36430 Federal Register / Vol. 74, No. 140 / Thursday, July 23, 2009 / Proposed Rules 

distribution of power and 

responsibilities among the various 

levels of government.’’ 

This proposed rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in EO 

13132. This action only proposes to 

extend the existing administrative stay 

of one provision of the regulations at 40 

CFR 52.21 concerning the 

grandfathering provision for PM2.5 that 

affects fewer than 20 sources. Thus, EO 

13132 does not apply to this rule. 

In the spirit of EO 13132, and 

consistent with EPA policy to promote 

communications between EPA and State 

and local governments, EPA specifically 

solicits comment on this proposed rule 

from State and local officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have Tribal 

implications, as specified in EO 13175 

(65 FR 67249, November 9, 2000.) This 

action will not impose any new 

obligations or enforceable duties on 

Tribal governments. Thus, EO 13175 

does not apply to this action. 

EPA specifically solicits additional 

comment on this proposed action from 

Tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because this proposal only 

proposes to extend the existing 

administrative stay of one provision of 

the regulations at 40 CFR 52.21 

concerning the grandfathering provision 

for PM2.5 that affects fewer than 20 

sources. However, EPA solicits 

comments on whether the proposal 

would result in an adverse 

environmental effect that would have a 

disproportionate effect on children. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

This proposal only proposes to extend 

the existing administrative stay of one 

provision of the regulations at 40 CFR 

52.21 concerning the grandfathering 

provision for PM2.5 that affects fewer 

than 20 sources. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering the use of any 

voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this 

proposed rule will not have a 

disproportionately high and adverse 

human health or environmental effect 

on minority or low-income populations 

because it only seeks to extend the 

existing administrative stay on one 

provision in the regulations at 40 CFR 

52.21 concerning the grandfathering 

provision for PM2.5 that affects fewer 

than 20 sources. 

K. Determination Under Section 307(d) 

Pursuant to sections 307(d)(1)(J) and 

307(d)(1)(V) of the CAA, the 

Administrator determines that this 

action is subject to the provisions of 

section 307(d). Section 307(d)(1)(V) 

provides that the provisions of section 

307(d) apply to ‘‘such other actions as 

the Administrator may determine.’’ 

IV. Statutory Authority 

The statutory authority for this action 

is provided by section 301(a) of the CAA 

as amended (42 U.S.C. 7601(a)). This 

notice is also subject to section 307(d) 

of the CAA (42 U.S.C. 7407(d)). 

List of Subjects in 40 CFR Part 52 

Administrative practices and 

procedures, Air pollution control, 

Environmental protection, 

Intergovernmental relations. 

Dated: July 16, 2009. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. E9–17541 Filed 7–22–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 1200 

[EPA–HQ–OAR–2008–0201–FRL–8934–4] 

RIN 2060—AP14 

Waste Energy Recovery Registry 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to establish 

the criteria for including sources or sites 

in a Registry of Recoverable Waste 

Energy Sources (Registry), as required 

under Title IV, Subtitle D of the Energy 

Independence and Security Act of 2007. 

The Agency is also proposing the 

Survey processes by which EPA will 

collect data and populate the Registry. 

The rule would apply to major 

industrial and large commercial sources 

as defined by EPA in this rulemaking. 

This proposed rule would not require 

the installation of new monitoring 

equipment; rather it would require only 

that sources above certain threshold 

levels that wish to be included in the 

Registry enter specific alreadymonitored data points into the 

voluntary Survey, which is a software 

tool that will calculate the quantity and 

quality of potentially recoverable waste 

energy. 

DATES: The public may comment on this 

proposed rule until September 21, 2009. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2008–0201, by one of the 

following methods: 


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• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

• E-mail: a-and-r-Docket@epa.gov. 

• Fax: (202) 566–1741. 

• Mail: Environmental Protection 

Agency, EPA Docket Center (EPA/DC), 

Mailcode 2822T, Attention Docket ID 

No. EPA–HQ–OAR–2008–0201, 1200 

Pennsylvania Avenue, NW., 

Washington, DC 20460. 

• Hand Delivery: Public Reading 

Room, Room B102, EPA West Building, 

1301 Constitution Avenue, NW., Room 

3334, Washington, DC 20004. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2008– 

0201. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air Docket, EPA/DC, EPA West, 

Room B102, 1301 Constitution Ave., 

NW., Washington, DC. This Docket Site 

is open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the Air 

Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: 

Katrina Pielli, Climate Protection 

Partnerships Division, Office of 

Atmospheric Programs (MC 6202J), 

Environmental Protection Agency, 1200 

Pennsylvania Ave NW., Washington, DC 

20460; telephone number: (202) 343– 

9610; fax number (202) 343–2204; email address: pielli.katrina@epa.gov. 

SUPPLEMENTARY INFORMATION: The 

information in this preamble is 

organized as follows: 

I. General Information 

A. Does This Action Apply to Me? 

B. What Should I Consider as I Prepare My 

Comments to EPA? 

C. Where Can I Get a Copy of This 

Document? 

D. Abbreviations Used in This Document 

II. Background Information 

A. What Are the Purpose and 

Requirements of EISA Title IV, Subtitle 

D? 

B. What Is the Legal Authority for the 

Proposed Action? 

C. What Is the Relationship to Other EPA 

Waste Energy Recovery and CHP Efforts? 

III. Summary of the Proposed Rule 

A. What Is the Overall Approach to the 

Survey and Registry? 

1. What Are the Key Definitions and 

Interpretation? 

2. What Are the Survey and Registry 

Scope? 

3. What Are the Survey and Registry 

Schedules? 

B. Survey 

1. What Is the Rationale Behind the Survey 

Approach? 

2. What Are the Major Industrial and Large 

Commercial Thresholds? 

3. What Is Detailed Quantitative 

Information and How Is it Applicable to 

the Survey and Registry? 

4. What Is the Approach to Determine if a 

Potential Waste Energy Recovery Project 

Has a Five-year Payback or Less? 

5. What Is the Approach to Ensure Projects 

Proposed for Inclusion in the Registry 

Are Not Developed or Used for the 

Primary Purpose of Making Sales of 

Excess Electric Power Under the 

Regulatory Provisions of Subtitle D 

Part E? 

6. How Will the Survey Be Distributed? 

7. How Do I Return a Survey? 

8. What Is the Schedule for Returning a 

Survey? 

C. Registry 

1. How Will EPA Notify Entities of Their 

Listing and What Is the Method for Any 

Interested State, Utility, or Other 

Interested Person to Contest a Listing? 

2. What Are the Standards to Address New 

Sources or New Energy-Consuming 

Industrial Facilities Constructed After 

EISA Enactment? 

a. New Sources Constructed After EISA 

Enactment 

b. New Energy Consuming Industrial 

Facilities Constructed After EISA 

Enactment 

3. How Are Projects Removed From the 

Registry? 

IV. Economic Impacts 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

I. General Information 

A. Does This Action Apply To Me? 

This is a proposed regulation. If 

finalized, these regulations would affect 

owners and operators of major 

industrial and large commercial sources 

(as defined in this regulation). Regulated 

categories and entities could include the 

following: 

Code 2002 NAICS title 

211 ............................................... Oil and Gas Extraction. 

212 ............................................... Mining (except Oil and Gas). 

221320 ......................................... Sewage Treatment Facilities. 

221330 ......................................... Steam and Air-Conditioning Supply. 


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Code 2002 NAICS title 

31–33 ........................................... Manufacturing. 

311 ............................................... Food Manufacturing. 

312 ............................................... Beverage and Tobacco Product Manufacturing. 

313 ............................................... Textile Mills. 

314 ............................................... Textile Product Mills. 

315 ............................................... Apparel Manufacturing. 

316 ............................................... Leather and Allied Product Manufacturing. 

321 ............................................... Wood Product Manufacturing. 

322 ............................................... Paper Manufacturing. 

323 ............................................... Printing and Related Support Activities. 

32411 ........................................... Petroleum Refineries. 

324191 ......................................... Petroleum Lubricating Oil and Grease Manufacturing. 

325 ............................................... Chemical Manufacturing. 

326 ............................................... Plastics and Rubber Products Manufacturing. 

327 ............................................... Nonmetallic Mineral Product Manufacturing. 

3311 ............................................. Iron and Steel Mills and Ferroalloy Manufacturing. 

3313 ............................................. Alumina and Aluminum Production and Processing. 

3314 ............................................. Nonferrous Metal (except Aluminum) Production and Processing. 

3315 ............................................. Foundries. 

332 ............................................... Fabricated Metal Product Manufacturing. 

333 ............................................... Machinery Manufacturing. 

334 ............................................... Computer and Electronic Product Manufacturing. 

335 ............................................... Electrical Equipment, Appliance, and Component Manufacturing. 

336 ............................................... Transportation Equipment Manufacturing. 

337 ............................................... Furniture and Related Product Manufacturing. 

339 ............................................... Miscellaneous Manufacturing. 

44511 ........................................... Supermarkets and Other Grocery (except Convenience) Stores. 

4862 ............................................. Pipeline Transportation of Natural Gas. 

48811 ........................................... Airport Operations. 

48831 ........................................... Port and Harbor Operations. 

493120 ......................................... Refrigerated Warehousing and Storage. 

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

521 ............................................... Monetary Authorities—Central Bank. 

522 ............................................... Credit Intermediation and Related Activities. 

5221 ............................................. Depository Credit Intermediation. 

5222 ............................................. Nondepository Credit Intermediation. 

6111 ............................................. Elementary and Secondary Schools. 

6112 ............................................. Junior Colleges. 

6113 ............................................. Colleges, Universities. 

622 ............................................... Hospitals. 

623 ............................................... Nursing and Residential Care Facilities. 

71211 ........................................... Museums. 

71213 ........................................... Zoos and Botanical Gardens. 

71311 ........................................... Amusement and Theme Parks. 

71321 ........................................... Casinos (except Casino Hotels). 

72111 ........................................... Hotels (except Casino Hotels) and Motels. 

72112 ........................................... Casino Hotels. 

812331 ......................................... Linen Supply. 

812332 ......................................... Industrial Launderers. 

92214 ........................................... Correctional Institutions. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding facilities likely to 

be covered by this action. This table 

lists the types of facilities that EPA is 

now aware of that could potentially be 

affected by this action. Other types of 

facilities not listed in the table could 

also be subject to reporting 

requirements. To determine whether 

your site is affected by this action, you 

should carefully examine the 

applicability criteria found in the 

regulation text of this rule. If you have 

questions regarding the applicability of 

this action to a particular site, consult 

the person listed in the preceding FOR

FURTHER INFORMATION CONTACT section. 

B. What Should I Consider as I Prepare 

My Comments to EPA? 

Do not submit information containing 

CBI to EPA through http:// 

www.regulations.gov or e-mail. Direct 

your comments to Docket ID No. EPA– 

HQ–OAR–2008–0201. EPA’s policy is 

that all comments received will be 

included in the public docket without 

change and may be made available 

online at http://www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

information claimed to be CBI or other 

information whose disclosure is 

restricted by statute. 

If you submit an electronic comment, 

EPA recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

C. Where Can I Get a Copy of This 

Document? 

All documents in the docket are listed 

in the http://www.regulations.gov index. 

Publicly available docket materials are 

also available in hard copy at the Air 

Docket, EPA/DC, EPA West, Room 


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1EPA Combined Heat and Power Partnership. 

http://www.epa.gov/chp/partnership/index.html. 

Methodology described at http://www.epa.gov/ 

appdstar/pdf/2007AnnualReportFinal.pdf. 

2Other definitions of ‘‘combined heat and power’’ 

and ‘‘cogeneration’’ under the Clean Air Act can be 

found at: 40 CFR 60.41Da, 40 CFR 60.41b Subpart 

Db, 40 CFR 60.4420 Subpart KKKK, 40 CFR 97.102 

Subpart AA, 40 CFR 97.202 Subpart AAA, 40 CFR 

97.302 Subpart AAAA. 

B102, 1301 Constitution Ave., NW., 

Washington, DC. This Docket Site is 

open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744. 

