horizontal market power if it passes two indicative market power
screens: first, a pivotal supplier analysis based on the annual peak
demand of the relevant market and; second, a market share analysis
applied on a seasonal basis. There will be a rebuttable presumption
that a Seller possesses horizontal market power if it fails either
screen. A Seller that has horizontal market power, or that has not
rebutted a presumption of horizontal market power, is subject to
mitigation, as described in Sec.  35.38.
    (d) To demonstrate a lack of vertical market power, a Seller that
owns, operates or controls transmission

facilities, or whose affiliates own, operate or control transmission
facilities, must have on file with the Commission an Open Access
Transmission Tariff, as described in Sec.  35.28.
    (e) To demonstrate a lack of vertical market power in wholesale
energy markets through the affiliation, ownership or control of inputs
to electric power production, such as the transportation or
distribution of the inputs to electric power production, a Seller must
provide the following information: a description of its affiliation,
ownership or control of inputs to electric power production; a
description of its ownership or control of intra-state transportation
or distribution of inputs to electric power production; a description
of its ownership or control of any sites for new generation capacity
development; and a statement that it cannot erect barriers to entry in
the relevant markets.

Sec.  35.38  Mitigation.

    (a) A Seller that has been found to have market power in generation
or that is presumed to have horizontal market power by virtue of
failing or foregoing the horizontal market power screens, as described
in Sec.  35.37(c), may adopt the default mitigation detailed in
paragraph (b) of this section or may propose mitigation tailored to its
own particular circumstances to eliminate its ability to exercise
market power.
    (b) Default mitigation consists of three distinct products: (i)
sales of power of one week or less priced at the Seller's incremental
cost plus a 10 percent adder; (ii) sales of power of more than one week
but less than one year priced at no higher than a cost-based ceiling
reflecting the costs of the unit(s) expected to provide the service;
and (iii) new contracts filed for review under section 205 of the
Federal Power Act for sales of power for one year or more priced at a
rate not to exceed embedded cost of service.

Sec.  35.39  Affiliate restrictions.

    (a) Restriction on affiliate sales of electric energy. As a
condition of obtaining and retaining market-based rate authority, no
wholesale sale of electric energy may be made between a public utility
Seller with a franchised service territory and a non-regulated power
sales affiliate without first receiving Commission authorization for
the transaction under section 205 of the Federal Power Act. Failure to
satisfy this condition will constitute a violation of the Seller's
market-based rate tariff. All authorizations to engage in affiliate
wholesale sales of electricity must be listed in a Seller's market-
based rate tariff.
    (b) Separation of functions. (1) For the purpose of this
subsection, entities acting on behalf of and for the benefit of a
franchised public utility (such as entities managing the electrical
generation assets of the franchised public utility) are considered part
of the franchised public utility. Entities acting on behalf of and for
the benefit of a franchised public utility's non-regulated power sales
affiliates are considered part of the non-regulated affiliated
entities.
    (2) To the maximum extent practical, the employees of a non-
regulated power sales affiliate will operate separately from the
employees of any affiliated franchised public utility.
    (c) Information sharing. All market information shared between a
franchised public utility and a non-regulated power sales affiliate
will be disclosed simultaneously to the public. This includes, but is
not limited to, any communication concerning power or transmission
business, present or future, positive or negative, concrete or
potential. Shared employees in a support role are not bound by this
provision, but they may not serve as a conduit of information to non-
support personnel.
    (d) Non-power goods or services. (1) Sales of any non-power goods
or services by a franchised public utility, including sales made to or
through its affiliated exempt wholesale generators or qualifying
facilities, to a non-regulated power sales affiliate will be at the
higher of cost or market price.
    (2) Sales of any non-power goods or services by a non-regulated
power sales affiliate to an affiliated franchised public utility will
not be at a price above market.
    (e) Other. (1) To the extent a non-regulated power sales affiliate
seeks to broker power for an affiliated franchised public utility:
    (i) The non-regulated power sales affiliate must offer the
franchised public utility's power first;
    (ii) The arrangement between the non-regulated power sales
affiliate and the franchised public utility must be non-exclusive; and
    (iii) The non-regulated power sales affiliate may not accept any
fees in conjunction with any brokering services it performs for an
affiliated franchised public utility.
    (2) To the extent a franchised public utility seeks to broker power
for a non-regulated power sales affiliate:
    (i) The franchised public utility will be required to charge the
higher of its costs for the service or the market rate for such
services;
    (ii) The franchised public utility will be required to market its
own power first, and simultaneously make public (on an electronic
bulletin board and/or the Internet) any market information shared with
its affiliate during the brokering; and
    (iii) The franchised public utility will post on an electronic
bulletin board and/or the Internet the actual brokering charges
imposed.

Sec.  35.40  Ancillary services.

    (a) If a Seller seeks authority to make sales of ancillary services
at market-based rates, it may offer such services provided the service
has been authorized by the Commission and only in specific geographic
markets as the Commission has authorized.
    (b) If a Seller is authorized by the Commission to make sales of
ancillary services at market-based rates as a third-party ancillary
services provider:
    (1) Seller shall establish an Internet-based site for providing
information regarding ancillary services transactions including, prior
to making transactions, postings of offers of services available and
offering prices; procedures under which all customers would request
service and make bids; postings of the actual transaction prices after
the transactions are consummated; and accepted and denied requests and
the reasons for denial. The site should conform to the applicable OASIS
Standards and Communications Protocols.
    (2) [Reserved]
    (c) Seller is not authorized to make sales of ancillary services at
market-based rates as a third-party ancillary services provider:
    (1) To a regional transmission organization or an independent
system operator (other than those ancillary services that are subject
to Sec.  35.40(a)) that has no ability to self-supply ancillary
services but instead depends on third parties;
    (2) When the underlying transmission service is on the transmission
system of a transmission provider with whom the Seller is affiliated;
or
    (3) To a public utility who is purchasing ancillary services to
satisfy its own Open Access Transmission Tariff requirements to offer
ancillary services to its own transmission customers, unless Seller(s)
receives separate authorization by the Commission.

Sec.  35.41  Market behavior rules.

    (a) Unit operation. Where a Seller participates in a Commission-
approved

organized market, Seller will operate and schedule generating
facilities, undertake maintenance, declare outages, and commit or
otherwise bid supply in a manner that complies with the Commission-
approved rules and regulations of the applicable power market. Seller
is not required to bid or supply electric energy or other electricity
products unless such requirement is a part of a separate Commission-
approved tariff or is a requirement applicable to Seller through
Seller's participation in a Commission-approved organized market.
    (b) Communications. Seller will provide accurate and factual
information and not submit false or misleading information, or omit
material information, in any communication with the Commission,
Commission-approved market monitors, Commission-approved regional
transmission organizations, Commission-approved independent system
operators, or jurisdictional transmission providers, unless Seller
exercises due diligence to prevent such occurrences.
    (c) Price reporting. To the extent Seller engages in reporting of
transactions to publishers of electric or natural gas price indices,
Seller shall provide accurate and factual information, and not
knowingly submit false or misleading information or omit material
information to any such publisher, by reporting its transactions in a
manner consistent with the procedures set forth in the Policy Statement
issued by the Commission in Docket No. PL03-3-000 and any
clarifications thereto. Unless Seller has previously provided the
Commission with a notification of its price reporting status, Seller
shall notify the Commission within 15 days of the effective date of
this regulation or within 15 days of the date it begins making
wholesale sales, whichever is earlier, whether it engages in such
reporting of its transactions. Seller must update the notification
within 15 days of any subsequent change in its transaction reporting
status. In addition, Seller shall adhere to such other standards and
requirements for price reporting as the Commission may order.
    (d) Records retention. Seller shall retain, for a period of five
years, all data and information upon which it billed the prices it
charged for the electric energy or electric energy products it sold
pursuant to Seller's market-based rate tariff, and the prices it
reported for use in price indices.

Sec.  35.42  Market-based rate tariff.

    (a) In addition to other requirements in subpart A, every public
utility that is authorized to sell electric energy at market-based
rates pursuant to section 205 of the Federal Power Act must have on
file with the Commission a tariff of general applicability. Such tariff
must be the market-based rate tariff contained in Order No. ----, FERC
Stats. & Regs. ] 31, ---- (Final Rule on Market-Based Rates for
Wholesale Sales of Electricity by Public Utilities).
    (b) The market-based rate tariff contained in Order No. ----, FERC
Stats. & Regs. ] 31, ---- must be filed by Sellers who have been
granted market-based rate authority prior to the issuance of Order No.
--------, in accordance with Order No. --------, FERC Stats. & Regs. ]
31, ---- (Final Rule on Electronic Tariff Filing). A market-based rate
tariff must be filed by a Seller who is initially seeking market-based
rates at the time it applies for market-based rate authorization.
    (c) Each corporate family will file a single market-based rate
tariff, with all affiliates with market-based rate authority separately
identified in the tariff.

