[Federal Register: July 23, 2009 (Volume 74, Number 140)]
[Proposed Rules]
[Page 36430-36446]
[DOCID:fr23jy09-12]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 1200

[EPA-HQ-OAR-2008-0201-FRL-8934-4]
RIN 2060--AP14

Waste Energy Recovery Registry

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: EPA is proposing to establish the criteria for including
sources or sites in a Registry of Recoverable Waste Energy Sources
(Registry), as required under Title IV, Subtitle D of the Energy
Independence and Security Act of 2007. The Agency is also proposing the
Survey processes by which EPA will collect data and populate the
Registry. The rule would apply to major industrial and large commercial
sources as defined by EPA in this rulemaking. This proposed rule would
not require the installation of new monitoring equipment; rather it
would require only that sources above certain threshold levels that
wish to be included in the Registry enter specific already-monitored
data points into the voluntary Survey, which is a software tool that
will calculate the quantity and quality of potentially recoverable
waste energy.

DATES: The public may comment on this proposed rule until September 21,
2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2008-0201, by one of the following methods:

     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
     E-mail<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>.
     Mail: Environmental Protection Agency, EPA Docket Center
(EPA/DC), Mailcode 2822T, Attention Docket ID No. EPA-HQ-OAR-2008-0201,
1200 Pennsylvania Avenue, NW., Washington, DC 20460.
     Hand Delivery: Public Reading Room, Room B102, EPA West
Building, 1301 Constitution Avenue, NW., Room 3334, Washington, DC
20004. Such deliveries are only accepted during the Docket's normal
hours of operation, and special arrangements should be made for
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2008-0201. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
    Docket: All documents in the docket are listed in the http://
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air Docket, EPA/
DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC.
This Docket Site 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 Air
Docket is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Katrina Pielli, Climate Protection
Partnerships Division, Office of Atmospheric Programs (MC 6202J),
Environmental Protection Agency, 1200 Pennsylvania Ave NW., Washington,
DC 20460; telephone number:<PHONE_NUMBER>; fax number<PHONE_NUMBER>;
e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:  The information in this preamble is
organized as follows:

I. General Information
    A. Does This Action Apply to Me?
    B. What Should I Consider as I Prepare My Comments to EPA?
    C. Where Can I Get a Copy of This Document?
    D. Abbreviations Used in This Document
II. Background Information
    A. What Are the Purpose and Requirements of EISA Title IV,
Subtitle D?
    B. What Is the Legal Authority for the Proposed Action?
    C. What Is the Relationship to Other EPA Waste Energy Recovery
and CHP Efforts?
III. Summary of the Proposed Rule
    A. What Is the Overall Approach to the Survey and Registry?
    1. What Are the Key Definitions and Interpretation?
    2. What Are the Survey and Registry Scope?
    3. What Are the Survey and Registry Schedules?
    B. Survey
    1. What Is the Rationale Behind the Survey Approach?
    2. What Are the Major Industrial and Large Commercial
Thresholds?
    3. What Is Detailed Quantitative Information and How Is it
Applicable to the Survey and Registry?
    4. What Is the Approach to Determine if a Potential Waste Energy
Recovery Project Has a Five-year Payback or Less?
    5. What Is the Approach to Ensure Projects Proposed for
Inclusion in the Registry Are Not Developed or Used for the Primary
Purpose of Making Sales of Excess Electric Power Under the
Regulatory Provisions of Subtitle D Part E?
    6. How Will the Survey Be Distributed?
    7. How Do I Return a Survey?
    8. What Is the Schedule for Returning a Survey?
    C. Registry
    1. How Will EPA Notify Entities of Their Listing and What Is the
Method for Any Interested State, Utility, or Other Interested Person
to Contest a Listing?
    2. What Are the Standards to Address New Sources or New Energy-
Consuming Industrial Facilities Constructed After EISA Enactment?
    a. New Sources Constructed After EISA Enactment
    b. New Energy Consuming Industrial Facilities Constructed After
EISA Enactment
    3. How Are Projects Removed From the Registry?
IV. Economic Impacts
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    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 Risks and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations

I. General Information

A. Does This Action Apply To Me?

    This is a proposed regulation. If finalized, these regulations
would affect owners and operators of major industrial and large
commercial sources (as defined in this regulation). Regulated
categories and entities could include the following:

------------------------------------------------------------------------
                     Code                           2002 NAICS title
------------------------------------------------------------------------
211..........................................  Oil and Gas Extraction.
212..........................................  Mining (except Oil and
                                                Gas).
221320.......................................  Sewage Treatment
                                                Facilities.
221330.......................................  Steam and Air-
                                                Conditioning Supply.

31-33........................................  Manufacturing.
311..........................................  Food Manufacturing.
312..........................................  Beverage and Tobacco
                                                Product Manufacturing.
313..........................................  Textile Mills.
314..........................................  Textile Product Mills.
315..........................................  Apparel Manufacturing.
316..........................................  Leather and Allied
                                                Product Manufacturing.
321..........................................  Wood Product
                                                Manufacturing.
322..........................................  Paper Manufacturing.
323..........................................  Printing and Related
                                                Support Activities.
32411........................................  Petroleum Refineries.
324191.......................................  Petroleum Lubricating Oil
                                                and Grease
                                                Manufacturing.
325..........................................  Chemical Manufacturing.
326..........................................  Plastics and Rubber
                                                Products Manufacturing.
327..........................................  Nonmetallic Mineral
                                                Product Manufacturing.
3311.........................................  Iron and Steel Mills and
                                                Ferroalloy
                                                Manufacturing.
3313.........................................  Alumina and Aluminum
                                                Production and
                                                Processing.
3314.........................................  Nonferrous Metal (except
                                                Aluminum) Production and
                                                Processing.
3315.........................................  Foundries.
332..........................................  Fabricated Metal Product
                                                Manufacturing.
333..........................................  Machinery Manufacturing.
334..........................................  Computer and Electronic
                                                Product Manufacturing.
335..........................................  Electrical Equipment,
                                                Appliance, and Component
                                                Manufacturing.
336..........................................  Transportation Equipment
                                                Manufacturing.
337..........................................  Furniture and Related
                                                Product Manufacturing.
339..........................................  Miscellaneous
                                                Manufacturing.
44511........................................  Supermarkets and Other
                                                Grocery (except
                                                Convenience) Stores.
4862.........................................  Pipeline Transportation
                                                of Natural Gas.
48811........................................  Airport Operations.
48831........................................  Port and Harbor
                                                Operations.
493120.......................................  Refrigerated Warehousing
                                                and Storage.
518..........................................  Internet Service
                                                Providers, Web Search
                                                Portals, and Data
                                                Processing Services.
521..........................................  Monetary Authorities--
                                                Central Bank.
522..........................................  Credit Intermediation and
                                                Related Activities.
5221.........................................  Depository Credit
                                                Intermediation.
5222.........................................  Nondepository Credit
                                                Intermediation.
6111.........................................  Elementary and Secondary
                                                Schools.
6112.........................................  Junior Colleges.
6113.........................................  Colleges, Universities.
622..........................................  Hospitals.
623..........................................  Nursing and Residential
                                                Care Facilities.
71211........................................  Museums.
71213........................................  Zoos and Botanical
                                                Gardens.
71311........................................  Amusement and Theme
                                                Parks.
71321........................................  Casinos (except Casino
                                                Hotels).
72111........................................  Hotels (except Casino
                                                Hotels) and Motels.
72112........................................  Casino Hotels.
812331.......................................  Linen Supply.
812332.......................................  Industrial Launderers.
92214........................................  Correctional
                                                Institutions.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding facilities likely to be covered by this
action. This table lists the types of facilities that EPA is now aware
of that could potentially be affected by this action. Other types of
facilities not listed in the table could also be subject to reporting
requirements. To determine whether your site is affected by this
action, you should carefully examine the applicability criteria found
in the regulation text of this rule. If you have questions regarding
the applicability of this action to a particular site, consult the
person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

B. What Should I Consider as I Prepare My Comments to EPA?

    Do not submit information containing CBI to EPA through http://
www.regulations.gov or e-mail. Direct your comments to Docket ID No.
EPA-HQ-OAR-2008-0201. EPA's policy is that all comments received will
be included in the public docket without change and may be made
available online at http://www.regulations.gov, including any personal
information provided, unless the comment includes information claimed
to be CBI or other information whose disclosure is restricted by
statute.
    If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.

C. Where Can I Get a Copy of This Document?

    All documents in the docket are listed in the http://
www.regulations.gov index. Publicly available docket materials are also
available in hard copy at the Air Docket, EPA/DC, EPA West, Room

B102, 1301 Constitution Ave., NW., Washington, DC. This Docket Site 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.

D. Abbreviations Used in This Document

Combined Heat and Power (CHP)
Commercial Buildings Energy Consumption Survey (CBECS)
Commercial Energy Profile Database (CEPD)
Confidential Business Information (CBI)
Detailed Quantitative Information (DQI)
US EPA's Emission & Generation Resource Integrated Database (eGRID)
Energy Independence and Security Act of 2007 (EISA)
Energy Policy and Conservation Act (EPCA)
Federal Energy Regulatory Commission (FERC)
Freedom of Information Act (FOIA)
Greenhouse Gas (GHG)
Kilowatt (kW)
Megawatt (MW)
Million British Thermal Units (MMBtu)
Million metric tons of carbon dioxide (MMTCO2)
New Source Performance Standards (NSPS)
North American Industry Classification System (NAICS)
National Emissions Inventory (NEI)
Operation and Maintenance (O&M)
Registry of Recoverable Waste Energy Sources (Registry)
Standard Cubic Feet per Minute (scf/min)
U.S. Environmental Protection Agency (EPA)
U.S. Environmental Protection Agency Combined Heat and Power
Partnership (EPA CHPP)
Waste Energy Survey Tool (WEST)

II. Background Information

A. What Are the Purpose and Requirements of EISA Title IV, Subtitle D?

    On December 19, 2007 the President of the United States signed the
Energy Independence and Security Act of 2007 (EISA) which was designed
to improve vehicle fuel economy and help reduce US dependence on oil.
    Title IV of EISA contains extensive new provisions designed to save
energy in buildings and industries. EISA Subtitle D focuses on
industrial energy efficiency and contains new provisions designed to
improve energy efficiency by promoting combined heat and power (CHP),
waste energy recovery, and district energy systems.
    This proposed rule addresses the U.S. Environmental Protection
Agency's (EPA) obligation under EISA to publish a rule within 270 days
of EISA enactment that establishes the criteria by which sources or
sites will be listed in a Registry of Recoverable Waste Energy Sources
(Registry).
    The rule also addresses the related EPA obligation under EISA to
develop an ongoing Survey of major domestic industrial and large
commercial sources as well as the sites at which the sources are
located, and to conduct a review of each source for the quantity and
quality of potential waste energy produced. This Survey is a necessary
first step to gather the data needed to establish the Registry. EISA
also directs EPA to establish the Registry within one year of EISA
enactment.
    The purposes of the Survey and Registry are to:
    1. Provide a list of the economically feasible existing waste
energy recovery opportunities in the US based on a Survey of major
industrial and large commercial sources;
    2. Provide State and national totals of the existing waste energy
recovery opportunities, as well as the potential criteria pollutant and
greenhouse gas emissions reductions that could be achieved with the
capture and use of the waste energy recovery opportunities listed in
the Registry;
    3. Serve as the basis for potential waste energy recovery projects
to qualify for financial and regulatory incentives as described in
Energy Policy and Conservation Act (EPCA) Sections 373 ``Waste Energy
Recovery Incentive Grant Program'' and 374 ``Additional Incentives for
Recovery, Use, and Prevention of Industrial Waste Energy,'' as added by
EISA.

