55568 Federal Register / Vol. 70, No. 183 / Thursday, September 22, 2005 / Rules and Regulations 

EPA-APPROVED TENNESSEE NON-REGULATORY PROVISIONS

Name of nonregulatory SIP 

provision 

Applicable geographic or 

nonattainment area 

State effective 

date EPA approval date Explanation 

* * * * * * * 

8-Hour Ozone Maintenance 

plan for the Montgomery 

County, Tennessee area.

Montgomery County ............. 08/10/2005 09/22/2005 [Insert first page 

of publication] 

PART 81—[AMENDED] 

■ 1. The authority citation for part 81 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

■ 2. In § 81.318, the table entitled 

‘‘Tennessee-Ozone (8-Hour Standard)’’

is amended by revising the entry for 

‘‘Clarksville-Hopkinsville, TN–KY: 

Montgomery County’’ to read as follows: 

§ 81.343 Tennessee. 

* * * * * 

TENNESSEE—OZONE

[8-Hour Standard] 

Designated area 

Designation a Category/Classification 

Date b Type Date b Type 

* * * * * * * 

Clarksville-Hopkinsville, TN–KY Area: 

Montgomery County ......................................................... October 24, 2005 Attainment. 

* * * * * * * 

a Includes Indian Country located in each county or area, except as otherwise specified. 

bThis date is June 15, 2004, unless otherwise noted. 

* * * * * 

[FR Doc. 05–18953 Filed 9–21–05; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 60 

[OAR–2003–0119; FRL–7971–9] 

RIN 2060–AN31 

Standards of Performance for New 

Stationary Sources and Emission 

Guidelines for Existing Sources: 

Commercial and Industrial Solid Waste 

Incineration Units 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule; amendments. 

SUMMARY: The EPA has completed its 

reconsideration of certain regulatory 

definitions that determine the type of 

sources subject to EPA’s new source 

performance standards (NSPS) and 

emission guidelines (EG) for commercial 

and industrial solid waste incineration 

(CISWI) units under section 129 of the 

Clean Air Act (CAA). With this action, 

EPA is promulgating revised definitions 

for the terms ‘‘solid waste,’’

‘‘commercial or industrial waste,’’ and 

‘‘commercial and industrial solid waste 

incineration unit.’’ The final CISWI 

definitions of these terms promulgated 

today are consistent with EPA’s 

February 2004 reconsideration proposal 

in that EPA will continue to identify 

CISWI units based on whether such 

units combust waste without energy 

recovery. However, the revised 

definitions promulgated today do not 

include certain regulatory language 

proposed in February 2004 to include 

units with only waste heat recovery in 

the CISWI source category. In a 

subsequent rulemaking action, EPA 

intends to propose additional regulatory 

language to address units with only 

waste heat recovery and assess the 

impacts of the inclusion of these units 

in the CISWI source category. As a 

result of our action today on the CISWI 

definitions, it is not necessary to make 

any corresponding revisions to the 

National Emissions Standards for 

Hazardous Air Pollutants (NESHAP) for 

Industrial, Commercial, and 

Institutional Boilers and Process 

Heaters. 

DATES: The final rule is effective 

September 22, 2005. 

ADDRESSES: Docket: EPA has established 

a docket for this action under Docket ID 

No. OAR–2003–0119. All documents in 

the docket are listed in the EDOCKET 

index at http://www.epa.gov/edocket. 

Although listed in the index, some 

information is not publicly available, 

i.e., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically in 

EDOCKET or in hard copy at the EPA 

Docket Center (EPA/DC), EPA West 

Building, Room B102, 1301 Constitution 

Ave., NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the EPA Docket Center is 

(202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Brian Shrager, Combustion Group, 

Emission Standards Division (C439–01), 

U.S. EPA, Research Triangle Park, North 

Carolina 27711; telephone number: 

(919) 541–7689; e-mail address: 

shrager.brian@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Judicial Review. Under section 

307(b)(1) of the CAA, judicial review of 

the final rule is available only by filing 

a petition for review in the U.S. Court 

of Appeals for the District of Columbia 

by November 21, 2005. Under section 

307(d)(7)(B) of the CAA, only an 

Federal Register / Vol. 70, No. 183 / Thursday, September 22, 2005 / Rules and Regulations 55569 

objection to the final rule that was 

raised with reasonable specificity 

during the period for public comment 

can be raised during judicial review. 

Moreover, under section 307(b)(2) of the 

CAA, the requirements established by 

today’s final action may not be 

challenged separately in any civil or 

criminal proceedings brought by EPA to 

enforce these requirements. 

Organization of This Document. The 

following outline is provided to aid in 

locating information in this preamble. 

I. General Information 

A. Does this action apply to me? 

II. Summary of Final Action 

III. Background Information 

A. Statutory Background 

B. Regulatory Background 

C. Significance of the Definitions 

IV. Final Definitions for the CISWI Rules 

V. Response to Public Comments and 

Significant Changes 

A. General Comments on Definitions 

B. Comments on the Definition of CISWI 

Unit 

C. Comments on the Definition of 

Commercial or Industrial Waste 

D. Comments on the Definition of Solid 

Waste 

E. Comments on the Rulemaking Process 

VI. Relationship to NESHAP for Boilers and 

Process Heaters 

VII. Impacts of the Final Rules 

VIII. Future Actions on the Final CISWI 

Rules 

IX. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination with Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children from Environmental Health and 

Safety Risks 

H. Executive Order 13211: Actions that 

Significantly Affect Energy Supply, 

Distribution or Use 

I. National Technology Transfer 

Advancement Act 

J. Congressional Review Act 

I. General Information 

A. Does This Action Apply to Me? 

Regulated Entities. The CISWI rules 

potentially affect the following 

categories of sources: 

Category NAICS code SIC code Examples of potentially regulated entities 

Any industry using a solid waste incinerator as defined 

in the regulations.

325 28 Manufacturers of chemicals and allied products. 

335 36 Manufacturers of electronic equipment. 

421 50 Manufacturers of wholesale trade, durable goods. 

321, 337 24, 25 Manufacturers of lumber and wood furniture. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this action. This table lists 

examples of the types of entities that 

could be affected by this action. Other 

types of entities not listed in this table 

could also be affected. To determine 

whether your facility, company, or 

business organization is regulated by 

this action, you should examine the 

final definitions of ‘‘solid waste,’’

‘‘commercial or industrial waste,’’ and 

‘‘commercial and industrial solid waste 

incineration unit’’ in this action and the 

applicability criteria in 40 CFR 60.2010 

through 60.2025, subpart CCCC, and 40 

CFR 60.2505 and 60.2550 through 

60.2558, subpart DDDD. 

Docket. The docket number for this 

action is OAR–2003–0119. 

Worldwide Web (WWW). In addition 

to being available in the docket, an 

electronic copy of the notice of final 

rules is available on the WWW through 

the Technology Transfer Network Web 

site (TTN Web). Following signature, 

EPA will post a copy of the notice of 

final rules on the TTN’s policy and 

guidance page for newly proposed or 

promulgated rules at http:// 

www.epa.gov/ttn. The TTN provides 

information and technology exchange in 

various areas of air pollution control. 

II. Summary of Final Action 

By this action, EPA concludes the 

reconsideration process on the 

December 2000 final CISWI rules that it 

initiated in February 2004, in response 

to a petition for reconsideration 

submitted pursuant to section 

307(d)(7)(B) of the CAA. Specifically, 

the EPA has concluded its 

reconsideration of several definitions 

that determine which types of sources 

are subject to the NSPS and EG for 

CISWI units under section 129 of the 

CAA. 

EPA promulgated the definitions in 

the final rules for CISWI units on 

December 1, 2000. Subsequent to 

promulgation of the final CISWI rules, 

the Agency granted a petition for 

reconsideration related to the 

definitions of ‘‘commercial and 

industrial waste’’ and ‘‘commercial and 

industrial solid waste incineration unit’’

in the CISWI final rules. EPA solicited 

public comments on revised definitions 

for these terms and the definition of 

‘‘solid waste’’ in a notice published in 

the Federal Register on February 17, 

2004. (See 69 FR 7390.) In that notice, 

we requested comments on the 

approach we used in the December 2000 

final rules to identify CISWI units based 

on whether the unit was combusting 

solid waste without energy recovery. We 

also proposed to include units with only 

waste heat recovery in the CISWI source 

category to fill a gap between our CISWI 

rules and our NESHAP for Industrial, 

Commercial, and Institutional Boilers 

and Process Heaters promulgated under 

CAA section 112. 

In addition, after promulgation of the 

final CISWI rules in 2000, EPA accepted 

a voluntary remand, without vacature, 

in response to a petition for review 

challenging the rules. Because the final 

rules were not vacated, the requirements 

of the final CISWI rules remain in effect 

during the remand. In a future 

rulemaking action on the remand, we 

will reconsider the emissions 

limitations for CISWI units in 

accordance with guidelines set forth in 

a related court decision pertaining to 

hazardous waste combustors which was 

issued after we promulgated the final 

CISWI rules. However, before we may 

complete the rulemaking action on 

remand, it is necessary to resolve the 

issues raised in the petition for 

reconsideration that potentially affect 

the scope of the CISWI source category. 

This is because EPA must consider the 

emissions of the best performing sources 

in the source category to determine the 

applicable emissions limitations. Thus, 

we are announcing today our final 

decision after reconsidering the 

definitions that determine the scope of 

the CISWI source category so that we 

may focus on the relevant sources in our 

rulemaking action on the remand. 

Today’s action amends the final rules to 

incorporate new definitions of ‘‘solid 

waste,’’ ‘‘commercial or industrial 

waste,’’ and ‘‘commercial and industrial 

solid waste incineration unit.’’ In the 

discussion below, we set forth and 

explain the language in the new 

definitions. 

The definitions we are promulgating 

today are nearly the same as those 

55570 Federal Register / Vol. 70, No. 183 / Thursday, September 22, 2005 / Rules and Regulations 

1The inclusion of waste heat recovery sources 

would change the scope of the CISWI source 

category if we take final action to include such 

sources in the CISWI source category in our 

response to the voluntary remand. 

proposed on February 17, 2004. (See 69 

FR 7396.) However, in response to 

comments received, we clarified the 

proposed definition of ‘‘commercial or 

industrial waste’’ and made editorial 

changes to other definitions to reduce 

repetition among the definitions and to 

better express our intent. 

In addition, we removed the term 

‘‘waste heat recovery’’ from the 

proposed definition of ‘‘commercial or 

industrial waste’’ and are not adopting 

a final definition of ‘‘waste heat 

recovery’’ at this time. We intend to 

propose additional language to address 

units with only waste heat recovery and 

to assess the impacts of including such 

sources in the CISWI source category 

during completion of our rulemaking 

action in response to the voluntary 

remand. At that time, EPA will also 

address several other issues relevant to 

the remand, such as the emissions 

limitations for the CISWI source 

category. 