Sec.  35.43  Change in status reporting requirement.

    (a) As a condition of obtaining and retaining market-based rate
authority, a Seller must timely report to the Commission any change in
status that would reflect a departure from the characteristics the
Commission relied upon in granting market-based rate authority. A
change in status includes, but is not limited to, the following:
    (1) Ownership or control of generation capacity that results in net
increases of 100 MW or more, or transmission facilities or inputs to
electric power production other than fuel supplies, or
    (2) Affiliation with any entity not disclosed in the application
for market-based rate authority that owns, operates or controls
generation or transmission facilities or inputs to electric power
production, or affiliation with any entity that has a franchised
service area.
    (b) Any change in status subject to paragraph (a) of this section
must be filed no later than 30 days after the change in status occurs.
Failure to timely file a change in status report constitutes a tariff
violation.

Appendix A to Subpart H--Proposed Market-Based Rate Tariff

                        Market-Based Rate Tariff
------------------------------------------------------------------------
                                               Docket No. authorizing
       Seller(s) under this tariff:              market-based rates:
------------------------------------------------------------------------
ABC, Inc..................................  Docket No. ERXX-XXX-XXX.
XYZ, LLC..................................  Docket No. ERXX-XXX-XXX.
Etc.......................................  etc.
------------------------------------------------------------------------

    1. Availability: Electric energy, capacity and ancillary
services are available under this tariff for wholesale sales to
purchasers with whom seller has contracted. Not all services may be
available from all sellers listed. Seller shall comply with the
provisions of 18 CFR Part 35, Subpart H, as applicable, and with any
conditions the Commission imposes in its orders concerning seller's
market-based rate authority, including orders in which the
Commission authorizes seller to engage in affiliate sales under this
tariff or otherwise restricts or limits the seller's market-based
rate authority. Failure to comply with the applicable provisions of
18 CFR Part 35, Subpart H, and with any orders of the Commission
concerning seller's market-based rate authority, will constitute a
violation of this tariff.
    2. Applicability: This tariff is applicable to all wholesale
sales of electric energy, capacity and ancillary services by seller.
    3. Rates: All sales shall be made at rates established by
agreement between the purchaser and seller.
    4. Other Terms and Conditions: All other terms and conditions
not listed herein shall be established by agreement between the
purchaser and seller.
    5. Effective Date: This Rate Schedule is effective on the date
of compliance with the final rule on Electronic Tariff Filings,
Order No. ----, FERC Stats. & Regs. ] 31,----.

Docket No. Approving Affiliate Sales

Docket No. ERXX-XXX-XXX
Docket No. ERXX-XXX-XXX
Etc.
[ballot] Check if Not Applicable

Docket No. Imposing Restrictions on Market-Based Rate Authority

Docket No. ERXX-XXX-XXX
Docket No. ERXX-XXX-XXX
Etc.
[ballot] Check if Not Applicable

    Note: The following Appendix will not appear in the Code of
Federal Regulations.

Appendix B--Schedule for Regional Triennial Review Process

    All Category 2 sellers that own or control generation in the
California, Northwest, Southwest, Midwest, SPP, Southeast, PJM, New
York, and New England regions during the period specified below
(Qualification Period) will file updated market power analyses
within the filing period specified in the following schedule.
Triennial Reviews

should reflect the most recently available historical data from the
calendar year prior to the year of filing. The regions are depicted
in the map that follows. (Source: Federal Energy Regulatory
Commission, 2004 State of the Markets Report, staff report prepared
by the Office of Market Oversight & Investigations, June 2005.)

------------------------------------------------------------------------
                               Qualification
            Region                 period            Filing period
------------------------------------------------------------------------
PJM..........................          2006   April 1-30, 2007.
New York.....................          2006   July 1-30, 2007.
New England..................          2006   October 1-30, 2007.
Midwest......................          2007   April 1-30, 2008.
SPP..........................          2007   July 1-30, 2008.
Southeast....................          2007   October 1-30, 2008.
California...................          2008   April 1-30, 2009.
Northwest....................          2008   July 1-30, 2009.
Southwest....................          2008   October 1-30, 2009.
PJM..........................          2009   April 1-30, 2010.
New York.....................          2009   July 1-30, 2010.
New England..................          2009   October 1-30, 2010.
Midwest......................          2010   April 1-30, 2011.
SPP..........................          2010   July 1-30, 2011.
Southeast....................          2010   October 1-30, 2011.
California...................          2011   April 1-30, 2012.
Northwest....................          2011   July 1-30, 2012.
Southwest....................          2011   October 1-30, 2012.
------------------------------------------------------------------------
This review cycle will be repeated in subsequent years.

[GRAPHIC] [TIFF OMITTED] TP07JN06.000

    Note: The following Appendix will not appear in the Code of
Federal Regulations.

Appendix C--Standard Screens Format

                                Amounts Listed Are for Illustrative Purposes Only
                                           [Pivotal supplier analysis]
----------------------------------------------------------------------------------------------------------------
                                                   Row                (MW)                  Reference
----------------------------------------------------------------------------------------------------------------
Supply:
    Applicant's Installed Capacity......  A                             19,500   Workpaper 1.
    Applicant's Long-Term Firm Purchases  B                                500   Workpaper 6.
    Applicant's Long-Term Firm Sales....  C                             (1,000)  Workpaper 2.
    Applicant's Imports (Limited by       D                                  0   Workpaper 5.
     Simultaneous Import Capability).
    Non-Affiliate Local Installed         E                              8,000   Workpaper 1.
     Capacity.
    Non-Affiliate Long-Term Firm          F                                500   Workpaper 6.
     Purchases.

    Non-Affiliate Long-Term Firm Sales..  G                             (2,500)  Workpaper 2.
    Non-Affiliate Uncommitted Capacity    H
     Imports.
    (Limited by Simultaneous Import       I                              3,500   Workpaper 5.
     Capability).
    Control Area Reserve Requirement....  J                             (2,160)  Workpaper 3.
    Amount of Line J Attributable to      K                             (2,160)  Workpaper 3.
     Applicant, if any.
                                          L
    Total Uncommitted Supply (SUM         M                              9,840
     A,B,C,D,E,F,G,I,J,Q).
                                          N
Load:                                     O
    Control Area Annual Peak Load.......  P                             18,000   Workpaper 4.
    Average Daily Peak Native Load in     Q                            (16,500)  Workpaper 4.
     Peak Month.
    Amount of Line Q Attributable to      R                            (16,500)  Workpaper 4.
     Applicant, if any.
                                          S
    Wholesale Load (-SUM P,Q)...........  T                             (1,500)
                                          U
    Net Uncommitted Supply (SUM M,T)....  V                              8,340
                                          W
    Applicant's Uncommitted Capacity      X                                340
     (SUM A,B,C,K,R).
                                          ....................            PASS
----------------------------------------------------------------------------------------------------------------

