IEc
DRAFT:
May
2005
7­
1
EQUITY
CONSIDERATIONS
AND
OTHER
IMPACTS
CHAPTER
7
_________________________________________________________________________________

As
required
by
applicable
statutes
and
executive
orders,
EPA
must
complete
an
analysis
of
equity
considerations
and
other
regulatory
concerns
associated
with
the
hazardous
waste
combustion
(
HWC)
maximum
achievable
control
technology
(
MACT)
replacement
standards.
This
chapter
is
divided
into
several
sections
that
assess
the
potential
impacts
of
the
rulemaking
with
respect
to
the
following
issues:

$
Regulatory
flexibility:
focuses
on
the
potential
effects
of
the
rulemaking
on
small
entities;

$
Environmental
justice:
considers
potential
issues
for
minority
and
lowincome
populations
residing
near
combustion
facilities;

$
Children's
health
protection:
examines
the
potential
impact
of
the
HWC
MACT
replacement
standards
on
the
health
of
children
exposed
to
emissions
from
combustion
facilities;

$
Joint
impacts
of
other
EPA
rules:
discusses
how
other
rules
together
with
the
HWC
MACT
replacement
standards
will
likely
affect
the
universe
of
facilities
regulated
by
the
standards;

$
Unfunded
mandates:
examines
the
implications
of
the
replacement
standards
with
respect
to
unfunded
mandates;

$
Tribal
governments:
extends
the
discussion
of
federal
unfunded
mandates
to
include
impacts
on
Native
American
tribal
governments
and
their
communities;

$
Federalism:
considers
potential
issues
related
to
state
sovereignty;
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DRAFT:
May
2005
1
Small
entities
include
small
businesses,
small
governments,
and
small
nonprofit
organizations.

2
The
size
eligibility
provisions
and
standards
identified
by
the
Small
Business
Administration
(
SBA)
can
be
found
in
13
CFR
121.201,
revised
as
of
January
1,
2005.
Additional
revisions
implemented
during
2005
do
not
affect
the
size
eligibility
requirements
for
any
of
the
industries
included
in
this
assessment.

7­
2
$
Regulatory
takings:
discusses
the
potential
for
regulatory
takings
to
occur
under
the
auspices
of
the
HWC
MACT
replacement
standards;

$
Energy
Impacts:
examines
the
impacts
of
the
HWC
MACT
replacement
standards
on
energy
use,
supply,
and
distribution;

$
Civil
Justice:
considers
steps
taken
to
minimize
litigation,
eliminate
ambiguity,
and
reduce
burden
associated
with
the
HWC
MACT
replacement
standards;

$
Facilitation
of
Cooperative
Conservation:
discusses
implementation
of
the
HWC
MACT
replacement
standards
in
a
manner
that
promotes
"
cooperative
conservation"
among
the
Departments
of
the
Interior,
Agriculture,
Commerce,
and
Defense
and
the
Environmental
Protection
Agency.

In
addition,
this
chapter
addresses
a
limited
number
of
other
impacts
associated
with
the
standards.

ASSESSMENT
OF
SMALL
ENTITY
IMPACTS
The
Small
Business
Regulatory
Enforcement
Fairness
Act
(
SBREFA)
of
1996
requires
federal
agencies
to
consider
impacts
on
"
small
entities"
throughout
the
regulatory
process.
1
Under
these
laws,
agencies
must
analyze
regulations
to
determine
if
they
will
have
a
"
significant
economic
impact
on
a
substantial
number"
of
small
entities.
If
a
regulation
is
found
to
have
a
significant
impact
on
a
substantial
number
of
small
entities,
further
analysis
must
be
performed
to
determine
what
can
be
done
to
lessen
the
impact.
This
section
summarizes
whether
the
HWC
MACT
replacement
standards
will
adversely
impact
small
entities;
Appendix
H
contains
the
full
assessment.

The
first
step
in
screening
facilities
for
potential
impacts
is
to
identify
those
combustion
facilities
that
are
small
businesses.
The
two
factors
that
determine
whether
a
facility
(
or
its
parent
company)
is
considered
a
small
business
are
the
size
of
its
workforce
and
the
revenues
associated
with
its
annual
sales.
The
Small
Business
Administration
(
SBA)
determines
the
level
at
which
a
business
is
considered
small
for
each
North
American
Industrial
Classification
System
(
NAICS)
code.
2
After
identifying
small
businesses
in
the
HWC
MACT
universe,
we
calculate
site­
specific
compliance
costs
associated
with
the
HWC
MACT
replacement
standards
as
a
percentage
of
annual
gross
revenue;
we
IEc
DRAFT:
May
2005
3
Corporate
entity
data
obtained
from
ReferenceUSA,
Dun
and
Bradstreet,
company
websites,
and
company
financial
documents.

4
These
estimates
are
based
on
combustion
pricing
and
alternative
fuel
costs
and
reflect
a
conservative
assumption
that
cement
kilns
and
LWAKs
would
use
coal
as
an
alternative
fuel,
which
is
less
expensive
than
natural
gas.
Combustion
prices
are
from
the
Hazardous
Waste
Resource
Center
at
<
www.
etc.
org/
costsurvey8.
cfm>
and
alternative
fuel
pricing
information
is
from
U.
S.
Department
of
Energy,
Energy
Information
Administration,
"
Quarterly
Coal
Report
October­
December
2004,"
March
2005.

7­
3
use
this
figure
as
the
basis
for
our
assessment
of
small
entity
impacts.
This
is
a
conservative
approach
primarily
because
it
relies
on
an
upper­
bound
estimate
of
engineering
costs
that
assumes
all
facilities
upgrade
to
comply
with
the
standards,
regardless
of
cost
(
as
opposed
to
the
market­
adjusted
estimate
of
social
costs,
which
reflects
facilities'
selection
of
less
costly
waste
management
options,
if
feasible).
In
addition,
the
analysis
assumes
that
commercial
facilities
do
not
attempt
to
offset
their
costs
by
increasing
their
prices.
In
practice,
commercial
combustion
facilities
might
mitigate
their
own
compliance
costs
by
increasing
prices.
Similarly,
non­
commercial
facilities
may
mitigate
compliance
costs
by
changing
their
waste
management
practices
(
e.
g.,
send
waste
offsite)
rather
than
upgrading
their
facilities.

Given
the
capital
intensity
of
cement
production,
commercial
incineration,
and
many
of
the
industries
(
e.
g.,
chemicals)
that
own
and
operate
on­
site
incinerators,
boilers,
and
hydrochloric
acid
production
furnaces
(
HAPFs),
it
is
not
surprising
that
few
hazardous
waste
combustion
facilities
meet
the
definition
of
a
small
business.
Among
the
145
facilities
in
the
HWC
MACT
universe,
only
eight
are
owned
by
or
are
classified
as
small
businesses
(
Exhibit
7­
1).
Four
of
these
facilities
are
liquid
boilers,
two
are
on­
site
incinerators,
one
is
a
cement
kiln,
and
one
is
a
lightweight
aggregate
kiln
(
LWAK).
Three
of
the
eight
facilities
are
part
of
larger
corporations
(
e.
g.,
they
have
parent
companies,
subsidiaries,
affiliates,
or
additional
branches)
and
annual
sales
for
the
eight
facilities
and
affiliated
corporate
entities
range
from
approximately
$
49
million
to
$
996
million.
3
Complete
information
was
not
available
on
the
size
of
one
non­
U.
S.
parent
company,
3V
Incorporated,
which
was
therefore
assumed
to
be
small.

Under
the
Agency
Preferred
Approach,
none
of
the
small
hazardous
waste
combustion
facilities
are
likely
to
incur
costs
greater
than
one
percent
of
sales
(
Exhibit
7­
1).
We
conclude
that
neither
a
substantial
number
of
facilities
nor
a
substantial
fraction
of
the
affected
industries
will
face
significant
adverse
impacts.
In
addition,
for
the
cement
kiln
and
LWAK
facilities,
estimated
compliance
costs
may
be
offset,
at
least
partially,
by
revenues
and
fuel
savings
associated
with
waste
received
from
boilers
and
industrial
furnaces
that
stop
burning
hazardous
waste
in
response
to
the
HWC
MACT
replacement
standards.
The
combined
revenues
and
fuel
savings
associated
with
this
additional
waste
range
from
$
223
per
ton
to
$
1,140
per
ton
(
in
year
2002
dollars),
depending
on
the
specific
characteristics
of
the
waste.
4
Taking
these
savings
into
account,
our
model
predicts
that
systems
at
just
two
of
the
small
hazardous
waste
combustion
facilities
will
exit
the
hazardous
waste
market
in
response
to
the
replacement
standards,
indicating
that
offsite
waste
management
costs
for
IEc
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May
2005
7­
4
these
systems
are
likely
to
be
less
than
their
potential
compliance
costs.
In
summary,
this
analysis
indicates
that
the
HWC
MACT
replacement
standards
would
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
hazardous
waste
combustion
facilities.

