[Federal Register Volume 87, Number 188 (Thursday, September 29, 2022)]
[Rules and Regulations]
[Pages 59021-59024]
[FR Doc No: 2022-20858]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2022-0480; FRL-9873-02-R9]

Air Plan Disapproval; California; Antelope Valley Air Quality
Management District and Mojave Desert Air Quality Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to disapprove revisions to the Antelope Valley Air Quality
Management District (AVAQMD) and the Mojave Desert Air Quality
Management District (MDAQMD) portions of the California State
Implementation Plan (SIP) concerning rules submitted to address section
185 of the Clean Air Act (CAA or the Act) with respect to the 1-hour
ozone standard.

DATES: This rule is effective on October 31, 2022.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2022-0480. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available through https://www.regulations.gov, or please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section for additional availability information. If you need assistance
in a language other than English or if you are a person with
disabilities who needs a reasonable accommodation at no cost to you,
please contact the person identified in the FOR FURTHER INFORMATION
CONTACT section.

FOR FURTHER INFORMATION CONTACT: Donnique Sherman, EPA Region IX, 75
Hawthorne St., San Francisco, CA 94105. By phone:<PHONE_NUMBER> or by
email at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to the EPA.

Table of Contents

I. Proposed Action
II. Public Comments and EPA's Responses
III. EPA Action
IV. Statutory and Executive Order Reviews

I. Proposed Action

    On June 17, 2022 (87 FR 36433), the EPA proposed to disapprove the
following rules adopted by the AVAQMD and MDAQMD (collectively, ``the
Districts'') that were submitted for incorporation into the California
SIP.

                                            Table 1--Submitted Rules
----------------------------------------------------------------------------------------------------------------
            Local agency                Rule No.              Rule title              Amended        Submitted
----------------------------------------------------------------------------------------------------------------
AVAQMD                                          315  Federal Clean Air Act              10/18/11        12/14/11
                                                      Section 185 Penalty.
MDAQMD.............................             315  Federal Clean Air Act              10/24/11        12/14/11
                                                      Section 185 Penalty.
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    We proposed to disapprove these rules because some rule provisions
do not satisfy the requirements of section 110 and part D of the Act.
These provisions include the following:
    1. AVAQMD Rule 315 refers to the term ``Major Facility'' as defined
in ``District Rule 1301.'' The current SIP-approved Rule 1301 for
AVAQMD does not contain a definition of ``Major Facility.''
    2. The Districts did not provide a justification for the method
chosen to calculate alternate baseline emissions for facilities with
emissions that are irregular, cyclical, or otherwise vary
significantly, which differs from the method EPA has previously
considered to be generally approvable as explained in the EPA's
guidance.
    3. The rules establish an area-wide equivalency ``Tracking
Account.'' This system requires the cooperation and coordination of
three districts: AVAQMD, MDAQMD, and the South Coast Air Quality
Management District (SCAQMD). Each rule requires the respective Air
Pollution Control Officer (APCO) to request an accounting from the
other Districts, but there is no requirement for the APCO to provide
their accounting to the other Districts. The rules assume accounting
across the three Districts with the same system in place. SCAQMD does
not have a rule that contains the same provisions. As a result, the
area-wide accounting system is not enforceable.
    4. The formula for calculating the penalty fee needs correcting to
properly reflect the inflation adjustment based on the Consumer Price
index.
    Our proposed action and technical support document (TSD) contain
more information on the basis for this disapproval and on our
evaluation of the submitted rules.

II. Public Comments and the EPA's Responses

    The EPA's proposed action provided a 30-day public comment period.
During the comment period we received one comment from the MDAQMD, and
one comment from the AVAQMD.
    Comment 1: AVAQMD commented that, ``the current SIP version of the
AVAQMD New Source Review (NSR) Regulations are those approved for
SCAQMD on December 4, 1996. Of those SIP approved rules, Rule 1302
contains applicable definitions including the term `Major Polluting
Facility.' The AVAQMD and its predecessor agencies has amended and
caused to be submitted to USEPA these rules on several occasions with a
shift of the definitions to Rule 1301 and a slight change in
terminology to `Major Facility.' To avoid confusion on the part of
regulated facilities, cross references need to be to the current rule
book rules. Thus, the deficiency as noted in the TSD in Section 4.b.1.
is not only unavoidable but a direct result of USEPA's inaction on
prior submissions. As USEPA indicates in the TSD this deficiency will
be resolved whenever USEPA acts upon the most current NSR submission.''
    Response 1: As indicated in our TSD associated with our proposed
action, we anticipate that approval of the current locally adopted
versions of AVAQMD Rule 1301 and AVAQMD Rule 1303 into the SIP will
resolve this deficiency. The AVAQMD's comment does not appear to
challenge our proposed action and therefore does not impact our
proposed disapproval.
    Comment 2: The Districts both commented that it would be helpful if
the EPA could ``indicate a potential timeline for action on [their
other section 185 penalty] rules.'' They further mentioned that this
would enable the Districts ``to either amend Rule 315 quickly so that
it can be evaluated with the other FCAA 185 penalty rules or to wait
for EPA to expeditiously identify deficiencies in those other rules''
so they can adjust Rule 315 appropriately.
    Response 2: The CAA outlines the EPA's review process, deadlines,
and timeframes. CAA section 110(k)(2) states that once a submitted plan
or plan revision is determined complete, the EPA shall act on the
submission within 12 months of that determination. We understand that
the Districts would like to streamline their rulemaking efforts. We
will make every effort to keep the Districts informed of the status of
submitted SIP revisions in consideration of local district rulemaking
timelines.
    Comment 3: The Districts both commented that: ``While the Southeast
Desert Modified AQMD was found to have failed to attain the old 1-hour
O3 standard based on 2005-2007 data in 2011 it must be noted
that the area subsequently attained the standard as early as the 2009-
2011 data set. In fact, USEPA noted that such attainment was possible
based on the preliminary review of the 2010-2012 data set in its Notice
of Proposed Rulemaking Determination of Attainment of the 1-Hour Ozone
National Ambient Air Quality Standard in the Southeast Desert
Nonattainment Area in California on August 25, 2014. This attainment
determination was finalized on April 15, 2015. Due to the timing of the
Rule adoption, USEPA's actions and the subsequent attainment
designation the [AVAQMD/MDAQMD] asserts that the provisions of Rule 315
have not been triggered and are unlikely to be triggered in the future
as the 1-hour O3 standard has been fully rescinded.''
    Response 3: The EPA does not agree with the Districts' statement
that the provisions of Rule 315 have not been triggered and are
unlikely to be triggered in the future. To the extent that this comment
is based on the requirement to have a section 185 program for a revoked
national ambient air quality standard (NAAQS), the Districts are
incorrect. To the extent that it is based on the text of the rules
themselves, the EPA does not find support in the text of the rules for
the proposition that the rules require a trigger to become effective.
    As the commenters note, the EPA found that the Southeast Desert
Modified Air Quality Management Area (AQMA) failed to attain the now-
revoked 1-hour ozone standard based on 2005-2007 data in 2011.\1\ In
that action, we explained that although the EPA revoked the 1-hour
ozone standard, to comply with anti-backsliding requirements of the
Act, 8-hour ozone nonattainment areas remain subject to certain
requirements based on their 1-hour ozone classification. Initially, in
our rules to address the transition from the 1-hour to the 8-hour ozone
standard, the EPA did not include the section 185 fee program among the
measures retained as 1-hour ozone anti-backsliding requirements.\2\
However, on December 23, 2006, the United States Court of Appeals for
the District of Columbia Circuit determined that the EPA should not
have excluded these requirements (and certain others not relevant here)
from its anti-backsliding requirements.\3\ As a result, the section 185
major source fee program is maintained as an anti-backsliding measure
for the 1-hour ozone NAAQS in areas that were classified as Severe or
Extreme nonattainment for the 1-hour standard at the time of
revocation.
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    \1\ 76 FR 82133 (December 30, 2011).
    \2\ 69 FR 23951 (April 30, 2004).
    \3\ South Coast Air Quality Management District v. EPA, 472 F.3d
882 (D.C. Cir. 2006) reh'g denied 489 F.3d 1245 (clarifying that the
vacatur was limited to the issues on which the court granted the
petitions for review) (referred to herein as the South Coast case).
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    In our 2011 notice finding that the Southeast Desert Modified AQMA
failed to attain the 1-hour ozone NAAQS, the EPA explained, citing the
South Coast decision, that the rationale for the finding was that
``after revocation of the one-hour ozone standard, the EPA must
continue to provide a mechanism to give effect to the one-hour anti-
backsliding requirements that have been

