Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Other Solid Waste Incineration Units: Reconsideration, 2620-2631 [E7-820]
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Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations
2. In § 401.2 paragraph (k) is revised
to read as follows:
I
§ 401.2
Interpretation.
*
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*
(k) Seaway Station means a radio
station operated by the Corporation or
the Manager. (Refer to 401.62. Seaway
Stations for the list and location of
stations).
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I 3. In § 401.8 paragraph (c) is revised
to read as follows:
§ 401.8
Landing booms.
*
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*
(c) Vessels not equipped with or not
using landing booms must use the
Seaway’s tie-up service at approach
walls.
I 4. Section 401.12 paragraph (a)
introductory text is revised to read as
follows:
§ 401.12 Minimum requirements—mooring
lines and fairleads.
(a) Unless otherwise permitted by the
officer the minimum requirements in
respect of mooring lines, which shall be
available for securing on either side of
the vessel, winches, and the location of
fairleads on vessels are as follows:
*
*
*
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*
I 5. In § 401.22 paragraph (c) is revised
to read as follows:
§ 401.22
Preclearance of vessels.
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*
(c) Unless otherwise permitted by an
officer a non-commercial vessel of 300
gross registered tonnage or less cannot
apply for preclearance status and must
transit as a pleasure craft.
*
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I 6. § 401.24 is revised as follows:
§ 401.24
Application for preclearance.
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The representative of a vessel may, on
a preclearance form obtained from the
Manager, St. Lambert, Quebec, or
downloaded from the St. Lawrence
Seaway Web site at https://
www.greatlakes-seaway.com, apply for
preclearance, giving particulars of the
ownership, liability insurance and
physical characteristics of the vessel
and guaranteeing payment of the fees
that may be incurred by the vessel.
I 7. In § 401.40 the section heading is
revised, paragraphs (b) and (c) are
redesignated as paragraphs (c) and (d),
respectively, and a new paragraph (b) is
added to read as follows:
§ 401.40
Lock.
Entering, Exiting or Position in
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(b) No vessel shall depart a lock in
such a manner that the stern passes the
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15:59 Jan 19, 2007
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stop symbol on the lock wall nearest the
closed gates.
*
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I 8. In § 401.58 paragraph (b) is revised
to read as follows:
side to prevent any metallic part of the
vessel from touching the side of a dock
or lock wall.
I 11. In § 401.72 paragraph (b) is revised
to read as follows:
§ 401.58
§ 401.72 Reporting—explosive and
hazardous cargo vessels.
Pleasure craft scheduling.
*
*
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(b) Every pleasure craft seeking to
transit Canadian Locks shall stop at a
pleasure craft dock and arrange for
transit by contacting the lock personnel
using the direct-line phone and make
the lockage fee payment by purchasing
a ticket using the automated ticket
dispensers.
I 9. In § 401.68, the section heading and
paragraphs (a) introductory text, (b), (c),
and (d) are revised to read as follows:
§ 401.68
Explosives Permission Letter.
(a) A Seaway Explosives Permission
Letter is required for an explosive vessel
in the following cases:
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(b) When an explosive vessel is
carrying quantities of explosives above
the maximum mentioned in paragraph
(a) of this section, no Seaway Explosives
Permission Letter shall be granted and
the vessel shall not transit.
(c) A written application for a Seaway
Explosives Permission Letter certifying
that the cargo is packed, marked, and
stowed in accordance with the Canadian
Regulations respecting the Carriage of
Dangerous Goods, the United States
Regulations under the Dangerous Cargo
Act and the International Maritime
Dangerous Goods Code may be made to
the Saint Lawrence Seaway
Development Corporation, P.O. Box 520,
Massena, New York 13662 or to the St.
Lawrence Seaway Management
Corporation, 202 Pitt Street, Cornwall,
Ontario, K6J 3P7.
(d) A signed copy of a Seaway
Explosives Permission Letter and a true
copy of any certificate as to the loading
of dangerous cargo shall be kept on
board every explosive vessel in transit
and shall be made available to any
officer requiring production of such
copies.
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I 10. § 401.70 is revised to read as
follows:
§ 401.70 Fendering—explosive and
hazardous cargo vessels.
All explosive vessels requiring a
Seaway Explosives Permission Letter in
accordance with § 401.68 and all tankers
carrying cargo with a flashpoint of up to
61 °C, except those carrying such cargo
in center tanks with gas free wing tanks,
shall be equipped with a sufficient
number of non-metallic fenders on each
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*
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*
(b) Every explosive vessel requiring a
Seaway Explosives Permission Letter
shall, when reporting in, give the
number of its Seaway Explosives
Permission Letter.
*
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*
I 12. In § 401.93 paragraph (b) is revised
to read as follows:
§ 401.93
Access to Seaway property.
*
*
*
*
*
(b) Except as authorized by an officer
or by the Seaway Property Regulations
or its successors, no person shall enter
upon any land or structure of the
Manager or the Corporation or in any
Seaway canal or lock area.
Issued at Washington, DC on January 11,
2007.
Saint Lawrence Seaway Development
Corporation.
Collister Johnson, Jr.,
Administrator.
[FR Doc. E7–814 Filed 1–19–07; 8:45 am]
BILLING CODE 4910–61–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 60
[EPA–HQ–OAR–2003–0156; FRL–8272–2]
RIN 2060–AN91
Standards of Performance for New
Stationary Sources and Emission
Guidelines for Existing Sources: Other
Solid Waste Incineration Units:
Reconsideration
Environmental Protection
Agency (EPA).
ACTION: Notice of final action on
reconsideration.
AGENCY:
SUMMARY: On December 16, 2005, EPA
published final rules entitled,
‘‘Standards of Performance for New
Stationary Sources and Emission
Guidelines for Existing Sources: Other
Solid Waste Incineration Units.’’
Following that final action, the
Administrator received a petition for
reconsideration. In response to the
petition, on June 28, 2006, EPA
announced our reconsideration of
whether SSI should be excluded from
the other solid waste incineration units
(OSWI) rules and requested comment on
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Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations
this issue. After carefully considering all
of the comments and information
received through our reconsideration
process, we have concluded that no
additional changes are necessary to the
final OSWI rules. With respect to all
other issues raised by the petitioner, we
deny the request for reconsideration.
DATES: This final action is effective on
January 22, 2007.
ADDRESSES: Docket: EPA has established
a docket for this action and the final
OSWI new source performance
standards (NSPS) (40 CFR part 60,
subpart EEEE) and emission guidelines
(40 CFR part 60, subpart FFFF) under
Docket ID No. EPA–HQ–OAR–2003–
0156. All documents in the docket are
listed on the https://www.regulations.gov
Web site. 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 either electronically at https://
www.regulations.gov or in hard copy at
the EPA Docket Center (EPA/DC), EPA
West Building, Room B102, 1301
Constitution Ave., NW., Washington,
DC 20004. The Public Reading Room is
located in the EPA Headquarters
Library, Room 3334, and is open from
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The
telephone number for the Public
Reading Room is (202) 566–1744, and
the telephone number for the EPA
Docket Center is (202) 566–1742.
FOR FURTHER INFORMATION CONTACT: Ms.
Martha Smith, U.S. EPA, Sector Policies
and Programs Division, Natural
Resources and Commerce Group (E143–
03), U.S. EPA, Research Triangle Park,
North Carolina 27711, (919) 541–2421,
e-mail smith.martha@epa.gov.
SUPPLEMENTARY INFORMATION:
Organization of This Document. The
following outline is provided to aid in
locating information in this preamble.
I. General Information
A. Does this notice of final action on
reconsideration apply to me?
B. How do I obtain a copy of this document
and other related information?
II. Background Information
III. Actions We Are Taking
A. Issue for Which Reconsideration Was
Granted: Sewage Sludge Incinerators
B. Remaining Issues in Petition for
Reconsideration
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
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F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution or Use
I. National Technology Transfer
Advancement Act
J. Congressional Review Act
I. General Information
A. Does this notice of final action on
reconsideration apply to me?
Regulated Entities. This final action
on reconsideration potentially affects
sewage sludge incinerators (SSI).
Although there is not a specific North
American Industrial Classification
System (NAICS) code for SSI, these
units may be operated by municipalities
or other entities and the following
NAICS codes apply: Non-hazardous
incinerators (NAICS 562213); sludge
disposal sites (NAICS 562212); and
sewage treatment facilities (NAICS
221320). The categories and entities
regulated by the final OSWI rules are
very small municipal waste combustion
(VSMWC) units and institutional waste
incineration (IWI) units. The final OSWI
emission guidelines and new source
performance standards (NSPS) affect the
following categories of sources:
Category
NAICS code
Examples of potentially regulated entities
Any State, local, or Tribal government using a VSMWC unit
as defined in the regulations.
562213, 92411
Institutions using an IWI unit as defined in the regulations ......
922, 6111, 623,
7121
928
Solid waste combustion units burning municipal waste collected from the general public and from residential, commercial, institutional, and industrial sources.
Correctional institutions, primary and secondary schools,
camps and national parks.
Department of Defense (labs, military bases, munition facilities).
Universities, colleges and community colleges.
Any Federal government agency using an OSWI unit as defined in the regulations.
Any college or university using an OSWI unit as defined in the
regulations.
Any church or convent using an OSWI unit as defined in the
regulations.
Any civic or religious organization using an OSWI unit as defined in the regulations.
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities that were
regulated by the final OSWI rules.
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B. How do I obtain a copy of this
document and other related
information?
Docket. The docket number for this
action and the final OSWI NSPS (40
CFR part 60, subpart EEEE) and
emission guidelines (40 CFR part 60,
subpart FFFF) is Docket ID No. EPA–
HQ–OAR–2003–0156.
World Wide Web (WWW). In addition
to being available in the docket,
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6113, 6112
8131
Churches and convents.
8134
Civic associations and fraternal associations.
electronic copies of the final rule and
the notice of final action on
reconsideration are available on the
WWW through the Technology Transfer
Network Web site (TTN). Following
signature, EPA posted a copy of the final
rule on the TTN’s policy and guidance
page for newly proposed or promulgated
rules at https://www.epa.gov/ttn/oarpg.
The TTN provides information and
technology exchange in various areas of
air pollution control.
II. Background Information
Section 129 of the Clean Air Act
(CAA), entitled ‘‘Solid Waste
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Combustion,’’ requires EPA to develop
and adopt NSPS and emission
guidelines for solid waste incineration
units pursuant to CAA section 111.
Section 111(b) of the CAA requires EPA
to establish NSPS for new sources, and
CAA section 111(d) requires EPA to
establish procedures for States to submit
plans for implementing emission
guidelines for existing sources. Congress
specifically added CAA section 129 to
the CAA to address concerns about
emissions from solid waste combustion
units. Section 129(a)(1) of the CAA
identifies five categories of solid waste
incineration units:
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Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations
notice (69 FR 71472, December 9, 2004)
did not specifically mention or request
comment on whether SSI should be
regulated under the OSWI rules. EPA
did publish notices on April 24, 2000
(65 FR 23459), and June 26, 2002 (67 FR
43113), stating that it had decided not
to regulate SSI as a category under CAA
section 129 and, instead, had listed it as
an area source category to be regulated
under CAA sections 112(c)(3) and
112(k)(3). These notices, however, did
not request public comment on whether
SSI should be regulated under CAA
section 129 or 112. We decided to grant
reconsideration of this issue in the
interest of ensuring full opportunity for
comment.
A total of 20 unique comments were
received on the June 28, 2006, proposal
notice including a comment by the
petitioner, Sierra Club. Seventeen of the
commenters wholly support EPA’s
proposed decision to regulate SSI under
CAA section 112 rather than CAA
section 129. One of the supporting
commenters is a trade organization for
publicly-owned treatment works, which
are usually the SSI owners and
operators. Sixteen member
municipalities submitted separate
comment letters endorsing the
comments from the trade organization.
Aside from the petitioner, two State
agencies submitted comments that do
not fully support EPA’s proposal. All of
the comments are addressed in the
following discussion.
III. Actions We Are Taking
At this time, we are announcing our
final action on reconsideration of one
issue for which we asked for comment
in our June 28, 2006, notice. We are also
announcing our final decision on six
remaining issues that were raised by
petitioners.
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(1) Units with a capacity of greater
than 250 tons per day (tpd) combusting
municipal waste;
(2) Units with a capacity equal to or
less than 250 tpd combusting municipal
waste;
(3) Units combusting hospital,
medical, and infectious waste;
(4) Units combusting commercial or
industrial waste; and
(5) Unspecified ‘‘other categories of
solid waste incineration units.’’
EPA previously developed regulations
for each of the listed categories of solid
waste incineration units except for the
undefined ‘‘other categories of solid
waste incineration units.’’ On December
9, 2004 (69 FR 71472), EPA proposed
NSPS and emission guidelines for OSWI
units. EPA received and considered
public comments and promulgated final
regulations for OSWI units on December
16, 2005.
Following the promulgation of the
final OSWI rule, EPA received a petition
for reconsideration from the Sierra Club.
On June 28, 2006 (71 FR 36726), we
granted reconsideration and requested
comment on one issue raised by the
petitioner: specifically, whether SSI
should be regulated under the OSWI
rules.
The public comment period on the
reconsideration ended on August 14,
2006. Twenty written public comments
were received. The individual comment
letters can be found in Docket ID No.
EPA–HQ–OAR–2003–0156.
1. Legal and Record Basis for Decision
Not to Regulate SSI Under OSWI Rules
a. EPA’s Position in OSWI Final Rule.
In promulgating the final OSWI
rulemaking, EPA took the position that
it was not required to regulate SSI as
OSWI under the terms of CAA section
129. Section 129 of the CAA provides,
in relevant part:
A. Issue for Which Reconsideration Was
Granted: Sewage Sludge Incinerators
On June 28, 2006 (71 FR 36726), we
granted reconsideration of and
requested comment on the SSI issue that
was raised in the petition for
reconsideration. Generally, the
petitioner contended that SSI should be
regulated as a type of OSWI under CAA
section 129. The petitioner noted that
the notice of proposal of the OSWI rules
did not mention SSI, and claimed that
there was no opportunity to comment
on EPA’s decision not to regulate SSI
under OSWI. Moreover, the petitioner
argued that EPA’s rationale was
advanced for the first time in the final
rule and supporting documents.
In our June 28, 2006, notice of
reconsideration (71 FR 36726), EPA
acknowledged that the OSWI proposal
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Sec. 129. Solid Waste Combustion
(a) New Source Performance Standards.—
(1) In general.—
(A) The Administrator shall establish
performance standards and other
requirements pursuant to section 111 and
this section for each category of solid waste
incineration units. Such standards shall
include emissions limitations and other
requirements applicable to new units and
guidelines (under section 111(d) and this
section) and other requirements applicable to
existing units.
[Subparagraphs (B)–(D) establish schedules
for standards applicable to solid waste
incineration units combusting municipal
waste; hospital waste, medical waste, and
infectious waste; and commercial and
industrial waste.]
(E) Not later than 18 months after the date
of enactment of the Clean Air Act
Amendments of 1990, the Administrator
shall publish a schedule for the promulgation
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of standards under section 111 and this
section applicable to other categories of solid
waste incineration units.
In addition, CAA section 129(h)(2)
provides,
(2) Other authority under this act.—
Nothing in this section shall diminish the
authority of the Administrator or a State to
establish any other requirements applicable
to solid waste incineration units under any
other authority of law * * *, except that no
solid waste incineration unit subject to
performance standards under this section
and section 111 shall be subject to standards
under section 112(d) of this Act.