SMALL
ENTITY
ANALYSIS
RESULTS
Facility
Name/
Parent
Companya
EPA
ID
Combustor
Type
Corporate
Entity
Annual
Salesb
(
dollars)
Total
Compliance
Costs
(
Agency
Preferred
Approach)
c
(
dollars)
Costs
As
a
Percentage
of
Sales
(
CPS)

Reilly
Industries,
Inc.
IND000807107
Liquid
Boiler
$
329,600,000
$
431,500
0.13%

Rubicon,
Inc.
LAD008213191
Liquid
Boiler
$
465,000,000
$
715,100
0.15%

Continental
Cement
Company
MOD054018288
Cement
Kiln
$
52,400,000
$
65,600
0.13%

Thermalkem
(
Norlite);
subsidiary
of
United
Oil
Recovery
NYD080469935
LWAK
$
51,300,000
$
28,200
0.05%

3V,
Inc.
d
SCD980500052
Liquid
Boiler
$
62,600,000
$
121,100
0.19%

Velsicol
Chemical
Corporation
TND007024664
On­
Site
Incinerator
$
150,000,000
$
17,300
0.01%

Resolution
Performance
Products
LAD980622104
On­
Site
Incinerator
$
996,000,000
$
41,700
0.00%

Merisol
USA,
LLC
TXD008106999
Liquid
Boiler
$
67,300,000
$
286,600
0.43%

Notes:
a
Except
in
the
case
of
Norlite,
the
name
of
each
facility's
parent
company
is
the
same
as
the
name
of
the
facility
itself.
b
Corporate
entity
data
obtained
from
ReferenceUSA,
Dun
and
Bradstreet,
company
websites,
and
company
financial
documents.
c
Compliance
costs
represent
upper­
bound
engineering
costs
that
assume
facilities
upgrade
to
comply
with
standards.
d
3V,
Incorporated
is
an
Italian­
owned
company
with
facilities
in
the
United
States,
Italy,
and
several
other
countries.
Employment
in
the
U.
S.
is
at
least
270
people,
and
overall
employment
worldwide
is
likely
over
500
people
(
the
small
business
size
threshold).
However,
we
included
this
facility
as
a
small
business
because
we
were
unable
to
confirm
its
total
employment.
Available
sales
data
are
for
the
single
facility
in
South
Carolina.
IEc
DRAFT:
May
2005
5
As
stated
in
Executive
Order
12898,
a
minority
is
an
individual
who
is
a
member
of
one
of
the
following
population
groups:
American
Indian
or
Alaskan
Native;
Asian
or
Pacific
Islander;
Black,
not
of
Hispanic
origin;
or
Hispanic.

6
The
HWC
MACT
replacement
standards
may
yield
disproportionate
employment
impacts
for
minority
and
low­
income
populations.
Because
Executive
Order
12898
does
not
address
these
impacts,
we
do
not
assess
the
distribution
of
employment
gains
and
losses
associated
with
the
replacement
standards.

7
We
analyze
minority
and
low­
income
populations
at
the
"
block
group"
level,
the
most
specific
data
available,
because
it
best
illustrates
changes
in
minority
populations
between
one
and
five
miles
from
facilities.
We
use
"
block"
level
data
for
Puerto
Rico
minority
populations
since
block
group
level
data
is
not
available
for
the
Commonwealth.

8
The
available
U.
S.
Census
2000
block
and
block
group
level
data
do
not
provide
the
race
of
individuals
of
Hispanic
origin.
Likewise,
they
do
not
differentiate
between
Hispanic
and
non­
Hispanic
White
populations.
Therefore
we
calculate
minority
populations
as
follows:
first,
we
sum
the
populations
of
Black,
American
Indian
or
Alaskan
Native,
Asian,
Hawaiian
or
Pacific
Islander,
and
multi­
racial
individuals
as
well
as
individuals
of
other
races.
Next,
we
multiply
the
number
of
individuals
of
Hispanic
origin
by
47.89
percent,
the
percentage
of
Hispanic
individuals
nationwide
that
are
White,
before
adding
this
population
to
the
total
minority
population
in
order
to
prevent
the
doublecounting
of
non­
White
individuals
of
Hispanic
origin
and
thus
overestimate
minority
populations.
The
minority
population
percentage
equals
the
total
minority
population
divided
by
the
total
population
in
a
given
area.

9
To
analyze
low­
income
populations,
we
use
data
from
table
P87
of
the
U.
S.
Census
2000.
Table
P87
provides
information
on
the
total
number
of
individuals
living
below
100%
of
the
Federal
Poverty
Level
in
1999,
based
on
the
Social
Security
Administration's
official
poverty
definition.
Poverty
thresholds
vary
according
to
family
size
and
ages
of
members
and
are
updated
annually
for
inflation
using
the
Consumer
Price
Index
for
All
Urban
Consumers.
The
same
thresholds
are
used
throughout
the
United
States.

10
ArcMap
version
9.0
GIS
software,
produced
by
ESRI,
Inc.

7­
5
ENVIRONMENTAL
JUSTICE
ANALYSIS
Executive
Order
12898,
"
Federal
Actions
to
Address
Environmental
Justice
in
Minority
Populations
and
Low­
Income
Populations"
(
February
11,
1994),
requires
federal
agencies
to
identify
disproportionately
large
and
adverse
human
health
or
environmental
effects
of
their
programs,
policies,
and
activities
on
minority
and
low­
income
populations.
5
Among
other
actions,
the
agencies
are
directed
to
improve
research
and
data
collection
regarding
health
and
environmental
effects
in
minority
and
low­
income
communities.
6
To
comply
with
this
executive
order,
we
assess
whether
the
HWC
MACT
replacement
standards
will
have
disproportionate
effects
on
minority
or
low­
income
populations.
We
analyze
minority
and
low­
income
populations
living
within
one
and
five­
mile
radii
of
hazardous
waste
combustion
facilities
using
2000
U.
S.
Census
Bureau
block
and
block
group
level
data
and
ArcMap
version
9.0.7,8,9,10
We
compare
the
percentages
of
minority
individuals
and
low­
income
populations
living
in
proximity
to
the
different
types
of
facilities
to
national
averages.
Due
to
the
concentration
of
combustion
facilities
in
the
Gulf
region
(
34
percent
of
facilities
in
the
HWC
MACT
universe
are
IEc
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May
2005
7­
6
located
in
Louisiana
and
Texas),
we
also
assess
minority
and
low­
income
populations
living
within
one
and
five­
mile
radii
of
combustion
facilities
in
Louisiana
and
Texas,
since
these
individuals
are
more
likely
to
be
exposed
to
emissions
from
multiple
facilities.

Our
analysis
of
the
demographic
data
yields
several
important
findings
with
respect
to
the
environmental
justice
impacts
of
the
HWC
MACT
replacement
standards:

$
Minority
populations
living
in
close
proximity
to
combustion
facilities
may
realize
environmental
and
health
benefits
as
a
result
of
the
HWC
MACT
replacement
standards.
In
general,
hazardous
waste
combustion
facilities
are
likely
to
be
located
in
areas
with
disproportionately
high
minority
populations.
On­
site
incinerators,
boilers,
and
hydrochloric
production
furnaces,
the
most
prevalent
facilities
in
the
HWC
MACT
universe,
are
located
in
areas
where
the
concentration
of
minorities
is
higher
than
the
national
average.
Commercial
incinerators,
cement
kilns,
and
LWAKs
are
located
in
areas
with
a
disproportionately
low
concentration
of
minorities,
but
these
facilities
represent
only
19
percent
of
the
facilities
in
the
combustion
universe.

$
Low­
income
populations
may
realize
a
significant
portion
of
the
environmental
and
health
benefits
associated
with
implementation
of
the
HWC
MACT
replacement
standards.
The
poverty
rate
in
areas
within
one
mile
of
hazardous
waste
combustion
facilities
is
higher
than
the
nationwide
average
of
12.86
percent.
Among
people
living
within
one
mile
of
boilers
and
HAPFs,
26.08
percent
are
below
the
Social
Security
Administration's
poverty
threshold.
Among
those
living
within
one
mile
of
on­
site
incinerators,
19.55
percent
are
below
the
poverty
threshold.
Further
away
from
hazardous
waste
combustion
facilities,
the
poverty
rate
tends
to
decline.
However,
within
a
five­
mile
radius,
the
reductions
are
small
and,
overall,
the
poverty
rate
among
individuals
in
these
areas
is
still
above
the
national
average.

$
The
minority
and
low­
income
populations
living
in
close
proximity
to
hazardous
waste
combustion
facilities
in
Louisiana
and
Texas
stand
to
benefit
from
the
HWC
MACT
replacement
standards.
The
minority
and
low­
income
populations
in
these
areas
are
disproportionately
high.

$
The
HWC
MACT
replacement
standards
should
not
have
any
adverse
environmental
or
health
effects
on
minority
or
low­
income
populations.
Any
impacts
that
the
rule
has
on
these
populations
are
likely
to
be
positive
because
it
would
potentially
reduce
emissions
from
combustion
facilities
near
minority
and
low­
income
populations.

We
further
discuss
these
findings
and
our
analytical
methodology
in
the
remainder
of
this
section.
IEc
DRAFT:
May
2005
7­
7
Approach
Our
environmental
justice
analysis
relies
on
demographic
data
to
assess
potential
environmental
and
health
impacts
for
minority
and
low­
income
populations.
While
a
risk
assessment
would
be
the
preferred
way
to
determine
these
impacts,
the
necessary
resources
were
not
available
to
complete
such
an
analysis.
Instead,
we
assess
the
environmental
justice
impacts
of
the
HWC
MACT
replacement
standards
by
examining
demographic
data
using
a
"
potentially
exposed
population"
approach.