The revisions to the definitions 

adopted today are not intended to 

change the existing scope 1 of the CISWI 

source category. After further review on 

reconsideration, EPA continues to 

believe that the key consideration in 

determining whether a unit is burning 

commercial or industrial waste is the 

primary function of the combustion unit 

and that the primary indicator of 

function is whether or not a unit is 

designed and operated for energy 

recovery. We define energy recovery as 

the recovery of heat (thermal energy) for 

a useful purpose. Thus, we are not 

amending the definition of ‘‘energy 

recovery’’ that we promulgated in the 

December 2000 final CISWI rules. 

Today’s action also addresses a 

related question of whether EPA should 

amend regulations that determine the 

scope of the NESHAP for the Industrial, 

Commercial, and Institutional Boilers 

and Process Heaters source category 

(boilers NESHAP). Those regulations (40 

CFR part 63, subpart DDDDD) were 

promulgated under CAA section 112. 

(See 69 FR 55218, September 13, 2004.) 

We determined that conforming 

amendments to the boilers NESHAP are 

not necessary because the definitions of 

‘‘boilers’’ and ‘‘process’’ heaters in that 

rule are consistent with the CISWI 

definitions we are announcing today. 

III. Background Information 

A. Statutory Background 

Section 129 of the CAA, entitled 

‘‘Solid Waste Combustion,’’ requires 

EPA to promulgate emissions standards 

and other requirements for ‘‘each 

category of solid waste incineration 

units’’ (42 U.S.C. 7429(a)(1)). Section 

129(a)(1) of the CAA identifies five 

categories of solid waste incineration 

units: 

(1) Units with a capacity of greater 

than 250 tons per day combusting 

municipal waste; 

(2) Units with a capacity equal to or 

less than 250 tons per day combusting 

municipal waste; 

(3) Units combusting hospital, 

medical and infectious waste; 

(4) Units combusting commercial or 

industrial waste; and 

(5) Unspecified ‘‘other categories of 

solid waste incineration units.’’

For each category of incineration unit 

identified under CAA section 129, EPA 

must establish numerical emission 

limits for at least nine specified 

pollutants (particulate matter (PM), 

sulfur dioxide (SO2), hydrogen chloride 

(HCl), oxides of nitrogen (NOX), carbon 

monoxide (CO), lead (Pb), cadmium 

(Cd), mercury (Hg), and dioxins and 

dibenzofurans) and for opacity as 

appropriate. Section 129 provides EPA 

with the discretion to establish 

emissions limitations for other 

pollutants as well. 

Section 129 of the CAA directs EPA 

to set maximum achievable control 

technology (MACT) type standards for 

incinerators. EPA’s standards under 

section 129 must ‘‘reflect the maximum 

degree of reduction in emissions of air 

pollutants listed under section (a)(4) 

(identified above) that the 

Administrator, taking into consideration 

the cost of achieving such emission 

reduction, and any non-air quality 

health and environmental impacts and 

energy requirements, determines is 

achievable for new or existing units in 

each category.’’ (See CAA section 

129(a)(2).) However, the standards for 

new units must not be ‘‘less stringent 

than the emissions control that is 

achieved in practice by the best 

controlled similar unit,’’ and the 

standards for existing sources must not 

be ‘‘less stringent than the average 

emissions limitation achieved by the 

best performing 12 percent of units in 

the category.’’ (See CAA section 

129(a)(2).) 

In addition, the statute provides some 

guidance on which units EPA should 

and should not regulate under CAA 

section 129. However, the statute does 

not define ‘‘commercial or industrial 

waste.’’ Section 129(g)(1) of the CAA 

defines the term ‘‘solid waste 

incineration unit’’ as a unit ‘‘which 

combusts any solid waste material from 

commercial or industrial establishments 

or the general public.’’ Section 129(g)(1) 

also identifies several types of units that 

are not solid waste incineration units, 

including units required to have a 

permit under section 3005 of the Solid 

Waste Disposal Act (SWDA); materials 

recovery facilities; certain qualifying 

small power production facilities or 

qualifying cogeneration facilities which 

burn homogeneous waste; and certain 

air curtain incinerators that meet 

opacity limitations established by EPA. 

Furthermore, CAA section 129(g)(6) 

states that the term ‘‘solid waste * * * 

shall have the meanings established by 

the Administrator pursuant to the Solid 

Waste Disposal Act.’’ Finally, CAA 

section 129(h) states that ‘‘no solid 

waste incineration unit subject to 

performance standards under this 

section and section 111 shall be subject 

to standards under section 112(d) of this 

Act.’’

B. Regulatory Background 

One important part of EPA’s 

rulemaking process is determining what 

universe of sources will be subject to 

regulation. With regard to CISWI units, 

the statutory provisions of CAA sections 

129(a), (g) and (h) collectively provide 

that EPA must determine, as a part of 

the regulatory process, which 

combustion units should be subject to 

regulation under section 129. Section 

129 does not resolve this question, but 

it does provide some important guiding 

principles. For example, section 

129(g)(1) provides that a solid waste 

incineration unit does not include 

incinerators or other units required to 

have a permit under section 3005 of the 

SWDA, which includes any units 

burning hazardous solid wastes. This 

statutory language effectively limits the 

scope of EPA’s authority under section 

129 to the regulation of solid waste 

incineration units that burn 

nonhazardous solid waste. Similarly, 

the language of section 129(h) makes 

clear the Congressional intent for EPA to 

regulate nonhazardous combustion 

sources under either section 129 or 

section 112, but not both. Thus, for the 

CISWI source category, in particular, 

EPA must determine which sources are 

commercial and industrial solid waste 

incineration units under section 129, 

and which combustion units are subject 

to section 112, such as boilers and 

process heaters. 

The EPA proposed regulations for 

CISWI units on November 30, 1999. (See 

64 FR 67092.) The proposal included 

Federal Register / Vol. 70, No. 183 / Thursday, September 22, 2005 / Rules and Regulations 55571 

2 In addition, EPA adopted a number of specific 

exemptions and additional definitions in the final 

CISWI rules, to ensure that the emissions 

limitations did not apply to units that should not 

be considered commercial and industrial solid 

waste incineration units. These exemptions and 

definitions served to identify and exempt: (1) 

Pathological solid waste incineration units; (2) 

agricultural solid waste incineration units: (3) 

municipal solid waste incineration units; (4) 

hospital, medical and infectious solid waste 

incineration units; (5) qualifying small power 

production facilities; (6) qualifying cogeneration 

facilities; (7) hazardous solid waste incineration 

units; (8) material recovery units; (9) certain air 

curtain incinerators; (10) cyclonic barrel burners; 

(11) rack, part, and drum reclamation units; (12) 

cement kilns; (13) sewage sludge incinerators; (14) 

chemical recovery units; and (15) laboratory 

analysis units. 

emissions limitations and a detailed 

definition of ‘‘solid waste’’ that was 

intended to distinguish between 

nonhazardous solid wastes and other 

materials (e.g., hazardous solid waste 

and fuel) burned in combustion units at 

commercial or industrial facilities. The 

definition served to identify those units 

that would be considered commercial 

and industrial nonhazardous solid 

waste incineration units, and, therefore, 

subject to the proposed regulations. In 

addition, consistent with CAA section 

129(h), these definitions also helped to 

identify those units which would not be 

subject to emission standards under 

CAA section 112. 

After receiving public comment, EPA 

determined that the 1999 proposed 

definition of ‘‘solid waste’’ was 

unworkable for purposes of identifying 

CISWI units. Instead of adopting the 

proposed definition of ‘‘solid waste,’’

EPA adopted a general definition of 

‘‘solid waste’’ that closely mirrored the 

definition of solid waste found at 

section 6903(27) of the SWDA and in 

several places in EPA’s regulations 

under that statute. (See 65 FR 75338, 

December 1, 2000.) EPA also adopted 

more specific definitions of 

‘‘commercial and industrial waste’’ and 

‘‘commercial and industrial solid waste 

incineration unit,’’ to identify more 

precisely those units at commercial and 

industrial facilities covered by the final 

CISWI rules. 

Under the December 2000 final CISWI 

rules, a material burned at a commercial 

or industrial facility in a combustion 

unit without energy recovery is a 

commercial or industrial waste, and the 

unit is subject to the CISWI rules. 

However, a material burned at a 

commercial or industrial facility in a 

combustion unit with energy recovery is 

not considered a commercial and 

industrial waste, nor is the combustion 

unit considered a commercial and 

industrial solid waste incineration unit 

for purposes of the CISWI rules.2

After promulgation of the final CISWI 

rules, EPA received a petition for 

reconsideration of the final rules. The 

petition argued that the final rules were 

procedurally defective because EPA had 

failed to provide adequate notice and an 

opportunity to comment on the 

definitions adopted in the final 

rulemaking. Additionally, an 

environmental organization filed a 

petition for review in the U.S. Court of 

Appeals for the D.C. Circuit. 

Furthermore, after promulgation of the 

final CISWI rules, the D.C. Circuit 

issued its decision in Cement Kiln 

Recycling Coalition v. EPA, 255 F.3d 

855 (D.C. Cir. 2001). In this decision, the 

Court rejected certain common elements 

of EPA’s MACT methodology. As a 

result, EPA requested a voluntary 

remand of the final CISWI rules, in 

order to address concerns related to the 

issues that the Court had raised in the 

Cement Kiln decision. 

The EPA granted the petition for 

reconsideration on the definitional 

issues. On February 17, 2004 (69 FR 

7390), EPA initiated proceedings on the 

definitional issues by publishing a 

notice to solicit comments on revisions 

to the definitions of ‘‘solid waste,’’

‘‘commercial or industrial waste,’’ and 

‘‘commercial and industrial solid waste 

incineration unit’’ and a new definition 

of the term ‘‘waste heat recovery.’’ The 

February 17, 2004 notice proposed the 

following definitions: 

Solid waste means any garbage, refuse, 

sludge from a waste treatment plant, water 

supply treatment plant, or air pollution 

control facility and other discarded material, 

including solid, liquid, semisolid, or 

contained gaseous material resulting from 

industrial, commercial, mining, agricultural 

operations, and from community activities, 

but does not include solid or dissolved 

material in domestic sewage, or solid or 

dissolved materials in irrigation return flows 

or industrial discharges which are point 

sources subject to permits under section 402 

of the Federal Water Pollution Control Act, 

as amended (33 U.S.C. 1342), or source, 

special nuclear, or byproduct material as 

defined by the Atomic Energy Act of 1954, 

as amended (42 U.S.C. 2014). 

Commercial or industrial waste means 

solid waste (as defined in this subpart) 

combusted for reasons that do not include 

the recovery of heat for a useful purpose, or 

combusted without heat recovery or with 

only waste heat recovery (i.e., no heat 

recovery in the combustion firebox), in an 

enclosed unit using controlled flame 

combustion that is a distinct operating unit 

of any commercial or industrial facility 

(including field-erected, modular, and 

custom built incineration units operating 

with starved or excess air); or solid waste 

combusted in an air curtain incinerator that 

is a distinct operating unit of any commercial 

or industrial facility. 

