

[Federal Register: January 22, 2007 (Volume 72, Number 13)]
[Rules and Regulations]               
[Page 2620-2631]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ja07-12]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[EPA-HQ-OAR-2003-0156; FRL-8272-2]
RIN 2060-AN91

 
Standards of Performance for New Stationary Sources and Emission 
Guidelines for Existing Sources: Other Solid Waste Incineration Units: 
Reconsideration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final action on reconsideration.

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SUMMARY: On December 16, 2005, EPA published final rules entitled, 
``Standards of Performance for New Stationary Sources and Emission 
Guidelines for Existing Sources: Other Solid Waste Incineration 
Units.'' Following that final action, the Administrator received a 
petition for reconsideration. In response to the petition, on June 28, 
2006, EPA announced our reconsideration of whether SSI should be 
excluded from the other solid waste incineration units (OSWI) rules and 
requested comment on

[[Page 2621]]

this issue. After carefully considering all of the comments and 
information received through our reconsideration process, we have 
concluded that no additional changes are necessary to the final OSWI 
rules. With respect to all other issues raised by the petitioner, we 
deny the request for reconsideration.

DATES: This final action is effective on January 22, 2007.

ADDRESSES: Docket: EPA has established a docket for this action and the 
final OSWI new source performance standards (NSPS) (40 CFR part 60, 
subpart EEEE) and emission guidelines (40 CFR part 60, subpart FFFF) 
under Docket ID No. EPA-HQ-OAR-2003-0156. All documents in the docket 
are listed on the http://www.regulations.gov Web site. Although listed 

in the index, some information is not publicly available, e.g., 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically at http://www.regulations.gov
 or in hard copy at the EPA Docket Center (EPA/DC), 

EPA West Building, Room B102, 1301 Constitution Ave., NW., Washington, 
DC 20004. The Public Reading Room is located in the EPA Headquarters 
Library, Room 3334, and is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
EPA Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Ms. Martha Smith, U.S. EPA, Sector 
Policies and Programs Division, Natural Resources and Commerce Group 
(E143-03), U.S. EPA, Research Triangle Park, North Carolina 27711, 
(919) 541-2421, e-mail smith.martha@epa.gov.

SUPPLEMENTARY INFORMATION:
    Organization of This Document. The following outline is provided to 
aid in locating information in this preamble.

I. General Information
    A. Does this notice of final action on reconsideration apply to 
me?
    B. How do I obtain a copy of this document and other related 
information?
II. Background Information
III. Actions We Are Taking
    A. Issue for Which Reconsideration Was Granted: Sewage Sludge 
Incinerators
    B. Remaining Issues in Petition for Reconsideration
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution or Use
    I. National Technology Transfer Advancement Act
    J. Congressional Review Act

I. General Information

A. Does this notice of final action on reconsideration apply to me?

    Regulated Entities. This final action on reconsideration 
potentially affects sewage sludge incinerators (SSI). Although there is 
not a specific North American Industrial Classification System (NAICS) 
code for SSI, these units may be operated by municipalities or other 
entities and the following NAICS codes apply: Non-hazardous 
incinerators (NAICS 562213); sludge disposal sites (NAICS 562212); and 
sewage treatment facilities (NAICS 221320). The categories and entities 
regulated by the final OSWI rules are very small municipal waste 
combustion (VSMWC) units and institutional waste incineration (IWI) 
units. The final OSWI emission guidelines and new source performance 
standards (NSPS) affect the following categories of sources:

------------------------------------------------------------------------
                                                        Examples of
            Category                NAICS code     potentially regulated
                                                         entities
------------------------------------------------------------------------
Any State, local, or Tribal        562213, 92411  Solid waste combustion
 government using a VSMWC unit                     units burning
 as defined in the regulations.                    municipal waste
                                                   collected from the
                                                   general public and
                                                   from residential,
                                                   commercial,
                                                   institutional, and
                                                   industrial sources.
Institutions using an IWI unit   922, 6111, 623,  Correctional
 as defined in the regulations.             7121   institutions, primary
                                                   and secondary
                                                   schools, camps and
                                                   national parks.
Any Federal government agency                928  Department of Defense
 using an OSWI unit as defined                     (labs, military
 in the regulations.                               bases, munition
                                                   facilities).
Any college or university using       6113, 6112  Universities, colleges
 an OSWI unit as defined in the                    and community
 regulations.                                      colleges.
Any church or convent using an              8131  Churches and convents.
 OSWI unit as defined in the
 regulations.
Any civic or religious                      8134  Civic associations and
 organization using an OSWI                        fraternal
 unit as defined in the                            associations.
 regulations.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities that were regulated by the final 
OSWI rules.

B. How do I obtain a copy of this document and other related 
information?

    Docket. The docket number for this action and the final OSWI NSPS 
(40 CFR part 60, subpart EEEE) and emission guidelines (40 CFR part 60, 
subpart FFFF) is Docket ID No. EPA-HQ-OAR-2003-0156.
    World Wide Web (WWW). In addition to being available in the docket, 
electronic copies of the final rule and the notice of final action on 
reconsideration are available on the WWW through the Technology 
Transfer Network Web site (TTN). Following signature, EPA posted a copy 
of the final rule on the TTN's policy and guidance page for newly 
proposed or promulgated rules at http://www.epa.gov/ttn/oarpg. The TTN 

provides information and technology exchange in various areas of air 
pollution control.

II. Background Information

    Section 129 of the Clean Air Act (CAA), entitled ``Solid Waste 
Combustion,'' requires EPA to develop and adopt NSPS and emission 
guidelines for solid waste incineration units pursuant to CAA section 
111. Section 111(b) of the CAA requires EPA to establish NSPS for new 
sources, and CAA section 111(d) requires EPA to establish procedures 
for States to submit plans for implementing emission guidelines for 
existing sources. Congress specifically added CAA section 129 to the 
CAA to address concerns about emissions from solid waste combustion 
units. Section 129(a)(1) of the CAA identifies five categories of solid 
waste incineration units:

[[Page 2622]]

    (1) Units with a capacity of greater than 250 tons per day (tpd) 
combusting municipal waste;
    (2) Units with a capacity equal to or less than 250 tpd combusting 
municipal waste;
    (3) Units combusting hospital, medical, and infectious waste;
    (4) Units combusting commercial or industrial waste; and
    (5) Unspecified ``other categories of solid waste incineration 
units.''
    EPA previously developed regulations for each of the listed 
categories of solid waste incineration units except for the undefined 
``other categories of solid waste incineration units.'' On December 9, 
2004 (69 FR 71472), EPA proposed NSPS and emission guidelines for OSWI 
units. EPA received and considered public comments and promulgated 
final regulations for OSWI units on December 16, 2005.
    Following the promulgation of the final OSWI rule, EPA received a 
petition for reconsideration from the Sierra Club. On June 28, 2006 (71 
FR 36726), we granted reconsideration and requested comment on one 
issue raised by the petitioner: specifically, whether SSI should be 
regulated under the OSWI rules.
    The public comment period on the reconsideration ended on August 
14, 2006. Twenty written public comments were received. The individual 
comment letters can be found in Docket ID No. EPA-HQ-OAR-2003-0156.

III. Actions We Are Taking

    At this time, we are announcing our final action on reconsideration 
of one issue for which we asked for comment in our June 28, 2006, 
notice. We are also announcing our final decision on six remaining 
issues that were raised by petitioners.

