2620 Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations 

■ 2. In § 401.2 paragraph (k) is revised 

to read as follows: 

§ 401.2 Interpretation. 

* * * * * 

(k) Seaway Station means a radio 

station operated by the Corporation or 

the Manager. (Refer to 401.62. Seaway 

Stations for the list and location of 

stations). 

* * * * * 

■ 3. In § 401.8 paragraph (c) is revised 

to read as follows: 

§ 401.8 Landing booms. 

* * * * * 

(c) Vessels not equipped with or not 

using landing booms must use the 

Seaway’s tie-up service at approach 

walls. 

■ 4. Section 401.12 paragraph (a) 

introductory text is revised to read as 

follows: 

§ 401.12 Minimum requirements—mooring 

lines and fairleads. 

(a) Unless otherwise permitted by the 

officer the minimum requirements in 

respect of mooring lines, which shall be 

available for securing on either side of 

the vessel, winches, and the location of 

fairleads on vessels are as follows: 

* * * * * 

■ 5. In § 401.22 paragraph (c) is revised 

to read as follows: 

§ 401.22 Preclearance of vessels. 

* * * * * 

(c) Unless otherwise permitted by an 

officer a non-commercial vessel of 300 

gross registered tonnage or less cannot 

apply for preclearance status and must 

transit as a pleasure craft. 

* * * * * 

■ 6. § 401.24 is revised as follows: 

§ 401.24 Application for preclearance. 

The representative of a vessel may, on 

a preclearance form obtained from the 

Manager, St. Lambert, Quebec, or 

downloaded from the St. Lawrence 

Seaway Web site at http:// 

www.greatlakes-seaway.com, apply for 

preclearance, giving particulars of the 

ownership, liability insurance and 

physical characteristics of the vessel 

and guaranteeing payment of the fees 

that may be incurred by the vessel. 

■ 7. In § 401.40 the section heading is 

revised, paragraphs (b) and (c) are 

redesignated as paragraphs (c) and (d), 

respectively, and a new paragraph (b) is 

added to read as follows: 

§ 401.40 Entering, Exiting or Position in 

Lock. 

* * * * * 

(b) No vessel shall depart a lock in 

such a manner that the stern passes the 

stop symbol on the lock wall nearest the 

closed gates. 

* * * * * 

■ 8. In § 401.58 paragraph (b) is revised 

to read as follows: 

§ 401.58 Pleasure craft scheduling. 

* * * * * 

(b) Every pleasure craft seeking to 

transit Canadian Locks shall stop at a 

pleasure craft dock and arrange for 

transit by contacting the lock personnel 

using the direct-line phone and make 

the lockage fee payment by purchasing 

a ticket using the automated ticket 

dispensers. 

■ 9. In § 401.68, the section heading and 

paragraphs (a) introductory text, (b), (c), 

and (d) are revised to read as follows: 

§ 401.68 Explosives Permission Letter. 

(a) A Seaway Explosives Permission 

Letter is required for an explosive vessel 

in the following cases: 

* * * * * 

(b) When an explosive vessel is 

carrying quantities of explosives above 

the maximum mentioned in paragraph 

(a) of this section, no Seaway Explosives 

Permission Letter shall be granted and 

the vessel shall not transit. 

(c) A written application for a Seaway 

Explosives Permission Letter certifying 

that the cargo is packed, marked, and 

stowed in accordance with the Canadian 

Regulations respecting the Carriage of 

Dangerous Goods, the United States 

Regulations under the Dangerous Cargo 

Act and the International Maritime 

Dangerous Goods Code may be made to 

the Saint Lawrence Seaway 

Development Corporation, P.O. Box 520, 

Massena, New York 13662 or to the St. 

Lawrence Seaway Management 

Corporation, 202 Pitt Street, Cornwall, 

Ontario, K6J 3P7. 

(d) A signed copy of a Seaway 

Explosives Permission Letter and a true 

copy of any certificate as to the loading 

of dangerous cargo shall be kept on 

board every explosive vessel in transit 

and shall be made available to any 

officer requiring production of such 

copies. 

* * * * * 

■ 10. § 401.70 is revised to read as 

follows: 

§ 401.70 Fendering—explosive and 

hazardous cargo vessels. 