                                                             Wholesale Market Share Analysis
                                                        [Amounts for Illustrative Purposes Only]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Row            Q1 (MW)          Q2 (MW)          Q3 (MW)          Q4 (MW)                Reference
--------------------------------------------------------------------------------------------------------------------------------------------------------
Applicant's Installed Capacity......  A                         19,500           19,500           19,500           19,500   Workpaper 1.
Applicant's Long-Term Firm Purchases  B                            500              500              500              500   Workpaper 6.
Applicant's Long-Term Firm Sales....  C                         (1,000)          (1,000)          (1,000)          (1,000)  Workpaper 2.
Applicant's Seasonal Average Planned  D                         (4,000)          (3,000)            (800)          (3,500)  Workpaper 7.
 Outages.
Applicant's Imports (Limited by       E                              0                0                0                0   Workpaper 5.
 Simultaneous Import Capability).
Average Peak Native Load in the       F                        (11,500)         (10,000)         (12,500)         (11,500)  Workpaper 8.
 Season.
Amount of Line F Attributable to      G                        (11,500)         (10,000)         (12,500)         (11,500)  Workpaper 8.
 Applicant, if any.
Amount of Line F Attributable to      H                             (0)              (0)              (0)              (0)  Workpaper 8.
 Others, if any.
Control Area Reserve Requirement....  I                         (1,500)          (1,320)          (1,560)          (1,500)  Workpaper 3.
Amount of Line I Attributable to      J                         (1,500)          (1,320)          (1,560)          (1,500)  Workpaper 3.
 Applicant, if any.
Amount of Line I Attributable to      K                             (0)              (0)              (0)              (0)  Workpaper 8.
 Others, if any.
Non-Affiliate Local Installed         L                          8,000            8,000            8,000            8,000   Workpaper 1.
 Capacity.
Non-Affiliate Long-Term Firm          M                            500              500              500              500   Workpaper 6.
 Purchases.
Non-Affiliate Long-Term Firm Sales..  N                         (2,500)          (2,500)          (2,500)          (2,500)  Workpaper 2.
Non-Affiliate Local Seasonal Average  O                           (800)            (200)            (300)            (400)  Workpaper 7.
 Planned Outages.
Non-Affiliate Uncommitted Capacity    P
 Imports.
(Limited by Simultaneous Import       Q                          5,000            4,500            3,500            4,000   Workpaper 5.
 Capability).
                                      R
    Total Competing Supply (SUM       S                         10,200           10,300            9,200            9,600
     L,M,N,O,Q,H,K).
Applicant's Uncommitted Capacity      T                          2,000            4,680            4,140            2,500
 (SUM A,B,C,D,E,G,J).
    Total Seasonal Uncommitted        U                         12,200           14,980           13,340           12,100
     Capacity (SUM S,T).
                                      V
Applicant's Market Share (T/U)......  W                         16.39%           31.24%           31.03%           20.66%
                                      ................            PASS             FAIL             FAIL             FAIL
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. 06-4903 Filed 6-6-06; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 75, Number 215 (Monday, November 8, 2010)]
[Proposed Rules]
[Pages 68558-68559]
[FR Doc No: 2010-28096]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2010-1035; Airspace Docket No. 10-ACE-12]

Proposed Establishment of Class E Airspace; New Hampton, IA

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: This action proposes to establish Class E airspace at New
Hampton, IA, to accommodate new Standard Instrument Approach Procedures
(SIAP) for the Mercy Medical Center Heliport. The FAA is taking this
action to enhance the safety and management of Instrument Flight Rules
(IFR) operations.

DATES: 0901 UTC. Comments must be received on or before December 23,
2010.

ADDRESSES: Send comments on this proposal to the U.S. Department of
Transportation, Docket Operations, 1200 New Jersey Avenue, SE., West
Building Ground Floor, Room W12-140, Washington, DC 20590-0001. You
must identify the docket number FAA-2010-1035/Airspace Docket No. 10-
ACE-12, at the beginning of your comments. You may also submit comments
through the Internet at http://www.regulations.gov. You may review the
public docket containing the proposal, any comments received, and any
final disposition in person in the Dockets Office between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The Docket Office
(telephone 1-800-647-5527), is on the ground floor of the building at
the above address.

FOR FURTHER INFORMATION CONTACT: Scott Enander, Central Service Center,
Operations Support Group, Federal Aviation Administration, Southwest
Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone: 817-321-
7716.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments, as
they may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers and be submitted in
triplicate to the address listed above. Commenters wishing the FAA to
acknowledge receipt of their comments on this notice must submit with
those comments a self-addressed, stamped postcard on which the
following statement is made: ``Comments to Docket No. FAA-2010-1035/
Airspace Docket No. 10-ACE-12.'' The postcard will be date/time stamped
and returned to the commenter.

Availability of NPRMs

    An electronic copy of this document may be downloaded through the
Internet at http://www.regulations.gov. Recently published rulemaking
documents can also be accessed through the FAA's web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.
    You may review the public docket containing the proposal, any
comments

received and any final disposition in person in the Dockets Office (see
ADDRESSES section for address and phone number) between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. An informal
docket may also be examined during normal business hours at the office
of the Central Service Center, 2601 Meacham Blvd, Fort Worth, TX 76137.
    Persons interested in being placed on a mailing list for future
NPRMs should contact the FAA's Office of Rulemaking<PHONE_NUMBER>, to
request a copy of Advisory Circular No. 11-2A, Notice of Proposed
Rulemaking Distribution System, which describes the application
procedure.

The Proposal

    This action proposes to amend Title 14, Code of Federal Regulations
(14 CFR), part 71 by establishing Class E airspace extending upward
from 700 feet above the surface for a new COPTER RNAV (POINT-IN-SPACE)
SIAP at Mercy Medical Center Heliport, New Hampton, IA. Controlled
airspace is needed for the safety and management of IFR operations.
    Class E airspace areas are published in Paragraph 6005 of FAA Order
7400.9U, dated August 18, 2010, and effective September 15, 2010, which
is incorporated by reference in 14 CFR 71.1. The Class E airspace
designation listed in this document would be published subsequently in
the Order.
    The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore, (1) Is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a Regulatory Evaluation as the
anticipated impact is so minimal. Since this is a routine matter that
will only affect air traffic procedures and air navigation, it is
certified that this rule, when promulgated, will not have a significant
economic impact on a substantial number of small entities under the
criteria of the Regulatory Flexibility Act.
    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the U.S. Code. Subtitle 1, section 106 describes
the authority of the FAA Administrator. Subtitle VII, Aviation
Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in
subtitle VII, part A, subpart I, section 40103. Under that section, the
FAA is charged with prescribing regulations to assign the use of
airspace necessary to ensure the safety of aircraft and the efficient
use of airspace. This regulation is within the scope of that authority
as it would establish controlled airspace at Mercy Medical Center
Heliport, New Hampton, IA.

List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (Air).

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 14 CFR part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

    1. The authority citation for part 71 continues to read as follows:

    Authority:  49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854,
24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1  [Amended]

    2. The incorporation by reference in 14 CFR 71.1 of FAA Order
7400.9U, Airspace Designations and Reporting Points, dated August 18,
2010, and effective September 15, 2010, is amended as follows:

Paragraph 6005 Class E airspace areas extending upward from 700
feet or more above the surface of the earth.

* * * * *

ACE IA E5 New Hampton, IA [New]

New Hampton, Mercy Medical Center Heliport, IA
Point In Space
    (Lat. 43[deg]03[min]11[sec] N., long. 92[deg]19[min]38[sec] W.)

    That airspace extending upward from 700 feet above the surface
within a 6-mile radius of the Mercy Medical Center Heliport point in
space at lat. 43[deg]03[min]11[sec] N., long. 92[deg]19[min]38[sec]
W.

    Issued in Fort Worth, TX, on October 26, 2010.
Anthony D. Roetzel,
Manager, Operations Support Group, ATO Central Service Center.
[FR Doc. 2010-28096 Filed 11-5-10; 8:45 am]
BILLING CODE 4910-13-P


Regarding DSW Rule controversies about disproportionate negative impacts and exposures, would these communities feel more protected (versus adding to the burden of already cumulative pollution) if HSW were handled similar to those substances categorized under Universal Wastes?

1. 	Introduction
1a.	Clarity of Analysis
Summary of DSW EJ Methodology is clear and concise with a couple of exceptions.
The term "damages" in Step 4 could be explicitly defined. Presumably, the language that follows the term "damages" is explanatory but that is somewhat unclear.
Does "Information" in Step 5 include data?  Perhaps strengthening the language to "Data and Information..." is more supportive of the Agency's rationale.
Readers reviewing the synopsis of the Sierra Club petition would be informed by an abbreviated specific list of issues identified by the Club (instead of "raised a number of issues about the protectiveness of the rule..."
1.3  minor typo -- see "HSMHSMs"
In view of the complexity of what is explained, Scenarios are clear.
In addition to the advantage of adhering to RCRA's decades old cradle-to-grave protective framework, consider whether requiring a streamlined notice and record-keeping process for generators, receivers and recyclers of HSM benefit EPA and states e.g., monitoring, as well as data that shows the environmental and economic benefits of HSW exclusions?
The threat of post facto CERCLA liability is not interchangeable with up-front environmental protection standards and requirements. This reviewer does not presume that the entire regulated community is villainous; however, any vigor/rigor that a generator, receiver, recycler might invest in environmental protection could wane as oversight and compliance requirements are reduced or eliminated.