In the final OSWI rulemaking, EPA
concluded that the provisions of CAA
section 129(a)(1) do not mandate that
SSI be regulated as OSWI under CAA
section 129. Because EPA is in the
process of regulating SSI under CAA
section 112, EPA relied on CAA section
129(h)(2) as part of its basis for not
regulating SSI under CAA section 129
(70 FR 74874–74875, December 16,
2005).
b. Comments. One commenter (EPA–
HQ–OAR–2003–0156–0118) claims that
EPA’s failure to set CAA section 129
standards for SSI contravenes the CAA.
The commenter contends that CAA
section 129 unambiguously requires
EPA to set CAA section 129 standards
for any facility that combusts any solid
waste, with the exception of the limited
categories of facilities expressly exempt
in CAA section 129(g)(1). To support its
view, the commenter cites CAA section
129(a)(1)(A) and notes that CAA section
129(g)(1) defines ‘‘solid waste
incineration unit’’ as ‘‘a distinct
operating unit of any facility which
combusts any solid waste material from
commercial or industrial establishments
or the general public. * * *’’. The
commenter adds that EPA recognized
that ‘‘sludge generated by publicly
owned treatment works (POTWs) is a
solid waste from the general public,
commercial and industrial
establishments’’ (62 FR 1869, January
14, 1997) and that EPA admitted that
sewage sludge is a solid waste (Unified
Agenda, 65 FR 23549–01, April 24,
2000). The commenter concludes that a
plain reading of the CAA shows that SSI
cannot be exempt from CAA section
129. The commenter claims that
emissions from SSI are comparable to
other categories of waste incinerators
regulated under CAA section 129. The
commenter claims that the exclusion of
SSI from the OSWI rules contravenes
the CAA.1
Conversely, another commenter
(EPA–HQ–OAR–2003–0156–0127)
1 The commenter also claims that the exclusion of
SSI from the OSWI rules contravenes the consent
decree in Sierra Club v. Whitman, No. 01–1537
(D.D.C.).
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Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations
asserts that EPA was well within its
discretion to exclude SSI from the OSWI
rule. The commenter states that CAA
section 129 directs EPA to regulate
certain categories of incinerators
enumerated in CAA section
129(a)(1)(A)–(D), but the statute does
not define the categories of ‘‘other’’
solid waste incineration units that must
be regulated under CAA section
129(a)(1)(E). Therefore, inherent in
EPA’s implementation of CAA section
129 is the discretion to reasonably
define what constitutes the statutorily
undefined ‘‘other categories’’ and to
determine which warrant regulation
under CAA section 129. The commenter
argues that this conclusion is supported
by the fact that the CAA provides firm
timelines for the specifically identified
categories of incinerators, but states that
EPA must publish only a schedule for
the statutorily undefined ‘‘other
categories.’’ The commenter claims that
CAA section 129 plainly does not
require EPA to promulgate OSWI
standards for ‘‘every’’ or ‘‘all’’ possible
categories of solid waste incineration
units; if that had been Congress’ intent,
then Congress would have provided that
direction in CAA section 129(a)(1)(E) by
stating that EPA should regulate ‘‘all’’ or
‘‘every’’ other category of solid waste
incineration units. The commenter also
contends that legislative history shows
Congress was focused on municipal
waste combustion units, and was also
concerned about other specific large
incinerators, including medical waste
incinerators and industrial incinerators,
but that Congress did not once mention
POTW sewage sludge or SSI when
discussing CAA section 129. Several
municipal agencies that operate SSI
(EPA–HQ–OAR–2003–0156–0112,
–0113, –0114, –0115, –0116, –0117,
–0119, –0120, –0121, –0123, –0124,
–0125, –0128, –0130, –0131, –0133)
support these comments submitted by
the commenter (EPA–HQ–OAR–2003–
0156–0127), and support EPA’s
previous decision not to regulate SSI
under CAA section 129.
Two commenters (EPA–HQ–OAR–
2003–0156–0127, –0120) refer to CAA
section 129 language that indicates the
same category cannot be regulated
under both CAA sections 112 and 129.
The commenters state that because area
source SSI are going to be regulated
under CAA section 112, they cannot be
regulated under CAA section 129. One
of the commenters (EPA–HQ–OAR–
2003–0156–0127) points out that EPA
originally listed SSI as a hazardous air
pollutants (HAP) source category under
CAA section 112, but in 2002
determined that the SSI category did not
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Jkt 211001
have any major sources of HAP. Later in
2002, EPA included SSI in a list of area
source categories to be regulated under
CAA section 112 (67 FR 43112, June 26,
2002). Conversely, another commenter
(EPA–HQ–OAR–2003–0156–0126)
recommends regulating SSI under the
CAA section 129 OSWI rules. A large
waste water treatment plant with 14 SSI
units is located in the commenter’s
State.
The commenter contends that these
units are poorly controlled with few
current applicable regulatory
requirements. The commenter states
that EPA has not pursued regulation of
area source SSI under CAA section 112
in a timely manner. Rather than wait for
potential regulations under CAA section
112, the commenter favors including
SSI in the OSWI regulations.
c. Response to Comments; Legal and
Record Basis for Decision Not to
Regulate SSI Under OSWI Rules. EPA
has decided not to regulate SSI under
the OSWI rules. We are developing
regulations for SSI under CAA section
112. For several reasons, we disagree
with the petitioner’s comment that any
incinerator burning any solid waste
must be regulated under CAA section
129.2
First, the CAA is ambiguous regarding
what categories of solid waste
incineration units must be regulated
under CAA section 129(a)(1)(E).
Subparagraph (A) of CAA section
129(a)(1) provides, ‘‘The Administrator
shall establish performance standards
and other requirements pursuant to
section 111 and this section for each
category of solid waste incineration
units.’’ Subparagraphs (B)–(D) discuss
timelines for very specific categories of
solid waste incinerators (e.g., large and
small municipal waste combustors,
commercial and industrial waste
incinerators, and hospital and medical
waste incinerators), while subparagraph
(E) states only that EPA must publish a
schedule for promulgating standards for
‘‘other categories of solid waste
incineration units.’’ The directive under
subparagraph (A) to regulate ‘‘each
category of solid waste incineration
units’’ should be read in conjunction
with subparagraphs (B)–(E), so that the
directive refers to the categories of solid
waste incineration units that are
identified under subparagraphs (B)–(E).
Subparagraph (E) does not
unambiguously require, as implied by
2 The commenter is also incorrect that excluding
SSI units violates the consent decree in Sierrall
Club v. Whitman, No. 01–1537 (D.D.C.). The
Consent decree obligates EPA to regulate other
categories of solid waste incinerators under CAA
section 129(a)(1)(E), but does not identify SSI units
as one of those categories.
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one commenter, that the OSWI
standards must apply to every other
possible type of incineration unit
burning any type of solid waste. If
Congress had intended such a clear
directive, it could have instructed EPA
to regulate ‘‘every other category’’ of
solid waste incineration unit, instead of,
simply, ‘‘other categories.’’ Yet Congress
did not use such unambiguous
language, leaving it to EPA to interpret
the CAA in a reasonable manner by
determining which other categories to
include under subparagraph (E).
Second, the position adopted by this
commenter would lead to absurd
results. Under the commenter’s
interpretation, a homeowner burning
leaves in a barrel in his or her backyard
must be subject to a CAA section 129
rule because the barrel is a unit
combusting solid waste material.
Congress cannot have intended that EPA
regulate such sources under CAA
section 129, with all the attendant
requirements. The language of CAA
section 129 suggests that Congress
wanted to focus EPA’s attention to
specific, larger incineration units (e.g.,
municipal waste combustion (MWC)
units and commercial and industrial
solid waste incineration (CISWI) units).
Under the commenter’s interpretation of
CAA section 129, however, EPA would
have to establish emission standards 3
for dozens of different types of small
incineration units with potentially
minimal emissions. As discussed in the
final rule (70 FR 74875, December 16,
2005), this interpretation would result
in large burdens on these sources, and
Congress cannot have intended that
result merely by referencing an
undefined ‘‘other’’ category of
incineration units. Thus, the
instructions to EPA to promulgate
standards for ‘‘other categories’’ of solid
waste incinerators inherently include
the authority for EPA to reasonably
delineate those ‘‘other’’ categories of
solid waste incineration units.
Third, in the proposed and final rules,
we also clarified that under CAA section
129(g)(1), certain types of units are not
regulated by the OSWI rules. Some of
these units are specifically excluded by
CAA section 129(g)(1) (e.g., hazardous
waste combustion, small power
production facilities, cogeneration
facilities burning homogenous waste).
However, as stated in the final rule, we
do not agree that the facilities explicitly
described in CAA section 129(g)(1) are
the only types of facilities that are
3 Under section 129(a)(1), EPA is requird to
establish performance standards and other
requirements for specified categories of solid waste
incineration units.
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properly excluded from the OSWI
category. That is, we do not read CAA
section 129(g)(1) to establish an
exclusive list of excluded sources.
Fourth, our interpretation of CAA
section 129(a)(1) and (g)(1) is consistent
with legislative history. Congress added
CAA section 129 as part of the 1990
CAA Amendments. Sen. Durenberger,
one of the authors, indicated that he
understood the provision to ‘‘require
EPA to issue new source performance
standards for municipal incinerators, for
medical waste incinerators and for
incinerators burning commercial and
industrial waste.’’ S. PRT 103–38,
Senate Committee on Environment and
Public Works, A Legislative History of
the Clean Air Act Amendments of 1990
(‘‘Legislative History’’, vol. IV, p. 7052
(statement of Sen. Durenberger during
Senate floor debate, April 3, 1990)).
Similarly, Sen. Baucus, another of the
authors, stated that the provision
‘‘directs EPA to establish one set of
standards for municipal incinerators,
another set for hospital incinerators and
small [municipal] units, and another set
for industrial incinerators’’. Id. at 7054
(statement of Sen. Baucus). Similarly,
the Conference Report describes CAA
section 129 as ‘‘a provision to control
the air emissions from municipal,
hospital, and other commercial and
industrial incinerators.’’ H. Rep. 101–
952 at 341, ‘‘Clean Air Act Amendments
of 1990, Conference Report to
Accompany S. 1630,’’ reprinted in id.,
vol. I, at 1791.
The incinerators identified by these
statements are included in
subparagraphs (B)–(D) of CAA section
129(a)(1). These statements, and the
various other statements in the
legislative history of this provision,
make no specific reference to any of the
‘‘other categories of solid waste
incineration units’’ that may be covered
under subparagraph (E).4 Thus, the
4 That Congress did not intend for all types of
incinerators to be regulated under CAA section 129
is evidenced by the fact that Congress, at the time
it enacted CAA section 129, was aware of other
categories of solid waste incinerators, but did not
discuss those units in the context of CAA section
129. For example, the Senate Committee Report
listed SSI among source categories that emit
carcinogenic pollutants. S. Rep. 101–228 ‘‘Clean Air
Act Amendments of 1989, Report of the Senate
Committee on Environment and Public Works,’’ at
188, Figure III–7, reprinted in Legislative History,
vol. V, at 8528. This statement was made as part
of a discussion of regulating toxics in general under
the authority of CAA section 112, and not in the
context of proposed CAA section 129. Similarly, a
Statement by Sen. Baucus notes that title III of the
1990 Clean Air Act Amendments covers, among
other things, ‘‘sewage treatment plants
incinerators.’’ Legislative History, vol. 1, at 1028
(statements of Sen. Baucus). This statement was
made as part of discussions of regulating toxics in
general title III, and not specifically in the context
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legislative history suggests that
subparagraph (E) should not be read, by
its terms, to sweep in all other types of
solid waste incinerators. Such an
expansive reading would not be
consistent with the authors’ statements.
Thus, we have discretion to determine
which categories of units constitute
‘‘other categories of solid waste
incineration units.’’
Fifth, we indicated in the final OSWI
rules that units are not covered under
OSWI if they are regulated under other
CAA section 129 or CAA section 112
standards (e.g., small and large MWC,
hospital, medical and infectious waste
incinerators (HMIWI), CISWI, boilers,
cement kilns). The language of CAA
section 129(h) makes clear the
Congressional intent for CAA
regulations under CAA section 129 or
CAA section 112 to be mutually
exclusive (70 FR 24875, December 16,
2005). We reiterated these statements in
the recent CISWI final rule
amendments, including, among other
things, the important policy objective of
avoiding duplicative regulation (70 FR
55568, 55574–55575, September 22,
2005). We maintain that we have the
discretion to determine which ‘‘other
categories’’ of solid waste incinerator
units to regulate under CAA section
129. This discretion includes the
determination of which categories are
best regulated under CAA section 112
rather than CAA section 129.
Accordingly, we determined in the
final OSWI rules that sources subject to
CAA section 112 standards are not
OSWI units.5 Regulation of certain types
of units under CAA section 112, rather
than CAA section 129, is sensible. From
a policy standpoint, regulation under
CAA section 112 generally offers EPA
more flexibility than regulation under
CAA section 129, and thus allows EPA
to tailor regulatory requirements more
appropriately to the level of HAP
emitted by the source. In particular,
under CAA section 112(d), EPA has the
flexibility to regulate the full range of
HAP from area (i.e., non-major) sources
based on either maximum achievable
control technology (MACT) or
‘‘generally available control
technologies or management practices’’
(GACT), whereas CAA section 129
would require MACT regardless of the
level of emissions from the source. EPA
has interpreted CAA section 112(d)(5) to
of proposed CAA section 129. Thus, each of these
statement is consistent with regulating SSI under
CAA section 112, and neither indicates
congressional intent that SSi be regulated under
CAA section 129.
5 Absence of current regulations under CAA
section 112, however, is not determinative of
whether a unit is subject to the final OSWI rules.
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allow consideration of costs in
determining GACT. In developing
MACT standards, EPA cannot consider
cost in setting the floor, which is the
minimum level of control required by
CAA section 112(d)(3). Thus, CAA
section 112(d)(5) offers EPA flexibility
to develop standards for area sources
that account for some of the unique
characteristics of area source categories,
including the economic effects of
regulation on smaller sources.
Because the SSI category is composed
entirely of area sources of HAP,
regulating SSI under the CAA section
112 area source program offers the
advantage of this flexibility.
Specifically, in proposing and
promulgating regulations under CAA
section 112 covering SSI, EPA will have
the opportunity to evaluate cost
constraints, which may be particularly
important in light of the relatively small
size of the units at issue here. EPA may
decide, based on the circumstances of
the source category, to promulgate
GACT, as opposed to MACT, for SSI
under CAA section 112. EPA has not yet
regulated SSI and thus we cannot
predict at this time what the proposed
standards for this category will be, but
the relevant issue here is that CAA
section 112 provides important
flexibilities that are absent in CAA
section 129. In CAA section 112,
Congress specifically recognized the
need for providing such flexibilities to
area sources.
Moreover, regulating SSI under the
CAA section 112 area source program
offers the additional flexibility of
determining whether to require SSI
units to obtain title V permits. By
comparison, were EPA to regulate SSI
under CAA section 129, SSI sources
would be required to obtain title V
permits. The cost to small sources, such
as SSI units, of the title V permit
program would be relatively high, so the
flexibility that CAA section 112
provides with respect to title V
requirements may be useful in tailoring
the overall regulatory scheme.