D. Abbreviations Used in This 

Document 

Combined Heat and Power (CHP) 

Commercial Buildings Energy Consumption 

Survey (CBECS) 

Commercial Energy Profile Database (CEPD) 

Confidential Business Information (CBI) 

Detailed Quantitative Information (DQI) 

US EPA’s Emission & Generation Resource 

Integrated Database (eGRID) 

Energy Independence and Security Act of 

2007 (EISA) 

Energy Policy and Conservation Act (EPCA) 

Federal Energy Regulatory Commission 

(FERC) 

Freedom of Information Act (FOIA) 

Greenhouse Gas (GHG) 

Kilowatt (kW) 

Megawatt (MW) 

Million British Thermal Units (MMBtu) 

Million metric tons of carbon dioxide 

(MMTCO2) 

New Source Performance Standards (NSPS) 

North American Industry Classification 

System (NAICS) 

National Emissions Inventory (NEI) 

Operation and Maintenance (O&M) 

Registry of Recoverable Waste Energy 

Sources (Registry) 

Standard Cubic Feet per Minute (scf/min) 

U.S. Environmental Protection Agency (EPA) 

U.S. Environmental Protection Agency 

Combined Heat and Power Partnership 

(EPA CHPP) 

Waste Energy Survey Tool (WEST) 

II. Background Information 

A. What Are the Purpose and 

Requirements of EISA Title IV, Subtitle 

D? 

On December 19, 2007 the President 

of the United States signed the Energy 

Independence and Security Act of 2007 

(EISA) which was designed to improve 

vehicle fuel economy and help reduce 

US dependence on oil. 

Title IV of EISA contains extensive 

new provisions designed to save energy 

in buildings and industries. EISA 

Subtitle D focuses on industrial energy 

efficiency and contains new provisions 

designed to improve energy efficiency 

by promoting combined heat and power 

(CHP), waste energy recovery, and 

district energy systems. 

This proposed rule addresses the U.S. 

Environmental Protection Agency’s 

(EPA) obligation under EISA to publish 

a rule within 270 days of EISA 

enactment that establishes the criteria 

by which sources or sites will be listed 

in a Registry of Recoverable Waste 

Energy Sources (Registry). 

The rule also addresses the related 

EPA obligation under EISA to develop 

an ongoing Survey of major domestic 

industrial and large commercial sources 

as well as the sites at which the sources 

are located, and to conduct a review of 

each source for the quantity and quality 

of potential waste energy produced. 

This Survey is a necessary first step to 

gather the data needed to establish the 

Registry. EISA also directs EPA to 

establish the Registry within one year of 

EISA enactment. 

The purposes of the Survey and 

Registry are to: 

1. Provide a list of the economically 

feasible existing waste energy recovery 

opportunities in the US based on a 

Survey of major industrial and large 

commercial sources; 

2. Provide State and national totals of 

the existing waste energy recovery 

opportunities, as well as the potential 

criteria pollutant and greenhouse gas 

emissions reductions that could be 

achieved with the capture and use of the 

waste energy recovery opportunities 

listed in the Registry; 

3. Serve as the basis for potential 

waste energy recovery projects to 

qualify for financial and regulatory 

incentives as described in Energy Policy 

and Conservation Act (EPCA) Sections 

373 ‘‘Waste Energy Recovery Incentive 

Grant Program’’ and 374 ‘‘Additional 

Incentives for Recovery, Use, and 

Prevention of Industrial Waste Energy,’’ 

as added by EISA. 

B. What Is the Legal Authority for the 

Proposed Action? 

EISA Title IV Subtitle D amends the 

Energy Policy and Conservation Act 

(EPCA) by adding a new Part E, titled 

‘‘Industrial Energy Efficiency,’’ to Title 

III of EPCA (42 U.S.C. 6291 et seq). The 

new EPCA Section 372 directs EPA to 

establish a ‘‘recoverable waste energy 

inventory program,’’ which is to include 

‘‘an ongoing Survey of all major 

industrial and large commercial 

combustion sources in the United States 

(as defined by the Administrator) and 

the sites at which the sources are 

located,’’ as well as ‘‘a review of each 

source for the quantity and quality of 

waste energy produced at the source.’’ 

Section 372 further provides that EPA is 

to publish a rule to establish criteria for 

including sites in a Registry of 

Recoverable Waste Energy Sources 

within 270 days of EISA enactment 

(September 19, 2008) and to establish 

the Registry not later than one year after 

enactment (December 19, 2008). 

C. What Is the Relationship to Other 

EPA Waste Energy Recovery and CHP 

Efforts? 

This rulemaking and Registry 

complement EPA’s existing voluntary 

program, the Combined Heat and Power 

Partnership (EPA CHPP). EPA 

established EPA CHPP in October 2001 

in response to President George W. 

Bush’s 2001 National Energy Policy 

Report, which identified CHP as an 

efficient, clean power generation 

technology that should be encouraged. 

The EPA CHPP is a voluntary effort to 

reduce the environmental impact of 

power generation by promoting the use 

of CHP. The EPA CHPP has over 285 

Partners, including energy users, project 

developers, State agencies, and energy 

service companies. Between 2001 and 

2008, the EPA CHPP has assisted its 

Partners with over 400 projects 

representing 4,764 megawatts of new, 

environmentally-beneficial and costeffective CHP capacity. On an annual 

basis, these projects will prevent the 

emission of more than 11.8 MMTCO2.1

Resources permitting, EPA will leverage 

the EPA CHPP to provide technical 

assistance to the owners or operators of 

sources or sites in the Registry, 

regarding the optimum means of 

recovery of value from the waste energy 

stream, as directed under EPCA Section 

372(g) ‘‘Optimum Means of Recovery.’’ 

III. Summary of the Proposed Rule 

A. What Is the Overall Approach to the 

Survey and Registry? 

1. What Are the Key Definitions and 

Interpretation? 

As added by EISA, Section 371 of 

EPCA defines several important terms, 

including ‘‘combined heat and power,’’ 

‘‘project,’’ ‘‘recoverable waste energy,’’ 

‘‘useful thermal energy,’’ and ‘‘waste 

energy.’’ EPA is proposing to use the 

same definitions of ‘‘combined heat and 

power,’’ 2 ‘‘project’’, ‘‘recoverable waste 

energy’’ and ‘‘useful thermal energy’’ as 

stated in EPCA Section 371. 

As defined in EPCA Section 371, the 

term ‘waste energy’ includes three 

specified forms of waste energy as well 

as ‘‘[s]uch other forms of waste energy 

as the Administrator may determine.’’ 

EPA is providing examples of the three 

specified forms of waste energy below: 

‘‘(A) Exhaust heat or flared gas from 

any industrial process;’’ 

Examples of part A of the definition 

of waste energy may include high 

temperature exhaust streams from glass 


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melters, cement kilns, and pipeline 

compressor turbine drives. 

‘‘(B) Waste gas or industrial tail gas 

that would otherwise be flared, 

incinerated, or vented;’’ 

Examples of part B the definition of 

may include chemical and/or refinery 

off gases with combustible content, and 

combustible off gases from coke ovens. 

‘‘(C) A pressure drop in any gas, 

excluding any pressure drop to a 

condenser that subsequently vents the 

resulting heat; and’’ 

Examples of part C of the definition 

of waste energy may include high 

pressure steam generated in a boiler that 

is subsequently reduced in pressure 

before being used in an industrial 

process or building heating system. 

The definition of waste energy also 

includes ‘‘(D) Such other forms of waste 

energy as the Administrator may 

determine.’’ EPA is proposing a 

determination that waste energy include 

the potential opportunity for combined 

heat and power (CHP). In part, this is 

based on the statutory structure. EPCA 

Section 372 directs EPA to establish a 

Recoverable Waste Energy Inventory 

Program that includes a Survey and a 

Registry of Recoverable Waste Energy 

Sources. Section 372 is housed in Part 

E of EPCA, which is titled Industrial 

Energy Efficiency. Congress defined 

CHP for Part E of EPCA but did not 

include CHP-specific provisions in Part 

E. This suggests that Congress expected 

that EPA would consider opportunities 

for including CHP in the scope of the 

Survey and Registry. EPA believes it is 

appropriate to include CHP 

opportunities because doing so is 

consistent with the EISA goal of 

promoting the recovery of waste energy. 

In addition, CHP is inherently an energy 

efficiency measure where energy that is 

usually lost is recovered for useful 

purposes. This simultaneous generation 

of electricity and recovery of useful 

thermal energy from a single fuel source 

is more efficient than separate 

generation of power and thermal energy. 

Including potential CHP opportunities 

in the Registry will encourage more 

widespread consideration of this 

efficiency approach. 

EISA Section 372 uses the terms 

‘‘facility’’ and ‘‘site’’ interchangeably; 

for clarity, the proposed regulation uses 

‘‘site’’ to refer to ‘‘a building or group of 

buildings that provides a particular 

service or is used for a particular 

industrial application.’’ References in 

this document to a ‘‘facility’’ should be 

understood as referring to the ‘‘site.’’ 

EPA is proposing to define ‘‘source’’ as 

‘‘any process or activity resulting in the 

release of waste energy.’’ A site may 

have multiple sources. 

Section 372 uses the terms ‘‘major 

industrial combustion source’’ and 

‘‘large commercial combustion source’’ 

to refer to the types of sources to be 

included in the Survey. EPA believes 

that it has discretion to allow 

additional, non-combustion sources to 

participate in the Survey. EPA has not 

included the word ‘‘combustion’’ in the 

proposed regulatory definitions because 

not all waste energy as defined in EPCA 

Section 371 is necessarily generated by 

a combustion source. Waste heat, waste 

gas or pressure drop could all be the 

result of non-combustion operations 

(e.g., an exothermic chemical reaction 

generating waste heat). As discussed 

elsewhere in this notice, EPA is 

proposing to include Combined Heat 

and Power (CHP) in the regulatory 

definition of waste energy. One 

application of CHP that provides 

cooling as the thermal output can be 

implemented at sites that are currently 

all-electric. EPA believes that it is 

appropriate to include non-combustion 

sources of waste energy within the 

scope of the Survey because doing so 

will promote recovery of waste energy 

consistent with the statutory intent. 

Completion of the Survey is voluntary; 

non-combustion sources of waste energy 

would incur no penalty if they elected 

not to participate. In addition, Section 

372(d) of EPCA directs EPA to establish 

a Registry of Recoverable Waste Energy 

Sources but does not instruct EPA to 

limit the Registry to combustion 

sources. Because Survey data will be 

used to evaluate sources for inclusion in 

the Registry, the scope of the Survey 

must be at least as broad as the scope 

of the Registry. While combustion does 

occur at most of the sources within the 

Survey scope, EPA is proposing that 

both the Survey and the Registry be 

open to non-combustion sources, to 

assess their waste energy recovery 

opportunities based on the proposed 

thresholds. Thus, this proposed 

regulation uses ‘‘major industrial 

source’’ and ‘‘large commercial source.’’ 

This regulation also uses the term ‘‘large 

commercial source’’ to include 

institutions and multi-family housing. 

2. What Are the Survey and Registry 

Scope? 

The scope of the Survey and Registry 

will be based on the thresholds for 

major industrial and large commercial 

sources as proposed in this rule. EPA 

expects to contact 11,000 facilities 

within the initial thresholds proposed 

in this rule. Not all of these facilities 

will have sources that meet the 

secondary thresholds. The Survey 

results will directly affect the Registry 

scope; EPA will use them to populate 

the Registry. The Survey EPA is 

proposing is an Internet-based Survey, 

the Waste Energy Survey Tool (WEST), 

which would be downloaded by owners 

or operators of the sites or sources (the 

respondents). The respondents would 

enter data into WEST to be used to 

determine the potential waste energy 

recovery opportunity of the source. For 

more information on the proposed 

Survey questions, see the Technical 

Support Document—Waste Energy 

Survey Tool in the docket. Once a 

respondent has completed the Survey, 

WEST would generate a final summary 

report, which the respondent would 

subsequently submit to EPA via mail or 

e-mail. 

WEST calculates the potential 

recoverable waste energy from each 

source using embedded algorithms 

based on the criteria proposed in this 

rule, using data provided by the site 

owner or operator. Sources or sites that 

meet the criteria included in this 

proposed rule would be included in the 

Registry. For more information on how 

the proposed Survey questions will 

allow WEST to calculate the payback for 

a potential waste energy recovery 

project, see the Technical Support 

Document—Economic Payback 

Calculation in the docket. 

EPA is proposing to include the 

following information for each site in 

the Registry: 

a. Site name, address, NAICS code; 

b. Site contact person name, title, 

address, phone number, e-mail address; 

c. The total waste energy recovery 

potential at the site; and 

d. Date the listing was posted in the 

Registry. 