Commercial and industrial solid waste 

incineration (CISWI) unit means any 

combustion unit that combusts commercial 

or industrial waste (as defined in this 

subpart), that is a distinct operating unit of 

any commercial or industrial facility 

(including field-erected, modular, and 

custom built incineration units operating 

with starved or excess air), and any air 

curtain incinerator that is a distinct operating 

unit of any commercial or industrial facility 

that does not comply with the opacity limits 

under this subpart applicable to air curtain 

incinerators burning commercial or 

industrial waste. While not all CISWI units 

will include all of the following components, 

a CISWI unit includes, but is not limited to, 

the commercial or industrial solid waste feed 

system, grate system, flue gas system, waste 

heat recovery equipment, if any, and bottom 

ash system. The CISWI unit does not include 

air pollution control equipment or the stack. 

The CISWI unit boundary starts at the 

commercial or industrial waste hopper (if 

applicable) and extends through two areas: 

(1) The combustion unit flue gas system, 

which ends immediately after the last 

combustion chamber or after the waste heat 

recovery equipment, if any; and (2) The 

combustion unit bottom ash system, which 

ends at the truck loading station or similar 

equipment that transfers the ash to final 

disposal. The CISWI unit includes all ash 

handling systems connected to the bottom 

ash handling system. A CISWI unit does not 

include any of the fifteen types of units 

described in section 60.2555 of this subpart, 

nor does it include any combustion turbine 

or reciprocating internal combustion engine. 

Waste heat recovery means the process of 

recovering heat from the combustion flue 

gases by convective heat transfer only. 

These definitions were similar to the 

definitions in the December 1, 2000 

final CISWI rules, except that we 

proposed that materials combusted at 

commercial or industrial facilities in 

units with only waste heat recovery 

would be considered commercial or 

industrial waste and that such units 

would become subject to the CISWI 

rules. This proposed change addressed 

an unintended regulatory gap where 

units with only waste heat recovery 

were not covered by CAA section 112 

boilers NESHAP or by the CISWI rules. 

The statutory and regulatory 

background and rationale for the 

proposed changes to the definitions are 

fully described in the February 17, 2004 

notice of proposed rule and solicitation 

of comments. (See 69 FR 7390.) 

The action published today 

summarizes and responds to public 

comments received in response to the 

February 17, 2004 notice and announces 

EPA’s final decisions on the definitions 

of ‘‘solid waste,’’ ‘‘commercial or 

industrial waste,’’ and ‘‘commercial and 

industrial solid waste incineration 

(CISWI) unit’’ for the CISWI rules. The 

specific wording of the final definitions 

55572 Federal Register / Vol. 70, No. 183 / Thursday, September 22, 2005 / Rules and Regulations 

3Alternatively, such units might be subject to 

regulation under any number of other EPA 

regulations, including, for example, regulations 

promulgated pursuant to CAA section 112(c)(3) and 

(k) to control emissions from industrial, commercial 

and institutional boilers that are area sources and 

various other regulations developed under section 

112 which cover combustion units burning solid 

materials to recover their chemical or other material 

constituents (e.g., black liquor boilers or furnaces at 

kraft pulp mills covered under the national 

emission standards for hazardous air pollutants for 

Chemical Recovery Combustion Sources at Kraft, 

Soda, Sulfite, and Stand-Alone Semichemical Pulp 

Mills). 

is printed later in this action. EPA is 

amending the CISWI rules such that the 

final definitions will take effect 

immediately. EPA is not taking final 

action today, however, on the February 

2004 proposed addition of certain 

regulatory language concerning waste 

heat recovery units. EPA currently 

intends to propose additional language 

to amend the CISWI rules to cover units 

with only waste heat recovery when we 

take final action in response to the 

voluntary remand of the CISWI rules. 

C. Significance of the Definitions 

The definitions of ‘‘solid waste,’’

‘‘commercial or industrial waste,’’ and 

‘‘commercial and industrial solid waste 

incineration unit’’ define the scope of 

applicability of the final CISWI rules. 

Since any unit regulated under CAA 

section 129 cannot be subject to any rule 

developed under CAA section 112, 

these definitions also help to clarify the 

scope of applicability of certain other 

rules that EPA has or will develop for 

other types of combustion units. 

In this case, combustion units that are 

not covered by the final CISWI rules 

may be subject to regulation, for 

example, under the boilers NESHAP (40 

CFR part 63, subpart DDDDD).3 Many of 

the combustion units at commercial or 

industrial facilities (e.g., boilers or 

steam generating units, process heaters, 

furnaces, and incinerators) burn ‘‘solid’’

materials. If the solid materials in 

question are covered by the definition of 

‘‘commercial or industrial waste,’’ the 

units will be regulated as CISWI units 

under CAA section 129. Conversely, if 

the materials are not covered by the 

definition of ‘‘commercial or industrial 

waste’’ or if these materials are 

hazardous solid waste or solid materials 

burned for chemical or material 

recovery, the units will be regulated 

under CAA section 112 or other 

statutory authority. 

The process of determining the 

regulatory dividing line between 

different rules is not unique to CISWI. 

Nor does the identification of the scope 

of one rule necessarily define the scope 

of another or preclude EPA from 

adjusting the regulatory division in a 

subsequent rule. 

IV. Final Definitions for the CISWI 

Rules 

For purposes of the CISWI rules, we 

are amending the definitions of the 

terms ‘‘solid waste,’’ ‘‘commercial or 

industrial waste,’’ and ‘‘commercial and 

industrial solid waste incineration 

(CISWI) unit’’ as follows: 

Solid waste means any garbage, refuse, 

sludge from a waste treatment plant, water 

supply treatment plant, or air pollution 

control facility and other discarded material, 

including solid, liquid, semisolid, or 

contained gaseous material resulting from 

industrial, commercial, mining, agricultural 

operations, and from community activities, 

but does not include solid or dissolved 

material in domestic sewage, or solid or 

dissolved materials in irrigation return flows 

or industrial discharges which are point 

sources subject to permits under section 402 

of the Federal Water Pollution Control Act, 

as amended (33 U.S.C. 1342), or source, 

special nuclear, or byproduct material as 

defined by the Atomic Energy Act of 1954, 

as amended (42 U.S.C. 2014). 

Commercial or industrial waste means 

solid waste (as defined in this subpart) that 

is combusted at any commercial or industrial 

facility using controlled flame combustion in 

an enclosed, distinct operating unit: (1) 

Whose design does not provide for energy 

recovery (as defined in this subpart); or (2) 

operated without energy recovery (as defined 

in this subpart). Commercial or industrial 

waste also means solid waste (as defined in 

this subpart) combusted in an air curtain 

incinerator that is a distinct operating unit of 

any commercial or industrial facility. 

Commercial and industrial solid waste 

incineration (CISWI) unit means any 

combustion unit that combusts commercial 

or industrial waste (as defined in this 

subpart), that is a distinct operating unit of 

any commercial or industrial facility 

(including field-erected, modular, and 

custom built incineration units operating 

with starved or excess air), and any air 

curtain incinerator that is a distinct operating 

unit of any commercial or industrial facility 

that does not comply with the opacity limits 

under this subpart applicable to air curtain 

incinerators burning commercial or 

industrial waste. While not all CISWI units 

will include all of the following components, 

a CISWI unit includes, but is not limited to, 

the commercial or industrial solid waste feed 

system, grate system, flue gas system, waste 

heat recovery equipment, if any, and bottom 

ash system. The CISWI unit does not include 

air pollution control equipment or the stack. 

The CISWI unit boundary starts at the 

commercial or industrial waste hopper (if 

applicable) and extends through two areas: 

(1) The combustion unit flue gas system, 

which ends immediately after the last 

combustion chamber or after the waste heat 

recovery equipment, if any; and (2) the 

combustion unit bottom ash system, which 

ends at the truck loading station or similar 

equipment that transfers the ash to final 

disposal. The CISWI unit includes all ash 

handling systems connected to the bottom 

ash handling system. A CISWI unit does not 

include any of the fifteen types of units 

described in section 60.2555 of this subpart, 

nor does it include any combustion turbine 

or reciprocating internal combustion engine. 

The EPA will continue to define the 

term ‘‘energy recovery’’ as follows: 

Energy recovery means the process of 

recovering thermal energy from combustion 

for useful purposes such as steam generation 

or process heating. 

The major differences between the 

definitions we are promulgating today 

for the CISWI rules and those proposed 

on February 17, 2004 (69 FR 7396), are 

that we have removed the language in 

the proposed definition of ‘‘commercial 

or industrial waste’’ that served to 

include units with only waste heat 

recovery in the CISWI source category, 

and we are not promulgating the 

definition of ‘‘waste heat recovery’’ at 

this time. We are not taking final action 

today on these changes because we have 

not yet had an opportunity to assess the 

impacts of including units with waste 

heat recovery in the CISWI rules. An 

impacts assessment is necessary, but is 

best done when we respond to the 

CISWI remand and can perform 

comprehensive analyses that address 

the addition of waste heat recovery 

units, any questions on the applicability 

of the CISWI rules raised by 

promulgation of the CAA section 129 

rules for the other solid waste 

incineration (OSWI) source category, 

and the remand issues regarding 

determination of the MACT floor and 

emission limits. When we respond to 

the remand of the CISWI rules, we 

currently plan to propose additional 

regulatory language to address units 

with only waste heat recovery and to 

provide opportunity for additional 

comment on the inclusion of these units 

in the CISWI source category. 

Otherwise, as explained further 

below, we made editorial changes to the 

definition of ‘‘commercial or industrial 

waste’’ and other definitions to reduce 

repetition among the definitions and 

better express our intent. For example, 

we use the term ‘‘energy recovery’’ in 

the final definition of ‘‘commercial or 

industrial waste’’ to incorporate our 

existing definition rather than repeating 

the words ‘‘recovery of heat for a useful 

purpose.’’

V. Response to Public Comments and 

Significant Changes 

Twelve public comment letters were 

received from a wide variety of sources, 

consisting mainly of government 

agencies, environmental organizations, 

industry and utility associations, and 

owner/operators of incinerators and 

Federal Register / Vol. 70, No. 183 / Thursday, September 22, 2005 / Rules and Regulations 55573 

other types of facilities. The most 

significant comments are summarized 

and addressed below. Other significant 

comments are summarized and 

addressed in a comment and response 

document contained in the docket. 

A. General Comments on Definitions 

Comment: One commenter stated that 

EPA’s attempts to fabricate ambiguity in 

CAA section 129 are without merit. The 

commenter stated that, regardless of 

whether EPA has discretion to draw the 

line between different types of solid 

waste combustion units, the agency 

does not have the discretion to exempt 

any such units from regulation under 

section 129 (except for those expressly 

enumerated in section 129(g)(1)). The 

commenter added that, contrary to 

EPA’s claim, the critical question is not 

whether a unit ‘‘is designed and 

operated to recover heat for a useful 

purpose,’’ but, rather, ‘‘does the unit 

combust solid waste?’’ Finally, the 

commenter added that, read as a whole, 

section 129 requires that the CISWI 

rules must apply to all combustion units 

that burn waste from commercial and 

industrial facilities. The commenter 

contended that EPA’s narrow 

definitions of ‘‘commercial or industrial 

waste’’ and ‘‘commercial and industrial 

solid waste incineration unit’’

unlawfully exempt the majority of 

CISWI units from regulation under 

section 129. The commenter also 

pointed out that most CISWI units fall 

below the major source threshold 

established in CAA section 112(a). The 

commenter viewed EPA’s definitions in 

the CISWI rules as an attempt to 

regulate many sources under section 

112 instead of regulating all sources 

under section 129. Section 112 requires 

emissions standards based on generally 

available control technology (GACT) for 

non-major sources. 

