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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 1200

[EPA-HQ-OAR-2008-0201-FRL-]

RIN 2060--AP14

TITLE: Waste Energy Recovery Registry

AGENCY: Environmental Protection Agency (EPA)

ACTION: Proposed Rule

_______________________________________________________________________

SUMMARY: EPA is proposing to establish the criteria for including sources or sites in 

a Registry of Recoverable Waste Energy Sources (Registry), as required under Title IV, 

Subtitle D of the Energy Independence and Security Act of 2007. The Agency is also 

proposing the Survey processes by which EPA will collect data and populate the 

Registry. The rule would apply to major industrial and large commercial sources as 

defined by EPA in this rulemaking. This proposed rule would not require the installation 

of new monitoring equipment, rather it would require only that sources above certain 

threshold levels that wish to be included in the Registry enter specific already-monitored 

data points into the Survey, which is a software tool that will calculate the quantity and 

quality of potentially recoverable waste energy.

DATES: The public may comment on this proposed rule until [INSERT DATE 60 

DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. 

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR2008-0201, by one of the following methods:

 Federal eRulemaking Portal: http://www.regulations.gov. Follow the online 

instructions for submitting comments.
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 E-mail: a-and-r-Docket@epa.gov.

 Fax: (202) 566-1741.

 Mail: Environmental Protection Agency, EPA Docket Center (EPA/DC), 

Mailcode 6102T, Attention Docket ID No. EPA-HQ-OAR-2008-0201, 1200 

Pennsylvania Avenue, NW, Washington, DC 20460.

 Hand Delivery: Public Reading Room, Room B102, EPA West Building, 1301 

Constitution Avenue, NW, Washington, DC. Such deliveries are only accepted 

during the Docket's normal hours of operation, and special arrangements should 

be made for deliveries of boxed information. 

Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-2008-0201. EPA's 

policy is that all comments received will be included in the public docket without change 

and may be made available online at http://www.regulations.gov, including any personal 

information provided, unless the comment includes information claimed to be 

Confidential Business Information (CBI) or other information whose disclosure is 

restricted by statute. Do not submit information that you consider to be CBI or otherwise 

protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov

Web site is an ``anonymous access'' system, which means EPA will not know your 

identity or contact information unless you provide it in the body of your comment. If you 

send an e-mail comment directly to EPA without going through 

http://www.regulations.gov your e-mail address will be automatically captured and 

included as part of the comment that is placed in the public docket and made available on 

the Internet. If you submit an electronic comment, EPA recommends that you include 

your name and other contact information in the body of your comment and with any disk 
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or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties 

and cannot contact you for clarification, EPA may not be able to consider your comment. 

Electronic files should avoid the use of special characters, any form of encryption, and be 

free of any defects or viruses.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. 

Although listed in the index, some information is not publicly available, e.g., CBI or 

other information whose disclosure is restricted by statute. Certain other material, such as 

copyrighted material, will be publicly available only in hard copy. Publicly available 

docket materials are available either electronically in http://www.regulations.gov or in 

hard copy at the Air Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., 

NW., Washington, DC. This Docket Site is open from 8:30 a.m. to 4:30 p.m., Monday

through Friday, excluding legal holidays. The telephone number for the Public 

Reading Room is (202) 566-1744, and the telephone number for the Air 

Docket is (202) 566-1742. 

FOR FURTHER INFORMATION CONTACT: Katrina Pielli, Climate Protection 

Partnerships Division, Office of Atmospheric Programs (MC 6202J), Environmental 

Protection Agency, 1200 Pennsylvania Ave NW, Washington, DC 20460; telephone 

number: (202) 343-9610; fax number (202) 343-2204; email address: 

pielli.katrina@epa.gov. 

SUPPLEMENTARY INFORMATION:

The information in this preamble is organized as follows:

I. General Information

A. Does This Action Apply to Me?

B. What Should I Consider As I Prepare My Comments To EPA?

C. Where Can I Get a Copy of This Document?
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D. Abbreviations Used in This Document

II. Background Information

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

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

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

III. Summary of the Proposed Rule

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

1. What Are the Key Definitions and Interpretation?

2. What Are the Survey and Registry Scope?

3. How Is EPA Limiting the Scope to Economically Feasible Projects?

4. What Are the Survey and Registry Schedules?

B. Survey

1. What Is the Rationale Behind the Survey Approach?

2. What are the Major Industrial and Large Commercial Thresholds?

3. What Is Detailed Quantitative Information and How Is it Applicable to the 

Survey and Registry?

4. What Is the Approach to Determine if a Potential Waste Energy Recovery

Project Has a Five-year Payback or Less?

5. What Is the Approach to Ensure Projects Proposed for Inclusion in the 

Registry Are Not Developed or Used for the Primary Purpose of Making Sales 

of Excess Electric Power Under the Regulatory Provisions of Subtitle D Part 

E?

6. How Will the Survey Be Distributed?

7. How Do I Return a Survey?

8. What Is the Schedule for Returning a Survey?

C. Registry

1. How Will EPA Notify Entities of Their Listing and What Is the Method for 

Any Interested State, Utility, or Other Interested Person to Contest a Listing?

2. What Are the Standards to Address New Sources or New Energy-Consuming 

Industrial Facilities Constructed After EISA Enactment?

a. New Sources Constructed After EISA Enactment

b. New Energy Consuming Industrial Facilities Constructed After EISA 

Enactment

3. How Are Projects Removed from the Registry?

IV. Economic Impacts

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act (UMRA)

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination with Indian Tribal 

Governments

G. Executive Order 13045: Protection of Children from Environmental Health Risks 

and Safety Risks
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H. Executive Order 13211: Actions that Significantly Affect Energy Supply, 

Distribution, or Use

I. National Technology Transfer and Advancement Act

J. Executive Order 12898: Federal Actions to Address Environmental Justice in 

Minority Populations and Low- Income Populations

I. General Information

A. Does This Action Apply To Me?

This is a proposed regulation. If finalized, these regulations would affect owners and 

operators of major industrial and large commercial sources (as defined in this regulation). 

Regulated categories and entities could include the following:

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

Code 2002 NAICS Title

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

211 Oil and Gas Extraction

212 Mining (except Oil and Gas)

221320 Sewage Treatment Facilities

221330 Steam and Air-Conditioning Supply

31-33 Manufacturing

311 Food Manufacturing

312 Beverage and Tobacco Product Manufacturing

313 Textile Mills

314 Textile Product Mills

315 Apparel Manufacturing

316 Leather and Allied Product Manufacturing

321 Wood Product Manufacturing

322 Paper Manufacturing

323 Printing and Related Support Activities

32411 Petroleum Refineries

324191 Petroleum Lubricating Oil and Grease Manufacturing

325 Chemical Manufacturing

326 Plastics and Rubber Products Manufacturing

327 Nonmetallic Mineral Product Manufacturing

3311 Iron and Steel Mills and Ferroalloy Manufacturing

3313 Alumina and Aluminum Production and Processing
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3314 Nonferrous Metal (except Aluminum) Production and Processing

3315 Foundries

332 Fabricated Metal Product Manufacturing

333 Machinery Manufacturing

334 Computer and Electronic Product Manufacturing

335 Electrical Equipment, Appliance, and Component Manufacturing

336 Transportation Equipment Manufacturing

337 Furniture and Related Product Manufacturing

339 Miscellaneous Manufacturing

44511 Supermarkets and Other Grocery (except Convenience) Stores

4862 Pipeline Transportation of Natural Gas

48811 Airport Operations

48831 Port and Harbor Operations

493120 Refrigerated Warehousing and Storage

518 Internet Service Providers, Web Search Portals, and Data Processing 

Services

521 Monetary Authorities - Central Bank

522 Credit Intermediation and Related Activities

5221 Depository Credit Intermediation

5222 Nondepository Credit Intermediation

6111 Elementary and Secondary Schools

6112 Junior Colleges

6113 Colleges, Universities

622 Hospitals

623 Nursing and Residential Care Facilities

71211 Museums

71213 Zoos and Botanical Gardens

71311 Amusement and Theme Parks

71321 Casinos (except Casino Hotels)

72111 Hotels (except Casino Hotels) and Motels

72112 Casino Hotels

812331 Linen Supply

812332 Industrial Launderers

92214 Correctional Institutions

This table is not intended to be exhaustive, but rather provides a guide for readers 

regarding facilities likely to be covered by this action. This table lists the types of 

facilities that EPA is now aware of that could potentially be affected by this action. 
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Other types of facilities not listed in the table could also be subject to reporting 

requirements. To determine whether your site is affected by this action, you should 

carefully examine the applicability criteria found in the regulation text of this rule. If you 

have questions regarding the applicability of this action to a particular site, consult the 

person listed in the preceding “FOR FURTHER INFORMATION CONTACT” 

section.

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

Do not submit information containing CBI to EPA through www.regulations.gov

or e-mail. Direct your comments to Docket ID No. EPA-HQ-OAR-2008-0201. EPA's 

policy is that all comments received will be included in the public docket without change 

and may be made available online at http://www.regulations.gov, including any personal 

information provided, unless the comment includes information claimed to be CBI or 

other information whose disclosure is restricted by statute.

If you submit an electronic comment, EPA recommends that you include your 

name and other contact information in the body of your comment and with any disk or 

CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and 

cannot contact you for clarification, EPA may not be able to consider your comment. 

Electronic files should avoid the use of special characters, any form of encryption, and be 

free of any defects or viruses.

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

All documents in the docket are listed in the http://www.regulations.gov index. 

Publicly available docket materials are also available in hard copy at the Air Docket, 

EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. This 
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Docket Site is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 

holidays. The telephone number for the Public Reading Room is (202) 566-1744

D. Abbreviations Used in This Document 

Combined Heat and Power (CHP)

Commercial Buildings Energy Consumption Survey (CBECS)

Commercial Energy Profile Database (CEPD)

Confidential Business Information (CBI)

Detailed Quantitative Information (DQI)

Energy Independence and Security Act of 2007 (EISA) 

Energy Policy and Conservation Act (EPCA)

Federal Energy Regulatory Commission (FERC)

Freedom of Information Act (FOIA)

Greenhouse Gas (GHG)

Kilowatt (kW)

Megawatt (MW)

Million British Thermal Units (MMBtu)

Million metric tons of carbon dioxide (MMTCO2)

New Source Performance Standards (NSPS)

North American Industry Classification System (NAICS)

National Emissions Inventory (NEI)

Operation and Maintenance (O&M)

Registry of Recoverable Waste Energy Sources (Registry)

Standard Cubic Feet per Minute (scf/min)
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U.S. Environmental Protection Agency (EPA)

U.S. Environmental Protection Agency Combined Heat and Power Partnership (EPA 

CHPP)

Waste Energy Survey Tool (WEST)

II. Background Information

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

On December 19, 2007 the President of the United States signed the Energy

Independence and Security Act of 2007 (EISA) which was designed to improve vehicle 

fuel economy and help reduce US dependence on oil. 

Title IV of EISA contains extensive new provisions designed to save energy in 

buildings and industries. EISA Subtitle D focuses on industrial energy efficiency and 

contains new provisions designed to improve energy efficiency by promoting combined 

heat and power (CHP), waste energy recovery, and district energy systems. 

This proposed rule addresses the U.S. Environmental Protection Agency’s (EPA) 

obligation under EISA to publish a rule within 270 days of EISA enactment that 

establishes the criteria by which sources or sites will be listed in a Registry of 

Recoverable Waste Energy Sources (Registry). 