EPA believes that the Registry, 

containing this information, will 

provide the site or source, the Agency, 

and private project developers of waste 

energy recovery systems valuable data 

on potential waste energy recovery 

opportunities that have been assessed 

by WEST. The Registry will not include 

detailed quantitative information as 

defined in this rule. The information 

EPA is proposing to include in the 

Registry is the minimum information 

needed for site or source operators or 

owners, and private project developers 

of waste energy recovery systems, to be 

aware that a potential waste energy 

recovery project has met the criteria 

included in this rule and facilitate 

conversations between private parties to 

pursue the capture and use of the 

potential waste energy. 

As directed by EPCA Section 

372(d)(2), EPA is also proposing to 

include in the Registry, nationally and 

by State, the total quantities of 


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Federal Register / Vol. 74, No. 140 / Thursday, July 23, 2009 / Proposed Rules 36435 

3 eGRID, developed by EPA’s Climate Protection 

Partnership Division’s State and Local Branch, 

contains data on the environmental attributes of 

virtually all of the electric power generated in the 

United States, linking air emissions to electricity 

generated. The most recent version, the sixth 

edition of eGRID, eGRID2007, includes operational 

data from 2005. http://www.epa.gov/cleanenergy/ 

energy-resources/egrid/index.html. 

potentially recoverable waste energy 

from sources at the sites in the Registry, 

as well as the criteria pollutant (NOX, 

SOX) and greenhouse gas (GHG) 

emissions savings that might be 

achieved with recovery of the waste 

energy from all sources and sites listed 

in the Registry. Emissions savings of 

waste energy recovery projects will be 

estimated by comparing the emissions 

from the waste energy recovery system 

to the emissions that would normally 

occur without the system in place, 

including the displaced power plant 

emissions from grid electricity avoided 

by the output of the waste energy 

recovery system. Avoided grid 

emissions will be calculated based on 

EPA’s Emission & Generation Resource 

Integrated Database (eGRID).3

3. What Are the Survey and Registry 

Schedules? 

EPA is proposing that the Survey be 

completed by owners or operators of 

affected sources anytime following 

release of WEST. The Agency expects 

WEST to be released within 90 days of 

the final rule being published in the 

Federal Register. Submissions received 

within 60 days of WEST being released 

would be included in the initial launch 

of the Registry. Additional submissions 

received would be included in the 

Registry on a rolling basis. 

Following the release of WEST, 

affected sites and sources can submit 

the Survey reporting information to the 

Agency at any time. Sites meeting the 

initial thresholds as defined in this rule 

for major industrial and large 

commercial sources and that are in the 

list of affected NAICS codes, as 

provided above under SUPPLEMENTARY

INFORMATION, would receive the request 

from EPA to download and complete 

the Survey as described in this rule. 

Sites or sources that submit Survey 

reporting information would be 

included in the Registry if they meet the 

criteria proposed in this rule, whether 

or not EPA notified them of the Survey. 

EPA may contact the respondent to 

discuss their submission if it appears 

inaccurate. 

EPCA Section 372(e) provides that an 

owner, operator or third-party developer 

may self-certify their sites and sources 

‘‘[s]ubject to any procedures that are 

established by the Administrator.’’ It 

further provides that ‘‘a site or source 

shall be included in the Registry only if 

the Administrator reviews and approves 

the self-certification.’’ EPA is proposing 

to allow owners and operators, as well 

as third-party developers acting jointly 

with an owner or operator, to complete 

the Survey and submit the Survey 

results to EPA at any time. EPA believes 

this meets the intent of Section 372(e) 

while avoiding the need for a separate 

self-certification process. The Survey 

and Registry approach are constructed 

such that all Survey responses are 

generated by the algorithms embedded 

in the Survey tool (which are developed 

by EPA), regardless of when they are 

received by EPA. In addition, the 

Survey tool will be designed to not 

generate a final summary report if there 

are missing or incomplete fields. As 

such, the Agency is not proposing to 

create a separate option for selfcertification. EPA invites comment on 

this approach. 

EPA is proposing that the Survey and 

Registry be updated on an as-needed 

basis. The Agency intends to assess 

every three years relevant market 

conditions, technology status and 

applicable incentives, and make Survey 

adjustments as appropriate. 

EPA invites comment on the proposed 

schedule. 

B. Survey 

1. What Is the Rationale Behind the 

Survey Approach? 

In considering the potential 

approaches, EPA decided that a 

voluntary Internet-based Survey, such 

as WEST, would be most effective at 

providing EPA the site-specific source 

data necessary to accomplish the review 

of each source for the quantity and 

quality of waste energy produced. 

WEST would also provide owners or 

operators the ability to retain 

confidential or sensitive business data 

that could be exploited for competitive 

advantage by requiring only the Survey 

output to be submitted to EPA. In 

addition, WEST would not allow a 

respondent to submit an incomplete 

Survey response (will not calculate the 

final summary report), thereby reducing 

burden on EPA and the respondent by 

avoiding the need for additional 

interaction on the completeness of the 

Survey response. 

EPA is proposing that WEST be 

downloaded from the Internet to the 

respondent’s computer. If a respondent 

is unable to download the Survey tool, 

the respondent can contact EPA for 

alternate submission instructions 

(consult the person listed in the 

preceding FOR FURTHER INFORMATION

CONTACT section). All information which 

EPA reasonably expects might be 

covered by a claim of confidentiality or 

otherwise be considered sensitive 

would remain on the respondent’s 

computer. WEST will generate a final 

summary report based on that 

information using embedded algorithms 

and the respondent will submit the final 

summary report to EPA, which should 

not contain any sensitive business 

information. EPA is proposing WEST 

over a traditional Survey because the 

Agency will not need to collect any 

confidential or sensitive business 

information to accomplish the 

requirements of EISA. In addition, EPA 

believes the necessary information can 

be collected more efficiently and at a 

lower cost using WEST. 

EPA considered alternatives to the 

proposed data collection approach. EPA 

considered utilizing the National 

Emissions Inventory (NEI) for the source 

specific information necessary for the 

Survey and Registry, but determined 

that NEI did not provide the type of 

information necessary for four primary 

reasons: NEI does not include data for 

waste gas streams or pressure drops so 

would not provide data for all types of 

waste energy, as described in Section 

A(1) of this preamble; NEI does not 

contain complete data sets; NEI contains 

data anomalies; and NEI data is not 

consistent across the States as to what 

specific information is included. EPA is 

requesting comment on the proposed 

data collection approach. 

2. What Are the Major Industrial and 

Large Commercial Thresholds? 

EPA is proposing an initial and a 

secondary threshold for major industrial 

sources, and an initial and a secondary 

threshold for large commercial sources. 

The initial thresholds are used to 

determine which sites within the list of 

affected NAICS codes should expect to 

receive the Survey. The secondary 

thresholds are used by the sites that 

receive the Survey to determine if they 

have sources with characteristics 

suitable for an economically-feasible 

waste energy recovery opportunity, as 

required by EISA, based on 

commercially-available technology. The 

proposed thresholds are: 

a. Major Industrial Sources 

• Initial threshold—site with 100 

MMBtu/hour fuel use; 

• Secondary threshold—process 

stacks with temperatures 500 °F or 

greater, flow rates greater than 7,000 to 

50,000 scf/min depending on 

temperature, and minimum operating 

hours of 4,500 hrs/yr. 


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36436 Federal Register / Vol. 74, No. 140 / Thursday, July 23, 2009 / Proposed Rules 

4 ICF International, http://www.eea-inc.com/ 

chpdata/index.html. 

b. Large Commercial Sources 

• Initial threshold—site with 1 MW 

average electric annual demand or 5 

MMBtu/hour fuel input; 

• Secondary threshold—minimum 

thermal or cooling load of 2.5 MMBtu/ 

hour or 150 Tons, and minimum 

operating hours of 4,500 hrs/yr. 

EPA is also proposing definitions of 

‘‘major industrial source’’ and ‘‘large 

commercial source’’ that utilize these 

thresholds. 

EPA is proposing that sources located 

at sites that do not meet the initial 

thresholds can complete the Survey if 

they meet the appropriate secondary 

threshold. The initial thresholds are 

intended to focus the Survey scope on 

those sites most likely to have sources 

that meet the criteria; they are not 

intended to prevent owners or operators 

of other sites from completing the 

Survey. If these sources or sites meet the 

secondary thresholds and all other 

criteria established in this rule, they 

would be placed in the Registry. 

EPA considered establishing an initial 

threshold for major industrial sources, 

an initial threshold for large commercial 

sources, and sector-specific secondary 

thresholds based on NAICS codes. EPA 

believes that sector-specific thresholds 

are unnecessary since there are general 

considerations for waste energy 

opportunities, such as availability, 

temperature and flow rate, which are 

applicable across sectors. 

In the development of thresholds, 

EPA considered the EISA obligation to 

survey all major industrial and 

commercial sources. EPA reviewed 

existing thresholds from other EPA 

regulations, including the New Source 

Performance Standards (NSPS), which 

could be used to denote major industrial 

or large commercial sources. EPA also 

reviewed relevant databases for other 

applicable thresholds. The threshold 

development also included reviewing 

existing analysis of waste energy 

projects by the EPA CHPP. 

The proposed major industrial initial 

threshold of 100 MMBtu/hr is the NSPS 

threshold for industrial boilers. This 

NSPS, titled ‘‘Standards of Performance 

for Industrial-Commercial-Institutional 

Steam Generating Units,’’ is available 

for reference at 40 CFR 60.40b. The 

proposed large commercial initial 

threshold of 1 MW average electric 

annual demand or 5 MMBtu/hour is 

reflective of the size of facilities 

associated with existing CHP 

commercial projects included in 

existing databases. These databases 

include the U.S. Department of Energy’s 

Commercial Buildings Energy 

Consumption Survey (CBECS), CHP 

Installation database 4 and private 

databases including the IHS Commercial 

Energy Profile Database (CEPD). 

EPA lacks data to definitively 

estimate the waste energy potential of 

major industrial and large commercial 

sources, the number of facilities or the 

individual facilities where this potential 

is located. This is likely a driver behind 

Congress’ intent in obligating EPA to 

conduct an ongoing survey of all major 

industrial and large commercial sources 

for the quantity and quality of waste 

energy produced at the source. Given 

the current uncertainty regarding 

potential waste energy recovery 

opportunities, EPA is relying on existing 

databases and analyses for supporting 

information in establishing the Survey 

scope. 

Based on the existing databases and 

analyses, there are approximately 

8,000–12,000 combined commercial 

facilities above 1 MW of average electric 

demand and industrial facilities above 

100 MMBTU/hr fuel use. Based on a 

review of existing CHP projects at 

industrial facilities, projects of 20 MW 

or greater represent 95 percent of total 

installed industrial CHP capacity. The 

profile of existing industrial CHP also 

shows that the larger industrial fuel 

consumers most likely represent a 

majority of the economically feasible 

CHP potential in terms of MW capacity. 

As stated above, there are no 

corresponding data sets for the other 

waste energy categories; however EPA 

believes it is reasonable to assume that 

the profile of opportunities for these 

waste energy categories would be 

similar to the CHP profile. Based on a 

review of the existing CHP profile for 

commercial applications, 1 MW and 

greater is the most economically feasible 

market with current technology and 

market conditions. CHP projects of 1 

MW or larger represent 97 percent of the 

existing CHP capacity in the commercial 

sector. For supporting information on 

these thresholds, see the Technical 

Support Document—Evaluation of 

Initial Thresholds for the Registry of 

Recoverable Waste Energy Sources and 

for the Survey of Major Industrial and 

Large Commercial Sources in the 

docket. 

EPA is requesting comment on the 

major industrial and large commercial 

thresholds. 

3. What Is Detailed Quantitative 

Information and How Is It Applicable to 

the Survey and Registry? 

Under EPCA Section 372(c)(3)(B) ‘‘the 

owner or operator of a source at a site 

may elect to have detailed quantitative 

information (DQI) concerning the site 

not made public’’ by notifying EPA of 

the election. This section also states that 

DQI shall be made available to the 

applicable State energy office and utility 

requested to support recovery of waste 

energy from the source or site pursuant 

to the incentives provided under EPCA 

Section 374. Respondents should note 

that while DQI will not appear in the 

Registry, there is potential for it to be 

disclosed through other means pursuant 

to EPCA Section 372(3)(B)(ii) or EPA’s 

Freedom of Information Act (FOIA) 

regulations. DQI is a term created by 

EPCA Section 372(3)(B). 