Using
this
approach,
we
analyze
the
characteristics
of
the
population
exposed
to
emissions
from
combustion
facilities,
based
on
population
data
for
the
area
surrounding
each
facility.
For
our
analysis
of
minority
impacts,
we
identify
the
total
population
and
the
minority
population
living
within
one
and
five
miles
of
each
combustion
facility.
We
then
sum
these
data
across
facilities
to
derive
nationwide
estimates
of
the
total
population
living
within
one
and
five
miles
of
a
combustion
facility
and
the
total
minority
population
living
in
the
same
areas.
To
determine
whether
the
number
of
minorities
living
in
close
proximity
to
a
combustion
facility
is
disproportionately
high
(
or
low),
we
then
divide
the
minority
population
figure
by
the
total
population
figure
and
compare
the
result
to
the
prevalence
of
minorities
(
in
percentage
terms)
at
the
national
level.

We
follow
the
same
procedure
for
our
analysis
of
low­
income
populations.
However,
we
use
data
for
a
sample
of
the
population
instead
of
data
collected
from
the
entire
population.
The
Census
Bureau
does
not
collect
poverty
status
data
from
all
individuals
but
instead
collects
these
data
from
a
sample
of
the
population.
We
assume
that
the
individuals
sampled
in
close
proximity
to
each
hazardous
waste
combustion
facility
are
representative
of
the
populations
in
these
areas.

For
both
minority
and
low­
income
populations,
we
examine
impacts
for
the
entire
HWC
MACT
universe,
as
well
as
for
specific
types
of
facilities.
In
addition,
we
separately
assess
exposed
populations
in
Texas
and
Louisiana
because
of
the
high
concentration
of
facilities
in
these
states.
Our
results
are
based
on
U.
S.
Census
2000
block
group
data
for
block
groups
with
centers
within
oneand
five­
mile
radii
of
each
facility.

Results
We
first
present
the
results
of
the
environmental
justice
analysis
for
minority
populations
living
in
proximity
to
hazardous
waste
combustion
facilities.
Following
this
discussion,
we
present
the
results
of
our
analysis
for
low­
income
populations
living
near
hazardous
waste
combustion
facilities.
At
the
end
of
this
section,
we
summarize
our
conclusions.
IEc
DRAFT:
May
2005
11
U.
S.
Census
2000.

7­
8
Minority
Population
Analysis
The
number
of
minorities
living
within
one
or
five
miles
of
a
hazardous
waste
combustion
facility
is
disproportionately
high
(
Exhibit
7­
2).
Approximately
38
percent
of
individuals
living
within
one
mile
of
facilities
in
the
HWC
MACT
universe
are
minorities,
23
percent
higher
than
the
national
prevalence
of
minorities
(
31
percent).
11
More
than
40
percent
of
individuals
living
within
five
miles
of
hazardous
waste
combustion
facilities
are
minorities.

The
prevalence
of
minorities
living
in
close
proximity
to
specific
types
of
hazardous
waste
combustion
facilities
varies
by
facility
type,
although,
as
a
whole,
facilities
tend
to
be
located
in
areas
disproportionately
populated
by
minorities.
On­
site
incinerators
are
fairly
representative
of
the
entire
HWC
MACT
universe
in
this
regard.
Approximately
36
percent
of
those
living
within
one
mile
and
38
percent
of
those
living
within
five
miles
of
on­
site
incinerators
are
minorities,
compared
to
31
percent
nationwide.
Boilers
and
hydrochloric
acid
production
furnaces
tend
to
be
located
in
areas
with
more
highly
concentrated
minority
populations.
According
to
our
analysis,
44
percent
of
those
within
one
mile
and
46
percent
of
those
within
five
miles
of
BIFs
are
minorities.
The
concentration
of
minorities
near
commercial
incinerators
depends
significantly
on
the
size
of
the
area
surrounding
the
facility.
Only
21
percent
of
those
within
a
1­
mile
radius
of
commercial
incinerators
are
minorities,
but
this
figure
jumps
to
46
percent
when
the
radius
is
expanded
to
five
miles.
Cement
and
lightweight
aggregate
kilns
represent
the
only
type
of
facility
for
which
the
prevalence
of
minorities
within
a
onemile
or
five­
mile
radius
is
lower
than
the
prevalence
of
minorities
nationwide.
Less
than
ten
percent
of
those
living
within
one
mile
of
kilns
and
almost
13
percent
of
those
within
five
miles
are
minorities.
IEc
DRAFT:
May
2005
7­
9
Exhibit
7­
2
POTENTIALLY
EXPOSED
GENERAL
AND
MINORITY
POPULATIONS
a
Within
1
Mile
of
Facilities
Within
5
Miles
of
Facilities
Facility
Type
b
Total
Population
Minority
c
Population
Minority
Percentage
Total
Population
Minority
c
Population
Minority
Percentage
On­
site
Incinerators
161,913
59,787
36.47%
4,669,398
1,773,860
37.99%

Commercial
Incinerators
12,182
2,564
21.05%
391,604
180,489
46.09%

Boilers
and
Hydrochloric
Acid
Production
Furnaces
119,832
52,786
44.05%
3,447,238
1,568,795
45.51%

Cement
Kilns
and
LWAKs
9,879
955
9.67%
320,621
42,318
13.20%

Total
in
Louisiana
d
23,628
14,384
60.88%
364,429
203,849
55.94%

Total
in
Texas
e
20,606
9,159
44.45%
878,333
425,588
48.45%

Total
Facilities
f,
g
295,471
113,138
38.29%
8,262,919
3,362,556
40.69%

Notes:
a
We
include
blocks
and
block
groups
with
centers
within
one
and
five
mile
radii
of
facilities
to
determine
demographic
statistics.
b
"
Facility
type"
represents
the
primary
combustion
facility
type
at
each
location.
For
facilities
with
more
than
one
type
of
combustion
system,
we
assign
the
facility
type
based
on
the
type
of
system
that
combusts
the
most
waste
at
the
facility.
c
Minority
populations
equal
the
sum
of
Black,
American
Indian
or
Alaskan
Native,
Asian,
Hawaiian
or
Pacific
Islander,
and
multi­
racial
individuals,
individuals
of
other
races,
and
individuals
of
Hispanic
origin.
We
multiply
the
number
of
Hispanic
individuals
by
47.89%,
the
percentage
of
Hispanics
that
are
White
out
of
all
individuals
of
Hispanic
origin
in
the
United
States.
This
method
prevents
the
double­
counting
of
individuals
of
Hispanic
origin
that
are
not
White.
d
Since
57.33%
of
individuals
of
Hispanic
origin
in
Louisiana
are
classified
by
the
Census
Bureau
as
White,
the
total
number
of
Hispanic
individuals
living
within
one
and
five
miles
of
hazardous
waste
combustion
facilities
in
the
state
is
multiplied
by
57.33%
instead
of
47.89%
in
order
to
avoid
double­
counting
when
calculating
the
minority
population.
e
Since
57.97%
of
individuals
of
Hispanic
origin
in
Texas
are
classified
by
the
Census
Bureau
as
White,
the
total
number
of
Hispanic
individuals
living
within
one
and
five
miles
of
hazardous
waste
combustion
facilities
in
the
state
is
multiplied
by
57.97%
instead
of
47.89%
in
order
to
avoid
double­
counting
when
calculating
the
minority
population.
f
According
to
the
2000
U.
S.
Census,
the
percentage
of
minorities
is
30.87%
nationwide,
37.47
%
in
Louisiana,
and
47.57%
in
Texas.
g
The
sum
of
the
first
four
rows
may
be
greater
than
the
total
population
since
adjacent
facilities
expose
the
same
individuals
to
emissions
from
multiple
facility
types.
IEc
DRAFT:
May
2005
12
When
calculating
minority
populations
in
Louisiana
and
Texas,
we
multiply
the
number
of
individuals
of
Hispanic
origin
by
the
percentage
of
individuals
of
Hispanic
origin
who
are
White
in
each
state
in
order
to
avoid
double­
counting
non­
White
individuals
of
Hispanic
origin.
In
Louisiana,
this
figure
equals
57.33
percent;
in
Texas,
it
is
57.97
percent.

7­
10
As
mentioned
in
Chapter
2
and
in
the
beginning
of
this
section,
the
highest
concentration
of
hazardous
waste
combustion
facilities
in
the
HWC
MACT
universe
is
along
the
Gulf
of
Mexico
and
in
the
Mississippi
Delta
region
(
EPA
Region
6).
Consequently,
many
individuals
living
in
close
proximity
to
facilities
in
this
area
are
exposed
to
emissions
from
multiple
facilities.
Therefore
we
evaluated
the
concentration
of
minorities
living
within
one
and
five
miles
of
hazardous
waste
combustion
facilities
in
Louisiana
and
Texas
in
order
to
assess
environmental
justice
impacts
for
populations
that
are
likely
to
be
exposed
to
emissions
from
several
sources.
12
Minorities
represent
more
than
37
percent
of
Louisiana's
population,
compared
to
31
percent
nationwide.
Within
one
and
five
miles
of
Louisiana
hazardous
waste
combustion
facilities,
the
concentration
of
minorities
is
significantly
higher
than
the
national
and
statewide
averages.
Approximately
61
percent
of
the
residents
within
one
mile
of
facilities
are
minorities,
and
almost
56
percent
of
individuals
living
within
five
miles
of
facilities
are
minorities.