The rule also addresses the related EPA obligation under EISA to develop an 

ongoing Survey of major domestic industrial and large commercial sources as well as the 

sites at which the sources are located, and to conduct a review of each source for the 

quantity and quality of potential waste energy produced. This Survey is a necessary first 

step to gather the data needed to establish the Registry. EISA also directs EPA to 

establish the Registry within one year of EISA enactment.
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The purposes of the Survey and Registry are to: 

1. Provide a list of the economically feasible existing waste energy recovery

opportunities in the US based on a Survey of major industrial and large 

commercial sources; 

2. Provide state and national totals of the existing waste energy recovery

opportunities, as well as the potential criteria pollutant and greenhouse gas 

emissions reductions that could be achieved with the capture and use of the waste 

energy recovery opportunities listed in the Registry; 

3. Serve as the basis for potential waste energy recovery projects to qualify for 

financial and regulatory incentives as described in Energy Policy and 

Conservation Act (EPCA) Sections 373 “Waste Energy Recovery Incentive Grant 

Program” and 374 “Additional Incentives for Recovery, Use, and Prevention of 

Industrial Waste Energy,” as added by EISA.

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

EISA Title IV Subtitle D amends the Energy Policy and Conservation Act (EPCA) by

adding a new Part E, titled “Industrial Energy Efficiency,” to Title III of EPCA (42 

U.S.C. 6291 et. seq). The new EPCA Section 372 directs EPA to establish a “recoverable 

waste energy inventory program,” which is to include “an ongoing Survey of all major 

industrial and large commercial combustion sources in the United States (as defined by 

the Administrator) and the sites at which the sources are located,” as well as “a review of 

each source for the quantity and quality of waste energy produced at the source.” Section 

372 further provides that EPA is to publish a rule to establish criteria for including sites

in a Registry of Recoverable Waste Energy Sources within 270 days of EISA enactment 
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(September 19, 2008) and to establish the Registry not later than one year after enactment

(December 19, 2008).

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

Efforts?

This rulemaking and Registry complement EPA’s existing voluntary program, the 

Combined Heat and Power Partnership (EPA CHPP). EPA established EPA CHPP in 

October 2001 in response to President George W. Bush’s 2001 National Energy Policy

Report, which identified CHP as an efficient, clean power generation technology that 

should be encouraged. The EPA CHPP is a voluntary effort to reduce the environmental 

impact of power generation by promoting the use of CHP. The EPA CHPP has over 250 

Partners, including energy users, project developers, state agencies, and energy service 

companies. Between 2001 and 2007, the EPA CHPP has assisted its Partners with 335 

projects representing 4,450 megawatts of new, environmentally-beneficial and costeffective CHP capacity. On an annual basis, these projects will prevent the emission of 

more than 10.93 MMTCO2. Resources permitting, EPA will leverage the EPA CHPP to 

provide technical assistance to the owners or operators of sources or sites in the Registry, 

regarding the optimum means of recovery of value from the waste energy stream, as 

directed under EPCA Section 372(g) “Optimum Means of Recovery.”

III. Summary of the Proposed Rule

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

1. What Are the Key Definitions and Interpretation?

As added by EISA, Section 371 of EPCA defines several important terms, 

including “combined heat and power,” “project,” “recoverable waste energy,” “useful 
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thermal energy,” and “waste energy.” EPA is proposing to use the same definitions of 

“combined heat and power,”

1

“project”, “recoverable waste energy” and “useful thermal 

energy” as stated in EPCA Section 371.

As defined in EPCA Section 371, the term ‘waste energy’ includes three specified forms 

of waste energy as well as “[s]uch other forms of waste energy as the Administrator may

determine.” EPA is providing examples of the three specified forms of waste energy

below:

“(A) Exhaust heat or flared gas from any industrial process;”

Examples of part A of the definition of waste energy may include high temperature 

exhaust streams from glass melters, cement kilns, and pipeline compressor turbine drives.

“(B) Waste gas or industrial tail gas that would otherwise be flared, incinerated, or 

vented;”

Examples of part B the definition of may include chemical and/or refinery off gases with 

combustible content, anaerobic decomposition gases from food processing wastes, and

combustible off gases from coke ovens.

“(C) A pressure drop in any gas, excluding any pressure drop to a condenser that 

subsequently vents the resulting heat; and”

Examples of part C of the definition of waste energy may include high pressure steam 

generated in a boiler that is subsequently reduced in pressure before being used in an 

industrial process or building heating system. 

 

1 Other definitions of “combined heat and power” and “cogeneration” in the Clean Air Act can be found at: 

40 CFR 60.41Da, 40 CFR 60.41b Subpart Db, 40 CFR 60.4420 Subpart KKKK, 40 CFR 97.102 Subpart 

AA, 40 CFR 97.202 Subpart AAA, 40 CFR 97.302 Subpart AAAA 
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The definition of waste energy also includes “(D) Such other forms of waste 

energy as the Administrator may determine.” EPA is proposing a determination that 

waste energy include the potential opportunity for combined heat and power (CHP). In 

part, this is based on the statutory structure. EPCA Section 372 directs EPA to establish a 

Recoverable Waste Energy Inventory Program that includes a Survey and a Registry of 

Recoverable Waste Energy Sources. Section 372 is housed in Part E of EPCA, which is 

titled Industrial Energy Efficiency. Congress defined CHP for Part E of EPCA but did 

not include CHP-specific provisions in Part E. This suggests that Congress expected that 

EPA would consider opportunities for including CHP in the scope of the Survey and 

Registry. EPA believes it is appropriate to include CHP opportunities because doing so 

is consistent with the EISA goal of promoting the recovery of waste energy. In addition, 

CHP is inherently an energy efficiency measure where energy that is usually lost is 

recovered for useful purposes. This simultaneous generation of electricity and recovery

of useful thermal energy from a single fuel source is more efficient than separate 

generation of power and thermal energy. Including potential CHP opportunities in the 

Registry will encourage more widespread consideration of this efficiency approach.

EISA Section 372 uses the terms “facility” and “site” interchangeably; for clarity, 

the proposed regulation uses “site” to refer to “a building or group of buildings that 

provides a particular service or is used for a particular industrial application.” References 

in this document to a “facility” should be understood as referring to the “site.” EPA is 

proposing to define “source” as “any process or activity resulting in the release of waste 

energy.” A site may have multiple sources. 

 Section 372 uses the terms “major industrial combustion source” and “large 
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commercial combustion source” to refer to the types of sources to be included in the 

Survey. EPA has not included the word “combustion” in the regulatory definitions 

because not all the sources to be surveyed are commonly thought of as combustion 

sources. While combustion does occur at all sources within the Survey scope, including 

at universities with on-site generation, stakeholders may have a narrow perception of 

what major industrial sources and large commercial combustion sources are. Thus, this 

proposed regulation uses “major industrial source” and “large commercial source.” This 

regulation also uses the term “large commercial source” to include institutions and multifamily housing.

2. What Are the Survey and Registry Scope?

The scope of the Survey and Registry will be based on the thresholds for major 

industrial and large commercial sources as proposed in this rule. EPA expects to contact 

approximately 17,000 facilities based on the initial thresholds proposed in this rule. Not 

all of these facilities will have sources that meet the secondary thresholds. The Survey

results will directly affect the Registry scope; EPA will use them to populate the 

Registry. The Survey EPA is proposing is an internet-based Survey, the Waste Energy

Survey Tool (WEST), which would be downloaded by owners or operators of the sites or 

sources (the respondents). The respondents would enter data into WEST to be used to 

determine the potential waste energy recovery opportunity of the source. For more 

information on the proposed Survey questions, see the Technical Support Document –

Waste Energy Survey Tool in the docket. Once a respondent has completed the Survey, 

WEST would generate a final summary report, which the respondent would subsequently

submit to EPA via mail or email. 
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WEST calculates the potential recoverable waste energy from each source using 

embedded algorithms based on the criteria proposed in this rule, using data provided by 

the site owner or operator. Sources or sites that meet the criteria included in this 

proposed rule would be included in the Registry. For more information on how the 

proposed Survey questions will allow WEST to calculate the payback for a potential 

waste energy recovery project, see the Technical Support Document – Economic Payback 

Calculation in the docket.

EPA is proposing to include the following information for each site in the 

Registry: 

a. Site name, address, NAICS code;

b. Site contact person name, title, address, phone number, email address;

c. The total waste energy recovery potential at the site; and

d. Date the listing was posted in the Registry.

EPA believes that the Registry, containing this information, will provide the site or 

source, the Agency, and private project developers of waste energy recovery systems 

valuable data on potential waste energy recovery opportunities that have been assessed by

WEST. The Registry will not include detailed quantitative information as defined in this 

rule. The information EPA is proposing to include in the Registry is the minimum 

information needed for site or source operators or owners, and private project developers 

of waste energy recovery systems, to be aware that a potential waste energy recovery

project has met the criteria included in this rule and facilitate conversations between 

private parties to pursue the capture and use of the potential waste energy. 
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As directed by EPCA Section 372(d)(2), EPA is also proposing to include in the 

Registry, nationally and by state, the total quantities of potentially recoverable waste 

energy from sources at the sites in the Registry, as well as the criteria pollutant (NOx, 

SOx) and greenhouse gas (GHG) emissions savings that might be achieved with recovery

of the waste energy from all sources and sites listed in the Registry. 

3. How is EPA Limiting the Scope to Economically Feasible Projects?

EPCA Section 372(b) states that the Administrator shall publish a rule for 

establishing criteria for including sites in the Registry. EPCA Section 372(b)(2) states 

that the criteria shall include:

“(A) a requirement that, to be included in the Registry, a project at the site shall be 

determined to be economically feasible by virtue of offering a payback of invested 

costs not later than 5 years after the date of first full project operation (including 

incentives offered under this part);”

EPA interprets EPCA Section 372(b)(2) as setting an overarching intent of the 

Survey and Registry to capture economically feasible projects. As such, EPA is 

proposing to limit the Survey scope (i.e. those entities EPA will contact regarding the 

Survey) to those types of waste energy projects that have demonstrated commercial 

feasibility in the marketplace. If other types of waste energy projects become 

commercially feasible, as demonstrated by the market, EPA may expand the scope of 

subsequent editions as appropriate.

EPA has identified one instance in which a form of waste energy described in the 

EPCA Section 371 definition of waste energy is not currently commercially feasible. As 

previously discussed, the EPCA Section 374 definition of waste energy includes “A 
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pressure drop in any gas, excluding any pressure drop to a condenser that subsequently

vents the resulting heat.” High pressure gas streams such as natural gas in interstate 

pipelines or steam generated in high pressure industrial boilers are often reduced in 

pressure for specific uses (such as natural gas entering the low pressure local distribution 

system or lower pressure steam needed for an industrial process) through the use of a 

pressure regulator, which is essentially a valve that controls the output pressure. Pressure 

regulators can be replaced with expansion turbines to capture some of the energy

currently lost in the pressure reduction process. Expansion turbines, also known as 

turboexpanders, generate shaft power while expanding high pressure gas to a lower 

pressure. Expanders are commonly used in air separation, Liquefied Natural Gas and 

hydrocarbon processing applications where steady pressure ratios and flows, and high 

load factors are common. 