specifically retained'' and that our finding was ``in keeping with this
responsibility with respect to one-hour anti-backsliding . . . section
185 fee programs.'' \4\ Specifically, we wrote that a consequence of
the finding of failure to attain by the attainment date was ``to give
effect to the section 185 fee requirements to the extent they are not
already in effect'' within the nonattainment areas covered by the
finding, including the Southeast Desert Modified AQMA.\5\ Accordingly,
the districts within the Southeast Desert Modified AQMA are required to
comply with the section 185 fee program requirements.
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    \4\ 76 FR 82133, 82135.
    \5\ Id. at 82136.
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    The Districts note that ``the area subsequently attained the
standard as early as the 2009-2011 data set'' and that ``USEPA noted
that such attainment was possible based on the preliminary review of
the 2010-2012 data set,'' citing our August 25, 2014 proposal \6\ and
April 15, 2015 final \7\ rules titled ``Determination of Attainment of
the 1-Hour Ozone National Ambient Air Quality Standard in the Southeast
Desert Nonattainment Area in California.'' The EPA's determination that
the area attained the standard based on the 2009-2011 data set is a
type of action commonly known as a Clean Data Determination (CDD). The
CDD does not impact the Districts' section 185 obligations. Section 185
of the CAA states that this obligation applies to areas that fail to
attain an ozone NAAQS by the relevant attainment date. Specifically,
section 185 states, ``[e]ach implementation plan revision required
under section 7511a(d) and (e) of this title (relating to the
attainment plan for Severe and Extreme ozone nonattainment areas) shall
provide that, if the area to which such plan revision applies has
failed to attain the national primary ambient air quality standard for
ozone by the applicable attainment date'' major stationary sources in
the nonattainment area must pay section 185 fees (emphasis added). As
discussed above, the EPA has determined that the Southeast Desert
Modified AQMA failed to attain the 1-hour ozone standard by the
November 15, 2007, applicable attainment date.\8\
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    \6\ 79 FR 50574.
    \7\ 80 FR 20166.
    \8\ 76 FR 82133.
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    Furthermore, section 185 of the Act does not provide relief from
fees in the event the EPA subsequently issues a CDD. Section 185
specifically provides that such fees must be paid ``until the area is
redesignated as an attainment area for ozone.'' A Clean Data
Determination is not the same as a redesignation to attainment.\9\
While the statute specifies that redesignation to attainment will
remove the requirement for an area to implement the section 185 fee
requirement, a CDD does not.\10\ Accordingly, our 2015 Determination of
Attainment for the area did not turn off the section 185 obligation,
and that requirement remains active in the Southeast Desert Modified
AQMA.
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    \9\ In order to be redesignated to attainment, the Act requires
that: (1) an area attain the relevant NAAQS, (2) the area have a
fully approved attainment plan, (3) the Administrator determine that
improvement in air quality is due to permanent and enforceable
reductions in emissions, (4) the area have a fully approved
maintenance plan, and (5) the State meet all applicable requirements
for the area under section 110 and Part D of the Act. CAA Sec.
107(d)(2)(E).
    \10\ See 40 CFR 51.918, specifying that a determination that an
ozone nonattainment area has attained a NAAQS suspends certain
requirements, not including the section 185 fee obligation, and that
a subsequent redesignation to attainment would terminate these
requirements. See also Memorandum from John D. Seitz, ``Reasonable
Further Progress, Attainment Demonstration, and Related Requirements
for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air
Quality Standard,'' May 10, 1995 (``Determinations made by EPA that
an area has attained the NAAQS . . . is not equivalent to the
redesignation of the area to attainment.''); 40 CFR 51.1105,
describing the ``redesignation substitute'' procedure that allows
areas that were designated nonattainment for a revoked NAAQS at the
time of revocation to turn off the anti-backsliding requirements (a
petition for review regarding this provision is currently pending
before the Court of Appeals for the District of Columbia in Sierra
Club v. EPA, Case #20-1121).
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    To the extent that the Districts' assertion that ``the provisions
of Rule 315 have not been triggered and are unlikely to be triggered in
the future'' is based on the text of the rules themselves, the EPA does
not see a basis for this claim. If the Districts' comments are meant to
suggest that AVAQMD Rule 315 and MDAQMD Rule 315 have not become
effective or require an event to trigger them in the future, the EPA
does not agree. Rule 315 does not contain any provisions that indicate
that a triggering event is required for them to become effective. Rule
315 ``is applicable to any Facility within the District Portion of the
AQMA which emits or has the potential to emit nitrogen oxides
(NOX) or Volatile Organic Compounds (VOC) in an amount
sufficient to make it a Major Facility'' and ``cease[s] to be
applicable when the AQMA is designated as attaining the one-hour
national ambient air quality standard for ozone.'' As discussed above,
the area has not been redesignated as attaining the 1-hour ozone NAAQS.
No exemption or other provision of the rule suggests that the rule is
not applicable or that the rule must be ``triggered'' in any way.
Accordingly, the EPA does not agree with this aspect of the Districts'
comments.
    The Districts' suggestions that the rules require a triggering
event in order to become effective do not impact our proposed
disapproval because the EPA is proposing to disapprove AVAQMD Rule 315
and MDAQMD Rule 315 on other grounds. The EPA notes that any rule that
may be submitted to address the deficiencies identified in this
rulemaking should not include a future event to trigger applicability
because the attainment date has already passed and the area has failed
to attain.

III. EPA Action

    No comments were submitted that change our assessment of the rules
as described in our proposed action and the associated TSD. Therefore,
as authorized in section 110(k)(3) of the Act, the EPA is finalizing a
disapproval of submitted AVAQMD Rule 315 and MDAQMD Rule 315. As a
result, the offset sanction in CAA section 179(b)(2) will be imposed 18
months after the effective date this action, and the highway funding
sanction in CAA section 179(b)(1) six months after the offset sanction
is imposed. A sanction will not be imposed if the EPA determines that a
subsequent SIP submission corrects the identified deficiencies before
the applicable deadline. In addition to the sanctions, CAA section
110(c) provides that the EPA must promulgate a federal implementation
plan (FIP) addressing any disapproved elements of the SIP within two
years after the effective date of the disapproval unless we approve
subsequent SIP revisions that correct the rule deficiencies. As a
result of the EPA's January 5, 2010 determination that California had
failed to submit the required CAA section 185 fee programs for the 1-
hour ozone NAAQS for certain nonattainment areas (75 FR 232), the EPA
is already subject to a statutory deadline to promulgate a FIP for this
purpose. Note that the submitted rules were adopted by AVAQMD and
MDAQMD, and the EPA's final disapproval does not prevent the local
agencies from enforcing them.

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under
the PRA, because this SIP disapproval does not in-and-of itself create
any new information collection burdens, but simply disapproves certain
state requirements for inclusion in the SIP.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. This SIP
disapproval does not in-and-of itself create any new requirements but
simply disapproves certain state requirements for inclusion in the SIP.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action disapproves pre-existing requirements
under state or local law, and imposes no new requirements. Accordingly,
no additional costs to state, local, or tribal governments, or to the
private sector, result from this action.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.

F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in
Executive Order 13175, because the SIP revision that the EPA is
disapproving would not apply on any Indian reservation land or in any
other area where the EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction, and will not impose substantial direct costs on
tribal governments or preempt tribal law. Thus, Executive Order 13175
does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because this SIP disapproval does not in-and-of
itself create any new regulations, but simply disapproves certain state
requirements for inclusion in the SIP.

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    The state did not evaluate environmental justice considerations as
part of its SIP submittal. There is no information in the record
inconsistent with the stated goals of E.O. 12898 of achieving
environmental justice for people of color, low-income populations, and
indigenous peoples.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).

L. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by November 28, 2022. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: September 21, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.

    Part 52, Chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for Part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart F--California

0
2. Section 52.237 is amended by adding paragraph (c) to read as
follows:

Sec.  52.237  Part D disapproval.

* * * * *
    (c) The following Clean Air Act section 185 fee rules, and the
section 185 program plan element for the specified NAAQS, are
disapproved because they do not meet the requirements of Part D of the
Clean Air Act.
    (1) Antelope Valley Air Quality Management District.
    (i) Rule 315, ``Federal Clean Air Act Section 185 Penalty,''
amended on October 18, 2011, and submitted on December 14, 2011, for
the 1979 1-hour ozone NAAQS.
    (ii) [Reserved]
    (2) Mojave Desert Air Quality Management District.
    (i) Rule 315, ``Federal Clean Air Act Section 185 Penalty,''
amended on October 24, 2011, and submitted on December 14, 2011, for
the 1979 1-hour ozone NAAQS.
    (ii) [Reserved]

[FR Doc. 2022-20858 Filed 9-28-22; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 77, Number 200 (Tuesday, October 16, 2012)]
[Rules and Regulations]
[Pages 63217-63221]
[FR Doc No: 2012-25412]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 121

[Docket No. FAA-2012-0928; Amdt. No. 121-361]
RIN 2120-AK18

Use of Additional Portable Oxygen Concentrators on Board Aircraft

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This action amends the FAA's rules for permitting limited use
of portable oxygen concentrator systems on board aircraft, to allow for
the use of additional portable oxygen concentrator (POC) devices on
board aircraft, provided certain conditions in the SFAR are met. This
action is necessary to allow all POC devices deemed acceptable by the
FAA for use in air commerce to be available to the

traveling public in need of oxygen therapy. Passengers will be able to
carry these devices on board the aircraft and use them with the
approval of the aircraft operator.

DATES: Effective October 31, 2012.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning
this action, contact DK Deaderick, Air Transportation Division, AFS-
200, Flight Standards Service, Federal Aviation Administration, 800
Independence Avenue SW., Washington, DC 20591; telephone<PHONE_NUMBER>;
email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The FAA is authorized to issue this final rule pursuant to 49
U.S.C. 44701. Under that section, the FAA is authorized to establish
regulations and minimum standards for other practices, methods, and
procedures the Administrator finds necessary for air commerce and
national security.