Response: EPA disagrees with the 

commenter. Contrary to the 

commenter’s assertion, CAA section 129 

is ambiguous because it does not 

contain definitions of certain terms. The 

EPA has reasonably interpreted section 

129 in establishing the regulatory 

definitions described in this action. The 

statutory provisions of sections 129(a), 

(g), and (h) of the CAA collectively call 

for EPA to determine, as part of the 

regulatory process, which combustion 

units should be subject to regulation 

under section 129. Section 129 of the 

CAA directs EPA to promulgate 

standards under section 111 applicable 

to ‘‘solid waste incineration units 

combusting commercial or industrial 

waste’’. (See 42 U.S.C. 7429(a)(1)(D).) 

However, section 129 does not define 

commercial or industrial waste. 

Inherent in EPA’s implementation of 

this statutory provision is the discretion 

to reasonably define what constitutes 

this undefined type of solid waste. 

Furthermore, CAA section 129(h) 

provides that nonhazardous combustion 

sources shall not be regulated under 

both section 129 and section 112. Thus, 

for the CISWI rules, EPA must 

determine which types of sources are 

included in the CISWI source category. 

The distinction between CISWI units 

and non-CISWI combustion units is not 

readily apparent. For example, there is 

general agreement that burning coal in 

a coal-fired boiler is not commercial or 

industrial waste, because coal is 

commonly thought of as a fuel. 

However, there are many other materials 

that are burned in commercial and 

industrial boilers for energy recovery. 

Such materials include wood, other 

biomass, bagasse burned in boilers at 

sugar plants to produce the heat needed 

to refine sugar from sugar cane, and 

many other materials generated as part 

of commercial or manufacturing 

activities. When these materials are 

burned in a boiler to recover heat for a 

useful purpose, it is reasonable to 

consider these materials, like coal, to be 

a fuel and distinct from commercial and 

industrial solid waste. Combustion of 

such materials, when burned in a boiler 

that recovers energy for a useful 

purpose, is not considered waste 

combustion and is appropriately 

addressed under CAA section 112 

regulations for boilers (e.g., the boilers 

NESHAP and area source boilers 

standards). On the other hand, if 

materials were burned in a combustion 

unit without heat recovery, the 

combustion would serve no useful 

purpose other than destruction or 

disposal of an unwanted material, and 

EPA would then consider it appropriate 

to identify the material as a commercial 

or industrial waste and regulate the 

combustion unit under CAA section 129 

as a CISWI unit. 

In addition, many units that are 

designed and operated for energy 

recovery and predominantly burn 

materials that are widely considered 

fuels will occasionally fire small 

amounts of other materials in these 

units that could be considered waste in 

some circumstances. However, these 

units continue to recover energy from 

the combustion of these additional 

materials. Thus, it is not immediately 

clear how EPA should classify such 

units that are designed and operated for 

energy recovery but occasionally 

combust waste-like materials. 

EPA has determined that for purposes 

of the final CISWI rules, the critical 

consideration in determining whether 

the unit is burning commercial or 

industrial waste is the primary function 

of the combustion unit; and the primary 

indicator of function is whether or not 

a unit is designed and operated to 

recover energy for a useful purpose. 

Accordingly, we are promulgating 

definitions of ‘‘commercial or industrial 

waste’’ and ‘‘CISWI unit’’ to include in 

the CISWI rules units whose design 

does not provide for energy recovery or 

that are operated without energy 

recovery. We continue to define energy 

recovery as the recovery of heat (thermal 

energy) for a useful purpose. The 

revised definition of ‘‘commercial or 

industrial waste’’ does not change the 

existing scope of the CISWI source 

category, but contains editorial revisions 

to more clearly express our intent, as 

described further below. 

The determination that units (such as 

boilers) that recover energy for a useful 

purpose are not subject to the final 

CISWI rules does not exclude them from 

regulation. As noted earlier, EPA has 

already regulated commercial and 

industrial boilers and process heaters 

located at major sources under 40 CFR 

part 63, subpart DDDDD (the boilers 

NESHAP). EPA is addressing 

commercial and institutional boilers 

and process heaters located at area 

sources under the CAA section 112 area 

source boilers standards, currently 

under development. Additionally, other 

categories of specialty combustion units, 

such as hazardous waste combustors 

and cement kilns are regulated under 

separate section 112 NESHAP. Section 

112 addresses hazardous air pollutants 

such as hazardous metals, organic 

compounds, and HCl. 

Comment: One commenter pointed 

out that despite EPA’s claim that it has 

‘‘considerable discretion to regulate a 

variety of sources as solid waste 

incinerators,’’ CAA section 129(a)(1) 

requires EPA to ‘‘establish performance 

standards and other requirements 

pursuant to section 7411 of this title and 

this section for each category of solid 

waste incineration units.’’ (See 42 

U.S.C. 7429(a)(1)(A) (emphasis added).) 

The commenter believes these 

categories are very broad, based on 

language in section 129(g)(1), which 

defines ‘‘solid waste incineration unit’’

to mean ‘‘a distinct operating unit of any 

facility which combusts any solid waste 

material from commercial or industrial 

establishments.’’ (See 42 U.S.C. 

7429(g)(1).) The commenter also argued 

that the text of section 129 shows that 

Congress expressly considered the issue 

of whether to regulate heat recovery 

units under section 129 by providing 

only limited, specific exemptions. Thus, 

according to the commenter’s 

55574 Federal Register / Vol. 70, No. 183 / Thursday, September 22, 2005 / Rules and Regulations 

interpretation of the statute, EPA must 

set section 129 standards for any unit 

that combusts any solid waste, with the 

narrow exception of the categories of 

energy recovery units specifically 

enumerated in section 129(g)(1). The 

commenter also asserts that EPA 

acknowledged this position in the 

hospital, medical, and infectious waste 

incinerator (HMIWI) rules, by stating the 

following: 

The EPA disagrees with commenters that 

contend EPA has no authority to regulate 

cement kilns under section 129. Section 

129(a)(1)(A) requires the Administrator to 

establish performance standards and other 

requirements for each category of solid waste 

incineration units. Congress specifically 

listed in section 129 various categories of 

solid waste incineration units that EPA must 

regulate. Section 129(g)(1) broadly defines 

solid waste incineration unit as ‘‘a distinct 

operating unit of any facility which combusts 

any solid waste material * * *’’ This 

definition clearly indicates Congress’ intent 

to regulate more than just incinerators 

because the definition sweeps within its 

scope any facility that is combusting any 

solid waste. 

Response: Inherent in EPA’s 

implementation of CAA section 129 is 

the discretion to identify the types of 

sources covered by the statutorily 

undefined category of commercial or 

industrial solid waste incineration 

units. Considered as a whole, the 

statutory provisions of section 129(a), 

(g), and (h) require that EPA determine, 

as part of the regulatory process, which 

combustion units should be subject to 

regulation under section 129. For 

example, as explained in the previous 

response, EPA has determined that 

boilers combusting materials for energy 

recovery are subject to section 112 and 

hence, are not subject to section 129. 

The commenter relies on the statutory 

definition of solid waste incineration 

unit to argue that any unit combusting 

any solid waste at any time should be 

covered under CISWI. However, we do 

not agree with this broad interpretation 

of the definition of ‘‘solid waste 

incineration unit’’ based on the use of 

the modifier ‘‘any.’’ We believe the 

word ‘‘any’’ should be interpreted 

within the broader frame of reference of 

its statutory context, consistent with 

observations of the Supreme Court in 

Nixon v. Missouri Municipal League, 

541 U.S. 125, 124 S. Ct. 1555 (2004). In 

this recent opinion, the Court observed 

that Congress’s understanding of ‘‘any’’

can differ depending on the statutory 

setting. (See 124 S. Ct. at 1561.) Nixon 

and a related line of cases support 

looking for indications in the statute 

that suggest a more limited meaning of 

the modified term is possible or 

intended. (See 70 FR 33838, 33842 (June 

10, 2005).) Indications of a more limited 

meaning can be found within the 

definition of solid waste incineration 

unit in CAA section 129(g)(1) and CAA 

section 129(h). 

The commenter argues that EPA 

should stop reading the definition of 

‘‘solid waste incineration unit’’ in CAA 

section 129(g)(1) after the phrase ‘‘any 

solid waste material.’’ Thus, according 

to the commenter, a CISWI unit must 

include ‘‘any facility which combusts 

any solid waste material.’’ However, the 

commenter fails to give meaning to the 

remainder of the sentence in section 

129(g)(1), which provides that a solid 

waste incineration unit under section 

129 includes a facility that combusts 

‘‘any solid waste material from 

commercial or industrial 

establishments.’’ There is a distinction 

between ‘‘any solid waste material’’ and 

‘‘any solid waste material from 

commercial or industrial 

establishments.’’ In order to identify 

solid waste material from commercial 

and industrial establishments, we have 

promulgated a definition of 

‘‘commercial or industrial waste’’ which 

incorporates the broader definition of 

‘‘solid waste.’’ As discussed in the 

earlier response, because it is sometimes 

not obvious whether a commercial and 

industrial establishment treats material 

as a waste or as a fuel, we have 

developed the definition of commercial 

or industrial waste to identify solid 

waste from commercial and industrial 

establishments based on whether the 

waste is burned without energy 

recovery. 

Moreover, we do not agree that the 

‘‘small power production facilities’’ or 

‘‘qualifying cogeneration facilities’’

described in CAA section 129(g)(1) are 

the only types of energy recovery 

facilities that are properly excluded 

from the CISWI source category. To the 

extent that another type of energy 

recovery facility is not considered to be 

combusting solid waste from a 

commercial and industrial 

establishment, that facility should also 

be excluded from the CISWI source 

category. We do not read section 

129(g)(1) to establish an exclusive list of 

excluded sources. See National Wildlife 

Federation v. Gorsuch, 693 F.2d 156, 

172 (D.C. Cir. 1982) (use of the term 

‘‘includes’’ allows for additional, 

unstated meanings); Chemehuevi Indian 

Tribe v. California St. Bd. of 

Equalization, 757 F.2d 1047, 1054 (9th 

Cir. 1985), rev’d on different grounds, 

106 S. Ct. 289 (1985) (‘‘includes’’ is a 

term of enlargement, not of limitation); 

United States v. Huber, 603 F.2d 387, 

394 (2d Cir. 1979), cert. denied, 100 S. 

Ct. 1312 (1980) (use of the word 

‘‘includes,’’ rather than a more 

restrictive term such as ‘‘means,’’

indicates that the list is not exhaustive 

but merely illustrative). 

Furthermore, the definition of ‘‘solid 

waste incineration unit’’ applies to all 

categories of units subject to CAA 

section 129. The enumerated exclusions 

in CAA section 129(g)(1) ensure that 

specific types of facilities are not 

included in any category under section 

129. Thus, we do not read these 

exclusions to be an exclusive list of 

energy recovery facilities that are not 

included in the CISWI source category. 