A review of the literature indicates two primary opportunities for generating 

significant amounts of power through pressure drop recovery:

2

1) the use of backpressure steam turbines to generate power when there is a substantial difference between 

the pressure of the steam produced at the boiler and the pressure of the steam ultimately

required in the process or heating system, and 2) the use of turboexpanders to generate 

power when natural gas in high pressure transmission pipelines is reduced in pressure for 

local distribution networks. As described below, turboexpander installations to generate 

power when natural gas in high pressure transmission pipelines is reduced in pressure for 

local distribution networks are not commercially feasible today; however, research shows 

 

2 Owen Bailey, Ernst Worrell, “Clean Energy Technologies: A Preliminary Inventory of the Potential for 

Electricity Generation”, Lawrence Berkeley National Laboratories, LBNL-57451, April 2005. Energetics, 

Inc., E3 Inc., “Energy Use, Loss and Opportunities Analysis: U.S. Manufacturing and Mining”, Report 

for U.S. DOE, December 2004
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that back-pressure steam turbines are currently being used for commercially feasible 

energy recovery projects.

The natural gas industry has periodically evaluated the viability of using 

turboexpanders to recover useful energy from the pressure drop in the form of shaft 

horsepower which could generate electricity for internal use or for sale to the electric 

grid. There are currently no known commercial turboexpander installations generating 

electricity at city gates in the U.S. pipeline system.

3

 Projects have not been economically 

feasible in today’s environment due to a combination of high capital costs, wide 

variations in flow and pressure ratio at pressure reduction stations impacting 

turboexpander performance, and the subsequent low purchased electricity prices for the 

type of power produced.

4

Given the current state of the art in technology as described above, EPA is 

proposing that pressure recovery from the natural gas pipeline system be excluded from 

the first edition of the Survey scope. This does not prevent owners or operators of natural 

gas pipeline systems from downloading and submitting Survey reporting information

without request from EPA; as long as the source or site meets the criteria, it will be

included in the Registry. Backpressure steam turbine energy recovery will be included in 

the Survey scope.

This interpretation of Section 372(d) relates solely to the Survey scope. The 

application of the “economic feasibility” criterion on a project-by-project basis is 

described in this document at Section B(4). 

 

3 The city gate is a point or measuring station at which a natural gas distribution company receives natural 

gas from a pipeline company or transmission system.

4

ICF International, “Waste Energy Recovery Opportunities for Interstate Natural Gas Pipelines”, report for 

the Interstate Natural Gas Association of America (INGAA), February 2008
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4. What Are the Survey and Registry Schedules?

EPA is proposing that the Survey be completed by owners or operators of affected 

sources anytime following release of WEST. The Agency expects WEST to be released 

within 90 days of the final rule being published in the Federal Register. Submissions 

received within 60 days of WEST being released would be included in the initial launch 

of the Registry. Additional submissions received within the first three years following 

release of WEST would be included, on a rolling basis, in the first edition of the Registry.

Following the release of WEST, affected sites and sources can submit the Survey

reporting information to the Agency at any time. Sites meeting the initial thresholds as 

defined in this rule for major industrial and large commercial sources and that are in the

list of affected NAICS codes, as provided above under Supplementary Information,

would receive the request from EPA to download and complete the Survey as described 

in this rule. Sites or sources that submit Survey reporting information would be included 

in the Registry if they meet the criteria proposed in this rule, whether or not EPA notified 

them of the Survey. EPA may contact the respondent to discuss their submission if it 

appears inaccurate. 

EPCA Section 372(e) provides that an owner, operator or third-party developer 

may self-certify their sites and sources “[s]ubject to any procedures that are established 

by the Administrator.” It further provides that “a site or source shall be included in the 

Registry only if the Administrator reviews and approves the self-certification.” EPA is 

proposing to allow owners and operators, as well as third-party developers acting jointly 

with an owner or operator, to complete the Survey and submit the Survey results to EPA 

at any time. EPA believes this meets the intent of Section 372(e) while avoiding the need 
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for a separate self-certification process. The Survey and Registry approach are 

constructed such that all Survey responses are generated by the algorithms embedded in 

the Survey tool (which are developed by EPA), regardless of when they are received by

EPA. In addition, the Survey tool will be designed to not generate a final summary report 

if there are missing or incomplete fields. As such, the Agency is not proposing to create 

an option for self-certification. EPA invites comment on this approach.

EPA is proposing that the Survey and Registry be formally updated on a threeyear schedule (each formal update will be treated as a new edition). The Registry update 

will be accomplished through an updated Survey issued by the Agency every three years. 

The Agency is proposing a three-year schedule based on a number of factors, including 

the time necessary to develop waste energy projects following the release of the first 

edition of the Registry and a desire to limit the frequency with which respondents are 

directed to complete and return a Survey to EPA. Based on experience of the EPA 

CHPP, a typical CHP project development cycle is three to five years and it is reasonable 

to assume that other waste energy projects have a similar development cycle.

EPA invites comment on this proposed schedule for formally updating the 

Registry and issuing a new Survey.

B. Survey

1. What Is the Rationale Behind the Survey Approach?

In considering the potential approaches, EPA decided that an internet-based 

Survey, such as WEST, would be most effective at providing EPA the site-specific 

source data necessary to accomplish the review of each source for the quantity and 

quality of waste energy produced. WEST would also provide owners or operators the 
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ability to retain confidential or sensitive business data that could be exploited for 

competitive advantage by requiring only the Survey output to be submitted to EPA. In

addition, WEST would not allow a respondent to submit an incomplete Survey response

(will not calculate the final summary report), thereby reducing burden on EPA and the 

respondent by avoiding the need for additional interaction on the completeness of the 

Survey response.

EPA is proposing that WEST be downloaded from the internet to the respondent’s 

computer. If a respondent is unable to download the Survey tool, the respondent can 

contact EPA for alternate submission instructions (consult the person listed in the 

preceding “FOR FURTHER INFORMATION CONTACT” section). All information 

which EPA reasonably expects might be covered by a claim of confidentiality or 

otherwise be considered sensitive would remain on the respondent’s computer. WEST 

will generate a final summary report based on that information using embedded 

algorithms and the respondent will submit the final summary report to EPA, which

should not contain any sensitive business information. EPA is proposing WEST over a 

traditional Survey because the Agency will not need to collect any confidential or 

sensitive business information to accomplish the requirements of EISA. In addition, EPA 

believes the necessary information can be collected more efficiently and at a lower cost 

using WEST.

EPA considered alternatives to the proposed data collection approach. EPA

considered utilizing the National Emissions Inventory (NEI) for the source specific 

information necessary for the Survey and Registry, but determined that NEI did not 

provide the type of information necessary for four primary reasons: NEI does not include 
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data for waste gas streams or pressure drops so would not provide data for all types of 

waste energy, as described in Section A(1) of this preamble; NEI does not contain

complete data sets; NEI contains data anomalies; and NEI data is not consistent across 

the states as to what specific information is included. EPA is requesting comment on the

proposed data collection approach.

2. What Are the Major Industrial and Large Commercial Thresholds?

EPA is proposing an initial and a secondary threshold for major industrial 

sources, and an initial and a secondary threshold for large commercial sources. The 

initial thresholds are used to determine which sites within the list of affected NAICS 

codes should expect to receive the Survey. The secondary thresholds are used by the 

sites that receive the Survey to determine if they have sources with characteristics 

suitable for a potential waste energy recovery opportunity. The proposed thresholds are:

a. Major Industrial Sources

• Initial threshold – site with 100 MMBtu/hour fuel use; 

• Secondary threshold – process stacks with temperatures 500o F or greater, flow 

rates greater than 7,000 to 50,000 scf/min depending on temperature, and 

minimum operating hours of 4,500 hrs/yr.

b. Large Commercial Sources

• Initial threshold – site with 1 MW average electric annual demand or 5 

MMBtu/hour fuel input; 

• Secondary threshold – minimum thermal or cooling load of 2.5 MMBtu/hour or 

150 Tons, and minimum operating hours of 4,500 hrs/yr.
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EPA is also proposing definitions of “major industrial source” and “large 

commercial source” that utilize these thresholds.

EPA is proposing that sources located at sites that do not meet the initial 

thresholds can complete the Survey if they meet the appropriate secondary threshold. 

The initial thresholds are intended to focus the Survey scope on those sites most likely to 

have sources that meet the criteria; they are not intended to prevent owners or operators 

of other sites from completing the Survey. If these sources or sites meet the secondary

thresholds and all other criteria established in this rule, they would be placed in the 

Registry. 

EPA considered establishing an initial threshold for major industrial sources, an 

initial threshold for large commercial sources, and sector-specific secondary thresholds 

based on NAICS codes. EPA believes that sector-specific thresholds are unnecessary

since there are general considerations for waste energy opportunities, such as availability, 

temperature and flow rate, which are applicable across sectors.

In the development of thresholds, EPA considered the EISA obligation to survey

all major industrial and commercial sources. EPA reviewed existing thresholds from 

other EPA regulations, including the New Source Performance Standards (NSPS), which

could be used to denote major industrial or large commercial sources. EPA also reviewed 

relevant databases for other applicable thresholds. The threshold development also 

included reviewing existing analysis of waste energy projects by the EPA CHPP. 

The proposed major industrial initial threshold of 100 MMBtu/hr is the NSPS

threshold for industrial boilers. This NSPS, titled “Standards of Performance for 

Industrial-Commercial-Institutional Steam Generating Units,” is available for reference at 
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40 CFR 60.40b. The proposed large commercial initial threshold of 1 MW average 

electric annual demand or 5 MMBtu/hour is reflective of the size of facilities associated 

with existing CHP commercial projects included in existing databases. These databases 

include the U.S. Department of Energy’s Commercial Buildings Energy Consumption 

Survey (CBECS), CHP Installation database5and private databases including the IHS 

Commercial Energy Profile Database (CEPD). 

EPA lacks data to definitively estimate the waste energy potential of major 

industrial and large commercial sources, the number of facilities or the individual 

facilities where this potential is located. This is likely a driver behind Congress’ intent in 

obligating EPA to conduct an ongoing survey of all major industrial and large 

commercial sources for the quantity and quality of waste energy produced at the source. 

Given the current uncertainty regarding potential waste energy recovery opportunities, 

EPA is relying on existing databases and analyses for supporting information in 

establishing the Survey scope.

Based on the existing databases and analyses, there are approximately 8,000-

12,000 combined commercial facilities above 1 MW of average electric demand and 

industrial facilities above 100 MMBTU/hr fuel use. Based on a review of existing CHP 

projects at industrial facilities, projects of 20 MW or greater represent 95 percent of total 

installed industrial CHP capacity. The profile of existing industrial CHP also shows that 

the larger industrial fuel consumers most likely represent a majority of the economically 

feasible CHP potential in terms of MW capacity. As stated above, there are no 

corresponding data sets for the other waste energy categories; however EPA believes it is 

reasonable to assume that the profile of opportunities for these waste energy categories 

 

5

ICF International, http://www.eea-inc.com/chpdata/index.html
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would be similar to the CHP profile. Based on a review of the existing CHP profile for 

commercial applications, 1 MW and greater is the most economically feasible market 

with current technology and market conditions. CHP projects of 1 MW or larger 

represent 97 percent of the existing CHP capacity in the commercial sector. For 

supporting information on these thresholds, see the Technical Support Document -

Evaluation of Initial Thresholds for the Registry of Recoverable Waste Energy Sources 

and for the Survey of Major Industrial and Large Commercial Sources in the docket.

EPA is requesting comment on the major industrial and large commercial 

thresholds.

3. What Is Detailed Quantitative Information and How Is it Applicable to the 

Survey and Registry?

Under EPCA Section 372(c)(3)(B) “the owner or operator of a source at a site 

may elect to have detailed quantitative information (DQI) concerning the site not made 

public” by notifying EPA of the election. This section also states that DQI shall be made 

available to the applicable State energy office and utility requested to support recovery of 

waste energy from the source or site pursuant to the incentives provided under EPCA 

Section 374. Respondents should note that while DQI will not appear in the Registry, 

there is potential for it to be disclosed through other means pursuant to EPCA Section 

372. DQI is a term created by EPCA Section 372(c)(3)(B)(ii) or EPA’s Freedom of 

Information Act (FOIA) regulations. 