To summarize, given the statutory
provisions of CAA sections 129(a), (g)
and (h), as interpreted above, and the
legislative history and policy
considerations noted above, we
maintain that EPA has the discretion to
define which categories of combustion
units should be subject to regulation
under CAA section 129 and hence, to
which categories of solid waste
combustion units the standards for
‘‘other categories of solid waste
incineration units’’ apply. Thus, at the
outset of the rulemaking process, EPA
determined what universe of sources
will be subject to the regulations. As
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explained further in the final rule, in
determining the scope of OSWI, EPA
collected and analyzed data to identify
potential OSWI units. EPA determined
that the regulations should focus on two
categories of waste combustion units:
IWI units and VSMWC units.
SSI are a source category that is being
addressed under CAA section 112. EPA
acknowledges that earlier notices
indicated that SSI would be considered
OSWI units (62 FR 1868, January 14,
1997; 63 FR 66087, December 1, 1998).
However, as we discussed in the
preamble to the final OSWI rules and
the response to comment document,
later notices conveyed the fact we
intended to regulate SSI under CAA
section 112, not under CAA section 129.
As early as April 2000, EPA indicated
that it no longer intended to regulate SSI
under CAA section 129 (Unified
Agenda, 65 FR 23459–01, April 24,
2000). In addition, EPA’s intent to
regulate these sources under CAA
section 112 was made clear when SSI
were included as an additional area
source category listed pursuant to CAA
sections 112(c)(3) and 112(k)(3)(B)(ii) in
the June 26, 2002 Federal Register (67
FR 43113). As discussed previously,
source categories regulated by CAA
section 112 should not also be subject
to a CAA section 129 regulation. In
previous regulatory activities, EPA was
unable to identify any SSI that were
major sources. (See 67 FR 6521,
February 12, 2002.) Therefore, the entire
SSI source category consists of area
sources, and will be addressed by the
CAA sections 112(c) and 112(k)
regulations. In fact, EPA is under a
court-ordered schedule to promulgate
standards under CAA section 112(d) for
those area source categories listed by
EPA pursuant to CAA sections 112(c)(3)
and (k)(3)(B). Sierra Club v. Johnson,
No. 1:01CV01537 (D.D.C.) Order (March
31, 2006). EPA must promulgate
standards for a specified number of area
source categories every 6 months
between December 15, 2006 and June
15, 2009. SSI is one of the listed
categories, so EPA must promulgate
CAA section 112 regulations for SSI no
later than June 15, 2009. We believe that
CAA section 112, by virtue of offering
greater flexibility in allowing
consideration of cost to determine the
level of control required for area sources
and in applying title V requirements is
a reasonable vehicle for regulation of
SSI, given that the SSI category is
composed of area sources. We further
believe that, in light of the plan to
regulate SSI under CAA section 112,
regulation of SSI under CAA section 129
is unnecessary and would be
duplicative.
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Regarding the comment from a State
agency that a specific large SSI in their
State is poorly controlled, a State or
local agency is free to develop
regulations to address a state or local air
quality issue if they believe action is
necessary prior to EPA’s development of
CAA section 112 standards for SSI.
2. Other Arguments Advanced by
Commenters for Not Regulating SSI
Under CAA Section 129
Two commenters (EPA–HQ–OAR–
2003–0156–0127, –0122) contend that
EPA has no authority to regulate SSI
under CAA section 129 for the
definitional reasons that, in their view,
(i) sludge from POTWs is not ‘‘solid
waste’’ within the meaning of CAA
section 129(g)(6); and (ii) SSI are not
‘‘solid waste incineration unit[s]’’
within the meaning of CAA section
129(g)(1). Under CAA section 129(g)(6),
‘‘solid waste’’ is given the same
definition as the term is given under the
Solid Waste Disposal Act. EPA provided
a definition in the OSWI final rule (70
FR 74921, December 16, 2005) (40 CFR
60.3078): ‘‘Solid waste means any
garbage, refuse, sludge from a waste
treatment plant * * * But does not
include solid or dissolved material in
domestic sewage * * *.’’
The commenter appears to argue that
sludge from a POTW constitutes ‘‘solid
or dissolved material in domestic
sewage.’’ In the April 2000 Unified
Agenda, in which EPA announced that
it would regulate SSI under CAA
section 112, EPA stated that POTWgenerated sewage sludge is ‘‘solid
waste.’’ (65 FR 23459, April 24, 2000).
EPA noted that statement in the OSWI
final rule, in the context of explaining
that EPA had a long-standing policy of
regulating SSI under CAA section 112,
citing the April 2000 Unified Agenda
(70 FR 74880, December 16, 2005).
However, because EPA has determined
not to regulate SSI as OSWI under CAA
section 129 for other reasons, it is not
necessary to evaluate the comment that
POTW-generated sewage sludge is not
‘‘solid waste.’’
Under CAA section 129(g)(1), a ‘‘solid
waste incineration unit’’ is defined, in
relevant part, as a ‘‘unit * * * of any
facility which combusts any solid waste
material from commercial or industrial
establishments or the general public
* * *.’’ Some commenters argue that
POTWs are municipal sources, not the
sources described in the definition of
‘‘solid waste incineration unit[s]’’, and
therefore do not meet that definition.6
6 One commenter (EPA–HQ–OAR–2003–0156–
0118) disagreed and argues that SSI do meet the
definition of ‘‘solid waste incinceration units.’’ The
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2625
EPA included a statement to this effect
in the April, 2000 Unified Agenda (65
FR 23459, April 24, 2000). EPA cited
this statement in the OSWI final rule in
the context of explaining that EPA had
a long-standing policy of regulating SSI
under CAA section 112. As noted above,
because EPA has determined not to
regulate SSI under CAA section 129 for
other reasons, it was not necessary for
EPA to determine in the final OSWI rule
whether SSI meet the definition of
‘‘solid waste incineration unit[s],’’ and
for the same reason, it is not necessary
to respond to the comments here.
3. Regulatory History
One commenter (EPA–HQ–OAR–
2003–0156–0118) dismisses EPA’s
argument that since April 2000 EPA has
indicated it no longer intends to
regulate SSI as incinerators under CAA
section 129 but intends to regulate them
as area sources of HAP under CAA
section 112. The commenter says that
EPA’s announcement of this intent in
the April 2000 semiannual regulatory
agenda does not alter EPA’s statutory
obligation under CAA section 129.
As discussed above, we have decided
not to regulate SSI under the OSWI
regulations. These units will be
regulated under a separate CAA section
112 area source regulation currently
under development. This
reconsideration process cures any
defects in the notice-and-comment
process that the commenter believes
occurred in the past.7
4. Impacts
In support of EPA’s decision to not
regulate SSI under the OSWI rule,
several commenters discuss the benefits
of incineration and argue that the costs
of regulation under CAA section 129
would cause adverse impacts to
communities. For example, two
commenters point out several benefits
provided by incineration of sewage
sludge. One commenter (EPA–HQ–
OAR–2003–0156–0127) states that
incineration of biosolids reduces waste
volume, destroys pathogens, and
degrades toxic organic compounds and
is, therefore, an important, safe, and
effective component of biosolids
commenter further states that much of the waste
burned in MWC and medical waste incinerators
comes from municipal sources and that these
incinerators are regulated under CAA section 129.
The commenter further notes that in any event,
some SSI are privately owned.
7 Another commenter (EPA–HQ–OAR–2003–
0156–0127) responds to one of the petitioner’s
claims by describing the regulatory history and
concludes that EPA’s decision not to regulate SSI
under CAA section 129 was reached after a
thorough and complete evaluation of the issues that
included opportunities for comment.
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management practices used by POTWs.
Another commenter (EPA–HQ–OAR–
2003–0156–0122) adds that incineration
is a viable and important management
option for POTWs. The commenter
states that incineration gives a
municipality greater control of their
operation by reducing dependency on
others to accept and use biosolids,
minimizes onsite and offsite odors,
requires a small land area, can be
operated continuously in all weather
conditions, and can also be a source of
energy. According to the commenters,
approximately 17 percent of biosolids
generated by POTWs are incinerated,
and 150 municipalities in the United
States use thermal oxidation to turn
biosolids into an energy source to
produce some or all of the energy they
need to operate, provide an extra
revenue source, and help reduce energy
and transportation costs. One
commenter provides references and
attachments to demonstrate that EPA
has recognized SSI as a viable option for
local community management of
biosolids. The other commenter
attached a brochure on bioenergy from
wastewater treatment. Both commenters
argue that subjecting SSI to CAA section
129 rules could eliminate SSI as a viable
option.
Regarding impacts of regulation under
CAA section 129, one commenter (EPA–
HQ–OAR–2003–0156–0127) states that
including SSI in OSWI would impose
substantial costs to SSI operators
without corresponding benefits, and the
costs that would be imposed on POTW
ratepayers could eliminate SSI as a safe,
viable, and cost-effective biosolids
management option for many
communities. The regulatory burden
would be substantial without
corresponding health or environmental
benefits. The commenter is also
concerned that limits for NOX and CO
might not be simultaneously achievable.
The commenter concludes that cost and
regulatory burden of regulating SSI
under CAA section 129 would be
inconsistent with past EPA declarations
that incineration is a safe and acceptable
biosolids disposal practice and
Congressional intent that EPA provide
safe management practices for use and
disposal of biosolids and not dictate
preferred practices and eliminate others.
Another commenter (EPA–HQ–OAR–
2003–0156–0122) adds that a
technology-based standard imposed by
CAA section 129 would require major
expenditure whether or not there are
any risks to human health and the
environment.
A few commenters provided estimates
on the cost impacts that a CAA section
129 regulation would have on their SSI.
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As an example, one commenter (EPA–
HQ–OAR–2003–0156–0112) says that
incineration is the least costly method
of sewage sludge disposal for
Anchorage, AK. They haul two dump
truck loads of SSI ash to the regional
landfill weekly, a 50-mile round trip
through residential neighborhoods. If
SSI were eliminated because of costly
regulations, hauling sludge to the
landfill would require 28 more dump
truck loads per week at a cost of $90,000
per month, and would increase air
pollution from the dump trucks. In
another comment, a commenter (EPA–
HQ–OAR–2003–0156–0123) operates a
POTW that serves a population of
450,000 people and has two multiple
hearth SSI. The commenter’s
preliminary analysis of available
technologies to meet CAA section 129
OSWI regulations indicate that those
technologies have not been applied to
multiple-hearth incinerators, are
expensive, and may not provide
consistent compliance. The commenter
estimates that modification of their
existing furnaces could cost over $18
million, and the option of replacing the
existing furnaces with new fluidized
bed SSI with emission controls that
meet CAA section 129 emission limits
would be $35 to 40 million. The
commenter investigated an alternative
to incineration, and estimated the cost
to convert to anaerobic digestion with
dewatered sludge disposal was $50
million. For this option, a landfill or
land application site to dispose of the
sludge would need to be found, and 25
to 30 trucks per day would be required
to haul the district’s sludge, which
would be intrusive to neighborhoods
and generate emissions.
As we have discussed earlier, we have
decided not to regulate SSI under the
OSWI regulations. These units will be
regulated under a separate CAA section
112 area source regulation currently
under development. We agree with the
commenters that SSI are an important
option for community management of
biosolids from POTW that treat sewage
sludge, and have environmental
benefits. As discussed in section A.1,
CAA section 112 allows EPA greater
flexibility than CAA section 129 to
establish emission limits that serve the
overall purpose of protecting public
health and the environment while
avoiding unreasonable economic
impacts and preserving the benefits of
SSI cited by the commenters.
5. Carbon Monoxide Limits for SSI
One commenter (EPA–HQ–OAR–
2003–0156–0129) says the nine POTWs
using SSI in their State have permits
under State air rules and title V that
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include CO and volatile organic
compound (VOC) emission limits. The
commenter believes that all incinerators
should have CO limits and CO
continuous emissions monitoring (CEM)
requirements because CO is a good
indicator of combustion efficiency. The
commenter states that current Federal
Clean Water Act SSI regulations in 40
CFR part 503 have a hydrocarbon
concentration limit, but do not have a
CO limit. They recommend that either
40 CFR part 503 be revised to include
an emission limit and CEM requirement
for CO, or that SSI be subject to the
OSWI rules.
As we have discussed fully earlier, we
have decided not to regulate SSI under
the OSWI regulations. These units will
be regulated under a separate CAA
section 112 area source regulation
currently under development. We are
unable to say what the final
requirements for SSI will be under these
regulations. We encourage all interested
parties to provide comments on the
CAA section 112 area source regulations
for SSI once they are proposed.
6. SSI Are Already Regulated
Two commenters (EPA–HQ–OAR–
2003–0156–0127 and EPA–HQ–OAR–
2003–0156–0122) say EPA’s decision
not to regulate SSI under CAA section
129 is reasonable because SSI are
already regulated by other regulations
that protect public health and the
environment. The commenters explain
that since 1993, POTWs have been
subject to a comprehensive, risk-based
program for reducing potential
environmental risks of sewage sludge
under Clean Water Act (CWA) sections
405 and the implementing regulations
in 40 CFR part 503. For disposal of
sewage sludge by incineration, 40 CFR
part 503, subpart E requires:
• Management practices and general
requirements
• Risk-based, site-specific limits for
arsenic, cadmium, chromium, lead, and
nickel content in biosolids incinerated
• Compliance with national emission
standards for hazardous air pollutants
(NESHAP) for mercury and beryllium
• Emission limits for total
hydrocarbon (THC) or an alternative
emission limit for CO
• Monitoring, recordkeeping and
reporting.
The commenters note that in
developing 40 CFR part 503 rules, EPA
also proposed a requirement for dioxin/
furan, but decided such requirements
were not warranted based on a risk
assessment showing risks from dioxin
were less than one in one million. The
commenters argue that the 40 CFR part
503 standards are protective of health
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and the environment, and that the
biennial review process in CWA section
405 provides an ample means for EPA
to identify and regulate any additional
concerns under 40 CFR part 503.
Another commenter (EPA–HQ–OAR–
2003–0156–0114) adds that the 40 CFR
part 503 regulations are risked-based
and were set (using conservative
assumptions) to ensure protection from
cancer risks at a level of 10¥5 (i.e., one
in ten thousand).
The commenters (EPA–HQ–OAR–
2003–0156–0127 and EPA–HQ–OAR–
2003–0156–0122) state that the mercury
NESHAP (40 CFR part 61, subpart E)
sets mercury emission limits, testing,
and monitoring requirements for
sources that incinerate wastewater
treatment plant sludge; and the
beryllium NESHAP (40 CFR part 61,
subpart C) sets limits for incinerators
that process beryllium containing waste.
SSI constructed or modified since June
11, 1973 are subject to the SSI NSPS (40
CFR part 60, subpart O), which contain
particulate matter, opacity, operating,
testing and monitoring requirements.
One of the commenters (EPA–HQ–
OAR–2003–0156–0127) adds that SSI
are subject to title V permits if they are
major sources and to State and local
requirements. Under CWA section 403,
POTWs also implement, through local
regulatory authority, pretreatment
standards that reduce harmful
constituents of biosolids. The
commenters (EPA–HQ–OAR–2003–
0156–0127 and EPA–HQ–OAR–2003–
0156–0122) contend that the
combination of CWA and CAA
regulations address CAA section 129
pollutants that are of concern for SSI,
and that further regulation under CAA
section 129 is not needed.
Another commenter (EPA–HQ–OAR–
2003–0156–0112) stated that their city’s
SSI is subject to emission limits for PM,
opacity, beryllium, and mercury and is
required to routinely monitor NOX and
CO emissions. They believe these
regulations adequately protect public
health and the environment and
additional regulation under CAA
section 129 is not warranted.
We appreciate commenters’ support
of our decision to not regulate SSI under
the CAA section 129 OSWI regulations.