Section 374 allows a project owner or 

operator that is in the Registry to request 

that their State regulatory authority or 

nonregulated electric utility provide 

public notice, conduct a hearing, and 

make a determination whether or not it 

is appropriate to implement the 

regulatory incentives contained within 

this Section. These regulatory incentives 

allow an owner or operator of a waste 

energy recovery project identified in the 

Registry that generates net excess power 

to be eligible to benefit from at least one 

of the options described in Section 374 

subsection (c) for disposal of the net 

excess power in accordance with the 

rate conditions and limitations 

described in Section 374 subsection (d). 

As previously described, EPA is 

proposing to include the following 

information for each site in the Registry: 

a. Site name, address, NAICS code; 

b. Site contact person name, title, 

address, phone number, e-mail address; 

c. The total waste energy recovery 

potential at the site; and 

d. Date the listing was posted in the 

Registry. 

EPA does not consider the types of 

information listed above to be DQI. The 

proposed Survey would not include an 

option for respondents to claim the 

information listed above as confidential 

business information (CBI) because the 

public availability of such information 

is crucial to fulfilling the purpose of the 

Registry. Since Congress directed that 

the Registry contain site level 

information, the above listed 

information is critical to identifying the 

site with the waste energy recovery 

opportunity based on the Survey data. 

The remaining outputs from the Survey 

are important for EPA to determine 

whether the site has met the criteria for 

inclusion in the Registry; however, their 

posting in the Registry is not crucial to 

the Registry’s operation. For simplicity, 

EPA proposes to treat the remaining 

Survey outputs as DQI. EPA will not 

post DQI in the Registry. 


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Respondents should be aware that 

EPCA Section 372 provides for the 

disclosure of DQI to ‘‘the applicable 

State energy office’’ and ‘‘any utility 

requested to support recovery of waste 

energy from the source’’ under Section 

374. In addition, EPA could receive a 

request to release DQI under the 

Freedom of Information Act (FOIA). 

While the proposed Survey is designed 

to avoid the transmission to EPA of 

information for which facilities might be 

expected to assert a claim of 

confidentiality, respondents will 

nonetheless have the option of asserting 

such a claim for all or part of their DQI. 

Information covered by such a claim 

will be disclosed by EPA only to the 

extent, and by means of the procedures, 

set forth in EPA’s Confidential Business 

Information (CBI) regulations at 40 CFR 

part 2 subpart B. 

EPA is proposing to define DQI as the 

following Survey output with respect to 

individual sources at a site: 

(1) Source description (e.g., glass 

furnace, process flare); 

(2) Quantitative estimates of: 

• For each source, the CO2 emissions 

reduction potential (tons/year). 

• For each source, the criteria 

pollutant reduction potential (NOX and 

SOX tons/yr). 

• For waste heat sources, the waste 

heat to power recovery potential (MW). 

• For waste gas sources, the waste gas 

to power recovery potential (MW). 

• For pressure drop sources, the 

pressure drop to power recovery 

potential (MW). 

• For CHP potential, the CHP 

potential (MW) based on sizing to 

thermal (heating and/or cooling) load. 

(3) Yes/no answers to the following 

questions: 

• For each waste heat source, 

combustible source, pressure drop 

source, and potential CHP opportunity, 

does the potential project have a five 

year payback or less (yes/no). 

• For each waste heat source, 

combustible source, pressure drop 

source, and potential CHP opportunity, 

does the potential project meet the 

primary purpose criteria (yes/no). 

• For each new source, does the 

potential project meet the 60% 

efficiency test (yes/no). 

• For each waste heat source, does 

the site have a waste heat recovery 

opportunity that passes all screening 

criteria (yes/no). 

• For each waste gas or industrial tail 

gas source, does the site have a waste 

gas or industrial tail gas recovery 

opportunity that passes all screening 

criteria (yes/no). 

• For each pressure drop source, does 

the site have a pressure drop recovery 

opportunity that passes all screening 

criteria (yes/no). 

• For each potential CHP 

opportunity, does the site have a CHP 

opportunity that passes all screening 

criteria (yes/no). 

For more information on the proposed 

Survey questions, see the Technical 

Support Document—Waste Energy 

Survey Tool in the docket. 

A State energy office may request DQI 

for a specific site in its State by 

submitting a request to EPA via mail 

(address at http://www.epa.gov/ 

wasteenergyregistry) or e-mail at 

wasteenergyregistry@epa.gov. E-mail 

requests may include the subject line 

‘‘State energy office DQI request.’’ All 

DQI requests shall include: the 

requesting State energy office name, 

address, city, State, contact person, and 

the site or source name, address, and 

NAICS code as displayed in the 

Registry. 

A utility may request DQI for a 

specific site in its service territory to 

support recovery of waste energy from 

the source pursuant to the incentives 

provided under EPCA Section 374 by 

submitting a request to EPA via mail 

(address at http://www.epa.gov/ 

wasteenergyregistry) or e-mail at 

wasteenergyregistry@epa.gov. E-mail 

requests may include the subject line 

‘‘Utility DQI request.’’ All DQI requests 

shall include the utility name, address, 

city, State, and NAICS code of the site, 

as displayed in the Registry. 

Since Section 372(c)(3)(B) states that 

utilities may request DQI in the context 

of supporting recovery of waste energy 

from the source/s pursuant to the 

incentives provided under EPCA 

Section 374, EPA urges utilities making 

such a request to include supporting 

information that the project has 

requested a hearing under Section 374. 

Supporting information could take the 

form of notification from the applicable 

State regulatory authority that the 

project has requested a hearing or other 

similar documentation. To minimize the 

burden, supporting information can 

include a Web site address where 

documentation is readily available. EPA 

may not be able to release DQI without 

such supporting information. 

EPA is requesting comment on the 

information proposed to be considered 

DQI . 

4. What Is the Approach To Determine 

if a Potential Waste Energy Recovery 

Project Has a Five-year Payback or Less? 

EPCA Section 372(b)(2)(A) states that 

EPA’s criteria for inclusion in the 

Registry shall include: 

‘‘A requirement that, to be included in the 

Registry, a project at the site shall be 

determined to be economically feasible by 

virtue of offering a payback of invested costs 

not later than 5 years after the date of first 

full project operation (including incentives 

offered under this part);’’ 

EPA is proposing to use WEST to 

determine if the site has economically 

feasible potential energy recovery 

project/s based on the 5 year financial 

payback requirement described above. 

WEST will include algorithms for 

estimating simple paybacks for waste 

energy recovery projects based on the 

site and source information requested of 

each site in the Survey. Simple payback 

for a waste energy recovery project 

would be calculated by dividing the 

total installed cost of the project by the 

projected annual savings of the project. 

The annual savings would be estimated 

by calculating potential savings from 

reduced purchases of electricity 

(essentially the electricity generated by 

the waste energy recovery system times 

the average purchase price for electricity 

at the site) less any incremental 

operating costs required by the project 

(for example, operating and 

maintenance [O&M] costs for the energy 

recovery equipment or incremental fuel 

use for CHP projects). 

Section 372 requires that the payback 

determination include any financial 

incentives established in Part E of 

EPCA. The only financial incentives 

included in Part E are in Sections 373 

and 374. 

EPCA Section 373 directs the 

Department of Energy to establish a 

waste energy recovery incentive grant 

program to provide incentive grants to: 

‘‘(a)(1) Owners and operators of projects 

that successfully produce electricity or 

incremental useful thermal energy from 

waste energy recovery; 

(2) Utilities for purchasing or distributing 

the electricity; and 

(3) States that have achieved 80 percent or 

more of recoverable waste heat recovery 

opportunities.’’ 

EPCA Section 374 allows a project 

owner or operator to request that their 

State regulatory authority or 

nonregulated electric utility ‘‘provide 

public notice and conduct a hearing’’ 

with regard to the standard for sales of 

excess power described in Section 

374(b), and ‘‘on the basis of the hearing, 

consider and make a determination 

whether or not it is appropriate to 

implement’’ that standard. 

Under Section 374(b), the standard for 

sales of excess power ’’shall provide 

that an owner or operator of a waste 

energy recovery project identified in the 

Registry that generates net excess power 

shall be eligible to benefit from at least 

one of the options described in 

subsection (c) for disposal of the net 


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36438 Federal Register / Vol. 74, No. 140 / Thursday, July 23, 2009 / Proposed Rules 

5EPA Combined Heat and Power Partnership. 

Energy Portfolio Standards and the Promotion of 

Combined Heat and Power. http://www.epa.gov/ 

chp/documents/eps_and_promotion.pdf. 

excess power in accordance with the 

rate conditions and limitations 

described in subsection (d).’’ The 

options include: (1) Sale of net excess 

power to utility; (2) transport by utility 

for direct sale to third party; (3) 

transport over private transmission 

lines. 

Because Section 374 does not contain 

quantified financial incentives, EPA is 

proposing not to include Section 374 

incentives in the payback 

determination. Section 374(d) describes 

how the regulatory incentives will be 

offered under purchase and transport 

rate conditions that reflect the rate 

components defined in that section. 

The only financial incentives 

quantified in Section 373 for owners 

and operators of waste energy recovery 

projects are those described in Section 

373(b). First, Section 373(b)(3)(A) 

provides for a grant at the rate of $10/ 

MWh of ‘‘documented electricity 

produced from recoverable waste 

energy.’’ This grant is limited to the first 

three calendar years of electricity 

production. Second, Section 373(b)(4) 

provides for a grant at the rate of $10/ 

3,412,000 Btus of excess thermal energy 

‘‘used for a purpose different from that 

for which the project is principally 

designed.’’ EPA is proposing to add 

these financial incentives to the 

projected annual savings of the potential 

waste energy project. These financial 

incentives would be paid to the owners 

or operators of waste energy recovery 

projects. Inclusion of the Section 373 

incentives in the payback calculation 

does not automatically qualify a site or 

source included in the Registry listing 

for such incentives. 

The algorithms embedded in WEST 

will estimate total installed costs, 

incremental O&M costs, electricity 

generated, and incremental fuel use and 

cost for each potential waste energy 

recovery project at a responding site. 

Each of these estimates will be based on 

rules of thumb for sizing, efficiency, and 

costs that are specific to each of the 

potential waste energy recovery 

categories (e.g., waste heat recovery, 

waste gas recovery, pressure drop 

recovery, CHP). While the performance 

and cost estimates will vary by category, 

the calculation of payback itself will be 

similar. For more information, see the 

Technical Support Document— 

Economic Payback Calculation in the 

docket. 

EPA is requesting comment on the 

approach to including incentives offered 

in EPCA Section 373. 

5. What Is the Approach to Ensure 

Projects Proposed for Inclusion in the 

Registry Are Not Developed or Used for 

the Primary Purpose of Making Sales of 

Excess Electric Power Under the 

Regulatory Provisions of Subtitle D 

Part E? 

EPCA Section 372(b)(2)(B) directs 

EPA to establish criteria for including 

sites in the Registry and specifically 

directs EPA to include criteria on 

‘‘standards to ensure that projects 

proposed for inclusion in the Registry 

are not developed or used for the 

primary purpose of making sales of 

excess electric power under the 

regulatory provisions of this part.’’ EPA 

interprets the ‘‘regulatory provisions of 

this part’’ as a reference to EPCA Part 

E—Industrial Energy Efficiency, Section 

374—Additional Incentives for 

Recovery, Use and Prevention of 

Industrial Waste Energy. Section 374 is 

the only section of Part E that contains 

regulatory provisions concerning the 

sale of excess power. 

In proposing regulatory language 

consistent with EPCA Section 

372(b)(2)(B) (the ‘‘primary purpose’’ 

criterion), EPA is looking to balance the 

Congressional directive to conduct a 

Survey and establish a Registry of 

recoverable waste energy sources and 

sites on which the sources are located, 

with the goal of ensuring that proposed 

projects have legitimate thermal and 

electric uses, and are not designed with 

the purpose of maximizing electric sales 

to the utility under EPCA Section 374. 

