92 For example, hazardous waste burning cement kilns that previously monitored hydrocarbons in the main stack may elect to install a mid kiln sampling port for carbon monoxide or hydrocarbon monitoring to avoid restrictions on hydrocarbon levels in the main stack. Thus, their hydrocarbon emissions may increase. ( 64 FR 52843, footnote 29.) Another example would be if the only change at a facility relates to the exposed population; what was acceptable in a previous risk assessment may not be any longer. 103 Multiple issues regarding the cost information we provided in the proposal are raised by CKRC. The first of five issues is that CKRC believes that EPA's methods for calculating costs associated with future SSRAs do not include data gathering costs, QA/ QC, third party consultants in addition to risk assessors and plant personnel time to coordinate and review SSRA efforts and collect facility data. We disagree with this statement in part; the estimates developed by the Agency do include data gathering costs, QA/ QC, and third party consultants. ( Refer to the proposed rule's support document entitled: Preliminary Cost Assessment for Site Specific Risk Assessment, November 2003, Docket # OAR 2004 0022; and the Assessment of the Potential Costs, Benefits, and Other Impacts of the Hazardous Waste Combustion MACT Replacement Standards   Final Rule, [ INSERT PUBLICATION DATE FOR FINAL RULE] for a description of how the estimates were arrived at.) However, we agree with CKRC that the method used to develop SSRA costs does not capture facility time associated with data collection and management related to the SSRA. Consequently, we have adjusted our SSRA cost estimates to account for these activities by incorporating costs associated with time needed for facility data collection and management efforts associated with the SSRA, and will assume that engineering staff are required to perform these tasks. The second issue concerns the extent to which cement kiln SSRAs are consistent with EPA's " normal" assumptions. We do not question the accuracy of the costs submitted by CKRC. However, it is not clear that the costs submitted by CKRC represent typical future costs for SSRA implementation at all facilities in the universe. Certain of the CKRC cost estimates ( e. g., those submitted by Ash Grove and Holcim) reflect implementation of SSRAs over a number of years in the 1990s, while SSRA implementation was in its early stages. In other cases ( e. g., estimates provided by Solite) costs appear to be consistent with EPA estimates. While we do not dispute the accuracy of these costs, earlier costs are likely to reflect the deliberative process common with early SSRAs. For the third issue, CKRC's points out that EPA's estimate of 20 percent additional cost for adding a risk burn during a trial burn may be low; CKRC asserts that additional test costs can add up to 40 percent depending on the circumstances. We agree with this and have adjusted the range of total SSRA costs as necessary to assure that a range of additional test costs for separate risk burns ( 20 to 40 percent incremental cost) are included. For revised figures, see background document, Assessment of the Potential Costs, Benefits, and Other Impacts of the Hazardous Waste Combustion MACT Replacement Standards   Final Rule, [ INSERT PUBLICATION DATE OF FINAL RULE]. CKRC's fourth issue is that EPA does not appear to include more than evaluations of stack emissions in its estimates of SSRA costs. We disagree with this comment. The estimates of SSRA costs developed by the Agency reflect total contractor costs for performing an SSRA at a facility under different sets of conditions, and are not limited to stack emissions. In the fifth cost related issue, CKRC asserts that EPA's average estimates might be reasonable if the SSRA process were limited to the submission and acceptance of one SSRA effort. CKRC contends, however, that its members' experiences with SSRAs have involved coordination with state and regional offices and multiple revisions and submissions. Again, we do not question the experiences and costs of specific facilities. 104 However, we anticipate that the 2003 Memorandum, Use of the Site Specific Risk Assessment Policy and Guidance for Hazardous Waste Combustion Facilities, and the Human Health Risk Assessment Protocol for Hazardous Waste Combustion Facilities guidance, which is finalized and released in conjunction with today's rule, will provide facilities and regulators with a clearer understanding of SSRA policy and guidance and will support a more efficient SSRA process. EPA's future SSRA cost estimates are based on current or recent cost data from multiple practitioners, and likely reflect a more efficient process than that experienced by some CKRC members in the 1990s.

X. Permitting As discussed in the proposal, we believe that the permitting approach we adopted in the 1999 final rule is still the most appropriate means to avoid duplication to the extent practicable and to streamline requirements. Thus, both Phase 1 and Phase 2 sources will comply with their RCRA emission limits and operating requirements until they demonstrate compliance with the MACT standards by conducting a comprehensive performance test ( CPT), submitting a Notification of Compliance ( NOC) documenting compliance to the Administrator or delegated state, and then requesting to have their RCRA permits modified to remove the duplicative RCRA requirements ( unless a sunset clause had been added previously that inactivates specified requirements upon compliance with MACT). 93 Ultimately, the MACT air emissions and related operating requirements will reside in the CAA Title V permit, while all other aspects of the combustion unit and the facility ( e. g., corrective action, general facility standards, other combustor specific concerns such as material handling, risk based emission limits and operating requirements, and other hazardous waste management units) will remain in the RCRA permit. A new pictorial timeline has been provided to highlight milestones of the MACT compliance process. See figure 1 at the end of this section.

A. What is the Statutory Authority for the RCRA Requirements Discussed in this Section?

EPA is finalizing amendments to modify RCRA permits in today's rule pursuant to sections 1006( b), 2002, 3004, 3005 and 7004( b) of RCRA. 42 U. S. C. § § 6905( b), 6912, 6924, 6905, and 6074. Our approach is likewise consistent with section 112( n)( 7) of the Clean Air Act which indicates that EPA should strive to harmonize requirements under section 112 and RCRA requirements for hazardous waste combustion sources With respect to the regulatory framework that is discussed in this section, we are finalizing the process to eliminate the existing RCRA stack emissions national standards for hazardous air pollutant for Phase 2 sources as we had done for Phase 1 sources in the 1999 final rule. That is, after submittal of the NOC established by today's rule and, where applicable, once RCRA permit modifications are completed at individual facilities, RCRA national stack emission standards will no longer apply to these hazardous waste combustors ( unless risk based permit conditions are determined necessary). We originally issued emission standards under the authority of section 3004( a) and ( q) of RCRA, which calls for EPA to promulgate standards " as may be necessary to 93 Although we expect that the vast majority of Phase 1 sources will have had their RCRA permits modified by the time this rule is promulgated, we acknowledge that there may be a few permits yet to be modified. 105 protect human health and the environment." We believe that the final MACT standards are generally protective of human health and the environment, and that separate RCRA emission standards are not needed to protect human health and the environment. See Part Seven, How Does the Final Rule Meet the RCRA Protectiveness Mandate? for a discussion of this topic. RCRA section 1006( b) directs EPA to integrate the provisions of RCRA for purposes of administration and enforcement and to avoid duplication, to the maximum extent practicable, with the appropriate provisions of the Clean Air Act ( and other federal statutes). This integration must be done in a way that is consistent with the goals and policies of these statutes. Therefore, based on its findings regarding the protectiveness of the MACT standards, and pursuant to section 1006( b), EPA is generally eliminating the existing RCRA stack emission standards to avoid duplication with the new MACT standards. The amendments made today to allow new combustion units to comply with the MACT standards upon start up, versus the RCRA stack emissions national standards, are based on the principle of avoiding duplication between programs. We are not stating that RCRA permit conditions to control emissions from these sources will never be necessary, only that the national RCRA standards appear to be unnecessary. Under the authority of RCRA's " omnibus" clause section 3005( c)( 3); ( see § § 270.32( b)( 2) and ( b)( 3)), RCRA permit authorities may impose additional terms and conditions on a site specific basis as may be necessary to protect human health and the environment. Thus, if MACT standards are not protective in an individual instance, RCRA permit writers will establish permit limits that are protective. In RCRA, Congress gave EPA broad authority to provide for public participation in the RCRA permitting process. Section 7004( b) of RCRA requires EPA to provide for, encourage and assist public participation in the development, revision, implementation, and enforcement of any regulation, guideline, information, or program under the Act.