B. What Is the Legal Authority for the Proposed Action?

    EISA Title IV Subtitle D amends the Energy Policy and Conservation
Act (EPCA) by adding a new Part E, titled ``Industrial Energy
Efficiency,'' to Title III of EPCA (42 U.S.C. 6291 et seq). The new
EPCA Section 372 directs EPA to establish a ``recoverable waste energy
inventory program,'' which is to include ``an ongoing Survey of all
major industrial and large commercial combustion sources in the United
States (as defined by the Administrator) and the sites at which the
sources are located,'' as well as ``a review of each source for the
quantity and quality of waste energy produced at the source.'' Section
372 further provides that EPA is to publish a rule to establish
criteria for including sites in a Registry of Recoverable Waste Energy
Sources within 270 days of EISA enactment (September 19, 2008) and to
establish the Registry not later than one year after enactment
(December 19, 2008).

C. What Is the Relationship to Other EPA Waste Energy Recovery and CHP
Efforts?

    This rulemaking and Registry complement EPA's existing voluntary
program, the Combined Heat and Power Partnership (EPA CHPP). EPA
established EPA CHPP in October 2001 in response to President George W.
Bush's 2001 National Energy Policy Report, which identified CHP as an
efficient, clean power generation technology that should be encouraged.
The EPA CHPP is a voluntary effort to reduce the environmental impact
of power generation by promoting the use of CHP. The EPA CHPP has over
285 Partners, including energy users, project developers, State
agencies, and energy service companies. Between 2001 and 2008, the EPA
CHPP has assisted its Partners with over 400 projects representing
4,764 megawatts of new, environmentally-beneficial and cost-effective
CHP capacity. On an annual basis, these projects will prevent the
emission of more than 11.8 MMTCO2.\1\ Resources permitting, EPA will
leverage the EPA CHPP to provide technical assistance to the owners or
operators of sources or sites in the Registry, regarding the optimum
means of recovery of value from the waste energy stream, as directed
under EPCA Section 372(g) ``Optimum Means of Recovery.''
---------------------------------------------------------------------------

    \1\ EPA Combined Heat and Power Partnership. http://www.epa.gov/
chp/partnership/index.html. Methodology described at http://
www.epa.gov/appdstar/pdf/2007AnnualReportFinal.pdf.
---------------------------------------------------------------------------

 III. Summary of the Proposed Rule

 A. What Is the Overall Approach to the Survey and Registry?

1. What Are the Key Definitions and Interpretation?
    As added by EISA, Section 371 of EPCA defines several important
terms, including ``combined heat and power,'' ``project,''
``recoverable waste energy,'' ``useful thermal energy,'' and ``waste
energy.'' EPA is proposing to use the same definitions of ``combined
heat and power,'' \2\ ``project'', ``recoverable waste energy'' and
``useful thermal energy'' as stated in EPCA Section 371.
---------------------------------------------------------------------------

    \2\ Other definitions of ``combined heat and power'' and
``cogeneration'' under the Clean Air Act can be found at: 40 CFR
60.41Da, 40 CFR 60.41b Subpart Db, 40 CFR 60.4420 Subpart KKKK, 40
CFR 97.102 Subpart AA, 40 CFR 97.202 Subpart AAA, 40 CFR 97.302
Subpart AAAA.
---------------------------------------------------------------------------

    As defined in EPCA Section 371, the term `waste energy' includes
three specified forms of waste energy as well as ``[s]uch other forms
of waste energy as the Administrator may determine.'' EPA is providing
examples of the three specified forms of waste energy below:
    ``(A) Exhaust heat or flared gas from any industrial process;''
    Examples of part A of the definition of waste energy may include
high temperature exhaust streams from glass

melters, cement kilns, and pipeline compressor turbine drives.
    ``(B) Waste gas or industrial tail gas that would otherwise be
flared, incinerated, or vented;''
    Examples of part B the definition of may include chemical and/or
refinery off gases with combustible content, and combustible off gases
from coke ovens.
    ``(C) A pressure drop in any gas, excluding any pressure drop to a
condenser that subsequently vents the resulting heat; and''
    Examples of part C of the definition of waste energy may include
high pressure steam generated in a boiler that is subsequently reduced
in pressure before being used in an industrial process or building
heating system.
    The definition of waste energy also includes ``(D) Such other forms
of waste energy as the Administrator may determine.'' EPA is proposing
a determination that waste energy include the potential opportunity for
combined heat and power (CHP). In part, this is based on the statutory
structure. EPCA Section 372 directs EPA to establish a Recoverable
Waste Energy Inventory Program that includes a Survey and a Registry of
Recoverable Waste Energy Sources. Section 372 is housed in Part E of
EPCA, which is titled Industrial Energy Efficiency. Congress defined
CHP for Part E of EPCA but did not include CHP-specific provisions in
Part E. This suggests that Congress expected that EPA would consider
opportunities for including CHP in the scope of the Survey and
Registry. EPA believes it is appropriate to include CHP opportunities
because doing so is consistent with the EISA goal of promoting the
recovery of waste energy. In addition, CHP is inherently an energy
efficiency measure where energy that is usually lost is recovered for
useful purposes. This simultaneous generation of electricity and
recovery of useful thermal energy from a single fuel source is more
efficient than separate generation of power and thermal energy.
Including potential CHP opportunities in the Registry will encourage
more widespread consideration of this efficiency approach.
    EISA Section 372 uses the terms ``facility'' and ``site''
interchangeably; for clarity, the proposed regulation uses ``site'' to
refer to ``a building or group of buildings that provides a particular
service or is used for a particular industrial application.''
References in this document to a ``facility'' should be understood as
referring to the ``site.'' EPA is proposing to define ``source'' as
``any process or activity resulting in the release of waste energy.'' A
site may have multiple sources.
    Section 372 uses the terms ``major industrial combustion source''
and ``large commercial combustion source'' to refer to the types of
sources to be included in the Survey. EPA believes that it has
discretion to allow additional, non-combustion sources to participate
in the Survey. EPA has not included the word ``combustion'' in the
proposed regulatory definitions because not all waste energy as defined
in EPCA Section 371 is necessarily generated by a combustion source.
Waste heat, waste gas or pressure drop could all be the result of non-
combustion operations (e.g., an exothermic chemical reaction generating
waste heat). As discussed elsewhere in this notice, EPA is proposing to
include Combined Heat and Power (CHP) in the regulatory definition of
waste energy. One application of CHP that provides cooling as the
thermal output can be implemented at sites that are currently all-
electric. EPA believes that it is appropriate to include non-combustion
sources of waste energy within the scope of the Survey because doing so
will promote recovery of waste energy consistent with the statutory
intent. Completion of the Survey is voluntary; non-combustion sources
of waste energy would incur no penalty if they elected not to
participate. In addition, Section 372(d) of EPCA directs EPA to
establish a Registry of Recoverable Waste Energy Sources but does not
instruct EPA to limit the Registry to combustion sources. Because
Survey data will be used to evaluate sources for inclusion in the
Registry, the scope of the Survey must be at least as broad as the
scope of the Registry. While combustion does occur at most of the
sources within the Survey scope, EPA is proposing that both the Survey
and the Registry be open to non-combustion sources, to assess their
waste energy recovery opportunities based on the proposed thresholds.
Thus, this proposed regulation uses ``major industrial source'' and
``large commercial source.'' This regulation also uses the term ``large
commercial source'' to include institutions and multi-family housing.
2. What Are the Survey and Registry Scope?
    The scope of the Survey and Registry will be based on the
thresholds for major industrial and large commercial sources as
proposed in this rule. EPA expects to contact 11,000 facilities within
the initial thresholds proposed in this rule. Not all of these
facilities will have sources that meet the secondary thresholds. The
Survey results will directly affect the Registry scope; EPA will use
them to populate the Registry. The Survey EPA is proposing is an
Internet-based Survey, the Waste Energy Survey Tool (WEST), which would
be downloaded by owners or operators of the sites or sources (the
respondents). The respondents would enter data into WEST to be used to
determine the potential waste energy recovery opportunity of the
source. For more information on the proposed Survey questions, see the
Technical Support Document--Waste Energy Survey Tool in the docket.
Once a respondent has completed the Survey, WEST would generate a final
summary report, which the respondent would subsequently submit to EPA
via mail or e-mail.
    WEST calculates the potential recoverable waste energy from each
source using embedded algorithms based on the criteria proposed in this
rule, using data provided by the site owner or operator. Sources or
sites that meet the criteria included in this proposed rule would be
included in the Registry. For more information on how the proposed
Survey questions will allow WEST to calculate the payback for a
potential waste energy recovery project, see the Technical Support
Document--Economic Payback Calculation in the docket.
    EPA is proposing to include the following information for each site
in the Registry:
    a. Site name, address, NAICS code;
    b. Site contact person name, title, address, phone number, e-mail
address;
    c. The total waste energy recovery potential at the site; and
    d. Date the listing was posted in the Registry.