A. Issue for Which Reconsideration Was Granted: Sewage Sludge 
Incinerators

    On June 28, 2006 (71 FR 36726), we granted reconsideration of and 
requested comment on the SSI issue that was raised in the petition for 
reconsideration. Generally, the petitioner contended that SSI should be 
regulated as a type of OSWI under CAA section 129. The petitioner noted 
that the notice of proposal of the OSWI rules did not mention SSI, and 
claimed that there was no opportunity to comment on EPA's decision not 
to regulate SSI under OSWI. Moreover, the petitioner argued that EPA's 
rationale was advanced for the first time in the final rule and 
supporting documents.
    In our June 28, 2006, notice of reconsideration (71 FR 36726), EPA 
acknowledged that the OSWI proposal notice (69 FR 71472, December 9, 
2004) did not specifically mention or request comment on whether SSI 
should be regulated under the OSWI rules. EPA did publish notices on 
April 24, 2000 (65 FR 23459), and June 26, 2002 (67 FR 43113), stating 
that it had decided not to regulate SSI as a category under CAA section 
129 and, instead, had listed it as an area source category to be 
regulated under CAA sections 112(c)(3) and 112(k)(3). These notices, 
however, did not request public comment on whether SSI should be 
regulated under CAA section 129 or 112. We decided to grant 
reconsideration of this issue in the interest of ensuring full 
opportunity for comment.
    A total of 20 unique comments were received on the June 28, 2006, 
proposal notice including a comment by the petitioner, Sierra Club. 
Seventeen of the commenters wholly support EPA's proposed decision to 
regulate SSI under CAA section 112 rather than CAA section 129. One of 
the supporting commenters is a trade organization for publicly-owned 
treatment works, which are usually the SSI owners and operators. 
Sixteen member municipalities submitted separate comment letters 
endorsing the comments from the trade organization. Aside from the 
petitioner, two State agencies submitted comments that do not fully 
support EPA's proposal. All of the comments are addressed in the 
following discussion.
1. Legal and Record Basis for Decision Not to Regulate SSI Under OSWI 
Rules
    a. EPA's Position in OSWI Final Rule.
    In promulgating the final OSWI rulemaking, EPA took the position 
that it was not required to regulate SSI as OSWI under the terms of CAA 
section 129. Section 129 of the CAA provides, in relevant part:

    Sec. 129. Solid Waste Combustion
    (a) New Source Performance Standards.--
    (1) In general.--
    (A) The Administrator shall establish performance standards and 
other requirements pursuant to section 111 and this section for each 
category of solid waste incineration units. Such standards shall 
include emissions limitations and other requirements applicable to 
new units and guidelines (under section 111(d) and this section) and 
other requirements applicable to existing units.
    [Subparagraphs (B)-(D) establish schedules for standards 
applicable to solid waste incineration units combusting municipal 
waste; hospital waste, medical waste, and infectious waste; and 
commercial and industrial waste.]
    (E) Not later than 18 months after the date of enactment of the 
Clean Air Act Amendments of 1990, the Administrator shall publish a 
schedule for the promulgation of standards under section 111 and 
this section applicable to other categories of solid waste 
incineration units.
    In addition, CAA section 129(h)(2) provides,
    (2) Other authority under this act.-- Nothing in this section 
shall diminish the authority of the Administrator or a State to 
establish any other requirements applicable to solid waste 
incineration units under any other authority of law * * *, except 
that no solid waste incineration unit subject to performance 
standards under this section and section 111 shall be subject to 
standards under section 112(d) of this Act.

    In the final OSWI rulemaking, EPA concluded that the provisions of 
CAA section 129(a)(1) do not mandate that SSI be regulated as OSWI 
under CAA section 129. Because EPA is in the process of regulating SSI 
under CAA section 112, EPA relied on CAA section 129(h)(2) as part of 
its basis for not regulating SSI under CAA section 129 (70 FR 74874-
74875, December 16, 2005).
    b. Comments. One commenter (EPA-HQ-OAR-2003-0156-0118) claims that 
EPA's failure to set CAA section 129 standards for SSI contravenes the 
CAA. The commenter contends that CAA section 129 unambiguously requires 
EPA to set CAA section 129 standards for any facility that combusts any 
solid waste, with the exception of the limited categories of facilities 
expressly exempt in CAA section 129(g)(1). To support its view, the 
commenter cites CAA section 129(a)(1)(A) and notes that CAA section 
129(g)(1) defines ``solid waste incineration unit'' as ``a distinct 
operating unit of any facility which combusts any solid waste material 
from commercial or industrial establishments or the general public. * * 
*''. The commenter adds that EPA recognized that ``sludge generated by 
publicly owned treatment works (POTWs) is a solid waste from the 
general public, commercial and industrial establishments'' (62 FR 1869, 
January 14, 1997) and that EPA admitted that sewage sludge is a solid 
waste (Unified Agenda, 65 FR 23549-01, April 24, 2000). The commenter 
concludes that a plain reading of the CAA shows that SSI cannot be 
exempt from CAA section 129. The commenter claims that emissions from 
SSI are comparable to other categories of waste incinerators regulated 
under CAA section 129. The commenter claims that the exclusion of SSI 
from the OSWI rules contravenes the CAA.\1\
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    \1\ The commenter also claims that the exclusion of SSI from the 
OSWI rules contravenes the consent decree in Sierra Club v. Whitman, 
No. 01-1537 (D.D.C.).
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    Conversely, another commenter (EPA-HQ-OAR-2003-0156-0127)

[[Page 2623]]