Furthermore, CAA section 129(h)(2) 

states that any unit subject to a section 

129 standard cannot also be subject to 

a CAA section 112(d) standard. The 

rules of logic support the position that 

the contrapositive of that statement is 

equally true—any unit subject to a 

section 112(d) standard cannot also be 

subject to a section 129 standard. This 

indicates a Congressional intent not to 

give the word ‘‘any’’ the broad meaning 

suggested by the commenter because it 

would require that EPA periodically 

address units regulated by section 112 

under section 129 at times when such 

units combust solid waste material, 

even if such units are designed and 

operated for energy recovery. 

The quote cited by the commenter 

regarding cement kilns expressed EPA’s 

position that we have the authority to 

regulate units under CAA section 129 

based on their primary function. Thus, 

we indicated that if we determined that 

a unit, that might be called a cement 

kiln was actually functioning more like 

an incinerator, we would have the 

authority to regulate that unit under 

section 129 even though it was not 

identified as an incinerator. However, 

we did not make a finding at that time 

that we were required to regulate 

cement kilns under section 129 because 

they functioned as incinerators. In 

addition, it appears from the quote that 

we focused at that time only on the 

phrase ‘‘any solid waste material’’

without considering the additional 

language ‘‘from commercial or 

industrial establishments’’ that is 

relevant to the CISWI source category. 

Ultimately, we determined that 

cement kilns should not be regulated in 

the final HMIWI rules, but instead 

should be regulated under CAA section 

112. Cement kilns, including those 

burning nonhazardous solid waste for 

purposes of energy recovery, have been 

regulated since 1999 under the portland 

cement manufacturing industry 

NESHAP, which is based on MACT. The 

NESHAP regulates both major and area 

sources, and its requirements reduce 

emissions of PM, multiple metals, 

Federal Register / Vol. 70, No. 183 / Thursday, September 22, 2005 / Rules and Regulations 55575 

dioxins/furans, and total hydrocarbons 

(which are a surrogate for other organic 

HAP including polycyclic organic 

matter (POM), benzene, toluene, and 

formaldehyde). The final rule has 

already been implemented and sources 

are complying with it. As discussed 

above, CAA section 129(h)(2) is clear 

that regulations under sections 129 and 

112 are mutually exclusive. 

Accordingly, sources such as cement 

kilns, boilers and process heaters that 

are subject to section 112 standards are 

not CISWI units. 

Comment: One commenter believes 

that electric steam generating units that 

are already subject to NSPS controls 

under 40 CFR part 60, subparts Da or 

Db, should not be subject to regulation 

under CAA section 129. The commenter 

stated that EPA did not consider electric 

utilities that co-combust solid waste 

with fuel in its rulemaking activities, 

and, therefore, EPA’s regulatory impact 

analysis did not account for such units. 

The commenter urged EPA to clarify 

that the definitions of ‘‘commercial or 

industrial waste’’ and ‘‘commercial and 

industrial solid waste incineration 

(CISWI) unit’’ do not inadvertently 

result in the CAA section 129 program 

regulating electric utility boilers, 

including circumstances where such 

boilers co-combust very small amounts 

of nonhazardous solid waste with fuel 

during the production of power. An 

example is periodic boiler cleaning, 

when deposits that accumulate on the 

interior of boiler tube walls are removed 

with a cleaning agent. The resulting 

material is combusted in the boiler with 

fuel while the boiler is being operated 

to recover energy and produce power. 

Combustion is a highly effective method 

of destroying such materials. The 

commenter pointed out that EPA agreed 

with their comment on the November 

1999 CISWI proposal that the regulatory 

text swept too broadly by potentially 

capturing the episodic circumstances in 

which electric utilities combust small 

amounts of such nonhazardous solid 

waste with fuel. The commenter also 

stated that the legislative history makes 

clear that Congress intended section 129 

to apply only to units dedicated to solid 

waste combustion and cited specific 

legislative history supporting this point. 

The commenter further stated that 

application of section 129 to electric 

utility boilers would be at odds with 

CAA section 112, and the language of 

the CAA makes clear Congress’s intent 

for EPA to regulate nonhazardous waste 

combustion sources under either CAA 

section 129 or CAA section 112, but not 

both. 

Response: We agree that electric 

utility boilers should not be covered by 

the final CISWI rules because they are 

designed and operated for purposes of 

energy recovery and do not function as 

incinerators. We addressed this issue in 

the November 2000 CISWI comment 

response document (EPA–453/R–00–

008). Electric utility boilers are 

regulated under authorities other than 

CAA section 129. Furthermore, the 

wording of CAA section 129(h) makes 

clear the Congressional intent for CAA 

regulations under CAA section 112 or 

section 129 to be mutually exclusive. In 

section 112(n)(1)(A), Congress set forth 

the limited circumstances under which 

EPA could regulate electric utility 

boilers under section 112. First Congress 

instructed EPA to complete a study of 

the hazards to public health reasonably 

expected to occur as a result of 

emissions by electric utility steam 

generating units of pollutants listed in 

section 112 after imposition of the 

requirements of the CAA. Then it 

required EPA to regulate electric utility 

steam generating units under section 

112 if the Administrator finds such 

regulation is appropriate and necessary 

considering the results of the study 

required by section 112(n). EPA recently 

determined that it was neither 

appropriate nor necessary to regulate 

electric utility boilers under Section 

112. (See 70 FR 15994, March 29, 2005.) 

The fact that the CAA specifically 

addressed electric utilities under section 

112 indicates that Congress did not 

intend them to be regulated under 

section 129. Similarly, since 

promulgation of the final CISWI rules, 

EPA promulgated section 112 

regulations for industrial, commercial 

and institutional boilers (40 CFR part 

63, subpart DDDDD). That final rule 

applies to some electric steam 

generating units (e.g., independent 

power producers). The language of CAA 

section 112(h) makes clear the 

Congressional intent for CAA regulation 

under section 129 or section 112 to be 

mutually exclusive. Accordingly, 

sources subject to section 112 standards 

are not CISWI units. We are making 

minor adjustments to the definition of 

‘‘commercial or industrial waste’’ to 

clarify our intent that boilers operated 

for energy recovery are not subject to 

CISWI, even if such units combust, 

along with other fuels, a small amount 

of material that might, under some 

circumstances, be considered waste. 

The revised definition clarifies that the 

critical consideration in determining 

whether a unit is burning commercial or 

industrial waste is the function of the 

combustion unit, and the primary 

indicator of function is whether or not 

the unit is designed and operated to 

recover energy for a useful purpose. 

The reference definition of energy 

recovery, which has not been changed, 

incorporates the concept of recovering 

thermal energy for ‘‘useful purposes.’’

The revised definition of ‘‘commercial 

or industrial’’ waste excludes from 

CISWI units (such as boilers) whose 

design provides for energy recovery and 

that are operated for energy recovery. 

However, units designed and operated 

without energy recovery remain subject 

to the CISWI rules. Thus, we believe the 

revised definition of ‘‘commercial or 

industrial waste’’ is sufficiently clear to 

exclude utility steam generating units 

from the CISWI rules. 

Comment: One commenter strongly 

believes that a unit that incinerates solid 

waste at a rate of less than 1,000 pounds 

per hour (lb/hr) and recovers heat from 

the outside of the burn chamber of the 

unit for useful purposes should be 

exempt from the final CISWI rules. The 

commenter believes that such units are 

necessary in remote locations in 

northern climates for disposal of small 

volumes of solid waste and to generate 

heat as a useful resource. 

Response: The commenter has not 

provided any specific data to support 

the technical or legal basis for a size 

cutoff. However, at this time, waste heat 

recovery units are not covered under 

CISWI because we have not assessed the 

impacts of including such units in the 

final CISWI rules. An impacts 

assessment is necessary, but is best done 

when we respond to the CISWI remand 

and can perform comprehensive 

analyses that address the addition of 

waste heat recovery units, any questions 

on the applicability of the CISWI rules 

that may be raised by promulgation of 

rules for the OSWI source category, and 

remand issues regarding determination 

of the MACT floor and emission limits. 

In a subsequent rulemaking action in 

response to the CISWI remand, we 

intend to propose additional regulatory 

language to address units with only 

waste heat recovery and assess the 

impacts of the inclusion of these units 

in the CISWI source category. 

Comment: One commenter strongly 

supports EPA’s approach of not 

specifying a particular level of British 

thermal units per pound (Btu/lb) as a 

regulatory threshold. The commenter 

also included a discussion of the 5,000 

Btu/lb threshold that EPA had 

previously proposed in the CISWI rules, 

and pointed out that valid energy 

recovery could be obtained from 

materials with lower Btu values. The 

commenter indicated (in attached 

comments submitted in response to 

previous rulemakings) that valid energy 

55576 Federal Register / Vol. 70, No. 183 / Thursday, September 22, 2005 / Rules and Regulations 

recovery from the cement kiln process 

has been obtained with materials with 

heating values between 996 and 1,948 

Btu/lb, but recommended that, if EPA 

does adopt a Btu threshold, a threshold 

of 3,000 Btu/lb is appropriate and 

conservatively high. 

Response: The EPA agrees that a Btu 

threshold is not needed for reasons 

described in the February 2004 notice 

and the 2000 CISWI promulgation 

preamble. In the preamble to the 

December 1, 2000 final CISWI rules (65 

FR 75342), EPA summarized 

commenters’ statements that ‘‘* * * the 

universe of materials burned for energy 

recovery is much broader than those 

defined as ‘‘fuels.’’ For example, several 

of today’s combustion technologies and 

some new emerging technologies can 

burn materials for energy recovery 

having heat values less than the 

proposed 5,000 Btu/lb threshold for 

considering a material a fuel.’’ The EPA 

responded that ‘‘* * * we agree that 

several of today’s combustion 

technologies, including some emerging 

technologies, may be capable of burning 

materials with a heat value of less than 

5,000 Btu/lb to recover energy. 

Therefore, we have deleted the 

requirement from the definition of solid 

waste in the final NSPS and EG.’’ We 

still maintain this position. In addition 

to the information submitted by the 

commenter stating that cement kilns can 

recover heat from materials in the 1,000 

to 2,000 Btu/lb range, EPA found 

examples of fluidized bed combustion 

units and other technologies, used at 

pulp and paper mills and for other 

utility, industrial, or commercial uses, 

that recover useful energy from sludges 

and other materials with low Btu 

contents (e.g., in the range of 1,000 to 

3,800 Btu/lb). There is no bright-line 

Btu value that can be used to 

distinguish if a material is a fuel burned 

for energy recovery or a waste disposed 

of for purposes other than energy 

recovery. The approach taken in the 

February 2004 proposed definition is 

more workable than a Btu/lb cutoff. 

B. Comments on the Definition of CISWI 

Unit 

Comment: One commenter supports 

the definition of ‘‘CISWI unit,’’ but 

suggested various clarifications to better 

express the intent of the definitions. 

