of whether the requirements are included in a Title 5 permit. See 40 CFR 70.6(a)(1), 70.2, 71.6(a)(1) and 71.2.

    With respect to the permanent replacement standards that are scheduled to be promulgated in 2005, you would follow the same procedures as discussed above to incorporate them into your existing Title 5 permit.

    It is always advisable to consult with your permitting authority regarding their specific Title 5 permit reopening and renewal procedures.

    For more information on Title 5 permitting, see the Title 5 Operating Permits Fact Sheet (PDF) (6 pp, 379K) in this toolkit. Also, for information on aggregating emissions units to determine what is a source under Title 5, see the definition of major source in 40 CFR 70.2, 71.2, and 63.2.

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  9. If I became subject to Title 5 permitting for the first time as a result of being subject to the Phase 1 HWC NESHAP (1999 standards), what do I need to do to include the February 13, 2002 interim standards and February 14, 2002 final amendments in my permit; and what about the permanent replacement standards to be issued in 2005?

    If you first became subject to Title 5 permitting requirements as a result of the Phase 1 HWC NESHAP promulgated on September 30, 1999, you should have submitted a complete application for a Title 5 permit by September 30, 2000, and should have been issued a Title 5 permit by March 30, 2002. See 40 CFR 70.5(a)(1)(i), 70.7(a)(2), 71.5(a)(1)(i), and 71.7(a)(2).

    If this standard is the only reason that you are now subject to Title 5, then you are an area/nonmajor source for which a "positive area source finding" has been made. This means that even though your emissions qualify only as area source status, we chose not to exclude you from Title 5 permitting (refer to 40 CFR §§63.1(c)(2), 70.3 (a) and (b) and 71.3(a) and (b)) under this NESHAP. (Major sources would have already applied for or obtained Title 5 permits prior to being subject to this NESHAP.) Title 5 requires that sources supplement their permit applications if additional information becomes available, such as the promulgation of new or revised requirements. Therefore, if your Title 5 permitting authority had not released your draft permit by February 14, 2002, then you were required by 40 CFR 70.5(b) or 71.5(b) to supplement your Title 5 application by providing additional information as necessary to address the applicable requirements from the February 13, 2002 and February 14, 2002 rules. This update of the application should have ensured that the Title 5 permit when issued, included the applicable requirements from the February 13 and February 14 rules.

    If, however, your Title 5 permit was issued and it did not include the applicable requirements from the February 13th and February 14th rules due to the timing of permit issuance relative to when these standards were promulgated, then your permitting authority can wait until permit renewal to incorporate these applicable requirements into your Title 5 permit. This is because the permit reopening provisions of 40 CFR 70.7(f) and 71.7(f) only apply to major sources. See also section 502(b)(9) of the CAA. Of course, these applicable requirements would also be included in your permit renewal application. See 40 CFR 70.5(a)(1)(iii), 70.5(c)(4)(i), 71.5(a)(1)(iii) and 71.5(c)(4)(i). Also, remember that as an area/nonmajor source, your Title 5 permit application as well as your Title 5 permit, is only required to address the emissions units which caused your source to be subject to Title 5. However, the permit applications and permits for these nonmajor sources must include all of the applicable requirements that apply to the triggering units, e.g., State Implementation Plan requirements. See 40 CFR 70.3(c)(2) and 71.3(c)(2).

    Since all permits for area sources subject to the Phase 1 HWC NESHAP should have been issued by March 30, 2002, the permanent replacement standards (scheduled to be promulgated in 2005) will need to be incorporated into area source permits at the time of permit renewal.

    It is always advisable to consult with your permitting authority regarding their specific Title 5 permit reopening and renewal procedures.

    For more information on Title 5 permitting, see the Title 5 Operating Permits Fact Sheet (PDF) (6 pp, 379K) in this toolkit and the section entitled "A. Positive Area Source Finding for Hazardous Waste Combustors" in the preamble to the final rule at 64 FR 52837, September 30, 1999.

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