EPA believes that the Registry, containing this information, will
provide the site or source, the Agency, and private project developers
of waste energy recovery systems valuable data on potential waste
energy recovery opportunities that have been assessed by WEST. The
Registry will not include detailed quantitative information as defined
in this rule. The information EPA is proposing to include in the
Registry is the minimum information needed for site or source operators
or owners, and private project developers of waste energy recovery
systems, to be aware that a potential waste energy recovery project has
met the criteria included in this rule and facilitate conversations
between private parties to pursue the capture and use of the potential
waste energy.
    As directed by EPCA Section 372(d)(2), EPA is also proposing to
include in the Registry, nationally and by State, the total quantities
of

potentially recoverable waste energy from sources at the sites in the
Registry, as well as the criteria pollutant (NOX,
SOX) and greenhouse gas (GHG) emissions savings that might
be achieved with recovery of the waste energy from all sources and
sites listed in the Registry. Emissions savings of waste energy
recovery projects will be estimated by comparing the emissions from the
waste energy recovery system to the emissions that would normally occur
without the system in place, including the displaced power plant
emissions from grid electricity avoided by the output of the waste
energy recovery system. Avoided grid emissions will be calculated based
on EPA's Emission & Generation Resource Integrated Database (eGRID).\3\
---------------------------------------------------------------------------

    \3\ eGRID, developed by EPA's Climate Protection Partnership
Division's State and Local Branch, contains data on the
environmental attributes of virtually all of the electric power
generated in the United States, linking air emissions to electricity
generated. The most recent version, the sixth edition of eGRID,
eGRID2007, includes operational data from 2005. http://www.epa.gov/
cleanenergy/energy-resources/egrid/index.html.
---------------------------------------------------------------------------

3. What Are the Survey and Registry Schedules?
    EPA is proposing that the Survey be completed by owners or
operators of affected sources anytime following release of WEST. The
Agency expects WEST to be released within 90 days of the final rule
being published in the Federal Register. Submissions received within 60
days of WEST being released would be included in the initial launch of
the Registry. Additional submissions received would be included in the
Registry on a rolling basis.
    Following the release of WEST, affected sites and sources can
submit the Survey reporting information to the Agency at any time.
Sites meeting the initial thresholds as defined in this rule for major
industrial and large commercial sources and that are in the list of
affected NAICS codes, as provided above under SUPPLEMENTARY
INFORMATION, would receive the request from EPA to download and
complete the Survey as described in this rule. Sites or sources that
submit Survey reporting information would be included in the Registry
if they meet the criteria proposed in this rule, whether or not EPA
notified them of the Survey. EPA may contact the respondent to discuss
their submission if it appears inaccurate.
    EPCA Section 372(e) provides that an owner, operator or third-party
developer may self-certify their sites and sources ``[s]ubject to any
procedures that are established by the Administrator.'' It further
provides that ``a site or source shall be included in the Registry only
if the Administrator reviews and approves the self-certification.'' EPA
is proposing to allow owners and operators, as well as third-party
developers acting jointly with an owner or operator, to complete the
Survey and submit the Survey results to EPA at any time. EPA believes
this meets the intent of Section 372(e) while avoiding the need for a
separate self-certification process. The Survey and Registry approach
are constructed such that all Survey responses are generated by the
algorithms embedded in the Survey tool (which are developed by EPA),
regardless of when they are received by EPA. In addition, the Survey
tool will be designed to not generate a final summary report if there
are missing or incomplete fields. As such, the Agency is not proposing
to create a separate option for self-certification. EPA invites comment
on this approach.
    EPA is proposing that the Survey and Registry be updated on an as-
needed basis. The Agency intends to assess every three years relevant
market conditions, technology status and applicable incentives, and
make Survey adjustments as appropriate.
    EPA invites comment on the proposed schedule.

B. Survey

1. What Is the Rationale Behind the Survey Approach?
    In considering the potential approaches, EPA decided that a
voluntary Internet-based Survey, such as WEST, would be most effective
at providing EPA the site-specific source data necessary to accomplish
the review of each source for the quantity and quality of waste energy
produced. WEST would also provide owners or operators the ability to
retain confidential or sensitive business data that could be exploited
for competitive advantage by requiring only the Survey output to be
submitted to EPA. In addition, WEST would not allow a respondent to
submit an incomplete Survey response (will not calculate the final
summary report), thereby reducing burden on EPA and the respondent by
avoiding the need for additional interaction on the completeness of the
Survey response.
    EPA is proposing that WEST be downloaded from the Internet to the
respondent's computer. If a respondent is unable to download the Survey
tool, the respondent can contact EPA for alternate submission
instructions (consult the person listed in the preceding FOR FURTHER
INFORMATION CONTACT section). All information which EPA reasonably
expects might be covered by a claim of confidentiality or otherwise be
considered sensitive would remain on the respondent's computer. WEST
will generate a final summary report based on that information using
embedded algorithms and the respondent will submit the final summary
report to EPA, which should not contain any sensitive business
information. EPA is proposing WEST over a traditional Survey because
the Agency will not need to collect any confidential or sensitive
business information to accomplish the requirements of EISA. In
addition, EPA believes the necessary information can be collected more
efficiently and at a lower cost using WEST.
    EPA considered alternatives to the proposed data collection
approach. EPA considered utilizing the National Emissions Inventory
(NEI) for the source specific information necessary for the Survey and
Registry, but determined that NEI did not provide the type of
information necessary for four primary reasons: NEI does not include
data for waste gas streams or pressure drops so would not provide data
for all types of waste energy, as described in Section A(1) of this
preamble; NEI does not contain complete data sets; NEI contains data
anomalies; and NEI data is not consistent across the States as to what
specific information is included. EPA is requesting comment on the
proposed data collection approach.
2. What Are the Major Industrial and Large Commercial Thresholds?
    EPA is proposing an initial and a secondary threshold for major
industrial sources, and an initial and a secondary threshold for large
commercial sources. The initial thresholds are used to determine which
sites within the list of affected NAICS codes should expect to receive
the Survey. The secondary thresholds are used by the sites that receive
the Survey to determine if they have sources with characteristics
suitable for an economically-feasible waste energy recovery
opportunity, as required by EISA, based on commercially-available
technology. The proposed thresholds are:
a. Major Industrial Sources
     Initial threshold--site with 100 MMBtu/hour fuel use;
     Secondary threshold--process stacks with temperatures 500
[deg]F or greater, flow rates greater than 7,000 to 50,000 scf/min
depending on temperature, and minimum operating hours of 4,500 hrs/yr.

b. Large Commercial Sources
     Initial threshold--site with 1 MW average electric annual
demand or 5 MMBtu/hour fuel input;
     Secondary threshold--minimum thermal or cooling load of
2.5 MMBtu/hour or 150 Tons, and minimum operating hours of 4,500 hrs/
yr.
    EPA is also proposing definitions of ``major industrial source''
and ``large commercial source'' that utilize these thresholds.
    EPA is proposing that sources located at sites that do not meet the
initial thresholds can complete the Survey if they meet the appropriate
secondary threshold. The initial thresholds are intended to focus the
Survey scope on those sites most likely to have sources that meet the
criteria; they are not intended to prevent owners or operators of other
sites from completing the Survey. If these sources or sites meet the
secondary thresholds and all other criteria established in this rule,
they would be placed in the Registry.
    EPA considered establishing an initial threshold for major
industrial sources, an initial threshold for large commercial sources,
and sector-specific secondary thresholds based on NAICS codes. EPA
believes that sector-specific thresholds are unnecessary since there
are general considerations for waste energy opportunities, such as
availability, temperature and flow rate, which are applicable across
sectors.
    In the development of thresholds, EPA considered the EISA
obligation to survey all major industrial and commercial sources. EPA
reviewed existing thresholds from other EPA regulations, including the
New Source Performance Standards (NSPS), which could be used to denote
major industrial or large commercial sources. EPA also reviewed
relevant databases for other applicable thresholds. The threshold
development also included reviewing existing analysis of waste energy
projects by the EPA CHPP.
    The proposed major industrial initial threshold of 100 MMBtu/hr is
the NSPS threshold for industrial boilers. This NSPS, titled
``Standards of Performance for Industrial-Commercial-Institutional
Steam Generating Units,'' is available for reference at 40 CFR 60.40b.
The proposed large commercial initial threshold of 1 MW average
electric annual demand or 5 MMBtu/hour is reflective of the size of
facilities associated with existing CHP commercial projects included in
existing databases. These databases include the U.S. Department of
Energy's Commercial Buildings Energy Consumption Survey (CBECS), CHP
Installation database \4\ and private databases including the IHS
Commercial Energy Profile Database (CEPD).
---------------------------------------------------------------------------

    \4\ ICF International, http://www.eea-inc.com/chpdata/
index.html.
---------------------------------------------------------------------------