Section 374 allows a project owner or operator that is in the Registry to request 

that their State regulatory authority or nonregulated electric utility provide public notice, 

conduct a hearing, and make a determination whether or not it is appropriate to 
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implement the regulatory incentives contained within this Section. These regulatory

incentives allow an owner or operator of a waste energy recovery project identified in the 

Registry that generates net excess power to be eligible to benefit from at least one of the 

options described in Section 374 subsection (c) for disposal of the net excess power in 

accordance with the rate conditions and limitations described in Section 374 subsection 

(d).

As previously described, EPA is proposing to include the following information 

for each site in the Registry: 

a. Site name, address, NAICS code;

b. Site contact person name, title, address, phone number, email address;

c. The total waste energy recovery potential at the site; and

d. Date the listing was posted in the Registry.

EPA does not consider the types of information listed above to be DQI. The 

proposed Survey would not include an option for respondents to claim the information 

listed above as confidential business information (CBI) because the public availability of 

such information is crucial to fulfilling the purpose of the Registry. Since Congress 

directed that the Registry contain site level information, the above listed information is 

critical to identifying the site with the waste energy recovery opportunity based on the 

Survey data. The remaining outputs from the Survey are important for EPA to determine 

whether the site has met the criteria for inclusion in the Registry; however, their posting 

in the Registry is not crucial to the Registry’s operation. For simplicity, EPA proposes to 

treat the remaining Survey outputs as DQI. EPA will not post DQI in the Registry. 
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Respondents should be aware that EPCA Section 372 provides for the disclosure 

of DQI to “the applicable State energy office” and “any utility requested to support 

recovery of waste energy from the source” under Section 374. In addition, EPA could 

receive a request to release DQI under the Freedom of Information Act (FOIA). While 

the proposed Survey is designed to avoid the transmission to EPA of information for 

which facilities might be expected to assert a claim of confidentiality, respondents will 

nonetheless have the option of asserting such a claim for all or part of their DQI. 

Information covered by such a claim will be disclosed by EPA only to the extent, and by

means of the procedures, set forth in EPA’s Confidential Business Information (CBI) 

regulations at 40 CFR part 2 subpart B.

EPA is proposing to define DQI as the following Survey output with respect to 

individual sources at a site: 

(1) Source description (e.g., glass furnace, process flare); 

(2) Quantitative estimates of:

 For each source, the CO2 emissions reduction potential (tons/year)

 For each source, the criteria pollutant reduction potential (NOx and SOx tons/yr)

 For waste heat sources, the waste heat to power recovery potential (MW)

 For waste gas sources, the waste gas to power recovery potential (MW)

 For pressure drop sources, the pressure drop to power recovery potential (MW) 

 For CHP potential, the CHP potential based on sizing to thermal (heating and/or 

cooling) load (MW)

(3) Yes/no answers to the following questions:
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 For each waste heat source, combustible source, pressure drop source, and potential 

CHP opportunity, does the potential project have a five year payback or less (yes/no)

 For each waste heat source, combustible source, pressure drop source, and potential 

CHP opportunity, does the potential project meet the primary purpose criteria 

(yes/no)

 For each new source, does the potential project meet the 60% efficiency test (yes/no) 

 For each waste heat source, does the site have a waste heat recovery opportunity that 

passes all screening criteria (yes/no)

 For each waste gas or industrial tail gas source, does the site have a waste gas or 

industrial tail gas recovery opportunity that passes all screening criteria (yes/no)

 For each pressure drop source, does the site have a pressure drop recovery

opportunity that passes all screening criteria (yes/no)

 For each potential CHP opportunity, does the site have a CHP opportunity that passes 

all screening criteria (yes/no)

For more information on the proposed Survey questions, see the Technical 

Support Document – Waste Energy Survey Tool in the docket. 

A State energy office may request DQI for a specific site in its state by submitting 

a request to EPA via mail (address at www.epa.gov/wasteenergyregistry) or email at 

wasteenergyregistry@epa.gov. Email requests may include the subject line “State energy

office DQI request.” All DQI requests shall include: the requesting state energy office 

name, address, city, State, contact person, and the site or source name, address, and 

NAICS code as displayed in the Registry.
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A utility may request DQI for a specific site in its service territory to support 

recovery of waste energy from the source pursuant to the incentives provided under 

EPCA Section 374 by submitting a request to EPA via mail (address at 

www.epa.gov/wasteenergyregistry) or email at wasteenergyregistry@epa.gov. Email 

requests may include the subject line “Utility DQI request.” All DQI requests shall 

include the utility name, address, city, State, and NAICS code of the site, as displayed in 

the Registry. 

Since Section 372(c)(3)(B) states that utilities may request DQI in the context of

supporting recovery of waste energy from the source/s pursuant to the incentives 

provided under EPCA Section 374, EPA urges utilities making such a request to include 

supporting information that the project has requested a hearing under Section 374. 

Supporting information could take the form of notification from the applicable State 

regulatory authority that the project has requested a hearing or other similar 

documentation. To minimize the burden, supporting information can include a Web site 

address where documentation is readily available. EPA may not be able to release DQI 

without such supporting information.

EPA is requesting comment on the information proposed to be considered DQI .

4. What Is the Approach to Determine if a Potential Waste Energy Recovery

Project Has a Five-year Payback or Less?

EPCA Section 372(b)(2)(A) states that EPA’s criteria for inclusion in the Registry

shall include:

“a requirement that, to be included in the Registry, a project at the site shall be 

determined to be economically feasible by virtue of offering a payback of 
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invested costs not later than 5 years after the date of first full project operation 

(including incentives offered under this part);”

EPA is proposing to use WEST to determine if the site has economically feasible 

potential energy recovery project/s based on the 5 year financial payback requirement 

described above. WEST will include algorithms for estimating simple paybacks for 

waste energy recovery projects based on the site and source information requested of 

each site in the Survey. Simple payback for a waste energy recovery project would be

calculated by dividing the total installed cost of the project by the projected annual 

savings of the project. The annual savings would be estimated by calculating potential 

savings from reduced purchases of electricity (essentially the electricity generated by the 

waste energy recovery system times the average purchase price for electricity at the site) 

less any incremental operating costs required by the project (for example, operating and 

maintenance [O&M] costs for the energy recovery equipment or incremental fuel use for 

CHP projects). 

Section 372 requires that the payback determination include any financial 

incentives established in Part E of EPCA. The only financial incentives included in Part 

E are in Sections 373 and 374. 

EPCA Section 373 directs the Department of Energy to establish a waste energy 

recovery incentive grant program to provide incentive grants to:

“(a)(1) owners and operators of projects that successfully produce electricity or 

incremental useful thermal energy from waste energy recovery;

(2) utilities for purchasing or distributing the electricity; and
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(3) States that have achieved 80 percent or more of recoverable waste heat recovery

opportunities.”

EPCA Section 374 allows a project owner or operator to request that their State 

regulatory authority or nonregulated electric utility “provide public notice and conduct a 

hearing” with regard to the standard for sales of excess power described in Section 374(b, 

and “on the basis of the hearing, consider and make a determination whether or not it is 

appropriate to implement” that standard. 

Under Section 374(b), the standard for sales of excess power ”shall provide that 

an owner or operator of a waste energy recovery project identified in the Registry that 

generates net excess power shall be eligible to benefit from at least one of the options 

described in subsection (c) for disposal of the net excess power in accordance with the 

rate conditions and limitations described in subsection (d).” The options include: 1) sale 

of net excess power to utility; 2) transport by utility for direct sale to third party; 3) 

transport over private transmission lines.

Because Section 374 does not contain quantified financial incentives, EPA is 

proposing not to include Section 374 incentives in the payback determination. Section 

374(d) describes how the regulatory incentives will be offered under purchase and 

transport rate conditions that reflect the rate components defined in that section. 

The only financial incentives quantified in Section 373 for owners and operators 

of waste energy recovery projects are those described in Section 373(b). First, Section 

373(b)(3)(A) provides for a grant at the rate of $10/MWh of “documented electricity 

produced from recoverable waste energy.” This grant is limited to the first three calendar 

years of electricity production. Second, Section 373(b)(4) provides for a grant at the rate 
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of $10/3,412,000 Btus of excess thermal energy “used for a purpose different from that 

for which the project is principally designed.” EPA is proposing to add these financial 

incentives to the projected annual savings of the potential waste energy project. These 

financial incentives would be paid to the owners or operators of waste energy recovery

projects 

The algorithms embedded in WEST will estimate total installed costs, incremental 

O&M costs, electricity generated, and incremental fuel use and cost for each potential 

waste energy recovery project at a responding site. Each of these estimates will be based 

on rules of thumb for sizing, efficiency, and costs that are specific to each of the potential 

waste energy recovery categories (e.g., waste heat recovery, waste gas recovery, pressure 

drop recovery, CHP). While the performance and cost estimates will vary by category, 

the calculation of payback itself will be similar. For more information, see the Technical 

Support Document – Economic Payback Calculation in the docket.

5. What Is the Approach to Ensure Projects Proposed for Inclusion in the 

Registry Are Not Developed or Used for the Primary Purpose of Making Sales 

of Excess Electric Power Under the Regulatory Provisions of Subtitle D Part 

E?

EPCA Section 372(b)(2)(B) directs EPA to establish criteria for including sites in 

the Registry and specifically directs EPA to include criteria on “standards to ensure that 

projects proposed for inclusion in the Registry are not developed or used for the primary 

purpose of making sales of excess electric power under the regulatory provisions of this 

part.” EPA interprets the “regulatory provisions of this part” as a reference to EPCA Part 

E - Industrial Energy Efficiency, Section 374 – Additional Incentives for Recovery, Use 
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and Prevention of Industrial Waste Energy. Section 374 is the only section of Part E that 

contains regulatory provisions concerning the sale of excess power. 

In proposing regulatory language consistent with EPCA Section 372(b)(2)(B) (the 

“primary purpose” criterion), EPA is looking to balance the Congressional directive to 

conduct a Survey and establish a Registry of recoverable waste energy sources and sites 

on which the sources are located, with the goal of ensuring that proposed projects have 

legitimate thermal and electric uses, and are not designed with the purpose of maximizing 

electric sales to the utility under EPCA Section 374. EPA recognizes that there is an

existing body of regulatory decisions by State regulatory authorities and the Federal 

Electric Regulatory Commission (FERC) related to cogeneration facilities thermal output 

being used in a productive and beneficial manner, as well as other regulatory decisions on 

the purchase of excess electricity by utilities. EPA also recognizes that in certain 

industries and situations (such as chemical and refining), the thermal demand is 

sufficiently large that thermally-based CHP or waste heat recovery projects would 

generate more electricity than can be used on-site. In such cases, sale of excess 

electricity to the utility is a prerequisite to maximize energy and carbon savings, and 

optimize project economics. EPA also recognizes that 12 states currently recognize 

waste heat recovery or CHP as an eligible resource in their Renewable Portfolio 

Standard, Energy Efficiency Portfolio Standard or Alternative Energy Portfolio 

Standard.6

 

6

EPA Combined Heat and Power Partnership. Energy Portfolio Standards and the Promotion of Combined 

Heat and Power. http://www.epa.gov/chp/documents/eps_and_promotion.pdf
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To strike the balance described above, EPA is proposing that for a potential waste 

energy project to be included in the Registry, it must meet one of the following primary

purpose criteria:

i) At least 50 percent of the aggregated annual energy output of the site (as 

defined in this rule) is to be used for industrial or commercial purposes, and 

not sold to an electric utility (“the 50 percent threshold”); or

ii) The site is located in a State where the appropriate regulatory authority has 

made a state-wide determination under EPCA Section 374 not to implement 

the regulatory sale of excess power provisions in EPCA Section 374. This 

waiver of the 50 percent threshold is applicable until the state regulatory

authority reverses or removes its decision; or

iii) The owner or operator of the site submits a joint petition with the local electric 

utility that serves the site to the Director of the Office of Atmospheric 

Programs of the EPA, requesting that the 50 percent threshold be waived.