Background

    On July 12, 2005, the FAA published Special Federal Aviation
Regulation 106 (SFAR 106) entitled, ``Use of Certain Portable Oxygen
Concentrator Devices Onboard Aircraft'' (70 FR 40156). SFAR 106 is the
result of a notice the FAA published in July 2004 (69 FR 42324) to
address the needs of passengers who must travel with medical oxygen.
Before publication of SFAR 106, passengers in need of medical oxygen
during air transportation faced many obstacles when requesting service.
Many aircraft operators did not provide medical oxygen service aboard
flights, and those that did often provided service at a price that
travelers could not afford. Coordinating service between operators and
suppliers at airports was also difficult, and passengers frequently
chose not to fly because of these difficulties.
    Medical oxygen technologies approved by the Food and Drug
Administration (FDA) reduce the risks typically associated with
compressed oxygen and provide a safe alternative for passengers who
need oxygen therapy. Numerous manufacturers have developed small
portable oxygen concentrators (POC) that work by separating oxygen from
nitrogen and other gases contained in ambient air and dispensing it in
concentrated form to the user with an oxygen concentration of about
90%. The POCs operate using either rechargeable batteries or, if the
aircraft operator obtains approval from the FAA, aircraft electrical
power.
    In addition, the Pipeline and Hazardous Materials Safety
Administration (PHMSA) has determined that the POCs covered by this
amendment are not hazardous material. Thus, they do not require the
same level of special handling as compressed oxygen, and are safe for
use on board aircraft, provided certain conditions for their use are
met.
    SFAR 106 permits passengers to carry on and use certain POCs on
board aircraft if the aircraft operator ensures that the conditions
specified in the SFAR for their use are met. The devices initially
determined acceptable for use in SFAR 106, published July 12, 2005,
were AirSep Corporation's LifeStyle and Inogen, Inc.'s Inogen One POCs.
SFAR 106 has been amended several times to allow passengers to use
additional devices. This final rule adds additional POC devices,
including AirSep Corporation's Focus, AirSep FreeStyle 5, Inogen One
G3, Inova Labs, Inc.'s LifeChoice Activox, Phillips Respironics Simply
Go, Precision Medical Inc.'s EasyPulse and SeQual Technologies, Inc.'s
SAROS that may be carried on and used by a passenger on board an
aircraft.
    In addition, on January 27, 2012 (77 FR 4219), the FAA published a
Technical Amendment to update the names of two approved POC
manufacturers due to business changes. The LifeChoice POC is currently
being manufactured by Inova Labs, Inc. and the RS-00400 POC is
currently being manufactured by Oxus, Inc. In the technical amendment,
the FAA inadvertently removed the previous manufacturer's names from
the list of approved POCs in SFAR 106. People still have POCs marked
with those manufacturer's names. In this final rule, the FAA will add
those previous manufacturer's names (International Biophysics
Corporation's LifeChoice and Delphi Medical Systems' RS-00400) back to
the list of approved POCs in SFAR 106.
    Aircraft operators can meet certain conditions and allow passengers
to carry on and use one of the POC devices covered in SFAR 106. SFAR
106 is an enabling rule, which means that no aircraft operator is
required to allow passengers to operate these POC devices on board its
aircraft, but it may allow them to be operated on board. If one of
these devices is allowed by the aircraft operator to be operated on
board, the conditions in the SFAR must be met.
    When SFAR 106 was published, the FAA committed to establishing a
single performance standard for all POCs so the regulations wouldn't
apply to specific manufacturers and models of device. Whenever
possible, the FAA tries to regulate by creating performance-based
standards rather than approving by manufacturer. In the case of SFAR
106, the most efficient way to serve both the passenger and the
aircraft operator was to allow the use of the devices determined to be
acceptable by the FAA in SFAR 106 in a special, temporary regulation.
As the FAA stated in the preamble discussion of the final rule that
established SFAR 106, ``while we are committed to developing a
performance-based standard for all future POC devices, we do not want
to prematurely develop standards that have the effect of stifling new
technology of which we are unaware.'' The FAA developed and published
SFAR 106 so passengers who otherwise could not fly could do so with an
affordable alternative to what existed before SFAR 106 was published.
    The FAA continues to pursue the performance-based standard for all
POCs. This process is time-consuming, and the FAA intends to publish a
notice in the Federal Register and offer the public a chance to comment
on the proposal when it is complete. In the meantime, manufacturers
continue to create new and better POCs, and manufacturers have
requested that their product also be included as an acceptable POC in
SFAR 106. Precision Medical, Inc., Inogen, Inc. and AirSep Corporation
have formally submitted petitions for exemption to the FAA that would
allow their POCs to be used on aircraft. In addition, SeQual
Technologies, Inc., Inova Labs, Inc., and Phillips Respironics have
submitted requests for approval and addition to SFAR 106, with all
required documentation for their POCs, to the Department of
Transportation's Docket Management System.
    Additionally, as stated in Section 2 of SFAR 106, no covered device
may contain hazardous materials as determined by PHMSA (written
documentation necessary), and each device must also be regulated by the
FDA. All manufacturers have included technical specifications for their
devices in each request for approval, as well as the required
documentation from PHMSA and the FDA.

The Rule

    This amendment to SFAR 106 will include the AirSep Focus, AirSep
FreeStyle 5, Inogen One G3, Inova Labs LifeChoice Activox, Respironics
Simply Go, Precision Medical EasyPulse and SeQual SAROS devices in the
list of POC devices authorized for use in air commerce. The FAA has
reviewed these devices and accepted the

documentation provided by the manufacturers. That documentation
includes letters provided to the manufacturer by PHMSA and the FDA
affirming the status of the device as it applies to the requirements
stated in SFAR 106. After reviewing the applicable FDA safety standards
and the PHMSA findings, the device was determined by the FAA to be
acceptable for use in air commerce.
    Additionally, in the January 27, 2012 technical amendment to SFAR
106, while updating manufacturer's names due to business changes, the
FAA inadvertently removed the previous manufacturer's names from the
list of approved POCs. Even though these POCs are manufactured under
new manufacturer's names, people still have POCs marked with the
previous manufacturer's names. In this final rule, the FAA will add
those previous manufacturer's names (International Biophysics
Corporation's LifeChoice and Delphi Medical Systems' RS-00400) back to
the list of approved POCs in SFAR 106.

Waiver of Notice of Proposed Rulemaking and Delay in Effective Date

    Section 553 of the Administrative Procedure Act, 5 U.S.C
553(b)(3)(B), provides that, when an agency for good cause finds that
notice and public procedure are impracticable, unnecessary, or contrary
to the public interest, the agency may issue a rule without providing
notice and an opportunity for public comment. We have determined that
there is good cause for making the rule final without prior proposal
and opportunity for comment because the issues related to the use of
POC devices on board aircraft have already been discussed as part of an
earlier rulemaking. More specifically, on July 14, 2004, the FAA issued
a notice of proposed rulemaking on the use of portable oxygen
concentrator devices on board aircraft (69 FR 42324). Then, on July 12,
2005, after reviewing public comments received, the FAA published
Special Federal Aviation Regulation 106 (SFAR 106) entitled, ``Use of
Certain Portable Oxygen Concentrator Devices on Board Aircraft.'' (70
FR 40156) Therefore, it is unnecessary and contrary to the public
interest to publish a notice requesting comments on this amendment.
    Moreover, pursuant to 5 U.S.C.553(d)(3), we find that good cause
exists for making this rule effective in less than 30 days. This rule
is being made effective 15 calendar days after its publication in the
Federal Register to prevent unnecessary delay in acceptance of these
devices as authorized for use on board aircraft by airlines while still
providing airlines adequate notice and time to ensure the devices can
be used safely on board aircraft. We believe, based on information the
Department has received from airlines, that fifteen calendar days is
sufficient amount of time for an airline to ensure/confirm that an FAA-
approved POC does not cause interference with avionics system on that
carrier's aircraft and convey this information to the appropriate
airline personnel in order to accept these devices on board aircraft
for use by passengers who need oxygen therapy for air travel. As such,
the FAA believes that good cause exists for making this rule effective
15 calendar days after its publication in the Federal Register.

Regulatory Notices and Analyses

Regulatory Evaluation

    Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 and Executive Order 13563
directs that each Federal agency shall propose or adopt a regulation
only upon a reasoned determination that the benefits of the intended
regulation justify its costs. Second, the Regulatory Flexibility Act of
1980 (Pub. L. 96-354) requires agencies to analyze the economic impact
of regulatory changes on small entities. Third, the Trade Agreements
Act (Pub. L. 96-39) prohibits agencies from setting standards that
create unnecessary obstacles to the foreign commerce of the United
States. In developing U.S. standards, this Trade Act requires agencies
to consider international standards and, where appropriate, that they
be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform
Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written
assessment of the costs, benefits, and other effects of proposed or
final rules that include a Federal mandate likely to result in the
expenditure by State, local, or tribal governments, in the aggregate,
or by the private sector, of $100 million or more annually (adjusted
for inflation with base year of 1995). This portion of the preamble
summarizes the FAA's analysis of the economic impacts of this final
rule.
    Department of Transportation Order DOT 2100.5 prescribes policies
and procedures for simplification, analysis, and review of regulations.
If the expected cost impact is so minimal that a proposed or final rule
does not warrant a full evaluation, this order permits that a statement
to that effect and the basis for it be included in the preamble if a
full regulatory evaluation of the cost and benefits is not prepared.
Such a determination has been made for this final rule. The reasoning
for this determination follows:
    This action amends SFAR 106 to allow for the use of additional POC
devices on board aircraft, provided certain conditions in the SFAR are
met. This action is necessary to allow additional POC devices deemed
acceptable by the FAA to be available to the traveling public in need
of oxygen therapy, for use in air commerce. When this rule becomes
effective, there will many different POC devices the FAA finds
acceptable for use on board aircraft, and passengers will be able to
carry these devices on board the aircraft and use them with the
approval of the aircraft operator. As the rule increases the number of
acceptable POC devices on board aircraft, the rule does not increase
costs and provides additional benefits. The FAA has, therefore,
determined that this final rule is not a ``significant regulatory
action'' as defined in section 3(f) of Executive Order 12866, and is
not ``significant'' as defined in DOT's Regulatory Policies and
Procedures.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA)
establishes ``as a principle of regulatory issuance that agencies shall
endeavor, consistent with the objectives of the rule and of applicable
statutes, to fit regulatory and informational requirements to the scale
of the businesses, organizations, and governmental jurisdictions
subject to regulation. To achieve this principle, agencies are required
to ``solicit and consider flexible regulatory proposals and to explain
the rationale for their actions to assure that such proposals are given
serious consideration.'' The RFA covers a wide-range of small entities,
including small businesses, not-for-profit organizations, and small
governmental jurisdictions.
    Agencies must perform a review to determine whether a rule will
have a significant economic impact on a substantial number of small
entities. If the agency determines that it will, the agency must
prepare a regulatory flexibility analysis as described in the RFA.
    However, if an agency determines that a rule is not expected to
have a significant economic impact on a substantial number of small
entities, section 605(b) of the RFA provides that the head of the
agency may so certify and a regulatory flexibility analysis is not
required. The certification must include a statement providing the

factual basis for this determination, and the reasoning should be
clear.
    This final rule adds additional POC devices to the list of
authorized POC devices in SFAR 106. This economic impact is minimal.
Therefore, as the Acting FAA Administrator, I certify that this action
will not have a significant economic impact on a substantial number of
small entities.

Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement
assessing the effects of any Federal mandate in a proposed or final
agency rule that may result in an expenditure of $100 million or more
(in 1995 dollars) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a ``significant regulatory action.'' The FAA currently
uses an inflation-adjusted value of $143.1 million in lieu of $100
million. This final rule does not contain such a mandate; therefore,
the requirements of Title II of the Act do not apply.

Paperwork Reduction

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. According to the 1995
amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an
agency may not collect or sponsor the collection of information, nor
may it impose an information collection requirement unless it displays
a currently valid Office of Management and Budget (OMB) control number.
    Information collection requirements associated with this final rule
have been approved previously by the Office of Management and Budget
(OMB) under the provisions of the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)) and have been assigned OMB Control Number 2120-0702.
This final rule requires that if a passenger carries a POC device on
board the aircraft with the intent to use it during the flight, he or
she must inform the pilot in command of that flight. Additionally, the
passenger who plans to use the device must provide a written statement
signed by a licensed physician that verifies the passenger's ability to
operate the device, respond to any alarms, the extent to which the
passenger must use the POC (all or a portion of the flight), and
prescribes the maximum oxygen flow rate. The Paperwork Reduction Act
paragraph in the final rule that established SFAR 106 still applies to
this amendment. The availability of a new POC device will likely
increase the availability and options for a passenger in need of oxygen
therapy, but the paperwork burden discussed in the original final rule
is unchanged. Therefore, the OMB Control Number associated with this
collection remains 2120-0702.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number.

International Compatibility

    In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined that there are no ICAO Standards and Recommended Practices
that correspond to these regulations.

International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal
agencies from establishing standards or engaging in related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to these Acts, the establishment of standards is not
considered an unnecessary obstacle to the foreign commerce of the
United States, so long as the standard has a legitimate domestic
objective, such the protection of safety, and does not operate in a
manner that excludes imports that meet this objective. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards. The FAA has
assessed the potential effect of this final] rule and determined that
it will have only a domestic impact and therefore will not create
unnecessary obstacles to the foreign commerce of the United States.

Environmental Analysis

    FAA Order 1050.1E identifies FAA actions that are categorically
excluded from preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act in the absence of extraordinary circumstances. The FAA has
determined this rulemaking action qualifies for the categorical
exclusion identified in paragraph 312f and involves no extraordinary
circumstances.

Executive Order Determinations

Executive Order 13132, Federalism

    The FAA has analyzed this immediately adopted final rule under the
principles and criteria of Executive Order 13132, Federalism. The
agency determined that this action will not have a substantial direct
effect on the States, or the relationship between the Federal
Government and the States, or on the distribution of power and
responsibilities among the various levels of government, and,
therefore, does not have Federalism implications.

Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use

    The FAA analyzed this immediately adopted final rule under
Executive Order 13211, Actions Concerning Regulations that
Significantly Affect Energy Supply, Distribution, or Use (May 18,
2001). The agency has determined that it is not a ``significant energy
action'' under the executive order and it is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy.

How To Obtain Additional Information

Rulemaking Documents

    An electronic copy of a rulemaking document my be obtained by using
the Internet--
    1. Search the Federal eRulemaking Portal (http://www.regulations.gov);
    2. Visit the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/or
    3. Access the Government Printing Office's Web page at http://www.gpo.gov/fdsys/.
    Copies may also be obtained by sending a request (identified by
notice, amendment, or docket number of this rulemaking) to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW., Washington, DC 20591, or by calling<PHONE_NUMBER>.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires FAA to comply with small entity requests for information
or advice about compliance with statutes and regulations within its
jurisdiction. A small entity with questions regarding this document,
may contact its local FAA official, or the person listed under the FOR
FURTHER INFORMATION CONTACT heading at the beginning of the preamble.
To find out more about SBREFA on the Internet, visit http://

www.faa.gov/regulations--policies/rulemaking/sbre--act/.

List of Subjects in 14 CFR Part 121

    Air carriers, Aircraft, Airmen, Reporting and recordkeeping
requirements.

The Amendment

    In consideration of the foregoing, the Federal Aviation
Administration amends SFAR No. 106 to Chapter I of title 14, Code of
Federal Regulations as follows:

PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL
OPERATIONS

0
1. The authority citation for part 121 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 1153, 40101, 40102, 40103, 40113,
41721, 44105, 44106, 44111, 44701-44717, 44722, 44901, 44903, 44904,
44906, 44912, 44914, 44936, 44938, 46103, 46105.

0
2. Amend SFAR 106 by revising sections 2 and 3(a) introductory text to
read as follows:

Special Federal Aviation Regulation 106--Rules for Use of Portable
Oxygen Concentrator Systems on Board Aircraft

* * * * *
    Section 2. Definitions--For the purposes of this SFAR the following
definitions apply: Portable Oxygen Concentrator: means the AirSep
FreeStyle, AirSep LifeStyle, AirSep Focus, AirSep FreeStyle 5, Delphi
RS-00400, DeVilbiss Healthcare iGo, Inogen One, Inogen One G2, Inogen
One G3, Inova Labs LifeChoice, Inova Labs LifeChoice Activox,
International Biophysics LifeChoice, Invacare XPO2, Invacare Solo2,
Oxlife Independence Oxygen Concentrator, Oxus RS-00400, Precision
Medical EasyPulse, Respironics EverGo, Respironics SimplyGo, SeQual
Eclipse and SeQual SAROS Portable Oxygen Concentrator medical device
units as long as those medical device units: (1) Do not contain
hazardous materials as determined by the Pipeline and Hazardous
Materials Safety Administration; (2) are also regulated by the Food and
Drug Administration; and (3) assist a user of medical oxygen under a
doctor's care. These units perform by separating oxygen from nitrogen
and other gases contained in ambient air and dispensing it in
concentrated form to the user.
    Section 3. Operating Requirements--
    (a) No person may use and no aircraft operator may allow the use of
any portable oxygen concentrator device, except the AirSep FreeStyle,
AirSep LifeStyle, AirSep Focus, AirSep FreeStyle 5, Delphi RS-00400,
DeVilbiss Healthcare iGo, Inogen One, Inogen One G2, Inogen One G3,
Inova Labs LifeChoice, Inova Labs LifeChoice Activox, International
Biophysics LifeChoice, Invacare XPO2, Invacare Solo2, Oxlife
Independence Oxygen Concentrator, Oxus RS-00400, Precision Medical
EasyPulse, Respironics EverGo, Respironics SimplyGo, SeQual Eclipse and
SeQual SAROS Portable Oxygen Concentrator units. These units may be
carried on and used by a passenger on board an aircraft provided the
aircraft operator ensures that the following conditions are satisfied:
* * * * *

    Issued in Washington, DC, on October 2, 2012.
Michael P. Huerta,
Acting Administrator.
[FR Doc. 2012-25412 Filed 10-15-12; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 84, Number 21 (Thursday, January 31, 2019)]
[Notices]
[Pages 690-691]
[FR Doc No: 2019-00453]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. IC19-1-000]

Commission Information Collection Activities (FERC-732); Comment
Request; Extension

AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Notice of information collection and request for comments.

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

SUMMARY: In compliance with the requirements of the Paperwork Reduction
Act of 1995, the Federal Energy Regulatory Commission (Commission or
FERC) is soliciting public comment on the currently approved
information collection FERC-732 (Electric Rate Schedules and Tariffs:
Long-Term Firm Transmission Rights in Organized Electricity Markets)
and submitting the information collection to the Office of Management
and Budget (OMB) for review. Any interested person may file comments
directly with OMB and should address a copy of those comments to the
Commission as explained below. On October 23, 2018, the Commission
published a Notice in the Federal Register in Docket No. IC19-1-000
requesting public comments. The Commission received no public comment.

DATES: Comments on the collection of information are due March 4, 2019.

ADDRESSES: Comments filed with OMB, identified by OMB Control No. 1902-
0245, should be sent via email to the Office of Information and
Regulatory Affairs<EMAIL_ADDRESS>Attention: Federal Energy
Regulatory Commission Desk Officer.
    A copy of the comments should also be sent to the Commission, in
Docket No. IC19-1-000, by either of the following methods:
     eFiling at Commission's Website: http://www.ferc.gov/docs-filing/efiling.asp
     Mail/Hand Delivery/Courier: Federal Energy Regulatory
Commission, Secretary of the Commission, 888 First Street NE,
Washington, DC 20426.
    Instructions: All submissions must be formatted and filed in
accordance with submission guidelines at: http://www.ferc.gov/help/submission-guide.asp. For user assistance, contact FERC Online Support
by email at<EMAIL_ADDRESS>or by phone at:<PHONE_NUMBER>
(toll-free), or<PHONE_NUMBER> for TTY.
    Docket: Users interested in receiving automatic notification of
activity in this docket or in viewing/downloading comments and
issuances in this docket may do so at http://www.ferc.gov/docs-filing/docs-filing.asp.

