[Federal Register: January 22, 2007 (Volume 72, Number 13)]
[Rules and Regulations]
[Page 2620-2631]
[DOCID:fr22ja07-12]

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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.

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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

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 http://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 http://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<PHONE_NUMBER>, and the telephone number for the
EPA Docket Center is<PHONE_NUMBER>.

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<EMAIL_ADDRESS>
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 http://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:

    (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\
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    \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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    Conversely, another commenter (EPA-HQ-OAR-2003-0156-0127)

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\
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    \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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    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.
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    \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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    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

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.''
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    \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.
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    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.
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    \5\ Absence of current regulations under CAA section 112,
however, is not determinative of whether a unit is subject to the
final OSWI rules.
---------------------------------------------------------------------------

    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

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\
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    \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

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

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

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\
---------------------------------------------------------------------------

    \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

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 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 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.
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    \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 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.
---------------------------------------------------------------------------

    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 2060-0563 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<EMAIL_ADDRESS>or by calling<PHONE_NUMBER>.
    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,

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 cost-
benefit 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
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
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.

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

    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.

    Dated: January 16, 2007.
Stephen L. Johnson,
Administrator.
 [FR Doc. E7-820 Filed 1-19-07; 8:45 am]

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[Federal Register Volume 82, Number 55 (Thursday, March 23, 2017)]
[Proposed Rules]
[Pages 14839-14841]
[FR Doc No: 2017-05514]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2016-9588; Airspace Docket No. 16-AAL-5]

Proposed Amendment of Class E Airspace, Soldotna, AK

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This action proposes to modify Class E airspace extending
upward from 700 feet above the surface at Soldotna Airport, Soldotna,
AK. After review of the airspace, the FAA found redesign is necessary
due to procedure modifications. The FAA also proposes to remove the
reference to the Soldotna nondirectional radio beacon (NDB) in the
legal description. This action would enhance the safety and management
of IFR operations at the airport.

DATES: Comments must be received on or before May 8, 2017.

ADDRESSES: Send comments on this proposal to the U.S. Department of
Transportation, Docket Operations, 1200 New Jersey Avenue SE., West
Building Ground Floor, Room W12-140, Washington, DC 20590; telephone:
1-800-647-5527, or<PHONE_NUMBER>. You must identify FAA Docket No.
FAA-2016-9588; Airspace Docket No. 16-AAL-5, at the beginning of your
comments. You may also submit comments through the Internet at http://www.regulations.gov. You may review the public docket containing the
proposal, any comments received, and any final disposition in person in
the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through
Friday, except federal holidays.
    FAA Order 7400.11A, Airspace Designations and Reporting Points, and
subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the
Airspace Policy Group, Federal Aviation Administration, 800
Independence Avenue SW, Washington, DC, 20591; telephone:<PHONE_NUMBER>.
The Order is also available for inspection at the National Archives and
Records Administration (NARA). For information on the availability of
FAA Order 7400.11A at NARA, call<PHONE_NUMBER>, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.
    FAA Order 7400.11, Airspace Designations and Reporting Points, is
published yearly and effective on September 15.

FOR FURTHER INFORMATION CONTACT: Robert LaPlante, Federal Aviation
Administration, Operations Support Group, Western Service Center, 1601
Lind Avenue SW., Renton, WA 98057; telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the

agency's authority. This rulemaking is promulgated under the authority
described in Subtitle VII, Part A, Subpart I, Section 40103. Under that
section, the FAA is charged with prescribing regulations to assign the
use of airspace necessary to ensure the safety of aircraft and the
efficient use of airspace. This regulation is within the scope of that
authority as it would amend Class E airspace at Soldotna Airport,
Soldotna, AK, to conform the airspace to the size necessary for the
current arrivals.

Comments Invited

    Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments, as
they may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers and be submitted in
triplicate to the address listed above. Persons wishing the FAA to
acknowledge receipt of their comments on this notice must submit with
those comments a self-addressed, stamped postcard on which the
following statement is made: ``Comments to Docket No. FAA-2016-9588/
Airspace Docket No. 16-AAL-5.'' The postcard will be date/time stamped
and returned to the commenter.
    All communications received before the specified closing date for
comments will be considered before taking action on the proposed rule.
The proposal contained in this notice may be changed in light of the
comments received. A report summarizing each substantive public contact
with FAA personnel concerned with this rulemaking will be filed in the
docket.