EPA recognizes that there is an existing 

body of regulatory decisions by State 

regulatory authorities and the Federal 

Electric Regulatory Commission (FERC) 

related to cogeneration facilities thermal 

output being used in a productive and 

beneficial manner, as well as other 

regulatory decisions on the purchase of 

excess electricity by utilities. EPA also 

recognizes that in certain industries and 

situations (such as chemical and 

refining), the thermal demand is 

sufficiently large that thermally-based 

CHP or waste heat recovery projects 

would generate more electricity than 

can be used on-site. In such cases, sale 

of excess electricity to the utility is a 

prerequisite to maximize energy and 

carbon savings, and optimize project 

economics. EPA also recognizes that 12 

States currently recognize waste heat 

recovery or CHP as an eligible resource 

in their Renewable Portfolio Standard, 

Energy Efficiency Portfolio Standard or 

Alternative Energy Portfolio Standard.5

To strike the balance described above, 

EPA is proposing that for a potential 

waste energy project to be included in 

the Registry, it must meet one of the 

following primary purpose criteria: 

(i) At least 50 percent of the 

aggregated annual energy output of the 

site (as defined in this rule) is to be used 

for industrial or commercial purposes, 

and not sold to an electric utility (‘‘the 

50 percent threshold’’); or 

(ii) The site is located in a State where 

the appropriate regulatory authority has 

made a State-wide determination under 

EPCA Section 374 not to implement the 

regulatory sale of excess power 

provisions in EPCA Section 374. This 

waiver of the 50 percent threshold is 

applicable until the State regulatory 

authority reverses or removes its 

decision; or 

(iii) The owner or operator of the site 

submits a joint petition with the local 

electric utility that serves the site to the 

Director of the Office of Atmospheric 

Programs of the EPA, requesting that the 

50 percent threshold be waived. 

EPA is proposing to define 

‘‘aggregated annual energy output of the 

site’’ as the total useful output of the 

fuel driving the source, including 

electricity produced by a project and 

thermal energy recovered in or driving 

the project. For CHP, the aggregate 

annual energy output would be the sum 

of the electricity generated and the 

useful thermal energy recovered on an 

annual basis. For other types of waste 

energy recovery projects, the aggregated 

annual energy output of the project 

would be the sum of the thermal energy 

used by the furnace or chemical process 

that generated the waste heat and the 

annual electricity generated by the 

recovery system. As an example, the 

thermal energy requirements of a 

furnace that is generating a hot exhaust 

stream that could potentially be 

recovered as electricity would be 

estimated by the furnace efficiency 

multiplied by the total fuel input to the 

furnace. In the case of an exothermic 

chemical reaction, the thermal energy 

requirements of the process would be 

equal to the energy released by the 

exothermic reaction (estimated by the 

amount of heat available for recovery). 

EPA is requesting comment on this 

proposed definition and on the primary 

purpose criteria. 

‘‘Primary purpose’’ criterion (i) is 

designed to determine whether a 

majority of the total energy output of the 

potential waste energy recovery project 

has the potential to be used at the site. 

A similar approach has been 

implemented by FERC in Docket RM05– 

36–000, Order 671 (February 2, 2006), 

which is available in the docket for this 


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action. Order 671 establishes a safe 

harbor for new cogeneration systems 

seeking Qualifying Facility status (18 

CFR 292.205(d)). This safe harbor 

provision requires a demonstration that 

at least 50 percent of the aggregated 

annual energy output of the 

cogeneration project is to be used for 

industrial, commercial, residential or 

institutional purposes (essentially, used 

on-site), and not sold to an electric 

utility. Projects that comply with this 

safe harbor provision are assumed to be 

intended ‘‘fundamentally’’ for on-site 

purposes. FERC includes both 

electricity and/or mechanical power 

produced by a project and thermal 

energy recovered as part of the 

aggregated annual energy output. EPA is 

proposing to do the same. 

‘‘Primary purpose’’ criterion (ii) is 

designed to streamline the process for 

potential waste energy projects located 

in States that issue a State-wide 

decision to not implement the Section 

374 regulatory incentives. In such 

States, sources constructed following 

the decision not to implement Section 

374 clearly would not be developed for 

the primary purpose of making sales of 

excess electric power under Section 

374. Such sources would not be able to 

take advantage of Section 374. 

Therefore, there is no need for them to 

show that they meet the 50 percent 

threshold. EPA is proposing that this 

waiver of the 50 percent threshold 

would apply until the State regulatory 

authority reverses or removes its 

decision. 

‘‘Primary purpose’’ criterion (iii) is 

designed to give local electric utilities 

flexibility to encourage the pursuit of 

waste energy recovery projects by 

customers in their service territory. EPA 

interprets the ‘‘primary purpose’’ test in 

Section 372(b) as an effort to ensure that 

development of waste energy recovery 

projects does not unduly impact the 

normal operation of local electric 

utilities. EPA therefore believes it is 

appropriate to allow waivers where the 

utility wishes to encourage such 

projects. Given that 12 States recognize 

waste heat recovery or CHP as an 

eligible resource in their energy 

portfolio standards, a local electric 

utility may decide to encourage a 

customer in their service territory to 

develop a waste energy or CHP project 

and sell excess electricity to the utility 

for purposes of meeting a portfolio 

standard requirement. In such cases, 

upon receipt of a joint petition from the 

utility and the owner or operator of the 

site, EPA will waive the 50 percent 

threshold. 

6. How Will the Survey Be Distributed? 

EPA is proposing to distribute WEST 

via the Internet for any site owner and 

operator to download and provide 

answers to the Survey directly on their 

computer. EPA plans to coordinate with 

State environmental and energy offices, 

industry trade associations, and energy 

and environmental non-profits, to notify 

sites on our list of potentially affected 

NAICS codes about the Survey and the 

availability of WEST on the Internet at 

http://www.epa.gov/waste 

energyregistry. EPA will also send a 

letter to the corporate headquarters of 

entities on the list of potentially affected 

NAICS codes, where the corporation has 

three or more affected sites that likely 

meet the initial major industrial or large 

commercial threshold as defined in this 

rule, describing EPA’s responsibilities, 

what the Agency is requesting them to 

do for each site and source, and 

instructions on downloading and 

returning WEST. 

7. How Do I Return a Survey? 

EPA is proposing that WEST final 

summary reports, which contain the 

information necessary to populate the 

Registry, shall be provided to the EPA 

via mail (address at http://www.epa.gov/ 

wasteenergyregistry and also on the 

WEST final summary report) or e-mail 

at wasteenergyregistry@epa.gov. E-mail 

requests may include the subject line 

‘‘Survey response.’’ Submissions 

received within 60 days of WEST being 

released will be included in the initial 

launch of the Registry. The Registry will 

be publicly available at http:// 

www.epa.gov/wasteenergyregistry. 

8. What Is the Schedule for Returning a 

Survey? 

EPA is proposing to include Survey 

submissions received within the first 60 

days of the release of WEST in the 

initial launch of the Registry, with 

subsequent submissions added on a 

rolling basis. 

C. Registry 

1. How Will EPA Notify Entities of 

Their Listing and What Is the Method 

for Any Interested State, Utility or Other 

Interested Person To Contest a Listing? 

EPCA Section 372(d)(3) states that 

EPA must notify owners or operators of 

recoverable waste energy sources and 

sites listed in the Registry prior to 

publishing the listing. EPA is proposing 

to provide this notification in advance 

through the Survey tool. When an 

owner or operator submits the WEST 

summary report to EPA, they are 

acknowledging that if they meet the 

criteria included in this rule, their 

source or site will be published in the 

Registry. No further notification will be 

provided prior to Registry publication. 

The Registry will list sites but will not 

contain a detailed description of each 

source at a particular site. 

EPCA Section 372(d)(1)(C) states that 

any State, electric utility, or other 

interested person may contest the listing 

by submitting a petition to EPA. 

Petitions must be submitted in writing 

to the Director of the Office of 

Atmospheric Programs of the EPA. EPA 

is proposing that this petition shall be 

submitted via mail (address at http:// 

www.epa.gov/wasteenergyregistry) or 

e-mail at wasteenergyregistry@epa.gov. 

E-mail petitions may include in the 

subject line ‘‘Contest of a listing.’’ All 

petitions shall explain the reason[s] the 

listing (i.e., site[s] or source[s]) is being 

contested. The following information 

shall be provided to the Director of the 

Office of Atmospheric Programs in 

writing (via e-mail or regular mail) to 

contest a Registry listing: 

• Entity contesting the listing—Name, 

address, contact person name, title, 

address, e-mail and phone number; 

• Registry listing being contested— 

Site name, address, and NAICS code as 

displayed in the Registry; 

• Reason the listing is being contested 

(i.e., why the site or source should be 

excluded from the Registry). 

All Registry listings whose inclusion in 

the Registry is contested will be notified 

by EPA in writing (mail or e-mail) and 

be provided 60 days (from the date of 

notification) to submit information for 

consideration by EPA. No later than 180 

days following receipt of information 

submitted by the entity contesting the 

listing, EPA will decide whether to 

remove or retain the listing in the 

Registry. 

2. What Are the Standards To Address 

New Sources or New Energy-Consuming 

Industrial Facilities Constructed After 

EISA Enactment? 

EISA contains two provisions 

addressing new sources or facilities: 

EPCA Section 372(d)(5), which 

addresses new sources; and EPCA 

Section 372(f), which addresses ‘‘new 

energy-consuming industrial facilities.’’ 

EPA is proposing to build on the 

previously described criteria for these 

new sources or facilities. 

a. New Sources Constructed After EISA 

Enactment 

EPCA Section 372(d)(5) directs EPA 

not to list in the Registry any source 

constructed after EISA enactment 

(December 19, 2007) if the Agency 

determines that it: 


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‘‘(A) Was developed for the primary 

purpose of making sales of excess 

electric power under the regulatory 

provisions of this part; or 

(B) Does not capture at least 60 

percent of the total energy value of the 

fuels used (on a higher-heating-value 

basis) in the form of useful thermal 

energy, electricity, mechanical energy, 

chemical output, or any combination 

thereof.’’ 

EPA is proposing to interpret the term 

‘‘construct’’ as used in EPCA Section 

372(d)(5) to mean ‘‘commence 

construction’’ as defined in this rule. 

For any source that commenced 

construction after EISA enactment, the 

financial and regulatory incentives in 

EISA Subtitle D could have influenced 

the decision to construct the source. 

EPA is proposing to interpret Section 

372(d)(5)(A) by utilizing the same 

‘‘primary purpose’’ definition and 

interpretation as Section B(5) of this 

preamble: 

(i) At least 50 percent of the 

aggregated annual energy output of the 

site (as defined in this rule) is to be used 

for industrial or commercial purposes, 

and not sold to an electric utility (‘‘the 

50 percent threshold’’); or 

(ii) The site is located in a State where 

the appropriate regulatory authority has 

made a State-wide determination under 

EISA Section 374 not to implement the 

regulatory sale of excess power 

provisions in EISA Section 374. This 

waiver of the 50 percent threshold is 

applicable until the State regulatory 

authority reverses or removes its 

decision; or 

(iii) The owner or operator of the site 

submits a joint petition with the local 

electric utility that serves the site to the 

Director of the Office of Atmospheric 

Programs of the EPA, requesting that the 

50 percent threshold be waived. 

EPA considered two primary options 

for interpreting Section 372(d)(5)(B): A 

strict interpretation that would require 

the source itself, prior to project 

implementation, to capture 60 percent 

of the total energy value of the fuels 

used at the source, or a more liberal 

interpretation which would require that 

the source and the project combined 

reach at least 60 percent capture of the 

total energy value of the fuels used at 

the source. 

EPA is proposing that per Section 

372(d)(5)(B), for new sources that 

commence construction after EISA 

enactment, the combined potential 

project and source must capture at least 

60 percent of the total energy value of 

the fuels used at the source (on a higherheating-value basis as defined in this 

rule) in the form of useful thermal 

energy, electricity, mechanical energy, 

chemical output, or any combination 

thereof. EPA believes that applying this 

efficiency requirement to the 

combination of potential project and 

source for new sources is in line with 

the objective of maximizing the 

efficiency of overall fuel use. EPA 

believes that the intent of the 60 percent 

threshold is to ensure that waste energy 

projects are legitimate and efficient, and 

to assure that new projects are not 

developed based on questionable 

sources (i.e., sources that utilize 

inefficient equipment with the intent to 

generate large amounts of waste heat). 

EPA believes that new sources that 

commence construction (as defined in 

this rule) after EISA enactment have a 

strong financial interest in being very 

energy efficient and are not likely to 

utilize inefficient equipment purely for 

the purpose of being added to the 

Registry and being eligible for 

incentives under Sections 373 or 374. 

Applying this threshold to the 

combined source and project should 

accomplish Congress’ objective of 

screening out questionable projects. 