B. Did Commenters Express any Concerns Regarding the Current Permitting Requirements?

Generally speaking, commenters favor maintaining the permitting approach and requirements referred to above. This approach was finalized in the 1999 rule and has been implemented, and in a few cases is currently being implemented, for Phase 1 sources complying with the Interim Standards Rule. However, several commenters raised similar concerns regarding certain aspects of the transition process from RCRA to MACT and Title V permitting. 1. Removal of Duplicative RCRA Permit Conditions. One comment is in regard to Phase 1 sources that have been fully transitioned ( i. e., have had duplicative RCRA permit conditions and requirements removed or that have been " sunsetted") to compliance with the Interim Standards that may need to make upgrades to comply with the revised Phase 1 MACT Standards. The concern is that Phase 1 sources needing to make upgrades for MACT should be able to do so without a RCRA permit modification ( unless risk based conditions are present). We agree with the commenters that as long as the technology upgrades ( e. g., equipment changes to upgrade air pollution control equipment) do not affect any remaining conditions in the RCRA permit, the regulations do not require a permit modification. For those Phase 1 sources that need to make upgrades to comply with the revised standards, they should address the specific upgrades in their draft Notification of Intent to Comply ( NIC) and during the 106 informal NIC public meeting so that the regulatory authority and public are aware of the source's activities and plans for compliance. We encourage early communication between the source and the RCRA permit writer to ensure a common understanding of whether a RCRA permit modification will be needed. Additionally, Phase 1 sources must comply with the provisions of § 63.1206( b)( 5) for changes in facility design. We do not anticipate that upgrades made to comply with the Replacement Standards will adversely affect a source's compliance with the Interim Standards. Therefore, consistent with § 63.1206( b)( 5)( ii), sources must document the change in their operating record, revise their NOC and resubmit it to the permitting authority ( per § 63.9( h)), and, as necessary, revise their start up, shutdown, and malfunction plan. 94 Several commenters felt that we should re emphasize the importance of removing duplicative RCRA permit conditions and requirements. We agree with the commenters that this is an important action for regulatory agencies. In addition to comments received, we also have learned through the implementation process for the Interim Standards, that some state agencies are not removing duplicative requirements from the RCRA permit. We have clearly stated in several preambles and guidance documents that we believe it is appropriate to retain only the RCRA risk based conditions that are more stringent than the applicable MACT limits ( i. e., if the RCRA condition has been determined to limit risk to an acceptable level and is necessary to protect human health and the environment) in the RCRA permit after compliance with MACT. 95 However, we also acknowledge that in certain cases it may not be clear which compliance requirement is more stringent. For example, standards under MACT are expressed as concentration based limits ( micrograms/ dry standard cubic meter) while certain RCRA standards are expressed as mass emission rate limits ( grams/ second). Also, averaging times between the two programs differ: MACT requires hourly rolling averages whereas RCRA requires instantaneous values. This is an unfortunate consequence of moving compliance from a risk based program to a technology based program. Because we cannot definitively say when a RCRA requirement is more stringent than a MACT requirement and consistently apply it to all sources, we are relying on sources and permitting agencies to work together to determine which requirement is more stringent. If the MACT requirement is determined to be more stringent, the permitting agency can remove the requirement from the RCRA permit In adopting a permitting approach to place the MACT air emissions and related operating requirements in the CAA Title V permit and to keep all other aspects of the combustion unit and the facility in the RCRA permit, our intent was and still is, to minimize duplication to the extent practicable and to eliminate the potential for dual 94 The requirements in § 63.1206( b)( 5)( ii) call for sources to revise ( as necessary) the performance test plan, DOC, NOC, and start up, shutdown, and malfunction plan. For sources complying with the Interim Standards, it is not necessary to revise the performance test plan or the DOC, since they were developed in preparation for compliance with the Interim Standards. 95 As an example, a RCRA permit could specify a higher minimum operating temperature than what is necessary for the facility to achieve compliance with MACT. The lower minimum operating temperature under MACT may be sufficient, unless the RCRA permit authority determines that the higher RCRA temperature is necessary to limit risk to an acceptable level for that facility. There should be a connection between the RCRA limit and protection of human health and the environment when retaining a RCRA limit. 107 enforcement. We view it as an unnecessary duplication of effort between programs as well as an unnecessary expenditure of resources and costs for both facilities and regulatory authorities to maintain a RCRA permit and a Title V permit that contain duplicative requirements, when there are viable mechanisms ( i. e., Class 1 modification procedure at 270.42 Appendix I, section A. 8, or Class 2 or 3 if a state has not adopted the Class 1 procedure) in place to avoid doing so. Nevertheless, we believe that states should have the flexibility to decide how they will allocate their resources, which is why we did not include a single transition approach for implementing agencies to follow in the 1999 rule or in today's rule. So, in such cases where a state agency chooses not to adopt the transition language ( i. e. the Class 1 modification procedure at 270.42 Appendix I, section A. 8) into their state requirements ( e. g., because the state's procedures are broader in scope or more stringent than the federal requirements) or is unable to reach an agreement between its RCRA and air programs regarding which standards are more stringent, the Title V permitting authority should document these issues, including any continuing RCRA permit requirements, in the title V permit's statement of basis ( 40 CFR § § 70.7( a)( 5) and 71.7( a)( 5)). This will help to ensure that the source is clear regarding its compliance obligations, which is a main goal of the Title V program. Further, for purposes of clarification and as a matter of courtesy, we urge regulatory authorities that choose to impose dual compliance requirements, to also provide a written justification to the source explaining the reasons for their decisions. 2. Transition of Interim Status Phase 2 Units from RCRA to CAA Permits In response to our discussion in the proposal regarding RCRA permitting for interim status Phase 2 units ( 69 FR 21324), two commenters suggest that EPA establish policy and/ or regulation that discourage further RCRA permitting work for interim status Phase 2 sources. Their comments are directed our statement in the proposal that the RCRA combustion permitting procedures in 40 CFR part 270 also continue to apply until you demonstrate compliance. As noted in this statement, we intended for Phase 2 sources to continue to be subject to RCRA permitting requirements for air emissions standards and related operating parameters, including trial burn planning and testing, until they have demonstrated compliance with the MACT standards by conducting a comprehensive performance test and submitting an NOC to the Agency. However, we also provided several factors that should be taken into consideration when determining whether to proceed with the RCRA permit process such as: the facility's permit status at the time the MACT rule becomes final, the facility's anticipated schedule for MACT compliance, the priorities and schedule of the regulatory agency, and the level of environmental concern at a given site ( 69 FR 21324). To support their position, the commenters noted that time and resources would be conserved and duplicative and overlapping activities could be minimized if Phase 2 sources were permitted solely via Title V. Also, they argued that it would avoid expending resources to modify the RCRA permit once the source has demonstrated compliance with MACT. We agree with commenters that every effort should be made to conserve resources and avoid duplication to the extent possible. However, we do not believe it is appropriate to establish policy or regulation that permitting authorities must suspend the RCRA permit process ( whether it pertains to interim status or renewals), especially in cases where considerable time and effort has been invested and the permit is 108 close to final issuance. As before, we strongly encourage sources and regulatory authorities to work together to establish an approach that will provide for the most practical transition. For example, we strongly recommend that sunset provisions be included in a permit that will be issued well in advance of compliance with MACT to avoid duplication and a later modification to remove the duplicative RCRA conditions. Also, it would make more sense to transition a source to MACT compliance prior to issuing the RCRA permit if it will comply with MACT early. 3. Transition from Compliance With the Interim Standards To the Replacement Standards A specific question that has been raised relates to the applicable standards and operating parameters that the source must comply with during the period between the rule's effective date for the Phase 1 Replacement Standards and submission of their new NOC. Upon the publication date of the rule, the Replacement Standards ( and Phase 2 Standards) will become effective and sources will have 3 years to come into compliance. During this 3 year period, Phase I sources' existing title V permits will either be reopened to include the Replacement Standards, or the permitting authority will have incorporated the Replacement Standards during permit renewal. In this example, a Phase 1 source's Title V permit has been reopened, revised, or renewed and includes the Replacement Standards, the compliance date has not yet passed, no new documentation of compliance ( DOC) for the replacement standards has been included in the operating record, and the source has not yet conducted a comprehensive performance test and submitted a new NOC ( therefore it still has an NOC containing the operating parameters for compliance with the Interim Standards). In the above scenario, the question asked is whether the source should comply with the Interim Standards in the current NOC or the Replacement Standards in the Title V permit. The source should comply with the Interim Standards until the compliance date of the Replacement Standards. Although the Title V permit now includes the Replacement Standards, the permit will also include the Replacement Standards' future compliance date. With regard to the transition from the Interim Standards NOC to the Replacement Standards DOC, we are revising the regulations at § 63.1211( c) to render the NOC, which documented compliance with the Interim Standards, inapplicable upon inclusion of the DOC for the Replacement Standards in the operating record by the compliance date. Thus, the source will not be placed in a situation where it must continue to ensure compliance with the operating parameters established in the NOC for the Interim Standards, while seeking to comply with the Replacement Standards and operating parameters in its DOC. Although it can be assumed that the source would still be able to comply with its Interim Standard based NOC because the Replacement Standards are the same as or more stringent than the Interim Standards, we believe that the revision to render the previous NOC inapplicable provides a clearer and more sensible approach. 4. Changes to Title V Permits Both the Replacement Standards and the Phase 2 Standards will necessitate permit reopenings or revisions to some existing title V permits; other permits will incorporate the requirements upon renewal. 40 CFR § § 70.7 and 71.7 include the requirements for Title V permit revisions, reopenings, and renewals. Also, approved Title V permitting authorities may have additional requirements. Please refer to the 109 appropriate permitting authority and its individual Title V permits program to determine the necessary requirements and procedures. With respect to incorporating minor revisions into the Title V permit, one commenter had asked, for example, whether revisions made to the NOC to reflect minor operating changes could be incorporated into the permit by reference rather than through the reopening procedures. Determining the appropriate Title V permit reopening or revision requirements is based on the nature of the change and the source specific permit terms and conditions, and is therefore difficult to generalize. We recommend that sources work with their Title V permit authorities to determine the appropriate requirements and procedures that are applicable to any specific situation. However, we would like to note that, when incorporating requirements by reference into the Title V permit is appropriate, this does not necessarily obviate the need for permit revisions if the material incorporated by reference is subsequently revised. For more information on incorporation by reference, please refer to the Office of Air Quality Planning and Standards' " White Paper Number 2 for Improved Implementation of The Part 70 Operating Permits Program" ( March 5, 1996), Section II. E. 2. c. This paper can be found at: http:// www. epa. gov/ ttn/ oarpg/ t5/ memoranda/ wtppr 2. pdf.

C. Are There Any Changes to the Proposed Class 1 Permit Modification Procedure?

In the NPRM, we proposed a new Class 1, with prior Agency approval, permit modification procedure to help further minimize potential conflicts between the RCRA permit requirements and MACT requirements. See 69 FR 21384 and proposed § 270.42( k). During implementation of the Interim Standards for Phase 1 sources, it became evident that there are two significant instances where RCRA permit limits may overlap with MACT requirements: during initial ( and future) performance testing and during the period between placement of the documentation of compliance ( DOC) in the operating record and the final modification of the RCRA permit after receipt of the NOC. We discussed several existing approaches ( e. g., a class 2 or 3 modification, request for approval submitted via the RCRA trial burn plan or coordinated MACT/ RCRA test plan, or through a temporary authorization) for addressing these instances, noting that none provided an optimal solution. All commenters agreed that the new Class 1 modification procedure is the appropriate and most efficient method to enable specific RCRA permit conditions to be waived during instances of overlap referred to above. However, a few commenters were concerned with the requirements in proposed 270.42( k)( 2)( ii) and ( k)( 3), that require sources to submit their permit modification request upon approval of the test plan and the requirement for the Director to approve or deny the request within 30 days, or within 60 days with an extension. This timeframe is feasible only for those sources that have received approval of their test plans at least 60 days prior to their scheduled date for commencing their performance test. We acknowledged the potential impracticality of this requirement in the proposal, but at the time believed that few sources, if any, would conduct their performance tests without an approved test plan. While this still may be true, we have learned that sources who received extensions for testing ( so that they would have an approved plan), typically commenced their test shortly after approval. Consequently, this still would not allow enough time to review and approve the permit 110 modification before the test begins. Thus, the new Class 1 modification would be of no benefit to facilities that conduct their tests without an approved test plan, or to facilities that received extensions and need to begin their tests upon or shortly after approval of the test plan. Also, we found one other circumstance where the timeframes could be problematic: if a permitting agency has allowed sources to begin pretesting/ testing upon approval of the test plan. Again, a source would not be able to have RCRA permit requirements waived in time to begin its test. We agree with commenters that the proposed requirements in 270.42( k)( 2)( ii) and ( iii) do not provide any flexibility to waive RCRA permit limits for sources that 1) do not have an approved test plan but choose to conduct their test; 2) are granted an extension to their test date because they do not yet have an approved test plan; and 3) may begin testing upon approval of their test plans. Our original intent to require prior Agency approval for the new Class 1 permit modification procedure was to ensure that the proposed test conditions would be sufficiently protective when specific RCRA requirements are waived and that a source has met the regulatory requirements for performance test plans. We still believe that review and approval is an important step; however, we also believe it should not be a barrier and therefore, should occur in advance of a source commencing its performance test. As a result, we have revised the proposed regulatory language in 270.42( k)( 2)( i) to specify that sources submit their permit modification requests with their test plans, to allow potentially up to one year for approval ( i. e., the performance test plan is due one year before the test is to begin). Also, so that approval does not impede the commencement of the performance test, we have revised the proposed language in 270.42( k)( 2)( ii) so that the Director can choose whether to issue approval of the permit modification request contingent upon approval of the performance test plan. 96 In that respect, the RCRA permit authority would continue to have an extra measure of assurance in circumstances that may demand it.