asserts that EPA was well within its discretion to exclude SSI from the 
OSWI rule. The commenter states that CAA section 129 directs EPA to 
regulate certain categories of incinerators enumerated in CAA section 
129(a)(1)(A)-(D), but the statute does not define the categories of 
``other'' solid waste incineration units that must be regulated under 
CAA section 129(a)(1)(E). Therefore, inherent in EPA's implementation 
of CAA section 129 is the discretion to reasonably define what 
constitutes the statutorily undefined ``other categories'' and to 
determine which warrant regulation under CAA section 129. The commenter 
argues that this conclusion is supported by the fact that the CAA 
provides firm timelines for the specifically identified categories of 
incinerators, but states that EPA must publish only a schedule for the 
statutorily undefined ``other categories.'' The commenter claims that 
CAA section 129 plainly does not require EPA to promulgate OSWI 
standards for ``every'' or ``all'' possible categories of solid waste 
incineration units; if that had been Congress' intent, then Congress 
would have provided that direction in CAA section 129(a)(1)(E) by 
stating that EPA should regulate ``all'' or ``every'' other category of 
solid waste incineration units. The commenter also contends that 
legislative history shows Congress was focused on municipal waste 
combustion units, and was also concerned about other specific large 
incinerators, including medical waste incinerators and industrial 
incinerators, but that Congress did not once mention POTW sewage sludge 
or SSI when discussing CAA section 129. Several municipal agencies that 
operate SSI (EPA-HQ-OAR-2003-0156-0112, -0113, -0114, -0115, -0116, -
0117, -0119, -0120, -0121, -0123, -0124, -0125, -0128, -0130, -0131, -
0133) support these comments submitted by the commenter (EPA-HQ-OAR-
2003-0156-0127), and support EPA's previous decision not to regulate 
SSI under CAA section 129.
    Two commenters (EPA-HQ-OAR-2003-0156-0127, -0120) refer to CAA 
section 129 language that indicates the same category cannot be 
regulated under both CAA sections 112 and 129. The commenters state 
that because area source SSI are going to be regulated under CAA 
section 112, they cannot be regulated under CAA section 129. One of the 
commenters (EPA-HQ-OAR-2003-0156-0127) points out that EPA originally 
listed SSI as a hazardous air pollutants (HAP) source category under 
CAA section 112, but in 2002 determined that the SSI category did not 
have any major sources of HAP. Later in 2002, EPA included SSI in a 
list of area source categories to be regulated under CAA section 112 
(67 FR 43112, June 26, 2002). Conversely, another commenter (EPA-HQ-
OAR-2003-0156-0126) recommends regulating SSI under the CAA section 129 
OSWI rules. A large waste water treatment plant with 14 SSI units is 
located in the commenter's State.
    The commenter contends that these units are poorly controlled with 
few current applicable regulatory requirements. The commenter states 
that EPA has not pursued regulation of area source SSI under CAA 
section 112 in a timely manner. Rather than wait for potential 
regulations under CAA section 112, the commenter favors including SSI 
in the OSWI regulations.
    c. Response to Comments; Legal and Record Basis for Decision Not to 
Regulate SSI Under OSWI Rules. EPA has decided not to regulate SSI 
under the OSWI rules. We are developing regulations for SSI under CAA 
section 112. For several reasons, we disagree with the petitioner's 
comment that any incinerator burning any solid waste must be regulated 
under CAA section 129.\2\
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    \2\ The commenter is also incorrect that excluding SSI units 
violates the consent decree in Sierrall Club v. Whitman, No. 01-1537 
(D.D.C.). The Consent decree obligates EPA to regulate other 
categories of solid waste incinerators under CAA section 
129(a)(1)(E), but does not identify SSI units as one of those 
categories.
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    First, the CAA is ambiguous regarding what categories of solid 
waste incineration units must be regulated under CAA section 
129(a)(1)(E). Subparagraph (A) of CAA section 129(a)(1) provides, ``The 
Administrator shall establish performance standards and other 
requirements pursuant to section 111 and this section for each category 
of solid waste incineration units.'' Subparagraphs (B)-(D) discuss 
timelines for very specific categories of solid waste incinerators 
(e.g., large and small municipal waste combustors, commercial and 
industrial waste incinerators, and hospital and medical waste 
incinerators), while subparagraph (E) states only that EPA must publish 
a schedule for promulgating standards for ``other categories of solid 
waste incineration units.'' The directive under subparagraph (A) to 
regulate ``each category of solid waste incineration units'' should be 
read in conjunction with subparagraphs (B)-(E), so that the directive 
refers to the categories of solid waste incineration units that are 
identified under subparagraphs (B)-(E). Subparagraph (E) does not 
unambiguously require, as implied by one commenter, that the OSWI 
standards must apply to every other possible type of incineration unit 
burning any type of solid waste. If Congress had intended such a clear 
directive, it could have instructed EPA to regulate ``every other 
category'' of solid waste incineration unit, instead of, simply, 
``other categories.'' Yet Congress did not use such unambiguous 
language, leaving it to EPA to interpret the CAA in a reasonable manner 
by determining which other categories to include under subparagraph 
(E).
    Second, the position adopted by this commenter would lead to absurd 
results. Under the commenter's interpretation, a homeowner burning 
leaves in a barrel in his or her backyard must be subject to a CAA 
section 129 rule because the barrel is a unit combusting solid waste 
material. Congress cannot have intended that EPA regulate such sources 
under CAA section 129, with all the attendant requirements. The 
language of CAA section 129 suggests that Congress wanted to focus 
EPA's attention to specific, larger incineration units (e.g., municipal 
waste combustion (MWC) units and commercial and industrial solid waste 
incineration (CISWI) units). Under the commenter's interpretation of 
CAA section 129, however, EPA would have to establish emission 
standards \3\ for dozens of different types of small incineration units 
with potentially minimal emissions. As discussed in the final rule (70 
FR 74875, December 16, 2005), this interpretation would result in large 
burdens on these sources, and Congress cannot have intended that result 
merely by referencing an undefined ``other'' category of incineration 
units. Thus, the instructions to EPA to promulgate standards for 
``other categories'' of solid waste incinerators inherently include the 
authority for EPA to reasonably delineate those ``other'' categories of 
solid waste incineration units.
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    \3\ Under section 129(a)(1), EPA is requird to establish 
performance standards and other requirements for specified 
categories of solid waste incineration units.
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    Third, in the proposed and final rules, we also clarified that 
under CAA section 129(g)(1), certain types of units are not regulated 
by the OSWI rules. Some of these units are specifically excluded by CAA 
section 129(g)(1) (e.g., hazardous waste combustion, small power 
production facilities, cogeneration facilities burning homogenous 
waste). However, as stated in the final rule, we do not agree that the 
facilities explicitly described in CAA section 129(g)(1) are the only 
types of facilities that are

[[Page 2624]]

properly excluded from the OSWI category. That is, we do not read CAA 
section 129(g)(1) to establish an exclusive list of excluded sources.
    Fourth, our interpretation of CAA section 129(a)(1) and (g)(1) is 
consistent with legislative history. Congress added CAA section 129 as 
part of the 1990 CAA Amendments. Sen. Durenberger, one of the authors, 
indicated that he understood the provision to ``require EPA to issue 
new source performance standards for municipal incinerators, for 
medical waste incinerators and for incinerators burning commercial and 
industrial waste.'' S. PRT 103-38, Senate Committee on Environment and 
Public Works, A Legislative History of the Clean Air Act Amendments of 
1990 (``Legislative History'', vol. IV, p. 7052 (statement of Sen. 
Durenberger during Senate floor debate, April 3, 1990)). Similarly, 
Sen. Baucus, another of the authors, stated that the provision 
``directs EPA to establish one set of standards for municipal 
incinerators, another set for hospital incinerators and small 
[municipal] units, and another set for industrial incinerators''. Id. 
at 7054 (statement of Sen. Baucus). Similarly, the Conference Report 
describes CAA section 129 as ``a provision to control the air emissions 
from municipal, hospital, and other commercial and industrial 
incinerators.'' H. Rep. 101-952 at 341, ``Clean Air Act Amendments of 
1990, Conference Report to Accompany S. 1630,'' reprinted in id., vol. 
I, at 1791.
    The incinerators identified by these statements are included in 
subparagraphs (B)-(D) of CAA section 129(a)(1). These statements, and 
the various other statements in the legislative history of this 
provision, make no specific reference to any of the ``other categories 
of solid waste incineration units'' that may be covered under 
subparagraph (E).\4\ Thus, the legislative history suggests that 
subparagraph (E) should not be read, by its terms, to sweep in all 
other types of solid waste incinerators. Such an expansive reading 
would not be consistent with the authors' statements. Thus, we have 
discretion to determine which categories of units constitute ``other 
categories of solid waste incineration units.''
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    \4\ That Congress did not intend for all types of incinerators 
to be regulated under CAA section 129 is evidenced by the fact that 
Congress, at the time it enacted CAA section 129, was aware of other 
categories of solid waste incinerators, but did not discuss those 
units in the context of CAA section 129. For example, the Senate 
Committee Report listed SSI among source categories that emit 
carcinogenic pollutants. S. Rep. 101-228 ``Clean Air Act Amendments 
of 1989, Report of the Senate Committee on Environment and Public 
Works,'' at 188, Figure III-7, reprinted in Legislative History, 
vol. V, at 8528. This statement was made as part of a discussion of 
regulating toxics in general under the authority of CAA section 112, 
and not in the context of proposed CAA section 129. Similarly, a 
Statement by Sen. Baucus notes that title III of the 1990 Clean Air 
Act Amendments covers, among other things, ``sewage treatment plants 
incinerators.'' Legislative History, vol. 1, at 1028 (statements of 
Sen. Baucus). This statement was made as part of discussions of 
regulating toxics in general title III, and not specifically in the 
context of proposed CAA section 129. Thus, each of these statement 
is consistent with regulating SSI under CAA section 112, and neither 
indicates congressional intent that SSi be regulated under CAA 
section 129.
---------------------------------------------------------------------------