    EPA lacks data to definitively estimate the waste energy potential
of major industrial and large commercial sources, the number of
facilities or the individual facilities where this potential is
located. This is likely a driver behind Congress' intent in obligating
EPA to conduct an ongoing survey of all major industrial and large
commercial sources for the quantity and quality of waste energy
produced at the source. Given the current uncertainty regarding
potential waste energy recovery opportunities, EPA is relying on
existing databases and analyses for supporting information in
establishing the Survey scope.
    Based on the existing databases and analyses, there are
approximately 8,000-12,000 combined commercial facilities above 1 MW of
average electric demand and industrial facilities above 100 MMBTU/hr
fuel use. Based on a review of existing CHP projects at industrial
facilities, projects of 20 MW or greater represent 95 percent of total
installed industrial CHP capacity. The profile of existing industrial
CHP also shows that the larger industrial fuel consumers most likely
represent a majority of the economically feasible CHP potential in
terms of MW capacity. As stated above, there are no corresponding data
sets for the other waste energy categories; however EPA believes it is
reasonable to assume that the profile of opportunities for these waste
energy categories would be similar to the CHP profile. Based on a
review of the existing CHP profile for commercial applications, 1 MW
and greater is the most economically feasible market with current
technology and market conditions. CHP projects of 1 MW or larger
represent 97 percent of the existing CHP capacity in the commercial
sector. For supporting information on these thresholds, see the
Technical Support Document--Evaluation of Initial Thresholds for the
Registry of Recoverable Waste Energy Sources and for the Survey of
Major Industrial and Large Commercial Sources in the docket.
    EPA is requesting comment on the major industrial and large
commercial thresholds.
3. What Is Detailed Quantitative Information and How Is It Applicable
to the Survey and Registry?
    Under EPCA Section 372(c)(3)(B) ``the owner or operator of a source
at a site may elect to have detailed quantitative information (DQI)
concerning the site not made public'' by notifying EPA of the election.
This section also states that DQI shall be made available to the
applicable State energy office and utility requested to support
recovery of waste energy from the source or site pursuant to the
incentives provided under EPCA Section 374. Respondents should note
that while DQI will not appear in the Registry, there is potential for
it to be disclosed through other means pursuant to EPCA Section
372(3)(B)(ii) or EPA's Freedom of Information Act (FOIA) regulations.
DQI is a term created by EPCA Section 372(3)(B).
    Section 374 allows a project owner or operator that is in the
Registry to request that their State regulatory authority or
nonregulated electric utility provide public notice, conduct a hearing,
and make a determination whether or not it is appropriate to implement
the regulatory incentives contained within this Section. These
regulatory incentives allow an owner or operator of a waste energy
recovery project identified in the Registry that generates net excess
power to be eligible to benefit from at least one of the options
described in Section 374 subsection (c) for disposal of the net excess
power in accordance with the rate conditions and limitations described
in Section 374 subsection (d).
    As previously described, EPA is proposing to include the following
information for each site in the Registry:
    a. Site name, address, NAICS code;
    b. Site contact person name, title, address, phone number, e-mail
address;
    c. The total waste energy recovery potential at the site; and
    d. Date the listing was posted in the Registry.
    EPA does not consider the types of information listed above to be
DQI. The proposed Survey would not include an option for respondents to
claim the information listed above as confidential business information
(CBI) because the public availability of such information is crucial to
fulfilling the purpose of the Registry. Since Congress directed that
the Registry contain site level information, the above listed
information is critical to identifying the site with the waste energy
recovery opportunity based on the Survey data. The remaining outputs
from the Survey are important for EPA to determine whether the site has
met the criteria for inclusion in the Registry; however, their posting
in the Registry is not crucial to the Registry's operation. For
simplicity, EPA proposes to treat the remaining Survey outputs as DQI.
EPA will not post DQI in the Registry.

    Respondents should be aware that EPCA Section 372 provides for the
disclosure of DQI to ``the applicable State energy office'' and ``any
utility requested to support recovery of waste energy from the source''
under Section 374. In addition, EPA could receive a request to release
DQI under the Freedom of Information Act (FOIA). While the proposed
Survey is designed to avoid the transmission to EPA of information for
which facilities might be expected to assert a claim of
confidentiality, respondents will nonetheless have the option of
asserting such a claim for all or part of their DQI. Information
covered by such a claim will be disclosed by EPA only to the extent,
and by means of the procedures, set forth in EPA's Confidential
Business Information (CBI) regulations at 40 CFR part 2 subpart B.
    EPA is proposing to define DQI as the following Survey output with
respect to individual sources at a site:
    (1) Source description (e.g., glass furnace, process flare);
    (2) Quantitative estimates of:
     For each source, the CO2 emissions reduction
potential (tons/year).
     For each source, the criteria pollutant reduction
potential (NOX and SOX tons/yr).
     For waste heat sources, the waste heat to power recovery
potential (MW).
     For waste gas sources, the waste gas to power recovery
potential (MW).
     For pressure drop sources, the pressure drop to power
recovery potential (MW).
     For CHP potential, the CHP potential (MW) based on sizing
to thermal (heating and/or cooling) load.
    (3) Yes/no answers to the following questions:
     For each waste heat source, combustible source, pressure
drop source, and potential CHP opportunity, does the potential project
have a five year payback or less (yes/no).
     For each waste heat source, combustible source, pressure
drop source, and potential CHP opportunity, does the potential project
meet the primary purpose criteria (yes/no).
     For each new source, does the potential project meet the
60% efficiency test (yes/no).
     For each waste heat source, does the site have a waste
heat recovery opportunity that passes all screening criteria (yes/no).
     For each waste gas or industrial tail gas source, does the
site have a waste gas or industrial tail gas recovery opportunity that
passes all screening criteria (yes/no).
     For each pressure drop source, does the site have a
pressure drop recovery opportunity that passes all screening criteria
(yes/no).
     For each potential CHP opportunity, does the site have a
CHP opportunity that passes all screening criteria (yes/no).
    For more information on the proposed Survey questions, see the
Technical Support Document--Waste Energy Survey Tool in the docket.
    A State energy office may request DQI for a specific site in its
State by submitting a request to EPA via mail (address at http://
www.epa.gov/wasteenergyregistry) or e-mail at
<EMAIL_ADDRESS>E-mail requests may include the subject
line ``State energy office DQI request.'' All DQI requests shall
include: the requesting State energy office name, address, city, State,
contact person, and the site or source name, address, and NAICS code as
displayed in the Registry.
    A utility may request DQI for a specific site in its service
territory to support recovery of waste energy from the source pursuant
to the incentives provided under EPCA Section 374 by submitting a
request to EPA via mail (address at http://www.epa.gov/
wasteenergyregistry) or e-mail at<EMAIL_ADDRESS>E-mail
requests may include the subject line ``Utility DQI request.'' All DQI
requests shall include the utility name, address, city, State, and
NAICS code of the site, as displayed in the Registry.
    Since Section 372(c)(3)(B) states that utilities may request DQI in
the context of supporting recovery of waste energy from the source/s
pursuant to the incentives provided under EPCA Section 374, EPA urges
utilities making such a request to include supporting information that
the project has requested a hearing under Section 374. Supporting
information could take the form of notification from the applicable
State regulatory authority that the project has requested a hearing or
other similar documentation. To minimize the burden, supporting
information can include a Web site address where documentation is
readily available. EPA may not be able to release DQI without such
supporting information.
    EPA is requesting comment on the information proposed to be
considered DQI .
4. What Is the Approach To Determine if a Potential Waste Energy
Recovery Project Has a Five-year Payback or Less?
    EPCA Section 372(b)(2)(A) states that EPA's criteria for inclusion
in the Registry shall include:

    ``A requirement that, to be included in the Registry, a project
at the site shall be determined to be economically feasible by
virtue of offering a payback of invested costs not later than 5
years after the date of first full project operation (including
incentives offered under this part);''

    EPA is proposing to use WEST to determine if the site has
economically feasible potential energy recovery project/s based on the
5 year financial payback requirement described above. WEST will include
algorithms for estimating simple paybacks for waste energy recovery
projects based on the site and source information requested of each
site in the Survey. Simple payback for a waste energy recovery project
would be calculated by dividing the total installed cost of the project
by the projected annual savings of the project. The annual savings
would be estimated by calculating potential savings from reduced
purchases of electricity (essentially the electricity generated by the
waste energy recovery system times the average purchase price for
electricity at the site) less any incremental operating costs required
by the project (for example, operating and maintenance [O&M] costs for
the energy recovery equipment or incremental fuel use for CHP
projects).
    Section 372 requires that the payback determination include any
financial incentives established in Part E of EPCA. The only financial
incentives included in Part E are in Sections 373 and 374.
    EPCA Section 373 directs the Department of Energy to establish a
waste energy recovery incentive grant program to provide incentive
grants to:

    ``(a)(1) Owners and operators of projects that successfully
produce electricity or incremental useful thermal energy from waste
energy recovery;
    (2) Utilities for purchasing or distributing the electricity;
and
    (3) States that have achieved 80 percent or more of recoverable
waste heat recovery opportunities.''

    EPCA Section 374 allows a project owner or operator to request that
their State regulatory authority or nonregulated electric utility
``provide public notice and conduct a hearing'' with regard to the
standard for sales of excess power described in Section 374(b), and
``on the basis of the hearing, consider and make a determination
whether or not it is appropriate to implement'' that standard.
    Under Section 374(b), the standard for sales of excess power
''shall provide that an owner or operator of a waste energy recovery
project identified in the Registry that generates net excess power
shall be eligible to benefit from at least one of the options described
in subsection (c) for disposal of the net