Proportionately,
the
minority
population
in
Texas
(
48
percent)
is
also
significantly
greater
than
the
national
average.
Within
one
mile
of
hazardous
waste
combustion
facilities
in
Texas,
minorities
represent
more
than
44
percent
of
the
population,
which
is
significantly
greater
than
the
national
average
of
31
percent,
but
lower
than
the
statewide
average
(
48
percent).
Expanding
the
facility
radius
to
five
miles,
minorities
make
up
approximately
48
percent
of
the
population,
which
is
consistent
with
the
concentration
of
minorities
statewide.

The
HWC
MACT
replacement
standards
are
projected
to
have
positive
impacts
for
minority
communities
around
hazardous
waste
combustion
facilities,
particularly
on­
site
incinerators,
boilers
and
hydrochloric
acid
production
furnaces,
and
facilities
located
in
Louisiana
(
Exhibit
7­
2).
The
HWC
MACT
replacement
standards
are
likely
to
reduce
emissions
from
combustion
facilities;
therefore,
populations
near
these
facilities
may
realize
significant
health
and
environmental
benefits.
Thus,
the
HWC
MACT
replacement
standards
may
result
in
disproportionately
positive
health
and
environmental
impacts
for
minority
populations.

Low­
Income
Population
Analysis
Individuals
that
fall
under
the
Social
Security
Administration's
poverty
threshold
are
located
disproportionately
near
hazardous
waste
combustion
facilities
potentially
affected
by
the
HWC
MACT
standards
(
Exhibit
7­
3).
Approximately
22
percent
of
the
population
living
within
one
mile
of
facilities
in
the
universe
are
below
the
poverty
threshold,
71
percent
higher
than
the
national
IEc
DRAFT:
May
2005
13
U.
S.
Census
2000.

7­
11
poverty
rate
of
13
percent.
13
Of
the
population
of
individuals
living
withing
five
miles
of
facilities
in
the
HWC
MACT
universe,
18
percent
are
below
the
poverty
threshold.

Exhibit
7­
3
POTENTIALLY
EXPOSED
GENERAL
AND
LOW­
INCOME
POPULATIONS
a
Within
1
Mile
of
Facilities
Within
5
Miles
of
Facilities
Facility
Type
b
Total
Population
Low­
Income
Population
Low­
Income
Percentage
Total
Population
Low­
Income
Population
Total
Population
On­
site
Incinerators
151,355
11,595
19.55%
2,533,717
453,247
17.87%

Commercial
Incinerators
11,153
2,698
24.19%
367,072
84,446
23.01%

Boilers
and
Hydrochloric
Acid
Production
Furnaces
94,889
24,744
26.08%
3,905,408
663,028
16.98%

Cement
Kilns
and
LWAKs
3,507
817
23.30%
216,107
26,200
12.12%

Total
in
Louisiana
22,729
6,290
27.87%
330,289
74,599
22.59%

Total
in
Texas
17,876
2,739
15.32%
786,823
120,129
15.27%

Total
Facilities
c,
d
254,652
56,775
22.30%
6,508,203
1,153,110
17.72%

Notes:
a
We
include
block
groups
with
centers
within
the
one
and
five
mile
radii
to
determine
poverty
status
statistics.
This
method
provides
a
reasonable
basis
for
poverty
status
analysis.
Poverty
status
data
were
obtained
from
table
P87
from
the
2000
Census.
Poverty
status
information
was
unavailable
for
some
block
groups
within
the
one
and
five
mile
radii
of
combustion
facilities.
In
such
cases,
we
used
the
population
data
associated
with
block
groups
for
which
data
were
available.
b
"
Facility
type"
represents
the
primary
combustion
facility
type
at
each
location.
For
facilities
with
more
than
one
type
of
combustion
system,
we
assign
the
facility
type
based
on
the
type
of
system
that
combusts
the
most
waste
at
the
facility.
c
The
sum
of
the
first
four
rows
may
be
greater
than
the
total
population
since
adjacent
facilities
expose
the
same
individuals
to
emissions
from
multiple
facility
types.
d
According
to
the
2000
U.
S.
Census,
the
percentage
of
low­
income
individuals
is
12.86%
nationwide,
19.64%
in
Louisiana,
and
15.37%
in
Texas.
IEc
DRAFT:
May
2005
7­
12
Overall,
areas
within
one
and
five
miles
of
combustion
facilities
are
disproportionately
populated
by
individuals
in
poverty.
However,
only
12
percent
of
the
population
living
within
5
miles
of
cement
kilns
and
LWAKs
falls
below
the
Social
Security
Administration's
poverty
threshold,
one
percentage
point
below
the
national
poverty
rate
of
13
percent.
Closer
to
cement
kilns
and
LWAKs,
this
figure
increases
to
nearly
23
percent.
Among
populations
within
one
mile
of
any
type
of
combustion
facility,
low­
income
populations
are
proportionately
highest
(
26
percent)
near
boilers
and
HAPFs.
Expanding
the
radius
around
each
facility
to
five
miles,
low­
income
individuals
are
most
prevalent,
in
proportional
terms,
near
commercial
incinerators.

We
also
assessed
the
poverty
status
of
individuals
living
within
one
and
five
miles
of
hazardous
waste
combustion
facilities
in
Louisiana
and
Texas
because
of
the
significant
number
of
facilities
in
these
two
states.
Low­
income
individuals
in
Louisiana
represent
nearly
20
percent
of
the
population,
compared
to
13
percent
nationally.
Approximately
28
percent
of
individuals
living
within
one
mile
of
a
Louisiana
facility
and
23
percent
of
individuals
living
within
five
miles
are
below
the
Social
Security
Administration's
poverty
threshold.

In
Texas,
the
low­
income
population
represents
15
percent
of
the
population.
The
concentration
of
low­
income
individuals
around
the
state's
hazardous
waste
combustion
facilities
is
consistent
with
the
statewide
figure.

The
HWC
MACT
replacement
standards
are
projected
to
have
positive
health
impacts
for
low­
income
communities
located
near
all
types
of
hazardous
waste
combustion
facilities,
particularly
those
located
in
Louisiana.
Populations
near
these
facilities
may
accrue
significant
health
and
environmental
benefits
from
the
reduction
in
emissions
likely
to
result
from
the
HWC
MACT
replacement
standards.
As
evidenced
by
the
high
prevalence
of
low­
income
individuals
near
combustion
facilities,
the
HWC
MACT
replacement
standards
may
have
disproportionately
positive
health
and
environmental
effects
on
low­
income
populations.

Summary
Our
analysis
indicates
that
minority
and
low­
income
populations
in
aggregate
appear
to
be
disproportionately
represented
near
hazardous
waste
combustion
facilities.
Thus,
based
on
our
potentially
exposed
population
approach
to
estimate
environmental
justice
impacts,
the
HWC
MACT
replacement
standards
may
result
in
disproportionately
positive
health
and
environmental
benefits
for
minority
and
low­
income
populations.
IEc
DRAFT:
May
2005
14
In
addition,
two
separate
directives
issued
by
EPA,
"
Policy
on
Evaluating
Health
Risks
to
Children"
(
October
1995)
and
"
National
Agenda
to
Protect
Children's
Health
from
Environmental
Threats"
(
October
1996),
both
cited
in
U.
S.
EPA,
Assessment
of
the
Potential
Costs,
Benefits,
and
Other
Impacts
of
the
Hazardous
Waste
Combustion
MACT
Standards:
Final
Rule,
Office
of
Solid
Waste,
July
1999,
also
call
for
consideration
of
children's
health
within
risk
assessments
and
other
components
of
regulatory
analyses.

15
As
defined
in
Executive
Order
13045,
an
economically
significant
rule
is
any
rulemaking
that
has
an
annual
effect
on
the
economy
of
$
100
million
or
more,
or
would
adversely
affect
in
a
material
way
the
economy,
a
sector
of
the
economy,
productivity,
competition,
jobs,
the
environment,
public
health
or
safety,
or
state,
local
or
tribal
governments
or
communities.

16
U.
S.
Environmental
Protection
Agency,
"
EPA's
Rule
Writer's
Guide
to
Executive
Order
13045:
Guidance
for
Considering
Risks
to
Children
During
the
Establishment
of
Public
Health­
Related
and
Risk­
Related
Standards,"
Interim
Final
Guidance,
April
21,
1998,
3,
as
cited
in
U.
S.
EPA,
Assessment
of
the
Potential
Costs,
Benefits,
and
Other
Impacts
of
the
Hazardous
Waste
Combustion
MACT
Standards:
Final
Rule,
Office
of
Solid
Waste,
July
1999.

17
U.
S.
EPA,
Environmental
Health
Threats
to
Children,
EPA
175­
F­
96­
001,
September
1996,
4,
as
cited
in
U.
S.
EPA,
Assessment
of
the
Potential
Costs,
Benefits,
and
Other
Impacts
of
the
Hazardous
Waste
Combustion
MACT
Standards:
Final
Rule,
Office
of
Solid
Waste,
July
1999.