    Fifth, we indicated in the final OSWI rules that units are not 
covered under OSWI if they are regulated under other CAA section 129 or 
CAA section 112 standards (e.g., small and large MWC, hospital, medical 
and infectious waste incinerators (HMIWI), CISWI, boilers, cement 
kilns). The language of CAA section 129(h) makes clear the 
Congressional intent for CAA regulations under CAA section 129 or CAA 
section 112 to be mutually exclusive (70 FR 24875, December 16, 2005). 
We reiterated these statements in the recent CISWI final rule 
amendments, including, among other things, the important policy 
objective of avoiding duplicative regulation (70 FR 55568, 55574-55575, 
September 22, 2005). We maintain that we have the discretion to 
determine which ``other categories'' of solid waste incinerator units 
to regulate under CAA section 129. This discretion includes the 
determination of which categories are best regulated under CAA section 
112 rather than CAA section 129.
    Accordingly, we determined in the final OSWI rules that sources 
subject to CAA section 112 standards are not OSWI units.\5\ Regulation 
of certain types of units under CAA section 112, rather than CAA 
section 129, is sensible. From a policy standpoint, regulation under 
CAA section 112 generally offers EPA more flexibility than regulation 
under CAA section 129, and thus allows EPA to tailor regulatory 
requirements more appropriately to the level of HAP emitted by the 
source. In particular, under CAA section 112(d), EPA has the 
flexibility to regulate the full range of HAP from area (i.e., non-
major) sources based on either maximum achievable control technology 
(MACT) or ``generally available control technologies or management 
practices'' (GACT), whereas CAA section 129 would require MACT 
regardless of the level of emissions from the source. EPA has 
interpreted CAA section 112(d)(5) to allow consideration of costs in 
determining GACT. In developing MACT standards, EPA cannot consider 
cost in setting the floor, which is the minimum level of control 
required by CAA section 112(d)(3). Thus, CAA section 112(d)(5) offers 
EPA flexibility to develop standards for area sources that account for 
some of the unique characteristics of area source categories, including 
the economic effects of regulation on smaller sources.
---------------------------------------------------------------------------

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

    Because the SSI category is composed entirely of area sources of 
HAP, regulating SSI under the CAA section 112 area source program 
offers the advantage of this flexibility. Specifically, in proposing 
and promulgating regulations under CAA section 112 covering SSI, EPA 
will have the opportunity to evaluate cost constraints, which may be 
particularly important in light of the relatively small size of the 
units at issue here. EPA may decide, based on the circumstances of the 
source category, to promulgate GACT, as opposed to MACT, for SSI under 
CAA section 112. EPA has not yet regulated SSI and thus we cannot 
predict at this time what the proposed standards for this category will 
be, but the relevant issue here is that CAA section 112 provides 
important flexibilities that are absent in CAA section 129. In CAA 
section 112, Congress specifically recognized the need for providing 
such flexibilities to area sources.
    Moreover, regulating SSI under the CAA section 112 area source 
program offers the additional flexibility of determining whether to 
require SSI units to obtain title V permits. By comparison, were EPA to 
regulate SSI under CAA section 129, SSI sources would be required to 
obtain title V permits. The cost to small sources, such as SSI units, 
of the title V permit program would be relatively high, so the 
flexibility that CAA section 112 provides with respect to title V 
requirements may be useful in tailoring the overall regulatory scheme.
    To summarize, given the statutory provisions of CAA sections 
129(a), (g) and (h), as interpreted above, and the legislative history 
and policy considerations noted above, we maintain that EPA has the 
discretion to define which categories of combustion units should be 
subject to regulation under CAA section 129 and hence, to which 
categories of solid waste combustion units the standards for ``other 
categories of solid waste incineration units'' apply. Thus, at the 
outset of the rulemaking process, EPA determined what universe of 
sources will be subject to the regulations. As

[[Page 2625]]

explained further in the final rule, in determining the scope of OSWI, 
EPA collected and analyzed data to identify potential OSWI units. EPA 
determined that the regulations should focus on two categories of waste 
combustion units: IWI units and VSMWC units.
    SSI are a source category that is being addressed under CAA section 
112. EPA acknowledges that earlier notices indicated that SSI would be 
considered OSWI units (62 FR 1868, January 14, 1997; 63 FR 66087, 
December 1, 1998). However, as we discussed in the preamble to the 
final OSWI rules and the response to comment document, later notices 
conveyed the fact we intended to regulate SSI under CAA section 112, 
not under CAA section 129.
    As early as April 2000, EPA indicated that it no longer intended to 
regulate SSI under CAA section 129 (Unified Agenda, 65 FR 23459-01, 
April 24, 2000). In addition, EPA's intent to regulate these sources 
under CAA section 112 was made clear when SSI were included as an 
additional area source category listed pursuant to CAA sections 
112(c)(3) and 112(k)(3)(B)(ii) in the June 26, 2002 Federal Register 
(67 FR 43113). As discussed previously, source categories regulated by 
CAA section 112 should not also be subject to a CAA section 129 
regulation. In previous regulatory activities, EPA was unable to 
identify any SSI that were major sources. (See 67 FR 6521, February 12, 
2002.) Therefore, the entire SSI source category consists of area 
sources, and will be addressed by the CAA sections 112(c) and 112(k) 
regulations. In fact, EPA is under a court-ordered schedule to 
promulgate standards under CAA section 112(d) for those area source 
categories listed by EPA pursuant to CAA sections 112(c)(3) and 
(k)(3)(B). Sierra Club v. Johnson, No. 1:01CV01537 (D.D.C.) Order 
(March 31, 2006). EPA must promulgate standards for a specified number 
of area source categories every 6 months between December 15, 2006 and 
June 15, 2009. SSI is one of the listed categories, so EPA must 
promulgate CAA section 112 regulations for SSI no later than June 15, 
2009. We believe that CAA section 112, by virtue of offering greater 
flexibility in allowing consideration of cost to determine the level of 
control required for area sources and in applying title V requirements 
is a reasonable vehicle for regulation of SSI, given that the SSI 
category is composed of area sources. We further believe that, in light 
of the plan to regulate SSI under CAA section 112, regulation of SSI 
under CAA section 129 is unnecessary and would be duplicative.
    Regarding the comment from a State agency that a specific large SSI 
in their State is poorly controlled, a State or local agency is free to 
develop regulations to address a state or local air quality issue if 
they believe action is necessary prior to EPA's development of CAA 
section 112 standards for SSI.
2. Other Arguments Advanced by Commenters for Not Regulating SSI Under 
CAA Section 129
    Two commenters (EPA-HQ-OAR-2003-0156-0127, -0122) contend that EPA 
has no authority to regulate SSI under CAA section 129 for the 
definitional reasons that, in their view, (i) sludge from POTWs is not 
``solid waste'' within the meaning of CAA section 129(g)(6); and (ii) 
SSI are not ``solid waste incineration unit[s]'' within the meaning of 
CAA section 129(g)(1). Under CAA section 129(g)(6), ``solid waste'' is 
given the same definition as the term is given under the Solid Waste 
Disposal Act. EPA provided a definition in the OSWI final rule (70 FR 
74921, December 16, 2005) (40 CFR 60.3078): ``Solid waste means any 
garbage, refuse, sludge from a waste treatment plant * * * But does not 
include solid or dissolved material in domestic sewage * * *.''
    The commenter appears to argue that sludge from a POTW constitutes 
``solid or dissolved material in domestic sewage.'' In the April 2000 
Unified Agenda, in which EPA announced that it would regulate SSI under 
CAA section 112, EPA stated that POTW-generated sewage sludge is 
``solid waste.'' (65 FR 23459, April 24, 2000). EPA noted that 
statement in the OSWI final rule, in the context of explaining that EPA 
had a long-standing policy of regulating SSI under CAA section 112, 
citing the April 2000 Unified Agenda (70 FR 74880, December 16, 2005). 
However, because EPA has determined not to regulate SSI as OSWI under 
CAA section 129 for other reasons, it is not necessary to evaluate the 
comment that POTW-generated sewage sludge is not ``solid waste.''
    Under CAA section 129(g)(1), a ``solid waste incineration unit'' is 
defined, in relevant part, as a ``unit * * * of any facility which 
combusts any solid waste material from commercial or industrial 
establishments or the general public * * *.'' Some commenters argue 
that POTWs are municipal sources, not the sources described in the 
definition of ``solid waste incineration unit[s]'', and therefore do 
not meet that definition.\6\ EPA included a statement to this effect in 
the April, 2000 Unified Agenda (65 FR 23459, April 24, 2000). EPA cited 
this statement in the OSWI final rule in the context of explaining that 
EPA had a long-standing policy of regulating SSI under CAA section 112. 
As noted above, because EPA has determined not to regulate SSI under 
CAA section 129 for other reasons, it was not necessary for EPA to 
determine in the final OSWI rule whether SSI meet the definition of 
``solid waste incineration unit[s],'' and for the same reason, it is 
not necessary to respond to the comments here.
---------------------------------------------------------------------------