2. 	Hazard Characterization
The transition to this section should be clear. It's not clear that this section is distinct from the prior rule discussion (the "Introduction"). This is a graphics issue.
The discussion of hazards associated with mainly the 2 selected vectors is clear. Hazards are extensive in contrast to reducing the levels of regulatory oversight provided by RCRA. Should all 4 legitimacy factors should be mandatory in view of the hazards?  What about release reporting?  Should releases be grounds for losing exclusion and HSW status?  How is a significant release determined?
In view of the stated hazards, could managing HSW as a valuable commodity influence the generator, receiver, recycler and affect compliance?  This goes to the concept of legitimacy. Would the mandating a showing of economic value militate in favor of safeguards against releases, spillage?
If wastes that are going to be recycled as hazardous as wastes that are not recycled, are both equally likely to be mishandled?  Are the regulatory and enforcement tools provided by the DSW Rule commensurate with the task of ensuring compliance?
2a. 	Clarity of Potential Scenarios
The description of potential scenarios is clear.
The chart situated in the "Overview" section, which describes the 3 relevant exclusions is clear and concise. The applicability of RCRA (or not) is readily discernible from the scenarios.
2b. 	Plausibility of Potential Scenarios
The Scenarios are plausible.
Is there a significant possibility that small businesses could be more vulnerable to sham recycling if many won't have the capacity and staffing to thoroughly assess recyclers?
The DSW Rule could inadvertently encourage mismanagement while transitioning materials into the recycling stream. Does the Rule apply where HSW is recycled into even more toxic products?
Should notice be the hazard quid pro quo for the exclusions which provide the benefit of different (reclamation), streamlined treatment of HSW?
Without adequate record-keeping and environmental protection safeguards (streamlined requirements would not be objectionable), the international export exclusion/scenario is troubling re potential releases, impacts, whether or not the recipient nation has genuine knowledge of the contents and consents to the receiving the export; see e.g., Circle of Poison and pesticide regulation.
2c. 	Accuracy of EPA Hazard Analysis
The selection of electric arc furnace dust and solvent wastes as national HSM proxies appears sound based on the analysis. Excluding used oil, non-ferrous metals and scrap metals from the hazard analysis, although associated with "damages cases?"
How and when does enforcement after a "significant" release occur?  How is the determination made as to what constitutes a significant release?  Which party has the burden of proof?  It would seem that placing the burden of proof on the party that causes or is responsible for the release should bear the burden of proof opposed to, for example, the governmental entity.
Intervening prior to a release is clearly preferable  -  the possibility of enforcement action prior to a release would be protective and more likely in the event that there are clear regulations e.g., storage limitations, labeling requirements and requirements related to the integrity of storage containers and areas.
Does worker training (e.g., protection standards, labeling, handling) or the lack of it at relevant/specified facilities factor into the EPA hazard analysis?
Does emergency response and planning, the existence or lack of these programs, factor into the EPA hazard analysis?  Similarly, does eliminating the requirement for a Manifest (or some version of a tracking mechanism) factor into possible increases or reductions in the emergency response preparedness and planning, enforcement or compliance monitoring?
Would streamlined, but standardized HSW reporting on a Manifest or comparable document be feasible, e.g., for state and local government, the industry?
Compliance with financial assurance can be a high hurdle given conditions imposed by the environmental insurance market. All parties under this rule should be required to comply with financial assurance. Would requiring management standards for reclamation facilities that don't have RCRA permits strengthen the DSW Rule by increasing or reducing the potential for environmental releases and/or disproportionate negative impacts?
Does the EPA hazard analysis factor imposition (or not) of container integrity and container management standards into the determination of the potential or actual hazards associated with higher storage volumes, and/or higher concentrations of HSW?  What constitutes a safe "container?"  Does the analysis factor in whether making storage subject to controls, environmental monitoring and inspections increases or reduces community protection?
Intermediate facilities and off-site HSM self policing may not be effective as a means to ensure protection of health and the environment in communities whether disproportionately affected or not.
2d. 	Accuracy of EPA Differences Analysis
The threat of post facto CERCLA liability is not interchangeable with up-front environmental protection standards, notice and record-keeping requirements. Streamlined record, keeping, tracking and monitoring would contribute to ensuring that toxic wastes are not dumped illegally dumped in disproportionately affected communities and would contribute to ensuring that HSW is safely delivered to the recycling facility.
The DSW Rule could be characterized, to some extent, as industry self-certification on HSW, which contrasts sharply with RCRA's historic cradle-to-grave framework and preventative approach to hazardous waste management and disposal.
Generators and third party reclaimers must file notices  -  they should be required or the HSW should be treated as hazardous waste.
Audits of reclaimers are not the same as or superior to periodic inspections or other agency oversight.

3. 	Identification of Potentially Affected Communities
The transition to this section should be clear. It's not clear that this section is distinct from the prior rule discussion. This is a graphics issue.
Does the large number of damages cases support granting the transfer-based exclusion?
Diversion of materials from the waste stream is beneficial (although on it face, without safeguards, reclamation falls short of environmental justice) and should be accompanied by adequate protections for health and the environment.
3a. 	Correct Identification of Recycling Facilities
Are the facilities that gave notice located; in disproportionately affected communities or not?  The recycling exclusions should not exacerbate impacts or exposures in these communities. A troubling compliance history could signal future endangerment of the health and the environment.
3b. 	Appropriateness of EPA 25-ton Threshold
Is the 25-ton threshold empirical?
3c. 	Appropriateness of Identification of Potentially Affected Communities and Populations + 3km Circle
EPA synchronizes with Professor Paul Mohai and Professor Robin Saha who are doing cutting edge demographic analysis. Their work shows increasing disproportionality, for example, nationally, people of color now make up the majority of those living within 3-km of such facilities and that where facilities cluster they make up over two-thirds. These are the highest concentrations of people of color ever reported from a national study of the distribution of hazardous waste facilities. Furthermore, when applying their recommended statistical analysis, it was found that racial disparities persist even when controlling for socioeconomic factors such as income, housing values, education, and employment status.

4. 	Analysis of Demographics of Potentially Affected Communities
The transition to this section should be clear. It's not clear that this section is distinct from the prior rule discussion. This is a graphics issue.
4a. Appropriateness of Data Sources for Demographic Analysis
EPA synchronizes with Professor Paul Mohai and Professor Robin Saha who are doing cutting edge demographic analysis. Their work shows increasing disproportionality, for example, nationally, people of color now make up the majority of those living within 3-km of such facilities and that where facilities cluster they make up over two-thirds. These are the highest concentrations of people of color ever reported from a national study of the distribution of hazardous waste facilities. Furthermore, when applying their recommended statistical analysis, it was found that racial disparities persist even when controlling for socioeconomic factors such as income, housing values, education, and employment status.
4b. Appropriateness of Environmental Justice Analysis Characteristics
Is the preventative approach a reasonable starting point when evaluating harm to the environment and public health.
Without RCRA status or Treatment, Storage and Disposal (TSD) protections, communities will many facilities are not required to get a permit, provide notice and opportunity to comment, address public input, monitor or be subject to protective container standards or storage time limits. These are baseline historic protections that, while they do exist, as regards most environmental statutes, they haven't been updated to reflect the "real world" since original passage.
Furthermore, taking advantage of existing public participation mandates commonly requires a massive investment of usually volunteer community resources to engage in a process that is time consuming and expensive and in which, comparatively, the private sector and government stakeholders have extensive resources and dedicated staff.
Have either the absence of these protections or the "real world" limitations on a community's ability to publicly participate been evaluated as an impact upon low income communities and communities of color?
Notice requirements inform communities, the public and municipalities about how HSW is being managed and recycled. How would the public learn about releases, spillage without notice, monitoring, recordkeeping; how would they advocate safeguards or alternatives?  Streamlined requirements would be preferable to none.
In disproportionately affected communities, the issue is not whether there will be impacts; rather the issue is what the full extent of the hazard impacts will be.
Should recyclers be required to demonstrate a history of compliance prior to benefiting from the exclusions?  Are the facilities that gave notice disproportionately located in low income and communities of color?
Potential impacts associated with transportation of HSW warrant a closer look.
4c. Appropriateness of Areal Apportionment Methodology
EPA synchronizes with Professor Paul Mohai and Professor Robin Saha who are doing cutting edge demographic analysis. Their work shows increasing disproportionality, for example, nationally, people of color now make up the majority of those living within 3-km of such facilities and that where facilities cluster they make up over two-thirds. These are the highest concentrations of people of color ever reported from a national study of the distribution of hazardous waste facilities. Furthermore, when applying their recommended statistical analysis, it was found that racial disparities persist even when controlling for socioeconomic factors such as income, housing values, education, and employment status.