While some new sources may be able to 

meet a 60 percent threshold 

independently, prior to the 

development of a waste energy recovery 

project, others may not be able to meet 

this threshold because of legitimate 

technology, operational or economic 

reasons. EPA believes that capturing 

and efficiently utilizing the waste 

energy supports the objectives of 

maximizing overall fuel use as long as 

the combined efficiency of the source 

and project are at least equal to the 60 

percent total fuel efficiency threshold. 

EPA also understands that there are 

situations where existing technology 

cannot meet a strict 60 percent capture 

threshold under either interpretation 

described above, including but not 

limited to recovering power from the 

exhaust heat at pipeline compressor 

stations. EPA is proposing to waive this 

criterion in situations where existing 

technology cannot meet a strict 60 

percent threshold yet significant overall 

efficiency improvements could be 

achieved through waste energy recovery 

technologies. Examples include, but are 

not limited to, heat recovery from 

pipeline compressor stations. EPA will 

determine if a source qualifies under 

this exception on a case by case basis 

based on internal review of the 

application and applicable technologies. 

b. New Energy Consuming Industrial 

Sites Constructed After EISA Enactment 

EPCA Section 372(f) states that EPA 

may elect to include in the Registry a 

new energy-consuming industrial 

facility (to the extent the site may 

constitute a site with recoverable waste 

energy that may qualify for inclusion in 

the Registry) developed after EISA 

enactment, at the request of the owner, 

operator, or developer of the site, on a 

conditional basis with the site to be 

removed from the Registry if 

development ceases or the site fails to 

qualify for listing under Part E of EPCA. 

EPA is proposing to add to the 

Registry any new energy-consuming 

industrial sites (as defined in this rule) 

that contain at least one new source 

meeting the requirements for new 

sources described above, as well as the 

standard criteria for listing. Because the 

Survey will continue to be available 

following the Registry’s initial launch, 

EPA does not believe it is necessary to 

establish a separate process for adding 

these new sites to the Registry. Upon 

submission of the Survey results by the 

site owner or operator, EPA will be able 

to determine whether the site meets the 

appropriate criteria. Since EPA will be 

adding facilities to the Registry on a 

rolling basis, listing sites on a 

conditional basis will not be necessary. 

In defining ‘‘new energy-consuming 

industrial sites,’’ EPA proposes to 

interpret the phrase ‘‘developed after’’ 

the date of EISA enactment the same as 

the phrase ‘‘constructed after’’ the date 

of EISA enactment in Section 

372(d)(5)(B). Therefore, a new energyconsuming industrial site developed 

after the date of EISA enactment is one 

that commenced construction after 

December 19, 2007. In addition, EPA 

proposes to apply the primary purpose 

criterion and the 60 percent criterion to 

new sources at these sites. 

EPA is also proposing that developers 

who wish to submit Survey results for 

a new energy-consuming industrial site 

must do so jointly with an owner or 

operator. This is consistent with the 

proposed role of developers for existing 

sources. 

3. How Are Projects Removed From the 

Registry? 

EPCA Section 372(d)(4)(A) directs 

that as a project achieves successful 

recovery of waste energy, EPA shall: 

(i) ‘‘Remove the related sites or sources 

from the Registry, and 

(ii) Designate the removed projects as 

eligible for incentives under Section 374.’’ 

EPCA Section 372(d)(4)(B) states that 

no project shall be removed from the 

Registry without consent of the owner 

or operator of the project if: 

(i) ‘‘The owner or operator has submitted 

a petition under Section 374; and 

(ii) The petition has not been acted on or 

denied.’’ 


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Under Section 374(a), an owner, 

operator, or project sponsor may request 

that the State regulatory authority or 

nonregulated electric utility provide 

public notice, conduct a hearing, and 

determine whether to adopt a standard 

for sales of excess power as provided in 

Section 374(b). Section 374(b) requires 

that the sales of excess power standard 

‘‘provide that an owner or operator of a 

waste energy recovery project identified 

on the Registry that generates net excess 

power shall be eligible to benefit’’ from 

at least one of three options listed under 

Section 374(c) ‘‘for disposal of the net 

excess power.’’ Those options are (1) the 

sale of net excess power to the utility; 

(2) transport by the utility for direct sale 

to a third party; and (3) transport over 

private transmission lines without 

subjecting the project to regulation as a 

public utility. The third option includes 

waiver or modification of any laws that 

would otherwise prohibit the 

construction and operation of private 

transmission lines. 

The regulatory incentives in EPCA 

Section 374 have the potential to affect 

whether an owner or operator pursues a 

waste energy project and achieves 

successful recovery of the waste energy, 

since they relate to the sales of net 

excess power to a utility. One 

interpretation of EPCA Section 372(d)(4) 

would not allow the owner or operator 

of the source or site to submit a Section 

374 petition until the project is 

commercially operational. However, 

this interpretation is inconsistent with 

the notion of an incentive and with the 

purpose of EISA Subtitle D, as 

explained below. Therefore, EPA 

believes that a two-step approach to the 

Section 374 incentives is what Congress 

intended. Step one is for an owner or 

operator of a site or source listed in the 

Registry to submit a Section 374 petition 

and for the State regulatory authority or 

nonregulatory authority to act on that 

petition. Step two is that once a waste 

energy project is commercially 

operational, EPA will remove it from the 

Registry and it will be eligible to 

dispose of the net excess power in 

accordance with the standard adopted 

under Section 374(a), which would 

include one or more of the options in 

Section 374(c). EPA believes that full 

implementation of the Section 374 

incentives as part of Step two is 

reasonable because a project must be 

commercially operational for it to be 

generating net excess power that can be 

disposed of by selling it to the utility, 

having the utility transport it for direct 

sale to a third party, or operating private 

transmission lines to transport it for sale 

to a third party [Section 374(c)]. EPA is 

proposing that under the third option, 

the source would not have to wait until 

the project became commercially 

operational before obtaining the 

necessary legal waivers or modifications 

and constructing the private 

transmission lines. Such actions could 

proceed during project development. 

Once the project became commercially 

operational, EPA would remove the 

source from the Registry and designate 

the project as eligible to dispose of the 

net excess power, which in this instance 

would occur through operation of the 

private transmission lines. 

EPA understands that the EPCA 

Section 374 incentives could 

significantly affect the feasibility of 

investing in the successful recovery of 

waste energy at a source. Offering the 

ability to submit a Section 374 petition 

only after a waste energy recovery 

project is commercially operational 

would prevent the incentives from 

serving their intended purpose, which is 

to overcome regulatory or financial 

obstacles to such recovery. Given an 

overarching goal of EISA Subtitle D is 

energy efficiency and the Registry is to 

facilitate the successful recovery of 

waste energy, EPA believes Congress 

intended sites or sources in the Registry 

to be able to submit a Section 374 

petition, even though the Section 374 

incentives relating to disposal of the net 

excess power will not be available for 

implementation until the waste energy 

project became commercially 

operational. When a waste energy 

project is commercially operational, the 

owner or operator is not eligible to 

submit a new Section 374 petition, but 

can continue to request action on a 

pending petition. Further, EPA is 

proposing that no source or site will be 

removed from the Registry if the owner 

or operator has submitted a petition 

under Section 374 based on the site or 

source in question, and the petition has 

not been acted on or denied. 

EPA is proposing for sites or sources 

listed in the Registry, that as a waste 

energy project at the source becomes 

commercially operational, the site 

owner or operator shall notify EPA 

within 90 days. EPA is also proposing 

that if a site or source on the Registry 

chooses to no longer be listed in the 

Registry, the site or source can notify 

EPA that it requests to be removed from 

the Registry. EPA will remove the 

source from the Registry within 30 days 

from notification, with the exception 

that no source or site will be removed 

from the Registry if it has submitted a 

Section 374 petition and the petition 

has not been acted on or denied. The 

site owner or operator shall notify EPA 

via mail (address at http://www.epa.gov/ 

wasteenergyregistry) or e-mail at 

wasteenergyregistry@epa.gov. E-mail 

submissions may include in the subject 

line ‘‘Source removal request’’ or 

‘‘Commercial operation.’’ All 

notifications shall include the site 

name, address, NAICS code, date project 

became commercially operational, 

project electric capacity, and the project 

thermal capacity. All notifications shall 

also include a statement whether the 

owner or operator has submitted a 

Section 374 petition to the appropriate 

regulatory authority or nonregulated 

electric utility and if so, whether that 

regulatory authority or utility has yet 

acted on the petition. 

EPA is proposing to maintain a 

publicly-available list of all sources or 

sites that were listed in the Registry that 

were removed once waste energy 

projects were completed. This list will 

be used demonstrate the success of 

waste energy capture and be housed on 

the same Web site as the Registry. 

IV. Economic Impacts 

In developing this proposal, EPA 

prepared an economic analysis to 

estimate the cost of the proposal, how 

the rule might impact small entities, and 

the cost-effectiveness of regulatory 

alternatives. 

The cost of the proposed rule reflects 

both the costs of collecting waste energy 

information, primarily through a 

Survey, and the costs of maintaining the 

information on a publicly available EPA 

Web site. EPA estimates total 3-year 

costs to the Agency of approximately 

$1.4 million. The total cost over the 3- 

year period, including costs to 

respondents and non-respondents, is 

$2.8 million. 

The analysis determined that private 

costs per respondent will not impose a 

significant cost on large or small 

businesses. Furthermore, given that the 

Survey is targeted at the largest 1% of 

non-manufacturing establishments and 

the largest 2% of manufacturing 

establishments, the Survey is unlikely to 

affect many small entities at all. 

Respondents that download and submit 

Survey reporting information without 

request from EPA are unlikely to be 

small entities because these respondents 

are likely to know if they can produce 

economically-feasible recoverable waste 

energy. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order (EO) 12866 

(58 FR 51735, October 4, 1993), this 

action is a ‘‘significant regulatory 


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action’’ as it raises novel legal or policy 

issues. Accordingly, EPA submitted this 

action to the Office of Management and 

Budget (OMB) for review under EO 

12866 and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

In addition, EPA prepared an analysis 

of the potential costs and benefits 

associated with this action. This 

analysis is contained in ‘‘Waste Energy 

Registry: Regulatory/Economic 

Analysis’’ in docket EPA–HQ–OAR– 

2008–0201. A copy of the analysis is 

available in the docket for this action 

and is briefly summarized here. 

The proposed rule will not have an 

annual impact of $100 million or meet 

the other criteria for ‘‘significant 

regulatory action’’ in the Executive 

Order. Therefore, EPA does not plan to 

prepare a regulatory impact statement 

for this proposed rule. However, EPA 

invites comments on the economic 

analysis. 

B. Paperwork Reduction Act 

The information collection 

requirements in this proposed rule have 

been submitted for approval to the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. The 

Information Collection Request (ICR) 

document prepared by EPA has been 

assigned EPA ICR number 2321.01. The 

information collected as a result of this 

proposed rule and Survey will allow 

EPA to implement the Registry of 

Recoverable Waste Energy Sources 

(Registry) mandated by Title IV, Subtitle 

D, Section 372 of the Energy 

Independence and Security Act (EISA) 

of 2007. Those major industrial and 

large commercial sources that choose to 

respond to the Survey by filling out the 

Survey tool will enter data into the tool 

to be used to determine the potential 

waste energy recovery opportunity at 

the source or site. Those sources or sites 

that satisfy the criteria for inclusion in 

this proposed rule will be placed by 

EPA in the Registry. 

The major information burden 

involves enterprises that respond to the 

Survey. The Survey is a one-time 

burden given the scope of the ICR is 

three years. 

For the first three years after 

publication of the final rule in the 

Federal Register, developing the Survey 

tool, conducting the Survey, and 

developing and administering the 

Registry will account for the burden to 

EPA. 

Calculation of the information 

collection burden and costs associated 

with this proposal can be found in the 

Information Collection Request for the 

Proposed Rule (40 CFR part 1200) and 

Survey in Support of the Waste Energy 

Recovery Registry (USEPA, 2008), 

available through http:// 

www.regulation.gov under Docket ID 

EPA–HQ–OAR–2008–0201. 

The total burden for respondents and 

non-respondents associated with the 

proposed rule over the 3 years following 

promulgation is 60,645 hours, or an 

average of 20,215 hours per year. The 

total cost over this period, including 

costs to respondents and nonrespondents is approximately $2.8 

million or an average of $933,000 per 

year. 

The average burden per response, 

considering only survey respondents, 

for each activity that requires a 

collection of information is 7.29 hours; 

the average cost per response is $336. 