D. What Permitting Approach Is EPA Finalizing for New Units?

1. Why Did EPA Propose A Separate Permitting Approach? As discussed in the proposal, the current RCRA regulations at § § 264.340, 265.340, 266.100, 270.19, 270.22, 270.62, and 270.66 do not address how or when new combustion units will comply with the MACT standards. Consequently, the part 270 regulations imply that a new unit must obtain a complete RCRA permit before it can demonstrate compliance with the MACT standards. It was never our intent for new units to develop a trial burn plan and provide suggested conditions for the various phases of operation in the RCRA permit application, given that these conditions will become inactive or need to be removed from their permits upon demonstrating compliance with MACT. To rectify our previous omission, we suggested several options that would allow units newly entering the RCRA permit process97 ( and that will comply with the Subpart EEE requirement upon start up) to forego certain RCRA permit requirements and 96 In all likelihood, we anticipate that the RCRA permit authority will have reviewed the modification request along with the test plans, worked with its Air counterparts and the source to resolve any concerns, and have prepared the permit modification approval prior to issuance of the test plan approval. 97 Units " newly" entering the RCRA permit process refers to a newly constructed facility, thus newly constructed hazardous waste combustion unit; an existing facility that constructs a new unit; or an existing facility that converts a non hazardous fuel combustion unit to a hazardous waste fuel combustion unit. 111 performance standards. In developing the options that would enable new units to forego certain RCRA requirements, we noted the importance of public participation opportunities under the MACT/ CAA framework equivalent to those provided under the RCRA framework. Thus, each option was constructed in such a way that would streamline the RCRA requirements, but continue to provide early and frequent public participation commensurate with the requirements of the RCRA Expanded Public Participation Rule ( 60 FR 63417, December 11, 1995). 2. What Options Did EPA Propose for Permitting New Units? In our preferred approach, we proposed that new units not be required to develop a trial burn plan and provide suggested conditions for the various phases of operation in their RCRA permit application. Instead, new units would only be required to address the remaining RCRA activities at the facility in their permit application ( or modification request) including corrective action, general facility standards, other combustor specific concerns such as materials handling, risk based emission limits and operating requirements, and other hazardous waste management units. While this approach appears to be ideal from the standpoint of reducing the regulatory burden to sources and RCRA permit authorities, we noted that even though a new unit will be required to meet the RCRA public participation requirements as part of the permit application process, the operations and emission information specific to the combustor would no longer be provided. Thus, we focused on certain compliance activities under the MACT/ CAA framework ( i. e., the Notification of Intent to Comply requirements) that would allow for combustor specific information to be made available to the public as it would have been under the full RCRA permit process. Regarding the three additional approaches or " options", each considered a different point in the RCRA permit process where a new unit could " transition" to compliance with the MACT standards ( see 69 FR 21319). Under the first option, a new unit could transition to MACT compliance after it had submitted its RCRA Part B application. The Part B however, would not include the trial burn plan information. The new unit would only be required to discuss the compliance activities related to the combustor as part of the RCRA informal public meeting. In the second option, we proposed that a new unit would transition after its RCRA permit has been issued. Here, the new unit would be required to develop a trial burn plan which provided its proposed operations and emissions information and to discuss its compliance activities via the RCRA informal public meeting. Then, a permit would be issued, but it would not contain operating and emissions requirements in order to avoid a future modification to remove them. For the third option, the transition point would have been after the new unit places the DOC in its operating record, which is the compliance point for MACT. This option is more inclusive than the second because it requires the new unit to have a draft permit that covers the construction and shakedown period. 3. Which Option is EPA Finalizing? For today's final rule, we are adopting our preferred, proposed approach: new units will not be required to follow the full RCRA permitting process for establishing combustor operations and emissions. Thus, new units are not subject to the combustorspecific RCRA permit requirements and performance standards ( i. e., to develop a trial burn plan, provide suggested conditions for the various phases of operation in their permit application, and subsequently operate under those conditions). However, because 112 these units remain hazardous waste treatment units, they are still required to obtain a RCRA permit, or to modify an existing RCRA permit to include a new unit, prior to construction. They need only address the remaining hazardous waste management activities at the facility in their permit application ( or modification request) including corrective action, general facility standards, other combustor specific concerns such as materials handling, risk based emission limits and operating requirements, and other hazardous waste management units. As we noted in the previous section and will discuss again more thoroughly in the next section, we are relying on the NIC process to provide the public with the combustor specific information that previously would have been provided under the full RCRA permit process. Almost all commenters supported our preferred approach to not require that new units complete the full RCRA permit process and to rely on the NIC requirements and the MACT/ CAA framework to provide a level of public participation that is commensurate with the requirements under RCRA. Commenters generally agreed that our preferred approach achieves this goal while streamlining the RCRA permit process for new units. One commenter felt that the Title V and New Source Review programs ( NSR) provide sufficient requirements to regulate new combustion units. We disagree that either or both of those programs fully address the hazardous waste and public participation components commensurate with that provided by the approach we are finalizing today. For instance, a unit may be constructed and operating before a Title V permit is issued, which directly conflicts with RCRA's early public participation requirements. Also, in some instances, public participation may not be a required component of state issued NSR permits ( see footnote regarding public participation and SIPs below). However, we do believe that the NSR program will play an important role regarding the exchange of information, as we will discuss in the section below. With respect to the remaining three options presented in the proposal ( 69 FR 21319   21320) that suggested a transitional approach ( i. e., each option explored progressive points in the RCRA permit process where facilities could transfer over to MACT without fully completing the RCRA process), nearly all commenters were in agreement that they would require more work to implement than is necessary and consequently oppose them. 4. How Will Permitting for New Units Work? In the proposed rule, we created an approach that utilizes the NIC requirements and the MACT/ CAA framework with the intent of ensuring that the requirements of the RCRA Expanded Public Participation Rule would continue to be fulfilled. The four requirements for public participation as they relate to hazardous waste combustion units are: ( 1) permit applicants must hold an informal public meeting before applying for a permit; ( 2) permit agencies must announce the submission of a permit application which will tell community members where they can view the application while the agency reviews it; ( 3) permitting agencies may require a facility to set up an information repository at any point during the permitting process if warranted; and ( 4) permitting agencies must notify the public prior to a trial ( or test) burn. As discussed in the preamble to the proposal ( 69 FR 21318), we believe that the NIC process addresses the first two RCRA public participation requirements. The NIC process requires a source to make its draft NIC, which discusses the source's plan for coming into compliance with the MACT standards, available for public review and to hold an informal public meeting to discuss the activities contained in the NIC. While the 113 NIC process gives the public an early opportunity to participate in the unit's compliance planning process early on, a few components are still missing before we can consider the first 2 RCRA public participation requirements to be fulfilled under the MACT framework. One component is that there is no permit action associated with the NIC requirements. However, the NSR program can provide a permit mechanism that will determine whether or not a source may be constructed. 98 The steps associated with obtaining an NSR permit, or a " pre construction" permit, are similar, but not necessarily identical to that required under RCRA. They are: ( 1) preparation of the permit application ( sources must provide the location, design, construction, and operation information) and participation in pre application meetings; ( 2) issuance of permit application completeness determination by the State; ( 3) development and negotiation of draft permit; ( 4) opportunity for public notice and comment on the draft permit; ( 5) response of permitting authority to public comments; ( 6) possible administrative and judicial appeals; and ( 7) permit issuance/ denial. 99 A second component is that the NIC does not provide the information on the proposed combustor operations or emissions information that would normally be available as part of the RCRA process. To address these gaps between RCRA and MACT, we are requiring an approach similar to that which was proposed. New sources must: ( 1) prepare a draft NIC and make it available to the public at the same time as their RCRA pre application meeting notice; ( 2) provide a draft of their comprehensive performance test ( CPT) plan ( to the public) to coincide with the draft NIC and RCRA pre application meeting notices; and ( 3) hold their NIC public meeting with their RCRA informal public meeting. The first two requirements ensure that the public is provided with most of the same information that would have been available via the RCRA trial burn plan prior to the source burning hazardous waste. Other information not required by the NIC or CPT plan, such as the combustion unit's design specifications will, in most cases, be available to the public through the NSR permit application. We recommend that sources submit a copy of their NSR permit application to the RCRA permit authority so that this information is readily available for development of the RCRA permit. The third requirement allows the public to inquire and comment on both the new unit's proposed activities and operations. By requiring new sources to develop, notice, and hold a combined public meeting that encompasses the NIC, draft CPT plan, and RCRA preapplication notice information, the public will be provided with all information related to the combustor's compliance plans as well as its operating plans and emissions estimates prior to burning hazardous waste. See new requirements in § 63.1212. With respect to the requirements we are finalizing today, we received only one comment that expressed concern. The concern is that the requirement to submit the CPT 98 We believe that the majority of new units will be classified as major sources for NSR permitting ( requiring either prevention of significant deterioration or nonattainment permits), however, those that do not, will likely be required to obtain a minor NSR permit. In few cases, new sources ( e. g., newly constructed as opposed to modified) may not be required to obtain an NSR permit if its potential to emit does not exceed the NSR threshold level. 99 With respect to numbers 4 and 5, many States omitted the public participation steps in their federally approved SIPs. This was the reason why Sierra Club had been opposed to our efforts to simply rely on NSR permitting to provide public participation opportunities that would have been otherwise provided under the traditional RCRA permit process for new units. Today, however, many SIPs have been revised to address public participation requirements. 114 plan is too early in the compliance process. For example, the RCRA application is submitted approximately 2 3 years before start up whereas the CPT plan is required 1.5 years after the final NIC is due. 100 The commenter feels that the facility would not have enough time to learn about the " detailed nuances of the system". However, the commenter does note that it is possible to submit the CPT plan, but it will not be as complete or refined as it would be if it was submitted according to the deadline for existing units. We agree with the commenter that a considerable amount of planning is required of the source to be able to draft the CPT plan at such an early stage, but we are only requiring that a draft of the CPT plan be made available, with the final CPT plan due 6 months prior to the source's compliance date. Moreover, at this early stage, we liken the development of the draft CPT plan to the development of the trial burn plan. Even though it may not be as complete or refined as it will be when the final CPT plan is due, we believe that it will still be of benefit to the public and the regulatory authority, but also to the source in terms of advance planning for the design of the unit through start up of the unit. The components thus far, have satisfied the first ( 2) two RCRA public participation requirements. The third RCRA public participation requirement enables a regulatory authority to evaluate the need for and require a facility to establish and maintain an information repository. The establishment of an information repository is typically required only when there are concerns or unique information needs of a community. The purpose of the information repository is to make information regarding the facility ( and combustion unit) available to the public during the permit issuance process and during the life of the permit. In the preamble, we noted that although the Title V permit process contains a provision that any materials relevant to the permit decision be made available to interested persons ( see § 70.7( h)( 2) and § 71.11( d)), the information may not be made available until well after the combustor is constructed and operating. Consequently, we have chosen to adopt additional provisions under the NIC requirements that parallel the requirements of § 124.33. We had proposed two options that would allow a regulatory authority to require, on a case by case basis, a source to establish an information repository specific to the combustor. The first option was to place such a provision in the NIC regulations and the second option was to amend the applicability language in § 124.33 to include combustion sources that will comply with Part 63, subpart EEE upon start up. Two commenters felt that the second option would create problems as far as organization ( i. e., by modifying the RCRA regulations to include a provision solely for new units complying with MACT). We agree that the second option could be confusing and that it would be more appropriate to keep all new requirements for new units in one set of regulations. Therefore, we are finalizing a provision that will allow for an information repository to be established specific to the combustor ( recall that a repository established pursuant to the RCRA permit will include documents relevant to the facility only), if deemed appropriate, under the NIC regulations. See new § 63.1212( c). Under the NIC regulations, the repository could include the NIC, test plans, draft Title V permit and application, reports, etcetera.