7­
13
CHILDREN'S
HEALTH
PROTECTION
ANALYSIS
Executive
Order
13045,
"
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks"
(
April
21,
1997),
directs
federal
agencies
and
departments
to
evaluate
the
health
effects
of
health­
related
or
risk­
related
regulations
on
children.
14
For
economically
significant
rules
concerning
an
environmental
health
or
safety
risk
that
may
disproportionately
affect
children,
Executive
Order
13045
also
requires
an
explanation
as
to
why
the
planned
regulation
is
preferable
to
other
potentially
effective
and
feasible
alternatives.
15
The
HWC
MACT
replacement
standards
are
exempt
from
the
requirements
of
Executive
Order
13045
because
the
rule
is
a
technology­
based
regulation
(
MACT)
rather
than
a
risk­
based
regulation
and
it
is
not
considered
to
be
economically
significant.
16
Nevertheless,
the
risk
assessment
performed
in
1998
for
the
1999
HWC
MACT
standards
addresses
threats
to
children's
health
by
evaluating
reduced
risks
associated
with
hazardous
waste
combustion
for
children
as
well
as
for
adults.
This
section
briefly
describes
some
of
the
health
impacts
that
the
HWC
MACT
replacement
standards
may
have
on
children's
health.
We
note
that
the
health
impacts
of
the
1999
HWC
MACT
standards
are
generally
assumed
to
be
similar
to
the
impacts
of
the
2002
Interim
Standards.

Particulate
Matter
The
HWC
MACT
replacement
standards
are
expected
to
result
in
the
prevention
of
less
than
one
premature
death
and
73
new
illness
cases
annually
because
of
reduced
particulate
matter
(
PM)
emissions.
While
separate
results
are
not
available
for
children,
we
assume
that
many
of
the
respiratory
health
benefits
resulting
from
the
standards
would
be
experienced
by
children
because
they
are
considered
to
be
especially
vulnerable
to
the
effects
of
PM
exposure.
17
IEc
DRAFT:
May
2005
7­
14
Mercury
The
1999
Hazardous
Waste
Combustion
MACT
standards
(
and
the
2002
Interim
Standards)
were
expected
to
reduce
mercury
emissions
by
four
tons
per
year,
while
the
Agency
Preferred
Approach
for
the
HWC
MACT
replacement
standards
is
expected
to
reduce
mercury
emissions
by
an
additional
0.25
tons
per
year.
The
1999
analysis
found
that
the
unborn
children
of
pregnant
women
who
consume
fish
contaminated
with
mercury
could
be
at
risk
for
developmental
abnormalities.
The
reduction
in
mercury
emissions
under
the
1999
Standards
was
expected
to
reduce
this
risk.
Therefore,
the
HWC
MACT
replacement
standards
are
also
likely
to
positively
impact
children's
health
due
to
the
additional
reduction
in
mercury
emissions
expected
under
the
standards.

Lead
The
1999
Hazardous
Waste
Combustion
MACT
standards
were
expected
to
reduce
lead
exposure
and
consequently
benefit
children
within
sub­
populations
exposed
to
especially
high
levels
of
lead.
The
sub­
populations
facing
the
greatest
levels
of
cumulative
lead
exposure
include
subsistence
fishermen,
commercial
beef
farmers,
and
commercial
dairy
farmers.
The
1999
standards
were
expected
to
reduce
lead
emissions
by
89
tons
per
year,
and
the
Agency
Preferred
Approach
for
the
HWC
MACT
replacement
standards
are
expected
to
reduce
lead
emissions
by
approximately
2.5
tons
per
year.
Therefore,
children
within
high­
risk
sub­
populations
would
experience
further
benefits
associated
with
reduced
lead
exposure
as
a
result
of
the
HWC
MACT
replacement
standards,
although
these
benefits
are
likely
to
be
lower
than
those
associated
with
the
1999
Standards.

Summary
Although
the
impacts
of
the
HWC
MACT
replacement
standards
on
children's
health
have
not
been
evaluated
quantitatively,
qualitative
analysis
indicates
that
children
would
benefit
from
the
replacement
rule.
Further
reductions
in
particulate
matter,
mercury,
and
lead
emissions
associated
with
the
HWC
MACT
replacement
standards
should
reduce
the
risk
of
some
illnesses
and
developmental
abnormalities.
Children
within
high­
risk
sub­
populations,
including
recreational
anglers,
subsistence
fishermen,
and
commercial
dairy
and
beef
farmers
living
in
proximity
to
hazardous
waste
combustion
facilities,
could
potentially
experience
the
greatest
positive
health
effects.

JOINT
IMPACTS
OF
RULES
As
discussed
in
Chapter
2,
the
universe
of
regulated
facilities
is
affected
by
a
number
of
regulations.
However,
some
of
these
regulations
will
not
have
an
aggregate
impact
on
regulated
facilities.
Specifically,
the
Portland
Cement
MACT
and
the
National
Emissions
Standards
for
IEc
DRAFT:
May
2005
18
Other
requirements
include
a
statement
concerning
estimated
costs
and
benefits,
consideration
of
regulatory
alternatives,
consultation
with
affected
government
entities,
and
a
small
government
plan
for
those
rules
"
significantly
or
uniquely"
affecting
small
government
agencies.
Even
though
the
HWC
MACT
replacement
standards
are
exempt
from
these
requirements,
as
we
explain
below,
many
of
them
are
already
satisfied
by
other
components
of
this
assessment.

7­
15
Hazardous
Air
Pollutants
for
Industrial/
Commercial/
Institutional
Boilers
and
Process
Heaters
will
affect
facilities
only
if
they
stop
burning
hazardous
waste.
Facilities
that
stop
burning
hazardous
waste
will
no
longer
be
subject
to
the
HWC
MACT
replacement
standards.

In
some
cases,
compliance
with
existing
regulations
may
ease
compliance
with
the
HWC
MACT
replacement
standards.
For
example,
PM
emissions
regulated
under
the
standards
are
also
controlled
under
the
Clean
Air
Act
(
CAA).
For
those
facilities
already
regulated
under
the
CAA,
compliance
with
one
standard
may
contribute
to
adherence
with
another.
Therefore,
implementation
of
the
HWC
MACT
replacement
standards
is
not
expected
to
jointly
impact
the
actions
of
facilities
already
controlled
by
other
regulations.

UNFUNDED
MANDATES
ANALYSIS
Signed
into
law
on
March
22,
1995,
the
Unfunded
Mandates
Reform
Act
(
UMRA)
calls
on
federal
agencies
that
issue
any
significant
regulation
containing
an
unfunded
mandate
to
fulfill
certain
requirements.
These
include
the
preparation
of
a
statement
supporting
the
need
to
issue
the
regulations
and
a
description
of
prior
consultation
with
representatives
of
affected
state,
local,
and
tribal
governments.
18
Requirements
in
the
UMRA
apply
only
to
those
federal
regulations
containing
a
significant
unfunded
mandate.
The
UMRA
defines
a
significant
unfunded
mandate
as
a
federal
rule
that
either:

1.
Results
in
estimated
costs
to
state,
local,
and
tribal
governments,
in
aggregate,
of
$
100
million
or
more
in
any
one
year;
or
2.
Results
in
estimated
annual
costs
to
the
private
sector
of
$
100
million
or
more
in
any
one
year.

Federal
rules
are
exempt
from
the
UMRA
requirements
if:

1.
The
rule
implements
requirements
specifically
set
forth
in
law;
or
2.
Compliance
with
the
rule
is
voluntary
for
state
and
local
governmental
entities.

Based
on
these
criteria
set
forth
by
the
UMRA,
the
HWC
MACT
replacement
standards
do
not
contain
a
significant
unfunded
mandate.
As
reported
in
the
economic
impact
results
chapter,
the
standards
are
not
likely
to
result
in
annualized
costs
of
$
100
million
or
more,
either
for
the
private
sector
or
for
state
and
local
governments.
Expenditure
estimates
presented
in
this
assessment
total
IEc
DRAFT:
May
2005
19
See
Exhibit
5­
5,
"
Summary
of
Social
Cost
Estimates."

20
We
did
not,
however,
conduct
a
quantitative
geographic
location
analysis
to
verify
this
assumption.

7­
16
approximately
$
27.5
million
per
year
for
the
private
sector
and
$
459,000
for
the
government.
19
In
any
case,
because
the
Clean
Air
Act
requires
EPA
to
establish
MACT
standards
for
hazardous
air
pollutants,
the
rule
should
be
exempt
from
all
relevant
requirements
of
UMRA.
In
addition,
compliance
with
the
rule
is
voluntary
for
non­
federal
governmental
entities
since
state
and
local
agencies
choose
whether
to
apply
to
EPA
for
the
permitting
authority
necessary
to
implement
the
HWC
MACT
replacement
standards.

TRIBAL
GOVERNMENTS
ANALYSIS
Similar
in
purpose
to
the
UMRA,
Executive
Order
13175,
"
Consultation
and
Coordination
With
Indian
Tribal
Governments"
(
May
14,
1998),
addresses
related
unfunded
mandates
concerns
with
respect
to
the
sovereignty
of
tribal
governments.
The
applicable
sections
of
Executive
Order
13175
impose
requirements
on
federal
agencies
that
promulgate
regulations
not
required
by
statute
and
that
significantly
or
uniquely
affect
Native
American
tribal
governments
and
their
communities.
The
requirements
include
description
of
the
extent
of
prior
consultation
with
affected
tribal
governments,
a
summary
of
the
nature
of
their
concerns,
and
a
statement
supporting
the
need
to
issue
the
regulation.