Average burden and cost to nonrespondents is approximately half of the 

burden and cost to respondents, or 3.6 

hours and $166. Time and cost 

variations may exist depending on the 

number of components of the Survey 

addressed by respondents. 

The total burden to EPA is 

approximately 9,831 hours, or 3,277 

hours per year. EPA costs are $1,377,000 

over three years, or approximately 

$459,000 per year, including extramural 

costs. Burden is defined at 5 CFR 

1320.3(b). 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

request unless it displays a currently 

valid OMB control number. The OMB 

control numbers for EPA’s regulations 

in 40 CFR are listed in 40 CFR Part 9. 

To comment on the Agency’s need for 

this information, the accuracy of the 

provided burden estimates, and any 

suggested methods for minimizing 

respondent burden, EPA has established 

a public docket for this proposed rule 

under Docket ID number EPA–HQ– 

OAR–2008–0201. Submit any comments 

related to the ICR to EPA and OMB. See 

ADDRESSES section at the beginning of 

this notice for where to submit 

comments to EPA. Send comments to 

OMB at the Office of Information and 

Regulatory Affairs, Office of 

Management and Budget, 725 17th 

Street, NW., Washington, DC 20503, 

Attention: Desk Officer for EPA. Since 

OMB is required to make a decision 

concerning the ICR between 30 and 60 

days after July 23, 2009, a comment to 

OMB is best assured of having its full 

effect if OMB receives it by August 24, 

2009. The final rule will respond to any 

OMB or public comments on the 

information collection requirements 

contained in this proposal. 

C. Regulatory Flexibility Act (RFA) 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any ‘‘not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field.’’ 

After considering the economic 

impacts of today’s proposed rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. This proposed rule will not 

impose any requirements on small 

entities. 

Since this proposed rule establishes 

the criteria by which entities can submit 

a voluntary survey, no small entity is 

being regulated. The survey is 

voluntary, so it will not impose any 

requirements on small entities. Small 

entities may choose to participate in the 

Registry by submitting the Survey, but 

it is not mandatory. 

We continue to be interested in the 

potential impacts of the proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538, for State, local, or Tribal 

governments or the private sector. The 

action imposes no enforceable duty on 

any State, local or Tribal governments or 

the private sector. This action is also not 

subject to the requirements of Section 

203 of UMRA because it contains no 

regulatory requirements that might 

significantly or uniquely affect small 

governments. The proposed rule 

pertains only to major domestic 


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industrial and large commercial sources 

that may have potentially recoverable 

waste energy. 

E. Executive Order 13132: Federalism 

Executive Order 13132, titled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999) requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have Federalism 

implications.’’ ‘‘Policies that have 

Federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ 

This proposed rule does not have 

Federalism implications. It will not 

have substantial direct effects on the 

States, on the relationship between the 

national government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, as specified in EO 

13132. The Registry of Recoverable 

Waste Energy Sources and the Survey 

tool will be administered by EPA and 

will involve only major domestic 

industrial and large commercial sources 

with potentially recoverable waste 

energy. Thus, Executive Order 13132 

does not apply to this rule. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA 

specifically solicits comment on this 

proposed rule from State and local 

officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have Tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). It involves only the collection of 

information from major domestic 

industrial and large commercial sources 

with potentially recoverable waste 

energy and the development and 

administration by EPA of a Registry of 

Recoverable Waste Energy Sources. 

Thus, Executive Order 13175 does not 

apply to this action. EPA specifically 

solicits additional comment on this 

proposed action from Tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets EO 13045 (62 F.R. 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it does not establish 

an environmental standard intended to 

mitigate health or safety risks. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

This action is focused on identifying the 

potential for waste energy recovery 

through a Survey and creating a 

Registry; it is not focused on other 

aspects of energy supply or distribution. 

Further, we have concluded that this 

rule is not likely to have any adverse 

energy effects because it will not pursue 

the installation of the waste energy 

recovery operations, rather just identify 

the potential. Since the decision to 

invest in these potential waste energy 

recovery projects is made by the facility 

owner or operator, it is too far removed 

from this rule and its affects; as such it 

will not have any adverse energy affects. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104– 

113, 12(d) (15 U.S.C. 272 note) directs 

EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

The proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering the use of any 

voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. The proposed rule 

involves only the collection of 

information about potential 

opportunities for waste energy recovery. 

Although the Survey and Registry of 

Recoverable Waste Energy Sources are 

expected to encourage the development 

of projects to reduce the amount of lost 

energy, the siting and development of 

waste energy recovery projects are not 

covered by this proposed rule. 

List of Subjects in 40 CFR Part 1200 

Environmental protection. Energy. 

Waste energy. Combined heat and 

power. Industrial energy efficiency. 

Dated: July 16, 2009. 

Lisa Jackson, 

Administrator. 

For the reasons set out in the 

preamble, title 40, chapter I, of the Code 

of Federal Regulations is proposed to be 

amended by adding part 1200 to 

Subchapter U to read as follows: 

PART 1200—WASTE ENERGY 

RECOVERY REGISTRY 

Sec. 

1200.1 Purpose. 

1200.2 Definitions. 

1200.3 Criteria for inclusion in the Registry. 

1200.4 Process for inclusion in the Registry. 

1200.5 Process for removing a listing from 

the Registry. 

1200.6 Process for contesting a Registry 

listing. 

Authority: Sec. 451, Pub. L. 110–140, 121 

Stat. 1492. 

§ 1200.1 Purpose. 

This part establishes criteria for the 

inclusion of sources or sites in the 

Registry of Potentially Recoverable 

Waste Energy Sources and establishes 

the processes for adding sources or sites 

to the Registry and removing them from 

the Registry. 

§ 1200.2 Definitions. 

As used in this part, the term: 


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Administrator means the 

Administrator of the Environmental 

Protection Agency. 

Aggregated annual energy output of 

the site means the total useful output of 

the fuel driving the source, including 

electricity generated by a project and 

thermal energy recovered in or driving 

the project and/or process. 

Combined heat and power means a 

site that simultaneously and efficiently 

produces useful thermal energy and 

electricity; and recovers not less than 60 

percent of the energy value in the fuel 

(on a higher-heating-value basis as 

defined in this rule) in the form of 

useful thermal energy and electricity. 

Commence construction means that 

the owner or operator has all necessary 

preconstruction approvals or permits 

and either has: begun, or caused to 

begin, a continuous program of actual 

on-site construction of the source, to be 

completed within a reasonable time; or 

entered into binding agreements or 

contractual obligations, which cannot be 

cancelled or modified without 

substantial loss to the owner or 

operator, to undertake a program of 

actual construction of the source to be 

completed within a reasonable time. 

Commercially operational means the 

waste energy recovery project is placed 

in service. Commercially operational 

does not include commissioning or 

other testing prior to operation. 

Detailed Quantitative Information 

(DQI) means the following Survey 

output with respect to individual 

sources at a site: 

(1) Source description (e.g., glass 

furnace, process flare); 

(2) Quantitative estimates of: 

(i) For each source, the CO2 emissions 

reduction potential (tons/year); 

(ii) For each source, the criteria 

pollutant reduction potential (NOx and 

SOx tons/yr); 

(iii) For waste heat sources, the waste 

heat to power recovery potential (MW); 

(iv) For waste gas sources, the waste 

gas to power recovery potential (MW); 

(v) For pressure drop sources, the 

pressure drop to power recovery 

potential (MW); 

(vi) For potential CHP opportunities, 

the CHP potential based on sizing to 

thermal (heating and/or cooling) load 

(MW). 

(3) Yes/no answers to the following 

questions: 

(i) For each waste heat source, 

combustible source, pressure drop 

source, and potential CHP opportunity, 

does the potential project have a five 

year payback or less (yes/no); 

(ii) For each waste heat source, 

combustible source, pressure drop 

source, and potential CHP opportunity, 

does the potential project meet the 

primary purpose criteria (yes/no); 

(iii) For each new source, does the 

potential project meet the 60% 

efficiency test (yes/no); 

(iv) For each waste heat source, does 

the site have a waste heat recovery 

opportunity that passes all screening 

criteria (yes/no); 

(v) For each waste gas or industrial 

tail gas source, does the site have a 

waste gas or industrial tail gas recovery 

opportunity that passes all screening 

criteria (yes/no); 

(vi) For each pressure drop source, 

does the site have a pressure drop 

recovery opportunity that passes all 

screening criteria (yes/no); 

(vii) For each potential CHP 

opportunity, does the site have a CHP 

opportunity that passes all screening 

criteria (yes/no). 

Existing source or site means a source 

or site that commenced construction 

prior to December 19, 2007. 

Heating-value means how much 

energy is released on combustion of a 

given quantity of fuel, for example, Btu 

per gallon, or Btu per cubic foot. 

Higher heating-value (HHV) means 

heating value including the heat of 

condensation of the water vapor 

contained in the products of 

combustion. Fuels are typically priced 

on an HHV basis. The HHV for natural 

gas is approximately 10% greater than 

the LHV. 

Large commercial source means a 

source at a site that meets or exceeds an 

initial threshold of 1 MW average 

electric annual demand or 5 MMBtu/ 

hour fuel use and where the source 

meets or exceeds a secondary threshold 

of minimum thermal or cooling load of 

2.5 MMBtu/hour or 150 Tons, and 

minimum operating hours of 4,500 hrs/ 

yr. 

Lower heating value (LHV) means 

heating value not including the heat of 

condensation of the water vapor 

contained in the products of 

combustion. 

Major industrial source means a 

source at a site that meets or exceeds an 

initial threshold of 100 MMBtu/hour 

fuel use and where the source meets or 

exceeds a secondary threshold of 

process stacks with temperatures 500° F 

or greater, flow rates greater than 7,000 

to 50,000 scf/min depending on 

temperature, and minimum operating 

hours of 4,500 hrs/yr. 

New energy-consuming industrial site 

means any new major industrial site 

that has commenced construction on or 

after December 19, 2007. Sources at a 

new major industrial site that meet the 

definition of a major industrial source 

are to be treated as new major industrial 

sources. 

New source or site means a source or 

site that commenced construction on or 

after December 19, 2007. 

Project means a recoverable waste 

energy project or a combined heat and 

power project. A project is located at a 

particular source. A site may have 

multiple projects. 

Recoverable waste energy means 

waste energy from which electricity or 

useful thermal energy may be recovered 

through modification of an existing site 

or addition of a new site. 

Registry means the Registry of 

Recoverable Waste Energy Sources. 

Respondent means an owner or 

operator of a source or site that submits 

a Survey response to EPA. 

Section 374 petition means the 

submission by an owner or operator of 

a site or source in the Registry of a 

request to a State regulatory authority or 

nonregulated utility on the basis of 

section 374 of the Energy Policy and 

Conservation Act. 

Site means a building or group of 

buildings that provides a particular 

service or is used for a particular 

industrial application. 

Source means any process or activity 

resulting in the release of waste energy. 

A site may have multiple sources. 

Survey means the EPA document or 

tool which is designed to gather 

information from major industrial and 

large commercial sources about the 

potential waste energy produced at the 

source or site. The Survey gathers data 

necessary to establish the Registry of 

Recoverable Waste Energy Sources. 

Useful thermal energy means energy 

in the form of direct heat, steam, hot 

water; or other thermal form that is used 

in production and beneficial measures 

for heating, cooling, humidity control, 

process use, or other valid thermal enduse requirements; and for which fuel or 

electricity would otherwise be 

consumed. 

Waste energy means exhaust heat or 

flared gas from any industrial process; 

waste gas or industrial tail gas that 

would otherwise be flared, incinerated, 

or vented; a pressure drop in any gas, 

excluding any pressure drop to a 

condenser that subsequently vents the 

resulting heat; and the opportunity for 

combined heat and power project/s. 

§ 1200.3 Criteria for inclusion in the 

Registry. 

(a) EPA will include in the Registry 

sources or sites that meet the criteria in 

paragraphs (b) and (c) of this section: 

(b)(1) Existing sources and sites must 

meet the following initial and secondary 

threshold criteria except as provided in 

paragraph (b)(3) of this section: 


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(i) Major industrial sources. 

(A) Initial threshold—site with 100 

MMBtu/hour fuel use; 

(B) Secondary threshold—process 

stacks with temperatures 500 °F or 

greater, flow rates greater than 7,000 to 

50,000 scf/min depending on 

temperature, and minimum operating 

hours of 4,500 hrs/yr. 

(ii) Large commercial sources. 