    \6\ One commenter (EPA-HQ-OAR-2003-0156-0118) disagreed and 
argues that SSI do meet the definition of ``solid waste 
incinceration units.'' The commenter further states that much of the 
waste burned in MWC and medical waste incinerators comes from 
municipal sources and that these incinerators are regulated under 
CAA section 129. The commenter further notes that in any event, some 
SSI are privately owned.
---------------------------------------------------------------------------

3. Regulatory History
    One commenter (EPA-HQ-OAR-2003-0156-0118) dismisses EPA's argument 
that since April 2000 EPA has indicated it no longer intends to 
regulate SSI as incinerators under CAA section 129 but intends to 
regulate them as area sources of HAP under CAA section 112. The 
commenter says that EPA's announcement of this intent in the April 2000 
semiannual regulatory agenda does not alter EPA's statutory obligation 
under CAA section 129.
    As discussed above, we have decided not to regulate SSI under the 
OSWI regulations. These units will be regulated under a separate CAA 
section 112 area source regulation currently under development. This 
reconsideration process cures any defects in the notice-and-comment 
process that the commenter believes occurred in the past.\7\
---------------------------------------------------------------------------

    \7\ Another commenter (EPA-HQ-OAR-2003-0156-0127) responds to 
one of the petitioner's claims by describing the regulatory history 
and concludes that EPA's decision not to regulate SSI under CAA 
section 129 was reached after a thorough and complete evaluation of 
the issues that included opportunities for comment.
---------------------------------------------------------------------------

4. Impacts
    In support of EPA's decision to not regulate SSI under the OSWI 
rule, several commenters discuss the benefits of incineration and argue 
that the costs of regulation under CAA section 129 would cause adverse 
impacts to communities. For example, two commenters point out several 
benefits provided by incineration of sewage sludge. One commenter (EPA-
HQ-OAR-2003-0156-0127) states that incineration of biosolids reduces 
waste volume, destroys pathogens, and degrades toxic organic compounds 
and is, therefore, an important, safe, and effective component of 
biosolids

[[Page 2626]]

management practices used by POTWs. Another commenter (EPA-HQ-OAR-2003-
0156-0122) adds that incineration is a viable and important management 
option for POTWs. The commenter states that incineration gives a 
municipality greater control of their operation by reducing dependency 
on others to accept and use biosolids, minimizes onsite and offsite 
odors, requires a small land area, can be operated continuously in all 
weather conditions, and can also be a source of energy. According to 
the commenters, approximately 17 percent of biosolids generated by 
POTWs are incinerated, and 150 municipalities in the United States use 
thermal oxidation to turn biosolids into an energy source to produce 
some or all of the energy they need to operate, provide an extra 
revenue source, and help reduce energy and transportation costs. One 
commenter provides references and attachments to demonstrate that EPA 
has recognized SSI as a viable option for local community management of 
biosolids. The other commenter attached a brochure on bioenergy from 
wastewater treatment. Both commenters argue that subjecting SSI to CAA 
section 129 rules could eliminate SSI as a viable option.
    Regarding impacts of regulation under CAA section 129, one 
commenter (EPA-HQ-OAR-2003-0156-0127) states that including SSI in OSWI 
would impose substantial costs to SSI operators without corresponding 
benefits, and the costs that would be imposed on POTW ratepayers could 
eliminate SSI as a safe, viable, and cost-effective biosolids 
management option for many communities. The regulatory burden would be 
substantial without corresponding health or environmental benefits. The 
commenter is also concerned that limits for NOX and CO might 
not be simultaneously achievable. The commenter concludes that cost and 
regulatory burden of regulating SSI under CAA section 129 would be 
inconsistent with past EPA declarations that incineration is a safe and 
acceptable biosolids disposal practice and Congressional intent that 
EPA provide safe management practices for use and disposal of biosolids 
and not dictate preferred practices and eliminate others. Another 
commenter (EPA-HQ-OAR-2003-0156-0122) adds that a technology-based 
standard imposed by CAA section 129 would require major expenditure 
whether or not there are any risks to human health and the environment.
    A few commenters provided estimates on the cost impacts that a CAA 
section 129 regulation would have on their SSI. As an example, one 
commenter (EPA-HQ-OAR-2003-0156-0112) says that incineration is the 
least costly method of sewage sludge disposal for Anchorage, AK. They 
haul two dump truck loads of SSI ash to the regional landfill weekly, a 
50-mile round trip through residential neighborhoods. If SSI were 
eliminated because of costly regulations, hauling sludge to the 
landfill would require 28 more dump truck loads per week at a cost of 
$90,000 per month, and would increase air pollution from the dump 
trucks. In another comment, a commenter (EPA-HQ-OAR-2003-0156-0123) 
operates a POTW that serves a population of 450,000 people and has two 
multiple hearth SSI. The commenter's preliminary analysis of available 
technologies to meet CAA section 129 OSWI regulations indicate that 
those technologies have not been applied to multiple-hearth 
incinerators, are expensive, and may not provide consistent compliance. 
The commenter estimates that modification of their existing furnaces 
could cost over $18 million, and the option of replacing the existing 
furnaces with new fluidized bed SSI with emission controls that meet 
CAA section 129 emission limits would be $35 to 40 million. The 
commenter investigated an alternative to incineration, and estimated 
the cost to convert to anaerobic digestion with dewatered sludge 
disposal was $50 million. For this option, a landfill or land 
application site to dispose of the sludge would need to be found, and 
25 to 30 trucks per day would be required to haul the district's 
sludge, which would be intrusive to neighborhoods and generate 
emissions.
    As we have discussed earlier, we have decided not to regulate SSI 
under the OSWI regulations. These units will be regulated under a 
separate CAA section 112 area source regulation currently under 
development. We agree with the commenters that SSI are an important 
option for community management of biosolids from POTW that treat 
sewage sludge, and have environmental benefits. As discussed in section 
A.1, CAA section 112 allows EPA greater flexibility than CAA section 
129 to establish emission limits that serve the overall purpose of 
protecting public health and the environment while avoiding 
unreasonable economic impacts and preserving the benefits of SSI cited 
by the commenters.
5. Carbon Monoxide Limits for SSI
    One commenter (EPA-HQ-OAR-2003-0156-0129) says the nine POTWs using 
SSI in their State have permits under State air rules and title V that 
include CO and volatile organic compound (VOC) emission limits. The 
commenter believes that all incinerators should have CO limits and CO 
continuous emissions monitoring (CEM) requirements because CO is a good 
indicator of combustion efficiency. The commenter states that current 
Federal Clean Water Act SSI regulations in 40 CFR part 503 have a 
hydrocarbon concentration limit, but do not have a CO limit. They 
recommend that either 40 CFR part 503 be revised to include an emission 
limit and CEM requirement for CO, or that SSI be subject to the OSWI 
rules.
    As we have discussed fully earlier, we have decided not to regulate 
SSI under the OSWI regulations. These units will be regulated under a 
separate CAA section 112 area source regulation currently under 
development. We are unable to say what the final requirements for SSI 
will be under these regulations. We encourage all interested parties to 
provide comments on the CAA section 112 area source regulations for SSI 
once they are proposed.
6. SSI Are Already Regulated
    Two commenters (EPA-HQ-OAR-2003-0156-0127 and EPA-HQ-OAR-2003-0156-
0122) say EPA's decision not to regulate SSI under CAA section 129 is 
reasonable because SSI are already regulated by other regulations that 
protect public health and the environment. The commenters explain that 
since 1993, POTWs have been subject to a comprehensive, risk-based 
program for reducing potential environmental risks of sewage sludge 
under Clean Water Act (CWA) sections 405 and the implementing 
regulations in 40 CFR part 503. For disposal of sewage sludge by 
incineration, 40 CFR part 503, subpart E requires:
     Management practices and general requirements
     Risk-based, site-specific limits for arsenic, cadmium, 
chromium, lead, and nickel content in biosolids incinerated
     Compliance with national emission standards for hazardous 
air pollutants (NESHAP) for mercury and beryllium
     Emission limits for total hydrocarbon (THC) or an 
alternative emission limit for CO
     Monitoring, recordkeeping and reporting.
    The commenters note that in developing 40 CFR part 503 rules, EPA 
also proposed a requirement for dioxin/furan, but decided such 
requirements were not warranted based on a risk assessment showing 
risks from dioxin were less than one in one million. The commenters 
argue that the 40 CFR part 503 standards are protective of health