FOR FURTHER INFORMATION CONTACT: Ellen Brown may be reached by email at
<EMAIL_ADDRESS>telephone at<PHONE_NUMBER>, and fax at (202)
273-0873.

SUPPLEMENTARY INFORMATION:
    Title: FERC-732, Electric Rate Schedules and Tariffs: Long-Term
Firm Transmission Rights in Organized Electricity Markets.
    OMB Control No.: 1902-0245.
    Type of Request: Three-year extension of the FERC-732 information
collection requirement with no changes to the current reporting
requirements.
    Abstract: 18 CFR part 42 provides the reporting requirements of
FERC-732 as they pertain to long-term transmission rights. To implement
section 1233 \1\ of the Energy Policy Act of 2005 (EPAct 2005),\2\ the
Commission requires each transmission organization that is a public
utility with one or more organized electricity markets to make
available long-term firm transmission rights that satisfy each of the
Commission's guidelines.\3\
---------------------------------------------------------------------------

    \1\ 16 U.S.C. 824.
    \2\ 6 U.S.C. 824Q.
    \3\ 18 CFR 42.1(d).
---------------------------------------------------------------------------

    The FERC-732 regulations require that transmission organizations
(that are public utilities with one or more organized electricity
markets) choose one of two ways to file:
     File tariff sheets making long-term firm transmission
rights available that are consistent with each of the guidelines
established by FERC.
     File an explanation describing how their existing tariffs
already provide long-term firm transmission rights that are consistent
with the guidelines.
    Additionally, the Commission requires each transmission
organization to make its transmission planning and expansion procedures
and plans available to the public. FERC-732 enables the Commission to
exercise its wholesale electric rate and electric power transmission
oversight and enforcement responsibilities in accordance with the FPA,
the Department of Energy Organization Act (DOE Act), and EPAct 2005.
    Type of Respondents: Public utility with one or more organized
electricity markets
    Estimate of Annual Burden: \4\ The Commission estimates the total
burden and cost \5\ for this information collection as follows.
---------------------------------------------------------------------------

    \4\ Burden is defined as the total time, effort, or financial
resources expended by persons to generate, maintain, retain, or
disclose or provide information to or for a Federal agency. For
further explanation of what is included in the information
collection burden, refer to 5 CFR 1320.3.
    \5\ FERC staff estimates that industry costs for salary plus
benefits are similar to Commission costs. The cost figure is the
FY2018 FERC average annual salary plus benefits ($164,820/year or
$79/hour).

                   FERC-732--Electric Rate Schedules and Tariffs: Long-Term Firm Transmission Rights in Organized Electricity Markets
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Annual number
                                               Number of       of responses   Total number of  Total annual burden hours & total annual      Cost per
                                              respondents     per respondent     responses                     cost ($)                   respondent ($)
                                                        (1)              (2)  (1) * (2) = (3)  (3) * (4) = (5).........................        (5) / (1)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Public utility with one or more organized                 1                1                1  1,180 hrs.; $93,220.....................          $93,220
 electricity markets.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Comments: Comments are invited on: (1) Whether the collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information will have practical
utility; (2) the accuracy of the agency's estimate of the burden and
cost of the collection of information, including the validity of the
methodology and assumptions used; (3) ways to enhance the quality,
utility and clarity of the information collection; and (4) ways to
minimize the burden of the collection of information on those who are
to respond, including the use of automated collection techniques or
other forms of information technology.

    Dated: January 18, 2019.
Kimberly D. Bose,
Secretary.
[FR Doc. 2019-00453 Filed 1-30-19; 8:45 am]
BILLING CODE 6717-01-P


IEc DRAFT: May 2005 1 To isolate the activities required under the " replacement standards," this analysis assumes that facilities have already completed upgrades required for full compliance with the 2002 Interim Standards.

4 1 COMPLIANCE COST ANALYSIS CHAPTER 4 ______________________________________________________________________________

INTRODUCTION Combustion facilities complying with the hazardous waste combustion ( HWC) maximum achievable control technology ( MACT) replacement standards will likely achieve the required emission reductions by installing new pollution control devices, modifying existing controls already in place, limiting toxics in their waste feed, limiting the total waste feed, or through some combination of the four. In addition, facilities will need to comply with monitoring, reporting, and record keeping requirements that are part of the standards. This chapter of the Assessment focuses on the costs associated with all potential activities necessary to achieve compliance with the HWC MACT replacement standards for both existing facilities and potential new sources. 1 We analyze costs incurred by facilities, as well as costs incurred by various government entities as they administer compliance activities. The chapter is organized into five sections:

Costing Methodology. This section explains our methodology for estimating the compliance costs associated with the emissions controls necessary under the HWC MACT replacement standards. The section also characterizes costs associated with other requirements of the replacement standards, such as permit modifications, testing and analysis, and reporting and record keeping requirements.

Results of Compliance Cost Analysis. The results section presents compliance cost estimates for combustion systems and shows how these costs vary across source categories, assuming all sources choose to comply with the HWC MACT replacement standards. IEc DRAFT: May 2005 4 2

Limitations of the Compliance Cost Analysis. This section describes data limitations and uncertainties that are important to highlight as caveats to the compliance cost analysis.

Government Costs. This section reviews costs for government entities as they administer and enforce the HWC MACT replacement standards.

Summary. We conclude the chapter with a brief review of key findings from the compliance cost analysis.

This chapter presents the costs associated with full compliance with the HWC MACT replacement standards. Because some facilities may decide to stop burning hazardous instead of installing the pollution controls necessary to comply with the standards, the costs presented in this chapter represent a high end estimate of the costs associated with the standards. We discuss how facilities might respond to the HWC MACT replacement standards in Chapter 5.

COSTING METHODOLOGY Total compliance costs for existing hazardous waste combustion facilities will depend on the pollution control measures necessary for compliance at individual facilities and the costs associated with these measures. To estimate these costs, we developed an engineering model that identifies the pollution control technologies required by each individual system. Based on the technologies selected, the model then generates system specific estimates of HWC MACT compliance costs. In addition to these pollution control costs, the model includes other compliance costs associated with monitoring requirements, sampling and analysis, permit modifications, and other record keeping and reporting requirements. Some of these component costs may be specific to individual combustion systems, while others are consistent across all systems within a source category ( e. g., cement kilns) or across the entire HWC MACT universe. Exhibit 4 1 provides an overview of the procedure used in this system specific compliance cost analysis. IEc DRAFT: May 2005 4 3 Exhibit 4 1 OVERVIEW OF SYSTEM SPECIFIC COMPLIANCE COST ANALYSIS Set allowable emissions for HAPs of concern Baseline emissions for actual combustion systems included in the model APCDs currently in place Calculate %

reduction required for each HAP Gas flow rate Total chlorine in feed System type Evaluate what new APCDs or DOMs would be required to achieve the emissions reduction ( accounts for joint control of multiple HAPs)

Estimate HW feed control costs and/ or retrofit costs KEY Input Process/ Calculation Output/ Result NOTES 1. Setting of allowable emissions for hazardous air pollutants ( HAPs) based on MACT analysis using Trial Burn Reports. Baseline emissions also determined using Trial Burn Reports ( measured at the stack) and imputation. See U. S. EPA, Technical Support Document for HWC MACT Standards, Volume II: HWC Database, forthcoming February 2004.

2. All other data inputs from U. S. EPA, Draft Technical Support Document for HWC MACT Standards, Volume II: HWC Database, June 2005.

3. A DOM is a design, operation, or maintenance change to an existing Air Pollution Control Device ( APCD). CEMs are continuous emission monitoring systems.

Add additional compliance costs ( e. g., CEMs, permitting) Total new compliance costs per system Stack moisture Temperature at APCD inlet Select standards IEc DRAFT: May 2005 4 4 IEc DRAFT: May 2005 2 Feed control costs in this analysis are based on the cost of the technology retrofit that would potentially be required to control the pollutant in the absence of feed control. For any given system, we estimate feed control costs by multiplying the cost of the corresponding retrofit technology by the ratio of the emission reduction required by the standards to the emission reduction achievable with the retrofit technology. Since such technologies are generally more expensive per ton of reduced emissions than feed control, the estimates of feed control costs presented in this analysis are upper bound estimates. A more detailed discussion of the feed control cost analysis is found in the U. S. EPA, Draft Technical Support Document for the HWC MACT Standards, Volume V: Emission Estimates and Engineering Costs, June 2005.

4 5 Air Pollution Control Measures The engineering model that we used for this analysis assigns control technologies and their associated costs to individual combustion systems based on a variety of system specific parameters, including system type ( e. g., liquid injection, rotary kiln, coal boiler), gas flow rate, and kiln temperature. The control methods selected may include the installation of new air pollution controls, the modification of existing controls, or hazardous waste feed control ( i. e., limiting the total volume of waste or the amount of toxics in the waste feed). 2 Exhibit 4 2 presents more detail on these options.

A facility's selection of control technologies in response to the HWC MACT replacement standards is likely to depend significantly on the emissions reductions required for compliance with the standards. Therefore, the engineering cost model that we used for the compliance cost analysis compares each system's baseline emissions ( i. e., emissions reflecting full compliance with the 2002 Interim Standards) to its emissions requirements under the HWC MACT replacement standards. For each combustion system, the engineering model subtracts the maximum emissions allowed under the replacement standards from the system's baseline emissions to determine the reduction required for compliance. For example, a liquid boiler with baseline mercury emissions of 15 µ g/ dscm would need to reduce its mercury emissions by 33.3 percent to comply with the corresponding HWC MACT replacement standard of 10 µ g/ dscm.