100 Comprehensive performance test plans are required to be submitted one year in advance of the scheduled test. The submittal date would be as late as 2.5 years after the effective date of the rule assuming no extensions are granted. 115 The fourth and final RCRA public participation requirement to be fulfilled is for the regulatory authority to notify the public of an impending trial burn or test burn. As discussed in the RCRA Expanded Public Participation Rule, the RCRA permit authority will typically provide the notice at least 30 days in advance of the test ( 60 FR 63426, December 11, 1995). Similarly, the MACT regulations require an existing or new unit to provide notice to the public that the CPT plan ( and the continuous monitoring system performance evaluation test plan) is available for review. The regulations in § 63.1207( e)( 2) fulfill this requirement. Although the CPT plan may not be approved before the public is notified, the intent is to provide notice to the public of a future test. We believe that the MACT regulations provide public notice of the test plans that are commensurate with the RCRA regulations and thus, no additional regulatory revisions or amendments are needed. 4. a. Process for New Units Seeking An Initial RCRA Permit We anticipate that the process for new units seeking an initial permit will work as follows. Any new unit would begin the process by developing and compiling the information necessary for the RCRA draft permit ( e. g., information required for the part A application at § 270.13, the relevant general information for the part B application according to Part 270) and the applicable NSR permit. 101 The information needed to compile the draft NIC and draft CPT plan would be gathered simultaneously, as if the source were developing the trial burn plan. When the source has compiled its RCRA permit application, draft NIC and draft CPT plan, it would submit a RCRA preapplication meeting notice at least 30 days prior to the date scheduled for the RCRA informal public meeting according to § § 124.31( b) and ( d). At the time of the RCRA preapplication meeting notice, the source would also issue notice of the NIC public meeting ( at least 30 days prior to the NIC meeting) according to § 63.1210( c)( 3), so that the two meetings can occur at the same time. In order for the public to be able to view all information relevant to the combustor before the combined RCRA pre application and NIC public meeting, the source would make the draft NIC and draft CPT plan available to the public for review at the same time the notices for the meetings are issued. To aid the RCRA permit authority in its development of the draft RCRA permit ( i. e., mainly for purposes of evaluating risk), we strongly recommend that the source also provide copies of the draft NIC, draft CPT plan, and NSR application ( if applicable) to the RCRA permit authority. It is our hope that the availability of information will expedite the development of the draft permit. All notices should be presented to the public in sufficient time to allow for a combined RCRA informal public meeting and NIC public meeting. Following the combined public meeting, the source will submit its RCRA permit application and the RCRA regulatory authority will prepare and issue a draft permit. The public will then have an opportunity to comment on the draft permit and request a public hearing. Upon resolution of any issues surrounding the draft permit, a final RCRA permit will be issued. The RCRA process is the same as before, but should be reasonably 101 Because the information required for NSR permit is less comprehensive than a RCRA permit, it allows for a much shorter time period for issuance. The average time for issuing a PSD permit, for example, after receiving an application is slightly more than 7 months, but varies depending upon public involvement and negotiation of the application content. USEPA. Docket A 2001 19, Document II A 01. NSR 90 Day Review Background Paper, June 22, 2001. 116 shorter. Finally, the new unit may begin burning hazardous waste when it can assure it will operate in compliance with the MACT standards ( i. e., by placing a documentation of compliance in its operating record on the day it begins burning hazardous waste). See new regulatory language at § 63.1212( c). To aid readers in understanding the above process, we have included a pictorial timeline. Please see figure 2. Finally, it may also be feasible to combine an NSR pre application meeting and public notice of the draft NSR permit with the process described above. Thus, we recommend that sources work closely with their Air and RCRA permit agencies so that the NSR public notices and meetings may be coordinated with the RCRA and NIC notices and meetings so time and resources are efficiently utilized. 4. b. Process for New Units Modifying An Existing RCRA Permit The process of adding a new unit to an existing permit is accomplished through a Class 3 permit modification ( see § 270.42 ( c) for requirements). The requirements governing public notices of the draft NIC, draft CPT plan, and holding a combined public meeting are essentially the same as new units seeking an initial permit. The process is as follows. The source prepares and submits its RCRA permit modification request ( and if applicable, NSR application). It must then publish a notice of the modification request seven days later, followed by a public meeting no earlier than 15 days after publication of the notice for the modification request, and no later than 15 days before the close of the 60 day comment period. As with new units that are submitting an initial RCRA permit application, it is also important for sources seeking to modify their permit to coordinate their NIC public meeting with their RCRA permit modification public meeting. This is made possible due to the flexibility of the NIC public meeting; it can be held any time prior to the 10 month deadline. After the combined public meeting and the close of the comment period, the permit authority will either grant or deny the modification request. If approved, the source may then begin construction or modification of the unit. To aid readers in understanding the timing of the above process, we have included a pictorial timeline. Please see figure 2. Again, it may be feasible to combine an NSR pre application meeting and public notice of the draft NSR permit with the process described above. Thus, we recommend that sources work closely with their Air and RCRA permit agencies so that the NSR public notices and meetings may be coordinated with the RCRA and NIC notices and meetings so time and resources are efficiently utilized.

E. What Other Permitting Requirements Were Discussed In the Proposal?

At proposal, we discussed where most Phase 1 sources would be in terms of their transition from their RCRA permit requirements to compliance with the MACT Interim Standards ( see 69 FR 21321). The transition process was discussed with respect to both the RCRA permit and the Title V permit. However, when we discussed the Title V permit requirements in the proposal, we did not elaborate on the transition between the Interim Standards and Replacement Standards. Because we believe that such a discussion would be helpful to readers, we have included general information describing how the transition process would work for most sources in Section B. Did Commenters Express any Concerns Regarding the Current Permitting Requirements?, subsections 3 and 4. 117 For Phase 2 sources, we proposed the same permitting approach as we did for Phase 1 sources. Today, we are finalizing as proposed, the following for Phase 2 sources: ( 1) the new Phase 2 emissions standards will be placed only in the CAA regulations at 40 CFR part 63, subpart EEE, and be implemented through the air program; ( 2) with few exceptions, the analogous standards in the RCRA regulations no longer apply once a facility demonstrates compliance with the MACT standards in subpart EEE and any duplicative requirements have been removed from the RCRA permit; and ( 3) the new standards will be incorporated into operating permits issued under Title V of the CAA rather than be incorporated into RCRA permits. Consequently, we are finalizing the proposed changes to § § 270.22 and 270.66 to implement the above. Also applicable to Phase 2 sources via today's final rule are the changes and additions we finalized in the 1999 final rule for Phase 1 sources. These include a streamlined RCRA permit modification procedure to allow sources to make upgrades to comply with MACT ( § § 270.42( j) and 270.42 appendix I, section L. 9), a second streamlined RCRA permit modification procedure to remove conditions from a permit that are no longer applicable ( § 270.42 appendix I, section A. 8), an addition to § 270.235 to specify conditions for startup shutdown, and malfunction plan and integrate them with the CAA program, and an amendment to the interim status regulations at § 270.72 to exempt interim status facilities from the reconstruction limitation when making upgrades to comply with MACT. Also, we are finalizing three new permitting changes that are applicable to both Phase 1 and 2 sources. Two have been discussed previously in this section and are: ( 1) a new streamlined RCRA permit modification procedure designed to reduce overlap during the transition from RCRA to MACT ( § § 270.42( k) and 270.42, appendix I, L. 10); and ( 2) regulatory provisions stating that new units are no longer subject to the full array of RCRA combustion permitting requirements. The third change is discussed above in Section IX. Site Specific Risk Assessment Under RCRA and finalizes our response to a petition for rulemaking with respect to site specific risk assessments ( SSRAs). As part of this change we have decided to adopt regulatory language that specifically provides clarification of authority for RCRA permit writers to evaluate the need for and, where appropriate, require SSRAs and to add conditions to RCRA permits that they determine, based on the results of an SSRA, are necessary to protect human health and the environment. Last, as explained in part four section II. A, we are finalizing our decision to regulate emissions of dioxin/ furans, mercury, polycyclic organic matter, and polychlorinated biphenyls from Phase 2 area sources under section 112 ( d). 102 This means that Phase 2 area sources are subject to MACT standards only for these hazardous air pollutants ( HAP) in the final rule. To reiterate, they are: dioxin/ furans, mercury, and polycyclic organic matter ( controlled by the surrogates DRE and carbon monoxide/ hydrocarbon). For the remaining HAP ( hydrogen chloride and chlorine gas and metals other than mercury), Phase 2 area sources may either comply with the MACT 102 As explained in the Comment Response Document vol. V, although § 502( a) allows EPA to exempt area sources from title V permitting requirements if EPA finds that those requirements would be ( among other things) " unnecessarily burdensome", we believe that Title V requirements remain appropriate for these sources given the highly toxic nature of the HAP and the importance of affording opportunity for public participation as provided for in the Title V permit issuance process. 118 standards for Phase 2 major sources or continue complying with the RCRA standards and requirements of their RCRA permit. In the 2004 proposal, we stated that we were not making a positive area source finding for Phase 2 area sources as we have for Phase 1 area sources ( 69 FR 21212 and 21325). Regardless of this, however, the Phase 2 area sources are still subject to the requirement to obtain a Title V permit because they are subject to section 112 standards under this subpart. See § 502( a) of the CAA and 40 CFR § § 70.3( b)( 2) and 71.3( b)( 2). It is important to note that the Title V applications for the Phase 2 area sources will need to contain emissions information relative to all regulated air pollutants ( to determine applicable requirements, fees, etc.) that are being emitted from the units subject to the MACT standards, not just the specific HAP pollutants regulated by the MACT standards ( see § § 70.5( c)( 3)( i) and 71.5( c)( 3)( i)). Although, the permit itself would contain standards only for the HAP subject to MACT standards ( the § 112( c)( 6) HAP). A Phase 2 area source which chooses to control hydrogen chloride, chlorine gas, and metals other than mercury by continuing to comply with the relevant RCRA standards and the requirements of its RCRA permit should note this choice in its Title V application and cite to the relevant requirements of this subpart. This will help ensure that the permitting authority is aware that these requirements apply in lieu of the MACT standards for Phase 2 major sources. The permitting authority should also document this choice in the statement of basis for the source's Title V permit. See § § 70.7( a)( 5) and 71.7( a)( 5). Finally, for the units at a source which are subject to the subpart EEE MACT standards, all CAA applicable requirements to which these units are subject, e. g., State Implementation Plan requirements, not just the relevant Subpart EEE requirements, must be included in the Title V permits issued to these sources. See § § 70.3( c)( 2) and 71.3( c)( 2). For more information regarding § 112( c)( 6) and how it relates to Phase 2 area sources, see Part Four, Section II. A., " Area Source Boilers and Hydrochloric Acid Production Furnaces". 119 Figure 1. Time Line for Phase 1 Replacement Standards and Phase 2 Standards103 103 Because of the variability of the Title V program requirements, most Title V permit actions ( application due dates, revisions, reopenings, etc.) are not included in this timeline. Please refer to the particular source's current Title V permit status, the Title V regulations, and the individual permitting authority's Title V program requirements. 6.14.06 Public Review of Draft NIC 7.14.06 NIC Public Meeting 1.14.06 Initial Notification 9.14.06 NIC due 3.14.08 CPT Plan and CMS Performance Evaluation Test Plan Due for Phase 1 Sources 5.14.08 Request for Extensions to Compliance Date Include NOC in Title 5 Permit Modify RCRA Permit 9.14.08 DOC in Operating Record 9.14.08 Compliance Date 12.14.08 Notification of Test Plan Approval or Intent to Deny 3.14.09 Begin Performance Test 5.14.09 Performance Test Completion 8.14.09 NOC Due 9.14.05 Effective Date of Phase 1 and 2 Rule 9.14.07 CPT Plan and CMS Performance Evaluation Test Plan Due for Phase 2 Sources Eligibility Demonstration for Alt. Total Chlorine Standard due 120 New Units at RCRA Permitted Facilities   Class 3 Modification Timeline June 14, 2006 ( 9 months) July 14, 2006 ( 10 months) September 14, 2006 ( 12 months)

Effective date September 14, 2005 ( 0 months) NIC Public Meeting Final NIC Due Submit Permit Modification Request ( 0 days) Begin Comment Period End Comment Period ( 67 days)

Public Meeting ( 22 days)

Publish Notice ( 7 days) Public Meeting ( 52 days) Approve / Deny Request New Units at Non RCRA Permitted Facilities NoNOtice of tice of Pre application Meeting ( 0 days)

Notice of Pre application Meeting ( 0 days) Informal Public Meeting ( 30 days) Submit Permit Application Public Review of Draft NIC and CPT Plan Figure 2. NIC and CPT Plan Time Line for New Units Part Five: What Are the CAA Delegation Clarifications and RCRA State Authorization Requirements?