All explosive vessels requiring a 

Seaway Explosives Permission Letter in 

accordance with § 401.68 and all tankers 

carrying cargo with a flashpoint of up to 

61 °C, except those carrying such cargo 

in center tanks with gas free wing tanks, 

shall be equipped with a sufficient 

number of non-metallic fenders on each 

side to prevent any metallic part of the 

vessel from touching the side of a dock 

or lock wall. 

■ 11. In § 401.72 paragraph (b) is revised 

to read as follows: 

§ 401.72 Reporting—explosive and 

hazardous cargo vessels. 

* * * * * 

(b) Every explosive vessel requiring a 

Seaway Explosives Permission Letter 

shall, when reporting in, give the 

number of its Seaway Explosives 

Permission Letter. 

* * * * * 

■ 12. In § 401.93 paragraph (b) is revised 

to read as follows: 

§ 401.93 Access to Seaway property. 

* * * * * 

(b) Except as authorized by an officer 

or by the Seaway Property Regulations 

or its successors, no person shall enter 

upon any land or structure of the 

Manager or the Corporation or in any 

Seaway canal or lock area. 

Issued at Washington, DC on January 11, 

2007. 

Saint Lawrence Seaway Development 

Corporation. 

Collister Johnson, Jr., 

Administrator. 

[FR Doc. E7–814 Filed 1–19–07; 8:45 am] 

BILLING CODE 4910–61–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 60 

[EPA–HQ–OAR–2003–0156; FRL–8272–2] 

RIN 2060–AN91 

Standards of Performance for New 

Stationary Sources and Emission 

Guidelines for Existing Sources: Other 

Solid Waste Incineration Units: 

Reconsideration 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of final action on 

reconsideration. 

SUMMARY: On December 16, 2005, EPA 

published final rules entitled, 

‘‘Standards of Performance for New 

Stationary Sources and Emission 

Guidelines for Existing Sources: Other 

Solid Waste Incineration Units.’’

Following that final action, the 

Administrator received a petition for 

reconsideration. In response to the 

petition, on June 28, 2006, EPA 

announced our reconsideration of 

whether SSI should be excluded from 

the other solid waste incineration units 

(OSWI) rules and requested comment on 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations 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: 

Category NAICS code Examples of potentially regulated entities 

Any State, local, or Tribal government using a VSMWC unit 

as defined in the regulations.

562213, 92411 Solid waste combustion units burning municipal waste collected from the general public and from residential, commercial, institutional, and industrial sources. 

Institutions using an IWI unit as defined in the regulations ...... 922, 6111, 623, 

7121 

Correctional institutions, primary and secondary schools, 

camps and national parks. 

Any Federal government agency using an OSWI unit as defined in the regulations.928 Department of Defense (labs, military bases, munition facilities). 

Any college or university using an OSWI unit as defined in the 

regulations.

6113, 6112 Universities, colleges and community colleges. 

Any church or convent using an OSWI unit as defined in the 

regulations.

8131 Churches and convents. 

Any civic or religious organization using an OSWI unit as defined in the regulations.8134 Civic associations and fraternal associations. 

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: 


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2622 Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations 

1The 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.). 

(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

Conversely, another commenter 

(EPA–HQ–OAR–2003–0156–0127) 


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Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations 2623 

2The 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. 

3Under section 129(a)(1), EPA is requird to 

establish performance standards and other 

requirements for specified categories of solid waste 

incineration units. 

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

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. 

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 


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4That 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. 

5Absence of current regulations under CAA 

section 112, however, is not determinative of 

whether a unit is subject to the final OSWI rules. 

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.’’

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. 

Because the SSI category is composed 

entirely of area sources of HAP, 

regulating SSI under the CAA section 

112 area source program offers the 

advantage of this flexibility. 