Percent Emissions Reduction = Baseline Emission Level  MACT Standard Baseline Emission Level = ( 15  10) / 15 = 0.333 = 33.3%. IEc DRAFT: May 2005 4 6 Exhibit 4 2 AIR POLLUTION CONTROL MEASURES ASSIGNED IN COMPLIANCE COST ANALYSIS Pollutant Pollution Control Measures Comments PM, Low Volatile Metals, Semi Volatile Metals C Fabric Filter C Feed Control ( SVM/ LVM only)

C Make improvements to existing control devices Depending on flue gas temperature and other site specific factors, additional flue gas cooling equipment ( e. g., water quench) may be required to integrate the fabric filter into any existing wet scrubbing systems.

HCl and Chlorine C Packed Tower Scrubber C Spray Tower Scrubber C Feed Control C Make improvements to existing control devices Mercury C Carbon Injection/ Carbon Bed C Feed Control Carbon injection must be accompanied by a dry particulate matter ( PM) control device.

Dioxin/ Furan C Temperature Control C Carbon Injection/ Carbon Bed Temperature control applicable only for systems operating at higher temperatures.

Notes: 1. " Draft Technical Support Document for the HWC MACT Standards, Volume V: Emission Estimates and Engineering Costs," U. S. Environmental Protection Agency. June 2005. 2. Control measures assigned in compliance cost analysis include installation of new devices, changes in design, operation, and maintenance ( DOM) to existing devices, or adoption of waste feed control for particular constituents. 3. Controls for CO and hydrocarbons are not presented here because the CO/ HC standards do not require facilities to achieve additional reductions in CO/ HC emissions.

After estimating the percentage reduction in emissions required for compliance, the engineering cost model then identifies the control( s) that most cost effectively achieve( s) the emissions reductions required under the replacement standards. The cost of these measures represent the retrofit costs for the system in question.

Administrative Compliance Costs In addition to the pollution control measures necessary to reduce emissions, combustion systems will also incur costs associated with administrative requirements of the HWC MACT replacement standards. As shown in Exhibit 4 3, these costs total approximately $ 7.4 million annually IEc DRAFT: May 2005 3 There are 141 commercial combustion units in the HWC MACT universe. However, one LWAK facility has four units but just three air pollution control systems. Similarly, another LWAK facility has three units but only two air pollution control systems.

4 Draft Technical Support Document for the HWC MACT Standards, Volume V: Emission Estimates and Engineering Costs, U. S. Environmental Protection Agency. June 2005.

5 There will be additional costs for " problematic" sources ( e. g., those facilities currently not demonstrating compliance with RCRA destruction and reduction efficiency ( DRE) standards). These additional costs are not included in our estimates because they would be incurred absent the HWC MACT replacement standards.

6 This estimate is based on EERGC's communication with several facilities during the preparation of the 1999 Assessment.

4 7 for the 126 boilers and industrial furnace systems and the 139 incinerator and commercial kiln systems in the HWC MACT universe. 3 Boilers and HCl production furnaces incur most of these costs because incinerators and commercial kilns already meet many of these requirements under the 2002 Interim Standards.

$ Performance Testing Requirements: With an annual cost of $ 4.7 million, performance testing requirements represent most of the administrative compliance costs of the HWC MACT replacement standards. 4 These costs reflect stack sampling for metals, PM, dioxins/ furans, total chlorine, and organics under two worst case operating scenarios analyzed once every five years, as required by the standards. 5 $ Permitting and Other Reporting and Record Keeping Requirements: The HWC MACT replacement standards require facilities to complete a number of record keeping and reporting procedures associated with permitting and other compliance activities. These record keeping and reporting procedures apply to both new compliance activities as well as to modifications of existing Clean Air Act ( CAA) and Resource Conservation and Recovery Act ( RCRA) permitting and compliance measures. We estimate that facilities will incur approximately $ 769,000 in reporting and record keeping costs due to the replacement standards.

$ Shutdown Costs: We also investigated the significance of shutdown costs associated with the installation of pollution control equipment or the implementation of other pollution control measures required under the replacement standards. Our examination of facility shutdown periods suggests that facilities could install pollution controls during routine maintenance shutdowns ( which we assume require at least three weeks per year). 6 Because virtually all the technologies that may be adopted in response to the replacement standards have an installation time of three weeks or less, we assume that a facility could install all of its retrofits simultaneously during a single facility shutdown, suggesting that no additional shutdown time will IEc DRAFT: May 2005 4 8 be necessary for most facilities. IEc DRAFT: May 2005 4 9 Exhibit 4 3 SUMMARY OF OTHER COMPLIANCE COST COMPONENTS ( year 2002 dollars)

Compliance Component Annual Cost per Respondent/ Activity Annual Estimated Number of Systems Estimated Total Annual Costsb Incinerators and Commercial Kilnsb Boilers and HCl Production Furnaces Incinerators and Commercial Kilnsa Boilers and HCl Production Furnaces Reading of the Regulations ( See Note 5) $ 750 $ 750 139 126 $ 198,750 Compliance with Standards and General Requirements ( e. g., weekly testing of the automatic waste feed cutoff ( AWFCO) system and operating and maintenance plan) $ 0 $ 2,500 139 126 $ 315,000 Performance Testing Requirements $ 10,000 $ 26,100 139 126 $ 4,678,600 Operator Certification and Training $ 0 $ 3,250 139 126 $ 409,500 Operating and Maintenance Plan $ 0 $ 1,550 139 126 $ 195,300 Notification and General Reporting and Record Keeping Requirements ( e. g., Notice of Intent to Comply ( NIC) with standards) $ 1,000 $ 5,000 139 126 $ 769,000 Startup, Shutdown, and Malfunction Plan $ 0 $ 1,050 139 126 $ 132,300 Feedstream Analysis Plan $ 0 $ 2,800 139 126 $ 352,800 CMS and CEMS Requirements $ 0 $ 2,250 139 126 $ 283,500 Emergency Safety Vent Plan $ 0 $ 150 139 126 $ 18,900 ESTIMATED TOTAL ANNUAL INCREMENTAL IMPACT = $ 7,353,650 Notes: a. Incinerator and commercial kiln costs are lower than boiler and industrial furnace costs because the former already meet many of these requirements under the 2002 Interim Standards.

b. Estimated annual costs are calculated based on the cost per activity multiplied by the estimated number of systems performing each activity per year. Totals may not add due to rounding.

Source: U. S. EPA, Supporting Statement for EPA Information Collection Request # 1773.10 " New and Amended Reporting and Recordkeeping Requirements for National Emissions Standards for Hazardous Air Pollutants from Hazardous Waste Combustors," October 2003. IEc DRAFT: May 2005 4 10 RESULTS OF COMPLIANCE COST ANALYSIS FOR EXISTING SOURCES Excluding administrative costs, we expect that each combustion system on average will spend between approximately $ 3,330 and $ 274,200 annually to comply with the Agency Preferred Approach, as shown in Exhibit 4 4. This variation reflects differences in the replacement standards across source categories. For example, as outlined in Chapter 1, the liquid boiler standard for mercury emissions is 10 µ g/ dscm while the corresponding LWAK standard is 120 µ g/ dscm. In addition, the variation in costs shown in Exhibit 4 4 is consistent with differences in emissions across source categories. Although the LWAK standard for PM is more stringent than the liquid boiler standard, the average LWAK system emits approximately 6,100 pounds of PM per year, while liquid boilers on average emit nearly 49,000 pounds of PM per year. Consequently, compliance costs associated with PM controls are much higher for liquid boilers than for LWAKs. Exhibit 4 4 also shows that costs do not differ significantly between the Option A Floor and the Agency Preferred Approach, which reflects the similarities between these two regulatory options. Exhibits 4 5 and 4 6 present additional detail associated with the results presented in Exhibit 4 4.

Exhibit 4 5 shows the percentage of combustion systems requiring each specific control measures under each MACT option. As shown in Exhibit 4 5, feed control is required by all system types under all four regulatory options. For LWAKs and HCl production furnaces, we anticipate that feed control will be the only control measure necessary to comply with the replacement standards. In addition, we expect that most liquid boilers and cement kilns will implement feed control to limit their emissions under all four versions of the standards. As shown in Exhibit 4 6, feed control also represents a significant portion of system costs. However, because feed control is a relatively inexpensive approach for controlling emissions, feed control costs represent a smaller portion of costs than other technologies adopted by fewer systems. For example, although 21 percent of on site incinerators are expected to use feed control to limit emissions under the Agency Preferred Approach, feed control represents just 6 percent of on site incinerator costs. In contrast, only 9 percent of onsite incinerator systems are expected to install a new quench, but costs associated with this technology represent 24 percent of on site incinerator costs. IEc DRAFT: May 2005 4 11 Exhibit 4 4 AVERAGE COMPLIANCE COSTS PER COMBUSTION SYSTEMa ( Assuming No Market Exit, 2002 dollars)