I. Authority for this Rule.

Today's rule amends the promulgated standards located at 40 CFR part 63, subpart EEE. It amends the standards for the Phase 1 source categories   incinerators, cement kilns, and lightweight aggregate kilns that burn hazardous waste, and it also amends subpart EEE to establish MACT standards for the Phase 2 source categories   boilers and hydrochloric acid production furnaces that burn hazardous waste. Additionally, this rule amends several RCRA regulations located in 40 CFR part 270 to reflect changes in applicability, addition of a new permit modification procedure, and additions related to site specific assessments and permitting.

II. CAA Delegation Authority.

Before discussing the clarifications being finalized today, it is important to first highlight a few key aspects of delegation authority. Recall from the proposal that a state, local, or tribal ( S/ L/ T) agency must be delegated authority under CAA section 112( l) before it can exercise the delegable provisions' authorities. The delegable authorities can be found in 40 CFR 63.91( g)( 1)( i), also known as Category I Authorities. A S/ L/ T agency that has applied for and received delegation authority can approve: test plans, requests for minor and in most cases, intermediate changes to monitoring and test methods, performance test waivers, and several other Category I Authorities. Please note that even though a S/ L/ T agency may have an approved Title V permit program, it cannot exercise delegable authorities or be the primary enforcement authority if it has not received delegation authority under CAA section 112( l). Moreover, when a S/ L/ T agency has not taken delegation of a section 112 standard, the agency can only incorporate the section 112 standard's requirements into its Title V permits, ( and then implement and enforce these requirements through its title V permits) when it has adequate authority under State, local, or tribal law which allows it to conduct the above actions without delegation. See, e. g., the proposed Federal Plan for Commercial and Industrial Solid Waste Incinerators, November 25, 2002 ( 67 FR 70640, 70652). Please also refer to 69 FR 21335 of the proposal and the fact sheet entitled, Clean Air Act Delegation for the HWC NESHAP at: http:// www. epa. gov/ epaoswer/ hazwaste/ combust/ toolkit/ factshts. htm to learn more about the advantages of receiving delegation authority. Also, we would like to point out that there are several delegation options that S/ L/ T agencies can receive. Regardless, many S/ L/ T agencies choose the " straight delegation" option when applying for delegation approval. Straight delegation means that these agencies have agreed to implement and enforce federal MACT standards as they have been written in the promulgated requirements. As a result, many EPA Regions and states have established memoranda of agreement that essentially provide automatic delegation of each future MACT, as opposed to the state applying for delegation of each future MACT, which requires a rulemaking to implement. For more information related to the delegation options and procedures, please refer to the fact sheet, Clean Air Act Delegation for the HWC NESHAP at: 122 http:// www. epa. gov/ epaoswer/ hazwaste/ combust/ toolkit/ factshts. htm and EPA's delegation website at: http:// www. epa. gov/ ttnatw01/ 112( l)/ 112 lpg. html.

III. Clarifications to CAA Delegation Provisions for Subpart EEE.

In the proposal, we discussed the need to provide additional clarification for the delegable and non delegable authorities within Subpart EEE based upon our implementation experience with the Phase 1 Interim Standards and the Clarifications to Existing National Emissions Standards for Hazardous Air Pollutants Delegation' Provisions final rule published on June 23, 2003 ( 68 FR 37334). Although the June 23, 2003 final rule provided clarification and streamlined the delegable provisions for each existing NESHAP, it overlooked several non delegable and delegable authorities within Subpart EEE. It provided clarification on the non delegable authorities of Subpart EEE as they relate to major alternatives to the standards themselves and to test methods, monitoring, or recordkeeping and reporting under the General Provisions. 104 However, it omitted major alternatives specific to Subpart EEE such as: test methods under § § 63.1208( b) and 63.1209( a)( 1); monitoring under § 63.1209( a)( 5) and; recordkeeping and reporting under § 63.1211( a) through ( d). Therefore, the following paragraphs will explain which authorities in Subpart EEE are delegable and are not delegable to S/ L/ T agencies that have been delegated authority and will provide some examples of or references to alternative requests associated with each delegable or non delegable provisions authority. To review, the regulations at 40 CFR § 63.90 define three types of alternative requests. Alternative requests or " changes" to a particular delegable or non delegable provision are classified as major, intermediate, or minor depending upon the degree ( i. e., potential to be nationally significance, potential to reduce the stringency of the standard, etc.) of change being requested. An alternative request that qualifies as a major change is not delegable to S/ L/ T agencies, even when they have delegation authority. These requests must be sent to the EPA Region or, if it concerns a test method under § § 63.7( e)( 2)( ii) and ( f), 63.1208( b) and 63.1209( a)( 1) or a standard under § § 63.1200, 63.1206( a), or 63.1216   63.1221, then it must be sent to our Office of Air Quality Planning and Standards ( OAPQS). 105 An alternative request that qualifies as an intermediate or minor change is delegable. However, the EPA Region may choose whether or not they will delegate authority to S/ L/ T agencies to approve intermediate and, even some minor changes during the delegation approval process. In addition to the regulations, the guidance document entitled, How to Review and Issue Clean Air Act Applicability Determinations and Alternative Monitoring ( EPA 305 B 99 004, February 1999) provides a listing of delegable and non delegable authorities in Tables 1 and 2, as well as descriptions and examples of major, intermediate, and minor changes in Attachment 1.

104 For example, the final rule included approval of alternatives to requirements in § § 63.1200, 63.1203 through 63.1205, and 63.1206( a); approval of major alternatives to test methods under § 63.7( e)( 2)( ii) and ( f); approval of major alternatives to monitoring under § 63.8( f) and; approval of major alternatives to recordkeeping and reporting under § 63.10( f).

105 For contact information, please visit www. epa. gov/ ttn/ emc/ staffdir. html. 123 A. Alternatives to Requirements.

Any change to a promulgated standard is considered a major change and as noted above, must be sent to OAQPS ( see contact information in footnote). The reason why a change to a standard must be sent to EPA Headquarters is because the change must be established through national rulemaking, regardless of the degree of change sought. Thus, only OAQPS can approve alternative requests for changes to standards. Additionally, any change to applicability requirements and compliance dates ( e. g., requirements that ensure that the standards are achieved as EPA intended) are also considered major and also must be sent to OAQPS for approval. Specific to Subpart EEE, alternative requirement requests including those pursuant to § § 63.1200, 63.1206( a), or 63.1216   63.1221 are considered major changes and consequently are non delegable. The regulations at § 63.1214( c) correctly identified the requirements in Subpart EEE, however we have revised them today ( as we proposed) to reflect the new sections that house the Phase 1 Replacement Standards and Phase 2 Standards. There are a few exceptions to the above, however. Subpart EEE incorporates specific provisions for sources to request alternative standards which are delegable because they have been established through rulemaking. In fact, several alternative standards are self implementing meaning that the source only need specify in their DOC which standard it will comply with. The alternative to the particulate matter standard in § 63.1206( b)( 14) and the emissions averaging standards for cement kilns with in line kiln raw mills and preheater or preheater/ precalciner kilns with dual stacks in § 63.1204( d) and ( e) are three examples. There are also alternative standards that sources may petition to comply with. They include: alternatives to the standards for existing and new LWAKs at § 63.1206( 9) and cement kilns at § 63.1206( b)( 10) and the alternative risk based standard for total chlorine at § 63.1215. Sources choosing to comply with these alternative standards must receive approval from their delegated S/ L/ T agency prior to implementing them. 106 With respect to changes to compliance dates, requests under § 63.1213 specifically allow sources to request an extension to the compliance date for the installation of pollution prevention or waste minimization controls. Again, because this provision has been specified in subpart EEE, it is not considered a major change and is delegable.

B. Alternatives to Test Methods.

With respect to test methods, we noted above that the final delegations rule stated that major alternatives to the test methods at § § 63.7( e)( 2)( ii) and ( f) were not delegable. Therefore, as we proposed, it is necessary to add major alternatives to 63.1208( b), which specifies the test methods sources must use to determine compliance with subpart EEE. Also, we are adding the CEMS monitoring requirement under § 63.1209( a)( 1). It is regarded as a test method because it serves as a benchmark method for demonstrating compliance with the emission standards. Both sections are delegable to S/ L/ T agencies as long as they have been delegated authority and as long as the alternative requests comprise minor or intermediate changes. However, a major change to either of these test 106 The alternative risk based standard for total chlorine at § 63.1215 requires sources to submit their eligibility demonstration to both the delegated S/ L/ T agency and to the Risk and Exposure Assessment Group in Research Triangle Park, NC for review, even though the delegated S/ L/ T agency can grant or deny approval. 124 method sections must be sent to OAQPS for approval. 107 Only OAQPS can approve major changes to test methods because they are designated in the standard as the means for determining compliance with an emission standard. The proposed revisions to § 63.1214 are finalized today to include major alternatives to test methods under § § 63.1208( b) and 63.1209( a)( 1) as non delegable authorities.