We also acknowledge that various CWA
and CAA regulations currently apply to
SSI. These other regulations provide
some additional support for our
decision not to regulate under CAA
section 129 because these other
regulations provide protection of human
health and the environment for many of
the pollutants regulated by CAA section
129 regulations. In addition, as
discussed earlier, we are currently in
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the process of developing CAA section
112 regulations for HAP emitted from
the SSI source category. At the moment,
we are unable to say what the final
requirements for SSI will be under these
regulations. Therefore, we encourage all
interested parties to provide comments
on the CAA section 112 area source
regulations for SSI once they are
proposed.
B. Remaining Issues in Petition for
Reconsideration
We denied six issues contained in the
petitioner’s request for reconsideration
because they failed to meet the standard
for reconsideration under CAA section
307(d)(7)(B). Specifically, on these
issues, the petitioner has failed to show
the following: That it was impracticable
to raise their objections during the
comment period; or that the grounds for
their objections arose after the close of
the comment period; and/or that their
concern is of central relevance to the
outcome of the rules. We have
concluded that no clarifications to the
underlying rules are warranted for these
six remaining issues, as described
below.
1. Human Crematories
The petitioner objects to the exclusion
of human crematories from the OSWI
rules. They contend that EPA raised
new arguments regarding whether
human bodies burned at crematories are
solid waste during promulgation of the
final OSWI rules.
We do not agree with the petitioner’s
claim. We took comment on human
crematories as OSWI in the notice of
proposed rulemaking published on
December 9, 2004 (69 FR 71479). In the
notice of proposed rulemaking, we
made clear that the human body is not
considered ‘‘solid waste’’ and human
crematories are, therefore, not
considered solid waste incineration
units. Comments were received
regarding human bodies and their
juxtaposition to the definition of solid
waste used in the OSWI rules. In the
notice of final rulemaking (70 FR 74881,
December 16, 2005), we responded to
these comments, but we did not
introduce a new definition of solid
waste. Rather, in the final rule, we
excluded human crematories from the
OSWI rules for precisely the same
reason as proposed. Therefore, EPA
denies the request to reconsider human
crematories in the OSWI rules.
2. Incinerators in Isolated Areas of
Alaska
The petitioner contends that the
policy arguments that EPA advanced at
proposal and promulgation of the OSWI
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rules for exempting incinerators in
isolated areas of Alaska are not valid
and contravene the requirements of
CAA section 129. They further claim
that EPA raised new arguments during
promulgation of the OSWI rules that
commercial/industrial incinerators that
burn only municipal-type waste are not
subject to the CISWI rules, and they
argue that such incinerators should be
regulated. An example is an incinerator
that is owned by an industrial company,
is located in an oil field in Alaska, and
burns only household or municipal-type
waste.
We deny the petitioner’s request for
reconsideration on this issue. We
proposed and took comment on the
exemption of incinerators and air
curtain incinerators that are used at
solid waste disposal sites operating in
isolated areas of Alaska, and that are
classified as Class II or Class III facilities
under the Alaskan State codes (which,
in turn, are authorized under the Solid
Waste Disposal Act) (69 FR 71482–
71483, December 9, 2004).
We received comments that certain
incinerators are used to dispose of
household- or municipal-type waste
generated at oil fields and oil pipeline
pumping stations and the commenters
raised the issue of whether these units
would be exempt from OSWI
regulations. In the preamble to the final
OSWI regulations, we noted that the
comments did not provide specific
enough information about those
incinerators. In responding to the
comment, we explained that only units
that would otherwise be considered
VSMWC or IWI could be subject to
regulation as OSWIs, and that the
Alaska exemption was limited to units
that would, absent such exemption, be
treated as VSMWC or IWI and, thereby,
be subject to regulation as OSWI. Units
that would not be treated as VSMWC or
IWI would not be regulated as OSWI.
We then noted that although the
commenters provided insufficient
information about the other
incinerators, the information they did
provide suggests that the incinerators
would not qualify as VSMWC or IWI
units (70 FR 74878, December 16, 2005).
Petitioners have not demonstrated any
basis for why this conclusion merits
reconsideration and, as a result, we
deny the petition for reconsideration on
this point.
In the final OSWI rule, we further
noted that the incinerators described by
the commenters, i.e., those at oil fields
and oil pipeline pumping stations, may
potentially be considered CISWI units
depending on the waste combusted. If
they incinerate municipal-type waste,
then ‘‘the final CISWI rules do not
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currently cover commercial/industrialowned/operated incinerators that burn
only municipal-type waste’’ (70 FR
74878, December 16, 2005). We added,
‘‘EPA intends to address regulation of
such combustion units under future
revisions to the final CISWI rules.’’ Id.
Petitioners object to these statements,
and state that the CISWI rules do cover
these types of combustors, and further
state that if the CISWI rules do not cover
these types of combustors, then EPA is
unlawfully deferring regulation under
CISWI.8
We disagree with the petitioners.
Although the CISWI regulations
promulgated in 2000 regulate
incinerators located at commercial or
industrial facilities that are used to
combust industrial or commercial waste
as defined in the CISWI rules, the CISWI
regulations do not cover units located at
commercial or industrial facilities that
are used to combust more than 30
percent municipal-type wastes (e.g.,
food scraps, packaging, disposable
eating utensils, etc.) (40 CFR 60.2020(c)
and 40 CFR 60.2555(c)). Our
promulgation of those regulations
fulfilled our obligations to promulgate
CISWI regulations. Continued review of
those regulations, as we intend to do,
does not amount to unlawful deferral of
regulation.
3. Temporary-Use Incinerators
At proposal, EPA exempted
temporary-use incinerators used in
disaster or emergency recovery efforts
from the rule. Based on public
comments, EPA narrowed the
exemption to limit the potential for
abuse. The petitioner contends that EPA
did not provide an opportunity to
comment on the revised exclusion in
the final rule, and that the exclusion
still exceeds EPA’s authority under CAA
section 129.
We are denying this request because
we provided adequate opportunity to
comment on temporary-use incinerators
used in disaster recovery in the notice
of proposed rulemaking for OSWI
published on December 9, 2004 (69 FR
71483). Commenters pointed out a
potential for abuse in the proposed
exemption, which could allow
incinerators to operate indefinitely in
major disaster areas without having to
comply with the regulations. To address
these comments, as explained in the
notice of final rulemaking (70 FR
74879–74880, December 16, 2005), and
the response to comments document,
EPA narrowed the exemption in the
8 As noted above, a challenge by the Natural
Resources Defense Council to this rule is pending
before the D.C. Circuit.
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final OSWI regulations to temporary use
incinerators in local, State and Federally
proclaimed disaster areas; and, in
addition, limited the amount of time an
incinerator may operate in the recovery
effort without seeking approval from
EPA for an extension of operating time.
Thus, the revisions in the final rule are
a logical outgrowth of the proposed rule.
Therefore, having taken comment on the
issue and responded to those comments
during the rulemaking, EPA denies the
request to reconsider the exemption for
temporary-use incinerators used in
disaster recovery in the OSWI rules.
4. Incinerators That Burn National
Security Documents
At proposal, EPA requested comments
on whether it should provide an
exclusion from the OSWI rules for
incinerators that burn national security
documents. At promulgation, EPA
established exclusions for certain
incinerators burning national security
documents, and the petitioner contends
that they did not have an opportunity to
comment on the rationale for the
exclusion.
We deny the petitioner’s request for
reconsideration of this issue. In the
notice of proposed rulemaking, we took
comment on providing an exclusion for
‘‘a subclass of IWI that burn national
security documents,’’ so that such
subclass would not be regulated as an
OSWI (69 FR 71478, December 9, 2004).
We received comments from both the
public and other government agencies
for and against the need for such an
exclusion. On one hand, some public
commenters do not believe that there
was sufficient reason to provide an
exclusion for these units. On the other
hand, some public commenters and
government agencies presented cases
where sensitive documents must be
destroyed quickly and thoroughly, and
noted that document shredding and
chemical treatment may be unavailable
or infeasible. Such is the case for field
military readiness training exercises,
where it would be infeasible to carry
hazardous chemicals and equipment
needed to destroy classified documents
in the field.
Moreover, the final rule does not
provide an outright exclusion from
OSWI for incinerators that burn national
security documents (70 FR 74880–
74881, December 16, 2005). However, to
address the comments, we provided a
narrow exemption for IWI units used
solely during military training field
exercises to destroy national security
materials integral to the field exercises.
In addition, because we realized that
there may be particular instances where
incineration may be the only viable
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method of destroying national security
materials, we included provisions such
that individual IWI sources could apply
for this exclusion as necessary. One
example arises when chemical/
mechanical re-pulping is the primary
method of destruction of national
security documents; however, a
mechanical malfunction prevents use of
the system for an extended period of
time. In the meantime, there are ongoing
national security document destruction
needs at the facility that must be met.
It may be that a back-up incinerator is
the only available alternative to
adequately destroy the documents while
repairs are being made to the re-pulping
system. To operate the incinerator
without meeting the requirements of the
OSWI rules, the facility must apply for
an exclusion for the incinerator and
demonstrate that no other alternatives
for destruction of the materials are
presently available.
The exemptions added in the final
rule are a logical outgrowth from the
solicitation of comment in the proposed
rule. Thus, EPA denies the request to
reconsider incinerators used to burn
national security documents in the
OSWI rules.
5. Cement Kilns
The petitioner states that the
proposed OSWI regulations included an
exclusion for cement kilns, but this
exclusion was not specifically discussed
in the preamble to the proposed rule.
The petitioner contends that EPA
argued for the first time in the final rule
that EPA does not need to set standards
for cement kilns under CAA section 129
because they are already regulated
under CAA section 112. The petitioner
disagrees with this rationale.
We note that while the cement kiln
exclusion was not discussed per se in
the preamble to the proposed rules, the
exclusion was clearly presented in the
proposed regulatory language. In fact,
the petitioner provided comments on
the proposed exclusion for cement
kilns, to which EPA provided a
response in the response to comment
document supporting the final OSWI
regulations. As we noted in our
response, cement kilns have been
regulated under a CAA section 112
regulation since 1999, which covers
both major and area source cement
kilns.
As we discussed in both the proposal
(69 FR 71475 and 71477, December 9,
2004) and promulgation preambles (70
FR 74872 and 74875, December 16,
2005), as well as the response to
comment document for the OSWI rules,
the language of CAA section 129(h)
makes clear the Congressional intent for
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CAA regulations under CAA section 129
or CAA section 112 to be mutually
exclusive. At proposal, in addition to
submitting comments specifically on
cement kilns, the petitioner also
submitted comments on our general
rationale that EPA has the discretion to
determine which categories of
incineration units should be regulated
under CAA section 112 instead of CAA
section 129, and that the same source
category cannot be regulated under both
sections of the CAA.
Therefore, having received comment
on the issue and responding to said
comments during the rulemaking, EPA
denies the request to reconsider the
exclusion of cement kilns from the
OSWI rules.
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6. Plasma Arcs and Other Incineration
Technologies
The petitioner contends that EPA
failed to mention plasma arcs and
various other combustion technologies
in the preamble to the proposed OSWI
rules. The petitioner notes that EPA
received comments on whether various
technologies should be regulated. The
petitioner argues that in the final rule,
EPA seeks to ‘‘broadly exclude a wide
variety of incinerators from regulation
as incinerators and-in some cases-from
any regulations at all’’ and that there
was no opportunity to comment on
EPA’s rationale for such an exclusion.
As the commenter notes, we received,
and responded to, comments on this
issue in the preamble to the final rules
(70 FR 74876–74877, December 16,
2005). It is unrealistic to expect EPA, or
the commenter, to know of every
available technology that is, or could be,
used to function as a VSMWC or IWI.
Therefore, the OSWI rules are written
such that applicability is not limited to
specific combustion technologies.
(Although it should be noted that IWI
are limited to units without energy
recovery or with only waste heat
recovery.) As we explained in the
preamble to the final rules and in the
supporting response to comment
documents, if a combustion unit meets
the definition of a VSMWC or IWI in the
OSWI rules, and is not subject to one of
the specific exclusions provided in the
OSWI rules, then it would need to meet
the requirements of the OSWI rules.
We do not provide specific exclusions
in the final OSWI rules for particular
combustion technologies,9 as the
9 The
petitioner also implies that EPA’s
determination that plasma arcs are non-combustion
is factually incorrect. From our understanding of
the plasma arc process, organic materials are
gasified in reactions at high temperature with steam
to produce a synthesis gas that can be used as a fuel
while inorganic constituents are simultaneously
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petitioner seems to imply. Instead, our
response to comments simply provides
some examples from real-world
applications of the technologies the
commenter listed and examples of how
these applications would fit into the
regulatory boundaries of CAA section
129 and CAA section 112 regulations.
As we pointed out in the preamble to
the final OSWI rules (70 FR 74877,
December 16, 2005), gasification,
thermal oxidizers, catalytic cracking,
etc. are typically, from what we have
seen, used in industrial settings. The
OSWI regulations do not apply to
industrial combustion units.
Furthermore, without further
information on the specific design,
materials combusted, and function of
the other combustion technologies, we
are not able to definitively say, as the
petitioner requests, that the various
combustion units are, or are not, subject
to the final OSWI rules. Regardless of
the technology, if a unit meets the
definition of an IWI or VSMWC unit in
the OSWI rules, and is not specifically
excluded, then it would be subject to
the OSWI rules.
In conclusion, having taken comment
on this issue and have responded to said
comments during the rulemaking
process, we deny the request to
reconsider setting standards specific to
plasma arcs and other combustion
technologies in the OSWI rules.
IV. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
This action is not a ‘‘significant
regulatory action’’ under the terms of
Executive Order 12866 (58 FR 51735,
October 4, 1993) and is, therefore, not
subject to review under the Executive
Order.
B. Paperwork Reduction Act
This action does not impose any new
information collection burden. We are
not proposing any new paperwork as
part of this action. However, the Office
of Management and Budget (OMB) has
previously approved the information
collection requirements contained in the
existing OSWI rules (40 CFR part 60,
subparts EEEE and FFFF) under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. and has
assigned OMB control number 2060–
melted into a vitrified solid product that resists
leaching. Unlike combustion processes that
generate heat, the plasma arc melting and
gasification process absorbs heat and requires an
outside heat source. See ‘‘Environmental
Technology Verification Report for the Plasma
Enhanced Melter’’, CERF/IIEC Report #40633, May
2002 for more details on plasma arc technology.
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2629
0563 and EPA ICR No. 2163.02 for
subpart EEEE, and OMB control number
2060–0562 and EPA ICR No. 2164.02 for
subpart FFFF. A copy of the OMB
approved Information Collection
Requests (ICR), may be obtained from
Susan Auby, Collection Strategies
Division, U.S. EPA (2822T), 1200
Pennsylvania Avenue, NW.,
Washington, DC 20460, by e-mail at
auby.susan@epa.gov, or by calling (202)
566–1672.
Burden means 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. This includes the time
needed to review instructions; develop,
acquire, install, and utilize technology
and systems for the purposes of
collecting, validating, and verifying
information, processing and
maintaining information, and disclosing
and providing information; adjust the
existing ways to comply with any
previously applicable instructions and
requirements; train personnel to be able
to respond to a collection of
information; search data sources;
complete and review the collection of
information; and transmit or otherwise
disclose the information.