EPA is proposing to define “aggregated annual energy output of the site” as the 

total useful output of the fuel driving the source, including electricity produced by a 

project and thermal energy recovered in or driving the project. For CHP, the aggregate 

annual energy output would be the sum of the electricity generated and the useful thermal 

energy recovered on an annual basis. For other types of waste energy recovery projects, 

the aggregated annual energy output of the project would be the sum of the thermal 

energy used by the furnace or chemical process that generated the waste heat and the 

annual electricity generated by the recovery system. As an example, the thermal energy

requirements of a furnace that is generating a hot exhaust stream that could potentially be 
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recovered as electricity would be estimated by the furnace efficiency multiplied by the

total fuel input to the furnace. In the case of an exothermic chemical reaction, the 

thermal energy requirements of the process would be equal to the energy released by the 

exothermic reaction (estimated by the amount of heat available for recovery). EPA is 

requesting comment on this proposed definition and on the primary purpose criteria.

“Primary purpose” criterion (i) is designed to determine whether a majority of the 

total energy output of the potential waste energy recovery project has the potential to be 

used at the site. A similar approach has been implemented by FERC in Docket RM05-

36-000, Order 671 (February 2, 2006), which is available in the docket for this action. 

Order 671 establishes a safe harbor for new cogeneration systems seeking Qualifying 

Facility status (18 CFR 292.205(d)). This safe harbor provision requires a demonstration 

that at least 50 percent of the aggregated annual energy output of the cogeneration project 

is to be used for industrial, commercial, residential or institutional purposes (essentially, 

used on-site), and not sold to an electric utility. Projects that comply with this safe harbor 

provision are assumed to be intended “fundamentally” for on-site purposes. FERC 

includes both electricity and/or mechanical power produced by a project and thermal 

energy recovered as part of the aggregated annual energy output. EPA is proposing to do 

the same.

“Primary purpose” criterion (ii) is designed to streamline the process for potential 

waste energy projects located in states that issue a state-wide decision to not implement 

the Section 374 regulatory incentives. In such states, sources constructed following the 

decision not to implement Section 374 clearly would not be developed for the primary 

purpose of making sales of excess electric power under Section 374. Such sources would 
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not be able to take advantage of Section 374. Therefore, there is no need for them to 

show that they meet the 50 percent threshold. EPA is proposing that this waiver of the 50 

percent threshold would apply until the state regulatory authority reverses or removes its 

decision.

“Primary purpose” criterion (iii) is designed to give local electric utilities 

flexibility to encourage the pursuit of waste energy recovery projects by customers in 

their service territory. EPA interprets the “primary purpose” test in Section 372(b) as an 

effort to ensure that development of waste energy recovery projects does not unduly

impact the normal operation of local electric utilities. EPA therefore believes it is 

appropriate to allow waivers where the utility wishes to encourage such projects. Given 

that 12 states recognize waste heat recovery or CHP as an eligible resource in their 

energy portfolio standards, a local electric utility may decide to encourage a customer in 

their service territory to develop a waste energy or CHP project and sell excess electricity 

to the utility for purposes of meeting a portfolio standard requirement. In such cases,

upon receipt of a joint petition from the utility and the owner or operator of the site, EPA 

will waive the 50 percent threshold. 

6. How Will the Survey be Distributed?

EPA is proposing to distribute WEST via the internet for any site owner and 

operator to download and provide answers to the Survey directly on their computer. EPA

plans to coordinate with State environmental and energy offices, industry trade 

associations, and energy and environmental non-profits, to notify sites on our list of 

potentially affected NAICS codes about the Survey and the availability of WEST on the 

internet at www.epa.gov/wasteenergyregistry. EPA will also send a letter to the corporate 
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headquarters of entities on the list of potentially affected NAICS codes, where the 

corporation has three or more affected sites that likely meet the initial major industrial or 

large commercial threshold as defined in this rule, describing EPA’s responsibilities, 

what the Agency is requesting them to do for each site and source, and instructions on 

downloading and returning WEST.

7. How Do I Return a Survey?

EPA is proposing that WEST final summary reports, which contain the 

information necessary to populate the Registry, shall be provided to the EPA via mail 

(address at www.epa.gov/wasteenergyregistry and also on the WEST final summary

report) or email at wasteenergyregistry@epa.gov. Email requests may include the subject 

line “Survey response.” Survey responses that are received within the first three years

after the release of WEST will be included in the first edition of the Registry. 

Submissions received within 60 days of WEST being released will be included in the 

initial launch of the Registry. The Registry will be publicly available at 

www.epa.gov/wasteenergyregistry.

8. What Is the Schedule for Returning a Survey?

EPA is proposing that Survey submissions be provided to the Agency for 

inclusion in the first edition of the Registry within the first three years following release 

of WEST. Submissions for future editions of the Registry must be received within the 

first three years following the release of WEST for that edition. EPA expects to notify

affected sources, including all sources and sites in the Registry, of the next edition of the 

Survey and Registry. This notification will likely occur through notice in the Federal 

Register as well as an email to the site contact as provided through WEST. EPA is 
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proposing to include Survey submissions received within the first 60 days in the initial 

launch of the Registry, with subsequent submissions to be added on a rolling basis. 

C. Registry

1. How Will EPA Notify Entities of Their Listing and What Is the Method for 

Any Interested State, Utility or Other Interested Person to Contest a Listing?

EPCA Section 372(d)(3) states that EPA must notify owners or operators of 

recoverable waste energy sources and sites listed in the Registry prior to publishing the 

listing. EPA is proposing to provide this notification in advance through the Survey tool. 

When an owner or operator submits the WEST summary report to EPA, they are 

acknowledging that if they meet the criteria included in this rule, their source or site will 

be published in the Registry. No further notification will be provided prior to Registry

publication. The Registry will list sites but will not contain a detailed description of each 

source at a particular site. 

EPCA Section 372(d)(1)(C) states that any State, electric utility, or other 

interested person may contest the listing by submitting a petition to EPA. Petitions must 

be submitted in writing to the Director of the Office of Atmospheric Programs of the 

EPA. EPA is proposing that this petition shall be submitted via mail (address at 

www.epa.gov/wasteenergyregistry) or email at wasteenergyregistry@epa.gov. Email 

petitions may include in the subject line “Contest of a listing.” All petitions shall explain 

the reason[s] the listing (i.e. site[s] or source[s]) is being contested. The following 

information shall be provided to the Director of the Office of Atmospheric Programs in 

writing (via e-mail or regular mail) to contest a Registry listing:
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 Entity contesting the listing - Name, address, contact person name, title, address, 

email and phone number;

 Registry listing being contested - Site name, address, and NAICS code as 

displayed in the Registry;

 Reason the listing is being contested (i.e. why the site or source should be 

excluded from the Registry).

All Registry listings whose inclusion in the Registry is contested will be notified by EPA 

in writing (mail or email) and be provided 60 days (from the date of notification) to 

submit information for consideration by EPA. No later than 180 days following receipt 

of information submitted by the entity contesting the listing, EPA will decide whether to 

remove or retain the listing in the Registry. 

2. What Are the Standards to Address New Sources or New Energy-Consuming 

Industrial Facilities Constructed After EISA Enactment?

EISA contains two provisions addressing new sources or facilities: EPCA Section 

372(d)(5), which addresses new sources; and EPCA Section 372(f), which addresses 

“new energy-consuming industrial facilities.” EPA is proposing to build on the 

previously described criteria for these new sources or facilities.

a. New Sources Constructed After EISA Enactment

EPCA Section 372(d)(5) directs EPA not to list in the Registry any source 

constructed after EISA enactment (December 19, 2007) if the Agency determines that it:

“(A) was developed for the primary purpose of making sales of excess electric power 

under the regulatory provisions of this part; or 
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(B) does not capture at least 60 percent of the total energy value of the fuels used (on 

a higher-heating-value basis) in the form of useful thermal energy, electricity, 

mechanical energy, chemical output, or any combination thereof.”

EPA is proposing to interpret the term “construct” as used in EPCA Section 

372(d)(5) to mean “commence construction” as defined in this rule. For any source that 

commenced construction after EISA enactment, the financial and regulatory incentives in 

EISA Subtitle D could have influenced the decision to construct the source. 

EPA is proposing to interpret Section 372(d)(5)(A) by utilizing the same “primary

purpose” definition and interpretation as Section B(5) of this preamble:

i) At least 50 percent of the aggregated annual energy output of the site (as 

defined in this rule) is to be used for industrial or commercial purposes, and 

not sold to an electric utility (“the 50 percent threshold”); or

ii) The site is located in a State where the appropriate regulatory authority has 

made a state-wide determination under EISA Section 374 not to implement 

the regulatory sale of excess power provisions in EISA Section 374. This 

waiver of the 50 percent threshold is applicable until the state regulatory

authority reverses or removes its decision; or

iii) The owner or operator of the site submits a joint petition with the local electric 

utility that serves the site to the Director of the Office of Atmospheric 

Programs of the EPA, requesting that the 50 percent threshold be waived.

EPA considered two primary options for interpreting Section 372(d)(5)(B): a 

strict interpretation that would require the source itself, prior to project implementation, 

to capture 60 percent of the total energy value of the fuels used at the source, or a more 
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liberal interpretation which would require that the source and the project combined reach 

at least 60 percent capture of the total energy value of the fuels used at the source. 

EPA is proposing that per Section 372(d)(5)(B), for new sources that commence 

construction after EISA enactment, the combined potential project and source must 

capture at least 60 percent of the total energy value of the fuels used at the source (on a 

higher-heating-value basis as defined in this rule) in the form of useful thermal energy, 

electricity, mechanical energy, chemical output, or any combination thereof. EPA 

believes that applying this efficiency requirement to the combination of potential project 

and source for new sources is in line with the objective of maximizing the efficiency of 

overall fuel use. EPA believes that the intent of the 60 percent threshold is to ensure that 

waste energy projects are legitimate and efficient, and to assure that new projects are not 

developed based on questionable sources (i.e. sources that utilize inefficient equipment 

with the intent to generate large amounts of waste heat). EPA believes that new sources 

that commence construction (as defined in this rule) after EISA enactment have a strong 

financial interest in being very energy efficient and are not likely to utilize inefficient 

equipment purely for the purpose of being added to the Registry and being eligible for 

incentives under Sections 373 or 374. Applying this threshold to the combined source 

and project should accomplish Congress’ objective of screening out questionable 

projects. While some new sources may be able to meet a 60 percent threshold 

independently, prior to the development of a waste energy recovery project, others may

not be able to meet this threshold because of legitimate technology, operational or 

economic reasons. EPA believes that capturing and efficiently utilizing the waste energy 

supports the objectives of maximizing overall fuel use as long as the combined efficiency
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of the source and project are at least equal to the 60 percent total fuel efficiency

threshold.

EPA also understands that there are situations where existing technology cannot 

meet a strict 60 percent capture threshold under either interpretation described above, 

including but not limited to recovering power from the exhaust heat at pipeline 

compressor stations. EPA is proposing to waive this criterion in situations where 

existing technology cannot meet a strict 60 percent threshold yet significant overall 

efficiency improvements could be achieved through waste energy recovery technologies. 