C. Alternatives to Monitoring.

For monitoring, the final delegations rule stated that major alternatives to monitoring at § 63.8( f) were not delegable, but did not reference monitoring specific to subpart EEE. In subpart EEE, the monitoring requirements are located in § 63.1209. This section also includes two provisions specific to alternative monitoring, thus removing some of the " guesswork" when trying to discern whether a request for change is minor, intermediate, or major. One is located at § 63.1209( a)( 5), Petitions to use CEMS for other standards and the other is located at § 63.1209( g)( 1), Alternative monitoring requirements other than continuous emissions monitoring systems. Each is discussed in the following paragraphs. In the proposal, we explained that a request to use other monitoring in lieu of a CEMS is always considered a major change due to CEMS generally being considered a more accurate measure of compliance. However, if a source requests to use a CEMS in lieu of a required operating parameter, it may be considered an intermediate change. Since publication of the proposal, performance specifications have been promulgated for PM CEMS ( and mercury CEMS) 108. Consequently, today we view requests per § 63.1209( a)( 5) to use PM CEMS as intermediate changes to monitoring. Although the implementation of PM CEMS according to PS 11 ( 69 FR 1786 and 40 CFR part 60, Appendix B; January 12, 2004) and Procedure 2 ( see also 40 CFR part 60, Appendix F) is largely " self implementing," sources wishing to apply to use of PM CEMS should develop and submit QA/ QC plans specifying audit frequencies to account for site specific stack conditions. We believe that other site specific issues that may need to be addressed prior to use of the CEMS, such as a source's request to deviate from PS 11 or a source's selection of the correct correlation curve( s), are properly addressed under EPA's established policies and procedures for alternative method requests. We believe that a petition to use PM CEMS under § 63.8( f) is still the appropriate mechanism, but that sources can submit their petitions to their delegated S/ L/ T agency for review and approval, and we recommend that EPA Regional offices work with these agencies to monitor implementation. Thus, with the exception of petitions to use PM CEMS in lieu of an operating parameter which is considered an intermediate change, we are finalizing our proposed revision to § 63.1214( c) to include major alternatives to monitoring under § 63.1209( a)( 5) as a non delegable authority. Section 63.1209( g)( 1), Alternative monitoring requirements other than continuous emissions monitoring systems, contains the other alternative monitoring 107 For contact information, please visit www. epa. gov/ ttn/ emc/ staffdir. html. 108 Although performance specifications have been promulgated for mercury CEMS, there has not been as much experience in implementing these devices for hazardous waste combustion sources ( or similar sources) as there has been for PM CEMS at this time. Therefore, we believe it appropriate to continue sending requests to use mercury CEMS in lieu of an operating parameter to the appropriate EPA Region for review and approval. 125 provision. This provision allows sources to request alternative monitoring methods to monitor compliance, except for those standards that must be monitored with a CEMS ( e. g., those in § 63.1209( a)( 1)), and to request a waiver of an operating parameter limit. We provided several examples of alternative parameter monitoring for which a request may be submitted under this section in the proposal at 69 FR 21337. They include use of: a different detector, different monitoring location, a different method as recommended by the manufacturer, or a different averaging period that is more stringent than the applicable standard. In the proposal, we stated that we believe the majority of requests submitted pursuant to § 63.1209( g)( 1) are not major and discussed in the preamble amending the language in § 63.1209( g)( 1) so that these types of changes could be reviewed and approved by the delegated S/ L/ T agency. However, when we added language to § 63.1209( g)( 1) to allow for the above, we inadvertently referred to an approved Title V program instead of a S/ L/ T agency which has taken delegation of subpart EEE. We have corrected and finalized the proposed language. Therefore, whether minor or intermediate, requests under § 63.1209( g)( 1) may be sent to your delegated S/ L/ T agency for review and approval. Please note that 63.1209( g)( 1) cannot be used when requesting major changes to the monitoring required by the standard. Such changes typically involve new unproven monitoring methods. Unproven monitoring methods refer to those where the technology or procedures are not generally accepted by the scientific community ( § 63.90( a)). If you are uncertain whether your request constitutes a new unproven monitoring method, which is considered a major change, you should submit your request to your EPA Region. The regulatory language in 63.1209( g)( 1) has been revised to reflect this clarification.

D. Alternatives to Recordkeeping and Reporting.

As with the others, the final delegation provisions' rule only cited the waiver of recordkeeping and reporting requirements of § 63.10( f) as a non delegable provision. Thus, it is necessary to add the relevant subpart EEE recordkeeping and reporting requirements of § 63.1211. Section 63.1211 is delegable in its entirety to S/ L/ T agencies unless an alternative request is determined to be a major change. An alternative request that is a major change, such as decreases in record retention for all records, must be sent to your EPA Region for review and approval. Similar to the monitoring section, § 63.1211 contains a specific alternative provision. Section 63.1211( d) Data Compression, allows sources to request to use data compression techniques to record data from CMS and CEMS on a frequency less than that required by § 63.1209. We view the alternative request to be a minor change because available guidance provides criteria for defining fluctuation and data compression limits. See 64 FR 52961 and 52962, September 30, 1999. Therefore, requests submitted under 63.1211( d) can be consistently evaluated by delegated S/ L/ T agencies. Section 63.1214( c) has been revised to specify that major alternatives to 63.1211( a)   ( c) are non delegable authorities.

E. Other Delegation Provisions Although not discussed in the proposal, it is important to note that issuing applicability determinations is another delegable authority. The EPA document How to Review and Issue Clean Air Act Applicability Determinations and Alternative Monitoring ( EPA 305 B 99 004, February 1999) provides guidance regarding who has the lead for 126 issuing applicability determinations. In general, Regions may delegate the authority to issue applicability determinations to S/ L/ T agencies when the determinations are routine in nature. However, delegation of authority for certain applicability determinations should be retained by the Regions. These include applicability determinations that: ( 1) are unusually controversial or complex; ( 2) have bearing on more than one state or district ( are multi Regional); ( 3) appear to create conflict with previous policy or determinations; ( 4) are a legal issue which has not previously been considered ( a matter of first impression); or ( 5) raise new policy questions. It is recommended that Regional offices require notification when S/ L/ T agencies issue applicability determinations.

IV. RCRA State Authorization and Amendments To the RCRA Regulations.

Under section 3006 of RCRA, EPA may authorize qualified states to administer their own hazardous waste programs in lieu of the federal program within the state. Following authorization, EPA retains enforcement authority under sections 3008, 3013, and 7003 of RCRA, although authorized states have primary enforcement responsibility. The standards and requirements for state authorization are found at 40 CFR Part 271. Prior to enactment of the Hazardous and Solid Waste Amendments of 1984 ( HSWA), a State with final RCRA authorization administered its hazardous waste program entirely in lieu of EPA administering the federal program in that state. The federal requirements no longer applied in the authorized state, and EPA could not issue permits for any facilities in that state, since only the state was authorized to issue RCRA permits. When new, more stringent federal requirements were promulgated, the state was obligated to enact equivalent authorities within specified time frames. However, the new federal requirements did not take effect in an authorized state until the state adopted the federal requirements as state law. In contrast, under RCRA section 3006( g) ( 42 U. S. C. 6926( g)), which was added by HSWA, new requirements and prohibitions imposed under HSWA authority take effect in authorized states at the same time that they take effect in unauthorized states. EPA is directed by the statute to implement these requirements and prohibitions in authorized states, including the issuance of permits, until the state is granted authorization to do so. While states must still adopt HSWA related provisions as state law to retain final authorization, EPA implements the HSWA provisions in authorized states until the states do so. Authorized states are required to modify their programs only when EPA enacts federal requirements that are more stringent or broader in scope than existing federal requirements. RCRA section 3009 allows the states to impose standards more stringent than those in the federal program ( see also 40 CFR 271.1). Therefore, authorized states may, but are not required to, adopt federal regulations, both HSWA and non HSWA, that are considered less stringent than previous federal regulations. We discussed in the proposal which RCRA regulations we intended to amend and their impact on state authorization procedures. Today, we are finalizing those amendments in § § 270.10, 270.22, 270.32, 270.42, 27062, 270.66, and 270.235. In addition, we are amending the regulations in § § 264.340 and 266.100 to reflect changes that have been made based upon comments. Today's amendments fall under both HSWA and non HSWA authorities. That is, changes made to regulations applicable to boilers and industrial furnaces are promulgated under HSWA authority, whereas changes made 127 to regulations applicable to incinerators are promulgated under non HSWA authority. 109 All of the amendments made today are considered to be either less stringent or equivalent to the existing Federal program, which means that states are not required to adopt and seek authorization for these provisions regardless of whether they are finalized under non HSWA or HSWA authorities. Nevertheless, we strongly encourage states to become authorized for today's amendments. Experience has shown that when states have been authorized for previous amendments ( i. e., those finalized in the 1999 rule) that were intended to facilitate the transition from the RCRA program to MACT and the CAA Title V program, the process has proven to be less cumbersome. For a more detailed discussion of non HSWA and HSWA authorities with respect to how and when they take effect, please refer to the proposal's preamble discussion at 69 FR 21338. Several RCRA sections that have been enacted as part of HSWA apply to today's rule: 3004( o), 3004( q), and 3005( c)( 3). Thus, if a state is not authorized for the boiler and industrial furnace regulations, these provisions are federally enforceable in an authorized state until the necessary changes to a state's authorization are approved by us. See RCRA section 3006, 42 U. S. C. 6926. We are adding today's requirements to Table 1 in 271.1( j) where rulemakings promulgated pursuant to HSWA authority are identified.

Part Six: Impacts of the Final Rule I. What Are the Air Impacts? Table 1 below shows the emissions reductions achieved by the final rule for all existing hazardous waste combustors. For Phase I sources   incinerators, cement kilns, and lightweight aggregate kilns   the emission reductions represent the difference in emissions between sources controlled to today's standards and estimated emissions when complying with the interim MACT standards promulgated on February 13, 2002. Thus, the significant emissions reductions already achieved by the interim standards are not reflected in the estimates shown in Table 1.110 For Phase II sources   solid fuel boilers, liquid fuel boilers, and hydrochloric acid production furnaces   the reductions represent the difference in emissions between today's standards and the current baseline of control provided by 40 CFR part 266, subpart H. Nationwide baseline HAP and particulate matter emissions from hazardous waste combustors are estimated to be approximately 12,650 tons per year at the current baseline level of control. Depending on the number of facilities demonstrating compliance with health based compliance alternatives for total chlorine, the total reduction of HAP and particulate matter for existing sources could be between approximately 2,260 and 3,380 tons per year. A discussion of the emission estimates methodology and results are presented in " Technical Support Document for HWC MACT Replacement Standards, Volume V: Emission Estimates and Engineering Costs" that is available in the docket.

109 When new requirements and prohibitions ( that are more stringent than the previous federal regulations) are imposed under non HSWA authority, the new federal requirements do not take effect in an authorized state until the state adopts the federal requirements as law. Conversely, when imposed under HSWA authority, the new federal requirements are federally enforceable in an authorized state until the necessary changes to a state's authorization are approved by EPA. 110 USEPA, " Final Technical Support Document for HWC MACT Standards, Volume V: Emission Estimates and Engineering Costs," Section 3, July 1999. 128 Table 1   Nationwide Annual Emissions Reductions of HAP and Other Pollutants Pollutant Estimated Emission Reductions ( tons per year) Dioxin/ furans1 0.20 All HAP metals 19.5 Mercury 0.21 Semivolatile metals ( Cd, Pb) 2.9 Low volatile metals ( As, Be, Cr) 6.5 Other metals ( Co, Mn, Ni, Sb, Se) 9.9 HCl and chlorine gas2 1220 Particulate matter 2,140 1 Dioxin/ furan emission reductions are expressed as grams TEQ per year. 2 We are promulgating health based compliance alternatives for total chlorine for hazardous waste combustors other than hydrochloric acid production furnaces in lieu of the MACT technology based emission standards ( see Part Four, Section VII of the preamble for details). Given that a number of sources may elect to comply with the health based compliance alternatives, the estimated reductions of total chlorine represent an upper bound estimate.