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. The OMB control
numbers for EPA’s regulations in 40
CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements under the
Administrative Procedure Act or any
other statute unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small
organizations, and small governmental
jurisdictions. For purposes of assessing
the impacts of the final rules on small
entities, small entity is defined as
follows:
1. A small business that is an ultimate
parent entity in the regulated industry
that has a gross annual revenue less
than $6.0 million (this varies by
industry category, ranging up to $10.5
million for North American Industrial
Classification System (NAICS) code
562213 (very small municipal waste
combustors)), based on Small Business
Administration’s size standards;
2. A small governmental jurisdiction
that is a government of a city, county,
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town, school district or special district
with a population of less than 50,000; or
3. A small organization that is any
not-for-profit enterprise that is
independently owned and operated and
is not dominant in its field.
After considering the economic
impact of this notice of final action on
reconsideration on small entities, I
certify that this action will not have a
significant economic impact on a
substantial number of small entities.
This action does not propose any
changes to the final OSWI rules and will
not impose any requirements on small
entities. EPA has determined that it is
not necessary to prepare a regulatory
flexibility analysis in connection with
this reconsideration notice.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act (UMRA) of 1995, Public
Law 104–4, establishes requirements for
Federal Agencies to assess the effects of
their regulatory actions on State, local,
and Tribal governments and the private
sector. Under CAA section 202 of the
UMRA, EPA generally must prepare a
written statement, including a costbenefit analysis, for proposed and final
rules with ‘‘Federal mandates’’ that may
result in expenditures by State, local,
and Tribal governments, in the
aggregate, or by the private sector, of
$100 million or more in any 1 year.
Before promulgating an EPA rule for
which a written statement is needed,
CAA section 205 of the UMRA generally
requires EPA to identify and consider a
reasonable number of regulatory
alternatives and adopt the least costly,
most cost-effective, or least burdensome
alternative that achieves the objectives
of the rule. The provisions of CAA
section 205 do not apply when they are
inconsistent with applicable law.
Moreover, CAA section 205 allows EPA
to adopt an alternative other than the
least costly, most cost-effective, or least
burdensome alternative if EPA
publishes with the final rule an
explanation why that alternative was
not adopted.
Before EPA establishes any regulatory
requirements that may significantly or
uniquely affect small governments,
including Tribal governments, EPA
must have developed, under CAA
section 203 of the UMRA, a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, enabling
officials of affected small governments
to have meaningful and timely input in
the development of EPA’s regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising
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small governments on compliance with
the regulatory requirements.
EPA has determined that this notice
of final action on reconsideration does
not contain a Federal mandate that may
result in expenditures of $100 million or
more for State, local, and Tribal
governments, in the aggregate, or the
private sector in any 1 year. We are not
revising the final OSWI rule. Thus, this
notice of final action on reconsideration
is not subject to the requirements of
CAA section 202 and 205 of the UMRA.
In addition, EPA has determined that
the notice of final action on
reconsideration contains no regulatory
requirements that might significantly or
uniquely affect small governments.
Therefore, the notice of final action on
reconsideration is not subject to the
requirements of CAA section 203 of the
UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132 (64 FR 43255,
August 10, 1999), requires EPA to
develop an accountable 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’’ is defined in the
Executive Order to include regulations
that have ‘‘substantial direct effects on
States, on the relationship between the
National Government and the States, or
on the distribution of power and
responsibilities among various levels of
government.’’
This notice of final action on
reconsideration 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, as specified in
Executive Order 13132. The notice of
final action on reconsideration will not
impose direct compliance costs on State
or local governments, and will not
preempt State law. Thus, Executive
Order 13132 does not apply to this
notice of final action on reconsideration.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175, entitled
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (65 FR
67249, November 9, 2000), requires EPA
to develop an accountable process to
ensure ‘‘meaningful and timely input by
Tribal officials in the development of
regulatory policies that have Tribal
implications.’’ ‘‘Policies that have Tribal
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Fmt 4700
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implications’’ is defined in the
Executive Order to include regulations
that have ‘‘substantial direct effects on
relationship between the Federal
Government and the Indian tribes, or on
the distribution of power and
responsibilities between the Federal
Government and Indian tribes.’’
This notice of final action on
reconsideration does not have Tribal
implications, as specified in Executive
Order 13175. It will not have substantial
direct effects on Tribal governments, on
the relationship between the Federal
Government and Indian tribes, or on the
distribution of power and
responsibilities between the Federal
Government and Indian tribes, as
specified in Executive Order 13175.
Thus, Executive Order 13175 does not
apply to this notice of final action on
reconsideration.
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
Executive Order 13045 (62 FR 19885,
April 23, 1997), applies to any rule that:
(1) Is determined to be ‘‘economically
significant’’ as defined under Executive
Order 12866, and (2) concerns an
environmental health or safety risk that
EPA has reason to believe may have a
disproportionate effect on children. If
the regulatory action meets both criteria,
EPA must evaluate the environmental
health or safety effects of the planned
rule on children, and explain why the
planned regulation is preferable to other
potentially effective and reasonably
feasible alternatives EPA considered.
EPA interprets Executive Order 13045
as applying only to those regulatory
actions that are based on health or safety
risks, such that the analysis required
under CAA section 5–501 of the
Executive Order has the potential to
influence the regulation. This notice of
final action on reconsideration is not
subject to Executive Order 13045
because it is not economically
significant, and the original OSWI rules
are based on technology performance
and not on health and safety risks.
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution or Use
This notice of final action on
reconsideration is not subject to
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001) because it is not a significant
regulatory action under Executive Order
12866.
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I. National Technology Transfer
Advancement Act
As noted in the notice of
reconsideration and request for public
comment, CAA section 12(d) of the
National Technology Transfer and
Advancement Act (NTTAA) of 1995
(Pub. L. 104–113; 15 U.S.C. 272 note)
directs EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.,
materials specifications, test methods,
sampling procedures, business
practices) developed or adopted by one
or more voluntary consensus bodies.
The NTTAA directs EPA to provide
Congress, through OMB, with
explanations when EPA does not use
available and applicable voluntary
consensus standards.
This notice of final action on
reconsideration does not involve
technical standards. EPA’s compliance
with CAA section 12(d) of the NTTAA
has been addressed in the preamble of
the underlying final OSWI rules (70 FR
74891, December 16, 2005).
J. Congressional Review Act
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The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA submitted a
report containing the final rules and
other required information to the U.S.
Senate, the U.S. House of
Representatives, and the Comptroller
General of the United States prior to
publication of the final rules in the
Federal Register on December 16, 2005.
The final rules are not ‘‘major rules’’ as
defined by 5 U.S.C. 804(2). The final
emission guidelines were effective on
February 14, 2006. The final NSPS were
effective on June 16, 2006. The EPA will
submit a report containing this rule and
other required information to the U.S.
Senate, the U.S. House of
Representatives, and the Comptroller
General of the U.S. prior to publication
of the rule in the Federal Register.
List of Subjects in 40 CFR Part 60
Environmental protection,
Administrative practice and procedure,
Air pollution control, Intergovernmental
relations.
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17:18 Jan 19, 2007
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Dated: January 16, 2007.
Stephen L. Johnson,
Administrator.
[FR Doc. E7–820 Filed 1–19–07; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Chapter 2
RIN 0750–AF56
Defense Federal Acquisition
Regulation Supplement; Emergency
Acquisitions (DFARS Case 2006–D036)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Interim rule with request for
comments.
AGENCY:
SUMMARY: DoD has issued an interim
rule amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to provide a single reference to
DoD-unique acquisition flexibilities that
may be used to facilitate and expedite
acquisitions of supplies and services
during emergency situations.
DATES: Effective date: January 22, 2007.
Comment date: Comments on the
interim rule should be submitted in
writing to the address shown below on
or before March 23, 2007, to be
considered in the formation of the final
rule.
ADDRESSES: You may submit comments,
identified by DFARS Case 2006–D036,
using any of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• E-mail: dfars@osd.mil. Include
DFARS Case 2006–D036 in the subject
line of the message.
• Fax: (703) 602–0350.
• Mail: Defense Acquisition
Regulations System, Attn: Mr. Gary
Delaney, OUSD (AT&L) DPAP (DARS),
IMD 3C132, 3062 Defense Pentagon,
Washington, DC 20301–3062.
Æ Hand Delivery/Courier: Defense
Acquisition Regulations System, Crystal
Square 4, Suite 200A, 241 18th Street,
Arlington, VA 22202–3402.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided.
FOR FURTHER INFORMATION CONTACT: Mr.
Gary Delaney, (703) 602–0131.
SUPPLEMENTARY INFORMATION:
PO 00000
Frm 00035
Fmt 4700
Sfmt 4700
2631
A. Background
Item II of Federal Acquisition Circular
2005–11, published at 71 FR 38247 on
July 5, 2006, added Part 18 to the
Federal Acquisition Regulation (FAR).
FAR Part 18 provides a single reference
to Governmentwide acquisition
flexibilities that may be used to
facilitate and expedite acquisitions of
supplies and services during emergency
situations. This interim DFARS rule
adds a new Part 218 to provide a single
reference to the additional acquisition
flexibilities available to DoD.
Consistent with the FAR, the
flexibilities in DFARS Part 218 are
divided into two subparts. The first
subpart, entitled ‘‘Available Acquisition
Flexibilities’’ identifies the DoD
flexibilities that may be used anytime
and do not require an emergency
declaration. The second subpart,
entitled ‘‘Emergency Acquisition
Flexibilities’’ identifies the DoD
flexibilities that may be used only after
an emergency declaration or designation
has been made by the appropriate
official. The second subpart is further
divided into three sections: Contingency
operation; Defense or recovery from
certain attacks; and Incidents of national
significance, emergency declaration, or
major disaster declaration.
DoD would like to hear the views of
interested parties on the sufficiency of
these provisions. In particular, DoD is
interested in receiving input as to
whether the provisions sufficiently
clarify the existing DFARS flexibilities
that can be used in emergency situations
or whether more detailed,
comprehensive coverage is needed.
This rule was not subject to Office of
Management and Budget review under
Executive Order 12866, dated
September 30, 1993.
B. Regulatory Flexibility Act
DoD does not expect this rule to have
a significant economic impact on a
substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.,
because the rule is a compilation of
existing authorities, and makes no
change to DoD contracting policy.
Therefore, DoD has not performed an
initial regulatory flexibility analysis.
DoD invites comments from small
businesses and other interested parties.
DoD also will consider comments from
small entities concerning the affected
DFARS subparts in accordance with 5
U.S.C. 610. Such comments should be
submitted separately and should cite
DFARS Case 2006–D036.
E:\FR\FM\22JAR1.SGM
22JAR1
]]>Agencies
[Federal Register Volume 72, Number 13 (Monday, January 22, 2007)]
[Rules and Regulations]
[Pages 2620-2631]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-820]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 60
[EPA-HQ-OAR-2003-0156; FRL-8272-2]
RIN 2060-AN91
Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Other Solid Waste Incineration Units:
Reconsideration
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of final action on reconsideration.
-----------------------------------------------------------------------
SUMMARY: On December 16, 2005, EPA published final rules entitled,
``Standards of Performance for New Stationary Sources and Emission
Guidelines for Existing Sources: Other Solid Waste Incineration
Units.'' Following that final action, the Administrator received a
petition for reconsideration. In response to the petition, on June 28,
2006, EPA announced our reconsideration of whether SSI should be
excluded from the other solid waste incineration units (OSWI) rules and
requested comment on
[[Page 2621]]
this issue. After carefully considering all of the comments and
information received through our reconsideration process, we have
concluded that no additional changes are necessary to the final OSWI
rules. With respect to all other issues raised by the petitioner, we
deny the request for reconsideration.
DATES: This final action is effective on January 22, 2007.
ADDRESSES: Docket: EPA has established a docket for this action and the
final OSWI new source performance standards (NSPS) (40 CFR part 60,
subpart EEEE) and emission guidelines (40 CFR part 60, subpart FFFF)
under Docket ID No. EPA-HQ-OAR-2003-0156. All documents in the docket
are listed on the https://www.regulations.gov Web site. 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 either electronically at https://
www.regulations.gov or in hard copy at the EPA Docket Center (EPA/DC),
EPA West Building, Room B102, 1301 Constitution Ave., NW., Washington,
DC 20004. The Public Reading Room is located in the EPA Headquarters
Library, Room 3334, and is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
EPA Docket Center is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Ms. Martha Smith, U.S. EPA, Sector
Policies and Programs Division, Natural Resources and Commerce Group
(E143-03), U.S. EPA, Research Triangle Park, North Carolina 27711,
(919) 541-2421, e-mail smith.martha@epa.gov.
SUPPLEMENTARY INFORMATION:
Organization of This Document. The following outline is provided to
aid in locating information in this preamble.
I. General Information
A. Does this notice of final action on reconsideration apply to
me?
B. How do I obtain a copy of this document and other related
information?
II. Background Information
III. Actions We Are Taking
A. Issue for Which Reconsideration Was Granted: Sewage Sludge
Incinerators
B. Remaining Issues in Petition for Reconsideration
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution or Use
I. National Technology Transfer Advancement Act
J. Congressional Review Act
I. General Information
A. Does this notice of final action on reconsideration apply to me?
Regulated Entities. This final action on reconsideration
potentially affects sewage sludge incinerators (SSI). Although there is
not a specific North American Industrial Classification System (NAICS)
code for SSI, these units may be operated by municipalities or other
entities and the following NAICS codes apply: Non-hazardous
incinerators (NAICS 562213); sludge disposal sites (NAICS 562212); and
sewage treatment facilities (NAICS 221320). The categories and entities
regulated by the final OSWI rules are very small municipal waste
combustion (VSMWC) units and institutional waste incineration (IWI)
units. The final OSWI emission guidelines and new source performance
standards (NSPS) affect the following categories of sources:
------------------------------------------------------------------------
Examples of
Category NAICS code potentially regulated
entities
------------------------------------------------------------------------
Any State, local, or Tribal 562213, 92411 Solid waste combustion
government using a VSMWC unit units burning
as defined in the regulations. municipal waste
collected from the
general public and
from residential,
commercial,
institutional, and
industrial sources.
Institutions using an IWI unit 922, 6111, 623, Correctional
as defined in the regulations. 7121 institutions, primary
and secondary
schools, camps and
national parks.
Any Federal government agency 928 Department of Defense
using an OSWI unit as defined (labs, military
in the regulations. bases, munition
facilities).
Any college or university using 6113, 6112 Universities, colleges
an OSWI unit as defined in the and community
regulations. colleges.
Any church or convent using an 8131 Churches and convents.
OSWI unit as defined in the
regulations.
Any civic or religious 8134 Civic associations and
organization using an OSWI fraternal
unit as defined in the associations.
regulations.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities that were regulated by the final
OSWI rules.
B. How do I obtain a copy of this document and other related
information?
Docket. The docket number for this action and the final OSWI NSPS
(40 CFR part 60, subpart EEEE) and emission guidelines (40 CFR part 60,
subpart FFFF) is Docket ID No. EPA-HQ-OAR-2003-0156.
World Wide Web (WWW). In addition to being available in the docket,
electronic copies of the final rule and the notice of final action on
reconsideration are available on the WWW through the Technology
Transfer Network Web site (TTN). Following signature, EPA posted a copy
of the final rule on the TTN's policy and guidance page for newly
proposed or promulgated rules at https://www.epa.gov/ttn/oarpg. The TTN
provides information and technology exchange in various areas of air
pollution control.