Specifically, in proposing and 

promulgating regulations under CAA 

section 112 covering SSI, EPA will have 

the opportunity to evaluate cost 

constraints, which may be particularly 

important in light of the relatively small 

size of the units at issue here. EPA may 

decide, based on the circumstances of 

the source category, to promulgate 

GACT, as opposed to MACT, for SSI 

under CAA section 112. EPA has not yet 

regulated SSI and thus we cannot 

predict at this time what the proposed 

standards for this category will be, but 

the relevant issue here is that CAA 

section 112 provides important 

flexibilities that are absent in CAA 

section 129. In CAA section 112, 

Congress specifically recognized the 

need for providing such flexibilities to 

area sources. 

Moreover, regulating SSI under the 

CAA section 112 area source program 

offers the additional flexibility of 

determining whether to require SSI 

units to obtain title V permits. By 

comparison, were EPA to regulate SSI 

under CAA section 129, SSI sources 

would be required to obtain title V 

permits. The cost to small sources, such 

as SSI units, of the title V permit 

program would be relatively high, so the 

flexibility that CAA section 112 

provides with respect to title V 

requirements may be useful in tailoring 

the overall regulatory scheme. 

To summarize, given the statutory 

provisions of CAA sections 129(a), (g) 

and (h), as interpreted above, and the 

legislative history and policy 

considerations noted above, we 

maintain that EPA has the discretion to 

define which categories of combustion 

units should be subject to regulation 

under CAA section 129 and hence, to 

which categories of solid waste 

combustion units the standards for 

‘‘other categories of solid waste 

incineration units’’ apply. Thus, at the 

outset of the rulemaking process, EPA 

determined what universe of sources 

will be subject to the regulations. As 


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6One 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. 

7Another 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. 

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 POTWgenerated sewage sludge is ‘‘solid 

waste.’’ (65 FR 23459, April 24, 2000). 

EPA noted that statement in the OSWI 

final rule, in the context of explaining 

that EPA had a long-standing policy of 

regulating SSI under CAA section 112, 

citing the April 2000 Unified Agenda 

(70 FR 74880, December 16, 2005). 

However, because EPA has determined 

not to regulate SSI as OSWI under CAA 

section 129 for other reasons, it is not 

necessary to evaluate the comment that 

POTW-generated sewage sludge is not 

‘‘solid waste.’’

Under CAA section 129(g)(1), a ‘‘solid 

waste incineration unit’’ is defined, in 

relevant part, as a ‘‘unit * * * of any 

facility which combusts any solid waste 

material from commercial or industrial 

establishments or the general public 

* * *.’’ Some commenters argue that 

POTWs are municipal sources, not the 

sources described in the definition of 

‘‘solid waste incineration unit[s]’’, and 

therefore do not meet that definition.6

EPA included a statement to this effect 

in the April, 2000 Unified Agenda (65 

FR 23459, April 24, 2000). EPA cited 

this statement in the OSWI final rule in 

the context of explaining that EPA had 

a long-standing policy of regulating SSI 

under CAA section 112. As noted above, 

because EPA has determined not to 

regulate SSI under CAA section 129 for 

other reasons, it was not necessary for 

EPA to determine in the final OSWI rule 

whether SSI meet the definition of 

‘‘solid waste incineration unit[s],’’ and 

for the same reason, it is not necessary 

to respond to the comments here. 

3. Regulatory History 

One commenter (EPA–HQ–OAR–

2003–0156–0118) dismisses EPA’s 

argument that since April 2000 EPA has 

indicated it no longer intends to 

regulate SSI as incinerators under CAA 

section 129 but intends to regulate them 

as area sources of HAP under CAA 

section 112. The commenter says that 

EPA’s announcement of this intent in 

the April 2000 semiannual regulatory 

agenda does not alter EPA’s statutory 

obligation under CAA section 129. 

As discussed above, we have decided 

not to regulate SSI under the OSWI 

regulations. These units will be 

regulated under a separate CAA section 

112 area source regulation currently 

under development. This 

reconsideration process cures any 

defects in the notice-and-comment 

process that the commenter believes 

occurred in the past.7

4. Impacts 

In support of EPA’s decision to not 

regulate SSI under the OSWI rule, 

several commenters discuss the benefits 

of incineration and argue that the costs 

of regulation under CAA section 129 

would cause adverse impacts to 

communities. For example, two 

commenters point out several benefits 

provided by incineration of sewage 

sludge. One commenter (EPA–HQ–

OAR–2003–0156–0127) states that 

incineration of biosolids reduces waste 

volume, destroys pathogens, and 

degrades toxic organic compounds and 

is, therefore, an important, safe, and 

effective component of biosolids 


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management practices used by POTWs. 