excess power in accordance with the rate conditions and limitations
described in subsection (d).'' The options include: (1) Sale of net
excess power to utility; (2) transport by utility for direct sale to
third party; (3) transport over private transmission lines.
    Because Section 374 does not contain quantified financial
incentives, EPA is proposing not to include Section 374 incentives in
the payback determination. Section 374(d) describes how the regulatory
incentives will be offered under purchase and transport rate conditions
that reflect the rate components defined in that section.
    The only financial incentives quantified in Section 373 for owners
and operators of waste energy recovery projects are those described in
Section 373(b). First, Section 373(b)(3)(A) provides for a grant at the
rate of $10/MWh of ``documented electricity produced from recoverable
waste energy.'' This grant is limited to the first three calendar years
of electricity production. Second, Section 373(b)(4) provides for a
grant at the rate of $10/3,412,000 Btus of excess thermal energy ``used
for a purpose different from that for which the project is principally
designed.'' EPA is proposing to add these financial incentives to the
projected annual savings of the potential waste energy project. These
financial incentives would be paid to the owners or operators of waste
energy recovery projects. Inclusion of the Section 373 incentives in
the payback calculation does not automatically qualify a site or source
included in the Registry listing for such incentives.
    The algorithms embedded in WEST will estimate total installed
costs, incremental O&M costs, electricity generated, and incremental
fuel use and cost for each potential waste energy recovery project at a
responding site. Each of these estimates will be based on rules of
thumb for sizing, efficiency, and costs that are specific to each of
the potential waste energy recovery categories (e.g., waste heat
recovery, waste gas recovery, pressure drop recovery, CHP). While the
performance and cost estimates will vary by category, the calculation
of payback itself will be similar. For more information, see the
Technical Support Document--Economic Payback Calculation in the docket.
    EPA is requesting comment on the approach to including incentives
offered in EPCA Section 373.
5. What Is the Approach to Ensure Projects Proposed for Inclusion in
the Registry Are Not Developed or Used for the Primary Purpose of
Making Sales of Excess Electric Power Under the Regulatory Provisions
of Subtitle D Part E?
    EPCA Section 372(b)(2)(B) directs EPA to establish criteria for
including sites in the Registry and specifically directs EPA to include
criteria on ``standards to ensure that projects proposed for inclusion
in the Registry are not developed or used for the primary purpose of
making sales of excess electric power under the regulatory provisions
of this part.'' EPA interprets the ``regulatory provisions of this
part'' as a reference to EPCA Part E--Industrial Energy Efficiency,
Section 374--Additional Incentives for Recovery, Use and Prevention of
Industrial Waste Energy. Section 374 is the only section of Part E that
contains regulatory provisions concerning the sale of excess power.
    In proposing regulatory language consistent with EPCA Section
372(b)(2)(B) (the ``primary purpose'' criterion), EPA is looking to
balance the Congressional directive to conduct a Survey and establish a
Registry of recoverable waste energy sources and sites on which the
sources are located, with the goal of ensuring that proposed projects
have legitimate thermal and electric uses, and are not designed with
the purpose of maximizing electric sales to the utility under EPCA
Section 374. EPA recognizes that there is an existing body of
regulatory decisions by State regulatory authorities and the Federal
Electric Regulatory Commission (FERC) related to cogeneration
facilities thermal output being used in a productive and beneficial
manner, as well as other regulatory decisions on the purchase of excess
electricity by utilities. EPA also recognizes that in certain
industries and situations (such as chemical and refining), the thermal
demand is sufficiently large that thermally-based CHP or waste heat
recovery projects would generate more electricity than can be used on-
site. In such cases, sale of excess electricity to the utility is a
prerequisite to maximize energy and carbon savings, and optimize
project economics. EPA also recognizes that 12 States currently
recognize waste heat recovery or CHP as an eligible resource in their
Renewable Portfolio Standard, Energy Efficiency Portfolio Standard or
Alternative Energy Portfolio Standard.\5\
---------------------------------------------------------------------------

    \5\ EPA Combined Heat and Power Partnership. Energy Portfolio
Standards and the Promotion of Combined Heat and Power. http://
www.epa.gov/chp/documents/eps_and_promotion.pdf.
---------------------------------------------------------------------------

    To strike the balance described above, EPA is proposing that for a
potential waste energy project to be included in the Registry, it must
meet one of the following primary purpose criteria:
    (i) At least 50 percent of the aggregated annual energy output of
the site (as defined in this rule) is to be used for industrial or
commercial purposes, and not sold to an electric utility (``the 50
percent threshold''); or
    (ii) The site is located in a State where the appropriate
regulatory authority has made a State-wide determination under EPCA
Section 374 not to implement the regulatory sale of excess power
provisions in EPCA Section 374. This waiver of the 50 percent threshold
is applicable until the State regulatory authority reverses or removes
its decision; or
    (iii) The owner or operator of the site submits a joint petition
with the local electric utility that serves the site to the Director of
the Office of Atmospheric Programs of the EPA, requesting that the 50
percent threshold be waived.
    EPA is proposing to define ``aggregated annual energy output of the
site'' as the total useful output of the fuel driving the source,
including electricity produced by a project and thermal energy
recovered in or driving the project. For CHP, the aggregate annual
energy output would be the sum of the electricity generated and the
useful thermal energy recovered on an annual basis. For other types of
waste energy recovery projects, the aggregated annual energy output of
the project would be the sum of the thermal energy used by the furnace
or chemical process that generated the waste heat and the annual
electricity generated by the recovery system. As an example, the
thermal energy requirements of a furnace that is generating a hot
exhaust stream that could potentially be recovered as electricity would
be estimated by the furnace efficiency multiplied by the total fuel
input to the furnace. In the case of an exothermic chemical reaction,
the thermal energy requirements of the process would be equal to the
energy released by the exothermic reaction (estimated by the amount of
heat available for recovery). EPA is requesting comment on this
proposed definition and on the primary purpose criteria.
    ``Primary purpose'' criterion (i) is designed to determine whether
a majority of the total energy output of the potential waste energy
recovery project has the potential to be used at the site. A similar
approach has been implemented by FERC in Docket RM05-36-000, Order 671
(February 2, 2006), which is available in the docket for this

action. Order 671 establishes a safe harbor for new cogeneration
systems seeking Qualifying Facility status (18 CFR 292.205(d)). This
safe harbor provision requires a demonstration that at least 50 percent
of the aggregated annual energy output of the cogeneration project is
to be used for industrial, commercial, residential or institutional
purposes (essentially, used on-site), and not sold to an electric
utility. Projects that comply with this safe harbor provision are
assumed to be intended ``fundamentally'' for on-site purposes. FERC
includes both electricity and/or mechanical power produced by a project
and thermal energy recovered as part of the aggregated annual energy
output. EPA is proposing to do the same.
    ``Primary purpose'' criterion (ii) is designed to streamline the
process for potential waste energy projects located in States that
issue a State-wide decision to not implement the Section 374 regulatory
incentives. In such States, sources constructed following the decision
not to implement Section 374 clearly would not be developed for the
primary purpose of making sales of excess electric power under Section
374. Such sources would not be able to take advantage of Section 374.
Therefore, there is no need for them to show that they meet the 50
percent threshold. EPA is proposing that this waiver of the 50 percent
threshold would apply until the State regulatory authority reverses or
removes its decision.
    ``Primary purpose'' criterion (iii) is designed to give local
electric utilities flexibility to encourage the pursuit of waste energy
recovery projects by customers in their service territory. EPA
interprets the ``primary purpose'' test in Section 372(b) as an effort
to ensure that development of waste energy recovery projects does not
unduly impact the normal operation of local electric utilities. EPA
therefore believes it is appropriate to allow waivers where the utility
wishes to encourage such projects. Given that 12 States recognize waste
heat recovery or CHP as an eligible resource in their energy portfolio
standards, a local electric utility may decide to encourage a customer
in their service territory to develop a waste energy or CHP project and
sell excess electricity to the utility for purposes of meeting a
portfolio standard requirement. In such cases, upon receipt of a joint
petition from the utility and the owner or operator of the site, EPA
will waive the 50 percent threshold.
6. How Will the Survey Be Distributed?
    EPA is proposing to distribute WEST via the Internet for any site
owner and operator to download and provide answers to the Survey
directly on their computer. EPA plans to coordinate with State
environmental and energy offices, industry trade associations, and
energy and environmental non-profits, to notify sites on our list of
potentially affected NAICS codes about the Survey and the availability
of WEST on the Internet at http://www.epa.gov/waste energyregistry. EPA
will also send a letter to the corporate headquarters of entities on
the list of potentially affected NAICS codes, where the corporation has
three or more affected sites that likely meet the initial major
industrial or large commercial threshold as defined in this rule,
describing EPA's responsibilities, what the Agency is requesting them
to do for each site and source, and instructions on downloading and
returning WEST.
7. How Do I Return a Survey?
    EPA is proposing that WEST final summary reports, which contain the
information necessary to populate the Registry, shall be provided to
the EPA via mail (address at http://www.epa.gov/wasteenergyregistry and
also on the WEST final summary report) or e-mail at
<EMAIL_ADDRESS>E-mail requests may include the subject
line ``Survey response.'' Submissions received within 60 days of WEST
being released will be included in the initial launch of the Registry.
The Registry will be publicly available at http://www.epa.gov/
wasteenergyregistry.
8. What Is the Schedule for Returning a Survey?
    EPA is proposing to include Survey submissions received within the
first 60 days of the release of WEST in the initial launch of the
Registry, with subsequent submissions added on a rolling basis.

C. Registry

1. How Will EPA Notify Entities of Their Listing and What Is the Method
for Any Interested State, Utility or Other Interested Person To Contest
a Listing?
    EPCA Section 372(d)(3) states that EPA must notify owners or
operators of recoverable waste energy sources and sites listed in the
Registry prior to publishing the listing. EPA is proposing to provide
this notification in advance through the Survey tool. When an owner or
operator submits the WEST summary report to EPA, they are acknowledging
that if they meet the criteria included in this rule, their source or
site will be published in the Registry. No further notification will be
provided prior to Registry publication. The Registry will list sites
but will not contain a detailed description of each source at a
particular site.
    EPCA Section 372(d)(1)(C) states that any State, electric utility,
or other interested person may contest the listing by submitting a
petition to EPA. Petitions must be submitted in writing to the Director
of the Office of Atmospheric Programs of the EPA. EPA is proposing that
this petition shall be submitted via mail (address at http://
www.epa.gov/wasteenergyregistry) or e-mail at
<EMAIL_ADDRESS>E-mail petitions may include in the
subject line ``Contest of a listing.'' All petitions shall explain the
reason[s] the listing (i.e., site[s] or source[s]) is being contested.
The following information shall be provided to the Director of the
Office of Atmospheric Programs in writing (via e-mail or regular mail)
to contest a Registry listing:
     Entity contesting the listing--Name, address, contact
person name, title, address, e-mail and phone number;
     Registry listing being contested--Site name, address, and
NAICS code as displayed in the Registry;
     Reason the listing is being contested (i.e., why the site
or source should be excluded from the Registry).