Availability of NPRMs

    An electronic copy of this document may be downloaded through the
Internet at http://www.regulations.gov. Recently published rulemaking
documents can also be accessed through the FAA's Web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.
    You may review the public docket containing the proposal, any
comments received, and any final disposition in person in the Dockets
Office (see the ADDRESSES section for the address and phone number)
between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal
holidays. An informal docket may also be examined during normal
business hours at the Northwest Mountain Regional Office of the Federal
Aviation Administration, Air Traffic Organization, Western Service
Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA
98057.

Availability and Summary of Documents Proposed for Incorporation by
Reference

    This document proposes to amend FAA Order 7400.11A, Airspace
Designations and Reporting Points, dated August 3, 2016, and effective
September 15, 2016. FAA Order 7400.11A is publicly available as listed
in the ADDRESSES section of this document. FAA Order 7400.11A lists
Class A, B, C, D, and E airspace areas, air traffic service routes, and
reporting points.

The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal
Regulations (14 CFR) Part 71 by modifying Class E airspace extending
upward from 700 feet above the surface at Soldotna Airport, Soldotna,
AK. This proposed action is necessary because the airspace as
configured exceeds the minimum size required for the current arrivals.
The portion of airspace within a 10.1-mile radius of the Soldotna
Airport and within 4 miles either side of the 270 degree bearing of the
Soldotna NDB would be revised from 4 miles to 2.4 miles and the
reference to the NDB would be changed to the Soldotna Airport. The
portion of airspace extending from the 10.1-mile radius to 21 miles
west of the Soldotna Airport would be modified to 11 miles west of the
airport. The portion of airspace within 4 miles south of the 090 degree
bearing of the Soldotna Airport would be revised to 3.5 miles.
    Class E airspace designations are published in paragraph 6004,
6005, and 6006, of FAA Order 7400.11A, dated August 3, 2016, and
effective September 15, 2016, which is incorporated by reference in 14
CFR 71.1. The Class E airspace designations listed in this document
will be published subsequently in the Order.

Regulatory Notices and Analyses

    The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current, is
non-controversial and unlikely to result in adverse or negative
comments. It, therefore: (1) Is not a ``significant regulatory action''
under Executive Order 12866; (2) is not a ``significant rule'' under
DOT Regulatory Policies and Procedures (44 FR 11034; February 26,
1979); and (3) does not warrant preparation of a regulatory evaluation
as the anticipated impact is so minimal. Since this is a routine matter
that will only affect air traffic procedures and air navigation, it is
certified that this rule, when promulgated, would not have a
significant economic impact on a substantial number of small entities
under the Environmental Review.
    This proposal will criteria of the Regulatory Flexibility Act.be
subject to an environmental analysis in accordance with FAA Order
1050.1F, ``Environmental Impacts: Policies and Procedures'' prior to
any FAA final regulatory action.

List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the Federal
Aviation Administration proposes to amend 14 CFR part 71 as follows:

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

0
1. The authority citation for 14 CFR part 71 continues to read as
follows:

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

Sec.  71.1  [Amended]

0
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11A,
Airspace Designations and Reporting Points, dated August 3, 2016, and
effective September 15, 2016, is amended as follows:

Paragraph 6005 Class E Airspace Areas Extending Upward From 700
Feet or More Above the Surface of the Earth.

* * * * *

AAL AK E5 Soldotna, AK [Modified]

Soldotna, Soldotna Airport, AK
    (Lat. 60[deg]28'30'' N., long. 151[deg]02'17'' W.)

    That airspace extending upward from 700 feet above the surface
within a 10.1-mile radius of the Soldotna Airport and within 2.4
miles either side of the 270[deg] bearing of the Soldotna Airport,
AK, extending from the 10.1-mile radius to 11 miles west of the
Soldotna Airport, AK, and within 3.5 miles either side of the
090[deg] bearing of the Soldotna Airport, AK, extending from the
10.1-mile radius to 14.3 miles east of the Soldotna Airport, AK; and
that airspace extending upward from 1,200 feet above the surface

within a 73-mile radius of the Soldotna Airport.

    Issued in Seattle, Washington, on March 9, 2017.
Tracey Johnson,
Manager, Operations Support Group, Western Service Center.
[FR Doc. 2017-05514 Filed 3-22-17; 8:45 am]
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