[[Page 2627]]

and the environment, and that the biennial review process in CWA 
section 405 provides an ample means for EPA to identify and regulate 
any additional concerns under 40 CFR part 503. Another commenter (EPA-
HQ-OAR-2003-0156-0114) adds that the 40 CFR part 503 regulations are 
risked-based and were set (using conservative assumptions) to ensure 
protection from cancer risks at a level of 10-5 (i.e., one in ten 
thousand).
    The commenters (EPA-HQ-OAR-2003-0156-0127 and EPA-HQ-OAR-2003-0156-
0122) state that the mercury NESHAP (40 CFR part 61, subpart E) sets 
mercury emission limits, testing, and monitoring requirements for 
sources that incinerate wastewater treatment plant sludge; and the 
beryllium NESHAP (40 CFR part 61, subpart C) sets limits for 
incinerators that process beryllium containing waste. SSI constructed 
or modified since June 11, 1973 are subject to the SSI NSPS (40 CFR 
part 60, subpart O), which contain particulate matter, opacity, 
operating, testing and monitoring requirements. One of the commenters 
(EPA-HQ-OAR-2003-0156-0127) adds that SSI are subject to title V 
permits if they are major sources and to State and local requirements. 
Under CWA section 403, POTWs also implement, through local regulatory 
authority, pretreatment standards that reduce harmful constituents of 
biosolids. The commenters (EPA-HQ-OAR-2003-0156-0127 and EPA-HQ-OAR-
2003-0156-0122) contend that the combination of CWA and CAA regulations 
address CAA section 129 pollutants that are of concern for SSI, and 
that further regulation under CAA section 129 is not needed.
    Another commenter (EPA-HQ-OAR-2003-0156-0112) stated that their 
city's SSI is subject to emission limits for PM, opacity, beryllium, 
and mercury and is required to routinely monitor NOX and CO 
emissions. They believe these regulations adequately protect public 
health and the environment and additional regulation under CAA section 
129 is not warranted.
    We appreciate commenters' support of our decision to not regulate 
SSI under the CAA section 129 OSWI regulations. We also acknowledge 
that various CWA and CAA regulations currently apply to SSI. These 
other regulations provide some additional support for our decision not 
to regulate under CAA section 129 because these other regulations 
provide protection of human health and the environment for many of the 
pollutants regulated by CAA section 129 regulations. In addition, as 
discussed earlier, we are currently in the process of developing CAA 
section 112 regulations for HAP emitted from the SSI source category. 
At the moment, we are unable to say what the final requirements for SSI 
will be under these regulations. Therefore, we encourage all interested 
parties to provide comments on the CAA section 112 area source 
regulations for SSI once they are proposed.

B. Remaining Issues in Petition for Reconsideration

    We denied six issues contained in the petitioner's request for 
reconsideration because they failed to meet the standard for 
reconsideration under CAA section 307(d)(7)(B). Specifically, on these 
issues, the petitioner has failed to show the following: That it was 
impracticable to raise their objections during the comment period; or 
that the grounds for their objections arose after the close of the 
comment period; and/or that their concern is of central relevance to 
the outcome of the rules. We have concluded that no clarifications to 
the underlying rules are warranted for these six remaining issues, as 
described below.
1. Human Crematories
    The petitioner objects to the exclusion of human crematories from 
the OSWI rules. They contend that EPA raised new arguments regarding 
whether human bodies burned at crematories are solid waste during 
promulgation of the final OSWI rules.
    We do not agree with the petitioner's claim. We took comment on 
human crematories as OSWI in the notice of proposed rulemaking 
published on December 9, 2004 (69 FR 71479). In the notice of proposed 
rulemaking, we made clear that the human body is not considered ``solid 
waste'' and human crematories are, therefore, not considered solid 
waste incineration units. Comments were received regarding human bodies 
and their juxtaposition to the definition of solid waste used in the 
OSWI rules. In the notice of final rulemaking (70 FR 74881, December 
16, 2005), we responded to these comments, but we did not introduce a 
new definition of solid waste. Rather, in the final rule, we excluded 
human crematories from the OSWI rules for precisely the same reason as 
proposed. Therefore, EPA denies the request to reconsider human 
crematories in the OSWI rules.
2. Incinerators in Isolated Areas of Alaska
    The petitioner contends that the policy arguments that EPA advanced 
at proposal and promulgation of the OSWI rules for exempting 
incinerators in isolated areas of Alaska are not valid and contravene 
the requirements of CAA section 129. They further claim that EPA raised 
new arguments during promulgation of the OSWI rules that commercial/
industrial incinerators that burn only municipal-type waste are not 
subject to the CISWI rules, and they argue that such incinerators 
should be regulated. An example is an incinerator that is owned by an 
industrial company, is located in an oil field in Alaska, and burns 
only household or municipal-type waste.
    We deny the petitioner's request for reconsideration on this issue. 
We proposed and took comment on the exemption of incinerators and air 
curtain incinerators that are used at solid waste disposal sites 
operating in isolated areas of Alaska, and that are classified as Class 
II or Class III facilities under the Alaskan State codes (which, in 
turn, are authorized under the Solid Waste Disposal Act) (69 FR 71482-
71483, December 9, 2004).
    We received comments that certain incinerators are used to dispose 
of household- or municipal-type waste generated at oil fields and oil 
pipeline pumping stations and the commenters raised the issue of 
whether these units would be exempt from OSWI regulations. In the 
preamble to the final OSWI regulations, we noted that the comments did 
not provide specific enough information about those incinerators. In 
responding to the comment, we explained that only units that would 
otherwise be considered VSMWC or IWI could be subject to regulation as 
OSWIs, and that the Alaska exemption was limited to units that would, 
absent such exemption, be treated as VSMWC or IWI and, thereby, be 
subject to regulation as OSWI. Units that would not be treated as VSMWC 
or IWI would not be regulated as OSWI. We then noted that although the 
commenters provided insufficient information about the other 
incinerators, the information they did provide suggests that the 
incinerators would not qualify as VSMWC or IWI units (70 FR 74878, 
December 16, 2005). Petitioners have not demonstrated any basis for why 
this conclusion merits reconsideration and, as a result, we deny the 
petition for reconsideration on this point.
    In the final OSWI rule, we further noted that the incinerators 
described by the commenters, i.e., those at oil fields and oil pipeline 
pumping stations, may potentially be considered CISWI units depending 
on the waste combusted. If they incinerate municipal-type waste, then 
``the final CISWI rules do not

[[Page 2628]]

currently cover commercial/industrial-owned/operated incinerators that 
burn only municipal-type waste'' (70 FR 74878, December 16, 2005). We 
added, ``EPA intends to address regulation of such combustion units 
under future revisions to the final CISWI rules.'' Id. Petitioners 
object to these statements, and state that the CISWI rules do cover 
these types of combustors, and further state that if the CISWI rules do 
not cover these types of combustors, then EPA is unlawfully deferring 
regulation under CISWI.\8\
---------------------------------------------------------------------------