All Registry listings whose inclusion in the Registry is contested will
be notified by EPA in writing (mail or e-mail) and be provided 60 days
(from the date of notification) to submit information for consideration
by EPA. No later than 180 days following receipt of information
submitted by the entity contesting the listing, EPA will decide whether
to remove or retain the listing in the Registry.
2. What Are the Standards To Address New Sources or New Energy-
Consuming Industrial Facilities Constructed After EISA Enactment?
    EISA contains two provisions addressing new sources or facilities:
EPCA Section 372(d)(5), which addresses new sources; and EPCA Section
372(f), which addresses ``new energy-consuming industrial facilities.''
EPA is proposing to build on the previously described criteria for
these new sources or facilities.
a. New Sources Constructed After EISA Enactment
    EPCA Section 372(d)(5) directs EPA not to list in the Registry any
source constructed after EISA enactment (December 19, 2007) if the
Agency determines that it:

    ``(A) Was developed for the primary purpose of making sales of
excess electric power under the regulatory provisions of this part; or
    (B) Does not capture at least 60 percent of the total energy value
of the fuels used (on a higher-heating-value basis) in the form of
useful thermal energy, electricity, mechanical energy, chemical output,
or any combination thereof.''
    EPA is proposing to interpret the term ``construct'' as used in
EPCA Section 372(d)(5) to mean ``commence construction'' as defined in
this rule. For any source that commenced construction after EISA
enactment, the financial and regulatory incentives in EISA Subtitle D
could have influenced the decision to construct the source.
    EPA is proposing to interpret Section 372(d)(5)(A) by utilizing the
same ``primary purpose'' definition and interpretation as Section B(5)
of this preamble:
    (i) At least 50 percent of the aggregated annual energy output of
the site (as defined in this rule) is to be used for industrial or
commercial purposes, and not sold to an electric utility (``the 50
percent threshold''); or
    (ii) The site is located in a State where the appropriate
regulatory authority has made a State-wide determination under EISA
Section 374 not to implement the regulatory sale of excess power
provisions in EISA Section 374. This waiver of the 50 percent threshold
is applicable until the State regulatory authority reverses or removes
its decision; or
    (iii) The owner or operator of the site submits a joint petition
with the local electric utility that serves the site to the Director of
the Office of Atmospheric Programs of the EPA, requesting that the 50
percent threshold be waived.
    EPA considered two primary options for interpreting Section
372(d)(5)(B): A strict interpretation that would require the source
itself, prior to project implementation, to capture 60 percent of the
total energy value of the fuels used at the source, or a more liberal
interpretation which would require that the source and the project
combined reach at least 60 percent capture of the total energy value of
the fuels used at the source.
    EPA is proposing that per Section 372(d)(5)(B), for new sources
that commence construction after EISA enactment, the combined potential
project and source must capture at least 60 percent of the total energy
value of the fuels used at the source (on a higher-heating-value basis
as defined in this rule) in the form of useful thermal energy,
electricity, mechanical energy, chemical output, or any combination
thereof. EPA believes that applying this efficiency requirement to the
combination of potential project and source for new sources is in line
with the objective of maximizing the efficiency of overall fuel use.
EPA believes that the intent of the 60 percent threshold is to ensure
that waste energy projects are legitimate and efficient, and to assure
that new projects are not developed based on questionable sources
(i.e., sources that utilize inefficient equipment with the intent to
generate large amounts of waste heat). EPA believes that new sources
that commence construction (as defined in this rule) after EISA
enactment have a strong financial interest in being very energy
efficient and are not likely to utilize inefficient equipment purely
for the purpose of being added to the Registry and being eligible for
incentives under Sections 373 or 374. Applying this threshold to the
combined source and project should accomplish Congress' objective of
screening out questionable projects. While some new sources may be able
to meet a 60 percent threshold independently, prior to the development
of a waste energy recovery project, others may not be able to meet this
threshold because of legitimate technology, operational or economic
reasons. EPA believes that capturing and efficiently utilizing the
waste energy supports the objectives of maximizing overall fuel use as
long as the combined efficiency of the source and project are at least
equal to the 60 percent total fuel efficiency threshold.
    EPA also understands that there are situations where existing
technology cannot meet a strict 60 percent capture threshold under
either interpretation described above, including but not limited to
recovering power from the exhaust heat at pipeline compressor stations.
EPA is proposing to waive this criterion in situations where existing
technology cannot meet a strict 60 percent threshold yet significant
overall efficiency improvements could be achieved through waste energy
recovery technologies. Examples include, but are not limited to, heat
recovery from pipeline compressor stations. EPA will determine if a
source qualifies under this exception on a case by case basis based on
internal review of the application and applicable technologies.
b. New Energy Consuming Industrial Sites Constructed After EISA
Enactment
    EPCA Section 372(f) states that EPA may elect to include in the
Registry a new energy-consuming industrial facility (to the extent the
site may constitute a site with recoverable waste energy that may
qualify for inclusion in the Registry) developed after EISA enactment,
at the request of the owner, operator, or developer of the site, on a
conditional basis with the site to be removed from the Registry if
development ceases or the site fails to qualify for listing under Part
E of EPCA.
    EPA is proposing to add to the Registry any new energy-consuming
industrial sites (as defined in this rule) that contain at least one
new source meeting the requirements for new sources described above, as
well as the standard criteria for listing. Because the Survey will
continue to be available following the Registry's initial launch, EPA
does not believe it is necessary to establish a separate process for
adding these new sites to the Registry. Upon submission of the Survey
results by the site owner or operator, EPA will be able to determine
whether the site meets the appropriate criteria. Since EPA will be
adding facilities to the Registry on a rolling basis, listing sites on
a conditional basis will not be necessary.
    In defining ``new energy-consuming industrial sites,'' EPA proposes
to interpret the phrase ``developed after'' the date of EISA enactment
the same as the phrase ``constructed after'' the date of EISA enactment
in Section 372(d)(5)(B). Therefore, a new energy-consuming industrial
site developed after the date of EISA enactment is one that commenced
construction after December 19, 2007. In addition, EPA proposes to
apply the primary purpose criterion and the 60 percent criterion to new
sources at these sites.
    EPA is also proposing that developers who wish to submit Survey
results for a new energy-consuming industrial site must do so jointly
with an owner or operator. This is consistent with the proposed role of
developers for existing sources.
3. How Are Projects Removed From the Registry?
    EPCA Section 372(d)(4)(A) directs that as a project achieves
successful recovery of waste energy, EPA shall:

    (i) ``Remove the related sites or sources from the Registry, and
    (ii) Designate the removed projects as eligible for incentives
under Section 374.''

    EPCA Section 372(d)(4)(B) states that no project shall be removed
from the Registry without consent of the owner or operator of the
project if:

    (i) ``The owner or operator has submitted a petition under
Section 374; and
    (ii) The petition has not been acted on or denied.''

    Under Section 374(a), an owner, operator, or project sponsor may
request that the State regulatory authority or nonregulated electric
utility provide public notice, conduct a hearing, and determine whether
to adopt a standard for sales of excess power as provided in Section
374(b). Section 374(b) requires that the sales of excess power standard
``provide that an owner or operator of a waste energy recovery project
identified on the Registry that generates net excess power shall be
eligible to benefit'' from at least one of three options listed under
Section 374(c) ``for disposal of the net excess power.'' Those options
are (1) the sale of net excess power to the utility; (2) transport by
the utility for direct sale to a third party; and (3) transport over
private transmission lines without subjecting the project to regulation
as a public utility. The third option includes waiver or modification
of any laws that would otherwise prohibit the construction and
operation of private transmission lines.
    The regulatory incentives in EPCA Section 374 have the potential to
affect whether an owner or operator pursues a waste energy project and
achieves successful recovery of the waste energy, since they relate to
the sales of net excess power to a utility. One interpretation of EPCA
Section 372(d)(4) would not allow the owner or operator of the source
or site to submit a Section 374 petition until the project is
commercially operational. However, this interpretation is inconsistent
with the notion of an incentive and with the purpose of EISA Subtitle
D, as explained below. Therefore, EPA believes that a two-step approach
to the Section 374 incentives is what Congress intended. Step one is
for an owner or operator of a site or source listed in the Registry to
submit a Section 374 petition and for the State regulatory authority or
nonregulatory authority to act on that petition. Step two is that once
a waste energy project is commercially operational, EPA will remove it
from the Registry and it will be eligible to dispose of the net excess
power in accordance with the standard adopted under Section 374(a),
which would include one or more of the options in Section 374(c). EPA
believes that full implementation of the Section 374 incentives as part
of Step two is reasonable because a project must be commercially
operational for it to be generating net excess power that can be
disposed of by selling it to the utility, having the utility transport
it for direct sale to a third party, or operating private transmission
lines to transport it for sale to a third party [Section 374(c)]. EPA
is proposing that under the third option, the source would not have to
wait until the project became commercially operational before obtaining
the necessary legal waivers or modifications and constructing the
private transmission lines. Such actions could proceed during project
development. Once the project became commercially operational, EPA
would remove the source from the Registry and designate the project as
eligible to dispose of the net excess power, which in this instance
would occur through operation of the private transmission lines.
    EPA understands that the EPCA Section 374 incentives could
significantly affect the feasibility of investing in the successful
recovery of waste energy at a source. Offering the ability to submit a
Section 374 petition only after a waste energy recovery project is
commercially operational would prevent the incentives from serving
their intended purpose, which is to overcome regulatory or financial
obstacles to such recovery. Given an overarching goal of EISA Subtitle
D is energy efficiency and the Registry is to facilitate the successful
recovery of waste energy, EPA believes Congress intended sites or
sources in the Registry to be able to submit a Section 374 petition,
even though the Section 374 incentives relating to disposal of the net
excess power will not be available for implementation until the waste
energy project became commercially operational. When a waste energy
project is commercially operational, the owner or operator is not
eligible to submit a new Section 374 petition, but can continue to
request action on a pending petition. Further, EPA is proposing that no
source or site will be removed from the Registry if the owner or
operator has submitted a petition under Section 374 based on the site
or source in question, and the petition has not been acted on or
denied.
    EPA is proposing for sites or sources listed in the Registry, that
as a waste energy project at the source becomes commercially
operational, the site owner or operator shall notify EPA within 90
days. EPA is also proposing that if a site or source on the Registry
chooses to no longer be listed in the Registry, the site or source can
notify EPA that it requests to be removed from the Registry. EPA will
remove the source from the Registry within 30 days from notification,
with the exception that no source or site will be removed from the
Registry if it has submitted a Section 374 petition and the petition
has not been acted on or denied. The site owner or operator shall
notify EPA via mail (address at http://www.epa.gov/wasteenergyregistry)
or e-mail at<EMAIL_ADDRESS>E-mail submissions may
include in the subject line ``Source removal request'' or ``Commercial
operation.'' All notifications shall include the site name, address,
NAICS code, date project became commercially operational, project
electric capacity, and the project thermal capacity. All notifications
shall also include a statement whether the owner or operator has
submitted a Section 374 petition to the appropriate regulatory
authority or nonregulated electric utility and if so, whether that
regulatory authority or utility has yet acted on the petition.
    EPA is proposing to maintain a publicly-available list of all
sources or sites that were listed in the Registry that were removed
once waste energy projects were completed. This list will be used
demonstrate the success of waste energy capture and be housed on the
same Web site as the Registry.