Another commenter (EPA–HQ–OAR–

2003–0156–0122) adds that incineration 

is a viable and important management 

option for POTWs. The commenter 

states that incineration gives a 

municipality greater control of their 

operation by reducing dependency on 

others to accept and use biosolids, 

minimizes onsite and offsite odors, 

requires a small land area, can be 

operated continuously in all weather 

conditions, and can also be a source of 

energy. According to the commenters, 

approximately 17 percent of biosolids 

generated by POTWs are incinerated, 

and 150 municipalities in the United 

States use thermal oxidation to turn 

biosolids into an energy source to 

produce some or all of the energy they 

need to operate, provide an extra 

revenue source, and help reduce energy 

and transportation costs. One 

commenter provides references and 

attachments to demonstrate that EPA 

has recognized SSI as a viable option for 

local community management of 

biosolids. The other commenter 

attached a brochure on bioenergy from 

wastewater treatment. Both commenters 

argue that subjecting SSI to CAA section 

129 rules could eliminate SSI as a viable 

option. 

Regarding impacts of regulation under 

CAA section 129, one commenter (EPA–

HQ–OAR–2003–0156–0127) states that 

including SSI in OSWI would impose 

substantial costs to SSI operators 

without corresponding benefits, and the 

costs that would be imposed on POTW 

ratepayers could eliminate SSI as a safe, 

viable, and cost-effective biosolids 

management option for many 

communities. The regulatory burden 

would be substantial without 

corresponding health or environmental 

benefits. The commenter is also 

concerned that limits for NOX and CO 

might not be simultaneously achievable. 

The commenter concludes that cost and 

regulatory burden of regulating SSI 

under CAA section 129 would be 

inconsistent with past EPA declarations 

that incineration is a safe and acceptable 

biosolids disposal practice and 

Congressional intent that EPA provide 

safe management practices for use and 

disposal of biosolids and not dictate 

preferred practices and eliminate others. 

Another commenter (EPA–HQ–OAR–

2003–0156–0122) adds that a 

technology-based standard imposed by 

CAA section 129 would require major 

expenditure whether or not there are 

any risks to human health and the 

environment. 

A few commenters provided estimates 

on the cost impacts that a CAA section 

129 regulation would have on their SSI. 

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 


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and the environment, and that the 

biennial review process in CWA section 

405 provides an ample means for EPA 

to identify and regulate any additional 

concerns under 40 CFR part 503. 

Another commenter (EPA–HQ–OAR–

2003–0156–0114) adds that the 40 CFR 

part 503 regulations are risked-based 

and were set (using conservative 

assumptions) to ensure protection from 

cancer risks at a level of 10¥5 (i.e., one 

in ten thousand). 

The commenters (EPA–HQ–OAR–

2003–0156–0127 and EPA–HQ–OAR–

2003–0156–0122) state that the mercury 

NESHAP (40 CFR part 61, subpart E) 

sets mercury emission limits, testing, 

and monitoring requirements for 

sources that incinerate wastewater 

treatment plant sludge; and the 

beryllium NESHAP (40 CFR part 61, 

subpart C) sets limits for incinerators 

that process beryllium containing waste. 

SSI constructed or modified since June 

11, 1973 are subject to the SSI NSPS (40 

CFR part 60, subpart O), which contain 

particulate matter, opacity, operating, 

testing and monitoring requirements. 

One of the commenters (EPA–HQ–

OAR–2003–0156–0127) adds that SSI 

are subject to title V permits if they are 

major sources and to State and local 

requirements. Under CWA section 403, 

POTWs also implement, through local 

regulatory authority, pretreatment 

standards that reduce harmful 

constituents of biosolids. The 

commenters (EPA–HQ–OAR–2003–

0156–0127 and EPA–HQ–OAR–2003–

0156–0122) contend that the 

combination of CWA and CAA 

regulations address CAA section 129 

pollutants that are of concern for SSI, 

and that further regulation under CAA 

section 129 is not needed. 