    \8\ As noted above, a challenge by the Natural Resources Defense 
Council to this rule is pending before the D.C. Circuit.
---------------------------------------------------------------------------

    We disagree with the petitioners. Although the CISWI regulations 
promulgated in 2000 regulate incinerators located at commercial or 
industrial facilities that are used to combust industrial or commercial 
waste as defined in the CISWI rules, the CISWI regulations do not cover 
units located at commercial or industrial facilities that are used to 
combust more than 30 percent municipal-type wastes (e.g., food scraps, 
packaging, disposable eating utensils, etc.) (40 CFR 60.2020(c) and 40 
CFR 60.2555(c)). Our promulgation of those regulations fulfilled our 
obligations to promulgate CISWI regulations. Continued review of those 
regulations, as we intend to do, does not amount to unlawful deferral 
of regulation.
3. Temporary-Use Incinerators
    At proposal, EPA exempted temporary-use incinerators used in 
disaster or emergency recovery efforts from the rule. Based on public 
comments, EPA narrowed the exemption to limit the potential for abuse. 
The petitioner contends that EPA did not provide an opportunity to 
comment on the revised exclusion in the final rule, and that the 
exclusion still exceeds EPA's authority under CAA section 129.
    We are denying this request because we provided adequate 
opportunity to comment on temporary-use incinerators used in disaster 
recovery in the notice of proposed rulemaking for OSWI published on 
December 9, 2004 (69 FR 71483). Commenters pointed out a potential for 
abuse in the proposed exemption, which could allow incinerators to 
operate indefinitely in major disaster areas without having to comply 
with the regulations. To address these comments, as explained in the 
notice of final rulemaking (70 FR 74879-74880, December 16, 2005), and 
the response to comments document, EPA narrowed the exemption in the 
final OSWI regulations to temporary use incinerators in local, State 
and Federally proclaimed disaster areas; and, in addition, limited the 
amount of time an incinerator may operate in the recovery effort 
without seeking approval from EPA for an extension of operating time. 
Thus, the revisions in the final rule are a logical outgrowth of the 
proposed rule. Therefore, having taken comment on the issue and 
responded to those comments during the rulemaking, EPA denies the 
request to reconsider the exemption for temporary-use incinerators used 
in disaster recovery in the OSWI rules.
4. Incinerators That Burn National Security Documents
    At proposal, EPA requested comments on whether it should provide an 
exclusion from the OSWI rules for incinerators that burn national 
security documents. At promulgation, EPA established exclusions for 
certain incinerators burning national security documents, and the 
petitioner contends that they did not have an opportunity to comment on 
the rationale for the exclusion.
    We deny the petitioner's request for reconsideration of this issue. 
In the notice of proposed rulemaking, we took comment on providing an 
exclusion for ``a subclass of IWI that burn national security 
documents,'' so that such subclass would not be regulated as an OSWI 
(69 FR 71478, December 9, 2004). We received comments from both the 
public and other government agencies for and against the need for such 
an exclusion. On one hand, some public commenters do not believe that 
there was sufficient reason to provide an exclusion for these units. On 
the other hand, some public commenters and government agencies 
presented cases where sensitive documents must be destroyed quickly and 
thoroughly, and noted that document shredding and chemical treatment 
may be unavailable or infeasible. Such is the case for field military 
readiness training exercises, where it would be infeasible to carry 
hazardous chemicals and equipment needed to destroy classified 
documents in the field.
    Moreover, the final rule does not provide an outright exclusion 
from OSWI for incinerators that burn national security documents (70 FR 
74880-74881, December 16, 2005). However, to address the comments, we 
provided a narrow exemption for IWI units used solely during military 
training field exercises to destroy national security materials 
integral to the field exercises. In addition, because we realized that 
there may be particular instances where incineration may be the only 
viable method of destroying national security materials, we included 
provisions such that individual IWI sources could apply for this 
exclusion as necessary. One example arises when chemical/mechanical re-
pulping is the primary method of destruction of national security 
documents; however, a mechanical malfunction prevents use of the system 
for an extended period of time. In the meantime, there are ongoing 
national security document destruction needs at the facility that must 
be met. It may be that a back-up incinerator is the only available 
alternative to adequately destroy the documents while repairs are being 
made to the re-pulping system. To operate the incinerator without 
meeting the requirements of the OSWI rules, the facility must apply for 
an exclusion for the incinerator and demonstrate that no other 
alternatives for destruction of the materials are presently available.
    The exemptions added in the final rule are a logical outgrowth from 
the solicitation of comment in the proposed rule. Thus, EPA denies the 
request to reconsider incinerators used to burn national security 
documents in the OSWI rules.
5. Cement Kilns
    The petitioner states that the proposed OSWI regulations included 
an exclusion for cement kilns, but this exclusion was not specifically 
discussed in the preamble to the proposed rule. The petitioner contends 
that EPA argued for the first time in the final rule that EPA does not 
need to set standards for cement kilns under CAA section 129 because 
they are already regulated under CAA section 112. The petitioner 
disagrees with this rationale.
    We note that while the cement kiln exclusion was not discussed per 
se in the preamble to the proposed rules, the exclusion was clearly 
presented in the proposed regulatory language. In fact, the petitioner 
provided comments on the proposed exclusion for cement kilns, to which 
EPA provided a response in the response to comment document supporting 
the final OSWI regulations. As we noted in our response, cement kilns 
have been regulated under a CAA section 112 regulation since 1999, 
which covers both major and area source cement kilns.
    As we discussed in both the proposal (69 FR 71475 and 71477, 
December 9, 2004) and promulgation preambles (70 FR 74872 and 74875, 
December 16, 2005), as well as the response to comment document for the 
OSWI rules, the language of CAA section 129(h) makes clear the 
Congressional intent for

[[Page 2629]]

CAA regulations under CAA section 129 or CAA section 112 to be mutually 
exclusive. At proposal, in addition to submitting comments specifically 
on cement kilns, the petitioner also submitted comments on our general 
rationale that EPA has the discretion to determine which categories of 
incineration units should be regulated under CAA section 112 instead of 
CAA section 129, and that the same source category cannot be regulated 
under both sections of the CAA.
    Therefore, having received comment on the issue and responding to 
said comments during the rulemaking, EPA denies the request to 
reconsider the exclusion of cement kilns from the OSWI rules.
6. Plasma Arcs and Other Incineration Technologies
    The petitioner contends that EPA failed to mention plasma arcs and 
various other combustion technologies in the preamble to the proposed 
OSWI rules. The petitioner notes that EPA received comments on whether 
various technologies should be regulated. The petitioner argues that in 
the final rule, EPA seeks to ``broadly exclude a wide variety of 
incinerators from regulation as incinerators and-in some cases-from any 
regulations at all'' and that there was no opportunity to comment on 
EPA's rationale for such an exclusion.
    As the commenter notes, we received, and responded to, comments on 
this issue in the preamble to the final rules (70 FR 74876-74877, 
December 16, 2005). It is unrealistic to expect EPA, or the commenter, 
to know of every available technology that is, or could be, used to 
function as a VSMWC or IWI. Therefore, the OSWI rules are written such 
that applicability is not limited to specific combustion technologies. 
(Although it should be noted that IWI are limited to units without 
energy recovery or with only waste heat recovery.) As we explained in 
the preamble to the final rules and in the supporting response to 
comment documents, if a combustion unit meets the definition of a VSMWC 
or IWI in the OSWI rules, and is not subject to one of the specific 
exclusions provided in the OSWI rules, then it would need to meet the 
requirements of the OSWI rules.
    We do not provide specific exclusions in the final OSWI rules for 
particular combustion technologies,\9\ as the petitioner seems to 
imply. Instead, our response to comments simply provides some examples 
from real-world applications of the technologies the commenter listed 
and examples of how these applications would fit into the regulatory 
boundaries of CAA section 129 and CAA section 112 regulations. As we 
pointed out in the preamble to the final OSWI rules (70 FR 74877, 
December 16, 2005), gasification, thermal oxidizers, catalytic 
cracking, etc. are typically, from what we have seen, used in 
industrial settings. The OSWI regulations do not apply to industrial 
combustion units. Furthermore, without further information on the 
specific design, materials combusted, and function of the other 
combustion technologies, we are not able to definitively say, as the 
petitioner requests, that the various combustion units are, or are not, 
subject to the final OSWI rules. Regardless of the technology, if a 
unit meets the definition of an IWI or VSMWC unit in the OSWI rules, 
and is not specifically excluded, then it would be subject to the OSWI 
rules.
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    \9\ The petitioner also implies that EPA's determination that 
plasma arcs are non-combustion is factually incorrect. From our 
understanding of the plasma arc process, organic materials are 
gasified in reactions at high temperature with steam to produce a 
synthesis gas that can be used as a fuel while inorganic 
constituents are simultaneously melted into a vitrified solid 
product that resists leaching. Unlike combustion processes that 
generate heat, the plasma arc melting and gasification process 
absorbs heat and requires an outside heat source. See 
``Environmental Technology Verification Report for the Plasma 
Enhanced Melter'', CERF/IIEC Report 40633, May 2002 for 
more details on plasma arc technology.
---------------------------------------------------------------------------

