In this rule, the opportunities for public involvement in the CAA permitting process are similar to those in the RCRA permitting process. The public participation requirements for Title 5 permits are identified in Title 40 Code of Federal Regulations (40 CFR) parts 70 and 71, and include such activities as allowing an opportunity for a public hearing and public comments on draft permits. In addition to the requirements in parts 70 and 71, we required an informal public meeting early in the MACT compliance process as part of the Notification of Intent to Comply (NIC) process. This meeting, which provided an opportunity for the public to learn of a source's plans for compliance was patterned after the RCRA pre-application meeting. Sources in existence at the time of the publication of the Phase 1 HWC NESHAP were required to hold this informal public meeting by July 31, 2000. Newer sources were relieved of this requirement, however, due to an October 11, 2000 mandate issued by the Court of Appeals for the District of Columbia vacating the NIC provisions. We have since removed this requirement from the federal regulations (see 66 FR 24270).
Although the NIC public meeting requirement has been vacated, opportunities for public participation continue to exist within the Phase 1 HWC NESHAP implementation framework. For example, we recommended that once a Title 5 permitted source completes its initial performance testing and submits its Notification of Compliance (NOC), the NOC be incorporated into the Title 5 permit using the significant modification procedure. The significant modification procedure requires the same level of public involvement as does the initial Title 5 permit issuance and renewal procedures (see 40 CFR 70.7(h) and 71.11). Specifically, the public is provided notice of the action to be taken (i.e., the incorporation of the NOC into the Title 5 permit) and given at least 30 days for comment, and if there is to be a hearing (i.e., meeting), notice will be provided at least 30 days in advance of the hearing. The regulatory authority will then approve/disapprove the modification. The primary rationale for recommending the significant modification procedure is to afford the public an opportunity to review all of the information pertinent to the source's compliance obligations. When including operating requirements in Title 5 permits, we want to ensure a level of public involvement that is equal to that under RCRA. For instance, when doing a significant permit revision in RCRA (a class 2 or 3 permit modification, see 40 CFR 270.42), the public is provided notice, a public meeting is held, and the public is given a 60-day comment period, before the regulatory authority can approve/disapprove the modification.
The Phase 1 HWC NESHAP has not changed any of the public involvement procedures under RCRA or under the CAA. In most instances, the RCRA emission standards and associated operating limits no longer apply once a source demonstrates compliance with the MACT standards by submitting a notification of compliance and subsequently has the operating requirements and emission standards removed from its RCRA permit. However, a RCRA permit is still required for basic hazardous waste management activities including: general facility standards, corrective action, other combustor-specific concerns such as materials handling, and other hazardous waste management units. As a result, public participation will still be an integral part of the RCRA permit process. The Title 5 permit process also has its own public participation requirements as discussed above.
For more information on Title 5 permitting and public participation, see the Title 5 Operating Permits Fact Sheet (PDF, 379 KB) located in the Fact Sheets module of the Toolkit.
What are the opportunities for public involvement under the Phase 1 HWC NESHAP rule? How has public involvement changed because of the rule?
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