Another commenter (EPA–HQ–OAR–

2003–0156–0112) stated that their city’s 

SSI is subject to emission limits for PM, 

opacity, beryllium, and mercury and is 

required to routinely monitor NOX and 

CO emissions. They believe these 

regulations adequately protect public 

health and the environment and 

additional regulation under CAA 

section 129 is not warranted. 

We appreciate commenters’ support 

of our decision to not regulate SSI under 

the CAA section 129 OSWI regulations. 

We also acknowledge that various CWA 

and CAA regulations currently apply to 

SSI. These other regulations provide 

some additional support for our 

decision not to regulate under CAA 

section 129 because these other 

regulations provide protection of human 

health and the environment for many of 

the pollutants regulated by CAA section 

129 regulations. In addition, as 

discussed earlier, we are currently in 

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 


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8As noted above, a challenge by the Natural 

Resources Defense Council to this rule is pending 

before the D.C. Circuit. 

currently cover commercial/industrialowned/operated incinerators that burn 

only municipal-type waste’’ (70 FR 

74878, December 16, 2005). We added, 

‘‘EPA intends to address regulation of 

such combustion units under future 

revisions to the final CISWI rules.’’ Id. 

Petitioners object to these statements, 

and state that the CISWI rules do cover 

these types of combustors, and further 

state that if the CISWI rules do not cover 

these types of combustors, then EPA is 

unlawfully deferring regulation under 

CISWI.8

We disagree with the petitioners. 

Although the CISWI regulations 

promulgated in 2000 regulate 

incinerators located at commercial or 

industrial facilities that are used to 

combust industrial or commercial waste 

as defined in the CISWI rules, the CISWI 

regulations do not cover units located at 

commercial or industrial facilities that 

are used to combust more than 30 

percent municipal-type wastes (e.g., 

food scraps, packaging, disposable 

eating utensils, etc.) (40 CFR 60.2020(c) 

and 40 CFR 60.2555(c)). Our 

promulgation of those regulations 

fulfilled our obligations to promulgate 

CISWI regulations. Continued review of 

those regulations, as we intend to do, 

does not amount to unlawful deferral of 

regulation. 

3. Temporary-Use Incinerators 

At proposal, EPA exempted 

temporary-use incinerators used in 

disaster or emergency recovery efforts 

from the rule. Based on public 

comments, EPA narrowed the 

exemption to limit the potential for 

abuse. The petitioner contends that EPA 

did not provide an opportunity to 

comment on the revised exclusion in 

the final rule, and that the exclusion 

still exceeds EPA’s authority under CAA 

section 129. 

We are denying this request because 

we provided adequate opportunity to 

comment on temporary-use incinerators 

used in disaster recovery in the notice 

of proposed rulemaking for OSWI 

published on December 9, 2004 (69 FR 

71483). Commenters pointed out a 

potential for abuse in the proposed 

exemption, which could allow 

incinerators to operate indefinitely in 

major disaster areas without having to 

comply with the regulations. To address 

these comments, as explained in the 

notice of final rulemaking (70 FR 

74879–74880, December 16, 2005), and 

the response to comments document, 

EPA narrowed the exemption in the 

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 


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9The 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. 

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. 

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, 


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2630 Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations 

town, school district or special district 

with a population of less than 50,000; or 

3. A small organization that is any 

not-for-profit enterprise that is 

independently owned and operated and 

is not dominant in its field. 

After considering the economic 

impact of this notice of final action on 

reconsideration on small entities, I 

certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

This action does not propose any 

changes to the final OSWI rules and will 

not impose any requirements on small 

entities. EPA has determined that it is 

not necessary to prepare a regulatory 

flexibility analysis in connection with 

this reconsideration notice. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act (UMRA) of 1995, Public 

Law 104–4, establishes requirements for 

Federal Agencies to assess the effects of 

their regulatory actions on State, local, 

and Tribal governments and the private 

sector. Under CAA section 202 of the 

UMRA, EPA generally must prepare a 

written statement, including a costbenefit analysis, for proposed and final 

rules with ‘‘Federal mandates’’ that may 

result in expenditures by State, local, 

and Tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more in any 1 year. 