    In conclusion, having taken comment on this issue and have 
responded to said comments during the rulemaking process, we deny the 
request to reconsider setting standards specific to plasma arcs and 
other combustion technologies in the OSWI rules.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is, 
therefore, not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
We are not proposing any new paperwork as part of this action. However, 
the Office of Management and Budget (OMB) has previously approved the 
information collection requirements contained in the existing OSWI 
rules (40 CFR part 60, subparts EEEE and FFFF) under the provisions of 
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned 
OMB control number 2060-0563 and EPA ICR No. 2163.02 for subpart EEEE, 
and OMB control number 2060-0562 and EPA ICR No. 2164.02 for subpart 
FFFF. A copy of the OMB approved Information Collection Requests (ICR), 
may be obtained from Susan Auby, Collection Strategies Division, U.S. 
EPA (2822T), 1200 Pennsylvania Avenue, NW., Washington, DC 20460, by e-
mail at auby.susan@epa.gov, or by calling (202) 566-1672.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements under the Administrative Procedure 
Act or any other statute unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions. For purposes of assessing the 
impacts of the final rules on small entities, small entity is defined 
as follows:
    1. A small business that is an ultimate parent entity in the 
regulated industry that has a gross annual revenue less than $6.0 
million (this varies by industry category, ranging up to $10.5 million 
for North American Industrial Classification System (NAICS) code 562213 
(very small municipal waste combustors)), based on Small Business 
Administration's size standards;
    2. A small governmental jurisdiction that is a government of a 
city, county,

[[Page 2630]]

town, school district or special district with a population of less 
than 50,000; or
    3. A small organization that is any not-for-profit enterprise that 
is independently owned and operated and is not dominant in its field.
    After considering the economic impact of this notice of final 
action on reconsideration on small entities, I certify that this action 
will not have a significant economic impact on a substantial number of 
small entities. This action does not propose any changes to the final 
OSWI rules and will not impose any requirements on small entities. EPA 
has determined that it is not necessary to prepare a regulatory 
flexibility analysis in connection with this reconsideration notice.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, Public 
Law 104-4, establishes requirements for Federal Agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under CAA section 202 of the UMRA, 
EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may result in expenditures by State, local, and Tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more in any 1 year. Before promulgating an EPA rule for 
which a written statement is needed, CAA section 205 of the UMRA 
generally requires EPA to identify and consider a reasonable number of 
regulatory alternatives and adopt the least costly, most cost-
effective, or least burdensome alternative that achieves the objectives 
of the rule. The provisions of CAA section 205 do not apply when they 
are inconsistent with applicable law. Moreover, CAA section 205 allows 
EPA to adopt an alternative other than the least costly, most cost-
effective, or least burdensome alternative if EPA publishes with the 
final rule an explanation why that alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including Tribal 
governments, EPA must have developed, under CAA section 203 of the 
UMRA, a small government agency plan. The plan must provide for 
notifying potentially affected small governments, enabling officials of 
affected small governments to have meaningful and timely input in the 
development of EPA's regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    EPA has determined that this notice of final action on 
reconsideration does not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and Tribal 
governments, in the aggregate, or the private sector in any 1 year. We 
are not revising the final OSWI rule. Thus, this notice of final action 
on reconsideration is not subject to the requirements of CAA section 
202 and 205 of the UMRA. In addition, EPA has determined that the 
notice of final action on reconsideration contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. Therefore, the notice of final action on reconsideration 
is not subject to the requirements of CAA section 203 of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132 (64 FR 43255, August 10, 1999), requires EPA 
to develop an accountable process to ensure ``meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have Federalism implications.'' ``Policies that have 
Federalism implications'' is defined in the Executive Order to include 
regulations that have ``substantial direct effects on States, on the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among various levels of 
government.''
    This notice of final action on reconsideration does not have 
Federalism implications. It will not have substantial direct effects on 
the States, on the relationship between the national Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
The notice of final action on reconsideration will not impose direct 
compliance costs on State or local governments, and will not preempt 
State law. Thus, Executive Order 13132 does not apply to this notice of 
final action on reconsideration.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have Tribal implications.'' ``Policies that have Tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on relationship between the 
Federal Government and the Indian tribes, or on the distribution of 
power and responsibilities between the Federal Government and Indian 
tribes.''
    This notice of final action on reconsideration does not have Tribal 
implications, as specified in Executive Order 13175. It will not have 
substantial direct effects on Tribal governments, on the relationship 
between the Federal Government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this notice of final 
action on reconsideration.

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

    Executive Order 13045 (62 FR 19885, April 23, 1997), applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, EPA must evaluate the environmental health or safety 
effects of the planned rule on children, and explain why the planned 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives EPA considered.
    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under CAA section 5-501 of the Executive Order 
has the potential to influence the regulation. This notice of final 
action on reconsideration is not subject to Executive Order 13045 
because it is not economically significant, and the original OSWI rules 
are based on technology performance and not on health and safety risks.

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

    This notice of final action on reconsideration is not subject to 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) because it is not a significant regulatory action 
under Executive Order 12866.

[[Page 2631]]

I. National Technology Transfer Advancement Act

    As noted in the notice of reconsideration and request for public 
comment, CAA section 12(d) of the National Technology Transfer and 
Advancement Act (NTTAA) of 1995 (Pub. L. 104-113; 15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, business practices) developed or adopted by one or more 
voluntary consensus bodies. The NTTAA directs EPA to provide Congress, 
through OMB, with explanations when EPA does not use available and 
applicable voluntary consensus standards.
    This notice of final action on reconsideration does not involve 
technical standards. EPA's compliance with CAA section 12(d) of the 
NTTAA has been addressed in the preamble of the underlying final OSWI 
rules (70 FR 74891, December 16, 2005).

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA submitted a report containing the final rules and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the final rules in the Federal Register on December 
16, 2005. The final rules are not ``major rules'' as defined by 5 
U.S.C. 804(2). The final emission guidelines were effective on February 
14, 2006. The final NSPS were effective on June 16, 2006. The EPA will 
submit a report containing this rule and other required information to 
the U.S. Senate, the U.S. House of Representatives, and the Comptroller 
General of the U.S. prior to publication of the rule in the Federal 
Register.

List of Subjects in 40 CFR Part 60

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations.

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

BILLING CODE 6560-50-P