(A) Initial threshold—site with 1 MW 

average electric annual demand or 5 

MMBtu/hour fuel use; 

(B) Secondary threshold—minimum 

thermal or cooling load of 2.5 MMBtu/ 

hour or 150 Tons, and minimum 

operating hours of 4,500 hrs/yr. 

(2) New sources and sites must meet 

the following initial and secondary 

threshold criteria except as provided in 

paragraph (b)(3) of this section and must 

also meet the criterion in paragraph 

(b)(2)(iii) of this section: 

(i) Major industrial sources. 

(A) Initial threshold—site with 100 

MMBtu/hour fuel use; 

(B) Secondary threshold—process 

stacks with temperatures 500 °F or 

greater, flow rates greater than 7,000 to 

50,000 scf/min depending on 

temperature, and minimum operating 

hours of 4,500 hrs/yr. 

(ii) Large commercial sources. 

(A) Initial threshold—site with 1 MW 

average electric annual demand or 5 

MMBtu/hour; 

(B) Secondary threshold—minimum 

thermal or cooling load of 2.5 MMBtu/ 

hour or 150 Tons, and minimum 

operating hours of 4,500 hrs/yr. 

(iii) The combined potential project 

and source must capture at least 60 

percent of the total energy value of the 

fuels used at the source (on a higherheating-value basis as defined in this 

rule) in the form of useful thermal 

energy, electricity, mechanical energy, 

chemical output, or any combination 

thereof. Sources for which the 

Administrator determines that existing 

technology cannot meet the 60 percent 

threshold are considered to have met 

this criterion. 

(3) Notwithstanding the initial 

thresholds in paragraphs (b)(1) and 

(b)(2) of this section, a source or site 

will be eligible for inclusion in the 

Registry if it meets the appropriate 

secondary threshold criteria and all 

other applicable criteria in this section. 

For purposes of §§ 1200.4 through 

1200.6, such source will be considered 

a major industrial or large commercial 

source. 

(c) Both existing and new sources or 

sites must meet the following criteria for 

inclusion in the Registry: 

(1) A potential waste energy recovery 

project at a source or site must be 

economically feasible by virtue of 

offering a payback of invested costs not 

later than 5 years after the date of first 

full project operation. 

(2) A potential waste energy recovery 

project at a source or site must not be 

developed or used for the primary 

purpose of making sales of excess 

electric power under the regulatory 

provisions of EPCA Part E, Section 374, 

as demonstrated by meeting one of the 

following criteria: 

(i) At least 50 percent of the 

aggregated annual energy output of the 

site (as defined in this rule) will be used 

for industrial or commercial purposes, 

and not sold to an electric utility; or 

(ii) The site is located in a State where 

the appropriate regulatory authority has 

made a State-wide determination under 

EPCA Section 374 to not implement the 

regulatory sale of excess power 

provisions in EPCA Section 374. This 

waiver of the 50 percent requirement in 

paragraph (c)(2)(i) of this section is 

applicable until the State regulatory 

authority reverses or removes its 

decision; or 

(iii) The owner or operator of the site 

submits a joint petition with the local 

electric utility that serves the site to the 

Director of the Office of Atmospheric 

Programs of the EPA, requesting that the 

primary purpose criterion be waived. 

§ 1200.4 Process for inclusion in the 

Registry. 

(a) Response to Survey. In order for a 

site or source to be eligible for inclusion 

in the Registry, owners or operators of 

major industrial and large commercial 

sources must submit to the 

Administrator data generated by the 

Survey. Third-party developers may 

make a joint submission with the owner 

or operator of the site or source. 

(b) Form of Response. Respondents 

may submit the data generated by the 

Survey in either electronic or hardcopy 

format. 

(c) Timing of Response. To be eligible 

for inclusion in the initial launch of the 

Registry, data submissions for a site or 

source must be received by EPA within 

the first 60 days following Survey 

release. Additional submissions 

received will be included on a rolling 

basis. Surveys jointly submitted by a 

third-party developer and owner or 

operator of the site or source will be 

included in the Registry with a notation 

of ‘‘joint submittal.’’ 

(d) Detailed Quantitative Information. 

EPA will not include detailed 

quantitative information (DQI) in the 

Registry but may make DQI available to 

the applicable State energy office and 

utility requested to support recovery of 

waste energy from the source or site 

pursuant to the incentives provided 

under EPCA section 374. 

§ 1200.5 Process for removing a listing 

from the Registry. 

(a) Notice to EPA. Owners or 

operators of major industrial and large 

commercial sources that have a 

potential waste energy recovery project 

currently listed in the Registry must 

notify EPA in writing within 90 days 

after the project becomes commercially 

operational that the project is 

commercially operational. Owners or 

operators shall provide notice by 

providing the site name, address, NAICS 

code, date that the project became 

commercially operational, project 

electric capacity, and project thermal 

capacity. The requesting site owner or 

operator shall also state whether they 

have submitted a Section 374 petition to 

the appropriate regulatory authority or 

nonregulated electric utility and if so, 

whether that regulatory authority or 

utility has acted on the petition. 

(b) Action by EPA. EPA shall remove 

the source or site from the Registry 

within 30 days of receipt of notice, 

except that EPA shall not remove a 

source or site from the Registry if the 

source or site has submitted a petition 

under section 374 to the appropriate 

regulatory authority or nonregulated 

electric utility and the petition has not 

been acted on. EPA shall maintain a list 

of all sources or sites that have been 

removed from the Registry. 

§ 1200.6 Process for contesting a Registry 

listing. 

(a) Any State, electric utility, or other 

interested person may contest a Registry 

listing by submitting a petition in 

writing to EPA. All petitions must 

explain the reason[s] the listing (i.e., 

site[s] or source[s]) is being contested. 

To contest a Registry listing, the State, 

electric utility, or other interested 

person must provide the following 

information to the Director of the Office 

of Atmospheric Programs of the EPA in 

writing (via e-mail or regular mail): 

(1) Entity contesting the listing— 

Name, address, contact person name, 

title, address, e-mail and phone number; 

(2) Registry listing being contested— 

Name, address, and NAICS code as 

displayed in the Registry; 

(3) Reason the listing is being 

contested (i.e. why the site or source 

should be excluded from the Registry). 

(b) Notice of decision. Within 15 days 

of receipt of a petition contesting a 

Registry listing, EPA shall provide 

written notification to the owner or 

operator of any source or site whose 

inclusion in the Registry is contested. 

EPA shall consider any information 


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regarding the contested listing received 

from the owner or operator within 60 

days from the date of notification. 

(c) Decision on contested listing. No 

later than 180 days following receipt of 

information submitted by an entity 

contesting the listing, EPA will inform 

the entity contesting the listing and the 

owner or operator of the source or site 

whether it will remove or retain the 

listing in the Registry. 

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

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Chapter I 

[WC Docket No. 07–38; GN Docket Nos. 

09–47, 09–41; DA 09–1550] 

Comment Sought on Providing Eligible 

Entities Access to Aggregate Form 477 

Data as Required by the Broadband 

Data Improvement Act 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: The Federal Communications 

Commission Wireline Competition 

Bureau (Bureau) released a public notice 

establishing a pleading cycle for 

comments on how the Federal 

Communications Commission should 

interpret and implement sections 

106(h)(1) and 106(h)(2) of the 

Broadband Data Improvement Act of 

2008 (BDIA). (Broadband Data 

Improvement Act of 2008, Public Law 

110–385, 122 Stat. 4097 (codified at 47 

U.S.C. 1301–04)). 

DATES: Comments are due on or before 

July 30, 2009, and reply comments are 

due on or before August 4, 2009. 

ADDRESSES: You may submit comments, 

identified by WC Docket No. 07–38; and 

GN Docket Nos. 09–47 and 09–51, by 

any of the following methods: 

• Federal e-Rulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s Web Site: http:// 

www.fcc.gov/cgb/ecfs/. Follow the 

instructions for submitting comments. 

• E-mail: ecfs@fcc.gov, and include 

the following words in the body of the 

message, ‘‘get form.’’ A sample form and 

directions will be sent in response. 

Include the docket number(s) in the 

subject line of the message. 

• Mail: Secretary, Federal 

Communications Commission, 445 12th 

Street, SW., Washington, DC 20554. 

• Hand Delivery/Courier: 236 

Massachusetts Avenue, NE., Suite 110, 

Washington, DC 20002. 

• People with Disabilities: Contact the 

FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by e-mail: FCC504@fcc.gov 

or phone: 202–418–0530 or TTY: 202– 

418–0432. 

All submissions received must 

include the agency name and docket 

numbers for this rulemaking, WC 

Docket No. 07–38; and GN Docket Nos. 

09–47 and 09–51. All comments 

received will be posted without change 

to http://www.fcc.gov/cgb/ecfs. For 

detailed instructions for submitting 

comments and additional information 

on the rulemaking process, see the 

SUPPLEMENTARY INFORMATION section of 

this document. 

FOR FURTHER INFORMATION CONTACT: 

Jeremy Miller, Industry Analysis and 

Technology Division, Wireline 

Competition Bureau at (202) 418–0940. 

SUPPLEMENTARY INFORMATION: Pursuant 

to sections 1.415 and 1.419 of the 

Commission’s rules, 47 CFR 1.415, 

1.419, interested parties may file 

comments and reply comments on or 

before the dates indicated on the first 

page of this document. Comments may 

be filed using: (1) The Commission’s 

Electronic Comment Filing System 

(ECFS), (2) the Federal Government’s 

e-Rulemaking Portal, or (3) by filing 

paper copies. See Electronic Filing of 

Documents in Rulemaking Proceedings, 

63 FR 24121 (1998). 

• Electronic Filers: Comments may be 

filed electronically using the Internet by 

accessing the ECFS: http://www.fcc.gov/ 

cgb/ecfs/ or the Federal e-Rulemaking 

Portal: http://www.regulations.gov. 

Filers should follow the instructions 

provided on the Web site for submitting 

comments. 

• For ECFS filers, if multiple docket 

or rulemaking numbers appear in the 

caption of this proceeding, filers must 

transmit one electronic copy of the 

comments for each docket or 

rulemaking number referenced in the 

caption. In completing the transmittal 

screen, filers should include their full 

name, U.S. Postal Service mailing 

address, and the applicable docket or 

rulemaking number. Parties may also 

submit an electronic comment by 

Internet e-mail. To get filing 

instructions, filers should send an email to ecfs@fcc.gov, and include the 

following words in the body of the 

message, ‘‘get form.’’ A sample form and 

directions will be sent in response. 

• Paper Filers: Parties who choose to 

file by paper must file an original and 

four copies of each filing. If more than 

one docket or rulemaking number 

appears in the caption of this 

proceeding, filers must submit two 

additional copies for each additional 

docket or rulemaking number. 

Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail 

(although we continue to experience 

delays in receiving U.S. Postal Service 

mail). All filings must be addressed to 

the Commission’s Secretary, Office of 

the Secretary, Federal Communications 

Commission. 

• The Commission’s contractor will 

receive hand-delivered or messengerdelivered paper filings for the 

Commission’s Secretary at 236 

Massachusetts Avenue, NE., Suite 110, 

Washington, DC 20002. The filing hours 

at this location are 8 a.m. to 7 p.m. All 

hand deliveries must be held together 

with rubber bands or fasteners. Any 

envelopes must be disposed of before 

entering the building. 

• Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 

East Hampton Drive, Capitol Heights, 

MD 20743. 

• U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 445 12th Street, SW., 

Washington DC 20554. 

People with Disabilities: To request 

materials in accessible formats for 

people with disabilities (braille, large 

print, electronic files, audio format), 

send an e-mail to fcc504@fcc.gov or call 

the Consumer & Governmental Affairs 

Bureau at 202–418–0530 (voice), 202– 

418–0432 (tty). 

By this document, the Bureau seeks 

comment on how the Federal 

Communications Commission should 

interpret and implement sections 

106(h)(1) and 106(h)(2) of the 

Broadband Data Improvement Act of 

2008. 

Since 2000, the Commission has 

collected basic service information from 

broadband service providers using Form 

477. In 2008, the Commission adopted 

revisions to the Form 477, which would 

result in the collection of more detailed 

and granular data. At the same time, the 

Commission issued a further notice of 

proposed rulemaking, which, among 

other things, sought comment on the 

issue of how to provide Form 477 

information to other broadband 

initiatives, including those undertaken 

by state agencies and public-private 

partnerships, and on how to preserve 

confidentiality when sharing the 

information collected on Form 477. (See 

2008 Broadband Data Gathering Order 


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