4d. 	Scientifically Appropriateness of Statistical Analysis for Assessing Environmental Justice Concerns
EPA synchronizes with Professor Paul Mohai and Professor Robin Saha who are doing cutting edge demographic analysis. Their work shows increasing disproportionality, for example, nationally, people of color now make up the majority of those living within 3-km of hazardous waste facilities and that where facilities cluster they make up over two-thirds. These are the highest concentrations of people of color ever reported from a national study of the distribution of hazardous waste facilities. Furthermore, when applying their recommended statistical analysis, it was found that racial disparities persist even when controlling for socioeconomic factors such as income, housing values, education, and employment status.
4e. 	Propriety of Statistical Analysis
EPA synchronizes with Professor Paul Mohai and Professor Robin Saha who are doing cutting edge demographic analysis. Their work shows increasing disproportionality, for example, nationally, people of color now make up the majority of those living within 3-km of hazardous waste facilities and that where facilities cluster they make up over two-thirds. These are the highest concentrations of people of color ever reported from a national study of the distribution of hazardous waste facilities. Furthermore, when applying their recommended statistical analysis, it was found that racial disparities persist even when controlling for socioeconomic factors such as income, housing values, education, and employment status.
4f. 	Accuracy and Thoroughness of Assumptions
Assumptions appear accurate; however at this reading, this reviewer cannot determine whether they are thorough.
Would assessment of an additional number of damages case affect the assumptions?
4g. 	Appropriateness of Uncertainties in Data Input in Analysis
Uncertainties in the data input in the analysis appear to be appropriate.
4h. 	Demographic Analysis Alternatives
Damages timeframe
       The reviewer is uncertain if this analysis will yield additional useful information without an assessment of additional cases.
Comparison of Potentially Affected Areas and Non-Affected Areas
       The reviewer is uncertain if this analysis will yield additional useful information other than another take on areas where disproportionate impacts occur.
Compare Host Metropolitan Areas for Facilities
       This comparison may yield information about metropolitan areas where disproportionate impacts exist.
Has EPA evaluated additional damages cases?  Is the pool of 218 adequate to reveal the widest reasonable range of damages, potential damages and types of comparisons?
Do host metropolitan areas factor in rural areas where capacity, including staffing, to oversee HSM facilities may be more limited compared to urban and suburban areas.

5. 	Other Factors That Affect Vulnerability in Communities
The transition to this section should be clear. It's not clear that this section is distinct from the prior rule discussion. This is a graphics issue.
5a. 	Accuracy of Description of Other Factors That May Affect Vulnerability
The description of other factors that may affect vulnerability is accurate.
The DSW Rule contains sound baseline vulnerability factors.
Where does immigrant status factor into vulnerability factors?
Should whether the generator is a small business factor into community vulnerability?  For example, some small businesses could be less likely due to capacity to conduct in-depth due diligence or examinations of HSW facilities or how their wastes are recycled.
What is the universe of industrial facilities that may be generators of HSW and how do they factor into this analysis?  How do industrial facilities factor into the potential impacts analysis?
5b. 	Broad or Short Discussion of Factor Categories
What are "structural" reasons as stated in section 5.1.4?
Ability to participate in the decision making process is a stated environmental justice vulnerability; however, this section states explicitly (in clear contradiction) that community input is not required of facilities or regulators.
The section is clear that lower participation levels can translate into experiencing greater negative impacts since "their input has not been considered fully, particularly if competing interests are set forth more effectively."
Does the importance and/or benefit of recycling override the value of public participation especially where disproportionality is an issue?  Additionally, the studies show that facilities which have notified already show multiple facilities, higher disease incidence and a dearth of hospitals in the 3-km area.
5c. 	Additional Factors, If Any
Immigrant status, particularly new immigrants and undocumented workers and residents constitute an important additional factor.
Unfunded mandates would affect EPA ability to ensure compliance if enforcement is left to states that don't have the budget to inspect, monitor, notify the public or implement public involvement.

6. 	Conclusions
The transition to this section should be clear. This is a graphics issue.
6a. 	Conclusions Supported By Analysis
The analysis and conclusions are extensive.
Arguably, DSW Rule conclusions supporting exclusion of HSW from RCRA protections are not thoroughly supported by the analysis as it pertains, in particular, to multiple (disproportionate?) impacts, potential hazards and public participation.
6b. 	Accuracy and Clarity of Differences Between Community-Level and Population Level Analysis
The differences between community level and population level analysis are clear.
6c. 	Additional Information With Significant Impact on Conclusions
Specific and explicit storage timeframes and container requirements would facilitate safer handling by reducing the prospects for potential explosions, spills and other uncontrolled releases of HSM.
Off-site reclamation  -  regulatory safeguards that ensure proper management of HSW while on-site and during shipment are important.
Is there sufficient analysis of the impacts of storing HSW in land-based units such as pits, ponds and lagoons. Should standard RCRA regulatory controls apply where HSW is stored in such land-based units?
Does the DSW Rule consider the affects of tracking, monitoring and enforcement across multiple state lines or, nationally, whether HSW transport will operate smoothly across multiple state programs?  Is there favorable or negative impact on interstate commerce?
What constitutes "reasonable effort" is not clear. This may not be a sufficiently high bar to deter mismanagement of HSW and could encourage high risk conduct.
Should record-keeping include quantities of HSW generated?  This data would be useful for emergency planning and response as well as helpful to determining economic and environmental benefit.
Has EPA assessed profitability and the viability of end-use markets for various HSW and facilities?  Would lack of markets affect, encourage or discourage a facility from taking steps and investing in protecting health and the environment?
Does the DSW Rule facilitate broad adoption by the states and state implementation?
Tribes, including Inuits, will need additional resources to staff and implement the DSW Rule. Should more cases on Native lands be included in the damages cases analysis?
Encouraging recycling should be possible while retaining a reasonable assurance of regulatory protection for health and the environment.

                             COMMENTS SUBMITTED BY

Diane S. Henshel, Ph.D.
Owner and Sole Proprietor, Henshel EnviroComm Consulting
and
Associate Professor, School of Public and Environmental Affairs
Indiana University
1315 E 10[th], #340
Bloomington, IN 47405
812-855-4556
Email<EMAIL_ADDRESS>

External Peer Review for EPA's Draft Definition of Solid Waste Final Rule
Environmental Justice Analysis

             Response to Charge Questions by Dr. Diane S. Henshel

General
Ga.	Please state your overall assessment of the content, readability and utility of this report, including any changes needed.

   a. Content: The environmental justice assessment process undergone was a reasonably thorough approach to assessing environmental justice concerns associated with the 2008 DSW rule.  However, there was a lot of repetition that seemed to involve just copying and pasting the same statements and phrases over and over again, and rarely elaborated in depth.  In addition, the analysis never included taking the example situations (places where greater exposure by the neighbors could occur, for example) and quantifying the potential impact on the neighboring community (maybe within the 3 km diameter defined "proximity to site" area).  Using the basic approaches for predictive risk assessment, one would take the real situation, make assumptions for the average and high end of the range for the increased exposure situation, calculate the potential increased exposure to the chemicals, and then calculate the potential for increased risk, with average and high end assumptions.  At least one such scenario calculated for each situation identified as potentially increasing exposure under the new regulations would be helpful in determining just how critical revising the regulations would be.  It would have been even better to then recalculate the exposure and risk inherent in at least a few scenarios with the assumptions made under the recommendations for revision of the 2008 DSW rule, weak and non-specific as those recommendations were.
   b. Readability.  Unfortunately, this document is pretty standard for an EPA document.  If the audience is only technical, the document is usable and readable. If the audience is intended to be the EJ communities and include a non-technical audience, this document is dense and difficult to read.  There is also a lot of "spaghetti" logic  -  explanations that are internally referencing without sufficient definition of terms or acronyms.  The document is missing some key components that would make it more readable.  These include:
      oo A Glossary
      oo A list of abbreviations and acronyms
      oo Remembering to define every acronym the first time it is used in every chapter, and in the legend for every table.
      oo A few diagrammatic algorithms that could help explain two complexities:
            o The regulations that apply under each condition that increases exposure under the new 2008 DSW.  This algorithm could be bilaterally symmetrical  -  taking the reader through the process, and when there is a change that occurs due to the regulations, the algorithm can identify the regulations in play and not in play for each set of exposure conditions (as in longer stored waste materials, transport exposure, etc).  One side of the symmetrical algorithm would identify regulations in play before the new 2008 DSW regulations, and the other side would identify the regulations in play after the new 2008 DSW regulations.
            o A second algorithm that would be useful would be to outline the framework, the process used to analyze the environmental justice concerns about the 2008 DSW rules.  This algorithm could then tersely identify each step in the process and the implications for the outcomes of each step.
   c. Utility.  This analysis and report does demonstrate that there already is a bias in the location of the facilities that already produce hazardous waste, and this includes a bias in the facilities that might utilize this rule to increase storage time and volume of exempted otherwise hazardous materials.  The environmental justice analysis could have been more complete.  Further discussion of other approaches are included below. The report does make reasonably recommendations for some of the ways that the environmental justice concerns might by reduced, although the discussion of these abbreviated comments was both vague and needed elaboration.