II. What Are the Water and Solid Waste Impacts?

We estimate that water usage for existing sources will increase between 400 million and 1.6 billion gallons per year as a result of today's rule. The upper range estimate represents the water usage assuming no sources elect to comply with the healthbased compliance alternatives for total chlorine, while the lower range estimate represents water usage assuming all sources elect the alternative. Water usage increases are estimated for reducing combustion gas temperatures with evaporated spray coolers for dioxin/ furan control as well as for new particulate matter and acid gas air pollution control equipment. The increased water usage will also result in an increase in wastewater generation. Depending on the number of sources that elect to comply with the health based compliance alternatives for total chlorine, we also estimate that up to 775 million gallons of wastewater may be generated. We estimate that the generation of solid waste will increase between approximately 8,700 tons and 12,200 tons per year depending on the number of sources that elect to comply with the health based compliance alternatives for total chlorine. Of these totals, approximately 250 tons per year will be classified as hazardous waste subject to RCRA Subtitle C regulations. We estimate the remainder   between 8,450 and 11,950 tons per year   will be classified and managed as a non hazardous industrial waste subject to Subtitle D of RCRA. The costs associated with these disposal and water requirements are accounted for in the annualized compliance cost estimates. A discussion of the methodology used to estimate impacts is presented in " Technical Support Document for HWC MACT Replacement Standards, Volume V: Emission Estimates and Engineering Costs" that is available in the docket. We note that the nonair quality health and environmental impacts effects for both floor and beyond the floor options are discussed in the technical support document and are part of our consideration of such factors under section 112( d)( 2). 129 III. What Are the Energy Impacts?

We estimate that the national annual energy usage as a result of this rule will increase between approximately 73 million and 85 million kilowatt hours ( kWh) depending on the number of sources that elect to comply with the health based compliance alternatives for total chlorine. The increase results from the electricity required to operate air pollution control equipment installed to meet the standards. The increase energy usage costs are accounted for in the annualized compliance cost estimates. A discussion of the methodology used to estimate impacts is presented in " Technical Support Document for HWC MACT Replacement Standards, Volume V: Emission Estimates and Engineering Costs." We note that the energy effects for both floor and beyond the floor options are discussed in the technical support document and are part of our consideration of such factors under section 112( d)( 2).

IV. What Are the Control Costs?

Control costs, as presented in this section, refer only to engineering, operation, and maintenance costs associated with unit/ system upgrades necessary to meet the final standards. These costs do not incorporate any market based adjustments. All costs presented in this section are annualized estimates in 2002 dollars. We estimate there are a total of 267 sources111 that may be subject to requirements of this final rule. Of this total, there are 116 boilers ( 104 liquid fuel boilers plus 12 solid fuel boilers), 92 on site incinerators, 25 cement kilns, 15 commercial incinerators, nine ( or seven) lightweight aggregate kilns, and ten hydrochloric acid ( HCl) production furnaces. Total national private sector engineering costs for the final standards are estimated at $ 40.2 million per year112. This estimate reflects total non market adjusted upgrade costs ( engineering, plus administrative and permitting), excluding chlorine control costs. 113 All Phase II sources combined ( liquid fuel boilers, coal fired boilers, and HCl production furnaces) represent 86 percent of this total. The average private sector engineering cost, excluding permitting and administrative, is projected to be highest for liquid fuel boilers, at $ 256,300 per source. Coal fired boilers are second at approximately $ 170,246 per source. Total engineering costs to cement kilns and HCl production furnaces are estimated to average $ 113,600, and $ 16,645 per source, respectively. Commercial incinerators are projected to experience engineering costs   111 For purposes of this discussion, a source is defined as the air pollution control system associated with one or more hazardous waste combustion unit( s). A facility may operate one or more sources. Note that this total includes two LWAK units limited by system burn constraints. Exclusion of these two units results in a total of 265 independent sources. 112Not included here are total annual government costs. These costs, with or without chlorine control, are approximately $ 0.5 million/ year   113 We are finalizing the incorporation of section § 112( d)( 4) of the Clean Air Act to establish riskbased standards for total chlorine for hazardous waste combustors ( except for hydrochloric acid production furnaces). The low end of this cost range assumes all facilities emit total chlorine levels below risk based levels of concern. Under this scenario, no total chlorine controls are assumed to be necessary. The total engineering cost with chlorine control is estimated at $ 46.7 million/ year.] 130 averaging $ 12,300 per source. On site incinerators and LWAKs will face the lowest engineering costs at $ 10,200 and $ 3,330, respectively. For all Phase I sources ( 141 sources; commercial incinerators, on site incinerators, cement kilns, and lightweight aggregate kilns), total average annualized non market adjusted compliance costs ( including permitting and administrative114) are estimated at $ 39,700 per source. The combined Phase II sources ( 126 sources; solid and liquid fuel fired boilers and hydrochloric acid production furnaces) have total average annualized non market adjusted compliance costs of approximately $ 274,500 per source. Across all sectors covered by today's rule ( Phase I and Phase II sources), total annualized compliance costs were found to average $ 150,500 per source. Private sector engineering costs ( control) costs have also been assessed on a per ton ( U. S.) basis. Captive energy recovery sources ( solid and liquid fuel fired boilers, and hydrochloric acid production furnaces) burned a total of 944,667 tons of hazardous waste in 2003. These facilities are projected to experience the highest average incremental control costs, at approximately $ 37 per ton of waste burned. Commercial energy recovery sources ( cement kilns and LWAKs), burning an estimated 999,076 tons in 2003, are projected to experience average incremental control costs of approximately of $ 3.00 per ton. Captive ( on site) and commercial incinerators burn an estimated 925,828 tons and 447,524 tons per year, respectively. These sources are estimated to experience average incremental engineering costs of $ 2.15 per ton and $ 0.80 per ton, respectively. The aggregate control costs presented in this section do not reflect the anticipated real world cost burden on the economy. Any market disruption, such as the requirements in this final rule, will cause a short term disequilibrium in the hazardous waste burning market, resulting in a natural economic process designed to reach the new market equilibrium. Actual cost impacts to society are more accurately measured by taking into account market adjustments in the targeted industry, plus secondary ( societal) costs. Total market adjusted costs plus secondary costs are commonly termed Social Costs, and are generally less than total engineering costs due to efficiencies implemented during the market adjustment process. Social Costs theoretically represent the total real world costs of all goods and services society must give up in order to gain the added protection to human health and the environment. Social Costs are presented in Part VI of this Section115.

V. What Are the Economic Impacts?

Economic impacts may be measured through several factors. This section presents estimated economic impacts relative to market exits, waste reallocations, and employment impacts. Economic impacts presented in this section are distinct from social costs, which correspond only to the estimated monetary value of market disturbances.

114 See Exhibit 4 3 in the economic assessment background document. 115Beyond the Floor standards were assessed for all floors. These findings are available in Appendix F and G of the engineering background document: See: Final Technical Support Document for HWC MACT Standards, Volume V   Emissions Estimates and Engineering Costs. 131 A. Market Exit Estimates The hazardous waste combustion industry operates in a dynamic market, with systems entering and exiting the market on a routine basis. Our analysis defines " market exit" as ceasing to burn hazardous waste. We have projected post rule hazardous waste combustion system market exits based on economic feasibility only. Social, liability, and informational issues are not incorporated into our market exit analysis. Market exit estimates are derived from a breakeven analysis designed to determine system viability. This analysis is subject to several assumptions, including: cost assumptions concerning the per sector baseline cost of hazardous waste burning, cost estimates for necessary pollution control devices ( including operation and maintenance), prices for combustion services, and estimated waste quantities burned at these facilities. It is important to note that, for most sectors, exiting the hazardous waste combustion market is not equivalent to closing a plant. ( Actual plant closure may occur only in the case of a commercial incinerator closing all systems.) We estimate that 39 systems, representing about 15 percent of the total affected universe, may stop burning hazardous waste in response to the final standards. Approximately 59,000 tons of hazardous waste may be diverted from these closed systems. These estimates assume no chlorine controls are put in place as a direct result of the rule116. Of the estimated 39 market exits, 26 are projected to be onsite incinerators and 8 are liquid fuel boilers. Three commercial incinerator systems may exit the market in response to the final rule. However, these systems are considered economically marginal in the baseline. Two coal fired boiler systems are also projected to exit the market. No cement kilns, lightweight aggregate kilns, or HCl production furnaces are projected to exit the market as a result of the final rule. Market exit estimates were found to be identical when the cost of chlorine control is included in the model.

B. Waste Reallocations Some on site combustion systems ( sources) may no longer be able to cover their hazardous waste burning costs as a result of final rule requirements. These sources are projected to divert or reroute their wastes to different hazardous waste combustion sources ( usually some type of commercial unit) 117. For multiple system facilities, this diversion may include on site ( non commercial) waste consolidation among fewer systems at the same facility. Under current market conditions, non combustion alternatives are generally not economically feasible, and in any case, would normally be unable to achieve the RCRA Land Disposal Restriction Treatment standards, which are based on the performance of combustion technology ( which optimizes destruction of organic HAP).

  116 Even though we are allowing sources ( except hydrochloric acid production furnaces) to invoke § 112( d)( 4) in lieu of MACT chlorine control requirements, we have not attempted to estimate the following: 1) the total number of sources that may elect to implement this provision, and, 2) what level of control may be necessary following a § 112( d)( 4) risk based determination, since this would vary on a site by site basis.

  117 This analysis includes the cost of waste transport to alternative combustion sources, burning fees, and purchase of alternative fuels ( if appropriate). 132 As mentioned above, our economic model indicates that approximately 59,000 tons ( U. S.) of hazardous waste may be reallocated. This figure represents approximately 1.8 percent of the total 2003 quantity of hazardous waste burned at all sources. On site consolidations account for nearly 24 percent ( 13,915 tons) of all diverted waste. Commercial incinerators are projected to receive the vast majority ( 42,722 tons, or 73 percent) of all off site waste reallocations. Cement kilns and LWAKs are projected to receive the remaining reallocation ( 2,289 tons). Currently, there is more than adequate capacity to accommodate all off site hazardous waste diversions.