Before promulgating an EPA rule for 

which a written statement is needed, 

CAA section 205 of the UMRA generally 

requires EPA to identify and consider a 

reasonable number of regulatory 

alternatives and adopt the least costly, 

most cost-effective, or least burdensome 

alternative that achieves the objectives 

of the rule. The provisions of CAA 

section 205 do not apply when they are 

inconsistent with applicable law. 

Moreover, CAA section 205 allows EPA 

to adopt an alternative other than the 

least costly, most cost-effective, or least 

burdensome alternative if EPA 

publishes with the final rule an 

explanation why that alternative was 

not adopted. 

Before EPA establishes any regulatory 

requirements that may significantly or 

uniquely affect small governments, 

including Tribal governments, EPA 

must have developed, under CAA 

section 203 of the UMRA, a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA’s regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

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. 


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Federal Register / Vol. 72, No. 13 / Monday, January 22, 2007 / Rules and Regulations 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 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Chapter 2 

RIN 0750–AF56 

Defense Federal Acquisition 

Regulation Supplement; Emergency 

Acquisitions (DFARS Case 2006–D036) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: DoD has issued an interim 

rule amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to provide a single reference to 

DoD-unique acquisition flexibilities that 

may be used to facilitate and expedite 

acquisitions of supplies and services 

during emergency situations. 

DATES: Effective date: January 22, 2007. 

Comment date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before March 23, 2007, to be 

considered in the formation of the final 

rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2006–D036, 

using any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: dfars@osd.mil. Include 

DFARS Case 2006–D036 in the subject 

line of the message. 

• Fax: (703) 602–0350. 

• Mail: Defense Acquisition 

Regulations System, Attn: Mr. Gary 

Delaney, OUSD (AT&L) DPAP (DARS), 

IMD 3C132, 3062 Defense Pentagon, 

Washington, DC 20301–3062. 

Æ Hand Delivery/Courier: Defense 

Acquisition Regulations System, Crystal 

Square 4, Suite 200A, 241 18th Street, 

Arlington, VA 22202–3402. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Gary Delaney, (703) 602–0131. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Item II of Federal Acquisition Circular 

2005–11, published at 71 FR 38247 on 

July 5, 2006, added Part 18 to the 

Federal Acquisition Regulation (FAR). 

FAR Part 18 provides a single reference 

to Governmentwide acquisition 

flexibilities that may be used to 

facilitate and expedite acquisitions of 

supplies and services during emergency 

situations. This interim DFARS rule 

adds a new Part 218 to provide a single 

reference to the additional acquisition 

flexibilities available to DoD. 

Consistent with the FAR, the 

flexibilities in DFARS Part 218 are 

divided into two subparts. The first 

subpart, entitled ‘‘Available Acquisition 

Flexibilities’’ identifies the DoD 

flexibilities that may be used anytime 

and do not require an emergency 

declaration. The second subpart, 

entitled ‘‘Emergency Acquisition 

Flexibilities’’ identifies the DoD 

flexibilities that may be used only after 

an emergency declaration or designation 

has been made by the appropriate 

official. The second subpart is further 

divided into three sections: Contingency 

operation; Defense or recovery from 

certain attacks; and Incidents of national 

significance, emergency declaration, or 

major disaster declaration. 

DoD would like to hear the views of 

interested parties on the sufficiency of 

these provisions. In particular, DoD is 

interested in receiving input as to 

whether the provisions sufficiently 

clarify the existing DFARS flexibilities 

that can be used in emergency situations 

or whether more detailed, 

comprehensive coverage is needed. 

This rule was not subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. 

B. Regulatory Flexibility Act 

DoD does not expect this rule to have 

a significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq., 

because the rule is a compilation of 

existing authorities, and makes no 

change to DoD contracting policy. 

Therefore, DoD has not performed an 

initial regulatory flexibility analysis. 

DoD invites comments from small 

businesses and other interested parties. 

DoD also will consider comments from 

small entities concerning the affected 

DFARS subparts in accordance with 5 

U.S.C. 610. Such comments should be 

submitted separately and should cite 

DFARS Case 2006–D036. 


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