II. Background Information
Section 129 of the Clean Air Act (CAA), entitled ``Solid Waste
Combustion,'' requires EPA to develop and adopt NSPS and emission
guidelines for solid waste incineration units pursuant to CAA section
111. Section 111(b) of the CAA requires EPA to establish NSPS for new
sources, and CAA section 111(d) requires EPA to establish procedures
for States to submit plans for implementing emission guidelines for
existing sources. Congress specifically added CAA section 129 to the
CAA to address concerns about emissions from solid waste combustion
units. Section 129(a)(1) of the CAA identifies five categories of solid
waste incineration units:
[[Page 2622]]
(1) Units with a capacity of greater than 250 tons per day (tpd)
combusting municipal waste;
(2) Units with a capacity equal to or less than 250 tpd combusting
municipal waste;
(3) Units combusting hospital, medical, and infectious waste;
(4) Units combusting commercial or industrial waste; and
(5) Unspecified ``other categories of solid waste incineration
units.''
EPA previously developed regulations for each of the listed
categories of solid waste incineration units except for the undefined
``other categories of solid waste incineration units.'' On December 9,
2004 (69 FR 71472), EPA proposed NSPS and emission guidelines for OSWI
units. EPA received and considered public comments and promulgated
final regulations for OSWI units on December 16, 2005.
Following the promulgation of the final OSWI rule, EPA received a
petition for reconsideration from the Sierra Club. On June 28, 2006 (71
FR 36726), we granted reconsideration and requested comment on one
issue raised by the petitioner: specifically, whether SSI should be
regulated under the OSWI rules.
The public comment period on the reconsideration ended on August
14, 2006. Twenty written public comments were received. The individual
comment letters can be found in Docket ID No. EPA-HQ-OAR-2003-0156.
III. Actions We Are Taking
At this time, we are announcing our final action on reconsideration
of one issue for which we asked for comment in our June 28, 2006,
notice. We are also announcing our final decision on six remaining
issues that were raised by petitioners.
A. Issue for Which Reconsideration Was Granted: Sewage Sludge
Incinerators
On June 28, 2006 (71 FR 36726), we granted reconsideration of and
requested comment on the SSI issue that was raised in the petition for
reconsideration. Generally, the petitioner contended that SSI should be
regulated as a type of OSWI under CAA section 129. The petitioner noted
that the notice of proposal of the OSWI rules did not mention SSI, and
claimed that there was no opportunity to comment on EPA's decision not
to regulate SSI under OSWI. Moreover, the petitioner argued that EPA's
rationale was advanced for the first time in the final rule and
supporting documents.
In our June 28, 2006, notice of reconsideration (71 FR 36726), EPA
acknowledged that the OSWI proposal notice (69 FR 71472, December 9,
2004) did not specifically mention or request comment on whether SSI
should be regulated under the OSWI rules. EPA did publish notices on
April 24, 2000 (65 FR 23459), and June 26, 2002 (67 FR 43113), stating
that it had decided not to regulate SSI as a category under CAA section
129 and, instead, had listed it as an area source category to be
regulated under CAA sections 112(c)(3) and 112(k)(3). These notices,
however, did not request public comment on whether SSI should be
regulated under CAA section 129 or 112. We decided to grant
reconsideration of this issue in the interest of ensuring full
opportunity for comment.
A total of 20 unique comments were received on the June 28, 2006,
proposal notice including a comment by the petitioner, Sierra Club.
Seventeen of the commenters wholly support EPA's proposed decision to
regulate SSI under CAA section 112 rather than CAA section 129. One of
the supporting commenters is a trade organization for publicly-owned
treatment works, which are usually the SSI owners and operators.
Sixteen member municipalities submitted separate comment letters
endorsing the comments from the trade organization. Aside from the
petitioner, two State agencies submitted comments that do not fully
support EPA's proposal. All of the comments are addressed in the
following discussion.
1. Legal and Record Basis for Decision Not to Regulate SSI Under OSWI
Rules
a. EPA's Position in OSWI Final Rule.
In promulgating the final OSWI rulemaking, EPA took the position
that it was not required to regulate SSI as OSWI under the terms of CAA
section 129. Section 129 of the CAA provides, in relevant part:
Sec. 129. Solid Waste Combustion
(a) New Source Performance Standards.--
(1) In general.--
(A) The Administrator shall establish performance standards and
other requirements pursuant to section 111 and this section for each
category of solid waste incineration units. Such standards shall
include emissions limitations and other requirements applicable to
new units and guidelines (under section 111(d) and this section) and
other requirements applicable to existing units.
[Subparagraphs (B)-(D) establish schedules for standards
applicable to solid waste incineration units combusting municipal
waste; hospital waste, medical waste, and infectious waste; and
commercial and industrial waste.]
(E) Not later than 18 months after the date of enactment of the
Clean Air Act Amendments of 1990, the Administrator shall publish a
schedule for the promulgation of standards under section 111 and
this section applicable to other categories of solid waste
incineration units.
In addition, CAA section 129(h)(2) provides,
(2) Other authority under this act.-- Nothing in this section
shall diminish the authority of the Administrator or a State to
establish any other requirements applicable to solid waste
incineration units under any other authority of law * * *, except
that no solid waste incineration unit subject to performance
standards under this section and section 111 shall be subject to
standards under section 112(d) of this Act.
In the final OSWI rulemaking, EPA concluded that the provisions of
CAA section 129(a)(1) do not mandate that SSI be regulated as OSWI
under CAA section 129. Because EPA is in the process of regulating SSI
under CAA section 112, EPA relied on CAA section 129(h)(2) as part of
its basis for not regulating SSI under CAA section 129 (70 FR 74874-
74875, December 16, 2005).
b. Comments. One commenter (EPA-HQ-OAR-2003-0156-0118) claims that
EPA's failure to set CAA section 129 standards for SSI contravenes the
CAA. The commenter contends that CAA section 129 unambiguously requires
EPA to set CAA section 129 standards for any facility that combusts any
solid waste, with the exception of the limited categories of facilities
expressly exempt in CAA section 129(g)(1). To support its view, the
commenter cites CAA section 129(a)(1)(A) and notes that CAA section
129(g)(1) defines ``solid waste incineration unit'' as ``a distinct
operating unit of any facility which combusts any solid waste material
from commercial or industrial establishments or the general public. * *
*''. The commenter adds that EPA recognized that ``sludge generated by
publicly owned treatment works (POTWs) is a solid waste from the
general public, commercial and industrial establishments'' (62 FR 1869,
January 14, 1997) and that EPA admitted that sewage sludge is a solid
waste (Unified Agenda, 65 FR 23549-01, April 24, 2000). The commenter
concludes that a plain reading of the CAA shows that SSI cannot be
exempt from CAA section 129. The commenter claims that emissions from
SSI are comparable to other categories of waste incinerators regulated
under CAA section 129. The commenter claims that the exclusion of SSI
from the OSWI rules contravenes the CAA.\1\
---------------------------------------------------------------------------
\1\ The commenter also claims that the exclusion of SSI from the
OSWI rules contravenes the consent decree in Sierra Club v. Whitman,
No. 01-1537 (D.D.C.).
---------------------------------------------------------------------------
Conversely, another commenter (EPA-HQ-OAR-2003-0156-0127)
[[Page 2623]]
asserts that EPA was well within its discretion to exclude SSI from the
OSWI rule. The commenter states that CAA section 129 directs EPA to
regulate certain categories of incinerators enumerated in CAA section
129(a)(1)(A)-(D), but the statute does not define the categories of
``other'' solid waste incineration units that must be regulated under
CAA section 129(a)(1)(E). Therefore, inherent in EPA's implementation
of CAA section 129 is the discretion to reasonably define what
constitutes the statutorily undefined ``other categories'' and to
determine which warrant regulation under CAA section 129. The commenter
argues that this conclusion is supported by the fact that the CAA
provides firm timelines for the specifically identified categories of
incinerators, but states that EPA must publish only a schedule for the
statutorily undefined ``other categories.'' The commenter claims that
CAA section 129 plainly does not require EPA to promulgate OSWI
standards for ``every'' or ``all'' possible categories of solid waste
incineration units; if that had been Congress' intent, then Congress
would have provided that direction in CAA section 129(a)(1)(E) by
stating that EPA should regulate ``all'' or ``every'' other category of
solid waste incineration units. The commenter also contends that
legislative history shows Congress was focused on municipal waste
combustion units, and was also concerned about other specific large
incinerators, including medical waste incinerators and industrial
incinerators, but that Congress did not once mention POTW sewage sludge
or SSI when discussing CAA section 129. Several municipal agencies that
operate SSI (EPA-HQ-OAR-2003-0156-0112, -0113, -0114, -0115, -0116, -
0117, -0119, -0120, -0121, -0123, -0124, -0125, -0128, -0130, -0131, -
0133) support these comments submitted by the commenter (EPA-HQ-OAR-
2003-0156-0127), and support EPA's previous decision not to regulate
SSI under CAA section 129.
Two commenters (EPA-HQ-OAR-2003-0156-0127, -0120) refer to CAA
section 129 language that indicates the same category cannot be
regulated under both CAA sections 112 and 129. The commenters state
that because area source SSI are going to be regulated under CAA
section 112, they cannot be regulated under CAA section 129. One of the
commenters (EPA-HQ-OAR-2003-0156-0127) points out that EPA originally
listed SSI as a hazardous air pollutants (HAP) source category under
CAA section 112, but in 2002 determined that the SSI category did not
have any major sources of HAP. Later in 2002, EPA included SSI in a
list of area source categories to be regulated under CAA section 112
(67 FR 43112, June 26, 2002). Conversely, another commenter (EPA-HQ-
OAR-2003-0156-0126) recommends regulating SSI under the CAA section 129
OSWI rules. A large waste water treatment plant with 14 SSI units is
located in the commenter's State.
The commenter contends that these units are poorly controlled with
few current applicable regulatory requirements. The commenter states
that EPA has not pursued regulation of area source SSI under CAA
section 112 in a timely manner. Rather than wait for potential
regulations under CAA section 112, the commenter favors including SSI
in the OSWI regulations.
c. Response to Comments; Legal and Record Basis for Decision Not to
Regulate SSI Under OSWI Rules. EPA has decided not to regulate SSI
under the OSWI rules. We are developing regulations for SSI under CAA
section 112. For several reasons, we disagree with the petitioner's
comment that any incinerator burning any solid waste must be regulated
under CAA section 129.\2\
---------------------------------------------------------------------------
\2\ The commenter is also incorrect that excluding SSI units
violates the consent decree in Sierrall Club v. Whitman, No. 01-1537
(D.D.C.). The Consent decree obligates EPA to regulate other
categories of solid waste incinerators under CAA section
129(a)(1)(E), but does not identify SSI units as one of those
categories.
---------------------------------------------------------------------------
First, the CAA is ambiguous regarding what categories of solid
waste incineration units must be regulated under CAA section
129(a)(1)(E). Subparagraph (A) of CAA section 129(a)(1) provides, ``The
Administrator shall establish performance standards and other
requirements pursuant to section 111 and this section for each category
of solid waste incineration units.'' Subparagraphs (B)-(D) discuss
timelines for very specific categories of solid waste incinerators
(e.g., large and small municipal waste combustors, commercial and
industrial waste incinerators, and hospital and medical waste
incinerators), while subparagraph (E) states only that EPA must publish
a schedule for promulgating standards for ``other categories of solid
waste incineration units.'' The directive under subparagraph (A) to
regulate ``each category of solid waste incineration units'' should be
read in conjunction with subparagraphs (B)-(E), so that the directive
refers to the categories of solid waste incineration units that are
identified under subparagraphs (B)-(E). Subparagraph (E) does not
unambiguously require, as implied by one commenter, that the OSWI
standards must apply to every other possible type of incineration unit
burning any type of solid waste. If Congress had intended such a clear
directive, it could have instructed EPA to regulate ``every other
category'' of solid waste incineration unit, instead of, simply,
``other categories.'' Yet Congress did not use such unambiguous
language, leaving it to EPA to interpret the CAA in a reasonable manner
by determining which other categories to include under subparagraph
(E).
Second, the position adopted by this commenter would lead to absurd
results. Under the commenter's interpretation, a homeowner burning
leaves in a barrel in his or her backyard must be subject to a CAA
section 129 rule because the barrel is a unit combusting solid waste
material. Congress cannot have intended that EPA regulate such sources
under CAA section 129, with all the attendant requirements. The
language of CAA section 129 suggests that Congress wanted to focus
EPA's attention to specific, larger incineration units (e.g., municipal
waste combustion (MWC) units and commercial and industrial solid waste
incineration (CISWI) units). Under the commenter's interpretation of
CAA section 129, however, EPA would have to establish emission
standards \3\ for dozens of different types of small incineration units
with potentially minimal emissions. As discussed in the final rule (70
FR 74875, December 16, 2005), this interpretation would result in large
burdens on these sources, and Congress cannot have intended that result
merely by referencing an undefined ``other'' category of incineration
units. Thus, the instructions to EPA to promulgate standards for
``other categories'' of solid waste incinerators inherently include the
authority for EPA to reasonably delineate those ``other'' categories of
solid waste incineration units.
---------------------------------------------------------------------------
\3\ Under section 129(a)(1), EPA is requird to establish
performance standards and other requirements for specified
categories of solid waste incineration units.
---------------------------------------------------------------------------
Third, in the proposed and final rules, we also clarified that
under CAA section 129(g)(1), certain types of units are not regulated
by the OSWI rules. Some of these units are specifically excluded by CAA
section 129(g)(1) (e.g., hazardous waste combustion, small power
production facilities, cogeneration facilities burning homogenous
waste). However, as stated in the final rule, we do not agree that the
facilities explicitly described in CAA section 129(g)(1) are the only
types of facilities that are
[[Page 2624]]
properly excluded from the OSWI category. That is, we do not read CAA
section 129(g)(1) to establish an exclusive list of excluded sources.
Fourth, our interpretation of CAA section 129(a)(1) and (g)(1) is
consistent with legislative history. Congress added CAA section 129 as
part of the 1990 CAA Amendments. Sen. Durenberger, one of the authors,
indicated that he understood the provision to ``require EPA to issue
new source performance standards for municipal incinerators, for
medical waste incinerators and for incinerators burning commercial and
industrial waste.'' S. PRT 103-38, Senate Committee on Environment and
Public Works, A Legislative History of the Clean Air Act Amendments of
1990 (``Legislative History'', vol. IV, p. 7052 (statement of Sen.
Durenberger during Senate floor debate, April 3, 1990)). Similarly,
Sen. Baucus, another of the authors, stated that the provision
``directs EPA to establish one set of standards for municipal
incinerators, another set for hospital incinerators and small
[municipal] units, and another set for industrial incinerators''. Id.
at 7054 (statement of Sen. Baucus). Similarly, the Conference Report
describes CAA section 129 as ``a provision to control the air emissions
from municipal, hospital, and other commercial and industrial
incinerators.'' H. Rep. 101-952 at 341, ``Clean Air Act Amendments of
1990, Conference Report to Accompany S. 1630,'' reprinted in id., vol.
I, at 1791.
The incinerators identified by these statements are included in
subparagraphs (B)-(D) of CAA section 129(a)(1). These statements, and
the various other statements in the legislative history of this
provision, make no specific reference to any of the ``other categories
of solid waste incineration units'' that may be covered under
subparagraph (E).\4\ Thus, the legislative history suggests that
subparagraph (E) should not be read, by its terms, to sweep in all
other types of solid waste incinerators. Such an expansive reading
would not be consistent with the authors' statements. Thus, we have
discretion to determine which categories of units constitute ``other
categories of solid waste incineration units.''