Examples include, but are not limited to, heat recovery from pipeline compressor 

stations. EPA will determine if a source qualifies under this exception on a case by case 

basis based on internal review of the application and applicable technologies.

b. New Energy Consuming Industrial Sites Constructed After EISA 

Enactment

EPCA Section 372(f) states that EPA may elect to include in the Registry a new 

energy-consuming industrial facility (to the extent the site may constitute a site with 

recoverable waste energy that may qualify for inclusion in the Registry) developed after 

EISA enactment, at the request of the owner, operator, or developer of the site, on a 

conditional basis with the site to be removed from the Registry if development ceases or 

the site fails to qualify for listing under Part E of EPCA.

EPA is proposing to add to the Registry any new energy-consuming industrial 

sites (as defined in this rule) that contain at least one new source meeting the 

requirements for new sources described above, as well as the standard criteria for listing. 

Because the Survey will continue to be available following the Registry’s initial launch, 
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EPA does not believe it is necessary to establish a separate process for adding these new 

sites to the Registry. Upon submission of the Survey results by the site owner or 

operator, EPA will be able to determine whether the site meets the appropriate criteria. 

Since EPA will be adding facilities to the Registry on a rolling basis, listing sites on a 

conditional basis will not be necessary.

In defining “new energy-consuming industrial sites,” EPA proposes to interpret 

the phrase “developed after” the date of EISA enactment the same as the phrase 

“constructed after” the date of EISA enactment in Section 372(d)(5)(B). Therefore, a 

new energy-consuming industrial site developed after the date of EISA enactment is one 

that commenced construction after December 19, 2007. In addition, EPA proposes to 

apply the primary purpose criterion and the 60 percent criterion to new sources at these 

sites. 

EPA is also proposing that developers who wish to submit Survey results for a 

new energy-consuming industrial site must do so jointly with an owner or operator. This 

is consistent with the proposed role of developers for existing sources. 

3. How Are Projects Removed from the Registry?

EPCA Section 372(d)(4)(A) directs that as a project achieves successful recovery 

of waste energy, EPA shall:

(i) “remove the related sites or sources from the Registry, and 

(ii) designate the removed projects as eligible for incentives under Section 374.”

EPCA Section 372(d)(4)(B) states that no project shall be removed from the 

Registry without consent of the owner or operator of the project if 

(i) “the owner or operator has submitted a petition under Section 374; and
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(ii) the petition has not been acted on or denied.”

Under Section 374(a), an owner, operator, or project sponsor may request that the 

State regulatory authority or nonregulated electric utility provide public notice, conduct a 

hearing, and determine whether to adopt a standard for sales of excess power as provided 

in Section 374(b). Section 374(b) requires that the sales of excess power standard 

“provide that an owner or operator of a waste energy recovery project identified on the 

Registry that generates net excess power shall be eligible to benefit” from at least one of 

three options listed under Section 374(c) “for disposal of the net excess power.” Those 

options are (1) the sale of net excess power to the utility; (2) transport by the utility for 

direct sale to a third party; and (3) transport over private transmission lines without 

subjecting the project to regulation as a public utility. The third option includes waiver or 

modification of any laws that would otherwise prohibit the construction and operation of 

private transmission lines. 

The regulatory incentives in EPCA Section 374 have the potential to affect 

whether an owner or operator pursues a waste energy project and achieves successful 

recovery of the waste energy, since they relate to the sales of net excess power to a 

utility. One interpretation of EPCA Section 372(d)(4) would not allow the owner or 

operator of the source or site to submit a Section 374 petition until the project is 

commercially operational. However, this interpretation is inconsistent with the notion of 

an incentive and with the purpose of EISA Subtitle D, as explained below. Therefore, 

EPA believes that a two-step approach to the Section 374 incentives is what Congress 

intended. Step one is for an owner or operator of a site or source listed in the Registry to 

submit a Section 374 petition and for the State regulatory authority or nonregulatory
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authority to act on that petition. Step two is that once a waste energy project is 

commercially operational, EPA will remove it from the Registry and it will be eligible to 

dispose of the net excess power in accordance with the standard adopted under Section 

374(a), which would include one or more of the options in Section 374(c). EPA believes 

that full implementation of the Section 374 incentives as part of Step two is reasonable 

because a project must be commercially operational for it to be generating net excess 

power that can be disposed of by selling it to the utility, having the utility transport it for 

direct sale to a third party, or operating private transmission lines to transport it for sale to 

a third party [Section 374(c)]. EPA is proposing that under the third option, the source 

would not have to wait until the project became commercially operational before 

obtaining the necessary legal waivers or modifications and constructing the private 

transmission lines. Such actions could proceed during project development. Once the 

project became commercially operational, EPA would remove the source from the 

Registry and designate the project as eligible to dispose of the net excess power, which in 

this instance would occur through operation of the private transmission lines. 

EPA understands that the EPCA Section 374 incentives could significantly affect 

the feasibility of investing in the successful recovery of waste energy at a source. 

Offering the ability to submit a Section 374 petition only after a waste energy recovery

project is commercially operational would prevent the incentives from serving their 

intended purpose, which is to overcome regulatory or financial obstacles to such 

recovery. Given an overarching goal of EISA Subtitle D is energy efficiency and the

Registry is to facilitate the successful recovery of waste energy, EPA believes Congress 

intended sites or sources in the Registry to be able to submit a Section 374 petition, even 
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though the Section 374 incentives relating to disposal of the net excess power will not be 

available for implementation until the waste energy project became commercially

operational. When a waste energy project is commercially operational, the owner or 

operator is not eligible to submit a new Section 374 petition, but can continue to request 

action on a pending petition. Further, EPA is proposing that no source or site will be 

removed from the Registry if the owner or operator has submitted a petition under 

Section 374 based on the site or source in question, and the petition has not been acted on 

or denied.

EPA is proposing for sites or sources listed in the Registry, that as a waste energy

project at the source becomes commercially operational, the site owner or operator shall 

notify EPA within 90 days. EPA is also proposing that if a site or source on the Registry

chooses to no longer be listed in the Registry, the site or source can notify EPA that it 

requests to be removed from the Registry. EPA will remove the source from the Registry

within 30 days from notification, with the exception that no source or site will be 

removed from the Registry if it has submitted a Section 374 petition and the petition has 

not been acted on or denied. The site owner or operator shall notify EPA via mail 

(address at www.epa.gov/wasteenergyregistry) or email at wasteenergyregistry@epa.gov. 

Email submissions may include in the subject line “Source removal request” or 

“Commercial operation.” All notifications shall include the site name, address, NAICS 

code, date project became commercially operational, project electric capacity, and the

project thermal capacity. All notifications shall also include a statement whether the 

owner or operator has submitted a Section 374 petition to the appropriate regulatory
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authority or nonregulated electric utility and if so, whether that regulatory authority or 

utility has yet acted on the petition.

EPA is proposing to maintain a publicly-available list of all sources or sites that 

were listed in the Registry that were removed once waste energy projects were 

completed. This list will be used demonstrate the success of waste energy capture and be 

housed on the same website as the Registry.

IV. Economic Impacts

In developing this proposal, EPA prepared an economic analysis to estimate the 

cost of the proposal, how the rule might impact small entities, and the cost-effectiveness 

of regulatory alternatives. 

The cost of the proposed rule reflects both the costs of collecting waste energy

information, primarily through a Survey, and the costs of maintaining the information on 

a publicly available EPA website. EPA estimates total 3-year costs of $4.9 million. 

The analysis determined that private costs per respondent would be under $700 

total, and, thus do not impose a significant impact on large nor small businesses. 

Furthermore, given that the Survey is targeted at the largest 1% of non-manufacturing 

establishments and the largest 2% of manufacturing establishments, the Survey is 

unlikely to affect many small entities at all. Respondents that download and submit 

Survey reporting information without request from EPA are unlikely to be small entities 

because these respondents are likely to know if they have economically feasible 

recoverable waste energy.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review
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This action is not a "significant regulatory action" under the terms of Executive 

Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review 

under the EO. 

EPA prepared an analysis of the potential costs and benefits associated with this 

action. This analysis is contained in “Waste Energy Registry: Regulatory/Economic 

Analysis.” A copy of the analysis is available in the docket for this action and is briefly 

summarized here.

The proposed rule will not have an annual impact of $100 million or meet the 

other criteria for “significant regulatory action” in the Executive Order. Therefore, EPA 

does not plan to prepare a regulatory impact statement for this proposed rule. However, 

EPA invites comments on the economic analysis.

B. Paperwork Reduction Act (PRA)

The information collection requirements in this proposed rule have been 

submitted for approval to the Office of Management and Budget (OMB) under the 

Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The Information Collection Request 

(ICR) document prepared by EPA has been assigned EPA ICR number [TBD]. The 

information collected as a result of this proposed rule and Survey will allow EPA to 

implement the Registry of Recoverable Waste Energy Sources (Registry) mandated by

Title IV, Subtitle D, § 372 of the Energy Independence and Security Act (EISA) of 2007. 

Those major industrial and large commercial sources that choose to respond to the 

Survey by filling out the Survey tool will enter data into the tool to be used to determine 

the potential waste energy recovery opportunity at the source or site. Those sources or 
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sites that satisfy the criteria for inclusion in this proposed rule will be placed by EPA in 

the Registry. 

For the first three years after the release of the Survey, the major information 

burden involves enterprises that respond to the Survey. The Survey is a one-time burden

given the scope of the ICR is three years. 

For the first three years after publication of the final rule in the Federal Register, 

developing the Survey tool, conducting the Survey, and developing and administering the 

Registry will account for the burden to EPA. 

Calculation of the information collection burden and costs associated with this

proposal can be found in the Information Collection Request for the Proposed Rule (40 

CFR part 1200) and Survey in Support of the Waste Energy Recovery Registry (USEPA, 

2008), available through http://www.regulation.gov under Docket ID EPA-HQ-OAR2008-0201.

As shown in Table 1, the total burden for respondents and EPA associated with 

the proposed rule over the 3 years following promulgation is 60,930 hours, or an average 

of 20,310 hours per year. The total cost over this period is $3,364,450, or an average of 

$1,123,150 per year. The average burden per response for each activity that requires a 

collection of information is 9 hours; the average cost per response is $499. Time 

variations may exist depending on the number of components of the survey addressed by 

respondents. Burden is defined at 5 CFR 1320.3(b).