Response: Although we did not adopt 

any specific language provided by the 

commenter, we amended the definitions 

to remove redundant language and to 

better express our intent. For example, 

we are removing the following phrase 

from the definition of ‘‘commercial or 

industrial waste’’: ‘‘(including field 

erected, modular, and custom built 

incineration units operating with 

starved or excess air).’’ This language is 

already contained within the definition 

of ‘‘CISWI unit’’ and need not be 

included in the definition of the waste. 

C. Comments on the Definition of 

Commercial or Industrial Waste 

Comment: One commenter supports 

EPA’s definition of ‘‘commercial or 

industrial waste.’’ The commenter 

agrees that, considering high energy 

costs, materials burned for heat recovery 

should not be considered solid waste. 

The commenter also agrees that 

materials burned without heat recovery 

for a useful purpose should be regulated 

as commercial and industrial solid 

waste. 

Response: We are promulgating the 

definition proposed in the February 17, 

2004 Federal Register notice, with 

minor clarifications, and, as described 

elsewhere in this preamble, we are not 

including units with waste heat 

recovery in the final CISWI rules at this 

time. 

Comment: One commenter agrees 

with the proposed definition of 

‘‘commercial or industrial waste,’’ but 

suggested some rewording for clarity. 

Response: We agree with the 

commenter that there is room to 

improve the clarity of the proposed 

definition and have made some 

modifications to the definitions of 

‘‘commercial or industrial waste’’ with 

this in mind. However, we have 

reorganized the proposed definition in a 

different manner than suggested by the 

commenter. We believe our modified 

definition is clearer than the reworded 

definition of commercial or industrial 

waste provided by the commenter. The 

commenter’s definition does not reflect 

our decision to omit the phrase 

‘‘combusted for reasons that do not 

include the recovery of heat for a useful 

purpose’’ and insert the phrase ‘‘whose 

design does not provide for energy 

recovery (as defined in this subpart)’’ to 

better reflect the key principal that we 

discussed in the preamble of the 

proposed rule. Furthermore, EPA’s 

revised definition reflects our decision 

not to regulate units with only waste 

heat recovery at this time, but to 

propose to regulate such units when we 

respond to the remand of the final 

CISWI rules. 

D. Comments on the Definition of Solid 

Waste 

Comments: One commenter stated 

that EPA’s arguments about the 

definition of solid waste are irrelevant 

and without merit. Pointing to section 

129(g)(6) of the CAA, which provides 

that solid waste shall have the meanings 

established by EPA pursuant to the 

SWDA, the commenter argues that EPA 

has established only one 

‘‘comprehensive definition’’ of solid 

waste under the SWDA: the definition 

in 40 CFR 261.2. (See 69 FR 7395/2.) 

Furthermore, the commenter asserts that 

this definition was the only 

comprehensive definition that existed 

when Congress enacted section 129, 

which, in the commenter’s view, 

indicates that Congress intended EPA to 

use that definition. The commenter 

made this point in an attempt to refute 

EPA’s argument that because section 

261.2 ‘‘defines solid waste specifically 

for purposes of identifying hazardous 

solid waste [it] could not serve as a 

regulatory definition for purposes of 

identifying nonhazardous solid waste 

under CAA section 129.’’ The 

commenter pointed out that EPA has 

not provided a reason that this 

definition is unusable for identifying 

nonhazardous solid waste, and the 

refusal to use the definition is arbitrary, 

capricious, and unlawful. Finally, the 

commenter added that even if EPA were 

not compelled to use the definition 

provided in 40 CFR 261.2, EPA’s 

attempt to provide a new definition 

solely for the purpose of the CISWI 

regulation is unlawful because the CAA 

provides that ‘‘solid waste’’ shall have 

the meanings established by EPA 

‘‘pursuant to the Solid Waste Disposal 

Act.’’

Response: We disagree with the 

commenter. Section 129(g)(6) of the 

CAA states that ‘‘solid waste * * * shall 

have the meanings established by the 

Administrator pursuant to the Solid 

Waste Disposal Act.’’ Section 129(g) also 

states that the term ‘‘solid waste 

incineration unit’’ does not include 

units required to have a permit under 

section 3005 of the SWDA. This 

reference to section 3005 of the SWDA 

refers to the hazardous waste regulatory 

program authorized under the SWDA. 

This language effectively limits the 

scope of EPA’s authority under section 

129 to units that burn nonhazardous 

solid waste. 

However, the definition of ‘‘solid 

waste’’ in section 261.2 cited by the 

commenter applies only to hazardous 

wastes, whereas the final CISWI rules 

apply only to nonhazardous solid 

wastes. To develop and implement the 

hazardous waste regulatory program 

authorized by the SWDA, EPA adopted 

a definition of hazardous waste 

pursuant to the SWDA. This definition 

is found in 40 CFR part 261. In defining 

hazardous waste, 40 CFR part 261 also 

defines solid waste. In doing so, 40 CFR 

261.1(b)(1) states that this definition of 

solid waste applies only to wastes that 

Federal Register / Vol. 70, No. 183 / Thursday, September 22, 2005 / Rules and Regulations 55577 

are hazardous for purposes of 

implementing subtitle C of the Resource 

Conservation and Recovery Act (RCRA). 

Section 261.1(b)(2) indicates that the 40 

CFR part 261 definition identifies only 

some of the wastes that are considered 

solid wastes under other sections of 

RCRA. 

Much of the complexity and 

specificity of the 40 CFR part 261 

definition was unique to hazardous 

waste and was needed to assure that 

hazardous waste is properly identified, 

tracked, transported, and disposed of, 

and is not inappropriately discarded or 

abandoned. One U.S. Appeals Court has 

recognized that the words of the RCRA 

statute contemplate that EPA refine and 

narrow the definition of solid waste for 

the sole purpose of Subchapter C of 

RCRA. Connecticut Coast Fisherman’s 

Ass’n v. Remington Arms Co., Inc., 989 

F.2d 1305, 1315 (2d Cir. 1993). This 

court recognized that the RCRA statute 

contemplated more than one definition 

for the term ‘‘solid waste.’’ Id. 

Consequently, we looked to the 

definition of solid waste in the SWDA 

and to other regulatory definitions of 

solid waste adopted by EPA under the 

authority of that statute that also apply 

to various types of nonhazardous solid 

wastes (i.e., definitions found in 40 CFR 

part 240 through 40 CFR part 259). 

These definitions reflect the general 

definition of solid waste found in the 

SWDA (42 U.S.C. 6903), but they each 

vary slightly depending on the 

particular regulatory circumstances. 

Furthermore, these solid waste 

definitions found in the rules for 

nonhazardous solid wastes do not 

contain the extensive detail found in the 

definition of solid waste in the 40 CFR 

part 261 hazardous waste rules. 

The fact that the language of the 

individual regulatory definitions of 

solid waste vary from definition to 

definition indicates that the 

Administrator has not adopted a single 

authoritative definition to identify 

nonhazardous solid waste under the 

SWDA. Because the Administrator has 

not adopted a single authoritative 

definition of nonhazardous solid waste, 

it is reasonable for EPA to adopt an 

appropriate definition for purposes of 

the final CISWI rules so long as it is not 

inconsistent with the SWDA. As 

described in previous Federal Register 

actions pertaining to the final CISWI 

rules (64 FR 67104, November 30, 1999 

and 65 FR 75342, December 1, 2000) 

EPA has adopted, under the joint 

authority of the CAA and RCRA, a 

definition of solid waste that is used 

solely to identify nonhazardous solid 

waste for the regulatory programs 

authorized by CAA section 129, such as 

the final CISWI rules. The definition 

proposed in the February 2004 CISWI 

notice is the same as the definition 

previously adopted for the final CISWI 

rules, and we consider the definition of 

solid waste in the final rules to be 

consistent with the SWDA. 

Comment: Several commenters 

support the proposed definition of 

‘‘solid waste,’’ which is the same as that 

already contained in 40 CFR 60.2265. 

One of these commenters stated that, to 

implement this (CISWI) rule, EPA 

should continue to use definitions 

designed to address the particular 

regulatory problems that it poses in the 

context of the CAA as a whole, rather 

than being bound by definitions under 

RCRA that were designed to serve 

completely different purposes. The 

commenters stated that, since EPA has 

never established a single, all-purpose 

definition of solid waste under RCRA, 

EPA was authorized to establish a 

definition of ‘‘solid waste’’ to 

implement CISWI, as long as that 

definition was consistent with RCRA. 

The commenter added that EPA’s 

definition of ‘‘commercial or industrial 

waste’’ under CISWI is fully consistent 

with RCRA. The statute, § 1004(27), 

defines solid waste as discarded 

material. Since materials from which 

useful energy or raw materials are 

recovered are not discarded, the final 

CISWI rule definition fully implements 

the statute. The commenter added that 

units excluded from CISWI were not 

excluded from regulation under the 

CAA, but would instead be subject to 

similar standards under CAA section 

112. The fact that units will be regulated 

should broaden EPA’s discretion. The 

commenter supports the major aspects 

of the proposal. 

Response: We agree that the proposed 

definition of solid waste is appropriate 

for the reasons set forth in our prior 

response. We agree that EPA has never 

established a single, all-purpose 

definition of solid waste under RCRA 

and that we have the authority to 

establish a definition of solid waste for 

purposes of the CISWI rules. 

E. Comments on the Rulemaking 

Process 

Comment: One commenter challenged 

the rulemaking process, arguing that 

EPA committed to convene further 

proceedings to allow for additional 

public comment on the CISWI 

definitions, but then finalized the boiler 

NESHAP under CAA section 112. In the 

commenter’s view, this series of events 

rendered the reconsideration proceeding 

on the CISWI definitions meaningless 

since EPA had already decided which 

units would be covered under the final 

boiler NESHAP. 

Response: In order to comply with a 

deadline established in a Consent 

Decree (which was negotiated and 

signed by counsel for the commenter), 

EPA was required to finalize the boilers 

NESHAP under CAA section 112 by 

February 27, 2004. As a result of this 

deadline, EPA did not have the ability 

to wait to finalize the boiler NESHAP 

until the conclusion of EPA’s 

reconsideration of the CISWI 

definitions. The notice of proposed 

rulemaking on the CISWI definitions 

was signed by the Assistant 

Administrator for Air and Radiation on 

February 10, 2004 and published in the 

Federal Register on February 17, 2004. 

The Administrator signed the final 

boiler NESHAP on February 26, 2004, 

and EPA published the final rule in the 

Federal Register on September 14, 2004 

after an unforeseen delay. 

Because these actions occurred 

contemporaneously, we acknowledged 

in the Response to Comments document 

for the final boiler NESHAP that we 

were soliciting further comment on the 

CISWI definitions. See ‘‘Response to 

Public Comments on Proposed 

Industrial, Commercial, and 

Institutional Boilers and Process Heaters 

NESHAP’’ (Boilers RTC). In that 

document, we stated that ‘‘[c]hanges 

made to the CISWI rule in the 

promulgated rule that affect boilers and 

process heaters will be dealt with after 

the promulgation of the boiler MACT 

standards.’’ (See Boilers RTC at 167.) 

Thus, we informed the public that we 

would take further action to address the 

scope of the boilers NESHAP if it was 

necessary after our reconsideration of 

the CISWI definitions. 