C. Employment Impacts Today's rule is projected to induce employment shifts across all affected sectors. These shifts may occur as specific combustion facilities find it no longer economically feasible to keep all of their systems running, or to stay in the hazardous waste market at all. When this occurs, workers at these locations may lose their jobs or experience forced relocations. At the same time, the rule is projected to result in positive employment impacts, as new purchases of pollution control equipment stimulate additional hiring in the pollution control manufacturing sector, and as additional staff are required at selected combustion facilities to accommodate reallocated waste and/ or various compliance activities. 1. Employment Impacts  Dislocations ( losses) Employment dislocations in the combustion industry are projected to occur when facilities consolidate waste into fewer systems, or when a facility exits the hazardous waste combustion market altogether. Operation and maintenance labor hours are expected to be reduced for each system that stops burning hazardous waste. For each facility that completely exits the market, employment dislocations may also include supervisory and/ or administrative personnel. Total employment dislocations resulting from implementation of the final standards are estimated at 310 full time equivalent ( FTE) jobs. On site incinerators account for about 62 percent of this total, followed by commercial incinerators ( about 24 percent), and liquid fuel boilers ( about 12 percent). The large number of on site incinerators drives the impacts within this sector. 2. Employment Impacts  Positive In addition to employment dislocations, our analysis indicates that today's rule may also result in positive employment impacts. These positive impacts are projected to occur to both the air pollution control industry and to combustion firms as they hire personnel to accommodate reallocated waste and/ or comply with the various requirements of the rule. Hazardous waste combustion sources are projected to need additional operation and maintenance personnel for the new pollution control equipment and other compliance activities, such as new reporting and record keeping requirements. The total annual positive employment impact associated with the final standards is estimated at 323 FTEs. Positive employment impacts to the air pollution control industry118 are projected at 93 FTEs, or about 29 percent of this total. At 183 jobs,

  118 Manufacturers and distributors of air pollution control devices are projected to increase sales as a result of this action. 133 liquid fuel boilers are projected to experience the greatest positive employment impact among all combustors. While it may appear that our analysis suggests overall net positive employment impacts, such a conclusion would be inappropriate. Because the positive employment impacts and employment dislocations occur in different sectors of the economy, they should not be added together. Doing so would mask important distributional effects of the rule. In addition, these employment estimates reflect within sector impacts only and therefore do not account for potential displacements across sectors. This may occur if investment funds are diverted from other areas of the larger economy.

VI. What Are the Social Costs and Benefits of the Final Rule?

The value of any regulatory action is traditionally measured by the net change in social welfare that it generates. Our economic assessment conducted in support of today's final rule evaluated compliance ( control) costs, and economic impacts, as discussed above. The Assessment also analyzed social costs, benefits, small entity impacts, and other impacts ( e. g., children's health, unfunded mandates). To conduct this analysis, we examined the current combustion market and practices, developed and implemented a methodology for examining compliance and social costs, applied an economic model to analyze industry economic impacts ( discussed above), examined benefits, and followed appropriate guidelines and procedures for examining equity considerations, children's health, and other impacts. The data applied in this analysis were the most recently available at the time of the analysis. Because our data were limited, the findings from these analyses should be more accurately viewed as national estimates.

A. Combustion Market Overview The hazardous waste industry consists of three key segments: hazardous waste generators, fuel blenders/ intermediaries, and hazardous waste burners. Hazardous waste is combusted at four main types of facilities: commercial incinerators, on site incinerators, waste burning kilns ( cement kilns and lightweight aggregate kilns), and industrial boilers. Commercial incinerators are generally larger in size and designed to manage virtually all types of solids, as well as liquid wastes. On site incinerators are more often designed as liquid injection systems that handle liquids and pumpable solids. Waste burning kilns and boilers generally burn hazardous wastes to generate heat and power for their manufacturing processes. As discussed above, we have identified a total of 267 hazardous waste burning sources ( systems) currently in operation in the United States. Liquid fuel boilers account for 104 sources, followed by on site incinerators at 92 sources. Cement kilns, hydrochloric acid production furnaces, and commercial incinerators account for 25, 10, and 15 sources, respectively. Solid fuel boilers and lightweight aggregate kilns make up the remainder, at 12 and nine systems, respectively. These 267 sources are operated at a total of 145 different facilities. A single facility may have one or more combustion systems. Facilities with multiple systems may have different types of hazardous waste burning units. Combustion systems operating at chemical manufacturing facilities ( NAICS 325) were found to account for about 70 percent of the total number of facilities and manage about 58 percent of all hazardous waste burned in 2003. 134 The EPA Biennial Reporting System ( BRS) reports a total demand for all combusted hazardous waste, across all facilities, at 3.32 million tons ( U. S. ton) in 2003. Commercial energy recovery ( cement kilns and lightweight aggregate kilns) burned about 30 percent of this total. Hazardous waste destruction at on site incinerators and commercial incinerators accounted for 28 percent and 13 percent, respectively. Captive energy recovery accounted for the remainder, at 29 percent of the total. About 65 percent of all hazardous waste burned in 2003 was organic liquids. This is followed by solids ( 14 percent), inorganic liquids ( 11 percent), and sludges ( 10 percent). Hazardous gases were found to represent a negligible portion, at about 0.08 percent of the total quantity burned in 2003. In terms of hazardous waste generating sources, the Basic Organic Chemical Manufacturing e sector ( NAICS 325) generated approximately 32 percent of all hazardous waste burned in 2001, followed by pesticides and agricultural chemicals, business services, organic fibers, medicinal chemicals, pharmaceuticals, plastics materials and resins, petroleum, and miscellaneous. Companies that generate large quantities of uniform hazardous wastes generally find it more economical and efficient to combust these wastes on site using their own noncommercial systems. Commercial incineration facilities manage a wide range of hazardous waste streams generated in small to medium quantities by diverse industries. Cement kilns, lightweight aggregate kilns, and boilers derive heat and energy by burning high Btu ( solvents and organics) liquid hazardous wastes. 119 Sometimes these wastes are blended with fossil fuels where system operators choose to not derive all of their energy input from hazardous waste. Regulatory requirements, liability concerns, and economics influence the demand for hazardous waste combustion services. Regulatory forces influence the demand for combustion by mandating certain hazardous waste treatment standards ( land disposal restriction requirements, etc.). Liability concerns of waste generators affect combustion demand because combustion, by destroying organic wastes, greatly reduces the risk of future environmental problems. Finally, if alternative waste management options are more expensive, hazardous waste generators will likely choose to send their wastes to combustion facilities in order to increase overall profitability. Throughout much of the 1980s, hazardous waste combustors enjoyed a strong competitive position and generally maintained a high level of profitability. During this period, EPA regulations helped stimulate a greatly expanded market. In addition, federal permitting requirements, as well as powerful local opposition to siting of new incinerators, constrained the entry of new combustion systems. As a result, combustion prices rose steadily, ultimately reaching record levels in 1987. The high profits of the late 1980s induced many firms to enter the market, in spite of the difficulties and delays anticipated in the permitting and siting process. Hazardous waste markets have changed significantly since the late 1980s. In the early 1990s, substantial overcapacity resulted in fierce competition, declining prices, poor financial performance, numerous project cancellations, system consolidations, and facility closures. Since the mid 1990s, several additional combustion facilities have closed, while many of those that have remained open have consolidated their operations.

  119 Many cement kilns are also able to burn a certain level of non liquid waste 135 Available ( prior to this final rule) excess commercial capacity is currently estimated at about 21 percent of the total 2003 quantity combusted.

B. Baseline Specification Proper and consistent baseline specification is vital to the accurate assessment of incremental costs, benefits, and other economic impacts associated with today's rule. The baseline essentially describes the world absent the rule. The incremental impacts of today's rule are evaluated by predicting post MACT compliance responses with respect to the baseline. The baseline, as applied in this analysis, is the point at which today's rule is promulgated. Thus, incremental cost and economic impacts are projected beyond the standards established in the February 13, 2002 Interim Standards Final Rule.

C. Analytical Methodology and Findings  Social Cost Analysis Total social costs include the value of resources used to comply with the standards by the private sector, the value of resources used to administer the regulation by the government, and the value of output lost due to shifts of resources away from the current market equilibrium. To evaluate these shifts in resources and changes in output requires predicting changes in behavior by all affected parties in response to the regulation, including responses of directly affected entities, as well as indirectly affected private parties. For this analysis, social costs are grouped into two categories: economic welfare ( changes in consumer and producer surplus), and government administrative costs. The economic welfare analysis conducted for today's rule uses a simplified partial equilibrium approach. In this analysis, changes in economic welfare are measured by summing the changes in consumer and producer surplus. This simplified approach bounds potential economic welfare losses associated with the rule by considering two scenarios: compliance costs assuming no market adjustments, and market adjusted compliance costs. The annualized private sector compliance ( engineering) costs of $ 40.2 million, as presented in Section IV, assume no market adjustments. Our best estimate of total social costs incorporates rational market adjustments and all government costs. Under this scenario, increased compliance ( engineering) costs are examined in the context of likely incentives hazardous waste combustion facilities have to continue burning, and the competitive balance in the market. Total annualized market adjusted net private sector costs are estimated at $ 22.1 million120. In addition to the net private sector costs, total annual government costs are approximately $ 0.50 million. Thus, our best estimate of total social costs of this final rule is $ 22.6 million per year.

  120 We are finalizing alternative risk based total chlorine standards for hazardous waste combustors ( except for hydrochloric acid production furnaces). The net private sector costs of $ 22.1 million/ year may be considered a lower bound estimate that assumes facilities emit total chlorine ( TCl) below risk based levels of concern ( i. e., no TCl controls are assumed to be necessary.) Total net private sector market adjusted costs would increase to approximately $ 28.1 million per year if we were to assume all sources were to comply with technology based TCl standards ( as opposed to the risk based standards). 136 The $ 22.1 million figure incorporates a net gain to selected Phase I sources and an estimated $ 3.6 million cost ( price) increase to pre existing customers of commercial hazardous waste combustion facilities. On site incinerators are projected to experience total market adjusted cost increases of approximately $ 1.5 million/ year. All phase II sources account for approximately $ 31.9 million in increased costs. Our economic model indicates that, of the Phase I source categories, commercial incinerators, cement kilns, and LWAKs would experience net gains following all market adjustments. The total net gain for these three source categories is estimated at $ 14.8 million per year. Commercial incinerators would receive about 98 percent of the total gain ($ 14.5 million/ year). Gains to commercial facilities occur due to marginally higher prices, increased waste receipts, and relatively low upgrade costs, when compared to the other sources.

D. Analytical Methodology and Findings  Benefits Assessment This section discusses the monetized and non monetized benefits to human health and the environment potentially associated with today's final rule. Monetized human health benefits are derived from reductions in particulate matter ( PM) and dioxin/ furan exposure, and are based on a Value of Statistical Life ( VSL) estimate of $ 6.2 million121. Non monetized benefits are associated with human health, ecological, and waste minimization factors. 1. Monetized Benefits Total monetized human health benefits for the final standards are estimated to range from $ 5.61 million/ year to $ 6.31 million/ year. This estimate includes human health benefits associated with avoided PM and dioxin/ furans exposure. The range is driven by alternative discount rate assumptions ( no discount rate, 3 percent, or 7 percent) for mortality valuation. PM benefits represent 99 percent of the total monetized human health benefits. Particulate Matter Results from our risk assessment extrapolation procedure122 are used to evaluate incremental human health benefits potentially associated with particulate matter emission reductions from hazardous waste combustion facilities. This analysis applied avoided human health benefits factors from the March 2004 Assessment document123, combined with more recent emissions estimates for particulate matter. Reduced PM emissions are estimated to result in monetized human health benefits of approximately $ 6.29 million per year. This is an undiscounted figure. Avoided PM   121 Monetized benefits associated with avoided premature mortality reflect a VSL range of $ 1.1 million to $ 11.4 million, with a central VSL estimate of $ 6.2 million. These values are derived from willingness to pay based VSL estimates presented in U. S. EPA, Regulatory Impact Analysis for the Final Clean Air Interstate Rule, March 2005   122 Inferential Risk Analysis in Support of Standards for Emissions of Hazardous Air Pollutants from Hazardous Waste Combustors.