Gb.	Is this information accurately and clearly presented?  How might the document be improved?

   a. Needed improvements for clarity: As mentioned above, it would be very helpful for the general reader to provide a Table of Abbreviations/Acronyms and a Glossary, in addition to remembering to follow some other basic rules of clear communication as outlined above (Readability).   In addition, the excessive use of acronyms makes the document very hard for any lay reader to read.  It makes the document hard to read for even an expert, as one must constantly look for the meaning of the new acronyms that pop up pages after they have been defined.  It would be helpful, should the acronyms stay in such a density, to provide a list of acronyms used on each page in a footnote at the bottom of each page.
   b. The Wind Dispersal category would be better (and less confusingly) labeled as "Particulate [or Dust] Wind Dispersal."
   c. There is no need to repeat the exact same phrases multiple times without additional elaboration.
   d. In no scenario was there a consideration of generators who consistently function in violation of the regulations once they start handling waste under the 2008 DSW rule.  As there are such companies, this would seem to be a scenario to include, or at least discuss, in an EJ analysis.
   e. No scenario considered the possibility of the impact on the community if a generator acting under the 2008 DSW rules goes out of business with accumulated, non-processed, possibly not appropriately contained excluded hazardous material waste on the property.  Yet this situation would only happen (legally) under the 2008 regulations, not under the previous HSM regulations.
   f. The methods for analysis of environmental justice impacts (as in biases in the siting) are not  as sensitive as might be obtained with using regression analysis and grouping the data into maybe quartiles rather than doing all analyses on data that has only been divided into two categories  (ie equivalent of yes/no data).

Gc.	Does the document adequately review, present, analyze and summarize the available data? If not, what can be improved?

   a. This is a nice review of the data.  This is a nice first analysis.  Improvements can be made.  This question is a perfect example of the redundancy that could be avoided.

Executive Summary
ESa.	Is the Executive Summary clear and easy to read?

   a. The executive summary is readable.  The executive summary needs to include definitions of terms used (for example, "notification facilities," "damage case facilities," etc).  In addition, the last sentence on page ix (starts "In addition,...") is unclear and needs  rewriting.  Similarly the last sentence on page xi needs additional clarity.   The summary of Finding 4 should include some discussion of the other three categories not discussed in the executive summary (example, susceptible populations).  You might include leaking septics in the list on the top of page xiii (under multiple and cumulative effects), as leaking septics are more likely to be addressed more slowly, and thus pose a higher health risk, in low income communities.

ESb.	Does the Executive Summary provide an accurate view of the contents, findings, and conclusions of the analysis? If not, please specify how it could be improved.

   a. See above comments.  But yes, the Executive Summary does provide a reasonably accurate view of the findings and conclusions of this analysis.

1.	Introduction
1a.	Does the Introduction clearly lay out the contents of the analysis? If not, please describe how it could be improved.

   a. No complaints.

2.	Hazard Characterization
2a.	Do the potential scenarios under the definition of solid waste final rule clearly describe how EPA thinks facilities may react to the rule? If not, please suggest where improvements should be made.

   a. What is lacking overall from the analysis, from the Hazard Characterization step onward, is any discussion or analysis of the implications (i.e secondary consequences) of each of these assumptions (about the possibility of increased exposure) for total exposure and estimated changes in risk values for the potential EJ communities (ie those communities within 3 km of each facility, according to this report).

2b. 	Are these scenarios plausible, and are there any other likely scenarios? Please explain.

   a. "Unlikely" scenario 1: If the cost of recycling off-shore (Africa, China) are low enough, these lower costs will offset the additional costs of transportation to get the now excluded hazardous waste (which costs less also as an excluded waste, and one for which the same expensive containers do not have to be bought).  This is a reasonable scenario (not unlikely) unless the EPA provides calculations to prove that the costs of transportation would never be overcome by the reduced costs of recycling in Africa or China.  It is also disturbing that there is insufficient discussion and analysis of EJ concerns for the locations of the recycling plant and no discussion and analysis of EJ concerns for the locations where recycling is carried out in another country.  (This last sentence applies as well to the whole report.)
   b. Two other possible scenarios to address are listed above under "general comments".

2c.	Is EPA's analysis of the types and quantities of hazards from the definition of solid waste final rule thorough and accurate? Please explain.

      a. Toxicity information: When applicable, endocrine disruption toxicity is not even mentioned.  Developmental toxicity of heavy metals would also seem to be an important, very sensitive effects indictor to mention.
      b. p 19 top of the page. There isn't mention of fugitive emissions (leaks at valves, escape at points of transfer) as part of the way in which hazardous materials/waste can be released.

2d.	Is EPA's analysis of the differences between hazardous waste regulations and the regulations in the definition of solid waste accurate? If not, please explain.

   Detailed Comments to Improve Writing:
      a. Page 3 Inset.  Typo or residual undeleted "("  in explanation for Generator-Controlled Exclusion.
      b. Section 2.3 p 30, third paragraph down  -  This paragraph needs rewriting to make it clearer.  A particularly difficult sentence is sentence 3, and the logic between sentences 3 and 4 may be faulty.  If a material's reporting quantity is lower when it is characterized as hazardous waste then if it is characterized as non-waste, as written in sentence 3, then a smaller quantity would be needed before it exceeds the reportable quantity as a hazardous waste compared to as a non-waste, not a larger quantity (as currently written in sentence 3).  But this does mean that if the implementation of the DSW results in what would otherwise be considered hazardous waste being now considered non-waste, then indeed more of the same material (now classified as "non-waste") would be required to trigger reporting requirements then would have been true if the material were classified as hazardous waste.
      c. P 32, end of second full paragraph.  A "reasonable" effort is not defined or discussed.  Without such discussion or clarification, a "reasonable" effort remains so open to interpretation that a phone call to the foreign facility owner and asking for assurances of safety would more than satisfy that requirement, and yet not provide any real assurance that the community and workers in the foreign facility would be protected from hazardous exposures.
      d. p 32 end of the second bullet there's a typo, a misplaced period.
      e. As an example of a need to define terms and abbreviations, K061 is used in the footnote on page 27 (footnote 25) without any explanation of the meaning of the term.
      f. When requirements or criteria are referred to, it is important to specify and list those requirements or criteria, in the text, a footnote, or an inserted box.  An example of such a referral to insufficiently explained and detailed requirements are on the top of page 28.  The details about the "SQG" requirements are lacking.
      g. The discussion about reportable quantities (second full paragraph down on page 30) needs to be written more clearly.  The third sentence in that paragraph is particularly problematic.

3.	Identification of Potentially Affected Communities
3a.	Has EPA correctly identified the facilities that may be likely to begin recycling hazardous secondary materials under the definition of solid waste exclusions? If not, what facilities are missing?
3b.	Is EPA's use of a threshold of 25 tons of recyclable hazardous secondary material generated annually an appropriate way of identifying generators that might choose to recycle onsite?  If not, what threshold would be more appropriate?
3c.	Has EPA appropriately identified the communities and populations that are potentially affected by these facilities?  In particular is the 3-km circle the appropriate area of consideration?  Please explain.

   a. Other environmental justice analyses have used other diameters to define the proximate neighborhoods.  On studies of Indianapolis, especially, we have tested multiple diameters (all smaller than 3 km  -  0.5, 1 and 2 km) and typically found 2 km to be a good cut-off to define proximate communities.  It would seem that this question should be answered in the study, that is, that the study design would test multiple possible diameters (or donuts) around the facilities and determine which diameter provides the most sensitive distinction. It is quite possible that different types of facilities would have different cut-off diameters, based on differences in potential for dispersal/distribution of (excluded) hazardous waste (i.e. as liquid solvent waste or dust).
   b. Other problems:
In conducting similar EJ analyses, using TRI facilities, we discovered that we had to truthed the facility addresses to the GPS coordinates by on the ground determination of whether the address listed for the facility was actually the address of the releasing facility or the address of company offices.  Even when the two buildings were on the same campus, and not separated by miles, the difference between the buildings (between the addresses) could be a significant distance (on a mile long campus, they could be a mile apart), and thus could affect which neighborhoods were included in the proximate circle.  From the information provided in chapter 3 about the methods used for obtaining GPS coordinates, it appears that this truthing was never done or even attempted for this analysis.  No efforts were apparently made to ascertain whether the listed address referred to the hazardous materials processing location or to the main offices.