Our final action in the boilers 

NESHAP on February 26, 2004 was 

informed by the definitions that we had 

proposed on February 17, 2004 in the 

CISWI reconsideration action. Thus, at 

that time, we had intended for the scope 

of the final boilers NESHAP to be 

consistent with the proposed scope of 

the final CISWI rules. Our rationale for 

the action in the final boilers NESHAP 

was based on what EPA proposed in the 

reconsideration action on the CISWI 

definitions. However, as shown by the 

statements described above, we 

continued to recognize that it might be 

necessary to make changes to the CISWI 

definitions and final boilers NESHAP 

based on public comments received on 

this reconsideration. We made clear that 

our final action in the boilers NESHAP 

did not preclude the possibility of 

further action to amend the scope of the 

boilers NESHAP after receiving public 

55578 Federal Register / Vol. 70, No. 183 / Thursday, September 22, 2005 / Rules and Regulations 

comments on the scope of the CISWI 

definitions. 

VI. Relationship to NESHAP for Boilers 

and Process Heaters 

Based on our conclusions in this 

reconsideration action for CISWI, we do 

not believe it is necessary to take any 

action to amend our NESHAP for 

Industrial, Commercial, and 

Institutional Boilers and Process Heaters 

(40 CFR part 63, subpart DDDDD). The 

definitions in the Boilers and Process 

Heaters NESHAP that define the scope 

of the source category are consistent 

with our definitions for the CISWI 

source category. In 40 CFR part 63, 

subpart DDDDD, we define a boiler as 

‘‘an enclosed device using controlled 

flame combustion and having the 

primary purpose of recovering thermal 

energy in the form of steam or hot 

water.’’ (See 40 CFR 63.7575.) In 

addition, we define a process heater as 

‘‘an enclosed device using controlled 

flame, that is not a boiler, and the unit’s 

primary purpose is to transfer heat 

indirectly to a process material (liquid, 

gas, solid) or to heat transfer material for 

use in a process unit, instead of 

generating steam.’’ (See 40 CFR 

63.7575.) The NESHAP apply to 

industrial, commercial, or institutional 

boilers and process heaters. (See 40 CFR 

63.7485.) 

VII. Impacts of the Final Rules 

Today’s final amendments to the 

definitions do not change the scope of 

the CISWI rules or the requirements of 

the rules. The amendments to the 

definitions are meant to clarify the 

intent of the definitions that were 

finalized as part of the December 1, 

2000 final CISWI rules. Therefore, 

today’s action does not change the 

economic, environmental, or other 

impacts of the existing CISWI rules. 

The definitions as proposed in the 

February 17, 2004 notice would have 

changed the scope of the rules to 

include units with only waste heat 

recovery. While we currently intend to 

propose to cover these units under 

CISWI in the future when we conduct 

additional rulemaking proceedings in 

response to the remand, we have not 

performed analyses of the 

environmental and economic impacts 

associated with covering these sources 

under CISWI. Therefore, we are not 

taking final action concerning these 

units at this time. During the 

development of our response to the 

CISWI remand, we intend to analyze the 

environmental, cost, and economic 

impacts of requiring waste heat recovery 

units to comply with emission limits 

and other CISWI requirements, and to 

propose broadening the scope of the 

final CISWI rules to cover these sources. 

We will provide notice and opportunity 

to comment on the estimated impacts, 

including impacts on small entities, in 

our proposed response to the remand. 

VIII. Future Actions on the Final CISWI 

Rules 

The final amendments to the 

definitions announced in this action 

will take effect immediately. As 

explained above, in our action on 

remand, we intend to propose 

additional changes that would cover 

units with only waste heat recovery in 

the CISWI source category, as discussed 

earlier. In addition, the remand action 

will also address such issues as the 

MACT floor determination, emission 

limits, and other questions on the 

applicability of the December 2000 

CISWI rules and the interface with the 

rules for OSWI units. To properly 

address these issues, we will need to 

perform additional analyses to 

determine the changes that will occur to 

the CISWI rules and the associated 

impacts of these changes. To completely 

assess the impacts, these analyses are 

best performed when we are addressing 

all of the issues involved with the 

CISWI remand including, among other 

things, potential changes to the number 

of regulated units (e.g., by the addition 

of units with only waste heat recovery) 

and the control techniques used in the 

newly expanded CISWI source category. 

Therefore, when we propose our 

response to the remand, we will take 

public comments on any proposed 

changes and their associated impacts, 

and then promulgate final rules. 

IX. Statutory and Executive Order 

Reviews 

The statutory and executive order 

reviews described in this section reflect 

the fact that the final definitions 

contained in the CISWI rule 

amendments do not change the scope of 

the rules or the requirements of the 

rules. The amendments are meant to 

clarify the intent of the definitions that 

were finalized as part of the December 

1, 2000, CISWI rules. In the future, we 

will propose any additional changes to 

the CISWI rules that we determine are 

necessary to respond to the remand. At 

that time, EPA will consider the 

combined effects of all of the regulatory 

changes that we will propose as part of 

the CISWI remand. 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), EPA must 

determine whether the regulatory action 

is ‘‘significant’’ and, therefore, subject to 

review by OMB and the requirements of 

the Executive Order. The Executive 

Order defines ‘‘significant regulatory 

action’’ as one that is likely to result in 

a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or Tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs, or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

Pursuant to the terms of Executive 

Order 12866, it has been determined 

that this action does not constitute a 

‘‘significant regulatory action’’ because 

it does not meet any of the above 

criteria. Consequently, this action was 

not submitted to OMB for review under 

Executive Order 12866. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. 

However, the Office of Management and 

Budget (OMB) has previously approved 

the information collection requirements 

contained in the existing regulations at 

60 CFR part CCCC and 60 CFR part 

DDDD under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

§ 3501 et seq. Information Collection 

Request (ICR) documents were 

previously prepared for the CISWI NSPS 

and the CISWI EG when they were 

promulgated in 2000. Both ICRs were 

approved by OMB and assigned OMB 

control numbers (OMB 2060–0450/ICR 

No. 1926.02 for subpart CCCC of 40 CFR 

part 60 and OMB 2060–0451/ICR No. 

1927.02 for subpart DDDD of 40 CFR 

part 60). A copy of the ICR documents 

may be obtained from Susan Auby by 

mail at the Collection Strategies 

Division, U.S. Environmental Protection 

Agency (2822), 1200 Pennsylvania 

Avenue NW., Washington, DC 20460, by 

e-mail at auby.susan@epa.gov, or by 

calling (202) 566–1672. A copy may also 

be downloaded off the Internet at 

http://www.epa.gov/icr. 

The final definitions contained in the 

amendments to the final CISWI rules do 

not impact the burden estimates 

previously made because the definitions 

do not change the scope of the CISWI 

Federal Register / Vol. 70, No. 183 / Thursday, September 22, 2005 / Rules and Regulations 55579 

rules or the requirements of the CISWI 

rules. Consequently, the ICRs have not 

been revised. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The EPA has determined that it is not 

necessary to prepare a regulatory 

flexibility analysis in connection with 

the final rule amendments. 

For purposes of assessing the impacts 

of today’s action on small entities, small 

entity is defined as follows: 

(1) A small business that is an 

ultimate parent entity in the regulated 

industry that has a gross annual revenue 

less than $6.5 million (this varies by 

industry category, ranging up to $10.5 

million for North American Industrial 

Classification System (NAICS) code 

562213 (VSMWC)), based on Small 

Business Administration’s size 

standards; 

(2) A small governmental jurisdiction 

that is a government of a city, county, 

town, school district or special district 

with a population of less than 50,000; or 

(3) A small organization that is any 

not-for-profit enterprise that is 

independently owned and operated and 

is not dominant in its field. 

After considering the economic 

impacts of the amendments to the final 

CISWI rules on small entities, EPA has 

concluded that this action will not have 

a significant economic impact on a 

substantial number of small entities. 

The EPA previously determined that the 

final CISWI rules will not have a 

significant economic impact on a 

substantial number of small entities (65 

FR 75348, December 1, 2000), and, 

therefore, determined that it was not 

necessary to prepare a regulatory 

flexibility analysis in connection with 

the December 1, 2000 final rules. The 

revised definitions contained in the 

final amendments to the CISWI rules do 

not change the scope or stringency of 

the CISWI rules or cause additional 

units to become subject to the rules. 

Therefore, the previous conclusion that 

the CISWI rules will not have a 

significant impact on a substantial 

number of small entities remains valid. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act (UMRA) of 1995, Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and Tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures by State, local, 

and Tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more in any 1 year. 

Before promulgating an EPA rule for 

which a written statement is needed, 

section 205 of the UMRA generally 

requires EPA to identify and consider a 

reasonable number of regulatory 

alternatives and adopt the least costly, 

most cost-effective, or least burdensome 

alternative that achieves the objectives 

of the rule. The provisions of section 

205 do not apply when they are 

inconsistent with applicable law. 

Moreover, section 205 allows EPA to 

adopt an alternative other than the least 

costly, most cost-effective, or least 

burdensome alternative if EPA 

publishes with the final rule an 

explanation why that alternative was 

not adopted. 

Before EPA establishes any regulatory 

requirements that may significantly or 

uniquely affect small governments, 

including Tribal governments, EPA 

must develop a small government 

agency plan under section 203 of the 

UMRA. The plan must provide for 

notifying potentially affected small 

governments, enabling officials of 

affected small governments to have 

meaningful and timely input in the 

development of EPA’s regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

The EPA previously determined that 

the final CISWI rules do not contain a 

Federal mandate that may result in 

expenditures of $100 million or more 

for State, local, and Tribal governments, 

in the aggregate, or the private sector in 

any 1 year (65 FR 75348, December 1, 

2000). Thus, the CISWI rules are not 

subject to the requirements of section 

202 and 205 of the UMRA. In addition, 

EPA previously determined that the 

final CISWI rules contained no 

regulatory requirements that might 

significantly or uniquely affect small 

governments because the burden is 

small and the regulations do not 

unfairly apply to small governments. 

Therefore, the CISWI rules were not 

subject to the requirements of section 

203 of the UMRA. The revised 

definitions contained in the final 

amendments to the CISWI rules do not 

change the scope or stringency of the 

CISWI rules, and therefore, do not 

change our previous determinations. 

Therefore, we have determined that the 

amendments to the CISWI rules are not 

subject to the requirements of sections 

202, 203, or 205 of UMRA. 

E. Executive Order 13132: Federalism 

Executive Order 13132 (64 FR 43255, 

August 10, 1999), requires EPA to 

develop an accountable process to 

ensure ‘‘meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ is 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on 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.’’

Under section 6 of Executive Order 

13132, EPA may not issue a regulation 

that imposes substantial direct 

compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, or EPA consults with 

State and local officials early in the 

process of developing the proposed 

regulation. Also, EPA may not issue a 

regulation that has federalism 

implications and that preempts State 

law, unless EPA consults with State and 

local officials early in the process of 

developing the proposed regulation. 