For
many
of
the
same
reasons
described
in
the
UMRA
discussion,
the
requirements
of
Executive
Order
13175
do
not
apply
to
the
HWC
MACT
replacement
standards.
As
mentioned
above,
the
Clean
Air
Act
requires
EPA
to
establish
MACT
standards
regulating
emissions
of
hazardous
air
pollutants.
In
addition,
while
Executive
Order
13175
does
not
cite
a
specific
metric
for
determining
whether
a
regulation
significantly
or
uniquely
affects
Native
American
tribal
governments,
the
standards
are
not
expected
to
impose
substantial
direct
compliance
costs
on
tribal
governments
and
their
communities
because
we
do
not
believe
that
a
significant
number
of
hazardous
waste
combustion
facilities
are
located
in
tribal
communities.
20
Finally,
tribal
governments
will
not
be
required
to
assume
any
permitting
responsibilities
associated
with
the
HWC
MACT
replacement
standards
because,
as
previously
stated,
permitting
authority
is
voluntary
for
non­
federal
government
entities.

FEDERALISM
ANALYSIS
Executive
Order
13132,
entitled
"
Federalism"
(
64
FR
43255,
August
10,
1999),
requires
EPA
to
develop
a
process
to
ensure
"
meaningful
and
timely
input
by
State
and
local
officials
in
the
development
of
regulatory
policies
that
have
federalism
implications."
Policies
that
have
federalism
implications
are
defined
in
the
Executive
Order
to
include
regulations
that
have
"
substantial
direct
effects
on
the
States
[
in
terms
of
compliance
costs],
on
the
relationship
between
the
national
IEc
DRAFT:
May
2005
21
See,
for
instance,
Pennsylvania
Coal
Co.
v.
Mahon,
260
U.
S.
393
(
1922),
Penn
Central
Transportation
Co.
v.
City
of
New
York
438
U.
S.
104
(
1978),
Nollan
v.
California
Coastal
Commission
483
U.
S.
825
(
1987),
Lucas
v.
South
Carolina
Coastal
Council
112
S.
Ct.
2886
(
1992),
Dolan
v.
City
of
Tigard
114
S.
Ct.
2309
(
1994),
as
cited
in
U.
S.
EPA,
Assessment
of
the
Potential
Costs,
Benefits,
and
Other
Impacts
of
the
Hazardous
Waste
Combustion
MACT
Standards:
Final
Rule,
Office
of
Solid
Waste,
July
1999.
Also
see
Palazzolo
v.
Rhode
Island
533
U.
S.
606
(
2001).

22
No
universally
accepted
formula
exists
for
determining
at
what
point
direct
economic
impacts
from
regulatory
action
constitute
a
taking.
Rather,
courts
must
make
this
determination
on
a
case­
by­
case
basis.
In
the
landmark
Lucas
decision,
the
U.
S.
Supreme
Court
proclaimed
that
a
100
percent
deprivation
in
value
most
often,
but
not
always,
constitutes
a
taking.
Recent
case
law
includes
many
examples
in
which
regulations
deprived
owners
of
as
much
as
50
percent
or
more
of
the
value
associated
with
the
economic
use
of
property,
yet
the
court
still
ruled
that
the
regulations
did
not
deny
the
owner
all
reasonable
economic
value.
For
instance,
see
Concrete
Pipe
and
Products
v.
Construction
Laborers
Pension
Trust
for
Southern
California,
113
S.
Ct.
2264
(
1993),
as
cited
in
U.
S.
EPA,
Assessment
of
the
Potential
Costs,
Benefits,
and
Other
Impacts
of
the
Hazardous
Waste
Combustion
MACT
Standards:
Final
Rule,
Office
of
Solid
Waste,
July
1999.

7­
17
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government.
In
addition,
policies
have
federalism
implications
if
they
preempt
State
law.

The
HWC
MACT
replacement
standards
do
not
have
federalism
implications.
They
will
not
have
direct
financial
effects
on
the
States
because
EPA
will
be
responsible
for
permitting
and
monitoring
hazardous
waste
combustion
facilities.
Furthermore,
the
replacement
standards
should
not
alter
the
relationship
between
the
national
government
and
the
States
because
the
States
may
voluntarily
apply
for
permitting
authority
in
order
to
implement
the
HWC
MACT
replacement
standards.
Finally,
the
replacement
standards
do
not
preempt
State
law
because
States
may
still
develop
air
pollution
laws
that
exceed
the
stringency
of
the
HWC
MACT
replacement
standards.

REGULATORY
TAKINGS
ANALYSIS
Executive
Order
12630,
"
Government
Actions
and
Interference
with
Constitutionally
Protected
Property
Rights"
(
March
15,
1988),
directs
federal
agencies
to
consider
the
private
property
takings
implications
of
regulations.
Under
the
Fifth
Amendment
of
the
U.
S.
Constitution,
the
government
may
not
take
private
property
for
public
use
without
compensating
the
owner.
Though
the
exact
interpretation
of
this
takings
clause
as
applied
to
regulatory
action
is
still
subject
to
an
ongoing
debate,
a
framework
for
interpretation
has
been
established
by
legal
precedent
through
a
series
of
prominent
legal
cases.
21
Within
the
context
of
mainstream
legal
precedent,
a
regulatory
taking
of
private
property
is
generally
deemed
to
result
if
the
court
determines
that
the
government
action
satisfies
any
of
the
following
criteria:

$
Results
in
a
physical
invasion
of
property;

$
Denies
the
owner
all
reasonable
or
economically
viable
use
of
property;
22
IEc
DRAFT:
May
2005
23
Numerous
court
decisions
ranging
from
landmark
preservation
to
the
control
of
industrial
pollution
in
residential
areas
have
upheld
regulations
while
at
the
same
time
acknowledging
the
takings
claims
associated
with
them
on
the
basis
of
nuisance
prevention
and
resource
protection
goals.

24
See
Ruckelshaus
v.
Monsanto
Co.,
467
U.
S.
986,
1005
(
1984),
as
cited
in
U.
S.
EPA,
Assessment
of
the
Potential
Costs,
Benefits,
and
Other
Impacts
of
the
Hazardous
Waste
Combustion
MACT
Standards:
Final
Rule,
Office
of
Solid
Waste,
July
1999.

7­
18
$
Interferes
with
reasonable
investment­
backed
expectations
for
property;
or
$
Fails
to
establish
a
justifiable
connection
between
the
requirements
imposed
(
e.
g.,
permit
conditions)
and
the
underlying
purposes
of
the
regulation.

Even
if
a
regulatory
requirement
meets
any
or
all
of
the
designated
conditions
for
a
regulatory
taking,
courts
may
still
find
it
exempt
from
the
takings
clause
if
the
regulatory
action
is
meant
to
prevent
a
"
nuisance"
or
to
provide
other
benefits
to
the
public.
A
nuisance
is
defined
as
an
activity
or
condition
that
either
interferes
with
public
welfare
or
with
the
ability
of
another
private
citizen
to
enjoy
his
or
her
own
property.
23
Based
on
our
review
of
relevant
case
law,
the
HWC
MACT
replacement
standards
are
not
likely
to
result
in
any
regulatory
takings.
The
rule
will
not
require
that
private
property
be
invaded
or
taken
for
public
use.
The
rule
also
will
not
interfere
with
reasonable
investment­
backed
expectations
because
it
does
not
ban
hazardous
waste
combustion
in
incinerators,
kilns,
boilers,
or
hydrochloric
acid
production
furnaces.
Instead,
the
standards
merely
codify
operating
parameters.
Therefore,
the
investment­
backed
expectations
of
individuals
or
organizations
that
construct
(
or
reconstruct
hazardous
waste
combustion
systems
after
the
HWC
MACT
replacement
standards
are
finalized
are
likely
to
reflect
a
recognition
of
the
existence
of
impending
regulatory
requirements.
Persons
or
organizations
already
operating
hazardous
waste
combustion
systems
would
have
at
least
three
years
to
adjust
their
expectations
and
to
prepare
for
accommodation
of
the
forthcoming
regulation.
As
a
result,
no
facility
owner
should
be
able
to
assert
interference
with
reasonable
investment­
backed
expectations
sufficient
to
support
a
takings
claim.
24
Because
the
rule
does
not
prohibit
the
burning
of
hazardous
waste
in
incinerators,
kilns,
boilers,
or
HAPFs,
it
does
not
deny
facility
owners
all
viable
economic
use
of
their
property.
Nor
does
the
rule
prevent
owners
from
putting
their
property
to
other
profitable
uses
should
they
decide
to
stop
burning
hazardous
waste
because
of
the
regulation.
For
many
facilities
in
the
HWC
MACT
universe,
the
primary
economic
use
of
property
comes
from
other
activities
not
directly
associated
with
hazardous
waste
combustion.
Even
if
these
facilities
should
stop
burning
waste
and
switch
to
an
alternative
fuel,
they
would
still
be
able
to
manufacture
their
primary
products
(
e.
g.,
cement).

This
evaluation
of
the
HWC
MACT
replacement
standards
is
consistent
with
the
widely
accepted
view
that
only
in
rare
circumstances
do
regulations
result
in
takings.
Using
legal
precedent
as
the
basis
for
this
analysis,
it
is
difficult
to
speculate
fully
on
the
potential
for
extreme
takings
interpretations
as
applied
to
the
impacts
of
the
replacement
standards.
Potential
arguments
could
arise
in
the
context
of
economically
viable
use
of
property
and
interference
with
reasonable
IEc
DRAFT:
May
2005
7­
19
investment­
backed
property
expectations.
However,
legal
precedent
suggests
that
such
arguments
are
unlikely
to
be
successful.