MACT Option Cement Kilns LWAKs Commercial Incinerators On site Incinerators Liquid Boilers Coal Boilers HCl Production Furnaces Option A Floor $ 113,600 $ 3,330 $ 55,360 $ 14,295 $ 273,879 $ 69,956 $ 16,645 Agency Preferred Approach $ 113,600 $ 3,330 $ 55,360 $ 14,295 $ 274,243 $ 170,246 $ 16,645 Option C Floor $ 253,279 $ 3,330 $ 143,524 $ 50,305 $ 270,869 $ 69,956 $ 16,645 Option D Floor $ 585,607 $ 96,331 $ 143,415 $ 41,930 $ 387,517 $ 69,956 $ 31,250 Notes:

a. Estimates calculated assuming all facilities upgrade to comply with the HWC MACT replacement standards. Estimates do not include permitting and other costs listed in Exhibit 4 3. IEc DRAFT: May 2005 4 12 Exhibit 4 5 PERCENTAGE OF SYSTEMS REQUIRING CONTROL MEASURES Control Measure Option A Floor Agency Preferred Approach Option C Floor Option D Floor Cement Kilns DESP Improvements 48.00% 48.00% 48.00% 68.00% Fabric Filter Improvements 8.00% 8.00% 8.00% 4.00% Feed Control 88.00% 88.00% 92.00% 100.00% Lightweight Aggregate Kilns Feed Control 42.86% 42.86% 42.86% 71.43% Commercial Incinerators DESP Improvements 0.00% 0.00% 0.00% 6.67% Fabric Filter Improvements 46.67% 46.67% 46.67% 53.33% DOM High Energy Wet Scrubber 6.67% 6.67% 6.67% 20.00% Quench 60.00% 60.00% 60.00% 60.00% Feed Control 46.67% 46.67% 93.33% 93.33% Onsite Incinerators Fabric Filter 1.23% 1.23% 1.23% 2.47% DESP Improvements 3.70% 3.70% 3.70% 6.17% Fabric Filter Improvements 75.31% 75.31% 75.31% 69.14% DOM High Energy Wet Scrubber 8.64% 8.64% 8.64% 13.58% Quench 8.64% 8.64% 8.64% 8.64% Feed Control 20.99% 20.99% 75.31% 67.90% Liquid Boilers New Fabric Filter 54.81% 54.81% 54.81% 90.38% Carbon Injection 0.00% 0.96% 0.00% 0.00% DESP Improvements 2.88% 2.88% 2.88% 0.00% Fabric Filter Improvements 0.96% 0.96% 0.96% 1.92% DOM High Energy Wet Scrubber 1.92% 1.92% 1.92% 0.00% Quench 0.96% 0.96% 0.96% 0.96% Feed Control 71.15% 69.23% 69.23% 90.38% Coal Boilers DESP Improvements 41.67% 83.33% 41.67% 41.67% Fabric Filter Improvements 0.00% 16.67% 0.00% 0.00% Feed Control 75.00% 33.33% 75.00% 75.00% HCl Production Furnaces Feed Control 40.00% 40.00% 40.00% 60.00% Note: Percentages in this exhibit are not additive. Each combustion system may require one or more control measures. Source: EERGC Inc., April 2005. IEc DRAFT: May 2005 4 13 Exhibit 4 6 PERCENT OF TOTAL NEW COMPLIANCE COSTS BY CONTROL MEASURE Control Measure Option A Floor Agency Preferred Approach Option C Floor Option D Floor Cement Kilns DESP Improvements 14.84% 14.84% 6.66% 15.72% Fabric Filter Improvements 6.53% 6.53% 2.93% 2.62% Feed Controls 78.62% 78.62% 90.41% 81.66% Lightweight Aggregate Kilns Feed Control 100.00% 100.00% 100.00% 100.00% Commercial Incinerators DESP Improvements 0.00% 0.00% 0.00% 1.05% Fabric Filter Improvements 13.72% 13.72% 5.29% 16.00% DOM High Energy Wet Scrubber 5.36% 5.36% 2.07% 16.43% Quench 70.47% 70.47% 27.18% 27.20% Feed Control 10.44% 10.44% 65.46% 39.32% Onsite Incinerators Fabric Filter 6.36% 6.36% 1.81% 5.32% DESP Improvements 2.37% 2.37% 0.67% 7.26% Fabric Filter Improvements 47.80% 47.80% 13.58% 24.46% DOM High Energy Wet Scrubber 12.71% 12.71% 3.61% 10.95% Quench 24.45% 24.45% 6.95% 8.34% Feed Control 6.31% 6.31% 73.38% 43.67% Liquid Boilers Fabric Filter 45.35% 45.29% 45.85% 54.74% Carbon Injection 0.00% 0.00% 0.00% 0.00% DESP Improvements 1.48% 1.48% 1.50% 0.00% Fabric Filter Improvements 0.07% 0.07% 0.07% 0.05% DOM High Energy Wet Scrubber 0.45% 0.45% 0.45% 0.00% Quench 0.18% 0.46% 0.18% 0.13% Feed Control 52.47% 52.26% 51.94% 45.08% Coal Boilers DESP Improvements 27.19% 59.69% 27.19% 27.19% Fabric Filter 0.00% 26.35% 0.00% 0.00% Feed Control 72.81% 13.96% 72.81% 72.81% HCl Production Furnaces Feed Control 100.00% 100.00% 100.00% 100.00% Source: EERGC Inc., April 2005. IEc DRAFT: May 2005 7 The compliance cost estimates for cement kilns do not take into account the Portland Cement MACT, which addresses non hazardous cement kilns. If the Portland Cement MACT is accounted for in these estimates, the compliance costs for cement kilns under proposed hazardous waste combustion MACT replacement standards would likely be lower.

4 14 Compliance costs vary even more markedly when comparing across individual systems within a given source category. The following compliance cost results for the Agency Preferred Approach illustrate the wide variability across specific combustion systems:

Cement Kilns  Annual per system compliance costs range from $ 0 to $ 718,100 with an average cost of $ 113,600 per system. 7

Commercial Incinerators  Annual per system compliance costs range from $ 14,200 to $ 127,500, with an average cost of $ 55,400 per system.

LWAKs  Annual per system compliance costs range from $ 0 to $ 18,600, with an average cost of $ 3,300 per system.

On Site Incinerators  Annual per system compliance costs range from $ 0 to $ 89,500, with an average cost of $ 14,300 per system.

Liquid Boilers   Annual per system compliance costs range from $ 0 to $ 1,603,700, with an average of $ 274,200 per system.

Coal Boilers   Annual per system compliance costs range from $ 67,700 to $ 315,100, with an average of $ 170,200 per system.

HCl Production Furnaces   Annual per system compliance costs range from $ 0 to $ 130,400, with an average of $ 16,600.

COMPLIANCE COSTS FOR NEW COMBUSTION SOURCES While most of this analysis focuses on the HWC MACT replacement standards for existing sources, this Assessment also evaluates the HWC MACT replacement standards for new facilities constructed or reconstructed after the proposal date of the replacement standards. New sources are not included in the universe of systems included in our compliance cost analysis because systemspecific data are not yet available for these systems. However, we estimate that costs for new sources will be negligible in the short run because very few new combustion sources are expected to go online during the next several years. Of the few sources planned, a significant portion are U. S. Department of Defense incinerators specializing in the treatment of chemical weapons. Since these facilities will IEc DRAFT: May 2005 8 Personal communication with Bruce Springsteen of EERGC, September 16, 2003.

9 For more information on the approach taken for estimating emissions reduction requirements, see U. S. EPA, Draft Technical Support Document for HWC MACT Standards, Volume V: Emissions Estimates and Engineering Costs, June 2005.

4 15 treat waste posing a significant threat to human health, we assume that they will be equipped with state of the art control technologies, even in the absence of the HWC MACT replacement standards. In addition, past experience indicates that most new sources tend to be designed to cost effectively incorporate the most technologically advanced control devices. 8 We therefore assume that new sources will not incur significant costs to comply with the HWC MACT replacement standards.

LIMITATIONS OF THE COMPLIANCE COST ANALYSIS This analysis of compliance costs associated with the HWC MACT replacement standards is limited by a number of uncertainties. The most significant of these uncertainties are as follows:

Available emissions data are limited for some facilities. Emissions data are based on trial burns required of individual combustion systems, but information for some pollutants often is not available. In these cases, the emissions reduction requirements are assigned to systems according to the underlying statistical distribution for each pollutant ( which is based on emissions of the pollutant at facilities where data are available). 9

Due to data limitations with respect to waste feed characteristics, it is difficult to determine the extent to which feed control may be used as a feasible alternative method of compliance with the HWC MACT replacement standards.

As a result of these limitations, individual combustion system decision making may result in actual compliance behavior different than that predicted in the engineering cost model used for this analysis. While uncertainty exists, we do not believe that compliance costs are systematically biased either upward or downward.

ROLE OF SITE SPECIFIC RISK ASSESSMENTS As part of the HWC MACT replacement standards rulemaking, the Agency is explicitly codifying the authority for permit writers to evaluate the need for and, where appropriate, require Site Specific Risk Assessments ( SSRAs). The Agency is also codifying the authority for permit writers to add conditions to RCRA permits that they determine are necessary to protect human health and IEc DRAFT: May 2005 10 The policy regarding site specific risk assessments ( SSRAs) originated as part of EPA's 1994 final Combustion Strategy, and a revised Site Specific Risk Assessment Policy was articulated as part of the 1999 HWC MACT standards rulemaking. EPA provided further clarification of the appropriate use of the SSRA policy and technical guidance in an April 10, 2003 memorandum from Marianne Lamont Horinko, Assistant Administrator for OSWER, to the EPA Regional Administrators titled Use of the Site Specific Risk Assessment Policy and Guidance for Hazardous Waste Combustion Facilities. This document is available in the docket ( Docket # RCRA 2003 0016).

11 EPA estimates that in approximately 33 percent of the cases where there is a need for an SSRA, the permitting authority incurs some or all of the cost of conducting the study.

4 16 the environment based on the results of an SSRA. The intent is to change the regulatory mechanism that is the basis for SSRAs while retaining the same SSRA policy from a substantive standpoint for combustion facilities. 10 SSRAs are currently implemented as part of the RCRA permitting process to address cases in which existing practices and standards ( including MACT standards) may not be fully protective of human health and the environment. The policy recommends that for hazardous waste combustors subject to the replacement standards, permitting authorities should evaluate the need for an SSRA on a case by case basis. While SSRAs are not anticipated to be necessary for every facility, they should be conducted where there is some reason to believe that operation in accordance with the HWC MACT replacement standards alone may not be fully protective of human health and the environment. Should the SSRA demonstrate that supplemental requirements are needed to protect human health and the environment, additional conditions and limitations should be included in the facility's RCRA permit pursuant to the omnibus authority.