The final CISWI rules, including the 

revised definitions contained in these 

amendments, do not have federalism 

implications. The final rules 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 

55580 Federal Register / Vol. 70, No. 183 / Thursday, September 22, 2005 / Rules and Regulations 

Executive Order 13132. The final rules 

will not impose substantial direct 

compliance costs on State or local 

governments, and will not preempt 

State law. Thus, Executive Order 13132 

does not apply to the final rule 

amendments. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, (65 FR 67249, 

November 9, 2000), requires EPA to 

develop an accountable process to 

ensure ‘‘meaningful and timely input by 

Tribal officials in the development of 

regulatory policies that have Tribal 

implications.’’ ‘‘Policies that have Tribal 

implications’’ is defined in the 

Executive Order to include regulations 

that have ‘‘substantial direct effects on 

relationship between the Federal 

government and the Indian tribes, or on 

the distribution of power and 

responsibilities between the Federal 

government and Indian tribes.’’

The final CISWI rules, including the 

revised definitions contained in these 

amendments, do not have Tribal 

implications, as specified in Executive 

Order 13175. The rules will not have 

substantial direct effects on Tribal 

governments, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes, 

as specified in Executive Order 13175. 

Thus, Executive Order 13175 does not 

apply to the final rule amendments. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045 (62 FR 19885, 

April 23, 1997), applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

EPA must evaluate the environmental 

health or safety effects of the planned 

rule on children, and explain why the 

planned regulation is preferable to other 

potentially effective and reasonably 

feasible alternatives EPA considered. 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that are based on 

health or safety risks, such that the 

analysis required under section 5–501 of 

the Executive Order has the potential to 

influence the regulation. The final rules, 

including these amendments to the 

definitions, are not subject to Executive 

Order 13045 because they are based on 

technology performance and not on 

health and safety risks. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001) because it is 

not a significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act (NTTAA) of 1995 (Public Law No. 

104–113; 15 U.S.C. 272 note) directs 

EPA to use voluntary consensus 

standards in their regulatory and 

procurement activities unless to do so 

would be inconsistent with applicable 

law or otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, 

business practices) developed or 

adopted by one or more voluntary 

consensus bodies. The NTTAA directs 

EPA to provide Congress, through 

annual reports to OMB, with 

explanations when an agency does not 

use available and applicable voluntary 

consensus standards. 

The EPA previously completed an 

NTTAA analysis for the final CISWI 

rules (65 FR 75349, December 1, 2000). 

The revised definitions contained in the 

amendments to the final CISWI rules do 

not involve any technical standards; 

thus, the requirements of section 12(d) 

of the NTTAA do not apply to these 

amendments. 

J. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. The EPA will 

submit a report containing the notice of 

final rules including the revised 

definitions for the CISWI rules and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

Publication of the notice of final rules 

in the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). These rules 

will be effective immediately upon 

publication in the Federal Register. 

List of Subjects in 40 CFR Part 60 

Environmental protection, 

Administrative practice and Procedure, 

Air pollution control, Intergovernmental 

relations, Reporting and recordkeeping 

requirements. 

Dated: September 14, 2005. 

Stephen L. Johnson, 

Administrator. 

■ For the reasons stated in the preamble, 

title 40, chapter I, of the Code of Federal 

Regulations is amended as follows: 

PART 60—[AMENDED] 

■ 1. The authority citation for part 60 

continues to read as follows: 

Authority: 42 U.S.C. 7401, et seq. 

Subpart CCCC—[AMENDED] 

■ 2. Section 60.2265 is amended by: 

■ a. Removing the definition of 

‘‘commercial and industrial waste’’; 

■ b. Adding the definition of 

‘‘commercial or industrial waste’’ in 

alphabetical order; and 

■ c. Revising the definitions of 

‘‘commercial and industrial solid waste 

incineration (CISWI) unit’’ and ‘‘solid 

waste’’ to read as follows: 

§ 60.2265 What definitions must I know? 

* * * * * 

Commercial and industrial solid 

waste incineration (CISWI) unit means 

any combustion unit that combusts 

commercial or industrial waste (as 

defined in this subpart), that is a 

distinct operating unit of any 

commercial or industrial facility 

(including field erected, modular, and 

custom built incineration units 

operating with starved or excess air), 

and any air curtain incinerator that is a 

distinct operating unit of any 

commercial or industrial facility that 

does not comply with the opacity limits 

under this subpart applicable to air 

curtain incinerators burning commercial 

or industrial waste. While not all CISWI 

units will include all of the following 

components, a CISWI unit includes, but 

is not limited to, the commercial or 

industrial solid waste feed system, grate 

system, flue gas system, waste heat 

recovery equipment, if any, and bottom 

ash system. The CISWI unit does not 

include air pollution control equipment 

or the stack. The CISWI unit boundary 

starts at the commercial or industrial 

waste hopper (if applicable) and extends 

through two areas: The combustion unit 

flue gas system, which ends 

immediately after the last combustion 

Federal Register / Vol. 70, No. 183 / Thursday, September 22, 2005 / Rules and Regulations 55581 

chamber or after the waste heat recovery 

equipment, if any; and the combustion 

unit bottom ash system, which ends at 

the truck loading station or similar 

equipment that transfers the ash to final 

disposal. The CISWI unit includes all 

ash handling systems connected to the 

bottom ash handling system. A CISWI 

unit does not include any of the fifteen 

types of units described in § 60.2555 of 

this subpart, nor does it include any 

combustion turbine or reciprocating 

internal combustion engine. 

Commercial or industrial waste means 

solid waste (as defined in this subpart) 

that is combusted at any commercial or 

industrial facility using controlled flame 

combustion in an enclosed, distinct 

operating unit: Whose design does not 

provide for energy recovery (as defined 

in this subpart); or operated without 

energy recovery (as defined in this 

subpart). Commercial or industrial 

waste also means solid waste (as 

defined in this subpart) combusted in an 

air curtain incinerator that is a distinct 

operating unit of any commercial or 

industrial facility. 

* * * * * 

Solid waste means any garbage, 

refuse, sludge from a waste treatment 

plant, water supply treatment plant, or 

air pollution control facility and other 

discarded material, including solid, 

liquid, semisolid, or contained gaseous 

material resulting from industrial, 

commercial, mining, agricultural 

operations, and from community 

activities, but does not include solid or 

dissolved material in domestic sewage, 

or solid or dissolved materials in 

irrigation return flows or industrial 

discharges which are point sources 

subject to permits under section 402 of 

the Federal Water Pollution Control Act, 

as amended (33 U.S.C. 1342), or source, 

special nuclear, or byproduct material 

as defined by the Atomic Energy Act of 

1954, as amended (42 U.S.C. 2014). 

* * * * * 

Subpart DDDD—[AMENDED] 

■ 3. Section 60.2875 is amended by: 

■ a. Removing the definition of 

‘‘commercial and industrial waste’’; 

■ b. Adding the definition of 

‘‘commercial or industrial waste’’ in 

alphabetical order; and 

■ c. Revising the definitions of 

‘‘commercial and industrial solid waste 

incineration (CISWI) unit’’ and ‘‘solid 

waste’’ to read as follows: 

§ 60.2875 What definitions must I know? 

* * * * * 

Commercial and industrial solid 

waste incineration (CISWI) unit means 

any combustion unit that combusts 

commercial or industrial waste (as 

defined in this subpart), that is a 

distinct operating unit of any 

commercial or industrial facility 

(including field erected, modular, and 

custom built incineration units 

operating with starved or excess air), 

and any air curtain incinerator that is a 

distinct operating unit of any 

commercial or industrial facility that 

does not comply with the opacity limits 

under this subpart applicable to air 

curtain incinerators burning commercial 

or industrial waste. While not all CISWI 

units will include all of the following 

components, a CISWI unit includes, but 

is not limited to, the commercial or 

industrial solid waste feed system, grate 

system, flue gas system, waste heat 

recovery equipment, if any, and bottom 

ash system. The CISWI unit does not 

include air pollution control equipment 

or the stack. The CISWI unit boundary 

starts at the commercial or industrial 

waste hopper (if applicable) and extends 

through two areas: The combustion unit 

flue gas system, which ends 

immediately after the last combustion 

chamber or after the waste heat recovery 

equipment, if any; and the combustion 

unit bottom ash system, which ends at 

the truck loading station or similar 

equipment that transfers the ash to final 

disposal. The CISWI unit includes all 

ash handling systems connected to the 

bottom ash handling system. A CISWI 

unit does not include any of the fifteen 

types of units described in § 60.2555 of 

this subpart, nor does it include any 

combustion turbine or reciprocating 

internal combustion engine. 

Commercial or industrial waste means 

solid waste (as defined in this subpart) 

that is combusted at any commercial or 

industrial facility using controlled flame 

combustion in an enclosed, distinct 

operating unit: Whose design does not 

provide for energy recovery (as defined 

in this subpart); or operated without 

energy recovery (as defined in this 

subpart). Commercial or industrial 

waste also means solid waste (as 

defined in this subpart) combusted in an 

air curtain incinerator that is a distinct 

operating unit of any commercial or 

industrial facility. 

* * * * * 

Solid waste means any garbage, 

refuse, sludge from a waste treatment 

plant, water supply treatment plant, or 

air pollution control facility and other 

discarded material, including solid, 

liquid, semisolid, or contained gaseous 

material resulting from industrial, 

commercial, mining, agricultural 

operations, and from community 

activities, but does not include solid or 

dissolved material in domestic sewage, 

or solid or dissolved materials in 

irrigation return flows or industrial 

discharges which are point sources 

subject to permits under section 402 of 

the Federal Water Pollution Control Act, 

as amended (33 U.S.C. 1342), or source, 

special nuclear, or byproduct material 

as defined by the Atomic Energy Act of 

1954, as amended (42 U.S.C. 2014). 

* * * * * 

[FR Doc. 05–18825 Filed 9–21–05; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Maritime Administration 

46 CFR Part 296 

[Docket No. MARAD–2004–18489] 

RIN 2133–AB62 

Maritime Security Program 

AGENCY: Maritime Administration, 

Department of Transportation. 

ACTION: Final rule. 

SUMMARY: This rule revises and adopts 

as final the interim final rule published 

in the Federal Register on July 20, 2004. 

The Maritime Administration (MARAD) 

is issuing this final rule to implement 

provisions of the National Defense 

Authorization Act for Fiscal Year 2004, 

the Maritime Security Act of 2003 (MSA 

2003). The MSA 2003 authorizes the 

creation of a new Maritime Security 

Program (MSP) that establishes a fleet of 

active, commercially viable, privately 

owned vessels to meet national defense 

and other security requirements and to 

maintain a United States presence in 

international commercial shipping. 

DATES: Effective Date: This final rule is 

effective November 21, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Taylor E. Jones II, Director, Office of 

Sealift Support, Maritime 

Administration, Telephone 202–366–

2323. For legal questions, call Murray 

Bloom, Chief, Division of Maritime 

Programs, Maritime Administration, 

202–366–5320. 

SUPPLEMENTARY INFORMATION: 

Background 

On October 8, 1996, the President 

signed the Maritime Security Act of 

1996 establishing the Maritime Security 

Program (MSP) for FYs 1996 through 

2005 to provide financial assistance of 

up to $2.1 million per vessel per year to 

operators of U.S.-flag vessels with 

approved MSP Operating Agreements. 

The MSP is funded at $98.7 million per 

year for each year from FY 1996 through