The
economic
impact
results
reported
in
Chapter
5
suggest
that
a
number
of
facilities
could
stop
treating
hazardous
waste
rather
than
incur
compliance
costs
associated
with
the
HWC
MACT
replacement
standards.
It
is
important
to
note,
however,
that
these
waste
management
changes
are
not
likely
to
affect
the
ability
of
companies
to
produce
their
products.
Even
under
an
extreme
takings
interpretation,
it
is
doubtful
that
the
HWC
MACT
replacement
standards
would
be
found
to
interfere
directly
with
all
viable
use
or
economic
value
of
property.
Also,
as
described
above,
the
established
statutory
authority
for
the
standards
and
the
fact
that
the
rule
does
not
prohibit
combustion
altogether
should
exempt
the
rule
from
any
claims
of
interference
with
reasonable
investment­
backed
expectations.
Regardless,
the
HWC
MACT
replacement
standards
may
qualify
for
an
exemption
to
any
regulatory
takings
claims
because
of
the
doctrines
of
public
and
private
nuisance
law.

ENERGY
IMPACT
ANALYSIS
Executive
Order
13211,
"
Actions
Concerning
Regulations
that
Affect
Energy
Supply,
Distribution,
or
Use"
(
May
18,
2001),
addresses
the
need
for
regulators
to
more
fully
consider
the
potential
energy
impacts
of
the
rule
and
resulting
actions.
Under
Executive
Order
13211,
agencies
are
required
to
prepare
a
Statement
of
Energy
Effects
when
a
regulatory
action
may
have
significant
adverse
effects
on
energy
supply,
distribution,
or
use,
including
impacts
on
price
and
foreign
supplies.
Additionally,
the
requirements
obligate
agencies
to
consider
reasonable
alternatives
to
regulatory
actions
with
adverse
effects
and
the
impacts
that
such
alternatives
might
have
on
energy
supply,
distribution,
or
use.

The
HWC
MACT
replacement
standards
regulate
kilns,
boilers,
and
HCl
production
furnaces
that
recover
energy
from
hazardous
waste.
The
implementation
of
the
replacement
standards
will
likely
cause
some
of
these
facilities
to
send
their
waste
offsite
rather
than
treat
it
themselves.
In
addition,
the
final
rule
will
likely
result
in
the
installation
of
additional
air
pollution
control
devices
(
APCDs)
that
require
energy
to
operate
properly.
Therefore,
this
rule
will
have
some
impacts
on
energy
use.
In
order
to
analyze
the
potential
energy
impacts
of
the
replacement
standards,
we
consider
the
energy
implications
of
facilities'
potential
responses
to
the
HWC
MACT
replacement
standards,
as
identified
in
Chapter
5.
Specifically,
we
consider
energy
impacts
for
facilities
that
upgrade
their
systems
to
comply
with
the
standards,
for
systems
that
dispose
of
waste
in
an
alternative
manner,
and
for
systems
that
consolidate
with
other
systems.
The
energy
implications
of
potential
facility
responses
to
the
replacement
standards
are
as
follows:

1.
Upgrade:
APCDs
installed
at
sources
to
comply
with
the
HWC
MACT
replacement
standards
reduce
source
energy
efficiency
by
requiring
energy
for
APCD
operation;

2.
On­
Site
Incineration:
on­
site
incinerators
do
not
recover
energy
from
waste.
Therefore,
facilities
that
consolidate
waste
from
a
boiler
to
an
on­
site
incinerator
will
need
to
purchase
replacement
fuel;
IEc
DRAFT:
May
2005
25
The
energy
impacts
of
the
engineering­
based
scenario
are
limited
to
the
costs
of
energy
for
operating
APCDs.
Because
we
believe
that
facilities
will
actually
examine
waste
management
alternatives,
we
believe
that
the
market­
adjusted
scenario
is
more
instructive
regarding
energy
use.

7­
20
3.
Off­
Site
Incineration:
off­
site
incineration
will
result
in
an
increase
in
energy
use
because
of
the
energy
required
for
transporting
waste
offsite;

4.
Off­
Site
Management
at
Cement
Kilns
and
LWAKs:
disposal
of
waste
in
cement
kilns
or
LWAKs
will
necessitate
the
purchase
of
replacement
fuel
for
facilities
that
had
previously
utilized
energy
from
on­
site
waste
combustion.
However,
because
cement
kilns
and
LWAKs
recover
energy
from
the
waste
they
burn,
there
is
no
energy
loss
associated
with
the
transfer
of
waste
from
a
boiler
to
a
kiln.
As
a
result,
the
only
additional
energy
use
associated
with
this
compliance
option
is
that
associated
with
the
transport
of
waste.
Note
that
because
we
assume
that
on­
site
incinerators
do
not
send
waste
to
kilns,
we
do
not
evaluate
the
energy
implications
of
transferring
waste
from
an
onsite
incinerator
to
a
kiln.

The
following
analysis
calculates
energy
consumption
and
net
energy
costs
associated
with
the
replacement
standards.
The
results
of
this
analysis
inform
our
assessment
of
the
impacts
that
the
regulatory
action
will
have
upon
the
supply,
distribution,
and
use
of
energy.
Our
analysis
suggests
that
the
energy
impacts
associated
with
the
HWC
MACT
replacement
standards
will
not
be
significant.

Energy
Use
The
HWC
MACT
replacement
standards
are
likely
to
affect
energy
consumption
and
the
recovery
of
energy
from
waste.
Below
we
identify
the
changes
in
energy
consumption
and
energy
costs
associated
with
the
market­
adjusted
scenarios
described
in
Chapter
5.25
Impacts
may
vary
across
different
regulatory
options,
but
we
consider
only
the
Agency
Preferred
Approach.

The
market­
adjusted
scenarios
described
in
Chapter
5
assume
that
facilities
will
choose
to
upgrade
their
incinerators,
kilns,
boilers,
and
furnaces
to
comply
with
the
HWC
MACT
replacement
standards
only
if
doing
so
is
less
costly
than
alternative
fuel
and
waste
disposal
options.
Based
on
these
assumptions,
we
estimate
that
229
of
the
265
hazardous
waste
combustion
systems
in
the
HWC
MACT
universe
will
upgrade
or
install
APCDs
to
comply
with
the
standards,
and
that
36
systems
will
seek
alternative
waste
disposal
options.
Our
analysis
accounts
for
several
different
alternative
waste
management
options
under
the
market­
based
scenario
including
APCD
upgrades,
closure
and
sending
waste
offsite
for
treatment
at
other
facilities,
and
consolidation
among
systems
within
the
same
facility.
Each
alternative
has
a
different
impact
on
energy
use,
and
our
results
reflect
the
least
costly
IEc
DRAFT:
May
2005
26
Some
facilities
may
choose
to
continue
treating
waste
rather
than
sending
it
offsite
even
if
the
latter
option
is
cheaper
because
of
non­
economic
factors
such
as
liability
concerns.

27
These
closures
and
consolidations
represent
projections
associated
with
the
market­
based
scenario
for
the
Agency
Preferred
Approach,
for
which
we
estimate
that
compliance
costs
will
total
$
27.5
million.

28
U.
S.
Dept.
of
Transportation,
Bureau
of
Transportation
Statistics,
"
Average
Motor
Vehicle
Miles
Per
Gallon,"
July
21,
2003,
September
23,
2003.
<
http://
www.
bts.
gov/
products/
transportation_
indicators.
september_
2002/
Environment/
excel/
Average_
Motor_
Vehicle_
Miles_
Per_
Gallon.
xls>.

29
Based
on
average
2004
on­
highway
diesel
prices
cited
by
the
U.
S.
Department
of
Energy,
Energy
Information
Administration,
"
Monthly
U.
S.
On­
highway
Diesel
Fuel
Prices."
<
http://
tonto.
eia.
doe.
gov/
oog/
ftparea/
wogirs/
xls/
psw18vwall.
xls>.

7­
21
option
for
each
facility.
26
According
to
our
cost
calculations,
of
the
36
systems
that
do
not
upgrade
to
comply
with
the
replacement
standards,
27
will
close
and
send
waste
offsite
and
nine
will
consolidate.
Of
the
systems
that
we
project
will
close
(
e.
g.,
exit
but
not
consolidate),
two
are
commercial
incinerator
systems
and
14
are
on­
site
incinerator
systems,
which
will
send
their
waste
to
commercial
incinerators.
The
remaining
systems
are
liquid
boilers
and
will
send
their
hazardous
waste
to
cement
kilns
or
LWAKs
for
treatment.
27
The
impacts
of
these
changes
are
as
follows:

1.
Upgrade­
related
energy
use
increases:
For
upgraded
sources,
energy
consumption
will
increase,
as
new
APCDs
require
energy
to
operate.
We
do
not
estimate
the
exact
energy
requirements
and
costs
associated
with
upgrades
for
the
229
systems
that
we
expect
to
continue
to
burn
hazardous
waste.