Table 1.—Annual, Total, and Annual Average Burden Hours and Costs for the 

Proposed Rule Information Collection Request 3-Year Approval Period

Year 1 Year 2 Year 3 Total Annual 

Average
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Total (Respondents and EPA Headquarters)

Burden (in 

hours) 20,310 20,310 20,310 60,930 20,310

Respondents 2,250 2,250 2,250 6,750 2,250

Responses 2,250 2,250 2,250 6,750 2,250

Costs 1,203,150 1,083,150 1,083,150 3,369,450 1,123,150

 Labor $ 1,052,150 1,052,150 1,052,150 3,156,450 1,052,150

 Nonlabor $ 151,000 31,000 31,000 213,000 71,000

Burden per 

response 9 hours 9 hours 9 hours 9 hours 9 hours

Cost per 

response $ 535 481 481 1,497 499

Burden per 

respondent 9 hours 9 hours 9 hours 9 hours 9 hours

Cost per 

respondent $ 535 481 481 1,497 499

Respondents

Burden (in 

hours) 16,305 16,305 16,305 48,915 16,305

Respondents 2,250 2,250 2,250 6,750 2,250

Responses 2,250 2,250 2,250 6,750 2,250

Costs $ 752,150 752,150 752,150 2,256,450 752,150

 Labor $ 752,150 752,150 752,150 2,256,450 752,150

 Nonlabor $ 0 0 0 0 0

Burden per 

response 7.25 7.25 7.25 7.25 7.25

Cost per 

response $ 334 334 334 1,002 334

Burden per 

respondent 7.25 7.25 7.25 7.25 7.25

Cost per 

respondent $ 334 334 334 1,002 334

EPA Headquarters

Burden (in 

hours) 4,005 4,005 4,005 12,015 4,005

Respondents 2,250 2,250 2,250 6,750 2,250

Responses 2,250 2,250 2,250 6,750 2,250

Costs $ 451,000 331,000 331,000 1,113,000 371,000

 Labor $ 300,000 300,000 300,000 900,000 300,000

 Nonlabor $ 151,000 31,000 31,000 213,000 71,000

Burden per 

response 1.78 1.78 1.78 1.78 1.78

Cost per 

response $ 200 147 147 495 165
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Burden per 

respondent 1.78 1.78 1.78 1.78 1.78

Cost per 

respondent $ 200 147 147 495 165

Note: Numbers have been rounded.

An agency may not conduct or sponsor, and a person is not required to respond to, 

a collection of information request unless it displays a currently valid OMB control 

number. The OMB control numbers for EPA’s regulations in 40 CFR are listed in 40 

CFR Part 9.

To comment on the Agency’s need for this information, the accuracy of the 

provided burden estimates, and any suggested methods for minimizing respondent 

burden, EPA has established a public docket for this proposed rule under Docket ID 

number EPA-HQ-OAR-2008-0201. Submit any comments related to the ICR to EPA 

and OMB. See ADDRESSES section at the beginning of this notice for where to submit 

comments to EPA. Send comments to OMB at the Office of Information and Regulatory

Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 

20503, Attention: Desk Officer for EPA. Since OMB is required to make a decision 

concerning the ICR between 30 and 60 days after [date of publication in FR], a comment 

to OMB is best assured of having its full effect if OMB receives it by [date]. The final 

rule will respond to any OMB or public comments on the information collection 

requirements contained in this proposal. 

C. Regulatory Flexibility Act (RFA)

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a 

regulatory flexibility analysis of any rule subject to notice and comment rulemaking 

requirements under the Administrative Procedure Act or any other statute unless the 
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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.

The RFA provides default definitions for each type of small entity. Small entities 

are defined under the RFA as: (1) a small business as defined by the Small Business 

Administration’s (SBA) regulations at 13 CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a city, county, town, school district or special district 

with a population of less than 50,000; and (3) a small organization that is any "not-forprofit enterprise which is independently owned and operated and is not dominant in its 

field.” However, the RFA also authorizes an agency to use alternative definitions for 

each category of small entity, “which are appropriate to the activities of the agency” after 

proposing the alternative definition(s) in the Federal Register and taking comment. 5 

USC 601(3) - (5). In addition, to establish an alternative small business definition, 

agencies must consult with SBA’s Chief Counsel for Advocacy. 

After considering the economic impacts of this proposed rule on small entities, 

EPA certifies that this action will not have a significant impact on a substantial number of 

small entities. The statutory mandate in § 372 of the Energy Independence and Security 

Act (EISA) of 2007 requires EPA to Survey and consider for the Registry only major 

domestic industrial and large commercial sources and EPA has developed the criteria in 

the proposed rule to implement that mandate and to exclude small entities. EPA’s 

economic analysis, summarized in Section III and available in the docket for this

proposed rulemaking, confirms that the proposed rule will not have a significant impact 

on a substantial number of small entities. 
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D. Unfunded Mandates Reform Act (UMRA)

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-

1538), requires Federal agencies, unless otherwise prohibited by law, to assess the effects 

of their regulatory actions on State, local, and tribal governments and the private sector. 

Specifically, Section 202 of UMRA generally requires Federal agencies to prepare a 

written statement, including a cost-benefit analysis, for each proposed and final rule with 

"Federal mandates" that may result in expenditures by State, local, and tribal governments, 

in the aggregate, or to the private sector, of $100 million or more in any one year. A 

Federal mandate can be a Federal intergovernmental mandate or a private sector mandate. 

Federal intergovernmental mandates include provisions in rules that either:

1. Impose enforceable duties on State, local, or tribal governments (other than 

those that are conditions of Federal assistance or arise from participation in 

voluntary Federal programs); or

2. Reduce or eliminate the authorized amount of Federal financial assistance that 

would be provided to State, local, and tribal governments to comply with 

preexisting duties that are not reduced or eliminated by a corresponding amount.

Private sector mandates include provisions in regulatory actions that either:

1. Impose enforceable duties on the private sector (other than those that are 

conditions of Federal assistance or arise from participation in voluntary Federal 

programs); or

2. Reduce or eliminate the authorized amount of Federal financial assistance for 

the private sector to comply with those enforceable duties. 
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If section 202 of UMRA applies to a proposed or final rule, then section 205 applies 

as well. Section 205 requires Federal agencies 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 section 

205 do not apply if either: 1) the Administrator publishes an explanation with the final rule 

as to why the least costly, most cost-effective or least burdensome alternative was not 

adopted, or 2) they are inconsistent with applicable law. 

Under section 203 of UMRA, EPA must also develop a plan with respect to small 

governments before establishing any regulatory requirements that might significantly or 

uniquely affect them. 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 regulatory proposals with significant Federal 

intergovernmental mandates; and informing, educating, and advising small governments on 

compliance with the regulatory requirements. 

This action contains no federal mandates under the provisions of Title II of the 

Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538, for State, local, 

or tribal governments or the private sector. The action imposes no enforceable duty on 

any State, local or tribal governments or the private sector. This action is also not subject 

to the requirements of Section 203 of UMRA because it contains no regulatory

requirements that might significantly or uniquely affect small governments. The 

proposed rule pertains only to major domestic industrial and large commercial sources 

that may have potentially recoverable waste energy.

E. Executive Order 13132: Federalism
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Executive Order 13132, titled “Federalism” (64 FR 43255, August 10, 1999) 

requires EPA to develop an accountable process to ensure “meaningful and timely input 

by State and local officials in the development of regulatory policies that have Federalism 

implications.” “Policies that have Federalism implications” are defined in the Executive 

Order to include regulations that have “substantial direct effects on the States, on the 

relationship between the national government and the States, or on the distribution of 

power and responsibilities among the various levels of government.” 

This proposed rule does not have Federalism implications. It will not have 

substantial direct effects on the States, on the relationship between the national 

government and the States, or on the distribution of power and responsibilities among the 

various levels of government, as specified in EO 13132. The Registry of Recoverable 

Waste Energy Sources and the Survey tool will be administered by EPA and will involve 

only major domestic industrial and large commercial sources with potentially recoverable 

waste energy. Thus, Executive Order 13132 does not apply to this rule.

In the spirit of Executive Order 13132, and consistent with EPA policy to promote 

communications between EPA and State and local governments, EPA specifically solicits 

comment on this proposed rule from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 

Tribal Governments

This action does not have tribal implications, as specified in Executive Order 

13175 (65 FR 67249, November 9, 2000). It involves only the collection of information 

from major domestic industrial and large commercial sources with potentially

recoverable waste energy and the development and administration by EPA of a Registry
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of Recoverable Waste Energy Sources. Thus, Executive Order 13175 does not apply to 

this action. EPA specifically solicits additional comment on this proposed action from 

tribal officials.

G. Executive Order 13045: Protection of Children from Environmental 

Health Risks and Safety Risks

EPA interprets EO 13045 (62 F.R. 19885, April 23, 1997) as applying only to 

those regulatory actions that concern health or safety risks, such that the analysis required 

under section 5-501 of the EO has the potential to influence the regulation. This action is 

not subject to EO 13045 because it does not establish an environmental standard intended 

to mitigate health or safety risks.

H. Executive Order 13211: Actions Concerning Regulations That 

Significantly Affect Energy Supply, Distribution, or Use

This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 

(NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use 

voluntary consensus standards in its regulatory activities unless to do so would be 

inconsistent with applicable law or otherwise impractical. Voluntary consensus standards 

are technical standards (e.g., materials specifications, test methods, sampling procedures, 

and business practices) that are developed or adopted by voluntary consensus standards 

bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the 

Agency decides not to use available and applicable voluntary consensus standards. 
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The proposed rulemaking does not involve technical standards in the criteria for 

including sources or sites in the Registry of Recoverable Waste Energy Sources. 

Therefore the Agency conducted a search to identify potentially applicable voluntary 

standards. No voluntary consensus standards exist that are applicable.

J. Executive Order 12898: Federal Actions to Address Environmental

Justice in Minority Populations and Low-Income Populations.

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental justice. Its main provision directs federal agencies, to 

the greatest extent practicable and permitted by law, to make environmental justice part 

of their mission by identifying and addressing, as appropriate, disproportionately high 

and adverse human health or environmental effects of their programs, policies, and 

activities on minority populations and low-income populations in the United States. 

EPA has determined that this proposed rule will not have disproportionately high 

and adverse human health or environmental effects on minority or low-income 

populations because it does not affect the level of protection provided to human health or 

the environment. The proposed rule involves only the collection of information about 

potential opportunities for waste energy recovery. Although the Survey and Registry of 

Recoverable Waste Energy Sources are expected to encourage the development of 

projects to reduce the amount of lost energy, the siting and development of waste energy

recovery projects are not covered by this proposed rule.

List of Subjects in 40 CFR Part 1200

Dated: ____________________
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______________________________________________

Stephen L. Johnson, 

Administrator.

For the reasons set out in the preamble, title 40, chapter I, of the Code of Federal 

Regulations is proposed to be amended by adding part 1200 to read as follows: 

PART 1200 - Waste Energy Recovery Registry

Sec.

1200.1 Purpose.

1200.2 Definitions.

1200.3 Criteria for inclusion in the Registry.

1200.4 Process for inclusion in the Registry.

1200.5 Process for removing a listing from the Registry.

1200.6 Process for contesting a Registry listing.

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

§ 1200.1 Purpose.

This part establishes criteria for the inclusion of sources or sites in the Registry of 

Potentially Recoverable Waste Energy Sources and establishes the processes for adding 

sources or sites to the Registry and removing them from the Registry.

§ 1200.2 Definitions. 