4.	 Analysis of Demographics of Potentially Affected Communities
4a.	Are EPA's data sources for its demographic analysis appropriate? Should EPA consider any additional data sources for this information? Please explain.

   a. Using census data is standard protocol for many EJ analyses.

4b. 	Did EPA select appropriate characteristics for analysis of environmental justice concerns in communities?

   a. The same methods and break outs should have been carried out for all analyses.  There should not have been different protocols and analyses used for some types of facilities and not for others.  There should have been a break out of asian, black, other minority, and possibly immigrant populations for all facilities.

4c.	Was the choice of the areal apportionment method to determine the characteristics of the communities surrounding each facility appropriate and properly conducted?

   a. It appears, yes.

4d. 	Is a statistical analysis of these results to determine how the demographic characteristics compare to those on a county, state, and national level, in both urban and rural communities, a scientifically appropriate way to assess the existence of environmental justice concerns in connection with this rulemaking?  Are there additional methods that should be considered for analyzing the environmental justice concerns with this rule?

   a. Yes, statistical methods are appropriate in general.  However, a more sensitive analyses seems to be to break the demographics up (quartiles, quintiles) into some binned division of the total range, create donuts around the facility, and run the analyses as a regression of the demographics against proximity.  You are able to detect (significantly) more subtle shifting of demographics over time.
   b. It is also appropriate to use the more commonly used cut-off of 2x the poverty line, since even families at 2x the poverty line are struggling just to provide food and shelter these days.  The census determined poverty line (that is, above or below the threshold) does not include childcare costs, as one example of the kind of critical expenditures that enable both parents to work.  Thus it would be appropriate to test poverty threshold versus 2x*poverty threshold as the criteria for determining bias in representation of low income populations with regard to proximity to the HSM or DSW facilities.
   c. Given the neighborhoods in which these facilities are placed, it would seem to be appropriate to at least consider other toxic stressors, such as TRI facilities or road density as part of the EJ analysis looking at cumulative exposure potential (based on permit data for the HSM/potential DSW facilities for maximal exposure estimates).

4e. 	Is the statistical analysis in this section properly done?

   a. There is a lot of detail provided for some of the analyses.  Other analyses (producing some of the results listed in the tables) do not have such clear or extensive or sometimes even any clear statement of how some calculations were made.  At the very least, a clear, jargonless description of how each column in each table was determined should be evident in the text in proximity to the tables.
   b. There needs to be an explanation of why some Fisher's analytical results are listed as N/A.
   c. Why are the same charts repeated twice?  Is this necessary?
   d. The analysis should be broken out by state for all the analyses, and similarly, the notification facility results could be summed across states, as was done for the other types of facilities, even though the states covered are small in number compared to the total number of states represented in the analyses for the other facilities.  That discrepancy should be pointed out in the legend.  Yet there needs to be some way to compare across analyses.  Only summing across states for most, and separating out one subset of data makes it hard to compare across results.
   e. The same set of demographics should be tested for all types of facilities for all types of analyses.  There is no justification for cutting back to 4 categories of analysis for some analyses, and none is given.
   f. The first set of analyses for each facility type would be better and more clearly represented by box and whisker plots.  When using box and whisker plots, it is important to explain (for the lay audience) what data is represented in each part of the plots at some point in the chapter.  With that explanation, the box and whisker plots provide more information for the comparisons, and provide a visual sense of variability and bias around the means.

4f. 	Are the assumptions in the analysis presented accurately and thoroughly?
4g. 	Are the uncertainties in the data input into the analysis appropriately accounted for and discussed?

      oo No  -  see comments above about problems with addresses linked to facilities that have corporate offices away from the processing facilities, even when the two buildings are on the same campus.

4h.	Based on internal EPA review of the document, the Agency is considering additional approaches for analyzing the demographic data.  The decision to conduct additional analyses will depend in part on timing and resource concerns.  Which of the following analyses are most likely to yield new and/or improved information, and how would that information inform EPA's decision-making process?

            1.     For the category of facilities from the damage case study, analyze the demographics for the timeframe the damages occurred.

      oo Your meaning is not fully clear in this question, and it is not clear what analyses you would do to address this question, and how you would break up the data.  I am also concerned that the number of facilities in each group might then be so small as to really decrease power to detect significant differences.
            2.     Compare potentially affected areas to non-affected areas.  Compare the demographics in the 3-km concentric areas surrounding potentially affected facilities to demographics of areas in the state not containing facilities, rather than to averages for the entire state.

      oo Yes  -  this provides a better comparison group  -  a counterfactual.

            3.     Add comparison to host metropolitan areas for facilities situated in metropolitan areas.

            - Yes, this also would be a very appropriate comparison to include.

5.	Other Factors that Affect Vulnerability in Communities
5a. 	Has EPA accurately described the other factors that may affect vulnerability in communities and their relevance to this analysis?
5b.	EPA has included a discussion of five broad categories of other factors that affect vulnerability in communities.  Based on available information, only two of those appear to be specifically associated with the 2008 DSW rule.  Is the broader discussion helpful, or would it be better to focus more specifically on the factors associated with the rule?  Please explain.

         a. It is better to keep the discussion broader.  In this kind of document, it is important to include the negative results as well as the positive results.

5c.	Are there any additional factors that should be described? If so, please describe.

      a. Other health endpoints to consider include: low birth weight as a measure of embryonic development; some measure of endocrine disruption including, and particularly, thyroid disruption, although other endocrine function indices should also be considered, such as diabetes; and some measure of IQ in children, if this is available.

6. 	Conclusions
6a.	Do the results of this analysis support EPA's conclusions?

   a. Yes, the results support EPA's conclusions, but likely not as well, currently, as they might with more extensive EJ analysis carried out on the data.

6b.	Has EPA clearly and accurately explained the difference between its community-level analysis and its population-level analysis?

   a. I think so, but I am not fully sure that my answer comes from the readability and clarity of the explanations  -  I suspect my familiarity with the information is affecting my comfort with the descriptions.

6c.	Please identify any additional information that would make a significant impact on the conclusions of this analysis.