2.
Transport­
related
energy
use
increases:
The
27
systems
that
we
expect
will
start
sending
waste
offsite
in
response
to
the
standards
will
increase
their
energy
use
by
using
fuel
to
transport
their
waste
to
different
facilities.
Assuming
that
waste
is
sent
to
the
nearest
combustion
facility,
these
facilities
will
ship
their
waste
approximately
4,429
miles
per
year.
This
figure
reflects
the
number
of
tons
that
each
facility
would
send
offsite,
the
tonnage
of
waste
that
can
be
transported
per
truck,
and
the
miles
that
each
truck
would
travel.
Based
on
statistics
from
the
Department
of
Transportation,
trucks
average
6.0
miles
per
gallon
of
fuel.
28
Therefore,
transporting
waste
an
additional
4,429
miles
per
year
requires
the
use
of
an
additional
738
gallons
of
fuel
annually.
At
a
unit
cost
of
$
1.74
per
gallon
of
diesel
fuel,
the
increase
in
fuel
expenditures
will
total
almost
$
1,284
annually.
29
3.
Replacement
Fuel
Costs:
Facilities
that
currently
recover
energy
from
hazardous
waste
but
that
will
send
waste
offsite
in
response
to
the
replacement
standards
must
purchase
replacement
fuel
to
offset
the
lost
energy
content
of
the
waste
sent
offsite.
The
boiler
systems
that
we
project
will
close
as
a
result
of
the
HWC
MACT
replacement
standards
are
all
IEc
DRAFT:
May
2005
30
We
do
not
expect
that
boilers
would
accept
additional
hazardous
wastes
from
offsite
because
the
cost
of
rerouting
the
waste
would
be
prohibitively
expensive.

7­
22
expected
to
send
their
waste
to
cement
kilns
or
LWAKs.
30
Because
kilns
also
recover
energy
during
the
combustion
process,
they
will
reduce
their
consumption
of
conventional
fuels
when
they
receive
waste
from
boilers,
offsetting
the
increase
in
boilers'
fuel
consumption.
In
addition,
because
kilns
recover
energy
from
waste,
the
energy
content
of
waste
shipped
from
boilers
to
kilns
will
not
go
unused.
Therefore,
with
respect
to
waste
currently
burned
by
boilers,
there
will
be
no
net
loss
or
gain
in
energy
beyond
the
energy
requirements
associated
with
the
transportation
of
their
waste,
as
described
previously.

Exhibit
7­
4
outlines
the
total
changes
in
energy
use
that
will
result
from
system
actions
under
the
market­
based
scenario.
The
energy
requirements
for
the
transportation
of
waste
will
increase
annual
consumption
of
diesel
fuel
by
738
gallons.
The
estimated
cost
associated
with
this
increase
in
demand
is
approximately
$
1,284.
This
figure
underestimates
total
energy
expenditures
resulting
from
the
replacement
standards
under
the
market­
adjusted
scenario
because
we
do
not
estimate
the
energy
use
and
costs
associated
with
new
APCDs.

Exhibit
7­
4
OVERVIEW
OF
ENERGY
IMPACTS
RESULTING
FROM
CLOSURES
IN
THE
MARKET­
BASED
SCENARIO
Action
Change
in
Energy
Use
(
Million
Btus)
Estimated
Costs
of
Increased
Energy
(
2002
Dollars)

APCDs
Not
calculated
Not
calculated
Transportation
of
Waste
Offsitea
102.6
$
1,284
Alternative
Fuel
Purchases
No
net
gain/
loss
$
0
Total
Impacts
102.6
$
1,284
Notes:
a
We
assume
one
gallon
of
diesel
fuel
has
an
energy
content
of
139,000
Btu,
as
cited
on
the
U.
S.
Department
of
Energy
website
<
http://
www.
eia.
doe.
gov/
neic/
experts/
expertanswers.
html>.

Consolidation
Analysis
Consolidation
of
sources
at
the
same
facility
will
affect
energy
use
only
if
waste
previously
treated
in
systems
recovering
energy
is
transferred
to
incinerators
that
do
not
recover
energy.
None
of
the
nine
systems
that
we
expect
to
consolidate
in
the
market­
adjusted
scenario
described
in
Chapter
5
are
boilers.
All
nine
of
these
systems
are
on­
site
incinerators
that
do
not
currently
burn
waste
for
its
energy
value.
Therefore,
consolidation
will
not
affect
energy
use
relative
to
baseline
practices.
IEc
DRAFT:
May
2005
31
U.
S.
Department
of
Energy,
Energy
Information
Administration,
"
Table
2.4:
Industrial
Sector
Energy
Consumption
(
Quadrillion
Btu),"
Monthly
Energy
Review
April
2005,
April
28
2005,
May
20,
2005
<
http://
www.
eia.
doe.
gov/
emeu/
mer/
pdf/
pages/
sec2_
9.
pdf>.

7­
23
Energy
Supply
and
Delivery
United
States'
industries
consumed
33,447
trillion
Btus
of
energy
in
2004.31
The
energy
impacts
of
the
HWC
MACT
replacement
standards
will
increase
energy
use
by
at
least
2.59E­
4
percent.
This
rule
is
not
a
"
significant
energy
action"
as
defined
in
Executive
Order
13211,
"
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use"
(
66
Fed.
Reg.
28355
(
May
22,
2001))
because
it
is
not
likely
to
have
a
significant
adverse
effect
on
the
supply,
distribution,
or
use
of
energy.
While
energy
use
may
increase
slightly
as
a
result
of
the
HWC
MACT
replacement
standards,
production
and
supply
of
fuel
will
not
be
affected.
The
incremental
2.59E­
4
percent
increase
in
energy
use
in
the
industrial
sector
estimated
by
the
preceding
analysis
will
have
a
negligible
impact
on
nationwide
fuel
prices
and
supply.

CIVIL
JUSTICE
ANALYSIS
The
final
rule
meets
applicable
standards
in
sections
3(
a)
and
3(
b)(
2)
of
Executive
Order
12988,
"
Civil
Justice
Reform"
(
February
5,
1996),
to
minimize
litigation,
eliminate
ambiguity,
and
reduce
burden.
EPA
actions
to
meet
the
requirements
of
the
Order
include,
but
are
not
limited
to,
the
following:
unambiguous
specification
of
the
standards,
establishment
of
clear
compliance
deadlines
for
regulated
facilities,
and
a
description
of
the
effect
of
the
standards
on
existing
law.

FACILITATION
OF
COOPERATIVE
CONSERVATION
Executive
Order
13352,
"
Facilitation
of
Cooperative
Conservation"
(
August
26,
2004),
directs
the
Departments
of
the
Interior,
Agriculture,
Commerce,
and
Defense
and
the
Environmental
Protection
Agency
to
implement
laws
relating
to
the
environment
and
natural
resources
in
a
manner
that
promotes
"
cooperative
conservation."
The
Order
defines
"
cooperative
conservation"
as
"
actions
that
relate
to
use,
enhancement,
and
enjoyment
of
natural
resources,
protection
of
the
environment,
or
both,
and
that
involve
collaborative
activity
among
Federal,
State,
local,
and
tribal
governments,
private
for­
profit
and
nonprofit
institutions,
other
nongovernmental
entities
and
individuals."

In
accordance
with
the
Order,
EPA
considered
public
comments
on
the
proposed
HWC
MACT
replacement
standards
from
State
and
local
governments
and
private
organizations
during
the
development
of
the
final
replacement
standards.
In
addition,
non­
federal
government
entities,
such
as
the
States,
may
voluntarily
apply
for
permitting
authority
to
implement
the
HWC
MACT
replacement
standards.
They
may
also
develop
air
pollution
laws
that
exceed
the
stringency
of
the
HWC
MACT
replacement
standards.
IEc
DRAFT:
May
2005
32
The
water
and
solid
waste
impacts
described
in
this
paragraph
were
provided
by
EERGC,
Inc.
May
2005.

33
Our
wet
scrubber
cost
estimates
include
O&
M
costs
associated
with
treating
wet
scrubber
wastewater.
We
anticipate
that
few,
if
any,
facilities
will
need
to
install
additional
capital
equipment
to
enhance
their
wastewater
treatment
capabilities.
Personal
communication,
Lucky
Benedict,
EERGC,
Inc.,
May
2005.

7­
24
OTHER
IMPACTS
While
the
primary
environmental
impacts
of
the
HWC
MACT
replacement
standards
are
improvements
in
air
quality
associated
with
reduced
emissions
from
combustion
facilities,
other
nonair
environmental
impacts
will
also
result
from
the
rule.
32
More
specifically,
use
of
air
pollution
control
devices
and
changes
in
hazardous
waste
burning
practices
will
result
in
water
and
solid
waste
impacts.
Systems
that
use
wet
scrubbers
to
control
chlorine
emissions
will
generate
an
additional
800
million
gallons
of
wastewater
per
year.
In
addition,
systems
that
install
dry
scrubbers
to
control
chlorine
emissions
will
generate
more
than
3,500
tons
of
spent
sorbent
per
year.
Facilities
using
activated
carbon
to
control
emissions
of
dioxins/
furans
and
mercury
will
generate
nearly
4,500
tons
of
carbon
on
an
annual
basis.
Controls
for
other
pollutants
will
increase
annual
water
consumption
by
approximately
300
million
gallons
and
generate
an
additional
4,700
tons
of
solid
waste
per
year.
The
cost
estimates
presented
in
Chapter
4
and
Chapter
5
account
for
the
treatment
and
disposal
of
all
wastewater
and
solid
waste
generated
as
a
result
of
the
standards.
33