---------------------------------------------------------------------------
\4\ That Congress did not intend for all types of incinerators
to be regulated under CAA section 129 is evidenced by the fact that
Congress, at the time it enacted CAA section 129, was aware of other
categories of solid waste incinerators, but did not discuss those
units in the context of CAA section 129. For example, the Senate
Committee Report listed SSI among source categories that emit
carcinogenic pollutants. S. Rep. 101-228 ``Clean Air Act Amendments
of 1989, Report of the Senate Committee on Environment and Public
Works,'' at 188, Figure III-7, reprinted in Legislative History,
vol. V, at 8528. This statement was made as part of a discussion of
regulating toxics in general under the authority of CAA section 112,
and not in the context of proposed CAA section 129. Similarly, a
Statement by Sen. Baucus notes that title III of the 1990 Clean Air
Act Amendments covers, among other things, ``sewage treatment plants
incinerators.'' Legislative History, vol. 1, at 1028 (statements of
Sen. Baucus). This statement was made as part of discussions of
regulating toxics in general title III, and not specifically in the
context of proposed CAA section 129. Thus, each of these statement
is consistent with regulating SSI under CAA section 112, and neither
indicates congressional intent that SSi be regulated under CAA
section 129.
---------------------------------------------------------------------------
Fifth, we indicated in the final OSWI rules that units are not
covered under OSWI if they are regulated under other CAA section 129 or
CAA section 112 standards (e.g., small and large MWC, hospital, medical
and infectious waste incinerators (HMIWI), CISWI, boilers, cement
kilns). The language of CAA section 129(h) makes clear the
Congressional intent for CAA regulations under CAA section 129 or CAA
section 112 to be mutually exclusive (70 FR 24875, December 16, 2005).
We reiterated these statements in the recent CISWI final rule
amendments, including, among other things, the important policy
objective of avoiding duplicative regulation (70 FR 55568, 55574-55575,
September 22, 2005). We maintain that we have the discretion to
determine which ``other categories'' of solid waste incinerator units
to regulate under CAA section 129. This discretion includes the
determination of which categories are best regulated under CAA section
112 rather than CAA section 129.
Accordingly, we determined in the final OSWI rules that sources
subject to CAA section 112 standards are not OSWI units.\5\ Regulation
of certain types of units under CAA section 112, rather than CAA
section 129, is sensible. From a policy standpoint, regulation under
CAA section 112 generally offers EPA more flexibility than regulation
under CAA section 129, and thus allows EPA to tailor regulatory
requirements more appropriately to the level of HAP emitted by the
source. In particular, under CAA section 112(d), EPA has the
flexibility to regulate the full range of HAP from area (i.e., non-
major) sources based on either maximum achievable control technology
(MACT) or ``generally available control technologies or management
practices'' (GACT), whereas CAA section 129 would require MACT
regardless of the level of emissions from the source. EPA has
interpreted CAA section 112(d)(5) to allow consideration of costs in
determining GACT. In developing MACT standards, EPA cannot consider
cost in setting the floor, which is the minimum level of control
required by CAA section 112(d)(3). Thus, CAA section 112(d)(5) offers
EPA flexibility to develop standards for area sources that account for
some of the unique characteristics of area source categories, including
the economic effects of regulation on smaller sources.
---------------------------------------------------------------------------
\5\ Absence of current regulations under CAA section 112,
however, is not determinative of whether a unit is subject to the
final OSWI rules.
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Because the SSI category is composed entirely of area sources of
HAP, regulating SSI under the CAA section 112 area source program
offers the advantage of this flexibility. Specifically, in proposing
and promulgating regulations under CAA section 112 covering SSI, EPA
will have the opportunity to evaluate cost constraints, which may be
particularly important in light of the relatively small size of the
units at issue here. EPA may decide, based on the circumstances of the
source category, to promulgate GACT, as opposed to MACT, for SSI under
CAA section 112. EPA has not yet regulated SSI and thus we cannot
predict at this time what the proposed standards for this category will
be, but the relevant issue here is that CAA section 112 provides
important flexibilities that are absent in CAA section 129. In CAA
section 112, Congress specifically recognized the need for providing
such flexibilities to area sources.
Moreover, regulating SSI under the CAA section 112 area source
program offers the additional flexibility of determining whether to
require SSI units to obtain title V permits. By comparison, were EPA to
regulate SSI under CAA section 129, SSI sources would be required to
obtain title V permits. The cost to small sources, such as SSI units,
of the title V permit program would be relatively high, so the
flexibility that CAA section 112 provides with respect to title V
requirements may be useful in tailoring the overall regulatory scheme.
To summarize, given the statutory provisions of CAA sections
129(a), (g) and (h), as interpreted above, and the legislative history
and policy considerations noted above, we maintain that EPA has the
discretion to define which categories of combustion units should be
subject to regulation under CAA section 129 and hence, to which
categories of solid waste combustion units the standards for ``other
categories of solid waste incineration units'' apply. Thus, at the
outset of the rulemaking process, EPA determined what universe of
sources will be subject to the regulations. As
[[Page 2625]]
explained further in the final rule, in determining the scope of OSWI,
EPA collected and analyzed data to identify potential OSWI units. EPA
determined that the regulations should focus on two categories of waste
combustion units: IWI units and VSMWC units.
SSI are a source category that is being addressed under CAA section
112. EPA acknowledges that earlier notices indicated that SSI would be
considered OSWI units (62 FR 1868, January 14, 1997; 63 FR 66087,
December 1, 1998). However, as we discussed in the preamble to the
final OSWI rules and the response to comment document, later notices
conveyed the fact we intended to regulate SSI under CAA section 112,
not under CAA section 129.
As early as April 2000, EPA indicated that it no longer intended to
regulate SSI under CAA section 129 (Unified Agenda, 65 FR 23459-01,
April 24, 2000). In addition, EPA's intent to regulate these sources
under CAA section 112 was made clear when SSI were included as an
additional area source category listed pursuant to CAA sections
112(c)(3) and 112(k)(3)(B)(ii) in the June 26, 2002 Federal Register
(67 FR 43113). As discussed previously, source categories regulated by
CAA section 112 should not also be subject to a CAA section 129
regulation. In previous regulatory activities, EPA was unable to
identify any SSI that were major sources. (See 67 FR 6521, February 12,
2002.) Therefore, the entire SSI source category consists of area
sources, and will be addressed by the CAA sections 112(c) and 112(k)
regulations. In fact, EPA is under a court-ordered schedule to
promulgate standards under CAA section 112(d) for those area source
categories listed by EPA pursuant to CAA sections 112(c)(3) and
(k)(3)(B). Sierra Club v. Johnson, No. 1:01CV01537 (D.D.C.) Order
(March 31, 2006). EPA must promulgate standards for a specified number
of area source categories every 6 months between December 15, 2006 and
June 15, 2009. SSI is one of the listed categories, so EPA must
promulgate CAA section 112 regulations for SSI no later than June 15,
2009. We believe that CAA section 112, by virtue of offering greater
flexibility in allowing consideration of cost to determine the level of
control required for area sources and in applying title V requirements
is a reasonable vehicle for regulation of SSI, given that the SSI
category is composed of area sources. We further believe that, in light
of the plan to regulate SSI under CAA section 112, regulation of SSI
under CAA section 129 is unnecessary and would be duplicative.
Regarding the comment from a State agency that a specific large SSI
in their State is poorly controlled, a State or local agency is free to
develop regulations to address a state or local air quality issue if
they believe action is necessary prior to EPA's development of CAA
section 112 standards for SSI.
2. Other Arguments Advanced by Commenters for Not Regulating SSI Under
CAA Section 129
Two commenters (EPA-HQ-OAR-2003-0156-0127, -0122) contend that EPA
has no authority to regulate SSI under CAA section 129 for the
definitional reasons that, in their view, (i) sludge from POTWs is not
``solid waste'' within the meaning of CAA section 129(g)(6); and (ii)
SSI are not ``solid waste incineration unit[s]'' within the meaning of
CAA section 129(g)(1). Under CAA section 129(g)(6), ``solid waste'' is
given the same definition as the term is given under the Solid Waste
Disposal Act. EPA provided a definition in the OSWI final rule (70 FR
74921, December 16, 2005) (40 CFR 60.3078): ``Solid waste means any
garbage, refuse, sludge from a waste treatment plant * * * But does not
include solid or dissolved material in domestic sewage * * *.''
The commenter appears to argue that sludge from a POTW constitutes
``solid or dissolved material in domestic sewage.'' In the April 2000
Unified Agenda, in which EPA announced that it would regulate SSI under
CAA section 112, EPA stated that POTW-generated sewage sludge is
``solid waste.'' (65 FR 23459, April 24, 2000). EPA noted that
statement in the OSWI final rule, in the context of explaining that EPA
had a long-standing policy of regulating SSI under CAA section 112,
citing the April 2000 Unified Agenda (70 FR 74880, December 16, 2005).
However, because EPA has determined not to regulate SSI as OSWI under
CAA section 129 for other reasons, it is not necessary to evaluate the
comment that POTW-generated sewage sludge is not ``solid waste.''
Under CAA section 129(g)(1), a ``solid waste incineration unit'' is
defined, in relevant part, as a ``unit * * * of any facility which
combusts any solid waste material from commercial or industrial
establishments or the general public * * *.'' Some commenters argue
that POTWs are municipal sources, not the sources described in the
definition of ``solid waste incineration unit[s]'', and therefore do
not meet that definition.\6\ EPA included a statement to this effect in
the April, 2000 Unified Agenda (65 FR 23459, April 24, 2000). EPA cited
this statement in the OSWI final rule in the context of explaining that
EPA had a long-standing policy of regulating SSI under CAA section 112.
As noted above, because EPA has determined not to regulate SSI under
CAA section 129 for other reasons, it was not necessary for EPA to
determine in the final OSWI rule whether SSI meet the definition of
``solid waste incineration unit[s],'' and for the same reason, it is
not necessary to respond to the comments here.
---------------------------------------------------------------------------
\6\ One commenter (EPA-HQ-OAR-2003-0156-0118) disagreed and
argues that SSI do meet the definition of ``solid waste
incinceration units.'' The commenter further states that much of the
waste burned in MWC and medical waste incinerators comes from
municipal sources and that these incinerators are regulated under
CAA section 129. The commenter further notes that in any event, some
SSI are privately owned.
---------------------------------------------------------------------------
3. Regulatory History
One commenter (EPA-HQ-OAR-2003-0156-0118) dismisses EPA's argument
that since April 2000 EPA has indicated it no longer intends to
regulate SSI as incinerators under CAA section 129 but intends to
regulate them as area sources of HAP under CAA section 112. The
commenter says that EPA's announcement of this intent in the April 2000
semiannual regulatory agenda does not alter EPA's statutory obligation
under CAA section 129.
As discussed above, we have decided not to regulate SSI under the
OSWI regulations. These units will be regulated under a separate CAA
section 112 area source regulation currently under development. This
reconsideration process cures any defects in the notice-and-comment
process that the commenter believes occurred in the past.\7\
---------------------------------------------------------------------------
\7\ Another commenter (EPA-HQ-OAR-2003-0156-0127) responds to
one of the petitioner's claims by describing the regulatory history
and concludes that EPA's decision not to regulate SSI under CAA
section 129 was reached after a thorough and complete evaluation of
the issues that included opportunities for comment.
---------------------------------------------------------------------------
4. Impacts
In support of EPA's decision to not regulate SSI under the OSWI
rule, several commenters discuss the benefits of incineration and argue
that the costs of regulation under CAA section 129 would cause adverse
impacts to communities. For example, two commenters point out several
benefits provided by incineration of sewage sludge. One commenter (EPA-
HQ-OAR-2003-0156-0127) states that incineration of biosolids reduces
waste volume, destroys pathogens, and degrades toxic organic compounds
and is, therefore, an important, safe, and effective component of
biosolids
[[Page 2626]]
management practices used by POTWs. Another commenter (EPA-HQ-OAR-2003-
0156-0122) adds that incineration is a viable and important management
option for POTWs. The commenter states that incineration gives a
municipality greater control of their operation by reducing dependency
on others to accept and use biosolids, minimizes onsite and offsite
odors, requires a small land area, can be operated continuously in all
weather conditions, and can also be a source of energy. According to
the commenters, approximately 17 percent of biosolids generated by
POTWs are incinerated, and 150 municipalities in the United States use
thermal oxidation to turn biosolids into an energy source to produce
some or all of the energy they need to operate, provide an extra
revenue source, and help reduce energy and transportation costs. One
commenter provides references and attachments to demonstrate that EPA
has recognized SSI as a viable option for local community management of
biosolids. The other commenter attached a brochure on bioenergy from
wastewater treatment. Both commenters argue that subjecting SSI to CAA
section 129 rules could eliminate SSI as a viable option.
Regarding impacts of regulation under CAA section 129, one
commenter (EPA-HQ-OAR-2003-0156-0127) states that including SSI in OSWI
would impose substantial costs to SSI operators without corresponding
benefits, and the costs that would be imposed on POTW ratepayers could
eliminate SSI as a safe, viable, and cost-effective biosolids
management option for many communities. The regulatory burden would be
substantial without corresponding health or environmental benefits. The
commenter is also concerned that limits for NOX and CO might
not be simultaneously achievable. The commenter concludes that cost and
regulatory burden of regulating SSI under CAA section 129 would be
inconsistent with past EPA declarations that incineration is a safe and
acceptable biosolids disposal practice and Congressional intent that
EPA provide safe management practices for use and disposal of biosolids
and not dictate preferred practices and eliminate others. Another
commenter (EPA-HQ-OAR-2003-0156-0122) adds that a technology-based
standard imposed by CAA section 129 would require major expenditure
whether or not there are any risks to human health and the environment.
A few commenters provided estimates on the cost impacts that a CAA
section 129 regulation would have on their SSI. As an example, one
commenter (EPA-HQ-OAR-2003-0156-0112) says that incineration is the
least costly method of sewage sludge disposal for Anchorage, AK. They
haul two dump truck loads of SSI ash to the regional landfill weekly, a
50-mile round trip through residential neighborhoods. If SSI were
eliminated because of costly regulations, hauling sludge to the
landfill would require 28 more dump truck loads per week at a cost of
$90,000 per month, and would increase air pollution from the dump
trucks. In another comment, a commenter (EPA-HQ-OAR-2003-0156-0123)
operates a POTW that serves a population of 450,000 people and has two
multiple hearth SSI. The commenter's preliminary analysis of available
technologies to meet CAA section 129 OSWI regulations indicate that
those technologies have not been applied to multiple-hearth
incinerators, are expensive, and may not provide consistent compliance.
The commenter estimates that modification of their existing furnaces
could cost over $18 million, and the option of replacing the existing
furnaces with new fluidized bed SSI with emission controls that meet
CAA section 129 emission limits would be $35 to 40 million. The
commenter investigated an alternative to incineration, and estimated
the cost to convert to anaerobic digestion with dewatered sludge
disposal was $50 million. For this option, a landfill or land
application site to dispose of the sludge would need to be found, and
25 to 30 trucks per day would be required to haul the district's
sludge, which would be intrusive to neighborhoods and generate
emissions.
As we have discussed earlier, we have decided not to regulate SSI
under the OSWI regulations. These units will be regulated under a
separate CAA section 112 area source regulation currently under
development. We agree with the commenters that SSI are an important
option for community management of biosolids from POTW that treat
sewage sludge, and have environmental benefits. As discussed in section
A.1, CAA section 112 allows EPA greater flexibility than CAA section
129 to establish emission limits that serve the overall purpose of
protecting public health and the environment while avoiding
unreasonable economic impacts and preserving the benefits of SSI cited
by the commenters.