      a. Table 5.1 would allow for a very nice small cluster analysis (or principal component analysis) to look at which emissions and types of facilities link with which endpoints, and (using maybe MANOVA) incorporating transportation and health care availability would be interesting as confounding variables.
      b. The chapter analyses seem to be ignoring the risk ratio data. Since the "full" set of analyses (ie Fishers Exact Test, for example) did not actually carry out the full set of analyses (separating out Black and Asian, for example), it seems that the results might have been stronger with the additional analyses.
      c. Table numbers are not provided.
      d. Population level analysis table results seem to show that there is a numbers (sample size) bias in the level of statistical significance.  Once the notification facilities used in the analysis are pooled, or incorporate facilities from other states as will, to increase sample size, chances are that these results will also be significant in a pooled state analysis.  Thus the need to do both pooled state, and divided state, to assess how much of the sensitivity might be sample size.  It is also important to note that in regions with few Blacks, or few minorities, the minority population comparisons are always less of a driver than the low income analysis, as in these regions, are larger percentage of the low income community is white.  This is true in Indianapolis, where there is a significantly large percentage of poor whites.  In Northwest Indiana, however, there are more minorities, and minority population comparisons drive the EJ analysis results as strongly, or more strongly, than the low income analysis.
      e. P121  -  7[th] line down in paragraph  -  typo  -  higher total population than.... I believe was intended.
      f. P 123 Multiple and Cumulative Effects  - note the numbers with % above 70% (most) and above 60% (all but a few!!!)  -  and a cumulative frequency chart might make a nice and very visually effective summary of these observations.
      g. The proposed regulatory and implementation measures section needs solid expansion.  It's truly pitiful right now.  It should also be noted that without regulatory clarification of some of the weaknesses in the 2008 DSW rule, enforcement is only as strong as the environmental consciousness of the administration.  Even with revised regulation, enforcement and oversight is susceptible to political influence, just somewhat less so. Monitoring is not as much a part of the 2008 DSW rule, so how could monitoring data be used to help ensure facilities are not creating more of an exposure hazard for their communities under the new rule?
      h. Comments on appendices:
            oo Appendix A  -  Clarification is needed.
                    1.                      page A-4  -  second paragraph  -  last line  -  "typically 120 days following promulgation" of what?
                    2.                     Page A-4 still  -  last paragraph  -  5 lines down  -  please add examples here to each type of industry not subject to CAA regulation under the 2008 DSW rule.
                    3.                      Page A-6 third bullet  -  clarify if you mean leaks to only ground, to surface water, or also leaching to ground water  -  ie clarify
                    4.                     Page A-7 last bullet  -  capitalize OSH.
                    5.                     Page A-8 first bullet  -  a great example of spaghetti writing.  Spaghetti writing makes the report more difficult to read for everyone, especially the lay person.
                    6.                      Page A-9 top of the page.  A mention of the differences in monitoring would be appropriate here.
                    7.                     Page A-10  -  second full paragraph (starts... "Further...") -  This paragraph needs some clarification, and needs rewriting.
                    8.                     Page A-10 section 3.9 second two paragraphs.  These paragraphs are very unclear, and also seem to be internally inconsistent, as written.  Clarify in these paragraphs what is included in each type of exclusion.  A good example of a clearly written paragraph is the next paragraph (first paragraph of 3.10).  This paragraph includes a short but clear definition which enables the reader to comprehend the information provided more readily.  The reader does not have to go searching for the definition, which helps reduce reader confusion.
                    9.                     Page A-10 last paragraph, first sentence.  Add clarifying phrases  -  what kind of characteristics, and where are these listed.
                    10.                     Page A-11. First paragraph needs a sentence inserted clarifying what could be exempted.  Second paragraph needs clarification in the middle sentence  -  specify briefly or provide example (in parentheses) for conditions under which listed waste may not be determined to be hazardous waste.
                    11.                     Table A-11 page A-13 middle column, middle section  -  This is too dense for the average reader referring only to CFR citations and statutes (in inconsistent style no less).  Provide details or names for these sections and their overall regulation titles in clear, jargon-free writing.
                    12.                     Table A-11  -  Overall  -  this table (and the report) lacks any discussion of the implication of these changes due to the adoption of the 2008 DSW rule.  An example might be to evaluate the implication of leaking containers, which (under the current vagueness of the 2008 DSW ruling language) might not be caught for up to 2 years, or maybe longer.  What kinds of exposures might be increased to what diameter population under this scenario?
                    13.                     Page A -17  -  why the changed font size in column 1?
                    14.                     Page A-18.  Last paragraph in column 1.  Include a list of the 140 toxic and flammable regulated chemicals referred to here, and elsewhere in the report.  The easiest way to handle this might be a footnote, or adding the list to the appendices, and referring to the inserted list (footnote, endnote, or appendix) here and whenever else this list is referenced.
                    15.                     Page A-21 first column, second line  -  missing an article ("the" or "a") between "above" and "specified quantity".
                    16.                     Page A-26  -  last column, first paragraph  -  this section (and its text tie-in) is just calling out for a discussion of the implications of lack of required training on personnel at the facility if exposures indeed rise.
                    17.                     Page A-29 first column  -  need a space between paragraphs.
                    18.                     Page A-30 third column, first word "these" needs clarification  -  to which regulations is the writer referring.  Do not expect the lay audience to know for sure.  Same point for page A-32 third column, last paragraph, second line and again page A-33 second line.
                    19.                     Page A-34 third column second paragraph.  This very statement again seems to call out for a discussion of the implications of the lack of record keeping and exception reporting.  It is NOT sufficient to point out that the 2008 DSW rule changes the recording and record keeping requirements.
                    20.                     Page A-35 first column middle paragraph  -  clarify, provide more detail.  Similarly third column second paragraph  -  specify which excluded materials may not qualify as a DOT hazardous material, and provide some discussion of the potential implications of this from an EJ perspective.
                    21.                     Page A-36 third column second paragraph  -  this again needs further discussion here and in the text on the possible implication of this change due to the 2008 DSW rules.  Specifically, would any residues from reclamation ever be potentially hazardous and NOT get identified as such through the 2008 DSW process.
                    22.                     Page A-37 GCE: is something missing here?  Seems like it.
                    23.                     Page A-49 right hand column, second paragraph  -  use the full citation, not the abbreviated citation.  The full citation (ie using the same citation format throughout) is more understandable to the lay person.
                    24.                     Page A-52 right column, top line "an SPCC" fix typo
                    25.                     Page A-61 middle column, top paragraph.  Keep citation format consistent and summarize the legitimacy criteria in this paragraph, a footnote, or the next paragraph.
                    26.                     Page A-63 right column.  Provide examples of potential problematic emissions that don't meet threshold criteria and don't meet other applicability criteria.  It would be great if the implications of the resultant exposure (were this to occur) be determined quantitatively, maybe at the mean/lower assumption (9.5 TPY single type HAP) and high assumption (24.95 TPY mixed HAP) levels.
                    27.                     Page A-64  -  right hand column  -  No one in this report is discussed how much might be released before anything would trigger the need to determine if a cleanup is needed.  Surely this would help explore the potential for a significant disproportionate impact occurring?
                    28.                     Page A-68, right column, last sentence.  Where is the "note below"?  Probably better to put the note in a footnote on the same page or in the right hand column immediately after this paragraph.
                    29.                     Page A-82 on  -  It is great to have the summary of the Federal Regulations here.  However, the formatting and depth of each discussion is not consistent and needs to be made so.  For example, the most readable formats start with a sentence or two that talks about the relevant regulation(s) more broadly, and then includes a sentence that explains the relevance of the regulation to this report/study.
                    30.                     Page A-83 Second paragraph under "Legitimate recycling"  -  include a brief summary of the six criteria referred to here (and elsewhere) and not clearly defined.  The listing could be in the paragraph, in an offset list, in a separated inset box, or in a footnote.
                    31.                     Page A-84  Top of the page  -  provide details about standards in 262.34 (d) and (e).  They are not clearly described anywhere.  Also maintain a consistent formatting for citations.
                    32.                     Page A-94 Exports first paragraph last two sentences  -  a) remember to keep citations in consistent format.  B) To make this document most readable, summarize these requirements briefly.
                    33.                     Page A-96  -  No where is there a discussion of at what point in a chain of non-compliance would the chain of permission stop and oversight identify a problem that needs to be addressed.
                    34.                     Page A-99 bullets under 5.3.3  In each bullet, first identify the key factors that determine whether processes fit as Program 1, 2 or 3 (i.e. defined for the appropriate bullet).  These three was to characterize a process are never clearly defined throughout this whole document.  This would seem to be the place to put those definitions.
                    35.                     Page A-106 5.8.2 line 3  -  TSDFs is an acronym that is never defined.
                    36.                     Appendix B is good to have, as is Appendix C and D.  Note that in Appendix B, and in a few other places, the writer uses the personal "we" instead of a noun.  This is formal writing and should not include any first person (personal) pronouns anywhere in the document.  Search to find the "we"s and rewrite to replace the personal pronoun with a clearer sentence using the impersonal 3[rd] person or noun.
                    37.                     Page B-2 first paragraph.  Need to add a sentence that explains why it is important to understand what a "wastewater" versus a "nonwastewater" is.
                    38.                     Page B-3 table bottom:  POTW and NPDES is not defined here or elsewhere in the document.  Acronyms are best spelled out the first time they are used in any given chapter, and still it is kind to the read to provide a Table of Acronyms and Abbreviations, and spelling out of all acronyms in footnotes for any table in which they are used.
                    39.                     Appendix C is written like an abbreviated technical reference manual, but without the definitions usually included in such a manual.  Most of this section reads like a jargonfest, and is not accessible to the lay reader.  So,
                        a. Identify all acronyms and abbreviations.  There's two in the second paragraph.
                        b. In the introductory section, explain by the K, F, U, P and D codes represent, how they are used, and how understanding the coding was needed for the environmental justice analyses.
                        c. Explain all codes that have no other referent to explain them.  For example, on page C-5 top line, F037-F038 codes are referred to without placing them in any context or defining what these codes cover.
                        d. Table C-1 needs some additional explanation before it will be easily read by the lay reader.
                    40.                     Appendix D is written in a way that is essentially understandable.  However in two places, where groups are moved from the logical grouping to a not as obvious grouping, explanation is needed for why the move was made.  These points are on Page D-3 bottom of the page, and on Page D-5 top of the page.
                    41.                     Appendix E needs some clarifying verbiage written in easy to understand English.  The two ratios could, for example, be easily explained by one or two sentences.  The description of the tests are more theoretical in places.  Specific places that clarification is needed includes:
                        a. Page E-9 bottom of the last Fisher Exact Test paragraph, there is no explanation for why or when the minus sign is removed, nor where the minus sign is likely to show up and why.
                        b. Page E-10  -  it is not clear what the tables are for the various states.  Add clarifying language.
                        c. Since these tests are not always run (but should be) the verbiage should include an explanation of why they are not run in some situations in the analysis and are run in other, apparently similar situation.