IV. Economic Impacts

    In developing this proposal, EPA prepared an economic analysis to
estimate the cost of the proposal, how the rule might impact small
entities, and the cost-effectiveness of regulatory alternatives.
    The cost of the proposed rule reflects both the costs of collecting
waste energy information, primarily through a Survey, and the costs of
maintaining the information on a publicly available EPA Web site. EPA
estimates total 3-year costs to the Agency of approximately $1.4
million. The total cost over the 3-year period, including costs to
respondents and non-respondents, is $2.8 million.
    The analysis determined that private costs per respondent will not
impose a significant cost on large or small businesses. Furthermore,
given that the Survey is targeted at the largest 1% of non-
manufacturing establishments and the largest 2% of manufacturing
establishments, the Survey is unlikely to affect many small entities at
all. Respondents that download and submit Survey reporting information
without request from EPA are unlikely to be small entities because
these respondents are likely to know if they can produce economically-
feasible recoverable waste energy.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory

action'' as it raises novel legal or policy issues. Accordingly, EPA
submitted this action to the Office of Management and Budget (OMB) for
review under EO 12866 and any changes made in response to OMB
recommendations have been documented in the docket for this action.
    In addition, EPA prepared an analysis of the potential costs and
benefits associated with this action. This analysis is contained in
``Waste Energy Registry: Regulatory/Economic Analysis'' in docket EPA-
HQ-OAR-2008-0201. A copy of the analysis is available in the docket for
this action and is briefly summarized here.
    The proposed rule will not have an annual impact of $100 million or
meet the other criteria for ``significant regulatory action'' in the
Executive Order. Therefore, EPA does not plan to prepare a regulatory
impact statement for this proposed rule. However, EPA invites comments
on the economic analysis.

B. Paperwork Reduction Act

    The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR number 2321.01. The information collected as a result
of this proposed rule and Survey will allow EPA to implement the
Registry of Recoverable Waste Energy Sources (Registry) mandated by
Title IV, Subtitle D, Section 372 of the Energy Independence and
Security Act (EISA) of 2007. Those major industrial and large
commercial sources that choose to respond to the Survey by filling out
the Survey tool will enter data into the tool to be used to determine
the potential waste energy recovery opportunity at the source or site.
Those sources or sites that satisfy the criteria for inclusion in this
proposed rule will be placed by EPA in the Registry.
    The major information burden involves enterprises that respond to
the Survey. The Survey is a one-time burden given the scope of the ICR
is three years.
    For the first three years after publication of the final rule in
the Federal Register, developing the Survey tool, conducting the
Survey, and developing and administering the Registry will account for
the burden to EPA.
    Calculation of the information collection burden and costs
associated with this proposal can be found in the Information
Collection Request for the Proposed Rule (40 CFR part 1200) and Survey
in Support of the Waste Energy Recovery Registry (USEPA, 2008),
available through http://www.regulation.gov under Docket ID EPA-HQ-OAR-
2008-0201.
    The total burden for respondents and non-respondents associated
with the proposed rule over the 3 years following promulgation is
60,645 hours, or an average of 20,215 hours per year. The total cost
over this period, including costs to respondents and non-respondents is
approximately $2.8 million or an average of $933,000 per year.
    The average burden per response, considering only survey
respondents, for each activity that requires a collection of
information is 7.29 hours; the average cost per response is $336.
Average burden and cost to non-respondents is approximately half of the
burden and cost to respondents, or 3.6 hours and $166. Time and cost
variations may exist depending on the number of components of the
Survey addressed by respondents.
    The total burden to EPA is approximately 9,831 hours, or 3,277
hours per year. EPA costs are $1,377,000 over three years, or
approximately $459,000 per year, including extramural costs. Burden is
defined at 5 CFR 1320.3(b).
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information request 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.
    To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, EPA has established a public docket for
this proposed rule under Docket ID number EPA-HQ-OAR-2008-0201. Submit
any comments related to the ICR to EPA and OMB. See ADDRESSES section
at the beginning of this notice for where to submit comments to EPA.
Send comments to OMB at the Office of Information and Regulatory
Affairs, Office of Management and Budget, 725 17th Street, NW.,
Washington, DC 20503, Attention: Desk Officer for EPA. Since OMB is
required to make a decision concerning the ICR between 30 and 60 days
after July 23, 2009, a comment to OMB is best assured of having its
full effect if OMB receives it by August 24, 2009. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.

C. Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act (RFA) 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 today's rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (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; and (3) a small organization that is
any ``not-for-profit enterprise which is independently owned and
operated and is not dominant in its field.''
    After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
proposed rule will not impose any requirements on small entities.
    Since this proposed rule establishes the criteria by which entities
can submit a voluntary survey, no small entity is being regulated. The
survey is voluntary, so it will not impose any requirements on small
entities. Small entities may choose to participate in the Registry by
submitting the Survey, but it is not mandatory.
    We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.

D. Unfunded Mandates Reform Act (UMRA)

    This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538, for State, local, or Tribal governments or the private
sector. The action imposes no enforceable duty on any State, local or
Tribal governments or the private sector. This action is also not
subject to the requirements of Section 203 of UMRA because it contains
no regulatory requirements that might significantly or uniquely affect
small governments. The proposed rule pertains only to major domestic

industrial and large commercial sources that may have potentially
recoverable waste energy.

E. Executive Order 13132: Federalism

    Executive Order 13132, titled ``Federalism'' (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 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.''
    This proposed rule 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 EO 13132. The Registry of Recoverable Waste Energy
Sources and the Survey tool will be administered by EPA and will
involve only major domestic industrial and large commercial sources
with potentially recoverable waste energy. Thus, Executive Order 13132
does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have Tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). It involves only
the collection of information from major domestic industrial and large
commercial sources with potentially recoverable waste energy and the
development and administration by EPA of a Registry of Recoverable
Waste Energy Sources. Thus, Executive Order 13175 does not apply to
this action. EPA specifically solicits additional comment on this
proposed action from Tribal officials.

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

    EPA interprets EO 13045 (62 F.R. 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it does not establish an environmental standard intended
to mitigate health or safety risks.

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

    This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. This action is focused on identifying
the potential for waste energy recovery through a Survey and creating a
Registry; it is not focused on other aspects of energy supply or
distribution. Further, we have concluded that this rule is not likely
to have any adverse energy effects because it will not pursue the
installation of the waste energy recovery operations, rather just
identify the potential. Since the decision to invest in these potential
waste energy recovery projects is made by the facility owner or
operator, it is too far removed from this rule and its affects; as such
it will not have any adverse energy affects.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (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, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
    The proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.

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

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. The proposed rule involves only the collection of
information about potential opportunities for waste energy recovery.
Although the Survey and Registry of Recoverable Waste Energy Sources
are expected to encourage the development of projects to reduce the
amount of lost energy, the siting and development of waste energy
recovery projects are not covered by this proposed rule.

List of Subjects in 40 CFR Part 1200

    Environmental protection. Energy. Waste energy. Combined heat and
power. Industrial energy efficiency.

    Dated: July 16, 2009.
Lisa Jackson,
Administrator.
    For the reasons set out in the preamble, title 40, chapter I, of
the Code of Federal Regulations is proposed to be amended by adding
part 1200 to Subchapter U to read as follows:

PART 1200--WASTE ENERGY RECOVERY REGISTRY

Sec.
1200.1 Purpose.
1200.2 Definitions.
1200.3 Criteria for inclusion in the Registry.
1200.4 Process for inclusion in the Registry.
1200.5 Process for removing a listing from the Registry.
1200.6 Process for contesting a Registry listing.

    Authority: Sec. 451, Pub. L. 110-140, 121 Stat. 1492.

Sec.  1200.1  Purpose.

    This part establishes criteria for the inclusion of sources or
sites in the Registry of Potentially Recoverable Waste Energy Sources
and establishes the processes for adding sources or sites to the
Registry and removing them from the Registry.

Sec.  1200.2  Definitions.

    As used in this part, the term:

    Administrator means the Administrator of the Environmental
Protection Agency.
    Aggregated annual energy output of the site means the total useful
output of the fuel driving the source, including electricity generated
by a project and thermal energy recovered in or driving the project
and/or process.
    Combined heat and power means a site that simultaneously and
efficiently produces useful thermal energy and electricity; and
recovers not less than 60 percent of the energy value in the fuel (on a
higher-heating-value basis as defined in this rule) in the form of
useful thermal energy and electricity.
    Commence construction means that the owner or operator has all
necessary preconstruction approvals or permits and either has: begun,
or caused to begin, a continuous program of actual on-site construction
of the source, to be completed within a reasonable time; or entered
into binding agreements or contractual obligations, which cannot be
cancelled or modified without substantial loss to the owner or
operator, to undertake a program of actual construction of the source
to be completed within a reasonable time.
    Commercially operational means the waste energy recovery project is
placed in service. Commercially operational does not include
commissioning or other testing prior to operation.
    Detailed Quantitative Information (DQI) means the following Survey
output with respect to individual sources at a site:
    (1) Source description (e.g., glass furnace, process flare);
    (2) Quantitative estimates of:
    (i) For each source, the CO2 emissions reduction
potential (tons/year);
    (ii) For each source, the criteria pollutant reduction potential
(NOx and SOx tons/yr);
    (iii) For waste heat sources, the waste heat to power recovery
potential (MW);
    (iv) For waste gas sources, the waste gas to power recovery
potential (MW);
    (v) For pressure drop sources, the pressure drop to power recovery
potential (MW);
    (vi) For potential CHP opportunities, the CHP potential based on
sizing to thermal (heating and/or cooling) load (MW).
    (3) Yes/no answers to the following questions:
    (i) For each waste heat source, combustible source, pressure drop
source, and potential CHP opportunity, does the potential project have
a five year payback or less (yes/no);
    (ii) For each waste heat source, combustible source, pressure drop
source, and potential CHP opportunity, does the potential project meet
the primary purpose criteria (yes/no);
    (iii) For each new source, does the potential project meet the 60%
efficiency test (yes/no);
    (iv) For each waste heat source, does the site have a waste heat
recovery opportunity that passes all screening criteria (yes/no);
    (v) For each waste gas or industrial tail gas source, does the site
have a waste gas or industrial tail gas recovery opportunity that
passes all screening criteria (yes/no);
    (vi) For each pressure drop source, does the site have a pressure
drop recovery opportunity that passes all screening criteria (yes/no);
    (vii) For each potential CHP opportunity, does the site have a CHP
opportunity that passes all screening criteria (yes/no).
    Existing source or site means a source or site that commenced
construction prior to December 19, 2007.
    Heating-value means how much energy is released on combustion of a
given quantity of fuel, for example, Btu per gallon, or Btu per cubic
foot.
    Higher heating-value (HHV) means heating value including the heat
of condensation of the water vapor contained in the products of
combustion. Fuels are typically priced on an HHV basis. The HHV for
natural gas is approximately 10% greater than the LHV.
    Large commercial source means a source at a site that meets or
exceeds an initial threshold of 1 MW average electric annual demand or
5 MMBtu/hour fuel use and where the source meets or exceeds a secondary
threshold of minimum thermal or cooling load of 2.5 MMBtu/hour or 150
Tons, and minimum operating hours of 4,500 hrs/yr.
    Lower heating value (LHV) means heating value not including the
heat of condensation of the water vapor contained in the products of
combustion.
    Major industrial source means a source at a site that meets or
exceeds an initial threshold of 100 MMBtu/hour fuel use and where the
source meets or exceeds a secondary threshold of process stacks with
temperatures 500[deg] F or greater, flow rates greater than 7,000 to
50,000 scf/min depending on temperature, and minimum operating hours of
4,500 hrs/yr.
    New energy-consuming industrial site means any new major industrial
site that has commenced construction on or after December 19, 2007.
Sources at a new major industrial site that meet the definition of a
major industrial source are to be treated as new major industrial
sources.
    New source or site means a source or site that commenced
construction on or after December 19, 2007.
    Project means a recoverable waste energy project or a combined heat
and power project. A project is located at a particular source. A site
may have multiple projects.
    Recoverable waste energy means waste energy from which electricity
or useful thermal energy may be recovered through modification of an
existing site or addition of a new site.
    Registry means the Registry of Recoverable Waste Energy Sources.
    Respondent means an owner or operator of a source or site that
submits a Survey response to EPA.
    Section 374 petition means the submission by an owner or operator
of a site or source in the Registry of a request to a State regulatory
authority or nonregulated utility on the basis of section 374 of the
Energy Policy and Conservation Act.
    Site means a building or group of buildings that provides a
particular service or is used for a particular industrial application.
    Source means any process or activity resulting in the release of
waste energy. A site may have multiple sources.
    Survey means the EPA document or tool which is designed to gather
information from major industrial and large commercial sources about
the potential waste energy produced at the source or site. The Survey
gathers data necessary to establish the Registry of Recoverable Waste
Energy Sources.
    Useful thermal energy means energy in the form of direct heat,
steam, hot water; or other thermal form that is used in production and
beneficial measures for heating, cooling, humidity control, process
use, or other valid thermal end-use requirements; and for which fuel or
electricity would otherwise be consumed.
    Waste energy means exhaust heat or flared gas from any industrial
process; waste gas or industrial tail gas that would otherwise be
flared, incinerated, or vented; a pressure drop in any gas, excluding
any pressure drop to a condenser that subsequently vents the resulting
heat; and the opportunity for combined heat and power project/s.

Sec.  1200.3  Criteria for inclusion in the Registry.

    (a) EPA will include in the Registry sources or sites that meet the
criteria in paragraphs (b) and (c) of this section:
    (b)(1) Existing sources and sites must meet the following initial
and secondary threshold criteria except as provided in paragraph (b)(3)
of this section:

    (i) Major industrial sources.
    (A) Initial threshold--site with 100 MMBtu/hour fuel use;
    (B) Secondary threshold--process stacks with temperatures 500
[deg]F or greater, flow rates greater than 7,000 to 50,000 scf/min
depending on temperature, and minimum operating hours of 4,500 hrs/yr.
    (ii) Large commercial sources.
    (A) Initial threshold--site with 1 MW average electric annual
demand or 5 MMBtu/hour fuel use;
    (B) Secondary threshold--minimum thermal or cooling load of 2.5
MMBtu/hour or 150 Tons, and minimum operating hours of 4,500 hrs/yr.
    (2) New sources and sites must meet the following initial and
secondary threshold criteria except as provided in paragraph (b)(3) of
this section and must also meet the criterion in paragraph (b)(2)(iii)
of this section:
    (i) Major industrial sources.
    (A) Initial threshold--site with 100 MMBtu/hour fuel use;
    (B) Secondary threshold--process stacks with temperatures 500
[deg]F or greater, flow rates greater than 7,000 to 50,000 scf/min
depending on temperature, and minimum operating hours of 4,500 hrs/yr.
    (ii) Large commercial sources.
    (A) Initial threshold--site with 1 MW average electric annual
demand or 5 MMBtu/hour;
    (B) Secondary threshold--minimum thermal or cooling load of 2.5
MMBtu/hour or 150 Tons, and minimum operating hours of 4,500 hrs/yr.
    (iii) The combined potential project and source must capture at
least 60 percent of the total energy value of the fuels used at the
source (on a higher-heating-value basis as defined in this rule) in the
form of useful thermal energy, electricity, mechanical energy, chemical
output, or any combination thereof. Sources for which the Administrator
determines that existing technology cannot meet the 60 percent
threshold are considered to have met this criterion.
    (3) Notwithstanding the initial thresholds in paragraphs (b)(1) and
(b)(2) of this section, a source or site will be eligible for inclusion
in the Registry if it meets the appropriate secondary threshold
criteria and all other applicable criteria in this section. For
purposes of Sec. Sec.  1200.4 through 1200.6, such source will be
considered a major industrial or large commercial source.
    (c) Both existing and new sources or sites must meet the following
criteria for inclusion in the Registry:
    (1) A potential waste energy recovery project at a source or site
must be economically feasible by virtue of offering a payback of
invested costs not later than 5 years after the date of first full
project operation.
    (2) A potential waste energy recovery project at a source or site
must not be developed or used for the primary purpose of making sales
of excess electric power under the regulatory provisions of EPCA Part
E, Section 374, as demonstrated by meeting one of the following
criteria:
    (i) At least 50 percent of the aggregated annual energy output of
the site (as defined in this rule) will be used for industrial or
commercial purposes, and not sold to an electric utility; or
    (ii) The site is located in a State where the appropriate
regulatory authority has made a State-wide determination under EPCA
Section 374 to not implement the regulatory sale of excess power
provisions in EPCA Section 374. This waiver of the 50 percent
requirement in paragraph (c)(2)(i) of this section is applicable until
the State regulatory authority reverses or removes its decision; or
    (iii) The owner or operator of the site submits a joint petition
with the local electric utility that serves the site to the Director of
the Office of Atmospheric Programs of the EPA, requesting that the
primary purpose criterion be waived.

Sec.  1200.4  Process for inclusion in the Registry.

    (a) Response to Survey. In order for a site or source to be
eligible for inclusion in the Registry, owners or operators of major
industrial and large commercial sources must submit to the
Administrator data generated by the Survey. Third-party developers may
make a joint submission with the owner or operator of the site or
source.
    (b) Form of Response. Respondents may submit the data generated by
the Survey in either electronic or hardcopy format.
    (c) Timing of Response. To be eligible for inclusion in the initial
launch of the Registry, data submissions for a site or source must be
received by EPA within the first 60 days following Survey release.
Additional submissions received will be included on a rolling basis.
Surveys jointly submitted by a third-party developer and owner or
operator of the site or source will be included in the Registry with a
notation of ``joint submittal.''
    (d) Detailed Quantitative Information. EPA will not include
detailed quantitative information (DQI) in the Registry but may make
DQI available to the applicable State energy office and utility
requested to support recovery of waste energy from the source or site
pursuant to the incentives provided under EPCA section 374.

Sec.  1200.5  Process for removing a listing from the Registry.

    (a) Notice to EPA. Owners or operators of major industrial and
large commercial sources that have a potential waste energy recovery
project currently listed in the Registry must notify EPA in writing
within 90 days after the project becomes commercially operational that
the project is commercially operational. Owners or operators shall
provide notice by providing the site name, address, NAICS code, date
that the project became commercially operational, project electric
capacity, and project thermal capacity. The requesting site owner or
operator shall also state whether they have submitted a Section 374
petition to the appropriate regulatory authority or nonregulated
electric utility and if so, whether that regulatory authority or
utility has acted on the petition.
    (b) Action by EPA. EPA shall remove the source or site from the
Registry within 30 days of receipt of notice, except that EPA shall not
remove a source or site from the Registry if the source or site has
submitted a petition under section 374 to the appropriate regulatory
authority or nonregulated electric utility and the petition has not
been acted on. EPA shall maintain a list of all sources or sites that
have been removed from the Registry.

Sec.  1200.6  Process for contesting a Registry listing.

    (a) Any State, electric utility, or other interested person may
contest a Registry listing by submitting a petition in writing to EPA.
All petitions must explain the reason[s] the listing (i.e., site[s] or
source[s]) is being contested. To contest a Registry listing, the
State, electric utility, or other interested person must provide the
following information to the Director of the Office of Atmospheric
Programs of the EPA in writing (via e-mail or regular mail):
    (1) Entity contesting the listing--Name, address, contact person
name, title, address, e-mail and phone number;
    (2) Registry listing being contested--Name, address, and NAICS code
as displayed in the Registry;
    (3) Reason the listing is being contested (i.e. why the site or
source should be excluded from the Registry).
    (b) Notice of decision. Within 15 days of receipt of a petition
contesting a Registry listing, EPA shall provide written notification
to the owner or operator of any source or site whose inclusion in the
Registry is contested. EPA shall consider any information

regarding the contested listing received from the owner or operator
within 60 days from the date of notification.
    (c) Decision on contested listing. No later than 180 days following
receipt of information submitted by an entity contesting the listing,
EPA will inform the entity contesting the listing and the owner or
operator of the source or site whether it will remove or retain the
listing in the Registry.

[FR Doc. E9-17550 Filed 7-22-09; 8:45 am]

BILLING CODE 6560-50-P