5. Carbon Monoxide Limits for SSI
One commenter (EPA-HQ-OAR-2003-0156-0129) says the nine POTWs using
SSI in their State have permits under State air rules and title V that
include CO and volatile organic compound (VOC) emission limits. The
commenter believes that all incinerators should have CO limits and CO
continuous emissions monitoring (CEM) requirements because CO is a good
indicator of combustion efficiency. The commenter states that current
Federal Clean Water Act SSI regulations in 40 CFR part 503 have a
hydrocarbon concentration limit, but do not have a CO limit. They
recommend that either 40 CFR part 503 be revised to include an emission
limit and CEM requirement for CO, or that SSI be subject to the OSWI
rules.
As we have discussed fully earlier, we have decided not to regulate
SSI under the OSWI regulations. These units will be regulated under a
separate CAA section 112 area source regulation currently under
development. We are unable to say what the final requirements for SSI
will be under these regulations. We encourage all interested parties to
provide comments on the CAA section 112 area source regulations for SSI
once they are proposed.
6. SSI Are Already Regulated
Two commenters (EPA-HQ-OAR-2003-0156-0127 and EPA-HQ-OAR-2003-0156-
0122) say EPA's decision not to regulate SSI under CAA section 129 is
reasonable because SSI are already regulated by other regulations that
protect public health and the environment. The commenters explain that
since 1993, POTWs have been subject to a comprehensive, risk-based
program for reducing potential environmental risks of sewage sludge
under Clean Water Act (CWA) sections 405 and the implementing
regulations in 40 CFR part 503. For disposal of sewage sludge by
incineration, 40 CFR part 503, subpart E requires:
Management practices and general requirements
Risk-based, site-specific limits for arsenic, cadmium,
chromium, lead, and nickel content in biosolids incinerated
Compliance with national emission standards for hazardous
air pollutants (NESHAP) for mercury and beryllium
Emission limits for total hydrocarbon (THC) or an
alternative emission limit for CO
Monitoring, recordkeeping and reporting.
The commenters note that in developing 40 CFR part 503 rules, EPA
also proposed a requirement for dioxin/furan, but decided such
requirements were not warranted based on a risk assessment showing
risks from dioxin were less than one in one million. The commenters
argue that the 40 CFR part 503 standards are protective of health
[[Page 2627]]
and the environment, and that the biennial review process in CWA
section 405 provides an ample means for EPA to identify and regulate
any additional concerns under 40 CFR part 503. Another commenter (EPA-
HQ-OAR-2003-0156-0114) adds that the 40 CFR part 503 regulations are
risked-based and were set (using conservative assumptions) to ensure
protection from cancer risks at a level of 10-5 (i.e., one in ten
thousand).
The commenters (EPA-HQ-OAR-2003-0156-0127 and EPA-HQ-OAR-2003-0156-
0122) state that the mercury NESHAP (40 CFR part 61, subpart E) sets
mercury emission limits, testing, and monitoring requirements for
sources that incinerate wastewater treatment plant sludge; and the
beryllium NESHAP (40 CFR part 61, subpart C) sets limits for
incinerators that process beryllium containing waste. SSI constructed
or modified since June 11, 1973 are subject to the SSI NSPS (40 CFR
part 60, subpart O), which contain particulate matter, opacity,
operating, testing and monitoring requirements. One of the commenters
(EPA-HQ-OAR-2003-0156-0127) adds that SSI are subject to title V
permits if they are major sources and to State and local requirements.
Under CWA section 403, POTWs also implement, through local regulatory
authority, pretreatment standards that reduce harmful constituents of
biosolids. The commenters (EPA-HQ-OAR-2003-0156-0127 and EPA-HQ-OAR-
2003-0156-0122) contend that the combination of CWA and CAA regulations
address CAA section 129 pollutants that are of concern for SSI, and
that further regulation under CAA section 129 is not needed.
Another commenter (EPA-HQ-OAR-2003-0156-0112) stated that their
city's SSI is subject to emission limits for PM, opacity, beryllium,
and mercury and is required to routinely monitor NOX and CO
emissions. They believe these regulations adequately protect public
health and the environment and additional regulation under CAA section
129 is not warranted.
We appreciate commenters' support of our decision to not regulate
SSI under the CAA section 129 OSWI regulations. We also acknowledge
that various CWA and CAA regulations currently apply to SSI. These
other regulations provide some additional support for our decision not
to regulate under CAA section 129 because these other regulations
provide protection of human health and the environment for many of the
pollutants regulated by CAA section 129 regulations. In addition, as
discussed earlier, we are currently in the process of developing CAA
section 112 regulations for HAP emitted from the SSI source category.
At the moment, we are unable to say what the final requirements for SSI
will be under these regulations. Therefore, we encourage all interested
parties to provide comments on the CAA section 112 area source
regulations for SSI once they are proposed.
B. Remaining Issues in Petition for Reconsideration
We denied six issues contained in the petitioner's request for
reconsideration because they failed to meet the standard for
reconsideration under CAA section 307(d)(7)(B). Specifically, on these
issues, the petitioner has failed to show the following: That it was
impracticable to raise their objections during the comment period; or
that the grounds for their objections arose after the close of the
comment period; and/or that their concern is of central relevance to
the outcome of the rules. We have concluded that no clarifications to
the underlying rules are warranted for these six remaining issues, as
described below.
1. Human Crematories
The petitioner objects to the exclusion of human crematories from
the OSWI rules. They contend that EPA raised new arguments regarding
whether human bodies burned at crematories are solid waste during
promulgation of the final OSWI rules.
We do not agree with the petitioner's claim. We took comment on
human crematories as OSWI in the notice of proposed rulemaking
published on December 9, 2004 (69 FR 71479). In the notice of proposed
rulemaking, we made clear that the human body is not considered ``solid
waste'' and human crematories are, therefore, not considered solid
waste incineration units. Comments were received regarding human bodies
and their juxtaposition to the definition of solid waste used in the
OSWI rules. In the notice of final rulemaking (70 FR 74881, December
16, 2005), we responded to these comments, but we did not introduce a
new definition of solid waste. Rather, in the final rule, we excluded
human crematories from the OSWI rules for precisely the same reason as
proposed. Therefore, EPA denies the request to reconsider human
crematories in the OSWI rules.
2. Incinerators in Isolated Areas of Alaska
The petitioner contends that the policy arguments that EPA advanced
at proposal and promulgation of the OSWI rules for exempting
incinerators in isolated areas of Alaska are not valid and contravene
the requirements of CAA section 129. They further claim that EPA raised
new arguments during promulgation of the OSWI rules that commercial/
industrial incinerators that burn only municipal-type waste are not
subject to the CISWI rules, and they argue that such incinerators
should be regulated. An example is an incinerator that is owned by an
industrial company, is located in an oil field in Alaska, and burns
only household or municipal-type waste.
We deny the petitioner's request for reconsideration on this issue.
We proposed and took comment on the exemption of incinerators and air
curtain incinerators that are used at solid waste disposal sites
operating in isolated areas of Alaska, and that are classified as Class
II or Class III facilities under the Alaskan State codes (which, in
turn, are authorized under the Solid Waste Disposal Act) (69 FR 71482-
71483, December 9, 2004).
We received comments that certain incinerators are used to dispose
of household- or municipal-type waste generated at oil fields and oil
pipeline pumping stations and the commenters raised the issue of
whether these units would be exempt from OSWI regulations. In the
preamble to the final OSWI regulations, we noted that the comments did
not provide specific enough information about those incinerators. In
responding to the comment, we explained that only units that would
otherwise be considered VSMWC or IWI could be subject to regulation as
OSWIs, and that the Alaska exemption was limited to units that would,
absent such exemption, be treated as VSMWC or IWI and, thereby, be
subject to regulation as OSWI. Units that would not be treated as VSMWC
or IWI would not be regulated as OSWI. We then noted that although the
commenters provided insufficient information about the other
incinerators, the information they did provide suggests that the
incinerators would not qualify as VSMWC or IWI units (70 FR 74878,
December 16, 2005). Petitioners have not demonstrated any basis for why
this conclusion merits reconsideration and, as a result, we deny the
petition for reconsideration on this point.
In the final OSWI rule, we further noted that the incinerators
described by the commenters, i.e., those at oil fields and oil pipeline
pumping stations, may potentially be considered CISWI units depending
on the waste combusted. If they incinerate municipal-type waste, then
``the final CISWI rules do not
[[Page 2628]]
currently cover commercial/industrial-owned/operated incinerators that
burn only municipal-type waste'' (70 FR 74878, December 16, 2005). We
added, ``EPA intends to address regulation of such combustion units
under future revisions to the final CISWI rules.'' Id. Petitioners
object to these statements, and state that the CISWI rules do cover
these types of combustors, and further state that if the CISWI rules do
not cover these types of combustors, then EPA is unlawfully deferring
regulation under CISWI.\8\
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\8\ As noted above, a challenge by the Natural Resources Defense
Council to this rule is pending before the D.C. Circuit.
---------------------------------------------------------------------------
We disagree with the petitioners. Although the CISWI regulations
promulgated in 2000 regulate incinerators located at commercial or
industrial facilities that are used to combust industrial or commercial
waste as defined in the CISWI rules, the CISWI regulations do not cover
units located at commercial or industrial facilities that are used to
combust more than 30 percent municipal-type wastes (e.g., food scraps,
packaging, disposable eating utensils, etc.) (40 CFR 60.2020(c) and 40
CFR 60.2555(c)). Our promulgation of those regulations fulfilled our
obligations to promulgate CISWI regulations. Continued review of those
regulations, as we intend to do, does not amount to unlawful deferral
of regulation.
3. Temporary-Use Incinerators
At proposal, EPA exempted temporary-use incinerators used in
disaster or emergency recovery efforts from the rule. Based on public
comments, EPA narrowed the exemption to limit the potential for abuse.
The petitioner contends that EPA did not provide an opportunity to
comment on the revised exclusion in the final rule, and that the
exclusion still exceeds EPA's authority under CAA section 129.
We are denying this request because we provided adequate
opportunity to comment on temporary-use incinerators used in disaster
recovery in the notice of proposed rulemaking for OSWI published on
December 9, 2004 (69 FR 71483). Commenters pointed out a potential for
abuse in the proposed exemption, which could allow incinerators to
operate indefinitely in major disaster areas without having to comply
with the regulations. To address these comments, as explained in the
notice of final rulemaking (70 FR 74879-74880, December 16, 2005), and
the response to comments document, EPA narrowed the exemption in the
final OSWI regulations to temporary use incinerators in local, State
and Federally proclaimed disaster areas; and, in addition, limited the
amount of time an incinerator may operate in the recovery effort
without seeking approval from EPA for an extension of operating time.
Thus, the revisions in the final rule are a logical outgrowth of the
proposed rule. Therefore, having taken comment on the issue and
responded to those comments during the rulemaking, EPA denies the
request to reconsider the exemption for temporary-use incinerators used
in disaster recovery in the OSWI rules.
4. Incinerators That Burn National Security Documents
At proposal, EPA requested comments on whether it should provide an
exclusion from the OSWI rules for incinerators that burn national
security documents. At promulgation, EPA established exclusions for
certain incinerators burning national security documents, and the
petitioner contends that they did not have an opportunity to comment on
the rationale for the exclusion.
We deny the petitioner's request for reconsideration of this issue.
In the notice of proposed rulemaking, we took comment on providing an
exclusion for ``a subclass of IWI that burn national security
documents,'' so that such subclass would not be regulated as an OSWI
(69 FR 71478, December 9, 2004). We received comments from both the
public and other government agencies for and against the need for such
an exclusion. On one hand, some public commenters do not believe that
there was sufficient reason to provide an exclusion for these units. On
the other hand, some public commenters and government agencies
presented cases where sensitive documents must be destroyed quickly and
thoroughly, and noted that document shredding and chemical treatment
may be unavailable or infeasible. Such is the case for field military
readiness training exercises, where it would be infeasible to carry
hazardous chemicals and equipment needed to destroy classified
documents in the field.
Moreover, the final rule does not provide an outright exclusion
from OSWI for incinerators that burn national security documents (70 FR
74880-74881, December 16, 2005). However, to address the comments, we
provided a narrow exemption for IWI units used solely during military
training field exercises to destroy national security materials
integral to the field exercises. In addition, because we realized that
there may be particular instances where incineration may be the only
viable method of destroying national security materials, we included
provisions such that individual IWI sources could apply for this
exclusion as necessary. One example arises when chemical/mechanical re-
pulping is the primary method of destruction of national security
documents; however, a mechanical malfunction prevents use of the system
for an extended period of time. In the meantime, there are ongoing
national security document destruction needs at the facility that must
be met. It may be that a back-up incinerator is the only available
alternative to adequately destroy the documents while repairs are being
made to the re-pulping system. To operate the incinerator without
meeting the requirements of the OSWI rules, the facility must apply for
an exclusion for the incinerator and demonstrate that no other
alternatives for destruction of the materials are presently available.
The exemptions added in the final rule are a logical outgrowth from
the solicitation of comment in the proposed rule. Thus, EPA denies the
request to reconsider incinerators used to burn national security
documents in the OSWI rules.
5. Cement Kilns
The petitioner states that the proposed OSWI regulations included
an exclusion for cement kilns, but this exclusion was not specifically
discussed in the preamble to the proposed rule. The petitioner contends
that EPA argued for the first time in the final rule that EPA does not
need to set standards for cement kilns under CAA section 129 because
they are already regulated under CAA section 112. The petitioner
disagrees with this rationale.
We note that while the cement kiln exclusion was not discussed per
se in the preamble to the proposed rules, the exclusion was clearly
presented in the proposed regulatory language. In fact, the petitioner
provided comments on the proposed exclusion for cement kilns, to which
EPA provided a response in the response to comment document supporting
the final OSWI regulations. As we noted in our response, cement kilns
have been regulated under a CAA section 112 regulation since 1999,
which covers both major and area source cement kilns.
As we discussed in both the proposal (69 FR 71475 and 71477,
December 9, 2004) and promulgation preambles (70 FR 74872 and 74875,
December 16, 2005), as well as the response to comment document for the
OSWI rules, the language of CAA section 129(h) makes clear the
Congressional intent for
[[Page 2629]]
CAA regulations under CAA section 129 or CAA section 112 to be mutually
exclusive. At proposal, in addition to submitting comments specifically
on cement kilns, the petitioner also submitted comments on our general
rationale that EPA has the discretion to determine which categories of
incineration units should be regulated under CAA section 112 instead of
CAA section 129, and that the same source category cannot be regulated
under both sections of the CAA.
Therefore, having received comment on the issue and responding to
said comments during the rulemaking, EPA denies the request to
reconsider the exclusion of cement kilns from the OSWI rules.
6. Plasma Arcs and Other Incineration Technologies
The petitioner contends that EPA failed to mention plasma arcs and
various other combustion technologies in the preamble to the proposed
OSWI rules. The petitioner notes that EPA received comments on whether
various technologies should be regulated. The petitioner argues that in
the final rule, EPA seeks to ``broadly exclude a wide variety of
incinerators from regulation as incinerators and-in some cases-from any
regulations at all'' and that there was no opportunity to comment on
EPA's rationale for such an exclusion.
As the commenter notes, we received, and responded to, comments on
this issue in the preamble to the final rules (70 FR 74876-74877,
December 16, 2005). It is unrealistic to expect EPA, or the commenter,
to know of every available technology that is, or could be, used to
function as a VSMWC or IWI. Therefore, the OSWI rules are written such
that applicability is not limited to spe