Facilities that must conduct an SSRA will incur either a portion of the cost ( i. e., the permitting authority conducts the SSRA) or the entire cost to conduct the risk assessment. 11 This analysis assesses the potential facility level costs of conducting an SSRA under various conditions.

To assess the potential magnitude of these costs, EPA examined typical costs associated with risk assessments conducted in support of SSRAs. Our analysis indicates that the cost of an SSRA for a facility operating under normal conditions is likely to be between$ 157,000 and $ 220,000, including costs associated with the collection of risk data concurrent with a performance burn and the collection of other relevant data. Excluding data collection costs, SSRAs for facilities operating under normal conditions cost approximately $ 84,000. SSRA cost data and public comments received by EPA suggest that the cost of collecting risk data during performance tests is IEc DRAFT: May 2005 12 A risk burn is an emissions test designed to collect data specifically for a site specific risk assessment. However, facilities are often able to obtain the information otherwise gathered through a risk burn during their normally scheduled trial burns, which are tests of facilities' ability to meet the performance standards set forth in the rule.

13 Note that this estimate is considerably less than a cost range provided by the Cement Kiln Recycling Coalition of $ 200,000 to $ 1,000,000 ( with an upper bound of $ 1,300,000). EPA's research suggested that the costs of conducting SSRAs have decreased in recent years. A full comparative discussion of the cost estimates is available in the document Hazardous Waste Combustion MACT  Replacement Standards: Proposed Rule. Preliminary Cost Assessment for Site Specific Risk Assessment, November, 2003, included in the rulemaking docket.

14 A limited number of facilities may need to conduct a full risk burn, which costs approximately $ 286,000, if collecting data during performance testing is not possible.

15 SSRAs under unusual conditions require site specific modeling, extensive interactions with stakeholders and regulators, and targeted ecological analyses. In contrast, for SSRAs under normal conditions, we assume the following: use of previously collected performance burn data, use of standard commercial modeling software consistent with Agency guidance, and limited interaction with state and Federal oversight authorities.

16 Since this initial analysis in 2003, EPA has identified additional facilities to include in the HWC MACT universe that are not included in this number. However, because of anecdotal evidence suggesting that several SSRAs that were in progress in 2003 are now complete, we do not adjust this estimate upward. In addition, this is a high end estimate that includes some facilities for which a final determination has not been reached.

17 Information provided by EPA staff, July 2003.

4 17 approximately 20 40 percent of the cost associated with a full risk burn. 12 Therefore, we estimate that these costs range from $ 57,000 to $ 115,000.13,14 Other data collection costs are between $ 16,000 and $ 22,000 per facility, depending on the level of effort required.

For a limited number of facilities operating under unusual conditions, SSRA costs may be as high as $ 815,000.15 For such facilities, collecting risk data during a performance test may not be feasible or appropriate, in which case these facilities need to conduct a full risk burn, which costs approximately $ 286,000 per facility. We also estimate that facilities operating under unusual conditions will incur $ 41,000 in costs associated with the collection of other data required for an SSRA. In addition, because of the unusual conditions at these facilities, the cost of their SSRA activities other than data collection is approximately $ 488,000 per facility.

Information available from EPA regions suggests that SSRAs are necessary for most hazardous waste combustion facilities. As of July 2003, available data from EPA regions suggested that 98 of the 145 facilities in the HWC MACT universe are either in the process of conducting an SSRA or could be required to conduct one at a later date. 16,17 For these facilities, the total cost of the SSRA process might be affected by the HWC MACT replacement standards. Of the 98 facilities that EPA identified, five are believed to be operating under unusual conditions. IEc DRAFT: May 2005 4 18 IEc DRAFT: May 2005 18 The analysis assumes that the risk assessment will be expensed over five years as a non capital cost.

4 19 While implementation of the HWC MACT replacement standards may reduce the need for SSRAs, it is difficult to project how significant such a reduction may be. Although the replacement standards are generally more stringent than both the Interim Standards and the 1999 Standards, certain conditions may require additional protective measures. For example, thermal emissions standards under the HWC MACT replacement standards, which restrict HAP emissions per unit of energy in the waste feed, will not address the contribution of non hazardous wastes or raw materials to a combustor's total emissions. SSRAs may continue to be needed in some cases to address these emissions. In addition, certain site specific factors or circumstances beyond the standards themselves may affect the decision to require an SSRA for an individual combustor. For example, a source's close proximity to a water body or an endangered species habitat, or to sensitive populations with potentially different exposure pathways, such as Native Americans, will likely influence a permitting authority's decision of whether an SSRA is necessary.

To estimate SSRA implementation costs, we assume that all 98 of the facilities in the universe that have not yet completed an SSRA will do so in the future. Assuming average facility level SSRA costs of $ 157,000$ 220,000 for facilities operating under normal conditions and $ 815,000 for facilities operating under unusual conditions, the completion of 98 SSRAs would cost between $ 18.6 million and $ 24.6 million, annualized to roughly $ 4.5$ 6.0 million per year over five years, assuming a seven percent discount rate. 18 In addition, some facilities may be required to implement permit requirements more stringent than those required under the replacement standards. However, a screening level comparison by EPA regional staff suggests that the Agency Preferred Approach for the HWC MACT replacement standards is generally as stringent as requirements under SSRAs. This, in turn, may indicate that the HWC MACT replacement standards might reduce the need to conduct SSRAs in the future.

It is important to note that the SSRA cost estimates presented here are not included in the cost estimates presented in Chapter 5. In addition, to the extent that the replacement standards reduce the number of facilities requiring an SSRA, the estimates presented above may overestimate total SSRA costs.

GOVERNMENT COSTS In addition to the private sector, the HWC MACT replacement standards will also affect EPA and other government entities. As government agencies administer and enforce the replacement standards, they will incur costs associated with permitting, inspections, and other activities. This section reviews government costs associated with the replacement standards' permitting and reporting requirements. New government costs under the replacement standards will include only those costs associated with the regulation of boilers and HCl production furnaces, as incinerators, cement kilns, and LWAKs are already regulated under the 2002 Interim Standards. IEc DRAFT: May 2005 19 Sources: U. S. EPA, Supporting Statement for EPA Information Collection Request # 1773.10 " New and Amended Reporting and Recordkeeping Requirements for National Emissions Standards for Hazardous Air Pollutants from Hazardous Waste Combustors," October 2003.

4 20 The government costs resulting from the HWC MACT replacement standards are mainly associated with the review of permits and other combustion facility documents required by provisions of RCRA and the CAA. Facility documents that require agency review include the following: performance test plans, emergency safety valve ( ESV) and automatic waste feed cutoff ( AWFCO) violation reports, and notices of intent to comply ( NIC) with the standards. Exhibit 4 7 presents the total annual government costs for reviewing these documents. 19 These figures represent annual costs expended over the first three years following rule promulgation. Overall, government costs are projected to be approximately $ 503,244 per year. EPA as well as state and local agencies that hold relevant permitting responsibilities will incur these costs. The distribution of costs across different government entities depends largely on the way in which different agencies share responsibility for permitting.

Exhibit 4 7 SUMMARY OF HWC MACT REPLACEMENT STANDARDS' INCREMENTAL COSTS TO GOVERNMENTa ( 2002 dollars)

HWC MACT Component Annual Cost per Respondent/ Activity Annual Estimated Number of Systems Estimated Total Annual Costsb Review of Compliance with Standards and General Requirements ( e. g., review of operator training and certification programs) $ 507 126 $ 63,882 Review of Performance Testing Requirements $ 1,161 126 $ 146,286 Review of Monitoring Requirements ( e. g., review of feedstream analysis plans) $ 734 126 $ 92,484 Review of Notification, General Reporting and Record Keeping Requirements ( e. g., review of Notice of Intent to Comply ( NIC) $ 1,592 126 $ 200,595 ESTIMATED TOTAL ANNUAL INCREMENTAL IMPACT = $ 503,244 Notes: a. No government costs are associated with facilities regulated by the 2002 Interim Standards. Government costs are only associated with boilers and industrial furnaces. Estimates reflect only the first three years following the promulgation of the MACT replacement standards, the time period covered by the Information Collection Requests ( ICRs), and are based on a universe of approximately 172 HWC potential respondents or facilities. b. Totals may not add due to rounding. Source: Estimates from U. S. EPA, Supporting Statement for EPA Information Collection Request # 1773.10 " New and Amended Reporting and Recordkeeping Requirements for National Emissions Standards for Hazardous Air Pollutants from Hazardous Waste Combustors," October 2003. IEc DRAFT: May 2005 4 21 IEc DRAFT: May 2005 4 22 SUMMARY To comply with the HWC MACT replacement standards, individual combustion systems will incur costs associated with new pollution control measures, performance testing, permitting, and other requirements. We estimated these costs with an engineering model that identified the least cost compliance strategy for each combustion system and estimated system specific costs based on the unit costs of technologies included in each system's compliance strategy. The major findings of our analysis of these and other costs include the following:

Average per system costs associated with the HWC MACT replacement standards are highest for liquid boilers across all four regulatory options considered in this chapter. Per system costs are lowest for LWAKs. Under the Agency Preferred approach, per system costs for these systems are approximately $ 3,300, compared to $ 274,200 for liquid boilers.

Feed control is expected to be the most widely used emissions control measure for complying with the replacement standards.

Changes in record keeping and reporting activities associated with new compliance requirements and permit modifications result in total costs of about $ 7.4 million across all combustion facilities per year. The majority of these costs are associated with boilers and industrial furnaces; incinerators and commercial kilns generally perform these activities to comply with the 2002 Interim Standards.

Government administrative costs, borne primarily by EPA offices and state environmental agencies, total approximately $ 503,000 per year.

These cost estimates form the basis for assessing the social costs and other economic impacts of the rule in Chapter 5.