As used in this part, the term ---

a) Administrator means the Administrator of the Environmental Protection 

Agency.

b) Aggregated annual energy output of the site means the total useful output of 

the fuel driving the source, including electricity generated by a project and thermal 

energy recovered in or driving the project and/or process.

c) Combined heat and power means a site that simultaneously and efficiently

produces useful thermal energy and electricity; and recovers not less than 60 percent of 

the energy value in the fuel (on a higher-heating-value basis as defined in this rule) in the 

form of useful thermal energy and electricity.

d) Commence construction means that the owner or operator has all necessary

preconstruction approvals or permits and either has: (i) Begun, or caused to begin, a 

continuous program of actual on-site construction of the source, to be completed within a 

reasonable time; or (ii) Entered into binding agreements or contractual obligations, which 

cannot be cancelled or modified without substantial loss to the owner or operator, to 
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undertake a program of actual construction of the source to be completed within a 

reasonable time.

e) Commercially operational means the waste energy recovery project is placed 

in service. Commercially operational does not include commissioning or other testing 

prior to operation.

f) Detailed Quantitative Information (DQI) means the following Survey output

with respect to individual sources at a site: 

(1) Source description (e.g., glass furnace, process flare); 

(2) Quantitative estimates of:

 For each source, the CO2 emissions reduction potential (tons/year)

 For each source, the criteria pollutant reduction potential (NOx and SOx tons/yr)

 For waste heat sources, the waste heat to power recovery potential (MW)

 For waste gas sources, the waste gas to power recovery potential (MW)

 For pressure drop sources, the pressure drop to power recovery potential (MW) 

 For potential CHP opportunities, the CHP potential based on sizing to thermal 

(heating and/or cooling) load (MW)

(3) Yes/no answers to the following questions:

 For each waste heat source, combustible source, pressure drop source, and potential 

CHP opportunity, does the potential project have a five year payback or less (yes/no)

 For each waste heat source, combustible source, pressure drop source, and potential 

CHP opportunity, does the potential project meet the primary purpose criteria 

(yes/no)

 For each new source, does the potential project meet the 60% efficiency test (yes/no) 

 For each waste heat source, does the site have a waste heat recovery opportunity that 

passes all screening criteria (yes/no)

 For each waste gas or industrial tail gas source, does the site have a waste gas or 

industrial tail gas recovery opportunity that passes all screening criteria (yes/no)

 For each pressure drop source, does the site have a pressure drop recovery

opportunity that passes all screening criteria (yes/no)

 For each potential CHP opportunity, does the site have a CHP opportunity that passes 

all screening criteria (yes/no)

g) Existing source or site means a source or site that commenced construction 

prior to December 19, 2007. 

h) Site means a building or a group of buildings that provides a particular service 

or is used for a particular industrial application.

i) Heating-value means how much energy is released on combustion of a given 

quantity of fuel, for example, Btu per gallon, or Btu per cubic foot. 

j) Higher heating-value (HHV) means heating value including the heat of 

condensation of the water vapor contained in the products of combustion. Fuels are 

typically priced on an HHV basis. The HHV for natural gas is approximately 10% 

greater than the LHV.

k) Large commercial source means a source at a site that meets or exceeds an 

initial threshold of 1 MW average electric annual demand or 5 MMBtu/hour fuel use and 

where the source meets or exceeds a secondary threshold of minimum thermal or cooling 

load of 2.5 MMBtu/hour or 150 Tons, and minimum operating hours of 4,500 hrs/yr. 
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l) Lower heating value (LHV) means heating value not including the heat of 

condensation of the water vapor contained in the products of combustion.

m) Major industrial source means a source at a site that meets or exceeds an 

initial threshold of 100 MMBtu/hour fuel use and where the source meets or exceeds a 

secondary threshold of process stacks with temperatures 500o F or greater, flow rates 

greater than 7,000 to 50,000 scf/min depending on temperature, and minimum operating 

hours of 4,500 hrs/yr. 

n) New energy-consuming industrial site means any new major industrial site

that has commenced construction on or after December 19, 2007. Sources at a new major 

industrial site that meet the definition of a major industrial source are to be treated as 

new major industrial sources.

o) New source or site means a source or site that commenced construction on or 

after December 19, 2007.

p) Project means a recoverable waste energy project or a combined heat and 

power project. A project is located at a particular source. A site may have multiple 

projects. 

q) Recoverable waste energy means waste energy from which electricity or 

useful thermal energy may be recovered through modification of an existing site or 

addition of a new site.

r) Registry means the Registry of Recoverable Waste Energy Sources.

s) Respondent means an owner or operator of a source or site that submits a 

Survey response to EPA.

t) Section 374 petition means the submission by an owner or operator of a site or 

source in the Registry of a request to a State regulatory authority or nonregulated utility

on the basis of Section 374 of the Energy Policy and Conservation Act.

u) Site means a building or group of buildings that provides a particular service or 

is used for a particular industrial application. 

v) Source means any process or activity resulting in the release of waste energy. 

A site may have multiple sources.

w) Survey means the EPA document or tool which is designed to gather 

information from major industrial and large commercial sources about the potential waste 

energy produced at the source or site. The Survey gathers data necessary to establish the 

Registry of Recoverable Waste Energy Sources. 

x) Useful thermal energy means energy in the form of direct heat, steam, hot 

water; or other thermal form that is used in production and beneficial measures for 

heating, cooling, humidity control, process use, or other valid thermal end-use 

requirements; and

for which fuel or electricity would otherwise be consumed.

y) Waste energy means exhaust heat or flared gas from any industrial process;

waste gas or industrial tail gas that would otherwise be flared, incinerated, or vented; a

pressure drop in any gas, excluding any pressure drop to a condenser that subsequently 

vents the resulting heat; and the opportunity for combined heat and power project/s.

§ 1200.3. Criteria for inclusion in the Registry.

(a) EPA will include in the Registry sources or sites that meet the criteria in paragraphs 

(b) and (c) of this section: 
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(b)(1) Existing sources and sites must meet the following initial and secondary threshold 

criteria except as provided in paragraph (b)(3) of this section:

a) Major industrial sources

i. Initial threshold – site with 100 MMBtu/hour fuel use; 

ii. Secondary threshold – process stacks with temperatures 500o F or greater, 

flow rates greater than 7,000 to 50,000 scf/min depending on temperature, 

and minimum operating hours of 4,500 hrs/yr.

b) Large commercial sources

i. Initial threshold – site with 1 MW average electric annual demand or 5 

MMBtu/hour fuel use; 

ii. Secondary threshold – minimum thermal or cooling load of 2.5 

MMBtu/hour or 150 Tons, and minimum operating hours of 4,500 hrs/yr.

(b)(2) New sources and sites must meet the following initial and secondary threshold 

criteria except as provided in paragraph (b)(3) of this section and must also meet the 

criterion in paragraph (b)(2)(iii)::

a) Major industrial sources

i. Initial threshold – site with 100 MMBtu/hour fuel use; 

ii. Secondary threshold – process stacks with temperatures 500o F or greater, 

flow rates greater than 7,000 to 50,000 scf/min depending on temperature, 

and minimum operating hours of 4,500 hrs/yr.

b) Large commercial sources

i. Initial threshold – site with 1 MW average electric annual demand or 5 

MMBtu/hour; 

ii. Secondary threshold – minimum thermal or cooling load of 2.5 

MMBtu/hour or 150 Tons, and minimum operating hours of 4,500 hrs/yr.

c) The combined potential project and source must capture at least 60 percent of 

the total energy value of the fuels used at the source (on a higher-heatingvalue basis as defined in this rule) in the form of useful thermal energy, 

electricity, mechanical energy, chemical output, or any combination thereof. 

Sources for which the Administrator determines that existing technology

cannot meet the 60 percent threshold are considered to have met this criterion.

(b)(3) Notwithstanding the initial thresholds in paragraphs (b)(1) and (b)(2) of this 

section, a source or site will be eligible for inclusion in the Registry if it meets the 

appropriate secondary threshold criteria and all other applicable criteria in this section. 

For purposes of § 1200.4 through § 1200.6, such source will be considered a major 

industrial or large commercial source.

(c) Both existing and new sources or sites must meet the following criteria for 

inclusion in the Registry:

(1) A potential waste energy recovery project at a source or site must be 

economically feasible by virtue of offering a payback of invested costs not later than 5 

years after the date of first full project operation. 

(2) A potential waste energy recovery project at a source or site must not be 

developed or used for the primary purpose of making sales of excess electric power under 

the regulatory provisions of EPCA Part E, Section 374, as demonstrated by meeting one 

of the following criteria:
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(i) At least 50 percent of the aggregated annual energy output of the site (as defined 

in this rule) will be used for industrial or commercial purposes, and not sold to an electric 

utility; or

(ii) The site is located in a state where the appropriate regulatory authority has made a 

state-wide determination under EPCA Section 374 to not implement the regulatory sale 

of excess power provisions in EPCA Section 374. This waiver of the 50 percent 

requirement in paragraph (c)(2)(i) of this section is applicable until the state regulatory

authority reverses or removes its decision; or

(iii) The owner or operator of the site submits a joint petition with the local electric 

utility that serves the site to the Director of the Office of Atmospheric Programs of the 

EPA, requesting that the primary purpose criterion be waived.

§ 1200.4 Process for inclusion in the Registry.

(a) Response to Survey. In order for a site or source to be eligible for inclusion in the 

Registry, owners or operators of major industrial and large commercial sources must

submit to the Administrator data generated by the Survey. Third-party developers may

make a joint submission with the owner or operator of the site or source.

(b) Form of Response. Respondents may submit the data generated by the Survey in 

either electronic or hardcopy format. 

(c) Timing of Response. To be eligible for inclusion in a specific edition of the 

Registry upon its initial launch (the first time that edition of the Registry is populated), 

data submissions for a site or source must be received by EPA within the first 60 days 

following Survey release. To be included in the first edition of the Registry, Survey

submissions must be received by EPA within the first three years following the release of 

the Survey. Submissions for future editions of the Registry must be received within the 

first three years following the release of the Survey for that edition. EPA will notify

affected sources, including all sources and sites in the Registry, of the next edition of the 

Survey and Registry. Surveys jointly submitted by a third-party developer and owner or 

operator of the site or source will be included in the Registry with a notation of “joint 

submittal.”

(d) Detailed Quantitative Information. EPA will not include detailed quantitative 

information (DQI) in the Registry but may make DQI available to the applicable State 

energy office and utility requested to support recovery of waste energy from the source or 

site pursuant to the incentives provided under EPCA Section 374.

§ 1200.5 Process for removing a listing from the Registry.

(a) Notice to EPA. Owners or operators of major industrial and large commercial 

sources that have a potential waste energy recovery project currently listed in the 

Registry must notify EPA in writing within 90 days after the project becomes 

commercially operational that the project is commercially operational. Owners or 

operators shall provide notice by providing the site name, address, NAICS code, date that 

the project became commercially operational, project electric capacity, and project 

thermal capacity. The requesting site owner or operator shall also state whether they

have submitted a Section 374 petition to the appropriate regulatory authority or 

nonregulated electric utility and if so, whether that regulatory authority or utility has 

acted on the petition.

(b) Action by EPA. EPA shall remove the source or site from the Registry within 30 

days of receipt of notice, except that EPA shall not remove a source or site from the 
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Registry if the source or site has submitted a petition under Section 374 to the appropriate 

regulatory authority or nonregulated electric utility and the petition has not been acted on. 

EPA shall maintain a list of all sources or sites that have been removed from the Registry.

§ 1200.6 Process for contesting a Registry listing.

(a) Any State, electric utility, or other interested person may contest a Registry listing 

by submitting a petition in writing to EPA. All petitions must explain the reason[s] the 

listing (i.e. site[s] or source[s]) is being contested. To contest a Registry listing, the State, 

electric utility, or other interested person must provide the following information to the 

Director of the Office of Atmospheric Programs of the EPA in writing (via e-mail or 

regular mail): 

(1) Entity contesting the listing - Name, address, contact person name, title, address, 

email and phone number;

(2) Registry listing being contested - Name, address, and NAICS code as displayed in 

the Registry;

(3) Reason the listing is being contested (i.e. why the site or source should be 

excluded from the Registry).

(b) Notice of decision. Within 15 days of receipt of a petition contesting a Registry

listing, EPA shall provide written notification to the owner or operator of any source or 

site whose inclusion in the Registry is contested. EPA shall consider any information 

regarding the contested listing received from the owner or operator within 60 days from 

the date of notification.

(c) Decision on contested listing. No later than 180 days following receipt of 

information submitted by an entity contesting the listing, EPA will inform the entity

contesting the listing and the owner or operator of the source or site whether it will 

remove or retain the listing in the Registry.